IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-10720

JANE DOE, Individually and as Next Friend of Minor T.W., 

 Plaintiff - Appellant

v.

DALLAS INDEPENDENT SCHOOL DISTRICT, 

 Defendant - Appellee

Appeal from the United States District Court 

for the Northern District of Texas

Before SMITH, DENNIS, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Appellant Jane Doe appeals the district court’s dismissal of her Title IX 

complaint for failure to exhaust administrative remedies under the Individuals 

with Disabilities Education Act (“IDEA”). For the reasons set forth below, we 

REVERSE the district court’s dismissal of Doe’s complaint and REMAND the 

case for further proceedings.

I. Background

Taking the Plaintiff’s allegations as true, T.W., a special needs student 

in Dallas Independent School District (“Dallas ISD”), was repeatedly assaulted 

by a classmate, V.A. T.W. and her case manager, Ms. Gray, notified the school. 

The school’s “solution” was to move T.W. and V.A. to different parts of the room. 

United States Court of Appeals

Fifth Circuit

FILED

October 25, 2019

Lyle W. Cayce

Clerk

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No. 18-10720

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V.A. was assigned to a desk in front of the class bathroom. The abuse did not 

stop. V.A. allegedly raped T.W. in the class bathroom, a foot away from his 

desk. Doe, T.W.’s mother, withdrew her daughter after finding out about the 

rape. 

Doe sued Dallas ISD on behalf of T.W., asserting that the school violated 

T.W.’s rights under Title IX. The district court dismissed Doe’s Title IX claim 

for failure to exhaust her IDEA administrative remedies. The IDEA includes 

the following exhaustion provision: 

Nothing in this chapter shall be construed to restrict or limit the 

rights, procedures, and remedies available under the Constitution, 

the Americans with Disabilities Act of 1990 [(“ADA”)], title V of the 

Rehabilitation Act of 1973, or other Federal laws protecting the 

rights of children with disabilities, except that before the filing of 

a civil action under such laws seeking relief that is also available 

under this subchapter, the procedures under subsections (f) and 

(g) shall be exhausted to the same extent as would be required had 

the action been brought under this subchapter.

20 U.S.C. § 1415(l). Though Doe had not sued under the IDEA, the district 

court concluded that Doe’s claim could have been brought as an IDEA claim. 

It therefore determined that § 1415(l) barred Doe’s suit until she exhausted 

her claim. 

Doe did not appeal that decision and instead attempted to comply with 

the district court’s direction to exhaust her claims. She filed both a Title IX 

claim and an IDEA claim with a special education hearing officer. The hearing 

officer dismissed her IDEA claim because the claim was filed well beyond the 

one-year statute of limitations. The hearing officer also concluded that he 

lacked jurisdiction to consider the Title IX claim and dismissed that claim. 

Doe then went back to federal court, again asserting only a Title IX 

claim. In addition to attempting to exhaust her claim, she had the benefit of 

the recently decided Supreme Court decision, Fry v. Napoleon Community

Schools. 137 S. Ct. 743 (2017). In Fry, the Supreme Court held that § 1415(l)’s 

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exhaustion requirement applies only if a plaintiff seeks relief available under 

the IDEA, which is limited to a student’s right to a free appropriate public 

education (“FAPE”). Id. at 748. Doe claimed that Fry clarified that she did not 

need to administratively exhaust her claim under the IDEA because she did 

not seek relief related to the denial of a FAPE. 

Dallas ISD moved to dismiss under Federal Rules of Civil Procedure 

12(b)(1) and 12(b)(6). The district court again dismissed Doe’s claim, 

concluding that its previous legal reasoning was consistent with Fry. Since the 

hearing officer had dismissed the IDEA claim as time-barred, which did not 

exhaust the claim, the district court concluded that Doe’s Title IX claim, which

the court ruled was intertwined with a potential IDEA claim, was also 

unexhausted under § 1415(l). It dismissed her suit for lack of jurisdiction. Doe 

now appeals the dismissal of her Title IX claim.

II. Jurisdiction and Standard of Review

The district court had federal question jurisdiction under 28 U.S.C. 

§ 1331. We have jurisdiction over the appeal as an appeal from a final decision 

under 28 U.S.C. § 1291. We review a district court’s dismissal under Rule 

12(b)(1) de novo. Griener v. United States, 900 F.3d 700, 703 (5th Cir. 2018).

