Weber v. Cranston School Committee

United States Court of Appeals
For the First Circuit

No. 99-1086

MELISSA F. WEBER, INDIVIDUALLY, and AS PARENT AND NATURAL
GUARDIAN OF SAMUEL M. WEBER, A MINOR CHILD

Plaintiff, Appellant,

v.

CRANSTON SCHOOL COMMITTEE, ET AL.

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.

Richard J. Savage, for appellant.
Keith B. Kyle, with whom Hodosh, Spinella, & Angelone was
on brief, for appellees.

May 8, 2000
 LIPEZ, Circuit Judge. Melissa Weber, mother of Samuel

M. Weber, filed a seven-count complaint in the district court

for the District of Rhode Island against the Cranston School

Committee, committee members, and Cranston city officials in

their individual and official capacities pursuant to 42 U.S.C.

§§ 1983 and 1985, the First, Fourth, and Fourteenth Amendments,

the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-

12134, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794,

and the Individuals with Disabilities Education Act ("IDEA"), 20

U.S.C. §§ 1400-1415. The district court granted summary

judgment for the defendants as to all counts in Weber's

complaint.

Weber limited her appeal from the district court’s

decision to Count IV, a claim of illegal retaliation pursuant to

Section 504 of the Rehabilitation Act and 42 U.S.C. § 1983.

Count IV of the complaint charges that the defendants retaliated

against Weber for her complaints about the school district's

failure to implement her son's Individualized Education Plan by

denying her access to her son's school records, restricting her

communications with his teachers, and threatening to report her

to the state child welfare agency. The district court found

that Weber's illegal retaliation claim merely rephrased prior

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claims that the district court had already rejected, namely her

Count II claim that the defendants' retaliation infringed on her

First Amendment rights and her Count III claim that she was

denied equal protection under the Fourteenth Amendment because

other parents could access their children's records and

teachers. Alternatively, the district court ruled that Weber's

Count IV claim was barred because of her failure to exhaust

administrative remedies specified by IDEA. IDEA requires such

exhaustion prior to bringing a civil action pursuant to other

federal laws protecting the rights of children with disabilities

if the relief sought is available under subchapter II of IDEA,

entitled “Assistance for Education of All Children with

Disabilities.” See 20 U.S.C. § 1415(l). Such relief is sought

through the administrative due process hearing provided in

subchapter II of IDEA. See 20 U.S.C. § 1415(f). Agreeing with

this alternative ruling on the failure to exhaust administrative

remedies, we affirm the decision of the district court.

I. BACKGROUND

This case has a complicated and contentious history.

Samuel Weber entered the Cranston public school system ("CPS")

on January 6, 1993, identified as a disabled child in need of

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special education services under IDEA. 1 Samuel received an

Individualized Education Plan (the "Plan") pursuant to IDEA that

described his educational objectives for the school year and the

services necessary to achieve these objectives.2 One of the

services specified in Samuel's Plan was phonics instruction.

After Weber approved Samuel's 1993-94 Plan, Principal Margaret

Day told Weber that the school system planned to "mainstream"

Samuel by removing him from his special education classroom and

integrating him into a standard curriculum class. In addition,

Weber learned that CPS was instituting a new language curriculum

which did not include phonics. Shortly after Samuel was moved

1 IDEA is a comprehensive federal education statute which
grants disabled students the right to a public education,
provides financial assistance to states to meet their
educational needs, and conditions a state's federal funding on
its having in place a policy that ensures that a "free
appropriate public education" is available to all children with
disabilities. 20 U.S.C. § 1412(a)(1). A stated purpose of IDEA
is "to ensure that all children with disabilities have available
to them a free appropriate public education that emphasizes
special education and related services designed to meet their
unique needs and prepare them for employment and independent
living." Id. § 1400(d)(1)(A).
2An Individualized Education Plan is a written plan
developed jointly by the local educational agency, the school
teaching staff, the child's parents, and an expert qualified to
interpret test results. See 20 U.S.C. § 1414(d)(1)-(4). The
Plan records the child's present level of performance, sets
annual educational objectives, and details the special services
necessary to meet these objectives. See id. § 1414(d)(1)(A).
The Plan must be reviewed and revised annually. See id. §
1414(d)(4)(A).

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into a standard curriculum class, Weber met again with Principal

Day and Samuel's teachers to discuss her concern about his

phonics instruction under his Plan and the effects of

mainstreaming.

