1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 N.R. and D.R. by and through his parent, Case No.: 21-cv-01759-AJB-WVG N.R., 12 Plaintiffs, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANT’S MOTION TO DISMISS 14 DEL MAR UNIFIED SCHOOL 15 DISTRICT, (Doc. No. 9) Defendant. 16 17 Before the Court is Defendant Del Mar Unified School District’s (“Defendant” or 18 “District”) motion to dismiss Plaintiffs N.R. and D.R.’s (collectively, “Plaintiffs”) First 19 Amended Complaint (“FAC”). (Doc. No. 9.) Plaintiffs filed a response, to which Defendant 20 replied. (Doc. Nos. 11, 12.) For the reasons set forth, the Court GRANTS IN PART and 21 DENIES IN PART Defendant’s motion to dismiss. 22 I. BACKGROUND 23 Plaintiff D.R. (“D.R.”) is a twelve-year-old special education student of the District. 24 (Doc. No. 6, FAC ¶ 6.) D.R. is a disabled student whose disabilities are related to attention 25 and sensory processing, including ADHD, Sensory Processing Disorder, and Dyslexia. 26 (Id.) As a special education student with a disability, Plaintiff is eligible for protections 27 under the Individuals with Disabilities Education Act (“IDEA”), the Americans with 28 Disabilities Act (“ADA”), and Section 504 of the Rehabilitation Act (“Section 504”). (Id.) 1 Plaintiff N.R. (“Parent”) is D.R.’s parent and resides with D.R. in San Diego. (Id. ¶ 7.) 2 Defendant is a public entity organized and existing under the laws of the State of California, 3 located in Del Mar, California. (Id. ¶ 8.) 4 At the relevant time, D.R. was attending Ashley Falls Elementary School, located 5 within the District, and for the 2019-2020 school year, had a special education 6 Individualized Education Plan (“IEP”) (“2019 IEP”). (Id. ¶¶ 9, 10.) The IEP required, 7 among other things, that D.R. was to spend 49% of his week in a “Special Day Classroom” 8 where there were only special education students and no general education students. (Id. 9 ¶¶ 10–12.) D.R. was to spend 51% of his week in a general education classroom with 10 general education students. (Id.) Parent contends that, during that year, the District violated 11 the 2019 IEP because the District included as part of D.R.’s general education time a period 12 called the “lunch bunch.” (Id. ¶14.) Parent alleges that because only special education 13 students attended “lunch bunch,” the lunch period functioned as a de facto segregated 14 special-education-only lunch. (Id. ¶ 15.) Parent also claims that D.R. refused to attend a 15 general education science, technology, engineering, arts, and mathematics (“STEAM”) 16 class for two hours per day because general education students were bullying him. (Id. ¶¶ 17 16–19.) Parent additionally alleges that D.R. did not receive sufficient adult “push-in” 18 support per the 2019 IEP, which required five hundred minutes per week to help facilitate 19 D.R.’s inclusion with his peers in the general education classroom during the 2019-2020 20 school year. (Id. ¶¶ 20–23.) 21 Beginning in March 2020 and continuing through the end of the school year, and 22 because of the COVID-19 pandemic, D.R. was assigned to distance learning. (Id. ¶ 24.) 23 Parent asserts that during this time, the District ceased to provide D.R. the services and 24 accommodations needed to enable D.R., per the 2019 IEP, to obtain a free and appropriate 25 public education (“FAPE”) in a distance-learning environment. (Id. ¶¶ 24–27.) As a result, 26 D.R. regressed in all areas. (Id. ¶ 28.) 27 In August 2020, because of a District policy related to the COVID-19 pandemic, the 28 District placed D.R. in a segregated special day class 100% of the time. (Id. ¶¶ 29, 30.) On 1 September 8, 2020, Parent submitted a request for a due process hearing with the California 2 Office of Administrative Hearings (“OAH”), seeking to have D.R. placed at least part time 3 in the general education class, as required by the 2019 IEP. (Id. ¶ 31.) 4 On October 1, 2020, the Administrative Law Judge assigned to hear Parent’s request 5 for due process issued an order directing the District to place D.R. full-time in a general 6 education classroom. (Id. ¶ 32.) The judge explained that under the 2019 IEP, D.R. is 7 supposed to “spend a majority of time in the general education setting,” and if the District 8 had to choose whether to place D.R. full-time in a single cohort of students, then it should 9 choose the general education placement over the special education placement. (Id.) Per the 10 OAH’s order, the District moved D.R. to a general education class, but D.R. spent some of 11 his time in general education class sitting by himself and viewing the special education day 12 class via a video conference system. (Id. ¶ 37.) 