Case: 22-50854 Document: 00516970726 Page: 1 Date Filed: 11/16/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 16, 2023
No. 22-50854 Lyle W. Cayce
____________ Clerk
Kaylee Lartigue,
Plaintiff—Appellant,
versus
Northside Independent School District,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:19-CV-393
______________________________
Before Higginbotham, Smith, and Elrod, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
Appellant Kaylee Lartigue sued the Northside Independent School
District, arguing that the District failed to properly accommodate her hearing
impairment as required by the Americans with Disabilities Act. The district
court granted summary judgment in favor of the District, holding that
Lartigue’s ADA claim was barred by 20 U.S.C. § 1415(l), the “exhaustion
requirement” of the Individuals with Disabilities Education Act. Finding that
the district court erred in its interpretation of § 1415(l), we VACATE the
summary judgment order and REMAND the case to the district court for
further proceedings consistent with this opinion.
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I.
This case concerns two distinct, but linked, statutes. The first is the
Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. 1 Enacted
in 1975, this statute offers federal funds to the states in exchange for providing
a “free appropriate public education” (“FAPE”) to all children with certain
physical or intellectual disabilities. 2 As the Supreme Court previously
explained, “[a]n eligible child . . . acquires a ‘substantive right’ to such an
education once a State accepts the IDEA’s financial assistance.” 3 The
primary vehicle through which a child receives the benefits of their promised
FAPE is called an “individualized education program” (“IEP”). 4 An IEP is
developed by a group of school officials, teachers, and parents and is a
personalized plan that details the “special education and related services”
necessary for the child to meet their educational goals.5 The IDEA provides
for compensatory education as a remedy, but it does not authorize
compensatory damages as a form of relief. 6
The second statute is the Americans with Disabilities Act, 42 U.S.C.
§ 12131 et seq. 7 Passed in 1990, Title II of the ADA protects the rights of all
_____________________
1
20 U.S.C. § 1400 et seq.
2
20 U.S.C. § 1412(a)(1)(A).
3
Fry v. Napoleon Cmty. Sch., 580 U.S. 154, 157 (2017) (citing Smith v. Robinson, 468 U.S.
992, 1010 (1984)). “Compensatory education involves discretionary, prospective injunctive relief
crafted by a court to remedy what might be termed an educational deficit created by an educational
agency’s failure over a given period of time to provide an individualized education program to a
student under IDEA.” D.A. v. Houston Indep. Sch. Dist., 716 F. Supp. 2d 603, 613 (S.D. Tex. 2009),
aff’d sub nom. D.A. ex rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d 450 (5th Cir. 2010)
(citation omitted).
4
Id. at 158.
5
Id.
6
Perez v. Sturgis Public Schools, 598 U.S. 142, 149–50 (2023).
7
42 U.S.C. § 12131 et seq.
2
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individuals with disabilities (not just children) by banning discrimination by
public entities, including schools. 8 The ADA includes a mandate to eliminate
discrimination against individuals with disabilities, and it requires the
Department of Justice to promulgate regulations to implement the ADA. 9
Unlike the IDEA, the ADA authorizes “individuals to seek redress for
violations of their substantive guarantees by bringing suits for injunctive relief
or money damages.” 10
As these two statutes deal with the substantive rights of individuals
with disabilities, there is a natural overlap in coverage. This statutory overlap
has led to some confusion in the courts—namely, when is a claim more
properly brought under the IDEA versus under another anti-discrimination
statute, like the ADA?
The Supreme Court first tried to answer this question in the 1984 case
Smith v. Robinson. 11 There, the Court held that the IDEA is “the exclusive
avenue through which a plaintiff may assert an equal protection claim to a
publicly financed special education.” 12 In doing so, the Court determined
Congress had foreclosed plaintiffs from asserting their right to a FAPE as
promised under the IDEA through other statutory schemes such as Section
504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, and 42 U.S.C. § 1983. 13
But Smith did not last long. Congress quickly responded to the Smith
decision by adopting the Handicapped Children’s Protection Act of 1986,
_____________________
8
Fry, 580 U.S. at 159–60.
