Ellenberg Ex Rel. S.E. v. New Mexico Military Institute

F I L E D
United States Court of Appeals
Tenth Circuit

March 7, 2007
PU BL ISH
Elisabeth A. Shumaker
UNITED STATES COURT O F APPEALS Clerk of Court

TENTH CIRCUIT

BOB AND KAREN ELLENBERG, as
parents and next friends of S.E., a
minor,

Plaintiffs-Appellants,
v.
No. 05-2056
NEW M EXICO M ILITARY
INSTITUTE; BO AR D O F REGEN TS
OF THE NEW M EXICO M ILITARY
INSTITUTE,

Defendants-Appellees.

Appeal from the United States District Court
for the District of New M exico
(D.C. No. CV-04-00347 PK /DJS)

Gail Stewart (Laurel Nesbitt with her on the briefs), Steven Granberg, P.A.,
Albuquerque, New M exico, for Plaintiffs-Appellants.

John F. Kennedy (Samantha J. Fenrow with him on the briefs), Cuddy, Kennedy,
Albetta, & Ives, LLP, Santa Fe, New M exico, for Defendants-Appellees.
Before LUC ER O, SILER, * and O’BRIEN, Circuit Judges.

L UC ER O, Circuit Judge.

Bob and Karen Ellenberg, the parents of a disabled child residing in New

M exico, appeal the district court’s grant of summary judgment in favor of the

New M exico M ilitary Institute at Rosw ell and its Board of Regents (collectively

referred to as “NM M I”) on their claims under the Individuals with Disabilities

Education Act (“IDEA”), the Americans with Disabilities Act (“ADA”), and §

504 of the Rehabilitation Act (“RA”). They argued that NM M I’s denial of their

child’s application for admission violated all three statutes, and sought a

declaration from the district court that N M M I is bound by the ID EA.

The IDEA requires states that accept federal special education funds to

provide disabled children with a “free appropriate public education” (“FAPE”) in

the “least restrictive environment” (“LRE”). It guarantees that such an education

is given by instructing states to create an Individualized Education Plan (“IEP”)

for each child within its care. As part of the bargain, however, Congress requires

parents to exhaust IDEA’s administrative procedures and remedies before filing

suit in federal court. The district court questioned whether the Ellenbergs

*
The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for
the Sixth Circuit, sitting by designation.

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satisfied this mandate, but nonetheless addressed the merits of the ID EA claim. It

was error to do so.

W e hold today that before a party may seek relief in federal court alleging a

violation of the IDEA ’s substantive provisions, a party must first request an IEP

for the disabled child, or seek a change to a current IEP if one exists, from the

agency designated to create that plan under the state’s educational framework.

Because it is undisputed that plaintiffs never attempted to amend their child’s

existing IEP or obtain a new IEP before pursuing the IDEA claim, they have

failed to exhaust the ID EA’s administrative procedures and remedies.

Under our precedent, parties are precluded from bringing claims under the

ADA and the RA that are educational in nature if they have failed to exhaust

IDEA’s administrative procedures, and relief for their injuries is available under

the ID EA. Although we hold that plaintiffs have failed to exhaust IDEA’s

administrative procedures, they are unable to obtain relief under the IDEA for

their pure discrimination claims brought pursuant to the RA and ADA, and thus

are not barred from bringing these claims in federal court at this time. The

district court’s sole basis for granting summary judgment to N M M I on these

claims was that plaintiffs’ IDEA claim failed. Because plaintiffs’ claims under

the RA and ADA are separate and distinct from the IDEA claim, the district

court’s ruling in favor of NM M I on this basis was in error.

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 Accordingly, we exercise jurisdiction pursuant to 28 U.S.C. § 1291,

REV ER SE the district court’s grant of summary judgment in favor of NM M I on

the IDEA claim, and R EM A N D with instructions to dismiss that claim for lack of

jurisdiction. W e REV ER SE the district court’s grant of summary judgment in

favor of NM M I on the Ellenbergs’ claims under Title II of the ADA and § 504 of

the RA, and R EM A N D for reconsideration of the motion for summary judgment

on the ADA and RA claims.

I

Before addressing the Ellenbergs’ claims, we consider the education law

framew ork under which they seek to be brought. W hen analyzed in concert, the

IDEA, New M exico’s education laws, and NM M I’s unique status provide a

complex legal backdrop with numerous interconnections, cross-definitions, and a

few seeming contradictions.

A

Congress passed the IDEA, 1 a federal spending statute, in response to

concerns about the educational opportunities afforded disabled students.

Considered an “ambitious federal effort to promote the education of handicapped

1
Formerly titled the Education of the Handicapped Act, the name of the
Act was officially changed to the IDEA in 1990. See Education of the
Handicapped Act Amendments of 1990, Pub. L. No. 101-476, 104 Stat. 1141. For
clarity’s sake, we have changed all references to the EH A in prior opinions and
legislative materials to the IDEA. All statutory citations refer to the 2000 edition
of the United States Code, which was in effect during the relevant period.

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children,” the IDEA “provides federal money to assist state and local agencies in

educating handicapped children, and conditions such funding upon a State’s

compliance with [its] extensive goals and procedures.” See Bd. of Educ. v.

Rowley, 458 U.S. 176, 179 (1982).

At base, it “ensure[s] that all children with disabilities have available to

them a free appropriate public education that emphasizes special education and

related services designed to meet their unique needs and prepare them for

employment and independent living.” 20 U.S.C. § 1400(d). To this end, in order

to receive federal funding the state must create an individualized education plan

for each disabled child. 20 U.S.C. § 1412(a)(4); See O’Toole ex rel. O’Toole v.

Olathe Dist. Schs. Unified Sch. Dist. No. 233, 144 F.3d 692, 698 (10th Cir. 1998).

Prepared at meetings between a representative of the local school
district, the child’s teacher, the parents or guardians, and, whenever
appropriate, the disabled child, the IEP sets out the child’s present
educational performance, establishes annual and short-term
objectives for improvements in that performance, and describes the
specially designed instruction and services that will enable the child
to meet those objectives.

Honig v. Doe, 484 U.S. 305, 311 (1988) (internal citations omitted); see 20

U.S.C. § 1414(d). Review of IEPs must occur at least annually, and are to be

revised as appropriate. Id.

By passing the IDEA, Congress also sought to “mainstream” disabled

children, i.e., states must have a goal of providing “full educational opportunity to

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all children with disabilities and a detailed timetable for accomplishing that goal.”

