J.Q. et al v. WASHINGTON TOWNSHIP SCHOOL DISTRICT

Filing 12

OPINION. Signed by Chief Judge Jerome B. Simandle on 3/13/2015. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

J.Q. and S.B., individually
and on behalf of I.Q.,
Plaintiffs,

HONORABLE JEROME B. SIMANDLE

Civil Action
No. 14-7814 (JBS/JS)

v.
WASHINGTON TOWNSHIP SCHOOL
DISTRICT,

OPINION

Defendant.

APPEARANCES:
Amelia Carolla, Esq.
FREEMAN CAROLLA REISMAN & GRAN LLC
19 Chestnut Street
Haddonfield, NJ 08033
Attorney for Plaintiffs J.Q. and S.B.
William S. Donio, Esq.
COOPER LEVINSON, P.A.
1125 Atlantic Avenue, Third Floor
Atlantic City, NJ 08401
Attorney for Defendant Washington Township School District

SIMANDLE, Chief Judge:
INTRODUCTION
This matter comes before the Court on Defendant Washington
Township School District’s (“Defendant” or “the District”)
motion to dismiss for lack of subject matter jurisdiction based
on Plaintiffs’ purported failure to exhaust administrative
remedies. [Docket Item 8.] In this action, Plaintiffs J.Q. and

S.B., individually and on behalf of their daughter, I.Q.
(collectively, “Plaintiffs”), allege that Defendant
discriminated against their 13 year-old daughter, an eighth
grade student with Attention Deficit Hyperactivity Disorder
(“ADHD”), on the basis of disability by failing to provide a
Section 504 plan in violation of the Americans with Disabilities
Act (“ADA”), Section 504 of the Rehabilitation Act (“Section
504”), and the New Jersey Law Against Discrimination (“NJLAD”).
Defendant argues that the exhaustion requirement under the
Individuals with Disabilities Act (“IDEA”) applies to
Plaintiffs’ claims even though they do not assert a cause of
action under the IDEA. Because Plaintiffs concede that they
failed to exhaust the IDEA’s administrative remedies,
Defendant’s motion turns on whether Plaintiffs seek relief which
is available under the IDEA and whether the IDEA’s exhaustion
requirements apply to their non-IDEA claims. For the reasons
discussed below, the Court will grant Defendant’s motion to
dismiss on exhaustion grounds.
BACKGROUND
A. Facts
The Court accepts as true the following facts from
Plaintiffs’ Complaint for the purposes of the instant motion to
dismiss. I.Q. is a 13 year-old eighth grade student in the
Washington Township School District. (Compl. [Docket Item 1] ¶
2

12.) I.Q. was diagnosed with ADHD in April, 2011. (Id. ¶ 13.)
ADHD is an impairment which causes I.Q. to have “difficulty
concentrating, paying attention, thinking clearly, focusing,
staying organized, keeping track of things and remembering to
complete her work, to bring her completed work to school, and to
finish her work.” (Id.)
During the 2012-2013 school year, when I.Q. was in sixth
grade, Plaintiffs requested that the District conduct an
evaluation of I.Q.’s alleged disability. (Id. ¶ 14.) The
District did not conduct a “full child team evaluation” as
requested. (Id. ¶ 15.) Instead, the District determined that
I.Q.’s needs could be met through an Intervention and Referral
Service Plan (“I&RS Plan”) – a state program for students who
are “experiencing learning, behavior or health difficulties and
to assist staff who have difficulties in addressing pupils’
learning, behavior or health issues.” (Id. ¶ 16.) The I&RS Plan
recognized I.Q.’s need for assistance with organization and late
or missing work. (Id. ¶ 17.) The Plan granted certain
accommodations like permitting I.Q. to return to her locker to
retrieve missed work, use a binder to help with organization,
and use an assignment book signed by teachers. (Id.)
Despite these accommodations, I.Q. continued to struggle in
school and some teachers did not follow the I&RS Plan. (Id. ¶
19.) I.Q.’s grades were reduced if she did not turn in work on
3

