Lartigue v. Northside Indep

Case: 22-50854 Document: 123-1 Page: 1 Date Filed: 03/26/2024

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
March 26, 2024
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:
Our prior panel opinion, Lartigue v. Northside Independent School
District, 86 F.4th 689 (5th Cir. 2023), is WITHDRAWN and the following
opinion is SUBSTITUTED therefor:
Appellant Kaylee Lartigue sued the Northside Independent School
District in federal court, arguing that Northside failed to properly
accommodate her hearing impairment as required by the Americans with
Disabilities Act. The district court granted summary judgment in favor of
Northside, holding that the Supreme Court’s decision in Fry v. Napoleon
Community Schools, which considered 20 U.S.C. § 1415(l), the “exhaustion
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No. 22-50854

requirement” of the Individuals with Disabilities Education Act, barred
Lartigue’s standalone ADA claim. Finding that the district court erred in its
interpretation of Fry and § 1415(l), we VACATE the summary judgment
order and REMAND the case to the district court for further proceedings
consistent with this opinion.
I.
This controversy implicates 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 “An eligible child
. . . acquires a ‘substantive right’ to such an education once a State accepts
IDEA’s financial assistance.”3 The primary vehicle for delivery of the
benefits of the promised FAPE is an “individualized education program”
(“IEP”). An IEP is a personalized plan detailing the “special education and
related services” necessary for the child to meet their educational goals.
Developed by the collaborative efforts of parents and school,4 it strikes at the
difficulties faced by children with disabilities in a school setting. Footed on

_____________________
1
20 U.S.C. § 1400 et seq.
2
20 U.S.C. § 1412(a)(1)(A).
3
Fry v. Napoleon Cmty. Schs., 580 U.S. 154, 158 (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.” 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
Fry, 580 U.S. at 158.

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the Spending Clause, the IDEA’s remedy is compensatory education, not
compensatory damages.5
The second statute is the Americans with Disabilities Act, 42 U.S.C.
§ 12131 et seq.6 Footed on the 14th Amendment, Title II of the ADA protects
the rights of all individuals with disabilities, banning discrimination by public
entities, including schools.7 Its mandate is to eliminate discrimination against
individuals with disabilities, and the Department of Justice promulgates
implementing regulations.8 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.”9
As both statutes provide substantive rights to individuals with
disabilities, there can be an overlap in coverage, an overlap breeding
uncertainty in defining their proper domains. The Supreme Court turned to
this task in Smith v. Robinson,10 holding that the IDEA is “the exclusive avenue
through which a plaintiff may assert an equal protection claim to a publicly
financed special education,”11 and that 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
(“Section 504” or the “RA”), 29 U.S.C. 794, or 42 U.S.C. § 1983.12

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5
Luna Perez v. Sturgis Public Schools, 598 U.S. 142, 149–50 (2023).
6
42 U.S.C. § 12131 et seq.
7
Fry, 580 U.S. at 159–60.
8
20 U.S.C. § 12134.
9
Fry, 580 U.S. at 160.
10
468 U.S. 992 (1984).
11
Id. at 1009 (emphasis added).
12
Id.

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Congress quickly responded to Smith with the Handicapped
Children’s Protection Act of 1986, which “overturned Smith’s preclusion of
non-IDEA claims while also adding a carefully defined exhaustion
requirement.”13 Codified as 20 U.S.C. § 1415(l), its relevant provision 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.14
Then in Fry v. Napoleon Community Schools, the Supreme Court
explained the exhaustion provision.15 The first part of the provision (up until
“except that”) re-affirms Congress’s intent to allow plaintiffs to assert
“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).”16 However, the second part of the provision
(everything after “except that”) imposes a limit on the “anything goes”
regime.17 It requires a plaintiff suing under the ADA or other similar laws to
first exhaust the IDEA’s administrative procedures in certain circumstances,

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13
Fry, 580 U.S. at 161.
14
20 U.S.C. § 1415(l) (emphasis added).
15
580 U.S. 154 (2017).
16
Id. at 161.
17
Id.

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namely when “seeking relief that is also available under” the IDEA.18 Under
Fry, in bringing a FAPE claim, plaintiffs must 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.19
As a result, especially in situations involving children with disabilities
in a school setting, courts are tasked with discerning whether a claim rests on
the denial of a FAPE (an IDEA claim) or the “failure to accommodate” (an
ADA claim) to determine whether administrative exhaustion is first required.
The Supreme Court has provided helpful guidance. Fry explains 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.”20 The Court further
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.”21
And even if a court determines that a disability discrimination claim is
based on the denial of a FAPE, it is not the end of the inquiry. In Perez, a
unanimous 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.”22 The Court concluded that a plaintiff requesting compensatory

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18
Id.
19
Id. at 168; 20 U.S.C. § 1415(l).
20
Fry, 580 U.S. at 169 (emphasis added).
21
Id. at 170.
22
598 U.S. at 149–50.

