Doucette v. Jacobs ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1160
RACHEL DOUCETTE, FOR HERSELF AND MINOR SON B.D.; MICHAEL
DOUCETTE, FOR HIMSELF AND MINOR SON B.D.,
Plaintiffs, Appellants,
v.
GEORGETOWN PUBLIC SCHOOLS; TOWN OF GEORGETOWN; ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Judith G. Dein, U.S. Magistrate Judge]
Before
Thompson, Selya, and Lipez,
Circuit Judges.
Carol Ann Kelly, with whom Phillip E. Murray, Jr. and Murray,
Kelly, & Bertrand, P.C. were on brief, for appellants.
Alexandra R. Hassel, with whom Regina M. Ryan and Louison,
Costello, Condon & Pfaff, LLP were on brief, for appellees.
August 26, 2019
LIPEZ, Circuit Judge. Rachel and Michael Doucette sued
Georgetown Public Schools, the school committee, the town, and
certain school district employees (collectively, "the school
district") on behalf of their severely disabled child, B.D. The
Doucettes alleged that the school district deprived B.D. of his
service animal and subjected him to a dangerous environment in
violation of federal and state law, thereby causing B.D. to
experience seizures and hospitalization. They sought money
damages for alleged permanent physical and emotional harm to B.D.,
as well as for loss of consortium to the parents.
The school district moved for judgment on the
pleadings, arguing that the Doucettes had failed to exhaust their
federal claims -- a Rehabilitation Act claim and a substantive due
process claim under 42 U.S.C. § 1983 -- through the administrative
procedures prescribed by the Individuals with Disabilities
Education Act ("IDEA"). See 20 U.S.C. §§ 1400–1491o; 1415(l).
The IDEA requires exhaustion -- i.e., resort to the administrative
process -- before a plaintiff may bring a civil action pursuant to
other federal laws protecting the rights of disabled children if
the relief sought is from the denial of a free appropriate public
education. See 20 U.S.C. § 1415(l). The administrative process
culminates in an impartial due process hearing conducted by the
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state educational agency or the local educational agency, as
determined by the state. See 20 U.S.C. § 1415(f).1
Agreeing that the Doucettes' federal claims were subject
to the IDEA's exhaustion requirement, the district court2 granted
the school district's motion as to those claims and remanded the
Doucettes' state law claims to state court. We vacate that
decision. Guided by the Supreme Court's decision in Fry v.
Napoleon Community Schools, 137 S. Ct. 743 (2017), and principles
of exhaustion, we conclude that the gravamen of the Doucettes'
Rehabilitation Act claim does not involve the denial of a free
appropriate public education. As to the Doucettes' § 1983 claim,
we conclude that it either was exhausted or that continued
engagement with the IDEA's administrative scheme would have been
futile. Hence, no further administrative pursuit was required for
the § 1983 claim.
I.
B.D. has Isodicentric Chromosome 15q Duplication
Syndrome ("15q Duplication Syndrome"), a rare genetic disorder,
1In Massachusetts, the impartial due process hearings are
conducted by the Massachusetts Bureau of Special Education
Appeals. See Mass. Gen. Laws ch. 71B, § 2A.
2With the consent of all parties, the case was assigned to,
and proceeded before, a United States Magistrate Judge, in
accordance with 28 U.S.C. § 636(c) and Rule 73(b) of the Federal
Rules of Civil Procedure.
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which manifests differently among affected persons.3 In B.D.'s
case, the syndrome manifests as developmental delay, frequent
choking, vision problems, difficulties in balance, aggression,
cognitive impairment, communication deficits, autistic spectrum
disorder, epilepsy, and anxiety disorder, among other problems.
In addition to causing these symptoms, B.D.'s disorder increases
his risk of sudden unexpected death -- a risk correlated with
seizure activity in children with 15q Duplication Syndrome.
B.D. attended Perley Elementary School ("Perley") from
July 2009 until August 2012, when he was between the ages of three
and six years old. Given his disabilities, he had an
individualized education program ("IEP"),4 which required, among
other things, that he receive a consistent routine, a seizure plan,
3We draw these facts from the well-pleaded facts of the
complaint, which we must take as true. Marrero-Gutierrez v.
Molina, 491 F.3d 1, 5 (1st Cir. 2007).
4An IEP is "a comprehensive statement of the educational
needs of a handicapped child and the specially designed instruction
and related services to be employed to meet those needs." Sch.
Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 368
(1985) (citing 20 U.S.C. § 1401(19)). The plan is "[c]rafted by
a child's 'IEP Team' -— a group of school officials, teachers, and
parents." Fry, 137 S. Ct. at 749 (citing 20 U.S.C.
§ 1414(d)(1)(A)(i)(II)(bb), (d)(1)(B)). Most notably for this
case, a child's IEP lists "the special education and related
services" to be provided to the child so that he receives a free
and appropriate education. See 20 U.S.C. § 1414(d)(1)(A).
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and one-on-one assistance, and that he participate in an extended-
school year ("ESY") program.5
B.D.'s parents were dissatisfied with the services
provided to B.D. at Perley. Within months of his arrival, they
began complaining to administrators, teachers, and the
superintendent. In the spring, they met with his IEP team to
formally request a change to B.D.'s IEP, which was denied. In the
weeks that followed, they continued to convey concerns, noting
that B.D. was at times unsupervised, was bolting from class, and,
on one occasion, fell and hit his head. Due to these concerns,
the Doucettes removed B.D. from Perley, and he remained out of
school from May to September 2010.
In July 2010, while B.D. was out of school, the Doucettes
requested a hearing before the Massachusetts Bureau of Special
Education Appeals ("BSEA"), seeking an amendment to B.D.'s IEP and
an out-of-district placement for him. The hearing was held at the
end of August, and, a month later, the BSEA hearing officer issued
a decision. Although the hearing officer found that B.D.'s IEP
was inadequate, the officer found that an out-of-district
placement was unwarranted, and ordered a new IEP for B.D. B.D.
then returned to Perley in the fall of 2010 with an amended IEP.
5
An ESY program is a summer school program for students who
require year-round schooling to minimize substantial regression
and reduce substantial recoupment time. See Todd v. Duneland Sch.
Corp., 299 F.3d 899, 902, 907 (7th Cir. 2002).
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During the 2010-2011 school year, the Doucettes
continued to be dissatisfied with the implementation of B.D.'s
IEP. B.D. began having "staring spells with eye rolling,"
symptomatic of potential seizure activity. And, although B.D.'s
amended IEP included a safety and seizure plan, one of B.D.'s
teachers indicated to B.D.'s mother that she was unaware of the
plan.
In the fall of 2011, B.D. began working with a certified
service dog that assisted him with his anxiety and balance, and
alerted his caretakers to an impending seizure.6 In November of
that year, the Doucettes requested that the school district permit
the dog to accompany B.D. at school as a disability accommodation.
The school district refused. When B.D.'s staring spells and
anxiety increased, however, the school district offered him at-
school access to the service animal if the Doucettes agreed to a
school policy regarding the dog's handling. The Doucettes refused
to sign this agreement, which they claim violated the Americans
with Disabilities Act ("ADA"). They demanded that the district
comply with the ADA. The school district then denied B.D. access
6
A service dog is "any dog that is individually trained to
do work or perform tasks for the benefit of an individual with a
disability." 28 C.F.R. § 36.104 "Examples of [such] work or tasks
include, but are not limited to . . . assisting an individual
during a seizure, . . . providing physical support and assistance
with balance and stability, . . . and helping persons with
psychiatric and neurological disabilities by preventing or
interrupting impulsive or destructive behaviors." Id.- 6 -
to the dog but ordered a behavioral assessment, to take place the
next fall (i.e., fall of 2012), to determine whether B.D.'s IEP
should be amended to include the service dog.
That summer, as part of the school district's ESY
program, B.D. was placed in an unfamiliar building, with unfamiliar
equipment, teachers, and sounds, including "gushing sounds from
exposed pipes," and "the barking of the Guidance Counselor's pet
dog." At this time, he experienced his first tonic-clonic
seizure,7 lasting over twenty minutes and requiring
hospitalization. After the seizure, the Doucettes demanded an
immediate amendment to B.D.'s IEP to grant him access to his
service dog at school. Their request for an IEP amendment to
include the service animal was denied, but the school district
granted B.D. permission to use the dog at school if his mother
would act as its handler.
The Doucettes contest the adequacy of that arrangement
to fulfill the school district's obligation to accommodate B.D.
under section 504 of the Rehabilitation Act. Although not
7
A tonic-clonic seizure is a seizure of a serious nature,
which is characterized by a loss of consciousness, and involves
muscular contractions and relaxations in rapid succession. See H.
Gastaut, Dictionary of Epilepsy: Part I 67 (World Health
Organization, ed. 1973). A tonic-clonic seizure lasting over five
minutes is a "life-threatening medical emergency requiring
immediate medical help." See Tonic-Clonic Seizures, Epilepsy
Ontario, http://epilepsyontario.org/about-epilepsy/types-of-
seizures/tonic-clonic-seizures (last visited May 6, 2019).
