USCA4 Appeal: 21-1596 Doc: 47 Filed: 05/26/2023 Pg: 1 of 10

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-1596

Z.W., a minor, by and through his parent and guardian, David Warner; DAVID WARNER,

Plaintiffs - Appellants,

v.

HORRY COUNTY SCHOOL DISTRICT,

Defendant - Appellee,

and

DOES 1-10.

Defendant.

Appeal from the United States District Court for the District of South Carolina, at Florence. Joseph Dawson, III, District Judge. (4:20-cv-00931-JD)

Argued: March 8, 2023 Decided: May 26, 2023

Before WYNN, HARRIS, and HEYTENS, Circuit Judges.

Reversed and remanded by published opinion. Judge Heytens wrote the opinion, in which Judge Wynn and Judge Harris joined. USCA4 Appeal: 21-1596 Doc: 47 Filed: 05/26/2023 Pg: 2 of 10

ARGUED: Mary Skahan Willis, ETHRIDGE LAW GROUP, LLC, Mount Pleasant, South Carolina, for Appellants. Kevin Alan Hall, WOMBLE BOND DICKINSON (US) LLP, Columbia, South Carolina, for Appellee. ON BRIEF: R. Michael Ethridge, ETHRIDGE LAW GROUP, LLC, Mount Pleasant, South Carolina, for Appellants. M. Todd Carroll, Bryant S. Caldwell, WOMBLE BOND DICKINSON (US) LLP, Columbia, South Carolina, for Appellee.

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TOBY HEYTENS, Circuit Judge:

This case asks whether a student with disabilities had to exhaust state administrative

remedies before filing a disability discrimination suit against a school district. Concluding

the answer is “no,” we reverse the district court’s dismissal of the student’s complaint and

remand for further proceedings.

I.

The Individuals with Disabilities Education Act (IDEA) and its implementing

regulations promise students with disabilities a “free appropriate public education” tailored

to their individual needs.

(d). The IDEA also grants various procedural

protections to parents, including “the right to bring a civil action” to address violations of

the statute. § 1415(i)(2)(A). Before suing, however, a parent generally must exhaust state

administrative remedies. See MM v. School Dist. of Greenville Cnty.,

, 535–

36 (4th Cir. 2002).

The IDEA is not the only federal statute that protects students with disabilities from

unfair treatment. Title II of the Americans with Disabilities Act (ADA) forbids any “public

entity” (including a school) from excluding, denying services to, or discriminating against

any “qualified individual with a disability.”

. The Rehabilitation Act

imposes similar restrictions on “any program or activity receiving Federal financial

assistance” (including schools).

(a). Unlike the IDEA, neither the ADA nor

the Rehabilitation Act requires plaintiffs to exhaust administrative remedies before suing

non-federal entities. See

(a), 35.172(d) (ADA); Williams v. Milwaukee

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Health Servs., Inc.,

, 770–71 (7th Cir. 2013) (citing 29 U.S.C. § 794a(a)(2))

(Rehabilitation Act).

This case involves the interaction between these three statutes, specifically the

question of when a plaintiff who is ostensibly suing under the ADA, the Rehabilitation Act,

or both—but who does not invoke the IDEA—must nonetheless exhaust administrative

remedies. Congress addressed that question in

(l), a provision designed

to “overturn[]” a Supreme Court decision that broadly precluded ADA and Rehabilitation

Act claims seeking to “challenge the adequacy of [a child’s] education.” Fry v. Napoleon

Cmty. Schs.,

, 160–61 (2017) (discussing Smith v. Robinson,

(1984)).

Section 1415(l) “reaffirms the viability of federal statutes like the ADA or

Rehabilitation Act as separate vehicles” for vindicating a child’s rights, even in a school

environment. Fry,

(brackets and quotation marks omitted). It does so by

stating that “[n]othing in” the IDEA “shall be construed to restrict or limit the rights,

procedures, and remedies available under” the ADA, the Rehabilitation Act, or other

“Federal laws protecting the rights of children with disabilities.”

(l). For

that reason, “the IDEA does not prevent a plaintiff from asserting claims under such laws

even if . . . those claims allege the denial of an appropriate public education (much as an

IDEA claim would).” Fry,

.

At the same time, Section 1415(l) “imposes a limit on that ‘anything goes’ regime,

in the form of an exhaustion provision.” Fry,

. Before a plaintiff may file

“a civil action” under the ADA or the Rehabilitation Act “seeking relief that is also

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available under” the IDEA, the plaintiff must “exhaust[]” the IDEA’s administrative

procedures “to the same extent as would be required had the action been brought under”

the IDEA.