time. (Id. ¶ 18.) I.Q.’s teachers informed Plaintiffs that I.Q.
was “having trouble staying on task and on topic during class.”
(Id. ¶ 21.)
During the 2013-2014 school year, when I.Q. was in seventh
grade, her difficulties with organization and attention
continued. (Id. ¶ 22.) On September 22, 2014, Plaintiffs again
requested that the District “evaluate [I.Q.] in areas of
suspected disability to determine her eligibility for services
by a [sic] way of a 504 Plan.” (Id. ¶ 24.) On October 8, 2014,
Plaintiffs attended a meeting with the District, but the
necessary staff was not present to determine I.Q.’s need for a
Section 504 Plan. (Id. ¶ 25.) The District declined to conduct
an evaluation, finding that I.Q.’s grades were good and she
could not have a disability. (Id.) A teacher at the meeting
stated that in her 25 years of experience, she had not
encountered a student with ADHD who needed accommodations. (Id.)
After the District declined Plaintiffs’ request for an
evaluation, Plaintiffs engaged a neuropsychologist, Dr. Sarah
Allen Levin, to evaluate I.Q. (Id. ¶ 26.) Dr. Levin found that
I.Q. has “difficulty organizing her materials[] and regulating
her emotions.” (Id.) I.Q’s “scores in the areas of working
memory represented a relative weakness in her cognitive
profile,” which combined with her ADHD, negatively impacted her
ability to learn. (Id.) Dr. Levin recommended that I.Q. be
4

provided a Section 504 Plan, including but not limited to, the
following accommodations: permit I.Q. to have objects to
manipulate to increase her attention; grant I.Q. additional time
to submit homework assignments; assist I.Q. with organizational
skills; develop a plan for I.Q. to receive feedback from her
teachers regarding her organizational skills; and formulate and
monitor a plan to help I.Q. remember her homework assignments.
(Id.) I.Q.’s parents provided the District with a copy of Dr.
Levin’s evaluation on November 18, 2014 and again requested a
Section 504 Plan. (Id. ¶ 27.)
On December 8, 2014, Plaintiffs met with the District to
discuss I.Q.’s eligibility for a Section 504 Plan. (Id. ¶ 28.)
Plaintiffs allege that the District decided to decline I.Q. a
Section 504 Plan even before the meeting began. (Id.) Most of
the attendees at the meeting had not been provided and had not
read Dr. Levin’s evaluation. (Id.) The only teacher in
attendance noted I.Q.’s difficulties with organization which
resulted in “significantly lower” grades. (Id.) The District
determined that I.Q. did not need a Section 504 Plan because her
medications were working and her grades were high. (Id.)
Plaintiffs allege that, to date, the District has not
provided I.Q. the accommodations she needs to access her
education. (Id.)

5

B. Procedural history
Plaintiffs filed this action on December 15, 2014 asserting
claims against the District for violations of the ADA, Section
504, and the NJLAD. Plaintiffs seek compensatory education and
compensatory damages and an order directing the District to
provide I.Q. with a Section 504 plan. Plaintiffs also seek
expert and attorney’s fees. Defendant filed the instant motion
to dismiss on January 22, 2015. [Docket Item 8.] Plaintiffs
filed opposition [Docket Item 10] and Defendant filed a reply
[Docket Item 11].
STANDARD OF REVIEW
Under Rule 12(b)(1), a defendant may move to dismiss on the
grounds that the court lacks subject matter jurisdiction over
the dispute. Fed. R. Civ. P. 12(b)(1). The Third Circuit has
identified two types of challenges to the court’s jurisdiction
under Rule 12(b)(1): 1) facial challenges which are based on the
legal sufficiency of the claim as pleaded on the face of the
complaint, and 2) factual challenges which are based on the
sufficiency of jurisdictional facts. Mortensen v. First Fed.
Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). An attack
on subject matter jurisdiction that is based on a lack of
administrative exhaustion is a factual challenge, not a facial
one. See e.g., Eladawey v. Fed. R.R. Admin., Civ. 13-2976 (ES),
2014 WL 4610644, at *2 (D.N.J. Sept. 12, 2014); J.H. ex rel.
6

J.H. v. Egg Harbor Twp. Bd. of Educ., Civ. 08-488 (JBS), 2009 WL
1322514, at *2 (D.N.J. May 11, 2009).
“In reviewing a factual attack [as here] the court may
consider evidence outside the pleadings.” Gould Elec. Inc. v.
United States, 220 F.3d 169, 176 (3d Cir. 2000). “In such a
situation, ‘no presumptive truthfulness attaches to plaintiff’s
allegations, and the existence of disputed material facts will
not preclude the trial court from evaluating for itself the
merits of jurisdictional claims.’” Carpet Group Int’l v.
Oriental Rug Importers Ass’n, Inc., 227 F.3d 62, 69 (3d Cir.
2000) (quoting Mortensen, 549 F.2d at 891). “[T]he burden of
proving that jurisdiction exists lies with the plaintiff, and
‘the trial court is free to weigh the evidence and satisfy
itself as to the existence of its power to hear the case.’”
Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 464
(3d Cir. 2013), cert. denied, No. 13-817, 2015 WL 231966 (U.S.
Jan. 20, 2015) (quoting Mortensen, 549 F.2d at 891).
DISCUSSION
Defendant argues that this Court lacks subject matter
jurisdiction over Plaintiffs’ claims because they have failed to
exhaust administrative remedies as required under the IDEA.
Although Plaintiffs do not assert claims under the IDEA,
Defendant nevertheless contends that the IDEA’s exhaustion
requirement applies because Plaintiffs seek relief which is
7

