1 20 U.S.C. §§ 1400 et seq.

James B. GARDNER and Sally I. Gardner, Plaintiffs–Appellees,

v.

SCHOOL BOARD CADDO PARISH, Defendant–Appellant.

No. 91–4859

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

April 14, 1992.

Appeal from the United States District Court for the Western

District of Louisiana.

Before JOLLY, DAVIS, and SMITH, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Parents of a handicapped child seek to enjoin the enforcement

of the local school board's policy that places limitations on tape

recordings of parent/teacher conferences. The parents, seeking the

unrestricted right to record, contend that their rights under the

Individ uals with Disabilities Act ("IDEA") 1 were violated by the

policy. The school board moved to dismiss and for summary judgment

on th e grounds that, because the parents failed to exhaust

administrative reme dies, the district court did not have

jurisdiction and, alternatively, that the school board had

authority to enforce its policy. The plaintiffs also moved for

summary judgment arguing that exhaustion was futile, and that they

had the right to record a conference about their handicapped child.

The district court denied the school board's motions andgranted the plaintiffs' motion for summary judgment. The district

court held that exhaustion was futile, that it had jurisdiction and

that the parents had the right to record conferences. We hold that

the district court erred in not dismissing the case: The

plaintiffs did not exhaust the ir administrative remedies as

required by the Act; nor did they bear their burden of showing

that exhaustion would be futile. Thus, we vacate the order of the

district court and dismiss the appeal.

I

James and Sally Gardner filed a complaint in federal district

court against the Caddo Parish School Board seeking declaratory and

injunctive relief. They petitioned the court to declare the School

Board's tape recording regulation illegal and unenforceable. They

also sought to enjoin enforcement of the policy.

The School Board moved to dismiss the case for lack of

j urisdiction because the Gardners did not exhaust the

administrative remedies and because they did not presen t a

justiciable c ontroversy. Thereafter, both the Gardners and the

School Board moved for summary judgment.

T he district court granted the Gardners' motion for summary

judgment and denied the School Board's motions. The School Board

appeals.

IIJames and Sally Gardner have a daughter, Kelly, who is

enrolled as a special education student at Byrd High School in

Shreveport, Lo uisiana. Kelly is entitled to the protection and

benefit of the IDEA. Under the Act, the School Board is required

to give Kelly a free and appropriate public education designed to

meet her unique needs through the formulation of an Individualized

Education Program ("IEP"). The IEP is devised by the student's

parent or guardian and the student's teacher or a representative of

the local education agency.

An IEP consists of a written statement of the child's present

education performances, establishes annual and short term

instructional objectives, describes the special education services

that will be provided to the child, and sets forth the criteria and

procedures that will be used to evaluate whether these educational

goals have been achieved. 20 U.S.C. § 1401(a)(19). The IDEA

requires that the IEPs be developed during Planning and Placement

Team meetings between school district representatives, teachers,

parents, and when necessary, the student.

Under the Act, parents have the right to examine all relevant

records with respec t to the identification, evaluation, and

educational placement of the child, to receive prior written notice

of administrative actions, and to present complaints. 20 U.S.C. §

1415(b)(1). When such complaints are made, the parents are

entitled to an impartial due process hearing conducted by the local

education agency. § 1415(b)(2). They can appeal the decisionrendered by t he local education agency to the State agency. §

1415(c). If they are dissatisfied with the State agency's

decision, they can file a c ivil suit in state court or federal

district court. § 1415(e)(2).

On June 6, 1990, the School Board adopted a formal policy,

which regulates t he recording of parent conferences. The policy

applies to all parent conferences, not just IEP conferences. As

origina lly adopted, the policy stated that recordings would be

permitted only when the p arents and all other participants

consented. Prior to the initiation of this suit, however, an

amendment was proposed that allo ws recording if the authorities

determine that it is necessary to ensure that the parents fully

understand and can meaningfully participate in the IEP process.

The proposed amendment has since been adopted.

An IEP conference concerning Kelly was scheduled for November

16, 1990. Prior to the conference, the Gardners requested to have

the conference taped. The IEP director agreed to video tape, but

not audio tape, the conference if all participants consented. At

the time of the conference, one of the participants objected and

the Garners decided to proceed with the conference anyway.

About five months later, the Gardners wrote the School Board

expressing their view that the policy was illegal. Legal counsel

for the School Board rendered an opinion regarding the legality of

the policy which caused the Board to amend the policy. In June of1991, the Gardners instituted this action claiming that the policy,

including the proposed amendment, violated their rights under the

Act.

III

On appeal, the School Board contends that the district court

did not have proper subject matter jurisdiction becau se the

Gardners did not exhaust their administrative remedies as required

by the Act and because they did not present a justiciable

c ontroversy. Alternatively, the School Board argues that it has

constitutional and statutory authority to establish and enforce the

policy. On the other hand, the Gardners contend that the district

court did have subject matter juris diction. Furthermore, they

argue that the district court was correct in finding that the

policy is contrary to Congress' intent to allow paren ts full

participation in and understanding of the IEP process.

