     Case: 19-50664      Document: 00515446833         Page: 1    Date Filed: 06/09/2020




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

                                                                                   FILED
                                                                                 June 9, 2020
                                      No. 19-50664
                                                                                Lyle W. Cayce
                                                                                     Clerk
NIDIA HESTON, Natural Mother, Legal Parent and Next Friend of A.H;
ADRIAN HESTON, IV, Natural Parent and Next Friend of A.H.,

              Plaintiffs - Appellants

v.

AUSTIN INDEPENDENT SCHOOL DISTRICT,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:18-CV-18


Before SMITH, GRAVES, and HO, Circuit Judges.
PER CURIAM:*
       The district court dismissed Plaintiffs’ claims under the Americans with
Disabilities Act, § 504 of the Rehabilitation Act, and 42 U.S.C. § 1983 for
failure to exhaust administrative remedies. We affirm.
                                             I.
       A.H. is a minor who was diagnosed with autism, Attention Deficit
Hyperactivity Disorder, and Bipolar Disorder at a young age. Pursuant to the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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Individuals with Disabilities Education Act (IDEA), the Austin Independent
School District (AISD) provided A.H. with an “Individualized Education Plan”
(IEP) that accommodated his disabilities.         Specifically, AISD provided
additional support staff to accompany and assist A.H. throughout the school
day.
        Nidia Heston, A.H.’s mother, repeatedly complained throughout the
2014–15 school year that A.H.’s aides were improperly and insufficiently
trained. On multiple occasions she asked that AISD provide A.H. with a
designated one-on-one helper. By May 2015, AISD assigned Jennifer Hardison
to be A.H.’s personal special-education aide.
        Following an incident where A.H. tried to hurt himself, his mother asked
for a new aide. She reiterated this request in March 2016, alleging that
Hardison was inadequately experienced, trained, and supervised.
        Shortly thereafter, A.H. had an “emotional breakdown” in class. In
response, Hardison allegedly threw a trash bin at him, resulting in physical
injury that included significant dental damage.
        A.H.’s parents (“the Hestons”) requested a Due Process Hearing with the
Texas Education Agency (TEA) in August 2016. In addition to claims under
the IDEA, the Hestons filed an amended complaint adding violations of the
Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation Act,
asking that “the Hearing Officer hear the intertwined claims pursuant to
Section 504 and the Americans with Disabilities Act along with the IDEA.”
AISD argued that the TEA Hearing Officer lacked jurisdiction over the ADA
and § 504 claims. The Hearing Officer agreed and dismissed those claims.
        While the TEA process was pending, the Hestons and AISD reached a
settlement agreement. AISD agreed to pay up to $50,000 for A.H. to attend a
private school of the Hestons’ choice. In exchange, the Hestons agreed to
release all claims against AISD “related to the appropriateness of educational
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services and resources”—including all IDEA claims—while reserving their
rights to file additional “claims pursuant to 42 U.S.C. Section 1983, Section
504 of the 1973 Rehabilitation Act . . ., and the Americans with Disabilities
Act.”
        Plaintiffs subsequently filed suit in federal court, bringing ADA and
§ 504 violations alongside constitutional claims under § 1983. AISD moved to
dismiss under Rule 12(b)(6), arguing that all of the claims had to do with the
provision of educational services and were therefore barred for failure to
exhaust. The district court found that the claims were, at core, disputes related
to A.H.’s educational needs and thus subject to the IDEA’s exhaustion
requirement. It dismissed the claims without prejudice, a decision Plaintiffs
now appeal.
                                       II.
        We review a Rule 12(b)(6) dismissal de novo. See Walker v. Beaumont
Indep. Sch. Dist., 938 F.3d 724, 734 (5th Cir. 2019). Because the case was
dismissed at the pleading stage, we assume the Plaintiffs’ factual allegations
to be true. See Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009).
                                       III.
        The IDEA offers states federal funding conditioned on the provision of a
“free appropriate public education” (FAPE) to all children with certain
disabilities. 20 U.S.C. § 1412. A FAPE is defined by the statute as “special
education and related services.” Id. § 1401(9). Parents who are unhappy with
the education provided to their child are required to exhaust the IDEA’s
administrative process before taking their grievances to federal court. See id.
§ 1415(i)(2)(A). This process includes the opportunity to file a complaint
triggering a preliminary hearing, id. § 1415(b)(6), followed by a Due Process
Hearing conducted by a neutral hearing officer, id. § 1415(f), and the option of
mediation at state expense, id. §§ 1415(e)(1); (e)(2)(D).
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      This exhaustion requirement is not limited only to IDEA claims:
“[B]efore the filing of a civil action under such laws [as the ADA and
Rehabilitation Act] seeking relief that is also available under [the IDEA], the
[IDEA’s administrative procedures] shall be exhausted to the same extent as
