                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-1756
                        ___________________________

                       J.M., Next Friend Kristine McCauley

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                          Francis Howell School District

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                            Submitted: January 10, 2017
                               Filed: March 7, 2017
                                  ____________

Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
                              ____________

BENTON, Circuit Judge.

      On behalf of her minor son, J.M., Kristine McCauley sued Francis Howell
School District, claiming unlawful use of isolation and physical restraints. Her
second amended complaint asserted violations of: (1) the Equal Protection Clause of
the Fourteenth Amendment; (2) 42 U.S.C. §§ 1983 and 1988; (2) the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12182; (3) Section 504 of the Rehabilitation Act
of 1973; and (4) the Missouri Human Rights Act (MHRA), RSMo § 213.010 et seq.
The district court1 dismissed the federal claims for “lack of subject matter jurisdiction
for failure to exhaust administrative remedies” and declined to exercise supplemental
jurisdiction over the MHRA claim, dismissing it without prejudice.2 Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.

       In 2011, J.M. began kindergarten in the Francis Howell School District. J.M.
qualified for services under the Individuals with Disabilities Education Act (IDEA)
based on his diagnoses of attention deficit hyperactivity disorder, autism spectrum
disorder, anxiety disorder, separation anxiety disorder, panic disorder,
Asperger’s/autism spectrum disorder, and generalized anxiety. See 20 U.S.C. § 1400
et seq. Under the IDEA, J.M. had an Individualized Education Program (IEP).




      1
       The Honorable Nannette A. Baker, United States Magistrate Judge for the
Eastern District of Missouri, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
      2
         The parties and the district court treat the IDEA’s exhaustion requirement as
jurisdictional rather than a claims-processing rule. Compare Payne v. Peninsula
School Dist., 653 F.3d 863, 870 (9th Cir. 2011) (en banc) (“In sum, we hold that the
exhaustion requirement in § 1415(l) is not jurisdictional.”), with Polera v. Bd. of
Educ. of the Newburgh Enlarged City School Dist., 288 F.3d 478, 483 (2nd Cir.
2002) (“A plaintiff’s failure to exhaust administrative remedies under the IDEA
deprives a court of subject matter jurisdiction.”). Here, neither party requested a
ruling on this issue. “Because the District has not waived the exhaustion argument
and . . . [McCauley was] required to exhaust . . . administrative remedies, [this court]
need not reach this issue.” See J.B. ex rel. Bailey v. Avilla R-XIII School Dist., 721
F.3d 588, 593 n.2 (8th Cir. 2013), citing Muskrat v. Deer Creek Pub. School, 715
F.3d 775, 784-85 (10th Cir. 2013) (declining to consider whether the IDEA’s
exhaustion requirement was jurisdictional because the parties did not raise the issue
and the defendants argued exhaustion in the district court).

                                          -2-
       McCauley alleges that between January 2012 and September 2014, J.M.
repeatedly was placed in physical restraints and isolation without her knowledge.
Learning of this, she immediately contacted the District, requesting restraints only
when necessary and no isolation. On September 5, McCauley removed J.M. from the
District.

       McCauley sued in federal court under the IDEA, 42 U.S.C. §§ 1983 and 1988,
and Missouri common law (torts of negligence per se, false imprisonment, and
battery). She amended the complaint to add claims under the ADA and MHRA. The
District answered, claiming failure to exhaust administrative remedies for the federal
claims, and sovereign immunity for the common law tort claims. McCauley
voluntarily amended her complaint, removing the IDEA and common law tort claims.
Her second amended complaint thus included claims under the Equal Protection
Clause, 42 U.S.C. §§ 1983 and 1988, the ADA, Section 504 of the Rehabilitation Act
of 1973, and the MHRA.

       The District moved to dismiss, alleging lack of subject matter jurisdiction for
failure to exhaust administrative remedies under the IDEA. McCauley argued her
claims were not under the IDEA, and thus not subject to exhaustion. In the
alternative, she asserted exceptions to the exhaustion requirement. The district court
granted the motion to dismiss.

                                          I.

       This court reviews de novo whether exhaustion of administrative remedies was
required. J.B. ex rel. Bailey v. Avilla R-XIII School Dist., 721 F.3d 588, 592 (8th
Cir. 2013), citing Brown v. J.B. Hunt Transp. Servs., Inc., 586 F.3d 1079, 1083 n.4
(8th Cir. 2009).