After the conference, Weber remained dissatisfied with

Samuel's phonics instruction. She contacted the Director of the

Cranston School Committee's Special Education Services who

assured her that CPS would schedule a meeting to discuss her

concerns following the series of three meetings required to

complete Samuel's education evaluation and Plan. On February

10, 1994, after attending the initial meeting to evaluate

Samuel's test results, Weber filed a complaint pursuant to the

federal complaint resolution procedure ("CRP") with the Office

of Special Needs at the Rhode Island Department of Elementary

and Secondary Education.3 The complaint alleged that CPS had not

3
The CRP regulations provide an administrative process to
ensure state and local compliance with IDEA. These regulations
were formerly known as the Education Department General
Administrative Regulations ("EDGAR"). The EDGAR procedures
provided "an administrative mechanism for assuring that a state
complies with state-administered federal programs, including the
[IDEA, but were] distinguished from the specific administrative
procedures detailed in the [IDEA] itself." Christopher W. v.
Portsmouth Sch. Comm., 877 F.2d 1089, 1090 n.2 (1st Cir. 1989).
The July 8, 1992 amendments to EDGAR relocated these regulations
to 34 C.F.R. Part 300, the implementing regulations for IDEA.
While the EDGAR procedures applied to many statutes, the CRP
regulations provide a procedure (distinct from the IDEA due
process hearing) for filing complaints under IDEA. Under 34
C.F.R. §§ 300.660 and 300.662, states must adopt a written

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followed Samuel's Individualized Education Plan with regard to

phonics instruction or the provision of quarterly progress

reports. Following an investigation, the Department found that

CPS had complied with federal and state law. Weber did not

appeal this decision to the Rhode Island Secretary of Education

or pursue a due process hearing pursuant to IDEA. See infra

Part III.

Weber next met with Principal Day, Cheryl Calvano,

Director of the Cranston School Committee's Special Education

Services, and Samuel's teachers. Pursuant to an agreement

reached at that meeting that Samuel would transfer to the

Norwood Avenue School, he entered a standard curriculum third-

grade class in September 1994. In October, Weber met with

Calvano and other school staff to review Samuel's progress.

Following this meeting, Weber filed a second CRP complaint

complaint resolution procedure for receiving and resolving
complaints that the state or a local agency is violating IDEA or
its regulations. The state's procedure must limit the time for
state investigation and resolution of complaints to sixty days,
with extension only for "exceptional circumstances." 34 C.F.R.
§ 300.661(a)-(c). If either the complainant or the opposing
school body is not satisfied with the state's resolution, he or
she may request review of the state educational agency's
decision by the U.S. Secretary of Education. See 34 C.F.R. §
300.661(d). Rhode Island implements the CRP mandates through
the Rhode Island Regulations of the Board of Regents for
Elementary and Secondary Education Governing the Special
Education of Students with Disabilities.

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alleging that CPS had denied her access to Samuel's educational

records. The Rhode Island Department of Elementary and

Secondary Education once again found CPS to be in compliance

with the relevant state and federal regulations.

Shortly after Weber filed the second complaint,

officials at the Norwood Avenue School allowed her to inspect

Samuel's cumulative record file and a confidential file. In the

confidential file, Weber found a handwritten note dated March

24, 1994, stating, "Agenda - Put parent on defensive," "shut her

down," and a reference to a "restraining order." Weber

responded to this note with a third CRP complaint seeking

permanent removal of the handwritten note from Samuel's file.

Defendants contended that the note was the product of

a meeting held to discuss "legal avenues or other relief" to

address the "mounting burden of time imposed [by Weber's]

telephone calls, letters, threats, harassment, and

administrative litigation." Weber alleged that the defendants

adopted a "secret agenda" of intimidation and retaliation. She

specifically alleged that on March 28, 1994, a few days after

the date of the handwritten note, Cranston's Assistant City

Solicitor threatened to report her to the Rhode Island

Department of Children, Youth, and Families in an off-the-record

discussion during a due process hearing for her disabled

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daughter, D.W. The Rhode Island Department of Elementary and

Secondary Education ordered the removal of the note, as well as

the provision of a good faith hearing for Weber to express her

grievances.

Following the third complaint, Weber decided that she

wanted Samuel “declassified” as a disabled student and requested

mediation to accomplish this action. 4 One day prior to the

scheduled mediation, Weber went to the Norwood Avenue School to

see Principal Laura Albanese. Albanese's secretary directed

Weber to a meeting room, where she found Calvano, Albanese, and

Samuel's teachers. Weber believed that this was an

Individualized Education Plan meeting to which she had not been

invited, and that this action indicated that CPS did not intend

to provide a good faith hearing on her grievances. The next day

at the mediation, Weber offered to allow Cranston to provide any

services that they felt were necessary if they would agree to

declassify Samuel as a disabled student. CPS refused.

After the mediation, Weber alleged that Principal

Albanese denied her access to Samuel's records. She filed one

4IDEA requires that, "Any State educational agency or local
educational agency that receives assistance under this
subchapter shall ensure that procedures are established and
implemented to allow parties to disputes . . . to resolve such
disputes through a mediation process which, at a minimum, shall
be available whenever a [due process] hearing is requested . .
. . " 20 U.S.C. § 1415(e).

