FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEXYINGTON MCINTYRE,

Plaintiff-Appellant,

v.

EUGENE SCHOOL DISTRICT 4J,

Defendant-Appellee,

and

CHERYL LINDER; ANDY DEY;

MICHAEL STASACK; SUSIE 

NICHOLSON; SUZIE MCLAUCHLIN,

Defendants.

No. 19-35186

D.C. No.

6:18-cv-00768-

MK

OPINION

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Argued and Submitted March 4, 2020

Portland, Oregon

Filed September 23, 2020
2 MCINTYRE V. EUGENE SCH. DIST. 4J

Before: Ferdinand F. Fernandez and Richard A. Paez, 

Circuit Judges, and Timothy M. Burgess,* District Judge.

Opinion by Judge Paez

SUMMARY**

Disability Discrimination

The panel reversed in part and vacated in part the district 

court’s dismissal of a former high school student’s action 

alleging disability discrimination by school officials in 

violation of Section 504 of the Rehabilitation Act and Title 

II of the Americans with Disabilities Act.

The plaintiff had a “504 Plan” describing the education 

and related aids and services she needed, but she did not have 

an “individualized education program,” defined under the 

Individuals with Disabilities Education Act (“IDEA”) as a 

plan for ensuring that a student receives a free appropriate 

public education (“FAPE”). The district court dismissed the 

complaint under Federal Rule of Civil Procedure 12(b)(6) on 

the dual grounds that (1) the plaintiff failed to exhaust her 

administrative remedies under the IDEA, and (2) her claims 

were barred by the applicable two-year statute of limitations.

* The Honorable Timothy M. Burgess, United States Chief District 

Judge for the District of Alaska, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
MCINTYRE V. EUGENE SCH. DIST. 4J 3

Applying Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743 

(2017), the panel concluded that the “crux” of the complaint 

sought relief for the disability-based discrimination and 

harassment the plaintiff faced at school, and not for the 

denial of a FAPE under the IDEA. As a result, she was not 

required to exhaust administrative remedies under the IDEA. 

First, the plaintiff complained that the school district 

discriminated against her by failing to provide her with 

specific accommodations, none of which constituted FAPE 

as the IDEA defines it. The plaintiff also complained that 

the school district discriminated against her by creating a 

hostile learning environment. Her claim, which was based 

only on Section 504, did not indirectly seek relief under the 

IDEA. Because she never sought or received “special 

education and related services,” a hostile learning 

environment could not be said to have interfered with any 

such services. Accordingly, the panel reversed the district 

court’s dismissal for failure to exhaust administrative 

remedies under the IDEA.

The panel also vacated the district court’s dismissal on 

the alternative ground that the plaintiff’s claims were barred 

by the two-year statute of limitations because she was not 

entitled to minority tolling under Oregon Revised Statutes 

section 12.160(2) or equitable tolling. The panel concluded 

that to the extent the district court construed the statute of 

limitations to be an alternative basis for dismissal, it 

misconstrued a magistrate judge’s findings and 

recommendation, which it adopted in full. Because the 

tolling issues were not an independent basis for dismissal, 

the panel vacated the district court’s order. In light of the 

panel’s analysis under Fry, it remanded for further 

consideration of whether the plaintiff’s claims were subject 

to minority tolling.
4 MCINTYRE V. EUGENE SCH. DIST. 4J

COUNSEL

Kimberly Sherman (argued), Education, Environmental, & 

Estate Law Group LLC, Eugene, Oregon; Marianne Dugan, 

Eugene, Oregon; for Plaintiff-Appellant.

Rebekah R. Jacobson (argued) and Shayna M. Rogers,

Garrett Hemman Robertson P.C., Salem, Oregon, for 

Defendant-Appellee.

OPINION

PAEZ, Circuit Judge:

Lexyington McIntyre (“McIntyre”) appeals the district 

court’s order dismissing her complaint against Defendant 

Eugene School District 4J (“the District”).1 The operative 

complaint alleges that, while McIntyre was a student at 

South Eugene High School, school officials discriminated 

against her on the basis of her disabilities in violation of 

Section 504 of the Rehabilitation Act and the Americans 

with Disabilities Act. The district court dismissed the 

complaint under Federal Rule of Civil Procedure 12(b)(6) on 

the dual grounds that (1) McIntyre failed to exhaust her 

administrative remedies under the Individuals with 

Disabilities Education Act, and (2) McIntyre’s claims were 

barred by the applicable two-year statute of limitations. 

Because the district court erred in both respects, we reverse 

1 We adopt the spelling of the plaintiff’s first name used in the 

operative First Amended Complaint.
MCINTYRE V. EUGENE SCH. DIST. 4J 5

in part and vacate in part and remand for further 

proceedings.2

I. BACKGROUND3

A. Factual Background

In 2017, McIntyre graduated from South Eugene High 

School, one of the District’s schools, in Eugene, Oregon. 

From first grade until her high school graduation, McIntyre 

participated in the District’s Language Immersion Program.

In early 2012, during the seventh grade, McIntyre was 

diagnosed with Attention Deficit Disorder (“ADD”). The 

District accordingly developed a “504 Plan” for McIntyre, 

which is a written document describing the regular or special 

education and related aids and services a student needs. The 

504 Plan laid out limited accommodations for McIntyre, 

including extra time on tests and assignments, reduced 

2 We have jurisdiction under 28 U.S.C. § 1291. See Paul G. by & 

through Steve G. v. Monterey Peninsula Unified Sch. Dist., 933 F.3d 

1096, 1100 (9th Cir. 2019). The Individuals with Disabilities Education 

Act’s exhaustion requirement is not jurisdictional, but rather a claims 

processing provision that defendants may offer as an affirmative defense. 

