D. D. v. Lausd

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

D. D., a minor, by and through his No. 19-55810
Guardian Ad Litem, Michaela
Ingram, D.C. No.
Plaintiff-Appellant, 2:19-cv-00399-
PA-PLA
v.

LOS ANGELES UNIFIED SCHOOL OPINION
DISTRICT,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding

Argued and Submitted June 2, 2020
Pasadena, California

Filed December 31, 2020

Before: Kermit V. Lipez, * Johnnie B. Rawlinson, and
N. Randy Smith, Circuit Judges.

Opinion by Judge Lipez;
Dissent by Judge Rawlinson

*
The Honorable Kermit V. Lipez, United States Circuit Judge for
the First Circuit, sitting by designation.
2 D.D. V. LAUSD

SUMMARY **

Americans with Disabilities Act

The panel vacated the district court’s dismissal of an
action brought by a student under Title II of the Americans
with Disabilities Act and remanded for further proceedings.

The student alleged that the Los Angeles Unified School
District denied him equal access to a public education
because of his disability, and the district court dismissed his
complaint on the ground that he failed to exhaust his claim
through the administrative procedures prescribed by the
Individuals with Disabilities Education Act (“IDEA”), as
required when a plaintiff seeks relief under other federal
statutes for the denial of a free appropriate public education
(“FAPE”).

The panel held that the gravamen of the student’s ADA
claim was discrimination separate from his right to a FAPE.
Hence, his ADA claim was not subject to IDEA exhaustion.
The panel closely examined the complaint and determined
that its allegations concerned the denial of access to public
facilities, rather than the denial of a FAPE. The panel further
concluded that a different result was not required by Fry v.
Napoleon Cmty. Sch., 137 S. Ct. 743 (2017), pursuant to
which the panel considered (1) whether the plaintiff could
bring the same claim outside the school setting and whether
an adult or school visitor could bring the same claim within
the school setting and (2) the history of the proceedings.

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 D.D. V. LAUSD 3

Dissenting, Judge Rawlinson disagreed with the
majority’s application of Fry to the facts of this case. She
wrote that exhaustion was required because the claims for
relief in the amended complaint were premised on asserted
violations of the IDEA.

COUNSEL

Patricia A. Van Dyke (argued) and Janeen Steel, Learning
Rights Law Center, Los Angeles, California; Shawna L.
Parks, Law Office of Shawna L. Parks, Los Angeles,
California; for Plaintiff-Appellant.

Matthew R. Hicks (argued) and Michele M. Goldsmith,
Bergman Dacey Goldsmith, Los Angeles, California, for
Defendant-Appellee.

Andria Seo, Lauren Lystrup, and Carly J. Munson, Disability
Rights California, Los Angeles, California, for Amici Curiae
California Association of Parent-Child Advocacy, Disability
Rights Advocates, Disability Rights California, National
Center for Youth Law, and National Disability Rights
Network.

OPINION
LIPEZ, Circuit Judge:

Appellant D.D., an elementary school student who has
attention deficit hyperactivity disorder (“ADHD”) and
severe, disability-related behavioral issues, brought this
action pursuant to the Americans with Disabilities Act
(“ADA”) alleging that the Los Angeles Unified School
District (“the District”) denied him “equal access to [a]
4 D.D. V. LAUSD

public education” because of his disability. D.D. seeks
damages for harms stemming from his repeated exclusion
from school and for abusive treatment he experienced when
he attended. The district court dismissed D.D.’s complaint
on the ground that he failed to exhaust his claim through the
administrative procedures prescribed by the Individuals with
Disabilities Education Act (“IDEA”), as required when a
plaintiff seeks relief under other federal statutes for the
denial of a free appropriate public education (“FAPE”). See
20 U.S.C. §§ 1400, 1415(l).

Having appellate jurisdiction pursuant to 28 U.S.C.
§ 1291, we vacate that dismissal. A close review of D.D.’s
allegations reveals that the gravamen of his ADA claim is
discrimination separate from his right to a FAPE. Hence, his
ADA claim is not subject to IDEA exhaustion. See Fry v.
Napoleon Cmty. Sch., 137 S. Ct. 743, 748 (2017).

I. FACTUAL BACKGROUND 1

D.D. is an elementary school student whose “disability-
related behaviors ranged from being off-task and impulsive
to being physically aggressive toward peers and adults.” As
early as kindergarten (the 2015–2016 school year), D.D.’s
mother was regularly called to take him home early from
school “because his ‘behaviors interfered [with] the other
students.’” D.D.’s mother requested a one-to-one aide “to
accommodate D.D.’s needs and enable him to participate
with his peers,” but the request was denied. D.D. transferred

1
We draw our factual summary from the well-pleaded allegations
in the complaint, which we take as true, see Curtis v. Irwin Indus., Inc.,
913 F.3d 1146, 1151 (9th Cir. 2019), from the “Request for Mediation
and Due Process Hearing” that triggered administrative proceedings
pursuant to the IDEA, and from the Final Settlement Agreement and
Release that concluded those proceedings.
 D.D. V. LAUSD 5

to a different school for first grade, but his behavior
worsened. He struck himself, his classmates, and school
staff members. D.D. left the classroom regularly and, at
times, caused property damage, “once punching a classroom
fire extinguisher.”

Early in the first-grade year, D.D.’s mother was given
“an ultimatum”: she could either retrieve D.D. from school
because of his “disruptive, disability-related behaviors,” or
have a family member serve as his one-to-one aide in the
classroom. Both D.D.’s mother and her partner, Albert,
worked full-time jobs, but they decided that Albert would
leave his job to serve as D.D.’s aide. However, late in the
school year, on a day that Albert was unavailable, D.D. had
a “severe behavioral incident” that prompted the school to
summon a Psychiatric Emergency Team (“PET team”). The
episode subsided before the PET team arrived at the school,
and D.D.’s mother took him home. That evening, the PET
team came to the family’s home and informed D.D.’s parents
that he needed to be placed on a 24-hour psychiatric hold at
a hospital. Ultimately, D.D. spent seven days at the facility.
After this incident, D.D.’s mother again unsuccessfully
requested a one-to-one aide for him.

D.D.’s behavioral issues persisted through the second
grade, even with Albert accompanying him on most days.
His mother again sought accommodations, including a one-
to-one aide or placement in a non-public school, which were
denied. A particularly serious episode occurred in October
2017, when D.D. threw a chair and a water bottle, the latter
hitting a classroom aide. The aide took D.D. out of the
classroom so he could calm down, and, while outside, D.D.
“stumbled down a few stairs.” Upon his return to the
classroom, D.D. claimed that the aide had pushed him down
the stairs. The school principal called the police, who
6 D.D. V. LAUSD

interviewed D.D. at school. His parents were not called. The
episode left D.D. emotionally shaken.

After this incident, school staff members routinely
taunted D.D., “telling [him] that if he did not behave, they
would call the police and he would end up either in jail or in
the hospital again.” These threats traumatized D.D. and
caused “lasting emotional harm, making it impossible for
him to attend school altogether.” At the end of November
2017, D.D.’s mother withdrew him from school for several
weeks. In mid-December, he re-enrolled in his original
elementary school, but his circumstances did not improve.
“He commonly left class and walked around the campus for
almost the entire school day unattended.”

In January 2018, D.D. was referred to a non-public
school with a small program and more adult assistance. That
placement initially improved his academic experience, but
he was routinely bullied on the bus and, on three occasions,
he arrived home from school with noticeable bruises on his
face. Two of those episodes involved attacks by other
students; on the third occasion, a staff member slammed
D.D.’s face against a wall when he became aggressive. D.D.
stopped attending school at the end of May “because [his
mother] feared for his safety.” He enrolled in a new non-
public school in September 2018.

Meanwhile, in March 2018, D.D.’s mother had requested
a due process hearing before California’s Office of
Administrative Hearings, Special Education Division,
consistent with the requirements of the IDEA. 2 See
20 U.S.C. § 1415(f). The 43-page “Request for Mediation

2
D.D. was the “petitioner” filing the Request, which was prepared
and submitted by an attorney.
 D.D. V. LAUSD 7

& Due Process Hearing” described in detail the District’s
asserted failures to provide D.D. with the evaluations,
services, and programs necessary to provide him with a
FAPE, despite the goals and assessments specified in his
individualized education program (“IEP”). 3 The Request
noted that, in addition to his behavior issues and ADHD,
D.D. “has need in the areas of communication and fine motor
skills, for which he has received language and speech
(“LAS”) therapy and occupational therapy (“OT”).” The
Request stated that, for the 2015–2016 and 2016–2017
school years, the District had failed, inter alia, to provide
D.D. with a “one-to-one behavior aide or behavior
intervention implementation (“BII”) services.”

The Request also asserted a litany of educational deficits
resulting from the alleged inadequate provision of services.
For example, the document stated that, as of December 2016,
when D.D.’s IEP Team met for its annual review, “[h]e had
not met any of his goals[] in the areas of find[sic] reading,
writing, expressive language, math, and behavioral support.”
As of October 2017, his IEP indicated that he had met his
math and reading goals, but not his goals in writing,
expressive language, occupational therapy, or behavior
support. The Request reported that D.D.’s mother had asked
the IEP Team at that time to consider a one-to-one

3
An IEP is “a comprehensive statement of the educational needs of
a . . . child [with a disability] and the specially designed instruction and
related services to be employed to meet those needs.” Sch. Comm. of
Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 368 (1985) (citing
20 U.S.C. § 1401(19)). The plan is “[c]rafted by a child’s ‘IEP Team’—
a group of school officials, teachers, and parents.” Fry, 137 S. Ct. at 749
(citing 20 U.S.C. § 1414(d)(1)(A)(i)(II)(bb), (d)(1)(B)). A child’s IEP is
intended to ensure that he receives a FAPE. See id. D.D.’s initial IEP
was formulated in March 2015, i.e., before he started kindergarten.
8 D.D. V. LAUSD

behavioral aide or moving D.D. to a non-public school. The
IEP Team declined both options.

