Doucette v. Georgetown Public Schools

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Judith G. Dein, U.S. Magistrate Judge]

          Carol Ann Kelly, with whom Phillip E. Murray, Jr. and Murray, Kelly, & Bertrand, P.C. were on brief, for appellants.

          Alexandra R. Hassel, with whom Regina M. Ryan and Louison, Costello, Condon & Pfaff, LLP were on brief, for appellees.

          Before Thompson, Selya, and Lipez, Circuit Judges.

          LIPEZ, Circuit Judge.

         Rachel and Michael Doucette sued Georgetown Public Schools, the school committee, the town, and certain school district employees (collectively, "the school district") on behalf of their severely disabled child, B.D. The Doucettes alleged that the school district deprived B.D. of his service animal and subjected him to a dangerous environment in violation of federal and state law, thereby causing B.D. to experience seizures and hospitalization. They sought money damages for alleged permanent physical and emotional harm to B.D., as well as for loss of consortium to the parents.

         The school district moved for judgment on the pleadings, arguing that the Doucettes had failed to exhaust their federal claims -- a Rehabilitation Act claim and a substantive due process claim under 42 U.S.C. § 1983 -- through the administrative procedures prescribed by the Individuals with Disabilities Education Act ("IDEA"). See 20 U.S.C. §§ 1400-1491o; 1415(l). The IDEA requires exhaustion -- i.e., resort to the administrative process -- before a plaintiff may bring a civil action pursuant to other federal laws protecting the rights of disabled children if the relief sought is from the denial of a free appropriate public education. See 20 U.S.C. § 1415(l). The administrative process culminates in an impartial due process hearing conducted by the state educational agency or the local educational agency, as determined by the state. See 20 U.S.C. § 1415(f).^[1]

         Agreeing that the Doucettes' federal claims were subject to the IDEA's exhaustion requirement, the district court^[2] granted the school district's motion as to those claims and remanded the Doucettes' state law claims to state court. We vacate that decision. Guided by the Supreme Court's decision in Fry v. Napoleon Community Schools, 137 S.Ct. 743 (2017), and principles of exhaustion, we conclude that the gravamen of the Doucettes' Rehabilitation Act claim does not involve the denial of a free appropriate public education. As to the Doucettes' § 1983 claim, we conclude that it either was exhausted or that continued engagement with the IDEA's administrative scheme would have been futile. Hence, no further administrative pursuit was required for the § 1983 claim.

         I.

         B.D. has Isodicentric Chromosome 15q Duplication Syndrome ("15q Duplication Syndrome"), a rare genetic disorder, which manifests differently among affected persons.^[3] In B.D.'s case, the syndrome manifests as developmental delay, frequent choking, vision problems, difficulties in balance, aggression, cognitive impairment, communication deficits, autistic spectrum disorder, epilepsy, and anxiety disorder, among other problems. In addition to causing these symptoms, B.D.'s disorder increases his risk of sudden unexpected death -- a risk correlated with seizure activity in children with 15q Duplication Syndrome.

         B.D. attended Perley Elementary School ("Perley") from July 2009 until August 2012, when he was between the ages of three and six years old. Given his disabilities, he had an individualized education program ("IEP"), ^[4] which required, among other things, that he receive a consistent routine, a seizure plan, and one-on-one assistance, and that he participate in an extended-school year ("ESY") program.^[5]

         B.D.'s parents were dissatisfied with the services provided to B.D. at Perley. Within months of his arrival, they began complaining to administrators, teachers, and the superintendent. In the spring, they met with his IEP team to formally request a change to B.D.'s IEP, which was denied. In the weeks that followed, they continued to convey concerns, noting that B.D. was at times unsupervised, was bolting from class, and, on one occasion, fell and hit his head. Due to these concerns, the Doucettes removed B.D. from Perley, and he remained out of school from May to September 2010.

         In July 2010, while B.D. was out of school, the Doucettes requested a hearing before the Massachusetts Bureau of Special Education Appeals ("BSEA"), seeking an amendment to B.D.'s IEP and an out-of-district placement for him. The hearing was held at the end of August, and, a month later, the BSEA hearing officer issued a decision. Although the hearing officer found that B.D.'s IEP was inadequate, the officer found that an out-of-district placement was unwarranted, and ordered a new IEP for B.D. B.D. then returned to Perley in the fall of 2010 with an amended IEP.

         During the 2010-2011 school year, the Doucettes continued to be dissatisfied with the implementation of B.D.'s IEP. B.D. began having "staring spells with eye rolling," symptomatic of potential seizure activity. And, although B.D.'s amended IEP included a safety and seizure plan, one of B.D.'s teachers indicated to B.D.'s mother that she was unaware of the plan.