See Payne v. Peninsula Sch. Dist., 653 F.3d 863, 867 (9th Cir. 2011) (en 

banc), overruled on other grounds by Albino v. Baca, 747 F.3d 1162 (9th 

Cir. 2014).

3 When reviewing a dismissal under Federal Rule of Civil Procedure 

12(b)(6) for failure to state a claim, “[w]e accept as true all well pleaded 

facts in the complaint and construe them in the light most favorable to 

the nonmoving party.” ASW v. Oregon, 424 F.3d 970, 974 (9th Cir. 

2005).
6 MCINTYRE V. EUGENE SCH. DIST. 4J

assignments and projects, preferred seating, and a quiet and 

separate testing environment.4

In fall 2013, McIntyre started as a freshman in the 

International High School program at South Eugene High 

School. Like every other student in the French Immersion 

Program, McIntyre was enrolled in a French Language 

Program with teacher Michael Stasack. But Stasack 

declined to implement McIntyre’s 504 Plan 

accommodations and repeatedly suggested that she did not 

belong in the Program due to her ADD. At the end of the 

school year in May 2014, McIntyre’s parents filed with the 

District a formal “Bullying/Harassment” complaint against 

Stasack. The District investigated and found two violations 

of the District’s discrimination and harassment policies. 

McIntyre suffered Post-Traumatic Stress Syndrome as a 

consequence of the discrimination and harassment she faced 

that year. As a remedy for the violations, the District offered 

McIntyre two options: she could attend college-level French 

classes through the University of Oregon or complete an 

“Independent Study” program through the District. 

McIntyre did not immediately select an option for her 

sophomore year; instead, she completed a yearlong study 

abroad program in Germany in 2014–15. She returned to her 

high school in fall 2015.

McIntyre’s junior year was especially challenging. At 

the beginning of the eleventh grade in fall 2015, McIntyre 

was diagnosed with Addison’s disease, a rare hormone 

4 As explained further below, schools regularly develop 504 plans 

to support students who require accommodations for their disabilities. 

Most students who are also eligible for an Individualized Education 

Program (“IEP”) under the Individuals with Disabilities Education Act, 

however, receive an IEP in lieu of a 504 plan. McIntyre never had an 

IEP.
MCINTYRE V. EUGENE SCH. DIST. 4J 7

condition.5 The District accordingly amended McIntyre’s 

504 Plan to include an emergency protocol that required 

school officials to call 911 if she were seriously injured. In 

addition, because of the disease, McIntyre could no longer 

take her ADD medication.

As to McIntyre’s language study, after the District 

discouraged her from taking college courses, McIntyre 

accepted the District’s offer of an independent study 

program for the 2015–16 school year. The instructor was 

Suzie McLauchlin, a non-language teacher who was not 

certified to administer the International Baccalaureate (“IB”) 

exams and was not accredited to teach Advanced Placement 

(“AP”) courses. McLauchlin rarely met with McIntyre. As 

the school year progressed, McIntyre lacked sufficient 

opportunity to practice French, and she was unprepared for 

the AP exam in spring 2016.

Among her other teachers, McIntyre’s math teacher, 

Susie Nicholson, also repeatedly declined to implement the 

504 Plan accommodations. In particular, Nicholson 

declined to provide McIntyre with testing accommodations, 

forcing McIntyre to take exams in a way that was 

embarrassing or left her with less time on the exams than her 

peers. Nicholson’s actions further contributed to McIntyre’s 

stress and anxiety and exacerbated her Addison’s disease.

5 Addison’s disease is “a chronic type of adrenocortical 

insufficiency, characterized by hypotension, weight loss, anorexia, 

weakness, and a bronzelike hyperpigmentation of the skin. It is due to 

tuberculosis- or autoimmune-induced destruction of the adrenal cortex, 

which results in deficiency of aldosterone and cortisol and is fatal in the 

absence of replacement therapy.” Addison disease, DORLAND’S 

ILLUSTRATED MEDICAL DICTIONARY (32d ed. 2012).
8 MCINTYRE V. EUGENE SCH. DIST. 4J

Towards the end of her junior year in spring 2016, the 

District reassigned Stasack to a different school after it 

investigated another student’s complaint against him. 

McIntyre’s peers in the French Immersion Program 

organized a walk-out to protest Stasack’s reassignment. 

They also protested the accommodations that students with 

disabilities sought, believing that Stasack was “fired because 

of the 504 kids.” With McLauchlin’s permission, students 

walked out from McLauchlin’s social studies class on May 

26, 2016. McIntyre felt isolated from her peers and betrayed 

by McLauchlin and the school administrators who failed to 

intervene. Throughout the following year, McIntyre’s 

classmates maintained their resentment, harassing and 

bullying McIntyre for her perceived role in Stasack’s 

transfer. They ultimately designed a sweatshirt celebrating 

him, which students wore at their graduation ceremony in 

2017. School officials never addressed the hostile learning 

environment McIntyre experienced.

In June 2016, McIntyre fractured her ankle during a 

physical education class. Despite the 504 Plan’s emergency 

protocol requiring school officials to call 911, school 

officials declined to call for an ambulance.

