     Case: 18-20420   Document: 00515142943      Page: 1   Date Filed: 10/02/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                  Fifth Circuit

                                                                      FILED
                                                                   October 2, 2019
                                 No. 18-20420
                                                                   Lyle W. Cayce
                                                                        Clerk
CHRISTOPHER EDWARD MCMILLEN, an Incapacitated Person

                                           Plaintiff - Appellant

v.

NEW CANEY INDEPENDENT SCHOOL DISTRICT,

                                           Defendant - Appellee


                 Appeal from the United States District Court
                      for the Southern District of Texas


Before BARKSDALE, STEWART, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      In exchange for federal funding of special education services, schools
must provide a “free appropriate public education” to students with physical
or mental disabilities. 20 U.S.C. § 1412(a)(1)(A). As part of that deal, the
Individual with Disabilities Education Act (IDEA) requires administrative
procedures to address disputes about a disabled student’s education. If those
procedures do not fix the problem, parents may file a lawsuit to assert their
children’s rights. But the IDEA requires exhaustion of the administrative
process before a suit may be filed over the denial of a free appropriate public
education. See id. § 1415(i)(2)(A). The exhaustion requirement is not limited
to suits enforcing the IDEA. It applies to suits under any laws that “seek[]
relief that is also available under” the IDEA. Id. § 1415(l).
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        We must decide whether the exhaustion requirement applies to this suit
seeking damages under the Rehabilitation Act and section 1983 for a student’s
expulsion from high school. In answering that question, we decide for the first
time in our circuit whether the IDEA’s exhaustion requirement applies when
the plaintiff seeks a remedy that the IDEA does not supply.
                                       I.
        Because this suit was dismissed at the pleading stage, we assume the
following allegations to be true. Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009.
        Chris McMillen was enrolled in New Caney Independent School District
from age 4 (pre-kindergarten) until early in his junior year of high school.
During those years, the district developed and implemented an individualized
education program (IEP) for McMillen, who had been diagnosed with autism
spectrum disorder, emotional disturbance, and central-auditory-processing
disorder. The program successfully managed his behavioral challenges for
several years.
        McMillen’s behavior worsened during his sophomore year to the point
that he was threatening to harm himself and others daily. The committee
overseeing McMillen’s IEP met three times that year. By the middle of the
year, McMillen was placed in the district’s Pass Program, which is for students
who “have demonstrated either serious emotional disturbance or behavior
disorders” and have “not responded to less intrusive interventions.”
        Despite the problems during McMillen’s sophomore year, the district
returned him to the regular school setting for his junior year. His IEP for his
junior year abandoned measures, like participation in the Pass Program, that
had proven successful. McMillen’s parents complained about the changes, but
New Caney refused to amend his IEP. The new plan was “woefully inadequate


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and intentionally indifferent” to McMillen’s needs.
      McMillen’s return to the traditional classroom put him in Margaret
Hudman’s English class. Hudman tried to “save” McMillen, in two senses of
the word. She encouraged McMillen to take herbal supplements that she
thought could cure his autism.       She also tried to convert McMillen to
Christianity, believing that if he converted his disabilities would be cured.
      About a month into the school year, Hudman gave up and tried to have
McMillen expelled. She collected material that McMillen wrote during class
and their informal sessions which, taken out of context, made McMillen appear
dangerous. Hudman emailed these materials to school administrators, who
referred the matter to the school’s police department. The police arrested and
charged McMillen with the felony of making a terroristic threat. Following
McMillen’s arrest, the district determined that he should attend an alternative
campus.
      McMillen’s parents eventually accepted an offer from the county
attorney to drop the felony charge in exchange for their agreeing to never
return McMillen to the school district.      McMillen’s parents believed that
accepting the deal was the only option and ceased all efforts to return him to
New Caney ISD.
      This lawsuit followed. The original complaint asserted claims under the
IDEA as well as the Constitution and Texas law. But neither McMillen nor
his parents, who were suing on McMillen’s behalf before he reached 18,
completed the IDEA administrative process (they only invoked some
preliminary procedures early on to challenge McMillen’s amended IEP). After
the school district raised this failure to exhaust as a ground for dismissal,
McMillen amended his complaint to remove the IDEA claim. The relevant
complaint is his fourth try, which asserts a Rehabilitation Act claim and an
equal protection claim under section 1983. Defendants again sought dismissal