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specifically stated in the complaint, we infer that the service
dog did not then begin accompanying B.D. at school -- at least not
on a regular basis. The Doucettes' section 504 claim is premised
on B.D.'s denial of access to his service animal, which they say
caused B.D. to "sustain five seizures in July, August, and
September of 2012." The school district does not argue that the
service animal accompanied B.D. at school during these seizures,
but that "four of the five seizures suffered by B.D. occurred after
he was permitted to bring his service dog to school."
The Doucettes' complaint likewise provides no specific
details as to why the Doucettes felt that the school's handling
policy violated the ADA. As a rule, the ADA requires a public
entity to "modify its policies, practices, or procedures to permit
the use of a service animal by an individual with a disability."
28 C.F.R. § 35.136(a). In addition, a public school may, in some
instances, violate disability laws by requiring a student to
provide an outside adult handler to accompany the student and her
service animal at school. See, e.g., Alboniga v. Sch. Bd., 87 F.
Supp. 3d 1319, 1342 (S.D. Fla. 2015). In a sentence in its brief,
the school district states, "[T]he [Doucettes'] [c]omplaint does
not sufficiently plead that the District outright denied B.D.
access to his service dog; instead, the facts establish that the
District had developed a policy . . . regarding the handler for
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the service dog . . . which the Parents refused to sign." The
school district does not further develop this argument.8
In addition to demanding that the school grant B.D.
access to his service animal at school, B.D.'s mother also
complained to the school district about the changes in her son's
program and requested a meeting with his IEP team. Two weeks
later, B.D. experienced a second tonic-clonic seizure while in an
unfamiliar environment and under the supervision of a substitute
teacher. After this second seizure, the Doucettes requested an
alternative school placement for B.D. Their request was denied.
In the following weeks, B.D. suffered two more tonic-
clonic seizures, each requiring a hospital stay. After the fourth
seizure, the Doucettes removed B.D. from school and again requested
an alternative school placement. They explained that "B.D. had
had four [tonic-clonic] seizures in his lifetime, all of which
happened in school [in the last month]," and that B.D.'s placement
was "not only inappropriate but unsafe." They also presented the
school district with a letter from B.D.'s doctor stating that the
current placement was "inadequate in terms of managing [B.D.'s]
8 Whether the handling agreement placed unreasonable or
unlawful conditions on B.D.'s access to his service animal such
that he was effectively denied access by the school district will
undoubtedly be an important issue to the future viability of the
Doucettes' section 504 claim, but it is not an issue in this
appeal.
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seizures," expressing concerns regarding the "school's ability to
handle [B.D.'s] health and safety," and recommending, "[g]iven the
severity of [B.D.'s] anxiety in his [then] classroom setting, and
the subsequent effect on his epilepsy and overall health," that
B.D. be kept out of school until a safe placement was identified.
Still, the school district refused to provide an alternative
placement for B.D. and advised the Doucettes that B.D. was expected
to attend school on September 5, 2012, and that "extended absences
[would] be considered truancy."
On September 5, 2012, the Doucettes returned B.D. to
Perley. That same day, he suffered a fifth tonic-clonic seizure,
requiring hospitalization. After the fifth seizure in a three-
month period, the school district agreed to evaluate an out-of-
district placement for B.D. Subsequently, the district agreed to
the new placement, where B.D. has made "developmental and
educational progress." B.D. has experienced no seizures since his
removal from the school district.
In 2015, the Doucettes filed suit alleging state law
tort claims, as well as claims under section 504 of the
Rehabilitation Act and 42 U.S.C. § 1983. The district court
entered judgment against the Doucettes on their federal law claims
on the basis of the Doucettes' failure to exhaust the IDEA's
administrative remedies and declined to exercise pendent
jurisdiction over the remaining state law causes of action. In
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this appeal, our review is de novo, Gulf Coast Bank & Co. v. Reder,
355 F.3d 35, 37 (1st Cir. 2004), and we "draw[] all reasonable
inferences in favor of the plaintiff[s]." Marrero-Gutierrez v.
Molina, 491 F.3d 1, 5 (1st Cir. 2007).
II.
A. The IDEA
The IDEA is a federal statute ensuring that children
with disabilities "have available to them a free appropriate public
education," commonly referred to as a "FAPE." 20 U.S.C.
§ 1400(d)(1)(A). A FAPE encompasses "both 'instruction' tailored
to meet a child's 'unique needs' and sufficient 'supportive
services' to permit the child to benefit from that instruction."
Fry, 137 S. Ct. at 748 (quoting 20 U.S.C. § 1401(9), (26), (29)).
A disabled child's IEP -- her written education plan -- is the
"primary vehicle" for providing the mandated FAPE. Id. at 749(quoting Honig v. Doe, 484 U.S. 305, 311 (1988)).
The IDEA provides an administrative process for parents
to challenge their child's IEP or its implementation. This process
begins with a preliminary meeting or mediation with the child's
IEP team, and, if the dispute remains unresolved, progresses to a
"due process hearing" before an impartial hearing officer. 20
U.S.C. § 1415(b)-(f). Such officer may grant relief based upon "a
determination of whether the child received a [FAPE]." Id.§ 1415(f)(3)(E)(i). Before a parent sues a school under the IDEA,
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she must first "exhaust [the] administrative remedies through the
due process hearing [provided for by the IDEA]." Rose v. Yeaw,
214 F.3d 206, 210 (1st Cir. 2000); see 20 U.S.C § 1415(i)(2)(A).
Although exhaustion of IDEA claims is the general rule, it "is not
absolute." Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 59 (1st
Cir. 2002). Fundamentally, rules requiring administrative
exhaustion are not meant to be enforced in a manner that would
require "empty formalit[ies]." See Panetti v. Quarterman, 551
U.S. 930, 946 (2007). Plaintiffs are not required to exhaust
administrative remedies under the IDEA when exhaustion would be
futile. Id.B. Other Federal Laws and the IDEA's Exhaustion Requirement
This case concerns claims under laws other than the IDEA
that protect the rights of persons like B.D. Specifically, the
Doucettes allege violations of section 504 of the Rehabilitation
Act, 29 U.S.C. § 794, and 42 U.S.C. § 1983. Section 504, like the
IDEA, covers the disabled; it, however, "cover[s] both adults and
children with disabilities, in both public schools and other
settings," Fry, 137 S. Ct. at 749 (emphasis added), and requires
that a public entity make "reasonable modifications" to existing
practices, including by offering support services, to
"accommodate" disabled persons, Alexander v. Choate, 469 U.S. 287,
299–300 (1985); see, e.g., C.L. v. Scarsdale Union Free Sch. Dist.,
744 F.3d 826, 832 (2d Cir. 2014) (discussing support services
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available under section 504).9 Section 1983 applies even more
broadly, protecting every "[c]itizen of the United States or other
person within [its] jurisdiction" against the deprivation of a
federally secured right by a person acting under the color of state
law. 42 U.S.C. § 1983.
The IDEA's exhaustion requirement is relevant to claims
brought under these laws because the IDEA contains a provision,
§ 1415(l), which concerns the relationship between the
administrative procedures specified in the IDEA and claims brought
under such laws. It provides:
Nothing in [the IDEA] shall be construed to
restrict or limit the rights, procedures, and
remedies available under the Constitution . . .,
title V of the Rehabilitation Act [including
Section 504], or other Federal laws protecting the
rights of children with disabilities, except that
before the filing of a civil action under such laws
seeking relief that is also available under [the
IDEA], the [IDEA's administrative procedures] shall
be exhausted to the same extent as would be required
had the action been brought under [the IDEA].
20 U.S.C. § 1415(l).10
9
The Rehabilitation Act of 1973, 29 U.S.C. § 701, is one of
the two primary federal anti-disability-discrimination laws. The
other is the ADA. See 42 U.S.C. § 12101. The Rehabilitation Act,
the older of the two, guarantees disabled persons non-
discriminatory access to federally funded facilities, activities,
and programs. See 29 U.S.C. § 794. The more comprehensive ADA
likewise guarantees disabled persons non-discriminatory access to
public facilities, 42 U.S.C. § 12132, and also extends those
protections to commercial facilities and places of public
accommodation. See 42 U.S.C. §§ 12181-12189.
10
The dissent cites Frazier, 276 F.3d at 60, to describe a
"robust" IDEA exhaustion requirement contemplated by Congress in
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The Supreme Court recently addressed the reach of this
exhaustion provision for the first time in Fry v. Napoleon
Community Schools, finding that it only applies to lawsuits seeking
"relief for the denial of a FAPE." 137 S. Ct. at 752; see also
id. at 754. Under Fry, if a school "refus[ed] to make an
accommodation" for a disabled child, "injuring [the child] in ways
unrelated to a FAPE," a plaintiff "seeking redress for those other
harms . . . is not subject to § 1415(l)'s exhaustion rule." Id.
at 754–55.
The Fry Court provided guidance for analyzing whether a
lawsuit seeks relief for the denial of a FAPE, explaining that "a
court should look to the . . . gravamen[] of the plaintiff's
complaint" -- not "the labels used in [it]." Id. at 752, 755.
The Court then noted two clues that indicate that the gravamen of
a complaint is the denial of a FAPE. The first clue comes from
the answers to a pair of hypothetical questions: (1) "could the
plaintiff have brought essentially the same claim if the alleged
conduct had occurred at a public facility that was not a school?"