During her 2016–17 senior year, the District made it 

difficult for McIntyre to apply for college in light of her 

disability. The District failed to submit documentation for 

McIntyre to receive testing accommodations with the 

College Board, declined to properly record academic credit 

for independent study and physical education classes from 

her junior year, and refused to help McIntyre obtain the 

necessary evaluations and approvals for IB and College 

Board testing accommodations.
MCINTYRE V. EUGENE SCH. DIST. 4J 9

B. District Court Proceedings

McIntyre, after turning eighteen, filed this lawsuit on 

May 3, 2018. The First Amended Complaint, the operative 

complaint, raised two claims. McIntyre alleged one claim 

under Title II of the Americans with Disabilities Act 

(“ADA”), 42 U.S.C. §§ 12131–34, alleging that the District 

failed to provide reasonable accommodations to McIntyre. 

McIntyre also alleged a claim under Section 504 of the 

Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. 

§ 794, alleging that the District discriminated against her by 

failing to provide her with reasonable accommodations and 

creating a hostile learning environment. The complaint 

sought declaratory and injunctive relief, economic and noneconomic money damages, and reasonable attorneys’ fees 

and costs.

In response to the District’s motion to dismiss, a 

magistrate judge recommended granting the motion for 

failure to state a claim. The magistrate judge concluded that 

McIntyre’s claims, although raised under the ADA and 

Section 504, could not proceed because she had failed to 

administratively exhaust them as provided by the Individuals 

with Disabilities Education Act (“IDEA”), 20 U.S.C. 

§§ 1400–1491.6 Although McIntyre never sought and was 

6 Although the District raised its exhaustion defense under Rule 

12(b)(6), we have said that such a defense should generally be raised on 

summary judgment. A defendant may raise the defense under Rule 

12(b)(6) “[i]n the rare event that a failure to exhaust is clear on the face 

of the complaint.” Albino, 747 F.3d at 1166. McIntyre’s failure to 

exhaust her claims under the IDEA does not appear on the face of her 

operative complaint. McIntyre, however, does not challenge the 

District’s assertion that she failed to exhaust her claims under the IDEA’s 

administrative process or the procedural mechanism by which the district 

court dismissed the complaint. Accordingly, we proceed to review de 
10 MCINTYRE V. EUGENE SCH. DIST. 4J

never recommended for an individualized education 

program (“IEP”), the magistrate judge, relying on Fry v. 

Napoleon Cmty. Sch., 137 S. Ct. 743 (2017), nonetheless 

concluded that the gravamen of McIntyre’s claims involved 

the provision of a free appropriate public education 

(“FAPE”) and therefore exhaustion was required. The 

magistrate judge also determined that minority tolling did 

not apply to McIntyre’s claims, explaining that Oregon’s 

minority tolling statute is inconsistent with the IDEA. The 

magistrate judge also determined that equitable tolling did 

not apply given that McIntyre’s parents were aware of her 

alleged injuries.

McIntyre timely filed objections to the magistrate 

judge’s Findings and Recommendation (“F&R”). The 

district court adopted the F&R in full. McIntyre v. Eugene 

Sch. Dist. 4J, No. 6:18-CV-00768-MK, 2019 WL 294758, 

at *1 (D. Or. Jan. 23, 2019). The district court dismissed the 

First Amended Complaint without prejudice but granted 

McIntyre fourteen days to file a motion for leave to amend. 

Id. at *4. McIntyre filed a notice declining to amend her 

complaint. In response, the court entered judgment 

dismissing the case.

McIntyre timely appealed.

II. THE GOVERNING FEDERAL STATUTES

There are three major overlapping pieces of federal 

legislation generally applicable to a child’s claims of 

disability discrimination in school: the IDEA, Section 504 of 

the Rehabilitation Act, and Title II of the ADA. See A.G. v. 

novo whether McIntyre was required to exhaust. See Henry A. v. 

Willden, 678 F.3d 991, 998 (9th Cir. 2012).
MCINTYRE V. EUGENE SCH. DIST. 4J 11

Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 

1202 (9th Cir. 2016). Because this appeal turns on their 

interplay, we provide an overview here.

A. The IDEA

“Congress enacted the IDEA ‘to ensure that all children 

with disabilities have available to them a free appropriate 

public education [or “FAPE”] that emphasizes special 

education and related services designed to meet their unique 

needs and prepare them for further education, employment, 

and independent living.’” Id. (citation omitted) (alteration 

in original). In exchange for federal funds, states agree to 

comply with a number of statutory conditions, including the 

requirement to provide a FAPE to all eligible children. 

Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 

137 S. Ct. 988, 993 (2017).

The IDEA’s FAPE requirement includes both “special 

education” and “related services.” Id. at 994 (quoting 

20 U.S.C. § 1401(9)). “Special education” is “specially 

designed instruction . . . to meet the unique needs of a child 

with a disability.” Id. (quoting 20 U.S.C. § 1401(29)). 

“Related services” are the support services “required to 

assist a child . . . to benefit from” that instruction. Id.

(quoting 20 U.S.C. § 1401(26)). States also have a “childfind” obligation under the IDEA to identify, locate, and

evaluate all children who may require special education and 

related services. 20 U.S.C. §§ 1412(a)(3), (7), 1414(a)–(c); 

Timothy O. v. Paso Robles Unified Sch. Dist., 822 F.3d 1105, 

1110 (9th Cir. 2016).

The IDEA ensures that students receive a FAPE through 

the development of an individualized education program, 

“the centerpiece of the statute’s education delivery system 

for disabled children.” Honig v. Doe, 484 U.S. 305, 311 
12 MCINTYRE V. EUGENE SCH. DIST. 4J

(1988). An IEP is a comprehensive plan collaboratively 

prepared by a child’s “IEP Team” (which includes teachers, 

school officials, and the child’s parents), and must be drafted 

in compliance with a detailed set of procedures. Endrew F., 

137 S. Ct. at 994. Among other requirements, the IEP must 

describe the “special education and related services . . . that 

will be provided” so that the child may “advance 

appropriately toward attaining the annual goals” and, when 

possible, “be involved in and make progress in the general 

education curriculum.” 20 U.S.C. § 1414(d)(1)(A)(i)(IV). 

