Lexyington McIntyre v. Eugene School District 4j

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LEXYINGTON MCINTYRE, No. 19-35186
Plaintiff-Appellant,
D.C. No.
v. 6:18-cv-00768-
MK
EUGENE SCHOOL DISTRICT 4J,
Defendant-Appellee,
OPINION
and

CHERYL LINDER; ANDY DEY;
MICHAEL STASACK; SUSIE
NICHOLSON; SUZIE MCLAUCHLIN,
Defendants.

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding

Argued and Submitted March 4, 2020
Portland, Oregon

Filed September 23, 2020
2 MCINTYRE V. EUGENE SCH. DIST. 4J

Before: Ferdinand F. Fernandez and Richard A. Paez,
Circuit Judges, and Timothy M. Burgess, * District Judge.

Opinion by Judge Paez

SUMMARY **

Disability Discrimination

The panel reversed in part and vacated in part the district
court’s dismissal of a former high school student’s action
alleging disability discrimination by school officials in
violation of Section 504 of the Rehabilitation Act and Title
II of the Americans with Disabilities Act.

The plaintiff had a “504 Plan” describing the education
and related aids and services she needed, but she did not have
an “individualized education program,” defined under the
Individuals with Disabilities Education Act (“IDEA”) as a
plan for ensuring that a student receives a free appropriate
public education (“FAPE”). The district court dismissed the
complaint under Federal Rule of Civil Procedure 12(b)(6) on
the dual grounds that (1) the plaintiff failed to exhaust her
administrative remedies under the IDEA, and (2) her claims
were barred by the applicable two-year statute of limitations.

*
The Honorable Timothy M. Burgess, United States Chief District
Judge for the District of Alaska, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 MCINTYRE V. EUGENE SCH. DIST. 4J 3

Applying Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743
(2017), the panel concluded that the “crux” of the complaint
sought relief for the disability-based discrimination and
harassment the plaintiff faced at school, and not for the
denial of a FAPE under the IDEA. As a result, she was not
required to exhaust administrative remedies under the IDEA.
First, the plaintiff complained that the school district
discriminated against her by failing to provide her with
specific accommodations, none of which constituted FAPE
as the IDEA defines it. The plaintiff also complained that
the school district discriminated against her by creating a
hostile learning environment. Her claim, which was based
only on Section 504, did not indirectly seek relief under the
IDEA. Because she never sought or received “special
education and related services,” a hostile learning
environment could not be said to have interfered with any
such services. Accordingly, the panel reversed the district
court’s dismissal for failure to exhaust administrative
remedies under the IDEA.

The panel also vacated the district court’s dismissal on
the alternative ground that the plaintiff’s claims were barred
by the two-year statute of limitations because she was not
entitled to minority tolling under Oregon Revised Statutes
section 12.160(2) or equitable tolling. The panel concluded
that to the extent the district court construed the statute of
limitations to be an alternative basis for dismissal, it
misconstrued a magistrate judge’s findings and
recommendation, which it adopted in full. Because the
tolling issues were not an independent basis for dismissal,
the panel vacated the district court’s order. In light of the
panel’s analysis under Fry, it remanded for further
consideration of whether the plaintiff’s claims were subject
to minority tolling.
4 MCINTYRE V. EUGENE SCH. DIST. 4J

COUNSEL

Kimberly Sherman (argued), Education, Environmental, &
Estate Law Group LLC, Eugene, Oregon; Marianne Dugan,
Eugene, Oregon; for Plaintiff-Appellant.

Rebekah R. Jacobson (argued) and Shayna M. Rogers,
Garrett Hemman Robertson P.C., Salem, Oregon, for
Defendant-Appellee.

OPINION

PAEZ, Circuit Judge:

Lexyington McIntyre (“McIntyre”) appeals the district
court’s order dismissing her complaint against Defendant
Eugene School District 4J (“the District”). 1 The operative
complaint alleges that, while McIntyre was a student at
South Eugene High School, school officials discriminated
against her on the basis of her disabilities in violation of
Section 504 of the Rehabilitation Act and the Americans
with Disabilities Act. The district court dismissed the
complaint under Federal Rule of Civil Procedure 12(b)(6) on
the dual grounds that (1) McIntyre failed to exhaust her
administrative remedies under the Individuals with
Disabilities Education Act, and (2) McIntyre’s claims were
barred by the applicable two-year statute of limitations.
Because the district court erred in both respects, we reverse

1
We adopt the spelling of the plaintiff’s first name used in the
operative First Amended Complaint.
 MCINTYRE V. EUGENE SCH. DIST. 4J 5

in part and vacate in part and remand for further
proceedings. 2

I. BACKGROUND 3

A. Factual Background

In 2017, McIntyre graduated from South Eugene High
School, one of the District’s schools, in Eugene, Oregon.
From first grade until her high school graduation, McIntyre
participated in the District’s Language Immersion Program.

In early 2012, during the seventh grade, McIntyre was
diagnosed with Attention Deficit Disorder (“ADD”). The
District accordingly developed a “504 Plan” for McIntyre,
which is a written document describing the regular or special
education and related aids and services a student needs. The
504 Plan laid out limited accommodations for McIntyre,
including extra time on tests and assignments, reduced

2
We have jurisdiction under 28 U.S.C. § 1291. See Paul G. by &
through Steve G. v. Monterey Peninsula Unified Sch. Dist., 933 F.3d
1096, 1100 (9th Cir. 2019). The Individuals with Disabilities Education
Act’s exhaustion requirement is not jurisdictional, but rather a claims
processing provision that defendants may offer as an affirmative defense.
See Payne v. Peninsula Sch. Dist., 653 F.3d 863, 867 (9th Cir. 2011) (en
banc), overruled on other grounds by Albino v. Baca, 747 F.3d 1162 (9th
Cir. 2014).

