1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0079P (6th Cir.)File Name: 00a0079p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________BURMAL.COVINGTON,Natural parent and legalconservator of DAVIDJASONCOVINGTON,Plaintiff-Appellant.v.KNOXCOUNTYSCHOOLSYSTEM;KNOXCOUNTYBOARD OFEDUCATION;ALLENMORGAN, in hisofficial capacity asSuperintendent; DONNAPARKER, individually and inher official capacity asPrincipal; LINDAK.CATHEY,individually and in her officialcapacity as a Knox CountySchool Official; JOEMARLIN,individually and in his officialcapacity as a Knox CountySchool Official; MAUREENUMBEHAGEN, individuallyand in her official capacity asa Knox County School;>No. 99-52102Covington v. Knox County SchoolSystem, et al.No. 99-5210*The Honorable Kathleen McDonald O’Malley, United States DistrictJudge for the Northern District of Ohio, sitting by designation.Official; KNOXCOUNTY,TENNESSEE,Defendants-Appellees.1Appeal from the United States District Courtfor the Eastern District of Tennessee at Knoxville.No. 98-00207—James H. Jarvis, District Judge.Submitted: December 10, 1999Decided and Filed: March 6, 2000Before: BATCHELDER and MOORE, Circuit Judges;O’MALLEY,*District Judge._________________COUNSELON BRIEF:Danny Paul Dyer, GENTRY, TIPTON, KIZER& McLEMORE, Knoxville, Tennessee, Mark P. Jendrek,Knoxville, Tennessee, for Appellant. Mary A.R. Stackhouse,Knoxville, Tennessee, William A. Young, O’NEIL, PARKER& WILLIAMSON, Knoxville, Tennessee, Pamela L. Reeves,WATSON, HOLLOW & REEVES, Knoxville, Tennessee,Robert L. Crossley, Sr., CROSSLEY LAW FIRM, Knoxville,Tennessee, John E. Owings, KNOX COUNTY LAWDIRECTOR’S OFFICE, Knoxville, Tennessee, for Appellees.No. 99-5210Covington v. Knox County SchoolSystem, et al.3_________________OPINION_________________KAREN NELSON MOORE, Circuit Judge. Plaintiffappellant Burma Covington, acting as legal conservator forher disabled son Jason, appeals the district court’s grant ofsummary judgment for the defendants due to Covington’sfailure to exhaust her administrative remedies under theIndividuals with Disabilities Education Act (IDEA), 20U.S.C. § 1400et seq. Covington argues that her claim, whichalleges violations of David’s substantive due process rights byhis special education school and its officials, does not ariseunder the IDEA and therefore does not require exhaustion.She further contends that, even if her complaint falls withinthe scope of the IDEA, exhaustion would be futile in thecircumstances of this case and therefore is not required.Because we agree that exhaustion is futile when, as here,damages are the only suitable remedy for the plaintiff’salleged injuries and yet damages are unavailable through theadministrative process, weREVERSEthe district court’sgrant of summary judgment andREMANDfor furtherproceedings.I. BACKGROUNDDavid Jason Covington was born on March 8, 1978, andwas a special education student at the Knoxville AdaptiveEducation Center (KAEC) from 1990 until he graduated witha special education diploma in May 1996. He suffers frommultiple mental and emotional disabilities.Burma Covington alleges that, on several occasionsbetween 1990 and 1994, Jason was locked in a “time-outroom” that could only be unlocked from the outside. Thetime-out room, which Covington identifies as a “disciplinary4Covington v. Knox County SchoolSystem, et al.No. 99-52101In response to the defendant’s motion for summary judgment,Covington presented an affidavit, testifying to and incorporating all theallegations of the complaint. Thus, the allegations of the complaint alsoconstitute the plaintiff’s substantive evidence on summary judgment.measure,” is described in the complaint1as beingapproximately four feet by six feet, dark and “vault-like,”with a concrete floor, no furniture, no heat, no ventilation, andonly one small reinforced window located at least five feetabove the floor. Covington claims that Jason was repeatedlylocked in the time-out room for several hours at a timewithout supervision and was often not allowed to leave theroom for lunch. On at least one occasion, Jason was allegedlymade to disrobe before being locked in the time-out room.Covington further alleges that on at least one occasion,because of the lack of supervision by school officials and thelong duration of his confinement, Jason was forced to relievehimself on the concrete floor of the room and to remain therewith his excrement for a period of time.As a result of these incidents, Burma Covington filed anadministrative complaint with the Tennessee Department ofEducation on March 17, 1994. The Department of Educationreferred the complaint to