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damages under the ADA for the denial of a FAPE was not required to exhaust
the IDEA’s administrative processes because the relief sought,
compensatory damages, was “not something IDEA can provide.”23
Putting together the text of the IDEA, the relevant precedent (Fry and
Perez), and Congress’s explicit rebuke of Smith in enacting § 1415(l), the
current state of the law is that in a suit against a public school for alleged
violations of the ADA or similar anti-discrimination statutes, the court
should first assess whether the gravamen of the complaint is the denial of a
FAPE or disability discrimination.24 If the complaint is not the denial of a
FAPE, the plaintiff need not clear the IDEA’s administrative hurdles.25 On
the other hand, if the complaint is predicated on a FAPE denial, the question
turns to the relief sought.26 And if the relief sought is not one that the IDEA
can provide, such as compensatory damages, the plaintiff need not exhaust
the IDEA’s administrative hurdles.27 But if the relief sought is offered by the
IDEA, a plaintiff must fully exhaust the administrative processes as required
by § 1415(l).28
II.
Appellant Kaylee Lartigue is hearing impaired, uses a hearing aid, and
requires interpretation services. From 2017 to 2019, Lartigue attended high
school at Northside Independent School District’s (“NSID”) John Jay
Science and Engineering Academy (the “Academy”), where she was the
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23
Id. at 143.
24
See Fry, 580 U.S. at 168–69.
25
Id.
26
See Perez, 598 U.S. at 149–50.
27
Id.
28
Id.

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only hearing-impaired student.29 Recognizing that Lartigue could not fully
participate in the Academy’s programming absent special educational
services and assistive technology, Northside developed an IEP (with Lartigue
and her parents).
Lartigue alleges that, throughout her years at the Academy, Northside
failed to properly accommodate her hearing impairment as required by the
ADA by failing to: (1) provide her with Communication Access Realtime
Translation (“CART”) services for her use during class, and during her
training and participation in debate tournaments; (2) furnish copies of notes
for all of her academic classes; (3) supply two interpreters for all classes and
extracurricular activities in line with professional standards of care; (4)
arrange Consultative AI Teacher Services; (5) provide closed-captioning
services for in-class films and videos; (6) furnish AI Counseling Services in a
consistent and private fashion; (7) supply group counseling, a service all
other students at a regional school for the deaf were given; (8) designate a
private “quiet space” to cut out multiple voices and stimuli; (9) provide an
interpreter on the bus to assist her during normal school days; and (10)
implement a “flashing lights” system during the school’s emergency drills,
leaving her unaware of a called emergency. Lartigue alleged that, as a result
of these failures, she experienced panic attacks, could not participate in
certain debate competitions, that she suffered alone, and that her physical
and emotional state deteriorated as a result. Taken together, Lartigue claims
that “[Northside’s] refusals to accommodate [her] hearing impairment left
her isolated from her peers and unable to meaningfully participate in various

_____________________
29
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
Northside Independent School District that brought similar claims against NSID.

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educational programs and activities,” forcing Lartigue to leave the Academy
in March 2019 to be homeschooled.
This procedural history traverses federal and state forums. Lartigue
first sought relief in federal court in 2019 as a member of a putative class
action. The class alleged violations of the IDEA, the ADA, and the
Rehabilitation Act of 1973. The complaint was amended several times as
other members of the class settled their complaints. To be clear, this April
2019 federal suit is the same case now before us on appellate review.
On May 16, 2019, one month after seeking relief in federal court,
Lartigue filed her request for a hearing before a Special Education Hearing
Officer of the Texas Education Agency (“TEA”), consistent with the
exhaustion requirement of § 1415(l). Lartigue alleged, as in her extant federal
complaint, violations of the IDEA, the ADA, and the Rehabilitation Act of
1973, as well as violations of the United States Constitution. Northside
responded, arguing at the outset of the state administrative proceedings that
the Hearing Officer did not have jurisdiction over Lartigue’s non-IDEA
claims. The Hearing Officer agreed, and limited his ultimate Conclusions of
Law to Lartigue’s IDEA claim.
The state hearing was held on August 2019, and on October 14, 2019,
the Texas Hearing Officer issued his decision concluding that Lartigue
received the FAPE required by the IDEA, with the following relevant factual
findings: (1) after the November 16, 2018 Admission, Review and Dismissal
Committee meeting, Lartigue was provided and used CART services starting
in January 2019; (2) the “vast majority of the time, [Lartigue had] both [ASL]
interpreters”; (3) Lartigue was provided 60 minutes per year of “itinerant
support” from a certified deaf education instructor; (4) Northside provided
Lartigue with 45 minutes per month of counseling; and (5) Lartigue’s
interpreters did not accompany her on the bus, and while not a denial of her