13 Having secured an order by the OAH as to D.R.’s placement in a general education 14 classroom, Parent withdrew the rest of her request for due process with the OAH. (Id. ¶ 36.) 15 The District then sent Parent a notice indicating it would no longer abide by the OAH’s 16 October 1, 2020, “stay-put” order, and that from November 11, 2020 until the end of the 17 2020-2021 school year, the District would place D.R. in a segregated special day class 18 again for 100% of the day, and that he would be able to access general education classes 19 virtually through the video conference system. (Id. ¶ 37.) Plaintiffs contend that this 20 violation of the 2019 IEP was in retaliation for Parent’s advocacy for D.R., and that it 21 caused D.R. to regress socially, behaviorally, and educationally. (Id. ¶¶ 35, 38.) 22 In November 2020, Parent joined a class action on behalf of California special 23 education students who had been denied services and support provided for in their IEPs 24 during distance learning due to COVID-19. (Id. ¶ 41.) The Peters Firm brought the class 25 action, and Parent agreed to be represented the Peters Firm. (Id. ¶ 42.) On December 18, 26 2020, the Peters Firm filed a request for a due process hearing on D.R.’s behalf with the 27 OAH (“Plaintiffs’ Due Process Complaint”). (Id. ¶ 43.) That matter was later consolidated 28 with a separate due process request filed by the District against D.R. (the “District’s Due 1 Process Complaint”). (Id. ¶ 45.) 2 On June 28, 2021, about ten days before the consolidated due process hearing was 3 scheduled to begin, Parent began filing her own motions to continue the case and to amend 4 Plaintiffs’ Due Process Complaint. (Id. ¶ 52.) The OAH denied the motions without 5 prejudice because Parent was represented by the Peters Firm. (Id. ¶ 53.) At the pretrial 6 video conference that same day, Parent objected to the due process hearings proceeding as 7 a consolidated matter, explaining that the Peters Firm had not been retained to represent 8 D.R. or Parent in defending against the District’s Due Process Complaint. (Id. ¶ 54.) The 9 next day, Parent filed her own motions for reconsideration and to continue the consolidated 10 due process hearings, on which the OAH took no action because Parent and D.R. were still 11 represented by counsel. (Id. ¶ 55.) 12 On July 1, 2021, the Peters Firm filed a motion for permissive withdrawal in the 13 District’s Due Process Complaint. (Id. ¶ 56.) The OAH took no action on the motion to 14 withdraw, reasoning that D.R. could not be represented by an attorney on the Plaintiffs’ 15 Due Process Complaint and a parent on the District’s Due Process Complaint 16 simultaneously in the consolidated action. (Id.) On the day before the consolidated due 17 process hearings, Parent again filed her own motions to reconsider, vacate, or reverse prior 18 OAH rulings denying or taking no action on the prior motions to continue and taking no 19 action on the motion for permissive withdrawal by counsel. (Id. ¶ 57.) Parent also filed a 20 motion to compel and requested other relief based on her lack of access to the case files. 21 (Id. ¶ 58.) 22 At the outset of the July 7, 2021 consolidated hearings, the presiding Administrative 23 Law Judge (“ALJ”) granted the Peters Firm’s motion to withdraw in the District’s Due 24 Process Complaint, bifurcated Plaintiffs’ Due Process Complaint and the District’s Due 25 Process Complaint, and continued the hearing on the District’s Complaint to August 24, 26 2021. (Id. ¶ 60.) The ALJ confirmed with Parent whether she was still willing to go forward 27 on Plaintiffs’ Due Process Complaint hearing represented by the Peters Firm, and she 28 1 confirmed that she was. (Doc. No. 12-1, Exh. 1 at 7.) 