the Knox County School System,which responded to the complaint by means of a letter thatdenied the allegations in part and attempted to explain theschool officials’ actions, but offered no other relief.Covington subsequently requested a due process hearing, aspermitted by the IDEA,see20 U.S.C. § 1415(f), describingthe reason for this request as “inappropriate discipline,including abusive confinement in a locked time out room.”J.A. at 77 (Letter from Gary Buchanan, att’y for pl.). Overthe next three years, this hearing and the related discoverywere repeatedly scheduled, delayed, and re-scheduled. Therecord evidence suggests, and the district court found, thatCovington was largely responsible for the delays.Although no due process hearing had yet taken place,Covington filed a complaint in federal district court onNo. 99-5210Covington v. Knox County SchoolSystem, et al.13FollowingWitte,Matula, andPlasencia, we therefore holdthat, while a claim for money damages does not automaticallycreate an exception to the exhaustion requirement of theIDEA, in this case exhaustion would be futile because moneydamages, which are unavailable through the administrativeprocess, are the only remedy capable of redressing Jason’sinjuries.III. CONCLUSIONFor the foregoing reasons, weREVERSEthe district courtandREMANDfor further proceedings.12Covington v. Knox County SchoolSystem, et al.No. 99-5210education school officials, was not required to exhaust formaladministrative remedies, because the parties had alreadyinformally agreed to provide the injured child with all“remedies that are available under the IDEA,”see id.at 1276.Furthermore, theWittecourt noted that the relief sought forthe plaintiff’s injuries was “retrospective only” and that therelief available under the IDEA was not well-suited toremedying past instances of physical injury.See id.In Jason’s case, as inPlasencia, “the condition creating thedamage has ceased,” and there is no equitable relief thatwould make Jason whole.Plasencia, 29 F. Supp. 2d at 1152;cf.Padilla v. School Dist. No. 1, 35 F. Supp. 2d 1260, 1265-66 (D. Colo. 1999) (holding that exhaustion was not requiredbecause the plaintiff had moved outside the school districtand the administrative officer consequently lacked theauthority to grant relief).But seeN.B., 84 F.3d at 1379(finding it irrelevant, for exhaustion purposes, that theplaintiff “no longer attends any of the defendant schooldistricts”);Torrie v. Cwayna, 841 F. Supp. 1434, 1442 (W.D.Mich. 1994) (same). Furthermore, we note that our holdingin the instant case does not conflict with our prior holding inDoe v. Smith, 879 F.2d 1340 (6th Cir. 1989). InDoe v. Smith,we held that parents may not avoid the state administrativeprocess through “the unilateral act of removing their childfrom a public school.”Id.at 1343. There was no showing inthat case that following the school system’s administrativeprocedure would have been futile; indeed, the relief sought bythe plaintiff inDoe v. Smith– a more appropriate educationalplacement, provided at public expense – is precisely the kindof relief that the state administrative process is equipped toafford.See id.at 1341-42. Therefore,Doe v. Smithisinapplicable to a case such as Covington’s, where theadministrative process would be incapable of impartingappropriate relief due to the nature of Jason’s alleged injuriesand the fact that he has already graduated from the specialeducation school, not due to Covington’s unilateral act.No. 99-5210Covington v. Knox County SchoolSystem, et al.5April 3, 1998, under 42 U.S.C. § 1983, alleging violations ofJason’s Fourth, Fifth, and Fourteenth Amendment rights andraising state-law claims of intentional infliction of emotionaldistress and false imprisonment. The complaint did not allegeviolations of, or even mention, the IDEA. The defendantsmoved for summary judgment. FollowingHayes v. UnifiedSchool District No. 377, 877 F.2d 809, 813-14 (10th Cir.1989), the district court found that Covington was required toexhaust her administrative remedies as contemplated by theIDEA, because her complaint involved the school’sdisciplinary practices. The court stated, “It is undisputed thatthe use of the ‘time-out’ room as a disciplinary measure wasa matter mentioned in the plaintiff’s IEP [IndividualizedEducation Program] and a matter subject to the IDEA.” J.A.at 283 (D. Ct. Op.). The court also noted that Covington hadcommenced the administrative process under the IDEA.Finding that Covington had not exhausted her administrativeremedies and that she had failed to demonstrate that suchexhaustion would be futile, the district court