RACHEL DOUCETTE, FOR HERSELF AND MINOR SON B.D.; MICHAEL DOUCETTE, FOR HIMSELF AND MINOR SON B.D., Plaintiffs, Appellants,
GEORGETOWN PUBLIC SCHOOLS; TOWN OF GEORGETOWN; ET AL., Defendants, Appellees.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Judith G. Dein, U.S. Magistrate Judge]
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
Thompson, Selya, and Lipez, Circuit Judges.
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.
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. §
that the Doucettes' federal claims were subject to the
IDEA's exhaustion requirement, the district
court 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.
has Isodicentric Chromosome 15q Duplication Syndrome
("15q Duplication Syndrome"), a rare genetic
disorder, which manifests differently among affected
persons. 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.
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"),
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.
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, 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.
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.
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. 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.
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,  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.
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."
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
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.
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."
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
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.
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)).
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.
Other Federal Laws and the IDEA's Exhaustion
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). 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.
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
20 U.S.C. § 1415(l).
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.
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
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.
The Section 504 Claim
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.
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. 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.
hypotheticals provided by the Fry Court in
explaining its first clue support this
conclusion. 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).
complaint's express allegations of FAPE deprivation and
inadequate educational services do not require us to find
otherwise. 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."
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.").
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