       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0079P (6th Cir.)
                File Name: 00a0079p.06


UNITED STATES COURT OF APPEALS
                FOR THE SIXTH CIRCUIT
                  _________________


                                   ;
                                    
BURMA L. COVINGTON,
                                    
Natural parent and legal
                                    
conservator of DAVID JASON
                                    
                                         No. 99-5210
COVINGTON,
                                    
           Plaintiff-Appellant.      >
                                    
                                    
                                    
           v.

                                    
                                    
KNOX COUNTY SCHOOL
                                    
SYSTEM; KNOX COUNTY
BOARD OF EDUCATION;                 
                                    
                                    
ALLEN MORGAN, in his

                                    
official capacity as

                                    
Superintendent; DONNA
                                    
PARKER, individually and in
                                    
her official capacity as
Principal; LINDA K. CATHEY,         
                                    
                                    
individually and in her official

                                    
capacity as a Knox County
                                    
School Official; JOE MARLIN,
                                    
individually and in his official
capacity as a Knox County           
                                    
                                    
School Official; MAUREEN

                                    
UMBEHAGEN, individually

                                    
and in her official capacity as
                                    
a Knox County School


                             1
2        Covington v. Knox County School             No. 99-5210
         System, et al.


                                       
                                       
 Official; KNOX COUNTY,
                                       
 TENNESSEE,
                                      1
         Defendants-Appellees.


            Appeal from the United States District Court
         for the Eastern District of Tennessee at Knoxville.
          No. 98-00207—James H. Jarvis, District Judge.
                  Submitted: December 10, 1999
                Decided and Filed: March 6, 2000
    Before: BATCHELDER and  MOORE, Circuit Judges;
               O’MALLEY,* District Judge.
                       _________________
                            COUNSEL
ON BRIEF: Danny Paul Dyer, GENTRY, TIPTON, KIZER
& McLEMORE, Knoxville, Tennessee, Mark P. Jendrek,
Knoxville, Tennessee, for Appellant. Mary A.R. Stackhouse,
Knoxville, Tennessee, William A. Young, O’NEIL, PARKER
& WILLIAMSON, Knoxville, Tennessee, Pamela L. Reeves,
WATSON, HOLLOW & REEVES, Knoxville, Tennessee,
Robert L. Crossley, Sr., CROSSLEY LAW FIRM, Knoxville,
Tennessee, John E. Owings, KNOX COUNTY LAW
DIRECTOR’S OFFICE, Knoxville, Tennessee, for Appellees.




     *
    The Honorable Kathleen McDonald O’Malley, United States District
Judge for the Northern District of Ohio, sitting by designation.
No. 99-5210          Covington v. Knox County School         3
                                        System, et al.

                    _________________
                        OPINION
                    _________________
   KAREN NELSON MOORE, Circuit Judge. Plaintiff-
appellant Burma Covington, acting as legal conservator for
her disabled son Jason, appeals the district court’s grant of
summary judgment for the defendants due to Covington’s
failure to exhaust her administrative remedies under the
Individuals with Disabilities Education Act (IDEA), 20
U.S.C. § 1400 et seq. Covington argues that her claim, which
alleges violations of David’s substantive due process rights by
his special education school and its officials, does not arise
under the IDEA and therefore does not require exhaustion.
She further contends that, even if her complaint falls within
the scope of the IDEA, exhaustion would be futile in the
circumstances of this case and therefore is not required.
Because we agree that exhaustion is futile when, as here,
damages are the only suitable remedy for the plaintiff’s
alleged injuries and yet damages are unavailable through the
administrative process, we REVERSE the district court’s
grant of summary judgment and REMAND for further
proceedings.
                    I. BACKGROUND
  David Jason Covington was born on March 8, 1978, and
was a special education student at the Knoxville Adaptive
Education Center (KAEC) from 1990 until he graduated with
a special education diploma in May 1996. He suffers from
multiple mental and emotional disabilities.
  Burma Covington alleges that, on several occasions
between 1990 and 1994, Jason was locked in a “time-out
room” that could only be unlocked from the outside. The
time-out room, which Covington identifies as a “disciplinary
4       Covington v. Knox County School                  No. 99-5210        No. 99-5210         Covington v. Knox County School      13
        System, et al.                                                                                             System, et al.