3
When reviewing a dismissal under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim, “[w]e accept as true all well pleaded
facts in the complaint and construe them in the light most favorable to
the nonmoving party.” ASW v. Oregon, 424 F.3d 970, 974 (9th Cir.
2005).
6 MCINTYRE V. EUGENE SCH. DIST. 4J

assignments and projects, preferred seating, and a quiet and
separate testing environment. 4

In fall 2013, McIntyre started as a freshman in the
International High School program at South Eugene High
School. Like every other student in the French Immersion
Program, McIntyre was enrolled in a French Language
Program with teacher Michael Stasack. But Stasack
declined to implement McIntyre’s 504 Plan
accommodations and repeatedly suggested that she did not
belong in the Program due to her ADD. At the end of the
school year in May 2014, McIntyre’s parents filed with the
District a formal “Bullying/Harassment” complaint against
Stasack. The District investigated and found two violations
of the District’s discrimination and harassment policies.
McIntyre suffered Post-Traumatic Stress Syndrome as a
consequence of the discrimination and harassment she faced
that year. As a remedy for the violations, the District offered
McIntyre two options: she could attend college-level French
classes through the University of Oregon or complete an
“Independent Study” program through the District.
McIntyre did not immediately select an option for her
sophomore year; instead, she completed a yearlong study
abroad program in Germany in 2014–15. She returned to her
high school in fall 2015.

McIntyre’s junior year was especially challenging. At
the beginning of the eleventh grade in fall 2015, McIntyre
was diagnosed with Addison’s disease, a rare hormone
4
As explained further below, schools regularly develop 504 plans
to support students who require accommodations for their disabilities.
Most students who are also eligible for an Individualized Education
Program (“IEP”) under the Individuals with Disabilities Education Act,
however, receive an IEP in lieu of a 504 plan. McIntyre never had an
IEP.
 MCINTYRE V. EUGENE SCH. DIST. 4J 7

condition. 5 The District accordingly amended McIntyre’s
504 Plan to include an emergency protocol that required
school officials to call 911 if she were seriously injured. In
addition, because of the disease, McIntyre could no longer
take her ADD medication.

As to McIntyre’s language study, after the District
discouraged her from taking college courses, McIntyre
accepted the District’s offer of an independent study
program for the 2015–16 school year. The instructor was
Suzie McLauchlin, a non-language teacher who was not
certified to administer the International Baccalaureate (“IB”)
exams and was not accredited to teach Advanced Placement
(“AP”) courses. McLauchlin rarely met with McIntyre. As
the school year progressed, McIntyre lacked sufficient
opportunity to practice French, and she was unprepared for
the AP exam in spring 2016.

Among her other teachers, McIntyre’s math teacher,
Susie Nicholson, also repeatedly declined to implement the
504 Plan accommodations. In particular, Nicholson
declined to provide McIntyre with testing accommodations,
forcing McIntyre to take exams in a way that was
embarrassing or left her with less time on the exams than her
peers. Nicholson’s actions further contributed to McIntyre’s
stress and anxiety and exacerbated her Addison’s disease.

5
Addison’s disease is “a chronic type of adrenocortical
insufficiency, characterized by hypotension, weight loss, anorexia,
weakness, and a bronzelike hyperpigmentation of the skin. It is due to
tuberculosis- or autoimmune-induced destruction of the adrenal cortex,
which results in deficiency of aldosterone and cortisol and is fatal in the
absence of replacement therapy.” Addison disease, DORLAND’S
ILLUSTRATED MEDICAL DICTIONARY (32d ed. 2012).
8 MCINTYRE V. EUGENE SCH. DIST. 4J

Towards the end of her junior year in spring 2016, the
District reassigned Stasack to a different school after it
investigated another student’s complaint against him.
McIntyre’s peers in the French Immersion Program
organized a walk-out to protest Stasack’s reassignment.
They also protested the accommodations that students with
disabilities sought, believing that Stasack was “fired because
of the 504 kids.” With McLauchlin’s permission, students
walked out from McLauchlin’s social studies class on May
26, 2016. McIntyre felt isolated from her peers and betrayed
by McLauchlin and the school administrators who failed to
intervene. Throughout the following year, McIntyre’s
classmates maintained their resentment, harassing and
bullying McIntyre for her perceived role in Stasack’s
transfer. They ultimately designed a sweatshirt celebrating
him, which students wore at their graduation ceremony in
2017. School officials never addressed the hostile learning
environment McIntyre experienced.

In June 2016, McIntyre fractured her ankle during a
physical education class. Despite the 504 Plan’s emergency
protocol requiring school officials to call 911, school
officials declined to call for an ambulance.

