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 En Banc June 24, 2021
Pasadena, California

Filed November 19, 2021

Before: Sidney R. Thomas, Chief Judge, and Ronald M.
Gould, Richard A. Paez, Marsha S. Berzon, Johnnie B.
Rawlinson, Jacqueline H. Nguyen, Andrew D. Hurwitz,
Daniel P. Collins, Kenneth K. Lee, Danielle J. Forrest and
Patrick J. Bumatay, Circuit Judges.
2 D.D. V. L.A.U.S.D.

Opinion by Judge Hurwitz;
Partial Concurrence and Partial Dissent by Judge Bumatay;
Dissent by Judge Paez;
Dissent by Judge Berzon

SUMMARY *

Individuals with Disabilities Education Act

The en banc court affirmed the district court’s dismissal
of student D.D.’s action under the Americans with
Disabilities Act against Los Angeles Unified School District
for failure to exhaust administrative remedies under the
Individuals with Disabilities Education Act.

The en banc court held that exhaustion of the IDEA
process was required because the gravamen of the ADA
complaint was the school district’s denial of a free
appropriate public education (“FAPE”) in failing to provide
a one-on-one behavioral aide and related supportive
services. The en banc court applied Fry v. Napoleon Cmty.
Schs., 137 S. Ct. 743 (2017), which directs a court to ask two
hypothetical questions: (1) 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
(2) whether an adult at the school have pressed essentially
the same grievance. Under Fry, a court also must consider
the history of the proceedings, in particular whether the

*
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. L.A.U.S.D. 3

plaintiff has previously invoked the IDEA’s formal
procedures to handle the dispute.

Declining to revisit Payne v. Peninsula Sch. Dist.,
653 F.3d 863 (9th Cir. 2011) (en banc), the en banc court
rejected D.D.’s argument that he need not exhaust because
he seeks compensatory damages for emotional distress,
relief that is not available under the IDEA.

The en banc court declined to address whether D.D.’s
settlement of the administrative proceedings that he pursued
prior to filing suit equated to exhaustion. The en banc court
also declined to address the related question of whether
D.D.’s settlement rendered further exhaustion futile.

Judge Bumatay, joined by Judge Collins, and joined by
Chief Judge Thomas and Judges Paez and Berzon as to Parts
I.B and II, concurred in part and dissented in part. Judge
Bumatay agreed with the majority that under Fry, D.D.’s
complaint concerned an injury to his right to a FAPE. He
wrote that he nonetheless would vacate the district court’s
order because, in his view, by the IDEA’s plain text, when a
complaint seeks money damages not available under the
IDEA, the plaintiff is freed from the IDEA’s exhaustion
requirement. Chief Judge Thomas and Judges Paez and
Berzon joined in Parts I.B and II of Judge Bumatay’s
opinion, stating that a plaintiff who seeks damages is
generally not required to exhaust the IDEA process.

Dissenting, Judge Paez, joined by Chief Judge Thomas
and Judge Berzon, wrote that he would reverse the district
court’s dismissal order and remand because the gravamen of
D.D.’s operative complaint was a disability discrimination
claim under the ADA.
4 D.D. V. L.A.U.S.D.

Dissenting, Judge Berzon, joined by Chief Judge
Thomas and Judge Paez, wrote that she joined Judge Paez’s
dissent in full and joined the dissenting portions of Judge
Bumatay’s opinion. She wrote separately to call attention to
the question, not decided by the majority, whether settlement
after IDEA-prescribed mediation amounts to exhaustion.
Judge Berzon wrote that she would hold that the exhaustion
requirement is satisfied when the parties have settled
disputed IDEA issues through the administrative hearing and
mediation process.

COUNSEL

Shawna L. Parks (argued), Law Office of Shawna L. Parks,
Los Angeles, California; Patricia Van Dyke and Janeen
Steel, Learning Rights Law Center, 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, for Amici Curiae California Association
of Parent-Child Advocacy, Disability Rights Advocates,
Disability Right California, National Center for Youth Law,
and National Disability Rights Network.
 D.D. V. L.A.U.S.D. 5

OPINION

HURWITZ, Circuit Judge:

D.D., an elementary school student, has an emotional
disability that interferes with his ability to learn. D.D.
sought relief from the Los Angeles Unified School District
under the Individuals with Disabilities Education Act
(“IDEA”), alleging that he was being denied a free
appropriate public education (“FAPE”). D.D. claimed that
the District had denied him a FAPE by, inter alia, failing to
provide a one-to-one behavioral aide and related supportive
services. The parties settled their dispute after mediation.
D.D. then filed a complaint in the district court, alleging that
the District had violated the Americans with Disabilities Act
(“ADA”) by failing to provide the same services sought in
the IDEA proceedings. The district court dismissed the
complaint without prejudice for failure to exhaust the IDEA
process.

D.D. has appealed the district court’s order. In its current
posture, this is a case entirely about timing. It is common
ground that D.D. can sue the District under the ADA for not
providing reasonable accommodations. It is also common
ground that the same omissions or actions can give rise to
claims both under the IDEA and the ADA. But the Supreme
Court has instructed us that if the gravamen of D.D.’s
complaint is the school’s failure to provide a FAPE, he must
first exhaust the IDEA process before seeking ADA relief.

The only disputed issue is whether the gravamen of this
complaint is the failure to offer a FAPE. Because it is, we
affirm.
6 D.D. V. L.A.U.S.D.

I

We begin by reviewing the statutory framework.

A

“The IDEA offers federal funds to States in exchange for
a commitment: to furnish a [FAPE] to all children with
certain physical or intellectual disabilities.” Fry v. Napoleon
Cmty. Schs., 137 S. Ct. 743, 748 (2017). A FAPE
“comprises ‘special education and related services’—both
‘instruction’ tailored to meet a child’s ‘unique needs’ and
sufficient ‘supportive services’ to permit the child to benefit
from that instruction.” Id. at 748–49 (citing 20 U.S.C.
§§ 1401(9), (26), (29)). An eligible child “acquires a
‘substantive right’ to such an education once a State accepts
the IDEA’s financial assistance.” Id. at 749 (citing Smith v.
Robinson, 468 U.S. 992, 1010 (1984)).

The “centerpiece of the [IDEA’s] education delivery
system” is an individualized education program (“IEP”).
Honig v. Doe, 484 U.S. 305, 311 (1988). Crafted by an “IEP
Team” of school officials, teachers, and parents, an IEP
spells out a plan to meet a child’s “educational needs.” Fry,
137 S. Ct. at 749 (quoting 20 U.S.C.
§§ 1414(d)(1)(A)(i)(II)(bb), (d)(1)(B)). The IEP documents
the child’s current levels of academic achievement,
identifies annual goals, and lists the instruction and services
needed to achieve those goals. Id. “[S]ervices that enable a
disabled child to remain in school during the day provide
[him] with the meaningful access to education that Congress
envisioned.” Cedar Rapids Cmty. Sch. Dist. v. Garret F.,
526 U.S. 66, 73 (1999) (cleaned up).

The IDEA provides a framework for promptly
addressing disputes over an IEP. The process begins with a
 D.D. V. L.A.U.S.D. 7

complaint filed with the responsible state or local
educational agency on “any matter relating to the
identification, evaluation, or educational placement of the
child, or the provision of a [FAPE] to such child.” 20 U.S.C.
§ 1415(b)(6)(A). Upon receiving a complaint, the agency
must convene a “preliminary meeting” with the IEP team
and the child’s parents, id. § 1415(f)(1)(B)(i), and offer an
opportunity to resolve the dispute through mediation, id.
§ 1415(e)(1). If the grievance remains, the parties proceed
to a due process hearing before an impartial arbiter, id.
§ 1415(f)(1)(A), who determines whether the child received
a FAPE, id. § 1415(f)(3)(E)(i). Any party aggrieved by the
agency’s ruling may then seek judicial relief. See id.
§§ 1415(i)(2)(A), 1415(l).

B

Other statutes also protect the rights of children with
disabilities. The ADA promises non-discriminatory access
to “the services, programs, or activities” of any public
facility, 42 U.S.C. § 12132, and requires “reasonable
modifications” to the facility’s “policies, practices, or
procedures” to avoid discrimination, 28 C.F.R.
§ 35.130(b)(7)(i). Section 504 of the Rehabilitation Act
imposes similar obligations on any federally funded
“program or activity.” 29 U.S.C. § 794(a). “[B]oth statutes
authorize individuals to seek redress for violations of their
substantive guarantees by bringing suits for injunctive relief
or money damages.” Fry, 137 S. Ct. at 750.

When disability issues arise in the school context, the
substantive requirements of the IDEA may overlap with
those of these other statutes. After the Supreme Court read
the IDEA as providing the “exclusive avenue” for a child
with a disability to challenge his special education program,
8 D.D. V. L.A.U.S.D.

Smith v. Robinson, 468 U.S. 992, 1009 (1984), Congress
amended the IDEA to provide that:

Nothing in [the IDEA] shall be construed to
restrict or limit the rights, procedures, and
remedies available under the Constitution,
the [ADA], [the Rehabilitation Act], or other
Federal laws protecting the rights of children
with disabilities, except that before the filing
of a civil action under such laws seeking
relief that is also available under [the IDEA],
the [IDEA’s administrative procedures] shall
be exhausted to the same extent as would be
required had the action been brought under
[the IDEA].

20 U.S.C. § 1415(l). This provision makes plain that the
IDEA does not preempt other statutory claims by children
with disabilities, but requires that a plaintiff first exhaust the
administrative process if “seeking relief that is also available
under” the IDEA. Id. It is, in other words, “designed to
channel requests for a FAPE (and its incidents) through
IDEA-prescribed procedures,” Payne v. Peninsula Sch.
Dist., 653 F.3d 863, 882 (9th Cir. 2011) (en banc), and
prevents plaintiffs from using artful pleading to litigate
IDEA issues without first utilizing the IDEA process, see S.
Rep. No. 99-112, at 12, 15 (1985) (add’l views); H.R. Rep.
No. 99-296, at 7 (1985).