§ 1412(a)(2). Each child has a substantive right to receive his or her education in

the “least restrictive environment.” See § 1412(a)(5)(A). That is, students must

be educated “[t]o the maximum extent appropriate . . . with children who are not

disabled” in a “regular educational environment.” Id. States are prohibited from

segregating or otherwise removing disabled children from the regular classroom

setting except “when the nature or severity of the disability of a child is such that

education in regular classes with the use of supplementary aids and services

cannot be achieved satisfactorily.” Id.; see Honig, 484 U.S. at 311.

In conjunction with this right, “[e]ach public agency must ensure that a

continuum of alternative placements is available to meet the needs of children

with disabilities for special education and related services.” 34 C.F.R.

§ 300.115(a). Placement decisions must be based on the child’s IEP, and made by

“a group of persons, including the parents, and other persons knowledgeable

about the child, the meaning of the evaluation data, and the placement options.”

§ 300.116(a)(1). Unless a child’s IEP requires some other arrangement, the child

should be “educated in the school that he or she would attend if nondisabled.” Id.

The IDEA also sought to maximize parental involvement in educational

decisions affecting their disabled child by granting parents a number of

procedural rights. For example, parents are entitled to: (1) examine all records

relating to their child, 20 U.S.C. § 1415(b)(1); (2) participate in the IEP

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preparation process, id.; (3) obtain an independent evaluation of their child, id.;

(4) receive notice before an amendment to an IEP is either proposed or refused,

§ 1415(b)(3); (5) take membership in any group that makes decisions about the

educational placement of their child, § 1414(f); and (6) receive formal notice of

their rights under the IDEA, § 1415(d)(1).

Responsibility for implementing the IDEA and policing IDEA compliance

rests with the states, subject to the IDEA’s limited but specific structural

framew ork. Schaffer ex rel. Schaffer v. W east, 126 S. Ct. 528, 531 (2005) (citing

Rowley, 458 U.S. at 183). Each “State Educational Agency” (“SEA”) must enact

procedures and policies to implement the IDEA, and ensure both state and local

compliance w ith the Act. 20 U.S.C § 1412(a)(11). “Local Education Agencies” 2

(“LEAs”) are given primary responsibility for overseeing the actual provision of

special education services to disabled children. See § 1413(a)(1); Gadsby v.

Grasmick, 109 F.3d 940, 942-43 (4th Cir. 1997). SEAs ensure LEA compliance

2
An LEA is

a public board of education or other public authority legally
constituted within a State for either administrative control or
direction of, or to perform a service function for, public elementary
or secondary schools in a city, county, township, school district, or
other political subdivision of a State, or for such combination of
school districts or counties as are recognized in a State as an
administrative agency for its public elementary or secondary schools.

20 U.S.C. § 1401(15)(A).

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through the pow er of the purse: Federal IDEA funds are distributed to the SEA,

and those funds may not be forwarded to LEAs within the state unless they

demonstrate compliance with the ID EA to the satisfaction of the SEA. § 1413(a),

(d). In addition, the IDEA places an obligation to provide special education

services on “public agencies” that are “responsible for providing education to

children with disabilities,” 34 C.F.R. § 300.53, as well as on “education services

agencies” that have “administrative control and direction” over a public

secondary school, § 300.12.

Should an LEA or state agency prove “unable to establish and maintain

programs of free appropriate public education in compliance with IDEA,” the

SEA must provide special education and related services directly to disabled

children. 20 U.S.C. § 1413(h)(1). In so doing, the SEA “may provide special

education and related services . . . in such a manner and at such locations

(including regional or state centers) as the State agency considers appropriate.”

§ 1413(h)(2). However, the SEA is required to comply with IDEA requirements

as if it w ere an LEA. 34 C.F.R. § 300.175.

W hen parents believe their child is not being provided a FAPE in the least

restrictive environment, they are entitled to an impartial due process hearing,

conducted by either the SEA or the LEA as determined by state law. 20 U.S.C.

§ 1415(f). If the hearing is held before an LEA, the losing party may appeal to

the SEA. § 1415(g). Once state administrative procedures and remedies are

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exhausted, any party “aggrieved” by the hearing officer’s decision has a right to

file a civil action in state or federal court. § 1415(i)(2).

B

New M exico’s constitution gives each child the right to a free public

education. N.M . Const. art. XII, § 1; see also N.M . Stat. § 22-1-4. 3 The New

M exico legislature has defined this right as an entitlement to attend a public

school within the school district 4 in which the student resides. N.M . Stat. § 22-

12-4. Students may also attend other public schools w ithin the state subject to

availability, as determined by “enrollment preferences.” Id.

The New M exico Public Education Department (“NM PED”) (formerly the

“State Board of Education”) controls, manages, and directs all public schools in

the state, and is authorized to promulgate and enforce regulations tow ards these

ends. N.M . Const. art. XII, § 6; N.M . Stat. § 22-2-1. NM PED is the “sole

educational agency of the state for the administration or for the supervision of the

administration of any state plan established or funds received by the state by

virtue of any federal statute relating to aid for education” for the state’s general

public school system. N.M . Stat. § 22-9-2. At the local level, each school district

3
All references to New M exico statutes refer to those in effect at the times
relevant to this action, unless otherwise specified.
4
A “school district” is defined as “an area of land established as a political
subdivision of the state for the administration of public schools and segregated
geographically for taxation and bonding purposes.” N.M . Stat. §§ 22-3-54.1, 22-
4-1.

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is governed by a local school board, which is authorized to establish rules

governing enrollment in the district’s public schools and develop the district’s

educational policies. N.M . Stat. §§ 22-1-4(e), 22-5-4.

New M exico has long provided special education services to its residents.

Although NM PED is required to promulgate rules and standards governing the

provision of special education services, local school districts are responsible for

directly providing special education and related services to disabled students.

N.M . Stat. § 22-13-5. New M exico has chosen to accept IDEA funds, and has

adopted rules to comply with IDEA’s requirements accordingly. For purposes of

the IDEA, New M exico’s SEA is the NM PED, and its LEAs are generally the

local school districts.

NM PED’s regulations largely track the federal act, and are “binding on

each New M exico public agency that has direct or delegated authority to provide

special education and related services, regardless of whether that agency is

receiving funds under the Individuals with Disabilities Education Act.” N.M .

Code R. § 6.31.2.2. LEAs are tasked with developing IEPs for children within

their educational jurisdiction. § 6.31.2.11(A)(3)(g). Should the LEA ultimately

determine that the general public school system is unable to meet the needs of a

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disabled student, it may request that the student be placed in a state-supported

educational agency, 5 § 6.31.2.11(J)(1)(c), or in a “private school or facility.”