2 The due process hearing commenced on July 7, 2021, and continued through the 3 next day, with five witnesses testifying. (FAC ¶ 61.) The ALJ resumed the hearing on July 4 13, 2021, at the outset of which Parent filed another pro se motion to reconsider and vacate 5 certain prior orders, continue the hearing, and to discharge the Peters Firm as Plaintiffs’ 6 attorneys. (Id. ¶¶ 62–64.) Parent confirmed to the ALJ that she no longer wished to be 7 represented by the Peters Firm, and the Peters Firm thereafter made an oral motion to 8 withdraw as Plaintiffs’ attorneys. (Id. ¶¶ 63, 64.) The ALJ informed Parent of the 9 consequences of granting the Peters Firm’s motion to withdraw, including that Parent 10 would have to proceed pro se as representative of Plaintiffs and should be prepared to call 11 her next witness. (Id. ¶ 66.) Parent again confirmed she wanted to terminate Plaintiffs’ 12 attorneys. (Doc. No. 12-1, Exh. 1 at 4–5.) 13 The ALJ granted the Peters Firm’s motion to withdraw, and after a brief recess, 14 asked Parent to call Plaintiffs’ next witness. (Id. at 5.) Parent requested an injunction to 15 stop the proceeding, which the ALJ denied. (Id.) The ALJ gave Parent a brief recess to 16 prepare to call her next witness, and when the hearing resumed, Parent objected to 17 proceeding. (Id. at 5.) 18 After the ALJ once again warned Parent that she would need to proceed because no 19 further continuances would be granted, Parent refused to go forward. (Id. at 5–7.) The ALJ 20 then granted the District’s motion to dismiss Plaintiffs’ Due Process Complaint with 21 prejudice. (FAC ¶ 69.) 22 Around the same time, Parent and the District attempted to develop a new IEP for 23 D.R. for the next school year, as required yearly under the IDEA. Over a period of eight 24 months, five meetings took place. (Id. ¶ 71.) According to the FAC, on April 12, 2021, the 25
26 1 Defendant attached to its briefing a copy of the OAH ruling on July 13, 2021. (Doc. No. 12-1.) Because Plaintiffs’ FAC references the OAH ruling, and because the ruling forms the basis of their claims, the 27 Court considers its contents under the incorporation by reference doctrine. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018). As the OAH ruling is incorporated by reference, 28 1 District completed a reading of D.R.’s IEP without Parent and made a decision concerning 2 D.R.’s placement and services (“2020 IEP”). Parent contends that the 2020 IEP is deficient 3 both procedurally and substantively, and does not address D.R.’s behavior issues, his 4 auditory processing sensory deficits, or the provision of adequate accommodations and 5 services to address numerous areas of need. (Id. ¶¶ 77–81.) 6 On October 12, 2021, Plaintiffs filed this civil action, asserting violations of the 7 ADA, Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 794, and an appeal of the July 8 13, 2021 decision of the OAH to dismiss Plaintiffs’ Due Process Hearing Complaint. (Doc. 9 No. 1.) Defendant then filed a Motion to Dismiss Plaintiffs’ Complaint, and Plaintiffs filed 10 a FAC in lieu of an opposition. (Doc. Nos. 3, 6.) Defendant’s Motion to Dismiss the FAC 11 follows. (Doc. No. 9.) 12 II. LEGAL STANDARD 13 A motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) tests the legal 14 sufficiency of a complaint, i.e. whether the complaint lacks either a cognizable legal theory 15 or facts sufficient to support such a theory. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 16 2001) (citations omitted). For a complaint to survive a Rule 12(b)(6) motion to dismiss, it 17 must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is 18 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 19 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In reviewing the motion, the Court “must 20 accept as true all of the allegations contained in a complaint,” but it need not accept legal 21 conclusions. Id. “Threadbare recitals of the elements of a cause of action, supported by 22 mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Neither 23 must a court “accept as true allegations that contradict matters properly subject to judicial 24 notice or by exhibit.” In re Gilead Sciences Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) 25 (citing Sprewell v. Golden State Warriors, 266 F. 3d 979, 988 (9th Cir. 2001)). 26 III. DISCUSSION 27 Defendant seeks to dismiss the entirety of Plaintiffs’ FAC, arguing that: (1) all of 28 Plaintiffs’ claims are subject to the IDEA’s exhaustion requirement; (2) Plaintiffs failed to 1 exhaust their administrative remedies; and (3) none of the exceptions to the exhaustion 2 requirement applies. The Court discusses the purpose and background of the IDEA and 3 considers Defendant’s arguments in turn. 4 A. IDEA Purpose and Background 5 Congress enacted the IDEA “to ensure that all children with disabilities have 6 available to them a free appropriate public education that emphasizes special education and 7 related services designed to meet their unique needs[.]” 