United States Court of Appeals 

For the First Circuit 

No. 18-1160 

RACHEL DOUCETTE, FOR HERSELF AND MINOR SON B.D.; MICHAEL 

DOUCETTE, FOR HIMSELF AND MINOR SON B.D., 

Plaintiffs, Appellants, 

v. 

GEORGETOWN PUBLIC SCHOOLS; TOWN OF GEORGETOWN; ET AL., 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Judith G. Dein, U.S. Magistrate Judge] 

Before 

Thompson, Selya, and Lipez, 

Circuit Judges. 

Carol Ann Kelly, with whom Phillip E. Murray, Jr. and Murray, 

Kelly, & Bertrand, P.C. were on brief, for appellants. 

Alexandra R. Hassel, with whom Regina M. Ryan and Louison, 

Costello, Condon & Pfaff, LLP were on brief, for appellees. 

 

August 26, 2019 

 
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LIPEZ, Circuit Judge. Rachel and Michael Doucette sued 

Georgetown Public Schools, the school committee, the town, and 

certain school district employees (collectively, "the school 

district") on behalf of their severely disabled child, B.D. The 

Doucettes alleged that the school district deprived B.D. of his 

service animal and subjected him to a dangerous environment in 

violation of federal and state law, thereby causing B.D. to 

experience seizures and hospitalization. They sought money 

damages for alleged permanent physical and emotional harm to B.D., 

as well as for loss of consortium to the parents. 

 The school district moved for judgment on the 

pleadings, arguing that the Doucettes had failed to exhaust their 

federal claims -- a Rehabilitation Act claim and a substantive due 

process claim under 42 U.S.C. § 1983 -- through the administrative 

procedures prescribed by the Individuals with Disabilities 

Education Act ("IDEA"). See 20 U.S.C. §§ 1400–1491o; 1415(l). 

The IDEA requires exhaustion -- i.e., resort to the administrative 

process -- before a plaintiff may bring a civil action pursuant to 

other federal laws protecting the rights of disabled children if 

the relief sought is from the denial of a free appropriate public 

education. See 20 U.S.C. § 1415(l). The administrative process 

culminates in an impartial due process hearing conducted by the 
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state educational agency or the local educational agency, as 

determined by the state. See 20 U.S.C. § 1415(f).1 

Agreeing that the Doucettes' federal claims were subject 

to the IDEA's exhaustion requirement, the district court2 granted 

the school district's motion as to those claims and remanded the 

Doucettes' state law claims to state court. We vacate that 

decision. Guided by the Supreme Court's decision in Fry v. 

Napoleon Community Schools, 137 S. Ct. 743 (2017), and principles 

of exhaustion, we conclude that the gravamen of the Doucettes' 

Rehabilitation Act claim does not involve the denial of a free 

appropriate public education. As to the Doucettes' § 1983 claim, 

we conclude that it either was exhausted or that continued 

engagement with the IDEA's administrative scheme would have been 

futile. Hence, no further administrative pursuit was required for 

the § 1983 claim. 

I. 

B.D. has Isodicentric Chromosome 15q Duplication 

Syndrome ("15q Duplication Syndrome"), a rare genetic disorder, 

 1 In Massachusetts, the impartial due process hearings are 

conducted by the Massachusetts Bureau of Special Education 

Appeals. See Mass. Gen. Laws ch. 71B, § 2A. 

2 With the consent of all parties, the case was assigned to, 

and proceeded before, a United States Magistrate Judge, in 

accordance with 28 U.S.C. § 636(c) and Rule 73(b) of the Federal 

Rules of Civil Procedure. 
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which manifests differently among affected persons.3 In B.D.'s 

case, the syndrome manifests as developmental delay, frequent 

choking, vision problems, difficulties in balance, aggression, 

cognitive impairment, communication deficits, autistic spectrum 

disorder, epilepsy, and anxiety disorder, among other problems. 

In addition to causing these symptoms, B.D.'s disorder increases 

his risk of sudden unexpected death -- a risk correlated with 

seizure activity in children with 15q Duplication Syndrome. 

B.D. attended Perley Elementary School ("Perley") from 

July 2009 until August 2012, when he was between the ages of three 

and six years old. Given his disabilities, he had an 

individualized education program ("IEP"),4 which required, among 

other things, that he receive a consistent routine, a seizure plan, 

 3 We draw these facts from the well-pleaded facts of the 

complaint, which we must take as true. Marrero-Gutierrez v. 

Molina, 491 F.3d 1, 5 (1st Cir. 2007). 

4 An IEP is "a comprehensive statement of the educational 

needs of a handicapped child and the specially designed instruction 

and related services to be employed to meet those needs." Sch. 

Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 368 

(1985) (citing 20 U.S.C. § 1401(19)). The plan is "[c]rafted by 

a child's 'IEP Team' -— a group of school officials, teachers, and 

parents." Fry, 137 S. Ct. at 749 (citing 20 U.S.C. 

§ 1414(d)(1)(A)(i)(II)(bb), (d)(1)(B)). Most notably for this 

case, a child's IEP lists "the special education and related 

services" to be provided to the child so that he receives a free 

and appropriate education. See 20 U.S.C. § 1414(d)(1)(A). 

 
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and one-on-one assistance, and that he participate in an extendedschool year ("ESY") program.5 

B.D.'s parents were dissatisfied with the services 

provided to B.D. at Perley. Within months of his arrival, they 

began complaining to administrators, teachers, and the 

superintendent. In the spring, they met with his IEP team to 

formally request a change to B.D.'s IEP, which was denied. In the 

weeks that followed, they continued to convey concerns, noting 

that B.D. was at times unsupervised, was bolting from class, and, 

on one occasion, fell and hit his head. Due to these concerns, 

the Doucettes removed B.D. from Perley, and he remained out of 

school from May to September 2010. 

In July 2010, while B.D. was out of school, the Doucettes 

requested a hearing before the Massachusetts Bureau of Special 

Education Appeals ("BSEA"), seeking an amendment to B.D.'s IEP and 

an out-of-district placement for him. The hearing was held at the 

end of August, and, a month later, the BSEA hearing officer issued 

a decision. Although the hearing officer found that B.D.'s IEP 

was inadequate, the officer found that an out-of-district 

placement was unwarranted, and ordered a new IEP for B.D. B.D. 

then returned to Perley in the fall of 2010 with an amended IEP.

 5 An ESY program is a summer school program for students who 

require year-round schooling to minimize substantial regression 

and reduce substantial recoupment time. See Todd v. Duneland Sch. 

Corp., 299 F.3d 899, 902, 907 (7th Cir. 2002). 
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During the 2010-2011 school year, the Doucettes 

continued to be dissatisfied with the implementation of B.D.'s 

IEP. B.D. began having "staring spells with eye rolling," 

symptomatic of potential seizure activity. And, although B.D.'s 

amended IEP included a safety and seizure plan, one of B.D.'s 

teachers indicated to B.D.'s mother that she was unaware of the 

plan.

In the fall of 2011, B.D. began working with a certified 

service dog that assisted him with his anxiety and balance, and 

alerted his caretakers to an impending seizure.6 In November of 

that year, the Doucettes requested that the school district permit 

the dog to accompany B.D. at school as a disability accommodation. 

The school district refused. When B.D.'s staring spells and 

anxiety increased, however, the school district offered him atschool access to the service animal if the Doucettes agreed to a 

school policy regarding the dog's handling. The Doucettes refused 

to sign this agreement, which they claim violated the Americans 

with Disabilities Act ("ADA"). They demanded that the district 

comply with the ADA. The school district then denied B.D. access 

 6 A service dog is "any dog that is individually trained to 

do work or perform tasks for the benefit of an individual with a 

disability." 28 C.F.R. § 36.104 "Examples of [such] work or tasks 

include, but are not limited to . . . assisting an individual 

during a seizure, . . . providing physical support and assistance 

with balance and stability, . . . and helping persons with 

psychiatric and neurological disabilities by preventing or 

interrupting impulsive or destructive behaviors." Id. 
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to the dog but ordered a behavioral assessment, to take place the 

next fall (i.e., fall of 2012), to determine whether B.D.'s IEP 

should be amended to include the service dog.

That summer, as part of the school district's ESY 

program, B.D. was placed in an unfamiliar building, with unfamiliar 

equipment, teachers, and sounds, including "gushing sounds from 

exposed pipes," and "the barking of the Guidance Counselor's pet 

dog." At this time, he experienced his first tonic-clonic 

seizure,7 lasting over twenty minutes and requiring 

hospitalization. After the seizure, the Doucettes demanded an 

immediate amendment to B.D.'s IEP to grant him access to his 

service dog at school. Their request for an IEP amendment to 

include the service animal was denied, but the school district 

granted B.D. permission to use the dog at school if his mother 

would act as its handler. 

The Doucettes contest the adequacy of that arrangement 

to fulfill the school district's obligation to accommodate B.D. 

under section 504 of the Rehabilitation Act. Although not 

 7 A tonic-clonic seizure is a seizure of a serious nature, 

which is characterized by a loss of consciousness, and involves 

muscular contractions and relaxations in rapid succession. See H. 

Gastaut, Dictionary of Epilepsy: Part I 67 (World Health 

Organization, ed. 1973). A tonic-clonic seizure lasting over five 

minutes is a "life-threatening medical emergency requiring 

immediate medical help." See Tonic-Clonic Seizures, Epilepsy 

Ontario, http://epilepsyontario.org/about-epilepsy/types-ofseizures/tonic-clonic-seizures (last visited May 6, 2019). 
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specifically stated in the complaint, we infer that the service 

dog did not then begin accompanying B.D. at school -- at least not 

on a regular basis. The Doucettes' section 504 claim is premised 

on B.D.'s denial of access to his service animal, which they say 

caused B.D. to "sustain five seizures in July, August, and 

September of 2012." The school district does not argue that the 

service animal accompanied B.D. at school during these seizures, 

but that "four of the five seizures suffered by B.D. occurred after 

he was permitted to bring his service dog to school." 

