Fry ex rel. E.F. v. Napoleon Community Schools

ROGERS, J., delivered the opinion of the court in which DONALD, J., joined. DAUGHTREY, J. (pp. 631-38), delivered a separate dissenting opinion.

OPINION

ROGERS, Circuit Judge.

The administrative exhaustion requirements of the Individuals with Disabilities Education Act (IDEA) must, under that act, be met even with respect to some claims under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The question on this appeal is whether the ADA and Rehabilitation Act claims in this case are such claims requiring IDEA exhaustion.

The Frys’ daughter, E.F., suffers from cerebral palsy and was prescribed a service dog to assist her with everyday tasks. Her school, which provided her with a human aide as part of her Individualized Education Program (IEP) under the IDEA, refused to permit her to bring her service dog to school. The Frys sued the school, its principal, and the school district, alleging violations of the ADA and the Rehabilitation Act and state disability law. The district court granted the defendants’ motion to dismiss under Fed.R.Civ.P. 12(c) on the grounds that because the Frys’ claims necessarily implicated E.F.’s IEP, the IDEA’S exhaustion provision required the Frys to exhaust IDEA administrative procedures prior to bringing suit under the ADA and Rehabilitation Act. The Frys appeal, arguing that the IDEA'exhaustion provision does not apply because they do not seek relief provided by IDEA procedures. But because the specific injuries the Frys allege are essentially educational, they are exactly the sort of injuries the IDEA aims to prevent, and therefore the IDEA’S exhaustion requirement applies to the Frys’ claims.

Because this is an appeal from a grant of a motion to dismiss based on the pleadings, we take as true the facts alleged in the Frys’ complaint. See S. Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir.1973).

E.F., the daughter of Stacy and Brent Fry, was born with spastic quadriplegic cerebral palsy, which significantly impairs her motor skills and mobility. In 2008, E.F. was prescribed a service dog. Over the course of the next year, E.F. obtained and trained with a specially trained service dog, a hybrid goldendoodle named Wonder. Wonder assists E.F. by increasing her mobility and assisting with physical tasks such as using the toilet and retrieving dropped items. At the time this dispute arose, E.F. could not handle Wonder on her own, but at some point in the future she would be able to. In October 2009, when Wonder’s training was complete, her school, Ezra Eby Elementary School, refused permission for Wonder to accompany E.F. at school. There was already an IEP in place for E.F. for the 2009-2010 school year that included a human aide providing one-on-one support. In a specially convened IEP meeting in January 2010, school administrators confirmed the decision to prohibit Wonder, reasoning in part that Wonder would not be able to provide any support the human.aide could not provide. In April 2010, the school agreed to a trial period, to last until the end of the school year, during which E.F. could bring Wonder to school. During this trial period, however, Wonder was not at all times permitted to be with E.F. or to perform some functions for which he had been trained. At the end of the trial period, the school informed the Frys that Wonder would not be permitted to attend school with E.F. in the coming school year.

The Frys then began homeschooling E.F. and filed a complaint with the Office of Civil Rights at the Department of Education under the ADA and § 504 of the Rehabilitation Act. Two years later, in May 2012, the Office of Civil Rights found that the school’s refusal to permit Wonder to attend with E.F. was a violation of the ADA. At that time, without accepting the factual or legal conclusions of the Office of Civil Rights, the school agreed to permit E.F. to attend school with Wonder starting in fall 2012. However, the Frys decided to enroll E.F. in a school in a different district where they encountered no opposition to Wonder’s attending school with E.F.

The Frys filed suit on December 17, 2012, seeking damages for the school’s refusal to accommodate Wonder between fall 2009 and spring 2012. The Frys alleged the following particular injuries: denial of equal access to school facilities, denial of the use of Wonder as a service dog, interference with E.F.’s ability to form a bond with Wonder, denial of the opportunity to interact with other students at Ezra Eby Elementary School, and psychological harm caused by the defendants’ refusal to accommodate E.F. as a disabled person. The Frys sought relief under Title II of the ADA, § 504 of the Rehabilitation Act (which prohibits discrimination based on disability in “any program or activity receiving Federal financial assistance”), and the Michigan Persons with Disabilities Civil Rights Act. The district court declined to exercise supplemental jurisdiction over the state law claim.