§ 6.31.2.11(L)(1). Neither type of institution is required to admit such student

upon referral; rather, it may “consider the child for possible enrollment.”

§ 6.31.2.11(J)(1)(C). If a child is accepted, the accepting institution assumes

primary responsibility for providing the child with a FAPE. § 6.31.2.11(J)(2).

C

NM M I is a state educational institution that offers a college preparatory

education in a military-style setting to students nationwide, although a preference

is given to New M exicans. N.M . Const. art. XII, § 11; N.M . Stat. §§ 21-12, 22-1-

2(V). The parties agree that NM M I is a unique educational institution – it is the

only publicly-funded, boarding military high school in New M exico, and appears

to be the only one of its kind in the nation. NM M I is unique in other ways as

well. Although it receives substantial state funding, New M exico does not

5
A “state-supported educational agency” is a publicly funded program that

(a) provides special education and related services to children with
disabilities who come w ithin the program’s educational jurisdiction;
(b) is operated by, or under contractual arrangements for, a state
school, state educational institution or other state institution, state
hospital or state agency; and (c) is primarily funded through direct
legislative appropriations or other direct state support to a public
agency other than a local school district.

N.M . Code R. § 6.31.2.7(C)(18).

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consider N M M I to be a part of the uniform system of free public schools

mandated by the New M exico Constitution. It is also specifically exempted from

NM PED’s general oversight and control. § 22-2-2(J). Instead, it is governed by a

Board of R egents charged to “maintain and control, at Roswell, a military

institute for the education and training of the youth in this country, of as high a

standard as like institutions in other states and territories,” and promulgate rules

and regulations accordingly. § 21-12-3, -4. The Board fixes both NM M I’s tuition

rate – NM M I must charge tuition under state law – and its admissions standards.

§ 21-12-1, -2, -4, -7.

NM M I’s admissions standards are rather precise: Applicants must have a

minimum 2.5 grade point average, satisfactorily complete the on-campus

admissions test, be in good physical condition, show respect for others, be able to

participate in athletic and leadership development activities, and have no major

disciplinary, drug, or alcohol problems. There are also a number of specified

disqualifying attributes identified in NM M I’s 2002-2003 admissions catalog,

including:

regularly scheduled psychological counseling or any other severe
psychological disorders or limiting condition[s] which in the opinion
of the medical staff would interfere with the cadet’s ability to
function satisfactorily at [NM M I], [or a] demonstrated [] inability to
meet the existing NM M I academic requirements without significant
accommodations that would alter the academic mission of [NM M I].

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 NM M I is not a New M exico school district that is required to provide

special education services under N ew M exico law. See N.M . Stat. § 22-1-2(R ).

Throughout this litigation, NM M I has taken the position that it is also not bound

by the IDEA. Nonetheless, NM M I contends it has admitted disabled applicants as

long as they are “otherwise qualified,” but will not alter its programs to

accom odate those with special needs. 6

D

S.E. is the child of Bob and Karen Ellenberg. In late 2000 S.E. moved to

Los Alamos, New M exico to live with her father, after exhibiting significant

behavioral problems while living with her mother in Florida. Unfortunately,

S.E.’s problems worsened in New M exico, where she engaged in high-risk

activities, including the abuse of various illegal drugs. W hen plaintiffs enrolled

S.E. at Los Alamos High School (“LA HS”), the public high school serving her

school district, they informed school officials about her problems and requested

that S.E. be closely monitored. The Ellenbergs did not, however, request that

LAHS provide S.E. with special education services. 7 Soon after she started

attending LAHS, S.E. stole her parents’ car and credit card, prompting the

exasperated Ellenbergs to press charges against her. During subsequent court

6
NM M I expressly informs potential applicants that its admission standards
“may exclude students with specific disabilities.”
7
Her father testified that he did not know he should request such services.
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proceedings related to that incident, S.E. received a “W aiver of Time Limitation,”

under w hich all charges would be dismissed if she satisfied certain conditions.

One of those conditions was placement in a court-ordered residential

treatment program. S.E. was assigned to Casa de Corazon (“CdC”), a treatment

facility located in Taos, New M exico. In November 2002, the Taos M unicipal

School District evaluated S.E. and concluded she qualified for special education

services on the basis of an emotional disability. 8 It accordingly prepared an IEP

for her, which recommended both a course of study – S.E. was to receive high

school curriculum – and a behavioral intervention plan. LAHS was identified in

the IEP as S.E.’s public high school based on her residency, but because of her

behavioral and social problems the IEP recommended residential treatment

elsewhere. Specifically, the IEP team determined that S.E. needed a “small,

structured learning environment” and “careful monitoring.” CdC, with a

professional staff trained to address her unique needs, was thus identified as her

LRE. The IEP w as to be reviewed one year from the date it was created or at the

time of her discharge, whichever occurred first.

S.E. (then fifteen) anticipated being discharged from CdC during the

summer following the 2002-2003 school year. Rather than requesting an IEP for

the upcoming school year from either the Los Alamos School District or the Taos

8
S.E. was diagnosed with Oppositional D efiance Disorder (“ODD”), a
disorder recognized by the American Psychiatric Association.
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M unicipal School District, her undisputed LEAs for IDEA purposes, the

Ellenbergs allowed S.E. to apply directly to N M M I for the fall 2003 semester. In

her application packet, the Ellenbergs disclosed that S.E. had previously exhibited

“a lot of disciplinary problems,” was currently enrolled in a residential treatment

program in Taos, was diagnosed with ODD, and was taking medication to control

her behavioral problems. They noted, however, that S.E. was now determined to

change her ways and showed signs of progress on that front. S.E. also included a

personal letter outlining her reasons for seeking admission: She “want[s] a good

education, and want[s] to be in the military.”

In June 2003 NM M I notified the Ellenbergs that S.E. would not be admitted

for the fall semester, but would be considered for the winter semester if she

demonstrated an ability to succeed in a regular classroom setting. Dissatisfied

w ith that decision, plaintiffs submitted personal letters and testimonials from tw o

of S.E.’s treating therapists at CdC. Although the therapists corroborated

plaintiffs’ belief that S.E. showed signs of improvement, they noted that S.E.’s

difficulties with anger and authority persisted. One therapist recommended that

S.E. start at NM M I in August, opining that S.E.’s continued need for a “structured

learning environment” would be satisfied at NM M I. 9

9
At the same time CdC personnel recommended S.E. for admission to
NM M I, they prepared a treatment plan for S.E. noting her continuing authority
problems, inability to control her temper and impulses, touchy demeanor,
difficulty limiting her “cussing,” and difficulty in getting along with her peer
(continued...)
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 Despite these efforts, NM M I upheld its decision based on (1) S.E.’s

presence in CdC, (2) her admitted past drug use, (3) her present medication

requirements, and (4) her need for continued counseling. Again, NM M I

suggested that S.E. reapply for the winter semester after demonstrating the ability

to succeed in “an educational environment other than a Residential Treatment

Facility.” The Ellenbergs opted to pursue an alternate approach.

