B. v. Jefferson Parish School Board

Case: 22-30139 Document: 00516768262 Page: 1 Date Filed: 05/30/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

May 30, 2023

No. 22-30139

Lyle W. Cayce

____________

Clerk

S.B., on behalf of her minor daughter, S.B.,

Plaintiff—Appellant,

versus

Jefferson Parish School Board; Christi Rome; Janine

Rowell; Lesley Nick,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:21-CV-217

______________________________

Before Jolly, Haynes, and Graves, Circuit Judges.

Per Curiam: *

This is a civil rights action in which S.B., an eleven-year-old girl with

autism, alleges disability discrimination and violations of her constitutional

rights against Jefferson Parish School Board (“JPSB”), Schneckenburger El-

ementary School, Principal Christi Rome, her teacher Janine Rowell, and

paraprofessional Lesley Nick after suffering disciplinary corporal punish-

ment. S.B. appeals the district court’s: (A) dismissal of her disparate

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-30139 Document: 00516768262 Page: 2 Date Filed: 05/30/2023

No. 22-30139

treatment discrimination claims under § 504 of the Rehabilitation Act and

Title II of the Americans with Disabilities Act (“ADA”); (B) dismissal of her

claims under 42 U.S.C. § 1983 for violations of her substantive due process

and equal protection rights; and (C) conclusion that her failure to properly

exhaust her administrative remedies under the Individuals with Disabilities

Education Act (“IDEA”) barred her reasonable accommodation claims un-

der the Rehabilitation Act and the ADA. For the reasons set forth below, we

AFFIRM.

I.

S.B. attended Walter Schneckenburger Elementary School, a public

school in Kenner, Louisiana, operated by JPSB. Because of her autism, S.B.

occasionally exhibits inappropriate conduct, such as pinching and kicking.

She is taught by a special education teacher and is shadowed at school by a

“special needs paraprofessional” or “SNP.”

S.B.’s lawsuit stems from two incidents. The first occurred on

February 7, 2020, during a therapy session with a behavioral technician in

Janine Rowell’s class. During the session, S.B. refused to clean up puzzle

pieces and kicked at the technician when she tried to help. Rowell then

slapped S.B.’s wrists and scolded her for kicking, stating “No, ma’am! No

kicking!”

The behavioral technician reported the incident to the principal,

Christi Rome, who later obtained signed statements from two SNPs who

were in the classroom. 1 S.B. alleges that Rowell was not formally

reprimanded for the incident but instead transferred to another school.

_____________________

1

One said she witnessed Rowell grab S.B.’s wrists but did not witness any slapping.

The other SNP said she witnessed Rowell slapping S.B.’s wrists. This SNP also stated that

she had witnessed Rowell slapping S.B.’s wrists in this same manner two weeks prior.

2

Case: 22-30139 Document: 00516768262 Page: 3 Date Filed: 05/30/2023

No. 22-30139

The second incident occurred approximately nine months later. S.B.

was working with her behavioral technician on spelling, and SNP Lesley Nick

was assisting S.B. At some point during the session, S.B. reached out and

pinched Nick’s neck. In response, Nick grabbed S.B.’s hand and slapped the

top of it, saying, “We do not pinch our friends!” According to S.B., the

special education teacher assigned to the classroom that day immediately

reported the incident to Rome. JPSB did not reprimand Nick but instead

transferred her to another school.

On February 3, 2021, S.B., through her mother, sued JPSB, Walter

Schneckenburger Elementary School, Rome, Rowell, and Nick (collectively

the “Defendants”). S.B. alleges claims under 42 U.S.C. § 1983 against all of

the Defendants for violations of her substantive due process and equal

protection rights. Additionally, she asserts claims under 42 U.S.C. § 1983

against JPSB and Rome for failure to train. S.B. further alleges disparate

treatment discrimination claims under the Rehabilitation Act and Title II of

the ADA. Lastly, she alleges state law claims of battery, negligence, and

violations of Louisiana’s state disability discrimination laws.