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complaint with the Rhode Island Office of Equity and Access

regarding access to Samuel's records, the refusal to terminate

Samuel's Individualized Education Plan, and CPS's lack of good

faith; she also filed a second complaint on behalf of her

daughter.5 The Office of Equity and Access issued a written

5
The Office of Equity and Access complaint process is
provided for by the General Laws of Rhode Island § 42-87-5(c)
and § 16-39-1. Section 42-87-2 states that, "No otherwise
qualified person with a disability shall, solely by reason of
his or her disability, . . . be excluded from participation in
or denied the benefits of any program, activity or service of,
or, by any person or entity regulated, by the state or having
received financial assistance from the state or under any
program or activity conducted by the state . . . ." The
statutory complaint procedure does not refer to IDEA. The
inter-relationship between the Office of Equity and Access
statutory complaint process and the CRP regulations of the Board
of Regents is not entirely clear. Based on the materials
available to us, it appears that the Board of Regents
regulations only implement IDEA, while the Office of Equity and
Access complaint procedure applies generally to the state's
anti-discrimination law.

Rhode Island law provides that the state Department of
Education is "empowered and directed to hear all complaints
relating to violations of this chapter in the area of elementary
and secondary education . . . in accordance with the process set
forth in chapter 39 of title 16." R.I. Gen. Laws § 42-87-5(c).
Chapter 39 of title 16 specifies that the Commissioner of
Elementary and Secondary education will decide disputes arising
under any law relating to schools or education with no cost to
the parties involved. See id. § 16-39-1. Decisions of the
Commissioner may be appealed to the Board of Regents for
Elementary and Secondary education (the same body that
promulgates the regulations effectuating the federal complaint
resolution procedure ("CRP")). See id. § 16-39-3. Decisions of
the commissioner and the board become final if judicial or
administrative review is not sought within thirty days. See id.
§ 16-39-3.1. Final decisions are not subject to further
judicial or administrative review. See id.

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decision finding that CPS's actions with regard to Samuel

constituted prohibited retaliation.6 CPS appealed. At the time

that the parties’ filed their briefs before us, this appeal was

still pending.

In April 1995, Weber requested an independent

evaluation of Samuel, who was now in third grade. The testing

revealed that Samuel read at an eighth-grade level, spelled at

a seventh-grade level, and did arithmetic at a third-grade

level. In September 1995, Samuel's parents placed him in a

private school. Subsequently, Weber requested that CPS

declassify Samuel. In March 1996, CPS concluded that Samuel was

not disabled under IDEA.

6 In relevant part, the decision stated:

The explanation of the denial to terminat[e]
. . . the Individualized Education Plan of
Samuel Weber could be justified by focusing
on the use of appropriate special education
procedures . . . . However, . . . [t]he
School Department's decision that the
student must continue to receive special
education services, coupled with the
complainant's [Weber's] use of procedural
safeguards and the [handwritten] note, when
it was found, its contents and the timing of
the complainant's request to terminate the
Individualized Education Plan, yields the
conclusion that the denial to terminate the
Individualized Education Plan constituted a
prohibited retaliation.

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 In July 1996, Weber filed her complaint in the district

court for the District of Rhode Island, including her Count IV

claim that CPS retaliated against her for enforcing her disabled

child's rights under IDEA and Section 504 of the Rehabilitation

Act. The disposition of Count IV is the only issue on appeal.

The defendants challenge Weber's standing under Section 504 to

pursue a claim of retaliation on her own behalf rather than on

behalf of her disabled son. If Weber does have standing under

Section 504, the defendants argue that she still cannot prevail

because she failed to exhaust administrative remedies as

required by IDEA, which specifies that a party seeking relief

under the Rehabilitation Act must exhaust the administrative

remedies provided by IDEA if the relief sought in the

Rehabilitation Act claim is available under subchapter II of

IDEA. See 20 U.S.C. § 1415(l). Weber maintains that she has

standing to bring her retaliation claim under Section 504 of the

Rehabilitation Act. She further argues that her suit is not

barred by the IDEA requirement of exhaustion of administrative

remedies because she would not have standing to bring a

retaliation claim in her individual capacity pursuant to IDEA,

and hence the relief she seeks under the Rehabilitation Act is

not available to her under subchapter II of IDEA.

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 We review the grant of summary judgment de novo, see

EEOC v. Amego, Inc., 110 F.3d 135, 141 (1st Cir. 1997), and draw

all reasonable inferences in favor of the nonmoving party, see

Champagne v. Servistar Corp., 138 F.3d 7, 8 (1st Cir. 1998).