granted thedefendants’ summary judgment motion and dismissed thecase without prejudice.Covington filed a motion to alter or amend the judgment,arguing that the district court’s opinion was based on facts notin the record, that her cause of action does not arise under theIDEA and therefore exhaustion was not required, thatexhaustion would be futile because the availableadministrative remedies are inadequate, and that the districtcourt’s decision results in a violation of Jason’s equalprotection rights. The district court denied that motionwithout opinion on January 13, 1999. The appellant thenfiled a timely notice of appeal. In her brief, Covington raisesessentially the same issues that she raised below, with theexception that she appears to have abandoned her FourthAmendment and procedural due process claims, arguing onlythat the school’s actions violated Jason’s substantive dueprocess rights under the Fourteenth Amendment.Furthermore, Covington argues for the first time on appealthat requiring her to exhaust her administrative remedies6Covington v. Knox County SchoolSystem, et al.No. 99-52102The act currently known as the IDEA has had several differentnames since it was first adopted in 1975, including the Education of theHandicapped Act (EHA) and the Education of All Handicapped ChildrenAct (EAHCA). For the sake of consistency, we refer to the Act as “theIDEA” throughout this opinion, even when the case cited uses one of theAct’s former names.would violate Jason’s Seventh Amendment right to trial byjury.II. ANALYSISA. Summary Judgment StandardThis Court reviews a district court’s grant of summaryjudgment de novo.SeeEEOC v. Northwest Airlines, Inc.,188 F.3d 695, 701 (6th Cir. 1999). Summary judgmentshould be granted only if there is no genuine issue of materialfact and the moving party is entitled to judgment as a matterof law.SeeFED.R.CIV.P. 56(c);Johnson v. United StatesPostal Serv., 64 F.3d 233, 236 (6th Cir. 1995). The movingparty bears the initial burden of showing the absence of agenuine issue of material fact.SeeCelotex Corp. v. Catrett,477 U.S. 317, 323 (1986). The burden then shifts to thenonmoving party to come forward with evidence showing thatthere is a genuine issue for trial.SeeAnderson v. LibertyLobby, Inc., 477 U.S. 242, 256 (1986). “The evidence of thenonmovant is to be believed, and all justifiable inferences areto be drawn in his favor.”Id.at 255.B. The Exhaustion Requirement Under the IDEAThe IDEA provides that plaintiffs must exhaust theiradministrative remedies before bringing suit in federal courtto obtain relief that is also available under the IDEA.2SeeDoe v. Smith, 879 F.2d 1340, 1343-44 (6th Cir. 1989),cert. denied, 493 U.S. 1025 (1990);Crocker v. TennesseeSecondary Sch. Athletic Ass’n, 873 F.2d 933, 935-36 (6th Cir.No. 99-5210Covington v. Knox County SchoolSystem, et al.117We read Covington’s complaint as putting forth only damagesclaims, despite the fact that Covington also requested “a permanentinjunction enjoining Defendants from engaging in future acts ofinvoluntarily confining public school students in the manner describedherein.” J.A. at 17. Covington has not filed a class action, nor has shedemonstrated any other basis upon which she should be entitled to assertthe rights of other public school students to relief that would not affectJason. Therefore, Covington’s claim for injunctive relief does not enterinto our analysis.KAEC has engaged in a “policy or practice” that is contraryto law by locking children in the time-out room.Although we agree with those courts that have decided thata mere claim for money damages is not sufficient to renderexhaustion of administrative remedies unnecessary, we holdthat in the unique circumstances of this case – in which theinjured child has already graduated from the special educationschool, his injuries are wholly in the past, and thereforemoney damages are the only remedy that can make him whole– proceeding through the state’s administrative process wouldbe futile and is not required before the plaintiff can file suit infederal court.7Thus, as one court has stated, “[a]lthoughexhaustion cannot be waived whenever a plaintiff seeksmonetary damages rather than relief that is available under theadministrative scheme, where there is no administrativeremedy for a wrong that the plaintiff has suffered, exhaustionis futile and may be waived.”Plasencia v. California, 29 F.Supp. 2d 1145, 1150 (C.D. Cal. 1998) (citingW.B. v. Matula,67 F.3d 484 (3d Cir. 1995)).See alsoMatula, 67 F.3d at 495-96 (holding that exhaustion is not required for plaintiffsseeking money damages, because damages