(l).

II.

This case involves a student named Z.W. In 2017, when Z.W. was in elementary

school, he was diagnosed with autism spectrum disorder, language disorder, and anxiety.

A psychologist recommended Z.W. receive Applied Behavior Analysis (ABA) therapy—

administered by a certified behavior therapist—in various settings including school,

daycare, and around his community. Z.W. had private insurance that would pay for an ABA

therapist to accompany Z.W. to school and treat him throughout the day.

Between 2017 and 2021, Z.W.’s parents asked defendant Horry County School

District at least four times to allow Z.W. to be accompanied at school by an ABA therapist,

at no cost to the school district. The school district denied the first three requests and did

not respond to the fourth.

Following these rejections, Z.W.’s father filed a three-count complaint on Z.W.’s

behalf in federal district court. Counts One and Two alleged the school district violated the

ADA and the Rehabilitation Act by refusing to accommodate Z.W.’s request to have an

ABA therapist accompany him at school. Count Three sought injunctive relief to remedy

those alleged violations. The complaint did not mention the IDEA or allege the denial of a

free appropriate public education. The district court dismissed Z.W.’s complaint “for

failure to exhaust the administrative remedies under the IDEA.” JA 139.

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III.

We begin with a procedural tangle. Relying on this Court’s non-precedential

decision in Z.G. ex rel. C.G. v. Pamlico County Public School Board of Education,

(4th Cir. 2018), the school district moved to dismiss solely under

Federal Rule of Civil Procedure 12(b)(1) on the ground that Z.W.’s failure to exhaust

administrative remedies deprived the district court of subject matter jurisdiction. Although

Z.W.’s responsive filing insisted exhaustion was not required, it neither challenged the

premise that exhaustion was a jurisdictional matter nor disputed that exhaustion could be

adjudicated via a motion to dismiss. Again citing Z.G., the district court concluded Z.W.’s

failure to exhaust meant it “lack[ed] subject matter jurisdiction to adjudicate [Z.W.’s]

claims.” JA 138 n.3.

Now comes the problem. Well after the district court’s decision—indeed, after the

appeal had been fully briefed but before oral argument—this Court issued a published

decision “hold[ing] the IDEA’s exhaustion requirement is not a jurisdictional requirement

but a claims-processing rule.” K.I. v. Durham Pub. Sch. Bd. of Educ.,

(4th Cir. 2022).

When asked about K.I. at oral argument, neither side argued we should simply

vacate and remand for further proceedings because the motion was brought under the

wrong subsection of Rule 12(b) or because the district court erred in accepting the parties’

premise that exhaustion is a jurisdictional requirement. Nor did Z.W. contend that—given

K.I.—lack of exhaustion under the IDEA is an affirmative defense, which generally cannot

be adjudicated via a motion to dismiss. Cf. Mosely v. Board of Educ. of City of Chicago,

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(7th Cir. 2006) (stating that “the earliest possible time to consider [IDEA

exhaustion] would normally be after the answer has been filed”). The parties likewise have

not pursued any of these matters since oral argument.

We need not untangle these procedural knots to resolve this appeal. Neither the

consequences of bringing a motion under the wrong rule nor the juncture at which certain

arguments may be presented are issues implicating the district court’s subject matter

jurisdiction or our own. Instead, such matters are governed solely by the Federal Rules of

Civil Procedure and court-adopted rules of judicial administration. They are thus subject

to ordinary rules of waiver and forfeiture. See United States v. Buster,

, 632

n.1 (4th Cir. 2022) (“[A]ny jurisdictional requirements found in federal rules exist by virtue

of the Constitution and statutes, not the rules themselves.” (formatting and quotation marks

omitted)). And because the parties have not raised these issues, they are forfeited.

See Stokes v. Stirling,

(4th Cir. 2023) (reaffirming a party may “forfeit[]”

a non-jurisdictional argument “by not raising it on appeal”). We thus turn to the substance

of the district court’s ruling.

IV.

The district court erred in concluding Z.W. needed to exhaust administrative

remedies under the IDEA before bringing this suit.

The school district insists exhaustion was required because Z.W.’s complaint

involves ABA therapy, and “ABA services can be available under the IDEA.” Sch. Dist.