20 U.S.C. § 1400(d)(1)(A). The 8 IDEA offers federal funds to States in exchange for a commitment to provide a FAPE to 9 all children with certain physical or intellectual disabilities. Fry v. Napoleon Cmty. Sch., 10 137 S. Ct. 743, 748 (2017) (citing § 1401(3)(A)(i) (listing covered disabilities)). Under the 11 statute, an individualized education program or IEP “serves as the primary vehicle for 12 providing each child with the promised FAPE.” Id. at 749 (internal quotations and citation 13 omitted). The IEP is crafted by a child’s “IEP Team,” comprising of school officers, 14 teachers, and parents, and documents the child’s present academic achievement, yearly 15 goals, and the special education and related services to be provided to achieve those goals. 16 Id. 17 The IDEA also “provides a framework for promptly addressing disputes over an 18 IEP.” D.D. by & through Ingram v. Los Angeles Unified Sch. Dist., 18 F.4th 1043, 1049 19 (9th Cir. 2021) (en banc). “To begin, a dissatisfied parent may file a complaint as to any 20 matter concerning the provision of a FAPE with the local or state educational agency (as 21 state law provides).” Fry, 137 S. Ct. at 748 (citing § 1415(b)(6)). The complaint generally 22 triggers a preliminary meeting and offer an opportunity to resolve the dispute through 23 mediation. See id.; D.D., 18 F.4th at 1049. “If the grievance remains, the parties proceed 24 to a due process hearing before an impartial arbiter, who determines whether the child 25 received a FAPE.” D.D., 18 F.4th at 1049 (citation omitted). 26 “[A] parent unhappy with the outcome of the administrative process may seek 27 judicial review by filing a civil action in state or federal court.” Fry, 137 S. Ct. at 749 28 (citing § 1415(i)(2)(A)). Before filing a civil action, however, parents must first exhaust 1 their administrative remedies. § 1415(l). Exceptions to the administrative exhaustion 2 requirement are limited to instances where “resorting to the administrative process would 3 be either futile or inadequate.” Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 4 (9th Cir. 1992). 5 With the purpose and statutory framework of the IDEA in mind, the Court turns to 6 the merits of the instant motion to dismiss. 7 B. Failure to Exhaust Administrative Remedies 8 As previously noted, Defendants argue that all of Plaintiffs’ claims must be 9 dismissed for failure to exhaust administrative remedies. Plaintiffs raise six claims—one 10 of which is for an appeal of the OAH’s July 13 decision pursuant to the IDEA, and the 11 others for claims arising under federal statutes other than the IDEA. Plaintiffs concede that 12 their IDEA claim requires administrative exhaustion but contend that the rest of their 13 claims do not. 14 “A plaintiff seeking relief for the denial of a FAPE ordinarily must exhaust the 15 administrative process before filing a lawsuit, even if the plaintiff asserts claims arising 16 under the Constitution or a federal statute other than the IDEA.” Martinez v. Newsom, 17 No. 20-56404, -- F.4th --, 2022 WL 3642172, at *6 (9th Cir. Aug. 24, 2022). To determine 18 whether a plaintiff must exhaust administrative remedies “in a case purportedly invoking 19 statutes other than the IDEA,” a court must “determine whether the gravamen of the 20 plaintiff’s suit is something other than the denial of the IDEA’s core guarantee—a free 21 appropriate public education.” Paul G. by & through Steve G. v. Monterey Peninsula 22 Unified Sch. Dist., 933 F.3d 1096, 1100 (9th Cir. 2019) (citing Fry, 137 S. Ct. at 748) 23 (alterations omitted) 24 To assist the court’s inquiry, the Supreme Court in Fry v. Napoleon Community 25 Schools offered clues, including (1) “whether the plaintiff could have brought essentially 26 the same claim if the alleged conduct had occurred at a public facility that was not a 27 school,” (2) “whether an adult at the school could have pressed essentially the same 28 grievance,” and (3) “whether the plaintiff previously invoked administrative remedies.” 1 Paul G., 933 F.3d at 1100. If the answers to the first two questions are yes, then the 2 gravamen of the complaint probably does not implicate the IDEA’s concern for appropriate 3 education because ‘“the same basic suit’ could go forward without the FAPE obligation.” 