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FAPE, moving forward she should be provided with an interpreter on the
bus.
Lartigue’s federal suit continued and as members of the class settled
their claims, she became the sole remaining plaintiff.30 After amending her
complaint twice, revising her requested remedies, and changing the caption
to sue under her name once she reached the age of majority, Lartigue alleged
violations of: (1) Title II of the ADA; (2) Section 504 of the Rehabilitation
Act of 1973; and (3) the United States Constitution, leaving her operative
complaint with only non-IDEA claims, seeking compensatory damages, a
form of relief not available under the IDEA.31
The federal district court later dismissed Lartigue’s Section 504 and
constitutional claims, leaving only Lartigue’s ADA claim. The district court
rejected Northside’s argument that, under Fifth Circuit precedent,
Lartigue’s ADA claim was “precluded” by the state Hearing Officer’s FAPE
determination under the IDEA.32

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30
In fall 2019, all members of the class but Lartigue moved to dismiss their claims
as they had settled their individual claims through mediation. On the same date, Lartigue
filed a motion requesting her complaint be severed from the original class action, as
Lartigue was no longer attending school and therefore lacked standing to pursue the class
action. Northside responded that they did not oppose the request and indicated their
agreement that Lartigue could “file an amended complaint with the same cause number
reflecting the changed case style with only themselves listed as Plaintiffs.”
31
Perez, 598 U.S. at 149–50.
32
Northside argued that Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 289–90 (5th
Cir. 2005) required that Lartigue’s ADA claim was issue precluded by the Hearing
Officer’s findings under the IDEA. The district court disagreed, noting that it “cannot rely
on the hearing officer’s findings in this case because the administrative record is not before
it to review,” and could not “apply an issue-preclusion analysis to Lartigue’s ADA claim
because it has not affirmed the hearing officer’s IDEA decision—nor [did] it have the
opportunity to do so.”

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Northside then moved for summary judgment on Lartigue’s ADA
claim, which the court denied. After Northside filed a motion for
reconsideration, the parties filed supplemental briefs, and the district court
held a hearing. Ultimately, the district court granted Northside’s motion for
reconsideration and dismissed Lartigue’s ADA claim with prejudice. It is
significant that the district court’s September 9, 2022 order affirmed its prior
finding that that Lartigue’s suit was not barred by issue preclusion. He rather
found that Lartigue could not maintain a standalone ADA claim 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.33 Lartigue timely appealed
the district court’s dismissal of her ADA claim on September 28, 2022.
III.
The essential question before this Court is whether Lartigue’s
unsuccessful IDEA complaint brought before the Texas Education Agency
now precludes her ADA claim in federal court, whether that be because of
exhaustion, collateral estoppel, or, as the district court found, because Fry
prohibits standalone ADA claims based on the denial of a FAPE. We find that
Lartigue’s ADA claim is not precluded by the proceedings before the TEA
and that she may proceed with her ADA claim in federal court.

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33
See Fed. R. Civ. P. 60.

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A.
This Court reviews grants of summary judgment and motions for
reconsideration de novo.34 We first conclude that the district court correctly
found Lartigue had exhausted her administrative remedies under § 1415(l) of
the IDEA by pursuing her claim before the Special Education Hearing
Officer. Under Fry, plaintiffs must generally comply with 20 U.S.C.
§ 1415(l)’s exhaustion requirement if the “gravamen” of their complaint is
based on the denial of a FAPE.35 The district court determined the gravamen
of Lartigue’s complaint was the denial of a FAPE, a finding no party disputes
on appeal. Under Fry then, Lartigue would have been required to exhaust the
state’s administrative remedies before filing suit in the district court seeking
relief under the IDEA. The parties agree that Lartigue exhausted these
remedies.
Although Lartigue exhausted her IDEA claim, Perez makes clear that
she was not required to do so in order to pursue her separate ADA claim.36 In
Perez, the plaintiff alleged he was denied a FAPE and pursued his claims
through the state’s administrative proceedings until he settled with the
school district and secured forward-looking relief in the form of
compensatory education.37 Perez then brought suit in federal court, seeking
compensatory damages for violations of the ADA. The Supreme Court
allowed Perez’s ADA claim to proceed, concluding that the IDEA’s
exhaustion requirement applied only when plaintiffs sought the same relief
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34
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).
35
Fry, 580 U.S. at 169.
36
Perez, 598 U.S. at 147–151.
37
Id. at 145.

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under the IDEA and the secondary anti-discrimination law.38 Because Perez
sought compensatory damages under the ADA, damages unavailable under
the IDEA, the Court held he was not required to first exhaust his claim before
the administrative agency.39
Like Perez, Lartigue seeks compensatory damages unavailable under
the IDEA. Like Perez, Lartigue was not required to exhaust her claims before
the administrative agency. Section 1415(l) does not bar Lartigue’s suit.
B.
The second question is whether, as Northside argues, Lartigue’s
unsuccessful IDEA claim precludes an ADA claim premised on the same
allegedly discriminatory conduct. Northside argues 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, Northside asserts
that the state Hearing Officer’s finding that Lartigue was not denied her