         In the fall of 2011, B.D. began working with a certified service dog that assisted him with his anxiety and balance, and alerted his caretakers to an impending seizure.^[6] In November of that year, the Doucettes requested that the school district permit the dog to accompany B.D. at school as a disability accommodation. The school district refused. When B.D.'s staring spells and anxiety increased, however, the school district offered him at-school access to the service animal if the Doucettes agreed to a school policy regarding the dog's handling. The Doucettes refused to sign this agreement, which they claim violated the Americans with Disabilities Act ("ADA"). They demanded that the district comply with the ADA. The school district then denied B.D. access to the dog but ordered a behavioral assessment, to take place the next fall (i.e., fall of 2012), to determine whether B.D.'s IEP should be amended to include the service dog.

         That summer, as part of the school district's ESY program, B.D. was placed in an unfamiliar building, with unfamiliar equipment, teachers, and sounds, including "gushing sounds from exposed pipes," and "the barking of the Guidance Counselor's pet dog." At this time, he experienced his first tonic-clonic seizure, ^[7] lasting over twenty minutes and requiring hospitalization. After the seizure, the Doucettes demanded an immediate amendment to B.D.'s IEP to grant him access to his service dog at school. Their request for an IEP amendment to include the service animal was denied, but the school district granted B.D. permission to use the dog at school if his mother would act as its handler.

         The Doucettes contest the adequacy of that arrangement to fulfill the school district's obligation to accommodate B.D. under section 504 of the Rehabilitation Act. Although not specifically stated in the complaint, we infer that the service dog did not then begin accompanying B.D. at school -- at least not on a regular basis. The Doucettes' section 504 claim is premised on B.D.'s denial of access to his service animal, which they say caused B.D. to "sustain five seizures in July, August, and September of 2012." The school district does not argue that the service animal accompanied B.D. at school during these seizures, but that "four of the five seizures suffered by B.D. occurred after he was permitted to bring his service dog to school."

         The Doucettes' complaint likewise provides no specific details as to why the Doucettes felt that the school's handling policy violated the ADA. As a rule, the ADA requires a public entity to "modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability." 28 C.F.R. § 35.136(a). In addition, a public school may, in some instances, violate disability laws by requiring a student to provide an outside adult handler to accompany the student and her service animal at school. See, e.g., Alboniga v. Sch. Bd., 87 F.Supp.3d 1319, 1342 (S.D. Fla. 2015). In a sentence in its brief, the school district states, "[T]he [Doucettes'] [c]omplaint does not sufficiently plead that the District outright denied B.D. access to his service dog; instead, the facts establish that the District had developed a policy . . . regarding the handler for the service dog . . . which the Parents refused to sign." The school district does not further develop this argument.^[8]

         In addition to demanding that the school grant B.D. access to his service animal at school, B.D.'s mother also complained to the school district about the changes in her son's program and requested a meeting with his IEP team. Two weeks later, B.D. experienced a second tonic-clonic seizure while in an unfamiliar environment and under the supervision of a substitute teacher. After this second seizure, the Doucettes requested an alternative school placement for B.D. Their request was denied.

         In the following weeks, B.D. suffered two more tonic-clonic seizures, each requiring a hospital stay. After the fourth seizure, the Doucettes removed B.D. from school and again requested an alternative school placement. They explained that "B.D. had had four [tonic-clonic] seizures in his lifetime, all of which happened in school [in the last month]," and that B.D.'s placement was "not only inappropriate but unsafe." They also presented the school district with a letter from B.D.'s doctor stating that the current placement was "inadequate in terms of managing [B.D.'s] seizures," expressing concerns regarding the "school's ability to handle [B.D.'s] health and safety," and recommending, "[g]iven the severity of [B.D.'s] anxiety in his [then] classroom setting, and the subsequent effect on his epilepsy and overall health," that B.D. be kept out of school until a safe placement was identified. Still, the school district refused to provide an alternative placement for B.D. and advised the Doucettes that B.D. was expected to attend school on September 5, 2012, and that "extended absences [would] be considered truancy."

         On September 5, 2012, the Doucettes returned B.D. to Perley. That same day, he suffered a fifth tonic-clonic seizure, requiring hospitalization. After the fifth seizure in a three-month period, the school district agreed to evaluate an out-of-district placement for B.D. Subsequently, the district agreed to the new placement, where B.D. has made "developmental and educational progress." B.D. has experienced no seizures since his removal from the school district.

         In 2015, the Doucettes filed suit alleging state law tort claims, as well as claims under section 504 of the Rehabilitation Act and 42 U.S.C. § 1983. The district court entered judgment against the Doucettes on their federal law claims on the basis of the Doucettes' failure to exhaust the IDEA's administrative remedies and declined to exercise pendent jurisdiction over the remaining state law causes of action. In this appeal, our review is de novo, Gulf Coast Bank & Co. v. Reder, 355 F.3d 35, 37 (1st Cir. 2004), and we "draw[] all reasonable inferences in favor of the plaintiff[s]." Marrero-Gutierrez v. Molina, 491 F.3d 1, 5 (1st Cir. 2007).