III. Discussion

On appeal, Doe argues that § 1415(l) should not have barred her Title IX 

claim. Based on the Supreme Court’s recent decision in Fry, we hold that if a 

disabled person seeks Title IX relief that a non-disabled person could also seek 

and requests relief that is different from or in addition to a FAPE, the IDEA’s 

exhaustion requirement does not apply.1

 

1 Although Dallas ISD argues that this court’s recent holding in McMillen v. New 

Caney Indep. Sch. Dist., 936 F.3d 640 (5th Cir. 2019) requires us to affirm, we disagree. In 

McMillen, we held that because the gravamen of McMillen’s complaint was about the 

defendant’s failure to provide him with a FAPE, the IDEA’s exhaustion requirement applied 

even though McMillen sought money damages, a remedy not available under the IDEA. Id.

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In Fry, the Supreme Court clarified when § 1415(l) requires plaintiffs to 

exhaust claims under statutes other than the IDEA. See 137 S. Ct. 743. A 

court must look to “the gravamen of a complaint” to determine if § 1415(l)’s 

exhaustion requirement applies. Id. at 755. It applies only if a plaintiff “‘seeks’

relief available under the IDEA—not, as a stricter exhaustion statute might, 

[when] the suit ‘could have sought’ relief available under the IDEA.” Id. at 

755. Relief under the IDEA is limited to a student’s right to a FAPE. Id. at 

748–49. “FAPE” is a statutory term of art and is generally centered on a

disabled student’s access to adequate education by a school. See 20 U.S.C. 

§ 1401(9). Thus, to determine whether § 1415(l) applies, courts must “examine 

whether a plaintiff’s complaint . . . seeks relief for the denial of an appropriate 

education.” Fry, 137 S. Ct. at 755. That “examination should consider 

substance, not surface. The use (or non-use) of particular labels and terms is 

not what matters.” Id. Instead, it is “the gravamen of a complaint” that 

matters. Id.

Doe’s complaint is largely about sexual harassment, though it includes 

allegations related to T.W.’s disabilities and the denial of educational 

opportunities. In the complaint’s thirteen pages of allegations, twelve of those

detail the sexual harassment that another student committed against T.W.—

including being raped—and explain how school officials were repeatedly 

notified about the harassment. Doe’s complaint does mention that T.W. had 

learning disabilities and an educational plan, presumably the individualized 

 

at 645 (holding that “both the substance and language of McMillen’s complaint reveal that 

he is challenging the denial of a [FAPE]”); id. at 648 (“hold[ing] that the IDEA’s exhaustion 

requirement applies to plaintiffs who seek damages for the denial of a [FAPE]”). Here, we do 

not hold that the gravamen of Doe’s complaint was about Dallas ISD’s failure to provide her 

with a FAPE. Thus, we do not reach the issue, which would have implicated McMillen, of 

whether Doe, by requesting money damages, makes the exhaustion requirement 

inapplicable.

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education program required by the IDEA, under 20 U.S.C. § 1414(d). However, 

she does so primarily to give context that the school had notice regarding T.W.’s 

inability to protect herself. When the complaint details Doe’s cause of action, 

it states that T.W. was “effectively barred . . . from access to the educational 

opportunities or benefits provided by Kimball High School and [Dallas ISD].” 

Doe included this detail because Supreme Court precedent holds that a 

plaintiff alleging deliberate indifference to student-on-student sexual 

harassment must prove the denial of an educational opportunity or benefit. 

See Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 632–

33 (1999) (“[W]e conclude that such an action [i.e., a Title IX claim for a school’s 

deliberate indifference] will lie only for harassment that is so severe, pervasive, 

and objectively offensive that it effectively bars the victim’s access to an 

educational opportunity or benefit.”). To summarize, the complaint largely 

focuses on the sexual harassment T.W. suffered, but Doe asserts a legal theory 

that depends on proving the denial of an educational opportunity or benefit for 

anyone who brought such a claim (disabled or not).

The parties diverge on how Fry applies to Doe’s complaint. Dallas ISD 

contends, and the district court agreed, that because Doe’s cause of action 

required proving the denial of an educational opportunity or benefit, § 1415(l) 

applies. Dallas ISD emphasizes that any “actions that the school district could 

have taken in response to [T.W.’s] allegations necessarily implicated the 

school’s duties under the IDEA.” Similarly, Dallas ISD claims that any actions 

would have implicated the alleged victim’s IDEA rights. Dallas ISD also 

asserts that the harms T.W. suffered were “educational in nature,” reinforcing 

the fact that the gravamen of Doe’s complaint is about the denial of a FAPE. 

Doe and the United States, as an amicus, argue that, though the cause 

of action requires proving the denial of an educational benefit, the allegations 

are about sexual harassment, not special education opportunities. As the 

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United States puts it, “the relief that plaintiff seeks is for sexual harassment 

irrespective of the IDEA’s FAPE obligation.” Doe’s complaint concerns “the 

denial of a nondiscriminatory environment to which all students are entitled.” 

