United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-1164
                        ___________________________

Eugene J. Nelson, as Parents and Next Friends of C.N. a Minor; Lisa J. Nelson, as
                   Parents and Next Friends of C.N. a Minor,

                      lllllllllllllllllllllPlaintiffs - Appellants,

                                           v.

                    Charles City Community School District,

                      lllllllllllllllllllllDefendant - Appellee.
                                     ____________

                    Appeal from United States District Court
                   for the Northern District of Iowa - Waterloo
                                 ____________

                          Submitted: February 15, 2018
                             Filed: August 15, 2018
                                 ____________

Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.*
                             ____________

COLLOTON, Circuit Judge.

      Eugene and Lisa Nelson, as parents and next friends of their daughter C.N.,
sued the Charles City (Iowa) Community School District. They alleged that the

      *
       This opinion is filed by Chief Judge Smith and Judge Colloton under Eighth
Circuit Rule 47E.
District violated § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), when it failed
to make reasonable accommodations for C.N. while she was a student. The district
court1 granted summary judgment for the District, reasoning that the Nelsons failed
to exhaust their administrative remedies as required under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. We affirm.

                                         I.

       The parties dispute some of the facts in this case; they also have conflicting
views on whether factual findings of the Iowa Department of Education in a prior
administrative proceeding should have preclusive effect in this action. For purposes
of this appeal, we adopt the approach most favorable to the Nelsons. We assume
without deciding that the Department’s factual findings that favor the Nelsons
preclude relitigation of the same facts here, and we consider other disputed facts in
the light most favorable to the Nelsons.

       C.N. attended a school in the Charles City Community School District for ninth
grade during the 2013-2014 school year. When Lisa Nelson registered C.N., she
reported under “Medical Conditions” that C.N. had polycystic ovarian syndrome
(“PCOS”) and depression. C.N. was absent frequently from school due to depression
and complications from PCOS. On April 29, 2014, the District submitted a Truancy
Referral Form regarding C.N. to the Floyd County Attorney. The Nelsons met with
representatives from the District for a truancy mediation on May 22, 2014. The
parties agreed that C.N. would obtain a mental health evaluation, and attend school
through the end of the school year, summer school, and subsequent mediations.




      1
      The Honorable Edward J. McManus, United States District Judge for the
Northern District of Iowa, now deceased.

                                         -2-
       After the May 2014 mediation, Mrs. Nelson began to inquire about online
educational opportunities for C.N. At a truancy mediation in July 2014, school
officials encouraged Mrs. Nelson and C.N. to apply to the Iowa Connections
Academy, an online educational opportunity offered through the CAM Community
School District based in Anita, Iowa. Mrs. Nelson elected not to proceed with that
option, and applied instead to the Iowa Virtual Academy, an online educational
program through Clayton Ridge Community School District in Guttenberg, Iowa.

       Under Iowa law, through a process called open enrollment, parents may apply
to enroll their child in a school district other than their own. See Iowa Code § 282.18.
On July 26, 2014, Mrs. Nelson filed an open enrollment application with the Clayton
Ridge District for the 2014-2015 school year, seeking permission to enroll C.N.
outside the Charles City District. The application deadline was March 1, 2014, but
Mrs. Nelson asserted that she had “good cause” for applying late. She represented
that C.N. “was bullied, but more importantly has health issues that interfere with
attendance, PCOS & depression.”

       The superintendent of Clayton Ridge District recommended denying the
application as untimely. He expressed willingness to reconsider, if the Charles City
District recommended approval, but the Charles City superintendent also
recommended denial. He noted that the application was untimely, and that the
Charles City District had its own online classes in which C.N. could enroll.

      The Nelsons took the matter to the Charles City Board of Education, but the
Board voted in early September 2014 to deny the open enrollment application. The
Nelsons then appealed to the Iowa State Board of Education under Iowa Code
§ 290.1. The State Board ruled in favor of the Nelsons in February 2015 in the open
enrollment proceedings:




                                          -3-
      [Mrs. Nelson’s] application for open enrollment was the direct result of
      the [Charles City District] facilitating her open enrollment application
      because they could not meet the needs of C.N. [Mrs. Nelson] did
      exactly what administration told her to do. She has a right to expect that
      the district would recommend that the board approve her request,
      especially when [Mrs. Nelson] and C.N. are involved in a criminal
      truancy prosecution initiated by Charles City.

