     Case: 18-10720   Document: 00515174041         Page: 1   Date Filed: 10/25/2019




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


                                     No. 18-10720                       FILED
                                                                  October 25, 2019
                                                         Lyle W. Cayce
JANE DOE, Individually and as Next Friend of Minor T.W.,      Clerk

             Plaintiff - Appellant

v.

DALLAS INDEPENDENT SCHOOL DISTRICT,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Northern District of Texas


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
      Appellant Jane Doe appeals the district court’s dismissal of her Title IX
complaint for failure to exhaust administrative remedies under the Individuals
with Disabilities Education Act (“IDEA”). For the reasons set forth below, we
REVERSE the district court’s dismissal of Doe’s complaint and REMAND the
case for further proceedings.
                                I.     Background
      Taking the Plaintiff’s allegations as true, T.W., a special needs student
in Dallas Independent School District (“Dallas ISD”), was repeatedly assaulted
by a classmate, V.A. T.W. and her case manager, Ms. Gray, notified the school.
The school’s “solution” was to move T.W. and V.A. to different parts of the room.
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V.A. was assigned to a desk in front of the class bathroom. The abuse did not
stop. V.A. allegedly raped T.W. in the class bathroom, a foot away from his
desk. Doe, T.W.’s mother, withdrew her daughter after finding out about the
rape.
        Doe sued Dallas ISD on behalf of T.W., asserting that the school violated
T.W.’s rights under Title IX. The district court dismissed Doe’s Title IX claim
for failure to exhaust her IDEA administrative remedies. The IDEA includes
the following exhaustion provision:
        Nothing in this chapter shall be construed to restrict or limit the
        rights, procedures, and remedies available under the Constitution,
        the Americans with Disabilities Act of 1990 [(“ADA”)], title V of the
        Rehabilitation Act of 1973, 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) shall be exhausted to the same extent as would be required had
        the action been brought under this subchapter.
20 U.S.C. § 1415(l). Though Doe had not sued under the IDEA, the district
court concluded that Doe’s claim could have been brought as an IDEA claim.
It therefore determined that § 1415(l) barred Doe’s suit until she exhausted
her claim.
        Doe did not appeal that decision and instead attempted to comply with
the district court’s direction to exhaust her claims. She filed both a Title IX
claim and an IDEA claim with a special education hearing officer. The hearing
officer dismissed her IDEA claim because the claim was filed well beyond the
one-year statute of limitations. The hearing officer also concluded that he
lacked jurisdiction to consider the Title IX claim and dismissed that claim.
        Doe then went back to federal court, again asserting only a Title IX
claim. In addition to attempting to exhaust her claim, she had the benefit of
the recently decided Supreme Court decision, Fry v. Napoleon Community
Schools. 137 S. Ct. 743 (2017). In Fry, the Supreme Court held that § 1415(l)’s
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exhaustion requirement applies only if a plaintiff seeks relief available under
the IDEA, which is limited to a student’s right to a free appropriate public
education (“FAPE”). Id. at 748. Doe claimed that Fry clarified that she did not
need to administratively exhaust her claim under the IDEA because she did
not seek relief related to the denial of a FAPE.
       Dallas ISD moved to dismiss under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6).        The district court again dismissed Doe’s claim,
concluding that its previous legal reasoning was consistent with Fry. Since the
hearing officer had dismissed the IDEA claim as time-barred, which did not
exhaust the claim, the district court concluded that Doe’s Title IX claim, which
the court ruled was intertwined with a potential IDEA claim, was also
unexhausted under § 1415(l). It dismissed her suit for lack of jurisdiction. Doe
now appeals the dismissal of her Title IX claim.
                  II.    Jurisdiction and Standard of Review
       The district court had federal question jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction over the appeal as an appeal from a final decision
under 28 U.S.C. § 1291. We review a district court’s dismissal under Rule
12(b)(1) de novo. Griener v. United States, 900 F.3d 700, 703 (5th Cir. 2018).
                                  III.    Discussion
       On appeal, Doe argues that § 1415(l) should not have barred her Title IX
claim. Based on the Supreme Court’s recent decision in Fry, we hold that if a
disabled person seeks Title IX relief that a non-disabled person could also seek
and requests relief that is different from or in addition to a FAPE, the IDEA’s
exhaustion requirement does not apply. 1


