               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 01-50491
                       _____________________



     MARLENE H, as next friend ANDREW H


                                    Plaintiff - Appellant

          v.

     YSLETA INDEPENDENT SCHOOL DISTRICT; RAMON RIVERA; EDWARD LEE
     VARGAS


                                    Defendants - Appellees

_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                         No. EP-00-CA-279-H
_________________________________________________________________

                           April 3, 2002


Before KING, Chief Judge, and HIGGINBOTHAM and EMILIO M. GARZA,
Circuit Judges.

PER CURIAM:*

     In this action, Plaintiff-Appellant Marlene H. alleges

violations of the Rehabilitation Act of 1973, the Americans with


     *
        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that this opinion should not be published and is not precedent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.
Disabilities Act of 1990, and the Due Process and Equal

Protection clauses of the United States Constitution by

Defendants-Appellees Ysleta Independent School District,

Principal Ramon Rivera, and Superintendent Edward Lee Vargas,

based on the Defendants-Appellees’ refusal to re-enroll Marlene

H.’s learning disabled son in Eastwood Knolls School.    The

district court granted summary judgment in favor of all

defendants and dismissed the action because Marlene H. failed to

exhaust administrative remedies prior to filing her federal law

claims, as is required by the Individuals With Disabilities

Education Act.   For the following reasons, we AFFIRM.

                 I.   FACTUAL AND PROCEDURAL HISTORY

     Andrew H. (“Andrew”) lives with his parents, including his

mother Plaintiff-Appellant Marlene H. (“Marlene”), in the Socorro

Independent School District.    In July 1999, Marlene transferred

Andrew to Eastwood Knolls School (“Eastwood”) in the Ysleta

Independent School District (the “YISD”).    In January 2000,

Eastwood determined that Andrew has a learning disability, and

Eastwood’s Admission, Review and Dismissal Committee (the “ARD

Committee”) subsequently developed a special Individualized

Educational Plan (“IEP”) for Andrew.    In March 2000, Andrew’s

parents objected in writing to the IEP and notified the ARD

Committee that they planned to enroll Andrew in a private school

at the YISD’s expense.    The YISD refused to pay for private



                                  2
education for Andrew.    Andrew’s parents then withdrew their

objection to the IEP, and Andrew remained enrolled at Eastwood.

Eastwood claims that in March 2000, it mailed an “Out of

Attendance Area Transfer Letter of Intent” (the “Letter of

Intent”) to Andrew’s parents.     Andrew’s parents were required to

complete and return the Letter of Intent in order to secure

enrollment for Andrew at Eastwood for the 2000-01 school year,

pursuant to the YISD’s open enrollment policy applicable to out-

of-district transfer students.1    Eastwood additionally claims

that Andrew was given a pre-registration packet with instructions

to return the form included therein to the school.    Eastwood

further claims that an Eastwood assistant principal and a school

counselor reminded Andrew at the time he received the pre-

registration packet of the importance of the timely return of the

pre-registration form and that daily announcements were made to

students to remind them to return the form.    Eastwood never

received any Letter of Intent or pre-registration form completed

by Andrew’s parents.    Marlene claims she did not complete and

return the Letter of Intent or the pre-registration form because

she never received either.

     In April of 2000, the ARD Committee, including Defendant-

Appellee Principal Ramon Rivera, met with Andrew’s parents to

     1
        The YISD open enrollment transfer policy states: “No
later than May 10 of each year, an out-of-attendance area
transfer student will declare in writing his/her intention to re-
enroll at the same campus for the next school year.”

                                   3
discuss Andrew’s IEP and his progress.    At this time, Andrew’s

IEP included a curriculum plan for the 2000-01 school year at

Eastwood.   The IEP also required Andrew to complete a YISD summer

program, but not at Eastwood.   Andrew attended that summer

program in June and July of 2000.     On June 12, the ARD Committee

again met with Andrew’s parents to discuss the IEP, which still

contained a curriculum for 2000-01 at Eastwood.    Andrew’s

parents’ failure to return the Letter of Intent and the pre-

registration form was not discussed at these meetings.