FAPE is a substantive requirement—an IEP must ultimately 

be “reasonably calculated to enable a child to make progress 

appropriate in light of the child’s circumstances.” Endrew 

F., 137 S. Ct. at 999.

When a disagreement arises about a child’s eligibility for 

an IEP or an IEP’s contents, the IDEA requires states to 

provide a dispute resolution process. See 20 U.S.C. 

§ 1415(e). The major features of the process are outlined in 

the statute. Id. The process usually starts with a parent or 

school official presenting 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.” 20 U.S.C. 

§ 1415(b)(6)(A). The parties may resolve their differences 

through a preliminary meeting or a mediation, after which 

they may proceed to a “due process hearing” before the state 

or local school district. 20 U.S.C. § 1415(e), (f), (i); Endrew 

F., 137 S. Ct. at 994. If the due process hearing does not 

resolve the matter, the IDEA creates a cause of action for 

children and parents to seek relief in any competent court. 

20 U.S.C. § 1415(i). They can pursue injunctive or other 

prospective relief, including reimbursement for the cost of 

private education, but not ordinarily monetary damages. See 

M.M. v. Lafayette Sch. Dist., 767 F.3d 842, 856 (9th Cir. 
MCINTYRE V. EUGENE SCH. DIST. 4J 13

2014); Mark H. v. Lemahieu, 513 F.3d 922, 929 (9th Cir. 

2008); 20 U.S.C. § 1412(a)(10)(C)(ii); 34 C.F.R. 

§ 300.148(c).

B. Section 504 and the ADA

While the IDEA focuses on the provision of appropriate 

public education to children with disabilities, the 

Rehabilitation Act more broadly addresses the provision of 

state services to individuals with disabilities. Lemahieu, 

513 F.3d at 929. Section 504, the Act’s core provision, 

provides:

No otherwise qualified individual with a 

disability in the United States . . . shall, solely 

by reason of her or his disability, be excluded 

from the participation in, be denied the 

benefits of, or be subjected to discrimination 

under any program or activity receiving 

Federal financial assistance.

29 U.S.C. § 794(a). Section 504 applies to public schools 

that receive federal financial assistance. 29 U.S.C. 

§ 794(b)(2)(B). The protective measures in Section 504 are 

not expressly affirmative in nature, but the Rehabilitation 

Act empowers federal agencies to promulgate regulations 

aimed at preventing prohibited discrimination. A.G., 

815 F.3d at 1203.

Section 504’s implementing regulations require 

qualifying public schools to “provide a free appropriate 

public education to each qualified handicapped person.” 

34 C.F.R. § 104.33(a). The FAPE requirements in the IDEA 

and in Section 504 are “overlapping but different.” 

Lemahieu, 513 F.3d at 925; see also A.G., 815 F.3d at 1204 

(“[A] showing that FAPE was denied under the IDEA does 
14 MCINTYRE V. EUGENE SCH. DIST. 4J

not necessarily establish a denial of FAPE under Section 

504.”). Under Section 504 regulations, FAPE requires 

“regular or special education and related aids and services 

that (i) are designed to meet individual educational needs of 

handicapped persons as adequately as the needs of 

nonhandicapped persons are met and (ii) are based upon 

adherence to procedures that satisfy the requirements of 

[34 C.F.R.] §§ 104.34, 104.35, and 104.36.” A.G., 815 F.3d 

at 1203 (quoting 34 C.F.R. § 104.33(b)(1)) (emphasis 

omitted). Thus, Section 504’s regulations gauge the 

adequacy of services provided to individuals with 

disabilities by comparing them to the level of services 

provided to individuals who are not disabled. Id. And unlike 

the IDEA’s FAPE requirement, which is inexorably linked 

to “special education,” a FAPE under Section 504 requires 

“regular or special education” that meet certain standards. 

34 C.F.R. § 104.33(b)(1) (emphasis added).

There are two primary mechanisms for ensuring Section 

504’s FAPE requirement. The first, although not mentioned 

in Section 504 or its implementing regulations, is to develop 

a “504 plan,” a written document describing the regular or 

special education and related aids and services a child needs 

and the appropriate setting in which to receive them. See 

U.S. Dep’t of Educ., Parent and Educator Resource Guide 

to Section 504 in Public Elementary and Secondary Schools

(Dec. 2016), at 10, https://www2.ed.gov/about/offices/list/

ocr/docs/504-resource-guide-201612.pdf; Durbrow v. Cobb 

Cty. Sch. Dist., 887 F.3d 1182, 1186 n.1 (11th Cir. 2018) 

(explaining that schools “must evaluate students with 

disabilities to formulate § 504 Plans designed to aid the 

student’s access to the general curriculum”); Or. Rev. Stat. 

§ 343.154 (defining a “504 Plan” to mean “an education plan 

developed for a student in accordance with” Section 504).
MCINTYRE V. EUGENE SCH. DIST. 4J 15

The second, which is expressly permitted under the 

regulations, is to implement an IEP for students also eligible 

for services under the IDEA. See A.G., 815 F.3d at 1204 

(citing 34 C.F.R. § 104.33(b)(2)); Lemahieu, 513 F.3d at 933 

(“[A]dopting a valid IDEA IEP is sufficient but not 

necessary to satisfy the § 504 FAPE requirements.”). In 

other words, a child eligible for accommodations under 

Section 504 may be served only by an IEP. In contrast, a 

child eligible under the IDEA must have an IEP and may not 

be served only by a 504 plan. See U.S. Dep’t of Educ., 

Office of Civil Rights, Protecting Students with Disabilities: 

Frequently Asked Questions About Section 504 and the 

Education of Children with Disabilities (Sep. 25, 2018), 

https://www2.ed.gov/about/offices/list/ocr/504faq.html. 