On January 10, 2014, the district court granted the defendants’ motion to dismiss pursuant to Rule 12(c), finding that the IDEA’S exhaustion requirements applied to the Frys’ claims and dismissing them without prejudice. The court noted that although the Frys did not specifically allege any flaw in E.F.’s IEP, if she were permitted to attend school with Wonder, that document would almost certainly have to be modified in order to articulate the policies and practices that would apply to the dog. EF ex rel. Fry v. Napoleon Community Schools, No. 12-15507, 2014 WL 106624, at *5 (E.D.Mich. Jan. 10, 2014). Therefore, the Frys’ request for permission for E.F. to attend school with Wonder “would be best dealt with through the administrative process,” and exhaustion was required. Id. Because the Frys had not exhausted IDEA administrative remedies, the district court dismissed their suit without prejudice. Id. The Frys timely appealed.

The IDEA exhaustion requirement applies to the Frys’ claims. Under that statute, plaintiffs must exhaust IDEA procedures if they seek “relief that is also available” under IDEA, even if they do not include IDEA claims in their complaint. 20 U.S.C. § 1415(l). This language requires exhaustion when the injuries alleged can be remedied through IDEA procedures, or when the injuries relate to the specific substantive protections of the IDEA. See S.E. v. Grant Cnty. Bd. of Educ., 544 F.3d 633, 642 (6th Cir.2008). The core harms that the Frys allege arise from the school’s refusal to permit E.F. to attend school with Wonder relate to the specific educational purpose of the IDEA. The Frys could have used IDEA procedures to remedy these harms. Therefore, the nature of the Frys’ claims required them to exhaust IDEA procedures before filing suit under the ADA and the Rehabilitation Act.

The IDEA’S exhaustion requirement ensures that complex factual disputes over the education of disabled children are resolved, or at least analyzed, through specialized local administrative procedures. The IDEA outlines standards and procedures for accommodations and services provided to disabled children whose disabilities cause them to need “special education and related services.” 20 U.S.C. § 1401(3)(A). One of its primary purposes is to “ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” Id. § 1400(d)(1)(A). To this end, the IDEA requires that schools and school districts develop an IEP for each such child. Id. § 1414(d)(2)(A). The IEP outlines “the child’s present levels of academic achievement and functional performance[,] ... measurable annual ... academic and functional goals,” measurement criteria for meeting those goals, and the “special education and related services and supplementary aids and services ... and ... the program modifications or supports for school personnel that will be provided for the child” to make progress in achieving the goals. Id. § 1414(d)(l)(A)(i).

The IDEA’S procedures for creating and amending a child’s IEP encourage participation by those directly involved in the child’s care in education, application of expert analysis, and swift dispute resolution. There must be an IEP in effect for each disabled child by the start of each school year. Id. § 1414(d)(2)(A). The IEP is created by an IEP team, which includes the child’s parents, at least one of the child’s regular education teachers, at least one of the child’s special education teachers, and a representative of the “local education agency” who is qualified in special education, knowledgeable about the general curriculum, and knowledgeable about the local education agency’s resources. Id. § 1414(d)(1)(B). Any party can present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child,” including disputes over the content of the child’s IEP. Id. § 1415(b)(6)(A); see id. § 1401(9)(D) (defining a free appropriate public education as an education “provided in conformity with the individualized education program”). Within 15 days of receiving notice of a child’s parents’ complaint, the local educational agency must hold a “preliminary meeting” with the parents and other members of the IEP team to give the local educational agency “the opportunity to resolve the complaint.” Id. § 1415(f)(1)(B)(i). If the local educational agency has not resolved the dispute within 30 days of receiving the- complaint, the timeline for a “due process hearing” begins. Id. § 1415(f)(1)(B)(ii). This process must conclude — with the local or state educational agency issuing a written decision to the parties — within 45 days. 34 C.F.R. § 300.515(a). If the local agency conducted the hearing, the decision can be appealed to the state educational agency, which conducts an impartial review and issues a decision within 30 days. 20 U.S.C. § 1415(g); 34 C.F.R. § 300.515(b). These deadlines are of course not entirely set in stone, but in the abstract a dispute about an IEP should go through a resolution meeting, a local agency determination, and a state agency determination within 105 days of the initial complaint. Only at this point may either party take the dispute to court, and the court then receives “the records of the administrative proceedings.” 20 U.S.C. § 1415(i)(2). The statute and implementing regulations ensure that the parties have a chance to resolve the dispute without going to court and that local and state educational agencies have a chance to analyze and study it.