Days later, they filed a request with NM PED for an IDEA administrative

due process hearing against NM M I. Plaintiffs argued NM M I’s refusal to provide

S.E. with a FAPE violated her rights under the IDEA and § 504 of the RA. W hen

NM PED assigned a hearing officer to address the claim, NM M I entered a limited

appearance solely for the purpose of contesting jurisdiction. NM M I posited that

because it is not a “public school or agency” it is not bound by the provisions of

the IDEA or § 504 of the RA. The hearing officer found against NM M I on the

jurisdictional question, but ultimately ruled in favor of NM M I on the merits. She

concluded that NM M I was not required to provide S.E. with a FAPE under the

ID EA or the RA because plaintiffs failed to show S.E. was otherwise qualified to

attend NM M I. Both parties filed administrative appeals: NM M I contested the

jurisdictional finding; plaintiffs challenged the ruling that S.E. was not otherwise

9
(...continued)
group. In that plan, they also concluded that she remained depressed, refused to
take responsibility for her actions on certain occasions, and continued to have
anger outbursts, albeit less frequently and for shorter periods of time.
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qualified. Concluding that the hearing officer wrongly decided that NM M I was a

“public school or agency” bound by the IDEA and the RA, the administrative

appeals officer dismissed plaintiffs’ claims for lack of subject matter jurisdiction

or, in the alternative, failure to state a claim upon which relief could be granted.

Their IDEA claim, the appeals officer noted, “borders on being wholly

insubstantial and frivolous.”

The Ellenbergs then filed a civil action in federal court against NM M I

asserting claims under the ID EA, § 504 of the RA, and Title II of the ADA.

Although it recognized “exhaustion concerns” due to plaintiffs’ failure to obtain

an IEP from an LEA before filing suit, the district court proceeded to address the

merits. It first rejected the IDEA claim, interpreting plaintiffs’ argument under

the ID EA as follows: The ID EA provides students with the right to choose w here

they will receive a FAPE, i.e., which school is the student’s least restrictive

environment, and thus S.E. has a right to choose to receive a FAPE from NM M I.

In its order, the court found that nothing within the IDEA’s provisions cited by

plaintiffs “support[s] the theory that special education is merely a service that

must be provided wherever the student chooses to attend school.” See Ellenberg

v. N. M . M ilitary Inst., No. CV-04-00347 PK/D JS, slip. op. at 28 (D .N.M .

February 7, 2005). Its findings expressly noted, however, that the court was not

addressing whether “NM M I must provide a FAPE for a child with a disability

admitted to NM M I.” Relying on this circuit’s decision in Urban ex rel. Urban v.

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Jefferson County Sch. Dist. R-1, 89 F.3d 720 (10th Cir. 1996), the court also

granted summary judgment to NM M I on the ADA and the RA claims, finding that

if the state satisfied its obligations under the IDEA it was not required to do more

under the ADA or the RA.

II

W e review the district court’s grant of summary judgment de novo,

applying the same standard employed by the district court. See L.B. ex rel. K.B.

v. Nebo Sch. Dist., 379 F.3d 966, 974 (10th Cir. 2004). That standard was

described in detail in Nebo Sch. Dist.:

The ID EA sets up a unique standard for a federal court’s
review of the administrative due process hearing. A district court
applies a modified de novo standard in reviewing a hearing officer’s
decision under the IDEA. It looks at the record of the administrative
proceedings and decides, based on a preponderance of the evidence,
whether the requirements of the IDEA are met. In so doing, it must
give “due w eight” to the hearing officer’s findings of fact, which are
considered prima facie correct. Although the district court may
accept additional evidence, such evidence is merely supplemental to
the administrative record. . . .
....
. . . Because the IDEA requires a district court to grant a
judgment on the record based on its own ascertainment of the
preponderance of the evidence, many IDEA claims do not fit into the
typical summary judgment standard of “no genuine issues of material
fact.”

Id. at 973-74 (internal citations omitted). Any legal determinations made by the

district court interpreting the ID EA are reviewed de novo. Id.

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 As an initial matter, it is important to understand what the Ellenbergs are

not arguing. They do not claim that either the Los Alamos or Taos M unicipal

School D istricts – S.E.’s LEAs – were unable to provide her w ith a FAPE.

Compare O’Toole ex rel. O’Toole, 144 F.3d at 695. Nor do they claim that S.E.

was denied a FAPE or appropriate reimbursement following her admission to

NM M I, compare Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993),

because S.E. was never admitted to NM M I. Notably, this is not a suit brought

against the State of New M exico, the Governor, or the head of NM PED, arguing

that NM M I’s failure to offer special education services (1) violates N ew M exico’s

obligation under the IDEA to have a goal of full educational equality, or (2)

categorically denies S.E. a FAPE in the least restrictive environment by limiting

the continuum of placements her LEAs may consider. Compare Ass’n for Cmty.

Living in Colo. v. Romer, 992 F.2d 1040 (10th Cir. 1993); Eva N. v. Brock, 943

F.2d 51 (6th Cir. 1991); N.M . Ass’n for Retarded Citizens v. New M exico, 678

F.2d 847 (10th Cir. 1982) (challenging New M exico’s state education system

based on § 504 of the RA); Bitsilly v. Bureau of Indian Affairs, 253 F. Supp. 2d

1257, 1259-60 (D .N.M . 2003).

Instead, plaintiffs argue: (1) NM M I’s failure to offer education services to

disabled children, including S.E., caused its denial of her application; and (2)

NM M I was required to provide S.E. with a FAPE because she is entitled to an

education in the least restrictive environment, which is NM M I.

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 The Ellenbergs misunderstand the IDEA. In their brief, which relies heavily

on anti-discrimination hyperbole, they view the IDEA as a virtual treasure trove

providing disabled children with a limitless number of substantive rights. The

IDEA, however, is not so broad. It is a spending statute that imposes obligations

on the states to provide certain benefits in exchange for federal funds. See

Rowley, 458 U.S. at 204 n.26. Although “Congress has broad power to set the

terms on w hich it disburses federal money to the States, . . . when Congress

attaches conditions to a State’s acceptance of federal funds, the conditions must be

set out ‘unambiguously.’” Arlington Cent. Sch. Dist. Bd. of Educ. v. M urphy, 126

S.Ct. 2455, 2459 (2006) (internal citation omitted). Courts engage in a two-step

inquiry to determine if a state has satisfied its substantive ID EA obligations.

