                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-12-1996

Jeremy H v. Mt Lebanon Schl Dist
Precedential or Non-Precedential:

Docket 95-3355




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"Jeremy H v. Mt Lebanon Schl Dist" (1996). 1996 Decisions. Paper 71.
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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                        _______________

                          NO. 95-3355
                        _______________

      JEREMY H., a Minor, by his Father and Next Friend,
   W.E. HUNTER; W.E. HUNTER, on His Own Behalf; RITA HUNTER

                              v.

    MOUNT LEBANON SCHOOL DISTRICT; ROBERT GERMAN, personally
     and in his official capacity as a member of the Mount
   Lebanon School Board; JUDY MCVERRY, personally and in her
official capacity as a member of the Mount Lebanon School
     Board; MARIE LORETTA HUMPHREYS, personally and in her
      official capacity as a member of the Mount Lebanon
  School Board; HENRY J. KASKI, personally and in his official
capacity as a member of the Mount Lebanon School Board;
CAROL J. WALTON, personally and in her official capacity as a
  member of the Mount Lebanon School Board; TEMPLETON SMITH,
   personally and in his official capacity as a member of
the Mount Lebanon School Board; JEAN PALCHO, personally and in
   her official capacity as a member of the Mount Lebanon
    School Board; BEVERLY MAURHOFF, personally and in her
     official capacity as a member of the Mount Lebanon
    School Board; DR. GLENN SMARTSCHAN, personally and in
 his official capacity as Superintendent of the Mount Lebanon
   School Board; DR. DEBORAH ALLEN, personally and in her
   official capacity as Director of Pupil Services of the
     Mount Lebanon School District; DR. MONICA SULLIVAN,
    personally and in her official capacity as Supervisor
 of Special Education of the Mount Lebanon School District;
 DR. LINDA MILLER, personally and in her official capacity as
    Supervisor of Special Education of the Mount Lebanon
                       School District

                             JEREMY H., a minor, and W.E. HUNTER,
                                                      Appellants
                        _______________

       On Appeal from the United States District Court
           for the Western District of Pennsylvania

                      D.C. No. 94-cv-00114
                        _______________

                    Argued March 21, 1996
            Before: BECKER and McKEE, Circuit Judges
and POLLAK, District Judge

                    (Filed September 12, 1996)

                         Frank J. Laski (argued)
                         Public Interest Law Center
                              of Philadelphia
                         125 S. 9th St., Suite 700
                         Philadelphia, PA 19107
                           Attorney for Appellants

                         William C. Andrews (argued)
                         Andrew J. Leger, Jr.
                         Maiello, Andrews & Price
                         3301 McCrady Road
                         One Churchill Park
                         Pittsburgh, PA 15235

                         James C. Kletter
                         Springer, Bush & Perry
                         Two Gateway Center
                         15th Floor
                         Pittsburgh, PA 15222
                           Attorneys for Appellees

                          ______________

                       OPINION OF THE COURT
                         _______________
POLLAK, District Judge.
     The Individuals with Disabilities Education Act ("IDEA"), 20
U.S.C. § 1400 et seq., requires states which accept federal funding
for the education of disabled children to insure that those
children receive a "free appropriate public education." 20 U.S.C.
§ 1415(a). The plaintiffs before us in this case    Jeremy Hunter,
who has a severe visual handicap, his father, W. Eugene Hunter, and
his mother, Rita Hunter (collectively, "the Hunters")    assert that
the Mount Lebanon School District and its staff have, over the
course of many years, failed to provide the "appropriate"
educational program to which Jeremy Hunter has been entitled. As
is required by IDEA, the Hunters initially invoked a Pennsylvania
administrative procedure established to resolve such claims.
Dissatisfied, they then filed a complaint in federal district
court, in which they brought claims under a number of statutes:
IDEA; the Americans with Disabilities Act ("ADA"), 42 U.S.C. §
12101 et seq.; the Rehabilitation Act, 29 U.S.C. §§ 720, 794; and
42 U.S.C. § 1983. They named as defendants the Mount Lebanon
School District; eight members of the Mount Lebanon School Board
(sued both in their official and in their individual capacities);
and four officials of the Mount Lebanon School District (also sued
in both their official and their individual capacities).
     The defendants filed a motion to dismiss, asserting, inter
alia, that the Hunters' IDEA claims were barred by the statute of
limitations and by the Hunters' failure to exhaust administrative
remedies. The district court granted this motion as to all of the
Hunters' claims, and ordered that the complaint be dismissed. The
Hunters have appealed.

