     James B. GARDNER and Sally I. Gardner, Plaintiffs–Appellees,

                                          v.

            SCHOOL BOARD CADDO PARISH, Defendant–Appellant.

                                   No. 91–4859

                               Summary Calendar.

                      United States Court of Appeals,

                                  Fifth Circuit.

                                April 14, 1992.

Appeal from the United States District Court for the Western
District of Louisiana.

Before JOLLY, DAVIS, and SMITH, Circuit Judges.

       E. GRADY JOLLY, Circuit Judge:

       Parents of a handicapped child seek to enjoin the enforcement

of the local school board's policy that places limitations on tape

recordings of parent/teacher conferences. The parents, seeking the

unrestricted right to record, contend that their rights under the

Individuals with Disabilities Act ("IDEA")1 were violated by the

policy. The school board moved to dismiss and for summary judgment

on    the   grounds    that,   because     the    parents     failed   to   exhaust

administrative        remedies,     the    district      court   did    not    have

jurisdiction     and,    alternatively,          that   the   school   board    had

authority to enforce its policy.               The plaintiffs also moved for

summary judgment arguing that exhaustion was futile, and that they

had the right to record a conference about their handicapped child.



       The district court denied the school board's motions and


       1
        20 U.S.C. §§ 1400 et seq.
granted the plaintiffs' motion for summary judgment.                   The district

court held that exhaustion was futile, that it had jurisdiction and

that the parents had the right to record conferences.                   We hold that

the   district   court   erred      in    not    dismissing      the    case:     The

plaintiffs   did   not   exhaust         their   administrative        remedies    as

required by the Act;       nor did they bear their burden of showing

that exhaustion would be futile.              Thus, we vacate the order of the

district court and dismiss the appeal.



                                          I

      James and Sally Gardner filed a complaint in federal district

court against the Caddo Parish School Board seeking declaratory and

injunctive relief. They petitioned the court to declare the School

Board's tape recording regulation illegal and unenforceable.                     They

also sought to enjoin enforcement of the policy.



      The School Board moved to dismiss the case for lack of

jurisdiction     because      the    Gardners        did    not        exhaust    the

administrative     remedies    and       because    they   did    not    present    a

justiciable controversy.         Thereafter, both the Gardners and the

School Board moved for summary judgment.



      The district court granted the Gardners' motion for summary

judgment and denied the School Board's motions.                  The School Board

appeals.



                                          II
     James    and    Sally     Gardner     have    a   daughter,    Kelly,   who    is

enrolled as a special education student at Byrd High School in

Shreveport, Louisiana.          Kelly is entitled to the protection and

benefit of the IDEA.          Under the Act, the School Board is required

to give Kelly a free and appropriate public education designed to

meet her unique needs through the formulation of an Individualized

Education Program ("IEP").             The IEP is devised by the student's

parent or guardian and the student's teacher or a representative of

the local education agency.



     An IEP consists of a written statement of the child's present

education     performances,          establishes       annual    and   short     term

instructional objectives, describes the special education services

that will be provided to the child, and sets forth the criteria and

procedures that will be used to evaluate whether these educational

goals have been achieved.              20 U.S.C. § 1401(a)(19).           The IDEA

requires that the IEPs be developed during Planning and Placement

Team meetings between school district representatives, teachers,

parents, and when necessary, the student.



     Under the Act, parents have the right to examine all relevant

records   with      respect    to    the   identification,         evaluation,     and

educational placement of the child, to receive prior written notice

of administrative actions, and to present complaints.                   20 U.S.C. §

1415(b)(1).      When    such       complaints     are   made,   the   parents     are

entitled to an impartial due process hearing conducted by the local

education agency.        § 1415(b)(2).            They can appeal the decision
rendered by the local education agency to the State agency.                    §

1415(c).     If     they    are    dissatisfied     with   the   State   agency's

decision, they can file a civil suit in state court or federal

district court.      § 1415(e)(2).



     On June 6, 1990, the School Board adopted a formal policy,

which regulates the recording of parent conferences.                 The policy

applies to all parent conferences, not just IEP conferences.                   As

originally adopted, the policy stated that recordings would be

permitted    only    when    the    parents   and    all   other   participants

consented.     Prior to the initiation of this suit, however, an

amendment was proposed that allows recording if the authorities

determine that it is necessary to ensure that the parents fully

understand and can meaningfully participate in the IEP process.

The proposed amendment has since been adopted.



     An IEP conference concerning Kelly was scheduled for November

16, 1990.    Prior to the conference, the Gardners requested to have

the conference taped.        The IEP director agreed to video tape, but

not audio tape, the conference if all participants consented.                  At

the time of the conference, one of the participants objected and

the Garners decided to proceed with the conference anyway.



     About five months later, the Gardners wrote the School Board

expressing their view that the policy was illegal.                 Legal counsel

for the School Board rendered an opinion regarding the legality of

the policy which caused the Board to amend the policy.                In June of
1991, the Gardners instituted this action claiming that the policy,

including the proposed amendment, violated their rights under the

Act.