     On June 16, Eastwood’s 2000-01 eighth grade enrollment

reached its maximum.   According to YISD, Andrew was thus

effectively closed out of enrollment at Eastwood because the

school never received the Letter of Intent that would have

secured his position as an out-of-district student.    On July 26,

Andrew’s grandmother took Andrew to Eastwood to pre-register and

was told by school officials that Andrew could not attend

Eastwood.   On August 11, Principal Rivera notified Andrew’s

parents in writing that Andrew could not attend Eastwood for

2000-01.    Andrew’s parents then placed him in private school but

still seek his enrollment at Eastwood.

     On September 14, 2000, Marlene filed this suit in federal

district court against YISD, Rivera, and Defendant-Appellee

Superintendent Edward Lee Vargas (collectively, the “School




                                  4
District”).2   Marlene alleges that the School District violated

(1) Section 504 of the Rehabilitation Act of 1973 (the

“Rehabilitation Act”), 29 U.S.C.A. §§ 791-794 (West 1999); (2)

the Americans with Disabilities Act of 1990 (the “ADA”), 42

U.S.C.A. §§ 12131-34 (West 1999); and (3) Andrew’s due process

and equal protection rights under the Fourteenth Amendment to the

United States Constitution.    On March 15, 2001, the School

District filed a motion for summary judgment asserting that: (1)

Marlene failed to exhaust her administrative remedies prior to

filing this suit, as is required by the Individuals with

Disabilities Education Act (“IDEA”), 20 U.S.C.A. § 1415 (West

1999); and (2) the School District did not violate Andrew’s

constitutional or statutory rights as a matter of law.      On May 2,

2001, the district court granted summary judgment in favor of the

School District on the sole ground that Marlene failed to exhaust

her administrative remedies.    Marlene timely appeals the district

court’s summary judgment.

                      II. STANDARD OF REVIEW

     We review summary judgment de novo, applying the same

standards as the district court.       See, e.g., Commerce & Indus.

Ins. Co. v. Grinnel Corp., 280 F.3d 566, 570 (5th Cir. 2001).

     2
        Although Marlene has sued Rivera and Vargas in their
individual capacities, neither Marlene nor any of the defendants
makes any argument on appeal that revolves around that fact and
we, thus, treat them collectively along with YISD without,
however, intending to suggest that there are no differences in
their legal positions.

                                   5
Summary judgment is appropriate if “there is no genuine issue as

to any material fact and ... the moving party is entitled to a

judgment as a matter of law.”    FED. R. CIV. P. 56(c).   Once the

movant shows that no genuine issue of material fact exists, the

non-movant may not rest on mere allegations and denials, but must

set forth specific facts to establish a genuine issue of material

fact.    See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

                          III.   DISCUSSION

       Subsections (f) and (g) of Section 1415 of the IDEA outline

administrative procedures for the review and appeal of decisions

regarding the public education of disabled children.      These

procedures are designed to ensure that “children with

disabilities and their parents are guaranteed procedural

safeguards with respect to the provision of free appropriate

public education” by “State educational agenc[ies], State

agenc[ies, and] local educational agenc[ies]” that receive

federal assistance under the IDEA.    20 U.S.C.A. § 1415 (a), (f)-

(g).    Subsection (l) of Section 1415 of the IDEA requires that,

before any civil suit can be filed against state educational

agencies that receive funds under the IDEA claiming that an

educational decision regarding a disabled child violates federal

law, the plaintiff ordinarily first must exhaust all

administrative remedies available under subsections (f) and (g).




                                  6
See id. at § 1415 (l).3    It is undisputed that Marlene never

requested any administrative review of the decision of YISD not

to re-enroll Andrew.   She did not, for example, request an

administrative hearing.

     Marlene contends, alternatively, that exhaustion is not

required or, if required, would be “futile” and inadequate in her

case because: (1) her challenge does not concern an issue

governed by the IDEA because she does not challenge an

“educational placement” within the meaning of the act; (2) she

seeks retrospective compensatory money damages, a form of relief

not available under the IDEA; and (3) no administrative officer

has authority to remedy her claim by enrolling Andrew within a

non-resident district such as YISD.