Defendants moved to dismiss the Complaint, arguing that S.B. failed

to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

The district court granted these motions, concluding that the Complaint

failed to state a claim under federal law and declined to exercise supplemental

jurisdiction over the state-law claims. Relevant here, the district court

concluded that S.B. failed to state a substantive due process claim because

“Louisiana provides adequate post-punishment remedies for this type of

harm.”

The district court also dismissed her discrimination claims, finding

that S.B. had not pleaded any specific facts that permit an inference that any

of the Defendants were motivated by her disability, nor did she plead that

3

Case: 22-30139 Document: 00516768262 Page: 4 Date Filed: 05/30/2023

No. 22-30139

another child, either non-disabled or with a different disability, had also

misbehaved and that Nick or Rowell did not discipline them.

In an attempt to cure these defects, S.B. moved to amend her

complaint. The proposed Second Amended Complaint alleges that “Nick

and Rowell have supervised other students without disabilities or with

different disabilities who were acting inappropriately or violently” but “did

not slap any of those students.” Additionally, S.B. has introduced a new

argument, contending that the Defendants did not make reasonable

accommodations for her disability as required by the Rehabilitation Act and

the ADA.

The district court referred the motion to a magistrate judge. The

magistrate judge recommended that the district court deny the motion to

amend as futile. With respect to S.B.’s reasonable-accommodation claims,

the magistrate judge did not consider their plausibility because she concluded

that S.B. needed to administratively exhaust them under the IDEA since

these claims were a challenge to S.B.’s right to a free and appropriate public

education (“FAPE”).

S.B. raised objections to the magistrate’s recommendation, claiming

that the exhaustion defense was not a jurisdictional matter and that JPSB had

waived the defense. S.B. did not prevail on any of these arguments, and the

district court entered a final judgment. S.B. now appeals.

II.

This court reviews a district court’s dismissal of a complaint de novo.

Innova Hosp. San Antonio, L.P. v. Blue Cross & Blue Shield of Ga., Inc., 892

F.3d 719, 726 (5th Cir. 2018). It must “accept all well-pleaded facts as true

and view those facts in the light most favorable to the plaintiff.” Richardson

v. Axion Logistics, L.L.C., 780 F.3d 304, 304–05 (5th Cir. 2015) (quoting

Montoya v. FedEx Ground Package Sys., Inc., 614 F.3d 145, 146 (5th Cir.

2010)). But it need not accept as true a legal conclusion unsupported by fact.

4

Case: 22-30139 Document: 00516768262 Page: 5 Date Filed: 05/30/2023

No. 22-30139

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, to survive a motion to

dismiss, “a complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Gonzalez v. Kay,

577 F.3d 600, 603 (5th Cir. 2009) (citations omitted) (internal quotations

omitted).

Generally, we review the denial of a motion to amend for abuse of

discretion. Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 347 (5th Cir.

2008). “A district court abuses its discretion if it: (1) relies on clearly

erroneous factual findings; (2) relies on erroneous conclusions of law; or (3)

misapplies the law to the facts.” Villarreal v. Wells Fargo Bank, N.A., 814

F.3d 763, 767 (5th Cir. 2016) (quoting Priester v. JP Morgan Chase Bank, N.A.,

708 F.3d 667, 672 (5th Cir. 2013)). However, when as here, the district court

denies leave based solely on futility, this court applies a de novo standard of

review “identical, in practice, to the standard used for reviewing a dismissal

under Rule 12(b)(6).” City of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148,

152 (5th Cir. 2010).

III.

A.

First, S.B. argues that the district court erred in dismissing her § 504

and ADA claims. We disagree.

The Rehabilitation Act and the ADA both prohibit discrimination

against qualified individuals with disabilities; they employ many of the same

legal standards and offer the same remedies. See Kemp v. Holder, 610 F.3d

231, 234 (5th Cir. 2010). While § 504 of the Rehabilitation Act applies to fed-

erally funded programs and activities, Title II of the ADA only applies to pub-

lic entities. Id. “The only material difference between the two provisions lies

in their respective causation requirements.” Bennett-Nelson v. La. Bd. of Re-

gents, 431 F.3d 448, 454 (5th Cir. 2005) (citation omitted).