9
20 U.S.C. § 12134.
10
Fry, 580 U.S. at 160.
11
468 U.S. 992 (1984).
12
Id. at 1009 (emphasis added).
13
Id.
3
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which “overturned Smith’s preclusion of non-IDEA claims while also adding
a carefully defined exhaustion requirement.” 14 Codified as 20 U.S.C. §
1415(l), the relevant provision of that statute reads:
Nothing in this chapter shall be construed to restrict or limit
the rights, procedures, and remedies available under the
Constitution, the Americans with Disabilities Act of 1990, title
V of the Rehabilitation Act of 1973, or other Federal laws
protecting the rights of children with disabilities, except that
before the filing of a civil action under such laws seeking relief
that is also available under this subchapter, the procedures
under subsections (f) and (g) shall be exhausted to the same
extent as would be required had the action been brought under
this subchapter. 15
The Supreme Court recently explained in Fry v. Napoleon Community
Schools how § 1415(l)’s “exhaustion provision” works. 16 The first part of the
exhaustion provision (up until “except that”) re-affirms Congress’s intent
to not prevent plaintiffs from asserting “claims under [other anti-
discrimination] laws even if, as in Smith itself, those claims allege the denial
of an appropriate public education (much as an IDEA claim would).” 17
However, the second part of the provision (everything after “except that”)
imposes a limit on the “anything goes” regime. 18 It requires a plaintiff suing
under the ADA or other similar laws to first exhaust IDEA’s administrative
procedures in certain circumstances, namely when “seeking relief that is also
_____________________
14
Fry, 580 U.S. at 161.
15
20 U.S.C. § 1415(l) (emphasis added).
16
580 U.S. 154.
17
Id. at 161.
18
Id.
4
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available under” the IDEA. 19 Under Fry, when a lawsuit asserts a denial of a
FAPE, plaintiffs comply with § 1415(l)’s exhaustion requirement by
submitting their case to an IDEA hearing officer prior to suing in federal court
under the ADA. 20
As a result, especially in situations involving children with disabilities
in a school setting, courts must contend with the difficult task of discerning
whether a claim is based on the denial of a FAPE (an IDEA claim) or on a
“failure to accommodate” argument (an ADA claim). The Supreme Court
has provided some helpful guidance. Fry states that “[w]hat matters is the
crux—or, in legal-speak, the gravamen—of the plaintiff’s complaint, setting
aside any attempts at artful pleading.” 21 The Supreme Court instructs that
this examination “should consider substance, not surface,” and that a court
“should attend to the diverse means and ends of the statutes covering
persons with disabilities.” 22
Even if a court determined that a disability discrimination claim was
based on the denial of a FAPE, that is not the end of the inquiry. In Perez, the
Supreme Court further elaborated on the scope of § 1415(l) by answering an
analogous, but different, question than the one in Fry—namely, “whether a
suit admittedly premised on the past denial of a free and appropriate
education may nonetheless proceed without exhausting IDEA’s
administrative processes if the remedy a plaintiff seeks is not one IDEA
provides.” 23 The Supreme Court concluded that a plaintiff requesting
_____________________
19
Id.
20
Id. at 168; 20 U.S.C. § 1415(l).
21
Fry, 580 U.S. at 169.
22
Id. at 170.
23
598 U.S. at 149–50.
5
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compensatory damages for an alleged ADA violation premised on a FAPE
denial was not required to exhaust the IDEA’s administrative processes
because the relief sought (compensatory damages) was “not something
IDEA can provide.” 24
Putting together the text of the IDEA, the relevant precedents (Fry
and Perez), and Congress’s explicit rebuke of Smith, the current state of the
law is as follows: in a suit against a public school for alleged violations of the
ADA or other similar anti-discrimination statutes, the court should first as-
sess whether the gravamen of the complaint concerns the denial of a FAPE
or, instead, is based on disability discrimination. 25 If the complaint does not
concern the denial of a FAPE, then the plaintiff need not got through the
IDEA’s administrative hurdles. 26 On the other hand, if the complaint is pred-
icated on a FAPE denial, then the court must then ask what relief is sought. 27
If the relief sought is not one that the IDEA can provide (such as compensa-
tory damages), then, again, the plaintiff need not go through the IDEA’s ad-
ministrative hurdles. 28 But if the relief sought is of the type that the IDEA
offers, then the plaintiff must fully exhaust the administrative processes as
required by § 1415(l). 29
II.