              I. FACTUAL AND PROCEDURAL BACKGROUND
     Our recitation of this case's long history is largely derived
from the allegations in the Hunters' complaint. The principal
figure in this history, Jeremy Hunter, was born on September 6,
1976. Before he entered kindergarten, he was diagnosed with
Brown's Syndrome, a vision disorder, in his left eye, and with
occlusional nystagmus, also a vision disorder, in both eyes.
Brown's Syndrome apparently renders it difficult to maintain
binocular vision, which in turn causes "reduced reading rate and
orientation and mobility problems." Occlusional nystagmus causes
fatigue, rendering it difficult for a student to read for long
periods. App. at 14-15.
     In January, 1982, while he was in kindergarten, Jeremy had
surgery to correct his Brown's Syndrome; this surgery was reported
(apparently erroneously) to have corrected his problem. App. at
14-15. A year later, Mount Lebanon School District (MLSD)
determined that Jeremy was eligible to receive special education
services. For the next six years, Jeremy received such services
from vision teachers provided by the School District. Over this
period, the School District conducted a series of assessments of
Jeremy's educational needs; these assessments were termed
multidisciplinary evaluations, because they included contributions
from a variety of specialists. Based on these evaluations, MLSD
prepared annual individualized education plans, or IEPs, for
Jeremy.
     During this six-year period, the complaint states, Jeremy
experienced difficulty with "reading, completing assignments, and
orientation and mobility," App. at 108, problems that the Hunters
aver resulted from the defendants' failure adequately to
accommodate his disability. As a result of these difficulties,
Jeremy had a number of bouts of serious anxiety about school. In
the fall of 1989, when Jeremy was about to enter junior high
school, his parents concluded that his emotional condition required
that they withdraw him from public school. The Hunters placed
their son in private (and later in parochial) school, where, the
complaint states, he received services that were more appropriate
to his needs. The Hunters also hired a number of private vision
teachers for Jeremy, and helped him with his homework themselves.
     Jeremy's parents continued to press MLSD to provide Jeremy
with an appropriate public education. Accordingly, in late 1990
and early 1991, the District conducted another multidisciplinary
evaluation, and prepared another IEP, apparently without providing
Jeremy's parents with an opportunity to participate in this
process. Jeremy's parents were dissatisfied with the composition
of the team conducting the multidisciplinary evaluation and with
the evaluation's results, as well as with the results of the IEP,
and responded by invoking the IDEA administrative dispute-
resolution procedure.
     IDEA (1) requires that state educational agencies which
receive federal assistance establish administrative procedures for
resolving disputes as to the education of disabled children, and
(2) provides certain criteria for those procedures. See 20 U.S.C.
§ 1415. These procedures are intended "to assure that children
with disabilities and their parents or guardians are guaranteed
procedural safeguards with respect to the provision of free
appropriate public education by such agencies and units." 20
U.S.C. § 1415(a). IDEA envisions a three-stage dispute-resolution
process. The initial stage is a hearing, at which the parties are
afforded enumerated procedural protections. See § 1415(b), (d).
Parties aggrieved by the findings and decision of the hearing
process may appeal to the state's educational agency. See 20
U.S.C. § 1415(c). Thereafter, IDEA permits an aggrieved party to
file a civil action. See 20 U.S.C. § 1415(e).
     In Pennsylvania, the initial, hearing stage of the IDEA
process is termed a "due process hearing." The processing of the
Hunters' complaint began with such a hearing. The matter was
assigned to Dr. Constance Fox Lyttle; Dr. Lyttle's inquiry into the
Hunter grievance consumed nineteen hearing days over the period
from October 1991 to September 1992. On February 24, 1993, Dr.
Lyttle issued a detailed and lengthy report of her findings and
decision. Both sides then invoked the IDEA administrative appeals
procedure, which, in Pennsylvania, takes the form of an appeal to
the Special Education Due Process Review Panel. On May 21, 1993,
the appellate panel issued an opinion that substantially affirmed
the hearing officer's findings and decision, with certain
modifications.
     The following is a summary of the principal elements of the
hearing officer's findings and decision, and of those conclusions
of the appellate panel which differed from the conclusions of the
hearing officer.