       1Although Dallas ISD argues that this court’s recent holding in McMillen v. New
Caney Indep. Sch. Dist., 936 F.3d 640 (5th Cir. 2019) requires us to affirm, we disagree. In
McMillen, we held that because the gravamen of McMillen’s complaint was about the
defendant’s failure to provide him with a FAPE, the IDEA’s exhaustion requirement applied
even though McMillen sought money damages, a remedy not available under the IDEA. Id.
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       In Fry, the Supreme Court clarified when § 1415(l) requires plaintiffs to
exhaust claims under statutes other than the IDEA. See 137 S. Ct. 743. A
court must look to “the gravamen of a complaint” to determine if § 1415(l)’s
exhaustion requirement applies. Id. at 755. It applies only if a plaintiff “‘seeks’
relief available under the IDEA—not, as a stricter exhaustion statute might,
[when] the suit ‘could have sought’ relief available under the IDEA.” Id. at
755. Relief under the IDEA is limited to a student’s right to a FAPE. Id. at
748–49. “FAPE” is a statutory term of art and is generally centered on a
disabled student’s access to adequate education by a school. See 20 U.S.C.
§ 1401(9). Thus, to determine whether § 1415(l) applies, courts must “examine
whether a plaintiff’s complaint . . . seeks relief for the denial of an appropriate
education.”     Fry, 137 S. Ct. at 755.          That “examination should consider
substance, not surface. The use (or non-use) of particular labels and terms is
not what matters.” Id. Instead, it is “the gravamen of a complaint” that
matters. Id.
       Doe’s complaint is largely about sexual harassment, though it includes
allegations related to T.W.’s disabilities and the denial of educational
opportunities. In the complaint’s thirteen pages of allegations, twelve of those
detail the sexual harassment that another student committed against T.W.—
including being raped—and explain how school officials were repeatedly
notified about the harassment. Doe’s complaint does mention that T.W. had
learning disabilities and an educational plan, presumably the individualized