Br. 7 (capitalization omitted). We agree ABA services can be part of the “individualized

education program” (often called an IEP) to which qualifying students with disabilities are

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entitled under the IDEA. See, e.g., Sumter Cnty. Sch. Dist. 17 v. Heffernan ex rel. TH,

(4th Cir. 2011) (describing IEP that “called for 27.5 hours per week of

ABA therapy”). But as the Supreme Court explained in Fry, that is not the relevant

question. See 580 U.S. at 171–72 (noting a wheelchair-using student whose school lacks

ramps might sue under either the ADA or the IDEA). Instead, the exhaustion inquiry

“hinges on whether a lawsuit seeks relief for the denial of ” the IDEA’s “sine qua non”: a

free appropriate public education (often called, sadly, a FAPE).

at 167–68 (emphasis

added).

In answering that question, the Supreme Court has told us to “look to the substance,

or gravamen, of the plaintiff’s complaint” to determine whether it “concerns the denial of

a FAPE, or instead addresses disability-based discrimination.” Fry,

.

The Court also identified two “hypothetical questions” that provide a “clue” on which side

of the line a given case falls.

. “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?”

“[S]econd, could an adult at the school—say,

an employee or visitor—have pressed essentially the same grievance?”

When, as here, the answer to both questions is “yes,” it is “unlikely” a complaint

“that does not expressly allege the denial of a FAPE is . . . truly about that subject.” Fry,

. The “essence” (id. at 172) of Z.W.’s beef with the school district is its refusal

to permit him to bring his privately supplied and funded ABA therapist to school with him.

Z.W. could file essentially the same claim against a library, a museum, or a summer camp.

What is more, a non-student visitor (say, a friend, sibling, or other relative) could make a

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largely identical claim against the school district if it refused to permit an ABA therapist

to accompany the visitor to Z.W.’s school.

The school district disagrees with our framing, insisting the “who pays for it”

question is “not material” and that the correct inquiry is whether Z.W. could seek to make

a public theater or library “provide” an ABA therapist. Oral Arg. 28:15–28:43. But once

again, that argument departs from how the Supreme Court approached these issues in Fry.

Fry involved parents who had “obtained a trained service dog” named Wonder to assist

their child with “various life activities” and sought permission for the dog “to join [the

child] in kindergarten.”

. The Supreme Court did not frame the issue as

whether the student could have asked a library or public theater to supply a service dog or

whether an adult visitor could have asked the school to do so. Instead, it noted “that the

Frys could have filed essentially the same complaint if a public library or theater had

refused admittance to Wonder” and “that an adult visitor to the school could have leveled

much the same charges if prevented from entering with his service dog.”

(emphasis added). So too here.

The school district’s attempt to dismiss the “who pays” question also strays from

the statutory text. When a plaintiff sues under the ADA and the Rehabilitation Act,

exhaustion is required only if the plaintiff is “seeking relief that is also available under”

the IDEA.

(l). But the only substantive right created by the IDEA is to a

“free appropriate public education,” § 1401(9) (emphasis added), and the only relief

available during the IDEA’s administrative process are measures designed to vindicate that

right, see Fry, 580 U.S. at 166–68. Because Z.W.’s complaint requests nothing that would

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be “provided at public expense . . . and without charge” to him and his parents, § 1401(9),

its “essence” or “crux” does not appear to “concern[ ] the denial of a FAPE” in either

“surface” or “substance,” Fry,

.

Finally, “the history of the[se] proceedings” does not suggest “the gravamen of

[Z.W.’s] suit is the denial of a FAPE.” Fry,

. The school district has never

suggested that Z.W. or his parents “previously invoked the IDEA’s formal procedures to

handle the dispute” about whether Z.W.’s privately financed ABA therapist could

accompany him to school, “thus starting to exhaust the [IDEA’s] remedies before switching

midstream” as part of some sort of “strategic calculation[].”

Quite the contrary: The

school district insists that accepting Z.W.’s position would allow him “to skip the IDEA’s

administrative process altogether.” Sch. Dist. Br. 23; see Oral Arg. 33:40–34:50 (counsel

for the school district asserting that Z.W. seeks to “bypass” or “sidestep” the IDEA’s

administrative process and “go straight to federal court”). Here, too, all signs indicate

Z.W.’s complaint is not a disguised IDEA claim.

* * *

We offer no opinion about whether Z.W. has valid claims under the ADA or the

Rehabilitation Act or what defenses the school district may have to them. We hold only

that the district court erred in dismissing the complaint because Z.W. failed to exhaust

administrative remedies under the IDEA. The judgment of the district court is reversed,

and the case is remanded for further proceedings consistent with this opinion.

SO ORDERED

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