5

Case: 22-30139 Document: 00516768262 Page: 6 Date Filed: 05/30/2023

No. 22-30139

Section 504 prohibits discrimination “solely by reason of” a person’s

disability, whereas Title II of the ADA provides that “discrimination need

not be the sole reason” for the adverse action or exclusion but rather “a mo-

tivating factor.” Pinkerton v. Spellings, 529 F.3d 513, 516–19 (5th Cir. 2008).

Both the ADA and § 504 require the plaintiff to establish that: (1) she is a

qualified individual with a disability within the meaning of § 504 or the ADA;

(2) she was excluded from participation in, or was denied benefits of, ser-

vices, programs, or activities for which the school district is responsible; (3)

her exclusion, denial of benefits, or discrimination was by reason of her disa-

bility; and (4) the exclusion, denial of benefits, or discrimination was inten-

tional. Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir.

2004). At this stage, S.B. must plead facts making it “plausible that [s]he was

discriminated against ‘because of’”—but not necessarily solely because of—

her disability. Olivarez v. T-Mobile USA, Inc., 997 F.3d 595, 601 (5th Cir.

2021) (quoting Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 767 (5th

Cir. 2019)).

S.B. argues that the district court erred in dismissing her claims be-

cause it improperly applied a summary-judgment standard at the motion to

dismiss stage. Specifically, she argues that it’s not necessary that she identify

in her complaint other students with similar disabilities or different disabili-

ties who were treated more favorably. Instead, she argues that she only needs

to show that she was treated less favorably because of her disability.

Not so. To be sure, we have held that a plaintiff need not allege a

comparator at the pleading stage in order to advance her discrimination

claims under the ADA and § 504. See Pickett v. Texas Tech Univ. Health Scis.

Ctr., 37 F.4th 1013, 1019 (5th Cir. 2022). However, the district court’s

decision did not hinge on this premise. Instead, the district court specifically

found that S.B. had not pleaded any specific facts that would suggest any of

the Defendants were motivated by her disability. After reviewing the briefs

6

Case: 22-30139 Document: 00516768262 Page: 7 Date Filed: 05/30/2023

No. 22-30139

and relevant portions of the record, we agree with the district court that

S.B.’s Complaint is insufficient to support a claim of discrimination. It

consists of two separate incidents in which S.B. behaved violently toward her

instructors, who in turn resorted to physical discipline. We have dismissed

comparable allegations.

In T.O. v. Fort Bend Indep. Sch. Dist., we affirmed the dismissal of the

plaintiffs’ ADA and § 504 claims after a teacher grabbed a disabled student

trying to re-enter a classroom by the neck, threw him to the floor, and held

him in a chokehold for several minutes. 2 F.4th 407, 412–18 (5th Cir. 2021),

cert. denied, 142 S. Ct. 2811 (2022), reh’g denied, 143 S. Ct. 60 (2022). During

the incident, the teacher yelled at the student that he “had hit the wrong

one” and “needed to keep his hands to himself.” Id. at 412. The plaintiffs

alleged that the teacher intervened because she was “angered by T.O.’s dis-

abilities and that he was being treated in compliance with his Behavioral In-

tervention Plan” and that she was “motivated by . . . prejudicial animus to

his disabilities.” Id. at 418 n.44. However, we disagreed, noting that the

amended complaint lacked any factual allegations that permit the inference

that the defendants’ actions were “‘by reason of his disability’—an essential

element of a discrimination claim.” Id. at 418.

This case is no different from T.O. Although S.B.’s autism was the

root cause of her classroom outbursts, it cannot be inferred that Rowell’s and

Nick’s reactions were influenced by her disability. Rather, these claims sug-

gest that S.B. wasn’t disciplined due to her disability but to address her dis-

ruptive conduct in class. Therefore, punishing S.B. for her disruptive behav-

ior is not the same as treating her differently due to her disability. Conse-

quently, we affirm.

B.

Next, S.B. challenges the dismissal of her claims under 42 U.S.C.

§ 1983. To state a claim under § 1983, a plaintiff must allege the violation of

7

Case: 22-30139 Document: 00516768262 Page: 8 Date Filed: 05/30/2023

No. 22-30139

a right secured by the Constitution and laws of the United States and must

show that the alleged deprivation was committed by a person acting under

the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); see Biliski v.