C

In Fry, the Supreme Court addressed the issue of when a
lawsuit “seeks relief that is also available under” the IDEA
and is therefore subject to the exhaustion requirement.
137 S. Ct. at 748 (cleaned up). Because the IDEA only
authorizes relief if a child has been denied a FAPE, the Court
 D.D. V. L.A.U.S.D. 9

held that the exhaustion requirement of § 1415(l) is triggered
only if a complaint “charges [the] denial [of a FAPE].” Id.
at 754. “If a lawsuit charges such a denial, the plaintiff
cannot escape § 1415(l) merely by bringing her suit under a
statute other than the IDEA.” Id. Rather, she must “first
submit her case to an IDEA hearing officer, experienced in
addressing exactly the issues she raises.” Id. But “[a]
school’s conduct toward such a child—say, some refusal to
make an accommodation—might injure her in ways
unrelated to a FAPE, which are addressed in statutes other
than the IDEA.” Id. “A complaint seeking redress for those
other harms, independent of any FAPE denial, is not subject
to § 1415(l)’s exhaustion rule.” Id. at 754–55 (emphasis
added).

In determining “when a plaintiff ‘seeks’ relief for the
denial of a FAPE,” the Court has directed our focus to the
“remedial basis” of the complaint. Id. at 755. Although the
plaintiff is the “master of the claim,” “artful pleading”
cannot excuse exhaustion. Id. What matters is “substance,
not surface.” Id. So, we must set aside labels and ask
whether the “gravamen of [the] complaint seeks redress for
a school’s failure to provide a FAPE, even if not phrased or
framed in precisely that way.” Id. In doing so, we must be
mindful of the “means and ends of the” various statutes at
play. Id. “[T]he IDEA guarantees individually tailored
educational services, while [the ADA] promise[s] non-
discriminatory access to public institutions.” Id. at 756.
Because “[t]he same conduct might violate [both] statutes,”
a plaintiff may have a claim under the IDEA but can, without
exhaustion, “seek relief for simple discrimination,
irrespective of the IDEA’s FAPE obligation.” Id.

Fry offered two “clues” to direct the gravamen analysis.
Id. The first comes from two hypothetical questions:
10 D.D. V. L.A.U.S.D.

(1) “could the plaintiff have brought essentially the same
claim if the alleged conduct had occurred at a public facility
that was not a school—say, a public theater or library?”; and
(2) “could an adult at the school—say, an employee or
visitor—have pressed essentially the same grievance?” Id.
If both answers are “yes,” the complaint is likely not just
about the denial of a FAPE, as the “same basic suit” could
go forward without the FAPE obligation. Id. But if the
answers are “no,” the complaint probably concerns a FAPE,
as “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 Court
provided two examples:

• Take a wheelchair-bound child who sues
a school for the lack of access ramps. The
missing “architectural feature” could
have educational consequences and
might be couched as an IDEA violation,
for “if the child cannot get inside the
school, he cannot receive instruction
there.” But he could bring the same
complaint against another public
building, and an adult could bring “a
mostly identical complaint against the
school,” so the “essence is equality of
access to public facilities, not adequacy
of special education.”

• Take, by contrast, a child with a learning
disability who sues for the lack of
remedial tutoring in math. The action
“might be cast as one for disability-based
discrimination, grounded on the school’s
refusal to make a reasonable
 D.D. V. L.A.U.S.D. 11

accommodation.” But even absent
reference to a FAPE, “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?” “The difficulty of
transplanting” this claim to other contexts
suggests “its essence—even though not
its wording—is the provision of a FAPE.”

Id. at 756–57.

The second “clue” comes from the history of the
proceedings, “in particular” whether “a plaintiff has
previously invoked the IDEA’s formal procedures to handle
the dispute.” 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.” Id. “Whether that is so
depends on the facts; a court may conclude, for example, that
the move to a courtroom came from a late-acquired
awareness that the school had fulfilled its FAPE obligation
and that the grievance involves something else entirely.” Id.
“But prior pursuit of . . . 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.
12 D.D. V. L.A.U.S.D.

II

With the statutory background in mind, we turn to the
facts and procedural history of this case. 1

A

D.D. is an elementary school student with “a disability
that interferes with his ability to learn.” D.D. started
receiving special education services to address his
“emotional disturbance” in kindergarten (the 2015–16
school year). “His disability-related behaviors ranged from
being off-task and impulsive to being physically aggressive
toward peers and adults.” “Starting early in the school year,
school staff required one of D.D’s parents to pick him up
early from school due to his disability-related disruptive
behavior.” D.D.’s mother unsuccessfully requested a one-
to-one aide “to accommodate D.D.’s needs and enable him
to participate with his peers.”

D.D. transferred to a different school for first grade (the
2016–17 school year), but his “behaviors escalated.” He hit
“himself, classmates, and school staff,” “eloped from the
classroom regularly,” and “took his frustration out on the
property of others.” D.D.’s mother again asked about a
“one-to-one aide,” but D.D.’s teacher “did not make a
referral for an aide or a functional behavior assessment.”
Instead, “[s]tarting in the beginning of the school year, staff
again called [D.D.’s mother] regularly to pick D.D. up from
school early due to his disruptive, disability-related

1
We draw the facts from the complaint, see Curtis v. Irwin Indus.,
Inc., 913 F.3d 1146, 1151 (9th Cir. 2019), the administrative complaint
that triggered IDEA proceedings, and the settlement agreement.
 D.D. V. L.A.U.S.D. 13

behaviors, excluding him from participation in all school
activities.”

Staff soon gave D.D.’s mother “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.” So, in October 2016, the mother’s partner,
Albert, quit his job to accompany D.D. “on a nearly daily
basis.” On a day that Albert was unable to do so, D.D. had
a “severe behavioral incident” that prompted the school to
summon a psychiatric emergency team. The episode
subsided before the team arrived, but D.D. was ultimately
hospitalized for a week. After the incident, D.D.’s mother
“again explicitly [and unsuccessfully] requested a one-to-
one aide for D.D.”

The District was “still was not offering [D.D.] behavior
supports and services” during the second grade (the 2017–
18 school year). Albert continued to accompany D.D. “on
most days to monitor [his] behavior and enable him to access
his education.” But “D.D.’s disruptive, disability-related
behavior continued to escalate.” D.D.’s mother again
requested “a one-to-one aide or [non-public-school]
placement,” but the “District refused to provide either.”
After a particularly serious outburst prompted a police
response, school staff told D.D. that “if he did not behave,
they would call the police and he would end up either in jail
or in the hospital again.”

D.D.’s mother withdrew him from school in November
2017, and he “stayed out of school for a few weeks due to
the stress of attending school at all.” D.D. returned to his
original elementary school in mid-December and was treated
“with a similar pattern of neglect and discrimination.”
D.D.’s mother “routinely requested communication and
updates from his teacher,” who never replied. A classroom
14 D.D. V. L.A.U.S.D.

aide “provided general support to the classroom, but D.D.
was not offered any one-to-one behavior services.” Rather,
he was “left to his own devices.”

D.D. was “finally referred . . . to a nonpublic school,”
Eko Multi-Purpose Center (“Eko”), in January 2018. While
there, D.D. was “not offered one-to-one behavior aide
services,” but was placed in a smaller program with “more
adult assistance.” D.D.’s performance initially improved,
but he was “routinely bullied on the bus to and from school
without behavior[al] support.” D.D.’s mother “requested an
aide for the bus, but none was provided.” Moreover, the
“District repeatedly neglected D.D.’s personal safety and
needs on campus,” and he came home with bruises three
times. D.D. was twice attacked by other students, and a staff
member once “slammed [his] face against a wall.”

In May 2018, D.D.’s mother stopped sending him to Eko
for fear of his safety. D.D. transferred to a new non-public
school, Vista Del Mar, in September 2018.

B

In March 2018, while at Eko, D.D. filed a “Request for
Mediation & Due Process Hearing” with the California
Office of Administrative Hearings (“OAH”). The request
asserted that the District had failed to offer the services,
evaluations, and programs D.D. needed to receive a FAPE.
The central allegation was the District’s failure to include in
D.D.’s IEP a one-to-one aide or behavioral services needed
for him to “remain in school” and “access” his education.
See Request for Hearing at 2 (alleging District’s failure “to
provide [D.D.] a one-to-one behavior aide or behavior
intervention implementation services); see also id. at 3
(“District [did not] offer a one-to-one behavior-trained aide
to work with [D.D.] to enable him [to] remain in class and
 D.D. V. L.A.U.S.D. 15

work effectively.”), id. at 4 (“The IEP contained a behavior
support goal . . . . Despite the described behaviors, [D.D.]
was not offered behavior services and supports[.]”).

The request identified thirteen “problems,” including
that the District:

• “den[ied] [D.D.] a FAPE” by not offering
sufficient services and supports in various
areas (e.g., not offering “a more
appropriate placement,” “one-to-one
behavioral aide,” or “behavioral
development services” for “behavioral
management”) (Problems 1–5);

• failed to conduct assessments in a manner
that adequately informed the IEP team of
D.D.’s needs (e.g., that two assessments
did not recommend offering D.D.
services and supports to manage his
behavior, like a one-to-one behavior aide)
(Problems 6–9);

• “failed to offer [D.D.] a FAPE” in
violation of § 504, including by not
offering him “reasonable accommodations”
that he needed to “gain meaningful access
to his education” (i.e., a one-to-one
behavioral aide) (Problems 10–11); and

• discriminated against D.D. in violation of
other laws, including the ADA, by not
offering him reasonable “accommodations
or supports to manage the extreme
behaviors resultant from his disability” so
he could “access the school’s services”
16 D.D. V. L.A.U.S.D.

(i.e., “a trained one-to-one behavior aide
and related supports”) (Problems 12–13).

D.D. sought modifications to his IEP “as an offer of FAPE”
(including a “one-to-one behaviorally trained aide” and
“[r]evis[ion] of [his] behavioral support plan”), funding for
various assessments, compensatory services, and damages.