The Request identified thirteen “problems” that needed
to be addressed. Problems One through Five listed
deficiencies that allegedly denied D.D. a FAPE from
February or March 2016 through the present (i.e., early
2018), including the failure to provide behavioral, speech
and language, psychological, and social-skills services.
Problems Six through Nine disputed different assessments
of D.D. performed by the District, noted the failure to
reevaluate his occupational therapy needs, and requested
independent evaluations at public expense. Problems Ten
and Eleven asserted that the District had failed to offer D.D.
a FAPE in violation of Section 504 of the Rehabilitation Act,
29 U.S.C. § 794(a), and Problem Twelve stated that the
District “violated Section 504 of the Rehabilitation Act and
the Americans with Disabilities Act when it discriminated
against [D.D.] on the basis of his disability.” Problem
Thirteen asserted a violation of a state civil rights statute (the
“Unruh Civil Rights Act”).

In the Requested Remedies section of the document,
D.D.’s mother sought an order directing the District to
provide eight specified services “as an offer of FAPE,”
including “a full time, one-to-one behaviorally trained aide
by a nonpublic agency,” twelve hours per month of
“behavior intervention development,” and revision of D.D.’s
“behavioral support plan.” 4 She also sought (1) funding or

4
The other relief requested included: (1) “increased speech and
language services to address pragmatic, expressive, and receptive
language”; (2) “a social skills program”; (3) “increased occupational
therapy services”; and (4) “increased psychological counseling
services.”
 D.D. V. LAUSD 9

reimbursement for various assessments and evaluations, 5
(2) compensatory education services, 6 (3) damages for
violations of the Rehabilitation Act, ADA, and Unruh Civil
Rights Act, and (4) “any other remedies deemed appropriate
by the hearing officer assigned to this case.”

D.D. and the District eventually negotiated a settlement
agreement resolving “all educational claims . . . arising
under the IDEA, . . . and all California special education
statutes and regulations.” The six-page agreement expressly
did not “release any claims for damages required to be
asserted in a court of law and which could not have been
asserted in proceedings under the IDEA and/or California
special education statutes and regulations,” including “any
claims that can be made under” the ADA.

In January 2019, D.D. filed this action against the
District, alleging violations of the ADA and the
Rehabilitation Act. A subsequent amended complaint
dropped the Rehabilitation Act claim and sought only
damages for disability discrimination under the ADA. The
District filed a motion to dismiss pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6), and, as noted
above, the district court dismissed the complaint. The court

5
These requests were for: (1) a psychoeducational evaluation, (2) a
speech and language assessment, (3) an occupational therapy
assessment, and (4) a functional behavior assessment.
6
The specified compensatory education services included: (1) a
minimum of 400 hours of “compensatory specialized academic
instruction services,” (2) 80 hours of “compensatory occupational
therapy services,” (3) 80 hours of “compensatory individual speech and
language therapy services,” (4) 72 hours of “compensatory individual
psychological counseling services,” and (5) 80 hours of a “social skills
program.”
10 D.D. V. LAUSD

accepted the District’s argument that D.D.’s federal action
“mirrors the . . . due process complaint and does, at the end
of the day, seek FAPE relief.” Accordingly, the court held
that the ADA claim must be exhausted through the
administrative process and that, because D.D. had not done
so, his complaint must be dismissed without prejudice.

II. ANALYSIS

A. Standard of Review

The district court granted the District’s motion to dismiss
without expressly identifying the complaint’s deficiency as
lack of subject-matter jurisdiction, see Fed. R. Civ. P.
12(b)(1), or failure to state a claim, see Fed. R. Civ. P.
12(b)(6). This court has advised that a challenge to a
complaint based on administrative exhaustion, which is an
affirmative defense, ordinarily should be addressed through
a motion for summary judgment rather than through a
motion to dismiss under Rule 12(b). See Albino v. Baca,
747 F.3d 1162, 1168, 1171 (9th Cir. 2014) (en banc). 7 We
need not dwell on the procedural context, however, because
the issue of exhaustion in this case is one of law; the parties
dispute the significance of the alleged facts, not the facts
themselves. Hence, our review would be de novo regardless
of the motion filed. See id. at 1171 (“On appeal, we will
review the judge’s legal rulings on exhaustion de novo[.]”);
N. Cty. Cmty. All., Inc. v. Salazar, 573 F.3d 738, 741 (9th
Cir. 2009) (“We review de novo questions of law raised in
dismissals under Rules 12(b)(1) and 12(b)(6).”).

7
Before Albino, this court had endorsed using an unenumerated
Rule 12(b) motion to seek dismissal of a complaint for failure to exhaust
administrative remedies. See Albino, 747 F.3d at 1171.
 D.D. V. LAUSD 11

In reviewing Rule 12(b) dismissals, we accept as true the
complaint’s factual allegations, and we construe those
allegations in the light most favorable to the plaintiff. See N.
Cty. Cmty. All., 573 F.3d at 741–42; see also Albino,
747 F.3d at 1173 (stating that, in reviewing a summary
judgment on exhaustion, “we must view all of the facts in
the light most favorable to the non-moving party”).

B. Federal Law and School-Based Claims of Disability
Discrimination

Three different federal statutes may come into play when
a child with disabilities and his family assert education-
based claims of unlawful treatment: the IDEA, 20 U.S.C.
§§ 1400–51; Section 504 of the Rehabilitation Act,
29 U.S.C. § 794 (“§ 504”); and Title II of the ADA,
42 U.S.C. §§ 12131–34. See Fry, 137 S. Ct. at 749–50
(describing the three statutes); McIntyre v. Eugene Sch. Dist.
4J, 976 F.3d 902, 909–910 (9th Cir. 2020) (same); A.G. v.
Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195,
1202 (9th Cir. 2016) (same). 8

8
A federal remedy for school-based disability discrimination also
may be available via 42 U.S.C. § 1983, which protects every “citizen of
the United States or other person within [its] jurisdiction” against
deprivations of federally secured rights effected by persons acting under
the color of state law. See, e.g., Fry, 137 S. Ct. at 750 (noting a § 1983
claim brought under the Equal Protection Clause of the Fourteenth
Amendment for the denial of a FAPE); Payne v. Peninsula Sch. Dist.,
653 F.3d 863, 883 (9th Cir. 2011) (en banc) (describing plaintiff’s § 1983
claims alleging violations of the Fourth, Eighth, and Fourteenth
Amendments), overruled on other grounds by Albino, 747 F.3d at 1171;
Doucette v. Georgetown Pub. Sch., 936 F.3d 16, 28–29 (1st Cir. 2019)
(describing a § 1983 claim alleging a constitutional due process
violation).
12 D.D. V. LAUSD

The IDEA is focused exclusively on special education
and “ensure[s] that all children with disabilities have
available to them a free appropriate public education,”
20 U.S.C. § 1400(d)(1)(A)—a FAPE—that encompasses
“both ‘instruction’ tailored to meet a child’s ‘unique needs’
and sufficient ‘supportive services’ to permit the child to
benefit from that instruction.” Fry, 137 S. Ct. at 748–49
(quoting 20 U.S.C. § 1401(9), (26), (29)). The IEP is the
“primary vehicle” for providing a FAPE, id. at 749 (quoting
Honig v. Doe, 484 U.S. 305, 311 (1988)), and “[t]he IDEA
provides an administrative process for parents to challenge
their child’s IEP or its implementation,” Doucette, 936 F.3d
at 22.

Both § 504 and the ADA sweep more broadly than the
IDEA, covering claims of discrimination brought by “both
adults and children with disabilities, in both public schools
and other settings.” Fry, 137 S. Ct. at 749. Section 504
guarantees nondiscriminatory access to federally funded
activities and programs, 29 U.S.C. § 794, and it requires
public entities to make “reasonable modifications” to their
practices to “accommodate” individuals with disabilities.
See Alexander v. Choate, 469 U.S. 287, 300 (1985). The
ADA is even more comprehensive, guaranteeing non-
discriminatory access not only to “the services, programs, or
activities” of any “public entity,” 42 U.S.C. § 12132, but
also to commercial facilities and places of public
accommodation, id. §§ 12181–84.

Thus, while all three statutes require public schools “to
provide each child with meaningful access to education,”
Fry, 137 S. Ct. at 755 (referring to the IDEA); see K.M. v.
Tustin Unified Sch. Dist., 725 F.3d 1088, 1102 (9th Cir.
2013) (referring to the ADA), “meaningful access” for
purposes of these provisions is not always the same. Under
 D.D. V. LAUSD 13

the IDEA—focused on the schooling itself—a child must be
given the individualized learning tools and services that he
needs to advance his academic skills, i.e., the capability to
“access” learning within his classroom. See Fry, 137 S. Ct.
at 748–49; see also McIntyre, 976 F.3d at 914 (emphasizing
that “specially designed instruction” is the IDEA’s core tool
for providing a FAPE (quoting 20 U.S.C. § 1401(29))).
Under the ADA and § 504, children with disabilities also
must be given reasonable accommodations so they can
“access” the school program at all—i.e., to ensure they are
not excluded from school or the classroom and, as a result,
denied the opportunity to obtain the individualized attention
necessary to receive an appropriate public education.