The Doucettes' complaint likewise provides no specific 

details as to why the Doucettes felt that the school's handling 

policy violated the ADA. As a rule, the ADA requires a public 

entity to "modify its policies, practices, or procedures to permit 

the use of a service animal by an individual with a disability." 

28 C.F.R. § 35.136(a). In addition, a public school may, in some 

instances, violate disability laws by requiring a student to 

provide an outside adult handler to accompany the student and her 

service animal at school. See, e.g., Alboniga v. Sch. Bd., 87 F. 

Supp. 3d 1319, 1342 (S.D. Fla. 2015). In a sentence in its brief, 

the school district states, "[T]he [Doucettes'] [c]omplaint does 

not sufficiently plead that the District outright denied B.D. 

access to his service dog; instead, the facts establish that the 

District had developed a policy . . . regarding the handler for 
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the service dog . . . which the Parents refused to sign." The 

school district does not further develop this argument.8 

In addition to demanding that the school grant B.D. 

access to his service animal at school, B.D.'s mother also 

complained to the school district about the changes in her son's 

program and requested a meeting with his IEP team. Two weeks 

later, B.D. experienced a second tonic-clonic seizure while in an 

unfamiliar environment and under the supervision of a substitute 

teacher. After this second seizure, the Doucettes requested an 

alternative school placement for B.D. Their request was denied. 

In the following weeks, B.D. suffered two more tonicclonic seizures, each requiring a hospital stay. After the fourth 

seizure, the Doucettes removed B.D. from school and again requested 

an alternative school placement. They explained that "B.D. had 

had four [tonic-clonic] seizures in his lifetime, all of which 

happened in school [in the last month]," and that B.D.'s placement 

was "not only inappropriate but unsafe." They also presented the 

school district with a letter from B.D.'s doctor stating that the 

current placement was "inadequate in terms of managing [B.D.'s] 

 8 Whether the handling agreement placed unreasonable or 

unlawful conditions on B.D.'s access to his service animal such 

that he was effectively denied access by the school district will 

undoubtedly be an important issue to the future viability of the 

Doucettes' section 504 claim, but it is not an issue in this 

appeal. 
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seizures," expressing concerns regarding the "school's ability to 

handle [B.D.'s] health and safety," and recommending, "[g]iven the 

severity of [B.D.'s] anxiety in his [then] classroom setting, and 

the subsequent effect on his epilepsy and overall health," that 

B.D. be kept out of school until a safe placement was identified. 

Still, the school district refused to provide an alternative 

placement for B.D. and advised the Doucettes that B.D. was expected 

to attend school on September 5, 2012, and that "extended absences 

[would] be considered truancy." 

On September 5, 2012, the Doucettes returned B.D. to 

Perley. That same day, he suffered a fifth tonic-clonic seizure, 

requiring hospitalization. After the fifth seizure in a threemonth period, the school district agreed to evaluate an out-ofdistrict placement for B.D. Subsequently, the district agreed to 

the new placement, where B.D. has made "developmental and 

educational progress." B.D. has experienced no seizures since his 

removal from the school district. 

In 2015, the Doucettes filed suit alleging state law 

tort claims, as well as claims under section 504 of the 

Rehabilitation Act and 42 U.S.C. § 1983. The district court 

entered judgment against the Doucettes on their federal law claims 

on the basis of the Doucettes' failure to exhaust the IDEA's 

administrative remedies and declined to exercise pendent 

jurisdiction over the remaining state law causes of action. In 
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this appeal, our review is de novo, Gulf Coast Bank & Co. v. Reder, 

355 F.3d 35, 37 (1st Cir. 2004), and we "draw[] all reasonable 

inferences in favor of the plaintiff[s]." Marrero-Gutierrez v. 

Molina, 491 F.3d 1, 5 (1st Cir. 2007). 

II. 

A. The IDEA 

The IDEA is a federal statute ensuring that children 

with disabilities "have available to them a free appropriate public 

education," commonly referred to as a "FAPE." 20 U.S.C. 

§ 1400(d)(1)(A). A FAPE encompasses "both 'instruction' tailored 

to meet a child's 'unique needs' and sufficient 'supportive 

services' to permit the child to benefit from that instruction." 

Fry, 137 S. Ct. at 748 (quoting 20 U.S.C. § 1401(9), (26), (29)). 

A disabled child's IEP -- her written education plan -- is the 

"primary vehicle" for providing the mandated FAPE. Id. at 749 

(quoting Honig v. Doe, 484 U.S. 305, 311 (1988)). 

The IDEA provides an administrative process for parents 

to challenge their child's IEP or its implementation. This process 

begins with a preliminary meeting or mediation with the child's 

IEP team, and, if the dispute remains unresolved, progresses to a 

"due process hearing" before an impartial hearing officer. 20 

U.S.C. § 1415(b)-(f). Such officer may grant relief based upon "a 

determination of whether the child received a [FAPE]." Id. 

§ 1415(f)(3)(E)(i). Before a parent sues a school under the IDEA, 
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she must first "exhaust [the] administrative remedies through the 

due process hearing [provided for by the IDEA]." Rose v. Yeaw, 

214 F.3d 206, 210 (1st Cir. 2000); see 20 U.S.C § 1415(i)(2)(A). 

Although exhaustion of IDEA claims is the general rule, it "is not 

absolute." Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 59 (1st 

Cir. 2002). Fundamentally, rules requiring administrative 

exhaustion are not meant to be enforced in a manner that would 

require "empty formalit[ies]." See Panetti v. Quarterman, 551 

U.S. 930, 946 (2007). Plaintiffs are not required to exhaust 

administrative remedies under the IDEA when exhaustion would be 

futile. Id. 

B. Other Federal Laws and the IDEA's Exhaustion Requirement 

This case concerns claims under laws other than the IDEA 

that protect the rights of persons like B.D. Specifically, the 

Doucettes allege violations of section 504 of the Rehabilitation 

Act, 29 U.S.C. § 794, and 42 U.S.C. § 1983. Section 504, like the 

IDEA, covers the disabled; it, however, "cover[s] both adults and 

children with disabilities, in both public schools and other 

settings," Fry, 137 S. Ct. at 749 (emphasis added), and requires 

that a public entity make "reasonable modifications" to existing 

practices, including by offering support services, to 

"accommodate" disabled persons, Alexander v. Choate, 469 U.S. 287, 

299–300 (1985); see, e.g., C.L. v. Scarsdale Union Free Sch. Dist., 

744 F.3d 826, 832 (2d Cir. 2014) (discussing support services 
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available under section 504).9 Section 1983 applies even more 

broadly, protecting every "[c]itizen of the United States or other 

person within [its] jurisdiction" against the deprivation of a 

federally secured right by a person acting under the color of state 

law. 42 U.S.C. § 1983. 

The IDEA's exhaustion requirement is relevant to claims 

brought under these laws because the IDEA contains a provision, 

§ 1415(l), which concerns the relationship between the 

administrative procedures specified in the IDEA and claims brought 

under such laws. It provides: 

Nothing in [the IDEA] shall be construed to 

restrict or limit the rights, procedures, and 

remedies available under the Constitution . . ., 

title V of the Rehabilitation Act [including 

Section 504], 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 [the 

IDEA], the [IDEA's administrative procedures] shall 

be exhausted to the same extent as would be required 

had the action been brought under [the IDEA]. 

20 U.S.C. § 1415(l).10 

 9 The Rehabilitation Act of 1973, 29 U.S.C. § 701, is one of 

the two primary federal anti-disability-discrimination laws. The 

other is the ADA. See 42 U.S.C. § 12101. The Rehabilitation Act, 

the older of the two, guarantees disabled persons nondiscriminatory access to federally funded facilities, activities, 

and programs. See 29 U.S.C. § 794. The more comprehensive ADA 

likewise guarantees disabled persons non-discriminatory access to 

public facilities, 42 U.S.C. § 12132, and also extends those 

protections to commercial facilities and places of public 

accommodation. See 42 U.S.C. §§ 12181-12189. 

10 The dissent cites Frazier, 276 F.3d at 60, to describe a 

"robust" IDEA exhaustion requirement contemplated by Congress in 
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The Supreme Court recently addressed the reach of this 

exhaustion provision for the first time in Fry v. Napoleon 

Community Schools, finding that it only applies to lawsuits seeking 

"relief for the denial of a FAPE." 137 S. Ct. at 752; see also 

id. at 754. Under Fry, if a school "refus[ed] to make an 

accommodation" for a disabled child, "injuring [the child] in ways 

unrelated to a FAPE," a plaintiff "seeking redress for those other 

harms . . . is not subject to § 1415(l)'s exhaustion rule." Id. 

at 754–55. 

The Fry Court provided guidance for analyzing whether a 

lawsuit seeks relief for the denial of a FAPE, explaining that "a 

court should look to the . . . gravamen[] of the plaintiff's 

complaint" -- not "the labels used in [it]." Id. at 752, 755. 

The Court then noted two clues that indicate that the gravamen of 

a complaint is the denial of a FAPE. The first clue comes from 

the answers to a pair of hypothetical questions: (1) "could the 

plaintiff have brought essentially the same claim if the alleged 

conduct had occurred at a public facility that was not a school?" 