II. A Parent’s Standing to Sue in Her Individual Capacity under
Section 504 of the Rehabilitation Act

Weber alleges that CPS violated Section 504 of the

Rehabilitation Act by responding to her complaints relating to

Samuel's education with a retaliatory policy to “put parent on

defensive” and to “shut her down,” restrictions on her access to

school records, and a threat to report her to the Rhode Island

Department of Children, Youth, and Families. Relying on the

language of the statute, the defendants insist that Weber lacks

standing under Section 504 of the Rehabilitation Act because she

is not a "qualified person with a disability" as defined by

Section 504.7 They argue that she cannot seek redress under

Section 504 for retaliation that has harmed her rather than her

7
We note that Weber meets easily the constitutional standing
requirements of Article III: she alleges an actual injury, the
injury can fairly be traced to the challenged conduct, and the
injury can be redressed by the declaratory, injunctive, and
monetary relief requested. See Valley Forge Christian College
v. Americans United for Separation of Church & State, Inc., 454
U.S. 464, 472 (1982). In her complaint, Weber seeks declaratory
and injunctive relief and damages for each count of her
complaint.

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disabled child. To assess this standing argument, we must

evaluate the interaction between Title VI of the Civil Rights

Act of 1964, the Rehabilitation Act, and the Department of

Education regulations. The Rehabilitation Act prohibits

discrimination against the disabled. Section 504 of the

Rehabilitation Act mandates that, "No otherwise qualified

individual with a disability . . . shall, solely by reason of

her or his disability, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination under

any program or activity receiving Federal financial assistance

. . . ." 29 U.S.C. § 794(a). The Rehabilitation Act was

amended in 1978 to incorporate the "remedies, procedures, and

rights set forth in title VI of the Civil Rights Act of 1964 [42

U.S.C.A. § 2000d et seq.]." Id. § 794a(2). The anti-retaliation

regulation adopted pursuant to Title VI of the Civil Rights Act

provides as follows:

No recipient or other person shall
intimidate, threaten, coerce, or
discriminate against any individual for the
purpose of interfering with any right or
privilege secured by Section 601 of [the
Civil Rights] Act or this part, or because
he has made a complaint, testified,
assisted, or participated in any manner in
an investigation, proceeding or hearing
under this part.

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34 C.F.R. § 100.7(e). This regulation also applies to any right

or privilege secured by the Rehabilitation Act. See id. §

104.61.

This broadly protective anti-retaliation regulation is

firmly grounded in the enforcement provisions of Title VI and

the Rehabilitation Act. Title VI extends its remedies to "any

person aggrieved" by violations of the Act. 42 U.S.C. § 2000d-2

(stating that "any person aggrieved . . . may obtain judicial

review of [any department or agency] action in accordance with

chapter 7 of Title 5."). The Rehabilitation Act extends its

remedies to "any person aggrieved by any act or failure to act

by any recipient of Federal assistance . . . under section 794

of this title." 29 U.S.C. § 794a(a)(2). Courts have construed

the phrase "any person aggrieved" as an expression of

Congressional intent to accord standing to the fullest extent

permitted by the case and controversy provision of Article III.

See e.g., Trafficante v. Metropolitan Life Ins. Co., 409 U.S.

205, 208 (1972) (holding that the term "aggrieved person" in §

810(a) of the Fair Housing Act, which the Act defined to include

"[a]ny person who claims to have been injured by a

discriminatory housing practice," demonstrated Congressional

intent to confer standing to the fullest extent permitted by

Article III); Hackett v. McGuire Bros., Inc., 445 F.2d 442, 446

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(3d Cir. 1971) (reaching the same conclusion regarding Title

VII's language of "a person claiming to be aggrieved [under the

Act]."); see also Gray v. Greyhound Lines, East, 545 F.2d 169,

176 (D.C. Cir. 1976) (same). Consistent with the broad

construction of the statutory enforcement language of Title VI

and the Rehabilitation Act, the anti-retaliation regulation

applies to "any individual" who has been intimidated,

threatened, coerced, or discriminated against “for the purpose

of interfering with [protected rights]” under Title VI of the

Civil Rights Act or the Rehabilitation Act. 34 C.F.R. §

100.7(e); see id. § 104.61 (incorporating the Title VI anti-

retaliation regulation into the Rehabilitation Act).

