                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                            File Name: 14a0223p.06

                      UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


 F. H., by his next friend Sandra Fay Hall; SANDRA                X
 FAY HALL,                                                         -
                                                                   -
                                  Plaintiffs-Appellants,           -    No. 13-6323
                                                                   -
             v.                                                     >
                                                                   ,
                                                                   -
 MEMPHIS CITY SCHOOLS; VINCENT HUNTER;                             -
 WALTER BANKS; MALICA JOHNSON ; PATRICIA A.                        -
                                                                   -
 TOARMINA ; PAT BEANE ,                                            -
                          Defendants-Appellees.                   N
                           Appeal from the United States District Court
                        for the Western District of Tennessee at Memphis.
                  No. 2:12-cv-02312—John Thomas Fowlkes, Jr., District Judge.

                                           Argued: June 26, 2014

                                Decided and Filed: September 4, 2014

       Before: MOORE and KETHLEDGE, Circuit Judges; TARNOW, District Judge.*

                                            _________________

                                                 COUNSEL
ARGUED: Craig P. Barnes, MEMPHIS AREA LEGAL SERVICES, INC., Memphis, Tennessee,
for Appellants. Christopher S. Campbell, HARRIS SHELTON HANOVER WALSH, PLLC,
Memphis, Tennessee, for Appellees. Judith A. Gran, REISMAN CAROLLA REISMAN & GRAN,
Haddonfield, New Jersey, for Amicus Curiae. ON BRIEF: Craig P. Barnes, Frank S. Cantrell,
MEMPHIS AREA LEGAL SERVICES, INC., Memphis, Tennessee, for Appellants. Christopher
S. Campbell, HARRIS SHELTON HANOVER WALSH, PLLC, Memphis, Tennessee, for
Appellees. Judith A. Gran, REISMAN CAROLLA REISMAN & GRAN, Haddonfield, New Jersey,
for Amicus Curiae.
         TARNOW, D.J., delivered the opinion of the court, in which MOORE and KETHLEDGE,
JJ., joined. KETHLEDGE, J. (pg. 10), delivered a separate concurring opinion.




              *
              The Honorable Arthur J. Tarnow, Senior United States District Judge for the Eastern District of
     Michigan, sitting by designation.


                                                        1
      No. 13-6323        F. H. v. Memphis City Sch., et al.                               Page 2


                                        _________________

                                             OPINION
                                        _________________

       TARNOW, District Judge. Plaintiffs-Appellants F.H., represented by his next friend and
mother Sandra Fay Hall, and Sandra Fay Hall individually, filed suit against Defendant-Appellee
Memphis City Schools (MCS) alleging Appellee allowed for the abuse and neglect of F.H. while
enrolled in its schools, and allege Appellee breached a Settlement Agreement. The district court
granted Appellee’s motion to dismiss all claims, finding that Appellants’ claims accruing prior to
the Settlement Agreement were barred by this Agreement, and that all other claims required
exhaustion under the Individuals with Disabilities Education Act (IDEA). Appellants now appeal
the district court’s dismissal of the 42 U.S.C. § 1983 and the breach of contract claims.

       We find that Appellants’ § 1983 claims do not arise under the IDEA, were not released by
the Settlement Agreement, and that the administrative exhaustion of these claims would be futile.
We also find that the language of the Settlement Agreement, as well as the 2004 Amendments to the
IDEA, render the Settlement Agreement enforceable in the courts, and therefore, that the breach of
contract claim does not require administrative exhaustion. As such, we reverse the district court’s
dismissal of Appellants’ Amended Complaint, and remand for further proceedings consistent with
this opinion.

                                       I. Statement of Facts

       F.H. was born on August 29, 1994. He was diagnosed with cerebral palsy syndrome as an
infant. F.H. has also been diagnosed with asthma, and sleep apnea. F.H. has auditory and visual
limitations and significant learning disorders. F.H. has needed a wheelchair or walker since he was
a small child. F.H. also has limited use of his hands, which makes it difficult for him to reach around
himself, and to use the bathroom without assistance.