“First, has the State complied with the procedures set forth in the Act? A nd

second, is the individualized educational program developed through the A ct’s

procedures reasonably calculated to enable the child to receive educational

benefits?” Rowley, 458 U.S. at 206-07. If the answ er to both is yes, “the State

has complied with the obligations imposed by Congress and the courts can require

no more.” Id. at 207.

Citing the IDEA’s 30-year old requirement that states “establish[] a goal of

providing full educational opportunity to all children with disabilities,” see 20

U.S.C. § 1412(a)(2), plaintiffs argue that the IDEA requires absolute educational

equality. In support, they point to language contained in Congress’ recent

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reauthorization of the IDEA, specifically Congress’ finding that it is in the

“national interest that the Federal Government have a supporting role in assisting

State and local efforts to educate children with disabilities in order to improve

results for such children and to ensure equal protection of the law.” 20 U.S.C.

§ 1400(c)(6) (2005). Plaintiffs, however, have not presented us with a single case

from any court recognizing a legally cognizable anti-discrimination claim brought

under the IDEA. 10 M oreover, the Supreme Court has explicitly rejected a similar

attempt to transform the IDEA into an anti-discrimination vehicle in a 30-year old

case, the very case cited by plaintiffs in support of their view. See Rowley, 458

U.S. at 198 (noting that in passing the IDEA Congress did not intend “to achieve

strict equality of opportunity or services” and further holding “the requirement

that a state provide specialized educational services to handicapped children

generates no additional requirement that the services so provided be sufficient to

maximize each child’s potential ‘commensurate with the opportunity provided

other children.’”); see also Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 623

n.6 (1999) (Thomas, J., dissenting) (noting that the ID EA is not a general anti-

discrimination statute).

10
The few cases cited by plaintiffs involve discrimination claims under the
ADA, not the IDEA. See, e.g., Padilla ex rel. Padilla v. Sch. Dist. No. 1, 233
F.3d 1268, 1271 (10th Cir. 2000) (“Plaintiff . . . alleged that the school district
and the board of education violated her rights under the ADA by excluding her
from participation in publicly funded general and special education programs
based on her disability.”).

- 21 -
 In any event, both claims ultimately fail because the Ellenbergs did not

exhaust the IDEA’s administrative procedures before filing a lawsuit against

NM M I. 11 “As part of the bargain of providing children with educational rights

and parents with procedural safeguards to protect those rights, Congress required

that parents turn first to the statute’s administrative framew ork to resolve any

conflicts they had with the school’s educational services.” Cudjoe ex rel. Cudjoe,

297 F.3d at 1064. W e have interpreted the ID EA’s exhaustion requirements

broadly, noting Congress’ clear intention to allow those with experience in

educating the nation’s disabled children “at least the first crack at formulating a

plan to overcome the consequences of educational shortfalls.” Id. at 1065; see

also Hayes ex rel. Hayes v. Unified Sch. Dist. No. 377, 877 F.2d 809, 814 (10th

Cir. 1989) (noting the “philosophy of the [IDEA] is that plaintiffs are required to

utilize the elaborate administrative scheme established by the Act before resorting

to the courts to challenge the actions of the local school authorities”). In

addition, we have recognized the important purposes served by exhaustion,

including: (1) “[A]llowing the full development of technical issues and a factual

record prior to court review;” (2) “[P]reventing deliberate disregard and

circumvention of agency procedures established by Congress;” and (3)

11
This issue w as not resolved by the district court. As always, however,
we have an independent obligation to satisfy ourselves of jurisdiction over this
matter before addressing the merits of the claim. See Cudjoe ex rel. Cudjoe v.
Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1063 (10th Cir. 2002).

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“[A ]voiding unnecessary judicial decisions by giving the agency the first

opportunity to correct any error.” Id. (citing Ass’n for Retarded Citizens, Inc. v.

Teague, 830 F.2d 158, 160 (11th Cir. 1987)).

Although they advanced through the state administrative process, plaintiffs

ignored two of the IDEA’s most basic initial steps. First, they did not obtain an

IEP from either of S.E.’s undisputed LEAs for the 2003-2004 school year.

Compare Nebo Sch. Dist., 379 F.3d at 970-71. Instead, the Ellenbergs

unilaterally determined that NM M I was their child’s LRE. Second, they did not

request a change to S.E.’s then current IEP as prepared by the Taos M unicipal

School District for the 2002-2003 academic year. At the time S.E. applied to

NM M I, that IEP stated that because of her behavioral problems and special needs,

CdC was her LRE. If plaintiffs believed S.E. required a new educational

placement, the proper course would have been for them to request a change to her

IEP. See 20 U.S.C. § 1414(d)(4). Following that request, should S.E.’s IEP team

not select NM M I as her educational placement, plaintiffs would have had the

right to challenge that decision via state administrative proceedings.

Failure to exhaust is excused if the relief plaintiffs seek is not “available”

under the IDEA. See 20 U.S.C. § 1415(i)(2); Cudjoe ex rel. Cudjoe, 297 F.3d at

1065. Exhaustion is also not required if pursuing administrative remedies would

be futile or if “an agency has adopted a policy or pursued a practice of generally

- 23 -
[sic] applicability that is contrary to the law.” Urban ex rel. Urban, 89 F.3d at

724 (citing H.R. Rep. No. 99-296 (1985)).

Potentially, relief is available to the plaintiffs under the IDEA. Relief is

available whenever the plaintiff could attain “relief for the events, condition, or

consequences of which the person complains, not necessarily relief of the kind the

person prefers.” Cudjoe ex rel. Cudjoe, 297 F.3d at 1066. The “dispositive

question generally is whether the plaintiff has alleged injuries that could be

redressed to any degree by the IDEA’s administrative procedures and remedies.”

Padilla ex rel. Padilla, 233 F.3d at 1274. W e do not determine the availability of

the relief based on the immediate ability of a plaintiff to attain it, recognizing that

“a child may have to go through several procedural steps to take advantage of that

remedy.” Cudjoe ex rel. Cudjoe, 297 F.3d at 1066. If “the IDEA’s ability to

remedy a particular injury is unclear, exhaustion should be required . . . . ”

Padilla ex rel. Padilla, 233 F.3d at 1274.

