O. v. Taylor's Crossing Public Charter School

Filing 59

MEMORANDUM DECISION AND ORDER granting in part and denying in part 29 Motion to Dismiss and for Summary Judgment. Plaintiffs Complaint is DISMISSED WITHOUT PREJUDICE. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

KELLY O., Individually and as
Guardian Ad Litem of S.O., a minor,
Plaintiffs,

Case No. 4:12-cv-00193-CWD
MEMORANDUM DECISION AND
ORDER

v.
TAYLOR’S CROSSING PUBLIC
CHARTER SCHOOL,
Defendant.

INTRODUCTION
Plaintiff Kelly O., on behalf of her 16-year-old disabled son S.O.,1 instituted this
action against Taylor’s Crossing Public Charter School (“Taylor’s Crossing”) under
Section 504 of the Rehabilitation Act. 29 U.S.C. § 794. Plaintiff alleges that Taylor’s
Crossing violated Section 504 by “deliberately and repeatedly fail[ing] to provide S.O.
with educational programs and related aids and services . . . designed to meet his
individual education needs” as a disabled student at the school. (Pl.’s Compl. at ¶ 38, Dkt.
1

In the initial Complaint, S.O.’s mother asserted claims on her own behalf. The
parties, however, stipulated to the dismissal of Kelly O.’s individual claims. (Dkt. 53.)
The stipulation was approved by the Court on May 6, 2013. (Dkt. 55.) The stipulation
does not affect Kelly O.’s claims brought as Guardian Ad Litem on behalf of her son.
MEMORANDUM DECISION AND ORDER - 1

1.) Plaintiff also alleges that Taylor’s Crossing violated Section 504 by unilaterally
disenrolling S.O. after he accrued numerous absences due to his disability. According to
Plaintiff, the school’s actions violated S.O.’s federally protected rights and deprived S.O.
of meaningful access to a public education. (Id. at ¶ 44.) Based on these allegations,
Plaintiff seeks “special and general damages to be proven at trial,” an award of fees and
costs, and “other equitable and legal relief that is warranted and just.” (Id. at 10.)
Pending before the Court is Defendant’s motion to dismiss under Fed. R. Civ. P.
12(b)(6) and motion for summary judgment under Fed. R. Civ. P. 56(a). (Dkt. 29.)
Taylor’s Crossing argues that Plaintiff’s complaint should be dismissed for six reasons:
(1) Plaintiff failed to set forth sufficient facts in her complaint to support a claim under
Section 504; (2) Plaintiff failed to exhaust administrative remedies; (3) Plaintiff’s claims
are barred by the applicable statute of limitations; (4) Taylor’s Crossing provided S.O.
with access to a free and appropriate public education; (5) S.O. was disenrolled for a
legitimate non-discriminatory reason; and (6) Plaintiff has not presented proof of any
damages compensable under Section 504. (Dkt. 29 at 2.)
The parties presented oral arguments on Defendant’s motions on May 29, 2013.
During the hearing the Court ordered the parties to submit supplemental briefing on the
exhaustion issue. Both parties submitted their supplemental briefing on June 12, 2013.
Having fully considered the parties’ arguments on Defendant’s motions and the record in
this matter, and for the reasons explained below, the Court finds that Plaintiff failed to
exhaust the applicable administrative remedies under the Individuals with Disabilities
MEMORANDUM DECISION AND ORDER - 2

Education Act (“IDEA”), 20 U.S.C. § 1415(l), and that the failure to exhaust requires
dismissal of Plaintiff’s complaint without prejudice. Based on this conclusion,
Defendant’s motion to dismiss under Fed. R. Civ. P. 12(b)(6) will be granted and
Defendant’s motion for summary judgment will be denied as moot.
BACKGROUND
In August of 2008, Kelly O. and John K. (collectively referred to as S.O.’s
parents), enrolled S.O. as a 7th grade student at Taylor’s Crossing, a public charter school
established in 2005 and located in Idaho Falls, Idaho. S.O. suffers from an unknown
illness that causes extreme fatigue and interferes with his ability to attend school on a
regular basis. (Letter from Dr. Gerald Bader, Dkt. 32-1.) Prior to his enrollment at
Taylor’s Crossing, S.O. received special education pursuant to an Individual Education
Plan (“IEP”) under the IDEA. Taylor’s Crossing does not dispute that S.O. suffers from a
disability.
At the time of S.O.’s enrollment, Laurie Jackson (the Special Education Director
of Taylor’s Crossing) requested and received from S.O.’s parents the IEP and expired
eligibility report completed for S.O. by his previous school. Although Taylor’s Crossing
considered S.O. to be disabled, the school did not evaluate S.O. prior to his initial
placement and no IEP meetings were held.
During his first semester at Taylor’s Crossing, S.O.’s 7th grade teacher provided
S.O. with extra time to complete assignments and allowed him more time on tests than
other students. He did not, however, receive special education under the IDEA.
MEMORANDUM DECISION AND ORDER - 3

