245 F. Supp.2d 401 (2003) | Cited 0 times | D. Rhode Island | February 6, 2003


This matter is before the Court on plaintiffs' objection to a Reportand Recommendation of Magistrate Judge Robert W. Lovegreen thatrecommended granting in part and denying in part defendants' motions todismiss. As set forth below, the Court adopts the magistrate judge'srecommended disposition but relies on slightly different grounds to reachthat result.


Magistrate Judge Lovegreen's report and recommendation contains a fullrecitation of the facts. For present purposes the following summarysuffices.

Plaintiffs Melissa Weber ("Weber") and her daughter Dorsey Weber("Dorsey," and collectively with Weber, the "Webers" or "Plaintiffs")formerly resided in the City of Cranston, Rhode Island, where, from 1993through 1999, Weber enrolled Dorsey in the Cranston Public School System("CPS").1 Upon enrollment, CPS declared Dorsey eligible for specialeducational services pursuant to the Individuals with DisabilitiesEducation Act ("IDEA"), 20 U.S.C. § 1400-1490. CPS premised hereligibility upon a determination that she suffered from neurologicaldeficits that included graphomotor dyspraxia (which prevents her fromperforming penmanship), mild left hemispheric brain dysfunction, andattention deficit disorder.

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In 1996, Weber revoked her consent to Dorsey's classification underIDEA and instead sought classification solely under section 504 of theRehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"), whichbroadly prohibits discrimination on the basis of disability. CPS resistedthe change, citing Dorsey's apparent success under the IDEA protocol,until 1998, when the parties agreed to declassify Dorsey under IDEA andestablish a Section 504 plan to accommodate her educational needs. Therecord does not reveal how, if at all, the Section 504 plan differedsubstantively from Dorsey's previous IDEA plans.

Soon after the reclassification, in September of 1998, Weber challengedthe efficacy and execution of the Section 504 plan. She complained that acomputer provided to Dorsey as a note-taking aid contained malfunctioningcomponents and was ill-equipped for its intended purpose. She was alsodissatisfied with the process by which the school system implemented andevaluated Dorsey's plan. After a series of unsatisfactory meetings andcommunications with school officials, Weber requested a Section 504 dueprocess hearing from CPS.

Defendant Catherine Ciarlo ("Ciarlo"), the superintendent of CPS,appointed defendant James Cofone ("Cofone"), the assistantsuperintendent, to preside over Weber's hearing, which took place June21, 1999. Weber appeared with counsel and objected to certain proceduralflaws. Specifically, Weber complained that Cofone's position with CPSrendered him ineligible to serve as an impartial hearing officer, inviolation of the regulations implementing Section 504. Moreover, Weberalleged that Cofone failed to schedule the hearing in a timely manner, incontravention of school policy, and that the procedures improperlyprohibited the creation of an audio or written transcript.

Also in June of 1999, Dorsey left the Cranston school system, aftercompleting the eleventh grade. She independently worked towards andreceived Graduate Equivalency Diplomas in June of 2000 and currentlyattends Rhode Island College.

Without pressing the merits of her case before Cofone, Weber then fileda complaint against CPS with defendant Peter McWalters ("McWalters"), theCommissioner of the Rhode Island Department of Education ("RIDE"),pursuant to R.I. Gen. Laws § 42-87-5(c) (1998).2 The complaintrequested four years of compensatory education as relief for the allegedSection 504 violations. McWalters appointed a hearing officer, PaulPontarelli ("Pontarelli"), who received evidence from the parties on fiveseparate occasions between October 5, 1999 and March 22, 2000.

Finally, on May 1, 2001, Pontarelli issued a written decision, approvedby McWalters, holding that while CPS violated Section 504 by failing toprovide procedural safeguards, a grievance procedure and an impartialhearing officer, those violations did not deprive Dorsey of a freeappropriate public education ("FAPE"). By way of relief the hearingofficer ordered CPS to adopt clear and consistent

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     procedures for processing and hearing Section 504 grievances, and toprovide ongoing Section 504 notice to parents and students, but declinedto provide the compensatory education that the Webers sought.