 

20 U.S.C. § 1415(l). However, Frazier's exhaustion analysis is of 

questionable precedential value because it relied on a Supreme 

Court case addressing exhaustion in the context of the Prison 

Litigation Reform Act ("PLRA"). See id. at 61-62 (citing Booth v. 

Churner, 532 U.S. 731 (2001)). In Fry, the Supreme Court rejected 

this comparison between the IDEA and the PLRA, highlighting the 

differences in language between the two standards and explaining 

that the IDEA's exhaustion standard is more forgiving. Fry, 137 

S. Ct. at 755.
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and (2) "could an adult at the school . . . have pressed essentially 

the same grievance?" Id. at 756. When the answer to each question 

is no, the complaint "probably does concern a FAPE." Id. On the 

other hand, if the answers are yes, a FAPE is unlikely the true 

subject of the complaint. Id. The second clue involves the 

history of the case; a plaintiff's previous invocation of the 

IDEA's formal procedures may "provide strong evidence that the 

substance of a plaintiff's claim concerns the denial of a FAPE." 

Id. at 757.11

III. 

The Doucettes contend that the IDEA's exhaustion 

requirement does not apply to their claims because the gravamen of 

their claims is not the denial of a FAPE or, in the alternative, 

exhaustion was not required because it would have been futile or 

because they already met the exhaustion requirement. Applying the 

Fry framework to each of the Doucettes' claims, see Wellman v. 

Butler Area Sch. Dist., 877 F.3d 125, 132-33 (3d Cir. 2017) 

 11 Instead of relying on the clues articulated by the Fry 

majority, so central to its analysis of the exhaustion requirement, 

see Fry, 137 S. Ct. at 756-57, the dissent embraces Justice Alito's 

critique of those clues as "misleading" in his concurrence. Id. 

at 759 (Alito, J., concurring in part and concurring in the 

judgment). We do not ordinarily grant primacy to a concurrence 

over a majority opinion. The dissent also criticizes the Fry 

majority opinion as "not a model of clarity." We do not share the 

dissent's confusion about the meaning or applicability of Fry. 

Nor, apparently, do the five other members of the Supreme Court 

who joined Justice Kagan's opinion without reservation. See id. 

at 748-59. 
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(endorsing a claim-by-claim approach to the Fry analysis); see 

also Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 785 (10th Cir. 

2013) (employing a claim-by-claim approach to analyzing IDEA 

exhaustion), we conclude that (1) exhaustion was not required for 

the Doucettes' section 504 claim because the crux of the claim is 

not the denial of a FAPE; and (2) although the crux of the 

Doucettes' § 1983 claim is the denial of a FAPE, that claim is 

properly brought in federal court because it either was exhausted 

or further invocation of the administrative process would have 

been futile. 

A. The Section 504 Claim 

The Doucettes allege that the school district violated 

section 504 by "refus[ing] to permit B.D. access to his service 

dog . . . despite having knowledge that B.D. qualified as an 

individual with disabilities [who] relied upon the service dog." 

They assert that B.D. suffered life-threatening seizures because 

of the deprivation, and they seek money damages for associated 

medical costs. 

The gravamen of this claim -- B.D., a disabled child, 

was denied access to his seizure-alert service dog, and, as a 

result, suffered seizures -- is not the denial of a FAPE. Instead, 

it is "simple discrimination, irrespective of the IDEA's FAPE 

obligation." Fry, 137 S. Ct. at 756. In reaching this conclusion, 

we "attend to the diverse means and ends of . . . the IDEA . . . 
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and [the] Rehabilitation Act." Id. at 755. "The IDEA guarantees 

individually tailored educational services, while . . . [section] 

504 promise[s] non-discriminatory access to public institutions," 

id. at 756, "sometimes by means of reasonable accommodations," id. 

To be sure, there is "some overlap in coverage" between the 

statutes. Id.12 But here the section 504 claim, grounded in the 

refusal of the school district to reasonably accommodate B.D.'s 

use of the service dog (that is the allegation), involves the 

denial of non-discriminatory access to a public institution, 

irrespective of the school district's FAPE obligation to provide 

a particular education program for B.D. 

The hypotheticals provided by the Fry Court in 

explaining its first clue support this conclusion.13 The 

 12 Any child who is entitled to an IEP under the IDEA is also 

protected by section 504, but the inverse is not true. As one 

court explained: 

[I]t is well recognized that Section 504 covers more students 

than does the IDEA. Students with disabilities who are 

eligible for services under IDEA are also covered by the 

prohibitions against discrimination on the basis of 

disability in Section 504 and its implementing regulation at 

34 CFR Part 104, but students covered only by Section 504 are 

not entitled to the rights and protections enumerated by IDEA 

and its implementing regulations at 34 CFR Part 300. 

S. v. W. Chester Area Sch. Dist., 353 F. Supp. 3d 369, 375 n.1 

(E.D. Pa. 2019) (quoting Molly L. ex rel. B.L. v. Lower Merion 

Sch. Dist., 194 F. Supp. 2d 422, 427 n.3 (E.D. Pa. 2002)). 

 13 Distinguishing between a complaint's explicit and implicit 

focus on the adequacy of a child's education, the dissent argues 

that Fry used the clues only to discern an "implicit focus on 

educational adequacy." The dissent misreads Fry, imposing on its 
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deprivation about which the Doucettes complain (deprivation of a 

service animal) might occur in a public facility that is not a 

school, and a non-student could "press[] essentially the same 

grievance." Id. at 756; see, e.g., Sheely v. MRI Radiology 

Network, P.A., 505 F.3d 1173, 1204 (11th Cir. 2007) (concerning 

similar claim brought in hospital setting); see also 28 C.F.R. § 

36.302(c)(1) (requiring that places of public accommodation 

"modify policies, practices, or procedures to permit the use of a 

service animal by an individual with a disability"); 28 C.F.R. pt. 

36, app. C. (providing for "the broadest feasible access . . . to 

service animals in all places of public accommodation, including 

 

analysis a limitation that is not there. We use the clues 

precisely as the Court instructed -- to assist our determination 

of the gravamen of the Doucettes' section 504 claim, i.e., "whether 

the gravamen [is] the denial of a FAPE, or instead [] disabilitybased discrimination." 137 S. Ct. at 756. Indeed, the dissent's 

test -- whether an implicit or explicit "focus on the adequacy of 

education" can be identified in the complaint -- mirrors the Sixth 

Circuit test rejected by the Fry Court. The Sixth Circuit had 

determined that the Frys' complaint concerning the denial of a 

service dog was subject to IDEA exhaustion because "the harms to 

[the plaintiff] were generally 'educational' -- most notably, the 

court reasoned, because [the Fry family had alleged that] '[the 

service dog']s absence hurt [their child's] sense of independence 

and social confidence at school.'" Fry, 137 S. Ct. at 752 (quoting 

788 F.3d 622, 627 (6th Cir. 2015)). The Supreme Court vacated 

that judgment, ruling that the Sixth Circuit had applied the wrong 

test. Instead, courts must ask not whether a claim is 

"educational," but whether it "charges, and seeks relief for, the 

denial of a FAPE." Id. at 758. Though the Fry Court discusses 

the difference between explicit and implicit references to a FAPE, 

that discussion does not remotely suggest that the clues are only 

useful for discerning an implicit focus on educational adequacy. 

See id. at 758-59 (remanding for development of a factual record 

concerning the history of the Frys' request for a service animal). 
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movie theaters, restaurants, hotels, retail stores, hospitals, and 

nursing homes"); cf. AP ex rel. Peterson v. Anoka–Hennepin Indep. 

Sch. Dist. No. 11, 538 F. Supp. 2d 1125, 1152 (D. Minn. 2008) (no 

requirement of exhaustion where section 504 claims were for failure 

to accommodate diabetic student's need for administration of 

insulin).14 

The complaint's express allegations of FAPE deprivation 

and inadequate educational services do not require us to find 

otherwise.15 The Supreme Court counseled against a "magic words" 

approach to the IDEA exhaustion inquiry. Id. at 755. What matters 

is not whether "a complaint includes (or, alternatively, omits) 

the precise words[] 'FAPE' or 'IEP,'" but rather whether a claim 

in fact "seeks relief for the denial of an appropriate education." 

Id. The allegations of FAPE deprivation are, as the Doucettes 

 14 The fact that a non-student could assert the same claim as 

the Doucettes distinguishes the circumstances here from the facts 

in Wellman -- a case emphasized by the dissent -- where the court 

noted that the claims all related to fulfilling the student's 

"educational needs," 877 F.3d at 133, and, hence, "could not be 

brought by a nonstudent or outside the school setting," id. at 

134. 

15 The complaint, for instance, alleges that, following the 

August 2010 BSEA hearing concerning B.D.'s out-of-district 

placement, the BSEA officer found the school district's "proposed 

IEP was not . . . reasonably calculated to provide B.D. with a 

free and appropriate public education ("FAPE")," and alleges, as 

a basis for its § 1983 claim that, "[a]s a result of the [school 

district's] deliberate indifference . . . B.D. was deprived of a 

free and appropriate education." 
- 20 - 

argue in their brief, "germane to . . . their state law claims and 

their section 1983 claims." 

The Doucettes' complaint does not assert inadequate 

education services as a basis for relief under section 504. 

Rather, the Doucettes identify the school district's knowing 

"refus[al] to recognize B.D.'s service dog as such" and the 

resulting "life-threatening" harm to B.D. as the basis for their 

section 504 claim. They assert that the refusal to recognize 

B.D.'s dog as a service dog denied B.D. safe access to his school. 