                                         -3-
       “In the IDEA, Congress established procedural safeguards to ensure individuals
with disabilities will have the opportunity to obtain a free appropriate public
education (FAPE).” Id., citing 20 U.S.C. § 1415(a). One safeguard is an opportunity
to present complaints about the provision of a FAPE in “an impartial due process
hearing.” Id., quoting Honig v. Doe, 484 U.S. 305, 311-12 (1988). See 20 U.S.C.
§ 1415(f). “A party aggrieved by the outcome of an IDEA due process hearing may
challenge the outcome before the state educational review agency.” J.B., 721 F.3d
at 592, citing 20 U.S.C. § 1415(g)(1). “The outcome of the administrative review
hearing may then be disputed in district court.” Id., citing 20 U.S.C. § 1415(i)(2)(A).

       The IDEA’s exhaustion requirement also applies to claims under the
Constitution, the ADA, the Rehabilitation Act, and other federal laws protecting
children with disabilities to the extent those claims seek relief “that is also available
under [the IDEA].” 20 U.S.C. § 1415(l); Fry v. Napoleon Cmty. School, No. 15-497,
2017 WL 685533, at *8 (U.S. Feb. 22, 2017) (“Section 1415(l) requires that a
plaintiff exhaust the IDEA’s procedures before filing an action under the ADA, the
Rehabilitation Act, or similar laws when (but only when) her suit ‘seek[s] relief that
is also available’ under the IDEA.”); J.B., 721 F.3d at 592 (“[B]efore parties may
bring a claim in district court under a different statute for which they seek relief
which is also available under the IDEA, the parties must first exhaust the
administrative remedies under the IDEA.”). After argument in this case, the Supreme
Court held that “‘relief that is also available’ under the IDEA” means “relief for the
denial of a FAPE, because that is the only ‘relief’ the IDEA makes ‘available.’” Fry,
2017 WL 685533, at *8. Thus, “exhaustion is not necessary when the gravamen of
the plaintiff’s suit is something other than the denial of the IDEA’s core
guarantee—what the Act calls a ‘free appropriate public education.’” Id., at *3,
quoting § 1412(a)(1)(A).

       “[D]etermining whether a suit indeed ‘seeks’ relief for [denial of a FAPE], a
court should look to the substance, or gravamen, of the plaintiff’s complaint.” Id.,

                                          -4-
at *8. The inquiry “does not ride on whether a complaint includes (or, alternatively,
omits) the precise words(?) ‘FAPE’ or ‘IEP.’” Id., at *11. Rather, “[i]n addressing
whether a complaint fits that description, a court should attend to the diverse means
and ends of the statutes covering persons with disabilities—the IDEA on the one
hand, the ADA and Rehabilitation Act (most notably) on the other.” Id.

      The IDEA, of course, protects only “children” (well, really, adolescents
      too) and concerns only their schooling. § 1412(a)(1)(A). And as earlier
      noted, the statute’s goal is to provide each child with meaningful access
      to education by offering individualized instruction and related services
      appropriate to her “unique needs.” § 1401(29); see Rowley, 458 U.S.,
      at 192, 198, 102 S. Ct. 3034; supra, at ––––. By contrast, Title II of the
      ADA and § 504 of the Rehabilitation Act cover people with disabilities
      of all ages, and do so both inside and outside schools. And those
      statutes aim to root out disability-based discrimination, enabling each
      covered person (sometimes by means of reasonable accommodations)
      to participate equally to all others in public facilities and federally
      funded programs.

Id. “A further sign that the gravamen of a suit is the denial of a FAPE can emerge
from the history of the proceedings. In particular, a court may consider that a plaintiff
has previously invoked the IDEA’s formal procedures to handle the dispute.” Id., at
*13.

                                           II.

      McCauley did not file an IDEA due process complaint, request a due process
hearing, or engage in the exhaustion procedures under the IDEA. See 20 U.S.C. §
1415(f), (g), (l). She argues exhaustion is not required because she does not seek
relief available under the IDEA. The question here is whether the complaint is based
on the District’s denial of a FAPE. Fry, 2017 WL 685533, at *8 (“[T]he thing a



                                          -5-
plaintiff must seek in order to trigger § 1415(l)’s exhaustion rule—is relief for the
denial of a FAPE.”).