available under the IDEA, as established by the plain language
of the IDEA and binding precedent. Plaintiffs contend in
response that the IDEA’s exhaustion requirement does not apply
because they do not and could not seek relief under the IDEA.
Plaintiffs maintain that I.Q. is not disabled and not entitled
to special education services under the IDEA as required to be
eligible for relief thereunder. In reply, Defendant argues that
the IDEA’s exhaustion requirement is triggered by the nature of
Plaintiffs’ claims and the relief sought irrespective of
eligibility under the IDEA.
A.

Plaintiffs could have asserted claims under the IDEA

Because determining whether Plaintiffs’ claims are subject
to the IDEA’s exhaustion requirement turns on whether Plaintiffs
could have asserted claims under the IDEA, the Court begins with
Plaintiffs’ argument that I.Q. is not eligible for relief under
the IDEA.
Congress enacted the IDEA to “ensure that all children with
disabilities have available to them a free appropriate public
education that emphasizes special education and related services
designed to meet their unique needs . . . .” Batchelor v. Rose
Tree Media Sch. Dist., 759 F.3d 266, 271 (3d Cir. 2014) (quoting
20 U.S.C. § 1400(d)(1)(A)). “An Individualized Education Program
(IEP) is the primary vehicle for providing students with the
required free and appropriate education.” S.H. v. State-Operated
8

Sch. Dist. of City of Newark, 336 F.3d 260, 264 (3d Cir. 2003).
The IDEA defines “child with a disability” as follows:
a child with intellectual disabilities, hearing impairments
(including deafness), speech or language impairments, visual
impairments
(including
blindness),
serious
emotional
disturbance (or referred to in this chapter as “emotional
disturbance”), orthopedic impairments, autism, traumatic
brain injury, other health impairments, or specific learning
disabilities; and who by reason thereof needs special
education and related services.
20 U.S.C. § 1401(3)(A) (emphasis added). The IDEA defines
“other health impairments” as
having limited strength, vitality or alertness, including a
heightened alertness to environmental stimuli, that results
in limited alertness with respect to the educational
environment, that-(i) [i]s due to chronic or acute health
problems, including but not limited to a heart condition,
tuberculosis, rheumatic fever, nephritis, asthma, sickle cell
anemia, hemophilia, epilepsy, lead poisoning, leukemia,
diabetes, attention deficit disorder or attention deficit
hyperactivity disorder or Tourette syndrome; and [a]dversely
affects a student's educational performance.
34 C.F.R. § 300.8(c)(9)(i)-(ii) (emphasis added). The
protections of the IDEA are not limited to students with
intellectual or learning disabilities and “expressly includes
health impairments that limit a student’s ability to attend
regular classes and which adversely affect his or her
educational performance.” A.D. v. Haddon Heights Bd. of Educ.,
Civ. 14-1880 (JBS), 2015 WL 892643, at *9 (D.N.J. Mar. 2, 2015).
Notably, “other health impairments” is explicitly defined under
the IDEA to include “attention deficit disorder or attention

9

deficit hyperactivity disorder,” the principal disabling
condition identified in Plaintiffs’ Complaint.
Moreover, “special education” under the IDEA “means
specially designed instruction, at no cost to parents, to meet
the unique needs of a child with a disability, including (A)
instruction conducted in the classroom, in the home, in
hospitals and institutions, and in other settings; and (B)
instruction in physical education.” 20 U.S.C. § 1401(29). The
Third Circuit has noted that the IDEA is written in the
conjunctive and coverage thereunder requires a showing that a
student is 1) a child with a disability and 2) needs special
education and related services. D.S. v. Neptune Twp. Bd. of
Educ., 264 F. App’x 186, 189 (3d Cir. 2008) (“Written in the
conjunctive, the statute should not be read to protect children
with an impairment but not requiring special education.”).
However, “there is no precise standard for determining whether a
student is in need of special education, and well-settled
precedent counsels against invoking any bright-line rules for
making such a determination.” W. Chester Area Sch. Dist. v.
Bruce C., 194 F. Supp. 2d 417, 420 (E.D. Pa. 2002)
Here, the present record supports a finding that I.Q. is
potentially eligible for coverage under the IDEA and thus could
have, as a threshold matter, asserted claims under the IDEA. As
alleged in the Complaint, I.Q. suffers from ADHD, a condition
10