Nationwide, about 7 million students, or 14% of all public 

school students, have an IEP. See National Center for 

Education Statistics, Children and Youth with Disabilities

(last updated May 2019), https://nces.ed.gov/programs/coe/

indicator_cgg.asp. A much smaller proportion, less than 2% 

of all students, have a 504 plan. See Education Week, 

“States Vary in Proportion of Students with DisabilityRelated ‘504’ Plans” (Sept. 11, 2015), http://blogs.edweek.

org/edweek/speced/2015/09/states_504_enrollment.html.

Title II of the ADA was modeled after Section 504. See 

Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 

2001). It similarly provides that:

[N]o qualified individual with a disability 

shall, by reason of such disability, be 

excluded from participation in or be denied 

the benefits of the services, programs, or 

activities of a public entity, or be subjected to 

discrimination by any such entity.
16 MCINTYRE V. EUGENE SCH. DIST. 4J

42 U.S.C. § 12132. Although several material differences 

exist between them, see K.M. ex rel. Bright v. Tustin Unified 

Sch. Dist., 725 F.3d 1088, 1099 (9th Cir. 2013), to bring a 

suit under the ADA and Section 504 requires the same 

elements: (1) the child is a qualified individual with a 

disability; (2) she was denied a reasonable accommodation 

that she needs to enjoy meaningful access to the benefits of 

public services; and (3) the program providing the benefit 

receives federal financial assistance. A.G., 815 F.3d at 1204; 

Mark H. v. Hamamoto, 620 F.3d 1090, 1097 (9th Cir. 2010). 

A public entity can be liable for damages under Section 504 

or the ADA “if it intentionally or with deliberate indifference 

fails to provide meaningful access or reasonable 

accommodation to disabled persons.” See A.G., 815 F.3d 

at 1204–08 (discussing separately plaintiffs’ theories 

regarding meaningful access, reasonable accommodation, 

and deliberate indifference).

C. Exhaustion under the IDEA

The Supreme Court first considered the interaction of the 

IDEA and other antidiscrimination laws like Section 504 and 

the ADA in Smith v. Robinson, holding that the IDEA was 

the “exclusive avenue” through which a child with a 

disability could challenge the adequacy of her education. 

468 U.S. 992 (1984).7 Congress quickly responded, 

amending the law in 1986 by adding the following provision:

7 At the time, and until 1990, the IDEA was called the Education for 

the Handicapped Act. To avoid an extra acronym, we refer only to the 

IDEA.
MCINTYRE V. EUGENE SCH. DIST. 4J 17

(l) 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, 

title V of the Rehabilitation Act of 1973, or 

other Federal laws protecting the rights of 

children with disabilities, except that before 

the filing of a civil action under such laws 

seeking relief that is also available under this 

subchapter, the procedures under subsections 

(f) and (g) 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). The first half of 

§ 1415(l) (i.e., everything before “except that”) reaffirms the 

viability of laws like Section 504 and the ADA as 

independent statutory bases for ensuring the rights of 

students with disabilities. See Fry, 137 S. Ct. at 750. But 

the second half requires exhaustion of such claims to the 

extent that they “seek[] relief that is also available under” the 

IDEA. Id. The Supreme Court considered this exhaustion 

requirement in Fry “to address confusion in the courts of 

appeals as to the scope of § 1415(l)’s exhaustion 

requirement.” Id. at 752.

In Fry, the Supreme Court rejected the Sixth Circuit’s 

interpretation of § 1415(l) that exhaustion is required for any 

claim that “merely has some articulable connection to the 

education of a child with a disability.” Id. at 753. Instead, 

§ 1415(l) requires a focus on “relief that is also available” 

under the IDEA. Id. (quoting § 1415(l)). But the “only relief 

that an IDEA officer can give—hence the thing a plaintiff 
18 MCINTYRE V. EUGENE SCH. DIST. 4J

must seek in order to trigger § 1415(l )’s exhaustion rule—

is relief for the denial of a FAPE.” Id. “[A]ny decision by a 

hearing officer on a request for substantive relief [under the 

IDEA] ‘shall’ be ‘based on a determination of whether the 

child received a free appropriate public education.’” Id.

at 754 (quoting 20 U.S.C. § 1415(f)(3)(E)(i))). As a result, 

“§ 1415(l)’s exhaustion rule hinges on whether a lawsuit 

seeks relief for the denial of a free appropriate public 

education.” Id.

The Court expressly considered FAPE as the IDEA 

defines that term. Id. at 748 (“We hold that exhaustion is not 

necessary when the gravamen of the plaintiff’s suit is 

something other than the denial of the IDEA’s core 

guarantee—what the Act calls a “free appropriate public 

education.” (emphasis added) (citing 20 U.S.C. 

§ 1412(a)(1)(A))). Although the Court acknowledged “a 

plaintiff might seek relief for the denial of a FAPE under 

Title II and § 504 as well as the IDEA,” id. at 756, it did not 

discuss the “overlapping but different” requirements of 

FAPE under Section 504 regulations, Lemahieu, 513 F.3d 

at 925. Thus, to require exhaustion, a lawsuit must seek 

relief for the denial of FAPE as defined by the IDEA.