IV

The School Board, in its motion to dismiss and its motion for

summary judgm ent, asserted that the Gardners are required to

exhaust their administrative remedies before instituting this

action. In examining the statute, we find initially that section

1415(b)(1)(E) guarantees parents "an opportunity to present

complaints with respect to any matter relating to the

identification, evaluation, or educational placement of the child,

or the provision of a free appropriate public education to such

child." Then, section 1415(b)(2) states that whenever the parentsfile such a complaint, they are entitled to an impartial due

process hearing conducted by the state or local educational agency.

Next, section 1415(c) provides that if the hearing is conducted by

a local educational agency, "any part y aggrieved by the findings

and decision rendered in such a hearing may appeal to the State

educational agency." Finally, section 1415(e)(2) provides for a

civil action:

Any party aggriev ed by the findings and decision made under

subsection (b) of this section who does not have the right to

a ppeal under subsection (c) of this section, and any party

aggrieved by the findings and decision under subsection (c) of

this section, shall have a right to bring a civil action with

respect to the complaint presented pursuant to this section,

which action may be brought in any State court of competent

jurisdiction or in a district court of the United States

without regard to the amount in controversy. In any action

brought under this paragraph the court shall receive the

records of the administrative proceedings, shall hear

additional evidence at the request of a party, and basing its

decision on the preponderance of the evidence, shall grant

such relief as the court determines appropriate.

Before initiating such civil action, however, se c tion 1415(f)

further makes clear that:

before the filing of a civil action under such laws seeking

relief that is also available under this subchapter, the

procedu res under subsection (b)(2) and (c) of this section

shall be exhausted to the same extent as would be required had

the action been brought under this subchapter.

Thus, it is beyond doubt that the statute provides that a plaintiff

must first exhaust the state administrative remedie s before

bringing an action in federal court, if the complaint is one

falling under § 1415(b)(1)(E), noted above.

The School Board thus argues that the Gardners complaint issuch a complaint "relating to the identification, evaluat ion, or

educational placement of the child, or the provision of a free

appropriate public education for such child," and that therefore,

the Gardners were required to exhaust the administrative procedures

discussed above. Indeed, although the Gardners contest this point,

their argume nt is that it is necessary for them to tape the

conference so that in the event they are dissatisfied with the IEP,

they can u se the tape of the conference when filing a complaint

regarding the IEP. We therefore agree with the School Board that

t he Gardners' complaint is a complaint that falls within Sect ion

1415(b)(1 )(E), and as such, is a complaint that requires

administrative exhaustion.

The Supreme Court, however, has recognized that alt hough

judicial review is not normally available until the administrative

proceedings have been ex hausted, "parents may by-pass the

administrative process where exhaustion would be futile or

inadequate." H onig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 606,

9 8 L.Ed.2d 686 (1988). The district court held that because the

Gardners were challenging the School Board's policy as a whole,

exhaustion would be futile. We disagree.

The Gardners bear the burden of demonstrating the futility or

inadequacy of administrative review. I d. 108 S.Ct. a t 606. The

Gardners, in response to the School Board's motion to dismiss and

motion for summary judgment, argued that exhaustion would be futile

because it was clear that the School Board was not going to changeits policy. The Gardners introduced affidavits in which members of

the School Board stated the reasons for the policy. The Gardners

also argued that they tried to negotiate with the School Board and

the School Board refused. (The Gardners sent a letter to the Board

stating that they thought the policy was illegal and Sally Gardner

objected to the policy at an open School Board meeting).

Although the Gardners presented som e evidence that filing a

complaint at the local level may be futile because the School Board

is the local educational agency, they have not even alleged that an

appeal of the local agency's decision to the state administrative

agency would also be futile. The Gardners therefore have failed to

carry their burden of proving that exhaustion would be futile. S ee

Cox v. Jenkins, 878 F.2d 414, 418–422 (D.C.Cir.1989); Crocker v.

Tennessee Secondary School Athletic Ass'n, 873 F.2d 933, 937 (6th

Cir.1989); B rowning v. Evans, 700 F.Supp. 978, 979

(S.D.Ind.1988)).

V

Consequently, the district court should have granted the

School Board's motion to dismiss or its motion for summary judgment

on the grounds that the plaintiffs did not exhaust their

administrative remedies or prove that exhaustion would be futile.

We do not decide w hether exhaustion is a jurisdictional

requirement. Quite arguably, it is not because there is a judicial

e xception to exhaustion when exhaustion would be futile or

inadequate. At any rate, a complaint based on § 1415(b)(1)(E) isnot a justiciable controversy until the plaintiff has exhausted his

administrative remedies or proved that exhaustion would be futile

or inadequate. Accordingly, the order of the district court is

REVERSED and VACATED.