expressly defined as an “other health impairment” under the
IDEA, which Plaintiffs contend “substantially affects and limits
her learning and other major life activities.” (Compl. ¶ 13.) As
a result of her ADHD, Plaintiffs allege that I.Q. “has
difficulty concentrating, paying attention, thinking clearly,
focusing, staying organized, keeping track of things and
remembering to complete her work, to bring her completed work to
school, and to finish her work.” (Id.) I.Q.’s ADHD is
“significant and debilitating.” (Id.) The I&RS Plan designed for
I.Q. permitted her to “return to her locker to gather missed
work, use of a binder and homework folders to help with
organization, and an assignment book signed by teachers.” (Id. ¶
17.) Plaintiffs assert that despite the I&RS Plan, I.Q.
continued to struggle in school. (Id. ¶ 19.) Dr. Levin, the
neuropsychologist retained by Plaintiffs, concluded that
deficits in I.Q.’s “working memory” coupled with her ADHD
“negatively impacted her ability to learn at school.” (Id. ¶
26.) Dr. Levin then proposed a series of accommodations to
improve I.Q.’s learning and educational performance. (Id.)
Accordingly, Plaintiffs’ allegations suggest satisfaction of
both statutory prerequisites for coverage under the IDEA. 1 See

1

I.Q.’s alleged need for help maintaining concentration,
additional time to complete assignments, assistance to improve
her organizational skills, and a special system to track her
homework assignments plausibly constitutes “special education
11

Hansen ex rel. J.H. v. Republic R-III Sch. Dist., 632 F.3d 1024,
1028 (8th Cir. 2011) (finding that student met statutory
definition of “child with a disability” under the IDEA based on
hyperactive, impulsive, and inattentive behavior which “severely
impaired his ability to learn”).
Because Plaintiffs have not asserted an IDEA claim and the
question has not been otherwise presented at this stage, the
Court makes no finding as to the merits of any IDEA or IDEArelated claim. The Court, in concluding that Plaintiffs’
allegations potentially implicate the protections under the
IDEA, merely rejects Plaintiffs’ argument that the IDEA is
inapplicable to this action due to the nature of I.Q.’s
conditions and the services sought. See Batchelor v. Rose Tree
Media Sch. Dist., 759 F.3d 266, 272 (3d Cir. 2014) (noting that
plaintiffs are barred “from circumventing [the] IDEA’s
exhaustion requirement by taking claims that could have been
brought under IDEA and repackaging them as claims under some
other statute—e.g., section 1983, section 504 of the
Rehabilitation Act, or the ADA”).

and related services” under the IDEA. Plaintiffs’ argument to
the contrary is unpersuasive in light of the expansive
definition of such services under the IDEA. Further, the fact
that Plaintiffs did not request services under the IDEA is
irrelevant to whether I.Q. could be considered a child with a
disability “who by reason thereof needs special education and
related services.” 20 U.S.C. § 1401(3)(A).
12

The cases upon which Plaintiffs rely in support of their
contention that exhaustion is only required where the student is
eligible for relief under both Section 504 and the IDEA are
inapposite and distinguishable. See S.H. ex rel. Durrell v.
Lower Merion Sch. Dist., 729 F.3d 248, 257-58 (3d Cir. 2013)
(concluding that IDEA’s reference to “child with a disability”
does not include children who are mistakenly identified as
disabled and upholding district court’s dismissal of IDEA
claim); Alboniga v. Sch. Bd. of Broward County Fla., 2015 U.S.
Dist. LEXIS 15832, at *19 (S.D. Fla. Feb. 10, 2015) (finding
that exhaustion was not required where plaintiff’s ADA and
Section 504 claims, based on school’s failure to include use of
a service animal in student’s IEP, were not based on the denial
of a free and appropriate public education, nor relevant to
student’s educational experience). Here, Plaintiffs do not
assert that I.Q. was mistakenly identified as disabled. To the
contrary, Plaintiffs assert that I.Q’s disability is more severe
and impactful on her education than acknowledged by Defendant,
and Plaintiffs’ claims are undeniably based on Defendant’s
alleged failure to provide a FAPE. 2 Critically, Plaintiffs have