would be required had the action been brought under [the IDEA].”              Id.
§ 1415(l). Put another way, a party is free to pursue claims apart from the
IDEA, but must exhaust the IDEA’s remedial process for any such claims that
include relief the IDEA can provide. See McMillen v. New Caney Indep. Sch.
Dist., 939 F.3d 640, 644 (5th Cir. 2019) (“[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.”). The availability of such
relief turns on whether or not a FAPE is at issue. See Fry v. Napoleon Cmty.
Sch., 137 S. Ct. 743, 753 (2017) (“The only relief that an IDEA officer can give—
hence the thing a plaintiff must seek in order to trigger § 1415(l)’s exhaustion
rule—is relief for the denial of a FAPE.”). That is the principal inquiry here.
                                       A.
      The Hestons contend that the district court erred in determining that all
claims stemmed from the core issue of A.H.’s FAPE and were thus subject to
IDEA exhaustion. We find no such error.
      To determine whether the alleged ADA, § 504, and § 1983 violations are
divisible from the IDEA claim, we look to the Supreme Court’s recent guidance
in Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017). The Court held
that the central focus in evaluating the need for exhaustion is on the gravamen
of the complaint—in other words, “whether a lawsuit in fact ‘seeks’ relief
available under the IDEA.” Id. at 755. If “the gravamen of a complaint seeks
redress for a school’s failure to provide a FAPE, even if not phrased or framed
in precisely that way,” exhaustion is mandated. Id. A “plaintiff cannot escape
§ 1415(l) merely by bringing her suit under a statute other than the IDEA.”
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Id. at 754. And we ignore “labels” and instead look to the “substance” of the
complaint, “setting aside any attempts at artful pleading” that might otherwise
cloak claims brought under separate statutes to circumvent § 1415(l)’s
exhaustion requirement. Id. at 755. “The use (or non-use) of particular labels
and terms is not what matters”—we look at “substance, not surface.” Id. And
we do so using the “plaintiff’s own claims,” as he controls the complaint and
the attendant relief sought. Id.
      The Hestons’ own pleadings make clear that their claims derive from the
requirement to provide a FAPE. As for the ADA and § 504 claims, they admit
that the “main accommodation A.H. received is called Special Education
services.” Compare 20 U.S.C. § 1401(9) (defining a FAPE as “special education
and related services”). Next, the Hestons’ complaint alleges Hardison was
inadequately trained and supervised, charging that “Jennifer Hardison had
never been correctly trained as to how to accommodate A.H.’s disabling
conditions” nor was “correctly supervised by other staff as to how to
accommodate A.H.’s disabling conditions.”         These all relate to Hardison’s
ability to function as a suitable educational aide for a mentally handicapped
student.   As the complaint puts it, A.H. suffers from “[a] deprivation of
educational opportunities in the past and future.”
      The Hestons attempt to downplay these statements as information
merely “provided for context.” But the Hestons’ § 504 claim is premised on
requiring “appropriate and necessary accommodations” tailored to A.H.’s
“unique and individualized needs.” And those needs, as the Hestons make
clear throughout their pleadings, center on having a suitable educational aide
to facilitate A.H.’s learning. Similarly, their ADA claim repeats these charges,
insisting that “A.H. was not accommodated with staff who had the necessary
and appropriate background to serve him” and that he was denied a “safe and
non-hostile educational environment.” The Hestons’ § 1983 claim alleges a
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violation of the Fourteenth Amendment—namely that AISD’s failure to hire,
train, and supervise staff placed A.H. in a “known and inherent [sic] dangerous
situation” with Hardison. 1 But as pleaded, we read this as little more than the
same allegation that AISD failed to monitor and train Hardison so that she
could function as a suitable educational aide. The heart of the complaint across
these claims is that AISD failed to provide proper educational accommodation
and oversight in the form of an adequately trained and supervised teaching
aide for A.H. And the IDEA requires exhaustion for claims that fundamentally
concern a student’s educational needs.
       To be sure, claims that are solely concerned with physical injury and
abuse are not subject to the exhaustion requirements of the IDEA. See, e.g.,
F.H. ex rel. Hall v. Memphis City Sch., 764 F.3d 638, 644 (6th Cir. 2014)
(finding that a minor who brought a suit alleging that he was the victim of
verbal, physical, and sexual abuse by his aides was not asserting an
educational claim); Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 785 (10th
Cir. 2013) (holding that state tort and § 1983 claims relating to incidents of
physical abuse did not require exhaustion). But while the Hestons spotlight
Hardison’s conduct that eventually led to physical injury, their disability and
constitutional claims all stem from a failure to train and supervise educational
staff. The disability claims are framed as a failure to accommodate—and the
accommodation, as the Hestons put it, concerns “Special Education services.”
And the constitutional claim concerns Hardison’s adequacy as an educational
aide. Unlike Hall and Muskrat, the Hestons’ complaint does not allege that
Hardison’s actions were random acts of violence, but instead presents those
allegations in the context of her ability to perform adequately as a special-