       Considering “substance, not surface,” the district court did not err in finding
the complaint seeks relief for denial of a FAPE under the IDEA. Id., at *11. The
second amended complaint states, “At all times mentioned above, [J.M.] was entitled
to the educational services and protections available under the Individuals with
Disabilities Education Act of 1975” and “at all times [J.M. was] entitled to reasonable
accommodations” for his disabilities. It alleges that “[b]etween February 2014 and
September 5, 2014, J.M. was placed in physical restraints for half of the time he
actually spent at Defendant’s schools.” It further states that J.M. was “denied . . .
because of his disability, participation in and the benefits of a public education.”
These allegations show that the complaint was based on the “denial of a FAPE” under
the IDEA. See id., at *13 (determining the Fry’s complaint “alleges only disability-
based discrimination” and “contains no allegation . . accus[ing] the school even in
general terms of refusing to provide the educational instruction and services that E.F.
needs”).

       “As defined in the Act, a FAPE comprises ‘special education and related
services’—both ‘instruction’ tailored to meet a child’s ‘unique needs’ and sufficient
‘supportive services’ to permit the child to benefit from that instruction.” Id., at *4,
citing 20 U.S.C. §§ 1401(9), (26), (29). The ADA and Section 504, on the other
hand, forbid public entities and federally funded programs or activities from
discriminating based on disability. Id., at *5. The complaint here is not based on
disability discrimination. Except for Count IV (the MHRA claim), the complaint
does not use the word “discrimination.” Rather, the complaint is based on how the
use of isolation and physical restraints failed to provide proper “sufficient ‘supportive
services’ to permit [J.M.] to benefit from . . . instruction,” id., at *4, and ultimately
“denied [J.M.] . . . the benefits of public education.” Finally, although McCauley did
not “invoke[] the IDEA’s formal procedures to handle the dispute,” “the history of the

                                          -6-
 proceedings,” including her initial complaint and first amended complaint contained
claims under the IDEA, which is “[a] further sign that the gravamen of [the] suit is
the denial of a FAPE.” See id., at *13.

        As noted, the Fry decision issued after argument in this case. But, the cases
McCauley relies on—Moore v. Kansas City Public Schools, 828 F.3d 687 (8th Cir.
2016) and Muskrat v. Deer Creek Public Schools, 715 F.3d 775 (10th Cir. 2013)—do
not change this analysis. In both, the complaints alleged common law torts seeking
redress for non-educational injuries. Moore, 828 F.3d at 692 (“The gravamen of the
petition is a state law action for damages seeking redress for the brutal injuries D.S.
suffered as the result of repeated sexual assault and rape while under Southwest’s
supervision.”); Muskrat, 715 F.3d at 785 (“No authority holds that Congress meant
to funnel isolated incidents of common law torts into the IDEA exhaustion regime.
. . . Here, the Muskrats have alleged three scattered instances of potential battery. All
three instances appear to have resulted from simple frustration with [the student]
rather than any legitimate disciplinary goal.”). McCauley does not allege any
common law torts as the foundation for non-educational injuries. In fact, she
voluntarily removed the common law tort claims from her second amended
complaint. Moreover, the allegations show J.M.’s injuries were education-related:
“Defendant’s employees and agents had used isolation and restraint as a disciplinary
tool, for their own convenience and in violation of their own policies.” (emphasis
added).

      Unlike the Moore complaint—which referred to the plaintiff’s IEP “solely to
show notice to the [school district] of the conditions that put D.S. at risk from other
students”—the complaint here shows the IEP is a “central dispute of this litigation.”
Moore, 828 F.3d at 692. The complaint alleges: “Defendant repeatedly and
consistently violated Plaintiff’s rights by utilizing isolation and restraint on J.M.
which were not permitted within his IEPs.” (emphasis added). The claims here are
based on the failure to implement J.M.’s IEP, specifically regarding discipline. See

                                          -7-
Muskrat, 715 F.3d at 785 (“[A] timeout-related claim must be exhausted through the
IDEA’s statutory procedures.”).