2

Plaintiffs’ arguments that the eligibility criteria under
Section 504 and the ADA are broader than that under the IDEA and
that neither the Rehabilitation Act nor the ADA requires
exhaustion, while accurate, are irrelevant to the Court’s
analysis in light of Batchelor. Batchelor v. Rose Tree Media
Sch. Dist., 759 F.3d 266, 274 (3d Cir. 2014) (“Appellants’
13

identified no binding precedent suggesting that the IDEA’s
exhaustion requirement only applies to non-IDEA claims when a
student has been found eligible for an IEP.
Further, many of the cases Plaintiffs cite followed
administrative proceedings, which enabled the courts to rely on
developed administrative records in their determination of
plaintiffs’ eligibility for relief under the IDEA. See Chelsea
D. v. Avon Grove Sch. Dist., 2013 U.S. Dist. LEXIS 98125, at
*24-35 (E.D. Pa. July 15, 2013) (relying on the findings of the

retaliation claims asserted under Section 504 of the
Rehabilitation Act and ADA ‘relate unmistakably’ to the
provision of a FAPE to [the student], and are thus subject to
the IDEA’s exhaustion requirement.”). Additionally, this Court
recently rejected the argument that the FAPE contemplated by the
IDEA is in some way distinguishable from the FAPE contemplated
by the Rehabilitation Act. See A.D. v. Haddon Heights Bd. of
Educ., Civ. 14-1880 (JBS), 2015 WL 892643, at *10 (D.N.J. Mar.
2, 2015). Indeed, “there appears to be ‘few differences, if
any,’ between the requirements imposed under Section 504 and
those provided under the IDEA.” T.F. v. Fox Chapel Area Sch.
Dist., Civ. 12–1666, 2013 WL 5936411, at *9 n.4 (W.D. Pa. Nov.5,
2013) (quoting W.B. v. Matula, 67 F.3d 484, 492–93 (3d Cir.
1995)), aff’d, 2014 WL 4674635 (3d Cir. Sept. 22, 2014). Both
statutes require consideration of whether the school district
provided the education, services, and support necessary to
accommodate the student’s disabilities. See D.K. v. Abington
Sch. Dist., 696 F.3d 233, 253 n.8 (3d Cir. 2012) (“As we have
explained, § 504’s negative prohibition is similar to the IDEA’s
affirmative duty and . . . requires schools that receive federal
financial assistance to provide a free appropriate public
education to each qualified handicapped person who is in the
recipient’s jurisdiction. As under the IDEA, providing a FAPE in
accordance with § 504 requires a school district to reasonably
accommodate the needs of the handicapped child so as to ensure
meaningful participation in educational activities and
meaningful access to educational benefits.”) (internal
quotations and citations omitted).
14

hearing officer regarding plaintiffs’ alleged disabilities and
the need for special education services in evaluating
plaintiffs’ IDEA claim); S.L. v. Downey Unified Sch. Dist., 2014
U.S. Dist. LEXIS 30814, at *19-20 n.2 (C.D. Cal. Mar. 10, 2014)
(noting that the school district “determined on multiple
occasions that Plaintiff does not qualify for special education
services under the IDEA” and that “prior administrative
proceedings” provided the district an opportunity to determine
whether plaintiff, a student with a seizure disorder which
caused her to miss significant class time, was qualified for
services under the IDEA); D.R. ex rel. Courtney R. v. Antelope
Valley Union High Sch. Dist., 746 F. Supp. 2d 1132, 1144-45
(C.D. Cal. 2010) (recognizing that plaintiff, a student with
impaired mobility due to Charcot-Marie-Tooth Disease, pursued
administrative remedies under the IDEA, albeit unsuccessfully,
before filing her claims in federal court and finding that
plaintiff was not a child with a disability as defined by the
IDEA and thus not required to exhaust administrative remedies to
assert claims under Section 504 and the ADA). There has been no
such administrative proceedings here and no determination by
Defendant that I.Q. is not eligible for services under the IDEA.
Unlike these cases, in the present action, the Court is unable
to conclude that I.Q. is not eligible for relief under the IDEA,

15

as Plaintiffs contend, especially in the absence of a more
developed record. 3
Therefore, the Court must consider whether the exhaustion
requirements of the IDEA apply to Plaintiffs’ non-IDEA claims.
B.