at 645 (holding that “both the substance and language of McMillen’s complaint reveal that
he is challenging the denial of a [FAPE]”); id. at 648 (“hold[ing] that the IDEA’s exhaustion
requirement applies to plaintiffs who seek damages for the denial of a [FAPE]”). Here, we do
not hold that the gravamen of Doe’s complaint was about Dallas ISD’s failure to provide her
with a FAPE. Thus, we do not reach the issue, which would have implicated McMillen, of
whether Doe, by requesting money damages, makes the exhaustion requirement
inapplicable.
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education program required by the IDEA, under 20 U.S.C. § 1414(d). However,
she does so primarily to give context that the school had notice regarding T.W.’s
inability to protect herself. When the complaint details Doe’s cause of action,
it states that T.W. was “effectively barred . . . from access to the educational
opportunities or benefits provided by Kimball High School and [Dallas ISD].”
Doe included this detail because Supreme Court precedent holds that a
plaintiff alleging deliberate indifference to student-on-student sexual
harassment must prove the denial of an educational opportunity or benefit.
See Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 632–
33 (1999) (“[W]e conclude that such an action [i.e., a Title IX claim for a school’s
deliberate indifference] will lie only for harassment that is so severe, pervasive,
and objectively offensive that it effectively bars the victim’s access to an
educational opportunity or benefit.”). To summarize, the complaint largely
focuses on the sexual harassment T.W. suffered, but Doe asserts a legal theory
that depends on proving the denial of an educational opportunity or benefit for
anyone who brought such a claim (disabled or not).
      The parties diverge on how Fry applies to Doe’s complaint. Dallas ISD
contends, and the district court agreed, that because Doe’s cause of action
required proving the denial of an educational opportunity or benefit, § 1415(l)
applies. Dallas ISD emphasizes that any “actions that the school district could
have taken in response to [T.W.’s] allegations necessarily implicated the
school’s duties under the IDEA.” Similarly, Dallas ISD claims that any actions
would have implicated the alleged victim’s IDEA rights.           Dallas ISD also
asserts that the harms T.W. suffered were “educational in nature,” reinforcing
the fact that the gravamen of Doe’s complaint is about the denial of a FAPE.
      Doe and the United States, as an amicus, argue that, though the cause
of action requires proving the denial of an educational benefit, the allegations
are about sexual harassment, not special education opportunities. As the
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United States puts it, “the relief that plaintiff seeks is for sexual harassment
irrespective of the IDEA’s FAPE obligation.” Doe’s complaint concerns “the
denial of a nondiscriminatory environment to which all students are entitled.”
      Dallas ISD is correct that Doe’s suit implicates the denial of T.W.’s
educational opportunities. Doe must show the denial of an educational benefit
to prove her Title IX claim. But the Supreme Court’s analysis shows that the
emphasis is not on whether a FAPE is potentially implicated; it is on whether
the “gravamen” or “essentials” of the complaint concern the denial of a FAPE.
See Fry, 137 S. Ct. at 755. The Court warned that “a court should attend to
the diverse means and ends of the statutes covering persons with disabilities.”
Id. Even though the “same conduct might violate” the IDEA and other statutes
and could give rise to an IDEA claim, a plaintiff “might instead seek relief for
simple discrimination, irrespective of the IDEA’s FAPE obligation.” Id. at 756.
      Here, Doe’s claim regards “simple discrimination, irrespective of the
IDEA’s FAPE obligation.” Id. Were all traces of T.W.’s disabilities removed,
Doe’s claim would look nearly identical to what exists now: allegations that the
school was deliberately indifferent to T.W.’s sexual abuse. Thus, we conclude
that the gravamen of the complaint is not about the denial of a FAPE and that
the IDEA’s exhaustion requirement does not apply.
      Fry’s suggestion that courts may look to the “history of the proceedings”
to determine the gravamen of the complaint further supports our conclusion.
See id. at 757. The Supreme Court noted that a plaintiff’s initial “pursuit of
the IDEA’s administrative remedies will often provide strong evidence that the
substance of a plaintiff’s claim concerns the denial of a FAPE.” Id. Dallas ISD
argues that Doe’s decision to pursue administrative proceedings, then to go to
federal court before administratively appealing, “is ‘strong evidence’ that the
substance of [Doe’s] claim concerns the denial of FAPE.” But, as Doe responds,
she pursued administrative relief only after the district court dismissed her
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claim for lack of exhaustion. Therefore, the litigation history supports Doe,
who apparently wanted to avoid the entire IDEA process but engaged it to
satisfy the district court’s ruling spawned by the Dallas ISD’s contentions.
      Dallas ISD claims that the two hypothetical questions suggested by the
Supreme Court in Fry further support that the gravamen of Doe’s complaint
concerns the denial of a FAPE. These two hypothetical questions are:
      First, could the plaintiff have brought essentially the same claim
      if the alleged conduct had occurred at a public facility that was not
      a school—say, a public theater or library? And second, could an
      adult at the school—say, an employee or visitor—have pressed
      essentially the same grievance?
Fry, 137 S. Ct. at 756. If the answers are yes, then the claim is not likely about
a FAPE since those hypotheticals take a claim away from the core purpose of
the IDEA. Id. Dallas ISD argues that the answer to both questions is no.
      However, the Court did not limit analysis of this question to answering
those two illustrative hypotheticals.       Instead, the Court suggested these
hypotheticals to help determine “whether the gravamen of a complaint against
a school concerns the denial of a FAPE, or instead addresses disability-based
discrimination.” 2 Id. These hypotheticals do not address—and therefore fail
to distinguish—whether the gravamen of a complaint concerns the denial of a
FAPE or sex-based discrimination. In the situation before us, the proper
hypothetical is along the lines of the following question: “Could a student
without disabilities bring this same claim?” If the answer is “yes,” then the
essence of the suit is not the denial of a FAPE, but is instead about sex
discrimination. As explained above, Doe’s suit is about sex discrimination; a
non-disabled student could have brought Doe’s allegation that the school was



      2  Fry concerned whether the ADA and the Rehabilitation Act implicated the
exhaustion requirements in the IDEA. 137 S. Ct. at 751–52.
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indifferent to her sexual abuse and, in fact, perpetuated it by placing V.A. next
to the bathroom that T.W. had to use. In fact, there have been numerous Title
IX claims brought by students who have made similar allegations of a school’s
indifference to a student-on-student sexual abuse. 3 Based on the Supreme
Court’s holding in Fry, we hold that Doe did not need to exhaust her
administrative remedies under § 1415(l), as the gravamen of her complaint
was not about the denial of a FAPE.
                                  IV.    Conclusion
      For the foregoing reasons, we REVERSE the district court’s grant of
Dallas ISD’s Rule 12(b)(1) motion to dismiss and REMAND the case for further
proceedings consistent with this opinion.




       3See, e.g., MDB v. Punxsutawney Christian Sch., 386 F. Supp. 3d 565, 578–79 (W.D.
Penn. 2019); T.C. ex rel. S.C. v. Metro. Gov’t of Nashville, 378 F. Supp. 3d 651, 684 (M.D.
Tenn. 2019); Doe v. Brown Univ., 327 F. Supp. 3d 397, 404, 411 (D.R.I. 2018).
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