Accompanying Pontarelli's written decision was a document entitled"Procedural Rules for Appeals From Decisions of the Commissioner," whichdetailed the manner in which a complainant could appeal to the Board ofRegents for Elementary and Secondary Education (the "Board of Regents")from a decision of the Commissioner of Education.

Plaintiffs spurned that avenue of appeal, instead filing a complaint inthis Court against CPS, Ciarlo, Cafone (collectively, the "CranstonDefendants") and McWalters (collectively, with the Cranston Defendants,"Defendants"). The complaint asserts three causes of action: 1) denial ofprocedural due process in violation of the fourteenth amendment to theUnited States' constitution (enforced via the conduit of42 U.S.C. § 1983), Section 504 of the Rehabilitation Act, the FamilyEducation Rights and Privacy Act (20 U.S.C. § 1232g) ("FERPA"), andR.I. Gen. Laws § 42-87-2; 2) denial of a FAPE in violation of Section504; and 3) discrimination in violation of Section 504.

The Defendants moved pursuant to Rules 12(b)(1) and 12(b)(6)to dismissthe complaint on the ground that Plaintiffs failed to exhaust theiradministrative remedies by not appealing McWalters' decision to the Boardof Regents. Magistrate Judge Lovegreen recommended that this Court grantthe motion with respect to all but the due process claims against CPS,Ciarlo and Cofone stemming from their failure to provide Weber access toDorsey's educational records, and the due process claim against McWaltersfor rendering an untimely decision in the adminstrative action below.3Plaintiffs have objected to that recommendation.


I. Standard of Review

The district court conducts a de novo review of a magistrate judge'sdeterminations with respect to dispositive pretrial motions. SeeFed.R.Civ.P. 72(b). The court may accept, reject, or modify themagistrate judge's decision, receive additional evidence from theparties, or return the matter to the magistrate judge with furtherinstructions. See id.; see also 28 U.S.C. § 636(b)(1) (2000). Merelyrelying on the magistrate judge's report and recommendation isimpermissible; the district court must independently review and evaluatethe evidence that the magistrate judge received. See United States v.Raddatz, 447 U.S. 667, 675 (1980); Gioiosa v. United States, 684 F.2d 176,178 (1st Cir. 1982).

II. The Statutory Scheme

Section 504 of the Rehabilitation Act of 1973 proscribes discriminationon the basis of disability by recipients of federal funds.4

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     See 29 U.S.C. § 794(a) (2000). Both CPS and RIDE receive federal fundsand are subject to the statute's prohibition. In the academic arena,Section 504 complements the IDEA, which explicitly guarantees FAPE todisabled individuals. A review of the detailed IDEA permits a cogentdiscussion of Section 504's function as a supplemental balm for disabledstudents.


The IDEA establishes an elaborate scheme of identifying individualswith disabilities and ensuring that the responsible school authoritiesdevelop, in consultation with parents and students, an educationalprogram for the student that accounts for and addresses that student'sneeds. See Frazier v. Fairhaven School Committee, 276 F.3d 52, 58 (1stCir. 2002). Among other things, the IDEA requires schools to give parentsan opportunity to file complaints regarding "any matter relating to theidentification, evaluation, or educational placement [of] . . . or theprovision of a free appropriate public education" to a disabled child. See20 U.S.C. § 1415(b)(6) (2000). Parents who file such a complaint areentitled to an impartial due process hearing under the auspices of thestate or local educational authority, at which the presiding hearingofficer may not be an employee of the state or local educationalauthority. See 20 U.S.C. § 1415(f)(3). Upon pursuing all availableavenues of appeal at the state level, parents may turn to the federalcourts for relief. See 20 U.S.C. § 1415(i)(2)(A).