Significantly for this case, the IDEA has an exhaustion
requirement. If it applies, a parent may not sue a school
district under the IDEA unless she has first exhausted the
administrative remedies provided by the statute. See
20 U.S.C. § 1415(i), (l). Although the ADA and § 504 do
not themselves have exhaustion provisions, the IDEA’s
exhaustion requirement is pertinent to those statutes as well.
It provides:

Nothing in [the IDEA] 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 [the
IDEA], the [IDEA’s administrative
procedures] shall be exhausted to the same
14 D.D. V. LAUSD

extent as would be required had the action
been brought under [the IDEA].

Id. § 1415(l) (emphasis added). This provision has led to
disputes over whether the relief a child seeks in a civil action
is “also available under [the IDEA]”—requiring exhaustion
before the claim may proceed in court—and whether the
exhaustion requirement, when applicable, has been met.
See, e.g., Paul G. v. Monterey Peninsula Unified Sch. Dist.,
933 F.3d 1096, 1100 (9th Cir. 2019); Payne, 653 F.3d at 865;
Doucette, 936 F.3d at 18–19.

Addressing the scope of the IDEA’s exhaustion
provision for the first time in Fry, the Supreme Court
concluded that it applies only when a plaintiff is seeking
“relief for the denial of a FAPE,” 137 S. Ct. at 752—i.e.,
when a complaint challenges the adequacy of a child’s
educational program, see id. at 755 (noting that the IDEA
concerns “schooling”); id. at 754 (“The IDEA’s
administrative procedures . . . center on the Act’s FAPE
requirement.”). The Court recognized that “[a] school’s
conduct toward . . . a child [with a disability] . . . might
injure her in ways unrelated to a FAPE,” id. at 754, and it
explained that a complaint seeking redress for such harms
would not be subject to IDEA exhaustion “because . . . the
only ‘relief’ the IDEA makes ‘available’ is relief for the
denial of a FAPE,” id. at 754–55. As this court noted,
presaging Fry, Ҥ 1415 makes it clear that Congress
understood that parents and students affected by the IDEA
would likely have issues with schools and school personnel
that could be addressed—and perhaps could only be
addressed—through a suit under § 1983 or other federal
 D.D. V. LAUSD 15

laws.” Payne, 653 F.3d at 872 9; see also McIntyre, 976 F.3d
at 915 (“Exhaustion should not be required merely because
the plaintiff’s complaint ‘has some articulable connection to
the education of a child with a disability’ or else ‘falls within
the general “field” of educating disabled students.’” (quoting
Fry, 137 S. Ct. at 752 n.3, 753)).

Determining whether IDEA exhaustion is necessary,
then, requires distinguishing between “when a plaintiff
‘seeks’ relief for the denial of a FAPE and when she does
not.” Fry, 137 S. Ct. at 755. To discern the difference, Fry
instructs courts to carefully examine the allegations in a
complaint, and the inquiry must turn on “substance,” not
labels. Id. The presence or absence of “the precise words[]
‘FAPE’ or ‘IEP’” will not be dispositive; rather, § 1415(l)
“requires exhaustion when the gravamen of a complaint
seeks redress for a school’s failure to provide a FAPE, even
if not phrased or framed in precisely that way.” Id.; see also

9
In its decision issued nearly six years before Fry, this court, sitting
en banc, held in Payne that “[n]on-IDEA claims that do not seek relief
available under the IDEA are not subject to the exhaustion requirement,
even if they allege injuries that could conceivably have been redressed
by the IDEA.” 653 F.3d at 871. The court explained that it thus
“overrule[d] our previous cases to the extent they state otherwise,” and
it “conclude[d] that . . . [the district court] should not have dismissed [the
plaintiff’s] non-IDEA claims on exhaustion grounds.” Id. The en banc
court remanded the case to the district court for application of “the new
standards announced in this decision,” and it directed the district court to
“permit [the plaintiff] to amend her complaint in order to flesh out her
specific claims and enable the court to determine which claims require
IDEA exhaustion and which do not.” Id. at 881. Here, by contrast, D.D.
had the benefit of both Payne and Fry in crafting his complaint, and
neither he nor the district court needs an opportunity to revisit the claims
in light of new law. Hence, contrary to the dissent’s assertion, our
analysis is supported by, and consistent with, Payne. See infra Section
II.C.
16 D.D. V. LAUSD

McIntyre, 976 F.3d at 913 (noting that “the inquiry does not
turn on whether a complaint includes (or omits) any magic
phrase, such as FAPE or IEP”). At the same time, however,
courts must see beyond the school setting to determine if the
plaintiff is claiming a violation of the equal access
requirements of the ADA or § 504 rather than challenging
the adequacy of special education services. See, e.g.,
McIntyre, 976 F.3d at 916 (noting that a plaintiff is “not
required to exhaust her claims under § 1415(l) merely
because [the] events [at issue] occurred in an educational
setting"); Payne, 653 F.3d at 875 (indicating that courts
should not “treat[] § 1415(l) as a quasi-preemption
provision, requiring administrative exhaustion for any case
that falls within the general ‘field’ of educating disabled
students”). 10

The Supreme Court recognized that, given the overlap
among the statutes governing the education of children with
disabilities, it may be difficult at times to distinguish
between FAPE-based and non-FAPE-based claims. Indeed,
the Court in Fry gave an example that highlights that
challenge. A school building’s lack of ramps to provide
access for individuals who use wheelchairs could be the
premise of a claim of unlawful discrimination under § 504
or the ADA—i.e., a claim unrelated to the quality of the
education provided within the building. See Fry, 137 S. Ct.
at 756. But a child who uses a wheelchair might also fashion
an IDEA claim premised on the absence of a ramp at his

10
As a reflection of the complexity of the relationship among the
IDEA, the ADA, and § 504 of the Rehabilitation Act, the denial of a
FAPE may itself serve as the basis for an ADA or § 504 claim—although
such claims unquestionably would be subject to exhaustion under
§ 1415(l). See Fry, 137 S. Ct. at 754 (observing that a plaintiff who
brings suit for the denial of an appropriate education under the ADA or
§ 504 would need to exhaust the IDEA’s administrative procedures).
 D.D. V. LAUSD 17

school because, “[a]fter all, if the child cannot get inside the
school, he cannot receive instruction there.” Id. 11 In other
words, the same remedy may be sought for two different
purposes: one, to address a child’s exclusion from school—
his access to any education—and, two, to address that child’s
ability to benefit from instruction so that he may obtain an
“appropriate” education. 12

Hence, in determining the need for exhaustion, the
question is not “whether the suit ‘could have sought’ relief
available under the IDEA,” but “whether a plaintiff’s
complaint—the principal instrument by which she describes
her case—seeks relief for the denial of an appropriate
education.” Id. at 755. The Court emphasized that
“§ 1415(l) treats the plaintiff as ‘the master of the claim’:
She identifies its remedial basis—and is subject to
exhaustion or not based on that choice.” Id. (quoting
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 & n.7
(1987)). Accordingly, as some courts have put it, even when
allegations based on the conduct of school officials “touch
on the denial of a FAPE”—to be expected when claims arise
in the school setting—the question remains whether the
gravamen of the complaint concerns discrimination outside

11
In Fry itself, the plaintiff alleged, inter alia, that school officials
violated the ADA and § 504 by refusing to allow her trained service dog
to accompany her in the classroom, thereby denying her equal access to
the school and causing harm that included emotional distress and pain.
See 137 S. Ct. at 751–52; see also Doucette, 936 F.3d at 20–21 (also
involving a school’s refusal to allow a child to bring a service dog into
the classroom).
12
The dissent goes astray in failing to acknowledge that D.D.’s
asserted need for a one-to-one aide may properly be the basis for his
claims under both the IDEA and the ADA. As explained in Section II.C,
the remedies sought here are not premised on the denial of a FAPE.
18 D.D. V. LAUSD

the IDEA’s scope. Piotrowski ex rel. J.P. v. Rocky Point
Union Free Sch. Dist., 462 F. Supp. 3d 270, 284 (E.D.N.Y.
2020); see Lawton v. Success Acad. Charter Sch., Inc.,
323 F. Supp. 3d 353, 362 (E.D.N.Y. 2018) (similar
language); see also J.S., III by and through J.S. Jr. v.
Houston Cty. Bd. of Educ., 877 F.3d 979, 986 (11th Cir.
2017) (per curiam) (noting that a student’s claim of isolation
“cannot [be] easily divorce[d]” from the school setting, but
finding the claim distinct from an IDEA claim and not
subject to exhaustion); Payne, 653 F.3d at 880 (noting that,
even if the “unconstitutional beating” of a schoolchild would
have consequences for his FAPE, “the resulting excessive
force claim” would not necessarily require IDEA
exhaustion).

Any exhaustion analysis must thus begin with a close
examination of the plaintiff’s complaint to determine
whether its allegations “concern[] the denial of access to
public facilities” or “the denial of a FAPE.” Paul G.,
933 F.3d at 1100. Aware that the facts underlying each of
those claims will at times overlap, the Supreme Court in Fry
offered two clues that may assist a court’s inquiry and
indicate whether the gravamen of the complaint concerns the
denial of a FAPE or disability-based discrimination. See
Fry, 137 S. Ct. at 756–57.

The first clue comes from the answers to “a pair of
hypothetical questions,” specifically, whether a child could
bring the same claim outside the school context and whether
an adult could “have pressed essentially the same grievance”
within the school setting. Id. at 756. If the answer to both
questions is “no,” the claim probably concerns a FAPE; if
the answer is “yes,” the gravamen of the complaint is
unlikely to implicate the IDEA’s concern for “appropriate
education.” Id. The second clue is the history of the
 D.D. V. LAUSD 19

plaintiff’s pursuit of relief. See id. at 757. If a parent initially
invokes the IDEA’s administrative procedures, that “may
suggest that she is indeed seeking relief for the denial of a
FAPE.” Id. But the Supreme Court also recognized that “the
move to a courtroom [may have come] from a late-acquired
awareness that the school had fulfilled its FAPE obligation
and that the grievance involves something else entirely.” Id.