4 D. D., 18 F.4th at 1050 (quoting Fry, 137 S. Ct. at 756). However, if the answers are no, 5 “the complaint probably concerns a FAPE, as ‘the FAPE requirement is all that explains 6 why only a child in the school setting (not an adult in that setting or a child in some other) 7 has a viable claim.’” Id. As to the third question, a plaintiff’s initial choice to invoke the 8 IDEA’s administrative procedures may suggest that the relief sought is indeed for the 9 denial of a FAPE. Id. at 1051. 10 1. Discrimination Claims under the ADA & Section 504 11 Turning to whether Plaintiffs’ non-IDEA claims are subject to exhaustion, the Court 12 begins with their disability discrimination claims under the ADA and Section 504. In 13 support of their ADA and Section 504 claims, Plaintiffs point to paragraphs 91 through 93 14 of the FAC. According to Plaintiffs, the District discriminated against D.R. based on his 15 disability when it responded to the COVID-19 pandemic by placing D.R. in a “cohort” of 16 all disabled children that was kept strictly segregated from non-disabled children for nearly 17 all of the 2020-21 school year. (FAC ¶¶ 91–93.) 18 Having reviewed the substance of the FAC, the Court finds that Plaintiffs have 19 simply recast what are essentially IDEA claims as ADA and Section 504 discrimination 20 claims. See Fry, 137 S. Ct. at 755 (The examination of a plaintiff’s complaint “should 21 consider substance, not surface” and exhaustion of non-IDEA clams is required “when the 22 gravamen of a complaint seeks redress for a school’s failure to provide a FAPE, even if not 23 phrased or framed in precisely that way.”). Plaintiffs’ allegations that D.R. was denied 24 access to the general education classroom necessarily implicates the denial of a FAPE 25 because they relate to the individualized educational requirements set forth in D.R.’s 2019 26 IEP and the OAH “stay-put” order, which required that D.R. spend the majority of his time 27 in a general education classroom. (FAC ¶¶ 12, 32.) 28 Applying the Fry factors, the Court finds that Defendant’s denial of an appropriate 1 school placement and related educational services is not a claim that Plaintiff could have 2 brought at a public facility other than a school, and an adult at the school could not have 3 pursued the same education-based grievances as Plaintiffs. See Fry, 137 S. Ct. at 756. 4 Further evidencing that the gravamen of Plaintiffs’ discriminations claims is a denial of a 5 FAPE, Plaintiffs initially invoked the IDEA’s administrative procedures. See id. at 757 (“A 6 further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history 7 of the proceedings.”). Prior to filing this suit, Plaintiffs “submitted a request for a due 8 process hearing” with the OAH “seeking to have D.R. placed, as required by his IEP, at 9 least part time in the general education classroom.” (FAC ¶ 31.) 10 Accordingly, the Court finds that a close examination of Plaintiffs’ FAC reveals that 11 the gravamen of their discrimination claims under the ADA and Section 504 is the denial 12 of the IDEA’s core guarantee of a FAPE, and thus, administrative exhaustion is required. 13 See Fry, 137 S. Ct. at 755. 14 2. Harassment Claim under the ADA 15 Next, the Court turns to Plaintiffs’ harassment claim under the ADA. Plaintiffs point 16 to paragraphs 111 through 115 of the FAC as the basis for their harassment claim. 17 According to Plaintiffs, general education students physically harassed and bullied D.R. 18 based on his disability during the 2019–2020 school year, and the District was aware of the 19 harassment. (FAC ¶¶ 111, 113.) Plaintiffs allege that the other school children harassed 20 D.R. by calling him names, hitting him, making derisive comments about him, and leaving 21 him out of activities. (Id. ¶¶ 19, 113, 114.) Plaintiffs assert the harassment caused D.R. to 22 “miss substantial class time” and that the “emotional distress caused by the harassment 23 caused him to act in ways that led to further punishment and removal from class and from 24 school.” (Id. ¶ 112.) Plaintiffs claim the District knew about the harassment, but “did not 25 take any action to end the harassment or prevent future cases of harassment,” thereby 26 “perpetuat[ing] the existence of a hostile educational environment for D.R.” (Id. ¶ 115.) 