Appellant Kaylee Lartigue is hearing impaired, uses a hearing aid, and
requires interpretation services. From 2017 to 2019, Lartigue attended high
_____________________
24
Id. at 143.
25
See Fry, 580 U.S. at 168–69.
26
Id.
27
See Perez, 598 U.S. at 149–50.
28
Id.
29
Id.
6
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school at Northside Independent School District’s (“NSID” or the
“District”) John Jay Science and Engineering Academy (the “Academy”),
where she was the only hearing-impaired student. 30 The District recognized
that Lartigue could not fully participate in the Academy’s programming
absent special educational services and assistive technology, and so the
Academy (along with Lartigue and her parents) developed an IEP.
Lartigue argues that, throughout her years at the Academy, the
District failed to properly accommodate her hearing impairment as required
by her IEP. For example, Lartigue alleges that the District repeatedly failed
to provide closed-captioning for films and videos shown in class. Lartigue
also alleges that “the District failed to ensure that two interpreters were
available at all times, such that one interpreter would be available if the other
needed to take a break.” Moreover, Lartigue claims that the “counseling
services” she requested were out in the open hallways of the high school,
thereby depriving her of the kind of confidentiality and privacy required for
counseling to be effective. Lastly, Lartigue argues that the District’s failure
to timely provide her with a Communication Access Realtime Translation
Services for a live debate competition left her unable to fully participate in
the extracurricular activity. Taken together, Lartigue claims that “the
District’s refusals to accommodate [her] hearing impairment left her isolated
from her peers and unable to meaningfully participate in various educational
programs and activities.” Lartigue left the Academy in March 2019 to be
homeschooled.
Parents of NISD students with hearing impairments, including
Lartigue’s parents, originally filed a putative class action in federal court on
_____________________
30
As explained further below, Lartigue was the only student with a hearing impairment at
the Academy, but there were students at other high schools within the District that brought similar
claims against NSID.
7
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April 15, 2019, on behalf of their minor children. The parents brought claims
under the IDEA, the ADA, Section 504, § 1983, the United States and Texas
Constitutions, and Chapter 21 of the Texas Human Resources Code.
However, once Lartigue left NISD to begin homeschooling, her parents
moved to sever their case and opt-out of the class action. The district judge
granted this motion and severed Lartigue’s case.
After the case was severed from the class action, and consistent with
the IDEA’s exhaustion requirement under § 1415(l), Lartigue and her
parents filed a complaint with the Texas Education Agency on May 16, 2019,
contending that the District had failed to provide a FAPE as outlined in
Lartigue’s IEP. Following an administrative hearing, the hearing officer
concluded that the District satisfied the IDEA’s requirements and provided
Lartigue with a FAPE. After these administrative proceedings concluded, the
district court evaluating Lartigue’s claims found that she had satisfied
IDEA’s exhaustion requirement under § 1415(l).
Before the district court, Lartigue amended her complaint twice,
revised her requested remedies, and changed the caption to sue under her
name once she reached the age of majority. As amended, Lartigue alleged
violations of: (1) Title II of the ADA; (2) Section 504 of the Rehabilitation
Act; and (3) the United States and Texas Constitutions. Contrary to the class
action suit, Lartigue did not include an IDEA claim. Furthermore, Lartigue
sought compensatory damages, a form of relief not available under the
IDEA. 31
The District moved to dismiss Lartigue’s case, which the district
court granted in part and denied in part, leaving only Lartigue’s ADA claim.