Most pertinent to the instant matter is section 1415(l), which reads inrelevant part: [n]othing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C.A. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 790 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such law seeking relief that is also available under this subchapter, the procedures under subsections (f)and (g) of this section shall be exhausted to same extent as would be required had the action been brought under this subchapter. 20 U.S.C. § 1415(1) (emphasis added).

Subsection (f) requires states to provide due process hearings toresolve complaints, while subsection (g) makes available appeals to thestate educational agency from decisions resulting from those hearings.See 20 U.S.C. § 1415(f)-(g).

Section 1415(l) thus requires a putative plaintiff to exhaust stateadministrative remedies whenever that plaintiff seeks relief that isavailable under the IDEA, even if the complaint pleads a cause of actionwholly based on a different statute. See Frazier, 276 F.3d at 59 (quotingRose v. Yeaw, 214 F.3d 206, 210 (1st Cir. 2000)). That mandate iseminently sensible. Requiring exhaustion properly funnels primaryresponsibility for educational decisions into the hands of those mostqualified to make those decisions, namely the local school authorities.See Frazier, 276 F.3d at 60-61 (citing Charlie F. v. Board of Educ.,98 F.3d 989, 992 (7th Cir. 1996)). What is more, requiring complainantsto take advantage of an existing administrative process yields a panoplyof other benefits, not the least of which is the development of a fullevidentiary record at the

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     administrative level, promoting efficiency andjudicial economy. Id. at 61; see also McKart v. United States,395 U.S. 185, 193-195 (1969).

To be sure, the IDEA is not the exclusive avenue to redress injuriesallegedly sustained by disabled students in the academic context.Congress made that clear by enacting Section 1415(l) in the wake of Smithv. Robinson, 468 U.S. 992 (1984). In Smith the Supreme Court held that aplaintiff could not recover attorney's fees in a case grounded in the EHA(an earlier enactment of the IDEA), even though the plaintiff had alsopleaded causes of action based on statutes that did permit the recovery ofsuch fees. Because Congress had devised in the EHA such an intricateframework to address the education of disabled individuals, and did notprovide for recovery of attorney's fees within that framework, the Courtreasoned that those fees were unavailable in any action grounded in theEHA. See Smith at 1020-1021.

Congress subsequently enacted section 1415(l) to emphasize that,contrary to Smith, the EHA did not restrict the "rights, procedures andremedies" available under, among other laws, the Rehabilitation Act. See20 U.S.C. § 1415(l); Weber v. Cranston School Committee, 212 F.3d 41,50 n. 9 (1st Cir. 2000). The availability of concurrent relief pursuantto statutes other than the IDEA, however, does not override the IDEA'sexhaustion requirement, which applies to all claims requesting reliefthat is available under the IDEA, whether or not they invoke thatstatute.

Section 504

In contrast to the IDEA's imposition of specific, affirmativeobligations, Section 504 blankly forbids discrimination on the basis ofdisability in any context. It is a bludgeon to the IDEA's stiletto,protecting a broader swath of the population without describing a precisemanner of compliance. Also in counterpoint to the IDEA, theRehabilitation Act does not affirmatively require exhaustion ofadministrative remedies, having adopted the procedural requirements ofTitle VI of the Civil Rights Act, which generally does not call forexhaustion. See Brennan v. King, 139 F.3d 258, 268 n. 12 (1st Cir.1998).

Notwithstanding the differences between the two statutes, courts haverecognized that in the context of education, Section 504's substantiverequirements are largely derivative of the IDEA's. See Smith, 468 U.S. at1017-18; Colin K. v. Schmidt, 715 F.2d 1,9 (1st Cir. 1983). While Section504 itself does not guarantee FAPE, its implementing regulations,promulgated by the Department of Health, Education and Welfare ("HEW")5contemporaneously with the IDEA's regulations, substantively track thetext of the IDEA itself. See Smith at 1017 n. 20. The Section 504regulations explicitly require recipients of federal funds to provideFAPE to disabled individuals. See 34 C.F.R. § 104.33(a) (2002). Theygo on to define an appropriate education as "the provision of regular orspecial education and related aids and services that (i) are designed tomeet individual educational needs of handicapped persons as adequately asthe needs of