According to S.O.’s parents, they inquired several times as to when S.O. would be
assessed for special education. These requests went unanswered and Taylor’s Crossing
never formally assessed S.O. for special education. During the first half of the 2008-2009
school year, S.O. attended class at Taylor’s Crossing but often arrived to school late due
to health issues. Near the end of the 2008 calendar year, S.O.’s attendance became more
sporadic and he frequently was absent due to his deteriorating health.
Both of S.O.’s parents are educators and, at the time, John K. (S.O.’s stepfather)
was employed by Taylor’s Crossing as an administrator. In December of 2008, Gail
Harding-Thomas (the Superintendent of Taylor’s Crossing) attended a holiday dinner
party at S.O.’s parents’ home. According to Plaintiff, during the party, Superintendent
Harding-Thomas observed S.O. and, after talking with Kelly O. and John K. about their
son’s medical condition, concluded that S.O. would be better served in a homebound
program. Plaintiff offered to provide Ms. Harding-Thomas with any medical
documentation the school might need to support the change of placement, but Ms.
Harding-Thomas stated that it was not necessary.
In January of 2009, S.O. ceased attending class at Taylor’s Crossing and began the
homebound program. The program entailed weekly assignment binders (provided by
S.O.’s 7th grade teacher) which were completed by S.O. at home and then taken to the
school by his parents, where the binders were graded and returned to S.O. the following
week. This process continued through the Spring semester and S.O. received full credit
for the 7th grade.
MEMORANDUM DECISION AND ORDER - 4

Pursuant to Taylor’s Crossing’s policy regarding school placement and automatic
enrollment of current students, S.O. was enrolled in the 8th grade and continued in the
homebound program. During the 2009-2010 school year, S.O.’s parents were not asked to
provide medical documentation supporting S.O.’s need for the homebound program and
S.O. was not evaluated by the school for special education.
In April of 2010, Myrna Guthrie (an interim administrator at Taylor’s Crossing)
began reviewing materials on truancy at the school and the school’s attendance reports.
This led to a truancy investigation regarding S.O. During the investigation, Ms. Guthrie
found that S.O. had accrued 60 unexcused absences during his 7th grade year. Through
school records, Ms. Guthrie was aware that S.O. received credit from Taylor’s Crossing
for his work in the second half of his 7th grade year and his 8th grade year up through
March of 2009. However, because S.O. was never officially placed in the homebound
education program, the school retroactively treated the absences as unexcused.
Under Taylor’s Crossing’s policies, there are requirements that parents be given
written notification of a student’s fifth, eighth, and tenth absences. The notice of the tenth
absence requires notice of the loss of credit and rights to due process. No notices were
given to S.O.’s parents regarding S.O.’s unexcused absences.
On May 7, 2010, S.O.’s parents received a letter advising them that, due to
attendance concerns, S.O. was being “administratively withdrawn” from Taylor’s
Crossing. S.O.’s parents claim that they made numerous attempts to resolve the
attendance issue, but the attempts were unsuccessful and they were told by acting
MEMORANDUM DECISION AND ORDER - 5

superintendent Alan Dopp that “we don’t want that kind of kid (referring to S.O.) at
Taylor’s Crossing Public Charter School.” (Pl.’s Statement of Facts in Opp. Of Taylor’s
Crossing’s Mot. To Dismiss and for Summ. J. at 11, Dkt. 39.)
On May 10, 2010, Taylor’s Crossing unilaterally disenrolled S.O. from the school.
On the same date, Ms. Guthrie contacted the Bonneville County Sheriff’s Department
concerning S.O.’s truancy. On May 12, 2010, an officer from the Bonneville County
Sheriff’s Department went to S.O.’s residence in response to the truancy report filed by
Taylor’s Crossing. S.O. was out of town that day for medical reasons. On May 24, 2010,
S.O.’s parents provided the officer with a letter verifying his medical condition. No
further action was taken by the County.
Afer S.O. was disenrolled on May 10, 2010, his mother contacted Taylor’s
Crossing to discuss a grievance with the school under Section 504. The school refused to
speak with her. She next attempted to contact the district official listed on school’s policy
charged with handling civil rights grievances. The information on Taylor’s Crossing
policy directed her to contact a person within the Boise School District, whom she
contacted and was informed that she had contacted the wrong person. According to
Plaintiff, the reason the wrong person was listed on the policy was due to the fact that
Taylor’s Crossing adopted most of its district policies verbatim from the Boise School
District. Even minor changes—like the adoption dates on the policies and the copyright
mark at the bottom of the pages—were not made to the polices when they were adopted

