United States Court of Appeals

For the Eighth Circuit

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No. 16-1756

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J.M., Next Friend Kristine McCauley

lllllllllllllllllllll Plaintiff - Appellant

v.

Francis Howell School District

lllllllllllllllllllll Defendant - Appellee

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: January 10, 2017

 Filed: March 7, 2017

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Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

On behalf of her minor son, J.M., Kristine McCauley sued Francis Howell

School District, claiming unlawful use of isolation and physical restraints. Her

second amended complaint asserted violations of: (1) the Equal Protection Clause of

the Fourteenth Amendment; (2) 42 U.S.C. §§ 1983 and 1988; (2) the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12182; (3) Section 504 of the Rehabilitation Act
of 1973; and (4) the Missouri Human Rights Act (MHRA), RSMo § 213.010 et seq. 

The district court dismissed the federal claims for “lack ofsubject matter jurisdiction 1

for failure to exhaust administrative remedies” and declined to exercise supplemental

jurisdiction over the MHRA claim, dismissing it without prejudice. Having

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jurisdiction under 28 U.S.C. § 1291, this court affirms.

In 2011, J.M. began kindergarten in the Francis Howell School District. J.M.

qualified for services under the Individuals with Disabilities Education Act (IDEA)

based on his diagnoses of attention deficit hyperactivity disorder, autism spectrum

disorder, anxiety disorder, separation anxiety disorder, panic disorder,

Asperger’s/autismspectrumdisorder, and generalized anxiety. See 20 U.S.C. § 1400

et seq. Under the IDEA, J.M. had an Individualized Education Program (IEP).

The Honorable Nannette A. Baker, United States Magistrate Judge for the

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Eastern District of Missouri, to whom the case was referred for final disposition by

consent of the parties pursuant to 28 U.S.C. § 636(c).

The parties and the district court treat the IDEA’s exhaustion requirement as 2

jurisdictional rather than a claims-processing rule. Compare Payne v. Peninsula

School Dist., 653 F.3d 863, 870 (9th Cir. 2011) (en banc) (“In sum, we hold that the

exhaustion requirement in § 1415(l) is not jurisdictional.”), with Polera v. Bd. of

Educ. of the Newburgh Enlarged City School Dist., 288 F.3d 478, 483 (2nd Cir.

2002) (“A plaintiff’s failure to exhaust administrative remedies under the IDEA

deprives a court of subject matter jurisdiction.”). Here, neither party requested a

ruling on this issue. “Because the District has not waived the exhaustion argument

and . . . [McCauley was] required to exhaust . . . administrative remedies, [this court]

need not reach this issue.” See J.B. ex rel. Bailey v. Avilla R-XIII School Dist., 721

F.3d 588, 593 n.2 (8th Cir. 2013), citing Muskrat v. Deer Creek Pub. School, 715

F.3d 775, 784-85 (10th Cir. 2013) (declining to consider whether the IDEA’s

exhaustion requirement was jurisdictional because the parties did not raise the issue

and the defendants argued exhaustion in the district court).

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McCauley alleges that between January 2012 and September 2014, J.M.

repeatedly was placed in physical restraints and isolation without her knowledge. 

Learning of this, she immediately contacted the District, requesting restraints only

when necessary and no isolation. On September 5, McCauley removed J.M. fromthe

District.

McCauley sued in federal court under the IDEA, 42 U.S.C. §§ 1983 and 1988,

and Missouri common law (torts of negligence per se, false imprisonment, and

battery). She amended the complaint to add claims under the ADA and MHRA. The

District answered, claiming failure to exhaust administrative remedies for the federal

claims, and sovereign immunity for the common law tort claims. McCauley

voluntarily amended her complaint, removing the IDEA and common law tort claims. 

Her second amended complaint thus included claims under the Equal Protection

Clause, 42 U.S.C. §§ 1983 and 1988, the ADA, Section 504 of the Rehabilitation Act

of 1973, and the MHRA.

The District moved to dismiss, alleging lack of subject matter jurisdiction for

failure to exhaust administrative remedies under the IDEA. McCauley argued her

claims were not under the IDEA, and thus not subject to exhaustion. In the

alternative, she asserted exceptions to the exhaustion requirement. The district court

granted the motion to dismiss. 

I.