       McCauley also believes the complaint is not subject to exhaustion because it
seeks relief not available under the IDEA, namely compensatory and punitive
damages. While the IDEA allows attorney’s fees and costs (which McCauley seeks),
20 U.S.C. § 1415(i)(3)(B), compensatory and punitive damages are not available.
Bradley v. Ark. Dep’t of Educ., 301 F.3d 952, 957 (8th Cir. 2002). In Fry, the
Supreme Court declined to address whether exhaustion is required “when the plaintiff
complains of the denial of a FAPE, but the specific remedy she requests—here,
money damages for emotional distress—is not one” the IDEA provides. Fry, at *8
n.4. However, this court has noted that “the IDEA’s exhaustion requirement remains
the general rule, regardless of whether the administrative process offers the particular
type of relief that is being sought.” J.B., 721 F.3d at 595, quoting M.P. ex rel. K. v.
Indep. School Dist. No. 721, 326 F.3d 975, 980 (8th Cir. 2003). See Muskrat, 715
F.3d at 785 (holding “a plaintiff cannot avoid exhaustion simply because he or she
asks for damages”); Frazier v. Fairhaven School Comm., 276 F.3d 52, 64 (1st Cir.
2002) (“[W]e hold that plaintiffs who bring an IDEA-based claim under 42 U.S.C. §
1983, in which they seek only money damages, must exhaust the administrative
process available under the IDEA as a condition precedent to entering a state or
federal court.”); Covington v. Knox Cnty. School Sys., 205 F.3d 912, 917 (6th Cir.
2000) (“[W]e agree with those courts that have decided that a mere claim for money
damages is not sufficient to render exhaustion of administrative remedies
unnecessary.”); N.B. by D.G. v. Alachua Cnty. School Bd., 84 F.3d 1376, 1379 (11th
Cir. 1996) (holding that plaintiffs cannot avoid the exhaustion requirement by
limiting relief to money damages because otherwise, “future litigants could avoid the
exhaustion requirement simply by asking for relief that administrative authorities
could not grant”). McCauley’s voluntary decision to remove J.M. from school, and
thus seek only compensatory and punitive damages rather than compensatory
education services, does not exempt her from the exhaustion requirement.

                                          -8-
      Because McCauley’s complaint seeks relief available under the IDEA, denial
of a FAPE, the claims are subject to exhaustion, barring an applicable exception.

                                          II.

       There are three exceptions to the exhaustion requirement: (1) futility, (2)
“inability of the administrative remedies to provide adequate relief,” and (3) “the
establishment of an agency policy or practice of general applicability that is contrary
to law.” J.B., 721 F.3d at 594, quoting Blackmon ex rel. Blackmon v. Springfield
R–XII School Dist., 198 F.3d 648, 656 (8th Cir. 1999). “A court deciding whether
to waive exhaustion should be ‘guided by the policies underlying the exhaustion
requirement.’” Id., quoting Bowen v. City of New York, 476 U.S. 467, 484 (1986).

      Exhaustion is generally required as a matter of preventing premature
      interference with agency processes, so that the agency may function
      efficiently and so that it may have an opportunity to correct its own
      errors, to afford the parties and the courts the benefit of its experience
      and expertise, and to compile a record which is adequate for judicial
      review.

Id., quoting Bowen, 476 U.S. at 484.

      McCauley contends the futility and inadequate remedy exceptions apply.

                                          A.

      McCauley believes exhaustion would have been futile because she, like the
Muskrat plaintiffs, attempted to address the problem by directly contacting the
school. In Muskrat, however, the plaintiffs made greater attempts to work “through
administrative channels to obtain the relief they sought.” Muskrat, 715 F.3d at 786.
They made written and oral demands to school administrators, conferred during an

                                         -9-
IEP meeting about the relief sought, and modified the IEP to accommodate their
concerns. Id. McCauley, on the other hand, alleges only that she “contacted school
district officials to have the isolation immediately stopped, and consented only to
restraint on a basis of necessity.” Although the complaint alleges “[s]he did not
consent to isolation in the IEP team meetings,” it does not allege she sought to
address her concerns with isolation and physical restraint through the IEP process or
modified J.M.’s IEP to reflect those concerns.

       McCauley also claims the administrative process would not have addressed all
her claims. This, however, does not excuse exhaustion. See J.B., 721 F.3d at 594-95.
Although the administrative process may not address all claims, this court has held
exhaustion is not futile because it would allow “the agency to develop the record for
judicial review and apply its expertise” to the plaintiff’s “claims to the extent those
claims are related to implementation” of the IEP. Id.

                                          B.

        McCauley contends the administrative process cannot provide adequate relief,
compensatory and punitive damages. As discussed, this argument is without merit.
See J.B., 721 F.3d at 595 (“[T]he IDEA’s exhaustion requirement remains the general
rule, regardless of whether the administrative process offers the particular type of
relief that is being sought.”).

     The district court properly dismissed the complaint for failure to exhaust
administrative remedies.

                                    *******
      The judgment is affirmed.

               __________________________________________


                                         -10-