Their section 504 claim "is subject to exhaustion or not based on 

that choice," and not on other claims that the Doucettes might 

have brought. Fry, 137 S. Ct. at 755; see also Wellman, 877 

F.3d at 132 ("To apply the Fry test without consideration of the 

actual claims could result in situations where claims that are 

included in a complaint because they involve the same parties or 

course of events but do not involve the provision of a FAPE get 

swept up and forced into administrative proceedings with claims 

that are seeking redress for a school's failure to provide a 

FAPE."). 

Furthermore, although the Doucettes previously invoked 

the IDEA's formal procedures when they participated in an 

administrative hearing before the BSEA in August 2010, that 

hearing, which concerned alleged violations of B.D.'s IEP during 

the 2009-2010 school year, was unrelated to B.D.'s request for 
- 21 - 

access to his service animal, which he did not begin to use until 

November 2011. As such, the Doucettes' participation in the BSEA 

hearing is not "evidence that the substance of [the] plaintiff[s'] 

[section 504] claim concerns the denial of a FAPE." Fry, 137 

S. Ct. at 757. 

Finally, the Doucettes' July 2012 request for an IEP 

amendment to include B.D.'s service animal is not proof that the 

crux of their section 504 claim was "really" the denial of a FAPE. 

Indeed, the Supreme Court in Fry expressly recognized that the 

fact that a particular dispute was addressed in some way in IDEA 

proceedings does not determine the character of that dispute. "[A] 

court may conclude, for example, that the move to a courtroom came 

from a late-acquired awareness that the school had fulfilled its 

FAPE obligation and that the grievance involves something else 

entirely." Id. at 757; see also id. at 759 (Alito, J., concurring 

in part and concurring in the judgment) (explaining that a parent's 

invocation of the IDEA's formal procedures will not always be 

indicative of the FAPE character of their claim); cf. Sophie G. by 

& through Kelly G. v. Wilson Cty. Sch., 742 F. App'x 73, 79 (6th 

Cir. 2018) (concluding that, although plaintiffs-appellants 

invoked the IDEA's administrative process, "[t]he gravamen of 

Plaintiffs' complaint [sought] access to subsidized childcare on 

equal terms, and not redress for the denial of a FAPE").
- 22 - 

In this case, the history of the Doucettes' quest to 

secure their son access to his service animal does not suggest 

that the gravamen of their claim was the "meaningful[ness]" of his 

education, rather than nondiscriminatory access. See Fry, 137 S. 

Ct. at 755. The Doucettes first sought approval for B.D. to use 

his service animal without reference to his IEP. It was not until 

after the Doucettes refused to sign a school handling agreement, 

which they say violated the ADA, and B.D. was denied access to his 

service dog, that the school district ordered an IEP assessment to 

take place the following fall to determine whether B.D.'s IEP would 

be amended to include the use of a service animal for the fall 

2012-spring 2013 school year. See supra Section I. Then, after 

B.D. suffered a life-threatening seizure, the Doucettes requested 

that the IEP amendment be implemented immediately.16 

That the Doucettes invoked multiple laws in their 

efforts to obtain at-school access to a service animal for their 

 16 The dissent argues that because the Doucettes requested an 

IEP amendment to include the service dog, and the request was 

denied, the Doucettes' section 504 claim is really about the denial 

of the IEP amendment. As a factual matter, as we explain, it was 

the school that initiated an IEP assessment as a possible way to 

address the service dog issue, not the Doucettes. To be sure, the 

complaint describes the educational consequences of the denial of 

the service dog, much like the example used by Justice Kagan in 

Fry about the relationship between the denial of wheelchair access 

and the educational consequences for a child. See Fry, 137 S. Ct. 

at 756. But an inadequate education is not the gravamen of the 

Doucettes' section 504 claim. Rather, it is the harm from the 

seizures that B.D. experienced as a result of denial of access to 

his service animal. 
- 23 - 

son is not surprising. A child who requires an accommodation under 

an IEP because, without it, his education would be inadequate, 

might also require that accommodation to safely access a public 

space. To illustrate this point, consider the hypothetical posed 

by the Supreme Court in Fry: 

Suppose . . . that a wheelchair-bound child sues 

his school for discrimination under Title II [of 

the ADA] . . . because the building lacks access 

ramps . . . . [A] different lawsuit might have 

alleged [an IDEA claim]: After all, if the child 

cannot get inside the school, he cannot receive 

instruction there; and if he must be carried 

inside, he may not achieve the sense of 

independence conducive to academic . . . success. 

But is the denial of a FAPE really the gravamen of 

the plaintiff's Title II complaint? Consider that 

the child could file the same basic complaint if a 

municipal library or theater had no ramps . . . . 

That the claim can stay the same in those 

alternative scenarios suggests that its essence is 

equality of access to public facilities, not 

adequacy of special education . . . . And so [the 

IDEA] does not require exhaustion. 

137 S. Ct. at 756–57.17 In that example, the wheelchair-bound 

child may have been entitled to an IEP specifying that the school 

 17 The Court contrasts this example with a different 

hypothetical Title II claim: 

Suppose next that a student with a learning disability sues 

his school under Title II for failing to provide remedial 

tutoring in mathematics. That suit, too, might be cast as 

one for disability-based discrimination, grounded on the 

school's refusal to make a reasonable accommodation . . . . 

But can anyone imagine the student making the same claim 

against a public theater or library? Or, similarly, imagine 

an adult visitor or employee suing the school to obtain a 

math tutorial? The difficulty of transplanting the complaint 

to those other contexts suggests that its essence -- even 
- 24 - 

would provide him with access ramps. Even so, as the Court 

articulated, that possible entitlement does not imply that his 

Title II claim, premised on unequal access, is subject to IDEA 

exhaustion. 

The reality is that many children who have limitations 

that require an accommodation under section 504 also have learning 

disabilities that entitle them to an IEP under the IDEA. For 

instance, a child may have asthma and severe Attention Deficit 

Hyperactivity Disorder. In such a case, school districts typically 

provide only an IEP for the child (and no section 504 plan), which 

would include all supports and services that the child needs -- 

even those that the child only requires for access purposes under 

section 504 (such as their asthma medicine). See Office of Civil 

Rights, Protecting Students with Disabilities: Frequently Asked 

Questions About Section 504 and the Education of Children with 

Disabilities, U.S. Dep't of Ed. (Sep. 25, 2018), 

https://www2.ed.gov/about/offices/list/ocr/504faq.html ("If a 

student is eligible under IDEA, he or she must have an IEP. Under 

the section 504 regulations, one way to meet Section 504 

requirements . . . is to implement an IEP."). 

 

though not its wording -- is the provision of a FAPE, thus 

bringing § 1415(l) into play. 

137 S. Ct. at 756-57. 
- 25 - 

In many cases, parents may seek an IEP amendment to 

guarantee their child safe access to school because it is the most 

effective and direct way to get the child relief. But when 

something goes awry, and it has nothing to do with the delivery of 

a FAPE (the child might be hospitalized because her school failed 

to properly administer her medicine), the existence of the IEP 

does not alter the character of the child's section 504 claim. 

To conclude otherwise would, in effect, place disabled 

school children in a disadvantaged position relative to their adult 

counterparts. Cf. Sagan v. Sumner Cty. Bd. of Educ., 726 F. Supp. 

2d 868, 882–83 (M.D. Tenn. 2010) (finding exhaustion not required 

where, "if [the plaintiff] were not a disabled student, there would 

be no administrative barrier to her pursuit of these claims"). A 

teacher with epilepsy, who was not a student -- and therefore had 

no need for an IEP -- but used a certified service dog to aid him 

during seizures, would be able to challenge the deprivation of his 

service animal at the school without resort to the IDEA's 

administrative procedures. "If a disabled student would be able 

to make out a similarly meritorious [Rehabilitation Act] claim 

. . . it is odd to suggest that the IDEA would impose additional 

qualifications to sue, simply because [the plaintiff was a 

student]." Payne v. Peninsula Sch. Dist., 653 F.3d 863, 878–79 

(9th Cir. 2011), overruled on other grounds by Albino v. Baca, 747 

F.3d 1162 (9th Cir. 2014). 
- 26 - 

In sum, the crux of the Doucettes' section 504 claim is 

simple discrimination, irrespective of the school district's FAPE 

obligation. The claim they bring could be brought by a non-student 

in a non-school public setting alleging the same injuries arising 

from the same deprivation. That claim is not subject to the 

exhaustion requirement of the IDEA. 

B. The Section 1983 Claim 

The Doucettes' § 1983 claim is premised on an alleged 

violation of B.D.'s substantive due process rights secured by the 

Fourteenth Amendment.18 The Doucettes allege that these rights 

were violated during the summer and fall of 2012 when the school 

district, "despite having actual notice that [Georgetown Public 

Schools] was an inappropriate placement for B.D., refused to allow 

an in-district or out-of-district placement and threatened the 

[Doucettes] with truancy in the event of any extended absences." 

They assert that this conduct amounted to "deliberate indifference 

and severe, pervasive disregard for [the] safety and well-being 

 18 In the complaint, the Doucettes also asserted § 1983 claims 

premised upon violations of the equal protection and procedural 

due process clauses of the Constitution, as well as violations of 

the Rehabilitation Act and the IDEA's Child Find Mandate. The 

district court dismissed these claims, finding that the Doucettes 

had waived their due process and equal protection clause claims 

and that § 1983 claims may not be premised upon violations of the 

Rehabilitation Act or the IDEA, which are statutes with their own 

frameworks for damages. The Doucettes have waived these claims on 

appeal. See United States v. Mayendía-Blanco, 905 F.3d 26, 32 

(1st Cir. 2018) (deeming claim waived where not raised in opening 

brief). 
- 27 - 

[of] B.D." and that, as a result, B.D. "suffer[ed] great physical 

and emotional harm," including "five [] life-threatening tonicclonic seizures." 