20 U.S.C. § 1415(l). However, Frazier's exhaustion analysis is of
questionable precedential value because it relied on a Supreme
Court case addressing exhaustion in the context of the Prison
Litigation Reform Act ("PLRA"). See id. at 61-62 (citing Booth v.
Churner, 532 U.S. 731 (2001)). In Fry, the Supreme Court rejected
this comparison between the IDEA and the PLRA, highlighting the
differences in language between the two standards and explaining
that the IDEA's exhaustion standard is more forgiving. Fry, 137
S. Ct. at 755.
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and (2) "could an adult at the school . . . have pressed essentially
the same grievance?" Id. at 756. When the answer to each question
is no, the complaint "probably does concern a FAPE." Id. On the
other hand, if the answers are yes, a FAPE is unlikely the true
subject of the complaint. Id. The second clue involves the
history of the case; a plaintiff's previous invocation of the
IDEA's formal procedures may "provide strong evidence that the
substance of a plaintiff's claim concerns the denial of a FAPE."
Id. at 757.11
III.
The Doucettes contend that the IDEA's exhaustion
requirement does not apply to their claims because the gravamen of
their claims is not the denial of a FAPE or, in the alternative,
exhaustion was not required because it would have been futile or
because they already met the exhaustion requirement. Applying the
Fry framework to each of the Doucettes' claims, see Wellman v.
Butler Area Sch. Dist., 877 F.3d 125, 132-33 (3d Cir. 2017)
11 Instead of relying on the clues articulated by the Fry
majority, so central to its analysis of the exhaustion requirement,
see Fry, 137 S. Ct. at 756-57, the dissent embraces Justice Alito's
critique of those clues as "misleading" in his concurrence. Id.
at 759 (Alito, J., concurring in part and concurring in the
judgment). We do not ordinarily grant primacy to a concurrence
over a majority opinion. The dissent also criticizes the Fry
majority opinion as "not a model of clarity." We do not share the
dissent's confusion about the meaning or applicability of Fry.
Nor, apparently, do the five other members of the Supreme Court
who joined Justice Kagan's opinion without reservation. See id.
at 748-59.
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(endorsing a claim-by-claim approach to the Fry analysis); see
also Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 785 (10th Cir.
2013) (employing a claim-by-claim approach to analyzing IDEA
exhaustion), we conclude that (1) exhaustion was not required for
the Doucettes' section 504 claim because the crux of the claim is
not the denial of a FAPE; and (2) although the crux of the
Doucettes' § 1983 claim is the denial of a FAPE, that claim is
properly brought in federal court because it either was exhausted
or further invocation of the administrative process would have
been futile.
A. The Section 504 Claim
The Doucettes allege that the school district violated
section 504 by "refus[ing] to permit B.D. access to his service
dog . . . despite having knowledge that B.D. qualified as an
individual with disabilities [who] relied upon the service dog."
They assert that B.D. suffered life-threatening seizures because
of the deprivation, and they seek money damages for associated
medical costs.
The gravamen of this claim -- B.D., a disabled child,
was denied access to his seizure-alert service dog, and, as a
result, suffered seizures -- is not the denial of a FAPE. Instead,
it is "simple discrimination, irrespective of the IDEA's FAPE
obligation." Fry, 137 S. Ct. at 756. In reaching this conclusion,
we "attend to the diverse means and ends of . . . the IDEA . . .
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and [the] Rehabilitation Act." Id. at 755. "The IDEA guarantees
individually tailored educational services, while . . . [section]
504 promise[s] non-discriminatory access to public institutions,"
id. at 756, "sometimes by means of reasonable accommodations," id.To be sure, there is "some overlap in coverage" between the
statutes. Id.12 But here the section 504 claim, grounded in the
refusal of the school district to reasonably accommodate B.D.'s
use of the service dog (that is the allegation), involves the
denial of non-discriminatory access to a public institution,
irrespective of the school district's FAPE obligation to provide
a particular education program for B.D.
The hypotheticals provided by the Fry Court in
explaining its first clue support this conclusion.13 The
12Any child who is entitled to an IEP under the IDEA is also
protected by section 504, but the inverse is not true. As one
court explained:
[I]t is well recognized that Section 504 covers more students
than does the IDEA. Students with disabilities who are
eligible for services under IDEA are also covered by the
prohibitions against discrimination on the basis of
disability in Section 504 and its implementing regulation at
34 CFR Part 104, but students covered only by Section 504 are
not entitled to the rights and protections enumerated by IDEA
and its implementing regulations at 34 CFR Part 300.
S. v. W. Chester Area Sch. Dist., 353 F. Supp. 3d 369, 375 n.1
(E.D. Pa. 2019) (quoting Molly L. ex rel. B.L. v. Lower Merion
Sch. Dist., 194 F. Supp. 2d 422, 427 n.3 (E.D. Pa. 2002)).
13Distinguishing between a complaint's explicit and implicit
focus on the adequacy of a child's education, the dissent argues
that Fry used the clues only to discern an "implicit focus on
educational adequacy." The dissent misreads Fry, imposing on its
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deprivation about which the Doucettes complain (deprivation of a
service animal) might occur in a public facility that is not a
school, and a non-student could "press[] essentially the same
grievance." Id. at 756; see, e.g., Sheely v. MRI Radiology
Network, P.A., 505 F.3d 1173, 1204 (11th Cir. 2007) (concerning
similar claim brought in hospital setting); see also 28 C.F.R. §
36.302(c)(1) (requiring that places of public accommodation
"modify policies, practices, or procedures to permit the use of a
service animal by an individual with a disability"); 28 C.F.R. pt.
36, app. C. (providing for "the broadest feasible access . . . to
service animals in all places of public accommodation, including
analysis a limitation that is not there. We use the clues
precisely as the Court instructed -- to assist our determination
of the gravamen of the Doucettes' section 504 claim, i.e., "whether
the gravamen [is] the denial of a FAPE, or instead [] disability-
based discrimination." 137 S. Ct. at 756. Indeed, the dissent's
test -- whether an implicit or explicit "focus on the adequacy of
education" can be identified in the complaint -- mirrors the Sixth
Circuit test rejected by the Fry Court. The Sixth Circuit had
determined that the Frys' complaint concerning the denial of a
service dog was subject to IDEA exhaustion because "the harms to
[the plaintiff] were generally 'educational' -- most notably, the
court reasoned, because [the Fry family had alleged that] '[the
service dog']s absence hurt [their child's] sense of independence
and social confidence at school.'" Fry, 137 S. Ct. at 752 (quoting
788 F.3d 622, 627 (6th Cir. 2015)). The Supreme Court vacated
that judgment, ruling that the Sixth Circuit had applied the wrong
test. Instead, courts must ask not whether a claim is
"educational," but whether it "charges, and seeks relief for, the
denial of a FAPE." Id. at 758. Though the Fry Court discusses
the difference between explicit and implicit references to a FAPE,
that discussion does not remotely suggest that the clues are only
useful for discerning an implicit focus on educational adequacy.
See id. at 758-59 (remanding for development of a factual record
concerning the history of the Frys' request for a service animal).
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movie theaters, restaurants, hotels, retail stores, hospitals, and
nursing homes"); cf. AP ex rel. Peterson v. Anoka–Hennepin Indep.
Sch. Dist. No. 11, 538 F. Supp. 2d 1125, 1152 (D. Minn. 2008) (no
requirement of exhaustion where section 504 claims were for failure
to accommodate diabetic student's need for administration of
insulin).14
The complaint's express allegations of FAPE deprivation
and inadequate educational services do not require us to find
otherwise.15 The Supreme Court counseled against a "magic words"
approach to the IDEA exhaustion inquiry. Id. at 755. What matters
is not whether "a complaint includes (or, alternatively, omits)
the precise words[] 'FAPE' or 'IEP,'" but rather whether a claim
in fact "seeks relief for the denial of an appropriate education."
Id. The allegations of FAPE deprivation are, as the Doucettes
14
The fact that a non-student could assert the same claim as
the Doucettes distinguishes the circumstances here from the facts
in Wellman -- a case emphasized by the dissent -- where the court
noted that the claims all related to fulfilling the student's
"educational needs," 877 F.3d at 133, and, hence, "could not be
brought by a nonstudent or outside the school setting," id. at
134.
15
The complaint, for instance, alleges that, following the
August 2010 BSEA hearing concerning B.D.'s out-of-district
placement, the BSEA officer found the school district's "proposed
IEP was not . . . reasonably calculated to provide B.D. with a
free and appropriate public education ("FAPE")," and alleges, as
a basis for its § 1983 claim that, "[a]s a result of the [school
district's] deliberate indifference . . . B.D. was deprived of a
free and appropriate education."
- 19 -
argue in their brief, "germane to . . . their state law claims and
their section 1983 claims."
The Doucettes' complaint does not assert inadequate
education services as a basis for relief under section 504.
Rather, the Doucettes identify the school district's knowing
"refus[al] to recognize B.D.'s service dog as such" and the
resulting "life-threatening" harm to B.D. as the basis for their
section 504 claim. They assert that the refusal to recognize
B.D.'s dog as a service dog denied B.D. safe access to his school.