                                           III

       On appeal, the School Board contends that the district court

did    not   have    proper   subject      matter       jurisdiction      because   the

Gardners did not exhaust their administrative remedies as required

by    the    Act   and    because   they    did    not     present    a   justiciable

controversy.        Alternatively, the School Board argues that it has

constitutional and statutory authority to establish and enforce the

policy.      On the other hand, the Gardners contend that the district

court did have subject matter jurisdiction.                       Furthermore, they

argue that the district court was correct in finding that the

policy is contrary to Congress' intent to allow parents full

participation in and understanding of the IEP process.



                                           IV

       The School Board, in its motion to dismiss and its motion for

summary judgment, asserted that the Gardners are required to

exhaust their        administrative        remedies      before    instituting      this

action.      In examining the statute, we find initially that section

1415(b)(1)(E)        guarantees     parents       "an    opportunity      to   present

complaints         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."      Then, section 1415(b)(2) states that whenever the parents
file such a complaint, they are entitled to an impartial due

process hearing conducted by the state or local educational agency.

Next, section 1415(c) provides that if the hearing is conducted by

a local educational agency, "any party aggrieved by the findings

and decision rendered in such a hearing may appeal to the State

educational agency."     Finally, section 1415(e)(2) provides for a

civil action:



       Any party aggrieved by the findings and decision made under
       subsection (b) of this section who does not have the right to
       appeal under subsection (c) of this section, and any party
       aggrieved by the findings and decision under subsection (c) of
       this section, shall have a right to bring a civil action with
       respect to the complaint presented pursuant to this section,
       which action may be brought in any State court of competent
       jurisdiction or in a district court of the United States
       without regard to the amount in controversy. In any action
       brought under this paragraph the court shall receive the
       records of the administrative proceedings, shall hear
       additional evidence at the request of a party, and basing its
       decision on the preponderance of the evidence, shall grant
       such relief as the court determines appropriate.

Before initiating such civil action, however, section 1415(f)

further makes clear that:



       before the filing of a civil action under such laws seeking
       relief that is also available under this subchapter, the
       procedures under subsection (b)(2) and (c) of this section
       shall be exhausted to the same extent as would be required had
       the action been brought under this subchapter.

Thus, it is beyond doubt that the statute provides that a plaintiff

must   first   exhaust   the   state   administrative   remedies   before

bringing an action in federal court, if the complaint is one

falling under § 1415(b)(1)(E), noted above.



        The School Board thus argues that the Gardners complaint is
such a complaint "relating to the identification, evaluation, or

educational placement of the child, or the provision of a free

appropriate public education for such child," and that therefore,

the Gardners were required to exhaust the administrative procedures

discussed above. Indeed, although the Gardners contest this point,

their argument is that it is necessary for them to tape the

conference so that in the event they are dissatisfied with the IEP,

they can use the tape of the conference when filing a complaint

regarding the IEP.     We therefore agree with the School Board that

the Gardners' complaint is a complaint that falls within Section

1415(b)(1)(E),   and    as    such,   is   a    complaint     that    requires

administrative exhaustion.



      The Supreme Court, however, has recognized that although

judicial review is not normally available until the administrative

proceedings    have    been   exhausted,   "parents     may    by-pass        the

administrative   process      where   exhaustion    would     be     futile    or

inadequate."   Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 606,

98 L.Ed.2d 686 (1988).        The district court held that because the

Gardners were challenging the School Board's policy as a whole,

exhaustion would be futile.       We disagree.



     The Gardners bear the burden of demonstrating the futility or

inadequacy of administrative review.           Id. 108 S.Ct. at 606.          The

Gardners, in response to the School Board's motion to dismiss and

motion for summary judgment, argued that exhaustion would be futile

because it was clear that the School Board was not going to change
its policy. The Gardners introduced affidavits in which members of

the School Board stated the reasons for the policy.                   The Gardners

also argued that they tried to negotiate with the School Board and

the School Board refused.        (The Gardners sent a letter to the Board

stating that they thought the policy was illegal and Sally Gardner

objected to the policy at an open School Board meeting).



      Although the Gardners presented some evidence that filing a

complaint at the local level may be futile because the School Board

is the local educational agency, they have not even alleged that an

appeal of the local agency's decision to the state administrative

agency would also be futile. The Gardners therefore have failed to

carry their burden of proving that exhaustion would be futile. See

Cox v. Jenkins, 878 F.2d 414, 418–422 (D.C.Cir.1989);                    Crocker v.

Tennessee Secondary School Athletic Ass'n, 873 F.2d 933, 937 (6th

Cir.1989);          Browning     v.     Evans,     700     F.Supp.       978,     979

(S.D.Ind.1988)).



                                         V

      Consequently, the district court should have granted the

School Board's motion to dismiss or its motion for summary judgment

on   the   grounds     that    the    plaintiffs    did       not   exhaust     their

administrative remedies or prove that exhaustion would be futile.

We   do    not    decide   whether      exhaustion       is    a    jurisdictional

requirement. Quite arguably, it is not because there is a judicial

exception    to    exhaustion    when    exhaustion       would     be   futile    or

inadequate.       At any rate, a complaint based on § 1415(b)(1)(E) is
not a justiciable controversy until the plaintiff has exhausted his

administrative remedies or proved that exhaustion would be futile

or inadequate.   Accordingly, the order of the district court is



     REVERSED and VACATED.