       F.H. began attending Appellee MCS schools in 2002. During his enrollment in MCS, Ms.
Hall informed the staff of F.H.’s disabilities and specific needs. From 2002 until 2010, F.H. attended
four different schools and had eleven different aides assigned to him to render assistance throughout
     No. 13-6323         F. H. v. Memphis City Sch., et al.                              Page 3


the school day, including to supervise and assist F.H. when using the restroom. Appellant F.H.
remained enrolled in MCS until his graduation in May 2013.

       Appellants’ Amended Complaint makes a litany of specific allegations of physical, sexual,
and verbal abuse of F.H. by MCS aides over the course of F.H.’s enrollment in MCS. Appellants
highlight the following allegations:

       (1) Being frequently left unattended and unsupervised in the bathroom, distraught and
       crying, unable to clean himself; And in one case he suffered a seizure;
       (2) Verbal and physical abuse, on multiple occasions from different aides and school
       personnel, allowing him to return from the bathroom, in one case, with bloody
       underwear;
       (3) Being ridiculed about his disability (cerebral palsy) and told that he would, “never
       amount to anything;” until F.H. screamed and banged his head against the wall in
       frustration;
       (4) Aides and school employees regularly failing to help F.H. clean himself, so that
       he returned to class with dirty underwear, and on at least one occasion an aide
       announced to the class that F.H. smelled like “shit;”
       (5) Being sexual abused by an aide on more than one occasion while in a private
       bathroom.

                                   II. Procedural Background

       As the local education agency (LEA), the IDEA requires that MCS create an Individualized
Education Plan (IEP) for F.H. and other disabled students. See Forest Grove Sch. Dist. v. T. A.,
557 U.S. 230, 232 (2009). The IDEA guarantees these children a Free Appropriate Public Education
(FAPE) in conformity with the IEP. See Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 520
(2007); Amy S. v. Danbury Local Sch. Dist., 174 Fed. Appx. 896, 898 n.4 (6th Cir. 2006). The IDEA
also provides specific procedural recourse should an involved party object to the construction or
implementation of the IEP. Winkelman, 550 U.S. at 524–25.

       In April of 2011, Ms. Hall initiated this process by filing a request for a due process hearing
on behalf of F.H. Under IDEA, within 15 days of a request for a due process hearing, the parents,
members of the IEP team, and a representative of the LEA are required to participate in a resolution
session, giving the LEA an opportunity to resolve the complaint. 20 U.S.C. § 1415(f)(1)(B)(i).
     No. 13-6323         F. H. v. Memphis City Sch., et al.                              Page 4


       On May 2, 2011, Ms. Hall met with representatives from MCS for a resolution session.
During the resolution session, the parties reached a tentative settlement. On August 9, 2011, Ms.
Hall and a representative of MCS signed a finalized Settlement Agreement. This Settlement
Agreement includes the following terms:

               Student and his Parent, and each of them, on behalf of themselves . . . hereby
       fully and forever release and discharge the District . . . from any and all claims . . .
       arising under the IDEA and concomitant provisions of STATE law enacted in
       compliance therewith, including, but not limited to, any matter or claim which was,
       or could have been, asserted in the Due Process Proceeding, by reason of any matter,
       cause or thing whatsoever occurred, done, omitted, or suffered to be done on or
       before the last day of the Settled Period, which Student and his Parent, or any of
       them, now owns or holds, or may at any time hereafter own or hold.
       ....
               The releases set forth above do not apply to any disputes that may arise by
       reason of acts or omissions occurring after the date of execution of this Agreement.
       It is understood that no aspect of this Agreement shall release, (or is intended to
       release or waive any right or remedy against) any Part from liability for any post-
       Agreement new wrongful acts or omissions, including independent torts, unrelated
       to the provisions of this Agreement.
       This Agreement was reached at a Resolution Session and is enforceable in state or federal
court pursuant to 20 U.S.C. § 1415(f)(1)(B)(iii).