measure,” is described in the complaint1 as being                             Following Witte, Matula, and Plasencia, we therefore hold
approximately four feet by six feet, dark and “vault-like,”                 that, while a claim for money damages does not automatically
with a concrete floor, no furniture, no heat, no ventilation, and           create an exception to the exhaustion requirement of the
only one small reinforced window located at least five feet                 IDEA, in this case exhaustion would be futile because money
above the floor. Covington claims that Jason was repeatedly                 damages, which are unavailable through the administrative
locked in the time-out room for several hours at a time                     process, are the only remedy capable of redressing Jason’s
without supervision and was often not allowed to leave the                  injuries.
room for lunch. On at least one occasion, Jason was allegedly
made to disrobe before being locked in the time-out room.                                      III. CONCLUSION
Covington further alleges that on at least one occasion,
because of the lack of supervision by school officials and the                For the foregoing reasons, we REVERSE the district court
long duration of his confinement, Jason was forced to relieve               and REMAND for further proceedings.
himself on the concrete floor of the room and to remain there
with his excrement for a period of time.
  As a result of these incidents, Burma Covington filed an
administrative complaint with the Tennessee Department of
Education on March 17, 1994. The Department of Education
referred the complaint to the Knox County School System,
which responded to the complaint by means of a letter that
denied the allegations in part and attempted to explain the
school officials’ actions, but offered no other relief.
Covington subsequently requested a due process hearing, as
permitted by the IDEA, see 20 U.S.C. § 1415(f), describing
the reason for this request as “inappropriate discipline,
including abusive confinement in a locked time out room.”
J.A. at 77 (Letter from Gary Buchanan, att’y for pl.). Over
the next three years, this hearing and the related discovery
were repeatedly scheduled, delayed, and re-scheduled. The
record evidence suggests, and the district court found, that
Covington was largely responsible for the delays.
 Although no due process hearing had yet taken place,
Covington filed a complaint in federal district court on

    1
      In response to the defendant’s motion for summary judgment,
Covington presented an affidavit, testifying to and incorporating all the
allegations of the complaint. Thus, the allegations of the complaint also
constitute the plaintiff’s substantive evidence on summary judgment.
12   Covington v. Knox County School              No. 99-5210      No. 99-5210          Covington v. Knox County School          5
     System, et al.                                                                                        System, et al.