During her 2016–17 senior year, the District made it
difficult for McIntyre to apply for college in light of her
disability. The District failed to submit documentation for
McIntyre to receive testing accommodations with the
College Board, declined to properly record academic credit
for independent study and physical education classes from
her junior year, and refused to help McIntyre obtain the
necessary evaluations and approvals for IB and College
Board testing accommodations.
 MCINTYRE V. EUGENE SCH. DIST. 4J 9

B. District Court Proceedings

McIntyre, after turning eighteen, filed this lawsuit on
May 3, 2018. The First Amended Complaint, the operative
complaint, raised two claims. McIntyre alleged one claim
under Title II of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12131–34, alleging that the District
failed to provide reasonable accommodations to McIntyre.
McIntyre also alleged a claim under Section 504 of the
Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C.
§ 794, alleging that the District discriminated against her by
failing to provide her with reasonable accommodations and
creating a hostile learning environment. The complaint
sought declaratory and injunctive relief, economic and non-
economic money damages, and reasonable attorneys’ fees
and costs.

In response to the District’s motion to dismiss, a
magistrate judge recommended granting the motion for
failure to state a claim. The magistrate judge concluded that
McIntyre’s claims, although raised under the ADA and
Section 504, could not proceed because she had failed to
administratively exhaust them as provided by the Individuals
with Disabilities Education Act (“IDEA”), 20 U.S.C.
§§ 1400–1491. 6 Although McIntyre never sought and was

6
Although the District raised its exhaustion defense under Rule
12(b)(6), we have said that such a defense should generally be raised on
summary judgment. A defendant may raise the defense under Rule
12(b)(6) “[i]n the rare event that a failure to exhaust is clear on the face
of the complaint.” Albino, 747 F.3d at 1166. McIntyre’s failure to
exhaust her claims under the IDEA does not appear on the face of her
operative complaint. McIntyre, however, does not challenge the
District’s assertion that she failed to exhaust her claims under the IDEA’s
administrative process or the procedural mechanism by which the district
court dismissed the complaint. Accordingly, we proceed to review de
10 MCINTYRE V. EUGENE SCH. DIST. 4J

never recommended for an individualized education
program (“IEP”), the magistrate judge, relying on Fry v.
Napoleon Cmty. Sch., 137 S. Ct. 743 (2017), nonetheless
concluded that the gravamen of McIntyre’s claims involved
the provision of a free appropriate public education
(“FAPE”) and therefore exhaustion was required. The
magistrate judge also determined that minority tolling did
not apply to McIntyre’s claims, explaining that Oregon’s
minority tolling statute is inconsistent with the IDEA. The
magistrate judge also determined that equitable tolling did
not apply given that McIntyre’s parents were aware of her
alleged injuries.

McIntyre timely filed objections to the magistrate
judge’s Findings and Recommendation (“F&R”). The
district court adopted the F&R in full. McIntyre v. Eugene
Sch. Dist. 4J, No. 6:18-CV-00768-MK, 2019 WL 294758,
at *1 (D. Or. Jan. 23, 2019). The district court dismissed the
First Amended Complaint without prejudice but granted
McIntyre fourteen days to file a motion for leave to amend.
Id. at *4. McIntyre filed a notice declining to amend her
complaint. In response, the court entered judgment
dismissing the case.

McIntyre timely appealed.

II. THE GOVERNING FEDERAL STATUTES

There are three major overlapping pieces of federal
legislation generally applicable to a child’s claims of
disability discrimination in school: the IDEA, Section 504 of
the Rehabilitation Act, and Title II of the ADA. See A.G. v.

novo whether McIntyre was required to exhaust. See Henry A. v.
Willden, 678 F.3d 991, 998 (9th Cir. 2012).
 MCINTYRE V. EUGENE SCH. DIST. 4J 11

Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195,
1202 (9th Cir. 2016). Because this appeal turns on their
interplay, we provide an overview here.

A. The IDEA

“Congress enacted the IDEA ‘to ensure that all children
with disabilities have available to them a free appropriate
public education [or “FAPE”] that emphasizes special
education and related services designed to meet their unique
needs and prepare them for further education, employment,
and independent living.’” Id. (citation omitted) (alteration
in original). In exchange for federal funds, states agree to
comply with a number of statutory conditions, including the
requirement to provide a FAPE to all eligible children.
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1,
137 S. Ct. 988, 993 (2017).

The IDEA’s FAPE requirement includes both “special
education” and “related services.” Id. at 994 (quoting
20 U.S.C. § 1401(9)). “Special education” is “specially
designed instruction . . . to meet the unique needs of a child
with a disability.” Id. (quoting 20 U.S.C. § 1401(29)).
“Related services” are the support services “required to
assist a child . . . to benefit from” that instruction. Id.
(quoting 20 U.S.C. § 1401(26)). States also have a “child-
find” obligation under the IDEA to identify, locate, and
evaluate all children who may require special education and
related services. 20 U.S.C. §§ 1412(a)(3), (7), 1414(a)–(c);
Timothy O. v. Paso Robles Unified Sch. Dist., 822 F.3d 1105,
1110 (9th Cir. 2016).

