BURMA L. COVINGTON , Natural parent and legal conservator of DAVID JASON COVINGTON v. Knox County School System

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0079P (6th Cir.)
File Name: 00a0079p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BURMA L. C OVINGTON ,
Natural parent and legal
conservator of DAVID J ASON
C OVINGTON ,
Plaintiff-Appellant.
v.
KNOX C OUNTY S CHOOL
S YSTEM; KNOX C OUNTY
BOARD OF EDUCATION ;
ALLEN M ORGAN , in his
official capacity as
Superintendent; DONNA
P ARKER, individually and in
her official capacity as
Principal; LINDA K. C ATHEY ,
individually and in her official
capacity as a Knox County
School Official; J OE M ARLIN ,
individually and in his official
capacity as a Knox County
School Official; MAUREEN
UMBEHAGEN , individually
and in her official capacity as
a Knox County School
;>

No. 99-5210

-- 1 of 8 --

2 Covington v. Knox County School
System, et al.
No. 99-5210
*The Honorable Kathleen McDonald O’Malley, United States District
Judge for the Northern District of Ohio, sitting by designation.
Official; KNOX C OUNTY ,
TENNESSEE ,
Defendants-Appellees.

1
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 98-00207—James H. Jarvis, District Judge.
Submitted: December 10, 1999
Decided and Filed: March 6, 2000
Before: BATCHELDER and MOORE, Circuit Judges;
O’MALLEY,* District Judge.
_________________
COUNSEL
ON BRIEF: Danny Paul Dyer, GENTRY, TIPTON, KIZER
& McLEMORE, Knoxville, Tennessee, Mark P. Jendrek,
Knoxville, Tennessee, for Appellant. Mary A.R. Stackhouse,
Knoxville, Tennessee, William A. Young, O’NEIL, PARKER
& WILLIAMSON, Knoxville, Tennessee, Pamela L. Reeves,
WATSON, HOLLOW & REEVES, Knoxville, Tennessee,
Robert L. Crossley, Sr., CROSSLEY LAW FIRM, Knoxville,
Tennessee, John E. Owings, KNOX COUNTY LAW
DIRECTOR’S OFFICE, Knoxville, Tennessee, for Appellees.

-- 2 of 8 --

No. 99-5210 Covington v. Knox County School
System, et al.
3
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiff-
appellant Burma Covington, acting as legal conservator for
her disabled son Jason, appeals the district court’s grant of
summary judgment for the defendants due to Covington’s
failure to exhaust her administrative remedies under the
Individuals with Disabilities Education Act (IDEA), 20
U.S.C. § 1400 et seq. Covington argues that her claim, which
alleges violations of David’s substantive due process rights by
his special education school and its officials, does not arise
under the IDEA and therefore does not require exhaustion.
She further contends that, even if her complaint falls within
the scope of the IDEA, exhaustion would be futile in the
circumstances of this case and therefore is not required.
Because we agree that exhaustion is futile when, as here,
damages are the only suitable remedy for the plaintiff’s
alleged injuries and yet damages are unavailable through the
administrative process, we REVERSE the district court’s
grant of summary judgment and REMAND for further
proceedings.
I. BACKGROUND
David Jason Covington was born on March 8, 1978, and
was a special education student at the Knoxville Adaptive
Education Center (KAEC) from 1990 until he graduated with
a special education diploma in May 1996. He suffers from
multiple mental and emotional disabilities.
Burma Covington alleges that, on several occasions
between 1990 and 1994, Jason was locked in a “time-out
room” that could only be unlocked from the outside. The
time-out room, which Covington identifies as a “disciplinary