This court reviews de novo whether exhaustion of administrative remedies was

required. J.B. ex rel. Bailey v. Avilla R-XIII School Dist., 721 F.3d 588, 592 (8th

Cir. 2013), citing Brown v. J.B. Hunt Transp. Servs., Inc., 586 F.3d 1079, 1083 n.4

(8th Cir. 2009).

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“In the IDEA,Congress established proceduralsafeguards to ensure individuals

with disabilities will have the opportunity to obtain a free appropriate public

education (FAPE).” Id., citing 20 U.S.C. § 1415(a). One safeguard is an opportunity

to present complaints about the provision of a FAPE in “an impartial due process

hearing.” Id., quoting Honig v. Doe, 484 U.S. 305, 311-12 (1988). See 20 U.S.C.

§ 1415(f). “A party aggrieved by the outcome of an IDEA due process hearing may

challenge the outcome before the state educational review agency.” J.B., 721 F.3d

at 592, citing 20 U.S.C. § 1415(g)(1). “The outcome of the administrative review

hearing may then be disputed in district court.” Id., citing 20 U.S.C. § 1415(i)(2)(A). 

The IDEA’s exhaustion requirement also applies to claims under the

Constitution, the ADA, the Rehabilitation Act, and other federal laws protecting

children with disabilities to the extent those claims seek relief “that is also available

under [the IDEA].” 20 U.S.C. § 1415(l); Fry v. Napoleon Cmty. School, No. 15-497,

2017 WL 685533, at *8 (U.S. Feb. 22, 2017) (“Section 1415(l) requires that a

plaintiff exhaust the IDEA’s procedures before filing an action under the ADA, the

Rehabilitation Act, or similar laws when (but only when) her suit ‘seek[s] relief that

is also available’ under the IDEA.”); J.B., 721 F.3d at 592 (“[B]efore parties may

bring a claim in district court under a different statute for which they seek relief

which is also available under the IDEA, the parties must first exhaust the

administrative remedies under the IDEA.”). After argument in this case, the Supreme

Court held that “‘relief that is also available’ under the IDEA” means “relief for the

denial of a FAPE, because that is the only ‘relief’ the IDEA makes ‘available.’” Fry,

2017 WL 685533, at *8. Thus, “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.’” Id., at *3,

quoting § 1412(a)(1)(A). 

“[D]etermining whether a suit indeed ‘seeks’ relief for [denial of a FAPE], a

court should look to the substance, or gravamen, of the plaintiff’s complaint.” Id.,

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at *8. The inquiry “does not ride on whether a complaint includes (or, alternatively,

omits) the precise words(?) ‘FAPE’ or ‘IEP.’” Id., at *11. Rather, “[i]n addressing

whether a complaint fits that description, a court should attend to the diverse means

and ends of the statutes covering persons with disabilities—the IDEA on the one

hand, the ADA and Rehabilitation Act (most notably) on the other.” Id.

The IDEA, of course, protects only “children” (well, really, adolescents

too) and concerns only their schooling. § 1412(a)(1)(A). And as earlier

noted, the statute’s goal is to provide each child with meaningful access

to education by offering individualized instruction and related services

appropriate to her “unique needs.” § 1401(29); see Rowley, 458 U.S.,

at 192, 198, 102 S. Ct. 3034; supra, at ––––. By contrast, Title II of the

ADA and § 504 of the Rehabilitation Act cover people with disabilities

of all ages, and do so both inside and outside schools. And those

statutes aim to root out disability-based discrimination, enabling each

covered person (sometimes by means of reasonable accommodations)

to participate equally to all others in public facilities and federally

funded programs. 

Id. “A further sign that the gravamen of a suit is the denial of a FAPE can emerge

fromthe history of the proceedings. In particular, a court may consider that a plaintiff

has previously invoked the IDEA’s formal procedures to handle the dispute.” Id., at

*13.

II.

McCauley did not file an IDEA due process complaint, request a due process

hearing, or engage in the exhaustion procedures under the IDEA. See 20 U.S.C. §

1415(f), (g), (l). She argues exhaustion is not required because she does not seek

relief available under the IDEA. The question here is whether the complaint is based

on the District’s denial of a FAPE. Fry, 2017 WL 685533, at *8 (“[T]he thing a

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plaintiff must seek in order to trigger § 1415(l)’s exhaustion rule—is relief for the

denial of a FAPE.”).