     1. The Hunters had requested reimbursement for evaluations of
     Jeremy that they had had performed at their own expense. The
     hearing officer found that MLSD's multidisciplinary
     evaluations suffered from a number of major deficiencies,
     noting, for instance, that MLSD had found that Jeremy had
     below-normal intelligence on the basis of tests that were not
     designed for use with children with impaired vision.
     Accordingly, she ordered that MLSD reimburse the Hunters for
     evaluations that they had commissioned at their own expense,
     and that MLSD provide for a number of new evaluations. App.
     at 17, 40-44, 64.

     2. The Hunters asserted that the IEPs prepared by MLSD were
     vague and inappropriate. The hearing officer agreed. App. at
     44-47.

     3. The Hunters asserted that MLSD had erred when, during
     Jeremy's sixth-grade year, it had switched him from a plan
     under which he received reduced assignments to accommodate his
     difficulties with reading to a plan under which he received a
     full assignment load. The hearing officer agreed, and found
     that MLSD should prepare a new IEP for Jeremy. The parties
     had stipulated to a list of persons to be included on a team
     charged with preparing such an IEP. This list included the
     Hunters' own vision expert, Jeremy's psychologist, Jeremy's
     parents, and some MLSD personnel. App. at 39. The hearing
     officer's decision provided detailed guidelines for the
     elements of the IEP, App. at 50-52; the appellate decision
     eliminated some of these provisions, App. at 96-98, leaving
     these issues to be decided by the future team.

     4. The Hunters asked for repayment of the private-school
     tuition that they had paid. The hearing officer denied this
     request, on the grounds that the school Jeremy attended was
     simply a private school, with no special facilities to
     accommodate his handicap. App. at 52-53.

     5. The hearing officer found that MLSD had not provided
     Jeremy with the "free appropriate public education" guaranteed
     to him by IDEA. Accordingly, she ordered that MLSD provide
     compensatory education, in the form of special sessions during
     the school year and a four-week summer program. App. at 53-
     54. The appellate panel found that these services should be
     provided for two years, or until Jeremy graduated from high
     school. App. at 96.

     6. The Hunters sought reimbursement for psychological and
     vision training that they had paid for while Jeremy attended
     MLSD public schools. The hearing officer found that the
     latter services should be reimbursed, but not the former.
     App. at 55-56.

     7. The Hunters sought reimbursement for a wide range of
     services that they had paid for while Jeremy attended private
     schools. The hearing officer disallowed some psychological
     and vision counseling, allowed a vision-related summer program
     and specialist, allowed expenses for vision-related equipment,
     and disallowed compensation for the time of Jeremy's parents.
     App. at 56-60.

The hearing officer also rejected a number of theories under which
MLSD sought to contest the Hunters' claims, including a claim that
they were barred by the statute of limitations since much of the
conduct at issue had occurred many years earlier. App. at 60-62.
     For reasons that are not made fully clear in the Hunters'
complaint, much or all of the foregoing order was never
implemented; in particular, no new evaluations were conducted, no
new IEP was prepared, and Jeremy's compensatory education never
materialized. (The Hunters' complaint refers to MLSD's "failure to
allow another agency to assume responsibility for
evaluation/programming when requested by the parents," App. at 114,
suggesting that this may have been one area of disagreement.)
After the appellate decision was issued, Jeremy and his father
apparently established residency in Ohio, as a result of which the
state of Ohio placed Jeremy at the Ohio State School for the Blind
during the 1993-94 school year. This placement, although helpful,
was apparently a lonely one for Jeremy, and in the summer of 1994
he and his father returned to Pennsylvania.
     On November 17, 1994, the Hunters filed their complaint in
this suit. Their complaint made claims based, on the foregoing
events, under IDEA, the Rehabilitation Act, the ADA, and section
1983. In their prayer for relief, they asked that the court:

     1. Preliminarily and permanently enjoin Mount Lebanon School
     District to comply with the requirements of IDEA, ADA and §
     504 of the Rehabilitation Act by arranging for free
     appropriate public education be provided [sic] to Jeremy
     Hunter by a local educational agency other than Mount Lebanon
     School District that is capable of undertaking the
     responsibility to properly evaluate Jeremy Hunter and develop,
     in cooperation with Jeremy and his parents, an individual
     education plan and to deliver to Jeremy the education and
     supplementary services required for him to benefit from his
     education and achieve his educational potential.

     2.   Award plaintiff compensatory and punitive damages.

App. at 122.
     The defendants then filed a motion to dismiss the Hunters'
complaint for failure to state a claim, or, in the alternative, to
have the court order a more specific pleading. The motion cited
nine grounds for dismissal, one of which was that the Hunters' IDEA
claims were barred by the statute of limitations and by failure to
exhaust administrative remedies.
     On May 30, 1995, in a brief memorandum, the district court
dismissed all of the Hunters' claims.   The district court began by
noting that section 1983 creates no substantive rights, and that
the court would therefore focus on the underlying statutory claims.
As to the Hunters' IDEA claims, the district court found that a
two-year statute of limitations applied. The Hunters' complaint
was filed on November 17, 1994; thus, the district court found that
the plaintiffs were "entitled to recover only for alleged IDEA
violations that occurred after November 17, 1992." Because the
only administrative proceeding brought by the Hunters was initiated
in October, 1991, the court found that the Hunters had not
exhausted their administrative remedies as to post-November 17,
1992 events. Finally, the court found that the Hunters were barred
from pursuing their ADA and Rehabilitation Act claims because they
had not exhausted the administrative remedies provided by Title
VII.
     On appeal, the Hunters assert that these findings were error.
We have jurisdiction over the Hunters' appeal pursuant to 28 U.S.C.
§ 1291. Our review of a Rule 12(b)(6) dismissal is plenary.
SeeScattergood v. Perelman, 945 F.2d 618, 621 (3d Cir. 1991).
     In Part II of this opinion we address the statutory bases of
the Hunters' claims. First, we will outline the relevant
provisions of IDEA, of the ADA, and of the Rehabilitation Act.
Then we will discuss the Hunters' section 1983 claim, which, we
conclude, does have substantive content. In Part III of this
opinion we address the statute of limitations aspect of the
Hunters' IDEA claims.   Finally, in Part IV, we address questions of
exhaustion.

         II. THE STATUTORY BASIS OF THE HUNTERS' CLAIMS
A.  The Individuals with Disabilities Education Act
     As we have already noted, IDEA guarantees that all disabled
children in states accepting federal funding for education for the
disabled will receive a "free appropriate public education." 20
U.S.C. § 1415(a). IDEA also, as we have indicated, provides a
procedure that allows disabled children and their parents to
enforce this guarantee.
     As the final stage of this enforcement procedure, IDEA permits
"any party aggrieved by the findings and decision" of the state
appellate procedure to "bring a civil action with respect to the
complaint presented pursuant to this section, which action may be
brought in any State court of competent jurisdiction or in a
district court of the United States without regard to the amount in
controversy." 20 U.S.C. § 1415 (e)(2). IDEA further provides
that, in such an action, "the court shall receive the records of
the administrative proceedings, shall hear additional evidence at
the request of a party, and, basing its decision on the
preponderance of the evidence, shall grant such relief as the court
determines is appropriate." 20 U.S.C. § 1415 (e)(2).
     In part, the Hunters' complaint seeks to contest adverse
decisions by the state hearing officer and the appellate panel.
To the extent that this is the relief that the Hunters seek, their
complaint would seem to be properly brought under § 1415(e)(2).
However, the Hunters' complaint also apparently seeks in part to
enforce elements of the decision of the state administrative
process. There may be some question whether this aspect of the
complaint can properly be pursued under § 1415(e)(2); but the
question is not one we need to resolve in the context of this case,
since, as we note hereafter (see infra, typescript at 16-17),
section 1983 (42 U.S.C. § 1983) provides an adequate vehicle for a
suit to enforce an IDEA administrative decision.

