N.B. Ex Rel. D.G. v. Alachua County School Board

United States Court of Appeals,

Eleventh Circuit.

No. 95-3214

Non-Argument Calendar.

N.B., by her mother and next friend, D.G. a/k/a N.B., Plaintiff-
Appellant,

v.

ALACHUA COUNTY SCHOOL BOARD, Robert W. Hughes, Superintendent,
Alachua County School Board, individually and in his official
capacity, Suwannee County School Board, Charles F. Blalock, Jr.,
Superintendent, Suwannee County School Board, individually and in
his official capacity, Columbia County School Board, Diane Lane,
Superintendent, Columbia County School Board, individually and in
her official capacity, Defendants-Appellees.

June 7, 1996.

Appeal from the United States District Court for the Northern
District of Florida. (No. 94-10164-MMP), Maurice Mitchell Paul,
Chief Judge.

Before TJOFLAT, Chief Judge, and DUBINA and BLACK, Circuit Judges.

PER CURIAM:

We affirm the judgment of the district court for the reasons

stated in the district court's dispositive order of July 20, 1995,

which appears in the Appendix.

AFFIRMED.

APPENDIX

ORDER

This cause comes before the Court upon motion to dismiss

plaintiff's first amended complaint by defendants Alachua County

School Board and Columbia County School Board (doc. 6). For the

reasons stated below, the motion is GRANTED.

BACKGROUND

Plaintiff N.B. is a hearing impaired child. During the
relevant time periods, N.B. lived in either Columbia or Suwannee

County, Florida. Sometime prior to March 1986, N.B. was bused from

her home in Columbia or Suwannee County to attend a special school

for hearing impaired children in Alachua County. Plaintiff claims

that this decision caused her to be segregated from hearing

students. She also claims that the long bus ride caused her to

miss a significant portion of class work each school day. N.B.

left the State of Florida at the end of the 1992/93 school year and

is no longer in the Florida educational system.

N.B. has brought this suit alleging violations of the

Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C.

§ 1400 et seq. She seeks compensatory damages under the IDEA

(Count I) and 42 U.S.C. § 1983 (Count II).

In the motion to dismiss, defendants move for dismissal of the

first amended complaint based on the following four grounds: 1)

the plaintiff has failed to exhaust administrative remedies; 2)

the plaintiff's claims are barred by the statute of limitations;

3) compensatory damages are not available under the IDEA; and 4)

compensatory damages are not available under 42 U.S.C. § 1983 for

violations of the IDEA. Because the Court finds dismissal is

appropriate for plaintiff's failure to exhaust necessary

administrative remedies as a prerequisite to filing this action,

the Court need not reach the remaining three issues concerning the

statute of limitations and the availability of compensatory damages

under the IDEA and 42 U.S.C. § 1983.

DISCUSSION

The IDEA, formerly known as the Education for All Handicapped
Act ("EHA"), 20 U.S.C. § 1400 et seq., provides federal money to

state and local education agencies in order to assist them in

educating handicapped children, on the condition that the states

and local agencies implement the substantive and procedural

requirements of the Act. The principal purpose of the Act is "to

assure that all children with disabilities have available to them

... a free appropriate public education which emphasizes special

education and related services designed to meet the handicapped

child's unique needs, ... [and to ensure] that the rights of

handicapped children and their parents or guardians are protected."

20 U.S.C. § 1400(c).

To carry out these objectives, the IDEA provides procedural

safeguards to permit parental involvement in all matters concerning

the child's educational program and allows parents to obtain

administrative and judicial review of decisions they deem

unsatisfactory or inappropriate. Honig v. Doe, 484 U.S. 305, 311-

12, 108 S.Ct. 592, 597-98, 98 L.Ed.2d 686 (1988). Under this

scheme of procedural protections, parents are entitled to 1)

examination of all relevant records pertaining to evaluation and

educational placement of their child, 2) prior written notice

whenever the responsible educational agency proposes, or refuses,

to change the child's placement, 3) an opportunity to present

complaints concerning any aspect of the local agency's provision of

a free appropriate public education, and 4) an opportunity for an

"impartial due process hearing" with respect to any such

complaints. Id. at 312, 108 S.Ct. at 598.

In the event that a party is dissatisfied with or aggrieved by
the findings and decisions made after the impartial due process

hearing, that party may obtain additional administrative review by

the state educational agency. 20 U.S.C. § 1415(c). If that party

is still dissatisfied or remains aggrieved after the administrative

appeal, a judicial review is available in either state court or

federal court to contest the decisions of the educational agency.

