United States Court of Appeals,
Eleventh Circuit.
No. 95-3214
Non-Argument Calendar.
N.B., by her mother and next friend, D.G. a/k/a N.B., Plaintiff-
Appellant,
v.
ALACHUA COUNTY SCHOOL BOARD, Robert W. Hughes, Superintendent,
Alachua County School Board, individually and in his official
capacity, Suwannee County School Board, Charles F. Blalock, Jr.,
Superintendent, Suwannee County School Board, individually and in
his official capacity, Columbia County School Board, Diane Lane,
Superintendent, Columbia County School Board, individually and in
her official capacity, Defendants-Appellees.
June 7, 1996.
Appeal from the United States District Court for the Northern
District of Florida. (No. 94-10164-MMP), Maurice Mitchell Paul,
Chief Judge.
Before TJOFLAT, Chief Judge, and DUBINA and BLACK, Circuit Judges.
PER CURIAM:
We affirm the judgment of the district court for the reasons
stated in the district court's dispositive order of July 20, 1995,
which appears in the Appendix.
AFFIRMED.
APPENDIX
ORDER
This cause comes before the Court upon motion to dismiss
plaintiff's first amended complaint by defendants Alachua County
School Board and Columbia County School Board (doc. 6). For the
reasons stated below, the motion is GRANTED.
BACKGROUND
Plaintiff N.B. is a hearing impaired child. During the
relevant time periods, N.B. lived in either Columbia or Suwannee
County, Florida. Sometime prior to March 1986, N.B. was bused from
her home in Columbia or Suwannee County to attend a special school
for hearing impaired children in Alachua County. Plaintiff claims
that this decision caused her to be segregated from hearing
students. She also claims that the long bus ride caused her to
miss a significant portion of class work each school day. N.B.
left the State of Florida at the end of the 1992/93 school year and
is no longer in the Florida educational system.
N.B. has brought this suit alleging violations of the
Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C.
§ 1400 et seq. She seeks compensatory damages under the IDEA
(Count I) and 42 U.S.C. § 1983 (Count II).
In the motion to dismiss, defendants move for dismissal of the
first amended complaint based on the following four grounds: 1)
the plaintiff has failed to exhaust administrative remedies; 2)
the plaintiff's claims are barred by the statute of limitations;
3) compensatory damages are not available under the IDEA; and 4)
compensatory damages are not available under 42 U.S.C. § 1983 for
violations of the IDEA. Because the Court finds dismissal is
appropriate for plaintiff's failure to exhaust necessary
administrative remedies as a prerequisite to filing this action,
the Court need not reach the remaining three issues concerning the
statute of limitations and the availability of compensatory damages
under the IDEA and 42 U.S.C. § 1983.
DISCUSSION
The IDEA, formerly known as the Education for All Handicapped
Act ("EHA"), 20 U.S.C. § 1400 et seq., provides federal money to
state and local education agencies in order to assist them in
educating handicapped children, on the condition that the states
and local agencies implement the substantive and procedural
requirements of the Act. The principal purpose of the Act is "to
assure that all children with disabilities have available to them
... a free appropriate public education which emphasizes special
education and related services designed to meet the handicapped
child's unique needs, ... [and to ensure] that the rights of
handicapped children and their parents or guardians are protected."
20 U.S.C. § 1400(c).
To carry out these objectives, the IDEA provides procedural
safeguards to permit parental involvement in all matters concerning
the child's educational program and allows parents to obtain
administrative and judicial review of decisions they deem
unsatisfactory or inappropriate. Honig v. Doe, 484 U.S. 305, 311-
12, 108 S.Ct. 592, 597-98, 98 L.Ed.2d 686 (1988). Under this
scheme of procedural protections, parents are entitled to 1)
examination of all relevant records pertaining to evaluation and
educational placement of their child, 2) prior written notice
whenever the responsible educational agency proposes, or refuses,
to change the child's placement, 3) an opportunity to present
complaints concerning any aspect of the local agency's provision of
a free appropriate public education, and 4) an opportunity for an
"impartial due process hearing" with respect to any such
complaints. Id. at 312, 108 S.Ct. at 598.
In the event that a party is dissatisfied with or aggrieved by
the findings and decisions made after the impartial due process
hearing, that party may obtain additional administrative review by
the state educational agency. 20 U.S.C. § 1415(c). If that party
is still dissatisfied or remains aggrieved after the administrative
appeal, a judicial review is available in either state court or
federal court to contest the decisions of the educational agency.
