[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 96-5415

D. C. Docket No. 96-6464-CV-KLR

JAMIE BABICZ, JENNIFER BABICZ, by and through their parents and friends, Jerome Babicz and Joyce Babicz, JEROME BABICZ, individually, JOYCE BABICZ, individually, Plaintiffs-Appellants,

versus THE SCHOOL BOARD OF BROWARD COUNTY, FRANK PETRUZIELO, in his official capacity as Superintendent of the Broward County Public Schools, DANIEL O'KEEFE, in his official capacity as Principal of Ramblewood Middle School, a Broward County Public School, Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida
(February 26, 1998)

Before DUBINA and BARKETT, Circuit Judges, and HILL, Senior Circuit Judge. 

### PER CURIAM: In 1996, Appellants Jerome and Joyce Babicz, on behalf of their children, Jamie and Jennifer, filed a civil rights ac tion under 42 U.S.C. § 1983 against the School1 The Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794.

2 The ADA provides that “[s]ubject to the pr ovisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

3 This section, titled “Effect on other laws,” reads: Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 790 et seq. ], or other Federal statutes protecting the rights of children and youth 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 (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. 20 U.S.C. § 1415(f). 2 

### Board of Broward County, Florida (School Board), Dr. Frank R. Petruzielo (School Superintendent), and Mr. Daniel O’Keefe (Principal), for their alleged failure to provide the Babicz children with equal educational opportun ities under Section 504 of the Rehabilitation Act (Section 504), 29 U.S.C. § 794 1 

### , and Title II of the Americans with Di sabilities Act (ADA) , 42 U.S.C. §§ 12131, et seq. 2 

### On the basis that the Babiczes failed to exhaust their administrative remedies under Section 1415(f) 3 

### of the Individuals with Disabilitie s Education Act (ID EA), 20 U.S.C. § 1400, the district court dismissed their complaint (without prejudice) for lack of subject4 In 1990, Congress changed the name of the Education of the Handicapped Act (EHA), Pub.L. No. 101-476, 104 Stat. 1141 (1990), to the IDEA.

5 The complaint alleges they are “qualified persons with disabilities” within the meaning of Section 504 and the ADA.

6 While at home, the 504 plans provided the girls with notice of their assignments and make-up work. While at school, the 504 plans provided them with access to inhalers, nebulizers and oxygen to manage their asthma medically.

7 The complaint alleges that Mrs. Babicz was forced out of her position as PTA president; was restricted from moving freely within the school, followed sometimes by school personnel; and was denied a visitor’s pass on two occasions to attend a pre-arranged teacher conference.

8 The complaint alleges that both girls entered a school contest sponsored by the National PTA; that the national rules were not followed, and as a result, the girls were excluded from receiving awards. Jamie was accused of plagiarism, was denied a spot on the school’s basketball 3 

### matter jurisdiction. 4 

### We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND At the time the complaint was filed, Jamie and Jennifer were students at Ramblewood Middle School, a Broward County public school. The sisters have chronic asthma, a respiratory illness af fecting their breathing and lung capacity, allergies, migraine syndrome and sinusitis. 5 

### Understandably, they miss a significant number of school days. Recognizing that Ja mie and Jennifer have “disabilities that limit a major life activity,” the school issu ed written formal accommodations for the girls (Section 504 plans). 6 

### The complaint, seeking compensatory damages and injunctive relief, alleges that the school failed to implement the Section 504 plans and retaliated against Mrs. Babicz 7 

### and the girls after they hired an attorney. 8 

### The districtteam under suspicious circumstances and was told her mother was not welcome on campus. The complaint alleges that this retaliation resulted in increased asthma attacks.

9 The Second Circuit in essence affirms on the basis of the district court opinion that contains a detailed analysis. Hope, 872 F.Supp. 14, 18-22 (E.D.N.Y. 1995). 4 

### court granted the Appellees’ motion to dismi ss for lack of subject matter jurisdiction on the basis that the Babiczes failed to exhaust their administrative remedies under Section 1415(f) of the IDEA. II. STANDARD OF REVIEW We review the district court grant of the Appellees’ motion to dismiss for lack of subject matter jurisdiction de novo. Barnett v. Bailey , 956 F.2d 1036, 1039 (11 th 

### Cir. 1992). III. DISCUSSION The issue on appeal is whether the Babiczes must firs t exhaust their administrative remedies under Section 1415(f) of the ID EA before presenting federal claims regarding the denial of publicly financed special education under Section 504 and the ADA. See Smith v. Robinson, 468 U.S. 992, 1009 (1984). While one of first impression in this circuit, this issue has been thoughtfully considered by both the Second Circuit in Hope v. Cortines, 69 F.3d 687 (2d Cir. 1995) 9 

### and the Seventh Circuit in Charlie F. by Neil F. v. Board of Educ. of Skokie School District 68 , 98 F.3d 989 (7 th 

### Cir. 1996). Both circuits concluded that claims asserted under Section 50410 Any student who wants “relief that is available under” the IDEA must use the IDEA’s administrative system, even if he invokes a different statute. Charlie F. , 98 F.3d at 991. IDEA defines the term “children with disabilities” with two prongs. The first prong includes those suffering from a long list of handicaps and “other health impairments” such as asthma, 20 U.S.C. § 1401 (a)(1)(A)(I); s ee also 34 C.F.R. § 300.7(b)(8), and, the second prong includes those, “who, by reason thereof, need special education and related services.” 20 U.S.C. § 1401 (a)(1)(A)(ii). We find the Babicz’ argument that th ey do not fit within the ambit of IDEA as they do not require “special education and related services” as a result of their disabilities, just “related services,” to be meritless. Implicit in this legal strategy to avoid IDEA is an apparent desire for compensatory damages not available under IDEA. See Waterman by Waterman v. Marquette-Alger Intermediate School Dist., 739 F.Supp. 361, 365 (W.D. Mich. 1990)(“EHA exhaustion must occur before plaintiffs may file an action under any other federal law seeking relief that is also available under the EHA . . . The fact that plaintiffs seek a particular type of relief . . . not available under EHA . . . is immaterial. To hold otherwise would allow EHA plaintiffs to frustrate Congressional purpose by bypassing the administrative process in virtually every case containing EHA, section 504, or section 1983 damages claims”)(citations omitted).

11 The Seventh Circuit disagreed with the district court over the question of subject-matter jurisdiction. It vacated its judgment and remanded with instruction to dismiss for failure to exhaust IDEA’s administrative remedies. 5 

### and/or the ADA are subject to Section 1415(f)’s requirement that litigants exhaust the IDEA’s administrative procedures to obtai n relief that is available under the IDEA before bringing suit under Section 504 and/or the ADA. 10 

### Hope, 69 F.3d at 688; Charlie F. , 98 F.3d at 992. 11 

### We agree. IV. The district court’s dismissal of the Babicz’ complaint w ithout prejudice for lack of subject matter jurisdiction is affirmed. AFFIRMED.