     This court has not squarely confronted the issues and

arguments raised by Marlene’s claim.   However, examination of

decisions of our sister circuits considering the applicability of


     3
         Section 1415(l) reads in relevant part:

          Nothing in this chapter shall be construed to
     restrict or limit the rights, procedures, and remedies
     available under the Constitution, the [ADA] ..., the
     [Rehabilitation Act] ..., 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) of this section shall be exhausted to the same
     extent as would be required had the action been brought
     under this subchapter.

20 U.S.C.A. § 1415 (l).

                                 7
the IDEA exhaustion requirement indicates that Marlene’s claim is

of the type suited to administrative review prior to court

intervention and that such review would not be futile or

inadequate for the purposes of exhaustion.

     The parties first dispute whether Marlene’s claim is

directed toward a change by the School District in Andrew’s

“educational placement” within the meaning of the IDEA.    Marlene

argues that she challenges either an “expulsion” of Andrew or an

improper failure to re-enroll him by the School District, actions

which she claims are not “educational placement” decisions.

Marlene thus claims that she is not seeking redress under federal

law that “is also available under [the IDEA]” pursuant to

subsection (l).   Marlene claims, therefore, that subsection (l)’s

exhaustion requirement does not apply to her claim.   No court has

addressed this exact argument in the context of determining

whether dismissal of a federal law claim for failure to exhaust

administrative remedies is appropriate.   However, what case law

there is indicates that Marlene’s claim fits comfortably within

the purview of the IDEA for the purposes of the exhaustion

requirement.

     Subsection (b)(6) of Section 1415 focuses on protecting the

right of parents of disabled children to “an opportunity to

present complaints with respect to any matter relating to the

identification, evaluation, or educational placement of the

child, or the provision of a free appropriate public education to

                                 8
such child.”   20 U.S.C.A. § 1415 (b)(6) (emphasis added).   The

decisions on which Marlene relies in support of her argument that

the School District’s refusal to re-enroll Andrew does not fall

within this ambit, however, deal with whether a challenged

decision affects the “educational placement” of the student in

the context of determining whether IDEA requirements other than

exhaustion apply.   Those decisions involve challenges regarding

the IDEA’s notice requirement, 20 U.S.C.A. § 1415 (b), or the so-

called stay-put provision, 20 U.S.C.A. § 1415(j), which requires

that an institution maintain the current educational placement of

the student during the pendency of any administrative challenge

to a decision affecting the student.   See Bd. of Educ. of Cmty.

High Sch. Dist. No. 218, Cook County, Ill. v. Ill. State Bd. of

Educ., 103 F.3d 545, 549 (7th Cir. 1996) (finding that a disabled

student’s expulsion and successive transfers constituted

sufficient change in “educational placement” to invoke the IDEA’s

stay-put provision, but that the various schools implemented the

student’s IEP sufficiently to satisfy the student’s educational

“status quo” for the purposes of that IDEA requirement); Weil v.

Bd. of Elementary & Secondary Educ., 931 F.2d 1069, 1072 (5th

Cir. 1991) (finding that a transfer of a student for reasons

beyond the control of the institution did not constitute an

“educational placement” within the meaning of subsection (l)

sufficient to trigger the IDEA’s requirement of prior notice to



                                 9
parents); Lunceford v. Dist. of Columbia Bd. of Educ., 745 F.2d

1577, 1582-83 (D.C. Cir. 1984) (finding that the discharge of a

disabled student from a hospital that provided educational

services did not constitute a change in educational placement

sufficient to invoke the stay-put requirement so that the

applicable school district was not required to house the student

at the hospital or any equivalent facility during the pendency of

any administrative challenge by the parents to the discharge).4

Within those limited contexts, such decisions have defined a

change in “educational placement” as “‘at a minimum, a

fundamental change in, or elimination of a basic element of the

education program ....’”   See, e.g.,   Weil, 931 F.2d at 1072

(quoting Lunceford, 745 F.2d at 1582)).

