[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-16133 April 18, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00468-CV-CAP-1
M.T.V.,
C.T.V.,
C.E.V.,
Plaintiffs-Appellants,
versus
DEKALB COUNTY SCHOOL DISTRICT,
SANDY FOXWORTH, individually, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 18, 2006)
Before EDMONDSON, Chief Judge, BLACK and FAY, Circuit Judges.
BLACK, Circuit Judge:
This appeal arises from a long-standing dispute between the parents of
M.T.V., a child eligible for special education services under the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1400, and the DeKalb County
School District. Appellants, M.T.V. and his parents, C.T.V. and C.E.V., first
argue the district court erred in dismissing their retaliation claims brought
pursuant to the IDEA, the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12101, Section 504 of the Rehabilitation Act (Section 504), 29 U.S.C. § 794, the
First Amendment, and 42 U.S.C. § 1983 against the School District and various
individual defendants for failing to exhaust the IDEA’s administrative remedies.
They next argue the district court erred in affirming an Administrative Law
Judge’s (ALJ’s) order requiring them to consent to the School District’s request to
reevaluate M.T.V, or else forfeit his services under the IDEA. We affirm.
I. BACKGROUND
A. Retaliation Claims
Though cognitively gifted, M.T.V. has several neurological disabilities and
attention deficit disorder. His disabilities affect his speech, language skills, motor
coordination, and vision. M.T.V. has been eligible for special education services
under the IDEA since he enrolled in the School District in 1997. When the School
District first evaluated M.T.V., it found him eligible for services only under the
2
IDEA’s “Speech and Language Impairment” category, even though his parents
also expressed concerns about possible motor impairments. In 1999, M.T.V.’s
parents continued to have these concerns and had him privately tested by an
independent evaluator. They learned he had significant motor deficits and, in
February 1999, asked the School District for an Individualized Education Program
(IEP) meeting to discuss adding services to improve his motor skills.
M.T.V.’s parents contend the School District then began what has become
“a long history of ongoing retaliation, coercion, intimidation, [and] threats.” They
allege the School District no longer allowed them to attend IEP meetings before or
during school, forcing them to find child care, and began limiting the time allotted
for IEP meetings, requiring them to attend multiple meetings and miss work each
time. They further allege the School District brought school administrators and
lawyers into IEP meetings who would harass and scream at them. They also make
numerous related allegations, including that the School District disallowed
M.T.V.’s former school occupational therapist from continuing to work with him
because she advocated for him at an IEP meeting; placed M.T.V. in a storage
closet for occupational therapy; refused to afford them the same privileges as other
parents, such as helping in the classroom and attending school functions; and
wrote them numerous harassing and intimidating letters.
3
As their relationship deteriorated, M.T.V.’s parents began pursuing formal
complaints against the School District. In April 2000, they filed a federal lawsuit
unrelated to this case. They allege the judge orally directed the School District not
to treat M.T.V. differently from other children and not to test M.T.V. without
parental consent. M.T.V. was then diagnosed with a vision impairment, and his
parents asked the school to provide vision therapy as a related service under
M.T.V.’s IEP. The school refused, and M.T.V.’s parents began providing the
therapy themselves. After the School District denied their request for
reimbursement, M.T.V.’s parents requested a due process hearing on the matter.
They allege the retaliation only worsened at this point. In fact, they allege the
School District devised a scheme to subject M.T.V. to countless needless and
intrusive tests, which brings us to their next claim.
B. Reevaluation Claim
In May 2002, M.T.V.’s IEP Team convened to discuss his continued
eligibility under the IDEA. The Team first determined he was eligible to continue
receiving speech services based on a reevaluation conducted in February 2002.
However, over his parents’ objections, the Team questioned his continued
eligibility for services addressing his motor impairments, which he had been
receiving under the IDEA’s “Other Health Impaired” (OHI) category since August
4
1999. Because he had made significant progress on his OHI goals, the School
District hired an expert to administer several different tests to M.T.V. The School
District sent a letter to his parents requesting consent to conduct the reevaluation,
explaining M.T.V. was due for his triennial evaluation under the IDEA and his
services might no longer be appropriate given his progress.
M.T.V.’s parents refused to consent to the reevaluation, complaining
M.T.V. “has been tested and tested and that needless or repetitive testing must be
avoided.” They argued the evaluation would include several tests unrelated to the
OHI category, such as IQ tests and psychiatric evaluations, and asserted this
unnecessary testing constituted harassment. After a series of attempts to secure
consent from M.T.V.’s parents, the School District requested a due process
hearing to enforce its right to evaluate M.T.V. by an expert of its choice. The ALJ
ruled in favor of the School District and ordered M.T.V.’s parents to cooperate
with the reevaluation.