In April 2018, after mediation, D.D. settled his IDEA
claims against the District. The settlement agreement
waived all claims “related to, or arising from, [D.D.’s]
educational program,” except claims for damages. In
exchange, D.D. received a modified IEP, with additional
speech and language services; a psychoeducational
assessment to be considered by the IEP team; and various
compensatory services. The settlement agreement states that
provision of these services “shall not be construed as[] an
admission of what is a [FAPE] for [D.D.],” and it does not
expressly provide for the one-to-one behavior aide or other
related behavior supports that D.D. repeatedly sought from
the District. See Settlement Agreement ¶ 5 (providing only
for an additional psychoeducational assessment to “be
considered” by the IEP team). 2

C

In January 2019, D.D. filed this action. The operative
first amended complaint contends that the District
discriminated against D.D. “by excluding him from school,
refusing to offer an aide, only allowing him to stay in school

2
D.D. contends that his “due process complaint sought a change in
placement to a non-public school,” but no such request appears in his
requested relief. D.D. further claims “[t]he settlement provided for . . .
placement at Vista Del Mar non-public school,” but no provision
provides for such placement.
 D.D. V. L.A.U.S.D. 17

if his [p]arent served as an aide, and by enabling him to be
subjected to an unsafe school environment.” 3 The ADA
claim is predicated on the District’s “fail[ure] to provide
meaningful and equal access to its educational program in
violation of the [ADA], including, but not limited to, by
failing to provide D.D. with required accommodations, aids
and services.” D.D. alleges he “has suffered, and will
continue to suffer loss of equal educational opportunity, as
well as humiliation, hardship, anxiety, depression and loss
of self-esteem.” He “seeks damages and attorneys’ fees and
costs as a result” and “[s]uch other relief as the Court deems
just and proper.”

The district court dismissed D.D.’s operative complaint
without prejudice for failure to exhaust the IDEA process. It
found that by challenging the District’s failure to provide a
one-to-one aide or address his behavioral needs, the
complaint was “in essence . . . contesting the adequacy of
[his] special education program.” D.D. v. Los Angeles
Unified Sch. Dist., No. CV 19-399 PA (PLAX), 2019 WL
4149372, at *3 (C.D. Cal. June 14, 2019) (quoting Fry,
137 S. Ct. at 755). The court rejected any argument that
D.D. was not required to exhaust simply because he sought
damages in the ADA complaint. And it found D.D.’s
settlement not tantamount to exhaustion.

3
The first amended complaint is essentially identical to the original,
except that it alleges no § 504 claim, compare Complaint ¶¶ 48–57, and
deletes references to D.D.’s IEP, compare, e.g., id. ¶ 13 (“The limited
approach to [D.D.’s] disability-related behavior [in his December 2016
IEP] was not comprehensive.”); id. ¶ 17 (“The IEP team again refused
to offer a one-to-one aide for D.D.”); id. ¶ 24 (“District convened an IEP
meeting . . . at which [it] finally offered counseling services. Parent
requested a one-to-one aide or [non-public-school] placement to enable
D.D. to access his education . . . . District offered neither.”).
18 D.D. V. L.A.U.S.D.

A divided panel reversed. D.D. v. Los Angeles Unified
Sch. Dist., 984 F.3d 773 (9th Cir. 2020). The majority
framed the complaint as challenging the denial of “access”
to education and so found the IDEA’s exhaustion
requirement inapplicable. Id. at 787. The dissent read the
complaint as in substance challenging the denial of a FAPE.
Id. at 801 (Rawlinson, J., dissenting). We vacated the panel
opinion after a majority of the active judges of the Circuit
voted to rehear this case en banc. D.D. v. Los Angeles
Unified Sch. Dist., 995 F.3d 670 (9th Cir. 2021).

III

On appeal, D.D. argues only that the operative complaint
should not be subject to the exhaustion requirement, not that
he has in fact exhausted the IDEA process or that further
exhaustion would be futile. Review is de novo because D.D.
raises only issues of law. See N. Cnty. Cmty. All., Inc. v.
Salazar, 573 F.3d 738, 741 (9th Cir. 2009). Applying Fry,
we hold that exhaustion is required.

A

We begin by rejecting D.D.’s argument that the remedial
basis of his ADA complaint is not the denial of a FAPE. The
crux of D.D.’s complaint is that the District failed to provide
“required accommodations, aids and services” that he
needed to “access” his education, and that “as a result” of its
failure, he suffered loss of educational opportunity,
exclusion from school, and harassment by others. The
complaint identifies the accommodations denied as a one-to-
one aide or other supportive services to manage D.D.’s
behavior. These are core components of a FAPE, see
Garret F., 526 U.S. at 73; see also 20 U.S.C.
§ 1414(d)(3)(B)(i); U.S. Dep’t of Educ., Off. of Special
Educ. and Rehab. Servs., Dear Colleague Letter on
 D.D. V. L.A.U.S.D. 19

Supporting Behavior of Students with Disabilities 14
(Aug. 1, 2016), https://sites.ed.gov/idea/files/dcl-on-pbis-in
-ieps-08-01-2016.pdf, and ones that D.D. repeatedly asked
the District to include in his IEP. In other words, the essence
of D.D.’s complaint is that he was injured by the District’s
failure to provide an adequate special education program,
thereby triggering § 1415(l)’s exhaustion requirement. See
Fry, 137 S. Ct. at 755.

Our reading of D.D.’s complaint is confirmed by Fry’s
hypotheticals. As the panel majority candidly conceded, it
is “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,” and “even more incongruous” to picture “[a]
school visitor asking the District to provide a personal aide.”
D.D., 984 F.3d at 788. “The difficulty of transplanting the
complaint to those other contexts suggests that its essence—
even though not its wording—is the provision of a FAPE.”
Fry, 137 S. Ct. at 757.

D.D. argues we should not focus on the specific
accommodations allegedly denied but rather on a more
general theory of the case. But this is not what Fry requires.
See id. (asking whether we could “imagine an adult visitor
or employee suing the school to obtain a math tutorial”).
Generalizing in the fashion D.D. suggests reduces the first
clue’s utility, as it is the fact “[t]hat the claim can stay the
same in . . . alternative scenarios [that] suggests that its
essence is equality of access to public facilities, not
adequacy of special education.” Id. at 756. Here, “the FAPE
requirement is all that explains why [D.D.] (not an adult in
that setting or a child in some other) has a viable claim.” Id.;
20 D.D. V. L.A.U.S.D.

cf. Paul G. v. Monterey Peninsula Unified Sch. Dist.,
933 F.3d 1096, 1100 (9th Cir. 2019) (“Since a dog would not
be among the services a school district would ordinarily
provide in a FAPE . . . the gravamen of the Fry complaint
was not an IDEA claim.”).

Our reading of the gravamen of the complaint is also
confirmed by application of the second Fry clue, the history
of the proceedings. D.D.’s “prior pursuit of the IDEA’s
administrative remedies” is “strong evidence that the
substance of [his] claim concerns denial of a FAPE.” Fry,
137 S. Ct. at 757. Indeed, the allegations in his
administrative and federal pleadings are remarkably similar.
See D.D., 984 F.3d at 795 (Rawlinson, J., dissenting)
(summarizing similarities). In the former, D.D. stressed his
disagreements with the District over its failure to include a
one-to-one aide or other behavioral development services in
his IEP, and expressly alleged that this amounted to
“denying [him] a FAPE”:

Here, District has failed to offer [D.D.]
adequate placement and services to address
his behavioral needs from March 2016 to
present. It has been well known to District
that [D.D.] has serious behavioral needs, and
yet, District has not offered a more
appropriate placement to manage his
behaviors and/or a one-to-one behavioral
aide and behavioral development services to
create a behavior support plan by a behavior
specialist. . . .

Despite Parent’s continuous requests,
District failed to provide a safe placement
and behavioral services to enable him to
access his education and support him by
 D.D. V. L.A.U.S.D. 21

creating a safe environment for himself and
others. Until just a few weeks before filing
this complaint, [D.D.] was left in a placement
where he was altogether unable to attend
class. Finally, he moved to a nonpublic
school where Parent is hopeful his behavior
needs will be better addressed. Therefore . . .
District denied [D.D.] a FAPE.

In the latter, the operative complaint, D.D. re-frames the
same actions and omissions by the District as an ADA
violation, but the gravamen remains the same—that the
District failed to offer D.D. supports needed to receive a
FAPE. See Fry, 137 S. Ct. at 754.

Two recent decisions provide a useful comparison. In
Paul G., we required exhaustion where a student challenged
denial of an in-state residential educational facility, as the
claim could only be premised on the student’s right to
receive a FAPE, and he previously invoked the IDEA
process to secure his rights. 933 F.3d at 1100–01. In
contrast, in McIntyre v. Eugene School District, we did not
require exhaustion because the ADA accommodations
allegedly denied—quiet locations for exams, more time for
exams, and compliance with an emergency health
protocol—could have easily been sought outside of the
FAPE context, and the student (who had no IEP) did not
invoke the IDEA’s machinery. 976 F.3d 902 (9th Cir. 2020).
These cases teach that the inquiry necessarily turns on the
specific factual allegations of each complaint. The
allegations in this case require exhaustion.

We recognize that D.D.’s operative complaint contains
some allegations arguably unrelated to the District’s
obligation to offer a FAPE, such as physical abuse by
students and harassment by staff. But D.D. is the “master of
22 D.D. V. L.A.U.S.D.

[his] claim,” Fry, 137 S. Ct. at 755, and rather than drafting
a complaint that focused on those allegations or seeking
relief only for damages arising from them, he instead offered
a complaint that maps almost perfectly onto his IDEA
claims. Indeed, although D.D. claims his settlement with the
District resolved the IDEA issues, the complaint alleges he
“will continue to suffer loss of equal educational
opportunity.” See Endrew F. ex rel. Joseph F. v. Douglas
Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017) (noting that
access to education “is what the IDEA promises”).

B

We next reject D.D.’s argument that he need not exhaust
because he seeks relief that is not available under the IDEA,
namely, compensatory damages for emotional distress. The
threshold problem with this argument is that it re-writes
D.D.’s ADA complaint. The operative complaint’s prayer
for relief, which seeks unspecified “damages,” is not as
limited as D.D. now claims:

As a result of the [alleged ADA violation],
D.D. suffered injury, including, but not
limited to, denial of equal access to the
benefits of a public education. As a direct
and proximate result of the [alleged ADA
violation], D.D. has suffered, and will
continue to suffer loss of equal educational
opportunity, as well as humiliation, hardship,
anxiety, depression and loss of self-esteem
due to Defendant’s failure to address and
provide accommodations, modifications,
services and access required due to D.D.’s
disabilities[.] Plaintiff seeks damages and
attorneys’ fees and costs as a result.
 D.D. V. L.A.U.S.D. 23

As drafted, the complaint seeks damages to remedy loss of
educational opportunity.