      After the State Board approved the open enrollment application, Mrs. Nelson
sought to enroll C.N. in the online program through the Clayton Ridge District. But
the program’s representatives told Mrs. Nelson that because the school year was
already underway, C.N. would have to wait until the following school year to enroll.

       C.N. was not enrolled in school while her open enrollment application was
pending, and the Nelsons were concerned that waiting until 2015-2016 would
interfere with her education. So they decided instead to enroll C.N. at a nearby
community college to take certified nursing assistant classes. C.N. never returned to
high school, but obtained her nursing assistant certification and has pursued a General
Equivalency Diploma.

       Although the Nelsons pursued an appeal with the Iowa State Board on the
discrete issue of C.N.’s open enrollment application, they never invoked the separate
set of administrative procedures that were available to them under the IDEA, 20
U.S.C. § 1400 et seq. The IDEA sets forth a number of procedural safeguards to
ensure that children with disabilities receive a free appropriate public education. 

Under that comprehensive statutory framework, parents of a disabled child
may work with a team of qualified professionals to develop an Individualized
Education Program (“IEP”) to ensure that their child receives special education and
related services that will enable her to meet educational goals. 

The
Nelsons did not avail themselves of these IDEA procedures.



                                         -4-
       On August 11, 2015, six months after the Iowa State Board issued its decision
on the open enrollment issue, the Nelsons filed this action under § 504 of the
Rehabilitation Act, 29 U.S.C. § 794(a). The district court granted summary judgment
for Charles City District on the ground that the Nelsons had not exhausted their
administrative remedies under the IDEA, 20 U.S.C. § 1400 et seq. The court
reasoned that although the Nelsons had brought their claim under the Rehabilitation
Act, “Congress has explicitly required that the administrative remedies provided by
the IDEA must be exhausted before a Rehabilitation Act suit like this one may be
filed.” See 

We review de novo whether the Nelsons were required to
exhaust their administrative remedies under the IDEA. McCauley ex rel. J.M. v.
Francis Howell Sch. Dist., 

, 947 (8th Cir. 2017).

                                           II.

                                           A.

       Section 504 of the Rehabilitation Act provides: “No 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 benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial
assistance . . . .” 29 U.S.C. § 794(a). The Rehabilitation Act itself does not require
a plaintiff to exhaust administrative remedies before bringing an action in the district
court, but the parties dispute whether the IDEA imposes an exhaustion requirement
on the Nelsons’ claim.

       To receive federal funding under the IDEA, States must implement a number
of procedures “to ensure individuals with disabilities will have the opportunity to
obtain a free appropriate public education.” Bailey ex rel. J.B. v. Avilla R-XIII Sch.
Dist., 

, 592 (8th Cir. 2013); see 20 U.S.C. § 1412. One feature is that



                                          -5-
a party may file a complaint relating to the “identification, evaluation, or educational
placement” of a child with a disability, or the provision of a free appropriate public
education (“FAPE”) to such a child. 20 U.S.C. § 1415(b)(6)(A). A complainant
“shall have an opportunity for an impartial due process hearing, which shall be
conducted by the State educational agency or by the local educational agency,”
depending on state law. 

An aggrieved party who has exhausted
the IDEA’s administrative procedures may bring an action in the federal district court.

(i)(2)(A). Iowa has implemented administrative procedures to comply
with the requirements of the IDEA. See Iowa Admin. Code r. 281-41.1 et seq.

       A key point for our purposes is that the IDEA exhaustion requirement is not
limited to claims formally brought under the IDEA. It also applies where a plaintiff
brings a claim under the Constitution, the Americans with Disabilities Act, the
Rehabilitation Act, and other federal laws protecting children with disabilities if such
a claim “seek[s] relief that is also available under” the IDEA. 

A suit
seeks relief that is also available under the IDEA if it “seek[s] relief for the denial of
a FAPE, because that is the only ‘relief’ the IDEA makes ‘available.’” Fry v.
Napoleon Cmty. Sch., 

, 752 (2017). Thus, if the Nelsons sought relief
for the denial of a FAPE for C.N., they were required to exhaust the IDEA’s
administrative procedures before bringing their Rehabilitation Act claim.

      In Fry, the Supreme Court addressed how to determine whether a lawsuit
concerns the denial of a FAPE. The Court clarified that one need not exhaust the
IDEA’s administrative procedures whenever a suit “has some articulable connection
to the education of a child with a disability.” 