     Marlene’s appeal, however, concerns the discrete issue of

whether the IDEA’s exhaustion requirement applies, not the stay-

put or notice requirements.   Marlene’s characterization of the

School District’s refusal to re-enroll Andrew as an “expulsion,”

or as a decision not affecting his “educational placement,” is

thus not dispositive of the question whether Marlene must first




     4
        Some of the decisions cited in this opinion and relied
upon by the parties, including Lunceford, were decided under the
IDEA’s predecessor, the former Education of the Handicapped Act
(the “EHA”), 20 U.S.C. § 1400 et seq. However, courts employ
decisions rendered under the EHA and IDEA interchangeably. See,
e.g., Babicz v. Sch. Bd. of Broward County, 135 F.3d 1420, 1422 &
n.10 (11th Cir. 1998).

                                10
exhaust administrative remedies before turning to court intervention.

     In those decisions by our sister circuits squarely

addressing the applicability of the IDEA exhaustion requirement,

such courts of appeals do not focus on whether a given decision

constitutes a change in a disabled student’s “educational

placement” per se.   Rather, those circuits have interpreted the

IDEA’s exhaustion requirement to apply to a broad range of claims

that even arguably might be redressed by the IDEA’s

administrative procedures and remedies and, thus, to include more

claims, for example, than those to which the stay-put clause

might apply.   See Hayes v. Unified Sch. Dist. No. 377, 877 F.2d

809, 813 (10th Cir. 1989) (holding that “[t]he fact that [a given

institutional decision] do[es] not constitute a change in

placement within the meaning of [the IDEA] ... does not remove

the action from the purview of the Act” for the purposes of its

administrative exhaustion requirement); see also Padilla v. Sch.

Dist. No. 1 in the City & County of Denver, Colo., 233 F.3d 1268,

1274 (10th Cir. 2000).   As the Tenth Circuit explained in

Padilla:

     In essence, the dispositive question generally is
     whether the plaintiff has alleged injuries that could
     be redressed to any degree by the IDEA’s administrative
     procedures and remedies. If so, exhaustion of those
     remedies is required. If not, the claim necessarily
     falls outside the IDEA’s scope, and exhaustion is
     unnecessary. Where the IDEA’s ability to remedy a
     particular injury is unclear, exhaustion should be
     required in order to give educational agencies an
     initial opportunity to ascertain and alleviate the
     alleged problem.

                                11
233 F.3d at 1274 (citing Charlie F. v. Bd. of Educ., 98 F.3d 989,

992, 993 (7th Cir. 1996)).    Cf. Babicz v. Sch. Bd. of Broward

County, 135 F.3d 1420, 1422 (11th Cir. 1998) (finding that

“claims asserted under Section 504 [of the Rehabilitation Act]

and/or the ADA are subject to [the] requirement that litigants

exhaust the IDEA’s administrative procedures to obtain relief

that is available under the IDEA before bringing suit”).

       In Hayes, for example, a school used a “time-out” room to

discipline two disabled students, and their parents filed suit in

federal court alleging constitutional violations without first

requesting any administrative hearing on the matter.     877 F.2d at

811.    That court of appeals noted that states and school

districts receiving federal funds are, under the IDEA, “required

to conduct ‘an impartial due process hearing’” for parental

complaints on “‘any matter relating to ... the provision of a

free appropriate public education.’”      Id. at 813 (emphasis in

original) (quoting 20 U.S.C.A. § 1415 (b)(1)(E)).     The court of

appeals agreed with the district court’s explicit finding in that

case that the minor disciplinary action of a time-out “did not

constitute a ‘change in placement’ within the meaning of the

[IDEA].”    Id. (emphasis added).    The court of appeals reasoned,

however, that because the state and the school district were

nevertheless required to conduct, and parents were entitled to

request, a hearing on challenges to such minor disciplinary

action, the parents should first turn to administrative remedies

                                    12
and expertise prior to seeking court intervention.   Id.    In so

doing, the court noted the close nexus between discipline of

children and in-class instruction “in providing a child with a

‘free appropriate public education’” so that such disciplinary

actions are those “relate[d] to the public education of a

handicapped child[,]” and parental challenges to them “therefore

fall[] within the scope of the [IDEA]” for the purposes of

exhaustion.   Id.   The court thus found that the parents were

required to “present their complaints concerning such

disciplinary action according to the procedures set forth by the

Act, whether or not they bring additional causes of action ‘under

the Constitution, ... the Rehabilitation Act of 1973, or other

federal statutes ....’”   Id. (quoting 20 U.S.C.A. § 1415(f)).