The IDEA ensures that students receive a FAPE through
the development of an individualized education program,
“the centerpiece of the statute’s education delivery system
for disabled children.” Honig v. Doe, 484 U.S. 305, 311
12 MCINTYRE V. EUGENE SCH. DIST. 4J

(1988). An IEP is a comprehensive plan collaboratively
prepared by a child’s “IEP Team” (which includes teachers,
school officials, and the child’s parents), and must be drafted
in compliance with a detailed set of procedures. Endrew F.,
137 S. Ct. at 994. Among other requirements, the IEP must
describe the “special education and related services . . . that
will be provided” so that the child may “advance
appropriately toward attaining the annual goals” and, when
possible, “be involved in and make progress in the general
education curriculum.” 20 U.S.C. § 1414(d)(1)(A)(i)(IV).
FAPE is a substantive requirement—an IEP must ultimately
be “reasonably calculated to enable a child to make progress
appropriate in light of the child’s circumstances.” Endrew
F., 137 S. Ct. at 999.

When a disagreement arises about a child’s eligibility for
an IEP or an IEP’s contents, the IDEA requires states to
provide a dispute resolution process. See 20 U.S.C.
§ 1415(e). The major features of the process are outlined in
the statute. Id. The process usually starts with a parent or
school official presenting a complaint “with respect to any
matter relating to the identification, evaluation, or
educational placement of the child, or the provision of a free
appropriate public education to such child.” 20 U.S.C.
§ 1415(b)(6)(A). The parties may resolve their differences
through a preliminary meeting or a mediation, after which
they may proceed to a “due process hearing” before the state
or local school district. 20 U.S.C. § 1415(e), (f), (i); Endrew
F., 137 S. Ct. at 994. If the due process hearing does not
resolve the matter, the IDEA creates a cause of action for
children and parents to seek relief in any competent court.
20 U.S.C. § 1415(i). They can pursue injunctive or other
prospective relief, including reimbursement for the cost of
private education, but not ordinarily monetary damages. See
M.M. v. Lafayette Sch. Dist., 767 F.3d 842, 856 (9th Cir.
 MCINTYRE V. EUGENE SCH. DIST. 4J 13

2014); Mark H. v. Lemahieu, 513 F.3d 922, 929 (9th Cir.
2008); 20 U.S.C. § 1412(a)(10)(C)(ii); 34 C.F.R.
§ 300.148(c).

B. Section 504 and the ADA

While the IDEA focuses on the provision of appropriate
public education to children with disabilities, the
Rehabilitation Act more broadly addresses the provision of
state services to individuals with disabilities. Lemahieu,
513 F.3d at 929. Section 504, the Act’s core provision,
provides:

No otherwise qualified individual with a
disability in the United States . . . 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.

29 U.S.C. § 794(a). Section 504 applies to public schools
that receive federal financial assistance. 29 U.S.C.
§ 794(b)(2)(B). The protective measures in Section 504 are
not expressly affirmative in nature, but the Rehabilitation
Act empowers federal agencies to promulgate regulations
aimed at preventing prohibited discrimination. A.G.,
815 F.3d at 1203.

Section 504’s implementing regulations require
qualifying public schools to “provide a free appropriate
public education to each qualified handicapped person.”
34 C.F.R. § 104.33(a). The FAPE requirements in the IDEA
and in Section 504 are “overlapping but different.”
Lemahieu, 513 F.3d at 925; see also A.G., 815 F.3d at 1204
(“[A] showing that FAPE was denied under the IDEA does
14 MCINTYRE V. EUGENE SCH. DIST. 4J

not necessarily establish a denial of FAPE under Section
504.”). Under Section 504 regulations, FAPE requires
“regular or special education and related aids and services
that (i) are designed to meet individual educational needs of
handicapped persons as adequately as the needs of
nonhandicapped persons are met and (ii) are based upon
adherence to procedures that satisfy the requirements of
[34 C.F.R.] §§ 104.34, 104.35, and 104.36.” A.G., 815 F.3d
at 1203 (quoting 34 C.F.R. § 104.33(b)(1)) (emphasis
omitted). Thus, Section 504’s regulations gauge the
adequacy of services provided to individuals with
disabilities by comparing them to the level of services
provided to individuals who are not disabled. Id. And unlike
the IDEA’s FAPE requirement, which is inexorably linked
to “special education,” a FAPE under Section 504 requires
“regular or special education” that meet certain standards.
34 C.F.R. § 104.33(b)(1) (emphasis added).

There are two primary mechanisms for ensuring Section
504’s FAPE requirement. The first, although not mentioned
in Section 504 or its implementing regulations, is to develop
a “504 plan,” a written document describing the regular or
special education and related aids and services a child needs
and the appropriate setting in which to receive them. See
U.S. Dep’t of Educ., Parent and Educator Resource Guide
to Section 504 in Public Elementary and Secondary Schools
(Dec. 2016), at 10, https://www2.ed.gov/about/offices/list/
ocr/docs/504-resource-guide-201612.pdf; Durbrow v. Cobb
Cty. Sch. Dist., 887 F.3d 1182, 1186 n.1 (11th Cir. 2018)
(explaining that schools “must evaluate students with
disabilities to formulate § 504 Plans designed to aid the
student’s access to the general curriculum”); Or. Rev. Stat.
§ 343.154 (defining a “504 Plan” to mean “an education plan
developed for a student in accordance with” Section 504).
 MCINTYRE V. EUGENE SCH. DIST. 4J 15