Rather the IDEA’s
exhaustion requirement applies, regardless of labels or terms used, only where the
“substance, or gravamen, of the plaintiff’s complaint” is the denial of a FAPE. 

                                           -6-
      The Nelsons pleaded that the Charles City District “failed to make reasonable
accommodations to enable C.N. to receive education free from discrimination based
upon her disabilities.” Evaluating the claim as a whole, we think the Nelsons in
substance advance a challenge to the denial of a free appropriate public education.

       The complaint objects to the Charles City District’s handling of C.N.’s open
enrollment application. The Nelsons detail how the school administrators encouraged
the Nelson family to apply to online education programs outside of the Charles City
District, and how the Nelson family relied on this encouragement. They note that the
assistant principal helped Mrs. Nelson fax her open enrollment application to the
Clayton Ridge District. They detail how the Charles City District ultimately denied
C.N.’s application despite “tacitly admitt[ing] that its on-line educational
programming could not meet C.N.’s needs.” Finally, they allege that C.N. was not
in school while her open enrollment application was pending before the Iowa State
Board of Education, and that C.N. “miss[ed] out on important educational
opportunities that cannot now be recovered.” In essence, the Nelsons claim that C.N.
was denied a FAPE due to the mishandling of her open enrollment application by the
Charles City District when its own educational programming could not meet her
needs.

       In Fry, the court posed two hypothetical questions, the answers to which may
serve as a “clue to whether the gravamen of a complaint against a school concerns the
denial of a FAPE, or instead addresses disability-based discrimination”:

      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? . . . [W]hen the answer is no, then the complaint
      probably does concern a FAPE, even if it does not explicitly say so; for



                                         -7-
      the FAPE requirement is all that explains why only a child in the school
      setting (not an adult in that setting or a child in some other) has a viable
      claim.

       In C.N.’s case, the answer to both of these questions is “no.” C.N. could not
have sued a public theater or library for the mishandling of an application to open-
enroll in online educational programming in a neighboring school district. Nor could
an adult employee of a Charles City school have brought essentially the same claim.
The Nelsons urge us to approach these hypothetical questions at a higher level of
generality, arguing that C.N. could sue a public theater or library for the “broken
promise of non-discriminatory access” to their services, and that an adult employee
could bring the same claim against a school. But Fry did not contemplate such a high
level of generality, see 

and the Nelsons’ approach—by positing that the
claim is for a “broken promise of non-discriminatory access”—would assume the
answer to the very question at issue.

       The Nelsons insist that they are not seeking relief for the denial of a FAPE, and
emphasize that they have never invoked the IDEA’s formal procedures in the past.
To be sure, if the Nelsons had invoked formal IDEA procedures, that would be
“strong evidence” that their suit was for the denial of a FAPE, 

but the
converse is not true. Whether exhaustion was required still depends on the gravamen
of the Nelsons’ complaint.

      The Nelsons also argue that the gravamen of their complaint cannot be the
denial of a FAPE because the Iowa State Board of Education already awarded them
the only educational remedy they sought—the right to enroll C.N. in online classes
outside of the Charles City District. But a parent’s “voluntary decision to remove [a



                                          -8-
child] from school, and thus seek only compensatory and punitive damages rather
than compensatory education services, does not exempt her from the exhaustion
requirement” or alter the gravamen of the complaint. 

.
Because the Nelsons’ complaint seeks relief available under the IDEA—relief for the
denial of a FAPE—they must exhaust their administrative remedies unless an
exception to the exhaustion requirement applies.

                                           B.

       There are three exceptions to the exhaustion requirement in the IDEA context:
“(1) futility, (2) ‘inability of the administrative remedies to provide adequate relief,’
and (3) ‘the establishment of an agency policy or practice of general applicability that
is contrary to law.’” 

, 721 F.3d at 594). If one of these exceptions
applies, then a plaintiff is relieved of the obligation to exhaust her administrative
remedies under the IDEA.