MEMORANDUM DECISION AND ORDER - 6

by Taylor’s Crossing.2
S.O.’s parents made several further attempts to resolve their dispute with Taylor’s
Crossing, which included several meetings with school officials, but those attempts did
not bear fruit. S.O. was home-schooled by his parents beginning in the fall of 2010 and he
was enrolled in the Bonneville School District’s Virtual Academy in January of 2011.
In October of 2011, Plaintiff filed a Formal Complaint with the Idaho State
Department of Education. The Formal Complaint was couched in terms of Section 504,
but the State Department of Education conducted a limited investigation under the rubric
of the IDEA.3 The investigation was limited due to the fact that S.O.’s disenrollment
occurred a little more than one year before the complaint was filed and therefore fell
outside the one-year statute of limitations for such claims. See 34 C.F.R. § 300.153(c).
The only issue determined to be before the State Department of Education was whether
Taylor’s Crossing violated the IDEA by denying S.O.’s parents’ request to re-enroll S.O.
at Taylor’s Crossing following his disenrollment. As to that issue, the State Department
of Education found that Taylor’s Crossing did not violate the IDEA or its implementing
regulations. The State Department of Education did not address whether the school’s

2

As one example, Plaintiff points out that Taylor’s Crossing’s attendance policy
indicates it was adopted in 1997, which would have been impossible because Taylor’s
Crossing did not come into existence until 2005.
3

This is consistent with the Idaho Special Education Manual, which indicates that
formal complaints filed with the State Department of Education will be investigated under
the IDEA.
MEMORANDUM DECISION AND ORDER - 7

unilateral disenrollment of S.O. violated the IDEA.
Chapter 13 of the Idaho Special Education manual discusses dispute resolution
under the IDEA. It sets forth the procedures for resolving complaints under the IDEA and
delineates between Formal Complaints (which are filed with the State Department of
Education and are subject to a one-year statute of limitations) and Due Process Hearing
requests (which are filed with the school district and are subject to a two-year statute of
limitations). The Special Education Manual contains forms both for the filing of Formal
Complaints and requesting a Due Process Hearing. The manual also indicates that parties
must exhaust their administrative remedies under the IDEA before filing a civil action
under other federal laws (including Section 504), but the manual is not clear on what
administrative remedies must be exhausted. Section 6 of the manual, entitled Appeals and
Civil Action, states in relevant part that:
Either party shall exhaust all dispute resolution procedures
available under the IDEA 2004 prior to filing action in civil
court. However, nothing in the IDEA 2004 restricts or limits
the rights, procedures, and remedies available under the U.S.
Constitution, the Americans with Disabilities Act, Section
504 of the Rehabilitation Act, or other Federal laws protecting
the rights of children with disabilities. This means either party
may have remedies available under these laws that overlap
with the IDEA 2004. To obtain relief under those other laws,
either party shall first use the available dispute resolution
procedures under the IDEA 2004 before going directly into
court.
(Idaho Special Education Manual, Chp. 13, Sec. 6, Dkt. 48-1 at 20.)

MEMORANDUM DECISION AND ORDER - 8

It is undisputed that S.O.’s parents did not request a due process hearing under the
IDEA.
Kelly O. filed a complaint in federal court on behalf of her son on April 17, 2012.
The complaint alleges that the actions taken by Taylor’s Crossing violated Section 504 of
the Rehabilitation Act.
DISCUSSION
As indicated above, Taylor’s Crossing seeks the dismissal of Plaintiff’s complaint
on several grounds. As a procedural matter, Taylor’s Crossing argues that Plaintiff’s
claims should be dismissed under Fed. R. Civ. P. 12(b) for failing to exhaust
administrative remedies. Taylor’s Crossing also raises several substantive arguments,
seeking summary judgment under Fed. R. Civ. P. 56(a). Because the Court concludes that
Plaintiff’s complaint must be dismissed under Rule 12(b) for failing to exhaust
administrative remedies, the Court’s discussion will be limited to that issue. Defendant’s
substantive arguments under Rule 56(a) will be denied as moot.
1.