Considering “substance, not surface,” the district court did not err in finding

the complaint seeks relief for denial of a FAPE under the IDEA. Id., at *11. The

second amended complaintstates, “At all times mentioned above, [J.M.] was entitled

to the educational services and protections available under the Individuals with

Disabilities Education Act of 1975” and “at all times[J.M. was] entitled to reasonable

accommodations” for his disabilities. It alleges that “[b]etween February 2014 and

September 5, 2014, J.M. was placed in physical restraints for half of the time he

actually spent at Defendant’s schools.” It further states that J.M. was “denied . . .

because of his disability, participation in and the benefits of a public education.”

These allegations show that the complaint was based on the “denial of a FAPE” under

the IDEA. See id., at *13 (determining the Fry’s complaint “alleges only disabilitybased discrimination” and “contains no allegation . . accus[ing] the school even in

general terms of refusing to provide the educational instruction and servicesthat E.F.

needs”). 

“As defined in the Act, a FAPE comprises ‘special education and related

services’—both ‘instruction’ tailored to meet a child’s ‘unique needs’ and sufficient

‘supportive services’ to permit the child to benefit from that instruction.” Id., at *4,

citing 20 U.S.C. §§ 1401(9), (26), (29). The ADA and Section 504, on the other

hand, forbid public entities and federally funded programs or activities from

discriminating based on disability. Id., at *5. The complaint here is not based on

disability discrimination. Except for Count IV (the MHRA claim), the complaint

does not use the word “discrimination.” Rather, the complaint is based on how the

use ofisolation and physicalrestraintsfailed to provide proper “sufficient ‘supportive

services’ to permit [J.M.] to benefit from . . . instruction,” id., at *4, and ultimately

“denied [J.M.] . . . the benefits of public education.” Finally, although McCauley did

not “invoke[] the IDEA’s formal proceduresto handle the dispute,” “the history ofthe

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proceedings,” including her initial complaint and first amended complaint contained

claims under the IDEA, which is “[a] further sign that the gravamen of [the] suit is

the denial of a FAPE.” See id., at *13.

As noted, the Fry decision issued after argument in this case. But, the cases

McCauley relies on—Moore v. Kansas City Public Schools, 828 F.3d 687 (8th Cir.

2016) and Muskrat v. Deer Creek Public Schools, 715 F.3d 775 (10th Cir. 2013)—do

not change this analysis. In both, the complaints alleged common law torts seeking

redress for non-educational injuries. Moore, 828 F.3d at 692 (“The gravamen of the

petition is a state law action for damages seeking redress for the brutal injuries D.S.

suffered as the result of repeated sexual assault and rape while under Southwest’s

supervision.”); Muskrat, 715 F.3d at 785 (“No authority holds that Congress meant

to funnel isolated incidents of common law torts into the IDEA exhaustion regime.

. . . Here, the Muskrats have alleged three scattered instances of potential battery. All

three instances appear to have resulted from simple frustration with [the student]

rather than any legitimate disciplinary goal.”). McCauley does not allege any

common law torts as the foundation for non-educational injuries. In fact, she

voluntarily removed the common law tort claims from her second amended

complaint. Moreover, the allegations show J.M.’s injuries were education-related: 

“Defendant’s employees and agents had used isolation and restraint as a disciplinary

tool, for their own convenience and in violation of their own policies.” (emphasis

added). 

Unlike the Moore complaint—which referred to the plaintiff’s IEP “solely to

show notice to the [school district] of the conditions that put D.S. at risk from other

students”—the complaint here shows the IEP is a “central dispute of this litigation.” 

Moore, 828 F.3d at 692. The complaint alleges: “Defendant repeatedly and

consistently violated Plaintiff’s rights by utilizing isolation and restraint on J.M.

which were not permitted within his IEPs.” (emphasis added). The claims here are

based on the failure to implement J.M.’s IEP, specifically regarding discipline. See

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Muskrat, 715 F.3d at 785 (“[A] timeout-related claim must be exhausted through the

IDEA’s statutory procedures.”). 

McCauley also believes the complaint is not subject to exhaustion because it

seeks relief not available under the IDEA, namely compensatory and punitive

damages. While the IDEA allows attorney’s fees and costs (which McCauley seeks),

20 U.S.C. § 1415(i)(3)(B), compensatory and punitive damages are not available. 

Bradley v. Ark. Dep’t of Educ., 301 F.3d 952, 957 (8th Cir. 2002). In Fry, the

Supreme Court declined to address whether exhaustion isrequired “when the plaintiff

complains of the denial of a FAPE, but the specific remedy she requests—here,

money damages for emotional distress—is not one” the IDEA provides. Fry, at *8

n.4. However, this court has noted that “the IDEA’s exhaustion requirement remains

the general rule, regardless of whether the administrative process offersthe particular

type of relief that is being sought.” J.B., 721 F.3d at 595, quoting M.P. ex rel. K. v.