Moreover, to the extent that D.D. argues that a plea for
damages alone vitiates the exhaustion requirement, 4 we
disagree. Fry reserved the question of whether § 1415(l)
requires exhaustion “when the plaintiff complains of the
denial of a FAPE, but the specific remedy she requests . . . is
not one that an IDEA hearing officer may award[.]” 137 S.
Ct. at 752 n.4. But we answered this question in our en banc
decision in Payne: “[E]xhaustion 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 (for instance, a claim for
damages under § 504 . . . , premised on a denial of a FAPE).”
653 F.3d at 875. We squarely held that a plaintiff cannot
avoid exhaustion “merely by limiting a prayer for relief to
money damages.” Id. at 877 (citation omitted).

We see no reason to revisit Payne. Our sister courts of
appeal agree that a plea for damages does not categorically
free a plaintiff from exhaustion. See McMillen v. New Caney
Indep. Sch. Dist., 939 F.3d 640, 648 (5th Cir. 2019); J.M. v.
Francis Howell Sch. Dist., 850 F.3d 944, 950 (8th Cir.
2017); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 63–

4
D.D.’s district court brief did not squarely argue that a complaint
seeking only damages is exempt from exhaustion. But, the district court
read it as doing so and rejected that claim. D.D.’s opening brief on
appeal, while not a model of clarity, does argue that Payne does not
require exhaustion because he seeks only damages for emotional
distress. Given this background, and that the effect of seeking only
damages post-Fry is a purely legal issue likely to recur, AMA
Multimedia, LLC v. Wanat, 970 F.3d 1201, 1213–14 (9th Cir. 2020), we
address the argument.
24 D.D. V. L.A.U.S.D.

64 (1st Cir. 2002); Polera v. Bd. of Educ. of Newburgh
Enlarged City Sch. Dist., 288 F.3d 478, 487–88 (2d Cir.
2002); Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058,
1066 (10th Cir. 2002); Covington v. Knox Cnty. Sch. Sys.,
205 F.3d 912, 916–17 (6th Cir. 2000); Charlie F. v Bd. of
Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 993 (7th Cir.
1996); N.B. v. Alachua Cnty. Sch. Bd., 84 F.3d 1376, 1379
(11th Cir. 1996). Moreover, nothing has changed in the
decade since Payne was decided to warrant reconsideration
on this point, except perhaps for the membership of today’s
en banc panel. Although today’s panel surely has the power
to overrule a previous en banc decision, when we have
already construed a statute that Congress has the authority to
amend, stare decisis should govern. See Kimble v. Marvel
Ent., LLC, 576 U.S. 446, 456 (2015) (explaining that “stare
decisis carries enhanced force when a decision . . . interprets
a statute” because critics “can take their objections across the
street, and Congress can correct any mistake it sees”). 5

We recognize the facial attraction to a rule that seeking
damages alone overcomes the exhaustion requirement, as
compensatory damages are not available in IDEA
proceedings. See C.O. v. Portland Pub. Schs., 679 F.3d
1162, 1166–67 (9th Cir. 2012). But this approach ignores
the central role of exhaustion in the IDEA framework.
Congress entrusted the provision of FAPEs to state and local
educational experts with the know-how to construct IEPs.

5
Amici ask us to follow W.B. v. Matula, which held that exhaustion
is not required where a plaintiff seeks only damages. 67 F.3d 484,
496 (3d Cir. 1995). But even the Third Circuit now appears to read
Matula as a case-specific exception to the general rule, not as excusing
exhaustion whenever damages are sought. See Batchelor v. Rose Tree
Media Sch. Dist., 759 F.3d 266, 280 (3d Cir. 2014).
 D.D. V. L.A.U.S.D. 25

Requiring exhaustion where disputes assert rights arising
from the denial of a FAPE

allows for the exercise of [such] discretion
and educational expertise by state and local
agencies, affords full exploration of technical
educational issues, furthers development of a
complete factual record, and promotes
judicial efficiency by giving these agencies
the first opportunity to correct shortcomings
in their educational programs for disabled
children.

Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 (9th
Cir. 1992). In other words, exhaustion serves Congress’s
intent that educational experts—not the courts—address
deficiencies in the provision, construction, or
implementation of a student’s IEP in the first instance. See
Payne, 653 F.3d at 876.

By adding § 1415(l) to the IDEA, Congress did not
merely enact “a pleading hurdle.” Fry, 137 S. Ct. at 755.
Rather, it ensured that non-IDEA claims predicated on the
denial of a FAPE could proceed, but only after parents
directly engage with the experts to seek resolution without
litigation. See S. Rep. No. 99–112, at 12 (exhaustion should
be required for claims that “could have been brought under
the [IDEA]”); H.R. Rep. No. 99–296, at 7 (exhaustion
should be required for complaints that “involve the
identification, evaluation, education placement, or the
provision of a [FAPE]”); 20 U.S.C. § 1415(f)–(g) (providing
for resolution of IDEA claims through mediation and
settlement or, failing that, an administrative hearing
followed by appeal). Exhaustion is not needed where “it is
improbable that adequate relief can be obtained by pursuing
26 D.D. V. L.A.U.S.D.

administrative remedies (e.g., the hearing officer lacks the
authority to grant the relief sought).” H.R. Rep. No. 99–296,
at 7. But the IDEA process is designed to remedy the denial
of FAPEs, so we can hardly say that plaintiffs alleging such
denials will, as a rule, walk away empty handed. 6

Reading the requirement any other way would do exactly
what Congress and Fry told us not to—let artful pleading
trump substance. See S. Rep. No. 99–112, at 15 (noting that
§ 1415(l) should not be interpreted to let parents
“circumvent the [IDEA’s] due process procedures and
protections”); Fry, 137 S. Ct. at 755. 7

C

We conclude by addressing two questions suggested by
Amici’s briefing, beginning with whether D.D.’s settlement
equates to exhaustion. A preliminary meeting is the first part
of the IDEA process and, by design, a plaintiff need proceed

6
Judge Paez’s parade of horribles, including his contention that our
decision today somehow discriminates against students with behavioral
disabilities, ignores that we today hold only that a plaintiff must exhaust
his remedies under the IDEA before filing a complaint whose gravamen
is the denial of a FAPE. The only issue is timing—relief under another
statute or theory is not barred, but simply must await exhaustion of IDEA
remedies. And, far from being “oblivious” to the prospect that the same
conduct may both result in the denial of a FAPE and give rise to an ADA
claim, we expressly acknowledge that possibility.
7
D.D. also relies on Witte v. Clark County School District, which
excused exhaustion where a plaintiff sought only damages for past
physical injuries and had obtained the relief available to him in IDEA
proceedings for the denial of FAPE. 197 F.3d 1271, 1275 (9th Cir.
1999). The problem with this argument—which in any event strikes us
as a species of futility—is that D.D. claimed a one-to-one aide was
necessary to provide him with a FAPE and settled without obtaining that
aide.
 D.D. V. L.A.U.S.D. 27

no further if it works. See 20 U.S.C. § 1415(f)(1)(B)(i), (iii).
This raises the interesting question of whether settlement
after IDEA-prescribed mediation amounts to exhaustion.
But see Paul G., 933 F.3d at 1101–02. But we need not reach
this issue, because D.D. has expressly disclaimed on appeal
that he exhausted the IDEA process.

We similarly decline to reach the related question of
whether D.D.’s settlement rendered further exhaustion
futile. Despite brief references below to having “obtained
all available relief through the administrative process,” D.D.
conceded at oral argument that he did not preserve the issue
for our review. His failure to do so is underscored by the
inadequate record on futility. See, e.g., supra Part II.B &
n.2. Indeed, if D.D. proceeds, the central question the
district court must decide is whether D.D. required a one-to-
one behavior aide or behavioral services to “access” his
education, the very sort of issue an IDEA hearing officer
would have addressed absent a settlement, and one that is not
answered by the parties’ agreement. We thus leave for
another day whether a different settlement agreement—for
example, one that gave the student the services allegedly
denied, or in which the school district concedes that it has
not provided a FAPE—can render further exhaustion futile.
See Doucette v. Georgetown Pub. Schs., 936 F.3d 16, 33 (1st
Cir. 2019); Muskrat v. Deer Creek Pub. Schs., 715 F.3d 775,
786 (10th Cir. 2013); W.B. v. Matula, 67 F.3d 484, 496 (3d
Cir. 1995).

IV

We do not today express a view on whether D.D.’s
complaint states a plausible ADA claim, whether a
differently drafted ADA complaint might not be subject to
§ 1415(l)’s exhaustion requirement, or whether D.D. can in
fact exhaust certain claims. Given the procedural posture of
28 D.D. V. L.A.U.S.D.

this case, we simply hold that the first amended complaint
that D.D. has drafted is subject to exhaustion and that the
district court did not err in dismissing that complaint without
prejudice.

AFFIRMED.

BUMATAY, Circuit Judge, with whom Judge COLLINS
joins and with whom Chief Judge THOMAS, Judge PAEZ,
and Judge BERZON join as to Parts I.B and II, concurring
in part and dissenting in part.

Our court granted en banc review here to decide whether
the Individuals with Disabilities Education Act (“IDEA” or
“Act”) mandates exhaustion when the operative complaint
asserts only claims under the Americans with Disabilities
Act (“ADA”). The Supreme Court has already answered
part of this question. In Fry v. Napoleon Community
Schools, 137 S. Ct. 743, 755 (2017), the Court instructed us
to look to the “gravamen” of the complaint and see if it
“seeks redress for a school’s failure to provide a FAPE”—a
free appropriate public education. If so, since the IDEA
guarantees a FAPE to eligible students, a plaintiff must
exhaust the IDEA process before suing under the ADA or a
similar law. Id. On this question, I agree with the majority.
The majority dutifully followed the Fry gravamen analysis
and concluded that D.D.’s complaint concerns an injury to
his right to a FAPE. So, I join Parts I, II, III-A, and III-C of
the majority opinion.