     In so ruling, the Hayes court relied on the purpose

underlying the IDEA’s exhaustion requirement for additional

support, quoting the Eleventh Circuit:

     “The philosophy of the [IDEA] is that plaintiffs are
     required to utilize the elaborate administrative scheme
     established by the Act before resorting to the courts
     to challenge the actions of the local school
     authorities. This exhaustion rule serves a number of
     important purposes, including (1) permitting the
     exercise of agency discretion and expertise on issues
     requiring these characteristics; (2) allowing the full
     development of technical issues and a factual record
     prior to court review; (3) preventing deliberate
     disregard and circumvention of agency procedures
     established by Congress; and (4) avoiding unnecessary
     judicial decisions by giving the agency first
     opportunity to correct any error.”




                                13
Id. at 814 (quoting Ass’n for Retarded Citizens, Inc. v. Teague,

830 F.2d 158, 160 (11th Cir. 1987)); see also Heldman v. Sobol,

962 F.2d 148, 159 (2d Cir. 1992) (“The exhaustion doctrine

prevents courts from undermining the administrative process and

permits an agency to bring its expertise to bear on a problem as

well as to correct its own mistakes.”) (citing McKart v. United

States, 395 U.S. 185, 193-95 (1969)) (citations omitted).    We

find the Tenth Circuit’s approach in Hayes and Padilla

persuasive.   We note that such approach is not based on the

perceived ultimate outcome of the review or whether the parents

may eventually seek court redress for any perceived failures of

the administrative process.   Rather this approach focuses on

whether it is appropriate that the administrative machinery be

given a chance to work without court interference and to prevent

unnecessary court adjudication of any portion of the claim.     We

thus find that even more than the challenge to the minor time-out

disciplinary action at issue in Hayes, Marlene’s challenge to the

non-enrollment of Andrew in a public school bears sufficiently

close nexus to provision of his free and appropriate education to

warrant allowing school administration a chance to review and

attempt to remedy her complaint prior to court intervention.

     Marlene is correct, however, that even where a matter, such

as the YISD’s refusal to re-enroll Andrew, appears to be within

the ambit of the IDEA exhaustion requirement, such exhaustion may

nevertheless be excused where it would prove “futile or

                                14
inadequate” (referred to commonly as the “futility exception”).5

See, e.g., Gardner v. Sch. Bd. Caddo Parish, 958 F.2d 108, 112

(5th Cir. 1992) (recognizing the futility exception in context of

a challenge to limitations placed on the tape recording of

parent-teacher conferences, but refusing to excuse exhaustion

where the plaintiffs failed to allege futility); see also Hayes,

877 F.2d at 814 (same).   Courts of appeals have interpreted the

futility exception narrowly, however, thus far recognizing

futility in only two circumstances.

     First, courts of appeals have recognized futility when a

plaintiff alleges that the particular administration to which she

would turn is so “systemically” flawed that review is rendered

wholly futile or inadequate.   Compare Heldman, 962 F.2d at 159

(finding that a plaintiff who claimed that a New York state

statute “specifying the hearing officer selection procedure

violates the [IDEA] mandate” need not exhaust administrative


     5
        We note that courts inconsistently approach arguments
regarding exhaustion, such as arguments that administration has a
lack of authority to remedy or that monetary damages render
exhaustion unnecessary, via analysis under the rubric of either
whether a given claim falls within the scope of the IDEA or comes
within the futility exception. Compare Padilla, 233 F.3d at 1274
(analyzing whether a claim for money damages renders exhaustion
unnecessary as an argument whether the IDEA is at all applicable,
but not as a futility argument), with Covington v. Knox County
Sch. Sys., 205 F.3d 912, 918 (6th Cir. 2000) (analyzing an
argument against exhaustion based on a claim for money damages as
a futility argument). Regardless of the characterization of such
arguments, the IDEA exhaustion jurisprudence persuades us that
Marlene’s arguments that she need not exhaust administrative
remedies fail.