Harborth, 55 F.3d 160, 162 (5th Cir. 1995). S.B. claims that: (1) the Defend-

ants discriminated against her on account of her disability in violation of the

Equal Protection Clause of the Fourteenth Amendment; (2) the Defendants

violated her right to be free from state-sanctioned harm to her bodily integrity

in violation of the Due Process Clause of the Fourteenth Amendment; and

(3) JPSB and Rome failed to train Schneckenburger Elementary staff on how

to handle these incidents. We address each in turn.

1. Equal Protection

The Equal Protection Clause of the Fourteenth Amendment requires

the government to treat all similarly situated people alike. U.S. Const.

Amend. XIV; City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 439

(1985) (citations omitted). A plaintiff may bring a cause of action for violation

of his right to equal protection under § 1983. Southard v. Tex. Bd. of Criminal

Justice, 114 F.3d 539, 550 (5th Cir. 1997). Here, to succeed on a “class of

one” theory, S.B. “must establish (1) [she was] intentionally treated differ-

ently from others similarly situated and (2) there was no rational basis for any

such difference.” Wilson v. Birnberg, 667 F.3d 591, 599 (5th Cir. 2012) (inter-

nal quotation marks omitted).

S.B.’s equal protection claim fails for similar reasons as her ADA and

§ 504 claims. The facts that S.B. alleges simply do not support an inference

that she was treated differently because of her disability. Therefore, the Com-

plaint fails to state a claim, and we affirm the district court’s holding that it

fails.

2. Substantive Due Process

Corporal punishment in public schools constitutes a deprivation of

substantive due process “when it is arbitrary, capricious, or wholly unrelated

8

Case: 22-30139 Document: 00516768262 Page: 9 Date Filed: 05/30/2023

No. 22-30139

to the legitimate state goal of maintaining an atmosphere conducive to learn-

ing.” Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 875 (5th Cir. 2000) (quot-

ing Fee v. Herndon, 900 F.2d 804, 808 (5th Cir. 1990)). However, we have

repeatedly held that “as long as the state provides an adequate remedy, a

public school student cannot state a claim for denial of substantive due pro-

cess through excessive corporal punishment.” T.O., 2 F.4th at 414 (citation

omitted); see also Fee, 900 F.2d at 808 (“Specifically, states that affirmatively

proscribe and remedy mistreatment of students by educators do not, by defi-

nition, act ‘arbitrarily,’ a necessary predicate for substantive due process re-

lief.”).

Under this line of cases, our court has “dismissed substantive due pro-

cess claims (1) when a student was instructed to perform excessive physical

exercise as a punishment for talking to a friend; (2) when a police officer

slammed a student to the ground and dragged him along the floor after the

student disrupted class; (3) when a teacher threatened a student, threw him

against a wall, and choked him after the student questioned the teacher’s di-

rective; (4) when an aide grabbed, shoved, and kicked a disabled student for

sliding a compact disc across a table; and (5) when a principal hit a student

with a wooden paddle for skipping class.” T.O., 2 F.4th at 414 (collecting

cases).

S.B. attempts to side-step these cases by arguing that Louisiana law

explicitly prohibits the use of corporal punishment on children diagnosed

with autism. 2 Consequently, she posits that her claim stands apart from the

rest, because the State has made it clear that striking children with autism

serves no legitimate educational goal. However, this argument is unavailing.

_____________________

2

Louisiana law provides that “no form of corporal punishment shall be

administered to a student with an exceptionality,” which includes “slapping.” La. Rev.

Stat. § 17:416.1(B)(2). Louisiana law further defines autism as an “exceptionality.” See

§ 17:1942(B).

9

Case: 22-30139 Document: 00516768262 Page: 10 Date Filed: 05/30/2023

No. 22-30139

Under our precedent, the State is only required to demonstrate that there is

a system in place that allows for reasonable disciplinary measures and offers

avenues for recourse after punishment has been administered. Fee, 900 F.2d

at 809 (concluding that the relevant inquiry is whether the State “author-

ize[s] only reasonable discipline” and “provide[s] post-punishment relief”

from the departures of its laws). Having already found that Louisiana pro-

scribes and remedies mistreatment of students by educators, see Coleman v.