Indep. School Dist. No. 721, 326 F.3d 975, 980 (8th Cir. 2003). See Muskrat, 715

F.3d at 785 (holding “a plaintiff cannot avoid exhaustion simply because he or she

asks for damages”); Frazier v. Fairhaven School Comm., 276 F.3d 52, 64 (1st Cir.

2002) (“[W]e hold that plaintiffs who bring an IDEA-based claim under 42 U.S.C. §

1983, in which they seek only money damages, must exhaust the administrative

process available under the IDEA as a condition precedent to entering a state or

federal court.”); Covington v. Knox Cnty. School Sys., 205 F.3d 912, 917 (6th Cir.

2000) (“[W]e agree with those courts that have decided that a mere claim for money

damages is not sufficient to render exhaustion of administrative remedies

unnecessary.”); N.B. by D.G. v. Alachua Cnty. School Bd., 84 F.3d 1376, 1379 (11th

Cir. 1996) (holding that plaintiffs cannot avoid the exhaustion requirement by

limiting relief to money damages because otherwise, “future litigants could avoid the

exhaustion requirement simply by asking for relief that administrative authorities

could not grant”). McCauley’s voluntary decision to remove J.M. from school, and

thus seek only compensatory and punitive damages rather than compensatory

education services, does not exempt her from the exhaustion requirement.

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Because McCauley’s complaint seeks relief available under the IDEA, denial

of a FAPE, the claims are subject to exhaustion, barring an applicable exception.

II.

There are three exceptions to the exhaustion requirement: (1) futility, (2)

“inability of the administrative remedies to provide adequate relief,” and (3) “the

establishment of an agency policy or practice of general applicability that is contrary

to law.” J.B., 721 F.3d at 594, quoting Blackmon ex rel. Blackmon v. Springfield

R–XII School Dist., 198 F.3d 648, 656 (8th Cir. 1999). “A court deciding whether

to waive exhaustion should be ‘guided by the policies underlying the exhaustion

requirement.’” Id., quoting Bowen v. City of New York, 476 U.S. 467, 484 (1986). 

Exhaustion is generally required as a matter of preventing premature

interference with agency processes, so that the agency may function

efficiently and so that it may have an opportunity to correct its own

errors, to afford the parties and the courts the benefit of its experience

and expertise, and to compile a record which is adequate for judicial

review.

Id., quoting Bowen, 476 U.S. at 484. 

McCauley contends the futility and inadequate remedy exceptions apply. 

A.

McCauley believes exhaustion would have been futile because she, like the

Muskrat plaintiffs, attempted to address the problem by directly contacting the

school. In Muskrat, however, the plaintiffs made greater attempts to work “through

administrative channels to obtain the relief they sought.” Muskrat, 715 F.3d at 786. 

They made written and oral demands to school administrators, conferred during an

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IEP meeting about the relief sought, and modified the IEP to accommodate their

concerns. Id. McCauley, on the other hand, alleges only that she “contacted school

district officials to have the isolation immediately stopped, and consented only to

restraint on a basis of necessity.” Although the complaint alleges “[s]he did not

consent to isolation in the IEP team meetings,” it does not allege she sought to

address her concerns with isolation and physical restraint through the IEP process or

modified J.M.’s IEP to reflect those concerns.

McCauley also claims the administrative process would not have addressed all

her claims. This, however, does not excuse exhaustion. See J.B., 721 F.3d at 594-95. 

Although the administrative process may not address all claims, this court has held

exhaustion is not futile because it would allow “the agency to develop the record for

judicial review and apply its expertise” to the plaintiff’s “claims to the extent those

claims are related to implementation” of the IEP. Id. 

B.

McCauley contendsthe administrative process cannot provide adequate relief,

compensatory and punitive damages. As discussed, this argument is without merit. 

See J.B., 721 F.3d at 595 (“[T]he IDEA’s exhaustion requirement remainsthe general

rule, regardless of whether the administrative process offers the particular type of

relief that is being sought.”). 

The district court properly dismissed the complaint for failure to exhaust

administrative remedies.

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The judgment is affirmed.

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