C. Assessing the Complaint and the Fry Clues

The inquiry prescribed by Fry thus requires us to
ascertain whether the district court correctly concluded that
the gravamen of D.D.’s complaint “charges, and seeks relief
for, the denial of a FAPE.” Id. at 758. Put differently, we
must answer this question: Is the “essence [of D.D.’s claim]
equality of access to public facilities, [or] adequacy of
special education”? Id. at 756. We begin our analysis with
the complaint and then consider the Fry clues.

1. Examining the Complaint

D.D.’s amended complaint alleges only a violation of the
ADA, but, as we have explained, the express labeling of his
claim tells us little. However, importantly, the complaint
summarizes his discrimination claim in language that
reflects the broader access requirements of the ADA and the
obligation to give individuals who have disabilities equal
opportunity to participate in public programs. The
complaint alleges that the District violated Title II “by
failing to provide D.D. with . . . reasonable
accommodations, auxiliary aids and services that he needed
in order to enjoy equal access to the benefits of a public
education, and to otherwise not exclude D.D. from its
educational program.” A similar description of the claim
appears in the complaint’s Introduction, with its assertion
that D.D. sought reasonable accommodations from the
20 D.D. V. LAUSD

District “so that he could have equal access to his public
education, and the programs and services offered by [the
District] to the same extent as his peers without disabilities.”

The more specific factual allegations further indicate that
the thrust of D.D.’s complaint is his loss of educational
opportunity because he was banished from his classrooms,
rather than deficiencies in his individualized educational
program. The complaint’s Introduction notes that the
District addressed D.D.’s “educational needs” by offering
occupational, language, and speech therapy, “but [it] never
addressed D.D.’s significant behavior needs” that repeatedly
resulted in his exclusion from school. Instead, the complaint
alleges, the “District discriminated against D.D. on the basis
of his disability by removing him from his classroom;
sending him home early on multiple occasions, and requiring
a parent to attend school with D.D. to serve as his one-to-one
aide instead of providing one.” D.D. alleges that “[t]his
pattern of discrimination” occurred at each of his elementary
schools and that he was “subjected to taunting by District
staff” and “received injuries caused by other students and a
. . . staff member” at one of the schools. The complaint goes
on to detail the circumstances D.D. faced in each of the three
academic years at issue: 2015–16, 2016–17, and 2017–18.

For the first two years, the complaint alleges, the
District’s schools “exclud[ed] him from participation in all
school activities” by regularly demanding that his mother
pick him up early—sometimes shortly after the school day
began. Early in both academic years, the schools declined
to provide a one-to-one aide to “enable [D.D.] to participate
with his peers,” and instead issued the ultimatum that the
family either provide an aide or remove D.D. from school.
For the next school year, 2017–18, the complaint states that
D.D. was able “to access his education to the same extent as
 D.D. V. LAUSD 21

students without disabilities” only because of Albert’s
presence, and it recounts the incident in which D.D. claimed
he was pushed down the stairs, followed by the taunting and
threats from school staff members. The complaint reports
another request by D.D.’s mother, rejected by the District,
for “reasonable accommodations for her son’s disability-
related behavior, including a one-to-one aide or [non-public
school] placement to enable D.D. to have equal access [to]
his education to the same extent as his peers without
disabilities.”

After describing the additional difficulties D.D. faced
during the 2017–18 school year—including being left to
walk around school grounds “for almost the entire school
day unattended,” and being bullied on the bus to and from
school—the complaint summed up his treatment as follows:

Rather than offering meaningful and
appropriate behavior accommodations and
allowing D.D. to attend school for the same
amount of time as typical peers, [the] District
discriminated against D.D. on the basis of his
disability by excluding him from school,
refusing to offer an aide, only allowing him
to stay in school if his Parent served as an
aide, and by enabling him to be subjected to
an unsafe school environment.

As a result of this discrimination, the complaint alleges,
“D.D. suffered injury, including, but not limited to, denial of
equal access to the benefits of a public education,” “as well
as humiliation, hardship, anxiety, depression and loss of self-
esteem.”

Notably absent from the complaint are references to the
allegedly inadequate educational programs and IEP-related
22 D.D. V. LAUSD

services that were addressed in the Request for Mediation
and Due Process Hearing—i.e., the asserted failures to
provide D.D. with a suitable IEP and, concomitantly, the
failure to provide him with the FAPE mandated by the
IDEA. See supra Section I. 13 Stated simply, the complaint
repeatedly highlights D.D.’s exclusion from the classroom,
not the inadequacy of his experience in the classroom. It
further alleges multiple instances of verbal and physical
abuse in school and on the school bus, conduct unrelated to
D.D.’s education.

The complaint thus manifestly supports a conclusion that
D.D.’s lawsuit does not implicate the educational program
of the IEP and, hence, that his ADA discrimination claim
does not require exhaustion pursuant to § 1415(l). We
nonetheless consider the Fry clues to see if they shed a
different light on our inquiry.

2. The Fry Clues

The hypothetical questions posed by Fry as the first
possible clue in ascertaining the gravamen of a school-based
disability-discrimination complaint—whether the plaintiff
could bring the same claim outside the school setting and
whether an adult or school visitor could bring the same claim

13
The only reference to D.D.’s educational needs appears by way
of background in the Introduction, which explains that, “[p]ursuant to
the ADA, he is considered to have a disability that interferes with his
ability to learn,” and that “his educational needs have been explicit and
include support for ADHD, communication and fine motor skills.” As
described above, the complaint goes on to state that the District offered
services “to address those needs,” but did not address his “significant
behavior needs” and instead “discriminated against D.D. on the basis of
his disability” by excluding him from school unless one parent
accompanied him.
 D.D. V. LAUSD 23

within the school setting—have less obvious answers here
than for the wheelchair ramp (the Supreme Court’s first
example to illustrate how the clue works) or for the service
dog at issue in Fry. A child’s need for a ramp or a service
dog for equal access to a public program or service plainly
could exist in contexts beyond education and a school
building—for example, at a municipal library or theater, as
the Supreme Court posited in Fry. See 137 S. Ct. at 756.
Similarly, it is apparent that a school employee or an adult
visitor to a public school could present the same claim as a
student that the lack of a ramp or refusal to allow a service
dog violates the ADA. See id.

It is more difficult to picture a child claiming that a
public library or municipal theater should have provided him
with the accommodation D.D.’s mother repeatedly
requested of the District—a one-to-one behavioral aide—so
the child could participate in the library’s story time or attend
a theatrical performance. A school visitor asking the District
to provide a personal aide seems even more incongruous. To
use the Court’s access-ramp example in such a limited way,
however, mistakes the point of the comparison the Court was
suggesting. The hypothetical questions are not meant to
shed light on whether the plaintiff was entitled to the specific
accommodation he claims he was unlawfully denied—a
ramp, a service dog, or a one-to-one aide—but, rather, to
serve as a tool in determining whether the “essence [of his
claim] is equality of access to public facilities [or] adequacy
of special education.” Id. That is, the question in the
exhaustion inquiry involving an ADA claim is the nature of
the harm of which the child complains: is it access-based or
education-based? The specific remedy requested may be a
useful clue in answering that question, but Fry also
contemplates that it may not be. See id. at 756–57 (noting
24 D.D. V. LAUSD

that the hypothetical questions “can” provide a clue to the
complaint’s gravamen or “suggest” its essence).

Hence, we must not be misled in assessing the
allegations in this case by the comparative ease of
transplanting the lack of a ramp and the refusal to allow a
service dog to non-school contexts. D.D.’s complaint
similarly seeks a remedy for harms stemming from his
exclusion from a public program—specifically, a public
education. His disability-caused behavioral issues
repeatedly resulted in his removal from school or his
classroom, and D.D.’s mother identified a personal aide as
one accommodation she believed reasonable and necessary
for her son to obtain the same access to an education as his
peers. In other words, she claims that a one-to-one aide
would have assisted her son in managing his disruptive
behaviors, enabling him to remain in school and in his
classroom so that he had the opportunity to learn—akin to
the access provided by the ramp and the service dog in the
Fry scenarios. 14 The key similarity, however, is not between
the ramp and the dog and the personal aide. It is the
equivalent allegations of exclusion stemming from the
school’s failure to provide some accommodation to ensure
equality of access to a public education.

14
To be clear, D.D.’s lawsuit does not seek as a remedy a one-to-
one aide or any other prospective accommodation. He requests only
damages for injuries allegedly caused by the District’s past failure to
provide him with reasonable accommodations in violation of the ADA.
Although the allegations in the complaint suggest that the District
recognized that D.D. needed a one-to-one aide to access his education—
i.e., by demanding that his parents provide one—the merits question of
whether the District’s failure to provide such an aide violated the ADA
is not before us in this appeal.
 D.D. V. LAUSD 25

Indeed, the Court in Fry observed that the context of a
disability discrimination lawsuit—for example, whether the
defendant is a school or a theater—may be pertinent in
assessing the reasonableness of challenged conduct. Id.
at 756 n.9. Our inquiry, therefore, does not turn on whether
D.D. could bring the identical action against a different type
of public facility; rather, “the plausibility of bringing other
variants of the suit” can “indicate[] that the gravamen of the
plaintiff’s complaint does not concern the appropriateness of
an educational program.” Id. (emphasis added). We have
no difficulty concluding that D.D. could bring a “variant of
[his] suit” if he were refused entry to a public library or a
municipal theater based on the behavioral symptoms of his
disability. See, e.g., Lawton, 323 F. Supp. 3d at 362 (noting
that “disabled children [with behavioral issues] would have
a claim against a public library” where, inter alia, the library
“used strict disciplinary rules to remove them on a daily
basis”). Likewise, “even an adult plaintiff may be entitled
to receive assistance from others [within a school context] if
such an accommodation is ‘reasonable.’” McIntyre,
976 F.3d at 916.