In contrast to the alleged deprivation of B.D.'s service 

animal, the Doucettes' demand for an alternative school placement, 

so central to their § 1983 claim, falls within the IDEA's 

exhaustion regime.19 A non-student could not make the same demand 

in a non-school setting. See Fry, 137 S. Ct. at 756. Moreover, 

the Doucettes previously made the same demand for an out-ofdistrict placement for B.D. in an administrative hearing before 

the BSEA. These "clues" provide "strong evidence that the 

substance of [the Doucettes' § 1983 claim] concerns the denial of 

a FAPE." Id. at 757. Indeed, the right to a school placement 

outside of the normal public-school system when an appropriate 

education is not otherwise possible arises from the IDEA's 

guarantee of a FAPE. See Sch. Comm. of Burlington v. Dep't of 

Educ. of Mass., 471 U.S. 359, 369 (1985); 603 C.M.R. § 28.06(2)(a) 

(requiring that a child's school placement "be based on the 

[child's] IEP"). With regard to this claim, however, we think 

 19 Even if some of the Doucettes' substantive due process 

§ 1983 allegations do not trigger IDEA exhaustion because they do 

not directly challenge the denial of a FAPE, but rather the 

surrounding circumstances, we do not further parse this claim 

because, as we explain infra, the claim in its entirety is in any 

event properly before us. 
- 28 - 

there is a good argument that the Doucettes met the exhaustion 

requirement. 

The IDEA's administrative process contemplates a series 

of stages. The first stage is a meeting, or several meetings, 

between the parents of a child with a disability and the child's 

IEP team, during which the parents participate in discussions 

concerning the educational placement, evaluation, and 

accommodation of their child. See 20 U.S.C. § 1415(b)(1). During 

this phase, if a requested change in the child's placement or IEP 

is rejected, the school must provide written documentation of its 

reasons for doing so. See 34 C.F.R. § 300.503(a). That 

documentation must include, inter alia, "[a] description of the 

action . . . refused[;] . . . [a]n explanation of why the agency 

. . . refuses to take the action; [a] description of each 

evaluation procedure, assessment, record, or report the agency 

used as a basis for the . . . refused action[;] . . . [and a] 

description of other options that the IEP Team considered and the 

reasons why those options were rejected." Id. § 300.503(b). In 

Massachusetts, if parents are dissatisfied with the result of the 

meeting or meetings, they may then "bring the dispute to the 

attention of local public school officials" by "contact[ing] 

[their] school [p]rincipal, the Administrator of Special 

Education, or [their] superintendent." Mass. Dep't Special Educ., 

Parents Notice of Procedural Safeguards 7 (2013), available at 
- 29 - 

http://www.doe.mass.edu/sped/prb/pnps.pdf; see 603 C.M.R. 

§ 28.08(1). If the problem cannot be resolved locally, the parents 

may file a formal complaint with the administrative agency 

designated by the state, the filing of which will initiate a formal 

hearing and administrative decision. See 20 U.S.C. § 1415(b)(6), 

(f). 

The Doucettes first invoked these procedures in 2010. 

Specifically, they initiated the process in March of that year by 

meeting with B.D.'s IEP team to request an alternative placement 

for B.D. They then brought "the dispute to the attention of local 

public school officials" by "contact[ing] [their] school 

[p]rincipal . . . [and] superintendent." Ultimately, in early 

July, they filed a Request for Hearing with the BSEA seeking an 

out-of-district placement for B.D. A hearing was held at the end 

of August and an order was issued in September. In that instance, 

the Doucettes did not get the relief that they sought, i.e., an 

alternative placement for B.D. If the Doucettes had at that time 

filed a civil action seeking the alternative placement denied to 

them administratively, a district court plainly would have had

authority to hear the case because they went through the entire 

administrative process unsuccessfully. 

This appeal concerns the Doucettes' second use of the 

administrative process in the summer of 2012. In July, they again 

requested an alternative educational placement for B.D. through an 
- 30 - 

amendment to his IEP. The Doucettes again brought the dispute to 

the attention of local public school officials. The superintendent 

advised the Doucettes that their request should be resolved by 

B.D.'s "[IEP] team" with "input from medical personnel," and that 

the Doucettes should "work with [the local public school officials] 

to determine if compensatory services were going to be offered" 

and whether an "out-of-school placement" was required. As 

instructed, the Doucettes provided a letter from B.D.'s doctor to 

their local school officials, including the principal of B.D.'s 

school. In addition, Massachusetts General Hospital filed a 51A 

report, see Mass. Gen. Laws ch. 119, § 51A, citing suspected 

neglect of B.D. by the school district. The Doucettes then met 

again with B.D.'s IEP team. Following the meeting, B.D.'s IEP was 

amended and he was placed at an alternative school. 

Thus, in 2012, the Doucettes engaged in the 

administrative process until they received the relief that they 

sought (and the only relief available to them through the IDEA's 

administrative process) -- an alternative placement for B.D. and 

compensatory educational services. See, e.g., Sch. Comm. of 

Burlington, 471 U.S. at 369-71 (explaining that the only relief 

available through the IDEA's administrative process is future 

special education services and reimbursements to parents for 

education-related expenditures). Having achieved success through 

their interactions with local school officials, there was no need 
- 31 - 

for the Doucettes to seek a hearing before the BSEA. Hence, the 

steps they took exhausted their FAPE demand for an alternative 

placement. Cf. Mass. Gen. Laws ch. 71B, § 2A.20

Still, their success in the administrative process is 

not the end of the story for the Doucettes concerning B.D.'s 

placement. The premise of their § 1983 claim is that, while 

successfully pursuing the out-of-district placement, B.D. suffered 

harm from the delay in receiving the administrative relief. The 

Doucettes brought their constitutional claim only after they had 

no further "remedies under the IDEA to exhaust," Blanchard v. 

 20 The dissent dismisses the significance of this negotiated 

success, asserting the absolute rule that "[e]xhaustion requires 

that a party receive a determination through a due process hearing, 

as contemplated under section 1415(f)." Surely the dissent does 

not mean that the Doucettes had to pursue a further administrative 

hearing to get what they had already obtained in "informal[] . . . 

'[p]reliminary meeting[s].'" See Endrew F. ex rel. Joseph F. v. 

Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017) (second 

alteration in original) (quoting § 1415(f)(1)(B)(i)). The dissent 

must mean, then, that the § 1983 claim itself had to be presented 

at an administrative due process hearing -- i.e., that the 

Doucettes were required to present their claim for damages arising 

from the delay in an alternative school placement for B.D. in such 

a hearing before bringing the claim in federal court. Yet, in the 

administrative hearing envisioned by the dissent, where the issue 

would be the impact of the delay in granting the alternative school 

placement, the hearing officer would have no authority to grant 

relief even if the Doucettes were successful in establishing their 

claim. Although Fry left open the question of whether a plaintiff 

must exhaust a claim for physical or emotional harms arising from 

a FAPE denial, the Court recognized the incongruity of demanding 

exhaustion when "[a] hearing officer . . . would have to send [a 

plaintiff] away empty-handed." 137 S. Ct. at 754. That is exactly 

what would happen to the Doucettes under the dissent's scenario.
- 32 - 

Morton Sch. Dist., 420 F.3d 918, 921–22 (9th Cir. 2005), overruled 

on other grounds by Payne v. Peninsula Sch. Dist., 653 F.3d 863 

(9th Cir. 2011), and they now seek damages for the harms B.D. 

experienced while being forced to wait for that relief. The IDEA 

itself permits the Doucettes to seek any relief available to them 

under the "other [f]ederal laws that protect the rights of children 

with disabilities." 20 U.S.C. § 1415(l). And, by its terms, 

§ 1415(l) does not appear to require exhaustion of the Doucettes' 

constitutional claim because that claim does not "seek[] relief 

that is also available under [the IDEA.]" Id. 

However, in Fry, the Supreme Court left open the question 

of whether "exhaustion [is] required when [a] plaintiff complains 

of the denial of a FAPE, but the specific remedy she requests" -- 

such as money damages for physical or emotional harm -- "is not 

one that an IDEA hearing officer may award." 137 S. Ct. at 752 

n.4. As we have explained, the denial of a FAPE is part of the 

Doucettes' constitutional claim in the sense that the delay in 

obtaining an alternative placement for B.D. allegedly caused the 

child physical and emotional injuries. Nonetheless, to the extent 

the Doucettes should have aired their constitutional claim through 

the administrative process, enforcing the exhaustion requirement 

is unnecessary here because the circumstances establish the 

futility of such additional proceedings.
- 33 - 

The legislative history of the IDEA shows a special 

concern with futility. "Senator Williams, the principal author of 

the Education of the Handicapped Act, the predecessor statute to 

IDEA, stated that 'exhaustion of the administrative procedures 

established under this part should not be required for any 

individual complainant filing a judicial action in cases where 

such exhaustion would be futile either as a legal or practical 

matter.'" Weber v. Cranston Sch. Comm., 212 F.3d 41, 52 n.12 (1st 

Cir. 2000) (quoting 121 Cong. Rec. 37416 (1975)). Futility applies 

when (1) the plaintiff's injuries are not redressable through the 

administrative process, Rose, 214 F.3d at 210–11, and (2) the 

administrative process would provide negligible benefit to the 

adjudicating court, see Christopher W. v. Portsmouth Sch. Comm., 

877 F.2d 1089, 1094 (1st Cir. 1989) (concerning exhaustion 

requirement under the IDEA's predecessor statute, the Education 

for All Handicapped Children's Act).21

 21 We take particular exception to the dissent's suggestion 

that we have created a novel futility test. To the contrary, we 

have applied precisely the test that our precedents prescribe. 