Given the broad remedial provisions of Title VI and the

Rehabilitation Act and the breadth of the anti-retaliation

regulation adopted pursuant to those laws, it is not surprising

that courts have accorded standing to non-disabled individuals

suing because of retaliation for attempts to vindicate the

rights of a disabled person. In Hoyt v. St. Mary’s

Rehabilitation Center, 711 F.2d 864, 865 (8th Cir. 1983), the

hospital shortened the plaintiff’s visiting time with a patient

after she complained about the patient’s care. The court stated

that the plaintiff, as the "next friend and daily visitor" of

the disabled patient, had standing under Section 504 to assert

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a claim of retaliation against her personally for complaints

made on behalf of the patient. Id. at 867 (but ruling against

the plaintiff's Section 504 claim for insufficient evidence that

the retaliation was motivated by any complaints relating to

discrimination against the patient); see also Ross v. Allen, 515

F. Supp. 972, 976 (S.D.N.Y. 1981) (granting standing to a school

psychologist who was dismissed after she complained to the Board

of Education about the suspension of a deaf student for

behavioral problems). In Whitehead v. School Board for

Hillsborough County, 918 F. Supp. 1515, 1522 (M.D. Fl. 1996),

the court granted standing to the parents of a child with

Down’s Syndrome who sought damages under Section 504 for

retaliation against them in their capacity as parents, noting

that , "There is no limitation under [34 C.F.R. 100.7(e)] that

retaliatory acts are only prohibited against the handicapped

individual on whose behalf the § 504 complaint is being raised.”

But see Sanders v. Marquette Public Schs., 561 F. Supp. 1361,

1370 (W.D. Mich. 1983)(allowing standing for a disabled child,

but denying it to her father who sought recovery for emotional

distress and the expense of alternative schooling).

Although Congress could have limited the remedial

provisions of the Rehabilitation Act to claims brought by or on

behalf of disabled individuals, it did not do so in apparent

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recognition of the fact that disabled individuals may need

assistance in vindicating their rights from individuals who may

have their own claim to relief under the Act. The anti-

retaliation regulation set forth in 34 C.F.R. § 100.7(e) is

consistent with this recognition. It is a practical reality

that recipients of federal funds sometimes respond to complaints

about their treatment of a disabled child by retaliating against

the disabled child, the initiator of the complaint (who is often

a parent), or both. We hold, therefore, that Weber has standing

to pursue her retaliation claim under Section 504. We now turn

to the question of whether Weber must exhaust the administrative

remedies provided by subchapter II of IDEA before filing a

Section 504 retaliation claim in her individual capacity in

federal court.8

III. IDEA Requirement of Exhaustion of Administrative Remedies

8
Weber brought her Count IV claim under Section 504 of the
Rehabilitation Act and § 1983. Our analysis has focused on the
Section 504 claim because that was the focus of Weber's appeal.
Without addressing the merits of her § 1983 claim, which she
describes as a claim intended "to enforce the anti-retaliation
provision of IDEA," we note that any such claim will also be
subject to the IDEA requirement of exhaustion of administrative
remedies as a claim "seeking relief that is available under
[IDEA]" if Weber has standing to bring her retaliation claim
under IDEA. 20 U.S.C. § 1415 (l); N.B. v. Alachua County Sch.
Bd., 84 F.3d 1376, 1379 (11th Cir. 1996); Mrs. W. v. Tirozzi,
832 F.2d 748, 756 (2d Cir. 1987).

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 The statutory provisions of subchapter II of IDEA are

attentive to the details of administrative process. Section

1415(b)(6) requires states to provide the "opportunity to

present complaints with respect to any matter relating to the

identification, evaluation, or educational placement of the

[disabled] child . . . ." The IDEA due process hearing

provision, 20 U.S.C. § 1415(f)(1), mandates that parents who

have filed a complaint under IDEA "shall have an opportunity for

an impartial due process hearing . . . conducted by the State

educational agency or by the local educational agency, as

determined by State law or by the State educational agency." A

party to an IDEA due process hearing has the right to present

evidence, and to confront, cross-examine, and compel the

attendance of witnesses; the right to be accompanied and

advised by counsel and by individuals with special knowledge or

training with respect to the problems of children with

disabilities; the right to a written, or at the option of the

parents, electronic verbatim record of such hearing; and the

right to a written or, at the option of the parents, electronic

findings of fact and decisions. See id. § 1415(h). The hearing

officer may not be an employee of the state or local educational

agency involved in the care or education of the disabled child.

See id. § 1415(f)(3).

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 IDEA requires recourse to this due process hearing when

plaintiffs seek relief available under subchapter II of IDEA

even if the suit is brought pursuant to a different statute. See

id. Section 1415(l) 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
statutes protecting the rights of children
and youth with disabilities, except that
before the filing of a civil action under
such laws seeking relief that is available
under this subchapter, the procedures under
subsections (f) and (g) of this section
shall be exhausted to the same extent as
would be required had the action been
brought under this subchapter.9

Weber argues that she does not have to meet the IDEA exhaustion

requirement because, as a parent, she does not have standing to

file her own retaliation claim under IDEA, and hence the relief

9
Congress amended the EHA (the predecessor statute to IDEA)
in response to the Supreme Court's decision in Smith v.
Robinson, 468 U.S. 992, 1012-13 (1984), holding that when EHA,
section 504, and Equal Protection claims overlap, the EHA was
the exclusive means for securing the provision of a free
appropriate education. Congress added § 1415(l) to "reaffirm,
in light of [Smith], the viability of section 504, 42 U.S.C.
1983, and other statutes as separate vehicles for ensuring the
rights of handicapped children." H.R. Rep. No. 99-296, 99th
Cong., 1st Sess. 4 (1985)(quoted in W.B. v. Matula, 67 F.3d 484,
494 (3d Cir. 1995)).