The Court provided some guidance for determining 

whether a plaintiff actually seeks relief for the denial of a 

FAPE under the IDEA: “What matters is the crux—or, in 

legal-speak, the gravamen—of the plaintiff’s complaint, 

setting aside any attempts at artful pleading.” 137 S. Ct. 

at 755. The inquiry turns on the relief a plaintiff actually 

“seeks,” as the statute requires, but not relief that a plaintiff 

“could have sought.” Id. On the other hand, the inquiry does 

not turn on whether a complaint includes (or omits) any 

magic phrase, such as FAPE or IEP. Id. In addition, “a court 

should attend to the diverse means and ends of the statutes 
MCINTYRE V. EUGENE SCH. DIST. 4J 19

covering persons with disabilities,” principally noting that 

the IDEA’s goal is to “provide each child with meaningful 

access to education by offering individualized instruction 

and related services appropriate to her ‘unique needs’ . . . .

while Title II and § 504 promise non-discriminatory access 

to public institutions.” Id. at 755–56.

The Court also offered several “clues” to help determine 

the gravamen of a complaint. The Court suggested that 

lower courts ask two hypothetical questions: “First, could 

the plaintiff have brought essentially the same claim if the 

alleged conduct had occurred at a public facility that was not 

a school—say, a public theater or library? And second, 

could an adult at the school—say, an employee or visitor—

have pressed essentially the same grievance?” Id. at 756 

(emphasis in original). When the answer to both questions 

is yes, the complaint does not likely allege the denial of a 

FAPE; when the answer is no, then it likely does. Id. In 

addition, a court should look to the “history of the 

proceedings.” Id. at 757. “A plaintiff’s initial choice to 

pursue that process may suggest that she is indeed seeking 

relief for the denial of a FAPE—with the shift to judicial 

proceedings prior to full exhaustion reflecting only strategic 

calculations about how to maximize the prospects of such a 

remedy.” Id.

The Ninth Circuit has considered Fry’s application in a 

published opinion only once. See Paul G., 933 F.3d 1096 

(holding that parents of a child with autism and served with 

an IEP must exhaust their Section 504 and ADA claims that 

concern whether the child was provided a FAPE). Unlike 

the plaintiffs in that case, McIntyre should not have to 

exhaust her claims, as discussed next.
20 MCINTYRE V. EUGENE SCH. DIST. 4J

III. ANALYSIS

For the following reasons, we conclude that the “crux” 

of McIntyre’s complaint seeks relief for the disability-based 

discrimination and harassment she faced at school, and not 

for the denial of a FAPE under the IDEA. As a result, 

McIntyre need not exhaust the administrative remedies 

under the IDEA.

McIntyre first complains that the District discriminated 

against her by failing to provide her with specific 

accommodations, none of which constitute FAPE as the 

IDEA defines it. McIntyre’s complaint alleges that the 

District failed to: (1) provide an alternative, quiet location to 

take exams, (2) provide extra time to complete exams, and 

(3) comply with an emergency health protocol. These 

accommodations cannot be construed as “special 

education,” because they do not provide “specially designed 

instruction.” 20 U.S.C. § 1401(29) (emphasis added). See 

34 C.F.R. § 300.39(b)(3) (“Specially designed instruction 

means adapting . . . the content, methodology, or delivery of 

instruction . . . .”); Fry, 137 S. Ct. at 755 (“[T]he [IDEA’s] 

goal is to provide each child with meaningful access to 

education by offering individualized instruction . . . .”); 

“Instruction,” Cambridge Dictionary, https://dictionary.

cambridge.org/us/dictionary/english/instruction (“[T]he act 

of teaching someone how to do something.”); see also

Robert A. Garda, Jr., Untangling Eligibility Requirements 

Under the Individuals with Disabilities Education Act, 69 

Mo. L. Rev. 441, 486–87 (2004) (“[N]ot all services 

provided by schools to disabled students are special 

education. A child with Attention Deficit Disorder (“ADD”) 

may need preferential seating and the use of a word 

processor, but not special education.” (citations omitted)); cf. 

L.J. by & through Hudson v. Pittsburg Unified Sch. Dist., 
MCINTYRE V. EUGENE SCH. DIST. 4J 21

850 F.3d 996, 1004–06 (9th Cir. 2017) (holding that “oneon-one direction,” “specially designed mental health 

services,” and a behavior specialist’s “extensive clinical 

interventions” constitute “special” rather than “general” 

education).8 And because McIntyre did not otherwise seek 

or receive special education—or, for that matter, an IEP—

nor can these accommodations be construed as “related 

services,” which are services a child needs “to benefit from” 

special education. 20 U.S.C. § 1401(26).9 Thus, because 

McIntyre seeks relief for the District’s failure to provide 

specific accommodations that are neither “special 

education” nor a “related service”—the constituent parts of 

the IDEA’s FAPE requirement—she does not seek relief for 

the denial of FAPE.

The District mischaracterizes the complaint when it 

argues that McIntyre sought “one-on-one special education.” 

McIntyre’s formal “Bullying/Harassment” complaint 

challenged Stasack’s discrimination and harassment and his 

refusal to implement her 504 Plan’s accommodations. After 

finding repeated violations of District policy, the District—

rather than requiring Stasack comply with District policy—

offered McIntyre alternatives to complete her coursework. 

8 McIntyre’s case is thus distinguishable from the only other 

published case on which either the magistrate judge or district court 

relied. Cf. Nelson v. Charles City Cmty. Sch. Dist., 900 F.3d 587, 592 

(8th Cir. 2018) (requiring exhaustion where a child sought an online 

education instructional program).