-- 3 of 8 --

4 Covington v. Knox County School
System, et al.
No. 99-5210
1In response to the defendant’s motion for summary judgment,
Covington presented an affidavit, testifying to and incorporating all the
allegations of the complaint. Thus, the allegations of the complaint also
constitute the plaintiff’s substantive evidence on summary judgment.
measure,” is described in the complaint1 as being
approximately four feet by six feet, dark and “vault-like,”
with a concrete floor, no furniture, no heat, no ventilation, and
only one small reinforced window located at least five feet
above the floor. Covington claims that Jason was repeatedly
locked in the time-out room for several hours at a time
without supervision and was often not allowed to leave the
room for lunch. On at least one occasion, Jason was allegedly
made to disrobe before being locked in the time-out room.
Covington further alleges that on at least one occasion,
because of the lack of supervision by school officials and the
long duration of his confinement, Jason was forced to relieve
himself on the concrete floor of the room and to remain there
with his excrement for a period of time.
As a result of these incidents, Burma Covington filed an
administrative complaint with the Tennessee Department of
Education on March 17, 1994. The Department of Education
referred the complaint to the Knox County School System,
which responded to the complaint by means of a letter that
denied the allegations in part and attempted to explain the
school officials’ actions, but offered no other relief.
Covington subsequently requested a due process hearing, as
permitted by the IDEA, see 20 U.S.C. § 1415(f), describing
the reason for this request as “inappropriate discipline,
including abusive confinement in a locked time out room.”
J.A. at 77 (Letter from Gary Buchanan, att’y for pl.). Over
the next three years, this hearing and the related discovery
were repeatedly scheduled, delayed, and re-scheduled. The
record evidence suggests, and the district court found, that
Covington was largely responsible for the delays.
Although no due process hearing had yet taken place,
Covington filed a complaint in federal district court on
No. 99-5210 Covington v. Knox County School
System, et al.
13
Following Witte, Matula, and Plasencia, we therefore hold
that, while a claim for money damages does not automatically
create an exception to the exhaustion requirement of the
IDEA, in this case exhaustion would be futile because money
damages, which are unavailable through the administrative
process, are the only remedy capable of redressing Jason’s
injuries.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court
and REMAND for further proceedings.

-- 4 of 8 --

12 Covington v. Knox County School
System, et al.
No. 99-5210
education school officials, was not required to exhaust formal
administrative remedies, because the parties had already
informally agreed to provide the injured child with all
“remedies that are available under the IDEA,” see id. at 1276.
Furthermore, the Witte court noted that the relief sought for
the plaintiff’s injuries was “retrospective only” and that the
relief available under the IDEA was not well-suited to
remedying past instances of physical injury. See id.
In Jason’s case, as in Plasencia, “the condition creating the
damage has ceased,” and there is no equitable relief that
would make Jason whole. Plasencia, 29 F. Supp. 2d at 1152;
cf. Padilla v. School Dist. No. 1, 35 F. Supp. 2d 1260, 1265-
66 (D. Colo. 1999) (holding that exhaustion was not required
because the plaintiff had moved outside the school district
and the administrative officer consequently lacked the
authority to grant relief). But see N.B., 84 F.3d at 1379
(finding it irrelevant, for exhaustion purposes, that the
plaintiff “no longer attends any of the defendant school
districts”); Torrie v. Cwayna, 841 F. Supp. 1434, 1442 (W.D.
Mich. 1994) (same). Furthermore, we note that our holding
in the instant case does not conflict with our prior holding in
Doe v. Smith, 879 F.2d 1340 (6th Cir. 1989). In Doe v. Smith,
we held that parents may not avoid the state administrative
process through “the unilateral act of removing their child
from a public school.” Id. at 1343. There was no showing in
that case that following the school system’s administrative
procedure would have been futile; indeed, the relief sought by
the plaintiff in Doe v. Smith – a more appropriate educational
placement, provided at public expense – is precisely the kind
of relief that the state administrative process is equipped to
afford. See id. at 1341-42. Therefore, Doe v. Smith is
inapplicable to a case such as Covington’s, where the
administrative process would be incapable of imparting
appropriate relief due to the nature of Jason’s alleged injuries
and the fact that he has already graduated from the special
education school, not due to Covington’s unilateral act.
No. 99-5210 Covington v. Knox County School
System, et al.
5
April 3, 1998, under 42 U.S.C. § 1983, alleging violations of
Jason’s Fourth, Fifth, and Fourteenth Amendment rights and
raising state-law claims of intentional infliction of emotional
distress and false imprisonment. The complaint did not allege
violations of, or even mention, the IDEA. The defendants
moved for summary judgment. Following Hayes v. Unified
School District No. 377, 877 F.2d 809, 813-14 (10th Cir.
1989), the district court found that Covington was required to
exhaust her administrative remedies as contemplated by the
IDEA, because her complaint involved the school’s
disciplinary practices. The court stated, “It is undisputed that
the use of the ‘time-out’ room as a disciplinary measure was
a matter mentioned in the plaintiff’s IEP [Individualized
Education Program] and a matter subject to the IDEA.” J.A.
at 283 (D. Ct. Op.). The court also noted that Covington had
commenced the administrative process under the IDEA.
Finding that Covington had not exhausted her administrative
remedies and that she had failed to demonstrate that such
exhaustion would be futile, the district court granted the
defendants’ summary judgment motion and dismissed the
case without prejudice.
Covington filed a motion to alter or amend the judgment,
arguing that the district court’s opinion was based on facts not
in the record, that her cause of action does not arise under the
IDEA and therefore exhaustion was not required, that
exhaustion would be futile because the available
administrative remedies are inadequate, and that the district
court’s decision results in a violation of Jason’s equal
protection rights. The district court denied that motion
without opinion on January 13, 1999. The appellant then
filed a timely notice of appeal. In her brief, Covington raises
essentially the same issues that she raised below, with the
exception that she appears to have abandoned her Fourth
Amendment and procedural due process claims, arguing only
that the school’s actions violated Jason’s substantive due
process rights under the Fourteenth Amendment.
Furthermore, Covington argues for the first time on appeal
that requiring her to exhaust her administrative remedies