Although the Ellenbergs characterize the relief they seek as S.E.’s

admission to NM M I, their only legally cognizable injury under the IDEA is the

state’s failure to provide their child with a FAPE in the least restrictive

environment. They contend that their child’s least restrictive environment is

NM M I, as it is the only place where she can receive a military-style education.

B ecause they have ignored the IDEA’s procedural requirements, however, we

have no way of deciding whether a military-style education is appropriate for

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S.E. 12 Even assuming her LEA may determine that the only way to ensure S.E.

receives a FAPE is to provide her with such education, they could possibly craft

an IEP incorporating such a program at her local public school. Should her LEA

determine that because of S.E.’s specific needs NM M I is her least restrictive

environment, New M exico law provides for a referral system w hereby her LEA

could refer her to NM M I. 13 NM M I, with an updated IEP and a better

understanding of S.E.’s education needs, would then be able to make an informed

decision on whether to admit S.E. based on the LEA’s recommendation.

W e disagree that requiring the Ellenbergs to request a new IEP from a

child’s LEA before filing a suit, on the ground that the child is not being given a

FA PE in the least restrictive environment, would be futile and “without logic.”

The IEP is the “centerpiece of the [IDEA’s] education delivery system.” See

Honig, 484 U.S. at 311. W hen a disabled child alleges that the state is failing to

provide an education in the LRE, the need for an IEP is especially great. In

determining whether an educational placement is a student’s LRE, we look to (1)

12
W e do not address whether S.E. is entitled to a military-style education
under the IDEA. However, it is well-established that the IDEA does not
guarantee a particular type of substantive education. See Rowley, 458 U.S. at
207.

13
In addition, under the IDEA an SEA is obligated to “mak[e]
arrangements with public and private institutions (such as a memorandum of
agreement or special implementation procedures)” to ensure that each child is
given a FAPE in her least restrictive environment. 34 C.F.R. § 300.118.

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“whether education in a regular classroom, with the use of supplemental aids and

services, can be achieved satisfactorily;” and (2) “if not, if the school district has

mainstreamed the child to the maximum extent appropriate.” See Nebo Sch.

Dist., 379 F.3d at 976 (citing M urray ex rel. M urray v. M ontrose County Sch.

Dist. RE-1J, 51 F.3d 921, 927 n.10 (10th Cir. 1995)). Our review is necessarily

fact-intensive, requiring careful analysis of the particular child’s needs and

abilities. W ithout a recent IEP prepared at the time the placement at NM M I was

requested, neither this court nor a district court has a factual record adequate to

determine if NM M I is appropriate for S.E. See Urban ex rel. Urban, 89 F.3d at

724. 14

Nor are we persuaded that their claims fall within the general applicability

exception simply because they purport to challenge NM M I’s policies rather than a

specific IEP prepared for S.E. See Romer, 922 F.2d at 1044. “Administrative

remedies are generally inadequate or futile where plaintiffs allege structural or

systemic failure and seek systemwide reforms.” Ass’n for Cmty. Living in Colo.,

992 F.2d at 1044. However, in pursuing these claims plaintiffs must show that

14
Nebo Sch. Dist. does not require a different result. In Nebo Sch. Dist.,
plaintiffs challenged the placement decision identified in the IEP on the grounds
that the selected school, which had a high concentration of disabled students, was
not the child’s LRE. See 379 F.3d at 968. W e agreed that, based on the child’s
IEP, the school district’s proposed placement was not the child’s least restrictive
enviroment. If anything, Nebo School Dist. highlights the importance of
obtaining an IEP before initiating litigation over which school constitutes the
LRE.

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the policies are contrary to the law and that the underlying purposes of exhaustion

would not be served by requiring procedural compliance. Id. Plaintiffs advance a

plausible argument that NM M I’s refusal to provide special education services to

any student per se infringes upon a child’s right to an education in the LRE.

However, as noted above, without an IEP we do not know if NM M I was S.E.’s

least restrictive environment and thus cannot determine whether her rights under

the IDEA were violated. 15 Requiring plaintiffs to first pursue administrative

procedures and remedies is fully consistent w ith purposes of exhaustion. See id.

Plaintiffs make an ambiguous assertion that “exhausting administrative

remedies against Los Alamos was inconsistent with enforcement of their legal

right to seek admission to NM M I, attend NM M I if admitted, and receive such

special education services as a NM M I student.” Nothing precluded S.E. from

applying to NM M I; she applied in M ay 2003. Because she was not admitted to

NM M I, she was not prohibited from attending NM M I following admission or

denied a FAPE once accepted there.

Lastly, we reject plaintiffs’ claim that requiring S.E. to obtain an IEP

before filing suit is inconsistent with her right to attend NM M I if she is

“otherwise qualified.” S.E. is not entitled to specify which public agency (or

15
Unlike the plaintiffs in Romer and N .M . Ass’n for Retarded Citizens,
plaintiffs are not pursuing a class action on behalf of all similarly situated
children. Instead, they bring a claim on behalf of S.E. arguing that her individual
substantive right to an education in the LRE has been violated.

- 27 -
school for that matter) must provide her FA PE or prepare her IEP. Plaintiffs view

the IDEA’s substantive guarantee of an education in the LRE as a chit, to be

cashed in at whatever school she wishes to attend. Once again, this misconstrues

the rights of a disabled student under the IDEA, and once again, plaintiffs

articulate a position for w hich they cite no relevant legal authority.

It is to the states, not students, that Congress delegated authority to

implement the IDEA. See Rowley, 458 U.S. at 207-08. IDEA’s requirements

that students receive an education in the LRE do not preclude a state from

initially assigning students to local school districts and requiring them to seek an

IEP from that school district. 16 Although parents are given a right to participate

in the placement decision, states retain “[t]he primary responsibility for

formulating the education to be accorded a handicapped child,” including the

proper educational placement. Rowley, 458 U.S. at 208. Parents may challenge a

16
Plaintiffs appear to argue that because S.E. is within N M M I’s
“educational jurisdiction,” N M M I must prepare her IEP. Under New M exico law ,
each “public agency” must adopt rules to ensure that all children within its
educational jurisdiction are given a FAPE. N.M . Code R. § 6.31.2.9(A). They
interpret this provision as follows: Because all New M exico students are entitled
to apply to NM M I, all N ew M exico students are in its “educational jurisdiction,”
and thus NM M I is required to create a FAPE for every New M exico student that
requests it prepare one. New M exico’s specified structure for IEP preparation
places that burden on LEAs, and NM M I is unquestionably not an LEA under New
M exico law. If an LEA determines the student requires the services of a state-
educational agency, which arguably includes N M M I, it may “refer” the student to
that agency. N.M . Code R.. § 6.31.2.11(J)(1)(c). Even in that context, the agency
is not required to immediately accept the student. Plaintiffs’ interpretation of
New M exico law is plainly without merit.