C. Procedural History
M.T.V. and his parents filed a complaint against the School Board and
several defendants in their official and individual capacities, seeking injunctive
relief and damages for retaliation in violation of the ADA, Section 504, the IDEA,
5
the First Amendment, and § 1983.1 They also challenged the order entered by the
ALJ requiring M.T.V’s parents to consent to the School District’s reevaluation.
The district court first dismissed the plaintiffs’ retaliation claims because they
were subject to the IDEA’s exhaustion requirement, and the plaintiffs had neither
exhausted their administrative remedies nor shown such an effort would have been
futile. The court then affirmed the ALJ’s order, construing the School Board’s
motion for summary judgment as a motion for judgment on the record. M.T.V.
and his parents subsequently filed this appeal against the School District and three
individuals in their personal capacities, Stanley Hawkins and Wendy Jacobs,
lawyers who represent the School District, and Sandy Foxworth, a former special
education administrator for the School District.
II. STANDARD OF REVIEW
“We review de novo the district court’s grant of a motion to dismiss under
12(b)(6) for failure to state a claim, accepting the allegations in the complaint as
true and construing them in the light most favorable to the plaintiff.” Hill v.
White, 321 F.3d 1334, 1335 (11th Cir. 2003). “[T]he usual F.R. Civ. P. 56
1
They also alleged several other claims based on procedural and substantive due process,
but have not raised those claims on appeal. Incidentally, we agree with the district court that
both Appellants’ initial and amended complaints are “example[s] of ‘shotgun pleading’ of the
sort frowned upon in this circuit” and commend the court for sorting through all of Appellants’
claims.
6
summary judgment principles do not apply in an IDEA case.” Loren F. v. Atlanta
Indep. Sch. Sys., 349 F.3d 1309, 1313 (11th Cir. 2003). Because nothing prevents
“district judges from factfinding under F.R. Civ. P. 52 in IDEA cases,” their
decisions are “better described as judgment[s] on the record.” Id. at 1313-14
(quotation omitted). We, in turn, review the district judge’s interpretations of law
de novo and “[w]here the district court does not receive any additional evidence or
testimony, this court stands in the same shoes as the district court in reviewing the
administrative record and may, therefore, accept the conclusions of the ALJ and
district court that are supported by the record and reject those that are not.” Id.
(quotation omitted).
III. DISCUSSION
The primary purpose of the IDEA is “to ensure that all children with
disabilities have available to them a free appropriate public education [FAPE] that
emphasizes special education and related services designed to meet their unique
needs and prepare them for employment and independent living.” 20 U.S.C.
§ 1400(d)(1)(A).2 To meet this end, the IDEA provides funding to assist state and
2
The IDEA was recently amended by the Individuals with Disabilities Education
Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 (2004). The amendment did not
take effect until July 1, 2005 and therefore has no impact on this case. All IDEA citations in this
opinion refer to the 1997 version of the statute, which was in effect when the disputes between
Appellants and the School District arose.
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local agencies in educating children with disabilities. Id. § 1400(d). In turn, state
and local education agencies must identify children with disabilities and develop
annual IEPs for each child. Id. § 1414. The IEP is a comprehensive document
developed by a team of parents, teachers, and other school administrators outlining
the goals of the child, and the special education and related services needed to
meet those goals. Id. § 1414(d).
The IDEA also provides an extensive framework under which parents can
“present complaints with respect to any matter relating to the identification,
evaluation, or educational placement of the child, or the provision of a [FAPE] to
such child.” Id. § 1415(b)(6). Parents can first request “an impartial due process
hearing, which shall be conducted by the State educational agency or by the local
educational agency, as determined by State law or by the State educational
agency.” Id. § 1415(f). In Georgia, such hearings are conducted by the Office of
State Administrative Hearings. O.C.G.A. § 50-13-41(a)(1). If parents are
dissatisfied with the ALJ’s decision, they can then bring a civil action in either
state or federal court. 20 U.S.C. § 1415(i)(2)(a).