-- 5 of 8 --

6 Covington v. Knox County School
System, et al.
No. 99-5210
2The act currently known as the IDEA has had several different
names since it was first adopted in 1975, including the Education of the
Handicapped Act (EHA) and the Education of All Handicapped Children
Act (EAHCA). For the sake of consistency, we refer to the Act as “the
IDEA” throughout this opinion, even when the case cited uses one of the
Act’s former names.
would violate Jason’s Seventh Amendment right to trial by
jury.
II. ANALYSIS
A. Summary Judgment Standard
This Court reviews a district court’s grant of summary
judgment de novo. See EEOC v. Northwest Airlines, Inc.,
188 F.3d 695, 701 (6th Cir. 1999). Summary judgment
should be granted only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter
of law. See FED . R. C IV . P. 56(c); Johnson v. United States
Postal Serv., 64 F.3d 233, 236 (6th Cir. 1995). The moving
party bears the initial burden of showing the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The burden then shifts to the
nonmoving party to come forward with evidence showing that
there is a genuine issue for trial. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986). “The evidence of the
nonmovant is to be believed, and all justifiable inferences are
to be drawn in his favor.” Id. at 255.
B. The Exhaustion Requirement Under the IDEA
The IDEA provides that plaintiffs must exhaust their
administrative remedies before bringing suit in federal court
to obtain relief that is also available under the IDEA.2
See Doe v. Smith, 879 F.2d 1340, 1343-44 (6th Cir. 1989),
cert. denied, 493 U.S. 1025 (1990); Crocker v. Tennessee
Secondary Sch. Athletic Ass’n, 873 F.2d 933, 935-36 (6th Cir.
No. 99-5210 Covington v. Knox County School
System, et al.
11
7We read Covington’s complaint as putting forth only damages
claims, despite the fact that Covington also requested “a permanent
injunction enjoining Defendants from engaging in future acts of
involuntarily confining public school students in the manner described
herein.” J.A. at 17. Covington has not filed a class action, nor has she
demonstrated any other basis upon which she should be entitled to assert
the rights of other public school students to relief that would not affect
Jason. Therefore, Covington’s claim for injunctive relief does not enter
into our analysis.
KAEC has engaged in a “policy or practice” that is contrary
to law by locking children in the time-out room.
Although we agree with those courts that have decided that
a mere claim for money damages is not sufficient to render
exhaustion of administrative remedies unnecessary, we hold
that in the unique circumstances of this case – in which the
injured child has already graduated from the special education
school, his injuries are wholly in the past, and therefore
money damages are the only remedy that can make him whole
– proceeding through the state’s administrative process would
be futile and is not required before the plaintiff can file suit in
federal court.7 Thus, as one court has stated, “[a]lthough
exhaustion cannot be waived whenever a plaintiff seeks
monetary damages rather than relief that is available under the
administrative scheme, where there is no administrative
remedy for a wrong that the plaintiff has suffered, exhaustion
is futile and may be waived.” Plasencia v. California, 29 F.
Supp. 2d 1145, 1150 (C.D. Cal. 1998) (citing W.B. v. Matula,
67 F.3d 484 (3d Cir. 1995)). See also Matula, 67 F.3d at 495-
96 (holding that exhaustion is not required for plaintiffs
seeking money damages, because damages are unavailable
through the administrative process, and because all other
relief available to the plaintiffs under the IDEA had already
been provided through a settlement agreement). Similarly,
the United States Court of Appeals for the Ninth Circuit
recently held in Witte v. Clark County School District, 197
F.3d. 1271 (9th Cir. 1999), that the plaintiff, who was seeking
monetary damages for physical and verbal abuse by special