But that is not the end of the analysis. The Supreme
Court has also said that we may need to look to the “specific
remedy” sought in the complaint in determining whether
IDEA exhaustion is necessary. Id. at 752 n.4. Here, I part
 D.D. V. L.A.U.S.D. 29

ways with my colleagues in the majority. In my view, by the
Act’s plain text, when the complaint seeks money damages
not available under the IDEA, the plaintiff is freed from
IDEA’s exhaustion requirement. I would thus vacate the
district court order and remand. As a result, I respectfully
dissent from Parts III-B and IV of the majority opinion.

I.

A.

The IDEA expressly does not alter the rights, procedures,
and remedies available under the ADA, the Rehabilitation
Act, or other laws “protecting the rights of children with
disabilities.” 20 U.S.C. § 1415(l). Instead, it says that
“before the filing of a civil action under such laws seeking
relief that is also available under” the IDEA, the Act’s
procedures “shall be exhausted to the same extent as would
be required had the action been brought under” the IDEA.
Id. In other words, no matter the named cause of action in
the complaint, the IDEA imposes an exhaustion requirement
if a plaintiff “seek[s] relief that is also available under” the
Act. Id.

As the Supreme Court announced in Fry, for a plaintiff
to be subject to the exhaustion requirement, the plaintiff
“must seek relief for the denial of a FAPE, because that is
the only ‘relief’ the IDEA makes ‘available.’” 137 S. Ct.
at 752. Fry then provided two “clues” to determine whether
a complaint seeks redress for the denial of a FAPE. Id.
at 756–57. First, Fry instructs courts to hypothetically ask
whether the same claims could be raised outside the school
context or by an adult at a school. Id. at 756. If so, then the
complaint likely is not about a FAPE. Id. Second, Fry says
to look at the history of proceedings and consider whether
the plaintiff previously invoked the IDEA’s procedures. Id.
30 D.D. V. L.A.U.S.D.

at 757. In the Court’s view, beginning (and later
abandoning) IDEA procedures suggests a FAPE complaint.
Id.

I agree with the majority that both Fry “clues” show that
the gravamen of D.D.’s complaint is the denial of a FAPE.
First, the complaint repeatedly identifies the lack of a one-
to-one aide and other special education programs as the
source of his injuries. No adult at a school could ask for such
services. Second, D.D. pursued IDEA administrative
proceedings before settling with the School District. So it’s
easy to conclude that the Fry clues support exhaustion here.

B.

Yet, as the Court told us in Fry, concluding that the
complaint involves the denial of a FAPE may not be the end
of the exhaustion analysis. The Court did not address, and
explicitly reserved “for another day,” whether exhaustion is
required when the plaintiff seeks a “specific remedy” that
“an IDEA hearing officer may [not] award.” 137 S. Ct.
at 752 n.4. In Fry, the plaintiffs sought money damages for
emotional distress, but asserted that their complaint was not
premised on the denial of a FAPE. Id. The Court remanded
to the lower court to determine whether the Frys were right
in light of its announced “clues.” Id. The Court then said,
“[o]nly if that court rejects the Frys’ view of their lawsuit,
. . . will the question about the effect of their request for
money damages arise.” Id. That open question is presented
here—D.D.’s complaint is about the denial of a FAPE, but
he only requests money damages. So we must resolve this
issue.

For its part, the majority answers the question “no”—
D.D.’s request for only damages does not excuse him from
the exhaustion requirement. Maj. Op. at 22–23. The
 D.D. V. L.A.U.S.D. 31

majority believes that the Fry open question was resolved in
Payne v. Peninsula School District, 653 F.3d 863 (9th Cir.
2011) (en banc). In that case, we held that a plaintiff cannot
escape IDEA exhaustion “merely by limiting a prayer for
relief to money damages.” Id. at 877. Based on that line
alone, the majority concludes that Payne mandates
exhaustion here. See Maj. Op. at 23. The majority also relies
on several of our sister circuits’ cases, which, I concede,
overwhelmingly favor the majority’s view that exhaustion is
necessary for any FAPE complaint—regardless of the type
of remedy sought by the plaintiff. Id. at 23–24 (compiling
cases). The majority also appeals to the IDEA’s legislative
history. Citing congressional reports, it concludes that
exempting complaints for damages “would do exactly what
Congress and Fry told us not to—let artful pleading trump
substance.” Id. at 26. I disagree with the majority’s analysis
on all counts.

1.

At all times, we must be guided by the plain meaning of
the statute. As a refresher, the IDEA requires exhaustion
when the plaintiff is “seeking relief that is also available
under” the Act. 20 U.S.C. § 1415(l). First, to “seek” means
“to try to obtain,” “to ask for,” and “[to] request.” Random
House Webster’s Unabridged Dictionary 1733 (2d ed.
2001). Second, “relief” in the legal context means “redress
or benefit . . . that a party asks of a court”; it’s also termed a
“remedy.” Black’s Law Dictionary (11th ed. 2019); see also
Webster’s Third New International Dictionary (9th ed. 2009)
(defining relief as a “legal remedy or redress”); Fry, 137 S.
Ct. at 753 (defining relief as a “redress or benefit that attends
a favorable judgment” (simplified)). Indeed, the IDEA itself
uses “relief” to refer to the redress granted by courts. See
20 U.S.C. § 1415(i)(2)(C)(iii). Third, “available,” in this
32 D.D. V. L.A.U.S.D.

context, means the relief is “accessible or may be obtained.”
Fry, 137 S. Ct. at 753 (simplified). Reading these terms in
sync means that exhaustion is necessary when a plaintiff
asks for a specific redress and “the IDEA enables a person
to obtain [that] redress.” Id.

With these definitions in mind, we need to ask whether
money damages are a remedy available under the IDEA.
The answer is generally “no.” The IDEA incorporates no
express grant of damages as a remedy for the denial of a
FAPE. The closest it comes is allowing for the
reimbursement of costs for parents who enroll their children
in private schools without the consent or referral of the
school district. See 20 U.S.C. § 1412(a)(10)(C)(ii). Instead,
the IDEA empowers courts to “grant such relief as the court
determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii).
The Supreme Court has interpreted this language to allow
plaintiffs to seek two types of redress: (1) “prospective
injunctive relief” directed at school officials to ensure a
FAPE; and (2) “retroactive reimbursement” for
“expenditures on private special education”—meaning
“placement in private schools”—that should have been
borne by the State. See Sch. Comm. of Burlington v. Dep’t
of Educ., 471 U.S. 359, 369–70 (1985). The bottom line for
our purposes then is this: “compensatory damages play no
part” in the IDEA’s enforcement scheme. C.O. v. Portland
Pub. Schs., 679 F.3d 1162, 1166 (9th Cir. 2012).

Based on this understanding of remedies under the
IDEA, I would hold that a complaint seeking damages—
other than reimbursement of private school expenses under
§ 1412(a)(10)(C)(ii)—does not require exhaustion under the
IDEA. That’s because general compensatory damages
cannot be awarded under the IDEA and Congress only
prescribed exhaustion when the plaintiff seeks relief that is
 D.D. V. L.A.U.S.D. 33

“available” under the IDEA. And this is true even if the
complaint is ultimately about the denial of a FAPE.

While the majority is rightfully concerned about
exhaustion being avoided by “artful pleading,” Maj. Op.
at 26, my view of the law does not permit this. If a plaintiff
seeks IDEA-style injunctive relief or reimbursement for
placement in private school, tacking on a request for money
damages will not excuse exhaustion. It is only when a
plaintiff forgoes IDEA relief and seeks mere damages under
the ADA or the Rehabilitation Act that the plaintiff may
bypass § 1415(l). This reading accords with the Solicitor
General’s views in Fry. There, he advocated for this
textualist approach and asserted that a court could dismiss
“any request for relief that is available under the IDEA . . .
while retaining jurisdiction only over the request for money
damages.” Brief for the United States as Amicus Curiae at
32, Fry, 137 S. Ct. 743 (No. 15-497).

Under this proper interpretation of the IDEA, this case is
straightforward. D.D.’s prayer for relief requests (1) a
finding that the School District violated the ADA;
(2) damages, including, but not limited to, damages under
the ADA; (3) any “other such damages” allowed under
federal law; (4) attorneys’ fees and costs; and (5) “[s]uch
other relief as the Court deems just and proper.” D.D.
accordingly does not request any IDEA-style injunctive
relief or reimbursement for D.D.’s placement in private
school. 1 Instead, D.D.’s complaint focuses on the emotional
harms he suffered from the School District’s handling of his

1
While D.D. was placed in a nonpublic school for a portion of the
2017–2018 school year, his public-school assistant principal referred
him there. This allegation therefore does not implicate reimbursement
under § 1412(a)(10)(C)(ii).
34 D.D. V. L.A.U.S.D.

FAPE grievances. For these reasons, I would hold that D.D.
did not need to exhaust the IDEA procedures to continue
with his claims.

2.

I also note that the majority does not paint the whole
picture of Payne. It is true that Payne was concerned that
artful pleading could be used to evade the IDEA’s
exhaustion requirements and stated that “merely . . . limiting
a prayer for relief to money damages” does not by itself
excuse exhaustion. 653 F.3d at 877. But Payne did not
mandate exhaustion any time a complaint alleges a FAPE
injury, as the majority seems to believe. See Maj. Op. at 23.
Rather, Payne then said that exhaustion is only required in a
damages suit “[i]f the measure of a plaintiff’s damages is the
cost of counseling, tutoring, or private schooling—relief
available under the IDEA.” Payne, 653 F.3d at 877. In such
cases, Payne viewed the plaintiffs as still seeking IDEA
relief, but styling relief as damages showed a “willing[ness]
to accept cash in lieu of services in kind.” Id. In other words,
Payne required exhaustion when a plaintiff seeks an IDEA
remedy or its “functional equivalent,” such as money to pay
for private school or tutoring, but not when seeking other
damages. Id. at 875–77.

So even if Payne answers the question left open by Fry,
the majority is not properly applying it. The majority still
needed to determine whether D.D.’s damages were directly
tied to “counseling, tutoring, or private schooling.” Id.
at 877. If it did so, the majority would have seen that nothing
in D.D.’s complaint shows that to be the case. So even under
Payne, I would hold that D.D. did not have to exhaust the
 D.D. V. L.A.U.S.D. 35

IDEA procedures here. I fear that the majority has
needlessly narrowed Payne’s holding. 2

II.