Id. § 1415(e)(2).

"The philosophy of the [IDEA] is that plaintiffs are required

to utilize the elaborate administrative scheme established by the

[IDEA] before resorting to the courts to challenge the actions of

the local school authorities." Ass'n for Retarded Citizens of

Alabama v. Teague, 830 F.2d 158, 160 (11th Cir.1987) (citing Smith

v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984)).

Key reasons for requiring the exhaustion of administrative remedies

are as follows: 1) to permit the exercise of agency discretion and

expertise on issues requiring these characteristics; 2) to allow

the full development of technical issues and a factual record prior

to court review; 3) to prevent deliberate disregard and

circumvention of agency procedures established by Congress; and 4)

to avoid unnecessary judicial decisions by giving the agency the

first opportunity to correct any error. Id.

The exhaustion requirement, however, is not jurisdictional

and therefore " "is not to be applied inflexibly.' " Id. (quoting

McGee v. United States, 402 U.S. 479, 483, 91 S.Ct. 1565, 1568, 29

L.Ed.2d 47 (1971)). The exhaustion of the administrative remedies

is not required where resort to administrative remedies would be 1)

futile or 2) inadequate. Id. (citing to Smith v. Robinson, 468
U.S. at 1014 n. 17, 1019 n. 22, 104 S.Ct. at 3469 n. 17, 3472 n.

22).

In the amended complaint, plaintiff does not allege that she

has exhausted her administrative remedies. Instead, plaintiff

argues that exhaustion of administrative remedies is not required

in this case because she no longer attends any of the defendant

school districts. This argument was squarely rejected in
Torrie By

and Through Torrie v. Cwayna, 841 F.Supp. 1434 (W.D.Mich.1994). In

that case, an emotionally impaired student and his mother brought

an action against a school district and its employees for alleged

violations of IDEA, Rehabilitation Act, false arrest and false

imprisonment. The student and his mother neither requested an

impartial due process hearing nor filed a complaint with the school

district before filing the action. In responding to the school

district's motion to dismiss based on failure to exhaust

administrative remedies, the plaintiffs argued that exhaustion was

not required under the futility exception because they no longer

lived in the defendant school district. Reasoning that parents'

unilateral act of removing their child from a public school could

not excuse their failure to exhaust administrative remedies, the

court dismissed the action for failure to exhaust remedies.

Torrie, 841 F.Supp. at 1442. The rationale of Torrie is

persuasive. If parents can bypass the exhaustion requirement of

the IDEA by merely moving their child out of the defendant school

district, the whole administrative scheme established by the IDEA

would be rendered nugatory. Permitting parents to avoid the

requirements of the IDEA through such a "back door" would not be
consistent with the legislative intent of the IDEA.

The plaintiff's second argument is equally unpersuasive. The

plaintiff argues there is no point pursuing administrative remedies

because the defendant school districts lack authority to grant the

relief requested, namely money damages. Again, if the plaintiff's

argument is to be accepted, then future litigants could avoid the

exhaustion requirement simply by asking for relief that

administrative authorities could not grant. This goes against the

very reason that we have the exhaustion requirement, which is "[to

prevent] deliberate disregard and circumvention of agency

procedures established by Congress." Teague, 830 F.2d at 160. In

fact, courts that considered this argument have all rejected it.

See Buffolino v. Board of Education of Sachem Central School

District, 729 F.Supp. 240, 247 (E.D.N.Y.1990); Waterman v.

Marquette-Alger Intermediate School District, 739 F.Supp. 361, 368

(W.D.Mich.1990) ("A procedure that may result in any substantial

relief is not futile"); Torrie, 841 F.Supp. at 1442.

Nor does the fact that the plaintiff also seeks money damages

under 42 U.S.C. § 1983 for violations of the IDEA make any

difference. "[W]hen parents choose to file suit under another law

that protects the rights of handicapped children—and the suit could

have been filed under the [IDEA]—they are first required to exhaust

the [IDEA]'s remedies to the same extent as if the suit had been

filed originally under the [IDEA]'s provisions." Mrs. W. v.

Tirozzi, 832 F.2d 748, 756 (2d Cir.1987). As the plaintiff has

failed to exhaust administrative remedies, the plaintiff may not

proceed with her § 1983 claims for violations of the IDEA.
CONCLUSION

Accordingly, the defendants' motion to dismiss (doc. 6) is

GRANTED. The Clerk is directed to dismiss the first amended

complaint with prejudice.