See, e.g., Rose, 214 F.3d at 210–11; Weber, 212 F.3d at 52. The 

dissent maintains that we think futility has been established if 

the plaintiff seeks only money damages and the administrative 

officer is not authorized to afford that type of relief. To the 

contrary, our analysis includes the additional requirement of the 

negligible benefit of the administrative hearing to a reviewing 

court. 
- 34 - 

As to redressability, here, the Doucettes request money 

damages for medical expenses arising from B.D.'s seizures and the 

physical, emotional, and psychological harm that B.D. experienced 

because of the school district's "severe, pervasive disregard for 

[the] safety and well-being [of] B.D." Section 1983 authorizes 

such forms of relief. See 42 U.S.C. § 1983. On the other hand, 

the relief available under the IDEA is equitable and is limited to 

(1) future special education and related services to ensure or 

remedy a past denial of a FAPE; and (2) reimbursements to parents 

for education-related expenditures that the state ought to have 

borne. See Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 125 (1st 

Cir. 2003). The Supreme Court has expressly distinguished such 

reimbursements from "damages," Sch. Comm. of Burlington, 471 U.S. 

at 370, which the IDEA does not allow. Nieves-Marquez, 353 F.3d 

at 125.22

 22 The dissent contends that the Doucettes have not made a 

futility showing because they have not "demonstrated that no 

additional relief was available to them through a due process 

hearing at any time after the summer of 2017." We do not understand 

the relevance of this point. The Doucettes are not seeking any 

further compensatory relief or an alternative placement, so how 

can they be charged with failing to demonstrate the futility of 

pursuing such additional relief? Indeed, in determining whether 

a plaintiff must exhaust her claim for relief under the IDEA, we 

look at the "remedial basis" identified by the plaintiff rather 

than what relief she "could have sought." Fry, 137 S. Ct. at 755 

(internal quotation marks omitted). Moreover, as we explain, 

although an adjudicating court may benefit from the record provided 

by an administrative hearing, further record development is not 
- 35 - 

Finally, although adjudication of FAPE-based claims 

typically benefits from the administrative process because courts 

rely on "the detailed evidentiary record developed during the due 

process hearing," and because "[t]he IDEA's administrative 

machinery places those with specialized knowledge -- education 

professionals -- at the center of the decisionmaking process," 

Frazier, 276 F.3d at 60-61, the benefits of further administrative 

decisionmaking would be negligible in this case. 

The Doucettes' § 1983 claim involves liability and 

damages issues. Liability depends upon a finding that the school 

district acted with "deliberate indifference." See Manarite v. 

City of Springfield, 957 F.2d 953, 955 (1st Cir. 1992). On that 

issue, which concerns the decisionmaking process of B.D.'s 

educators and school officials, an adjudicating court already has 

the benefit of the administrative record developed during the 2010 

due process hearing in which the Doucettes sought an alternative 

placement for B.D, as well as the required documentation from the 

Doucettes' 2012 pursuit of an alternative placement for B.D. The 

latter records include school officials' documented reasons for 

continuing B.D.'s placement within the school district during the 

summer of 2012, and the final amended IEP, explaining the school 

 

necessary in this case because of the documentation already 

available from the administrative processes in 2010 and 2012.
- 36 - 

officials' reasons for B.D.'s ultimate placement outside of the 

district. All of this documentation provides the educational 

expertise needed by an adjudicating court. 

The damages aspect of the claim concerns issues of 

medical causation -- not educational issues that are the 

administrative body's area of expertise. Cf. McCormick v. Waukegan 

Sch. Dist. No. 60, 374 F.3d 564, 569 (7th Cir. 2004) (no exhaustion 

required where plaintiff alleged "permanent physical injuries"); 

Padilla ex rel. Padilla v. Sch. Dist. No. 1 in City & Cty. of 

Denver, Colo., 233 F.3d 1268, 1274 (10th Cir. 2000) (no exhaustion 

required where plaintiff's claim involved only physical injuries). 

Medical causation questions are routinely considered by district 

courts and juries, assisted by the testimony of medical experts, 

without the benefit of an administrative record. Thus, no 

educational expertise is needed for a court to adjudicate the 

damages aspect of the § 1983 claim. 

For these reasons, even if the Doucettes' § 1983 is 

subject to further exhaustion, requiring the Doucettes to take 

further administrative action would be an "empty formality." 

Panetti, 551 U.S. at 946. Given the steps that the Doucettes took 

and the relief that they received, further invocation of the 

administrative process as to their § 1983 claim was not required, 
- 37 - 

and the district court erred in granting judgment to the school 

district on that ground. 

IV. 

For the foregoing reasons, we vacate the district 

court's entry of judgment for the school district and remand for 

further proceedings consistent with this opinion.23 The district 

court should reconsider its remand of the state law claims in light 

of this disposition. Costs to appellants. 

So ordered. 

-Dissenting Opinion Follows- 

 23 In response to the dissent's final footnote, we note only 

that our footnotes reflect good-faith engagement with the 

dissent's analysis. We, too, are "content to leave the relative 

merits" of our competing views for others to evaluate.
- 38 - 

SELYA, Circuit Judge (dissenting). When Congress 

crafted an exhaustion requirement for the IDEA, it envisioned that 

requirement as robust. See Frazier v. Fairhaven Sch. Comm., 276 

F.3d 52, 60 (1st Cir. 2002) ("Congress constructed the law on the 

premise that plaintiffs would be 'required to utilize the elaborate 

administrative scheme established by the [IDEA] before resorting 

to the courts to challenge the actions of the local school 

authorities.'" (alteration in original) (quoting N.B. by D.G. v. 

Alachua Cty. Sch. Bd., 84 F.3d 1376, 1378 (11th Cir. 1996)(per 

curiam))). The Supreme Court's interpretive guidance has been 

faithful to the congressional mandate. See Fry v. Napoleon Cmty. 

Schs., 137 S. Ct. 743 (2017). In the case at hand, though, the 

majority dilutes the exhaustion requirement, making it easy to 

evade and — where evasion cannot be accomplished even under the 

majority's relaxed standard — easy to satisfy. Not surprisingly, 

this parade of errors leads to an incorrect result. Because I do 

not share the majority's somewhat cavalier view of the IDEA's 

exhaustion requirement, I respectfully dissent. 

I 

I start with the majority's erroneous conclusion that 

the gravamen of the plaintiffs' Rehabilitation Act claim "involves 

the denial of non-discriminatory access to a public institution, 

irrespective of the school district's FAPE obligation to provide 

a particular education program" for their son. Ante at 17. This 
- 39 - 

conclusion derives from a confused assessment of the directives 

contained in Fry. The majority seems not to recognize that the 

two "clues" adumbrated by the Fry Court, see 137 S. Ct. at 756-

57, are merely devices intended to assist an inquiry into whether 

the plaintiffs "seek relief for the denial of a FAPE," id. at 752; 

cf. id. at 759 (Alito, J., concurring in part and concurring in 

the judgment) (calling the clues "misleading" and warning that 

they "are likely to confuse and lead courts astray"). 

The Fry Court first concluded that the complaint before 

it contained no explicit focus on the adequacy of the education 

received by the petitioners' daughter, noting that the "complaint 

allege[d] only disability-based discrimination, without making any 

reference to the adequacy of the special education services" that 

the school furnished. Id. at 758. Because "the FAPE requirement 

provides the yardstick for measuring the adequacy of the education 

that a school offers to a child with a disability," id. at 753, 

the Court considered both whether the complaint referred to the 

denial of a FAPE and whether it otherwise challenged the adequacy 

of the education that the petitioners' daughter received, id. at 

758. Not only did the complaint "contain[] no allegation about 

the denial of a FAPE or about any deficiency in [the petitioners' 

daughter's] IEP" but also failed to "accuse the school even in 

general terms of refusing to provide the educational instruction 

and services" required by the petitioners' daughter. Id. 
- 40 - 

Relatedly, the Court emphasized that the petitioners had continued 

to maintain throughout the litigation that their daughter's 

educational needs were satisfied. See id. 

But even though the complaint revealed no explicit focus 

on the adequacy of the daughter's education, the Court was not 

satisfied that the petitioners could circumvent the IDEA's 

exhaustion requirement. At that point in its analysis, the Court 

employed its two "clue[s]" to help discern whether the complaint 

contained an "implicit focus" on educational adequacy. Id. at 

756-58. Investigating the first clue (the hypotheticals), the 

Court noted that the same complaint could be filed against a public 

facility that was not a school or could be filed against the school 

by a non-student plaintiff, in either of which events it "would 

have nothing to do with the provision of educational services." 

Id. at 758. Investigating the second clue (the petitioners' 

pursuit vel non of the IDEA's administrative remedies) turned out 

to be a dead end because the record was insufficiently developed 

as to that issue. See id. And notwithstanding the absence of any 

other indication that the petitioners sought relief for the denial 

of a FAPE, the Court deemed it necessary to remand in order to 

gain insight into this issue. See id. at 758-59. In that regard, 

it instructed the court below to establish whether the petitioners 

had invoked the IDEA's dispute resolution process. See id. 
- 41 - 

In demonstrating how a court should cut through the 

boilerplate of the pleadings and determine whether a plaintiff is 

actually seeking relief for the denial of a FAPE, the Fry Court 

imparted some useful guidance. Mindful that the plaintiff is the 

"master of the claim," id. at 755 (quoting Caterpillar Inc. v. 