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38
Id. at 147–48 (“The statute’s administrative exhaustion requirement applies only
to suits that ‘see[k] relief ... also available under’ IDEA. And that condition simply is not
met in situations like ours, where a plaintiff brings a suit under another federal law for
compensatory damages—a form of relief everyone agrees IDEA does not provide.”)
(alteration in original).
39
Id. at 151. Nor does Texas impose an obligation for Lartigue to appeal the Hearing
Officer’s finding, signaling that Lartigue is not attempting to avoid any such obligation by
seeking relief in federal court. As the district court noted, “Texas does not provide an
aggrieved party the opportunity to appeal a hearing officer’s decision to the Texas
Education Agency; the decision is directly appealable by civil action in state or federal
court. . . . Nothing in subsection 1415(l) requires appeal to state or federal court as a
prerequisite to administrative exhaustion.” As a result, “[t]he fact that Texas does not
provide an opportunity to appeal a hearing officer’s decision to the state education agency
does not impose an additional burden on Lartigue to appeal in state or federal court. To the
contrary, it simply means that she has exhausted her administrative remedies by pursuing
the one opportunity for relief that the state provides, a due process hearing.”

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FAPE precludes Lartigue’s ADA claim in federal court. The district court
rejected this argument. We agree with the district court.
Under Fifth Circuit precedent, issue preclusion applies only when the
following elements are met:
(1) the issue at stake must be identical to the one involved in
the prior action; (2) the issue must have been actually litigated
in the prior action; and (3) the determination of the issue in the
prior action must have been a part of the judgment in that
earlier action.40
In Pace v. Bogalusa City School Board, this Circuit, sitting en banc,
explained that the “relitigation of an issue is not precluded unless the facts
and the legal standard used to assess them are the same in both
proceedings.”41 Pace was wheelchair-bound and brought claims under the
IDEA, ADA, and Section 504 of the Rehabilitation Act, alleging that his
school was not accessible. After a hearing officer found that the school system
provided him with a FAPE, Pace filed suit in federal court seeking damages.42
The district court dismissed his IDEA claim and granted summary judgment
in favor of the school district on his ADA and RA claims.
On appeal, Pace argued his ADA and RA claims were not precluded
by the district court’s dismissal of his IDEA claim because different legal
standards applied to those claims than his IDEA claims.43 This Court
disagreed and thoroughly evaluated “the standards of accessibility under the
IDEA on the one hand and the ADA and Section 504 on the other to
_____________________
40
In re Southmark Corp., 163 F.3d 925, 932 (5th Cir. 1999) (citation omitted).
41
403 F.3d 272, 290 (5th Cir. 2005) (citing Southmark, 163 F.3d at 932) (emphasis
added).
42
Id. at 275.
43
Id. at 292.

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determine whether the legal standards are ‘significantly different.’”44 This
review found that the IDEA, ADA, and Section 504 required schools to be
constructed in accordance with the exact same architectural standards.
Because the agency found the district complied with these standards when
evaluating Pace’s IDEA claim—and this determination was affirmed by both
the appellate state agency and the district court—it necessarily also complied
with the ADA and RA.45
Pace controls and it counsels that this Court must independently
analyze whether the legal standards are “significantly different.”46 Review of
the standards at issue here demonstrates that the legal standards are
“significantly different,” so that Lartigue’s ADA claim is not precluded.
First, the district court determined that Lartigue’s claims under the
IDEA and the ADA were governed by significantly different standards,
explaining that:
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

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44
Id. at 290.
45
Id. at 292–93 (explaining that all three statutes required buildings to be
constructed in compliance with the Americans with Disabilities Accessibility Guidelines
for Buildings and Facilities or the Uniform Federal Accessibility Standards).
46
Id. at 290 (“Issues of fact are not ‘identical’ or ‘the same,’ and therefore not
preclusive, if the legal standards governing their resolution are ‘significantly different.’”).

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ADA claim is not precluded by the due process hearing and is
not barred by the collateral estoppel doctrine.
In addition to these differences, the IDEA and ADA require different
accommodations for hearing-impaired students. School districts comply with
the IDEA by providing “special education and related services” including,
inter alia, IEPs.47 When creating IEPs, the IEP team must consider several
“special factors,” including the child’s “language and communication
needs,” “opportunities for direct communications with peers and
professional personnel in the child’s language and communication mode,”
and whether “the child needs assistive technology devices and services.48
Ultimately, the IEP should address the “special education and related
services and supplementary aids and services” that will allow the student to
“to advance appropriately toward attaining the annual goals,” “be involved
in and make progress in the general education curriculum . . . [and] to
participate in extracurricular and other nonacademic activities,” and “be
educated and participate with other children with disabilities and
nondisabled children in the activities described in this subparagraph.”49
The ADA also requires public entities to provide auxiliary assistive
devices but differs from the IDEA in two important respects.50 First, the
ADA and its accompanying regulations require entities to “give primary
consideration to the requests of individuals with disabilities,”51 an element

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47
20 U.S.C.A. § 1401(9).
48
20 U.S.C. § 1414(d)(1)(A)(i)(II)(aa).
49
20 U.S.C. § 1414(d)(1)(A)(i)(IV).
50
See 28 CFR § 35.104 (explaining auxiliary aids and services).
51
28 C.F.R. § 35.160(b)(2).