B.  The Rehabilitation Act
     IDEA sets forth a positive right to a "free appropriate public
education." By contrast, section 504 of the Rehabilitation Act, 29
U.S.C § 794, also invoked by the Hunters, is cast in negative
terms, barring all federally funded entities (governmental or
otherwise) from discriminating on the basis of disability. SeeW.B. v.
Matula, 67 F.3d 484, 492 (3d Cir. 1995). Section 504
states, in relevant part:

          No otherwise qualified individual with a disability in
          the United States . . . shall, solely by reason of his or
          her disability, be excluded from the participation in, be
          denied the benefits of, or be subjected to discrimination
          under any program or activity receiving Federal financial
          assistance or under any program or activity conducted by
          any Executive agency or by the United States Postal
          Service.
29 U.S.C. § 794 (a). We noted in Matula that, as this portion of
the Rehabilitation Act has been interpreted, "[t]here appear to be
few differences, if any, between IDEA's affirmative duty and §
504's negative prohibition." 67 F.3d at 492-93. We also found in
Matula that both injunctive relief and monetary damages are
available under section 504. See Matula, 67 F.3d at 494.

C.  The Americans with Disabilities Act
     The Hunters do not cite a specific provision of the ADA in
their complaint. We will assume, however, that it was their
intention to rely upon 42 U.S.C. § 12132, which extends the
nondiscrimination rule of section 504 of the Rehabilitation Act to
services provided by any "public entity" (without regard to whether
the entity is a recipient of federal funds). See Helen L. v.
DiDario, 46 F.3d 325, 331-32 (3d Cir. 1995). Section 12132 states:

          Subject to the provisions of this subchapter, no
          qualified individual with a disability shall by reason of
          such disability be excluded from participation in or be
          denied the benefits of the services, programs, or
          activities of a public entity, or be subjected to
          discrimination by any such entity.

42 U.S.C. § 12132 (1995). Under 42 U.S.C. § 12133, "the remedies,
procedures, and rights set forth in section 794a of Title 29 shall
be the remedies, procedures, and rights this subchapter provides to
any person alleging discrimination on the basis of disability in
violation of section 12132 of this title." 42 U.S.C. § 12133
(1995). 29 U.S.C. § 794a is the provision that governs remedies
for violations of section 504 of the Rehabilitation Act. Because
we held in Matula that this provision permitted claims for monetary
damages, see 67 F.3d at 494, it follows that those claims are also
permitted under the ADA.

