MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, United States District Court.

Plaintiffs bring this action on behalf of their minor children, Abigail Bowden and Matthew Lyon — both of whom suffer from disabilities including autism — alleging psychological and physical abuse by teachers and/or instructional aides of the Barnstable Public Schools. Defendants moved at the outset for dismissal of the complaint for failure to exhaust the claims before the Bureau of Special Education Appeals ("BSEA") as required by the Individuals with Disabilities Education Act ("IDEA"). On August 30, 2001 I denied defendants' motion without prejudice. Defendants now ask for reconsideration of my order in light of the First Circuit's recent opinion in Frazier v. Fairhaven Sch. Comm., 276 F.3d 52 (1st Cir. Jan. 9, 2002). On further consideration, I will grant defendants' motion with respect to Counts II, III, IV, and VII. I decline, however, to disturb my ruling with respect to Counts I, V, VI, IX, X, and XII as to which I will continue to allow the parties to develop the factual record for purposes of summary judgment or trial.

I. STANDARD OF REVIEW

On a motion to dismiss, the court "must accept the complaint's allegations as true, indulging all reasonable inferences in favor of [the plaintiffs]." Kiely v. Raytheon, 105 F.3d 734, 735 (1st Cir. 1997). Dismissal of the plaintiffs' claims is proper only if "factual averments do not justify recovery on some theory adumbrated in the complaint." Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999).

II. DISCUSSION

Plaintiffs' original complaint includes twelve separate counts that boil down to six separate causes of action: 1) § 1983 violation of the Fourteenth Amendment's right to be free from intrusions into bodily integrity and right to be from discrimination on the basis of handicap (counts I, V, VI); (2) unlawful discrimination in provision of education benefits under the ADA, 42 U.S.C. § 12132 (counts II, IV, VII); (3) unlawful education discrimination under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (count III); (4) assault and battery (count IX); (5) intentional infliction of emotional distress (count X); negligence (count XI, XIII); and (6) loss of consortium (count XII). No count VIII is alleged.

A

In their original motion papers, defendants argued that plaintiffs' ADA and Rehabilitation Act claims (counts II, III, IV and VII), though not directly premised on violations of the IDEA, are subject to the IDEA's exhaustion clause as claims for which relief is available under the IDEA. The IDEA exhaustion provision states:

Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, Title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [subchapter II of the IDEA], the procedures under subsections (f) and (g) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

In Frazier, the First Circuit faced the question whether a plaintiff seeking only money damages under § 1983 for violations of rights guaranteed by the IDEA is subject to the IDEA's exhaustion requirement. The plaintiff, Kate Frazier, a young woman with learning disabilities, alleged that the school's treatment of her, its failure to provide her parents with information about their rights under § 504 of the Rehabilitation Act, and its failure to develop an IEP constituted a violation of federal law by denying her the right to a free, appropriate public education (FAPE) guaranteed by the IDEA. Frazier made three separate arguments for why her failure to exhaust should not bar her § 1983 claim, all of which the district court and First Circuit rejected.

Her first argument was one of statutory construction. She argued that she was asserting claims under § 1983, not the IDEA, and therefore that 20 U.S.C. § 1415(l) required exhaustion only if she is "seeking relief that is also available under subchapter II of the IDEA." Because she was seeking only monetary damages, a form of relief not available under the IDEA procedures in Massachusetts, she contended exhaustion was not required. In rejecting this text-based argument, the First Circuit analyzed the underlying purpose of the exhaustion requirement, which includes placing education experts at the center of the process and allowing schools and parents to work together to quickly and flexibly provide appropriate services and adjust a student's individualized education program (IEP) to better address her needs. Id. at 60-61. The court reasoned that exhaustion remained beneficial even if the administrative process couldn't grant the form of relief sought because at a minimum it provided a "factfinder versed in the educational needs of disabled children" to hear the dispute and develop a factual record, which would ultimately be helpful to a court hearing a claim for damages. Id. at 62.

The court also rejected the plaintiffs' construction of "available" on the ground that it would allow plaintiffs to bypass the administrative process simply by seeking monetary relief, or by waiting until the plaintiff has graduated and then seeking damages. Id. at 61-63. This, the court found, would undermine the mandatory nature of exhaustion and might encourage plaintiffs to wait to seek relief, a result "directly at odds" with the goals of the IDEA. Id. at 63. Instead, the court found, Congress intended the administrative procedure to be mandatory when someone alleges a violation of rights protected by the IDEA. The First Circuit analogized to the Supreme Court's recent treatment of exhaustion in the context of the Prison Litigation Reform Act (PLRA) in Booth v. Churner, 121 S.Ct. 1819 (2001), where it determined that administrative relief is "available" for exhaustion purposes if "the administrative process has authority to take some action in response to a complaint, but not the remedial action an inmate demands to the exclusion of all other forms of redress.'" Frazier, 276 F.3d at 62 (quoting Booth, 121 S.Ct. at 1822-23).

Frazier's second argument was that even if exhaustion is statutorily required, an exception applies because Frazier has graduated and therefore the administrative process cannot ameliorate her past harm. Finding this argument unpersuasive, the court cited the existence of compensatory post-graduate education, and more importantly, the fact that the issue of timing is largely within the plaintiff's control and therefore subject to strategic manipulation. Id. at 63.

Finally, Frazier argued that exhaustion would be futile because she is only seeking monetary damages which the Massachusetts Bureau of Special Education Appeals (BSEA) cannot award. The court noted that notwithstanding the fact that the BSEA can't award damages, it can still assert jurisdiction over IDEA claims that seek only monetary relief and can even enter a finding that the school system violated the student's rights. Id. at 64 n. 5. A court taking up the question of damages "would have to accord considerable respect to such a finding," id., rendering the process quite useful, rather than futile. Accordingly, the court held that "a plaintiff who alleges that local educational officials have flouted her right to a free, appropriate public education may not bring suit for money damages under 42 U.S.C. § 1983 without first exhausting the administrative process established by the Individuals with Disabilities Education Act (IDEA)." Id. at 56.

