Rose v. Yeaw

United States Court of Appeals
For the First Circuit

No. 99-2225

WAYNE ROSE AND DONNA ROSE, INDIVIDUALLY AND AS PARENTS AND
NATURAL GUARDIANS OF WAYNE ROSE, JR., A MINOR CHILD,

Plaintiffs, Appellants,

v.

BARRY YEAW, IN HIS OFFICIAL CAPACITY AS FINANCE DIRECTOR FOR
THE TOWN OF COVENTRY, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.

Melissa F. Weber for appellants.

Richard W. Jensen, with whom Carol A. Griffin, Stephen P.
Harten, and Morrison, Mahoney & Miller, LLP were on brief, for
appellees.

June 7, 2000
 LIPEZ, Circuit Judge. Individually and on behalf of

their disabled son, Wayne Rose, Jr., Wayne and Donna Rose filed

a complaint in the district court for the District of Rhode

Island against the Coventry School Department and several

Coventry Public School officials in both their individual and

official capacities (collectively, the "School Department" or

"Coventry") seeking compensatory and punitive damages and

attorneys' fees. The plaintiffs alleged violations of the

Individuals with Disabilities Act ("IDEA"), 20 U.S.C. §§ 1400-

1415, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794,

the Federal Civil Rights Act, 42 U.S.C. § 1983, the First and

Fourteenth Amendments, and the Regulations of the Board of

Regents for Elementary and Secondary Education Governing the

Special Education of Students with Disabilities (the "Rhode

Island regulations"). The case was referred to a magistrate

judge, who recommended that the district court grant the

defendants' motion for summary judgment based on the plaintiffs'

failure to exhaust administrative remedies pursuant to IDEA, 20

U.S.C. §§ 1415(i)(2)(A), 1415(l). The district court adopted

this recommendation. We affirm the district court's order.

I. Background

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 Drawing upon the thorough opinion of the magistrate

judge, we set forth the relevant background. After Wayne Jr.

entered the ninth grade at Coventry High School in November

1995, his asthma condition worsened. In response, the school

changed air filters and cleaning procedures. Wayne Jr.'s

condition persisted, and his physician informed the school that

Wayne Jr. might require additional assistance because his asthma

interfered with regular attendance. In December 1995, the

school implemented an initial Individualized Educational Plan

(the "Plan") providing home tutoring for Wayne Jr.'s asthma-

related absences as an interim measure. In March 1996, the

school completed its educational, psychological, and medical

assessments and developed a second Individualized Education

Plan, which provided accommodations such as home tutoring for

asthma-related absences, extended time to complete assignments,

and the relocation of Wayne Jr.'s classes to the new wing of the

building, where he experienced fewer asthma problems. In May

1996 and August 1996, there were amendments to Wayne Jr.'s Plan

that allowed him to take exams in a room where he experienced

fewer asthma symptoms and granted him an extension until the end

of the summer to complete his class work. Although Wayne Jr.'s

parents agreed to the Plan and the amendments, they remained

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concerned about whether these modifications would be an adequate

long-term solution.

Wayne Jr. resumed school in the fall of 1996. His

asthma problems persisted. In November, Wayne Jr.'s physician

suggested that he attend a different high school. The School

Department proposed placing Wayne Jr. at the Exeter-West

Greenwich High School on a temporary basis while Wayne Jr.

received a comprehensive reevaluation, including a psychological

assessment. The plaintiffs objected to the psychological

testing and rejected the proposal. On January 29, 1997, the

plaintiffs requested a due process hearing before the Rhode

Island Commissioner for the Department of Education pursuant to

IDEA, 20 U.S.C. § 1415(f), alleging that Coventry had improperly

made the psychological testing a prerequisite to Wayne Jr.'s

transfer. Coventry also requested a hearing.

In March 1997, Coventry sent the plaintiffs an amended

Plan allowing for Wayne Jr.'s transfer to Exeter-West Greenwich

High School. The amended Plan provided for a transition period

at Exeter-West Greenwich High School during which Wayne Jr.

would attend regular classes and receive tutoring. Meanwhile,

the School Department would conduct air-quality tests at

Coventry High School. The Plan required Wayne Jr. and his

parents to commit to his attendance of classes and completion of

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assignments. After the ten-week transition period, the Coventry

School Department's multi-disciplinary team and the Exeter-West

Greenwich High School staff would evaluate the placement. If

the team concluded that the transfer was successful, the School

Department would reconsider the need for a psychological

assessment. The plaintiffs agreed to the amended Plan and both

sides withdrew their request for a due process hearing.

After entering the Exeter-West Greenwich High School

in April 1997, Wayne Jr. experienced academic difficulty.

Meanwhile, the results of the air tests at Coventry High School

showed that the air quality was normal. The multi-disciplinary

team recommended that Wayne Jr. return to Coventry High School

for the eleventh grade and remain closely monitored. Plaintiffs

objected to the team's recommendation, maintaining that Wayne

Jr. had not received the full amount of tutoring specified in

his Plan. After further meetings failed to produce a

satisfactory resolution, the plaintiffs again requested a due

process hearing before the Rhode Island Commissioner for the

Department of Education, alleging that Coventry High School had

not followed the terms of the amended Plan.