D.   Section 1983
     Section 1983 provides a civil remedy for acts taken under
color of law that deprive "any citizen of the United States or
person within the jurisdiction thereof" of "rights, privileges, or
immunities secured by the Constitution and laws."   42 U.S.C. §
1983. Not infrequently, section 1983 (1) provides redress for
violations of federal laws that do not by their own terms create a
cause of action, or (2) provides remedies not available directly
under those laws.
     In the present case, whether or not an IDEA decision of a
state hearing officer or appellate body is enforceable under IDEA
directly, such a decision would seem to be enforceable under
section 1983. The Fourth Circuit found, in Robinson v.
Pinderhughes, 810 F.2d 1270 (4th Cir. 1987), that a section 1983
action could be brought to enforce the decision of an IDEA
administrative proceeding. We agree with the reasoning of
Pinderhughes, and note that the Supreme Court's present methodology
for ascertaining whether a section 1983 action is available to
redress a violation of federal law produces the same result.
                 III. THE STATUTE OF LIMITATIONS
     In Tokarcik v. Forest Hills School District, 665 F.2d 443 (3d
Cir. 1981), this court found, drawing on Pennsylvania law, that
either a two-year or a six-year limitations period applied to the
filing of IDEA actions. We did not then have occasion to decide
between these two periods, although we suggested that a two-year
period might be appropriate. See id. at 454-55.
     The district court, citing Tokarcik, applied a two-year
limitations period to the plaintiffs' IDEA claims. It stated that
the plaintiffs had filed their action on November 17, 1994, and
that they therefore could not recover for any alleged IDEA
violations that had occurred before November 17, 1992   in other
words, for virtually all of the events at issue in their complaint.
     We find that the district court's application of the
limitations period in this manner was error. IDEA requires that a
plaintiff exhaust state administrative remedies before initiating
a civil suit. In the present case, that process took some eighteen
months, from October 1991 to May 1993. (Indeed, the Hunters
apparently first requested a due process hearing in February 1991,
over two years before the appellate panel issued its decision in
May 1993.) As it was applied by the district court, the
limitations period could, in combination with the exhaustion
requirement, operate to deprive a plaintiff of much or all relief
under IDEA.
     There remains the question   not explicitly answered by
Tokarcik   of how the statute of limitations is to be applied.
There would appear to be two principal alternatives: (1) that the
period begins when the acts complained of occur (and is tolled
while exhaustion occurs), and (2) that the period begins once the
state administrative process has run its course. The first
approach has many flaws; for instance, it requires a complex
tolling analysis, and allows different plaintiffs widely varying
(and perhaps difficult-to-ascertain) periods in which they may
bring suit. It might therefore interfere with the statutory policy
  cited by Tokarcik in declining to apply a thirty-day limitations
period   of allowing parents ample time to work together with
school authorities in evaluating and implementing administrative
decisions, and then, if necessary, to prepare an appeal. SeeTokarcik, 665
F.2d at 451-53 (1981). Accordingly, we find that
the second approach is preferable, that the limitations period for
the initiation of the present action therefore only began to run
once the appellate panel issued its decision, on May 21, 1993, and
that all of the Hunters' claims now before this court were
therefore timely brought.

                         IV. EXHAUSTION
     IDEA requires, in section 1415(e)(2), that an aggrieved party
must invoke a state's administrative procedures before bringing an
IDEA claim in state or federal court. Section 1415(f) of IDEA
adds to this the requirement that, before bringing claims under
other statutes that "seek[] relief that is also available under
this subchapter," the administrative procedures set forth in
section 1415 "shall be exhausted to the same extent as would be
required had the action been brought under this subchapter." 20
U.S.C. § 1415(f). This provision bars plaintiffs from
circumventing IDEA's exhaustion requirement by taking claims that
could have been brought under IDEA and repackaging them as claims
under some other statute    e.g., section 1983, section 504 of the
Rehabilitation Act, or the ADA. See W.B. v. Matula, 67 F.3d 484
495-96 (3d Cir. 1995) (citing the legislative history of § 1415(f)
as stating that "parents alleging violations of section 504 [of the
Rehabilitation Act] and 42 U.S.C. 1983 are required to exhaust
administrative remedies before commencing separate actions in court
where exhaustion would be required under [IDEA].") (quoting H.R.
Rep. No. 99-296, 99th Cong., 1st Sess. 7 (1985)); Hope v. Cortines,
69 F.3d 687, 688 (2d Cir. 1995) (holding that exhaustion is
required as to ADA claims).
     After finding that the statute of limitations barred all of
the Hunters' IDEA claims based on events occurring before November
17, 1992, the district court went on to conclude that all of their
claims based upon events occurring after that date were barred for
failure to comply with IDEA's exhaustion requirement, as the only
administrative proceeding that the Hunters had initiated began much
earlier, in October 1991. The district court also, citing Spence
v. Straw, 54 F.3d 196, 201 (3d Cir. 1995), held that the plaintiffs
were required to exhaust the administrative remedies provided by
Title VII of the Civil Rights Act of 1964 before bringing their ADA
and Rehabilitation Act claims, and that the plaintiffs' failure to
do so barred those claims. We will begin by considering the latter
holding.