Exhaustion
Taylor’s Crossing argues that Plaintiff failed to exhaust administrative remedies

under the IDEA prior to filing suit and that the failure to exhaust under the IDEA
warrants dismissal of Plaintiff’s claims under Section 504 of the Rehabilitation Act. At
first glance, this argument appears misplaced given the fact that Plaintiff’s complaint does
not raise any claims under the IDEA. However, having reviewed the applicable
authorities, and for the reasons set forth below, the Court finds that Plaintiff’s failure to
MEMORANDUM DECISION AND ORDER - 9

exhaust under the IDEA warrants dismissal without prejudice.
In enacting the IDEA, Congress recognized that the statute represents one part of
an overarching federal statutory scheme protecting the rights of disabled school children.
In recognition of this legal landscape, Congress provided in the IDEA that, before a party
may file a civil action raising claims under the IDEA, Section 1983, the Americans with
Disabilities Act, Section 504 of the Rehabilitation Act, or other laws protecting the rights
of children with disabilities, the litigant must first exhaust the administrative remedies
required under the IDEA. See 20 U.S.C. § 1415(l). The IDEA’s exhaustion provision
states the following:
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 [42
U.S.C. § 12101 et seq.], title V of the Rehabilitation Act of
1973 [29 U.S.C. § 791 et seq.], 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 th[e] [IDEA], the
procedures under subsections (f) and (g) shall be exhausted to
the same extent as would be required had the action been
brought under th[e] [IDEA].
20 U.S.C. § 1415(l) (emphasis added).
In Payne v. Peninsula School District, 653 F.3d 863 (9th Cir. 2011), the United
States Court of Appeals for the Ninth Circuit, sitting en banc, clarified the nature of the
exhaustion provision contained in the IDEA. Addressing a split of authority among the
federal circuit courts, the Ninth Circuit first clarified that the exhaustion requirement
contained in the IDEA is not a prerequisite to the exercise of federal subject matter
MEMORANDUM DECISION AND ORDER - 10

jurisdiction over claims brought by a disabled student under Section 504 of the
Rehabilitation Act. Payne, 653 F.3d at 867. As a claims processing provision, however,
the court held that the failure to exhaust may be raised as a non-jurisdictional affirmative
defense. Id. Here, although Taylor’s Crossing characterized the issue as a jurisdictional
matter in its initial briefing, exhaustion is clearly raised as an affirmative defense in the
school’s Answer to Plaintiff’s Complaint.4 (Dkt. 4 at 8.)
The Court of Appeals went on to address the issue of when the failure to exhaust
under the IDEA operates as a bar to claims under Section 1983, the ADA, and the
Rehabilitation Act. Prior to the en banc decision in Payne, the Ninth Circuit followed an
“injury-centered” approach, “holding that exhaustion can only be avoided if the plaintiff
has alleged injuries that cannot be redressed to any degree by the IDEA’s administrative
procedures and remedies.” Payne, 653 at F.3d at 874 (emphasis added) (internal quotation
marks omitted). In Payne, the Ninth Circuit rejected the injury-centered approach, and
adopted a “relief-centered” approach. Id. at 874-75. Under the relief-centered approach,
the court held that, “when determining whether the IDEA requires a plaintiff to exhaust,
courts should start by looking at a complaint’s prayer for relief and determine whether the
relief sought is also available under the IDEA.” Id. at 875. If the requested relief is
available under the IDEA, exhaustion is required. Id.