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absent in the IDEA.52 Second, the ADA requires public entities to provide
equal opportunities to disabled and non-disabled individuals; the IDEA does
not. For example, accommodations under the ADA must present “an equal
opportunity to participate in, and enjoy the benefits of, a service, program, or
activity of a public entity,”53 while an IDEA IEP must only help students
“advance appropriately,” “make progress” in their education, and
“participate” in extracurricular activities.54 Similarly, the ADA mandates
that public entities take “appropriate steps” to ensure that its
communications with “applicants, participants, members of the public, and
companions with disabilities are as effective as communications with others;”
the IDEA lacks a similar mandate.55
When reviewing these standards, it becomes evident that a school
district could establish a FAPE in compliance with the IDEA, while
nevertheless engaging in discriminatory conduct under the ADA. Phrased
differently, and to borrow Justice Kagan’s explanation in Fry, the
“yardstick” to measure compliance with the IDEA is the provision of a
FAPE through an IEP plan.56 The yardstick in an ADA claim is not adherence
to an IEP plan, but instead whether the public entity “failed to make

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52
The dissent argues that a disabled individual’s preferences need not be
considered when a public entity provides an accommodation. But this is incorrect—at least
as it pertains to hearing-impaired individuals like Lartigue, ADA regulations require public
entities to “give primary consideration to the requests of individuals with disabilities”
when determining what “auxiliary aids and services are necessary.” 28 C.F.R.
35.160(b)(2).
53
28 C.F.R. §35.160(b)(1).
54
20 U.S.C. § 1414(d)(1)(A)(i)(IV).
55
28 C.F.R. § 35.160(a)(1).
56
Fry, 580 U.S. at 167.

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reasonable accommodations,” specifically, accommodations that give a
disabled student equal access as her non-disabled peers.57
This is why Northside’s argument that a finding that a FAPE was
provided precludes an ADA violation is without merit, an argument already
refuted by this Court in Estate of Lance v. Lewisville Independent School
District.58 In Lance, this Court explicitly held that “even if plaintiffs conceded
that the School District fully satisfied its IDEA obligations . . . they could
[still] pursue claims under the ADA and the § 504 on the grounds that the
student was [prevented] from receiving a state benefit . . . provided to her
non-disabled peers.”59
The dissent cites to cases presenting issues of Article III standing and
employment discrimination, but neither case has purchase here. First, the
Court in E.T. v. Paxton held that a group of students did not have Article III
standing to sue the Attorney General for his prohibition on mask mandates,
correctly noting that there is no “legally protected interest in equality
simpliciter,” and instead that the ADA protects “access by way of reasonable
accommodations.”60 However, there is no issue of standing here. Under
Pace, when conducting an issue preclusion analysis, we ask whether the legal
standards are significantly different. Second, in Riel v. Elec. Data Sys. Corp.,
an employment discrimination case, we held that the ADA is different from
racial discrimination statutes, as it “shifts away from similar treatment to

_____________________
57
Pickett v. Texas Tech Univ. Health Scis. Ctr., 37 F.4th 1013, 1032 (5th Cir. 2022).
58
743 F.3d 982, 993 (5th Cir. 2014)
59
Id. (cleaned up) (citations omitted).
60
41 F.4th 709, 717, 721 (5th Cir. 2022).

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No. 22-50854

different treatment of the disabled by accommodating their disabilities.”61 Of
course, children with disabilities receive different treatment, that is the point
of an “accommodation.” Instead, what matters under the ADA is whether a
child was discriminated against because of her disability.
The Hearing Officer made no findings regarding Lartigue’s ADA
claim and did not consider whether Northside complied with its obligations
under that statute. This buttresses the conclusion that the legal standards
applied at the state hearing and in the federal case are different. We hold that
the legal standards under the IDEA and the ADA in this context are
significantly different, barring application of issue preclusion to Lartigue’s
federal ADA claim.
Not only do the legal standards differ, not surprisingly the factual
findings do as well. Again, “[t]he distinguishing feature of the doctrine of
collateral estoppel is that it precludes in a second or subsequent suit the
relitigation of fact issues actually determined in a prior suit.”62 The Hearing
Officer’s decision here failed to address, account for, or resolve several of
Lartigue’s factual allegations in her operative complaint. These factual
allegations are central to her claim for relief under the ADA, and as such,
preclusion cannot apply to factual findings that were never actually litigated.
For example, Lartigue alleges that Northside did not provide CART
services for her use during class. The Hearing Officer’s findings do not speak
to this allegation. Lartigue also claims that she was denied CART services
during the Fall 2018 debate tournament season—the Hearing Officer

_____________________
61
99 F.3d 678, 681 (5th Cir. 1996). In addition, Lartigue brings an ADA claim under
Title II, while Riel was decided under Title I of the ADA.
62
James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F.2d 451, 459 (5th Cir. 1971)
(emphasis added).