A.  Exhaustion under the ADA and Rehabilitation Act.
     The exhaustion rule applied in Spence was the result of what
we termed an "incongruent enforcement scheme." 54 F.3d 196, 199
(3d Cir. 1995). The Rehabilitation Act provides two avenues by
which a plaintiff may sue to redress employment discrimination.
The Act contains a provision, section 501, directed specifically at
employment discrimination. See 29 U.S.C. § 794. Violations of
this provision may be redressed through section 505(a)(1), which
permits plaintiffs to invoke "[t]he remedies, procedures and
rights" set forth in Title VII of the Civil Rights Act of 1964.
See 29 U.S.C. § 794a(a)(1). Title VII's exhaustion requirement
therefore applies to plaintiffs suing under section 501. The Act
also, however, has a general provision, section 504, which bars
discrimination against the disabled (including employment
discrimination) in all federally-funded programs. Violations of
section 504 may be redressed through section 505(a)(2), which
permits plaintiffs to invoke "[t]he remedies, procedures and
rights" not of Title VII, but of Title VI, a title which includes
no exhaustion requirement. 29 U.S.C. § 794a(a)(2). Although this
structure created the appearance that a plaintiff might be able to
circumvent the exhaustion requirement applicable to section 501
through the simple expedient of suing under section 504, in Spencewe found
that it was appropriate to conclude that Congress intended
to require that a plaintiff bringing an employment discrimination
claim under either section 501 or section 504 first exhaust her
administrative remedies. See Spence, 54 F.3d at 199-202.
     Spence involved very unusual circumstances, which do not
obtain here. The provisions of the Rehabilitation Act and of the
ADA invoked by the Hunters are not, by the terms of those two
statutes, subject to any exhaustion requirements. Nor do the
Hunters' claims have the effect of circumventing some other
Congressionally-mandated exhaustion requirement. Indeed, the only
related exhaustion requirement imposed by Congress is IDEA's
requirement, in section 1415(f), that a party who brings a claim
that seeks relief also available under IDEA must first exhaust
IDEA's administrative remedies. See 20 U.S.C. § 1415(f). This the
Hunters have done with respect to their ADA and Rehabilitation Act
claims, by following the elaborate route of a "due process" hearing
and review by an appellate panel. In the absence of any
incongruity in the IDEA scheme, there is no need to impose any
further exhaustion requirement.

B.  Exhaustion under IDEA
     As we have just pointed out, the Hunters have, with respect to
their ADA and Rehabilitation Act claims, exhausted IDEA's
administrative remedies. But the Hunters have also advanced two
other groups of claims which call for a somewhat more extended
exhaustion analysis. These are: (1) their effort to enforce the
decision of the state administrative process, and (2) what appears
to be an effort to raise claims that they did not raise in the
state administrative process.

1. Efforts to enforce the decision of the state proceeding. The
defendants argue that the Hunters' effort to enforce the decision
of the state administrative proceeding is subject to a specialized
exhaustion requirement. They assert that claims of this type must
be exhausted through a "Complaint Management System" established by
Pennsylvania's Bureau of Special Education, an administrative
procedure distinct from the "due process hearing" procedure
discussed above.
     The defendants have furnished the court with a general
description of this "Complaint Management System," but with no
documentation as to its specific elements or legal basis. The
defendants' description suffices, however, to persuade us that the
system to which they refer is the system established by the
Commonwealth of Pennsylvania to implement a set of federal
regulations that require that state educational agencies establish
procedures for receiving and resolving complaints relating to IDEA
implementation. See 34 C.F.R. §§ 300.660-300.662. These
regulations establish minimum procedures that state agencies must
follow in resolving complaints, requiring, for instance, that
agencies carry out an investigation and issue a written decision
containing findings of fact, conclusions, and, if necessary,
corrective actions to achieve compliance. See 34 C.F.R. § 300.661.
Complainants are also provided the right to appeal adverse
decisions to the Secretary of the United States Department of
Education. See 34 C.F.R. § 300.661.
     The Ninth Circuit, in Hoeft v. Tucson Unified School Dist.,
967 F.2d 1298 (9th Cir. 1992), suggested in dicta that a plaintiff
could, as to certain types of claims, be required to exhaust the
Education Department General Administrative Regulations (or EDGAR)
procedures, a regulatory forerunner of the present sections
300.660-300.662. See Hoeft, 967 F.2d at 1307-08. The Hoeft court
noted that this process might serve as an alternative exhaustion
mechanism to IDEA's own administrative procedures in certain cases,
concluding that "[w]hether to require or to accept exhaustion of
the EDGAR procedure as a substitute for exhausting IDEA procedures
in challenges to facially invalid policies, however, is a
determination which must be made on a case-by-case basis." 967 F.2d
at 1308. Hoeft did not, however, cite any legal authority, either
in the EDGAR regulations or in the text of IDEA, under which a
court might require exhaustion of EDGAR procedures. Nor can we
discern any such authority, either as to the previous EDGAR
procedures or as to the present §§ 300.660-300.662. Indeed, the
text of §§ 300.660-300.662, and the various statements made in the
Federal Register as they took their present shape, both evince an
expectation that invocation of the complaint procedures they
establish will be elective, not mandatory.