On August 19, 1997, the School Department offered to

place Wayne Jr. at the Exeter-West Greenwich High School for the

eleventh grade and withdraw the request for a psychological

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assessment. A few days later, however, the Town of Greenwich

informed Coventry that the Plaintiffs had moved to East

Greenwich and Wayne Jr. would begin the school year as a special

education student at East Greenwich High School (not to be

confused with Exeter-West Greenwich High School, the site of

Wayne Jr.'s temporary placement). On September 16, 1997,

Coventry and the plaintiffs signed a stipulation withdrawing the

pending petition for a due process hearing.

On October 17, 1997, Wayne and Donna Rose filed their

lawsuit, which was terminated by the court's entry of summary

judgment on the basis of the plaintiffs' failure to exhaust

administrative remedies. On this appeal, 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. IDEA and the Exhaustion Requirement

IDEA is a comprehensive education statute which seeks

to ensure that children with disabilities receive "a free

appropriate public education . . . designed to meet their unique

needs." 20 U.S.C. § 1400(d)(1)(A). IDEA requires state or

local agencies receiving federal funds under subchapter II of

IDEA to "establish and maintain procedures . . . to ensure that

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children with disabilities and their parents are guaranteed

procedural safeguards with respect to the provision of free

appropriate public education by such agencies." Id. § 1415(a);

see also Honig v. Doe, 484 U.S. 305, 310-12 (1988). If parents

or guardians believe that the state or local agencies are not

performing properly, they may present a complaint "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." Id. § 1415(b)(6).

A parent who files a complaint has the right to an "impartial

due process hearing" conducted by either the state or local

educational agency. Id. § 1415(f)(1).1

If the complainant remains dissatisfied after a due

process hearing, he or she may file a civil action in state or

federal court. See id. § 1415(i)(2)(A). Before filing suit,

however, IDEA mandates that plaintiffs exhaust administrative

1 IDEA mandates specific procedures for the due process
hearing. All parties have 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 20 U.S.C. § 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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remedies through the due process hearing. This requirement

applies even when the suit is brought pursuant to a different

statute so long as the party is seeking relief that is available

under subchapter II of IDEA. Section 1415(l) states:

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) of this section shall be
exhausted to the same extent as would be
required had the action been brought under
this subchapter.

The purpose of exhaustion is to "enable[] 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." Christopher W. v. Portsmouth Sch. Comm.,

877 F.2d 1089, 1094 (1st Cir. 1989).

The scope of the due process hearing is broad,

encompassing "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." Id. § 1415(b)(6). The plaintiffs alleged

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discrimination by the School Department against Wayne Rose, Jr.,

because it failed to ensure appropriate accommodation of his

asthma condition at both Coventry High School and Exeter-West

Greenwich High School, conditioned Wayne Jr.'s placement at

Exeter-West Greenwich High School on consent to a psychological

evaluation, retaliated against Wayne Jr. in response to the

Roses' efforts to enforce his educational rights, and generally

failed to implement his Plan. These complaints relate

unmistakably to the evaluation and educational placement of

Wayne Rose, Jr., in the Coventry school system and to the

provision of a free appropriate education there. Absent some

exception, these claims are subject to the IDEA exhaustion

requirement.

III. Exceptions to the Exhaustion Requirement

The plaintiffs invoke exceptions to the IDEA exhaustion

requirement based on the futility of exhaustion and the

potential for severe harm to the litigant. When Congress

adopted the predecessor statute to IDEA, Senator Williams warned

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." Christopher W., 877 F.2d at 1094 (quoting 121 Cong.

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Rec. 37416 (1975)). Legal doctrine is consistent with this

warning. A plaintiff does not have to exhaust administrative

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

unlawful general policy would make resort to the agency futile,

or that the administrative remedies afforded by the process are

inadequate given the relief sought. See id. Similarly,

exhaustion is not required where the agency has prevented the

litigant from pursuing the administrative process. See Pihl v.

Massachusetts Dep't of Educ., 9 F.3d 184, 190-91 (1st Cir.

1993).

In addition to the exception for futility, courts may

also exercise discretion if exhaustion "will not only waste

resources but also work severe harm upon a litigant." Ezratty

v. Commonwealth of Puerto Rico, 648 F.2d 770, 774 (1st Cir.

1981). Again, the legal doctrine is consistent with the

legislative history, which warns that exhaustion is not

necessary when "an emergency situation exists (e.g., the failure

to take immediate action will adversely affect a child's mental

or physical health)." Komninos v. Upper Saddle River Bd. of

Educ., 13 F.3d 775, 778 (3d Cir. 1994) (quoting H.R. Rep. No.

99-296, at 7 (1985)).

Frankly, we have found it difficult to understand the

precise nature of the plaintiffs' claims to an exception to the

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exhaustion requirement. As best we can divine, the plaintiffs

make three arguments. First, as a matter of law, they should

not have to exhaust administrative remedies because they were

the "prevailing party" in an agreement with the defendant School

Department which resulted in an amended Plan in April 1997.