         II.

         A. The IDEA

         The IDEA is a federal statute ensuring that children with disabilities "have available to them a free appropriate public education," commonly referred to as a "FAPE." 20 U.S.C. § 1400(d)(1)(A). A FAPE encompasses "both 'instruction' tailored to meet a child's 'unique needs' and sufficient 'supportive services' to permit the child to benefit from that instruction." Fry, 137 S.Ct. at 748 (quoting 20 U.S.C. § 1401(9), (26), (29)). A disabled child's IEP -- her written education plan -- is the "primary vehicle" for providing the mandated FAPE. Id. at 749 (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)).

         The IDEA provides an administrative process for parents to challenge their child's IEP or its implementation. This process begins with a preliminary meeting or mediation with the child's IEP team, and, if the dispute remains unresolved, progresses to a "due process hearing" before an impartial hearing officer. 20 U.S.C. § 1415(b)-(f). Such officer may grant relief based upon "a determination of whether the child received a [FAPE]." Id. § 1415(f)(3)(E)(i). Before a parent sues a school under the IDEA, she must first "exhaust [the] administrative remedies through the due process hearing [provided for by the IDEA]." Rose v. Yeaw, 214 F.3d 206, 210 (1st Cir. 2000); see 20 U.S.C § 1415(i)(2)(A). Although exhaustion of IDEA claims is the general rule, it "is not absolute." Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 59 (1st Cir. 2002). Fundamentally, rules requiring administrative exhaustion are not meant to be enforced in a manner that would require "empty formalit[ies]." See Panetti v. Quarterman, 551 U.S. 930, 946 (2007). Plaintiffs are not required to exhaust administrative remedies under the IDEA when exhaustion would be futile. Id.

         B. Other Federal Laws and the IDEA's Exhaustion Requirement

         This case concerns claims under laws other than the IDEA that protect the rights of persons like B.D. Specifically, the Doucettes allege violations of section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and 42 U.S.C. § 1983. Section 504, like the IDEA, covers the disabled; it, however, "cover[s] both adults and children with disabilities, in both public schools and other settings," Fry, 137 S.Ct. at 749 (emphasis added), and requires that a public entity make "reasonable modifications" to existing practices, including by offering support services, to "accommodate" disabled persons, Alexander v. Choate, 469 U.S. 287, 299-300 (1985); see, e.g., C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 832 (2d Cir. 2014) (discussing support services available under section 504).^[9] Section 1983 applies even more broadly, protecting every "[c]itizen of the United States or other person within [its] jurisdiction" against the deprivation of a federally secured right by a person acting under the color of state law. 42 U.S.C. § 1983.

         The IDEA's exhaustion requirement is relevant to claims brought under these laws because the IDEA contains a provision, § 1415(l), which concerns the relationship between the administrative procedures specified in the IDEA and claims brought under such laws. It provides:

Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution . . ., title V of the Rehabilitation Act [including Section 504], 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).^[10]

         The Supreme Court recently addressed the reach of this exhaustion provision for the first time in Fry v. Napoleon Community Schools, finding that it only applies to lawsuits seeking "relief for the denial of a FAPE." 137 S.Ct. at 752; see also id. at 754. Under Fry, if a school "refus[ed] to make an accommodation" for a disabled child, "injuring [the child] in ways unrelated to a FAPE," a plaintiff "seeking redress for those other harms . . . is not subject to § 1415(l)'s exhaustion rule." Id. at 754-55.

         The Fry Court provided guidance for analyzing whether a lawsuit seeks relief for the denial of a FAPE, explaining that "a court should look to the . . . gravamen[] of the plaintiff's complaint" -- not "the labels used in [it]." Id. at 752, 755. The Court then noted two clues that indicate that the gravamen of a complaint is the denial of a FAPE. The first clue comes from the answers to a pair of 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?" and (2) "could an adult at the school . . . have pressed essentially the same grievance?" Id. at 756. When the answer to each question is no, the complaint "probably does concern a FAPE." Id. On the other hand, if the answers are yes, a FAPE is unlikely the true subject of the complaint. Id. The second clue involves the history of the case; a plaintiff's previous invocation of the IDEA's formal procedures may "provide strong evidence that the substance of a plaintiff's claim concerns the denial of a FAPE." Id. at 757.^[11]

         III.