education school officials, was not required to exhaust formal     April 3, 1998, under 42 U.S.C. § 1983, alleging violations of
administrative remedies, because the parties had already           Jason’s Fourth, Fifth, and Fourteenth Amendment rights and
informally agreed to provide the injured child with all            raising state-law claims of intentional infliction of emotional
“remedies that are available under the IDEA,” see id. at 1276.     distress and false imprisonment. The complaint did not allege
Furthermore, the Witte court noted that the relief sought for      violations of, or even mention, the IDEA. The defendants
the plaintiff’s injuries was “retrospective only” and that the     moved for summary judgment. Following Hayes v. Unified
relief available under the IDEA was not well-suited to             School District No. 377, 877 F.2d 809, 813-14 (10th Cir.
remedying past instances of physical injury. See id.               1989), the district court found that Covington was required to
                                                                   exhaust her administrative remedies as contemplated by the
   In Jason’s case, as in Plasencia, “the condition creating the   IDEA, because her complaint involved the school’s
damage has ceased,” and there is no equitable relief that          disciplinary practices. The court stated, “It is undisputed that
would make Jason whole. Plasencia, 29 F. Supp. 2d at 1152;         the use of the ‘time-out’ room as a disciplinary measure was
cf. Padilla v. School Dist. No. 1, 35 F. Supp. 2d 1260, 1265-      a matter mentioned in the plaintiff’s IEP [Individualized
66 (D. Colo. 1999) (holding that exhaustion was not required       Education Program] and a matter subject to the IDEA.” J.A.
because the plaintiff had moved outside the school district        at 283 (D. Ct. Op.). The court also noted that Covington had
and the administrative officer consequently lacked the             commenced the administrative process under the IDEA.
authority to grant relief). But see N.B., 84 F.3d at 1379          Finding that Covington had not exhausted her administrative
(finding it irrelevant, for exhaustion purposes, that the          remedies and that she had failed to demonstrate that such
plaintiff “no longer attends any of the defendant school           exhaustion would be futile, the district court granted the
districts”); Torrie v. Cwayna, 841 F. Supp. 1434, 1442 (W.D.       defendants’ summary judgment motion and dismissed the
Mich. 1994) (same). Furthermore, we note that our holding          case without prejudice.
in the instant case does not conflict with our prior holding in
Doe v. Smith, 879 F.2d 1340 (6th Cir. 1989). In Doe v. Smith,         Covington filed a motion to alter or amend the judgment,
we held that parents may not avoid the state administrative        arguing that the district court’s opinion was based on facts not
process through “the unilateral act of removing their child        in the record, that her cause of action does not arise under the
from a public school.” Id. at 1343. There was no showing in        IDEA and therefore exhaustion was not required, that
that case that following the school system’s administrative        exhaustion would be futile because the available
procedure would have been futile; indeed, the relief sought by     administrative remedies are inadequate, and that the district
the plaintiff in Doe v. Smith – a more appropriate educational     court’s decision results in a violation of Jason’s equal
placement, provided at public expense – is precisely the kind      protection rights. The district court denied that motion
of relief that the state administrative process is equipped to     without opinion on January 13, 1999. The appellant then
afford. See id. at 1341-42. Therefore, Doe v. Smith is             filed a timely notice of appeal. In her brief, Covington raises
inapplicable to a case such as Covington’s, where the              essentially the same issues that she raised below, with the
administrative process would be incapable of imparting             exception that she appears to have abandoned her Fourth
appropriate relief due to the nature of Jason’s alleged injuries   Amendment and procedural due process claims, arguing only
and the fact that he has already graduated from the special        that the school’s actions violated Jason’s substantive due
education school, not due to Covington’s unilateral act.           process rights under the Fourteenth Amendment.
                                                                   Furthermore, Covington argues for the first time on appeal
                                                                   that requiring her to exhaust her administrative remedies
6       Covington v. Knox County School                 No. 99-5210        No. 99-5210              Covington v. Knox County School              11
        System, et al.                                                                                                 System, et al.