Id. § 1415(e)(2).
"The philosophy of the [IDEA] is that plaintiffs are required
to utilize the elaborate administrative scheme established by the
[IDEA] before resorting to the courts to challenge the actions of
the local school authorities." Ass'n for Retarded Citizens of
Alabama v. Teague, 830 F.2d 158, 160 (11th Cir.1987) (citing Smith
v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984)).
Key reasons for requiring the exhaustion of administrative remedies
are as follows: 1) to permit the exercise of agency discretion and
expertise on issues requiring these characteristics; 2) to allow
the full development of technical issues and a factual record prior
to court review; 3) to prevent deliberate disregard and
circumvention of agency procedures established by Congress; and 4)
to avoid unnecessary judicial decisions by giving the agency the
first opportunity to correct any error. Id.
The exhaustion requirement, however, is not jurisdictional
and therefore " "is not to be applied inflexibly.' " Id. (quoting
McGee v. United States, 402 U.S. 479, 483, 91 S.Ct. 1565, 1568, 29
L.Ed.2d 47 (1971)). The exhaustion of the administrative remedies
is not required where resort to administrative remedies would be 1)
futile or 2) inadequate. Id. (citing to Smith v. Robinson, 468
U.S. at 1014 n. 17, 1019 n. 22, 104 S.Ct. at 3469 n. 17, 3472 n.
22).
In the amended complaint, plaintiff does not allege that she
has exhausted her administrative remedies. Instead, plaintiff
argues that exhaustion of administrative remedies is not required
in this case because she no longer attends any of the defendant
school districts. This argument was squarely rejected in
Torrie By
and Through Torrie v. Cwayna, 841 F.Supp. 1434 (W.D.Mich.1994). In
that case, an emotionally impaired student and his mother brought
an action against a school district and its employees for alleged
violations of IDEA, Rehabilitation Act, false arrest and false
imprisonment. The student and his mother neither requested an
impartial due process hearing nor filed a complaint with the school
district before filing the action. In responding to the school
district's motion to dismiss based on failure to exhaust
administrative remedies, the plaintiffs argued that exhaustion was
not required under the futility exception because they no longer
lived in the defendant school district. Reasoning that parents'
unilateral act of removing their child from a public school could
not excuse their failure to exhaust administrative remedies, the
court dismissed the action for failure to exhaust remedies.
Torrie, 841 F.Supp. at 1442. The rationale of Torrie is
persuasive. If parents can bypass the exhaustion requirement of
the IDEA by merely moving their child out of the defendant school
district, the whole administrative scheme established by the IDEA
would be rendered nugatory. Permitting parents to avoid the
requirements of the IDEA through such a "back door" would not be
consistent with the legislative intent of the IDEA.
The plaintiff's second argument is equally unpersuasive. The
plaintiff argues there is no point pursuing administrative remedies
because the defendant school districts lack authority to grant the
relief requested, namely money damages. Again, if the plaintiff's
argument is to be accepted, then future litigants could avoid the
exhaustion requirement simply by asking for relief that
administrative authorities could not grant. This goes against the
very reason that we have the exhaustion requirement, which is "[to
prevent] deliberate disregard and circumvention of agency
procedures established by Congress." Teague, 830 F.2d at 160. In
fact, courts that considered this argument have all rejected it.
See Buffolino v. Board of Education of Sachem Central School
District, 729 F.Supp. 240, 247 (E.D.N.Y.1990); Waterman v.
Marquette-Alger Intermediate School District, 739 F.Supp. 361, 368
(W.D.Mich.1990) ("A procedure that may result in any substantial
relief is not futile"); Torrie, 841 F.Supp. at 1442.
Nor does the fact that the plaintiff also seeks money damages
under 42 U.S.C. § 1983 for violations of the IDEA make any
difference. "[W]hen parents choose to file suit under another law
that protects the rights of handicapped children—and the suit could
have been filed under the [IDEA]—they are first required to exhaust
the [IDEA]'s remedies to the same extent as if the suit had been
filed originally under the [IDEA]'s provisions." Mrs. W. v.
Tirozzi, 832 F.2d 748, 756 (2d Cir.1987). As the plaintiff has
failed to exhaust administrative remedies, the plaintiff may not
proceed with her § 1983 claims for violations of the IDEA.
CONCLUSION
Accordingly, the defendants' motion to dismiss (doc. 6) is
GRANTED. The Clerk is directed to dismiss the first amended
complaint with prejudice.