A. Retaliation Claims
Appellants argue the School District and various individual defendants
retaliated against them for asserting M.T.V.’s rights under the IDEA, and bring
8
claims based on § 1983, the ADA, Section 504, the IDEA, and the First
Amendment. The district court dismissed all claims because Appellants failed to
exhaust their administrative remedies as required by the IDEA. We agree their
retaliation claims are subject to the IDEA’s exhaustion requirement, and
Appellants neither exhausted their administrative remedies nor established they
were excused from doing so.3
The IDEA allows plaintiffs to seek “remedies available under the
Constitution, [the ADA, Section 504], or other Federal laws protecting the rights
of children with disabilities.” 20 U.S.C. § 1415(l). Nonetheless, it also subjects
these claims to an exhaustion requirement: “[B]efore 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.” Id. Thus, whether claims asserting the rights of disabled children are
brought pursuant to the IDEA, the ADA, Section 504, or the Constitution, they
3
“[T]he Court finds dismissal is appropriate for [Appellants’] failure to exhaust necessary
administrative remedies as a prerequisite to filing this action.” N.B. v. Alachua County Sch. Bd.,
84 F.3d 1376, 1378 (11th Cir. 1996). Because Appellants failure to exhaust their claims
precludes judicial review, we have no occasion to decide (1) whether the IDEA’s comprehensive
enforcement scheme precludes § 1983 actions based on IDEA violations; or (2) whether
individuals can be held liable in their personal capacities for retaliation in violation of Section
504 or the IDEA.
9
must first be exhausted in state administrative proceedings. As we have explained,
“[t]he 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.” N.B., 84 F.3d at 1378
(quotation omitted).
This Court has held “any student who wants ‘relief that is available under’
the IDEA must use the IDEA’s administrative system, even if he invokes a
different statute.” Babicz v. Sch. Bd. of Broward County, 135 F.3d 1420, 1422
n.10 (11th Cir. 1998) (citing Charlie F. v. Bd. of Educ. of Skokie Sch. Dist., 98
F.3d 989, 991 (7th Cir. 1996)). In Babicz, two sisters with chronic asthma filed a
complaint seeking compensatory damages and injunctive relief, alleging their
school had failed to implement their Section 504 plans, and had retaliated against
them and their mother for hiring an attorney. Id. at 1421. In affirming the district
court’s dismissal of their claims, we held “claims asserted under Section 504
and/or the ADA are subject to Section 1415(f)’s requirement that litigants exhaust
the IDEA’s administrative procedures to obtain relief that is available under the
IDEA before bringing suit under Section 504 and/or the ADA.” Id. at 1422; see
also N.B., 84 F.3d at 1379 (holding litigants cannot “avoid the exhaustion
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requirement simply by asking for relief that administrative authorities [cannot]
grant,” such as money damages).
Appellants argue that because “the IDEA does not give parents a right to
file actions for retaliation against them,” the relief they seek is not “relief
available” under the IDEA and, therefore, their retaliation claims are not subject to
the IDEA’s exhaustion requirement. This position, however, is inconsistent with
both Babicz and the plain language of the IDEA. In Babicz, the complaint alleged
the students’ parent “was forced out of her position as PTA president; was
restricted from moving freely within the school, followed sometimes by school
personnel; and was denied a visitor’s pass on two occasions.” Babicz, 135 F.3d at
1421 n.7. In holding the plaintiffs failed to exhaust their remedies, we did not
differentiate between the parent’s retaliation claims and the claims based on the
students’ educational plans. Id. at 1422.
Furthermore, the IDEA’s broad complaint provision 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 [FAPE] to such child.” 20 U.S.C. § 1415(b)(6) (emphasis added). M.T.V.’s
parents contend the School District retaliated against them for “advocat[ing] for
their son’s legal rights to receive an appropriate education and be free from
11
discrimination based solely upon his disabilities.” Among other injuries, they
allege the School District harassed them at IEP meetings, wrote them intimidating
letters in response to their educational demands, and subjected M.T.V. to needless
and intrusive testing. Their retaliation claims clearly relate to M.T.V.’s evaluation
and education, and, therefore, are subject to the exhaustion requirement. See
Weber v. Cranston Sch. Comm., 212 F.3d 41, 51 (1st Cir. 2000) (“Weber’s claim
of retaliation is literally ‘related’ to the identification, evaluation, or educational
placement of [her] ‘child.’”); Rose v. Yeaw, 214 F.3d 206, 210 (1st Cir. 2000)
(holding all the plaintiff’s claims, including that the school “retaliated against [the
student] in response to the [parents’] efforts to enforce his educational rights,”
were subject to the IDEA’s exhaustion requirement because they “relate
unmistakably to the evaluation and educational placement of [the student]”).
Because we hold Appellants’ retaliation claims are subject to the IDEA’s
exhaustion requirement, the question becomes whether Appellants exhausted their
administrative remedies or were excused from doing so. M.T.V.’s parents do not
allege they ever requested a due process hearing with respect to their retaliation
claims, but instead argue they raised the retaliation issue at other due process
hearings brought by themselves and the School District. This is insufficient to
establish exhaustion. Section 1415(i)(2)(A) of the IDEA, which allows parties to
12
file an action challenging an ALJ’s final decision, provides “any party aggrieved
by the findings and decision under this subsection shall have the right to bring a
civil action with respect to the complaint presented pursuant to this section.”