The District then moved for summary judgment on Lartigue’s ADA claim,
_____________________
31
Perez, 598 U.S. at 149–50.
8
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which the court denied. After the District filed a motion for reconsideration,
the parties filed supplemental briefs, and the district court held a hearing.
Ultimately, the court granted the District’s motion for reconsideration and
dismissed Lartigue’s ADA claim with prejudice. The court’s September 9,
2022, order found that Lartigue did not have a standalone claim under the
ADA because the gravamen of her complaint was the denial of a FAPE. On
April 19, 2023, Lartigue moved for relief from the judgment under Federal
Rule of Civil Procedure Rule 60(b), arguing that the district court’s dismissal
of Lartigue’s ADA claim was a straightforward mistake of law. 32
III.
This Court reviews grants of summary judgment de novo. 33 This
standard continues to apply on motions for reconsideration. 34
A.
The issue before this Court is whether the district court erred in
concluding as a matter of law that a student cannot bring a standalone claim
against a school district under Title II of the ADA if the “gravamen” of the
complaint is a denial of a FAPE. Because the district court’s order is contrary
to the plain text of § 1415(l) and the Supreme Court’s opinions in Fry and
Perez, we find the district court committed reversible error.
The district court started off on the right path but ultimately reached
the incorrect legal conclusion. First, in its initial order denying summary
judgment, the district court correctly found that Lartigue had “exhausted her
_____________________
32
See FED. R. CIV. P. 60.
33
Pioneer Nat. Res. USA, Inc. v. Paper, Allied Indus., Chem. & Energy Workers Int’l Union
Loc. 4-487, 328 F.3d 818, 820 (5th Cir. 2003), opinion modified on denial of reh’g sub nom., 338 F.3d
440 (5th Cir. 2003).
34
Id.
9
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administrative remedies” under § 1415(l) of the IDEA by pursuing her claim
before a Special Education Hearing Officer for the State of Texas. 35 Second,
the district court was correct to find that the gravamen of Lartigue’s
complaint was the denial of a FAPE. Neither of the parties dispute this
finding. And third, the court properly understood that Lartigue’s federal
claims were not precluded by the TEA’s findings because the legal standards
applicable in an IDEA due process hearing and those that apply in a
courtroom for a “failure to accommodate” claim under the ADA were
different. 36
_____________________
35
Section 1415(l) requires that “except that before the filing of a civil action under such
laws seeking relief that is also available under this subchapter, the procedures under subsections (f)
and (g) shall be exhausted to the same extent as would be required had the action been brought under
this subchapter.” 20 U.S.C. § 1415(l). In turn, § 1415(f) establishes the protocol and elements of
procedural due process that are owed whenever complaints are filed with appropriate agency. In
particular, once “a complaint has been received under subsection (b)(6) or (k), the parents or the
local educational agency involved in such complaint shall have an opportunity for an impartial due
process hearing, which shall be conducted by the State educational agency or by the local educational
agency, as determined by State law or by the State educational agency.” 20 U.S.C. § 1415(f)(1)(A).
Subsection (g) governs the right to appeal the findings and decisions rendered in a subsection (f)
hearing. Id. 20 U.S.C. § 1415(g)(1) (“If the hearing required by subsection (f) is conducted by a local
educational agency, any party aggrieved by the findings and decision rendered in such a hearing may
appeal such findings and decision to the State educational agency.”) (emphasis added).
On summary judgment, the district court evaluated whether Lartigue was required to not
only pursue a subsection (f) hearing, but also to appeal any decisions to the state educational agency.
Citing TEX. ADMIN. CODE § 89.1185, the district court found that Texas law provided no avenue by
which Lartigue could appeal her hearing officer’s decision to the Texas Education Agency. After
further determining that “nothing in subsection 1415(l) requires [Lartigue to] appeal to state or
federal court as a prerequisite to administrative exhaustion,” the court found she exhausted her
administrative remedies.