The second, which is expressly permitted under the
regulations, is to implement an IEP for students also eligible
for services under the IDEA. See A.G., 815 F.3d at 1204
(citing 34 C.F.R. § 104.33(b)(2)); Lemahieu, 513 F.3d at 933
(“[A]dopting a valid IDEA IEP is sufficient but not
necessary to satisfy the § 504 FAPE requirements.”). In
other words, a child eligible for accommodations under
Section 504 may be served only by an IEP. In contrast, a
child eligible under the IDEA must have an IEP and may not
be served only by a 504 plan. See U.S. Dep’t of Educ.,
Office of Civil Rights, Protecting Students with Disabilities:
Frequently Asked Questions About Section 504 and the
Education of Children with Disabilities (Sep. 25, 2018),
https://www2.ed.gov/about/offices/list/ocr/504faq.html.
Nationwide, about 7 million students, or 14% of all public
school students, have an IEP. See National Center for
Education Statistics, Children and Youth with Disabilities
(last updated May 2019), https://nces.ed.gov/programs/coe/
indicator_cgg.asp. A much smaller proportion, less than 2%
of all students, have a 504 plan. See Education Week,
“States Vary in Proportion of Students with Disability-
Related ‘504’ Plans” (Sept. 11, 2015), http://blogs.edweek.
org/edweek/speced/2015/09/states_504_enrollment.html.

Title II of the ADA was modeled after Section 504. See
Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir.
2001). It similarly provides that:

[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.
16 MCINTYRE V. EUGENE SCH. DIST. 4J

42 U.S.C. § 12132. Although several material differences
exist between them, see K.M. ex rel. Bright v. Tustin Unified
Sch. Dist., 725 F.3d 1088, 1099 (9th Cir. 2013), to bring a
suit under the ADA and Section 504 requires the same
elements: (1) the child is a qualified individual with a
disability; (2) she was denied a reasonable accommodation
that she needs to enjoy meaningful access to the benefits of
public services; and (3) the program providing the benefit
receives federal financial assistance. A.G., 815 F.3d at 1204;
Mark H. v. Hamamoto, 620 F.3d 1090, 1097 (9th Cir. 2010).
A public entity can be liable for damages under Section 504
or the ADA “if it intentionally or with deliberate indifference
fails to provide meaningful access or reasonable
accommodation to disabled persons.” See A.G., 815 F.3d
at 1204–08 (discussing separately plaintiffs’ theories
regarding meaningful access, reasonable accommodation,
and deliberate indifference).

C. Exhaustion under the IDEA

The Supreme Court first considered the interaction of the
IDEA and other antidiscrimination laws like Section 504 and
the ADA in Smith v. Robinson, holding that the IDEA was
the “exclusive avenue” through which a child with a
disability could challenge the adequacy of her education.
468 U.S. 992 (1984). 7 Congress quickly responded,
amending the law in 1986 by adding the following provision:

7
At the time, and until 1990, the IDEA was called the Education for
the Handicapped Act. To avoid an extra acronym, we refer only to the
IDEA.
 MCINTYRE V. EUGENE SCH. DIST. 4J 17

(l) Rule of construction

Nothing in this chapter shall 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, except that before
the filing of a civil action under such laws
seeking relief that is also available under this
subchapter, the procedures under subsections
(f) and (g) shall be exhausted to the same
extent as would be required had the action
been brought under this subchapter.

20 U.S.C. § 1415(l) (emphasis added). The first half of
§ 1415(l) (i.e., everything before “except that”) reaffirms the
viability of laws like Section 504 and the ADA as
independent statutory bases for ensuring the rights of
students with disabilities. See Fry, 137 S. Ct. at 750. But
the second half requires exhaustion of such claims to the
extent that they “seek[] relief that is also available under” the
IDEA. Id. The Supreme Court considered this exhaustion
requirement in Fry “to address confusion in the courts of
appeals as to the scope of § 1415(l)’s exhaustion
requirement.” Id. at 752.

In Fry, the Supreme Court rejected the Sixth Circuit’s
interpretation of § 1415(l) that exhaustion is required for any
claim that “merely has some articulable connection to the
education of a child with a disability.” Id. at 753. Instead,
§ 1415(l) requires a focus on “relief that is also available”
under the IDEA. Id. (quoting § 1415(l)). But the “only relief
that an IDEA officer can give—hence the thing a plaintiff
18 MCINTYRE V. EUGENE SCH. DIST. 4J

must seek in order to trigger § 1415(l )’s exhaustion rule—
is relief for the denial of a FAPE.” Id. “[A]ny decision by a
hearing officer on a request for substantive relief [under the
IDEA] ‘shall’ be ‘based on a determination of whether the
child received a free appropriate public education.’” Id.
at 754 (quoting 20 U.S.C. § 1415(f)(3)(E)(i))). As a result,
“§ 1415(l)’s exhaustion rule hinges on whether a lawsuit
seeks relief for the denial of a free appropriate public
education.” Id.

The Court expressly considered FAPE as the IDEA
defines that term. Id. at 748 (“We hold that exhaustion is not
necessary when the gravamen of the plaintiff’s suit is
something other than the denial of the IDEA’s core
guarantee—what the Act calls a “free appropriate public
education.” (emphasis added) (citing 20 U.S.C.
§ 1412(a)(1)(A))). Although the Court acknowledged “a
plaintiff might seek relief for the denial of a FAPE under
Title II and § 504 as well as the IDEA,” id. at 756, it did not
discuss the “overlapping but different” requirements of
FAPE under Section 504 regulations, Lemahieu, 513 F.3d
at 925. Thus, to require exhaustion, a lawsuit must seek
relief for the denial of FAPE as defined by the IDEA.