                                15
remedies because to “require a systemic challenge, such as [the

plaintiff’s], to pursue administrative remedies would not further

the purposes of IDEA and would only serve to insulate the state

procedures from review - an outcome that would undermine the

system Congress selected for the protection of the rights of

children with disabilities”); Mrs. W. v. Tirozzi, 832 F.2d 748,

757 (2d Cir. 1987) (finding that it would be futile for class

plaintiffs to exhaust administrative remedies under the IDEA

based on plaintiffs’ prior attempts to complain to a school board

about that board’s failure to provide adequate psychological

assistance and evaluation to their disabled children, as well as

based on plaintiffs’ claims that the board also failed to provide

parents with adequate hearings on that issue, and thus finding

that “[the class] complaint alleges a pattern and practice of

systematic [IDEA] violations unable to be addressed at the due

process hearings provided in the [state]” and that a state

hearing officer lacked authority to provide “class action and

systemwide relief”), with, e.g., Doe v. Ariz. Dep’t of Educ., 111

F.3d 678, 682-83 (9th Cir. 1997) (relying on decisions from the

Second, Third, and Tenth Circuits and finding that claims of

“neglect of children at a single [prison] facility,” which housed

some juvenile disabled inmates, required exhaustion under the

IDEA because the violation “does not rise to a truly systemic

level in the sense that the IDEA’s basic goals are threatened on

a system-wide basis”) (internal quotation and citation omitted).

                               16
As the Ninth Circuit explained in Arizona Department of

Education,

     it appears that a claim is “systemic” if it implicates
     the integrity or reliability of the IDEA dispute
     resolution procedures themselves or requires
     restructuring the education system itself in order to
     comply with the dictates of the Act; but that it is not
     “systemic” if it involves only a substantive claim
     having to do with limited components of a program, and
     if the administrative process is capable of correcting
     the problem.

Id. at 682.   Marlene makes no challenge to the integrity or

reliability of the entire available state administrative review

process, none that indicates required restructuring of the system

to comply with the dictates of the IDEA, or for which exhaustion

would undermine Congressional purpose in enacting the IDEA.

Thus, Marlene’s claims fail to evince systemic futility.

     The second instance in which courts have recognized futility

occurs when a plaintiff claims an injury for which retrospective

monetary compensation is the only apparent appropriate remedy

because the separate educational issue component of the claim is

already determined, settled or somehow mooted.   Compare Covington

v. Knox County Sch. Sys., 205 F.3d 912, 917-18 (6th Cir. 2000)

(agreeing with “those courts that have decided that a mere claim

for money damages is not sufficient to render exhaustion ...

unnecessary,” but holding “in the unique circumstances of this

case - in which the injured child has already graduated from the

special education school, his injuries are wholly in the past,

and therefore money damages are the only remedy,” and “there is

                                17
no equitable relief that would make [the student] whole,” so that

exhaustion would be “futile” and thus was not required); Witte v.

Clark County Sch. Dist., 197 F.3d 1271, 1275-76 (9th Cir. 1999)

(finding exhaustion unnecessary because a plaintiff sought only

“retrospective” money damages and no costs for “remedial

services” on behalf of a disabled student claiming psychological

and physical abuse by staff at one school, after the student

moved to another school within the district at which the student

was satisfied, “because all educational issues already have been

resolved to the parties’ mutual satisfaction through the IEP

process”);   W.B. v. Matula, 67 F.3d 484, 495-96 (3d Cir. 1995)

