                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                    April 2, 2018
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 A.P., IV, (“LT”), a child by his father
 Anthony Porco, III,

              Plaintiff - Appellant,

 v.                                                     No. 17-1114
                                                (D.C. No. 16-CV-01584-RBJ)
 LEWIS PALMER SCHOOL                                     (D. Colo.)
 DISTRICT NO. 38, ANTHONY
 KARR; JAMES PORTER,
 STEPHANIE KUGLER, GARY
 GABEL, KAREN BROFFT, ROBERT
 FOSTER, TAMARA HARDIN,
 JENNIFER DAY, and SEAN
 O’CONNOR,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, BACHARACH, and MORITZ, Circuit
Judges.


      Appellant LT brought suit against Lewis Palmer School District under the

Americans with Disabilities Act (ADA), the Rehabilitation Act (Section 504), and



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
the Individuals with Disabilities Education Act (IDEA), as well as under state

law. He alleges the School District failed to halt disability-related bullying that

left him with depression, post-traumatic stress disorder, and educational injuries.

He also alleges the School District wrongfully expelled him, blaming him for

altercations stemming from the bullying. The district court dismissed LT’s

federal claims on the grounds that he did not exhaust his administrative remedies

as required by the IDEA.

      We affirm. LT did not exhaust the IDEA’s required procedures and

forfeited the other arguments he advances on appeal.

                                 I. Background

      As alleged in his complaint, LT suffers from ADHD and impulse control

disorder. In grade school, LT’s school placed him on an individualized education

program (IEP) and on a Rehabilitation Act plan to better accommodate his

disabilities. In seventh grade, he was taken off the IEP.

      Beginning in eighth grade, LT’s classmates persistently bullied him

because of his disabilities. They would taunt him, attempting to provoke a

reaction. The provocateurs apparently succeeded, and LT claims the school

unfairly disciplined him for his misbehavior without taking into account its

disability-related origin.

      LT’s parents repeatedly complained about the bullying to the School

District, but the District did nothing to stop it. The bullying continued for several

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years, causing LT to suffer from depression and post-traumatic stress disorder.

LT’s behavioral outbursts continued as well. In response, the school placed LT

on several behavioral contracts, none of which succeeded. Eventually, his

behavior escalated to threats—including a threat to “shoot up the school.” App.

13.

      In April 2015, in light of the ongoing misbehavior, the School District

considered expelling LT and proceeded to an expulsion hearing. In doing so,

however, the District failed to determine whether the misbehavior at issue was a

“manifestation” of LT’s disabilities, as regulations implementing the

Rehabilitation Act require. See 34 C.F.R. §§ 104.35–104.36. After LT’s parents

objected, the District reconsidered and conducted a manifestation hearing. LT

claims that hearing was still defective. The District then held another expulsion

hearing—allegedly without properly notifying LT—and expelled LT.

      LT’s parents responded by filing a complaint with the Office of Civil

Rights at the Department of Justice. Following an OCR investigation, the School

District entered into a Voluntary Resolution Agreement with the OCR. The

District consented to monitoring by the OCR, agreed to conduct an investigation

into LT’s misbehavior, and agreed to conduct a new expulsion hearing. At the

new expulsion hearing on November 5, 2015, the School District again decided to

expel LT.




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       In June 2016, LT sued the School District under the IDEA, the ADA, and

the Rehabilitation Act, seeking damages, a reversal of his expulsion, and

attorneys’ fees. LT claimed the District’s failure to protect him from disability-

motivated bullying caused him intense emotional injuries as well as educational

injuries. He further claimed the District wrongfully expelled him because of his

disability and violated several procedural requirements under the relevant

statutes.    Finding LT had not exhausted his administrative remedies under the

IDEA, the district court granted the School District’s motion to dismiss LT’s

federal claims for lack of subject matter jurisdiction. The court also dismissed

LT’s state law claims for lack of pendent jurisdiction.

                                    II. Analysis

       The IDEA guarantees children with disabilities a “free appropriate public

education,” or FAPE, mainly through implementation of “individualized

education programs,” or IEPs. Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743,

748–49 (2017). At the same time, Title II of the ADA forbids public entities from

discriminating against persons with disabilities. See 42 U.S.C. §§ 12131–12132.

And rounding out the trio, the Rehabilitation Act requires public schools (among

other entities) to reasonably accommodate students with disabilities. See 29

U.S.C. § 794; Alexander v. Choate, 469 U.S. 287, 299–301 (1985).