Plaintiffs’ claims are subject to the IDEA’s
exhaustion requirement

Defendant argues that this Court lacks subject matter
jurisdiction because Plaintiffs failed to exhaust administrative
remedies. Plaintiffs contend, in the Complaint and in opposition
to the instant motion to dismiss, that they need not exhaust
administrative remedies because Section 504 and the ADA do not
require exhaustion unless an individual also asserts a claim
under the IDEA, which Plaintiffs do not.
This Court recently addressed nearly identical arguments in
A.D. v. Haddon Heights Bd. of Educ., Civ. 14-1880 (JBS), 2015 WL
892643 (D.N.J. Mar. 2, 2015), and will therefore rely on the
applicable law as summarized therein.
The IDEA requires, in relevant part, that states receiving
federal funds “make available a FAPE to children with
3

These cases also reinforce the policy considerations
articulated by the Batchelor Court in support of applying the
IDEA’s exhaustion requirement to non-IDEA claims such as those
in the instant action. See Batchelor v. Rose Tree Media Sch.
Dist., 759 F.3d 266, 275 (3d Cir. 2014) (“Exhaustion serves the
purpose of developing the record for review on appeal,
encouraging parents and the local school district to work
together to formulate an IEP for a child’s education, and
allowing the education agencies to apply their expertise and
correct their own errors.”) (internal citations and
parentheticals omitted).
16

disabilities” and “implement specified procedural safeguards
to ensure children with disabilities and their parents”
receive due process. Batchelor, 759 F.3d at 272. These
safeguards, collectively known as the IDEA’s administrative
remedies, provide “an elaborate procedural mechanism,” which
includes “a due process hearing before an administrative
official.” Komninos v. Upper Saddle River Bd. of Educ., 13
F.3d 775, 778 (3d Cir. 1994); 20 U.S.C. § 1415(f).
Congress required plaintiffs to complete the administrative
process prior to resorting to federal court, “because
allowing a ‘claim without requiring exhaustion . . . would
not only ‘render superfluous most of the detailed procedural
protections outlined in the statute, but, . . . would also
run counter to Congress’ view that the needs of handicapped
children are best accommodated by having the parents and the
local education agency work together to formulate an
individualized plan for each handicapped child’s education.’”
M.G. ex rel. LG v. Caldwell–West Caldwell Bd. of Educ., 804
F. Supp. 2d 305, 313 (D.N.J. 2011) (quoting Komninos, 13 F.3d
at 778 (quoting Smith v. Robinson, 468 U.S. 992, 1011–12
(1984))). Exhaustion further affords the education agencies
an opportunity “to apply their expertise and correct their
own mistakes.” Woodruff v. Hamilton Twp. Pub. Sch., 305 F.
App’x 833, 837 (3d Cir. 2009) (citing McKart v. U.S., 395
U.S. 185, 194–95 (1969)).
Consequently, parties may only commence a civil action in
district court following “the findings and decision” of an
administrative hearing. 20 U.S.C. § 1415(i)(2)(C)(i)-(iii).
At that time, the reviewing court may grant “such relief as
[it] determines appropriate,” see id., including “attorneys’
fees, reimbursement for a private educational placement, and
compensatory education.” Chambers v. Sch. Dist. of Phila. Bd.
of Educ., 587 F.3d 176, 185 (3d Cir. 2009) (internal quotation
marks omitted).
A.D., 2015 WL 892643, at *10-11.
Although Plaintiffs here do not assert a claim under the
IDEA, the Third Circuit in Batchelor, found that “[e]xhaustion
of the IDEA’s administrative process is also required in nonIDEA actions where the plaintiff seeks relief that can be

17

obtained under the IDEA.” Batchelor, 759 F.3d at 272.
Importantly, Section 1415(l) of the IDEA contains the following
rule of construction:
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.A. § 12101 et seq.], title V of the Rehabilitation
Act of 1973 [29 U.S.C.A. § 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 this
subchapter, the procedures under subsections (f) and (g)
shall be exhausted to the same extent as would be required
had the action been brought under this subchapter.
20 U.S.C. § 1415(l) (emphasis added). “This provision bars
plaintiffs from circumventing [the] IDEA’s exhaustion
requirement by taking claims that could have been brought under
IDEA and repackaging them as claims under some other statute—
e.g., section 1983, section 504 of the Rehabilitation Act, or
the ADA.” Batchelor, 759 F.3d at 272 (quoting Jeremy H. v. Mount
Lebanon Sch. Dist., 95 F.3d 272, 281 (3d Cir. 1996)); see also
Hornstine v. Twp. Of Moorestown, 263 F. Supp. 2d 887, 901–02
(D.N.J. 2003) (“[I]n cases in which it appears that a plaintiff
has cloaked an IDEA claim as an ADA, Rehabilitation Act, or
Section 1983 action in an effort to avoid application of the
IDEA’s distinct exhaustion requirement, courts will require that
plaintiff to [sic] exhaust the state administrative remedies
mandated for IDEA claims.”).