Requiring exhaustion of administrative procedures prior to filing suit under the IDEA has clear policy justifications: “States are given the power to place themselves in compliance with the law, and the incentive to develop a regular system for fairly resolving conflicts under the Act. Federal courts — generalists with no expertise in the educational needs of handicapped students — are given the benefit of expert factfinding by a state agency devoted to this very purpose.” Crocker v. Tenn. Secondary Sch. Athletic Ass’n, 873 F.2d 933, 935 (6th Cir.1989) (analyzing substantially similar provisions of the IDEA’S predecessor statute). The IDEA calls for highly fact-intensive analysis of a child’s disability and her school’s ability to accommodate her. The procedures outlined above ensure that the child’s parents and educators, as well as local experts, are first in line to conduct this analysis.

The IDEA’S substantive protections overlap significantly with other federal legislation and constitutional protections, and so this policy justification would be threatened if parties could evade IDEA procedures by bringing suit contesting educational accommodations under other causes of action. The IDEA contemplates and explicitly precludes this possibility:

[BJefore the filing of a civil action under [the ADA, the Rehabilitation Act, or other Federal laws protecting the rights of children with disabilities] seeking relief that is also available under this sub-chapter, the procedures under subsections (f) and '(g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

20 U.S.C. § 1415(l) (emphasis added). The exhaustion requirement was intended “to prevent courts from acting as ersatz school administrators and making what should be expert determinations about the best way to educate disabled students.” Payne v. Peninsula Sch. Dist., 653 F.3d 863, 876 (9th Cir.2011) (en banc), overruled on other grounds by Albino v. Baca, 747 F.3d 1162 (9th Cir.2014) (en banc). Accordingly, it makes sense to require IDEA exhaustion in order to preserve the primacy the IDEA gives to the expertise of state and local agencies.

We have held that exhaustion is not required when the injuries alleged by the plaintiffs do not “relate to the provision of a FAPE [free appropriate public education]” as defined by the IDEA, and when they cannot “be remedied through the administrative process” created by that statute. F.H. ex rel. Hall v. Memphis City Sch., 764 F.3d 638, 644 (6th Cir.2014); see S.E., 544 F.3d at 642. When they do relate to the provision of the child’s education and can be remedied through IDEA procedures, waiving the exhaustion requirement would prevent state and local educational agencies from addressing problems they specialize in addressing and require courts to 'evaluate claims about educational harms that may be difficult for them to analyze without the benefit of an administrative record. Under S.E. and F.H., exhaustion is required at a minimum when the claim explicitly seeks redress for a harm that IDEA procedures are designed to and are able to prevent — a harm with educational consequences that is caused by a policy or action that might be addressed in an IEP. Similarly, the Seventh Circuit required exhaustion when “[b]oth the genesis and the manifestations of the problem [were] educational.” Charlie F. v. Bd. of Educ., 98 F.3d 989, 993 (7th Cir.1996). In such a situation, the participants in IDEA procedures will answer the same questions a court would ask, and they have a chance of solving the child’s and the child’s parents’ problem before the parents and their child become plaintiffs.

The exhaustion requirement applies to the Frys’ suit because the suit turns on the same questions that would have determined the outcome of IDEA procedures, had they been used to resolve the dispute. The Frys allege in effect that E.F.’s school’s decision regarding whether her service animal would be permitted at school denied her a free appropriate public education. In particular, they allege explicitly that the school hindered E.F. from learning how to work independently with Wonder, and implicitly that Wonder’s absence hurt her sense of independence and social confidence at school. The suit depends on factual questions that the IDEA requires IEP team members and other participants in IDEA procedures to consider. This is thus the sort of dispute Congress, in enacting the IDEA, decided was best addressed at the first instance by local experts, educators, and parents.