       On April 23, 2012, Appellants filed a Complaint against Appellees in the Western District
Court of Tennessee, which they amended in July 2013. In the Amended Complaint, Appellants
alleged that Defendants violated 42 U.S.C. § 1983 under the Fourteenth Amendment of the United
States Constitution, the Rehabilitation Act (Section 504), and the Americans with Disabilities Act
(ADA). Appellants also made claims of retaliation under the ADA and Section 504, as well as
breach of the Settlement Agreement.

       In August 2012, Appellees filed a motion to dismiss the Amended Complaint. In February
2013, the district judge referred Appellees’ motion to dismiss to the magistrate judge. On April 24,
2013, the magistrate judge issued her Report and Recommendation, recommending dismissal of all
claims. On August 12, 2013, the district court entered an Order adopting the Report and
Recommendation in its entirety, and issued a final Judgment.
      No. 13-6323        F. H. v. Memphis City Sch., et al.                               Page 5


       On October 8, 2013, Appellants filed a timely Notice of Appeal. Appellants now appeal the
district court’s dismissal of Appellants’ 42 U.S.C. § 1983 claims, the breach of contract claim, and
all related issues of exhaustion.

       On April 25, 2014, an Amicus Brief was submitted by the Council of Parent Attorneys and
Advocates (COPAA), Disability Law and Advocacy Center of Tennessee (DLAC), The ARC
Tennessee (The ARC TN), Tennessee Alliance for Legal Services (TALS), Support and Training for
Exceptional Parents (STEP), Tennessee Voices for Children, Inc. (TVC), and People First of
Tennessee (People First).

                                     III. Standard of Review

       We review de novo a dismissal of a case for failure to state a claim. Keys v. Humana, Inc.,
684 F.3d 605, 608 (6th Cir. 2012). The complaint must contain factual allegations that, when
accepted as true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). The complaint must include “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).

                                            IV. Analysis

       A. 42 U.S.C. § 1983 Claim

       The district court found that the Settlement Agreement bars Appellants’ claims that accrued
from 2002 to August 9, 2011, and that all claims accruing after the parties entered into the Settlement
Agreement require administrative exhaustion under the IDEA. The district court erred with respect
to the § 1983 claims accruing both before and after the execution of the Settlement Agreement.

       First, the district court erred by concluding that Appellants released their claims accruing
prior to August 9, 2011. In the Settlement Agreement, Appellants agreed to release all claims
“arising under the IDEA and concomitant provisions of STATE law enacted in compliance
therewith, including, but not limited to, any matter or claim which was, or could have been, asserted
in the Due Process Proceeding.” However, in the Amended Complaint, Appellants claim that
Appellee MCS engaged in a policy or custom of failing adequately to train or supervise F.H.’s aides
     No. 13-6323         F. H. v. Memphis City Sch., et al.                               Page 6


and other employees and that MCS knew of or should have known of the abusive behavior towards
F.H., including numerous acts of verbal and physical abuse. Appellants’ factual allegations clearly
point to physical, non-disciplinary, and non-educational injuries, which cannot be redressed by any
remedy available under the IDEA. See, e.g., Padilla v. Sch. Dist. No. 1, 233 F.3d 1268, 1274 (10th
Cir. 2000); Lopez v. Metro. Gov’t of Nashville & Davidson Cnty., 646 F. Supp. 2d 891, 908 (M.D.
Tenn. 2009); M.Y. v. Special Sch. Dist. No. 1, 519 F. Supp. 2d 995, 1002 (D. Minn. 2007). Thus,
Appellants’ § 1983 claims do not “aris[e] under the IDEA,” and were not released by the Settlement
Agreement.

       Second, the district court erred by concluding that Appellants should have exhausted their
§ 1983 claims through the IDEA administrative process before bringing them in federal court. In
relevant part, the IDEA provides that:

       Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures,
       and remedies available under the Constitution . . . 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 [the IDEA], the [IDEA due
       process] procedures . . . shall be exhausted to the same extent as would be required
       had the action been brought under [the IDEA].