       But before students can bring suit under these statutes, they must satisfy the

IDEA’s exhaustion requirement. The IDEA requires persons with IDEA claims to

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proceed through a series of administrative steps before they may file a suit in

court. See Fry, 137 S. Ct. at 749 (detailing the steps). The same exhaustion

requirement applies to claims under the ADA or the Rehabilitation Act if those

claims are “seeking relief that is also available under” the IDEA. 20 U.S.C.

§ 1415(l). In other words, persons with ADA or Rehabilitation Act claims that

seek similar kinds of relief as a claim under the IDEA cannot file a suit in court

unless they have already undergone the administrative procedures the IDEA

requires. See Fry, 137 S. Ct. at 749; Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d

1058, 1065–67 (10th Cir. 2002).

      LT brought claims under all three of these statutes without first following

the particular exhaustion steps listed in the IDEA. For that reason, the district

court dismissed those claims.

      On appeal, LT makes several arguments as to why the IDEA’s exhaustion

requirement does not apply to his ADA and Rehabilitation Act claims, but he has

forfeited these arguments because he did not raise them below. In the

proceedings below, LT never argued (as he does now) that the IDEA’s exhaustion

requirement did not apply to his claims because seeking an administrative remedy

would have been futile. Similarly, he did not allege the School District caused

his failure to exhaust by failing to notify him about his available remedies. And

LT never claimed he was alleging systemic violations of law within the District.

In fact, as the district court noted, LT did “not contest” that his claims were

                                          -5-
subject to IDEA exhaustion at all. App. 73. He instead argued only that he had

met his burden by other means (acknowledging he had not followed the specific

steps outlined in the IDEA) and that the District had waived the exhaustion

requirement. Indeed, LT might have even conceded the IDEA’s exhaustion

requirement applies to his ADA and Rehabilitation Act claims in his response to

the School District’s motion to dismiss. See App. 51.

      Because LT did not raise these issues below and does not argue plain error

now, we do not consider them on appeal. See Ave. Capital Mgmt. II, L.P. v.

Schaden, 843 F.3d 876, 886 (10th Cir. 2016).

      In spite of this forfeiture, however, LT argues the Supreme Court’s recent

decision in Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017), supports

his argument that the IDEA’s exhaustion requirement does not apply to his ADA

and Rehabilitation Act claims. LT asks us to consider the applicability of Fry to

this case because the Supreme Court decided Fry on February 22, 2017—about a

week before the district court issued its decision on March 2, 2017, and months

after the parties briefed the motion to dismiss.

      We decline to consider the argument. Regardless of Fry’s effect on the

question at issue, LT did not contest that the IDEA exhaustion requirement

applied to his claims even though he could have under then-existing law. See

Cudjoe, 297 F.3d at 1066–67; Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775,

785–86 (10th Cir. 2013). And if LT thought he had a better case under Fry, he

                                          -6-
could have moved for reconsideration on the basis of Fry below. He did not do

so. Although we normally would consider the applicability of a new Supreme

Court case to an issue on appeal, we do not do so for arguments that were not

preserved below. 1

      As for the arguments LT did raise below, they are similarly unavailing.

First, LT contends his filing of a complaint with the Office of Civil Rights of the

Department of Justice, as well as several other hearings at the school, somehow

met the very different prerequisites of the IDEA. We, like the district court, find

no merit in this assertion. And LT’s argument that the School District waived its

exhaustion defense by signing the Voluntary Resolution Agreement with the

Department of Justice fares no better. Nothing in the agreement purports to waive

any exhaustion requirement, and nothing indicates the School District

acknowledged systemic violations of law. 2




      1
         In any event, LT’s proposed amended complaint specifically alleges
“denial of a Free Appropriate Public Education” by the School District in Count I
and Count II. App. 19. It further alleges the District’s actions “denied LT the
benefits of [the School District’s] educational services solely because of LT’s
disability.” Id. These allegations are a far cry from the generalized disability
related allegations in Fry, which involved the wrongful denial of a service dog for
a child with cerebral palsy. See 137 S. Ct. at 750–51.
      2
        Given our resolution of this issue, we find it unnecessary to address the
School District’s argument that IDEA exhaustion is jurisdictional and cannot be
waived.

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Accordingly, we AFFIRM the district court.

                                  ENTERED FOR THE COURT

                                  Timothy M. Tymkovich
                                  Chief Judge




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