D. D. v. L. A. Unified Sch. Dist.

• Decision Date: 19 November 2021
• Docket Number: No. 19-55810,19-55810
• Citation: 18 F.4th 1043
• Parties: D. D., a minor, BY AND THROUGH his Guardian Ad Litem, Michaela INGRAM, Plaintiff-Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

18 F.4th 1043

D. D., a minor, BY AND THROUGH his Guardian Ad Litem, Michaela INGRAM, Plaintiff-Appellant,

v.LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant-Appellee.

No. 19-55810

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc June 24, 2021 Pasadena, California

Filed November 19, 2021

Shawna L. Parks (argued), Law Office of Shawna L. Parks, Los Angeles, California; Patricia Van Dyke and Janeen Steel, Learning Rights Law Center, Los Angeles, California; for Plaintiff-Appellant.

Matthew R. Hicks (argued) and Michele M. Goldsmith, Bergman Dacey Goldsmith, Los Angeles, California, for Defendant-Appellee.

Andria Seo, Lauren Lystrup, and Carly J. Munson, Disability Rights California, for Amici Curiae California Association of Parent-Child Advocacy, Disability Rights Advocates, Disability Right California, National Center for Youth Law, and National Disability Rights Network.

Before: Sidney R. Thomas, Chief Judge, and Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Johnnie B. Rawlinson, Jacqueline H. Nguyen, Andrew D. Hurwitz, Daniel P. Collins, Kenneth K. Lee, Danielle J. Forrest and Patrick J. Bumatay, Circuit Judges.

HURWITZ, Circuit Judge

D.D., an elementary school student, has an emotional disability that interferes with his ability to learn. D.D. sought relief from the Los Angeles Unified School District under the Individuals with Disabilities Education Act ("IDEA"), alleging that he was being denied a free appropriate public education ("FAPE"). D.D. claimed that the District had denied him a FAPE by, inter alia , failing to provide a one-to-one behavioral aide and related supportive services. The parties settled their dispute after mediation. D.D. then filed a complaint in the district court, alleging that the District had violated the Americans with Disabilities Act ("ADA") by failing to provide the same services sought in the IDEA proceedings. The district court dismissed the complaint without prejudice for failure to exhaust the IDEA process.

D.D. has appealed the district court's order. In its current posture, this is a case entirely about timing. It is common ground that D.D. can sue the District under the ADA for not providing reasonable accommodations. It is also common ground that the same omissions or actions can give rise to claims both under the IDEA and the ADA. But the Supreme Court has instructed us that if the gravamen of D.D.'s complaint is the school's failure to provide a FAPE, he must first exhaust the IDEA process before seeking ADA relief.

The only disputed issue is whether the gravamen of this complaint is the failure to offer a FAPE. Because it is, we affirm.

I

We begin by reviewing the statutory framework.

A

"The IDEA offers federal funds to States in exchange for a commitment: to furnish a [FAPE] to all children with certain physical or intellectual disabilities." Fry v. Napoleon Cmty. Schs. , ––– U.S. ––––, 137 S. Ct. 743, 748, 197 L.Ed.2d 46 (2017). A FAPE "comprises ‘special education and related services’—both ‘instruction’ tailored to meet a child's ‘unique needs’ and sufficient ‘supportive services’ to permit the child to benefit from that instruction." Id. at 748–49 (citing 20 U.S.C. §§ 1401(9), (26), (29) ). An eligible child "acquires a ‘substantive right’ to such an education once a State accepts the IDEA's financial assistance." Id. at 749 (citing Smith v. Robinson , 468 U.S. 992, 1010, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984) ).

The "centerpiece of the [IDEA's] education delivery system" is an individualized education program ("IEP"). Honig v. Doe , 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). Crafted by an "IEP Team" of school officials, teachers, and parents, an IEP spells out a plan to meet a child's "educational needs." Fry , 137 S. Ct. at 749 (quoting 20 U.S.C. §§ 1414(d)(1)(A)(i)(II)(bb), (d)(1)(B) ). The IEP documents the child's current levels of academic achievement, identifies annual goals, and lists the instruction and services needed to achieve those goals. Id. "[S]ervices that enable a disabled child to remain in school during the day provide [him] with the meaningful access to education that Congress envisioned." Cedar Rapids Cmty. Sch. Dist. v. Garret F. , 526 U.S. 66, 73, 119 S.Ct. 992, 143 L.Ed.2d 154 (1999) (cleaned up).