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No. 22-50854

admitted to this failure. Lartigue asserts that she was not furnished with notes
for all of her academic classes. The Hearing Officer’s determinations do not
mention these requests for class notes. Lartigue alleges that Northside failed
to arrange for AI Counseling Services in a consistent and private fashion. The
Hearing Officer made no determination with respect to Lartigue’s request
for periodic counseling in private, nor the harm she could have suffered by
having to sign in public about private matters. Lartigue additionally alleges
Northside did not provide closed-captioning services for in-class films and
videos. The Hearing Officer is silent on this point as well. Lartigue alleges
she was denied a “quiet space,” although the Hearing Officer falls quiet as
to these allegations. Lastly, Lartigue alleged that Northside failed to
implement a “flashing lights” system during the school’s emergency drills,
and again the Hearing Officer made no factual findings on this issue. Taken
together, the factual issues before the IDEA Hearing Officer are not those
before the district court. The issues were significantly different. Issue
preclusion cannot apply.
The dissent’s discussion of “ultimate facts” obscures the nature of
the state agency determinations to which the dissent would give preclusive
effect. The dissent would preclude Lartigue’s ADA claim (a claim we remind
the Hearing Officer refused to consider) because, for example, the Hearing
Officer determined that “[NISD] provided [Lartigue] with a FAPE within
the meaning of the IDEA,” in so doing applying different facts to evaluate a
different claim under a different statute. Issue preclusion is meant to “prevent
repetitious litigation of what is essentially the same dispute.”63 The dissent’s
discussion of “ultimate facts” assumes its own premise that the dispute here
is essentially the same. But as already discussed, we see it differently. And,
_____________________
63
Restatement (Second) of Judgments, § 27 cmt. c (Am. L. Inst.
2023).

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of course, we must also account for the interest in not “depriv[ing] a litigant
of an adequate day in court.”64
Because Lartigue’s IDEA claim depended on a different legal
standard than her ADA claim and was resolved without addressing key
factual allegations in her complaint, her IDEA claim is significantly different
than her ADA claim and she is not collaterally estopped from proceeding. We
affirm the district court’s conclusions that Lartigue exhausted her claims and
was not precluded from proceeding on her ADA claim, abiding by our
decision in Pace.
C.
However, we cannot affirm the district court’s conclusion that
Lartigue could not proceed with her standalone ADA claim. The district
court dismissed Lartigue’s ADA claim out of concern that she was
“evad[ing] IDEA’s statutory limitations through artful pleading.”
Interpreting Fry’s “gravamen” of the complaint test, the district court
concluded that Fry prohibited standalone ADA claims so long as the “the
gravamen of Lartigue’s complaint is denial of a FAPE.”
This was error. Fry’s “gravamen” of the complaint test speaks only
to §1415(l)’s exhaustion requirement and does not prohibit standalone ADA
claims, as evidenced by Perez.65 This Court has recognized viable, standalone
ADA claims notwithstanding the presence of a FAPE.66 This is because
_____________________
64
Id.
65
Perez, 598 U.S. at 149–50; Lance, 743 F.3d at 993 (“‘[E]ven if plaintiffs conceded
that [the School District] fully satisfied its IDEA obligations . . . they could pursue claims
under the ADA and the [§ 504] on the grounds that [the student] was precluded from
receiving a state benefit . . . provided to her non-disabled peers.’”) (citing, inter alia,
Ellenberg v. N.M. Military Inst., 478 F.3d 1262, 1281–82 (10th Cir. 2007)).
66
See Lance, 743 F.3d at 993 (citing, inter alia, Ellenberg, 478 F.3d at 1281–82).

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compliance under the IDEA is distinct from discriminatory behavior under
the ADA.
In sum, issue preclusion is inappropriate because, as in Pace, the
IDEA’s relevant legal standards are significantly different from those of the
ADA and Lartigue’s ADA claim raises factual issues not reviewed or decided
in her administrative proceedings. Lartigue is not precluded from bringing
her ADA claim.
D.
Finally, Northside claims that Lartigue has no recoverable damages
for her ADA claim, pointing to 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.67 We have previously expressly declined to decide whether
Cummings extends to claims under Title II of the ADA which, unlike Section
504 of the Rehabilitation Act and Section 1557 of the Affordable Care Act, is
not a Spending Clause statute. And that the district court specifically
declined to address this argument counsels against entertaining the argument
for the first time on a motion for reconsideration. On remand, the district
court may consider this issue if need be.
*****
Holding as the dissent would, that Lartigue cannot obtain
compensatory damages under the ADA because Northside is meeting its
forward-looking obligations under the IDEA, discharges Northside’s duties
under the ADA without any judicial review. To the extent that the approved

_____________________
67
142 S. Ct. 1562 (2022).

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No. 22-50854

FAPE resolves deficits outlawed by the ADA, a school need not be concerned
going forward. But to conclude that the FAPE not only resolved Northside’s
future exposure to an IDEA claim but also to an ADA claim erases the injury
it inflicted by its potential violation of the ADA. Recall, again, that this
litigation was commenced in federal court, at all times Lartigue maintained
her ADA claim, and the state hearing officer was fully aware of her ADA
claim and disclaimed jurisdiction over it.
We cannot affirm the able district court’s grant of summary judgment,
as it would return this Circuit to the Smith era—with “consequences . . . for
a great many children with disabilities and their parents,”68 and one which
Congress directly abandoned by enacting § 1415(l). With respect, as we see
it, the district court’s order was contrary to the text of § 1415(l) and
foreclosed by the Supreme Court 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.