2. Claims not raised in the state proceeding. As to events that
occurred after the conclusion of the state administrative
proceeding, the Hunters have, of course, had no opportunity to
exhaust their administrative remedies. For this reason, the
district court dismissed all of the Hunters' claims based on such
events. The district court also stated that it was "not persuaded
by plaintiffs' conclusionary averment that their pursuit of
administrative remedies would be a futile gesture." The Hunters
appeal this ruling.
     The district court did not provide a detailed listing of which
elements of the Hunters' complaint it was dismissing on this
ground. However, an examination of the complaint reveals that the
only event which it describes that occurred after the termination
of the administrative proceeding was Eugene and Jeremy Hunter's
temporary move to Ohio in order to enroll Jeremy in a public school
for the disabled. This claim raises a number of important policy
questions, such as when it is appropriate for a state to pay the
costs of moving one of its citizens to another state in order to
receive public benefits there. We therefore agree with the
district court that this claim should be exhausted.
     Finally, it appears that one element of the Hunters'
complaint, the Hunters' request that MLSD not be involved in
evaluations or programming for Jeremy, was not raised in the state
proceeding. The state appellate panel specifically rejected a
request by the Hunters that MLSD not perform evaluation and
programming, on the ground that this issue had not been raised
before the hearing officer. App. at 99. Assuming that the
appellate panel's finding was correct, we find that it would be
appropriate for this claim to be exhausted before it is examined in
the district court.
     We reach this conclusion with some reluctance, as it could
entail further delay in an already much-delayed case. However, the
issue of MLSD's involvement in evaluation and programming for
Jeremy seems to be central to the Hunters' complaint. Accordingly,
the administrative process should be allowed an opportunity to
address that central issue. A principal purpose of IDEA's
administrative procedure is to permit "state and local education
agencies[,] in cooperation with the parents or guardian of the
child," to take "primary responsibility for formulating the
education to be accorded a handicapped child," Board of Education
v. Rowley, 458 U.S. 176, 207 (1982); thus, we find that it is
appropriate to permit the Commonwealth to address this issue before
it is considered in the district court. We also note that the
IDEA hearing and appeal process currently includes strict time
limits, and that the entire exhaustion process should take no
longer than a few months if these limits are observed. See 34
C.F.R. § 300.512 (1995).

                         V. CONCLUSION
     In conclusion, then, we find that:
     (1) The Hunters' section 1983 claim does have substantive
content, as it can form the basis of a claim for damages, and as
section 1983 is an instrument by which the Hunters may compel MLSD
to comply with a decision of the state administrative process.
     (2) Because the IDEA statute of limitations does not begin to
run until the termination of the state administrative proceedings,
the Hunters' IDEA claims were timely brought.
     (3) The Hunters need not exhaust Title VII administrative
remedies as to their ADA or Rehabilitation Act claims.
     (4) The Hunters need not exhaust the Commonwealth of
Pennsylvania's "Complaint Management System."
     (5) The Hunters must exhaust their claims based upon Eugene
and Jeremy Hunter's move to Ohio.
     (6) Assuming that the Hunters did not raise their claims
relating to the involvement of MLSD in Jeremy's evaluation and
programming in the state administrative proceedings, they must
exhaust those claims before they may raise them in the district
court.
     We will therefore reverse the district court's order
dismissing the Hunters' complaint, and remand for proceedings
consistent with this opinion.