27 Plaintiffs contend their harassment claim does not require exhaustion and cite D. D. 28 by & through Ingram v. Los Angeles Unified Sch. Dist. in support. Plaintiffs represent to 1 the Court that in D.D., the Ninth Circuit found that claims of physical abuse and harassment 2 “do not require exhaustion.” (Doc. No. 11 at 10.) Plaintiffs are mistaken. While the Ninth 3 Circuit noted “that D.D.’s operative complaint contains some allegations arguably 4 unrelated to the District’s obligation to offer a FAPE, such as physical abuse by students 5 and harassment by staff[,]” it nevertheless found D.D.’s claims require exhaustion. Id. at 6 1055. (“[T]he allegations in this case require exhaustion.”). The Ninth Circuit did not create 7 a categorical rule that claims of physical abuse and harassment do not require exhaustion. 8 To the contrary, the D.D. court emphasized “that the inquiry necessarily turns on the 9 specific factual allegations of each complaint.” Id. After conducting a substantive review 10 of D.D.’s complaint, the Ninth Circuit found that exhaustion under the IDEA was required 11 because D.D. (1) chose not to draft a complaint focused on the physical abuse and 12 harassment allegations or seek relief only for damages arising from them, (2) “offered a 13 complaint that maps almost perfectly onto his IDEA claims,” and (3) “alleges he will 14 continue to suffer loss of equal education opportunity.” Id. Similar circumstances are 15 present here. 16 Like the plaintiff in D.D., Plaintiffs in this case did not draft a complaint focused on 17 harassment allegations, nor do they seek relief only for damages arising from them. See id. 18 Instead, they offered a FAC that maps closely their claims for a denial of a FAPE, which 19 in this instance concerns the IEP requirement that D.D. be provided “five hundred minutes 20 per week of adult ‘push-in’ assistance to help facilitate his inclusion with all of his General 21 Ed peers.” (FAC ¶ 21.) Plaintiffs argue that the denial of “push-in” support is separate from 22 their harassment claims. But that is not how they pled their claims. Tellingly, in the FAC, 23 Plaintiffs organized the allegations pertaining to D.R.’s harassment and those pertaining to 24 the lack of adult push-in support under the same subheading titled: “Bullying and 25 Insufficient Support in General Education.” There, Plaintiffs describe the bullying D.R. 26 suffered, and immediately after, describe the District’s failure to provide adequate adult 27 push-in support to facilitate D.R.’s inclusion in the general education classroom. (Id. 28 ¶¶ 16–23.) Indeed, Plaintiffs themselves expressly relate the two, alleging “[t]his lack of 1 support exacerbated the effects of the bullying” and caused D.R. to miss substantial time 2 in general education. (Id. ¶¶ 22, 23, 112.) Plaintiff also explicitly pled that the District 3 denied D.R. a FAPE by “failing to protect D.R. from bullying.” (Id. ¶ 155.) Plaintiffs’ artful 4 attempt to separate the harassment claim from the District’s obligation to provide a FAPE 5 is therefore unavailing. 6 Turning then to the first question under Fry—whether Plaintiffs could “have brought 7 essentially the same claim if the alleged conduct had occurred at a public facility that was 8 not a school—say, a public theater or library,” 137. S. Ct. at 756—the Court is hard-pressed 9 to find that a child could claim that a public library or theater should provide sufficient 10 adult support for that child to facilitate his or her inclusion among peers in that public 11 facility. As to Fry’s second question: whether an adult visitor or employee at the school 12 could bring the same claim, the Court answers no. Like in D.D., the Court finds it difficult 13 to picture an adult visitor or employee at the school request the District to provide adult 14 push-in support to facilitate inclusion in the general education classroom. See 18 F.4th at 15 1054. The difficulty of transplanting the FAC to those other contexts suggests that its 16 essence, despite its wording, is the provision of a FAPE. See Fry, 137 S. Ct. at 757. 17 As for the third Fry factor, which concerns whether Plaintiffs have previously 18 invoked the IDEA’s dispute resolution procedures, the record is unclear as to whether 19 Plaintiffs filed a formal complaint over the alleged lack of adequate push-in support. At 20 the very least, however, the FAC shows that Plaintiffs made their complaint that D.R. 21 received insufficient adult support known to teachers as the matter was the topic of an IEP 22 meeting. (FAC ¶ 20.) In the Court’s view, this history also indicates that the crux of the 23 claims is for the denial of individually tailored educations services for children with 24 disabilities. 