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she seeks with her Section 504 claim is not available to her

under IDEA. We reject her standing argument.

Unlike the Rehabilitation Act, IDEA lacks a broad

enforcement provision granting standing to "any person

aggrieved" by violations of the Act, or an implementing

regulation that protects any individual who has been

intimidated, threatened, coerced or discriminated against

because she made a complaint under the Act. The issue

confronting us, therefore, is whether there is a basis in the

language and statutory framework of IDEA for Weber to file a

retaliation claim in her individual capacity. We first look to

the basic principles of standing to determine whether Weber may

file such a retaliation claim under IDEA.

Standing doctrine encompasses both constitutional and

prudential requirements.10 The constitutional standing rules

ensure the existence of a concrete "case or controversy" as

10There is some confusion as to how far ordinary standing
principles apply to administrative proceedings. See, e.g.,
Envirocare of Utah, Inc. v. Nuclear Regulatory Comm'n, 194 F.3d
72, 74 (D.C. Cir. 1999)(Agencies . . . are not constrained by
Article III of the Constitution; nor are they governed by
judially-created standing doctrines restricting access to the
federal courts. The criteria for establishing 'administrative
standing' therefore may permissibly be less demanding than the
criteria for 'judicial standing.'"). Since no one has argued
that administrative proceedings under IDEA are subject to rules
different than those that apply to courts, we put this
possibility aside in the present case.

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required by Article III: "[A]t an irreducible minimum, Art. III

requires the party who invokes the court's authority to show

that he personally has suffered some actual or threatened injury

as a result of the putatively illegal conduct of the defendant,

and that the injury fairly can be traced to the challenged

action and is likely to be redressed by a favorable decision."

Valley Forge Christian College v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464, 472

(1982)(internal quotation marks and citations omitted). Weber

meets these constitutional requirements: the alleged retaliation

resulted in "injury in fact" which can be redressed through the

declaratory, injunctive, and monetary relief requested by Weber

for all counts of her complaint.

In addition to the constitutional requirements, the

standing inquiry encompasses prudential considerations aimed at

preventing courts from adjudicating "questions of broad social

import where no individual rights would be vindicated." Phillips

Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985). To meet the

prudential requirements, the plaintiff's challenge must rest on

her own legal rights and interests, not the rights of third

parties, see Warth v. Seldin, 422 U.S. 490, 499 (1975), and the

harm asserted cannot be a "generalized grievance" shared in

equal measure by all or a large class of citizens, id. The

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claim must also fall within "the zone of interests to be

protected or regulated by the statute or constitutional

guarantee in question," Association of Data Processing Serv.

Org., Inc. v. Camp, 397 U.S. 150, 153 (1970). The zone of

interests test does not require "an indication of Congressional

purpose to benefit the would-be plaintiff;" instead, the "proper

inquiry is simply whether the interest sought to be protected by

the complainant is arguably within the zone of interests to be

protected . . . by the statute." National Credit Union Admin.

v. First Nat'l Bank & Trust Co., 522 U.S. 479, 492 (1998)

(internal quotation marks and citations omitted) (alteration and

emphasis in original). Only this last element, the zone of

interests, is at issue in this case. As noted, we

review the language and structure of IDEA to determine whether

Weber's retaliation claim falls within the zone of interests

protected by IDEA. That review reveals the central role played

by parents in assuring that their disabled child receives a

"free appropriate public education," 20 U.S.C. § 1400(d)(1)(A).

The IDEA statement of purposes explicitly recognizes the

statute's mission "to ensure that the rights of children with

disabilities and parents of such children are protected." Id. §

1400(d)(1)(B)(emphasis added). The centerpiece of IDEA is the

Individualized Education Plan, which describes the disabled

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child's academic goals and special education services. The