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     nonhandicapped persons are met. . . ." See34 C.F.R. § 104.33(b).6 That definition varies slightly from theIDEA's definition of FAPE. See 20 U.S.C. § 1401(8) (2000).7

The Section 504 regulations, like the IDEA, require the establishmentof procedural mechanisms that protect the rights of students and parentsto participate in and exert influence over the educational process. Inrelation to any action "regarding the identification, evaluation, oreducational placement" of eligible individuals, parents must receivenotice, an opportunity to examine relevant records, an impartial hearingin which the parents may participate and at which they may be representedby counsel, and a review procedure. See 34 C.F.R. § 104.36 (2002).Compliance with the IDEA's procedural safeguards is one means ofsatisfying the Section 504 regulations. See id.

HEW imported the concept of FAPE in order to make the RehabilitationAct, primarily aimed at vocational training for the disabled, applicablein the education context. See Rogers v. Bennett, 873 F.2d 1387, 1390(11th Cir. 1989). Neither party has attacked the validity of thoseregulations, which have generally withstood assault. See, e.g.,Association For Retarded Citizens In Colorado v. Frazier, 517 F. Supp. 105,122-23 (D.Colo. 1981).

Rhode Island Administrative Procedures

Rhode Island law empowers the commissioner of elementary and secondaryeducation to hear appeals from any decision of a school committee or tohear any appeal relating to any matter arising under the laws relating toschools or education. See R.I. Gen. Laws § 16-39-2 (2001).Furthermore, R.I. Gen. Laws § 42-87-5(c) directs the state departmentof education to take provenance over all complaints relating todiscrimination on the basis of disability that occurs in the context ofelementary and secondary education. See R.I. Gen. Laws § 42-87-5(1998). All decisions of the commissioner of education "shall be subjectto an appeal to and review by the board of regents for elementary andsecondary education." See R.I. Gen. Laws § 16-39-3 (2002) (emphasisadded).

Rhode Island has promulgated its own set of regulations implementingthe IDEA that appear to be separate from the foregoing statutoryprocedures. See R.I. Code Reg. 08 010 002 (2002). The state has alsoapparently adopted a separate policy relating to Section 504, which hasbeen a source of contention. Plaintiffs allege that multiple andconflicting Section 504 policies were in place in 1999, and that theresulting incoherence harmed them. Before the

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     magistrate judge, counsel for the Cranston Defendants orally acknowledgedthat contradictory policies existed at that time.

A letter from RIDE's legal counsel, appended to Plaintiffs' oppositionto the motion to dismiss, suggests that in September of 1999 RIDEofficially designated the procedures laid out in R.I. Gen. Laws 16-39 asthe appropriate route for resolution of Section 504 claims.


Exhaustion and Section 504 FAPE Claims

Notwithstanding the absence of IDEA claims in the complaint, Defendantshave moved to dismiss on the ground that the Plaintiffs failed to exhausttheir administrative remedies at the state level. The Defendants arguethat because another avenue of appeal was available to Plaintiffs, andwas in fact mandatory under R.I. Gen. Laws section 16-39-3, Plaintiffswere required to pursue that appeal prior to filing suit in this Court.

Plaintiffs counter that the magistrate judge improperly applied theIDEA's exhaustion requirement, which they contend is inapplicable in thisinstance because CPS specifically declassified Dorsey under the IDEA, andshe, therefore, was not subject to its mandates. Furthermore, theyargue, exhaustion should be excused in Dorsey's case because the travelof the litigation indicates that resort to further state proceedingswould be futile.

The magistrate judge did rely on section 1415(l) as grounds fordismissing Plaintiffs' claims, reasoning that the claims all related toan alleged denial of FAPE, which is relief available under the IDEA.Despite the fact that Dorsey was not receiving IDEA services during therelevant period, there is some support for the magistrate judge'srecommendation.