4

Taylor’s Crossing acknowledged in its Reply brief that the failure to exhaust is
no longer considered a jurisdictional bar in the Ninth Circuit. (Reply Mem. In Support of
Def.’s Mot. To Dismiss and For Summ. J., at 2 n.1, Dkt. 52.)
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The court identified three situations where § 1415(l) requires exhaustion. Id. First,
the court stated that “exhaustion is clearly required when a plaintiff seeks an IDEA
remedy or its functional equivalent.” Id. As an example, the court stated that, “if a
disabled student files suit under the ADA and challenges the school district’s failure to
accommodate his special needs and seeks damages for the costs of a private school
education, the IDEA requires exhaustion regardless of whether such a remedy is available
under the ADA, or whether the IDEA is mentioned in the prayer for relief.” Id. Second,
exhaustion is required “in cases where a plaintiff seeks prospective injunctive relief to
alter an IEP or the educational placement of a disabled student.” Id. Third, exhaustion is
required “where a plaintiff is seeking to enforce rights that arise as a result of a denial of a
free appropriate public education [“FAPE”], whether pled as an IDEA claim or any other
claim that relies on the denial of a FAPE to provide the basis for the cause of action (for
instance, a claim for damages under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. §
794, premised on a denial of a FAPE).” Id.
The Ninth Circuit made several additional comments that are instructive here. The
court upheld its previous holding that “a plaintiff cannot avoid the IDEA’s exhaustion
requirement merely by limiting a prayer for relief to money damages,” which are not
available under the IDEA. Id. at 877 (quoting Robb v. Bethel School Dist. No. 403, 308
F.3d 1047, 1050 (9th Cir. 2002)). In other words, “plaintiffs cannot avoid exhaustion
through artful pleading.” Id. “If the measure of a plaintiff’s damages is the cost of
counseling, tutoring, or private schooling–relief available under the IDEA–then the IDEA
MEMORANDUM DECISION AND ORDER - 12

requires exhaustion.” Id. The court explained that, “[i]n such a case, the plaintiffs are
seeking the same relief, even if they are willing to accept cash in lieu of services in kind.”
Id. In sum, “to the extent that a request for money damages functions as a substitute for
relief under the IDEA, a plaintiff cannot escape the exhaustion requirement simply by
limiting her prayer for relief to such damages.” Id.
Turning to the analysis in this case, Plaintiff’s prayer for relief asks the Court to
“[e]nter judgment in favor of Plaintiffs and against Taylor’s Crossing Public Charter
School in an amount of special and general damages to be proven at trial.” (Dkt. 1 at 10.)
If that statement was all that was before the Court, it might not be sufficient to
conclusively find that the relief sought by Plaintiff in this case is also available under the
IDEA. As the Ninth Circuit explained in Payne, “especially in the context of motions to
dismiss,” “it is [not] proper for courts to assume that money damages will be directed
toward forms of relief that would be available under the IDEA.” Payne, 653 F.3d at 877.
The court in Payne, however, also held that the district courts are not limited solely
to the pleadings when conducting the exhaustion analysis. See id., at 881-82. “Generally,
in deciding an unenumerated motion to dismiss, the court may look beyond the pleadings
to decide disputed issues of fact.” Cayla R. v. Morgan Hill Unified School Dist., 2012 WL
1038664 at * 4 (N.D. Cal. 2012) (quoting Payne). Here, the Court has the benefit of
Plaintiff’s discovery responses, which Taylor’s Crossing has attached to its motion.
Plaintiff provided Taylor’s Crossing a computation of her alleged damages in
response to discovery requests and as required by Fed. R. Civ. P. 26(a)(1)(A). Plaintiff’s
MEMORANDUM DECISION AND ORDER - 13

computation of damages indicates that Plaintiff is seeking $276,810 in damages, which is
the cost of services Plaintiff contends should have been provided to S.O. over a three-year
period. (Dkt. 32-15 at 5.) Plaintiff’s computation of damages is further broken down and
lists the services that were not provided. For instance, Plaintiff seeks $23,662 per year for
an one-on-one aide. (Id.) Plaintiff seeks $9,898 per year for the cost of a special education
teacher. (Id.) Plaintiff seeks $2,850 per year for speech therapy, $7,204 per year for
physical therapy, and $3,602 per year for occupational therapy, all of which Plaintiff
alleges should have been provided as special educational services by Taylor’s Crossing to
S.O. (Id.) Plaintiff’s computation of damages also includes costs for a psychologist,
physical education, counseling, transportation, summer school, and assistive technology.
(Id.)
Plaintiff’s computation of damages makes it clear that the relief sought requires
exhaustion under the IDEA before a suit may be brought under Section 504. Indeed, the
Ninth Circuit expressly stated in Payne that, “[i]f the measure of a plaintiff’s damages is
the cost of counseling, tutoring, or private schooling–relief available under the
IDEA–then the IDEA requires exhaustion.” Payne, 653 F.3d at 871.
In response to the school’s exhaustion defense, Plaintiff raises two arguments.
First, that she did exhaust by filing a formal complaint with the Idaho State Department of
Education. Second, Plaintiff argues that, even if she did not technically exhaust her claims
under the IDEA, her failure to exhaust should be excused because to do so would have
been futile or inadequate.
MEMORANDUM DECISION AND ORDER - 14