(finding that exhaustion would be “futile, perhaps even

impossible” when parents filed a § 1983 action seeking money

damages for constitutional violations due to a school’s repeated

refusal to evaluate and classify a child as disabled because,

after extensive administrative proceedings, the school board and

the parents entered into a binding settlement that the child

would be classified as impaired so that the issue of the

student’s classification and placement had been resolved and the

only remaining issue was monetary damages for the past injury),

with Charlie F., 98 F.3d at 991-92 (requiring exhaustion of

administrative remedies because, although a plaintiff requested

only monetary damages for claims that a teacher encouraged fellow

students to verbally humiliate the student leading to physical

altercations, and although the student had since moved to a new

                                18
school at which he was satisfied, the “educational professionals

and hearing officers who evaluate claims under the IDEA” might

nevertheless conclude that the disabled student could be provided

“remedial services” to treat the past humiliation so that

“pursuit of the administrative process would be justified”).       In

W.B., the Third Circuit further explained that this type of

futility is generally recognized due to past injury that appears

likely redressable solely by monetary compensation:

     There may be other very narrow exceptions permitting
     the exhaustion requirement to be waived before filing
     a [federal] claim, such as where the parents of a
     deceased child seek damages for a school board’s
     failure to provide IDEA services while the child was
     still alive. Such exceptions, whether based on
     futility or other grounds, would be rare indeed.


67 F.3d at 496.   When read together, these decisions indicate

that regardless of whether a plaintiff claims monetary

compensation for injury to a disabled child, where an educational

issue of the case that has any possibility of redress by

administrative procedures remains unresolved, excuse from

exhaustion is not appropriate.   The mere presence of a claim of

monetary compensation will not render a claim incapable of

redress by an administrative body under the IDEA.     See, e.g.,

Covington, 205 F.3d at 917.

     In the instant case, it is undisputed that, although Marlene

claims “compensatory damages,” she also prays for relief in the

form of “a permanent injunction prohibiting the defendants from


                                 19
excluding plaintiff from attendance at Eastwood Knolls School,”

as well as “such other and further relief as the court may deem

just, proper and appropriate.”   Thus, Marlene’s own request for

relief asks for prospective equitable relief to remedy the School

District’s non-enrollment of Andrew.   That educational issue

remains unresolved in this case, and Marlene made no prior

attempt whatsoever at administrative redress.   Consequently, in

accord with the persuasive reasoning of our sister circuits, we

find that Marlene’s claim is not of the type that warrants excuse

of administrative exhaustion based on her claim for compensatory

money damages.

     Marlene’s final claim - that administrative review would

prove inadequate because she alleges that a hearing officer lacks

authority to reinstate Andrew within the YISD - is likewise

unavailing.    Marlene relies upon a single decision by a district

court to support this proposition, Padilla v. Sch. Dist. No. 1 in

the City & County of Denver, Colo., 35 F. Supp. 2d 1260, 1265-66

(D. Colo. 1999).   In Padilla, a parent filed claims under § 1983

and the ADA on behalf of her handicapped child against a

defendant school district in which the student no longer resided.

Id. at 1264.   It is true that in Padilla, based on a school

district’s refusal to grant a hearing to the parent after the

student relocated to another district, the district court excused

the plaintiff from exhaustion of administrative remedies and

denied dismissal of the federal law claims, reasoning that at the

                                 20
time of the requested hearing, “the hearing officer lacked

authority to grant relief.”   Id. at 1266.6   However, one of our

sister circuits has explicitly rejected this argument that non-

residence within a school district constitutes sufficient grounds

alone to excuse exhaustion of administrative remedies.    See N.B.

v. Alachua County Sch. Bd., 84 F.3d 1376, 1379 (11th Cir. 1996)

(requiring exhaustion and rejecting the argument that because a

student “no longer attends any of the defendant school districts”

such exhaustion would prove futile).   In N.B, the Eleventh

Circuit reasoned that

      [i]f parents can bypass the exhaustion requirement of
      the IDEA by merely moving their child out of the
      defendant school district, the whole administrative
      scheme established by the IDEA would be rendered
      nugatory. Permitting parents to avoid the requirements
      of the IDEA through such a “back door” would not be
      consistent with the legislative intent of the IDEA.