20 U.S.C. § 1415(l). Appellants are not excused from exhaustion merely because they request
compensatory damages under § 1983. Covington v. Knox Cnty. Sch. Sys., 205 F.3d 912, 918 (6th
Cir. 2000) (“[A] plaintiff seeking money damages is required to exhaust administrative remedies
under the IDEA, even if money damages are not available under the IDEA or through the
administrative process.”).

       Appellees argue that exhaustion of Appellants’ 42 U.S.C. § 1983 claims is required because
the claims seek redress for educational injuries that arise under the IDEA, which may be redressed
by the administrative process until the child turns twenty-one under Tennessee law. Tenn. Code
Ann. § 49-10-102. Because F.H. had not graduated at the time the complaint was filed, and because
he is not yet twenty-one, Appellees assert that compensatory education is an available and sufficient
remedy.
      No. 13-6323        F. H. v. Memphis City Sch., et al.                               Page 7


       We are not persuaded that Appellants’ alleged injuries under the 42 U.S.C. § 1983 claims
relate to the provision of a FAPE. As we discussed above, Appellants allege that F.H. was verbally,
physically, and even sexually abused by his aides. These injuries are non-educational in nature and
cannot be remedied through the administrative process. Moreover, requiring exhaustion of
Appellants’ 42 U.S.C. § 1983 claims would create an additional administrative barrier not present
for non-disabled children. See Sagan v. Sumner Cnty. Bd. of Educ., 726 F. Supp. 2d 868, 882–83
(M.D. Tenn. 2010) (“The Court construes these claims as arising from non-educational injuries,
irrespective of the fact they occurred in an educational setting and were allegedly perpetrated by
educators against a student.     If Jane Doe were not a disabled student, there would be no
administrative barrier to her pursuit of these claims.”). Therefore, Appellants are not required to
exhaust their § 1983 claims related to non-educational injuries.

       Moreover, “[e]xhaustion is not required if it would be futile or inadequate to protect the
plaintiff’s rights.” Covington, 205 F.3d at 917. In Covington, we specifically found that “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 that can make him whole—proceeding through the state’s administrative process would be
futile and is not required before the plaintiff can file suit in federal court.” Id. F.H. has graduated
and seeks compensation for injuries suffered at the hands of his abusive aides. The administrative
process cannot provide either the type of relief he seeks or any other type of remedy to redress
wholly retrospective injuries. Thus, exhaustion in this case would be futile.

       Accordingly, we conclude that the district court erred by dismissing Appellants’ 42 U.S.C.
§ 1983 claims.

       B. Breach of Contract Claim

       The district court also dismissed the breach of contract claim for failure to exhaust.
Appellants argue that exhaustion is unnecessary because the clear terms of both the Settlement
Agreement and the 2004 Amendments to the IDEA render the Settlement Agreement directly
enforceable in the courts.
      No. 13-6323         F. H. v. Memphis City Sch., et al.                                 Page 8


        We have held that “§ 1415(i)(2) [of the IDEA] clearly contemplates that plaintiffs will
exhaust their administrative remedies before bringing a civil action to enforce their rights under the
IDEA.” Covington, 205 F.3d at 915. However, the question of whether a claim of breach of a
settlement agreement must be exhausted prior to filing suit is one of first impression. In relevant
part, the 2004 Amendments to the IDEA provide that, “[i]n the case that a resolution is reached to
resolve the complaint at a [resolution session], the parties shall execute a legally binding agreement
that is . . . enforceable in any State court of competent jurisdiction or in a district court of the United
States.” 20 U.S.C. § 1415(f)(1)(B)(iii).

        Appellees argue that the parties did not finalize the settlement agreement “at” the resolution
session, rendering the 2004 Amendments inapplicable. They highlight the ninety-seven day gap
between the May 2, 2011 resolution session and the August 9, 2011 signing of the finalized
Settlement Agreement, and argue that if an agreement is made during a resolution session, it must
be finalized within thirty days of the session. Appellees base this argument on the provision of the
IDEA allowing a parent to continue with the due process hearing should a LEA fail to resolve a
complaint within thirty days of its receipt. 20 U.S.C. §1415(f)(10(B)(ii). However, this section of
the IDEA is clearly inapplicable here, and does not limit the amount of time the parties may take to
finalize an agreement reached during the resolution session.