Second, it was futile to pursue exhaustion because the school

department withdrew from a due process hearing on two separate

occasions. Third, exhaustion would have caused irreparable harm

to Wayne Jr. The burden of demonstrating an exception from the

exhaustion requirement falls on the party seeking to avoid the

requirement.2 See Honig, 484 U.S. at 327. The plaintiffs'

claims are unconvincing.

A. Prevailing Party

This argument is the strangest of the three, and hence

the most difficult to understand. The prevailing party concept

relates to claims for attorneys' fees when statutes provide for

them. Not surprisingly, IDEA refers to the concept of a

prevailing party only in its provision authorizing an award of

2
In a perfunctory manner, the plaintiffs suggest in their
brief that exhaustion was futile because they could not recover
monetary damages, the sole relief requested, through a due
process hearing. We do not address this complex issue under
“the settled appellate rule that issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.” See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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attorneys' fees to the parents of a disabled child who is the

prevailing party. See 20 U.S.C. § 1415(i)(3)(b). Borrowing the

language of the prevailing party provision but ignoring the

usual legal significance of the phrase, the Roses seem to argue

the following logic: 1) they wanted their son placed at the

Exeter-West Greenwich High School; 2) they "prevailed" in this

desire when Coventry agreed to this request and amended the Plan

for Wayne Jr.; 3) having prevailed, there was no further remedy

available to them through IDEA's due process hearing when the

School Department said Wayne Jr. should return to the Coventry

High School; and 4) they should therefore be allowed to go

directly to court to seek damages for the failure of the School

Department to abide by the agreement reflected in the amended

Plan.

The Roses offer no legal authority in support of their

prevailing party argument. Without suggesting in any way that

the argument has merit, we conclude that the argument fails

because the Roses mischaracterize the nature of their agreement

with the School District which resulted in the amended Plan of

April 1997. That Plan provided for a temporary placement of

Wayne Jr. at Exeter-West Greenwich High School, with the

duration of the placement to be reevaluated based on Wayne Jr.'s

academic performance and the results of air quality tests.

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Under the Plan, Wayne Jr. remained classified as a Coventry High

School student.

When the multi-disciplinary team recommended Wayne

Jr.'s return to Coventry High School based on their assessment

of his academic performance and the results of the air quality

tests, the School Department did not violate any agreement by

engaging in such a reevaluation. Moreover, such reevaluation is

consistent with the framework of IDEA itself which requires

reevaluation of the disabled child, "if conditions warrant a

reevaluation or if the child's parent or teacher requests a

reevaluation, . . . ." Id. § 1414(a)(2)(A). If the Roses did

not like the results of the reevaluation, they could do what

they in fact did -- file a request for a due process hearing to

challenge the reevaluation. Their decision to abandon that

process does not entitle them to claim that the administrative

process was futile.

B. Withdrawal From the Due Process Hearings

Ignoring their own decisions, the plaintiffs argue that

the defendants' withdrawal from the due process hearing on two

different occasions rendered exhaustion futile. In fact,

however, the plaintiffs and the School Department both withdrew

from the due process proceedings. Both sides withdrew their

first request for a due process hearing after the School

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Department amended Wayne Jr.'s Plan to allow for temporary

placement at Exeter-West Greenwich High School. The School

Department and the plaintiffs then stipulated in writing to the

withdrawal of the second petition for a due process hearing.

Moreover, at all times the plaintiffs retained the

right to pursue a due process hearing despite the School

Department's withdrawal of its own hearing requests. IDEA

specifically grants parents the right to unilaterally initiate

a due process hearing. See 20 U.S.C. § 1415(f)(1). The

defendants' withdrawal of the request for a due process hearing

did not render the administrative process futile.

C. Irreparable Harm

The plaintiffs claim that exhaustion of administrative

remedies would have caused irreparable harm to Wayne Jr. in the

sense that he would have experienced ill health effects and

absences from school if forced to return to Coventry High School

while the due process hearing was conducted. The exception for

irreparable harm "is to be sparingly invoked." Komninos v.

Upper Saddle River Bd. of Educ., 13 F.3d 775, 779 (3d Cir.

1994). Consistent with this principle, the Third Circuit has

required plaintiffs to "provide affidavits from competent

professionals along with other hard evidence that the child

faces irreversible damage if the relief is not granted." Id.;

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see also Koster v. Frederick County Bd. of Educ., 921 F. Supp.

1453, 1456 (D. Md. 1996) (refusing to grant an exception for

irreparable harm where the plaintiffs provided no evidence that

their disabled son would have been subject to severe harm from

exhaustion of the administrative process).

The Roses failed to provide evidence that Wayne Jr.

would have experienced severe harm if he returned to Coventry

High School, despite the School Department's test results

finding normal air quality at Coventry. The Roses also failed

to demonstrate a likelihood that Wayne Jr. would have so many

asthma-related absences while awaiting the due process hearing

as to cause "irreversible damage" to either his health or

education. They could not succeed with their demand for an

exhaustion exception without such evidence.

IV. Conclusion

Because the plaintiffs failed to exhaust their

administrative remedies, the district court correctly granted

the defendants' motion for summary judgment.

Affirmed.

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