         The Doucettes contend that the IDEA's exhaustion requirement does not apply to their claims because the gravamen of their claims is not the denial of a FAPE or, in the alternative, exhaustion was not required because it would have been futile or because they already met the exhaustion requirement. Applying the Fry framework to each of the Doucettes' claims, see Wellman v. Butler Area Sch. Dist., 877 F.3d 125, 132-33 (3d Cir. 2017) (endorsing a claim-by-claim approach to the Fry analysis); see also Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 785 (10th Cir. 2013) (employing a claim-by-claim approach to analyzing IDEA exhaustion), we conclude that (1) exhaustion was not required for the Doucettes' section 504 claim because the crux of the claim is not the denial of a FAPE; and (2) although the crux of the Doucettes' § 1983 claim is the denial of a FAPE, that claim is properly brought in federal court because it either was exhausted or further invocation of the administrative process would have been futile.

         A. The Section 504 Claim

         The Doucettes allege that the school district violated section 504 by "refus[ing] to permit B.D. access to his service dog . . . despite having knowledge that B.D. qualified as an individual with disabilities [who] relied upon the service dog." They assert that B.D. suffered life-threatening seizures because of the deprivation, and they seek money damages for associated medical costs.

         The gravamen of this claim -- B.D., a disabled child, was denied access to his seizure-alert service dog, and, as a result, suffered seizures -- is not the denial of a FAPE. Instead, it is "simple discrimination, irrespective of the IDEA's FAPE obligation." Fry, 137 S.Ct. at 756. In reaching this conclusion, we "attend to the diverse means and ends of . . . the IDEA . . . and [the] Rehabilitation Act." Id. at 755. "The IDEA guarantees individually tailored educational services, while . . . [section] 504 promise[s] non-discriminatory access to public institutions," id. at 756, "sometimes by means of reasonable accommodations," id. To be sure, there is "some overlap in coverage" between the statutes. Id.^[12] But here the section 504 claim, grounded in the refusal of the school district to reasonably accommodate B.D.'s use of the service dog (that is the allegation), involves the denial of non-discriminatory access to a public institution, irrespective of the school district's FAPE obligation to provide a particular education program for B.D.

         The hypotheticals provided by the Fry Court in explaining its first clue support this conclusion.^[13] The deprivation about which the Doucettes complain (deprivation of a service animal) might occur in a public facility that is not a school, and a non-student could "press[] essentially the same grievance." Id. at 756; see, e.g., Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1204 (11th Cir. 2007) (concerning similar claim brought in hospital setting); see also 28 C.F.R. § 36.302(c)(1) (requiring that places of public accommodation "modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability"); 28 C.F.R. pt. 36, app. C. (providing for "the broadest feasible access . . . to service animals in all places of public accommodation, including movie theaters, restaurants, hotels, retail stores, hospitals, and nursing homes"); cf. AP ex rel. Peterson v. Anoka-Hennepin Indep. Sch. Dist. No. 11, 538 F.Supp.2d 1125, 1152 (D. Minn. 2008) (no requirement of exhaustion where section 504 claims were for failure to accommodate diabetic student's need for administration of insulin).^[14]

         The complaint's express allegations of FAPE deprivation and inadequate educational services do not require us to find otherwise.^[15] The Supreme Court counseled against a "magic words" approach to the IDEA exhaustion inquiry. Id. at 755. What matters is not whether "a complaint includes (or, alternatively, omits) the precise words[] 'FAPE' or 'IEP, '" but rather whether a claim in fact "seeks relief for the denial of an appropriate education." Id. The allegations of FAPE deprivation are, as the Doucettes argue in their brief, "germane to . . . their state law claims and their section 1983 claims."

         The Doucettes' complaint does not assert inadequate education services as a basis for relief under section 504. Rather, the Doucettes identify the school district's knowing "refus[al] to recognize B.D.'s service dog as such" and the resulting "life-threatening" harm to B.D. as the basis for their section 504 claim. They assert that the refusal to recognize B.D.'s dog as a service dog denied B.D. safe access to his school. Their section 504 claim "is subject to exhaustion or not based on that choice," and not on other claims that the Doucettes might have brought. Fry, 137 S.Ct. at 755; see also Wellman, 877 F.3d at 132 ("To apply the Fry test without consideration of the actual claims could result in situations where claims that are included in a complaint because they involve the same parties or course of events but do not involve the provision of a FAPE get swept up and forced into administrative proceedings with claims that are seeking redress for a school's failure to provide a FAPE.").

         Furthermore, although the Doucettes previously invoked the IDEA's formal procedures when they participated in an administrative hearing before the BSEA in August 2010, that hearing, which concerned alleged violations of B.D.'s IEP during the 2009-2010 school year, was unrelated to B.D.'s request for access to his service animal, which he did not begin to use until November 2011. As such, the Doucettes' participation in the BSEA hearing is not "evidence ...