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state’s proposed IEP, but courts must defer to the state’s proposal if that plan is

reasonably calculated to provide the child with a FAPE in the least restrictive

environment, even if a parent believes a different placement would maximize a

child’s educational potential. See Urban ex rel. Urban, 89 F.3d at 727; Lachman

v. Ill. State Bd. of Educ., 852 F.2d 290, 297 (7th Cir. 1998) (rejecting students’

claim that they have a right to choose w here they will receive a FAPE);

Springdale Sch. Dist. No. 50 v. Grace, 693 F.2d 41, 43 (8th Cir. 1982) (noting

that even though a state school for the deaf might provide the best possible option

for a student, the IDEA “does not require states to make available the best

possible option”) (emphasis in original)). W ere plaintiffs’ interpretation of the

LRE provision correct, “much of the ID EA would be unnecessary because all

school entities (public or private) would be required to make all their programs

available to all potential students, without regard to suitability, qualifications or

academic ability.” Ellenberg v. N.M . M ilitary Inst., No. CV -04-00347 PK/DJS,

slip op. at 29 (D.N.M . Feb. 7, 2005). As the district court correctly noted,

“plaintiffs focus on a freestanding substantive guarantee [the right to receive a

FA PE in the least restrictive environment] without concern for the procedural

mechanisms for implementing that guarantee.” Id.

Because plaintiffs have failed to exhaust the IDEA’s procedural

mechanisms, we REVERSE the district court’s grant of summary judgment in

- 29 -
favor of the defendants, and R EM AND to the district court with instructions to

dismiss the Ellenbergs’ IDEA claim for lack of jurisdiction. 17

II

The Ellenbergs also pursue claims under Title II of the ADA 18 and § 504 of

the RA. 19 Relying on this circuit’s decision in Urban ex rel. Urban, the district

court ruled that because plaintiffs’ claim under the IDEA failed, the ADA and RA

17
Because w e conclude that plaintiffs have failed to exhaust the ID EA’s
administrative procedures before pursuing claims in federal court, we do not
address whether under the IDEA NM M I is required to provide special education
services to a student who is accepted by, or attends, NM M I.

18
Title II of the ADA provides:

[N]o qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.

42 U.S.C. § 12132. Regulations implementing the ADA prohibit a public agency
from denying a disabled person “the opportunity to participate in services,
programs, or activities that are not separate or different, despite the existence of
permissibly separate or different programs or activities.” 28 C.F.R.
§ 35.130(b)(2).

19
Section 504 of the RA provides:

No otherwise qualified individual with a disability in the United
States, as defined in section 706(20) of this title, shall, solely by
reason of her or his disability, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.

87 Stat. 394, as amended, 29 U.S.C. § 794(a).

- 30 -
claims must also fail. Ellenberg v. N.M . M ilitary Inst., No. CV-04-00347

PK /DJS, slip op. at 39-40 (D.N.M . Feb. 7, 2005) (citing Urban ex rel. Urban, 89

F.3d at 727-28 (internal citations omitted)). Because we hold that the district

court lacked jurisdiction to address the IDEA claim, the district court’s grant of

summary judgment in favor of the defendants on these claims, based solely on its

finding that the ID EA claim failed, was in error.

W e must thus determine whether the dismissal of plaintiffs’ IDEA claim for

failure to exhaust requires us to also dismiss their RA and ADA claims for lack of

jurisdiction. W hen a plaintiff pursues a claim under the ADA or other law that

protects the rights of disabled children, the IDEA “requires her to first exhaust its

administrative procedures and remedies prior to commencing her ADA suit [or

suit under other federal law ] if she is ‘seeking relief that is also available under’

the ID EA.” Padilla ex rel. Padilla, 233 F.3d at 1274 (citation omitted) (emphasis

in original).

The IDEA permits plaintiffs to file a complaint “with respect to any matter

relating to . . . the provision of a free appropriate public education.” Hayes ex

rel. Hayes, 877 F.2d at 813 (citing 20 U.S.C. § 1415(b)(1)(E)) (emphasis and

omission in original). Thus, we have held that whenever a plaintiff brings a claim

that is “educational in nature” purporting to challenge the provision of

educational services by a local school district, the claim is “presumptively

redressable” through the IDEA’s administrative procedures. See Padilla ex rel.

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Padilla, 233 F.3d at 1275 (listing cases). This holds true regardless of what

statute the plaintiff purports to cite as the basis for the suit. Id.; Hayes ex rel.

Hayes, 877 F.2d at 812 (“In other words, when parents choose to file suit under

another law that protects the rights of handicapped children-and the suit could

have been filed under the [IDEA]-they are first required to exhaust the [IDEA’s]

remedies to the same extent as if the suit had been filed originally under the

[IDEA’s] provisions.”) (internal citation omitted). The benefits of exhaustion

fully support this rule, as it allow s educational professionals to have the first

crack at designing a program to meet a disabled student’s specific needs.

Arguably, plaintiffs’ ADA and RA claims are “educational in nature” as

they seek resolution of a dispute involving the admission requirements and

practices of NM M I, a secondary school. Based on our broad interpretation of the

term available, see Cudjoe ex rel. Cudjoe, 297 F.3d at 1066 (citing Padilla ex rel.

Padilla, 233 F.3d at 1274), the thrust of the relief the Ellenbergs requested under

§ 504 could be obtained through the IDEA and thus is presumptively redressable

by its provisions. 20 However, the presumption regarding exhaustion is simply

20
Specifically, they seek: (1) reversal of the administrative appeal officer
and hearing officer’s decisions, (2) a declaratory judgment that NM M I is bound
by the IDEA and § 504, (3) an injunction requiring NM M I to begin complying
with its obligations under the IDEA and § 504, (4) damages for the discrimination
suffered by S.E. pursuant to § 504 and the ADA, (5) compensatory education, (6)
damages for her lost educational opportunity, and (7) attorney fees and costs as
allow ed by state law .

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that, a presumption, and with respect to certain claims presented here, plaintiffs

have overcome it.