_____________________
68
Perez, 598 U.S. at 146.

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No. 22-50854

Jerry E. Smith, Circuit Judge, dissenting:

The panel majority has issued a revised opinion. It is well crafted, but, although
more detailed, it is nonetheless erroneous. I again respectfully dissent.
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: Recov-
ery is barred by collateral estoppel.
Lartigue’s claim must be dismissed 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, inter alia, 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.2
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., 403 F.3d 272, 290 (5th Cir. 2005). To satisfy
prong (1), 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

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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).
2
Powers v. Northside Indep. Sch. Dist., 951 F.3d 298, 310 (5th Cir. 2020) (holding that a TEA hearing
officer’s findings were entitled to preclusive effect); 20 U.S.C. § 1415(i)(1)(B).

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No. 22-50854

parties fully litigated Lartigue’s FAPE claims in the administrative hearing, and (3) the
whole point of the hearing was to determine whether Lartigue had received a FAPE.
Prong (1)(a) is also satisfied because the operative facts are identical between the TEA
hearing and this case.
Prong (1)(b) is met as well. The district court incorrectly believed the legal stan-
dards 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 say 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 had
determined that the high school had provided plaintiff with a FAPE because it met the
accessibility standards required under IDEA. Id. That determination, Pace held, was
entitled to preclusive effect under the doctrine of collateral estoppel because “Pace pre-
sent[ed] no argument that the accessibility standards for new construction of school build-
ings under the ADA or § 504 [were] more demanding[3] or even different from the stan-
dards required under the 1997 amendment to the IDEA.” Id. at 292.
The upshot is unavoidable: Pace—by which we are bound—holds that a legal stan-
dard 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

_____________________
3
In Pace, a “more demanding” accessibility standard would lower the threshold for liability in the
ADA claim relative to the IDEA claim.

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No. 22-50854

than—that of the prior proceeding.4
Here, the ADA is the more demanding standard. In the education context, liability
under title II requires “a showing of intentional discrimination.”5 It is not enough merely
to show that a school denied a reasonable accommodation that would have provided a dis-
abled student with meaningful access. Accordingly, there is no title II violation so long as
school officials “exercise professional judgment in such a way as not to depart grossly from
accepted standards among educational professionals.” D.A. ex rel. Latasha A. v. Hous.
Indep. Sch. Dist., 629 F.3d 450, 454 (5th Cir. 2010) (cleaned up). That is why “something
more than a mere failure to provide the FAPE required by IDEA must be shown” in order
“[t]o establish a claim for disability discrimination[] in the education context.”6
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 that court to ignore the administrative hearing officer’s final
determinations, which bind Lartigue. See Powers, 951 F.3d at 310. Consequently, collateral
estoppel bars her ADA claims.
Lartigue could have pursued claims under the Rehabilitation Act or the ADA that
are “predicated on other theories of liability,” and those would not be “precluded by a
determination that the student has been provided an IDEA FAPE.” Lance, 743 F.3d

_____________________
4
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.
5
J.W. v. Paley, 81 F.4th 440, 449 (5th Cir. 2023) (emphasis added), petition for cert. filed, No. 23-931,
2024 U.S. S. Ct. Briefs LEXIS 736 (Feb. 21, 2024).
6
Est. of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 995 (5th Cir. 2014) (quoting D.A.,
629 F.3d at 454) (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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No. 22-50854

at 993.7 But she did not advance those claims. Instead, her theories of liability under the
ADA all rely on the premise that NISD did not provide her with a FAPE. Her entire case
must therefore be dismissed.
Nonetheless, the majority stubbornly insists that collateral estoppel cannot apply
because “Lartigue’s claims under the IDEA and ADA [a]re governed by significantly dif-
ferent standards.” Op. at 14; see id. at 14–18. Relying exclusively on two ADA regulations
addressing communications accommodations, the majority asserts that the ADA requires
schools to provide “accommodations that give a disabled student equal access as her non-
disabled peers,” whereas the IDEA merely requires adequate access. Op. at 17.
The majority’s interpretation of the ADA is fundamentally flawed. Worse still, it is
squarely foreclosed by our circuit’s precedent. Per E.T. v. Paxton, 41 F.4th 709 (5th Cir.
2022), “[n]either the ADA nor Section 504 creates a legally protected interest in equality
simpliciter. Rather, those statutes legally protect reasonable access to covered facilities and
benefits . . . by way of reasonable accommodations,” id. at 717. Indeed, that reasonable-
accommodation requirement is precisely what “sets [the ADA] apart from most other anti-
discrimination legislation . . . [which] mandate equality of treatment.” Riel v. Elec. Data
Sys. Corp., 99 F.3d 678, 681 (5th Cir. 1996) (Higginbotham, J.).
An accommodation is reasonable if it “give[s] meaningful access to [a] benefit,”
E.T., 41 F.4th at 717 (cleaned up), without “fundamentally alter[ing] the nature of th[at
benefit].”8 Accordingly, under the ADA, “[t]he appropriate accommodation need not be
the [disabled individual’s] preferred accommodation.” Thompson v. Microsoft Corp.,
2 F.4th 460, 469 (5th Cir. 2021) (Higginbotham, J.) (citation and internal quotation marks
omitted).