B

Defendants overstate Frazier's holding when, on their motion for reconsideration, they argue that it requires exhaustion of all plaintiffs' federal claims. The district and appellate courts in Frazier dismissed on exhaustion grounds only those claims, though framed as violations of federal law under § 1983 or of § 504 of the Rehabilitation Act of 1973, that "are . . . rooted in an alleged violation of the IDEA." 122 F. Supp.2d 104, 111 (D. Mass. 2000), aff'd, 276 F.3d at 64. In fact, claims that were not related to "a free, appropriate public education", such as violations of Title IX based on alleged sexual harassment and retaliation, were treated separately and were not subject to IDEA exhaustion. 122 F. Supp.2d at 111-14.

The IDEA does not require that all claims asserted by a disabled student for events occurring in a school setting be channeled through the IDEA's administrative procedures. Rather, Frazier holds that a plaintiff must exhaust administrative procedures with respect to any claim that asserts a violation of the right to a FAPE. In addition, Frazier suggests that a claim asserted under non-IDEA law may still be subject to the exhaustion requirement if the IDEA procedures either can provide some meaningful relief or a superior record on which the court could make its determination. The exact dimensions of the universe of claims not asserting a right to a free, appropriate public education that are still subject to IDEA exhaustion as claims "for which relief under [the IDEA] is available" remains somewhat ambiguous even after Frazier.

In counts II, III, IV, and VII plaintiffs allege unlawful discrimination in violation of their rights to an equal education under the ADA and the Rehabilitation Act. Describing their ADA and Rehabilitation Act claims in their original Opposition Motion, plaintiffs stated that their "position is that they were denied the benefits of an education because their teachers battered and otherwise abused them." Pls' Opp. to Def's Motion to Dismiss, at 24. With respect to these counts in their complaint, plaintiffs allege "[d]efendants denied the children their right to the educational benefits of the public school program and to an equal educational opportunity. . . ." Complaint, ¶¶ 43; 45; 47; 61. In other words, in these four counts, plaintiffs allege violation of their rights as disabled children to an equal education. It is precisely this right to an equal education that the IDEA protects as the right to a free, adequate public education.

Plaintiffs argue that these claims are not subject to exhaustion because the underlying allegations involve physical abuse, which is non-educational, rather than a lack of educational services. However, this distinction between educational and non-educational impediments to an equal education makes no difference. The IDEA guarantees every disabled child a free and appropriate public education. 20 U.S.C. § 1400(d)(1)(a). Since a school provides both custodial and educational services, its treatment of a student's disability will necessarily encompass both educational and non-educational services (e.g. heightened air quality standards for an asthmatic), and it may be impossible to distinguish them completely.

Moreover, the primary means by which the right to a FAPE is implemented, the child's IEP, addresses both "educational" and "non-educational" aspects of a child's school experience. The scope of the IEP, while focused primarily on academic concerns, extends to all aspects of a child's schooling, including non-academic and extracurricular activities, 20 U.S.C. § 1413(b)(iii)(II), as well as issues of behavior management and discipline. Hayes v. United Sch. Dist. No. 377, 877 F.2d 809, 813 (10th Cir. 1989).

Furthermore, the IDEA's administrative procedures encompass more than the purely educational aspects of the child's education. It provides parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child. . . ." 20 U.S.C. § 1415(b). Therefore, any aspect of the school's treatment that interferes with the provision of a free, appropriate public education is within the scope of the IDEA's administrative procedures. Since the ADA and Rehabilitation Act claims allege that defendants' physical and psychological abuse interfered with their children's right to an equal education, they are charges for which the IDEA procedures could have provided relief.

The discussion of the benefits of exhaustion in Frazier further counsels in favor of focusing on the nature of the claim, rather than the underlying allegations. Where the ultimate question is whether a disabled child was denied his/her right to an equal education — as opposed to whether a tort occurred or whether the constitutional right to bodily integrity was violated — the experience and expertise of the educational professionals participating in the IDEA process are particularly beneficial to the courts. Frazier, 276 F.3d at 60-61. Moreover, the IDEA administrative process is the means by which Congress sought to guarantee that disabled children receive appropriate educational services, and that process is mandatory. Frazier, 276 F.3d at 62. Thus, when a disabled plaintiff claims that his right to an equal (or free, appropriate public) education has been violated by the actions or policies of school personnel and administrators, it is subject to the exhaustion requirements of the IDEA.

C

Defendants' exhaustion argument does not extend to plaintiffs' § 1983 claim for violation of bodily integrity (Counts I, V, and VI) or their state tort claims (Counts IX, X, and XII). While these claims are premised on the same alleged conduct, they do not allege a FAPE violation. See Frazier, 276 F.3d at 64. Exhaustion of the IDEA administrative process would provide little benefit because it can neither provide appropriate relief nor does it offer any particular expertise. In fact, courts are the traditional and more expert arbiters of questions of tort and constitutional law. Finally, as a matter of statutory interpretation, the IDEA exhaustion provision does not apply because the tort and constitutional claims are not claims for which relief is available in any sense under the IDEA. 20 U.S.C. § 1415(l).

Conclusion

For the reasons set forth more fully above, I hereby GRANT in part and DENY in part defendants' motion to dismiss. Counts II, III, IV and VII and so much of Counts I, V, and VI as allege equal protection violations on the basis of disability are hereby dismissed.