Williams, 482 U.S. 386, 392, and n.7 (1987)), a reviewing court's 

examination should begin with the four corners of the complaint, 

see id. at 758. Taking this approach in a very recent case, we 

determined that the plaintiffs' pleadings and legal allegations 

revealed that their complaint alleged the denial of a FAPE and was 

therefore subject to the IDEA's exhaustion requirement. See 

Parent/Prof'l Advocacy League v. City of Springfield, ___ F.3d 

___, ___ (1st Cir. 2019) [Nos. 18-1778, 18-1813, 18-1867, 18-1976, 

slip op. at 21-22]. 

If however, a reviewing court is unable to identify an 

explicit focus on the adequacy of the education received by a child 

with disabilities, it must then take the next step. That step 

entails consideration of whether an implicit focus can be 

identified (either in the complaint or in the proceedings), 

employing means such as the two Fry clues.24 See Fry, 137 S. Ct. 

at 758-59; see also Fry v. Napoleon Cmty. Schs., No. 12-15507, 

 24 Of course, a court may also take the step in order to 

buttress the identification of such an explicit focus. See, e.g., 

City of Springfield, ____ F.3d at ____ [slip op. at 22-23]. 
- 42 - 

2018 WL 4030757, at *14-16 (E.D. Mich. Aug. 23, 2018) (applying on 

remand the inquiry delineated by the Fry Court). Only if the court 

determines that a particular claim cannot be interpreted to allege 

the denial of a FAPE, either explicitly or implicitly, can the 

court find that the claim is not subject to the IDEA's exhaustion 

requirement. 

I confess that the Fry Court's instructions about how to 

read and interpret a complaint are not a model of clarity. 

Although cautioning against a "magic words" approach and warning 

that the inquiry "does not ride on whether a complaint includes 

(or, alternatively, omits) the precise words . . . 'FAPE' or 

'IEP,'" Fry, 137 S. Ct. at 755, the Court indicated that the 

absence of any allegations referring either to the denial of a 

FAPE or to some deficiency in an IEP would be meaningful data 

points supporting a determination that the petitioners' complaint 

alleged "only disability-based discrimination," id. at 758. 

Fairly read, the Fry Court's approach strongly suggests that the 

presence of such terms, though they do not serve as on/off 

switches, ought to play an important role in any determination as 

to whether a plaintiff is, in essence, seeking relief for the 

denial of a FAPE. 

Fry mentions another consideration relevant to assessing 

a complaint: the relationship between an individual claim and the 

complaint as a whole. See id. In light of this consideration, 
- 43 - 

the Court's evaluation of the complaint was influenced by the 

absence of any allegation, either specific or general, that the 

school "refus[ed] to provide the educational instruction and 

services" required by the petitioners' daughter. Id. But Fry 

leaves open a question: does the presence of such allegations 

affect the court's assessment of all claims in a complaint or, 

conversely, can such allegations be cordoned off as relevant only 

to particular claims that explicitly seek relief for FAPE denial? 

In the aftermath of Fry, this unanswered question was 

addressed by the Third Circuit in Wellman v. Butler Area School 

District, 877 F.3d 125 (3rd Cir. 2017). There, the court held 

that Fry requires courts to review the entire complaint and conduct 

a separate assessment of each claim. See id. at 133. The court 

added that, regardless of whether a complaint includes FAPE denial 

allegations, an entirely distinct claim that in no way concerns 

the denial of a FAPE (like an allegation of physical assault on a 

school bus) would fall outside the IDEA's exhaustion requirement. 

See id. at 132-33. On these points, I think that the Wellman court 

got it exactly right. 

The Third Circuit, though, was more chary with respect 

to a claim nested among explicit claims of a FAPE denial — a claim 

which, like the claim in Fry, did not explicitly allege the denial 

of a FAPE but necessitated further analysis to determine whether 

an implicit focus nonetheless lurked beneath its surface. See id. 
- 44 - 

at 134. I find the Wellman court's handling of such a claim 

instructive. 

In relevant part, the Wellman plaintiff sought "relief 

under the ADA and Rehabilitation Act due to the school's alleged 

failure to ensure that [he] was not exposed to danger after the 

initial head injury he sustained during physical education class 

but was still permitted to participate in school activities." Id. 

Though recognizing that "there could be a scenario in which these 

events may not relate to a FAPE," the court determined that, as 

pleaded, the claim "was offered as another example of how the 

school failed to accommodate [the plaintiff] so that he could 

benefit from his educational experience." Id. Because the factual 

allegations surrounding this claim were intermixed with explicit 

claims charging FAPE denial, the court concluded that the complaint 

sought relief for failure to provide a FAPE.25 See id. The 

relationship between a complaint's explicit allegations of a FAPE 

denial and other claims limned in the complaint provides yet 

another clue that can identify an implicit focus on the adequacy 

of the education received. 

 25 For the sake of completeness, I note that after assessing 

this claim in relation to the entire complaint, the Wellman court 

bolstered its conclusion that the claim concerned a FAPE denial by 

pointing out that the claim "could not be brought by a nonstudent 

or outside the school setting." 877 F.3d at 134. This approach 

tracks with my view that the Fry "clues," while not necessary, may 

provide additional data points to reinforce a determination that 

a claim concerns (or does not concern) a FAPE denial. 
- 45 - 

In this case, the lessons of Fry and Wellman compel the 

conclusion that the plaintiffs' Rehabilitation Act claim seeks 

relief for the denial of a FAPE. When mounting this claim, the 

plaintiffs alleged that the school's "refusal to permit B.D. access 

to his service dog in his educational setting was illegal 

disability-based discrimination that violated Section 504." The 

plaintiffs then alleged that "[o]nly after he suffered a lifethreatening tonic-clonic seizure did the defendants agree that 

B.D. could bring the service dog to school, but not as an 

accommodation under his IEP." In short, the plaintiffs set forth 

a composite claim concerning their son's service dog: that for a 

period of time the school denied B.D. any access to a service dog 

at school; and then, belatedly, granted B.D. access to the dog but 

refused to accommodate him by amending his IEP accordingly.26 

Although the first portion of this composite claim does 

not explicitly allege a FAPE denial, the second portion comprises 

a direct challenge to the adequacy of the educational services 

offered by the school. The plaintiffs allege that the school 

refused to amend B.D.'s IEP to include his service dog, which (they 

say) he required in order "to develop some independence and 

 26 Unlike the majority, I do not speculate about whether the 

service dog accompanied B.D. at school after his first seizure. 

For purposes of an access or accommodation claim under the 

Rehabilitation Act, the relevant questions are whether B.D. was 

permitted to bring the dog to school and under what conditions. 

Anything else is window dressing. 
- 46 - 

confidence" and to alleviate his anxiety in social settings. It 

defies reason to turn a blind eye to the plaintiffs' reference to 

the IEP in this context — and that reference quite clearly reveals 

the plaintiffs' implicit focus on the school's alleged failure to 

accommodate their son's educational needs. 

This conclusion is reinforced by a more detailed 

evaluation of the pleaded Rehabilitation Act claim, which itself 

discloses an implicit focus on the adequacy of the educational 

services received by B.D. Viewing the Rehabilitation Act 

allegations in relation to the entire complaint, the 

Rehabilitation Act claim appears inextricably intertwined with the 

plaintiffs' concerns about the school's failure to accommodate 

B.D.'s educational needs. Specifically, the factual allegations 

set forth in the complaint trace the school's alleged intransigence 

in responding to the plaintiffs' concerns as well as its refusal 

either to implement B.D.'s IEP or to amend the IEP to incorporate 

necessary measures. As a result of this myriad of educational 

inadequacies, the complaint alleges, B.D. experienced five 

seizures.27 

 27 The majority apparently recognizes that the bulk of the 

plaintiffs' allegations — "that the ESY summer 2012 program was 

not an appropriate placement for B.D., that the program was 

understaffed, that his aides were unqualified and a teacher 

undertrained, and/or that the interventions required under his IEP 

were not being implemented" — concern the denial of a FAPE. See 

ante at 27-28. But the majority then proceeds to ignore both the 
- 47 - 

Given these contextual surroundings, it is apparent to 

me that the plaintiffs' claim regarding the school's refusal to 

cooperate with their requests concerning the service dog is best 

understood as a challenge to the adequacy of their son's education. 

And since the complaint itself resolves any question as to whether 

the plaintiffs allege the denial of a FAPE, it is neither necessary 

nor useful to explore the potential significance of the Fry clues. 

Even so, I note that an allegation that a school refused to 

accommodate a student by amending his IEP to include a service dog 

could neither be brought outside the school setting nor by a 

nonstudent. This, too, weighs in favor of the conclusion that the 

Rehabilitation Act claim is sufficiently linked to the denial of 

a FAPE. I would therefore hold — as did the court below — that 

the plaintiffs' Rehabilitation Act claim is sufficiently within 

the orbit of the IDEA to activate the IDEA's exhaustion 

requirement.28 

II 

This brings me to the plaintiffs' section 1983 claim. 

The majority concludes that this claim was "properly brought in 

 

legal significance and the logical implications of what it has 

just recognized. 

28 I do not read the majority opinion as holding that 

exhaustion of this claim should be excused on the basis of 

futility. At any rate, it should be evident from what I say below, 

see infra Part II.B, that the futility exception has no bearing 

here. 
- 48 - 

federal court because it either was exhausted or [because] further 

invocation of the administrative process would have been futile." 

Ante at 16. I find neither of these grounds persuasive. 

The exhaustion requirement, see 20 U.S.C. § 1415(l), 

serves a critical role within the IDEA's administrative regime. 

Insisting on such a requirement "forces parties to take 

administrative proceedings seriously, allows administrative 

agencies an opportunity to correct their own errors, and 

potentially avoids the need for judicial involvement altogether." 