        Appellees also argue that the Settlement Agreement was not reached “at” a resolution session
based on one term of the Agreement that Appellees allege could not have been known at the time
of the session. Specifically, paragraph 1.3 of the Settlement Agreement provides that Willie Boone
will act as F.H.’s aide for the 2011-2012 school year, even though Boone was not hired until after
the resolution session. However, it is not dispositive that the contract incorporates some information
learned by the parties after the resolution session because agreements reached during a meeting are
often refined and finalized long after the meeting concludes. Indeed, requiring that a settlement
agreement be written, finalized, and signed during a settlement conference would be counter to the
usual practice.

        Ultimately, this question is answered by the terms of the Settlement Agreement itself.
Appellees agreed to a provision in the Settlement Agreement that clearly states that “[t]his
Agreement was reached at a Resolution Session and is enforceable in state or federal court pursuant
     No. 13-6323         F. H. v. Memphis City Sch., et al.                            Page 9


to 20 U.S.C. § 1415(f)(1)(B)(iii).” This contract provision, bargained for and agreed to by both
parties, controls here. As such, we find that the language of the Settlement Agreement, as well as
the 2004 amendments to the IDEA, clearly provide that the Settlement agreement is enforceable in
the courts, and therefore, that the breach of contract claim does not require administrative
exhaustion.

                                          V. Conclusion

       The gravamen of Appellants’ complaint is the verbal, physical, and even sexual abuse of F.H.
by his aides. These factual allegations point to non-educational injuries that have no available
remedy under the IDEA. As such, we find that Appellants’ § 1983 claims do not arise under the
IDEA, and therefore, were not released by the Settlement Agreement. For the same reason, we also
find that the administrative exhaustion of these claims would be futile. Finally, we find that the
language of the Settlement Agreement, as well as the 2004 Amendments to the IDEA, render the
Settlement Agreement enforceable in the courts, and thus, that the breach of contract claim does not
require administrative exhaustion. Accordingly, we reverse the district court’s dismissal of
Appellants’ Amended Complaint, and remand for further proceedings consistent with this opinion.
     No. 13-6323         F. H. v. Memphis City Sch., et al.                             Page 10


                                       _________________

                                        CONCURRENCE
                                       _________________

       KETHLEDGE, Circuit Judge, concurring. Not every injury inflicted within a school building
is “educational.” Here, F.H.’s allegations in support of his § 1983 claim included the following: that
the aides who were supposed to clean him after he used the restroom (F.H. has cerebral palsy)
instead often left him there unattended, including on one occasion when he suffered a seizure; that
the aides who did accompany him to the restroom routinely refused to clean him, which caused him
to return to class with feces in his underwear, which in turn subjected him to ridicule from students
and teachers alike; that on one occasion an aide ridiculed F.H. until he banged his head against the
bathroom wall in frustration; that on another occasion an aide refused to assist F.H. and sent him
back to class with bloody underwear; and that one aide sexually abused him “while in a private
bathroom.”

       To characterize F.H.’s injuries as “educational” is to belittle them. The gravamen of his
claim is not that the conduct described in his complaint might reduce his SAT scores. The gravamen
of his claim, rather, is that this conduct was an attack upon F.H.’s dignity as a human being. That
injury was not remediable by some change to F.H.’s “Individualized Education Plan.” Nor was it
by a mere promise not to let these things happen again. The remedy for F.H.’s injury, therefore, lay
not in “the IDEA’s administrative procedures[.]” S.E. v. Grant Bd. Of Educ., 544 F.3d 633, 642 (6th
Cir. 2008). Instead his remedy lies in federal court, where F.H. can obtain not only compensation
for his injuries, but recognition of what they actually were.