are unavailablethrough the administrative process, and because all otherrelief available to the plaintiffs under the IDEA had alreadybeen provided through a settlement agreement). Similarly,the United States Court of Appeals for the Ninth Circuitrecently held inWitte v. Clark County School District, 197F.3d. 1271 (9th Cir. 1999), that the plaintiff, who was seekingmonetary damages for physical and verbal abuse by special10Covington v. Knox County SchoolSystem, et al.No. 99-5210906 F. Supp. 1092, 1098 (S.D.W. Va. 1995) (noting that “aclear majority of courts hold exhaustion necessary despite theassertion of a contemporaneous § 1983 claim for damages”),appeal dismissed, 79 F.3d 1141 (4th Cir. 1991);Waterman,739 F. Supp. at 364-66. The rationales for requiringexhaustion even when the plaintiff seeks money damages arethat plaintiffs could otherwise circumvent the IDEA’selaborate scheme simply by appending a claim for damages,seeWaterman, 739 F. Supp. at 365, and that theadministrative process might ultimately afford sufficient reliefto the injured party, even if it is not the specific relief that theplaintiff requested,seeCharlie F., 98 F.3d at 991-93.C. Exceptions to the Exhaustion RequirementNonetheless, both the Supreme Court and this court haveheld that exhaustion is not required under the IDEA in certaincircumstances. Exhaustion is not required if it would be futileor inadequate to protect the plaintiff’s rights.SeeHonig, 484U.S. at 326-27;Smith, 879 F.2d at 1343;Crocker I, 873 F.2dat 936. Nor is exhaustion required if the plaintiffs were notgiven full notice of their procedural rights under the IDEA.See Crocker I, 873 F.2d at 936. The burden of demonstratingfutility or inadequacy rests on the party seeking to bypass theadministrative procedures.SeeHonig, 484 U.S. at 327.Covington argues that she was not required to exhaust heradministrative remedies, because to do so would have beenfutile and would have afforded her inadequate relief. First,she points out, she is seeking money damages, which are notavailable through the administrative process.SeeTENN.CODEANN. § 49-10-601 (1996). Second, Jason has alreadygraduated from KAEC; consequently, injunctive or otherequitable relief cannot alleviate his injuries. Finally, relyingon an exception to the exhaustion requirement, which hasbeen recognized by the Second Circuit, when “an agency hasadopted a policy or pursued a practice of general applicabilitythat is contrary to the law,”Mrs. W., 832 F.2d at 756 (quotingH.R.REP.NO. 99-296, at 7 (1985)), Covington argues thatNo. 99-5210Covington v. Knox County SchoolSystem, et al.73Subsections (f) and (g) provide for a due process hearing and appealat the state agency level.See20 U.S.C. §§ 1415(f), (g).4That subsection provides that any party aggrieved by theadministrative findings and decision “shall have the right to bring a civilaction with respect to the complaint presented pursuant to this section,which action may be brought in any State court of competent jurisdictionor in a district court of the United States without regard to the amount incontroversy.” 20 U.S.C. § 1415(i)(2)(A).1989) (Crocker I). Specifically, the statutory language statesas follows:Nothing in this chapter shall be construed to restrict orlimit the rights, procedures, and remedies available underthe Constitution, the Americans with Disabilities Act of1990 [42 U.S.C. § 12101 et seq.], title V of theRehabilitation Act of 1973 [29 U.S.C. § 791 et seq.], orother Federal laws protecting the rights of children withdisabilities, except that before the filing of a civil actionunder such laws seeking relief that is also available underthis subchapter, the procedures under subsections (f) and(g) of this section shall be exhausted to the same extentas would be required had the action been brought underthis subchapter.20 U.S.C. § 1415(l).3Furthermore, § 1415(i)(2) clearlycontemplates that plaintiffs will exhaust their administrativeremedies before bringing a civil action to enforce their rightsunder the IDEA.4SeeHonig v. Doe, 484 U.S. 305, 326-27(1988) (citing § 1415(e)(2), the predecessor to § 1415(i)(2));Crocker I, 873 F.2d at 935 (same).Covington argues that her claim does not arise under theIDEA and therefore that exhaustion is not required in hercase. Rather, she urges, her complaint concerns abusivebehavior that constitutes an independent constitutionalviolation. We note that some courts have interpreted § 1415to require the exhaustion of administrative remedies even8Covington v. Knox County SchoolSystem, et al.No. 99-52105Covington also argues that because there is no evidence in