would violate Jason’s Seventh Amendment right to trial by                  KAEC has engaged in a “policy or practice” that is contrary
jury.                                                                      to law by locking children in the time-out room.
                          II. ANALYSIS                                        Although we agree with those courts that have decided that
                                                                           a mere claim for money damages is not sufficient to render
A. Summary Judgment Standard                                               exhaustion of administrative remedies unnecessary, we hold
                                                                           that in the unique circumstances of this case – in which the
  This Court reviews a district court’s grant of summary                   injured child has already graduated from the special education
judgment de novo. See EEOC v. Northwest Airlines, Inc.,                    school, his injuries are wholly in the past, and therefore
188 F.3d 695, 701 (6th Cir. 1999). Summary judgment                        money damages are the only remedy that can make him whole
should be granted only if there is no genuine issue of material            – proceeding through the state’s administrative process would
fact and the moving party is entitled to judgment as a matter              be futile and is7 not required before the plaintiff can file suit in
of law. See FED. R. CIV. P. 56(c); Johnson v. United States                federal court. Thus, as one court has stated, “[a]lthough
Postal Serv., 64 F.3d 233, 236 (6th Cir. 1995). The moving                 exhaustion cannot be waived whenever a plaintiff seeks
party bears the initial burden of showing the absence of a                 monetary damages rather than relief that is available under the
genuine issue of material fact. See Celotex Corp. v. Catrett,              administrative scheme, where there is no administrative
477 U.S. 317, 323 (1986). The burden then shifts to the                    remedy for a wrong that the plaintiff has suffered, exhaustion
nonmoving party to come forward with evidence showing that                 is futile and may be waived.” Plasencia v. California, 29 F.
there is a genuine issue for trial. See Anderson v. Liberty                Supp. 2d 1145, 1150 (C.D. Cal. 1998) (citing W.B. v. Matula,
Lobby, Inc., 477 U.S. 242, 256 (1986). “The evidence of the                67 F.3d 484 (3d Cir. 1995)). See also Matula, 67 F.3d at 495-
nonmovant is to be believed, and all justifiable inferences are            96 (holding that exhaustion is not required for plaintiffs
to be drawn in his favor.” Id. at 255.                                     seeking money damages, because damages are unavailable
                                                                           through the administrative process, and because all other
B. The Exhaustion Requirement Under the IDEA                               relief available to the plaintiffs under the IDEA had already
                                                                           been provided through a settlement agreement). Similarly,
  The IDEA provides that plaintiffs must exhaust their                     the United States Court of Appeals for the Ninth Circuit
administrative remedies before bringing suit in federal court2             recently held in Witte v. Clark County School District, 197
to obtain relief that is also available under the IDEA.                    F.3d. 1271 (9th Cir. 1999), that the plaintiff, who was seeking
See Doe v. Smith, 879 F.2d 1340, 1343-44 (6th Cir. 1989),                  monetary damages for physical and verbal abuse by special
cert. denied, 493 U.S. 1025 (1990); Crocker v. Tennessee
Secondary Sch. Athletic Ass’n, 873 F.2d 933, 935-36 (6th Cir.
                                                                               7
                                                                                 We read Covington’s complaint as putting forth only damages
                                                                           claims, despite the fact that Covington also requested “a permanent
    2                                                                      injunction enjoining Defendants from engaging in future acts of
     The act currently known as the IDEA has had several different         involuntarily confining public school students in the manner described
names since it was first adopted in 1975, including the Education of the   herein.” J.A. at 17. Covington has not filed a class action, nor has she
Handicapped Act (EHA) and the Education of All Handicapped Children        demonstrated any other basis upon which she should be entitled to assert
Act (EAHCA). For the sake of consistency, we refer to the Act as “the      the rights of other public school students to relief that would not affect
IDEA” throughout this opinion, even when the case cited uses one of the    Jason. Therefore, Covington’s claim for injunctive relief does not enter
Act’s former names.                                                        into our analysis.
10    Covington v. Knox County School                No. 99-5210       No. 99-5210              Covington v. Knox County School                 7
      System, et al.                                                                                               System, et al.