Franklin Parish School Bd., 702 F.2d 74, 76 (5th Cir. 1983), we must also find

that as a matter of law, the act of slapping S.B. on the hand or wrist did not

infringe upon her substantive due process rights. 3

Other courts have scrutinized these decisions. See, e.g., Neal ex rel.

Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069, 1075 n.2 (11th Cir. 2000);

P.B. v. Koch, 96 F.3d 1298, 1302 (9th Cir. 1996). Members of this court have

also raised concerns. See T.O., 2 F.4th at 419 (Wiener & Costa, JJ., concur-

ring); Moore, 233 F.3d at 877 (Wiener, J., concurring); Ingraham v. Wright,

525 F.2d 909, 924 (5th Cir. 1976) (Rives, J., dissenting) (en banc). But despite

the criticism, these decisions have yet to be overturned and they remain bind-

ing in our circuit. Because we are bound by our precedent, we must affirm.

3. Failure to Train or Supervise

S.B.’s final theory of recovery under § 1983 rests on an allegation that

JPSB and Rome failed to train or properly supervise Schneckenburger Ele-

mentary personnel. To make out this claim, S.B. must show that (1) the mu-

nicipality’s training policy or procedure was inadequate; (2) the inadequate

training policy was a “moving force” in causing a violation of the plaintiff’s

_____________________

3

S.B. also contends that the Supreme Court has established that a plaintiff can

utilize § 1983 without regard to any state-tort remedy that may exist. However, as S.B.

acknowledges, this argument is explicitly foreclosed by our caselaw. See Cunningham v.

Beavers, 858 F.2d 269, 272 (5th Cir. 1988).

10

Case: 22-30139 Document: 00516768262 Page: 11 Date Filed: 05/30/2023

No. 22-30139

rights; and (3) the municipality was deliberately indifferent in adopting its

training policy. Valle v. City of Houston, 613 F.3d 536, 544 (5th Cir. 2010).

Because our precedent operates as a bar to all claims against the De-

fendants, there is no underlying constitutional violation. Without a constitu-

tional violation, there can be no liability under § 1983 for failure to train. See

Shields v. Twiss, 389 F.3d 142, 151 (5th Cir. 2004). Therefore, this claim was

properly dismissed.

C.

S.B. lastly contends that the district court erred by denying her leave

to amend her complaint. She argues that the exhaustion requirement under

the IDEA is simply a procedural rule and that any objections related to it were

waived. Additionally, S.B. argues that the failure-to-accommodate claims are

not FAPE challenges that require exhaustion.

The issue of whether exhaustion under the IDEA constitutes a

jurisdictional prerequisite has yet to be conclusively determined by our

circuit. Logan v. Morris Jeff Cmty. Sch., No. 21-30258, 2021 WL 4451980, at

*2 (5th Cir. Sept. 28, 2021) (per curiam) (explaining that “we have not yet

decided whether a failure to exhaust under IDEA deprives courts of subject

matter jurisdiction or is instead a claim-processing requirement which could

be forfeited by the party seeking to assert it”); T. B. ex rel. Bell v. Nw. Indep.

Sch. Dist., 980 F.3d 1047, 1051 n.2 (5th Cir. 2020) (“This circuit has not yet

determined whether exhaustion under the IDEA is a jurisdictional

requirement.”); Gardner v. Sch. Bd. Caddo Par., 958 F.2d 108, 112 (5th Cir.

1992) (“We do not decide whether exhaustion is a jurisdictional

requirement.”).

11

Case: 22-30139 Document: 00516768262 Page: 12 Date Filed: 05/30/2023

No. 22-30139

Here, however, this issue is inconsequential. Contrary to S.B.’s

assertions, 4 JPSB promptly raised its exhaustion argument. The district court

evaluated the failure-to-exhaust argument solely as a jurisdictional claim and

dismissed it accordingly. Thus, “we need not take sides in this dispute,”

because the result would be the same whether we consider exhaustion to be

a claim-processing rule or a jurisdictional mandate. Pacheco v. Mineta, 448

F.3d 783, 788 n.7 (5th Cir. 2006).