therecord indicating that the time-out room was discussed in Jason’s IEP, thedistrict court erred in concluding that the discipline used on Jason fellunder the IDEA. While Covington’s characterization of the record on thispoint may be accurate, we do not readHayesso narrowly.Hayesand therelated cases emphasize, instead, the disciplinary nature of the schoolofficials’ actions and their educational source; they do not seem to dependupon a finding that the specific disciplinary matter about which theplaintiff complains was addressed in that student’s IEP.when the plaintiffs do not rely exclusively on the IDEA as thesource of their claims. For example, several courts have heldthat exhaustion is required when plaintiffs bring § 1983 suitsbased on violations of the IDEA.See, e.g.,N.B. v. AlachuaCounty Sch. Bd., 84 F.3d 1376, 1379 (11th Cir. 1996),cert.denied, 519 U.S. 1092 (1997);Mrs. W. v. Tirozzi, 832 F.2d748, 756 (2d Cir. 1987);W.L.G. v. Houston County Bd. ofEduc., 975 F. Supp. 1317, 1328 (M.D. Ala. 1997).Additionally, some courts have held that whenever a claimfalls within the purview of the IDEA – that is, whenever itrelates to the provision of a “free appropriate publiceducation” to a disabled child – exhaustion is required,whether or not the plaintiff characterizes the claim as onearising under the IDEA.SeeHayes, 877 F.2d at 813-14;Franklin v. Frid, 7 F. Supp. 2d 920, 922, 925-26 (W.D. Mich.1998) (concluding that despite allegations of a schoolofficial’s intentionally humiliating, poking, hitting, slapping,and verbally abusing a student, the “gravamen of the claim”fell within the purview of the IDEA, requiring exhaustion);Waterman v. Marquette-Alger Intermediate Sch. Dist., 739 F.Supp. 361, 364-65 (W.D. Mich. 1990) (citingHayes).Hayes,Franklin, andWatermanconcluded that complaintsconcerning the disciplinary practices of a school district relateto the way that the district provides education, and thusnecessarily come within the scope of the IDEA.5However,because we conclude that exhaustion would be futile inCovington’s case, there is no need to address the issuesinvolved inHayes.Thus, we express no opinion as towhether Covington’s complaint falls within the ambit of theNo. 99-5210Covington v. Knox County SchoolSystem, et al.96InCrocker I, this court held that parents suing under the IDEA wererequired to exhaust their administrative remedies.SeeCrocker I, 873F.2d at 936. In a subsequent appeal after remand, this court held thatthose plaintiffs could not obtain general damages under the IDEA foremotional or dignitary injuries, nor could they do so by bringing a § 1983suit for such general damages based on violations of the IDEA.SeeCrocker II, 980 F.2d at 386-87;see alsoHall v. Knott County Bd. ofEduc., 941 F.2d 402, 406-07 (6th Cir. 1991) (holding that plaintiffs canobtain reimbursement for past or future educational expenses under theIDEA but not general damages, such as compensation for lost earningpower),cert. denied, 502 U.S. 1077 (1992). In decidingCrockerandHall, we relied in part on the Supreme Court’s insistence that, althoughplaintiffs can obtain reimbursement for educational costs under the IDEA,such reimbursement should not be characterized as “damages.”SeeSchool Comm. v. Department of Educ., 471 U.S. 359, 370-71 (1985). Wehave not previously considered the question whether exhaustion isrequired by the legislative scheme of the IDEA when a plaintiff asserts avalid damages claim under § 1983 that is not cognizable under the IDEA,however.IDEA or whether a plaintiff who has stated a claimindependent of the IDEA must still utilize the state’sadministrative process before filing in federal court. For thesame reason, we do not reach Covington’s equal protection orSeventh Amendment claims.Covington further contends that because the plain languageof 20 U.S.C. § 1415(l) requires exhaustion only when theplaintiff seeks relief “that is also available under” the IDEA,and because general money damages are not available underthe IDEA,seeCrocker v. Tennessee Secondary Sch. AthleticAss’n, 980 F.2d 382, 386-87 (6th Cir. 1992)(Crocker II), shewas not required to exhaust her administrative remedies. Wedisagree that the plaintiff’s damages claim alone excuses herfrom exhausting her administrative remedies. Although theSixth Circuit has not decided the question,6most courts haveheld that a plaintiff seeking money damages is required toexhaust administrative remedies under the IDEA, even ifmoney damages are not available under the IDEA or throughthe administrative process.See, e.g.,Charlie F. v. Board ofEduc., 98 F.3d 989, 991-93 (7th Cir. 1996);Doe v. Alfred,