Plaintiffs contend that NM M I unlaw fully discriminated against S.E. in

violation of the RA and the ADA by denying her admission on the basis of her

disability even though she w as “otherw ise qualified” to attend, and that NM M I’s

qualifying admissions standards are “facially discriminatory.” 21 In the context of

these pure discrimination claims, the ID EA offers no relief, for they do not relate

to the provision of a FAPE in the least restrictive environment. Instead, they

challenge the alleged discriminatory admissions practices of a state-funded

21
The district court found that plaintiffs’ claims under the IDEA, the RA,
and the ADA were essentially indistinguishable. W e understand the district
court’s frustration with plaintiffs, and recognize that their complaint and
subsequent briefing did not provide the clearest articulation of the unique
differences between the ID EA, the RA, and the ADA claims they assert.
Arguably this failure below stemmed from plaintiffs’ understanding that the
district court precluded them from presenting their arguments regarding the RA
and the ADA in its scheduling order requesting briefing on the ID EA claims, a
position the Ellenbergs argued in their opening submission to the district court.
Nevertheless, plaintiffs pled allegations sufficient to establish the separate
and distinct nature of the RA and ADA claims. For example, in paragraph 12 of
the complaint, they allege that NM M I “had a written policy of excluding students
with disabilities from admission to NM M I.” In paragraph 13, they contend that
this policy was discriminatory. In paragraph 36, they note that NM M I engaged in
discrimination by refusing to admit S.E. During a hearing before the district
court, NM M I’s counsel recognized that plaintiffs w ere raising separate
discrimination claims under § 504 and the A DA. In that same hearing, plaintiffs’
counsel stated that the “Section 504 and ADA claims would stand alone” from the
ID EA claim, but that such claims do not stand alone for purposes of state
administrative procedures because “if there are no IDEA claims, a family does not
have the power to file a Section 504 administrative grievance” with NM PED.

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secondary school. As we noted previously, the Supreme Court has long-

recognized that the ID EA is simply not an anti-discrimination statute.

M oreover, exempting plaintiffs from exhaustion in this circumstance

prevents inefficiency and waste of judicial resources. Limited obligations are

imposed on states under the IDEA. Educational experts who develop IEPs must

identify the students’ LRE and select an educational placement, but they do not

decide which schools a student is otherw ise qualified to attend. Administrative

officers reviewing plaintiffs’ IDEA claims must consider the same limited

questions that we ask: (1) Has the student been given a FAPE?; and (2) W as the

student given a FAPE in the least restrictive environment? Rowley, 450 U.S. at

206-07. At no point would the administrative process offer insight into the merits

of a discrimination claim. Requiring exhaustion before the Ellenbergs could

pursue their claims under the ADA and RA would create an anomolous result:

Plaintiffs who concede a students’ IDEA rights have not been violated, or have

settled the IDEA claims, would be required to craft an IDEA claim and proceed

through the state administrative process to determine if the students’ ID EA rights

have been violated. See W .B. v. M atula, 67 F.3d 484, 496 (3d Cir. 1995)

(recognizing that plaintiffs would not be required to use the ID EA’s

administrative framew ork w hen they have settled their IDEA claims).

Turning to the merits of the RA and ADA claims, contrary to N M M I’s

suggestion, our precedent does not hold that a party’s discrimination claims under

- 34 -
the RA and the ADA must automatically be dismissed if an IDEA claim fails. 22

22
Both NM M I and the district court cited this court’s decision in Urban ex
rel. Urban for the proposition that if the state provides a student with a FAPE in
the least restrictive environment, it has not violated § 504 or the ADA. In Urban
ex rel. Urban, plaintiff argued that he was entitled under the ADA to reject the
educational placement offered by the school district and attend his neighborhood
school. This court noted that the administrative regulations promulgated by the
Department of Education pursuant to § 504 “generally conform to the standards
established by the IDEA.” 89 F.3d at 728. Both regulations “use substantially
the same language regarding a school district’s obligation to evaluate each
disabled child, create an IEP with parental input, and provide each disabled child
with an appropriate education.” Id. Thus, we concluded that “if a disabled child
is not entitled to a neighborhood placement under the ID EA, he is not entitled to
such a placement under section 504.” Id. However, we specifically noted that “a
federally-funded education system may violate § 504 when the school system’s
practices ‘preclude the handicapped from obtaining system benefits realized by
the nonhandicapped.’” Id. (citing N.M . Ass’n for Retarded Citizens, 678 F.2d at
855) (emphasis in original); see also W eber v. Cranston Pub. Sch. Comm’n, 245
F. Supp. 2d 401, 406 (D.R.I. 2003) (noting that § 504 is a “bludgeon to the
ID EA’s stiletto”).
Adopting NM M I’s reading of Urban ex rel. Urban would also contradict
Congress’ express legislative mandate that the ID EA should not be “construed to
restrict or limit the rights, procedures, and remedies available under the
Constitution, the Americans with Disabilities Act of 1990, title V of the
Rehabilitation Act of 1973, or other Federal laws protecting the rights of children
with disabilities.” 20 U.S.C. § 1415(l). At least one scholar has provided a clear
articulation of the interplay between claims under the IDEA and those brought
pursuant to § 504:

In contrast to the IDEA, Section 504 emphasizes equal treatment, not
just access to a FAPE. In other words, the drafters of Section 504
were not only concerned with [a student] receiving a FAPE
somewhere (as w as the case with the ID EA), but also that a federally
funded program does not treat [the student] differently because [she
is disabled]. Under Section 504, a state special school cannot hide
behind the justification that another public school might provide a
FA PE; it must show that somehow [the student] does not qualify for
admission. Unlike the IDEA, Section 504 does not only look at what
is a FAPE, but also what is fair.
(continued...)

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Any other interpretation of our caselaw would mean that a state educational

institution that receives public funding could openly discriminate against

applicants with disabilities so long as the state offered the student a FAPE in the

least restrictive environment. Thus, even if plaintiffs conceded that New M exico

fully satisfied its IDEA obligations with respect to S.E., they could pursue claims

under the ADA and the RA on the grounds that S.E. was precluded from receiving

a state benefit – military-style education – provided to her non-disabled peers.

Because the district court failed to consider these claims independently

from the IDEA claim, we REVERSE the district court’s grant of summary

judgment on the ADA and RA claims, and REM AND for reconsideration of these

claims.

IV

Accordingly, we REV ER SE the district court’s grant of summary judgment

in favor of NM M I on the IDEA claim, and REM AND with instructions to dismiss

that claim for lack of jurisdiction. W e REV ER SE the district court’s grant of

summary judgment in favor of NM M I on the Ellenbergs’ claims under Title II of

the ADA and § 504 of the RA, and REM AND for reconsideration of the motion

for summary judgment on the ADA and the RA claims.

22
(...continued)

Christopher J. W alker, Note, Adequate Access or Equal Treatment: Looking
Beyond the IDEA to Section 504 in a Post-Schaffer Public School, 58 Stan. L.
Rev. 1563, 1589 (2006).

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