statute establishes an elaborate mechanism for parental

involvement by designating parents as part of the Individualized

Education Plan team, see id. § 1414(d)(1)(B)(i), requiring

revision of the IEP to address information provided either by or

to parents regarding the child's educational needs and services,

see id. § 1414(d)(4)(A)(ii)(III), and mandating that parents

must be "members of any group that makes decisions on the

educational placement of their child," id. § 1414(f). In

addition to extensive procedures for parental involvement in the

Individualized Education Plan, IDEA also ensures the central

role of parents by requiring parental consent to educational

evaluations, see id. § 1414(a)(1)(c)(i) & (c)(3), assigning a

surrogate parent to "protect the rights of the child" when the

child's parents are not known or cannot be located, see 20

U.S.C. § 1415(b)(2), and mandating "an opportunity for the

parents of a child with a disability to examine all records

relating to such child," id. § 1415(b)(1). IDEA also authorizes

the Secretary of Education to make grants to support "parent

training and information centers" to help parents understand

their child's disability, participate in decision-making

processes and the development of individualized education

programs, and utilize IDEA's procedural safeguards. See id. §

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1482. In sum, Weber's claim easily meets the "arguably within

the zone of interests" standard, and she would have standing

under IDEA to bring her retaliation complaint.

Furthermore, the IDEA complaint provision in subchapter

II affords the "opportunity to present complaints with respect

to any matter relating to the identification, evaluation, or

educational placement of the child, or the provision of a free

appropriate public education to such child." See id. §

1415(b)(6) (emphasis added). Weber's claim of retaliation is

literally "related" to the "identification, evaluation, or

educational placement of [her] child," and to her efforts to

gain for him "the provision of a free appropriate public

education." As Weber has completely failed to explain to us why

she does not therefore have relief that is available through an

IDEA due process hearing that must be exhausted, 20 U.S.C. §

1445(k), (l), we conclude that Weber had to invoke the due

process hearing procedures of IDEA before filing her retaliation

claim in federal court pursuant to Section 504 of the

Rehabilitation Act and 42 U.S.C. § 1983.11

We are tempted to leave it at that. For the sake of

clarity and completeness, however, we note that the relief

11
Once the state due process procedures were completed,
Weber could have included in her array of federal claims a cause
of action under IDEA itself. See 20 U.S.C. § 1415(i)(2)(A).

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available question might be a close one if Weber had presented

any arguments on it. That is so because there are exceptions to

the IDEA exhaustion requirement based on the concept of

futility. A plaintiff does not have to exhaust administrative

remedies if she can show that the agency's adoption of an

unlawful general policy or practice would make resort to the

agency futile, or that the administrative remedies afforded by

subchapter II of IDEA are inadequate given the relief sought.12

See Christopher W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 1094

(1st Cir. 1989). This latter form of futility overlaps with the

"relief available" language of § 1415(l) in the sense that

relief is not available within the meaning of § 1415(l) if the

due process hearing provided by subchapter II of IDEA does not

provide relief that addresses the claim of the complainant.

This conclusion follows from the logic of the exhaustion

requirement set forth in § 1415(l). It would make no sense to

require, in the language of § 1415(l), a party with a claim

12
The legislative history indicates a particular concern
with futility. Senator Williams, the principal author of the
Education of the Handicapped Act, the predecessor statute to
IDEA, stated that "exhaustion of the administrative procedures
established under this part should not be required for any
individual complainant filing a judicial action in cases where
such exhaustion would be futile either as a legal or practical
matter." 121 Cong. Rec. 37416 (1975)(quoted in Christopher W.,
877 F.2d at 1094).

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“under the Constitution, the Americans with Disabilities Act of

1990, title V of the Rehabilitation Act of 1973, or other

Federal statutes protecting the rights of children and youth

with disabilities” to first participate in an IDEA due process

hearing if the relief available through such a hearing would not

address the claim of the party.

The district court found that Weber did not meet any

of the futility exceptions to the exhaustion requirement. On

appeal, Weber does not challenge this conclusion despite the

fact that the regulations regarding due process hearings under

IDEA do not appear to read "related" broadly. Instead, they

seem to provide for due process hearings that directly challenge

proposals or decisions about the child's educational situation.

See 34 C.F.R. §§ 300.503, 300.507; R.I. Code R. 08 010 002-47

(prior notice), -50 (Impartial due process hearing). In the

face of these provisions, a hearing officer might refuse to

consider a claim of retaliation like Weber's. Cf. Rockbridge

County Public Schools, EHLR 401:248 (1987) (state review of

hearing officer's decision holding that complaints about parent

access to records and other procedural violations were outside

the hearing officer's jurisdiction under Virginia regulations).

The difficult issue in this case is not who has standing to

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bring a complaint (the only issue that Weber raises), but rather

what is the scope of the hearing provided.

Weber does not point to these regulations (or anything

else) to establish that the relief she seeks is not available

because the regulations limit the scope of the due process

hearing provided by IDEA. Nor does she argue that pursuing a

due process hearing would be unduly burdensome due to the school

district's purportedly retaliatory tactics. Cf. Honig v. Doe,

484 U.S. 305, 326-27 (1988) (burden of demonstrating exception

from exhaustion requirement on party seeking to avoid

requirement); Christopher W. v. Portsmouth Sch. Comm., 877 F.2d

1089, 1095 (1st Cir. 1989) (exceptions to exhaustion requirement

include cases in which further agency proceedings may be futile,

and in which exhaustion will work severe harm upon a litigant).