       The Nelsons first contend that exhaustion of administrative remedies would
have been futile. They argue that because the Charles City District never identified
C.N. as a child in need of special education services, the IDEA’s administrative
procedures were not available to them. The IDEA does require States to identify,
locate, and evaluate “[a]ll children with disabilities residing in the State . . . who are
in need of special education and related services.” 20 U.S.C. § 1412(a)(3)(A). The
statute also, however, gave the Nelsons the right to file a complaint “with respect to
any matter relating to the identification, evaluation, or educational placement of [a
child with a disability], or the provision of a free appropriate public education to such
child.” 

see Iowa Admin. Code r. 281-41.507(1). Given the
Nelsons’ position that C.N. was a child with a disability who needed educational




                                           -9-
accommodations, nothing prevented the Nelsons from filing a complaint and
invoking the full panoply of procedural safeguards available under the IDEA.2

       The administrative procedures available to the Nelsons under the IDEA were
separate and distinct from those that they did invoke after the Charles City District
denied C.N.’s open enrollment application. The Nelsons pursued a narrow
administrative remedy under Iowa Code § 290.1, which allows an aggrieved student
to appeal a decision by the local school board to deny an untimely open enrollment
application in certain circumstances. See Iowa Code § 282.18.5. Under the IDEA,
however, the Nelsons could have filed a due process complaint challenging the
State’s failure to identify C.N. as a child with a disability and to provide her with a
FAPE. See Iowa Admin. Code r. 281-41.507(1). If C.N. were found to need special
education and related services, the State would have had 30 days to hold a meeting
to develop an IEP for C.N. 

A team assigned to create an IEP
could have considered and implemented a number of special education and related
services—including, but not limited to, enrollment in a particular online
program—that would have enabled C.N. to receive a FAPE. 

The Nelsons could have invoked the IDEA’s procedures as soon as they learned that
the Charles City District had denied C.N.’s open enrollment application, or whenever
C.N.’s depression and PCOS first began to impact her education.




      2
       The Nelsons present this point as an argument for “futility” of administrative
remedies but it may be better understood as a claim about “inadequate relief,” because
they claim that the agency lacked legal authority to grant relief to a student in C.N.’s
position. See McCarthy v. Madigan, 

, 147 (1992) (“[A]n administrative
remedy may be inadequate ‘because of some doubt as to whether the agency was
empowered to grant effective relief.’”) (quoting Gibson v. Berryhill, 

,
575 n.14 (1973)).


                                         -10-
       Second, the Nelsons emphasize that they are seeking money damages, which
are not available under the IDEA, and argue that their administrative remedies are
thus inadequate. This point is not persuasive. “[T]he IDEA’s exhaustion requirement
remains the general rule, regardless of whether the administrative process offers the
particular type of relief that is being sought.” 

(quoting

). As others have explained, if the Nelsons’ position were to
prevail, then “future litigants could avoid the exhaustion requirement simply by
asking for relief that administrative authorities could not grant.” D.G. ex rel. N.B. v.
Alachua Cty. Sch. Bd., 

, 1379 (11th Cir. 1996) (per curiam). The
IDEA’s administrative procedures, moreover, could have afforded the Nelsons at least
some of the relief that they requested. The statute permits the recovery of attorney’s
fees and costs, 20 U.S.C. § 1415(i)(3)(B), and compensatory education or
reimbursement for educational services that a school district should have provided.

.

       The Nelsons counter that money damages are not simply their preferred form
of relief, but the only form of relief that could redress C.N.’s injuries. They note that
C.N. already received her educational remedy when the Iowa State Board ruled in her
favor, so she now could benefit only from damages for her diminished earning
capacity and the emotional distress that she allegedly suffered as a result of the
Charles City District’s past conduct. In determining whether a plaintiff was required
to exhaust remedies, however, we must consider the student’s status at the time of the
challenged conduct when the parents could have invoked administrative procedures.
A contrary approach, allowing a plaintiff to forego administrative remedies and then
sue later for damages after finishing school, “would frustrate the IDEA’s carefully
crafted process for the prompt resolution of grievances through interaction between
parents of disabled children and the agencies responsible for educating those
children.” Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 

, 490 (2d Cir. 2002).



                                          -11-
        The Nelsons did not pursue relief under the IDEA during the summer of 2014
or the 2014-2015 school year when they were dissatisfied with the education offered
by the Charles City District. Because they did not invoke the administrative process,
we can only speculate about educational opportunities that might have been available
to provide C.N. with a free appropriate public education. Under the statute, however,
it is the responsibility of parents to bring their grievance in that manner if they wish
to bring a lawsuit alleging the denial of a FAPE. Frustrating though it may seem to
parents struggling to manage a difficult educational situation for a child with special
needs, the law does not allow them to forego the administrative process and seek later
to recover damages to compensate for their own self-help remedies.

                                   *       *       *

      The judgment of the district court is affirmed.
                     ______________________________




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