The interplay of the IDEA and Section 504 is well-trodden ground,rehearsal of which is unnecessary for present purposes. Suffice it to saythat when a plaintiff pleads Section 504 claims in concert with IDEAclaims, requiring exhaustion of state administrative remedies isuncontroversial. See, e.g., Frazier, 276 F.3d 52; Charlie F. v. Board ofEduc., 98 F.3d 989, 991 (7th Cir. 1996). In close cases, however,reconciling the requirements of the two statutes can be fraught withdifficulty due to their similarities of purpose but discrepancies incoverage and design. See Smith, 468 U.S. 992, 1017-20.

The First Circuit Court of Appeals has apparently not addressed thequestion of exhaustion in a FAPE suit where a student is receiving onlySection 504 accommodations. Few courts have. Defendants rely on Benik v.Lisle Community Unit School District #202 to buttress their argument insupport of requiring exhaustion even in the absence of IDEA claims. SeeNo. 95 C 6392, 1999 U.S. Dist. LEXIS 3588 at 21-22 (N.D.Ill. March 16,1999), aff'd on other grounds by 1999 U.S. Dist. LEXIS 8007 (N.D.Ill. May14, 1999).

In Benik, a magistrate judge recommended granting summary judgment todefendants in a Section 504 suit based on the plaintiffs' failure toexhaust their administrative remedies. The district court adopted thatrecommended result but specifically disavowed the exhaustion rationale,because the magistrate judge had raised it sua sponte. See 1999 U.S.Dist. LEXIS 8007 at 10-11. Citing Seventh Circuit precedent, the districtcourt held that failure to exhaust is not a jurisdictional flaw andtherefore is subject to waiver by a party that fails to raise it. Seeid. For that reason, Benik is not particularly helpful.

More persuasive is the Eleventh Circuit's decision in Babicz v. SchoolBoard of

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     Broward County, 135 F.3d 1420 (11th Cir. 1998), cert. denied,525 U.S. 816 (1998). In Babicz, the plaintiffs filed suit against theirlocal school system for failing to provide adequate educationalopportunities to their children, who suffered from, among other things,chronic asthma, allergies, and sinusitis. The complaint allegedviolations of Section 1983, Section 504 and the Americans withDisabilities Act ("ADA"). The district court dismissed the suit forfailure to exhaust their IDEA remedies, even though the plaintiffs'children were subject only to Section 504 and not the IDEA. Affirming,the Court of Appeals rejected the Babicz' contention that they were notseeking "`relief that is available under'" the IDEA, and therefore werenot bound by § 1415(l). See 135 F.3d at 1422 n. 10.

Central to that disposition was the Babicz court's conclusion that theplaintiffs fell within the IDEA's definition of "children withdisabilities," despite plaintiffs' argument that they did need not"special education," but only "related services." Id. By virtue of being"children with disabilities," then, the plaintiffs were subject to theexhaustion requirement.

Following the Babicz court's lead, the IDEA's definition also appearsto encompass Dorsey, even though she was specifically removed from theumbrella of the IDEA services. However, no party to this action claimsthat IDEA administrative procedures were ever initiated or evenappropriate. Non-IDEA procedures generally do not satisfy the IDEA'sexhaustion requirement. See Weber v. Cranston School Committee, 212 F.3dat 53 ("The case law confirms that state and federal complaint proceduresother than the IDEA due process hearing do not suffice for exhaustionpurposes.").

Defendants seem to be asking the Court to conclude not that the IDEArequired Plaintiffs to exhaust their IDEA administrative remedies, butthat Section 504 itself independently requires exhaustion when acomplainant alleges a denial of FAPE. There is merit to theirsuggestion.