Moreover, the second example in Fry, which the Court
offered as a counterpoint to the access-ramp example,
unmistakably indicates that the “substance” of D.D.’s claim
is not the denial of an appropriate education. Fry, 137 S. Ct.
at 757 n.10. In this latter example, the Court described an
ADA suit alleging a failure to provide remedial tutoring in
mathematics in which the plaintiff made “no reference at all
to a FAPE or an IEP.” Id. at 757. Yet, the Court asked,
“[C]an anyone imagine the student making the same claim
against a public theater or library? Or, similarly, imagine an
adult visitor or employee suing the school to obtain a math
tutorial?” Id. The Court observed that the difficulty of
visualizing the complaint in “those other contexts suggests
26 D.D. V. LAUSD

that its essence—even though not its wording—is the
provision of a FAPE.” Id.

As noted above, D.D.’s complaint contains no
allegations asserting that the District provided inadequate
programs or services to address deficiencies in his academic
progress or performance. Nor does he seek a remedy
premised on his failure to reach the goals set forth in his IEP.
And, as we have explained, the mere fact that certain conduct
that allegedly violated the ADA—the refusal to provide a
one-to-one aide—also could be challenged under the IDEA
does not mean that D.D.’s access-based claim is a FAPE
claim in disguise. To be sure, a personal aide who helps a
child control his behavior, allowing the child to remain
within a school building or classroom, could also be a
necessary component of a FAPE, enabling the child to
benefit from any instruction provided to him. But the
plaintiff, as “the ‘master of the claim,’” id. at 755 (quoting
Caterpillar Inc., 482 U.S. at 392 & n.7), may, without
exhaustion, seek damages in court under the ADA based on
conduct that also could be challenged for a different reason
under the IDEA. See id. at 756 (“The same conduct might
violate all three statutes[.]”); see also Doucette, 936 F.3d at
27 (“A child who requires an accommodation under an IEP
because, without it, his education would be inadequate,
might also require that accommodation to safely access a
public space.”); Payne, 653 F.3d at 880 (noting that, even
when certain conduct “might interfere with a student
enjoying the fruits of a FAPE, the resulting . . . claim is not,
for that reason alone, a claim that must be brought under the
IDEA”).

Because the factual allegations in D.D.’s complaint
address his exclusion from the classroom and the entire
school program, and not his learning needs as set forth in his
 D.D. V. LAUSD 27

IEP, his claim is a far cry from one involving “remedial
tutoring in mathematics.” Fry, 137 S. Ct. at 757; see also id.
at 758 (“The complaint . . . does not accuse the school even
in general terms of refusing to provide the educational
instruction and services that [the plaintiff] needs.”). Thus,
particularly when taken together, the two examples used by
the Supreme Court (the access ramp and math tutoring) to
illustrate the possible usefulness of its first clue on the
exhaustion question reinforce our conclusion, based on the
complaint’s allegations, that D.D.’s civil action presents an
independent ADA claim and is not—contrary to the
District’s contention—an artfully pled FAPE-based claim.

However, the possibility remains that the second Fry
clue—the history of the proceedings—“might suggest
something different.” Id. at 758. Indeed, D.D.’s
administrative Request sought remedies for the same harms
alleged in his complaint (and more), including a request for
damages based on a violation of the ADA. See supra Section
I. In Fry, the Supreme Court observed that “prior pursuit of
the IDEA’s administrative remedies will often provide
strong evidence that the substance of a plaintiff’s claim
concerns the denial of a FAPE, even if the complaint never
explicitly uses that term.” Id. at 757.

Nonetheless, as this court previously has emphasized,
the IDEA’s exhaustion requirement “is not intended to
temporarily shield school officials from all liability for
conduct that violates constitutional and statutory rights that
exist independent of the IDEA and entitles a plaintiff to relief
different from what is available under the IDEA.” Payne,
653 F.3d at 876. Here, the use of litigation, and the repetition
in D.D.’s complaint of allegations and relief initially
requested in the administrative proceedings, cannot be
attributed to “strategic calculations about how to maximize
28 D.D. V. LAUSD

the prospects” of obtaining remedies for violations of the
IDEA that D.D. failed to exhaust through the administrative
process. Fry, 137 S. Ct. at 757. That is so for two reasons.

First, as we have repeatedly noted, D.D. is entitled to
invoke the same requested accommodation for different
purposes under the IDEA and the ADA. As described above,
the allegations in the complaint and the Fry clues
unequivocally demonstrate a non-FAPE basis for the
damages D.D. seeks pursuant to the ADA. The fact that he
also sought a one-to-one aide as a component of his IEP does
not derail that independent claim. Moreover, D.D.’s
settlement agreement with the District expressly preserved
“any claims that can be made under” the ADA.

Second, the comprehensiveness of the administrative
Request, expressly invoking the statutes that provide relief
for disability discrimination, belies any inference that D.D.
attempted to change strategies midstream. Rather, it appears
that D.D. was simply giving the District notice of all
anticipated bases for relief for his complaints of
mistreatment—whether available through the IDEA
administrative process or not. That is, D.D.’s mother, on her
son’s behalf, did not initially present solely an IDEA claim
in the administrative proceedings and then “switch[]
midstream” to litigation pursuant to the ADA. Id. She
transparently set forth all of his claims and, after resolving
the issues concerning D.D.’s right to a FAPE, turned to the
anticipated litigation under the ADA in pursuit of a
remedy—one that is not “also available under [the IDEA],”
20 U.S.C. § 1415(l)—for the harms unrelated to his
educational services.

There is nothing untoward—or inconsistent with Fry—
in D.D.’s having followed resolution of his IDEA claims
with a lawsuit alleging non-FAPE-based violations of
 D.D. V. LAUSD 29

another statute. In recognizing that a school’s conduct
toward a child with a disability “might injure her in ways
unrelated to a FAPE, which are addressed in statutes other
than the IDEA,” 137 S. Ct. at 754, Fry contemplates such a
strategy. See id.; see also, e.g., Payne, 653 F.3d at 879 (“It
is hardly a[] nullification of the congressionally mandated
exhaustion requirement to say that a complaint that presents
sound claims wholly apart from the IDEA need not comport
with the IDEA’s requirements.” (citation omitted) (internal
quotation marks omitted)); Doucette, 936 F.3d at 26–28
(noting that parents’ invocation of multiple laws to obtain
relief for their son is “not surprising” given that a student
may need the same accommodation under an IEP and for
safe access to a public space). To conclude otherwise would
effectively bar plaintiffs from bringing a school-based
disability-discrimination lawsuit simply because they also
have pursued relief under the IDEA—a view emphatically
rejected by this circuit, see Payne, 653 F.3d at 876, and
inescapably at odds with Fry.

Of course, as explained above, see supra note 10, a
lawsuit that claims an ADA violation based on an IDEA
violation cannot be brought without first exhausting the
IDEA’s administrative procedures. See Fry, 137 S. Ct. at
754 (noting that, if “a lawsuit seeks relief for the denial of a
free appropriate public education[,] . . . the plaintiff cannot
escape § 1415(l) merely by bringing her suit under a statute
other than the IDEA”). This court properly dismissed such
a lawsuit for lack of exhaustion in Paul G. v. Monterey
Peninsula Unified School District, where the parents of an
autistic child sought damages for the district’s failure to
provide the child a school placement they claimed was
necessary for him to receive a FAPE. See 933 F.3d at 1098;
see also Payne, 653 F.3d at 875 (recognizing the need to
exhaust FAPE-based claims); S.B. by and through Kristina
30 D.D. V. LAUSD

B. v. Cal. Dep’t of Educ., 327 F. Supp. 3d 1218, 1247 (E.D.
Cal. 2018) (finding that exhaustion was required where
“[p]laintiffs’ [Rehabilitation Act] and ADA claims appear
predicated on the denial of [a] FAPE”). Here, however, as
our assessment of the complaint’s allegations and the Fry
clues makes clear, we have a claim seeking to enforce the
ADA’s “promise [of] non-discriminatory access to public
institutions” rather than the IDEA’s “guarantee[ of]
individually tailored educational services.” Fry, 137 S. Ct.
at 756; cf. Paul G., 933 F.3d at 1101 (observing that the relief
sought was “fundamentally educational”: “access to a
particular kind of school as required by his IEP”). 15

In sum, because D.D. has alleged a cognizable claim
under the ADA, “irrespective of the IDEA’s FAPE
obligation,” Fry, 137 S. Ct. at 756, the district court erred in
dismissing his complaint. See, e.g., J.S., III by and through
J.S. Jr., 877 F.3d at 986 (concluding that a plaintiff’s claim
of discriminatory exclusion from his regular classroom
“could be brought as a FAPE violation for failure to follow
[his] IEP, . . . [but] it is also cognizable as a separate claim
for intentional discrimination under the ADA and § 504”). 16

15
We note that the Supreme Court in Fry expressly declined to
decide whether exhaustion is required when a plaintiff seeks solely
money damages for emotional distress resulting from the denial of a
FAPE—a remedy unavailable under the IDEA. See 137 S. Ct. at 752
n.4; id. at 754 n.8. This court has indicated that such a claim must be
exhausted. See Payne, 653 F.3d at 875 (observing that “exhaustion is
required in cases where a plaintiff is seeking to enforce rights that arise
as a result of a denial of a [FAPE], whether pled as an IDEA claim or
any other claim that relies on the denial of a FAPE to provide the basis
for the cause of action”).
16
In criticizing the majority’s application of Ninth Circuit
precedents, our dissenting colleague overlooks this distinction between
a student’s pursuit of an appropriate education and claims of
 D.D. V. LAUSD 31

We therefore VACATE the dismissal of the complaint and
REMAND the case to the district court for further
proceedings consistent with this opinion.