Dallas ISD is correct that Doe’s suit implicates the denial of T.W.’s 

educational opportunities. Doe must show the denial of an educational benefit 

to prove her Title IX claim. But the Supreme Court’s analysis shows that the 

emphasis is not on whether a FAPE is potentially implicated; it is on whether

the “gravamen” or “essentials” of the complaint concern the denial of a FAPE. 

See Fry, 137 S. Ct. at 755. The Court warned that “a court should attend to 

the diverse means and ends of the statutes covering persons with disabilities.” 

Id. Even though the “same conduct might violate” the IDEA and other statutes 

and could give rise to an IDEA claim, a plaintiff “might instead seek relief for 

simple discrimination, irrespective of the IDEA’s FAPE obligation.” Id. at 756. 

Here, Doe’s claim regards “simple discrimination, irrespective of the 

IDEA’s FAPE obligation.” Id. Were all traces of T.W.’s disabilities removed, 

Doe’s claim would look nearly identical to what exists now: allegations that the 

school was deliberately indifferent to T.W.’s sexual abuse. Thus, we conclude 

that the gravamen of the complaint is not about the denial of a FAPE and that 

the IDEA’s exhaustion requirement does not apply. 

Fry’s suggestion that courts may look to the “history of the proceedings” 

to determine the gravamen of the complaint further supports our conclusion. 

See id. at 757. The Supreme Court noted that a plaintiff’s initial “pursuit of 

the IDEA’s administrative remedies will often provide strong evidence that the 

substance of a plaintiff’s claim concerns the denial of a FAPE.” Id. Dallas ISD 

argues that Doe’s decision to pursue administrative proceedings, then to go to 

federal court before administratively appealing, “is ‘strong evidence’ that the 

substance of [Doe’s] claim concerns the denial of FAPE.” But, as Doe responds, 

she pursued administrative relief only after the district court dismissed her 

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claim for lack of exhaustion. Therefore, the litigation history supports Doe, 

who apparently wanted to avoid the entire IDEA process but engaged it to 

satisfy the district court’s ruling spawned by the Dallas ISD’s contentions. 

Dallas ISD claims that the two hypothetical questions suggested by the 

Supreme Court in Fry further support that the gravamen of Doe’s complaint 

concerns the denial of a FAPE. These two hypothetical questions are: 

First, could the plaintiff have brought essentially the same claim 

if the alleged conduct had occurred at a public facility that was not

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

adult at the school—say, an employee or visitor—have pressed 

essentially the same grievance?

Fry, 137 S. Ct. at 756. If the answers are yes, then the claim is not likely about 

a FAPE since those hypotheticals take a claim away from the core purpose of 

the IDEA. Id. Dallas ISD argues that the answer to both questions is no. 

However, the Court did not limit analysis of this question to answering 

those two illustrative hypotheticals. Instead, the Court suggested these 

hypotheticals to help determine “whether the gravamen of a complaint against 

a school concerns the denial of a FAPE, or instead addresses disability-based 

discrimination.”2 Id. These hypotheticals do not address—and therefore fail 

to distinguish—whether the gravamen of a complaint concerns the denial of a 

FAPE or sex-based discrimination. In the situation before us, the proper 

hypothetical is along the lines of the following question: “Could a student 

without disabilities bring this same claim?” If the answer is “yes,” then the 

essence of the suit is not the denial of a FAPE, but is instead about sex 

discrimination. As explained above, Doe’s suit is about sex discrimination; a 

non-disabled student could have brought Doe’s allegation that the school was 

 

2 Fry concerned whether the ADA and the Rehabilitation Act implicated the 

exhaustion requirements in the IDEA. 137 S. Ct. at 751–52.

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indifferent to her sexual abuse and, in fact, perpetuated it by placing V.A. next

to the bathroom that T.W. had to use. In fact, there have been numerous Title 

IX claims brought by students who have made similar allegations of a school’s 

indifference to a student-on-student sexual abuse.3 Based on the Supreme 

Court’s holding in Fry, we hold that Doe did not need to exhaust her 

administrative remedies under § 1415(l), as the gravamen of her complaint 

was not about the denial of a FAPE.

IV. Conclusion

For the foregoing reasons, we REVERSE the district court’s grant of 

Dallas ISD’s Rule 12(b)(1) motion to dismiss and REMAND the case for further 

proceedings consistent with this opinion.

 

3 See, e.g., MDB v. Punxsutawney Christian Sch., 386 F. Supp. 3d 565, 578–79 (W.D. 

Penn. 2019); T.C. ex rel. S.C. v. Metro. Gov’t of Nashville, 378 F. Supp. 3d 651, 684 (M.D. 

Tenn. 2019); Doe v. Brown Univ., 327 F. Supp. 3d 397, 404, 411 (D.R.I. 2018). 

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