We thus consider whether the district court erred in finding that the

failure-to-accommodate claims that S.B. seeks leave to add must be

administratively exhausted. It did not.

Under the IDEA, “before the filing of a civil action under [federal law]

seeking relief that is also available under [the IDEA], the [IDEA’s

administrative procedures] shall be exhausted to the same extent as would be

required had the action been brought under [the IDEA].” 20 U.S.C.

§ 1415(l). If the gravamen of a complaint brought under federal law is the

denial of a FAPE, administrative exhaustion is required. Fry v. Napoleon

Cmty. Schs., 137 S. Ct. 743, 748 (2017). To answer this question, we must

address two additional questions. See Reyes v. Manor Indep. Sch. Dist., 850

F.3d 251, 257 (5th Cir. 2017). “First, could the plaintiff have brought the

same claim if the alleged conduct had occurred at a public facility that was

_____________________

4

S.B. argues that JPSB waived its exhaustion defense by failing to plead the defense

in its first responsive pleading. However, as we have previously held, “an affirmative

defense is not waived if the defendant ‘raised the issue at a pragmatically sufficient time

and [the plaintiff] was not prejudiced in its ability to respond.’” Pasco v. Knoblauch, 566

F.3d 572, 577 (5th Cir. 2009) (quoting Allied Chem. Corp. v. Mackay, 695 F.2d 854, 856 (5th

Cir. 1983)). That is what we have here. In this case, JPSB raised a timely exhaustion defense

in its Motion to Dismiss the First Amended Complaint. Additionally, there is no indication

that S.B. has been negatively impacted by JPSB’s initial failure to include this affirmative

defense in its response. As a result, S.B.’s argument lacks merit.

12

Case: 22-30139 Document: 00516768262 Page: 13 Date Filed: 05/30/2023

No. 22-30139

not a school? Second, could a non-student at the school have brought the

same claim?” Id. (citing Fry, 137 S. Ct. at 747).

Looking at S.B.’s proposed Second Amended Complaint, the answer

to both hypothetical questions is “no.” The Complaint alleges that S.B. was

deprived of unspecified accommodations due to her autism and that Nick and

Rowell failed to use common sense tactics to calm S.B. during the two

incidents. Thus, as the district court correctly noted: “[T]he gist of

plaintiff’s failure-to-accommodate allegations are that JPSB failed to either

implement or enforce a protocol for de-escalation, in situations where faculty

or staff were dealing with an autistic student who acted out in the course of

instruction.”

Under these facts, S.B. would not be entitled to a claim for failure to

provide reasonable accommodations in a public theater or library, as these

establishments are not obligated to provide a trained and supervised aide or

teacher to accommodate a learning disability. See Heston v. Austin Indep. Sch.

Dist., 816 F. App’x 977, 980 (5th Cir. 2020). Similarly, a visitor to a school

would not have a claim under the ADA or Rehabilitation Act for the same

reason. Id. Consequently, the crux of the complaint lies within the purview

of the IDEA. So S.B.’s Complaint is subject to the IDEA’s exhaustion re-

quirement.

S.B. argues that exhaustion would be futile because hearing officers in

Louisiana have no authority over anything other than IDEA assertions, and

IDEA proceedings cannot remedy physical injuries or simple discrimination.

However, this argument is unpersuasive. Exhaustion under IDEA refers to

“relief for the events, condition, or consequences of which the person

complains, not necessarily relief of the kind the person prefers.” McMillen v.

New Caney Indep. Sch. Dist., 939 F.3d 640, 648 (5th Cir. 2019), cert. denied,

140 S. Ct. 2803 (2020). The preference is to solve disputes by providing the

student with their promised education, not by awarding damages years after

13

Case: 22-30139 Document: 00516768262 Page: 14 Date Filed: 05/30/2023

No. 22-30139

the problem arises in the classroom. See id. Therefore, S.B. has not

demonstrated that seeking such remedies would have been futile.

As exhaustion was necessary in this case and has not been completed,

we affirm the decision of the district court dismissing the action without

prejudice.

IV.

For the above reasons, the judgment of the district court is

AFFIRMED.

14