In the context of the accommodations the school already provided to E.F., the additional value of allowing Wonder to attend with E.F. was educational — the sort of interest the IDEA protects. E.F.’s IEP already included a human aide who, it appears, assisted E.F. with the tasks Wonder could perform. Thus the Frys’ claim is not that the school failed to accommodate E.F.’s disability at all, but that the accommodation provided was not sufficient. Whether this claim amounts to alleging a denial of a free appropriate public education, or whether it could be resolved through IDEA procedures, depends on why the existing accommodation was not sufficient relative to what Wonder could provide.

If the human aide was not a sufficient accommodation, it was because he or she did not help E.F. learn to function independently as effectively as Wonder would have and perhaps because he or she was not as conducive to E.F.’s participating confidently in school activities as Wonder would have been. The complaint does not allege that the human aide was less effective than Wonder would have been in providing immediate physical assistance; thus the Frys do not appear to suggest that E.F. was directly denied physical access to public school facilities. Instead, having Wonder at school was important for E.F. to “form a bond” with the dog, a bond that would make Wonder a more effective service animal “outside of school.” The Frys characterize Wonder’s independent value to E.F. as assistance with specific physical tasks, enabling her “to develop independence and confidence,” and helping her “to bridge social barriers.” Thus if the human aide was not a sufficient accommodation relative to Wonder, that was because he or she did not increase E.F.’s ability to perform physical tasks and function confidently and independently outside of school. One might also infer, though the Frys do not allege it directly, that relying on only a human aide without the additional presence of a service dog would inhibit E.F.’s sense of confidence and independence, as well as her ability to overcome social barriers, in school.

The other harms that the Frys specifically identify — denial of access to school facilities, denial of the use of Wonder as a service dog at school, harms caused by having to leave the school, and emotional distress caused by the school’s refusal to accommodate her — all depend on the assumption that the school’s refusal to permit Wonder’s attendance harmed E.F. in the ways identified above. For example, E.F. was denied access to school facilities in the sense that school facilities did not provide her with an accommodation (i.e., permission to use Wonder) she reasonably needed, but she needed Wonder in school only (it appears on the face of the complaint) to form a stronger bond with the dog and, perhaps, to feel more confident and independent. In sum, each of these secondary injuries exists only to the extent that Wonder’s absence is harmful, or else (in the case of injuries resulting -from switching schools, for instance) would be entirely avoidable if Wonder’s absence were not harmful.

The primary harms of not permitting Wonder to attend school with E.F. — inhibiting the development of E.F.’s bond with the dog and, perhaps, hurting her confidence and social experience at school — fall under the scope of factors considered under IDEA procedures. Developing a bond with Wonder that allows E.F. to function more independently outside the classroom is an educational goal, just as learning to read braille or learning to operate an automated wheelchair would be. The goal falls squarely under the IDEA’S purpose of “ensuring] that children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A). Thus developing a working relationship with a service dog should have been one of the “educational needs that result from the child’s disability” used to set goals in E.F.’s IEP. Id. § 1414(d)(1)(A)(i)(II). “Educational needs” is not limited to learning within a standard curriculum; the statute instructs the IEP team to take into account E.F.’s “academic, developmental, and functional needs,” which means that the IEP should include what a student actually needs to learn in order to function effectively. Id. § 1414(d)(3)(A). “A request for a service dog to be permitted to escort a disabled student at school as an ‘independent life tool’ is hence not entirely beyond the bounds of the IDEA’S educational scheme.” Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 248 (2d Cir.2008). The Frys’ stated argument for why E.F. needed Wonder at school would have provided justification under the IDEA for allowing Wonder to accompany E.F.