So ordered. The parties shall bear their own costs on
appeal.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent. I agree with the majority that the
Supreme Court decision in Fry v. Napoleon Cmty. Sch.,
137 S. Ct. 743 (2017), informs our analysis. However, I part
company with the majority’s application of Fry to the facts
of this case.

As the majority set forth, the Supreme Court has
instructed courts to carefully examine the allegations in the
complaint to distinguish between “when a plaintiff seeks
relief for the denial of a [Free Appropriate Education]
(administrative exhaustion required) and when she does not
(administrative exhaustion not required).” Id. at 755

discriminatory treatment in the school context. In Paul G. and S.B. by
and through Kristina B., the students were seeking specific instructional
environments through their ADA and § 504 claims and, hence,
administrative exhaustion was required. See Paul G., 933 F.3d at 1101
(addressing plaintiff’s claim for “access to a particular kind of school”);
S.B. by and through Kristina B., 327 F. Supp. 3d at 1252–53 (similarly
addressing claims concerning the plaintiff’s educational placement). In
McIntyre, the panel concluded that exhaustion was not required because
the student’s claims focused on her discriminatory mistreatment and not
her educational program. See 976 F.3d at 914. As in McIntyre, “the
‘crux’ of [D.D.]’s complaint seeks relief for the denial of equal access to
a public institution,” not relief for the denial of appropriate
individualized instruction. Id. at 916.
32 D.D. V. LAUSD

(internal quotation marks omitted) (parentheticals added).
Our focus is on the “remedial basis” of the complaint and the
plaintiff “is subject to exhaustion or not based on that
choice.” Id. (citation omitted).

The Supreme Court offered two hypothetical questions
to aid in making the requisite distinction between a request
for a Free Appropriate Public Education [FAPE] and a
request for non-FAPE relief.

The first hypothetical question asks whether the plaintiff
could “have brought essentially the same claim if the alleged
conduct had occurred at a public facility that was not a
school,” such as a public theater or library. Id. at 756
(emphasis in the original). The second question inquires
whether “an adult at the school,” such as an employee of the
school or visitor to the school, could “have pressed
essentially the same grievance.” Id. (emphasis in the
original). If the answer to the questions is yes, “a complaint
that does not expressly allege the denial of a FAPE is also
unlikely to be truly about that subject.” Id. On the other
hand, if the answer to the questions is no, “the complaint
probably does concern a FAPE, even if it does not explicitly
say so; for the FAPE requirement is all that explains why
only a child in the school setting (not an adult in that setting
or a child in some other) has a viable claim.” Id.

The Supreme Court then offered two contrasting
examples. The first example described a wheelchair-bound
child who brought an action against his school for
discrimination due to the lack of access ramps. The Supreme
Court initially recognized that the missing “architectural
feature” could have educational consequences and might
have been couched as a violation under the Individuals with
Disabilities Education Act (IDEA). After all, the Supreme
Court posited, “if the child cannot get inside the school, he
 D.D. V. LAUSD 33

cannot receive instruction there; and if he must be carried
inside, he may not achieve the sense of independence
conducive to academic (or later to real-world) success.” Id.
But because this child could bring the same complaint
against a library or other public building and an employee or
visitor could bring “a mostly identical complaint against the
school,” the Supreme Court concluded that the “essence” of
the complaint in those circumstances is “equality of access
to public facilities, not adequacy of special education.” Id.
(citation omitted).

By way of comparison, the Supreme Court described a
student with a learning disability who sued his school for
failing to provide remedial tutoring in math. The Supreme
Court observed that the action “might be cast as one for
disability-based discrimination, grounded on the school’s
refusal to make a reasonable accommodation.” Id. at 757.
Even if the complaint made no reference to a FAPE, the
Supreme Court asked: “[C]an anyone imagine the student
making the same claim against a public theater or library?
Or, similarly, imagine an adult visitor or employee suing the
school to obtain a math tutorial?” Id. According to the
Supreme Court, “[t]he difficulty of transplanting the
complaint to those other contexts suggests that its essence—
even though not its wording—is the provision of a FAPE.”
Id. (footnote reference omitted).

The Supreme Court also noted that “[a] further sign that
the gravamen of a suit is the denial of a FAPE can emerge
from the history of the proceedings.” Id. The Court
referenced “in particular” whether “a plaintiff has previously
invoked the IDEA’s formal procedures to handle the
dispute.” Id. Indeed, “prior pursuit of the IDEA’s
administrative remedies will often provide strong evidence
that the substance of a plaintiff’s claim concerns the denial
34 D.D. V. LAUSD

of a FAPE, even if the complaint never explicitly uses that
term.” Id. (footnote reference omitted).

In my view, application of the analysis set forth in Fry
militates toward a conclusion that D.D. sought FAPE relief.
For starters, there is the “strong evidence” that D.D.
previously pursued relief under the administrative
procedures set forth in the IDEA.

At this juncture, it would be helpful to examine the issues
raised and remedies sought in D.D.’s complaint brought
under the IDEA’s administrative procedures. D.D. raised
the following issues:

1. [School] District failed to provide student
appropriate placement and services to
address his behavioral needs, thereby
denying student a FAPE . . . (D.D.’s
primary request under this issue was for
“a more appropriate placement . . . and/or
a one-to-one behavioral aide.”)

2. [School] District failed to offer sufficient
services and supports in the area of
occupational therapy, thereby denying
student a FAPE . . .

3. [School] District failed to offer sufficient
services and supports in the area of
speech and language, thereby denying
student a FAPE . . .

4. [School] District failed to offer sufficient
services and supports in the area of
psychological counseling, thereby
denying student a FAPE . . .
 D.D. V. LAUSD 35

5. [School] District failed to offer sufficient
services and supports in the area of social
skills, thereby denying student a FAPE
...

6. Parent disagrees with [School] District’s
. . . Functional Behavior Assessment and
requests an independent Functional
Behavior Assessment at public
expense. . . . (Referencing the IDEA).

7. Parent disagrees with [School] District’s
. . . Psychoeducational Evaluation and
requests an independent
Psychoeducational Evaluation at public
expense. . . . (Referencing the IDEA).

8. Parent disagrees with [School] District’s
. . . Speech and Language Assessment
and requests an independent Speech and
Language Assessment at public
expense. . . . (Referencing the IDEA).

9. [School] District failed to re-evaluate
student in the area of occupational
therapy . . . , thereby denying student a
FAPE.

10. [School] District failed to offer student a
FAPE at all times relevant in violation of
Section 504 of the Rehabilitation Act.

11. [School] District failed to offer student a
FAPE at all times relevant in violation of
Section 504 of the Rehabilitation Act.
36 D.D. V. LAUSD

12. [School] District violated Section 504 of
the Rehabilitation Act and the Americans
with Disabilities Act (Asserting that
student was denied access to his
education).

13. [School] District violated the [California]
Unruh Civil Rights Act.

D.D. sought the following remedies from the School
District:

The following services to be provided to
D.D. “as an offer of FAPE”:

• A full-time, one-on-one aide

• Twelve hours of behavior
intervention development

• Revision of D.D.’s behavioral
support plan

• Increased speech and language
services

• A social skills program

• Increased occupational therapy

• A sensory diet in D.D.’s classroom

• Increased psychological counseling
services
 D.D. V. LAUSD 37

Direct funding or reimbursement for the
following independent evaluations:

• Psychoeducational evaluation

• Speech and Language assessment

• Occupational Therapy assessment

• Functional Behavior assessment

School District to provide student with
the following compensatory education
services:

• 400 hours of compensatory
specialized academic instruction
services

• 80 hours of compensatory
occupational therapy services

• 80 hours of compensatory speech and
language therapy services

• 72 hours of compensatory individual
psychological counseling services

• 80 hours of a social skills program

D.D. also sought damages under Section 504 of the
Rehabilitation Act, the Americans with Disabilities Act
(ADA), and the Unruh Civil Rights Act. However, no
allegations other than the IDEA-based claims were asserted
in conjunction with these requested remedies. As noted in
Fry, this “prior pursuit of the IDEA’s administrative
38 D.D. V. LAUSD

remedies” constitutes “strong evidence that the substance of
[D.D.’s] claim concerns the denial of a FAPE,” particularly
as it was coupled with a request for relief under the ADA
and under § 504 of the Rehabilitation Act. 137 S. Ct. at 757.

Despite a concerted effort to reframe D.D.’s complaint
to state a claim for disability discrimination rather than a
claim for a FAPE, the allegations of the First Amended
Complaint are remarkably similar to those in the complaint
brought pursuant to the IDEA.

In both complaints, the recurring theme was that the
School District’s failure to provide D.D. a one-to-one aide
resulted in D.D.’s inability to access the programs and
activities at his school. A chart comparing the two
demonstrates this point.

IDEA Complaint First Amended Complaint

“During the 2015–201[6] “D.D. requested reasonable
and 2016–17 school years, accommodations from
District failed to provide District, including a one-to-
[D.D.] a one-to-one one behavior aide, so that he
behavior aide . . .” could have equal access to
his public education . . .”
 D.D. V. LAUSD 39

“Throughout that time, “In the 2016–2017 school
parents were called year, . . . Parent asked
constantly to either take [D.D.’s teacher] about a
[D.D.] home or to come sit one-to-one aide for [D.D.],
with him at school and serve but [the teacher] did
as a one-to-one aide. One of not make a referral for an
[D.D.’s] parents quit his job, aide or functional behavior
simply to sit with [D.D.] at assessment.
school . . . because he
needed someone with him “[I]n October, 2016 [the
to manage his behaviors and parents] made the decision
enable him to remain at that [the father] would quit
school and participate in the his job to serve as D.D.’s
classroom.” one-to-one aide.”