36
The court explained, “the legal standards applied by the hearing officer in Lartigue’s
[sic] due process hearing and the Court in this case are significantly different. The purpose of the
due process hearing was to determine whether NISD provided an educational program reasonably
calculated to enable Lartigue’s [sic.] progress. Lartigue’s [sic] ADA claim turns on whether NISD
discriminated against her on account of her disability. That issue was not considered in the due
process hearing. Therefore, the Court finds Lartigue’s [sic] ADA claim is not precluded by the due
process hearing and is not barred by the collateral estoppel doctrine.”
10
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However, the district court erred when it held that Lartigue did not
have a standalone claim under the ADA because the gravamen of her
complaint was the denial of a FAPE. Under the plain text of § 1415(l),
“[n]othing in [the IDEA]” “restrict[s] or limit[s]” Lartigue’s ability to
assert her claim “under . . . the Americans with Disabilities Act.” 37 As Fry
explained, “the IDEA does not prevent a plaintiff from asserting claims
under [other federal] laws”—including “the ADA”—“even if . . . those
claims allege the denial of an appropriate public education (much as an IDEA
claim would).” 38
Under Fry, finding that the gravamen of an ADA complaint is the
denial of a FAPE only leads to the conclusion that a plaintiff must exhaust
the state’s administrative remedies before filing suit in federal court. 39 Here,
because the district court properly found that the gravamen of the complaint
was the denial of a FAPE, Lartigue was only required to exhaust the state’s
administrative remedies before filing suit in the district court. And the parties
agree that Lartigue did just that. The district court should have stopped
there, after finding that Lartigue had met the exhaustion requirement of §
1415(l). Instead, the district court stretched the bounds of Fry to bar
Lartigue’s claim altogether.
The district court stated that while “Fry’s holding does not directly
apply to this case . . . its reasoning does apply.” Under the district court’s
reading of Fry, “[if] the gravamen of Lartigue’s complaint is a denial of a
FAPE, she has no stand alone [sic] ADA claim.” This is an incorrect
statement of the law on two fronts. First, Fry’s holding does directly apply to
_____________________
37
20 U.S.C. § 1415(l).
38
Fry, 580 U.S. at 161.
39
See id. at 168–69.
11
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this case; as explained above, Lartigue complied with § 1415(l)’s exhaustion
requirement. Second, the district court described Fry’s reasoning as
motivated by a concern with “plaintiffs [evading] IDEA’s statutory
limitations through artful pleading.” Fair enough, but this concern is
irrelevant here, as Lartigue evades no statutory limitations by filing her ADA
complaint. The only relevant statutory limitation is § 1415(l)’s exhaustion
requirement which Lartigue fulfilled. In other words, Lartigue is not
attempting to “resurrect her abandoned IDEA claim” through artful
pleading—in fact, her amended complaint abandons her IDEA claim—she is
merely exercising her right under the ADA to pursue a failure to
accommodate claim against her school district.
In any event, Perez forecloses the district court’s interpretation of
§ 1415(l). “The Supreme Court’s recent decision in Perez provides
unmistakable new guidance.” 40 In that case, the plaintiff’s ADA claim was
“admittedly premised on the [school district’s] past denial of a free and
appropriate education.” 41 Notwithstanding that the gravamen of the
plaintiff’s complaint was the denial of a FAPE and that the plaintiff never
exhausted the IDEA’s administrative procedures, the Court allowed the
plaintiff’s standalone ADA claim to proceed because the relief sought
(compensatory damages) was not one the IDEA provided. 42
Similarly, in this case, it is undisputed that the gravamen of Lartigue’s
claim is the denial of a FAPE. Like the plaintiff in Perez, Lartigue seeks
compensatory damages, relief which the IDEA does not provide. As such, to
the extent Lartigue seeks a form of relief that that the IDEA does not offer,
_____________________
40
J.W. v. Paley, No. 21-20671, 2023 WL 5526787, at *4 (5th Cir. Aug. 28, 2023).
41
Perez, 598 U.S. at 150.
42
Id.