To the extent that the Frys also allege that Wonder would have provided specific psychological and social assistance to E.F. at school, the value of this assistance is also crucially linked to E.F.’s education. Accommodations that help make a student feel more comfortable and confident at school should be included in an IEP, which lists “the program modifications or supports for school personnel that will be provided for the child ... to be educated and participate with other children with disabilities and nondisabled children in [educational activities].” 20 U.S.C. § 1414(d)(1)(A)(i)(IV). Thus an IEP should take into account any potential accommodations that will make a disabled child feel more comfortable in the school environment, since such accommodations will help the child participate actively in school activities. The IDEA is designed to address precisely the sorts of harms the Frys allege in their complaint; assuming their claims are correct, they should have been able to obtain relief under IDEA procedures, if followed properly.

In fact, the school did use IDEA procedures to attempt to resolve its dispute, and the injuries alleged by the Frys here could have been raised then. In a January 2010 IEP team meeting requested by the school, E.F.’s IEP team considered, among other questions, “[w]hat disability-related educational need ... the service animal [is] intended to address” and whether “the service animal [will] enhance or hinder [E.F.’s] ability to progress in the general curriculum!.]” The IEP team reached conclusions that pertain directly to the Frys’ complaint: “[E.F.] was being successful in [the] school environment without the service animal, ... all of her needs were being met by the program and services in place, and ... adding the service animal would not be beneficial to [E.F.].” These statements either directly contradict the injuries alleged in the Frys’ complaint or reflect an excessively narrow conception of educational success contradicted by the text of the IDEA. Either way, the Frys could have relied on the injuries alleged in the complaint here (or on the likelihood of those injuries arising in the future) to challenge the IEP team’s conclusion under IDEA procedures.

Had the Frys pursued IDEA procedures at this point, they would have achieved one of two outcomes. Either they would have prevailed and effectively resolved their dispute without litigation, making it possible for E.F. to attend school with Wonder, or else they would have failed but in the process generated an administrative record that would have aided the district court in evaluating their complaint. The IDEA’S purposes of giving state educational agencies the opportunity to ensure compliance with federal law and ensuring that local experts are able to analyze disputes before litigation begins are well served by requiring exhaustion here.

First, IDEA procedures would in fact have been capable of resolving the Frys’ dispute. E.F.’s IEP already provided for a human aide to accompany her while at school; it could just as well have provided for her service animal. Further, as the Second Circuit in Cave has noted in similar circumstances, measures and policies designed to minimize the disruption caused by a service animal at school (a concern raised by school officials in refusing to permit Wonder to accompany E.F.) would also best be addressed through changes to an IEP. 514 F.3d at 247-48. The Frys’ complaint alleges a basis under the IDEA for E.F. to attend school with Wonder, and IDEA procedures would have allowed the Frys and school officials to work out exactly how the school should adapt to Wonder’s presence.

Second, the record IDEA procedures would have created in this dispute would have been directly relevant to analysis of the Frys’ complaint under the ADA and the Rehabilitation Act. In order to prevail in their ADA claim, the Frys would have to show that permitting Wonder at school is “necessary to avoid discrimination on the basis of disability.” 28 C.F.R. § 35.130(b)(7). Under the allegations in their complaint, this can be the case only because of Wonder’s contribution to and role in E.F.’s education — an issue that would be extensively analyzed in IDEA procedures. The Frys would have to make a similar showing under the Rehabilitation Act. 29 U.S.C. § 794(a); 34 C.F.R. § 104.4. Thus the IDEA exhaustion requirement’s purpose of allowing courts to benefit from the development of an administrative record also suggests that exhaustion should be required.

Although the Frys seek money damages, a remedy unavailable under the IDEA, rather than an injunction, this does not in itself excuse the exhaustion requirement. F.H., 764 F.3d at 643; Covington v. Knox Cnty. Sch. Sys., 205 F.3d 912, 916 (6th Cir.2000). Otherwise, plaintiffs could evade the exhaustion requirement simply by “appending a claim .for damages.” 205 F.3d at 917.

It is true that IDEA procedures, which could at best require Ezra Eby Elementary to permit Wonder to accompany E.F. at school, would not at present be effective in resolving the Frys’ dispute. First, E.F. no longer attends Ezra Eby Elementary, and her current school and school district permit Wonder to accompany her. Second, before the Frys decided to transfer E.F., the defendants settled the Frys’ ADA complaint before the Department of Education’s Office of Civil Rights and agreed to permit Wonder to accompany E.F. at school; IDEA procedures could not have produced a substantially better outcome.