As to Plaintiff’s first argument, the Court can see how a parent of a child with a
disability, or a school (or a court for that matter) could become confused when navigating
the federal laws applicable to children with disabilities. To those uninitiated into the arena
of special education law, the IDEA itself can be overwhelming—the statute consists of
nearly 100 sections and the annotated version of the statute takes up approximately 750
pages of the United States Code. Throw in two additional federal statutes—Section 504 of
the Rehabilitation Act and the Americans with Disabilities Act—and two sets of
implementing regulations applicable to Section 504 and the IDEA, and it comes as no
surprise that Plaintiff was uncertain of how to proceed or that the Idaho Special Education
Manual is less than clear on the topic of exhaustion.
Notwithstanding the complicated nature of this area of the law, the applicable
authorities are quite clear on the particular matter presently before the Court—to bring a
judicial action under Section 504 related to the identification, evaluation, or placement of
a child with a disability, or contending that a school failed to provide a child with a free
appropriate public education, the party bringing the action must first exhaust
administrative remedies under § 1415(l) of the IDEA. And exhaustion under § 1415(l)
requires the party to raise her claims in a due process hearing. See 20 U.S.C. § 1415(l)
(“the procedures under subsections (f) [which sets forth the procedures for an impartial
due process hearing] and (g) [which sets forth the procedures for appealing an adverse
decision in the due process hearing] shall be exhausted to the same extent as would be
required had the action been brought under th[e] [IDEA].”).
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Similarly, several federal courts have held that filing a formal complaint with a
state level educational agency, as was done in this case, does not satisfy the exhaustion
requirement. See e.g., Tyler B. v. San Antonio Elementary Sch. Dist., 253 F. Supp. 2d
1111, 1118 (N.D. Cal. 2003) (“The initiation of a state level review which did not
proceed to a due process hearing is not literal exhaustion or its equivalent.”); Christopher
W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 1099 (1st Cir. 1989) (holding that plaintiff
who failed to pursue a due process hearing but filed a formal complaint under the
regulations did not exhaust administrative remedies); Avoletta v. City of Torrington, 2008
WL 905882 at * 6 (D. Conn. 2008) (holding that a plaintiff who sought administrative
relief under Section 504 did not exhaust under the IDEA: “[i]t is the exhaustion of the
IDEA’s administrative procedures, not procedures under Section 504, that is the
prerequisite for bringing an action in federal or state court alleging the denial of a FAPE
under the IDEA, Section 504, the ADA, Section 1983, or any other cause of action.”).
Plaintiff’s second argument—that exhaustion should be excused in this case—is
similarly unavailing. Plaintiff accurately points out that the Ninth Circuit has recognized
exceptions to the exhaustion requirement under the IDEA. Hoeft v. Tucson Unified School
Dist., 967 F.2d 1298 (9th Cir. 1992). According to the Ninth Circuit, “parents need not
exhaust the procedures set forth in 20 U.S.C. § 1415 where resort to the administrative
process would be either futile or inadequate.” Id. at 1303. “The futility exception derives
from the language of the IDEA itself, which limits the exhaustion requirement to cases
where the plaintiff ‘seek[s] relief that is also available’ under the IDEA.” Kutasi v. Las
MEMORANDUM DECISION AND ORDER - 16

Virgenes Unified Sch. Dist., 494 F.3d 1162, 1168 (9th Cir. 2007) (quoting 20 U.S.C. §
1415(l)). “If the plaintiff seeks a remedy for an injury that could not be redressed by the
IDEA’s administrative procedures, then the claim falls outside § 1415(l)’s rubric and
exhaustion is unnecessary.” Id. Plaintiff bears the burden of demonstrating an exception
to the exhaustion requirement. See Rose v. Yeaw, 214 F.3d 206, 211 (1st Cir. 2000). For
the reasons set forth below, the Court finds that Plaintiff has failed to carry this burden.
In her supplemental briefing, Plaintiff argues that exhaustion would have been
both futile and inadequate in this case because, “[w]hile students protected by the IDEA
are subject to its provisions, including § 1415(l), the same is not true for students whom
the IDEA does not reach – specifically students who are eligible for services under
Section 504/ADA.” (Dkt. 56 at 9.) The first part of the above assertion is correct—“If the
plaintiff seeks a remedy for an injury that could not be redressed by the IDEA’s
administrative procedures, then the claim falls outside § 1415(l)’s rubric and exhaustion
is unnecessary.” Kutasi, 494 F.3d at 1168. The second part of the assertion—that the
IDEA does not reach students who are eligible for services under Section 504 or the
ADA—is incorrect as a matter of law.
The IDEA and Section 504 are not mutually exclusive. The hypothetical scenarios
under which a child with a disability will satisfy the eligibility criteria under both the
statutes are numerous. And while a student may certainly meet the eligibility criteria
under Section 504 and not be eligible for specialized instruction under the IDEA, the
question is not whether a parent is asserting claims under one or both statutes, but
MEMORANDUM DECISION AND ORDER - 17