We refuse to construct these arguments for her, see e.g.,

Massachusetts School of Law at Andover v. American Bar Ass'n,

142 F.3d 26, 43 (1st Cir. 1998), and take no position on their

merits.13

13
Weber also failed to raise the argument on appeal that a
due process hearing was futile, or that exhaustion was not
required by the terms of § 1415(l), because she could not
recover monetary damages through such a proceeding, despite a
demand in her complaint for compensatory and punitive damages
and an assertion in her complaint that she could not recover
such damages through a due process hearing. The Third Circuit
has held that "in a § 1983 action to enforce IDEA, . . .
compensatory damages are available to remedy IDEA violations,"

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 In light of the arguments made, therefore, we must

conclude that Weber had to comply with the exhaustion

requirement of § 1415(l). Anticipating the possibility of this

ruling, Weber suggests that she complied with this requirement

through the numerous administrative complaints that she filed.

This argument fails. Although Weber filed three CRP complaints

with the Rhode Island Department of Elementary and Secondary

Education, two complaints with the Office of Equity and Access,

and participated in a mediation on the issue of

declassification, she never initiated the due process hearing

described in IDEA. IDEA's mandate is explicit: plaintiffs must

but "IDEA itself makes no mention of such relief. Hence by its
plain terms § 1415(f) does not require exhaustion where the
relief sought is unavailable in an administrative proceeding."
W.B. v. Matula, 67 F.3d 484, 494, 496 (3d Cir. 1995). The Ninth
Circuit held that a plaintiff seeking only monetary damages for
violations of the Rehabilitation Act, the Americans with
Disabilities Act, and 42 U.S.C. § 1983 did not have to comply
with the exhaustion of administrative remedies requirement of
IDEA because "under the IDEA, monetary damages are not
available, so exhaustion is not required." Witte v. Clark
County Sch. Dist., 197 F.3d 1271, 1275 (9th Cir. 1999). In
Charlie F. v. Board of Educ. Of Skokie Sch. Dist. 68, 98 F.3d
989, 991 (7th Cir. 1996), the Seventh Circuit concluded "that
damages are not 'relief that is available under' the IDEA," but
nevertheless required exhaustion where plaintiff sought only
monetary damages. The court held that "what relief is
'available' does not necessarily depend on what the aggrieved
party wants." Id. at 991. We do not have to decide whether
damages are available for a violation of IDEA, and the
relationship of that determination to the exhaustion requirement
of IDEA, because Weber never raised this exhaustion issue on
appeal.

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exhaust IDEA's impartial due process hearing procedures in order

to bring a civil action under subchapter II of IDEA or any "such

law[] seeking relief that is also available" under subchapter II

of IDEA. 20 U.S.C. § 1415(l).

The case law confirms that state and federal

complaint procedures other than the IDEA due process hearing do

not suffice for exhaustion purposes. Even the CRP procedures

(formerly known as EDGAR), which implement IDEA, are "not an

adequate alternative to exhausting administrative remedies under

IDEA." Association for Community Living in Colo. v. Romer, 992

F.2d 1040, 1043-44 (10th Cir. 1993)(analyzing the EDGAR

provisions); Megan v. Independent Sch. Dist., 57 F. Supp. 2d

776, 790 (D. Minn. 1999)(reaching the same conclusion after the

amendments that converted EDGAR into the CRP implementing

regulations of IDEA).14 In Christopher W. v. Portsmouth School

Committee, 877 F.2d 1089, 1099 (1st Cir. 1989), we held that a

plaintiff who had failed to pursue a due process hearing but had

14
The rationale for the strict exhaustion requirement has
been variously explained. In Christopher W. v. Portsmouth
School Committee, 877 F.2d 1089, 1094 (1st Cir. 1989), we
explained that exhaustion "enables the agency to develop a
factual record, to apply its expertise to the problem, to
exercise its discretion, and to correct its own mistakes, and is
credited with promoting accuracy, efficiency, agency autonomy,
and judicial economy."

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filed an EDGAR complaint had not satisfactorily exhausted

administrative remedies.

Therefore, based on the statutory language and case

precedent, we conclude that Weber's complaints pursuant to the

federal CRP and the Rhode Island complaint procedure did not

fulfill the IDEA exhaustion requirement. The district court

properly granted summary judgment to defendants on Count IV of

Weber's complaint, and we affirm without prejudice as to any

future action Weber might bring after satisfying the exhaustion

requirement.

Affirmed. Each party shall bear its own costs.

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