Courts may require exhaustion of remedies even where a particularstatute does not explicitly so provide. See Patsy v. Board of Regents,457 U.S. 496, 501 (1982). Statutory schemes that call for theestablishment of administrative processes are particularly susceptible tojudicial imposition of an exhaustion requirement. See Ryans v. New JerseyCommissioner for the Blind and Visually Impaired, 542 F. Supp. 841, 850(D.N.J. 1982). Requiring exhaustion effectuates congressional intent byfunneling disputes through the process for which the legislatureprovided, instead of permitting an end run around that process to thecourts.

The same considerations that underlie the IDEA's exhaustion requirementcounsel imposing that requirement on Section 504 plaintiffs seekingredress for failure to provide FAPE. Local educational authorities are ina better position than a federal court, at least in the first instance,to determine whether a student has been deprived of the free appropriatepublic education that Section 504'S regulations guarantee. Thatdetermination requires an informed evaluation of the disabled student'saccommodation plan, and the ability to recognize and remedy anydeficiencies in that plan.

The portion of the complaint at issue here essentially details adisagreement over CPS' substantive and procedural implementation ofDorsey's Section 504 plan, which is the rightful province of the localand state school authorities. Plaintiffs participated willingly in thestate administrative process that resulted in the commissioner's May 1,2001 decision denying

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     them the compensatory education that they sought.That process included an ostensibly impartial hearing for which thePlaintiffs retained counsel and presented evidence. They concede thatthey were aware that an appeal of that decision to the Board of Regentswas available, but instead chose to file a lawsuit in this Court. Becausethe purpose of requiring exhaustion in the IDEA context is equallyapplicable to the Section 504 FAPE context, relief for a violation ofSection 504 relating to the denial of FAPE is only available in thisCourt upon utilization of all available state administrativeprocedures.8 See Rogers v. Bennett, 873 F.2dat 1390.9


Finally, Plaintiffs argue that, in any event, they should not have beenrequired to exhaust their state administrative options because to do sowould have been futile. Exhaustion is indeed unnecessary if it would befutile or would result in irreparable harm to a plaintiff. See Rose v.Yeaw, 214 F.3d 206, 210-211 (1st Cir. 2000). Precisely how an appeal tothe Board of Regents would have satisfied either of those requirements isless than clear, however.

The Webers chiefly complain about the amount of time that it took forMcWalters' hearing officer to conduct the hearing and render a decision.Admittedly, that nearly fourteen months elapsed between the lastevidentiary hearing and the date of the decision is troubling. However,there is no indication that an appeal to the Board of Regents would haveconsumed a similar amount of time, or that the Board of Regents waspredisposed to deny Plaintiffs relief or without authority to grant it.Nor, most importantly, have Plaintiffs demonstrated that the delayprejudiced them or caused irreparable harm to Dorsey, who at the start ofthe commissioner's hearing had left CPS, and in fact not long thereafterbegan attending college.

Plaintiffs have also repeatedly claimed that even if they were subjectto an exhaustion requirement, they satisfied it. To the extent that thisCourt can discern their reasoning, they contend that because Pontarellifound that some Section 504 violations had occurred, they were successfuland did not need to appeal to the Board of Regents. Of course, thatargument overlooks the fact that the hearing officer also found that theextent of the violations did

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     not amount to a denial of FAPE, clearly the heart of Plaintiffs' case.

At its core, their futility claim and the ancillary argument that theydid actually exhaust their remedies comprise a substantive appeal ofMcWalters' refusal to award Plaintiffs the compensatory education theysought below. The appropriate forum for that appeal was before the Boardof Regents, from whence the Plaintiffs could have come to this Court toprosecute their Section 504 FAPE claims if dissatisfied with that body'sdecision.


For the foregoing reasons, this Court hereby adopts the magistratejudge's recommendation that defendants' motions to dismiss be grantedwith respect to: 1) the due process claims against CPS, Ciarlo, andCofone for failure to provide information regarding procedural safeguardsand for failure to conduct timely hearings; 2) the due process claimagainst McWalters for failure to provide a remedy at the administrativestage; 3) the claims for denial of FAPE against all defendants; and 4)the Section 504 discrimination claim against McWalters.