Their section 504 claim "is subject to exhaustion or not based on
that choice," and not on other claims that the Doucettes might
have brought. Fry, 137 S. Ct. at 755; see also Wellman, 877
F.3d at 132 ("To apply the Fry test without consideration of the
actual claims could result in situations where claims that are
included in a complaint because they involve the same parties or
course of events but do not involve the provision of a FAPE get
swept up and forced into administrative proceedings with claims
that are seeking redress for a school's failure to provide a
FAPE.").
Furthermore, although the Doucettes previously invoked
the IDEA's formal procedures when they participated in an
administrative hearing before the BSEA in August 2010, that
hearing, which concerned alleged violations of B.D.'s IEP during
the 2009-2010 school year, was unrelated to B.D.'s request for
- 20 -
access to his service animal, which he did not begin to use until
November 2011. As such, the Doucettes' participation in the BSEA
hearing is not "evidence that the substance of [the] plaintiff[s']
[section 504] claim concerns the denial of a FAPE." Fry, 137
S. Ct. at 757.
Finally, the Doucettes' July 2012 request for an IEP
amendment to include B.D.'s service animal is not proof that the
crux of their section 504 claim was "really" the denial of a FAPE.
Indeed, the Supreme Court in Fry expressly recognized that the
fact that a particular dispute was addressed in some way in IDEA
proceedings does not determine the character of that dispute. "[A]
court may conclude, for example, that the move to a courtroom came
from a late-acquired awareness that the school had fulfilled its
FAPE obligation and that the grievance involves something else
entirely." Id. at 757; see also id. at 759 (Alito, J., concurring
in part and concurring in the judgment) (explaining that a parent's
invocation of the IDEA's formal procedures will not always be
indicative of the FAPE character of their claim); cf. Sophie G. by
& through Kelly G. v. Wilson Cty. Sch., 742 F. App'x 73, 79 (6th
Cir. 2018) (concluding that, although plaintiffs-appellants
invoked the IDEA's administrative process, "[t]he gravamen of
Plaintiffs' complaint [sought] access to subsidized childcare on
equal terms, and not redress for the denial of a FAPE").
- 21 -
In this case, the history of the Doucettes' quest to
secure their son access to his service animal does not suggest
that the gravamen of their claim was the "meaningful[ness]" of his
education, rather than nondiscriminatory access. See Fry, 137 S.
Ct. at 755. The Doucettes first sought approval for B.D. to use
his service animal without reference to his IEP. It was not until
after the Doucettes refused to sign a school handling agreement,
which they say violated the ADA, and B.D. was denied access to his
service dog, that the school district ordered an IEP assessment to
take place the following fall to determine whether B.D.'s IEP would
be amended to include the use of a service animal for the fall
2012-spring 2013 school year. See supra Section I. Then, after
B.D. suffered a life-threatening seizure, the Doucettes requested
that the IEP amendment be implemented immediately.16
That the Doucettes invoked multiple laws in their
efforts to obtain at-school access to a service animal for their
16The dissent argues that because the Doucettes requested an
IEP amendment to include the service dog, and the request was
denied, the Doucettes' section 504 claim is really about the denial
of the IEP amendment. As a factual matter, as we explain, it was
the school that initiated an IEP assessment as a possible way to
address the service dog issue, not the Doucettes. To be sure, the
complaint describes the educational consequences of the denial of
the service dog, much like the example used by Justice Kagan in
Fry about the relationship between the denial of wheelchair access
and the educational consequences for a child. See Fry, 137 S. Ct.
at 756. But an inadequate education is not the gravamen of the
Doucettes' section 504 claim. Rather, it is the harm from the
seizures that B.D. experienced as a result of denial of access to
his service animal.
- 22 -
son is not surprising. A child who requires an accommodation under
an IEP because, without it, his education would be inadequate,
might also require that accommodation to safely access a public
space. To illustrate this point, consider the hypothetical posed
by the Supreme Court in Fry:
Suppose . . . that a wheelchair-bound child sues
his school for discrimination under Title II [of
the ADA] . . . because the building lacks access
ramps . . . . [A] different lawsuit might have
alleged [an IDEA claim]: After all, if the child
cannot get inside the school, he cannot receive
instruction there; and if he must be carried
inside, he may not achieve the sense of
independence conducive to academic . . . success.
But is the denial of a FAPE really the gravamen of
the plaintiff's Title II complaint? Consider that
the child could file the same basic complaint if a
municipal library or theater had no ramps . . . .
That the claim can stay the same in those
alternative scenarios suggests that its essence is
equality of access to public facilities, not
adequacy of special education . . . . And so [the
IDEA] does not require exhaustion.
137 S. Ct. at 756–57.17 In that example, the wheelchair-bound
child may have been entitled to an IEP specifying that the school
17 The Court contrasts this example with a different
hypothetical Title II claim:
Suppose next that a student with a learning disability sues
his school under Title II for failing to provide remedial
tutoring in mathematics. That suit, too, might be cast as
one for disability-based discrimination, grounded on the
school's refusal to make a reasonable accommodation . . . .
But can anyone imagine the student making the same claim
against a public theater or library? Or, similarly, imagine
an adult visitor or employee suing the school to obtain a
math tutorial? The difficulty of transplanting the complaint
to those other contexts suggests that its essence -- even
- 23 -
would provide him with access ramps. Even so, as the Court
articulated, that possible entitlement does not imply that his
Title II claim, premised on unequal access, is subject to IDEA
exhaustion.
The reality is that many children who have limitations
that require an accommodation under section 504 also have learning
disabilities that entitle them to an IEP under the IDEA. For
instance, a child may have asthma and severe Attention Deficit
Hyperactivity Disorder. In such a case, school districts typically
provide only an IEP for the child (and no section 504 plan), which
would include all supports and services that the child needs --
even those that the child only requires for access purposes under
section 504 (such as their asthma medicine). See Office of Civil
Rights, Protecting Students with Disabilities: Frequently Asked
Questions About Section 504 and the Education of Children with
Disabilities, U.S. Dep't of Ed. (Sep. 25, 2018),
https://www2.ed.gov/about/offices/list/ocr/504faq.html ("If a
student is eligible under IDEA, he or she must have an IEP. Under
the section 504 regulations, one way to meet Section 504
requirements . . . is to implement an IEP.").
though not its wording -- is the provision of a FAPE, thus
bringing § 1415(l) into play.
137 S. Ct. at 756-57.
- 24 -
In many cases, parents may seek an IEP amendment to
guarantee their child safe access to school because it is the most
effective and direct way to get the child relief. But when
something goes awry, and it has nothing to do with the delivery of
a FAPE (the child might be hospitalized because her school failed
to properly administer her medicine), the existence of the IEP
does not alter the character of the child's section 504 claim.
To conclude otherwise would, in effect, place disabled
school children in a disadvantaged position relative to their adult
counterparts. Cf. Sagan v. Sumner Cty. Bd. of Educ., 726 F. Supp.
2d 868, 882–83 (M.D. Tenn. 2010) (finding exhaustion not required
where, "if [the plaintiff] were not a disabled student, there would
be no administrative barrier to her pursuit of these claims"). A
teacher with epilepsy, who was not a student -- and therefore had
no need for an IEP -- but used a certified service dog to aid him
during seizures, would be able to challenge the deprivation of his
service animal at the school without resort to the IDEA's
administrative procedures. "If a disabled student would be able
to make out a similarly meritorious [Rehabilitation Act] claim
. . . it is odd to suggest that the IDEA would impose additional
qualifications to sue, simply because [the plaintiff was a
student]." Payne v. Peninsula Sch. Dist., 653 F.3d 863, 878–79
(9th Cir. 2011), overruled on other grounds by Albino v. Baca, 747
F.3d 1162 (9th Cir. 2014).
- 25 -
In sum, the crux of the Doucettes' section 504 claim is
simple discrimination, irrespective of the school district's FAPE
obligation. The claim they bring could be brought by a non-student
in a non-school public setting alleging the same injuries arising
from the same deprivation. That claim is not subject to the
exhaustion requirement of the IDEA.
B. The Section 1983 Claim
The Doucettes' § 1983 claim is premised on an alleged
violation of B.D.'s substantive due process rights secured by the
Fourteenth Amendment.18 The Doucettes allege that these rights
were violated during the summer and fall of 2012 when the school
district, "despite having actual notice that [Georgetown Public
Schools] was an inappropriate placement for B.D., refused to allow
an in-district or out-of-district placement and threatened the
[Doucettes] with truancy in the event of any extended absences."
They assert that this conduct amounted to "deliberate indifference
and severe, pervasive disregard for [the] safety and well-being
18 In the complaint, the Doucettes also asserted § 1983 claims
premised upon violations of the equal protection and procedural
due process clauses of the Constitution, as well as violations of
the Rehabilitation Act and the IDEA's Child Find Mandate. The
district court dismissed these claims, finding that the Doucettes
had waived their due process and equal protection clause claims
and that § 1983 claims may not be premised upon violations of the
Rehabilitation Act or the IDEA, which are statutes with their own
frameworks for damages. The Doucettes have waived these claims on
appeal. See United States v. Mayendía-Blanco, 905 F.3d 26, 32
(1st Cir. 2018) (deeming claim waived where not raised in opening
brief).