whether the claims being asserted relate to identification, evaluation, or educational
placement of a child with a disability. In this case, that question is apparent on the face of
Plaintiff’s complaint. The heart of Plaintiff’s complaint is that Taylor’s Crossing
unilaterally disenrolled S.O. because of his disability. That claim is directly related to
educational placement. See R.B. v. Mastery Charter Sch., 762 F. Supp. 2d 745, 758 n.75
(E.D. Pa. 2010) (“the unilateral disenrollment of a special education student is a change in
placement [under the IDEA].”). Indeed, the United States Supreme Court recognized that
“one of the evils Congress sought to remedy [by enacting the predecessor statute to the
IDEA] was the unilateral exclusion of disabled children by schools.” Honig v. Doe, 484
U.S. 305, 327 (1988). If the Court were to accept Plaintiff’s futility argument, parents
would be able to avoid the exhaustion requirement simply by framing their claims in
terms of Section 504 rather than the IDEA. Such an argument is not supported by the
statutory language or case law.5
Based on the above discussion, the Court finds that Plaintiff failed to exhaust
administrative remedies under § 1415(l) of the IDEA and that Plaintiff has failed to
demonstrate that an exception applies in this case. Plaintiff’s complaint will therefore be
dismissed without prejudice.

5

For the same reasons discussed in the main text, the Court finds that Plaintiff’s
remedies in a due process hearing would not have been inadequate. Plaintiff could have
directly challenged the school’s disenrollment and sought compensatory education relief.
MEMORANDUM DECISION AND ORDER - 18

2.

Dismissal Without Prejudice
The dismissal of an action on the ground of failure to exhaust administrative