_____________________
7
For example, “a peer-on-peer harassment claim is not necessarily predicated on the denial of
FAPE.” Lance, 743 F.3d at 993.
8
28 C.F.R. § 35.130(b)(7)(i); see also Windham v. Harris Cnty., 875 F.3d 229, 235 n.6 (explaining
that “reasonable modification” is equivalent to “reasonable accommodation” (citations omitted)).

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No. 22-50854

So, even in the context of state and local public entities generally,9 all the ADA pro-
tects is meaningful access. Similarly, the “IDEA aims to provide an adequate educational
opportunity.” D.A., 629 F.3d at 454 (citations omitted). Such a “[m]inor variation[] in
the application of what is in essence the same legal standard do[es] not defeat preclusion.”
Smith v. Bayer Corp., 564 U.S. 299, 312 n.9 (2011). The majority doth protest too much,
methinks.10
In a last-ditch attempt to insulate its plainly deficient reasoning, the majority posits
that even if collateral estoppel theoretically could apply, it doesn’t here. It painstakingly
attempts to identify facts not expressly discussed in the hearing officer’s opinion. To no
avail. The futility of that endeavor should have been obvious from the start, given that
Lartigue’s counsel stated at oral argument that “we are fully prepared to admit that the
gravamen of our ADA complaint is the denial of a FAPE.”
And futile it was, for it only highlights the majority’s overly simplistic understanding
of the doctrine. The majority thinks that collateral estoppel cannot apply if there exists any
fact not expressly mentioned in the hearing officer’s opinion.
Wrong. The doctrine is not strictly limited to discrete evidentiary facts.11 Collateral
estoppel extends much further, foreclosing relitigation on issues “of evidentiary fact, of
‘ultimate fact’ (i.e., the application of law to fact), [and] of law.” Restatement (Sec-
ond) of Judgments, § 27 cmt. c (Am. L. Inst. 2023). The majority, by focusing
exclusively on discrete evidentiary facts, ends up getting schooled on ultimate facts.
What was the point of the administrative proceeding? To resolve Lartigue’s claim
that NISD violated the IDEA by failing to provide her with FAPE-related accommodations.
In concluding that NISD satisfied its IDEA obligations, the hearing officer made three
determinations of ultimate fact:

_____________________
9
The ADA’s threshold for liability is even higher in the education context, further proving that col-
lateral estoppel bars Lartigue’s ADA claims. See supra notes 5–6 and accompanying text.
10
William Shakespeare, Hamlet act III, sc. 2, l. 215.
11
After all, collateral estoppel is the doctrine of issue preclusion—not fact preclusion.

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No. 22-50854

 “[NISD] provided [Lartigue] with a FAPE within the meaning of the IDEA.”
ROA.553 (citations omitted).
 Lartigue’s “placement was her [Least Restrictive Environment].” Id. (citation
omitted).
 Lartigue “had an opportunity to participate in extracurricular activities, includ-
ing debate, to the extent appropriate with the use of supplementary aids and ser-
vices.” Id. (citation omitted).
All three determinations are “conclusive in a subsequent action between the parties,
whether on the same or a different claim.” Restatement (Second) of Judg-
ments § 27 (Am. L. Inst. 2023). And those determinations are fatal, for Lartigue’s
ADA claims all rely on the premise that NISD did not provide her with a FAPE.

That alone proves that collateral estoppel applies to Lartigue’s ADA claims. So we
need not join the majority in perusing every last word of the hearing officer’s opinion, for
that would be a waste of time. Whether the hearing officer discussed one particular fact or
another is of no moment. That Lartigue “litigate[d] an issue of ultimate fact and suffered
an adverse determination” ends the matter. Restatement (Second) of Judg-
ments § 27 cmt. c (Am. L. Inst. 2023). Even if the majority can show that the Third
Amended Complaint pleads new evidentiary facts not expressly discussed in the hearing
officer’s opinion, Lartigue is still barred from “obtain[ing] a different determination of
[those] ultimate facts.” Id. Those determinations bind Lartigue, and there’s nothing she
can do about it.

Class dismissed.

* * * * *
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 judg-
ment, I respectfully dissent—again.

28