25 Having considered the Fry factors, the Court finds the gravamen of Plaintiffs’ 26 harassment claim under the ADA is the denial of a FAPE, and therefore requires 27 28 1 exhaustion. See Fry, 137 S. Ct. at 756–57; D.D., 18 F.4th at 1049–51. 2 3. Retaliation Claims under the ADA and Section 504 3 With respect to their retaliation claims under the ADA and Section 504, Plaintiffs 4 allege that Parent advocated on behalf of D.R. with respect to the discrimination, exclusion, 5 harassment, bullying, and insufficient support D.R. experienced at school, and that the 6 District retaliated against Parent for her advocacy by denying “D.R.’s right to be educated 7 as per his IEP and his right to be educated to the greatest extent possible with his 8 non-disabled peers.” (FAC ¶ 39, 124.) Plaintiffs argue their retaliation claims are not 9 subject to exhaustion because the IDEA supports only claims by students and does not 10 provide a claim for retaliation. (Doc. No. 11 at 9.) Plaintiffs cite cases in support of their 11 argument. All of them, however, are distinguishable because either they do not pertain to 12 a parent’s advocacy for the denial of a FAPE or do not address the issue of exhaustion. 13 While the Ninth Circuit has yet to rule on whether relief for retaliation must satisfy 14 the IDEA’s exhaustion, other circuits have held exhaustion is required when the retaliatory 15 acts are related to the student’s efforts to obtain a FAPE. For example, in Weber v. Cranston 16 Sch. Comm., the First Circuit found that because the parent’s retaliation claim was “related 17 to the identification, evaluation, or educational placement of her child, and to her efforts to 18 gain for him the provision of a free appropriate public education,” the parent “had to invoke 19 the due process hearing procedures of IDEA before filing her retaliation claim in federal 20 court.” 212 F.3d 41, 51–52 (1st Cir. 2000) (internal quotations omitted). In so finding, the 21 First Circuit relied on the text of the IDEA’s complaint provision, which “affords the 22 ‘opportunity to present complaints with respect to any matter relating to the identification, 23 evaluation, or educational placement of the child, or the provision of a free appropriate 24 public education to such child.”” Id. at 51 (quoting § 1415(b)(6)) (emphasis in original). 25 Addressing similar issues, the Eleventh and Third Circuits also looked to the plain 26 text of the IDEA and found the same. See M.T.V. v. DeKalb Cnty. Sch. Dist., 446 F.3d 27 1153, 1158–59 (11th Cir. 2006) (exhaustion required where the parents’ retaliation claims 28 “clearly relate” to their child’s “evaluation and education,” they are subject to the 1 exhaustion requirement.); Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 274–75 2 (3d Cir. 2014) (exhaustion required where the parent’s retaliation claims “palpably relate 3 to the District’s provision of a FAPE,” and there was a “logical path to be drawn” between 4 the parent’s advocacy efforts to obtain a FAPE and the retaliation claims). 5 The Court finds the reasoning in these cases persuasive. See also C.O. v. Portland 6 Pub. Sch., 679 F.3d 1162, 1168 (9th Cir. 2012) (citing with approval the Eleventh Circuit’s 7 finding in M.T.V. that “retaliation in the form of additional testing fell within the gambit of 8 the IDEA because it related to the identification, evaluation, or educational placement of 9 the child or the provision of a FAPE to such a child”) (internal alterations and quotations 10 omitted). Thus, guided by the IDEA’s text and the aforementioned cases, the Court 11 concludes that Parent’s retaliation claims are subject to the IDEA’s exhaustion requirement 12 because they directly relate to her advocacy efforts in obtaining for D.R. a FAPE, and there 13 is no indication that the relief she seeks is unavailable under the IDEA. 14 * * * 15 In sum, although not expressly pled as IDEA claims, the Court finds based on the 16 above analyses that the gravamen of Plaintiffs’ discrimination, harassment, and retaliation 17 claims are for the denial of a FAPE and are thus subject to the IDEA’s exhaustion 18 requirement. To the extent Plaintiff argues the ALJ’s dismissal of the due process 19 complaint filed by the Peters Firm on their behalf serves as exhaustion of these issues, the 20 Court disagrees. Plaintiffs’ FAC indicates that the due process complaint did not 21 encompass the specific “placement, services, and bullying issues [Parent] cared about.” 