The Court provided some guidance for determining
whether a plaintiff actually seeks relief for the denial of a
FAPE under the IDEA: “What matters is the crux—or, in
legal-speak, the gravamen—of the plaintiff’s complaint,
setting aside any attempts at artful pleading.” 137 S. Ct.
at 755. The inquiry turns on the relief a plaintiff actually
“seeks,” as the statute requires, but not relief that a plaintiff
“could have sought.” Id. On the other hand, the inquiry does
not turn on whether a complaint includes (or omits) any
magic phrase, such as FAPE or IEP. Id. In addition, “a court
should attend to the diverse means and ends of the statutes
 MCINTYRE V. EUGENE SCH. DIST. 4J 19

covering persons with disabilities,” principally noting that
the IDEA’s goal is to “provide each child with meaningful
access to education by offering individualized instruction
and related services appropriate to her ‘unique needs’ . . . .
while Title II and § 504 promise non-discriminatory access
to public institutions.” Id. at 755–56.

The Court also offered several “clues” to help determine
the gravamen of a complaint. The Court suggested that
lower courts ask two hypothetical questions: “First, could
the plaintiff have brought essentially the same claim if the
alleged conduct had occurred at a public facility that was not
a school—say, a public theater or library? And second,
could an adult at the school—say, an employee or visitor—
have pressed essentially the same grievance?” Id. at 756
(emphasis in original). When the answer to both questions
is yes, the complaint does not likely allege the denial of a
FAPE; when the answer is no, then it likely does. Id. In
addition, a court should look to the “history of the
proceedings.” Id. at 757. “A plaintiff’s initial choice to
pursue that process may suggest that she is indeed seeking
relief for the denial of a FAPE—with the shift to judicial
proceedings prior to full exhaustion reflecting only strategic
calculations about how to maximize the prospects of such a
remedy.” Id.

The Ninth Circuit has considered Fry’s application in a
published opinion only once. See Paul G., 933 F.3d 1096
(holding that parents of a child with autism and served with
an IEP must exhaust their Section 504 and ADA claims that
concern whether the child was provided a FAPE). Unlike
the plaintiffs in that case, McIntyre should not have to
exhaust her claims, as discussed next.
20 MCINTYRE V. EUGENE SCH. DIST. 4J

III. ANALYSIS

For the following reasons, we conclude that the “crux”
of McIntyre’s complaint seeks relief for the disability-based
discrimination and harassment she faced at school, and not
for the denial of a FAPE under the IDEA. As a result,
McIntyre need not exhaust the administrative remedies
under the IDEA.

McIntyre first complains that the District discriminated
against her by failing to provide her with specific
accommodations, none of which constitute FAPE as the
IDEA defines it. McIntyre’s complaint alleges that the
District failed to: (1) provide an alternative, quiet location to
take exams, (2) provide extra time to complete exams, and
(3) comply with an emergency health protocol. These
accommodations cannot be construed as “special
education,” because they do not provide “specially designed
instruction.” 20 U.S.C. § 1401(29) (emphasis added). See
34 C.F.R. § 300.39(b)(3) (“Specially designed instruction
means adapting . . . the content, methodology, or delivery of
instruction . . . .”); Fry, 137 S. Ct. at 755 (“[T]he [IDEA’s]
goal is to provide each child with meaningful access to
education by offering individualized instruction . . . .”);
“Instruction,” Cambridge Dictionary, https://dictionary.
cambridge.org/us/dictionary/english/instruction (“[T]he act
of teaching someone how to do something.”); see also
Robert A. Garda, Jr., Untangling Eligibility Requirements
Under the Individuals with Disabilities Education Act, 69
Mo. L. Rev. 441, 486–87 (2004) (“[N]ot all services
provided by schools to disabled students are special
education. A child with Attention Deficit Disorder (“ADD”)
may need preferential seating and the use of a word
processor, but not special education.” (citations omitted)); cf.
L.J. by & through Hudson v. Pittsburg Unified Sch. Dist.,
 MCINTYRE V. EUGENE SCH. DIST. 4J 21

850 F.3d 996, 1004–06 (9th Cir. 2017) (holding that “one-
on-one direction,” “specially designed mental health
services,” and a behavior specialist’s “extensive clinical
interventions” constitute “special” rather than “general”
education). 8 And because McIntyre did not otherwise seek
or receive special education—or, for that matter, an IEP—
nor can these accommodations be construed as “related
services,” which are services a child needs “to benefit from”
special education. 20 U.S.C. § 1401(26). 9 Thus, because
McIntyre seeks relief for the District’s failure to provide
specific accommodations that are neither “special
education” nor a “related service”—the constituent parts of
the IDEA’s FAPE requirement—she does not seek relief for
the denial of FAPE.

The District mischaracterizes the complaint when it
argues that McIntyre sought “one-on-one special education.”
McIntyre’s formal “Bullying/Harassment” complaint
challenged Stasack’s discrimination and harassment and his
refusal to implement her 504 Plan’s accommodations. After
finding repeated violations of District policy, the District—
rather than requiring Stasack comply with District policy—
offered McIntyre alternatives to complete her coursework.

8
McIntyre’s case is thus distinguishable from the only other
published case on which either the magistrate judge or district court
relied. Cf. Nelson v. Charles City Cmty. Sch. Dist., 900 F.3d 587, 592
(8th Cir. 2018) (requiring exhaustion where a child sought an online
education instructional program).