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on, among other grounds, failure to exhaust. The district court granted the
motion.
                                    II.
                                    A.
      States receiving IDEA funding must maintain certain procedures to
resolve disputes over the adequacy of a covered student’s education. 20 U.S.C.
§ 1415(a). The procedures include: (1) the opportunity for any party to file a
complaint, which forces a local education agency to hold a preliminary meeting
to resolve the complaint, id. § 1415(b)(6), (f)(1)(B)(i); (2) an impartial “due
process hearing” to resolve the complaint, which a local or state education
agency conducts, id. § 1415(f); and (3) mediation to resolve the complaint, at
the state’s expense. Id. § 1415(e)(1), (e)(2)(D). A party not satisfied with the
result of the administrative process may bring an IDEA claim in federal court.
Id. § 1415(i)(2).
      In its original form, the IDEA was the “exclusive avenue” for enforcing a
disabled student’s right to an adequate education. See Smith v. Robinson, 468
U.S. 992, 1009 (1984). So a plaintiff seeking educational accommodations for
a disabled student could not sue under other laws that protect the disabled,
such as the Rehabilitation Act. Id. at 1009, 1021. But soon after the Supreme
Court interpreted the law that way, Congress charted a different course. Fry
v. Napoleon Cmty. Sch., 137 S. Ct. 743, 750 (2017) (citing Handicapped
Children’s Protection Act of 1986, Pub. L. No. 99-372, 100 Stat. 796 (1986)). It
took the following middle ground: IDEA does not displace other laws that may
help disabled children receive an education, but parties must try the IDEA’s
administrative process first. Id. In other words, a plaintiff may invoke any
federal law to support a disabled student’s claim for an adequate education;
the plaintiff just must first exhaust under the IDEA.


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      The statute allowing non-IDEA claims but only after exhaustion of the
IDEA procedures provides:
      Nothing in this chapter shall be construed to restrict or limit the
      rights, procedures, and remedies available under the Constitution,
      the Americans with Disabilities Act of 1990, title V of the
      Rehabilitation Act of 1973, 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 this subchapter, 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). Because McMillen did not exhaust the IDEA procedures,
his suit asserting other federal claims must be dismissed if it “seek[s] relief
that is also available under” the IDEA.
                                     B.
      The Supreme Court recently provided guidance to help us determine
when a suit seeks relief available under the IDEA. It does so when the plaintiff
seeks to remedy the deprivation of the free appropriate public education that
the IDEA guarantees. Fry, 137 S. Ct. at 752. The IDEA achieves its goal by
providing instruction and related services tailored to the child’s unique needs.
Id. at 755. So complaints that a school did not adopt a plan individualized to
the student’s needs sound in the IDEA. In determining whether a plaintiff
seeks relief available under the IDEA, we focus on the substance of the
complaint, rather than the “labels and terms” the plaintiff uses. Id.
      But both the substance and language of McMillen’s complaint reveal that
he is challenging the denial of a free appropriate public education. McMillen
treats the failure of his 2015−16 IEP as the precipitating event for all that
followed his junior year.    The IEP was the district “giving up on Chris”;
“abandon[ing] what had been working”; exhibiting “negligence, professional
negligence and misjudgment, deliberate indifference, and malice towards