       1 Plaintiffs later characterize this claim as a Due Process infringement of “liberty,
privacy and bodily integrity” where AISD failed to “maintain a safe environment for A.H. to
keep him safe from harm.”
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needs aide: “Instead of providing the correct accommodations to A.H. Jennifer
Hardison physically and verbally abused the child.” As such, these claims fall
squarely within the ambit of A.H.’s educational needs.
      Fry suggests two “hypothetical questions” that confirm that the
gravamen of the complaint concerns a FAPE. 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—say, a public theater or library? And
second, could an adult at the school—say, an employee or visitor—have pressed
essentially the same grievance?” Fry, 137 S. Ct. at 756. The answer to both
questions here is “no.” A.H. would have no claim for failure to accommodate
in a public theater or library because those facilities are not required to
accommodate a learning disability by providing a trained and supervised aide.
An adult visitor would have no claim under the ADA or Rehabilitation Act for
the same reason. This is not a case of “simple discrimination, irrespective of
the IDEA’s FAPE obligation.” Doe v. Dallas Indep. Sch. Dist., 941 F.3d 224,
228 (5th Cir. 2019) (quoting Fry, 137 S. Ct. at 756).
      And while Fry theorizes that a minor would not ordinarily need to
exhaust IDEA remedies for a suit where a “teacher, acting out of animus or
frustration, strikes a student with a disability,” Fry, 137 S. Ct. at 756 n.9, the
complaint presents Hardison’s bad behavior only in the context of her role as
a school aide.
      Finally, the history of the proceedings reinforces our conclusion that
exhaustion is required. “[A] court may consider [whether] a plaintiff has
previously invoked the IDEA’s formal procedures to handle the dispute—thus
starting to exhaust the Act’s remedies.” Id. at 757. “[P]rior pursuit of the
IDEA’s administrative remedies will often provide strong evidence that the
substance of a plaintiff’s claim concerns the denial of a FAPE.” Id. Here, the
Hestons not only brought ADA and § 504 claims before the TEA, but went one
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step further by adding those claims to the original IDEA charge in front of the
Hearing Officer. They themselves linked the ADA and § 504 to A.H.’s FAPE
and provided “strong evidence” that their concerns were really about
educational services.
      In sum, the Hestons’ claims are fundamentally connected to Hardison’s
actions and suitability as an aide in the service of A.H.’s specialized
educational requirements. Their claims thus concern, at bottom, the provision
of a free and appropriate education. The “grievances all stem from the alleged
failure to accommodate his condition and fulfill his educational needs.”
Wellman v. Butler Area Sch. Dist., 877 F.3d 125, 133 (3d Cir. 2017). As the
district court noted, “A.H.’s complaints about the deficiency of the aide
provided through his IEP are therefore complaints about the adequacy of his
IEP.” Exhaustion was necessary.
                                       B.
      Alternatively, the Hestons argue that they have satisfied the exhaustion
requirement.
      To appeal, § 1415 requires “findings and decision” from a Hearing
Officer. See 20 U.S.C. § 1415(g). The Hestons claim that they satisfied that
requirement when the Hearing Officer dismissed their claims for lack of
jurisdiction.   But we have previously held that administrative exhaustion
requires “more than pleading a claim”—the administrative body must actually
come to a decision. Reyes v. Manor Indep. Sch. Dist., 850 F.3d 251, 256 (5th
Cir. 2017). Here, the Hearing Officer concluded that she lacked jurisdiction.
So there was no decision one way or another on the sufficiency of A.H.’s FAPE.
See Paul G. by and through Steve G. v. Monterey Peninsula Unified Sch. Dist.,
933 F.3d 1096, 1102 (9th Cir. 2019) (holding that “the only way to obtain an
administrative ruling on [Plaintiff’s] claim that he was denied a FAPE” was
through administrative exhaustion).
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                                 No. 19-50664
      The Hestons present no case holding that a dismissal for jurisdiction
qualifies as administrative “findings and [a] decision.” And it’s hornbook law
that jurisdictional rulings are not substantive determinations on the merits.
See generally Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998). A
jurisdictional dismissal does not constitute “findings and decision” for purposes