- 26 -
[of] B.D." and that, as a result, B.D. "suffer[ed] great physical
and emotional harm," including "five [] life-threatening tonic-
clonic seizures."
In contrast to the alleged deprivation of B.D.'s service
animal, the Doucettes' demand for an alternative school placement,
so central to their § 1983 claim, falls within the IDEA's
exhaustion regime.19 A non-student could not make the same demand
in a non-school setting. See Fry, 137 S. Ct. at 756. Moreover,
the Doucettes previously made the same demand for an out-of-
district placement for B.D. in an administrative hearing before
the BSEA. These "clues" provide "strong evidence that the
substance of [the Doucettes' § 1983 claim] concerns the denial of
a FAPE." Id. at 757. Indeed, the right to a school placement
outside of the normal public-school system when an appropriate
education is not otherwise possible arises from the IDEA's
guarantee of a FAPE. See Sch. Comm. of Burlington v. Dep't of
Educ. of Mass., 471 U.S. 359, 369 (1985); 603 C.M.R. § 28.06(2)(a)
(requiring that a child's school placement "be based on the
[child's] IEP"). With regard to this claim, however, we think
19
Even if some of the Doucettes' substantive due process
§ 1983 allegations do not trigger IDEA exhaustion because they do
not directly challenge the denial of a FAPE, but rather the
surrounding circumstances, we do not further parse this claim
because, as we explain infra, the claim in its entirety is in any
event properly before us.
- 27 -
there is a good argument that the Doucettes met the exhaustion
requirement.
The IDEA's administrative process contemplates a series
of stages. The first stage is a meeting, or several meetings,
between the parents of a child with a disability and the child's
IEP team, during which the parents participate in discussions
concerning the educational placement, evaluation, and
accommodation of their child. See 20 U.S.C. § 1415(b)(1). During
this phase, if a requested change in the child's placement or IEP
is rejected, the school must provide written documentation of its
reasons for doing so. See 34 C.F.R. § 300.503(a). That
documentation must include, inter alia, "[a] description of the
action . . . refused[;] . . . [a]n explanation of why the agency
. . . refuses to take the action; [a] description of each
evaluation procedure, assessment, record, or report the agency
used as a basis for the . . . refused action[;] . . . [and a]
description of other options that the IEP Team considered and the
reasons why those options were rejected." Id. § 300.503(b). In
Massachusetts, if parents are dissatisfied with the result of the
meeting or meetings, they may then "bring the dispute to the
attention of local public school officials" by "contact[ing]
[their] school [p]rincipal, the Administrator of Special
Education, or [their] superintendent." Mass. Dep't Special Educ.,
Parents Notice of Procedural Safeguards 7 (2013), available at
- 28 -
http://www.doe.mass.edu/sped/prb/pnps.pdf; see 603 C.M.R.
§ 28.08(1). If the problem cannot be resolved locally, the parents
may file a formal complaint with the administrative agency
designated by the state, the filing of which will initiate a formal
hearing and administrative decision. See 20 U.S.C. § 1415(b)(6),
(f).
The Doucettes first invoked these procedures in 2010.
Specifically, they initiated the process in March of that year by
meeting with B.D.'s IEP team to request an alternative placement
for B.D. They then brought "the dispute to the attention of local
public school officials" by "contact[ing] [their] school
[p]rincipal . . . [and] superintendent." Ultimately, in early
July, they filed a Request for Hearing with the BSEA seeking an
out-of-district placement for B.D. A hearing was held at the end
of August and an order was issued in September. In that instance,
the Doucettes did not get the relief that they sought, i.e., an
alternative placement for B.D. If the Doucettes had at that time
filed a civil action seeking the alternative placement denied to
them administratively, a district court plainly would have had
authority to hear the case because they went through the entire
administrative process unsuccessfully.
This appeal concerns the Doucettes' second use of the
administrative process in the summer of 2012. In July, they again
requested an alternative educational placement for B.D. through an
- 29 -
amendment to his IEP. The Doucettes again brought the dispute to
the attention of local public school officials. The superintendent
advised the Doucettes that their request should be resolved by
B.D.'s "[IEP] team" with "input from medical personnel," and that
the Doucettes should "work with [the local public school officials]
to determine if compensatory services were going to be offered"
and whether an "out-of-school placement" was required. As
instructed, the Doucettes provided a letter from B.D.'s doctor to
their local school officials, including the principal of B.D.'s
school. In addition, Massachusetts General Hospital filed a 51A
report, see Mass. Gen. Laws ch. 119, § 51A, citing suspected
neglect of B.D. by the school district. The Doucettes then met
again with B.D.'s IEP team. Following the meeting, B.D.'s IEP was
amended and he was placed at an alternative school.
Thus, in 2012, the Doucettes engaged in the
administrative process until they received the relief that they
sought (and the only relief available to them through the IDEA's
administrative process) -- an alternative placement for B.D. and
compensatory educational services. See, e.g., Sch. Comm. of
Burlington, 471 U.S. at 369-71 (explaining that the only relief
available through the IDEA's administrative process is future
special education services and reimbursements to parents for
education-related expenditures). Having achieved success through
their interactions with local school officials, there was no need
- 30 -
for the Doucettes to seek a hearing before the BSEA. Hence, the
steps they took exhausted their FAPE demand for an alternative
placement. Cf. Mass. Gen. Laws ch. 71B, § 2A.20
Still, their success in the administrative process is
not the end of the story for the Doucettes concerning B.D.'s
placement. The premise of their § 1983 claim is that, while
successfully pursuing the out-of-district placement, B.D. suffered
harm from the delay in receiving the administrative relief. The
Doucettes brought their constitutional claim only after they had
no further "remedies under the IDEA to exhaust," Blanchard v.
20 The dissent dismisses the significance of this negotiated
success, asserting the absolute rule that "[e]xhaustion requires
that a party receive a determination through a due process hearing,
as contemplated under section 1415(f)." Surely the dissent does
not mean that the Doucettes had to pursue a further administrative
hearing to get what they had already obtained in "informal[] . . .
'[p]reliminary meeting[s].'" See Endrew F. ex rel. Joseph F. v.
Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017) (second
alteration in original) (quoting § 1415(f)(1)(B)(i)). The dissent
must mean, then, that the § 1983 claim itself had to be presented
at an administrative due process hearing -- i.e., that the
Doucettes were required to present their claim for damages arising
from the delay in an alternative school placement for B.D. in such
a hearing before bringing the claim in federal court. Yet, in the
administrative hearing envisioned by the dissent, where the issue
would be the impact of the delay in granting the alternative school
placement, the hearing officer would have no authority to grant
relief even if the Doucettes were successful in establishing their
claim. Although Fry left open the question of whether a plaintiff
must exhaust a claim for physical or emotional harms arising from
a FAPE denial, the Court recognized the incongruity of demanding
exhaustion when "[a] hearing officer . . . would have to send [a
plaintiff] away empty-handed." 137 S. Ct. at 754. That is exactly
what would happen to the Doucettes under the dissent's scenario.
- 31 -
Morton Sch. Dist., 420 F.3d 918, 921–22 (9th Cir. 2005), overruled
on other grounds by Payne v. Peninsula Sch. Dist., 653 F.3d 863(9th Cir. 2011), and they now seek damages for the harms B.D.
experienced while being forced to wait for that relief. The IDEA
itself permits the Doucettes to seek any relief available to them
under the "other [f]ederal laws that protect the rights of children
with disabilities." 20 U.S.C. § 1415(l). And, by its terms,
§ 1415(l) does not appear to require exhaustion of the Doucettes'
constitutional claim because that claim does not "seek[] relief
that is also available under [the IDEA.]" Id.
However, in Fry, the Supreme Court left open the question
of whether "exhaustion [is] required when [a] plaintiff complains
of the denial of a FAPE, but the specific remedy she requests" --
such as money damages for physical or emotional harm -- "is not
one that an IDEA hearing officer may award." 137 S. Ct. at 752
n.4. As we have explained, the denial of a FAPE is part of the
Doucettes' constitutional claim in the sense that the delay in
obtaining an alternative placement for B.D. allegedly caused the
child physical and emotional injuries. Nonetheless, to the extent
the Doucettes should have aired their constitutional claim through
the administrative process, enforcing the exhaustion requirement
is unnecessary here because the circumstances establish the
futility of such additional proceedings.
- 32 -
The legislative history of the IDEA shows a special
concern with futility. "Senator Williams, the principal author of
the Education of the Handicapped Act, the predecessor statute to
IDEA, stated that 'exhaustion of the administrative procedures
established under this part should not be required for any
individual complainant filing a judicial action in cases where
such exhaustion would be futile either as a legal or practical
matter.'" Weber v. Cranston Sch. Comm., 212 F.3d 41, 52 n.12 (1st
Cir. 2000) (quoting 121 Cong. Rec. 37416 (1975)). Futility applies
when (1) the plaintiff's injuries are not redressable through the
administrative process, Rose, 214 F.3d at 210–11, and (2) the
administrative process would provide negligible benefit to the
adjudicating court, see Christopher W. v. Portsmouth Sch. Comm.,
877 F.2d 1089, 1094 (1st Cir. 1989) (concerning exhaustion
requirement under the IDEA's predecessor statute, the Education
for All Handicapped Children's Act).21
21We take particular exception to the dissent's suggestion
that we have created a novel futility test. To the contrary, we
have applied precisely the test that our precedents prescribe.