Because damages are not a form of relief available under
the IDEA, I would hold that plaintiffs who seek them are
generally not required to exhaust the IDEA process. It may
be true that this textualist approach may allow more claims
to escape exhaustion and frustrate Congress’s supposed
purpose to have “educational experts—not the courts—
address deficiencies” in providing a FAPE in the first
instance, as the majority contends. See Maj. Op. at 25. But,
“[t]he fact that Congress may not have foreseen all of the
consequences of a statutory enactment is not a sufficient
reason for refusing to give effect to its plain meaning.”
Union Bank v. Wolas, 502 U.S. 151, 158 (1991). This
applies even if “Congress had a particular purpose in mind
when enacting [the] statute.” In re New Investments,
840 F.3d 1137, 1141 (9th Cir. 2016). Because the majority
holds otherwise, I respectfully dissent.

PAEZ, Circuit Judge, dissenting, with whom Chief Judge
THOMAS and Judge BERZON join:

I respectfully dissent.

2
Indeed, the Fifth Circuit, reading Payne, considered the Ninth
Circuit rule distinct from all the other circuits that mandate exhaustion
no matter the remedy sought in the complaint. See McMillen v. New
Caney Indep. Sch. Dist., 939 F.3d 640, 647 (5th Cir. 2019) (compiling
cases). The majority then seems to be aligning us with these other
circuits, but in doing so, it revises Payne’s holding.
36 D.D. V. L.A.U.S.D.

Oblivious to the Supreme Court’s warning that the
danger that the close connection between claims that a
student has been denied a “free appropriate public
education” (“FAPE”) and claims of exclusion from
educational opportunity could cause courts improperly to
demand exhaustion of non-IDEA claims, the majority has
done exactly that. See Fry v. Napoleon Cmty. Schs., 137 S.
Ct. 743, 755, 757–58 (2017). Because the gravamen of
D.D.’s operative complaint is a disability discrimination
claim under the Americans with Disabilities Act (“ADA”)—
and not a disguised FAPE claim under the Individuals with
Disabilities Education Act (“IDEA”), as the majority
holds—I would reverse the district court’s dismissal order
and remand.

I.

As the majority explains, students with disabilities have
rights under three different federal statutes: the IDEA,
20 U.S.C. §§ 1400–82, Title II of the ADA, 42 U.S.C.
§§ 12131–34, and § 504 of the Rehabilitation Act (“§ 504”),
29 U.S.C. § 794. The IDEA specifically guarantees students
a FAPE and provides for an administrative process and
hearing for students and parents to pursue equitable relief to
address a school district’s failure to provide a FAPE. Fry,
137 S. Ct. at 748–49. This relief is limited to future special
education services and reimbursements for education-related
expenditures. See Sch. Comm. of Burlington v. Dep’t of
Educ. of Mass., 471 U.S. 359, 369–71 (1985). Title II of the
ADA and § 504 guarantee non-discriminatory access to all
public activities and programs, and the implementing
regulations of the ADA also require reasonable
accommodations to enable access to public institutions. See
28 C.F.R. §§ 35.149, 35.150. Monetary damages are
available under the ADA. Fry, 137 S. Ct. at 750 (citing
 D.D. V. L.A.U.S.D. 37

42 U.S.C. § 12133). Only when seeking relief for the denial
of a FAPE must students exhaust the IDEA administrative
procedures before pursuing those claims in court. Fry,
137 S. Ct. at 754.

The main difference between the IDEA and the ADA is
that “the IDEA guarantees individually tailored educational
services, while Title II [of the ADA]
. . . promise[s] non-discriminatory access to public
institutions.” Id. at 756. A school district’s satisfaction of
its obligations to a student under the IDEA—i.e., providing
a FAPE—does not mean that the district has satisfied its
obligations under the ADA. See K.M. v. Tustin Unified Sch.
Dist., 725 F.3d 1088, 1100–01 (9th Cir. 2013).

The district court dismissed D.D.’s complaint on the
ground that he failed to exhaust his claim through the
IDEA’s administrative process. Under the Supreme Court’s
decision in Fry, and this court’s en banc decision in Payne
v. Peninsula School District, 653 F.3d 863 (9th Cir. 2011)
(en banc), children with disabilities and their parents can
select the statute that best fits the harm that they seek to
remedy. The question here is whether D.D. plausibly alleges
a claim of disability discrimination that is separate from the
IDEA claim he previously settled, such that it is not subject
to administrative exhaustion under the IDEA, 20 U.S.C.
§ 1415(l).

In the administrative IDEA process, D.D. entered into a
settlement agreement resolving all of his IDEA claims
regarding his educational program and placement. He
expressly preserved his non-IDEA claims for litigation. In
this action, D.D. alleges in the first amended (operative)
complaint that he suffered discrimination on the basis of his
disability in violation of the ADA. He further alleges that he
was regularly excluded from the classroom and experienced
38 D.D. V. L.A.U.S.D.

emotional and physical injuries as a result of Los Angeles
Unified School District’s (“the District”) failure to provide
him with reasonable accommodations. D.D.’s allegations
address the more expansive access requirements of the ADA
and the obligation to provide him, as an individual with a
disability, with an equal opportunity to participate in the
services of a public institution. In concluding that D.D.’s
ADA claim is subject to administrative exhaustion, the
majority has broken from legislative safeguards and
Supreme Court guidance.

II.

“We begin, as always, with the statutory language at
issue.” Fry, 137 S. Ct. at 753. Here, 20 U.S.C. § 1415(l).
The plain text of that statute requires administrative
exhaustion only for claims seeking relief available under the
IDEA. 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
extent as would be required had the action
been brought under [the IDEA].

20 U.S.C. § 1415(l). “Congress has specifically and clearly
provided that the IDEA coexists with the ADA and other
federal statutes, rather than swallowing the others.” K.M.,
 D.D. V. L.A.U.S.D. 39

725 F.3d at 1097; see Payne, 653 F.3d at 872. In fact,
Congress added § 1415(l) in response to the Supreme
Court’s interpretation of the IDEA in Smith v. Robinson as
providing the “exclusive avenue” for pursuing “an equal
protection claim to a publicly financed special education.”
See 468 U.S. 992, 1009 (1984). Sitting en banc, we
previously observed that “the ‘except’ clause [of § 1415(l)]
requires that parents and students exhaust the remedies
available to them under the IDEA before they seek the same
relief under other laws.” Payne, 653 F.3d at 872 (emphasis
in original).

Thus, if a plaintiff seeks relief available under the IDEA,
he must first exhaust his claim through the statute’s detailed
administrative process. And “[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.” Id.
at 871. Disability-based discrimination is not FAPE-based
simply because it occurs at school. See McIntyre v. Eugene
Sch. Dist. 4J, 976 F.3d 902, 916 (9th Cir. 2020) (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”). Both the IDEA and the broader
disability discrimination statutes may offer relief for the
same mistreatment at school, but if the remedy sought is not
for the denial of a FAPE, the child may pursue relief in a
civil action premised on those other statutes, without
exhaustion.

Although discriminatory conduct “might interfere with a
student enjoying the fruits of a FAPE, the resulting
[discrimination] claim is not, for that reason alone, a claim
that must be brought under the IDEA.” Payne, 653 F.3d
at 880; see also Fry, 137 S. Ct. at 754 (“A school’s conduct
40 D.D. V. L.A.U.S.D.

toward such a child [with a disability]—say, some refusal to
make an accommodation—might injure her in ways
unrelated to a FAPE, which are addressed in statutes other
than the IDEA.”). “If the school’s conduct constituted a
violation of laws other than the IDEA, a plaintiff is entitled
to hold the school responsible under those other laws.”
Payne, 653 F.3d at 877. This is precisely what D.D. seeks
to do here.

III.

In Fry, the Supreme Court directly addressed the
relationship between the IDEA, the ADA, and § 504. The
Court recognized that the same set of facts can give rise to
overlapping claims for the denial of a FAPE under the IDEA
and disability discrimination under other statutes. 137 S. Ct.
at 756. The Court also held that exhaustion is required only
when the plaintiff is seeking relief for the denial of a FAPE.
Id. at 753. After all, an administrative hearing officer cannot
give relief for anything else. Id.; see Payne, 653 F.3d at 871.
The Court recognized that a school’s conduct toward a
student with a disability may still cause cognizable injury
other than denying her a FAPE, and in that case, exhaustion
is unnecessary. Fry, 137 S. Ct. at 754–55. It then held that
in such cases, to determine whether administrative
exhaustion is required, the task is to discern “the gravamen”
of the complaint—whether the complainant “is[,] in
essence[,] contesting the adequacy of a special education
program.” Id. at 755. This assessment is to be guided by
“the diverse means and ends of the statutes covering persons
with disabilities.” Id.

The majority critically errs in its assessment of the
gravamen of D.D.’s operative complaint, demanding
exhaustion where it is not required. “[T]he statutory
differences [between the IDEA, the ADA, and § 504] mean
 D.D. V. L.A.U.S.D. 41

that a complaint brought under Title II and § 504 might
instead seek relief for simple discrimination, irrespective of
the IDEA’s FAPE obligation.” Id. at 756. D.D. first pursued
his administrative remedies under the IDEA and
successfully resolved his IDEA claims through the
mediation and settlement process specifically contemplated
by the statute. See 20 U.S.C. § 1415(e)–(f). In the present
action, he seeks relief for simple disability discrimination.
See Fry, 137 S. Ct. at 756.

In focusing on the factual common ground between the
FAPE-based claim that D.D. settled and does not allege in
this lawsuit, and the non-IDEA claim he does allege, the
majority concludes that D.D. must exhaust his ADA claim
in a forum from which he cannot obtain further relief. In
reaching this result, the majority relies on the Fry clues. 1
The Fry clues are intended to aid in determining whether a
complaint alleging ADA or § 504 claims is nothing more
than another way of seeking IDEA educational benefits. Fry
does not answer the question of whether a plaintiff who
seeks relief unavailable under the IDEA—i.e., damages—
must nevertheless pursue administrative exhaustion. See
137 S. Ct. at 752 n.4, 754 n.8. To read Fry and related Ninth

1
Fry emphasized that the suggested “clues” are neither exclusive
nor determinative, but merely potentially useful. 137 S. Ct. at 756–57,
757 n.10. Justice Alito, in his partial concurrence joined by Justice
Thomas, found them misleading and confusing, explaining that the
“clues make sense only if there is no overlap between the relief available
under [the IDEA and other federal disability discrimination laws].” Id.
at 759 (Alito, J., concurring-in-part).
42 D.D. V. L.A.U.S.D.

