C.N. Ex Rel. J.N. v. Willmar Public Schools, Independent School District No. 347

COLLOTON, Circuit Judge,

concurring.

C.N. was a special education student at the Lincoln Elementary School in the Will-mar Public Schools from kindergarten through the third grade. She alleges that a special education teacher at the Lincoln school abused her physically and emotionally during that time, and that the school district deprived her of the free appropriate public education to which she is entitled under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(b)(6), (f), (i)(2)(A). C.N. asserts that she left the Lincoln school in November 2006 to avoid further abuse, and completed the third grade at a Catholic school in Atwater, Minnesota. She enrolled in the Atwater public school district for the fourth grade in the fall of 2007. In October 2007, C.N. filed a complaint with the Minnesota Department of Education alleging that the Willmar school district denied her a free appropriate public education under the IDEA while she attended Lincoln. She sought compensatory education services to make up for the educational deprivations that she allegedly suffered. See Miener ex rel. Miener v. Missouri, 800 F.2d 749, 754 (8th Cir.1986).

This court held in Thompson ex rel. Buckhanon v. Board of the Special School District No. 1, 144 F.3d 574, 578-79 (8th Cir.1998), that a Minnesota student did not state a cause of action against a school district under the IDEA for failing to provide a free appropriate public education, because the student did not request a due *636process hearing under § 1415(f) until after he left the district and enrolled in another school. In this case, an administrative law judge for the State of Minnesota dismissed C.N.’s claim under the IDEA based on Thompson, because C.N. did not file her complaint until after she left Willmar and enrolled in school at Atwater. The district court dismissed C.N.’s claim under the IDEA on the same ground.

Minnesota law has changed since Thompson, and it now provides that a due process hearing must be conducted by the State rather than by the school district in which the student is enrolled. Minn.Stat. § 125A.091, Subd. 12. Under the present system, the State presumably has authority to order compensatory relief from a school district in which the student previously was enrolled. See Minn. R. 3525.4110, Subp. 2(A)(3). To the extent that Thompson rested on the lack of authority for a new school district to order relief from a former school district, that rationale likely has been superseded by statute and rule.

The court’s opinion correctly observes, however, that the rationale of Thompson for denying the student’s claim against his former district was not so limited. Rather, Thompson also reasoned that “[t]he purpose of requesting a due process hearing is to challenge an aspect of a child’s education and to put the school district on notice of a perceived problem.” 144 F.3d at 579. The court explained that “[ojnce the school district receives notice, it has the opportunity to address the alleged problem.” Id. Even though a hearing officer acting on behalf of the State of Minnesota now may have authority to order a former school district to provide equitable relief, see Minn. R. 3525.4110, Subp. 2(A)(3), the “notice” rationale of Thompson still prevails. See M.M. ex rel. L.R. v. Special Sch. Dist. No. 1, 512 F.3d 455, 460-61 (8th Cir.2008).

C.N. argues that the notice requirement of Thompson is created “out of whole cloth,” and that we should abandon it. It is true that the statute does not include an express requirement that a student provide notice to a school district, or request a due process hearing, as a precondition to obtaining equitable relief, except in the case of reimbursement for private school placement. See 20 U.S.C. § 1412(a)(10)(C)(iii). Other courts have recognized, however, that because equitable considerations are relevant to fashioning relief under the IDEA, see Sch. Comm. of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 374, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985), the courts also may establish equitable preconditions to relief. The Second Circuit observed, for example, that “courts have held uniformly that reimbursement is barred where parents unilaterally arrange for private educational services without ever notifying the school board of their dissatisfaction with their child’s IEP [individualized education plan].” M.C. ex rel. Mrs. C, 226 F.3d 60, 68 (2d Cir.2000); see also Town of Burlington v. Dep’t of Educ. for Mass., 736 F.2d 773, 799 (1st Cir.1984) (recognizing a reasonable distinction “between a unilateral parental transfer made after consultation with the school system, yet still an action without the system’s agreement, and transfers made truly unilaterally, bereft of any attempt to achieve a negotiated compromise and agreement”). Thompson is best understood as applying a similar equitable consideration that requires notice to the school district of an alleged deficiency, and an opportunity to resolve the problem, before a student may obtain relief under the IDEA.

C.N. contends that if this court adheres to the judicially-created notice require*637ment of Thompson, then the court should recognize an exception when a student shows that continued enrollment in the school district likely would result in physical harm or serious emotional harm to the student. She notes that when Congress, in the context of private school reimbursement, “codif[ied] the previously recognized discretion of a court to reduce or bar reimbursement where parents fail to raise the appropriateness of an IEP in a timely manner,” M.C., 226 F.3d at 69 n. 9, the statute also included exceptions. Notice is not required for private school reimbursement where the public school prevented the parent from providing notice, where compliance with the notice requirement “would likely result in physical harm to the child,” or, in the discretion of the court, where compliance with the notice requirement “would likely result in serious emotional harm to the child.” 20 U.S.C. § 1412(a)(10)(C)(iv). C.N. argues that the equitable Thompson rule should be subject to similar exceptions.

I agree with the court, on this record, that no exception to Thompson is warranted, because C.N. has not pleaded facts that plausibly support a reasonable inference that continued enrollment at the Willmar school during the course of a due process hearing under the IDEA was likely to result in physical harm or serious emotional harm. See ante, at 632 n. 8; Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The court’s decision, however, deals only with the facts of this action, ante, at 632 n. 8, and does not foreclose the recognition of an equitable exception to the judicially-created Thompson rule on an appropriate set of facts. Nor does the decision in M.P. ex rel. K. v. Independent School District No. 721, 326 F.3d 975 (8th Cir.2003), preclude an exception to Thompson. The court in M.P. never considered how the Thompson notice requirement should apply in cases of likely physical or serious emotional harm. See M.P., 326 F.3d at 980-81. Although the facts in M.P. might have supported an argument for an exception to Thompson, the point was not raised by the appellant or resolved by the court, and the decision is therefore not controlling on this question. See Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925) (“Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”).

In sum, while Thompson creates an equitable requirement that a student must request a due process hearing under the IDEA while still enrolled in the allegedly offending school district, this court has not considered the appropriateness of an exception to the notice requirement where continued enrollment likely would result in physical harm or serious emotional harm to the child. It seems unlikely that Congress contemplated that a student in that situation must either (1) forfeit equitable remedies to which the child is entitled under the IDEA by leaving the offending district to avoid physical or serious emotional harm, or (2) remain in an abusive environment that is likely to result in physical or serious emotional harm in order to pursue these equitable remedies. I concur on the understanding that the parameters of the Thompson rule in this context remain open for consideration.