9
We do not suggest that a student’s IEP cannot provide testing
accommodations or an emergency protocol as a “related service” to
ensure she “benefits from” special education. The point here is only
that—absent special education—these accommodations alone do not
meet the statute’s definition of a “related service” to warrant exhaustion.
20 U.S.C. § 1401(26).
22 MCINTYRE V. EUGENE SCH. DIST. 4J

Nowhere does the complaint allege that McIntyre requested
those options. In any event, the inadequacy of the
“independent study” option goes to the crux of McIntyre’s
claims, which is that she was harmed by the District’s
alleged discrimination rather than its failure to provide her
special education.

McIntyre also complains that the District discriminated
against her by creating a hostile learning environment, which
does not seek relief for the denial of FAPE under the IDEA.
As McIntyre alleges, she was repeatedly admonished that,
due to her disability, she did not belong in the French
Immersion Program. And when McIntyre’s peers repeatedly
celebrated that teacher, who they complained was “fired
because of the 504 kids,” other teachers and administrators
failed to intervene and, at least in one case, supported the
other students’ cause. McIntyre’s claim, which is based only
on Section 504, does not indirectly seek relief under the
IDEA. Because McIntyre never sought or received “special
education and related services,” a hostile learning
environment could not be said to have interfered with any
such services. Thus, and again, McIntyre does not seek the
“only relief that an IDEA officer can give.” Fry, 137 S. Ct.
at 753.

To conclude that exhaustion was required, the district
court applied the approach that Fry rejected. The district
court determined that “the complaint is premised exclusively
on educational harm to plaintiff,” explaining that McIntyre
alleged she “was denied educational opportunities” due to
the District’s failure to accommodate her disability. But to
require exhaustion in this context would expand the
exhaustion requirement far beyond what Fry permits.
Exhaustion should not be required merely because the
plaintiff’s complaint “has some articulable connection to the
 MCINTYRE V. EUGENE SCH. DIST. 4J 23

education of a child with a disability” or else “falls within
the general ‘field’ of educating disabled students.” Id. at 752
n.3, 753. Instead, the proper inquiry looks to the substance
of the IDEA’s FAPE requirement, which the district court
failed to do.

Fry’s suggested “clues” also support the conclusion that
McIntyre’s lawsuit does not seek relief for the denial of a
FAPE under the IDEA.

McIntyre first seeks relief for the District’s failure to
implement testing accommodations. Under the ADA, such
accommodations may be required for a variety of entities
that offer professional licensing and credentialing exams.
42 U.S.C. § 12189; see Enyart v. Nat’l Conference of Bar
Examiners, Inc., 630 F.3d 1153, 1160 (9th Cir. 2011).
Accordingly, turning to Fry’s first hypothetical, a plaintiff
could have brought “essentially the same claim” for testing
accommodations “at a public facility that was not a school.”
Likewise, and turning to Fry’s second hypothetical, if the
District used any sort of eligibility exam for its employees,
“an adult at the school” could assert the same right to testing
accommodations.

McIntyre also seeks relief for the District’s failure to
implement her emergency health protocol. We have
explained that the ADA and Section 504 “include an
affirmative obligation for public entities to make benefits,
services, and programs accessible to people with
disabilities.” Updike v. Multnomah Cty., 870 F.3d 939, 949
(9th Cir. 2017). Accordingly, even an adult plaintiff may be
entitled to receive assistance from others if such an
accommodation is “reasonable.” See 42 U.S.C.
§ 12112(b)(5)(A); 28 C.F.R. § 35.130(b)(7); Castle v.
Eurofresh, Inc., 731 F.3d 901, 910 (9th Cir. 2013); Barnett
v. U.S. Air, Inc., 228 F.3d 1105, 1116 (9th Cir. 2000),
24 MCINTYRE V. EUGENE SCH. DIST. 4J

vacated on other grounds sub nom. US Airways, Inc. v.
Barnett, 535 U.S. 391 (2002); see also Hill v. Assocs. for
Renewal in Educ., Inc., 897 F.3d 232, 239 (D.C. Cir. 2018),
cert. denied, 139 S. Ct. 1201 (2019) (holding that a teacher,
an amputee, may be entitled to a classroom aide under the
ADA). Thus, “an adult at the school” or “at a public facility
that was not a school” could seek a similar accommodation
as the emergency health protocol required by McIntyre’s
504 Plan.

McIntyre finally seeks relief for the District’s creation of
a hostile environment at her school on account of her
disability. Although we have not resolved the issue, every
circuit to have done so has concluded that disability-based
claims for hostile work environment are actionable under the
ADA. See Ford v. Marion Cty. Sheriff’s Office, 942 F.3d
839, 852 (7th Cir. 2019) (agreeing with the five other circuits
to reach that same conclusion); Brown v. City of Tucson,
336 F.3d 1181, 1190 (9th Cir. 2003). We need not resolve
that question here, but the weight of authority supports the
conclusion that a hypothetical plaintiff could bring
essentially the same claim in different circumstances.