The IDEA provides a framework for promptly addressing disputes over an IEP. The process begins with a complaint filed with the responsible state or local educational agency on "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child." 20 U.S.C. § 1415(b)(6)(A). Upon receiving a complaint, the agency must convene a "preliminary meeting" with the IEP team and the child's parents, id. § 1415(f)(1)(B)(i), and offer an opportunity to resolve the dispute through mediation, id. § 1415(e)(1). If the grievance remains, the parties proceed to a due process hearing before an impartial arbiter, id. § 1415(f)(1)(A), who determines whether the child received a FAPE, id. § 1415(f)(3)(E)(i). Any party aggrieved by the agency's ruling may then seek judicial relief. See id. §§ 1415(i)(2)(A), 1415(l ).

B

Other statutes also protect the rights of children with disabilities. The ADA promises non-discriminatory access to "the services, programs, or activities" of any public facility, 42 U.S.C. § 12132, and requires "reasonable modifications" to the facility's "policies, practices, or procedures" to avoid discrimination, 28 C.F.R. § 35.130(b)(7)(i). Section 504 of the Rehabilitation Act imposes similar obligations on any federally funded "program or activity." 29 U.S.C. § 794(a). "[B]oth statutes authorize individuals to seek redress for violations of their substantive guarantees by bringing suits for injunctive relief or money damages." Fry , 137 S. Ct. at 750.

When disability issues arise in the school context, the substantive requirements of the IDEA may overlap with those of these other statutes. After the Supreme Court read the IDEA as providing the "exclusive avenue" for a child with a disability to challenge his special education program, Smith v. Robinson , 468 U.S. 992, 1009, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), Congress amended the IDEA to provide that:

Nothing in [the IDEA] 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 [the IDEA], the [IDEA's administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].

20 U.S.C. § 1415(l ). This provision makes plain that the IDEA does not preempt other statutory claims by children with disabilities, but requires that a plaintiff first exhaust the administrative process if "seeking relief that is also available under" the IDEA. Id. It is, in other words, "designed to channel requests for a FAPE (and its incidents) through IDEA-prescribed procedures," Payne v. Peninsula Sch. Dist. , 653 F.3d 863, 882 (9th Cir. 2011) (en banc), and prevents plaintiffs from using artful pleading to litigate IDEA issues without first utilizing the IDEA process, see S. Rep. No. 99-112, at 12, 15 (1985) (add'l views); H.R. Rep. No. 99-296, at 7 (1985).

C

In Fry , the Supreme Court addressed the issue of when a lawsuit "seeks relief that is also available under" the IDEA and is therefore subject to the exhaustion requirement. 137 S. Ct. at 748 (cleaned up). Because the IDEA only authorizes relief if a child has been denied a FAPE, the Court held that the exhaustion requirement of § 1415(l ) is triggered only if a complaint "charges [the] denial [of a FAPE]." Id. at 754. "If a lawsuit charges such a denial, the plaintiff cannot escape § 1415(l ) merely by bringing her suit under a statute other than the IDEA." Id. Rather, she must "first submit her case to an IDEA hearing officer, experienced in addressing exactly the issues she raises." Id. But "[a] school's conduct toward such a child—say, some refusal to make an accommodation—might injure her in ways unrelated to a FAPE, which are addressed in statutes other than the IDEA." Id. "A complaint seeking redress for those other harms, independent of any FAPE denial , is not subject to § 1415(l )'s exhaustion rule." Id. at 754–55 (emphasis added).

In determining "when a plaintiff ‘seeks’ relief for the denial of a FAPE," the Court has directed our focus to the "remedial basis" of the complaint. Id. at 755. Although the plaintiff is the "master of the claim," "artful pleading" cannot excuse exhaustion. Id. What matters is "substance, not surface." Id. So, we must set aside labels and ask whether the "gravamen of [the] complaint seeks redress for a school's failure to provide a FAPE, even if not phrased or framed in precisely that way." Id. In doing so, we must be mindful of the "means and ends of the" various statutes at play. Id. "[T]he IDEA guarantees individually tailored educational services, while [the ADA] promise[s] non-discriminatory access to public institutions." Id. at 756. Because "[t]he same conduct might violate [both] statutes," a plaintiff may have a claim under the IDEA but can, without exhaustion, "seek relief for simple discrimination, irrespective of the IDEA's FAPE obligation." Id.

Fry offered two "clues" to direct the gravamen analysis. Id. The first comes from two hypothetical questions: (1) "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 (2) "could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance?" Id. If both answers are "yes," the complaint is likely not just about the denial of a FAPE, as the "same basic suit" could go forward without...