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Chris”; and “was nothing more than Defendant New Caney ISD and the IEP
Team proverbially throwing up their hands and declaring we are tired of
dealing with Chris-Twelve years of putting up with him is enough.” The central
failing of the IEP is that it removed McMillen from the Pass Program, which
“was ‘designed to work with students who have demonstrated either serious
emotional disturbance or behavior disorders,’ . . . and return[ed] him to the care
of professionals [who] had already proven their inability to manage Chris’s
Disabilities.” The IEP thus was the reason McMillen was in the English class
where he lasted only about a month before the behavior problems that resulted
in the criminal charge. And who was responsible for the problems with the
IEP?    The “ARD Committee”—more IDEA lingo meaning the Admission,
Review, and Dismissal Committee that Texas schools use to develop and
approve IEPs. See 19 TEX. ADMIN. CODE § 89.1050.
       The complaint does not just allege failures to comply with the IDEA
when formulating the IEP before McMillen’s junior year. McMillen alleges
that when the district decided to send him to an alternative school, it failed to
“hold an MDR.” That is yet another term from the IDEA and its regulations
meaning the manifestation determination review that is required when
discipline results in a disabled student’s removal from the school for more than
ten consecutive days. 34 C.F.R. § 300.530(c), (e). Such reviews determine
whether the conduct was a manifestation of the student’s disability, in which
case the student should receive additional support to address the behavior
problems. Id. § 300.530(e), (f).
       There is even more in the complaint that focuses on failures to provide a
free appropriate public education, but these examples provide a strong flavor
of the allegations that are laden with IDEA terminology. Those allegations
blame what happened to McMillen on the district’s failures to comply with the
IDEA.

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      Because the face of a complaint will not always make it apparent
whether a non-IDEA claim is still challenging the denial of a free appropriate
public education, the Supreme Court suggested two questions that will help
distinguish such claims from those asserting general disability discrimination.
Fry, 137 S. Ct. at 756. “First, could the plaintiff have brought essentially the
same claim if the alleged conduct had occurred at a public facility that was not
a school?” Id. Second, could an adult (a teacher, for example) have brought
essentially the same claim against the school? Id.; see also Reyes v. Manor
Indep. Sch. Dist., 850 F.3d 251, 256−57 (5th Cir. 2017) (drawing on Fry’s two
questions). If the answer to both questions is yes—it was in Fry for the student
suing to have a service dog with her at school—then the plaintiff is not seeking
relief available under the IDEA and need not exhaust. Fry, 137 S. Ct. at 758.
      McMillen argues that the answer to both Fry questions is also yes for his
suit challenging his removal from the district. He compares his situation to a
public library’s excluding a disabled person, who would have Rehabilitation
Act and equal protection claims for discrimination. So too, he contends, would
a disabled adult be able to sue if a school denied the person access to the school.
But describing his lawsuit as the denial of access to the school facility
characterizes it too generally. See Nelson v. Charles City Cmty. Sch. Dist., 900
F.3d 587, 592 (8th Cir. 2018) (explaining that a plaintiff answered the Fry
questions at too high a “level of generality” by framing the denial of a request
to enroll in online learning in a different school district as a “broken promise
of non-discriminatory access”). McMillen’s view would mean that any case
challenging the suspension, transfer, or expulsion of a disabled student would
avoid the IDEA’s exhaustion requirement—after all, such discipline denies
access to a school—even though the IDEA regulations provide a hearing for
those very situations. See 34 C.F.R. § 300.530(c), (e). A more specific
description of this lawsuit would include what McMillen identifies as the