906 F. Supp. 1092, 1098 (S.D.W. Va. 1995) (noting that “a              1989) (Crocker I). Specifically, the statutory language states
clear majority of courts hold exhaustion necessary despite the         as follows:
assertion of a contemporaneous § 1983 claim for damages”),
appeal dismissed, 79 F.3d 1141 (4th Cir. 1991); Waterman,                Nothing in this chapter shall be construed to restrict or
739 F. Supp. at 364-66. The rationales for requiring                     limit the rights, procedures, and remedies available under
exhaustion even when the plaintiff seeks money damages are               the Constitution, the Americans with Disabilities Act of
that plaintiffs could otherwise circumvent the IDEA’s                    1990 [42 U.S.C. § 12101 et seq.], title V of the
elaborate scheme simply by appending a claim for damages,                Rehabilitation Act of 1973 [29 U.S.C. § 791 et seq.], or
see Waterman, 739 F. Supp. at 365, and that the                          other Federal laws protecting the rights of children with
administrative process might ultimately afford sufficient relief         disabilities, except that before the filing of a civil action
to the injured party, even if it is not the specific relief that the     under such laws seeking relief that is also available under
plaintiff requested, see Charlie F., 98 F.3d at 991-93.                  this subchapter, the procedures under subsections (f) and
                                                                         (g) of this section shall be exhausted to the same extent
C. Exceptions to the Exhaustion Requirement                              as would be required had the action been brought under
                                                                         this subchapter.
   Nonetheless, both the Supreme Court and this court have
held that exhaustion is not required under the IDEA in certain         20 U.S.C. § 1415(l).3 Furthermore, § 1415(i)(2) clearly
circumstances. Exhaustion is not required if it would be futile        contemplates that plaintiffs will exhaust their administrative
or inadequate to protect the plaintiff’s rights. See Honig, 484        remedies before bringing  a civil action to enforce their rights
U.S. at 326-27; Smith, 879 F.2d at 1343; Crocker I, 873 F.2d           under the IDEA.4 See Honig v. Doe, 484 U.S. 305, 326-27
at 936. Nor is exhaustion required if the plaintiffs were not          (1988) (citing § 1415(e)(2), the predecessor to § 1415(i)(2));
given full notice of their procedural rights under the IDEA.           Crocker I, 873 F.2d at 935 (same).
See Crocker I, 873 F.2d at 936. The burden of demonstrating
futility or inadequacy rests on the party seeking to bypass the          Covington argues that her claim does not arise under the
administrative procedures. See Honig, 484 U.S. at 327.                 IDEA and therefore that exhaustion is not required in her
                                                                       case. Rather, she urges, her complaint concerns abusive
  Covington argues that she was not required to exhaust her            behavior that constitutes an independent constitutional
administrative remedies, because to do so would have been              violation. We note that some courts have interpreted § 1415
futile and would have afforded her inadequate relief. First,           to require the exhaustion of administrative remedies even
she points out, she is seeking money damages, which are not
available through the administrative process. See TENN.
CODE ANN. § 49-10-601 (1996). Second, Jason has already                    3
graduated from KAEC; consequently, injunctive or other                       Subsections (f) and (g) provide for a due process hearing and appeal
equitable relief cannot alleviate his injuries. Finally, relying       at the state agency level. See 20 U.S.C. §§ 1415(f), (g).
on an exception to the exhaustion requirement, which has                   4
been recognized by the Second Circuit, when “an agency has                   That subsection provides that any party aggrieved by the
                                                                       administrative findings and decision “shall have the right to bring a civil
adopted a policy or pursued a practice of general applicability        action with respect to the complaint presented pursuant to this section,
that is contrary to the law,” Mrs. W., 832 F.2d at 756 (quoting        which action may be brought in any State court of competent jurisdiction
H.R. REP. NO. 99-296, at 7 (1985)), Covington argues that              or in a district court of the United States without regard to the amount in
                                                                       controversy.” 20 U.S.C. § 1415(i)(2)(A).
8       Covington v. Knox County School                    No. 99-5210        No. 99-5210              Covington v. Knox County School                9
        System, et al.                                                                                                    System, et al.