9 We do not suggest that a student’s IEP cannot provide testing 

accommodations or an emergency protocol as a “related service” to 

ensure she “benefits from” special education. The point here is only 

that—absent special education—these accommodations alone do not 

meet the statute’s definition of a “related service” to warrant exhaustion. 

20 U.S.C. § 1401(26).
22 MCINTYRE V. EUGENE SCH. DIST. 4J

Nowhere does the complaint allege that McIntyre requested 

those options. In any event, the inadequacy of the 

“independent study” option goes to the crux of McIntyre’s 

claims, which is that she was harmed by the District’s 

alleged discrimination rather than its failure to provide her 

special education.

McIntyre also complains that the District discriminated 

against her by creating a hostile learning environment, which 

does not seek relief for the denial of FAPE under the IDEA. 

As McIntyre alleges, she was repeatedly admonished that, 

due to her disability, she did not belong in the French 

Immersion Program. And when McIntyre’s peers repeatedly 

celebrated that teacher, who they complained was “fired 

because of the 504 kids,” other teachers and administrators 

failed to intervene and, at least in one case, supported the 

other students’ cause. McIntyre’s claim, which is based only 

on Section 504, does not indirectly seek relief under the

IDEA. Because McIntyre never sought or received “special 

education and related services,” a hostile learning 

environment could not be said to have interfered with any 

such services. Thus, and again, McIntyre does not seek the 

“only relief that an IDEA officer can give.” Fry, 137 S. Ct. 

at 753.

To conclude that exhaustion was required, the district 

court applied the approach that Fry rejected. The district 

court determined that “the complaint is premised exclusively 

on educational harm to plaintiff,” explaining that McIntyre 

alleged she “was denied educational opportunities” due to 

the District’s failure to accommodate her disability. But to 

require exhaustion in this context would expand the 

exhaustion requirement far beyond what Fry permits. 

Exhaustion should not be required merely because the 

plaintiff’s complaint “has some articulable connection to the 
MCINTYRE V. EUGENE SCH. DIST. 4J 23

education of a child with a disability” or else “falls within 

the general ‘field’ of educating disabled students.” Id. at 752 

n.3, 753. Instead, the proper inquiry looks to the substance 

of the IDEA’s FAPE requirement, which the district court 

failed to do.

Fry’s suggested “clues” also support the conclusion that 

McIntyre’s lawsuit does not seek relief for the denial of a 

FAPE under the IDEA.

McIntyre first seeks relief for the District’s failure to 

implement testing accommodations. Under the ADA, such 

accommodations may be required for a variety of entities 

that offer professional licensing and credentialing exams. 

42 U.S.C. § 12189; see Enyart v. Nat’l Conference of Bar 

Examiners, Inc., 630 F.3d 1153, 1160 (9th Cir. 2011). 

Accordingly, turning to Fry’s first hypothetical, a plaintiff 

could have brought “essentially the same claim” for testing 

accommodations “at a public facility that was not a school.” 

Likewise, and turning to Fry’s second hypothetical, if the 

District used any sort of eligibility exam for its employees, 

“an adult at the school” could assert the same right to testing 

accommodations.

McIntyre also seeks relief for the District’s failure to 

implement her emergency health protocol. We have 

explained that the ADA and Section 504 “include an 

affirmative obligation for public entities to make benefits, 

services, and programs accessible to people with 

disabilities.” Updike v. Multnomah Cty., 870 F.3d 939, 949 

(9th Cir. 2017). Accordingly, even an adult plaintiff may be 

entitled to receive assistance from others if such an 

accommodation is “reasonable.” See 42 U.S.C. 

§ 12112(b)(5)(A); 28 C.F.R. § 35.130(b)(7); Castle v. 

Eurofresh, Inc., 731 F.3d 901, 910 (9th Cir. 2013); Barnett 

v. U.S. Air, Inc., 228 F.3d 1105, 1116 (9th Cir. 2000), 
24 MCINTYRE V. EUGENE SCH. DIST. 4J

vacated on other grounds sub nom. US Airways, Inc. v. 

Barnett, 535 U.S. 391 (2002); see also Hill v. Assocs. for 

Renewal in Educ., Inc., 897 F.3d 232, 239 (D.C. Cir. 2018), 

cert. denied, 139 S. Ct. 1201 (2019) (holding that a teacher, 

an amputee, may be entitled to a classroom aide under the 

ADA). Thus, “an adult at the school” or “at a public facility 

that was not a school” could seek a similar accommodation 

as the emergency health protocol required by McIntyre’s 

504 Plan.

McIntyre finally seeks relief for the District’s creation of 

a hostile environment at her school on account of her 

disability. Although we have not resolved the issue, every 

circuit to have done so has concluded that disability-based 

claims for hostile work environment are actionable under the 

ADA. See Ford v. Marion Cty. Sheriff’s Office, 942 F.3d 

839, 852 (7th Cir. 2019) (agreeing with the five other circuits 

to reach that same conclusion); Brown v. City of Tucson, 

336 F.3d 1181, 1190 (9th Cir. 2003). We need not resolve 

that question here, but the weight of authority supports the 

conclusion that a hypothetical plaintiff could bring 

essentially the same claim in different circumstances.