of § 1415.
                                       C.
      The Hestons next argue that exhaustion would be futile. “[P]arents may
bypass the administrative process where exhaustion would be futile or
inadequate.” Honig v. Doe, 484 U.S. 305, 327 (1988). The Hestons contend
that bringing their ADA, § 504, and § 1983 claims before a Hearing Officer
would be futile.     That is because, the Hestons theorize, they seek money
damages, which are not available under the IDEA. We have addressed this
species of argument before. While acknowledging the good “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,” we nevertheless joined
multiple sister circuits in holding that the “IDEA’s exhaustion requirement
applies to plaintiffs who seek damages for the denial of a free appropriate
public education.” McMillen, 939 F.3d at 648. We interpreted relief more
broadly “to mean relief for the events, condition, or consequences of which the
person complains, not necessarily relief of the kind the person prefers.” Id.
(quoting Charlie F. ex rel. Neil F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98
F.3d 989, 992 (7th Cir. 1996)). Such an interpretation was necessary so a
plaintiff could not “avoid exhaustion ‘merely by tacking on a request for money
damages.’” Id. (citing Polera v. Bd. of Educ. of Newburgh Enlarged City Sch.
Dist., 288 F.3d 478, 487–88 (2d Cir. 2002)). Here too we conclude that the
Hestons cannot avoid exhaustion on their FAPE-related claims simply by
including a claim for money damages.
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                                 No. 19-50664
      Alternatively, the Hestons suggest that, because A.H. is no longer a
student in the school district, the Hearing Officer can no longer provide any
relief. This argument is presented for the first time in the reply brief. We do
not consider new arguments brought up at this late stage. See Hollis v. Lynch,
827 F.3d 436, 451 (5th Cir. 2016) (“Reply briefs cannot be used to raise new
arguments.”).
                                       D.
      Finally, the Hestons contend that AISD should be estopped from
invoking exhaustion. AISD previously stated that there were “no IDEA issues”
or “FAPE issues” before the Hearing Officer, and argued that she lacked
jurisdiction to hear the ADA and § 504 claims. So the Hestons assert that
AISD should not be able to argue that such claims needed to be exhausted
there first. The basic argument comes down to this: Because AISD argued
exhaustion was not necessary then, it should not be allowed to do so now.
      Judicial estoppel is an equitable doctrine that “prevents a party from
asserting a claim in a legal proceeding that is inconsistent with a claim taken
by that party in a previous proceeding.” New Hampshire v. Maine, 532 U.S.
742, 749 (2001) (citation omitted). The purpose is to “to protect the integrity
of the judicial process and to prevent unfair and manipulative use of the court
system by litigants.” United States v. McCaskey, 9 F.3d 368, 379 (5th Cir.
1993). Though estoppel applies at our discretion, we have identified three
general elements: (1) “the party’s position must be ‘plainly inconsistent with
its prior position’”; (2) “the party must have convinced ‘a court to accept the
prior position’”; and (3) “the party must not have acted inadvertently.” United
States v. Farrar, 876 F.3d 702, 709 (5th Cir. 2017) (cleaned up) (quoting Trinity
Marine Prods., Inc. v. United States, 812 F.3d 481, 490 (5th Cir. 2016)).
      The district court concluded that judicial estoppel did not apply here
because AISD’s previous position that the Hearing Officer lacked jurisdiction
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                                No. 19-50664
was not inconsistent with its current argument for mandatory exhaustion.
Specifically, the district court found that AISD sought to dismiss the ADA and
§ 504 claims “before knowing that the Hestons would characterize their non-
IDEA claims as denials of a FAPE.”
      We agree—AISD could not have predicted what future claims the
Plaintiffs would bring under the ADA and § 504, and if they would center on a
FAPE. In fact, the ADA and § 504 violations alleged in the Due Process
complaint are dissimilar from the ones presented now—so we cannot say that
AISD’s positions now and then are “plainly inconsistent.”
                                     ***
      Because the claims as presented have to do with the proper provision of
educational services, they require administrative exhaustion. We affirm.




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