The following claims remain: 1) due process claims against CPS, Ciarloand Cofone for failure to permit Weber access to Dorsey's records,10and 2) the due process claim against McWalters for failure to render atimely decision after the administrative hearing.

Judgment shall not enter until all claims are resolved.

It is so ordered.

1. Dorsey was a minor when Plaintiffs initiated this lawsuit. Sheturned eighteen in September, 2001.

2. Section 42-87-5(c) provides: The Rhode Island Department of Education is empowered to hear all complaints relating to violations of this chapter in the area of elementary and secondary education. Those complaints shall be heard in accordance with the process set forth in chapter 39 of title 16. Chapter 87 prohibits discrimination against persons with disabilities,and includes in its definition of "discrimination" those acts prohibitedby Section 504. See R.I. Gen. Laws § 42-87-1(2) (2001).

3. The magistrate judge dismissed all counts related to FERPA on thegrounds that no private right of action exists under that statute.Plaintiffs have not directly addressed that recommendation, choosinginstead to focus solely on the question of exhaustion. In any event,objection to dismissal of the FERPA claim would be futile in light of theUnited States Supreme Court's recent ruling in Gonzaga University v.Doe, which expressly held that FERPA created no personal rights subjectto enforcement through section 1983. 536 U.S. 273 (2002).

4. The statute provides that: [n]o otherwise qualified individual with a disability . . . shall, solely by reason of his or her 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).

5. HEW is the predecessor to the Department of Education. In 1979, HEWsplit up to become the Department of Education and the Department ofHealth and Human Services. See Rogers v. Bennett, 873 F.2d 1387, 1390 n.3 (11th Cir. 1989). HEW's responsibilities under the IDEA and theRehabilitation Act shifted to the Department of Education. See20 U.S.C. § 3441 (2000).

6. The quoted subpart in full reads: (B) Appropriate education. (1)For the purposes of this subpart, the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of §§ 104.34, 104.35, and 104.36.

7. 20 U.S.C. § 1401(8) reads: (8) Free Appropriate Public Education The term "free appropriate public education" means special education and related services that — (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

8. Defendants have moved to dismiss based on Fed.R.Civ.P. 12(b)(1) and12(b)(6). Magistrate Judge Lovegreen recommended granting the motionbased on a lack of subject matter jurisdiction. At least one court ofappeals has disputed the characterization of a failure to exhaustadministrative remedies as a jurisdictional flaw. See Charlie F.,98 F.3d 989, 991. (because failure to exhaust can usually be waived bydefendants, it is not a jurisdictional issue); but see Babicz, 135 F.3dat 1421 (failure to exhaust deprives court of subject matterjurisdiction); W.B. v. Matula, 67 F.3d 484, 493 (3d Cir. 1995) (same);Hope v. Cortines, 69 F.3d 687, 688 (2d Cir. 1995) (affirming districtcourt dismissal for lack of subject matter jurisdiction). The FirstCircuit does not appear to have squarely addressed the issue, and hasaffirmed dismissals based on both Rule 12(b)(6), see Frazier, 276 F.3d 52,and Rule 12(b)(1), see Christopher W. v. Portsmouth School Committee,877 F.2d 1089 (1st Cir. 1989).

9. In describing Section 504, the Bennett court wrote, Two parallel procedures enforce these antidiscrimination regulations. First, parents are afforded certain procedural rights in a dispute with a local educational authority regarding the education of their handicapped children. See id. § 104.36. Upon exhausting these procedures, aggrieved parents can take advantage of the remedial provisions of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d-1, 2000d-2 (1982), and bring suit in federal court to remedy the alleged violation of section 504. See 29 U.S.C. § 794(a)(2) (1982).873 F.2d at 1390 (emphasis added).

10. As Magistrate Judge Lovegreen indicated, Plaintiffs have exhaustedtheir state remedies with respect to this claim, having appealed aninitial administrative decision to the Board of Regents.

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