Id.   We find this reasoning persuasive and in no way diminished

simply because Andrew, as a transfer student to Eastwood, was not




      6
        The Tenth Circuit subsequently reversed the district
court’s judgment as to the § 1983 claim and thus dismissed that
claim, but on a different ground than exhaustion. Padilla, 233
F.3d at 1274. The court of appeals affirmed the district court’s
judgment denying dismissal of the ADA claim and found that the
plaintiff need not administratively exhaust as to that claim, but
likewise based its decision on a different rationale than that of
the district court. See id. at 1274-75. At a minimum, in not
analyzing or relying on the district court’s rationale, the Tenth
Circuit failed to endorse the district court’s reasoning that a
student’s non-residency within a district constitutes sufficient
grounds alone to excuse exhaustion of administrative remedies.

                                21
removed from the YISD by his parents, but already resides outside

of the YISD.

     Moreover, Marlene merely asserts in conclusory fashion that

a hearing officer lacks authority to provide any appropriate

remedy for Andrew’s circumstance, including reinstatement within

the YISD.7   As the Seventh Circuit stated in Charlie F., it is

not the specific relief which the plaintiff requests that is the

gravaman of the inquiry into whether exhaustion is appropriate,

but rather the “available relief” of which the IDEA speaks.       98

F.3d at 991-92 (emphasis added).     See also Padilla, 233 F.3d at

1274 (“Like the Seventh Circuit, we understand ‘available’ relief

to mean relief for the events, condition, or consequences of

which the person complains, not necessarily relief of the kind

the person prefers ... or specifically seeks.”) (internal

citation and quotation omitted).     Thus, if there appears any

arguable likelihood that the administrative process might provide

any form of equitable, remedial relief to Andrew, then this court

must not interfere so as not to frustrate Congressional purpose

in enacting the IDEA.   See, e.g., Charlie F., 98 F.3d at 991-92.

     7
        Marlene relies on Section 25.036 of the Texas Education
Code to make this argument. This section only requires, however,
that for proper transfer of a student into a non-resident school
district, the parent and the district must “jointly approve and
timely agree in writing to the transfer” and that such written
agreement be filed with the applicable district. TEX. EDUC. CODE
ANN. § 25.036 (Vernon 1996). Nothing in this section precludes,
therefore, the possibility that the School District and Marlene
might now agree in writing to enrollment of Andrew at a school
within the YISD, or even at Eastwood.

                                22
     Marlene bears the burden of showing that exhaustion would be

futile or inadequate.    Gardner, 958 F.2d at 112 (citing Honig v.

Doe, 484 U.S. 305, 327 (1988)).    As the district court correctly

noted, even assuming that a hearing officer could not reinstate

Andrew to Eastwood, or even to another school within the YISD,

Marlene has not pointed to facts that, if proven true at trial,

indicate that an administrative hearing officer lacks authority

to review Andrew’s circumstance and to provide any form of relief

regarding his enrollment in an appropriate educational situation.

As the Sixth Circuit stated in Covington, “a more appropriate

educational placement, provided at public expense - is precisely

the kind of relief that the state administrative process is

equipped to afford.”    205 F.3d at 918 (citing Doe v. Smith, 879

F.2d 1340, 1341-42 (6th Cir. 1989)).   Consequently, Marlene

offers no compelling grounds for excusing her from exhaustion of

administrative remedies prior to seeking court intervention.    We

decline, therefore, to interfere with the School District’s

opportunity to administratively redress Marlene’s claims

regarding Andrew’s prospective educational enrollment via proper

procedures in comportment with the IDEA.8

                           IV. CONCLUSION


     8
        Because we agree with the district court that Marlene
must exhaust administrative remedies before turning to federal
court, we likewise decline to address any arguments regarding the
substance of Marlene’s federal claims under the Rehabilitation
Act, the ADA, or the Constitution.

                                  23
     The district court’s summary judgment in favor of the School

District dismissing Marlene’s claims under federal law for

failure to exhaust administrative remedies is AFFIRMED.




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