when the plaintiffs do not rely exclusively on the IDEA as the                IDEA or whether a plaintiff who has stated a claim
source of their claims. For example, several courts have held                 independent of the IDEA must still utilize the state’s
that exhaustion is required when plaintiffs bring § 1983 suits                administrative process before filing in federal court. For the
based on violations of the IDEA. See, e.g., N.B. v. Alachua                   same reason, we do not reach Covington’s equal protection or
County Sch. Bd., 84 F.3d 1376, 1379 (11th Cir. 1996), cert.                   Seventh Amendment claims.
denied, 519 U.S. 1092 (1997); Mrs. W. v. Tirozzi, 832 F.2d
748, 756 (2d Cir. 1987); W.L.G. v. Houston County Bd. of                        Covington further contends that because the plain language
Educ., 975 F. Supp. 1317, 1328 (M.D. Ala. 1997).                              of 20 U.S.C. § 1415(l) requires exhaustion only when the
Additionally, some courts have held that whenever a claim                     plaintiff seeks relief “that is also available under” the IDEA,
falls within the purview of the IDEA – that is, whenever it                   and because general money damages are not available under
relates to the provision of a “free appropriate public                        the IDEA, see Crocker v. Tennessee Secondary Sch. Athletic
education” to a disabled child – exhaustion is required,                      Ass’n, 980 F.2d 382, 386-87 (6th Cir. 1992) (Crocker II), she
whether or not the plaintiff characterizes the claim as one                   was not required to exhaust her administrative remedies. We
arising under the IDEA. See Hayes, 877 F.2d at 813-14;                        disagree that the plaintiff’s damages claim alone excuses her
Franklin v. Frid, 7 F. Supp. 2d 920, 922, 925-26 (W.D. Mich.                  from exhausting her administrative remedies.       Although the
1998) (concluding that despite allegations of a school                        Sixth Circuit has not decided the question,6 most courts have
official’s intentionally humiliating, poking, hitting, slapping,              held that a plaintiff seeking money damages is required to
and verbally abusing a student, the “gravamen of the claim”                   exhaust administrative remedies under the IDEA, even if
fell within the purview of the IDEA, requiring exhaustion);                   money damages are not available under the IDEA or through
Waterman v. Marquette-Alger Intermediate Sch. Dist., 739 F.                   the administrative process. See, e.g., Charlie F. v. Board of
Supp. 361, 364-65 (W.D. Mich. 1990) (citing Hayes). Hayes,                    Educ., 98 F.3d 989, 991-93 (7th Cir. 1996); Doe v. Alfred,
Franklin, and Waterman concluded that complaints
concerning the disciplinary practices of a school district relate
to the way that the district provides education,       and thus                   6
                                                                                    In Crocker I, this court held that parents suing under the IDEA were
necessarily come within the scope of the IDEA.5 However,                      required to exhaust their administrative remedies. See Crocker I, 873
because we conclude that exhaustion would be futile in                        F.2d at 936. In a subsequent appeal after remand, this court held that
Covington’s case, there is no need to address the issues                      those plaintiffs could not obtain general damages under the IDEA for
involved in Hayes. Thus, we express no opinion as to                          emotional or dignitary injuries, nor could they do so by bringing a § 1983
whether Covington’s complaint falls within the ambit of the                   suit for such general damages based on violations of the IDEA. See
                                                                              Crocker II, 980 F.2d at 386-87; see also Hall v. Knott County Bd. of
                                                                              Educ., 941 F.2d 402, 406-07 (6th Cir. 1991) (holding that plaintiffs can
                                                                              obtain reimbursement for past or future educational expenses under the
    5                                                                         IDEA but not general damages, such as compensation for lost earning
      Covington also argues that because there is no evidence in the          power), cert. denied, 502 U.S. 1077 (1992). In deciding Crocker and
record indicating that the time-out room was discussed in Jason’s IEP, the    Hall, we relied in part on the Supreme Court’s insistence that, although
district court erred in concluding that the discipline used on Jason fell     plaintiffs can obtain reimbursement for educational costs under the IDEA,
under the IDEA. While Covington’s characterization of the record on this      such reimbursement should not be characterized as “damages.” See
point may be accurate, we do not read Hayes so narrowly. Hayes and the        School Comm. v. Department of Educ., 471 U.S. 359, 370-71 (1985). We
related cases emphasize, instead, the disciplinary nature of the school       have not previously considered the question whether exhaustion is
officials’ actions and their educational source; they do not seem to depend   required by the legislative scheme of the IDEA when a plaintiff asserts a
upon a finding that the specific disciplinary matter about which the          valid damages claim under § 1983 that is not cognizable under the IDEA,
plaintiff complains was addressed in that student’s IEP.                      however.