Frazier, 276 F.3d at 60 (quoting P. Gioioso & Sons, Inc. v. OSHRC, 

115 F.3d 100, 104 (1st Cir. 1997)).29 In the IDEA setting, there 

are "special benefits" to an exhaustion requirement: "The IDEA's 

administrative machinery places those with specialized knowledge—

education professionals—at the center of the decisionmaking 

process, entrusting to them the initial evaluation of whether a 

 29 The majority avers that Frazier's "exhaustion analysis is 

of questionable precedential value because it relied on a Supreme 

Court case addressing exhaustion in the context of the [PLRA]." 

Ante at 13 n.10. In point of fact, the Fry Court made only a 

passing reference to the PLRA, distinguishing that statute's 

exhaustion provision in order to emphasize that the IDEA enables 

a plaintiff to decide whether to seek the "relief available under 

the IDEA" — relief for the denial of a FAPE. See Fry, 137 S. Ct. 

at 755. The Court did not by any means indicate that case law 

interpreting the PLRA's exhaustion provision should not be read to 

inform a court's interpretation of section 1415(l), and it 

explicitly left open the very question for which Frazier viewed 

that case law as instructive: whether exhaustion is required where 

the specific remedy requested "is not one that an IDEA hearing 

officer may award." Id. at 752 n.4. 
- 49 - 

disabled student is receiving a free, appropriate public 

education." Id. 

If courts are to be faithful to Congress' commands, they 

cannot allow the IDEA's exhaustion requirement to be easily dodged. 

To this end, "[t]he burden of demonstrating an exception from the 

exhaustion requirement falls on the party seeking to avoid the 

requirement." Rose v. Yeaw, 214 F.3d 206, 211 (1st Cir. 2000); 

see Honig v. Doe, 484 U.S. 305, 327 (1988). 

A 

Viewed against this backdrop, the majority's conclusion 

that the plaintiffs have exhausted their administrative remedies 

is flat-out wrong. The majority asserts that the plaintiffs 

exhausted their administrative remedies vis-á-vis their section 

1983 claim when they requested and received an out-of-district 

placement in the fall of 2012. See ante at 30-31. Adding a 

wrinkle to the analysis, the majority labors to treat that initial 

request as separate and distinct from the section 1983 claim for 

monetary relief, characterizing the latter as merely an effort to 

obtain "damages for the harms B.D. experienced while being forced 

to wait for" the relief initially requested. Id. at 32. Finally, 

the majority posits that because the initial request was exhausted, 

the section 1983 claim needed no additional exhaustion. See id. 

The majority's reasoning rests on a porous foundation. 

The plaintiffs' initial request was not exhausted because it did 
- 50 - 

not move beyond the superintendent of the school district before 

it was resolved by the school's acquiescence.30 Simply raising a 

concern successfully through the bureaucracy of the school 

district, without more, does not comprise exhaustion. See A.F. ex 

rel Christine B. v. Española Pub. Schs., 801 F.3d 1245, 1249 (10th 

Cir. 2015) (rejecting argument that mediation settlement comprised 

IDEA exhaustion). 

Exhaustion requires that a party receive a determination 

through a due process hearing, as contemplated under section 

1415(f). See Weber v. Cranston Sch. Comm., 212 F.3d 41, 53 (1st 

Cir. 2000) (concluding that "IDEA's mandate is explicit: 

plaintiffs must exhaust IDEA's impartial due process hearing 

procedures" before repairing to court); see also Z.G. by & through 

C.G. v. Pamlico Cty. Pub. Sch. Bd. of Educ., 744 F. App'x 769, 776 

(4th Cir. 2018) ("The plaintiff has exhausted administrative 

remedies under 20 U.S.C. § 1415(l) when he receives a finding or 

a decision from the Review Officer."). Only then may a party 

"bring a civil action with respect to the complaint presented 

pursuant to this section." 20 U.S.C. § 1415(i)(2)(A). 

 30 For this reason, I need not address the majority's curious 

bifurcation of two requests for relief that, in my view, stem from 

the same alleged denial of a FAPE. I do note, however, that if a 

school's refusal to grant a party's request for relief based on 

allegations of FAPE denial could give rise to a separate claim 

that required no agency determination as to whether that FAPE 

denial occurred, the exhaustion requirement would be emptied of 

all meaning. 
- 51 - 

By this measure, the plaintiffs' initial request for 

relief was not exhausted. Nor can it seriously be argued that the 

section 1983 claim for monetary relief, if treated as distinct 

from the initial request for relief, was exhausted in its own 

right. There has been no agency determination as to whether the 

school denied B.D. a FAPE during the relevant period — and without 

such a determination, there can be no exhaustion. See Weber, 212 

F.3d at 53. It follows inexorably that the plaintiffs have not 

carried their burden of demonstrating that they have complied with 

the IDEA's exhaustion requirement as to their section 1983 claim. 

B 

The majority concludes, in the alternative, that the 

plaintiffs were not required to resort to the IDEA's administrative 

procedures prior to filing suit because they have demonstrated the 

futility of such an attempt to exhaust. I agree that futility 

may, in an appropriate case, excuse compliance with the exhaustion 

requirement. See Frazier, 276 F.3d at 59. Here, however, the 

majority generates a test for futility that is of dubious 

provenance and, in the bargain, applies it in a manner that 

directly contradicts our precedent. 

The cases that the majority cites for the proposition 

that "[f]utility applies when (1) the plaintiff's injuries are not 

redressable through the administrative process, and (2) the 

administrative process would provide negligible benefit to the 
- 52 - 

adjudicating court," ante at 33 (internal citation omitted), 

simply do not support that proposition. To the contrary, our 

precedent regarding futility requires plaintiffs to demonstrate 

that the administrative process "does not provide relief that 

addresses the claim of the complainant." Weber, 212 F.3d at 52. 

This approach dovetails with established law, holding that parties 

cannot show futility merely by arguing that their complaint seeks 

money damages and that such a remedy is not available under the 

IDEA. See Frazier, 276 F.3d at 56. As Frazier teaches, exhaustion 

may be beneficial (and, therefore, compulsory) "regardless of 

whether the administrative process offers the specific form of 

remediation sought by a particular plaintiff." Id. at 61. 

Consequently, we cannot "allow a plaintiff to bypass the 

administrative procedures merely by crafting her complaint to seek 

relief that educational authorities are powerless to grant." Id. 

at 63. 

The majority concludes, under its novel test, that 

B.D.'s injuries are not redressable through the administrative 

process because the plaintiffs seek only money damages and the 

BSEA is not authorized to award that type of relief. See ante at 

34. Frazier precludes such a conclusion. See 276 F.3d at 56. In 

line with the Weber test, we are instructed to consider whether 

the plaintiffs have demonstrated that the BSEA cannot award relief 
- 53 - 

that addresses their claim that B.D. was denied a FAPE. They have 

not done so. 

The proper test demands that we return to the summer of 

2012. See Nelson v. Charles City Cmty. Sch. Dist., 900 F.3d 587, 

594 (8th Cir. 2018) ("In determining whether a plaintiff was 

required to exhaust remedies . . . we must consider the student's 

status at the time of the challenged conduct when the parents could 

have invoked administrative procedures."); see also Frazier, 276 

F.3d at 63. At any time that summer, the plaintiffs could have 

filed a complaint with the BSEA seeking multiple forms of relief 

for the alleged denial of a FAPE, including an out-of-district 

placement and compensatory services. That they chose instead to 

negotiate with the school in the autumn of 2012 to receive the 

same relief is irrelevant to the correct futility analysis. 

Nor have the plaintiffs demonstrated that no additional 

relief was available to them through a due process hearing at any 

time after the summer of 2012. For example, compensatory education 

is a remedy that is available even when a student no longer attends 

a specific school. See Frazier, 276 F.3d at 63. Here, we know 

that the school already has offered some compensatory services to 

the plaintiffs, but the plaintiffs have not provided any 

information as to what that offer comprised or whether it was 

accepted. And even if the offer was accepted, there is no reason 
- 54 - 

that the BSEA could not award relief in the form of additional 

compensatory services. 

What is more, requiring the plaintiffs to seek a due 

process hearing before the BSEA "facilitates the compilation of a 

fully developed record by a factfinder versed in the educational 

needs of disabled children—and that record is an invaluable 

resource for a state or federal court required to adjudicate a 

subsequent civil action covering the same terrain." Id. at 61. A 

court attempting to grapple with the plaintiffs' section 1983 

claims, then, would benefit from reviewing an administrative 

record in which the adequacy of educational services provided by 

the school has been assessed. 

For these reasons, I conclude that the plaintiffs have 

not carried their burden of establishing that exhaustion of the 

IDEA's administrative process would be futile as to their section 

1983 claim. The district court, therefore, acted appropriately in 

granting the defendants' motion for judgment on the pleadings. 

III 

To say more would be to paint the lily.31 The majority 

treats the IDEA's exhaustion requirement as little more than a 

 31 The majority, in a lengthy string of footnotes, has 

attempted to respond to this dissent. As far as I can tell, that 

attempt proceeds mainly by distorting what the dissent says and 

the propositions for which the dissent stands. Rather than 

engaging in hand-to-hand combat and replying point by point to 

these distortions, I am content to leave the relative merits of 
- 55 - 

mere annoyance, which can be both too easily satisfied and too 

easily evaded. In my view, proper application of the exhaustion 

requirement compels affirmance of the judgment below. Because the 

majority erroneously reaches a contrary conclusion, I respectfully 

dissent. 

 

the majority opinion and the dissent to the fair-minded and 

informed reader.