“In the 2015–2016 school “D.D.’s mother requested a
year, . . . [at] no point during one-to-one aide . . . to
the year, did District offer a accommodate D.D.’s needs
one-to-one behavior-trained and enable him to participate
aide to work with [D.D.] to with his peers, but school
enable him [to] remain in staff told her it was
class and work effectively.” impossible. . . . School staff
presented Parent an
ultimatum: either pick him
up from school or have a
family member serve as his
one-to-one aide to enable
D.D. to participate in the
classroom. . . .”
40 D.D. V. LAUSD

Although the amended complaint now asserts disability
discrimination, as reflected above the gravamen of the
complaint remains the failure of the school district to assign
a one-to-one behavior aide and other supportive services to
manage D.D.’s behavior.

As the Supreme Court advised in Fry, we look beyond
the labels in the pleadings and examine the substance of the
complaint. In this case, the substance of D.D.’s federal
complaint is the same as the substance of his IDEA
complaint—failure of the School District to ensure the
necessary support to provide D.D. a FAPE, thereby
triggering the administrative exhaustion requirement. See
id. Indeed, even the mentions a one-to-one aide at least six
times.

Comparison of D.D.’s complaints to the hypothetical
questions in Fry reinforces the conclusion that the “essence
[of the complaint]—even though not its wording—is the
provision of a FAPE. Id. (footnote reference omitted).

The first hypothetical question asks whether D.D. could
have brought “essentially the same claim if the alleged
conduct had occurred at a public facility that was not a
school,” such as a public theater or library. Id. at 756
(emphasis in the original). The answer to this question is no.
D.D. could not have brought a claim against a public theater
or library on the basis of the denial of a one-to-one
behavioral aide or the provision of behavioral analysis
services. For that matter, it is doubtful that D.D. could even
bring an action against a private entity for the repurposed
claim of barring him from the premises due to his violent
outbursts. Those claims are viable against the School
District solely because of the School District’s obligation to
provide a FAPE. See id.
 D.D. V. LAUSD 41

The second hypothetical question asks whether “an adult
at the school,” such as an employee or visitor could “have
pressed essentially the same grievance.” Id. (emphasis in the
original). Again, in this case the answer to the question is
no. It is inconceivable that an adult at the school could have
pressed a claim for a one-to-one behavioral aide or
behavioral assessments and evaluations to fully participate
in school activities. As explained by the Supreme Court,
because the answer to the Fry hypothetical questions is no,
even though the amended complaint “does not expressly
allege the denial of a FAPE,” id., the complaint concerns a
FAPE because “the FAPE requirement is all that explains
why only a child in the school setting (not an adult in that
setting or a child in some other) has a viable claim.” Id.

The same outcome results from application of the
examples discussed in Fry. The first example, a wheelchair-
bound student who brought a discrimination action against
his school due to the lack of wheelchair ramps is clearly a
claim that could be brought by the child in a public setting
outside of school; the claim is more likely under the
Rehabilitation Act than the IDEA. See Fry, 137 S. Ct. at
756.; see also Alvarez-Vega on behalf of E.A.L. v. Cushman
& Wakefield/Prop. Concepts Com., 290 F. Supp. 3d 131,
132–34 (D.P.R. 2017) (describing action brought under the
ADA on behalf of a child seeking equal access to theater
facilities). By the same token, an adult employee of the
school or visitor to the school could bring “a mostly identical
complaint against the school” for lack of wheelchair access,
Fry, 137 S. Ct. at 756; the “essence” of the complaint is
“equality of access to public facilities, not adequacy of
special education. Id. (citation omitted); see also Daubert v.
Lindsay Unified Sch. Dist., 760 F.3d 982, 984–86 (9th Cir.
2014) (discussing an ADA action seeking wheelchair access
to bleachers in a football stadium).
42 D.D. V. LAUSD

The comparator example in Fry involved a student with
a learning disability who sued his school for failing to
provide remedial tutoring in math. Although the action
“might be cast as one for disability-based discrimination,
grounded on the school’s refusal to make a reasonable
accommodation,” id. at 757, the more accurate description
of the action is for failure to provide a FAPE. The Supreme
Court explained that even if there is no explicit reference to
FAPE in the complaint, “can anyone imagine the student
making the same claim against a public theater or library?
Or similarly, imagine an adult visitor or employee suing the
school to obtain a math tutorial? Id. As recognized by the
Supreme Court, “[t]he difficulty of transplanting the
complaint to those other contexts [student in a non-school
setting or adult in school setting] suggests that its essence—
even though not its wording—is the provision of a FAPE.”
Id. (footnote reference omitted).

The facts of this case fit much more cleanly into the
second example. The requests made by D.D. are more akin
to a request for a tutor than a request for wheelchair access.
Applying the Fry analysis, the conclusion is inescapable that
despite the concerted effort to avoid use of FAPE verbiage,
the essence of D.D.’s complaint seeks FAPE relief, thereby
requiring administrative exhaustion. See id.

I am not persuaded by the cases relied upon by the
majority to reach a different outcome. Rather, a majority of
the cases cited by the majority concluded that exhaustion
was required.

The majority cites Payne v. Peninsula Sch. Dist., 653
F.3d 863 (9th Cir. 2011) (en banc), overruled on other
grounds by Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir.
2014) (en banc). However, in Payne, the en banc court did
not actually make a determination regarding whether
 D.D. V. LAUSD 43

exhaustion was required under the facts of the case. Rather,
the case was remanded for the district court to “examine each
of Payne’s requests for relief and determine whether the
exhaustion requirement applies to each.” Id. at 882. The
holding in Payne is inapposite here because, as discussed
above, we know the relief requested by D.D. in the
administrative proceedings and in the amended complaint.
That requested relief was available under the IDEA, thereby
requiring exhaustion. See id. In addition, Payne does not
support the majority’s statement that “[t]here is nothing
untoward - - or inconsistent with Fry - - in D.D.’s having
followed resolution of his IDEA claims with a lawsuit
alleging non-FAPE-based violations of another statute.”
Majority Opinion, p. 31. Importantly, D.D.’s claim differs
from Payne in that D.D. first brought his claims in a due
process hearing asserting violations of the IDEA. Cf. Payne,
653 F.3d at 865 (noting that “Payne did not initially seek
relief in a due process hearing”). In Fry, the Supreme Court
advised that a plaintiff who “has previously invoked the
IDEA’s formal procedures to handle the dispute” is more
likely “seeking relief for the denial of a FAPE.” 137 S. Ct.
at 757. The Supreme Court elaborated that “prior pursuit of
the IDEA’s administrative remedies will often provide
strong evidence that the substance of a plaintiff’s claim
concerns the denial of a FAPE, even if the complaint never
explicitly uses that term.” (footnote reference omitted). In
sum, Payne does not really support the majority’s reasoning.

Doucette v. Georgetown Public Schools, 936 F.3d 16
(1st Cir. 2019), a non-binding case from the First Circuit, is
also cited by the majority. Nevertheless, Doucette offers
little support for the majority’s analysis. Most importantly,
the case involved the denial of a service animal—the
quintessential example of a non-IDEA accommodation. See,
e.g. Antoninetti v. Chipotle Mexican Grill, 643 F.3d 1165,
44 D.D. V. LAUSD

1168 (9th Cir. 2010), as amended (involving the assertion of
claims against a restaurant under the ADA for failure to
adequately accommodate a “wheelchair-bound customer”);
Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1037–38 (9th Cir.
2008) (resolving a case brought against a convenience store
for inadequate wheelchair access); Long v. Coast Resorts,
Inc., 267 F.3d 918, 920 (9th Cir. 2001) (same for hotel
casino); Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1024
(9th Cir. 2008) (interpreting the ADA as requiring a
racetrack to provide wheelchair areas with line-of-sight over
standing spectators); Oregon Paralyzed Veterans of America
v. Regal Cinemas, Inc., 339 F.3d 1126, 1127–28 (9th Cir.
2003) (reversing entry of summary judgment in favor of a
theater on a claim that placing all “wheelchair-bound
patrons” in the first few rows violated the ADA).

The next out-of-circuit case relied upon by the majority
is a case from the Eleventh Circuit, J.S., III, a minor, by and
through J.S. Jr. and M.S., 877 F.3d 979 (11th Cir. 2017).
However, J.S. is of little assistance because it completely
failed to grapple with the analysis suggested in Fry. The sum
total of the application of Fry to the facts was the following
sentence: “The cause of action here does not fit neatly into
Fry’s hypotheticals.” Id. at 986. Enough said.

The third out-of-circuit case cited by the majority is a
district court case from the Eastern District of New York,
Lawton v. Success Academy Charter Schools, Inc., 323 F.
Supp. 3d 353 (E.D.N.Y. 2018), which relied on the Eleventh
Circuit’s decision in J.S. As explained, reliance on J.S. is
unwarranted.

The two cases from within the Ninth Circuit cited by the
majority do not support the majority’s conclusion. In Paul
G. by and through Steve G. v. Monterey Peninsula Unified
School Dist., 933 F.3d 1096 (9th Cir. 2019), we considered
 D.D. V. LAUSD 45

a case in a similar procedural posture to the case before us.
Paul G. filed an action under the ADA and under Section 504
of the Rehabilitation Act of 1973 (Section 504). See id. at
1098. We affirmed the district court’s dismissal of the
complaint for failure to exhaust administrative remedies
under the IDEA. See id. We explained that “Plaintiffs failed
to exhaust because they settled their IDEA case without
receiving an administrative decision on whether Paul needed
the placement.” Id. We referenced the Supreme Court’s
instruction in Fry that we “determine whether the gravamen
of the plaintiff’s suit is something other than the denial of the
IDEA’s core guarantee—a free appropriate public education
[FAPE]. Id. at 1100 (quoting Fry, 137 S. Ct. at 748)
(alteration and internal quotation marks omitted).

