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McMillen v. New Caney Independent School District

United States Court of Appeals, Fifth Circuit

October 2, 2019

CHRISTOPHER EDWARD MCMILLEN, an Incapacitated Person Plaintiff - Appellant
v.
NEW CANEY INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee

          Appeal from the United States District Court for the Southern District of Texas

          Before BARKSDALE, STEWART, and COSTA, Circuit Judges.

          GREGG COSTA, CIRCUIT JUDGE.

         In exchange for federal funding of special education services, schools must provide a "free appropriate public education" to students with physical or mental disabilities. 20 U.S.C. § 1412(a)(1)(A). As part of that deal, the Individual with Disabilities Education Act (IDEA) requires administrative procedures to address disputes about a disabled student's education. If those procedures do not fix the problem, parents may file a lawsuit to assert their children's rights. But the IDEA requires exhaustion of the administrative process before a suit may be filed over the denial of a free appropriate public education. See id. § 1415(i)(2)(A). The exhaustion requirement is not limited to suits enforcing the IDEA. It applies to suits under any laws that "seek[] relief that is also available under" the IDEA. Id. § 1415(1).

         We must decide whether the exhaustion requirement applies to this suit seeking damages under the Rehabilitation Act and section 1983 for a student's expulsion from high school. In answering that question, we decide for the first time in our circuit whether the IDEA's exhaustion requirement applies when the plaintiff seeks a remedy that the IDEA does not supply.

         I.

         Because this suit was dismissed at the pleading stage, we assume the following allegations to be true. Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009.

         Chris McMillen was enrolled in New Caney Independent School District from age 4 (pre-kindergarten) until early in his junior year of high school. During those years, the district developed and implemented an individualized education program (IEP) for McMillen, who had been diagnosed with autism spectrum disorder, emotional disturbance, and central-auditory-processing disorder. The program successfully managed his behavioral challenges for several years.

         McMillen's behavior worsened during his sophomore year to the point that he was threatening to harm himself and others daily. The committee overseeing McMillen's IEP met three times that year. By the middle of the year, McMillen was placed in the district's Pass Program, which is for students who "have demonstrated either serious emotional disturbance or behavior disorders" and have "not responded to less intrusive interventions."

         Despite the problems during McMillen's sophomore year, the district returned him to the regular school setting for his junior year. His IEP for his junior year abandoned measures, like participation in the Pass Program, that had proven successful. McMillen's parents complained about the changes, but New Caney refused to amend his IEP. The new plan was "woefully inadequate and intentionally indifferent" to McMillen's needs.

         McMillen's return to the traditional classroom put him in Margaret Hudman's English class. Hudman tried to "save" McMillen, in two senses of the word. She encouraged McMillen to take herbal supplements that she thought could cure his autism. She also tried to convert McMillen to Christianity, believing that if he converted his disabilities would be cured.

         About a month into the school year, Hudman gave up and tried to have McMillen expelled. She collected material that McMillen wrote during class and their informal sessions which, taken out of context, made McMillen appear dangerous. Hudman emailed these materials to school administrators, who referred the matter to the school's police department. The police arrested and charged McMillen with the felony of making a terroristic threat. Following McMillen's arrest, the district determined that he should attend an alternative campus.

         McMillen's parents eventually accepted an offer from the county attorney to drop the felony charge in exchange for their agreeing to never return McMillen to the school district. McMillen's parents believed that accepting the deal was the only option and ceased all efforts to return him to New Caney ISD.

         This lawsuit followed. The original complaint asserted claims under the IDEA as well as the Constitution and Texas law. But neither McMillen nor his parents, who were suing on McMillen's behalf before he reached 18, completed the IDEA administrative process (they only invoked some preliminary procedures early on to challenge McMillen's amended IEP). After the school district raised this failure to exhaust as a ground for dismissal, McMillen amended his complaint to remove the IDEA claim. The relevant complaint is his fourth try, which asserts a Rehabilitation Act claim and ...


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