See, e.g., Rose, 214 F.3d at 210–11; Weber, 212 F.3d at 52. The
dissent maintains that we think futility has been established if
the plaintiff seeks only money damages and the administrative
officer is not authorized to afford that type of relief. To the
contrary, our analysis includes the additional requirement of the
negligible benefit of the administrative hearing to a reviewing
court.
- 33 -
As to redressability, here, the Doucettes request money
damages for medical expenses arising from B.D.'s seizures and the
physical, emotional, and psychological harm that B.D. experienced
because of the school district's "severe, pervasive disregard for
[the] safety and well-being [of] B.D." Section 1983 authorizes
such forms of relief. See 42 U.S.C. § 1983. On the other hand,
the relief available under the IDEA is equitable and is limited to
(1) future special education and related services to ensure or
remedy a past denial of a FAPE; and (2) reimbursements to parents
for education-related expenditures that the state ought to have
borne. See Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 125 (1st
Cir. 2003). The Supreme Court has expressly distinguished such
reimbursements from "damages," Sch. Comm. of Burlington, 471 U.S.
at 370, which the IDEA does not allow. Nieves-Marquez, 353 F.3d
at 125.22
22 The dissent contends that the Doucettes have not made a
futility showing because they have not "demonstrated that no
additional relief was available to them through a due process
hearing at any time after the summer of 2017." We do not understand
the relevance of this point. The Doucettes are not seeking any
further compensatory relief or an alternative placement, so how
can they be charged with failing to demonstrate the futility of
pursuing such additional relief? Indeed, in determining whether
a plaintiff must exhaust her claim for relief under the IDEA, we
look at the "remedial basis" identified by the plaintiff rather
than what relief she "could have sought." Fry, 137 S. Ct. at 755(internal quotation marks omitted). Moreover, as we explain,
although an adjudicating court may benefit from the record provided
by an administrative hearing, further record development is not
- 34 -
Finally, although adjudication of FAPE-based claims
typically benefits from the administrative process because courts
rely on "the detailed evidentiary record developed during the due
process hearing," and because "[t]he IDEA's administrative
machinery places those with specialized knowledge -- education
professionals -- at the center of the decisionmaking process,"
Frazier, 276 F.3d at 60-61, the benefits of further administrative
decisionmaking would be negligible in this case.
The Doucettes' § 1983 claim involves liability and
damages issues. Liability depends upon a finding that the school
district acted with "deliberate indifference." See Manarite v.
City of Springfield, 957 F.2d 953, 955 (1st Cir. 1992). On that
issue, which concerns the decisionmaking process of B.D.'s
educators and school officials, an adjudicating court already has
the benefit of the administrative record developed during the 2010
due process hearing in which the Doucettes sought an alternative
placement for B.D, as well as the required documentation from the
Doucettes' 2012 pursuit of an alternative placement for B.D. The
latter records include school officials' documented reasons for
continuing B.D.'s placement within the school district during the
summer of 2012, and the final amended IEP, explaining the school
necessary in this case because of the documentation already
available from the administrative processes in 2010 and 2012.
- 35 -
officials' reasons for B.D.'s ultimate placement outside of the
district. All of this documentation provides the educational
expertise needed by an adjudicating court.
The damages aspect of the claim concerns issues of
medical causation -- not educational issues that are the
administrative body's area of expertise. Cf. McCormick v. Waukegan
Sch. Dist. No. 60, 374 F.3d 564, 569 (7th Cir. 2004) (no exhaustion
required where plaintiff alleged "permanent physical injuries");
Padilla ex rel. Padilla v. Sch. Dist. No. 1 in City & Cty. of
Denver, Colo., 233 F.3d 1268, 1274 (10th Cir. 2000) (no exhaustion
required where plaintiff's claim involved only physical injuries).
Medical causation questions are routinely considered by district
courts and juries, assisted by the testimony of medical experts,
without the benefit of an administrative record. Thus, no
educational expertise is needed for a court to adjudicate the
damages aspect of the § 1983 claim.
For these reasons, even if the Doucettes' § 1983 is
subject to further exhaustion, requiring the Doucettes to take
further administrative action would be an "empty formality."
Panetti, 551 U.S. at 946. Given the steps that the Doucettes took
and the relief that they received, further invocation of the
administrative process as to their § 1983 claim was not required,
- 36 -
and the district court erred in granting judgment to the school
district on that ground.
IV.
For the foregoing reasons, we vacate the district
court's entry of judgment for the school district and remand for
further proceedings consistent with this opinion.23 The district
court should reconsider its remand of the state law claims in light
of this disposition. Costs to appellants.
So ordered.
-Dissenting Opinion Follows-
23In response to the dissent's final footnote, we note only
that our footnotes reflect good-faith engagement with the
dissent's analysis. We, too, are "content to leave the relative
merits" of our competing views for others to evaluate.
- 37 -
SELYA, Circuit Judge (dissenting). When Congress
crafted an exhaustion requirement for the IDEA, it envisioned that
requirement as robust. See Frazier v. Fairhaven Sch. Comm., 276
F.3d 52, 60 (1st Cir. 2002) ("Congress constructed the law on the
premise that plaintiffs would be 'required to utilize the elaborate
administrative scheme established by the [IDEA] before resorting
to the courts to challenge the actions of the local school
authorities.'" (alteration in original) (quoting N.B. by D.G. v.
Alachua Cty. Sch. Bd., 84 F.3d 1376, 1378 (11th Cir. 1996)(per
curiam))). The Supreme Court's interpretive guidance has been
faithful to the congressional mandate. See Fry v. Napoleon Cmty.
Schs., 137 S. Ct. 743 (2017). In the case at hand, though, the
majority dilutes the exhaustion requirement, making it easy to
evade and — where evasion cannot be accomplished even under the
majority's relaxed standard — easy to satisfy. Not surprisingly,
this parade of errors leads to an incorrect result. Because I do
not share the majority's somewhat cavalier view of the IDEA's
exhaustion requirement, I respectfully dissent.
I
I start with the majority's erroneous conclusion that
the gravamen of the plaintiffs' Rehabilitation Act claim "involves
the denial of non-discriminatory access to a public institution,
irrespective of the school district's FAPE obligation to provide
a particular education program" for their son. Ante at 17. This
- 38 -
conclusion derives from a confused assessment of the directives
contained in Fry. The majority seems not to recognize that the
two "clues" adumbrated by the Fry Court, see 137 S. Ct. at 756-
57, are merely devices intended to assist an inquiry into whether
the plaintiffs "seek relief for the denial of a FAPE," id. at 752;
cf. id. at 759 (Alito, J., concurring in part and concurring in
the judgment) (calling the clues "misleading" and warning that
they "are likely to confuse and lead courts astray").
The Fry Court first concluded that the complaint before
it contained no explicit focus on the adequacy of the education
received by the petitioners' daughter, noting that the "complaint
allege[d] only disability-based discrimination, without making any
reference to the adequacy of the special education services" that
the school furnished. Id. at 758. Because "the FAPE requirement
provides the yardstick for measuring the adequacy of the education
that a school offers to a child with a disability," id. at 753,
the Court considered both whether the complaint referred to the
denial of a FAPE and whether it otherwise challenged the adequacy
of the education that the petitioners' daughter received, id. at
758. Not only did the complaint "contain[] no allegation about
the denial of a FAPE or about any deficiency in [the petitioners'
daughter's] IEP" but also failed to "accuse the school even in
general terms of refusing to provide the educational instruction
and services" required by the petitioners' daughter. Id.
- 39 -
Relatedly, the Court emphasized that the petitioners had continued
to maintain throughout the litigation that their daughter's
educational needs were satisfied. See id.
But even though the complaint revealed no explicit focus
on the adequacy of the daughter's education, the Court was not
satisfied that the petitioners could circumvent the IDEA's
exhaustion requirement. At that point in its analysis, the Court
employed its two "clue[s]" to help discern whether the complaint
contained an "implicit focus" on educational adequacy. Id. at
756-58. Investigating the first clue (the hypotheticals), the
Court noted that the same complaint could be filed against a public
facility that was not a school or could be filed against the school
by a non-student plaintiff, in either of which events it "would
have nothing to do with the provision of educational services."
Id. at 758. Investigating the second clue (the petitioners'
pursuit vel non of the IDEA's administrative remedies) turned out
to be a dead end because the record was insufficiently developed
as to that issue. See id. And notwithstanding the absence of any
other indication that the petitioners sought relief for the denial
of a FAPE, the Court deemed it necessary to remand in order to
gain insight into this issue. See id. at 758-59. In that regard,
it instructed the court below to establish whether the petitioners
had invoked the IDEA's dispute resolution process. See id.
- 40 -
In demonstrating how a court should cut through the
boilerplate of the pleadings and determine whether a plaintiff is
actually seeking relief for the denial of a FAPE, the Fry Court
imparted some useful guidance. Mindful that the plaintiff is the
"master of the claim," id. at 755 (quoting Caterpillar Inc. v.