(emphasis added). To pursue claims for retaliation, the plain language of the
IDEA required Appellants to file a separate administrative complaint to raise that
issue and exhaust all administrative remedies regarding that complaint before
filing a judicial action. They failed to do so.
Appellants also fail to show their non-compliance with the IDEA’s
exhaustion requirement should be excused. As we have held, “[t]he exhaustion of
. . . administrative remedies is not required where resort to administrative remedies
would be 1) futile or 2) inadequate.” N.B., 83 F.3d at 1379. The burden of
demonstrating futility is on the party seeking exemption from the exhaustion
requirement. See Honig v. Doe, 484 U.S. 305, 327, 108 S. Ct. 592, 606 (1988).
M.T.V.’s parents’ speculative allegations of futility and inadequacy simply fail to
sustain this burden.4 Accordingly, we conclude Appellants failed to exhaust the
IDEA’s administrative remedies with respect to their retaliation claims and affirm
the district court’s dismissal of these claims.
4
For example, M.T.V.’s parents allege past administrative proceedings in which they
participated suffered from procedural deficiencies. Even if true, we refuse to construe past
deficiencies as a reason for excusing Appellants from exhausting future IDEA complaints.
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B. School District’s Right to Reevaluate M.T.V.
Appellants also argue the district court erred in affirming the ALJ’s order
requiring them to consent to the School District’s request to reevaluate M.T.V by
an expert of its choice, or else forfeit his OHI services.5 In light of the IDEA’s
strict reevaluation requirements, we conclude the district court committed no error
in granting the School District a judgment on the record.
Before a child with a disability may begin receiving services under the
IDEA, “[a] State educational agency, other State agency, or local educational
agency shall conduct a full and individual initial evaluation.” 20 U.S.C.
§ 1414(a)(1)(A). Subsequent evaluations must be conducted “if conditions
warrant a reevaluation or if the child’s parent or teacher requests a reevaluation,
but at least once every 3 years.” Id. § 1414(a)(2)(A).
Every court to consider the IDEA’s reevaluation requirements has
concluded “[i]f a student’s parents want him to receive special education under
IDEA, they must allow the school itself to reevaluate the student and they cannot
force the school to rely solely on an independent evaluation.” Andress v.
5
Appellants further argue the School District failed to review existing OHI evaluation
data, as required by § 1414(c)(1). We reject this argument. The May 2002 IEP Team meeting
minutes reveal the Team “reviewed progress on objectives related to [OHI] eligibility” and
reviewed the “eligibility report of August 19, 1999 for OHI.”
14
Cleveland Indep. Sch. Dist., 64 F.3d 176, 178-79 (5th Cir. 1995); see also Johnson
by Johnson v. Duneland Sch. Corp., 92 F.3d 554, 558 (7th Cir. 1996) (“[B]ecause
the school is required to provide the child with an education, it ought to have the
right to conduct its own evaluation.”); Gregory K. v. Longview Sch. Dist., 811
F.2d 1307, 1315 (9th Cir. 1987) (holding parents must permit mandatory
reassessments under the Education of the Handicapped Act, the IDEA’s
predecessor, if they want their child to receive special education services); DuBois
v. Conn. State Bd. of Ed., 727 F.2d 44, 48 (2d Cir 1984) (same).
We agree with these courts and hold the School District was entitled to
reevaluate M.T.V. by an expert of its choice. M.T.V. was initially deemed eligible
for OHI services in August 1999, making his triennial evaluation for continued
OHI eligibility due in 2002. Conditions also warranted a reevaluation because
M.T.V. had made significant progress on his OHI goals. Finally, the School
District had a right to condition M.T.V.’s continued OHI services on a
reevaluation by an expert of its choice because M.T.V.’s initial OHI-eligibility
was based primarily on evaluations provided by his parents. We agree “the school
cannot be forced to rely solely on an independent evaluation conducted at the
15
parents’ behest.” Johnson, 92 F.3d at 558.6 Accordingly, the district court did not
err in affirming the ALJ’s order requiring M.T.V. to submit to the School
District’s reevaluation in order to remain eligible for OHI services.
IV. CONCLUSION
The district court did not err in dismissing Appellants’ retaliation claims
because Appellants failed to exhaust their administrative remedies, which is a
prerequisite to filing this action. The district court also did not err in affirming the
ALJ’s order because the IDEA plainly gives the School District the right to
reevaluate M.T.V. by an expert of its choice.
AFFIRMED.
6
We also reject Appellants’ argument that the School District’s proposed reevaluation
would harm M.T.V. because he had already undergone so much testing. The administrative
record does not support this conclusory allegation but, instead, reveals M.T.V.’s parents initiated
much of the testing, an action inconsistent with their claim of alleged harm.
16