On appeal, the Frys do not argue that, under Covington, the above circumstances render exhaustion of IDEA procedures futile. See 205 F.3d at 917-18. Indeed, their argument does not rely on the procedural posture of their dispute at all. We therefore cannot decide whether the exhaustion requirement should be excused as futile. However, it is far from clear that the Frys’ circumstances satisfy the requirements for futility under Covington. In the “unique circumstances” of that case, we distinguished precedent that required exhaustion when relief under IDEA was . unavailable due to the plaintiff parents’ “unilateral act” of removing their child from the defendant school. Id. at 917, 918 (quoting Doe v. Smith, 879 F.2d 1340, 1343 (6th Cir.1989)). That is, plaintiffs cannot evade the exhaustion requirement by sin-glehandedly rendering the dispute moot for purposes of IDEA relief. While that is not exactly the case here, the Frys’ failed to use IDEA procedures at any point during the almost two-and-a-half year period in which the school refused permission for Wonder to accompany E.F. The plaintiff in Covington, in contrast, participated, albeit imperfectly, in the IDEA’S appellate procedures prior to her son’s graduating from the school where the dispute arose. Id. at 914. The Frys may thus bear some responsibility for the present inapplicability of IDEA procedures, and the futility doctrine may be inapplicable.

In arguing that the exhaustion requirement does not apply to their claim, the Frys rely chiefly on a federal district court decision in California in which the court refused to require exhaustion for a wheelchair-bound student’s request for a service dog at school. Sullivan v. Vallejo City Unified Sch. Dist., 731 F.Supp. 947 (E.D.Cal.1990). But applying that case’s logic to this complaint would allow any ADA or Rehabilitation Act lawsuit to avoid the IDEA exhaustion requirement by not explicitly alleging a denial of a FAPE. The decision in Sullivan viewed a Rehabilitation Act claim as, in effect, asking questions distinct from those considered by IDEA procedures:

[O]nee plaintiff has made a threshold showing that her decision to use the service dog is reasonably related to her disability, the sole issue to be decided under section 504 [of the Rehabilitation Act] is whether defendants are capable of accommodating plaintiffs choice to use a service dog. The issue of whether the service dog enhances plaintiffs educational opportunities, which is central to the EHA [the IDEA’S predecessor] inquiry, is completely irrelevant under section 504.

Id. at 951. This logic does not hold, because, as explained above, having Wonder at school, in addition to a human aide, is “reasonably related” to E.F.’s disability only because Wonder “enhances [E.FJs educational opportunities.” The analysis that would be necessary under the IDEA thus must be incorporated into the ADA and Rehabilitation Act analysis for the Frys to prevail under the latter statutes. The Frys do not in so many words state that Wonder enhances E.F.’s educational opportunities, but if this is enough to avoid the exhaustion requirement, then any carefully pleaded claim under the ADA or Rehabilitation Act could evade the exhaustion requirement.¹ But the text of the IDEA exhaustion requirement clearly anticipates that the requirement will apply to some ADA and Rehabilitation Act claims. 20 U.S.C. § 1415(l). Instead, at minimum, the exhaustion requirement must apply when the cause of action “arise[s] as a result of a denial of a [FAPE]” — that is, when the legal injury alleged is in essence a violation of IDEA standards. Payne, 653 F.3d at 875.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

1 . At oral argument, the Frys proposed a somewhat more nuanced standard based on whether a disabled parent visiting the school would be entitled to the same accommodation as that sought by the student. This test was not articulated in the Frys' briefs, and it does not appear to be fully consistent with F.H. and S.E. Under those cases, whether a disabled student must exhaust IDEA procedures prior to bringing an ADA or Rehabilitation Act claim for a certain accommodation at school depends on whether the student's allegations relate to the denial of a FAPE or could be resolved through IDEA procedures. That a parent might justifiably claim a similar accommodation when visiting a school does not guarantee that the result of either of those inquiries will be negative, because the parent receives the accommodations in a different context (as an adult visitor, not as an everyday child attendee) and with different consequences.