12
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Perez is clear that Lartigue was not even required to exhaust her administrative
remedies under § 1415(l) of the IDEA. Like in Perez then, nothing in the text
of § 1415(l) or Fry forecloses Lartigue’s ability to pursue her standalone ADA
claim even when it is “admittedly premised” on the denial of a FAPE.
B.
The District now offers two alternative grounds for affirmance: one
based on issue preclusion, and another related to damages. Neither are
convincing.
First, the District argued that Lartigue’s “‘collateral attack’ on the
findings of the due process hearing officer are [sic] barred by the collateral
estoppel doctrine.” In other words, the District believes the state hearing
officer’s finding that Lartigue was not denied her FAPE precludes Lartigue’s
ADA claim in federal court. The district court already rejected this issue
preclusion argument twice, and again the District’s argument fails on appeal.
As the district court correctly explained:
The legal standards applied by the hearing officer in Lartigue’s
due process hearing and the Court in this case are significantly
different. The purpose of the due process hearing was to
determine whether NISD provided an educational program
reasonably calculated to enable Lartigue’s progress. Lartigue’s
ADA claim turns on whether NISD discriminated against her
on account of her disability. That issue was not considered in
the due process hearing. Therefore, the Court finds Lartigue’s
ADA claim is not precluded by the due process hearing and is
not barred by the collateral estoppel doctrine.
Perez’s emphasis on “remedies” is also instructive here. In Perez, the
plaintiff pursued his claims through the state’s administrative proceedings
and ultimately settled the case, thereby securing forward-looking relief in the
13
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form of compensatory education. 43 Although the plaintiff in Perez obtained
forward-looking relief, he was not foreclosed from bringing his ADA claim in
federal court because he was seeking a different form of relief—namely,
compensatory damages for the harms suffered in the past. 44 Similarly, in this
case, Lartigue is seeking compensatory damages for the harms she suffered
during her time at the Academy and is no longer seeking forward-looking
relief. Lartigue, pursuant to Perez, cannot then be estopped from pursuing
this claim for compensatory damages simply because she followed the
procedures set out in § 1415(l).
In sum, because the issues involved are different (as explained by the
district court), Congressionally mandated administrative proceedings are
inherently non-preclusive (as explained by the Supreme Court), and Lartigue
seeks a different form of relief (compensatory education versus
compensatory damages), Appellee’s issue preclusion argument does not
provide valid alternative grounds to uphold the district court’s grant of
summary judgment.
Second, the District claims that Lartigue has no recoverable damages
for her ADA claim. This argument is based on the Supreme Court’s recent
decision in Cummings v. Premier Rehab Keller, P.L.L.C., which found that
emotional distress damages are not recoverable under Section 504 of the
Rehabilitation Act and under Section 1557 of the Patient Protection and
Affordable Care Act, two statutes enacted under the Spending Clause. 45 The
Fifth Circuit expressly declined to decide whether Cummings extends to
claims under Title II of the ADA which, unlike Section 504 of the
_____________________
43
Perez, 598 U.S. at 145.
44
See id. at 147.
45
142 S. Ct. 1562 (2022).
14
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Rehabilitation Act and Section 1557 of the Affordable Care Act, is not a
Spending Clause statute. Moreover, the district court specifically declined to
address this damages argument, which itself counsels against this Court
entertaining the argument for the first time on a motion for reconsideration.
On remand, the district court may consider this issue if need be.
*****
We cannot affirm the district court’s grant of summary judgment, as
it would return this Circuit to the Smith era—an erroneous decision that
would have “consequences . . . for a great many children with disabilities and
their parents,” 46 and one which Congress directly abandoned by enacting
§ 1415(l). Because the district court’s order was contrary to the text of
§ 1415(l) and foreclosed by the Supreme Court’s pronouncements in Fry and
Perez, we vacate the grant of summary judgment and remand this case to the
district court for further proceedings consistent with this opinion.
_____________________
46
Id. at 146.
