In searching for a blog entry to do this week and striking out with my Lexis alert, I thought it might be interesting to see how Fry v. Napoleon Community Schools, discussed here, was playing out in the lower courts. When I did that, I came across the case of K.G. v. Bluff-Luton Community School District, decided by Judge Mark Bennett of the United States District Court for the Northern District of Iowa. If you ever have an opportunity to go to a CLE where he speaks, you will not be disappointed. He is extremely knowledgeable, funny, and says what is on his mind. As usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.



K.G. had an IEP, a functional behavior assessment, and a behavioral intervention plan (BIP). The latter stating that when behaviors escalated students would be removed and furniture would be repositioned to keep him and others safe. K.G. while in the second semester of first grade refused to cooperate when it came time to switch from drawing to writing sentences. The incident rapidly escalated from there. School personnel tried a variety of techniques to de-escalate the situation, all of which failed. At no time were the students in the classroom removed. Eventually, it got to the point where school personnel physically moved K.G. across the carpet to get him away from a desk. When they did that, K.G. said “ow, my back.” He was then taken to the school nurse and his father came to pick him up. His parents took photographs of his back either that evening or the next morning. They also took him to Mercy Medical Center where a medical professional said that the injuries were consistent with inflicted forceful dragging and consistent with partial thickness skin burn from excessive force in dragging the child on a carpeted surface. Also, it was that person’s opinion the injuries were significant and indicative of injuries beyond the normal care and discipline of a seven-year-old child. The parents offered expert opinions that K.G. now suffered from posttraumatic stress disorder and other psychological and behavioral issues as a result of the incident. Subsequently, they enrolled him in a different school district. They also brought proceedings under IDEA but abandoned them to pursue the following claims: violation of the fourth amendment and 14th amendment for excessive use of force; violation of title II of the ADA; violation of §504 of the Rehabilitation Act; common-law general negligence; battery against one of the defendants; and intentional infliction of severe emotional distress against several defendants. The school district defended on the grounds IDEA was not properly exhausted. Plaintiff claimed exhaustion was not required under Fry v. Napoleon Community Schools.


Court’s Reasoning

A.  Judge Bennett’s review of Fry

  1. Judge Bennett turned to Justice Kagan’s opinion in Fry. In particular, Judge Bennett noted her admonition that exhaustion was not necessary where the substance of the complaint was something other than the denial of IDEA’s core guarantee of a free appropriate public education.
  2. Judge Bennett notes that Justice Kagan also said that magic words are not the key, rather the substance of the complaint is the critical focus.
  3. Judge Bennett then goes on to note the two hypothetical question that Justice Kagan asks in trying to figure out whether the situation involves a free appropriate public education or something else. In particular, the two situations are: 1) could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that wasn’t a school?; and 2) could an adult at the school, say an employee or a visitor, have pressed essentially the same grievance? If both questions are answered yes, then a free appropriate public education is probably not involved.
  4. Judge Bennett goes on to note Justice Kagan’s reference to a third factor, the history of the proceedings (where the proceedings started). Did the plaintiff start with an IEP process or elsewhere? If the plaintiff started with the IEP process, a presumption is created that the suit is about a free appropriate public education.
  5. Judge Bennett also references the concurring opinion where Justice Thomas and Justice Alito agreed with the majority except for clues section because they believed those clues will have the opposite effect of providing guidance and instead are likely to confuse and lead courts astray. Justice Thomas and Justice Alito believed the hypothetical questions only made sense if one assumes no overlap between the relief available under IDEA and other federal laws. Justice Alito and Justice Thomas were also particularly bothered by the presumption of a free appropriate public education where a person starts with the IDEA process and then switches. Justice Thomas and Justice Alito were also concerned that these clues would turn into bright line tests and that courts would refuse to undertake a careful examination of the substance of the complaint and use the clues instead.