Circuit cases consistently, we are required to analyze the
complaint to determine the gravamen, or the harm alleged. 2

In D.D’s due process hearing request, he alleged that the
District had failed to address his learning needs, constituting
the denial of a FAPE under the IDEA. Specifically, D.D.
alleged that the District had failed to (1) provide him with an
appropriate placement and services, such as a one-to-one
aide, to address his behavioral needs; and (2) offer sufficient
services and supports in the areas of (i) occupational therapy,
(ii) speech and language development, (iii) psychological
counseling, and (iv) social skills. The request also stated that
the denial of a FAPE was a violation of § 504 and that the
District also separately violated § 504 and the ADA. The
request outlined five separate categories of relief, including
services related to the provision of a FAPE, funding or
reimbursement for parent expenditures related to the
provision of a FAPE, compensatory education services, and
damages due to violations of § 504 and the ADA.

2
Payne, which was decided before Fry, sought to provide a method
to determine whether a plaintiff had to exhaust true IDEA claims alleged
under non-IDEA statutes (the ADA and § 504). See 653 F.3d at 874–75.
In Payne, we held that “[i]f a plaintiff can identify a school district’s
violation of federal laws other than the IDEA and can point to an
authorized remedy for that violation unavailable under the IDEA, then
there is no reason to require exhaustion under § 1415(l).” Id. at 881.
Payne remains good law for its holding that the “exhaustion requirement
applies to claims only to the extent that the relief actually sought by the
plaintiff could have been provided by the IDEA.” Id. at 874 (emphasis
added). The issue in Fry was essentially the same as that in Payne, but
Fry directed courts to focus on the gravamen of the complaint and not
just on the relief sought, as in Payne. Although certain aspects of Payne
have been supplanted by Fry’s gravamen approach, it remains
instructive.
 D.D. V. L.A.U.S.D. 43

As part of the IDEA settlement agreement, D.D. waived
all of his educational claims arising under the IDEA and
California special education statutes and regulations. The
“agreement d[id] not release any claims for damages . . .
which could not have been asserted in proceedings under the
IDEA and/or California special education statutes and
regulations.” D.D. thus expressly reserved the right to
pursue “any claims that can be made under” other federal
laws, including the ADA.

After resolving his IDEA claims through settlement,
D.D. followed the path prescribed by the Supreme Court in
Fry and filed this action against the District for violations of
the ADA and § 504 (for which the administrative IDEA
process provides no remedy). In the operative complaint,
D.D. omitted the § 504 claim, seeking only money damages
for disability discrimination under the ADA.

IV.

A.

The first Fry clue offers two hypothetical questions for
use in determining the gravamen of a school-based
disability-discrimination complaint: 1) whether the plaintiff
could bring the same claim outside the school setting, and
2) whether an adult could bring the same claim within the
school setting. Fry, 137 S. Ct. at 756.

D.D.’s complaint focuses on his repeated exclusion from
school. At the outset, he alleges that the District “excluded
[him] from school and all of the programs and services made
available to others without disabilities.” He then alleges that
the “District discriminated against [him] on the basis of his
disability by removing him from his classroom; sending him
home early on multiple occasions, and requiring a parent to
44 D.D. V. L.A.U.S.D.

attend school with [him] to serve as his one-to-one aide
instead of providing one.”

D.D. alleges that during his kindergarten and first-grade
years, school staff “regularly” called D.D.’s parents to pick
him up from school early, which “exclud[ed] him from
participation in all school activities.” When D.D. was in first
grade, “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.” As
a second-grader, “D.D. was left to his own devices” and was
“commonly” allowed to “le[ave] class and walk[] around the
campus for almost the entire school day unattended.” In
sum, D.D. alleges that “[r]ather than offering meaningful
and appropriate behavior accommodations and allowing
D.D. to attend school for the same amount of time as typical
peers, 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.”

D.D. further alleges that due to the District’s failure to
accommodate him, he was routinely bullied on the school
bus, came home with bruises multiple times, was attacked
by students, and had his head slammed into a wall by a staff
member. To deal with the school bus issues, D.D.’s parents
“requested an aide for the bus, but none was provided.”
District staff allegedly threatened 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., “making it impossible for him to attend
school altogether.” Along with a “denial of equal access to
the benefits of a public education,” D.D. alleges that he
suffered “humiliation, hardship, anxiety, depression[,] and
 D.D. V. L.A.U.S.D. 45

loss of self-esteem” as a result of the District’s “failure to
address and provide accommodations, modifications,
services[,] and access required due to D.D.’s disabilities.”

Clearly, the gravamen of D.D.’s complaint is a challenge
to his lack of access to the educational program or services
the District provided. I fail to understand how, for example,
the District’s alleged failure to provide a one-to-one aide on
the school bus has anything to do with the adequacy of the
instructional program the District provided, as the majority
effectively insists. D.D. alleges that the District denied him
the opportunity to attend school at all because of his
disability-related behavior, unless accompanied by a parent.
D.D.’s claim thus sounds squarely in the ADA: he alleges
that he was denied meaningful access to his public
educational program because the District failed to provide
reasonable accommodations for his disability. These
allegations are more than sufficient to satisfy the pleading
standard for an ADA claim. 3

The difference in the statutes’ goals is key to
understanding whether administrative exhaustion should
apply to D.D.’s Title II ADA claim: while the IDEA focuses
on the provision of an individualized educational program to

3
The District Court dismissed D.D.’s action pursuant to Federal
Rule of Civil Procedure 12(b)(6) on the basis that the complaint failed to
state a claim. Because D.D. stated a valid claim for disability
discrimination under the ADA, the District’s motion to dismiss under
Rule 12(b)(6) should have been denied. Exhaustion is an affirmative
defense subject to a motion for summary judgment, not dismissal for
failure to state a claim. See Albino v. Baca, 747 F.3d 1162, 1169, 1171
(9th Cir. 2014) (en banc) (overruling Payne on the procedural issue and
holding that exhaustion questions should be decided on summary
judgment, not on a motion to dismiss under Rule 12(b)(6), unless the
failure is clear from the face of the complaint).
46 D.D. V. L.A.U.S.D.

meet a child’s specific educational needs, see Honig v. Doe,
484 U.S. 305, 311 (1988), the ADA focuses on the barriers
that exist to deny the student the opportunity to obtain such
individualized attention, Fry, 137 S. Ct. at 756.
Administrative exhaustion “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 (emphasis in original).

D.D. requested reasonable accommodations from the
District, including a one-to-one behavior aide, “so that he
could have equal access to his public education, and the
programs and services offered by LAUSD to the same extent
as his peers without disabilities.” D.D.’s requests for the
District to support his behavioral needs so that he could
remain in school, and do so without being subjected to
attacks, threats, and abuse, could not be brought in exactly
the same way against a public library, or by an adult plaintiff,
such as an employee or visitor to the school. But visitors to
public libraries and adults employed by or visiting schools
could well request similar, if not precisely the same, relief,
to ensure access and nondiscriminatory participation—for
example, nearby security officers, or permission to bring in
a service animal.

Like such officers or animals, D.D.’s requested one-to-
one behavior aide was intended to enable D.D. to remain in
the classroom and participate alongside his peers. For
example, in the operative complaint, D.D. alleges that after
he was sent home because of his problematic behavior, his
mother requested a one-to-one aide to “accommodate D.D.’s
needs and enable him to participate with his peers.” He
further alleges that school staff required his parents to “either
 D.D. V. L.A.U.S.D. 47

pick [D.D.] up from school or have a family member serve
as his one-to-one aide to enable D.D. to participate in the
classroom.” As a result, “[D.D.’s parent] attended school
with D.D. on most days to monitor D.D.’s behavior and
enable him to access his education to the same extent as
students without disabilities.” After “D.D.’s disruptive,
disability-related behavior continued to escalate[,] Parent
again requested reasonable accommodations for her son’s
disability-related behavior, including a one-to-one aide.”
Additionally, “[D.D.] was routinely bullied on the bus to and
from school without behavior support. Parent requested an
aide for the bus, but none was provided.” A library visitor
or adult seeking school access could similarly request as an
accommodation the presence of security personnel or service
animals to address both the plaintiff’s behavioral issues and
discriminatory and abusive behavior by others in response to
those issues.

Given these allegations, the first Fry clue is helpful in
determining whether D.D.’s ADA claim is a disguised FAPE
claim, as long as we recognize that the analogy between
other locations or other plaintiffs and the child seeking to
assure school access need not be exact. Indeed, it is unlikely
that the Fry clues were intended to exclude students with
behavioral—as opposed to physical—disabilities from
recourse under Title II of the ADA because children’s needs
at school may require accommodations somewhat different
from—but analogous to—those appropriate for adults or in
other public buildings. The majority’s rote application of the
first Fry clue is therefore incorrect.

The majority makes much of the fact that D.D.’s
operative complaint alleges that the District failed to provide
one of the same services that he pursued administratively
under the IDEA—a one-to-one classroom aide. But this
48 D.D. V. L.A.U.S.D.

overlap does not transform a claim that seeks relief under
Title II of the ADA into a disguised FAPE claim. Where a
child with disabilities has experienced both a denial of a
FAPE in violation of the IDEA and exclusion from school in
violation of the ADA, some overlap in the facts relevant to
each is expected. As the Supreme Court observed, “[t]he
same conduct might violate all three [disability
discrimination] statutes.” Fry, 137 S. Ct. at 756. And as the
“master of the claim,” a plaintiff has a right to bring claims
under each. See id. at 755. For purposes of determining the
applicability of administrative exhaustion, the question is
whether D.D. plausibly alleged a claim of disability
discrimination separate from the IDEA claim he previously
settled.