We identified the “crucial issue” as “whether the relief
sought would be available under the IDEA.” Id. We
referenced the “clues” provided in Fry including “whether
the plaintiff could have brought essentially the same claim if
the alleged conduct had occurred at a public facility that was
not a school, and whether an adult at the school could have
expressed essentially the same grievance.” Id. (quoting Fry,
137 S. Ct. at 756) (alteration and internal quotation marks
omitted).

Just as D.D. could not have brought his claims for a one-
on-one aide to prevent his disruptive behavior against a
public facility that was not a school, we came to the same
conclusion regarding Paul’s demand for a particular school
placement. See id. at 1101. Similarly, we concluded that an
adult employee or visitor could not “present the same
grievance.” Id. We concluded that, at bottom, “the relief
Paul seeks is fundamentally educational.” Id. The same is
true for D.D. As we recognized in Paul, and as articulated
in Fry, “one good indication that the plaintiff is seeking
46 D.D. V. LAUSD

relief for denial of a FAPE is whether the plaintiff previously
invoked administrative remedies.” Id. at 1100 (citing Fry,
137 S. Ct. at 757). We confirmed that “an initial decision to
pursue the administrative process and a later shift to judicial
proceedings prior to full exhaustion is a strong indication
that the plaintiff is making strategic calculations about how
to maximize the prospects of such a remedy.” Id. at 1101
(quoting Fry, 137 S. Ct. at 757) (internal quotation marks
omitted). As with this case, “Paul[’s] previous[] pursu[it of]
an IDEA administrative proceeding based on identical or
similar allegations supports the [district court’s] conclusion
that his claims are premised on the denial of a FAPE.” Id.

As is the case here, we observed in Paul G. that “Paul
pursued remedies under [the] IDEA and after settlement
switched gears to turn to other remedies.” Id. We identified
this circumstance as “almost precisely the scenario the
Supreme Court in Fry described as an indicator of an IDEA
claim requiring exhaustion.” Id.

The reasoning and conclusion in Paul G. are completely
contrary to the reasoning and conclusion in the majority
opinion`. The same is true for S.B. by and through Kristina
B. v. Cal. Dep’t of Educ., 327 F. Supp. 3d 1218 (E.D. Calif.
2018). The district court relied on Fry to conclude that
S.B.’s claims brought pursuant to the ADA and pursuant to
Section 504 required exhaustion. See id. at 1252. S.B.
asserted that the State acted in a discriminatory manner “by
failing to ensure that appropriate residential treatment
centers were available in the State of California.” Id. The
district court noted that S.B. was “unable to frame a theory
of the[] [Section 504] and ADA claims that could be brought
against any public place of accommodation, not just a
school, and by any person with a similar disability, not only
a student, as explained in Fry.” Id. at 1253. The district
 D.D. V. LAUSD 47

court also observed that the fact that S.B. “pursued
administrative proceedings based on identical or similar
allegations supports a conclusion that the claims are
premised on a denial of FAPE.” Id. (citing Fry, 137 S. Ct.
at 755).

Finally, our most recent decision addressing this issue is
consistent with the analysis in Paul G. and S.B. In McIntyre
v. Eugene Sch. Dist. 4J, 976 F.3d 902, 907 (9th Cir. 2020),
we delineated circumstances under which administrative
exhaustion was not required.

The student in McIntyre was diagnosed with attention
deficit disorder (ADD) as a preteen. During her seventh-
grade year, the school district developed a “504” plan (504
Plan) for the student, but she never sought or was provided
an IEP under the IDEA. See id. at *907 and n.4.

The student’s 504 Plan provided accommodations for
her diagnosed ADD, “including extra time on tests and
assignments, reduced assignments and projects, preferred
seating, and a quiet and separate testing environment.” Id.
(footnote reference omitted). Unfortunately, one of her
teachers refused to implement her 504 Plan. As a result, the
student’s parents filed a “Bullying/ Harassment” complaint
against the teacher. Id.

The student studied abroad her sophomore year. At the
beginning of her junior year, the student was diagnosed with
Addison’s disease, a serious autoimmune disorder. See id.
at 908 and n.5. As a result, the school district amended the
student’s 504 Plan “to include an emergency protocol that
required school officials to call 911 if she were seriously
injured” at school. Id. at 908. Despite the student suffering
a fractured ankle during a physical education class, school
48 D.D. V. LAUSD

officials failed to call 911 as required in the student’s 504
Plan. See id.

In the spring of the student’s junior year, the school
district reassigned one of the teachers who had refused to
implement the student’s 504 Plan. The student’s classmates
organized a walk-out to protest the reassignment and the
accommodations for students with disabilities. They blamed
the “504 kids” for the transfer. Id. The social studies teacher
gave permission for students to walk out of her class in
protest. The student felt betrayed by the teacher and school
administrators who sat idly by. She also felt isolated from
her classmates. See id.

Throughout the balance of the student’s junior year and
the entirety of her senior year, her classmates “maintained
their resentment, harassing and bullying [the student] for her
perceived role in [the teacher’s] transfer.” Id. Her
classmates designed a sweatshirt celebrating the teacher and
wore the sweatshirts to their graduation. School
administration never addressed this hostile environment.
See id.

In addition to the harassment the student faced from her
peers and teachers, the school district made it difficult for the
student to apply for college. The school district failed to
submit necessary documentation for the student to receive
testing accommodations with the college testing board. The
school district also failed to properly record the student’s
credits for independent study and physical education classes.
Finally, the school district refused to assist the student in
obtaining required evaluations and approvals for college
admission exams. See id. at 908–09.

Once the student turned eighteen, she filed a complaint
against the school district, the two teachers who refused to
 D.D. V. LAUSD 49

comply with her 504 Plan, and other school district officials.
The student asserted one claim under Title II of the ADA for
failure to provide reasonable accommodations, and one
claim under Section 504 for failure to provide reasonable
accommodations and for creating a hostile learning
environment. See id. at 909.

The district court determined that, although the student
filed her complaint under the ADA and under Section 504,
the gravamen of her claims “involved the provision of a
[FAPE] and therefore exhaustion was required.” Id. We
reversed, concluding that “the crux of [the student’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, [the student] need not
exhaust the administrative remedies under the IDEA.” Id. at
914 (internal quotation marks omitted).

We gave several reasons for reaching the conclusion that
exhaustion was not required. The first was that the
accommodations requested (quiet location for exams, more
time for exams, and compliance with emergency health
protocol) “cannot be construed as special education because
they do not provide specially designed instruction.” Id.
(internal quotation marks omitted) (emphasis in the
original). We noted that “a child with . . . ADD may need
preferential seating and the use of a word processor, but not
special education.” Id.

We next explained that the student’s complaint alleged
that the school district “discriminated against her by creating
a hostile learning environment.” Id. at 915. This claim was
predicated on the lack of support from school officials and
harassment from her peers rather than denial of a FAPE
under the IDEA. See id. Because the student’s claim was
predicated only on Section 504 and because the student
50 D.D. V. LAUSD

“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, . . . [the
student did] not seek . . . only relief that an IDEA officer can
give.” Id. (citation and internal quotation marks omitted).

We applied the “clues” from Fry to “also support the
conclusion that [the student’s] lawsuit [did] not seek relief
for the denial of a FAPE under the IDEA.” Id. We observed
that testing accommodations “may be required for a variety
of entities that offer professional licensing and credentialing
exams.” Id. (citations omitted). Accordingly, under “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.” Id. at 915–16 (internal
quotation marks omitted). Addressing the second
hypothetical, we observed that “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.” Id.
at 916 (internal quotation marks omitted). Thus, unlike with
D.D., the answers to the Fry hypotheticals in McIntyre
weighed in favor of the plaintiff and against an exhaustion
requirement. Because D.D. was unquestionably receiving
special education and had an IEP, our decision in McIntyre
does not support the majority’s analysis. Instead, as noted,
the cases cited by the majority from within our circuit
concluded that cases similar to D.D.’s sought relief from the
denial of a FAPE and required administrative exhaustion.
See Paul G., 933 F.3d at 1098–1100; see also S.B., 327 F.
Supp. 3d at 1252–53.

At bottom, and as we emphasized in Payne, the outcome
of this case is determined by the allegations in the complaint.
See 653 F.3d at 875 (“[W]hen determining whether the
IDEA requires a plaintiff to exhaust, courts should start by
 D.D. V. LAUSD 51

looking at a complaint’s prayer for relief and determine
whether the relief sought is also available under the IDEA.”)
If the relief sought is not available under the IDEA,
exhaustion is likely not required. On the other hand, if the
relief sought is available under the IDEA, exhaustion is
likely required. See id. We specified that “exhaustion is
required in cases where a plaintiff is seeking to enforce rights
that arise as a result of a denial of a [FAPE] . . . to provide
the basis for the cause of action (for instance, a claim for
damages under § 504 of the Rehabilitation Act . . . ,
premised on a denial of a FAPE.” Id. We clarified that
claims arise under the IDEA if the “IDEA violation is
alleged directly” or “if a § 504 claim is premised on a
violation of the IDEA.” Id. A review of the claims for relief
in D.D.’s amended complaint fit the description of a § 504
claim “premised on a violation of the IDEA.” As discussed,
D.D.’s complaint was replete with asserted violations of the
IDEA, primarily through failure to provide a “one-to-one
behavior aide.” Under our analysis in Payne, and more
recently in McIntyre exhaustion was required.

I would affirm the judgment of the district court.