22 (FAC ¶ 51.) As the record is not clear on whether the due process complaint included the 23 allegedly discriminatory, harassing, and retaliatory conduct Plaintiffs raise here, the Court 24 declines to find that the July 13 OAH decision satisfies exhaustion of those issues. 25 Lastly, to the extent Plaintiffs argue exhaustion of these issues would be futile, the 26 Court again disagrees. In determining whether an exhaustion exception applies, the 27 “inquiry is whether pursuit of administrative remedies under the facts of a given case will 28 further the general purposes of exhaustion and the congressional intent behind the 1 administrative scheme.” Hoeft, 967 F.2d at 1303. Here, the answer is no. The factual record 2 on these claims have not been developed below and there is no substantive finding on 3 whether D.R. received a FAPE. Thus, applying the futility exception in this case would not 4 serve the purpose of the IDEA’s administrative scheme, which “is intended to prevent 5 courts from acting as ersatz school administrators and making what should be expert 6 determinations about the best way to educate disabled students.” Payne v. Peninsula Sch. 7 Dist., 653 F.3d 863, 876 (9th Cir. 2011), overruled on other grounds by Albino v. Baca, 8 747 F.3d 1162 (9th Cir. 2014). See also Hoeft, 967 F.2d at 1303. (“Exhaustion of the 9 administrative process allows for the exercise of discretion and educational expertise by 10 state and local agencies, affords full exploration of technical educational issues, furthers 11 development of a complete factual record, and promotes judicial efficiency by giving these 12 agencies the first opportunity to correct shortcomings in their educational programs for 13 disabled children.”). 14 Accordingly, the Court GRANTS Defendant’s motion to dismiss these claims for 15 failure to exhaust administrative remedies. 16 4. Appeal of the July 13 OAH Decision 17 Finally, as to their appeal of the July 13 OAH decision, Plaintiffs concede this claim 18 is subject to the IDEA’s exhaustion requirement but argue the decision is ripe for judicial 19 review. The Court agrees. However, because the ALJ dismissed Plaintiffs’ due process 20 complaint on procedural grounds and did not reach the substantive issue of whether D.R. 21 received a FAPE, the Court’s review is limited to the procedural findings. 22 To summarize, the ALJ found dismissal appropriate, stating “[g]ood cause does not 23 exist for a third continuance of this matter.” (Doc. No. 12-1 at 6.) In its decision, the ALJ 24 explained that in the middle of the third day of Plaintiffs’ due process hearing, Parent 25 terminated the Peters Firm. (Id. at 6–7.) The ALJ informed Parent she would be expected 26 to proceed with the hearing and notified her of the consequences of failing to do so. (Id. at 27 5, 7.) Despite the warnings, Parent refused and requested a long continuance to hire new 28 counsel. (Id. at 7.) Considering the procedural posture of the case and finding the District 1 || would be prejudiced by a lengthy continuance, the ALJ did not find good case for Parent’s 2 ||requested continuance. Because it found no good cause for a continuance, the ALJ 3 || dismissed the case with prejudice on procedural grounds. 4 Accordingly, there being no substantive factual findings or conclusions of law in the 5 || ALJ’s decision, the present appeal is limited to the procedural question of whether the ALJ 6 ||properly dismissed Plaintiffs’ due process complaint for lack of good cause for a 7 || continuance and Parent’s refusal to proceed with the scheduled hearing. See, e.g., Matthews 8 Douglas Cnty. Sch. Dist. RE 1, No. 17-CV-3163-MSK-STV, 2018 WL 4829644, at *1 9 Colo. Oct. 4, 2018) (limiting the scope of review on appeal in a similar manner). 10 CONCLUSION 11 For the reasons stated herein, the Court GRANTS IN PART and DENIES IN 12 || PART Defendant’s motion to dismiss the FAC. (Doc. No. 9.) Only Plaintiffs’ appeal of 13 ||the ALJ’s dismissal for failure to participate in the hearing will proceed before this Court. 14 || The other claims are DISMISSED WITHOUT LEAVE TO AMEND. 15 IT IS SO ORDERED. 16 || Dated: September 2, 2022 © ¢ 7 Hon. Anthony J. attaglia 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 16 NRAALPR ATTN WHI