18

As noted by the Court of Appeals in Batchelor, determining
whether the IDEA’s administrative process must be exhausted
before bringing claims in federal court turns on “whether the
parties could have asserted the claims under the IDEA” and
“whether the claim could have been remedied by the IDEA’s
administrative process.” Batchelor, 759 F.3d at 273. “In other
words, claims under Section 504, the ADA, Section 1983, or any
state analogue, will require exhaustion, if such claims seek
relief ‘available under the IDEA.’” A.D., 2015 WL 892643, at *11
(quoting Id.).
This Court again finds the Third Circuit’s decision in
Bachelor instructive.
In Batchelor, the plaintiffs, a mother and son, filed suit
against the school district, primarily alleging that the
school district retaliated against them “‘for their advocacy
with respect to [the son’s] legally protected right’” to a
FAPE. Id. at 270, 274 (citation omitted). The plaintiffs
specifically asserted three claims: retaliation and failure
to provide a FAPE under the IDEA; retaliation in violation of
Section 504; and retaliation in violation of the ADA. Id. at
270. The plaintiffs argued, as here, that they need not
exhaust administrative remedies with regard to their Section
504 and ADA claims. Id.
Upon review of the plain language of the statute-which
“affords parents of a disabled child the opportunity to
present a complaint ‘with respect to any matter relating to
the identification, evaluation, or educational placement of
the child, or the provision of a free appropriate public
education to such child’”-the Court of Appeals, however,
found “a logical path to be drawn” from the claims of
retaliation to the school district’s failure to provide, and
plaintiffs’ efforts to obtain, “‘a free appropriate public
education.’” Id. at 274–75 (emphasis in original). Because of
the “‘unmistakabl[e]’” relationship between the retaliation
19

claims and the provision of a FAPE under 20 U.S.C. §
1415(b)(6), the Batchelor court concluded that such claims
must be exhausted under the IDEA. Id. at 274–75.
In the wake of Batchelor, district courts throughout this
Circuit have found non-IDEA actions subject to IDEA
exhaustion requirements, where the asserted claims bear
relation to the IDEA’s guarantee of a FAPE. See, e.g., M.S.
ex rel. Shihadeh, ––– F.Supp.3d –––, 2015 WL 70920, at *4–5
(finding in a non-IDEA action that, under Batchelor, the
plaintiffs’ ADA and Section 504 claims required IDEA
exhaustion); S.B. v. Trenton Bd. of Educ., Civ. 13–0949, 2014
WL 5089716, at *5 (D.N.J. Oct. 9, 2014) (finding in a nonIDEA action that, under Batchelor, the plaintiffs’ claims
under the ADA, the RA, and the New Jersey Special Education
Statute, required IDEA exhaustion).
A.D., 2015 WL 892643, at *12.
In the present action, as in Batchelor and A.D.,
Plaintiffs’ claims “palpably relate” to whether Defendant
provided I.Q. a FAPE – the principal protection guaranteed by
the IDEA. Batchelor, 759 F.3d at 274. Central to Plaintiffs’
Complaint are allegations regarding the appropriateness of the
education provided I.Q. given her alleged disabilities. As
alleged, Plaintiffs first approached Defendant during the 20122013 school year “due to concerns about how I.Q.’s disability
was affecting her learning and thinking at school and
elsewhere.” (Compl. ¶ 14.) Plaintiffs contend that, despite
being provided with accommodations through an I&RS Plan, I.Q.
continued to struggle in school, yet Defendant “refused to
acknowledge that ADHD is a disability that is valid, real and
affects I.Q.’s learning.” (Id. ¶ 19.) Unsatisfied with

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Defendant’s response to Plaintiffs’ request for further
evaluation and services, Plaintiffs hired Dr. Levin to
“determine what services [I.Q.] would need to alleviate her
difficulties in school.” (Id. ¶ 26.) Dr. Levin’s suggested
accommodations all relate to I.Q.’s education and her ability to
learn. Plaintiffs assert that “[t]o date, I.Q. has not been
afforded accommodations and modifications she needs to access
her education.” (Id. ¶ 28.)
Although Plaintiffs’ claims are artfully framed as
discrimination claims, in essence they concern whether I.Q. is a
student with a disability and whether Defendant acted
appropriately in response to Plaintiffs’ request for
accommodations to ensure I.Q.’s right to a FAPE. Such claims
clearly relate to Defendant’s obligation to provide a FAPE. As
such, Plaintiffs here aim to accomplish what the plain language
of the IDEA expressly prohibits, namely the circumvention of the
IDEA’s exhaustion requirements by “repacking claims that could
have been brought under the IDEA and repacking them as claims
under some other statute.” Batchelor, 759 F.3d at 272. The Court
of Appeals in Batchelor roundly rejected a similar attempt at
circumvention. Because the Court finds, at this stage, that
Plaintiffs conceivably could have asserted the claims under the
IDEA based on harm which could have been remedied by the IDEA’s
administrative process, Plaintiffs are required to have
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exhausted the IDEA’s administrative remedies, which they
undisputedly have not. Consequently, the Court must consider
whether any exception to the IDEA’s exhaustion requirement
applies.
C.