Williams, 482 U.S. 386, 392, and n.7 (1987)), a reviewing court's
examination should begin with the four corners of the complaint,
see id. at 758. Taking this approach in a very recent case, we
determined that the plaintiffs' pleadings and legal allegations
revealed that their complaint alleged the denial of a FAPE and was
therefore subject to the IDEA's exhaustion requirement. See
Parent/Prof'l Advocacy League v. City of Springfield, ___ F.3d
___, ___ (1st Cir. 2019) [Nos. 18-1778, 18-1813, 18-1867, 18-1976,
slip op. at 21-22].
If however, a reviewing court is unable to identify an
explicit focus on the adequacy of the education received by a child
with disabilities, it must then take the next step. That step
entails consideration of whether an implicit focus can be
identified (either in the complaint or in the proceedings),
employing means such as the two Fry clues.24 See Fry, 137 S. Ct.
at 758-59; see also Fry v. Napoleon Cmty. Schs., No. 12-15507,
24 Of course, a court may also take the step in order to
buttress the identification of such an explicit focus. See, e.g.,
City of Springfield, ____ F.3d at ____ [slip op. at 22-23].
- 41 -
2018 WL 4030757, at *14-16 (E.D. Mich. Aug. 23, 2018) (applying on
remand the inquiry delineated by the Fry Court). Only if the court
determines that a particular claim cannot be interpreted to allege
the denial of a FAPE, either explicitly or implicitly, can the
court find that the claim is not subject to the IDEA's exhaustion
requirement.
I confess that the Fry Court's instructions about how to
read and interpret a complaint are not a model of clarity.
Although cautioning against a "magic words" approach and warning
that the inquiry "does not ride on whether a complaint includes
(or, alternatively, omits) the precise words . . . 'FAPE' or
'IEP,'" Fry, 137 S. Ct. at 755, the Court indicated that the
absence of any allegations referring either to the denial of a
FAPE or to some deficiency in an IEP would be meaningful data
points supporting a determination that the petitioners' complaint
alleged "only disability-based discrimination," id. at 758.
Fairly read, the Fry Court's approach strongly suggests that the
presence of such terms, though they do not serve as on/off
switches, ought to play an important role in any determination as
to whether a plaintiff is, in essence, seeking relief for the
denial of a FAPE.
Fry mentions another consideration relevant to assessing
a complaint: the relationship between an individual claim and the
complaint as a whole. See id. In light of this consideration,
- 42 -
the Court's evaluation of the complaint was influenced by the
absence of any allegation, either specific or general, that the
school "refus[ed] to provide the educational instruction and
services" required by the petitioners' daughter. Id. But Fry
leaves open a question: does the presence of such allegations
affect the court's assessment of all claims in a complaint or,
conversely, can such allegations be cordoned off as relevant only
to particular claims that explicitly seek relief for FAPE denial?
In the aftermath of Fry, this unanswered question was
addressed by the Third Circuit in Wellman v. Butler Area School
District, 877 F.3d 125 (3rd Cir. 2017). There, the court held
that Fry requires courts to review the entire complaint and conduct
a separate assessment of each claim. See id. at 133. The court
added that, regardless of whether a complaint includes FAPE denial
allegations, an entirely distinct claim that in no way concerns
the denial of a FAPE (like an allegation of physical assault on a
school bus) would fall outside the IDEA's exhaustion requirement.
See id. at 132-33. On these points, I think that the Wellman court
got it exactly right.
The Third Circuit, though, was more chary with respect
to a claim nested among explicit claims of a FAPE denial — a claim
which, like the claim in Fry, did not explicitly allege the denial
of a FAPE but necessitated further analysis to determine whether
an implicit focus nonetheless lurked beneath its surface. See id.- 43 -
at 134. I find the Wellman court's handling of such a claim
instructive.
In relevant part, the Wellman plaintiff sought "relief
under the ADA and Rehabilitation Act due to the school's alleged
failure to ensure that [he] was not exposed to danger after the
initial head injury he sustained during physical education class
but was still permitted to participate in school activities." Id.Though recognizing that "there could be a scenario in which these
events may not relate to a FAPE," the court determined that, as
pleaded, the claim "was offered as another example of how the
school failed to accommodate [the plaintiff] so that he could
benefit from his educational experience." Id. Because the factual
allegations surrounding this claim were intermixed with explicit
claims charging FAPE denial, the court concluded that the complaint
sought relief for failure to provide a FAPE.25 See id. The
relationship between a complaint's explicit allegations of a FAPE
denial and other claims limned in the complaint provides yet
another clue that can identify an implicit focus on the adequacy
of the education received.
25For the sake of completeness, I note that after assessing
this claim in relation to the entire complaint, the Wellman court
bolstered its conclusion that the claim concerned a FAPE denial by
pointing out that the claim "could not be brought by a nonstudent
or outside the school setting." 877 F.3d at 134. This approach
tracks with my view that the Fry "clues," while not necessary, may
provide additional data points to reinforce a determination that
a claim concerns (or does not concern) a FAPE denial.
- 44 -
In this case, the lessons of Fry and Wellman compel the
conclusion that the plaintiffs' Rehabilitation Act claim seeks
relief for the denial of a FAPE. When mounting this claim, the
plaintiffs alleged that the school's "refusal to permit B.D. access
to his service dog in his educational setting was illegal
disability-based discrimination that violated Section 504." The
plaintiffs then alleged that "[o]nly after he suffered a life-
threatening tonic-clonic seizure did the defendants agree that
B.D. could bring the service dog to school, but not as an
accommodation under his IEP." In short, the plaintiffs set forth
a composite claim concerning their son's service dog: that for a
period of time the school denied B.D. any access to a service dog
at school; and then, belatedly, granted B.D. access to the dog but
refused to accommodate him by amending his IEP accordingly.26
Although the first portion of this composite claim does
not explicitly allege a FAPE denial, the second portion comprises
a direct challenge to the adequacy of the educational services
offered by the school. The plaintiffs allege that the school
refused to amend B.D.'s IEP to include his service dog, which (they
say) he required in order "to develop some independence and
26
Unlike the majority, I do not speculate about whether the
service dog accompanied B.D. at school after his first seizure.
For purposes of an access or accommodation claim under the
Rehabilitation Act, the relevant questions are whether B.D. was
permitted to bring the dog to school and under what conditions.
Anything else is window dressing.
- 45 -
confidence" and to alleviate his anxiety in social settings. It
defies reason to turn a blind eye to the plaintiffs' reference to
the IEP in this context — and that reference quite clearly reveals
the plaintiffs' implicit focus on the school's alleged failure to
accommodate their son's educational needs.
This conclusion is reinforced by a more detailed
evaluation of the pleaded Rehabilitation Act claim, which itself
discloses an implicit focus on the adequacy of the educational
services received by B.D. Viewing the Rehabilitation Act
allegations in relation to the entire complaint, the
Rehabilitation Act claim appears inextricably intertwined with the
plaintiffs' concerns about the school's failure to accommodate
B.D.'s educational needs. Specifically, the factual allegations
set forth in the complaint trace the school's alleged intransigence
in responding to the plaintiffs' concerns as well as its refusal
either to implement B.D.'s IEP or to amend the IEP to incorporate
necessary measures. As a result of this myriad of educational
inadequacies, the complaint alleges, B.D. experienced five
seizures.27
27 The majority apparently recognizes that the bulk of the
plaintiffs' allegations — "that the ESY summer 2012 program was
not an appropriate placement for B.D., that the program was
understaffed, that his aides were unqualified and a teacher
undertrained, and/or that the interventions required under his IEP
were not being implemented" — concern the denial of a FAPE. See
ante at 27-28. But the majority then proceeds to ignore both the
- 46 -
Given these contextual surroundings, it is apparent to
me that the plaintiffs' claim regarding the school's refusal to
cooperate with their requests concerning the service dog is best
understood as a challenge to the adequacy of their son's education.
And since the complaint itself resolves any question as to whether
the plaintiffs allege the denial of a FAPE, it is neither necessary
nor useful to explore the potential significance of the Fry clues.
Even so, I note that an allegation that a school refused to
accommodate a student by amending his IEP to include a service dog
could neither be brought outside the school setting nor by a
nonstudent. This, too, weighs in favor of the conclusion that the
Rehabilitation Act claim is sufficiently linked to the denial of
a FAPE. I would therefore hold — as did the court below — that
the plaintiffs' Rehabilitation Act claim is sufficiently within
the orbit of the IDEA to activate the IDEA's exhaustion
requirement.28
II
This brings me to the plaintiffs' section 1983 claim.
The majority concludes that this claim was "properly brought in
legal significance and the logical implications of what it has
just recognized.
28I do not read the majority opinion as holding that
exhaustion of this claim should be excused on the basis of
futility. At any rate, it should be evident from what I say below,
see infra Part II.B, that the futility exception has no bearing
here.
- 47 -
federal court because it either was exhausted or [because] further
invocation of the administrative process would have been futile."
Ante at 16. I find neither of these grounds persuasive.
The exhaustion requirement, see 20 U.S.C. § 1415(l),
serves a critical role within the IDEA's administrative regime.
Insisting on such a requirement "forces parties to take
administrative proceedings seriously, allows administrative
agencies an opportunity to correct their own errors, and
potentially avoids the need for judicial involvement altogether."