15
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Jerry E. Smith, Circuit Judge, dissenting:
I respectfully dissent from the majority’s detailed, well-crafted
opinion. We can affirm on any ground that appears in the record. I would
affirm the summary judgment on a ground that the school district raised but
the district court rejected: Recovery is barred by collateral estoppel.
Dismissal of Lartigue’s claim is proper because the issues of fact that
make up her ADA claim are the same as those in her already-decided IDEA
claim. She does not get a second bite at the apple. 1 The theories of liability
making up her instant ADA suit rest on questions of fact that have already
been decided in the IDEA administrative hearing.
The administrative hearing officer found against Lartigue and
determined that NISD did provide her with a FAPE. That is, the hearing
officer determined that NISD adequately (1) provided her with closed
captioning for audio-visual content, (2) ensured the availability of multiple
interpreters, (3) provided private counseling, and (4) secured
Communication Access Realtime Translation Services (“CARTS”) for her
debate activity. Lartigue never challenged the hearing officer’s
determinations in state or federal court. See 20 U.S.C. § 1415(i)(2)(A). That
is a final and binding judgment. Powers v. Northside Indep. Sch. Dist., 951 F.3d
298, 310 (5th Cir. 2020) (holding a TEA hearing officer’s findings were
entitled to preclusive effect); 20 U.S.C. § 1415(i)(1)(B).
Collateral estoppel applies if (1) the identical issue was previously
adjudicated; (2) the issue was actually litigated; and (3) the previous
determination was necessary to the decision. Pace v. Bogalusa City Sch. Bd.,
_____________________
1
“You only get one shot, do not miss your chance to blow—[t]his opportunity
comes once in a lifetime, yo.” Eminem, Lose Yourself, on 8 Mile: Music from and Inspired
by the Motion Picture (2002).
16
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403 F.3d 272, 290 (5th Cir. 2005). To satisfy the first requirement for collateral
estoppel, two things must be true: Both (a) the facts and (b) the legal standard
used to assess those facts must be the same in both proceedings. Id. (quoting
Southmark Corp. v. Coopers & Lybrand, 163 F.3d 925, 932 (5th Cir. 1999)).
The second and third requirements for collateral estoppel are easily
met: (2) The parties fully litigated Lartigue’s FAPE claims in the
administrative hearing, and (3) determining whether Lartigue received a
FAPE was the whole point of the hearing. Prong (a) of the first requirement
is also met because the operative facts are identical between the TEA hearing
and this case.
Prong (b) of the first requirement is met as well. The district court
incorrectly believed the legal standards were different because “the purpose
of the [administrative] hearing was to determine whether NISD provided an
educational program reasonably calculated to enable Lartigue’s progress.
Lartigue’s ADA claim turns on whether NISD discriminated against her on
account of her disability.” That abstract distinction, by itself, is not enough
to find that collateral estoppel does not apply. In-circuit precedent confirms
that it is the legal standard raised by the theory of liability advanced in the
subsequent ADA claim that determines whether the prior FAPE denial
determination has preclusive effect. Id. (applying collateral estoppel to bar
ADA claim premised on issues of fact resolved in prior IDEA proceeding).
In Pace, the plaintiff’s IDEA and ADA suits both claimed that “parts
of the Bogalusa High School campus [we]re inaccessible to him.” Id. at 291.
The prior IDEA suit determined that the high school provided plaintiff with
a FAPE because it met the accessibility standards required under IDEA. Id.
Pace held that that determination was entitled to preclusive effect under the
doctrine of collateral estoppel because “Pace present[ed] no argument that
the accessibility standards for new construction of school buildings under the
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ADA or § 504 [were] more demanding[ 2] or even different from the
standards required under the 1997 amendment to the IDEA.” Id. at 292.