D.D. plausibly alleged a claim of disability
discrimination based on his exclusion from the classroom,
and he reasonably sought a one-to-one aide as one remedy
for that exclusion, apart from any educational services an
aide could have provided. As explained in Fry, a child may
seek a wheelchair ramp to remedy the denial of access to a
school building or to remedy the denial of his right to a
FAPE—which he cannot receive “if [he] cannot get inside
the school.” Id. at 756. Similarly, a one-to-one aide could
be necessary not only for D.D. to take advantage of other
forms of instructional assistance as required by the IDEA but
also for D.D. to access and remain in school, as required by
the ADA. It is possible that the two different needs may even
be met by two different aides, with different qualifications
and attributes. The facts in D.D.’s operative complaint
allege that without an aide, D.D. would not be able to remain
in school at all, and thus would have no opportunity to
receive a public education. “After all, if the child cannot get
inside the school, he cannot receive instruction there.” Id.
 D.D. V. L.A.U.S.D. 49

Further, even if the one-on-one aide were precluded
under a Fry analysis—which I do not believe it is—the only
consequence would be that any damages specifically
traceable to denial of that aide could not be recovered. The
gravamen of the complaint would remain discriminatory
exclusion from school and discriminatory abuse, threats, and
physical attacks while in school, and damages traceable to
those circumstances would still be available.

B.

The second Fry clue is the procedural history of the
plaintiff’s pursuit of relief. See id. at 757. The majority
characterizes D.D.’s complaint as “artful pleading” because
he first pursued an IEP, but does not allege this in his
complaint—leading the majority to conclude D.D.’s claim is
necessarily a disguised FAPE claim. But in his operative
complaint, D.D. tells the story of the District’s alleged
violations of his rights. Under the majority’s reasoning, it is
not clear what D.D. could have done to avoid the accusation
of “artful pleading.” Fry urges courts to “consider
substance, not surface”: the principal inquiry is whether a
plaintiff’s complaint “seeks relief for the denial of an
appropriate education.” Id. at 755.

In concluding that administrative exhaustion of D.D.’s
ADA claim is required, the majority has transformed
§ 1415(l) from a provision specifically crafted to preserve
the availability of other forms of relief alongside the IDEA
into one that forecloses all cases involving the mistreatment
of students with disabilities by a school. The majority has
taken away from D.D. and future litigants exactly what
Congress and the Supreme Court in Fry sought to protect:
the right to file an action alleging claims of disability
discrimination outside the IDEA’s limited, education-
50 D.D. V. L.A.U.S.D.

centered scope without having to exhaust the IDEA
administrative process.

Having resolved his IDEA claims through settlement,
D.D. now pursues a claim whose gravamen relates to his
discriminatory treatment on the basis of his disability, not
the adequacy of the individualized education provided by the
District. Fry directs courts to ensure that students who
receive special education and have an IEP are not denied
their right to pursue their non-IDEA claims directly in court.
137 S. Ct. at 754–55. D.D.’s operative complaint makes
clear that his ADA claim does not challenge the adequacy of
his instruction and related services, and therefore, does not
“seek[] relief that is also available under [the IDEA].”
20 U.S.C. § 1415(l); see McIntyre, 976 F.3d at 915 (“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.”).

V.

Requiring IDEA exhaustion before seeking relief not
available under the IDEA contravenes congressional intent,
departs from Supreme Court precedent, and restricts
students’ rights under other disability discrimination statutes
like the ADA. See Payne, 653 F.3d at 874 (“The IDEA’s
exhaustion requirement applies to claims only to the extent
that the relief actually sought by the plaintiff could have been
provided by the IDEA.”). The majority opinion will
discourage students and their families from settling IDEA
administrative due process complaints and will be a trap for
unsuspecting parents who believe that settlement language
that preserves non-IDEA claims does just that. By
upholding the district court’s dismissal order, the majority
 D.D. V. L.A.U.S.D. 51

has effectively sanctioned a system in which students can
involuntarily and unknowingly waive their civil rights
claims, even when preserved in writing by the parties.

The scope of IDEA administrative hearings is limited:
hearing officers can only address and resolve whether a
school has met its obligation to provide a student with a
FAPE. Fry, 137 S. Ct. at 754. A plaintiff like D.D., seeking
redress for something other than a denial of a FAPE, cannot
obtain any relief from the administrative hearing process.
Where, as here, a student seeks monetary damages under the
ADA for harms not redressable under the IDEA, further
administrative efforts would be futile. See Payne, 653 F.3d
at 871–72. There is simply no further relief that such a
student could obtain through the IDEA’s administrative
process. The majority has unduly burdened students with
disabilities with having to proceed with a full hearing at the
administrative level for claims that do not implicate a FAPE
simply because the discrimination they suffer happens at
school.

For the above reasons, I would reverse the district court’s
dismissal order and remand for further proceedings related
to D.D.’s ADA claim. I respectfully dissent. 4

4
Because I disagree with the majority’s holding that the gravamen
of D.D.’s operative complaint is a disguised FAPE claim, I do not
address whether exhaustion is unnecessary when the relief sought—
damages—cannot be awarded by an IDEA hearing officer. On that issue,
I agree with Judge Bumatay’s dissent that exhaustion is not required. I
therefore join Parts IB and II of Judge Bumatay’s dissent as an alternative
basis for allowing D.D.’s ADA damages claim to proceed.

I also agree with Judge Berzon that, if the question were properly
before us, we should hold that the exhaustion requirement is satisfied
52 D.D. V. L.A.U.S.D.

BERZON, Circuit Judge, with whom Chief Judge Thomas
and Judge Paez join, dissenting:

I join Judge Paez’s dissent in full and join the dissenting
portions of Judge Bumatay’s opinion. I write separately to
call attention to the “interesting question” mentioned, but not
decided, by the majority: “whether settlement after IDEA-
prescribed mediation amounts to exhaustion.” Majority
op. 27. Although the issue may not be a live one in this
appeal, see id. at 27, it is a serious question that, had it been
properly raised, would, in my view, have provided a much
more straightforward resolution of this case than the fact-
bound issue debated in the majority opinion and Judge
Paez’s dissent.

As then-Chief Judge Briscoe of the Tenth Circuit
persuasively demonstrated, the exhaustion provision in the
Individuals with Disabilities Education Act (“IDEA”),
20 U.S.C. § 1415(l), “can reasonably, and indeed should, be
interpreted as merely requiring a claimant to make full use
of the procedures outlined in §§ 1415(f) and (g) to attempt
to resolve her IDEA claim”—including use of the mediation
and settlement conference provisions included in the statute.
A.F. ex rel Christine B. v. Espanola Pub. Schs., 801 F.3d
1245, 1256 (10th Cir. 2015) (Briscoe, C.J., dissenting); see
20 U.S.C. § 1415(f)(1)(B)(i) (mandating a “[p]reliminary
meeting” to allow “the parents of the child [to] discuss their
complaint, and the facts that form the basis of the
complaint,” and to afford “the local educational agency . . .

when the parties have settled disputed IDEA issues through the
administrative hearing and mediation process, as here. I therefore join
Judge Berzon’s dissent in full.
 D.D. V. L.A.U.S.D. 53

the opportunity to resolve the complaint,” unless the parties
agree in writing to waive the meeting or agree “to use the
mediation process described in subsection (e)”);
§ 1415(f)(1)(B)(iii) (setting forth procedures for the parties
to execute a “[w]ritten settlement agreement” if “a resolution
is reached to resolve the complaint” at the preliminary
meeting); id. § 1415(e) (detailing a mediation process
allowing parents and educational agencies “to resolve the
complaint” through “a legally binding agreement,” id.
§ 1415(e)(2)(F)).

The exhaustion provision should be read to encompass a
settlement reached through the IDEA’s prescribed
procedures “not only because the statutory framework
anticipates, and in fact encourages, resolution of IDEA
claims by way of mediation, but also because a mediated
resolution leaves nothing to be decided at a due process
hearing or in an administrative appeal.” A.F. ex rel Christine
B., 801 F.3d at 1256 (Briscoe, C.J., dissenting). Here, for
example, the settlement agreement expressly recognized that
D.D.’s damages claims could not be resolved in an
administrative hearing. The agreement 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.” A fair reading of this language is that the
parties intended to allow damages claims under the
Americans with Disabilities Act to go forward because they
could not have been brought under the IDEA.

Both the First and Tenth Circuits have excused
exhaustion as futile in cases in which the plaintiffs engaged
in the IDEA’s prescribed process and reached agreements
with their school districts granting them all the relief they
sought under the IDEA. Doucette v. Georgetown Pub. Schs.,
936 F.3d 16, 33 (1st Cir. 2019); Muskrat v. Deer Creek Pub.
54 D.D. V. L.A.U.S.D.

Schs., 715 F.3d 775, 786 (10th Cir. 2013). “Having achieved
success through their interactions with local school officials,
there was no need for the [plaintiffs] to seek a[n
administrative] hearing,” Doucette, 936 F.3d at 30, and “it
would have been futile to then force them to request a formal
due process hearing—which in any event cannot award
damages—simply to preserve their damages claim,”
Muskrat, 715 F.3d at 786. But resort to the less-than-clear
futility doctrine is unnecessary under Chief Judge Briscoe’s
persuasive interpretation of the statute.

I note that if our court were to adopt Judge Bumatay’s
position that exhaustion is not required when plaintiffs seek
money damages not available under the IDEA, Bumatay
op. 32, the settlement problem would be diminished.
Typically, once plaintiffs have settled their IDEA claims, a
claim for damages is what is left.

But even if that position is not adopted, I would still read
the statute not to require further exhaustion after plaintiffs
have settled their IDEA claims. As Chief Judge Briscoe
asked, “why would Congress, after creating a framework
that quite clearly encourages resolution of IDEA claims by
various means, force a claimant to avoid resolution of her
claim by mediation or preliminary meeting . . . ? Doing so
would effectively render superfluous the mediation and
preliminary meeting provisions of the statute.” A.F. ex rel
Christine B., 801 F.3d at 1256 (Briscoe, C.J., dissenting).

We have also recognized the preeminent importance of
settlement efforts in this context, given that “the slow and
tedious workings of the judicial system make the courthouse
a less than ideal forum in which to resolve disputes over a
child’s education.” Clyde K. v. Puyallup Sch. Dist., No. 3,
35 F.3d 1396, 1402 (9th Cir. 1994). “[E]veryone’s interests
are better served when parents and school officials resolve
 D.D. V. L.A.U.S.D. 55

their differences through cooperation and compromise rather
than litigation.” Id. When the issue is properly raised, we
should read the statute in a way that does not subvert one of
its central goals—promoting the resolution of educational
disputes through settlement.