NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
K.D., a minor, by and through her guardian No. 19-56192
ad litem, Leila Carrera,
D.C. No.
Plaintiff-Appellant, 2:19-cv-02032 PA (Ex)
v.
MEMORANDUM*
LOS ANGELES UNIFIED SCHOOL
DISTRICT,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted August 12, 2020**
Pasadena, California
Before: CALLAHAN, BUMATAY, and VANDYKE, Circuit Judges.
K.D., a minor, by and though her guardian ad litem, appeals the district
court’s dismissal of her action under the Individuals with Disabilities Education
Act (“IDEA”) against the Los Angeles Unified School District (“LAUSD”). The
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court concluded that K.D. failed to exhaust the administrative process
required by the IDEA because her claim effectively alleged denial of a free and
appropriate public education (“FAPE”). We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
K.D. is a minor with a genetic disorder (Prader-Willi Syndrome) that
produces, among other disabilities, intellectual and speech delays and a sense of
hunger that cannot be sated. K.D. alleges that, over the course of her education,
the LAUSD never provided teachers and staff with training related to Prader-Willi
Syndrome, did not conduct an Assistive Technology/Augmentative and Alternative
Communication (“AT/AAC”) assessment of K.D., did not include important
specialists in K.D.’s periodic IEP meetings, and denied K.D.’s mother’s request for
a one-on-one aid or the assistance of a behavioral therapist. As a result of the
LAUSD’s alleged failures, K.D. claims to have suffered a denial of meaningful
access to the benefits of a public education, loss of equal educational opportunity,
humiliation, hardship, anxiety, depression, and a physical injury. K.D. requested a
due process hearing under the IDEA to raise her claims, but before the hearing was
held, K.D. and the LAUSD entered into a settlement agreement. Subsequently,
K.D. filed this suit.
We apply Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017), to
determine when claims fall under the exhaustion requirement of the IDEA. There,
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the Supreme Court explained that “§ 1415(l)’s exhaustion rule hinges on whether a
lawsuit seeks relief for the denial of a free appropriate public education,” id. at
754, which hinged on two 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—say, an employee or
visitor—have pressed essentially the same grievance?” Id. at 756. The Supreme
Court concluded that “when the answer [to those questions] is no, then the
complaint probably does concern a FAPE, even if it does not explicitly say so.” Id.
Here, K.D.’s claims could only be brought by a student, and only against a
school, because they are based on an alleged failure to assess her needs as a student
and provide appropriate education to meet those needs. Accordingly, the district
court properly held that K.D. had to exhaust her IDEA remedies before seeking
judicial relief. This determination is further supported by the fact that K.D.
initiated the IDEA’s process before filing her lawsuit. See id.
K.D. also argues that exhaustion would be futile because she seeks monetary
damages—which are not available under the IDEA administrative process. We
rejected this argument in Paul G. v. Monterey Peninsula Unified School District,
933 F.3d 1096 (9th. Cir. 2019), where, as here, the damages sought were based on
an alleged failure to provide a FAPE.
We also held that the administrative process should have the first
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opportunity to determine if a failure occurred, notwithstanding plaintiff’s request
for monetary damages. Id. at 1102. Similar to Paul G., K.D. settled with the
LAUSD without receiving a determination of her administrative claims. Settling a
case without receiving an administrative ruling does not satisfy the IDEA’s
exhaustion requirement. Paul G., 933 F.3d at 1098 (“Plaintiffs failed to exhaust
because they settled their IDEA case without receiving an administrative decision
. . . .”). Therefore, we hold that K.D. failed to administratively exhaust her claims
below.
“The exhaustion requirement is intended to prevent courts from acting as
ersatz school administrators and making what should be expert determinations
about the best way to educate disabled students.” Payne v. Peninsula Sch. Dist.
653 F.3d 863, 876 (9th Cir. 2011) (en banc), overruled on other grounds by Albino
v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc). That concern is particularly
apropos here, where liability turns on whether K.D. should have been assessed for
possible communication accommodations, and what form those accommodations
should have taken. K.D.’s claims are best handled by school administrators—not
this court.
The district court correctly held that the gravamen of K.D.’s claims relate to
her FAPE and that she was therefore required to exhaust the IDEA’s administrative
remedies. K.D.’s request for monetary damages does not excuse her from
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exhausting those administrative remedies, and K.D.’s settlement with the LAUSD
does not constitute exhaustion of those administrative remedies. The district
court’s dismissal of K.D.’s action is AFFIRMED.
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