No exception to the IDEA’s exhaustion requirement
applies

Defendant properly notes that no exception to the IDEA’s
exhaustion requirement applies here.
“Plaintiffs need not comply with the IDEA’s exhaustion
requirements if ‘exhaustion would be futile or inadequate,’ if
‘the issue presented is purely a legal question,’ or if ‘the
administrative agency cannot grant relief.’” A.D., 2015 WL
892643, at *14 (quoting Komninos, 13 F.3d at 778). Although
Plaintiffs seek compensatory damages in the instant action,
which “are not available under the IDEA and cannot be awarded in
the context of a Due Process hearing,” Batchelor, 759 F.3d at
276, as in Batchelor, it would be untenable to argue that all of
the remedies Plaintiffs seek are unavailable under the IDEA. Id.
Plaintiffs also seek compensatory education, an order compelling
Defendant to provide I.Q. with an appropriate Section 504 Plan,
expert fees, counsel fees and costs, and “any other relief this
Court should deem proper and just.” (Compl. at 11.) In fact,
Plaintiffs’ demand for monetary damages is explicitly premised

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on damage due to Defendant’s failure to provide I.Q. with the
educational accommodations sought.
Moreover, the court “is not constrained in the relief it is
authorized to grant by the remedies sought” in Plaintiffs’
Complaint. Batchelor, 759 F.3d at 276. Instead, “‘the theory
behind the grievance may activate the IDEA’s process, even if
the plaintiff wants a form of relief that the IDEA does not
supply.’” Id. (quoting Charlie F. v. Bd. of Educ. of Skokie Sch.
Dist. 68, 98 F.3d 989, 992 (7th Cir. 1996)). Accordingly, the
Court of Appeals in Batchelor expressly rejected the argument
that plaintiffs were exempt from the IDEA’s exhaustion
requirement because they demanded monetary damages in addition
to other forms of relief. Id.
Plaintiffs do not and cannot argue that any of the other
exceptions to the IDEA’s exhaustion requirement as discussed by
the Batchelor Court apply to this action. The “implementation
exception” does not apply because Plaintiffs do not challenge
the implementation of an IEP. Plaintiffs, instead, assert
substantive claims for failure to provide a FAPE. Id. at 280. As
in Batchelor, the futility exception is inapplicable because
Plaintiffs have not previously exhausted the administrative
process under the IDEA and the factual record is not fully
developed. Accordingly, the IDEA’s administrative process
remains available to remedy the alleged harms. Id. (observing
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that district courts in this district have applied the futility
exception “where the plaintiff had previously exhausted
administrative remedies, and where the factual record was
sufficiently developed,” but declining to excuse exhaustion in
the absence of prior administrative proceedings).
CONCLUSION
In light of the foregoing, the Court concludes that
Plaintiffs’ claims require exhaustion of the IDEA’s
administrative process and that no exception to the exhaustion
requirement applies. Therefore, the Court will grant Defendant’s
motion to dismiss for lack of subject matter jurisdiction. The
Court will dismiss Plaintiffs’ Complaint in its entirety without
prejudice. 4 See Id. at 281 (dismissing complaint for lack of
subject matter jurisdiction where plaintiffs failed to exhaust
the IDEA’s administrative process and failed to demonstrate
application of an exception); M.A. v. Jersey City Bd. of Educ.,
--- F. App’x ---, 2014 WL 6656328, at *5 (3d Cir. Nov. 24, 2014)
(same). An accompanying Order will be entered.
March 13, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

4

Having dismissed Plaintiffs’ federal claims without prejudice,
the Court declines to exercise supplemental jurisdiction over
their corresponding state law claim. See 28 U.S.C. § 1367(c)(3);
A.D. v. Haddon Heights Bd. of Educ., Civ. 14-1880 (JBS), 2015 WL
892643, at *15 n.17 (D.N.J. Mar. 2, 2015); R.S. v. Glen Rock Bd.
of Educ., Civ. 14-0024 (SRC), 2014 WL 7331954, at *6 (D.N.J.
Dec. 19, 2014).
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