  1. Application of Fry to case


  1. While the complaint does identify parties in terms of needing or supplying special education services and having a duty to ensure equal access to a public education, those references are not about the denial of a free appropriate public education. Instead, they are allegations giving notice to the defendant of the conditions putting K.G. at risk.
  2. The IEP and the BIP are not the gravamen of the allegations of wrongfulness of the conduct in any of the six claims for relief in the complaint, and Judge Bennett goes through each of them: 1) allegations of force being contrary to his IEP and BIP are an indication of the unreasonableness of the use of force; 2) allegations of wrongfulness of one of the defendants is not that the IEP or the behavioral intervention plan was violated, but instead that the defendant acted with deliberate indifference because of inadequate training and supervision of faculty and staff in the use of force and restraints when seizing a student in special education; 3) the incident and prior incidents created a hostile educational environment in violation of title II of the ADA; 4) the allegations of negligence are all allegations unrelated and beyond the scope of a free appropriate public education; and 5) the common law claims of battery and intentional infliction of emotional distress are based upon allegations of threats or violence and physical injury and their outrageousness regardless of any requirement in the child’s IEP or BIP.
  3. Judge Bennett then turned to Justice Kagan’s clues and said that the first clue came out in favor of the plaintiff in that a person could have brought the same claim for excessive and unreasonable use of force and discrimination if the conduct had occurred at a different public facility rather than the school. The second clue also comes out in favor of the plaintiff as an employee or visitor could have brought the same grievances.
  4. The third factor, where the proceeding started, isn’t so clear as to which side it comes out on. Judge Bennett notes that the plaintiff started with the the IEP process but then abandoned it. He also notes all of the opinions in Fry mention that it is not unusual for parents to start an IEP process only to abandon it later for a variety of reasons. Accordingly, Judge Bennett notes Fry said it was important to consider whether the abandonment of the administrative proceeding was strategic or because of the realization the grievance had something to do with things other than a free appropriate public education. In Judge Bennett’s view, the claims of this case were independent of a free appropriate public education and therefore involved remedies not available under IDEA.
  5. Having decided that exhaustion was not required, Judge Bennett then proceeded to address whether the defendants were entitled to summary judgment on the various claims. In particular, he winds up: denying defendant’s motion for summary judgment on the fourth amendment claim; granting defendant’s motion for summary judgment on the 14th amendment claim based upon the facts and based upon qualified immunity; denying defendant’s motion for summary judgment on the ADA and §504 claims; denying summary judgment on the negligence claims; denying summary judgment on the battery claim; and granting summary judgment on the intentional infliction of emotional distress claim.



  1. Judge Bennett specifically notes this is a very close case and explicitly says that reasonable jurors could go either way.
  2. Judge Bennett went on to say that he recognized that the circumstances of the case were very difficult and that teachers faced increasing challenges in terms of meeting their obligation to foster learning while keeping all students safe. He goes on to say that he does not envy the job of teachers who operate under such difficult circumstances. Nor does he envy the jurors who will try to figure out what the facts show in this case. It struck me that this kind of statement was a bit unusual coming from a judge. At least, it isn’t something I see a lot of when I read opinions.
  3. I agree with Judge Bennett that Justice Kagan’s clues while well-meaning are problematic because of the tendency of this kind of thing coming from the United States Supreme Court to lead to bright line tests and, as noted by Judge Bennett, because it may well offer an easy way out for the court rather than have the court focus on the substance of the complaint in detail.
  4. I also share Judge Bennett’s concerns about the presumption associated with where does the claim start (IEP process or the courts). The points he makes are valid. Also, IDEA is a terribly complex law and a parent often does not realize that overlapping laws with different standards and different remedies exist. If one looks to the substance of the complaint in detail, I am not sure why the presumption is even necessary. Finally, the other problem with the presumption is figuring out who has the burden of proof of overcoming that presumption. That is, is it up to the defendant, along the lines of an affirmative defense, to show that the presumption of starting with IDEA prevails or is it up to the plaintiff to have to rebut that presumption? The whole presumption thing and the clues create a big mess. Again, I know Justice Kagan was just trying to be helpful.
  5. On the plaintiff’s side, where a child has an IEP, Fry puts a huge premium on really understanding how other disability discrimination laws are different and accomplish different things than IDEA. In that situation, the plaintiff’s attorney must use that knowledge to craft the complaint so as to enable the client to evade any exhaustion requirement of IDEA. Of course, Fry is a non-issue if the child has a §504 plan and not an IEP.
  6. I think it is more helpful to think about exhaustion post Fry not in terms of relief but in terms of the substance of the particular law involved and what that law tries to accomplish.