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contributing factor to his expulsion: the failure of the school to provide an
education tailored to his needs that would have, among other things, prevented
McMillen from being in Hudman’s English class in the first place. That is a
claim that McMillen would not have against the public library, nor one that a
teacher would have against the school.
      If any doubt remains that this lawsuit is about the denial of the
education that the IDEA promises, there are two other signs. That McMillen
first alleged violations of the IDEA in federal court “before switching
midstream” on learning of an exhaustion defense indicates that his amended
complaint is still seeking to enforce the IDEA. Cf. Fry, 137 S. Ct. at 757
(observing that a plaintiff’s invoking the IDEA administrative procedures
before abandoning them is a “sign that the gravamen of a suit is the denial” of
a free public education). And in trying to fix another problem with his earlier
pleadings—the failure to identify a policy that might render the district liable
under section 1983—McMillen again revealed that this case is really about
failures to comply with the IDEA. For proof of the district’s “policy,” McMillen
cites a Department of Education report concluding that Texas public schools
“suppress” the number of students eligible for special education services and
the IDEA services they receive.
      We thus conclude that McMillen’s lawsuit challenges New Caney ISD’s
failure to provide him with the free appropriate public education that the IDEA
promised him.
                                       C.
      But determining what injury McMillen seeks to remedy is only half of
the question that we must decide.           McMillen argues that the IDEA’s
exhaustion requirement applies only when the remedy that a plaintiff seeks is
available under the IDEA. Because his lawsuit seeks damages, McMillen
contends the exhaustion requirement does not apply.          In addressing this

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argument, both sides accept its premise—that damages are not available under
the IDEA. The issue is not that simple. The IDEA allows equitable monetary
rewards, such as reimbursement of expenses like private school tuition a
family unnecessarily incurred in the past to provide special education services.
20 U.S.C. § 1412(a)(10)(C)(ii); Spring Branch Indep. Sch. Dist. v. O.W., 2019
WL 4401142, at *13 (5th Cir. Sept. 16, 2019). It also allows for “compensatory
awards,” which “are designed to provide ‘services prospectively to compensate
for a past deficient program.’”          Spring Branch, 2019 WL 4401142, at *13
(quoting Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1280 (11th Cir.
2008) (awarding a student the option of multi-sensory reading and tutor
services, and a dedicated special education teacher or reimbursement for
private school tuition)). But McMillen’s suit does not seek awards tied to the
cost of providing him with an adequate education. He instead seeks damages
for injuries like emotional distress, 1 and such traditional compensatory
damages are not available under the IDEA. Fry, 137 S. Ct. at 752 n.4.
       We thus must address a question most circuits have answered but this
one has not: whether the exhaustion requirement applies when a plaintiff is
seeking remedies not available under the IDEA. 2 The Supreme Court declined
to answer the question in Fry. 137 S. Ct. at 752 n.4. Most circuits hold that
the IDEA requires plaintiffs who were denied a free appropriate public
education to exhaust regardless of the remedy they seek. See Z.G. v. Pamlico



       1  McMillen’s complaint also seeks punitive damages. But punitive damages are not
available under the Rehabilitation Act, Barnes v. Gorman, 536 U.S. 181, 189−190 (2002), or
against a governmental entity for constitutional violations, City of Newport v. Fact Concerts,
Inc., 453 U.S. 247, 268, 271 (1981).
        2 Doe v. East Baton Rouge Parish School Board, 121 F.3d 705, 705 (5th Cir. 1997) (per

curiam), a brief and unpublished opinion, affirmed the dismissal of a constitutional claim for
damages because the plaintiff failed to exhaust IDEA procedures. A later case stated that
“demanding monetary damages—which are unavailable under the IDEA—does not
automatically remove a claim from the IDEA’s ambit,” Stewart v. Waco Indep. Sch. Dist., 711
F.3d 513, 527 (5th Cir. 2013), but that opinion was vacated, 599 F. App’x. 534 (5th Cir. 2013).
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Cty. Pub. Sch. Bd. of Educ., 744 F. App’x. 769, 777 n.14 (4th Cir. 2018);
Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 276 (3d Cir. 2014); J.B.
ex rel. Bailey v. Avilla R-XIII Sch. Dist., 721 F.3d 588, 595 (8th Cir. 2013);
Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478,
487−88 (2d Cir. 2002); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 64 (1st
Cir. 2002); Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1068 (10th Cir.
2002); Charlie F. ex rel. Neil F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d
989, 991−92 (7th Cir. 1996); N.B. ex rel. D.G. v. Alachua Cty. Sch. Bd., 84 F.3d
1376, 1379 (11th Cir. 1996); but see Payne v. Peninsula Sch. Dist., 653 F.3d
863, 876−77 (9th Cir. 2011) (en banc) (requiring exhaustion when a plaintiff
sought an IDEA remedy or its functional equivalent, such as money to pay for
private school or tutoring, but not when seeking other damages), overruled on
other grounds by Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc). 3
       The question may be a closer one than the circuit scorecard suggests.
Although McMillen does not advance it, 4 there is a textualist case that a claim
does not “seek relief that is also available” under the IDEA if the plaintiff
cannot seek the same remedy under the IDEA. After all, the ordinary meaning
of “relief” in the legal setting is remedy. Relief, WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY (3d ed. 2002) (defining relief as a “legal remedy or
redress”). Indeed, the words define each other in the leading legal dictionary.
See BLACK’S LAW DICTIONARY (9th ed. 2009) (stating that “relief” is “also
termed remedy”); id. (defining “remedy” in part as “legal or equitable relief”).
The Solicitor General took this textualist approach in Fry, arguing that