As to Fry’s last clue, an examination of “the history of
proceedings” belies any argument that McIntyre made a
strategic choice to avoid exhaustion. Rather, throughout a
prolonged dispute with the school regarding the
implementation of McIntyre’s 504 Plan, she sought to
resolve the disputes through the District’s non-IDEA
procedures (such as by filing a formal
“Bullying/Harassment” complaint) and without seeking an
IEP or resorting to the procedural protections offered under
the IDEA. Thus, this final clue supports the conclusion that
the operative complaint does not seek relief for the denial of
FAPE under the IDEA. Cf. Paul G., 933 F.3d at 1101
 MCINTYRE V. EUGENE SCH. DIST. 4J 25

(concluding that exhaustion was required where plaintiff
“initially pursued remedies under the IDEA and after
settlement switched gears to turn to other remedies”).

In sum, the “crux” of McIntyre’s complaint seeks relief
for the denial of equal access to a public institution, rights
protected by the ADA and Section 504. Fry 137 S. Ct. at
755. She complains that teachers and administrators
tolerated a hostile learning environment on account of her
disability, and that school staff failed to implement basic
accommodations. Some of those accommodations were
designed to ensure her safety, others an equal playing field
at testing time. Although those events occurred in an
educational setting, McIntyre was not required to exhaust
her claims under § 1415(l) merely because those events have
“some articulable connection to the education of a child with
a disability.” Fry, 137 S. Ct. at 753. Rather, exhaustion is
required where the complaint seeks the “only relief that an
IDEA officer can give”—that is, “relief for the denial of a
FAPE” as the IDEA defines it. Id. McIntyre’s complaint
does not seek such relief. Thus, we hold that McIntyre was
not required to exhaust her Section 504 and ADA claims
under the IDEA’s exhaustion scheme. 10 Accordingly, we
reverse the district court’s dismissal of McIntyre’s First
Amended Complaint for failure to exhaust administrative
remedies under the IDEA.

10
In light of our disposition, we see no need to address McIntyre’s
argument for a bright line rule that exhaustion is never required when a
student is ineligible for services under the IDEA. See D.R. v. Antelope
Valley Union High School District, 746 F. Supp. 2d 1132, 1145 (C.D.
Cal. 2010).
26 MCINTYRE V. EUGENE SCH. DIST. 4J

IV. STATUTE OF LIMITATIONS AND TOLLING

The district court also dismissed McIntyre’s First
Amended Complaint on the alternative ground that her
claims were barred by the applicable two-year statute of
limitations because her claims were not entitled to minority
tolling under Oregon Revised Statutes section 12.160(2) or
equitable tolling. 11 For the following reasons, we vacate the
district court’s order dismissing the complaint on these
alternate grounds.

Initially, there seems to have been some confusion
between the magistrate judge’s F&R and the district court’s
order adopting it. The F&R did not recommend that
McIntyre’s case should be dismissed because of the statute
of limitations; rather, it only recommended holding that
minority or equitable tolling did not apply to McIntyre’s
claims. Indeed, in its motion to dismiss, the District
conceded McIntyre’s allegations included events within the
two-year statute of limitations, including her entire senior
year, the junior year walk-out, and the junior year ankle
sprain. Thus, to the extent that the district court’s order
construed the statute of limitations to be an alternative basis
for dismissal, it simply misconstrued the F&R (and, along

11
The parties agree here, as they did before the district court, that a
two-year statute of limitations applies. See Duncan v. Eugene Sch. Dist.
4J, 431 F. Supp. 3d 1193, 1202 (D. Or. 2020) (collecting cases,
explaining “[t]he District of Oregon has generally held that for non-
employment claims brought under the Rehabilitation Act or the ADA,
the most analogous Oregon statute is Oregon Revised Statute § 12.110,
which provides a two-year statute of limitations”). The district court
apparently assumed without deciding that a two-year statute of
limitations applied. We see no need to resolve this issue because, even
assuming a two-year statute of limitations applies, we vacate the district
court’s order for the reasons discussed in the text.
 MCINTYRE V. EUGENE SCH. DIST. 4J 27

with it, the District’s motion to dismiss). And because the
tolling issues were not an independent basis for dismissal,
we vacate the district court’s order.

In light of our analysis under Fry, we remand for further
consideration whether McIntyre’s claims are subject to
minority tolling. The magistrate judge and the district
court’s analysis of the minority tolling issue turned on their
characterization of McIntyre’s claims as seeking relief for
the denial of FAPE. F&R at 9 (“The parties have not cited
to, and the Court is not aware of, any precedent evaluating
whether Oregon’s minority tolling statute, Or. Rev. Stat.
§ 12.160(2), applies to ADA or Rehabilitation Act claims
alleging the denial of a FAPE.”). The District asserts that
the same logic applies here, arguing that minority tolling is
inapplicable where the IDEA provides a mechanism for
relief by the parents when their child is a minor. But as
discussed, McIntyre’s claims do not seek relief for the denial
of FAPE under the IDEA. Thus, on remand, the district
court should reconsider whether any of McIntyre’s claims
are barred by the statute of limitations in light of our
conclusion that McIntyre does not seek relief for the denial
of a FAPE under the IDEA.

V. CONCLUSION

For the foregoing reasons, we reverse the district court’s
order dismissing the First Amended Complaint for failure to
exhaust McIntyre’s claims under the IDEA. We also vacate
the district court’s order dismissing the complaint as
alternatively barred by the statute of limitations, and we
28 MCINTYRE V. EUGENE SCH. DIST. 4J

remand with instructions to reconsider that ruling in light of
our opinion.

REVERSED in part, VACATED in part, and
REMANDED.

McIntyre shall recover her costs on appeal.