Pace thus stands for the proposition that a legal standard is “identical” for
purposes of collateral estoppel when the legal standard used to determine the
existence of a fact in the subsequent suit is identical to—or more demanding
than—that of the prior proceeding. 3
Here, the ADA is the more demanding standard: “To establish a
claim for disability discrimination, in the education context, something more
than a mere failure to provide the FAPE required by IDEA must be shown.” 4
As the district court carefully explained, “all of the accommodations that
Lartigue claims the School District failed to provide were in some way
associated with its obligation to provide a FAPE.” For Lartigue to prevail on
the theories of liability advanced in her ADA claim, the district court would
have to hold, implicitly, that NISD denied Lartigue a FAPE. But that would
require the district court to ignore the administrative hearing officer’s final
determinations, which bind Lartigue. See Powers, 951 F.3d at 310. Conse-
quently, collateral estoppel bars her ADA claim.
Lartigue could have pursued claims under the Rehabilitation Act or
the ADA that are “predicated on other theories of liability,” and those would
_____________________
2
In Pace, a “more demanding” accessibility standard would lower the bar for
liability in the ADA claim relative to the IDEA claim.
3
And that only makes common sense. Say there are three rides at an amusement
park: Riders must be 4 feet tall for Rides A and B; 5 feet for Ride C. A kid who is too short
for Ride A is obviously too short for Rides B and C.
4
Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 995 (5th Cir. 2014)
(quoting D.A. ex rel. Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 454 (5th Cir. 2010))
(cleaned up); see also Delano-Pyle v. Victoria Cnty., 302 F.3d 567, 575 (5th Cir. 2002)
(requiring intentional discrimination to recover compensatory damages under Title II of
the ADA).
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not be “precluded by a determination that the student has been provided an
IDEA FAPE.” Lance, 743 F.3d at 993. 5 But she did not pursue them.
Instead, her theories of liability under the ADA all rely on the premise that
NISD did not provide her with a FAPE. That includes her assertion that
NISD’s failure to provide CARTS for her debate activity is a non-FAPE
related accommodation. 6 Not only was the CARTS accommodation
“undeniably part of a student’s academic experience” and thus part of her
FAPE claim, but, as the district court said, she “raise[d] her CARTS request
_____________________
5
For example, “a peer-on-peer harassment claim is not necessarily predicated on
the denial of FAPE.” Lance, 743 F.3d at 993.
6
Plaintiff’s reply brief implies the hearing officer did not determine whether NISD
adequately provided CART services for Lartigue’s debate competition. According to the
brief, the hearing officer found that “Lartigue received the requisite educational benefit
because she ‘was still able to participate in [other] debate competitions and other
extracurricular activities.’” There’s only one problem—the briefing badly misrepresents
the record. Here’s what the hearing officer actually said:
The ARD Committee was not aware Student would require CART
services to participate in Congress debate during the May 2018 ARD
meeting. That need arose during the fall of 2018. The ARD Committee
convened and approved CART services in November 2018 after the need
arose. Student began using the CART services in January 2019 and even
participated in Congress debate competitions in the spring. Throughout
that time, Student was participating in competitions in two other forms of
debate with two ASL interpreters provided by the District present. She
also participated in other extracurricular activities—including volleyball,
JROTC, and she started a sign language club—with the assistance of ASL
interpreters provided by the District.
The ARD Committee adjusted Student’s IEP once it knew of the need
to do so. Even if it had not, Student was still able to participate in debate
competitions and other extracurricular activities without the use of CART
services “to the extent required to confer educational benefit,” a fact
conceded by Petitioner. See Rettig v. Kent City Sch. Dist., 788 F.2d 328,
332 (6th Cir. 1986). Thus, the District fulfilled its responsibilities in regard
to the debate competition specifically and extracurricular activities more
generally.
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in her administrative hearing—and the hearing officer found the School
District’s response to her request to be consistent with its FAPE
obligations.” In sum, all of Lartigue’s ADA theories of liability depend on
NISD’s denying her a FAPE.
* * * * *
The district court’s conclusion was correct, but its reasoning was not.
Lartigue’s ADA claim should be dismissed with prejudice because it is barred
by collateral estoppel. Section 1415(l) has nothing to do with the disposition
of this case.
Because this court should use an alternate ground and affirm the
summary judgment, I respectfully dissent.
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