As to Fry’s last clue, an examination of “the history of 

proceedings” belies any argument that McIntyre made a 

strategic choice to avoid exhaustion. Rather, throughout a 

prolonged dispute with the school regarding the 

implementation of McIntyre’s 504 Plan, she sought to 

resolve the disputes through the District’s non-IDEA 

procedures (such as by filing a formal 

“Bullying/Harassment” complaint) and without seeking an 

IEP or resorting to the procedural protections offered under 

the IDEA. Thus, this final clue supports the conclusion that 

the operative complaint does not seek relief for the denial of 

FAPE under the IDEA. Cf. Paul G., 933 F.3d at 1101 
MCINTYRE V. EUGENE SCH. DIST. 4J 25

(concluding that exhaustion was required where plaintiff 

“initially pursued remedies under the IDEA and after

settlement switched gears to turn to other remedies”).

In sum, the “crux” of McIntyre’s complaint seeks relief 

for the denial of equal access to a public institution, rights 

protected by the ADA and Section 504. Fry 137 S. Ct. at 

755. She complains that teachers and administrators 

tolerated a hostile learning environment on account of her 

disability, and that school staff failed to implement basic 

accommodations. Some of those accommodations were 

designed to ensure her safety, others an equal playing field 

at testing time. Although those events occurred in an 

educational setting, McIntyre was not required to exhaust 

her claims under § 1415(l) merely because those events have 

“some articulable connection to the education of a child with 

a disability.” Fry, 137 S. Ct. at 753. Rather, exhaustion is 

required where the complaint seeks the “only relief that an 

IDEA officer can give”—that is, “relief for the denial of a 

FAPE” as the IDEA defines it. Id. McIntyre’s complaint 

does not seek such relief. Thus, we hold that McIntyre was 

not required to exhaust her Section 504 and ADA claims 

under the IDEA’s exhaustion scheme.10 Accordingly, we 

reverse the district court’s dismissal of McIntyre’s First 

Amended Complaint for failure to exhaust administrative 

remedies under the IDEA.

10 In light of our disposition, we see no need to address McIntyre’s 

argument for a bright line rule that exhaustion is never required when a 

student is ineligible for services under the IDEA. See D.R. v. Antelope 

Valley Union High School District, 746 F. Supp. 2d 1132, 1145 (C.D. 

Cal. 2010).
26 MCINTYRE V. EUGENE SCH. DIST. 4J

IV. STATUTE OF LIMITATIONS AND TOLLING

The district court also dismissed McIntyre’s First 

Amended Complaint on the alternative ground that her 

claims were barred by the applicable two-year statute of 

limitations because her claims were not entitled to minority 

tolling under Oregon Revised Statutes section 12.160(2) or 

equitable tolling.11 For the following reasons, we vacate the 

district court’s order dismissing the complaint on these 

alternate grounds.

Initially, there seems to have been some confusion 

between the magistrate judge’s F&R and the district court’s 

order adopting it. The F&R did not recommend that 

McIntyre’s case should be dismissed because of the statute 

of limitations; rather, it only recommended holding that 

minority or equitable tolling did not apply to McIntyre’s 

claims. Indeed, in its motion to dismiss, the District 

conceded McIntyre’s allegations included events within the 

two-year statute of limitations, including her entire senior 

year, the junior year walk-out, and the junior year ankle 

sprain. Thus, to the extent that the district court’s order 

construed the statute of limitations to be an alternative basis 

for dismissal, it simply misconstrued the F&R (and, along 

11 The parties agree here, as they did before the district court, that a 

two-year statute of limitations applies. See Duncan v. Eugene Sch. Dist. 

4J, 431 F. Supp. 3d 1193, 1202 (D. Or. 2020) (collecting cases, 

explaining “[t]he District of Oregon has generally held that for nonemployment claims brought under the Rehabilitation Act or the ADA, 

the most analogous Oregon statute is Oregon Revised Statute § 12.110, 

which provides a two-year statute of limitations”). The district court 

apparently assumed without deciding that a two-year statute of 

limitations applied. We see no need to resolve this issue because, even 

assuming a two-year statute of limitations applies, we vacate the district 

court’s order for the reasons discussed in the text.
MCINTYRE V. EUGENE SCH. DIST. 4J 27

with it, the District’s motion to dismiss). And because the 

tolling issues were not an independent basis for dismissal, 

we vacate the district court’s order.

In light of our analysis under Fry, we remand for further 

consideration whether McIntyre’s claims are subject to

minority tolling. The magistrate judge and the district 

court’s analysis of the minority tolling issue turned on their 

characterization of McIntyre’s claims as seeking relief for 

the denial of FAPE. F&R at 9 (“The parties have not cited 

to, and the Court is not aware of, any precedent evaluating 

whether Oregon’s minority tolling statute, Or. Rev. Stat. 

§ 12.160(2), applies to ADA or Rehabilitation Act claims 

alleging the denial of a FAPE.”). The District asserts that 

the same logic applies here, arguing that minority tolling is 

inapplicable where the IDEA provides a mechanism for 

relief by the parents when their child is a minor. But as 

discussed, McIntyre’s claims do not seek relief for the denial 

of FAPE under the IDEA. Thus, on remand, the district 

court should reconsider whether any of McIntyre’s claims 

are barred by the statute of limitations in light of our 

conclusion that McIntyre does not seek relief for the denial 

of a FAPE under the IDEA.

V. CONCLUSION

For the foregoing reasons, we reverse the district court’s 

order dismissing the First Amended Complaint for failure to 

exhaust McIntyre’s claims under the IDEA. We also vacate 

the district court’s order dismissing the complaint as 

alternatively barred by the statute of limitations, and we 
28 MCINTYRE V. EUGENE SCH. DIST. 4J

remand with instructions to reconsider that ruling in light of 

our opinion.

REVERSED in part, VACATED in part, and 

REMANDED.

McIntyre shall recover her costs on appeal.