Frazier, 276 F.3d at 60 (quoting P. Gioioso & Sons, Inc. v. OSHRC,
115 F.3d 100, 104 (1st Cir. 1997)).29 In the IDEA setting, there
are "special benefits" to an exhaustion requirement: "The IDEA's
administrative machinery places those with specialized knowledge—
education professionals—at the center of the decisionmaking
process, entrusting to them the initial evaluation of whether a
29 The majority avers that Frazier's "exhaustion analysis is
of questionable precedential value because it relied on a Supreme
Court case addressing exhaustion in the context of the [PLRA]."
Ante at 13 n.10. In point of fact, the Fry Court made only a
passing reference to the PLRA, distinguishing that statute's
exhaustion provision in order to emphasize that the IDEA enables
a plaintiff to decide whether to seek the "relief available under
the IDEA" — relief for the denial of a FAPE. See Fry, 137 S. Ct.
at 755. The Court did not by any means indicate that case law
interpreting the PLRA's exhaustion provision should not be read to
inform a court's interpretation of section 1415(l), and it
explicitly left open the very question for which Frazier viewed
that case law as instructive: whether exhaustion is required where
the specific remedy requested "is not one that an IDEA hearing
officer may award." Id. at 752 n.4.
- 48 -
disabled student is receiving a free, appropriate public
education." Id.If courts are to be faithful to Congress' commands, they
cannot allow the IDEA's exhaustion requirement to be easily dodged.
To this end, "[t]he burden of demonstrating an exception from the
exhaustion requirement falls on the party seeking to avoid the
requirement." Rose v. Yeaw, 214 F.3d 206, 211 (1st Cir. 2000);
see Honig v. Doe, 484 U.S. 305, 327 (1988).
A
Viewed against this backdrop, the majority's conclusion
that the plaintiffs have exhausted their administrative remedies
is flat-out wrong. The majority asserts that the plaintiffs
exhausted their administrative remedies vis-á-vis their section
1983 claim when they requested and received an out-of-district
placement in the fall of 2012. See ante at 30-31. Adding a
wrinkle to the analysis, the majority labors to treat that initial
request as separate and distinct from the section 1983 claim for
monetary relief, characterizing the latter as merely an effort to
obtain "damages for the harms B.D. experienced while being forced
to wait for" the relief initially requested. Id. at 32. Finally,
the majority posits that because the initial request was exhausted,
the section 1983 claim needed no additional exhaustion. See id.
The majority's reasoning rests on a porous foundation.
The plaintiffs' initial request was not exhausted because it did
- 49 -
not move beyond the superintendent of the school district before
it was resolved by the school's acquiescence.30 Simply raising a
concern successfully through the bureaucracy of the school
district, without more, does not comprise exhaustion. See A.F. ex
rel Christine B. v. Española Pub. Schs., 801 F.3d 1245, 1249 (10th
Cir. 2015) (rejecting argument that mediation settlement comprised
IDEA exhaustion).
Exhaustion requires that a party receive a determination
through a due process hearing, as contemplated under section
1415(f). See Weber v. Cranston Sch. Comm., 212 F.3d 41, 53 (1st
Cir. 2000) (concluding that "IDEA's mandate is explicit:
plaintiffs must exhaust IDEA's impartial due process hearing
procedures" before repairing to court); see also Z.G. by & through
C.G. v. Pamlico Cty. Pub. Sch. Bd. of Educ., 744 F. App'x 769, 776
(4th Cir. 2018) ("The plaintiff has exhausted administrative
remedies under 20 U.S.C. § 1415(l) when he receives a finding or
a decision from the Review Officer."). Only then may a party
"bring a civil action with respect to the complaint presented
pursuant to this section." 20 U.S.C. § 1415(i)(2)(A).
30
For this reason, I need not address the majority's curious
bifurcation of two requests for relief that, in my view, stem from
the same alleged denial of a FAPE. I do note, however, that if a
school's refusal to grant a party's request for relief based on
allegations of FAPE denial could give rise to a separate claim
that required no agency determination as to whether that FAPE
denial occurred, the exhaustion requirement would be emptied of
all meaning.
- 50 -
By this measure, the plaintiffs' initial request for
relief was not exhausted. Nor can it seriously be argued that the
section 1983 claim for monetary relief, if treated as distinct
from the initial request for relief, was exhausted in its own
right. There has been no agency determination as to whether the
school denied B.D. a FAPE during the relevant period — and without
such a determination, there can be no exhaustion. See Weber, 212
F.3d at 53. It follows inexorably that the plaintiffs have not
carried their burden of demonstrating that they have complied with
the IDEA's exhaustion requirement as to their section 1983 claim.
B
The majority concludes, in the alternative, that the
plaintiffs were not required to resort to the IDEA's administrative
procedures prior to filing suit because they have demonstrated the
futility of such an attempt to exhaust. I agree that futility
may, in an appropriate case, excuse compliance with the exhaustion
requirement. See Frazier, 276 F.3d at 59. Here, however, the
majority generates a test for futility that is of dubious
provenance and, in the bargain, applies it in a manner that
directly contradicts our precedent.
The cases that the majority cites for the proposition
that "[f]utility applies when (1) the plaintiff's injuries are not
redressable through the administrative process, and (2) the
administrative process would provide negligible benefit to the
- 51 -
adjudicating court," ante at 33 (internal citation omitted),
simply do not support that proposition. To the contrary, our
precedent regarding futility requires plaintiffs to demonstrate
that the administrative process "does not provide relief that
addresses the claim of the complainant." Weber, 212 F.3d at 52.
This approach dovetails with established law, holding that parties
cannot show futility merely by arguing that their complaint seeks
money damages and that such a remedy is not available under the
IDEA. See Frazier, 276 F.3d at 56. As Frazier teaches, exhaustion
may be beneficial (and, therefore, compulsory) "regardless of
whether the administrative process offers the specific form of
remediation sought by a particular plaintiff." Id. at 61.
Consequently, we cannot "allow a plaintiff to bypass the
administrative procedures merely by crafting her complaint to seek
relief that educational authorities are powerless to grant." Id.
at 63.
The majority concludes, under its novel test, that
B.D.'s injuries are not redressable through the administrative
process because the plaintiffs seek only money damages and the
BSEA is not authorized to award that type of relief. See ante at
34. Frazier precludes such a conclusion. See 276 F.3d at 56. In
line with the Weber test, we are instructed to consider whether
the plaintiffs have demonstrated that the BSEA cannot award relief
- 52 -
that addresses their claim that B.D. was denied a FAPE. They have
not done so.
The proper test demands that we return to the summer of
2012. See Nelson v. Charles City Cmty. Sch. Dist., 900 F.3d 587,
594 (8th Cir. 2018) ("In determining whether a plaintiff was
required to exhaust remedies . . . we must consider the student's
status at the time of the challenged conduct when the parents could
have invoked administrative procedures."); see also Frazier, 276
F.3d at 63. At any time that summer, the plaintiffs could have
filed a complaint with the BSEA seeking multiple forms of relief
for the alleged denial of a FAPE, including an out-of-district
placement and compensatory services. That they chose instead to
negotiate with the school in the autumn of 2012 to receive the
same relief is irrelevant to the correct futility analysis.
Nor have the plaintiffs demonstrated that no additional
relief was available to them through a due process hearing at any
time after the summer of 2012. For example, compensatory education
is a remedy that is available even when a student no longer attends
a specific school. See Frazier, 276 F.3d at 63. Here, we know
that the school already has offered some compensatory services to
the plaintiffs, but the plaintiffs have not provided any
information as to what that offer comprised or whether it was
accepted. And even if the offer was accepted, there is no reason
- 53 -
that the BSEA could not award relief in the form of additional
compensatory services.
What is more, requiring the plaintiffs to seek a due
process hearing before the BSEA "facilitates the compilation of a
fully developed record by a factfinder versed in the educational
needs of disabled children—and that record is an invaluable
resource for a state or federal court required to adjudicate a
subsequent civil action covering the same terrain." Id. at 61. A
court attempting to grapple with the plaintiffs' section 1983
claims, then, would benefit from reviewing an administrative
record in which the adequacy of educational services provided by
the school has been assessed.
For these reasons, I conclude that the plaintiffs have
not carried their burden of establishing that exhaustion of the
IDEA's administrative process would be futile as to their section
1983 claim. The district court, therefore, acted appropriately in
granting the defendants' motion for judgment on the pleadings.
III
To say more would be to paint the lily.31 The majority
treats the IDEA's exhaustion requirement as little more than a
31
The majority, in a lengthy string of footnotes, has
attempted to respond to this dissent. As far as I can tell, that
attempt proceeds mainly by distorting what the dissent says and
the propositions for which the dissent stands. Rather than
engaging in hand-to-hand combat and replying point by point to
these distortions, I am content to leave the relative merits of
- 54 -
mere annoyance, which can be both too easily satisfied and too
easily evaded. In my view, proper application of the exhaustion
requirement compels affirmance of the judgment below. Because the
majority erroneously reaches a contrary conclusion, I respectfully
dissent.
the majority opinion and the dissent to the fair-minded and
informed reader.
- 55 -