remedies is not on the merits. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003).
“Unlike a judgment on the merits, a plaintiff’s failure to exhaust administrative remedies
should result in a dismissal without prejudice.” Payne, 653 F.3d at 881. Such an outcome
is supported by the purposes of the IDEA’s exhaustion requirement, which “allows for the
exercise of discretion and educational expertise by state and local agencies, affords full
exploration of technical educational issues, furthers development of a complete factual
record, and promotes judicial efficiency by giving these agencies the first opportunity to
correct shortcomings in their educational programs for disabled children.” Hoeft, 967
F.2d at 1303.
The record in this case strongly suggests that Taylor’s Crossing, at the very least,
failed to comply with the procedural requirements of the IDEA concerning the school’s
interactions with S.O. and his parents. Any argument that S.O. was not entitled to the
procedural protections of the IDEA because he had not yet been deemed a “child with a
disability” by Taylor’s Crossing has been foreclosed by the Ninth Circuit’s holding in
Hacienda La Puente Unified School District of Los Angeles v. Honig, 976 F.2d 487 (9th
Cir. 1992) (holding that child suspected to have disability was entitled to IDEA’s
procedural protections prior to determination that the student at issue was a “child with a
disability”). Of course, Taylor’s Crossing will not be able to rectify any shortcomings in
its educational programs for disabled children once this case is dismissed if Plaintiff’s
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claims are barred by the statute of limitations at the administrative level.
During the hearing on Defendant’s motion, the Court inquired as to the parties’
understanding of whether S.O. and his mother would be barred by the statute of
limitations from exhausting their administrative remedies. Counsel for Plaintiff indicated
that Kelly O. would be barred by the statute of limitations from exhausting her claims and
that Plaintiff would therefore be left without a remedy. The Court disagrees with this
assessment, and because Plaintiff will have the opportunity to exhaust her administrative
remedies following the dismissal of this case, the Court will take the time to explain why
it disagrees with Plaintiff’s assessment.
Unlike the statute of limitations for filing formal complaints with the State
Department of Education—which, as the parties know, is one year—due process hearings
are subject to a two-year statute of limitations. Under the IDEA, a parent is required to
request an impartial due process hearing “within 2 years of the date the parent . . . knew
or should have known about the alleged action that forms the basis of the complaint.” 20
U.S.C. § 1415(f)(3)(C). Here, Kelly O. was not aware that Taylor’s Crossing was holding
S.O.’s absences against him (which the school informally approved through the
homebound program) until May 12, 2010, when an officer from the Bonneville County
Sheriff’s Office came to her residence indicating that the school was reporting S.O. as
truant. If that were the end of the analysis, counsel would be correct that Plaintiff would
be statutorily barred from raising her claims in a due process hearing. Fortunately for
Plaintiff, that is not the end of the analysis.
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The statute provides for exceptions to the two-year timeline: “The timeline
described in subparagraph (C) shall not apply to a parent if the parent was prevented from
requesting the hearing due to . . . (ii) the local educational agency’s withholding of
information from the parent that was required under this subchapter to be provided to the
parent.” 20 U.S.C. § 1415(f)(3)(D)(ii). As discussed above, the IDEA is quite
complicated. In recognition of this fact, the statute requires Local Educational
Agencies—in this case, Taylor’s Crossing—to provide notice to parents of their rights
under the statute in certain situations. Under § 1415(b)(3)(A), when a school initiates a
change concerning the identification, evaluation, or educational placement of a child, the
school is required to provide written prior notice to the parents of the child in accordance
with subsection (c)(1). As mentioned above, the school’s unilateral disenrollment was a
“change in placement,” which under the above provision triggered the school’s obligation
to provide written notice. Under § 1415(c)(1)(C), the written notice is required to include,
inter alia, “a statement that the parents of a child with a disability have protection under
the procedural safeguards of th[e] [IDEA.]” Similarly, under § 1415(d), “[t]he procedural
safeguards notice shall include a full explanation of the procedural safeguards . . . written
in an easily understandable manner . . . relating to . . . (I) due process hearings.” 20
U.S.C. § 1415(d)(2)(A) - (L).
One of S.O.’s parents’ major concerns in this case was that they did not know how
to proceed and the school provided them with no guidance. The school was obligated
under the above provisions to provide S.O.’s parents notice of their rights. Similarly,
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taking Plaintiff’s alleged facts as true, the school’s obligation to provide written notice
was triggered on multiple occassions during the time S.O. was enrolled at Taylor’s
Crossing. There is nothing in the record suggesting that Taylor’s Crossing provided
S.O.’s parents with the requisite notice. Indeed, the record indicates that the only notice of
procedural safeguards given to S.O.’s parents came not from Taylor’s Crossing but from
the State Department of Education after S.O.’s parents filed their formal complaint. The
notice provided by the State Department of Education was given to S.O.’s parents in
November of 2011.
Because Taylor’s Crossing, as the local educational agency, withheld information
from S.O.’s parents that was required to be provided under the IDEA, the two-year statute
of limitations should not act as a bar to Kelly O. from exhausting her administrative
claims once this case is dismissed. 20 U.S.C. § 1415(f)(3)(D)(ii).
While the Court recognizes that its conclusion on this issue may not be considered
binding on the local or state educational agencies once this case is dismissed, it is clear
from the record before the Court that S.O.’s parents have not had the opportunity to
challenge Taylor’s Crossing’s unilateral disenrollment of S.O. through administrative
proceedings or otherwise. Under the statutory provisions cited above, because the school
failed to provide S.O.’s parents with notice on how to present such claims, they should
not now be time barred from doing so.
In an email correspondence between employees of the State Department of
Education submitted by Plaintiff in opposition to Defendant’s motion to dismiss, one of
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the Department employees states that “we discussed long and hard about the probability
that Taylor’s Crossing would have been in deep doo-doo had the statute of limitations not
run out.” (Dkt. 48-2 at 10.) The email exchange on January 11, 2012, goes on to say that,
“this kid [referring to S.O.] transferred in with an IEP which was not reviewed for nearly
two years, and after which the administration dis-enrolled the student for truancy,
although they’d been providing homework to him as ‘homebound.’” (Id.)
Taylor’s Crossing may not be out of the “deep doo-doo” just yet.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
Defendant’s Motion to Dismiss and for Summary Judgment, (Dkt. 29), is
GRANTED in part and DENIED in part. Defendant’s motion is granted as it pertains
to Plaintiff’s failure to exhaust administrative remedies under 20 U.S.C. § 1415(l) and
Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE.
DATED: August 21, 2013

Honorable Candy W. Dale
Chief United States Magistrate Judge

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