       3 The Sixth Circuit did not require exhaustion for a student who had graduated
because the IDEA procedures could no longer provide him any relief. Covington v. Knox Cty.
Sch. Sys., 205 F.3d 912, 917−18 (6th Cir. 2000). But it indicated it would follow the majority
approach outside that unusual situation, “disagree[ing] that the plaintiff’s damages claim
alone excuses her from exhausting her administrative remedies.” Id. at 916.
       4 When interpreting a statute, we are not bound by the interpretations “that the

parties advocate.” See Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1353 (2015).
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exhaustion is not required “[w]hen a plaintiff seeks only compensatory
damages under a non-IDEA statute.” Brief for the United States as Amicus
Curiae at 18, Fry, 137 S. Ct. at 743. And the IDEA uses “relief” not just in its
exhaustion provision, but also when listing the remedies available under the
statute. 20 U.S.C. § 1415(i)(2)(C)(iii). Reading those provisions in sync would
further support the view that “relief” means remedy.
      But as we have noted, most courts read the statute differently. They
read “relief available” under the IDEA “to mean relief for the events, condition,
or consequences of which the person complains, not necessarily relief of the
kind the person prefers.” Charlie F., 98 F.3d at 991–92. According to this view,
because the IDEA can remedy the failure to provide a blind student with a
reader by giving her one, a suit seeking damages for such a failure must first
exhaust the IDEA’s administrative procedures. Id. at 992.
      We agree that such an approach is necessary to enforce the statutory
scheme, under which “educational professionals are supposed to have at least
the first crack at formulating a plan to overcome the consequences of
educational shortfalls.” Id. Allowing a plaintiff complaining about the denial
of a free appropriate public education to avoid exhaustion “merely by tacking
on a request for money damages” would subvert the procedures Congress
designed for prompt resolution of these disputes. Polera, 288 F.3d at 487−88;
accord N.B. ex rel. D.G., 84 F.3d at 1379. The statutory preference is to solve
these disputes by providing the student with her promised education, not by
awarding damages years after the problem arises in the classroom. Polera,
288 F.3d at 490.
      Most other circuits addressed this issue pre-Fry. Although Fry did not
answer this question, its broader reasoning on the exhaustion requirement
tends to support the majority view. Interpreting the IDEA to prevent parties
from circumventing the scheme that Congress established in section 1415(l)

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through clever pleading was central to Fry.     137 S. Ct. at 755.     And the
Supreme Court’s test for exhaustion—whether the lawsuit seeks a free
appropriate public education—comports with reading “relief” to focus on the
conduct the plaintiff complains about. Id. at 752.
      We therefore hold that the IDEA’s exhaustion requirement applies to
plaintiffs who seek damages for the denial of a free appropriate public
education.   Because McMillen did not first seek relief through the IDEA
administrative process, this lawsuit was properly dismissed.
                                     ***
      The judgment is AFFIRMED.




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