-- 6 of 8 --

10 Covington v. Knox County School
System, et al.
No. 99-5210
906 F. Supp. 1092, 1098 (S.D.W. Va. 1995) (noting that “a
clear majority of courts hold exhaustion necessary despite the
assertion of a contemporaneous § 1983 claim for damages”),
appeal dismissed, 79 F.3d 1141 (4th Cir. 1991); Waterman,
739 F. Supp. at 364-66. The rationales for requiring
exhaustion even when the plaintiff seeks money damages are
that plaintiffs could otherwise circumvent the IDEA’s
elaborate scheme simply by appending a claim for damages,
see Waterman, 739 F. Supp. at 365, and that the
administrative process might ultimately afford sufficient relief
to the injured party, even if it is not the specific relief that the
plaintiff requested, see Charlie F., 98 F.3d at 991-93.
C. Exceptions to the Exhaustion Requirement
Nonetheless, both the Supreme Court and this court have
held that exhaustion is not required under the IDEA in certain
circumstances. Exhaustion is not required if it would be futile
or inadequate to protect the plaintiff’s rights. See Honig, 484
U.S. at 326-27; Smith, 879 F.2d at 1343; Crocker I, 873 F.2d
at 936. Nor is exhaustion required if the plaintiffs were not
given full notice of their procedural rights under the IDEA.
See Crocker I, 873 F.2d at 936. The burden of demonstrating
futility or inadequacy rests on the party seeking to bypass the
administrative procedures. See Honig, 484 U.S. at 327.
Covington argues that she was not required to exhaust her
administrative remedies, because to do so would have been
futile and would have afforded her inadequate relief. First,
she points out, she is seeking money damages, which are not
available through the administrative process. See TENN .
C ODE A NN . § 49-10-601 (1996). Second, Jason has already
graduated from KAEC; consequently, injunctive or other
equitable relief cannot alleviate his injuries. Finally, relying
on an exception to the exhaustion requirement, which has
been recognized by the Second Circuit, when “an agency has
adopted a policy or pursued a practice of general applicability
that is contrary to the law,” Mrs. W., 832 F.2d at 756 (quoting
H.R. R EP . NO . 99-296, at 7 (1985)), Covington argues that
No. 99-5210 Covington v. Knox County School
System, et al.
7
3Subsections (f) and (g) provide for a due process hearing and appeal
at the state agency level. See 20 U.S.C. §§ 1415(f), (g).
4That subsection provides that any party aggrieved by the
administrative findings and decision “shall have the right to bring a civil
action with respect to the complaint presented pursuant to this section,
which action may be brought in any State court of competent jurisdiction
or in a district court of the United States without regard to the amount in
controversy.” 20 U.S.C. § 1415(i)(2)(A).
1989) (Crocker I). Specifically, the statutory language states
as follows:
Nothing 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. § 12101 et seq.], title V of the
Rehabilitation Act of 1973 [29 U.S.C. § 791 et seq.], 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
this subchapter, 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.
20 U.S.C. § 1415(l).3 Furthermore, § 1415(i)(2) clearly
contemplates that plaintiffs will exhaust their administrative
remedies before bringing a civil action to enforce their rights
under the IDEA.4 See Honig v. Doe, 484 U.S. 305, 326-27
(1988) (citing § 1415(e)(2), the predecessor to § 1415(i)(2));
Crocker I, 873 F.2d at 935 (same).
Covington argues that her claim does not arise under the
IDEA and therefore that exhaustion is not required in her
case. Rather, she urges, her complaint concerns abusive
behavior that constitutes an independent constitutional
violation. We note that some courts have interpreted § 1415
to require the exhaustion of administrative remedies even

-- 7 of 8 --

8 Covington v. Knox County School
System, et al.
No. 99-5210
5Covington also argues that because there is no evidence in the
record indicating that the time-out room was discussed in Jason’s IEP, the
district court erred in concluding that the discipline used on Jason fell
under the IDEA. While Covington’s characterization of the record on this
point may be accurate, we do not read Hayes so narrowly. Hayes and the
related cases emphasize, instead, the disciplinary nature of the school
officials’ actions and their educational source; they do not seem to depend
upon a finding that the specific disciplinary matter about which the
plaintiff complains was addressed in that student’s IEP.
when the plaintiffs do not rely exclusively on the IDEA as the
source of their claims. For example, several courts have held
that exhaustion is required when plaintiffs bring § 1983 suits
based on violations of the IDEA. See, e.g., N.B. v. Alachua
County Sch. Bd., 84 F.3d 1376, 1379 (11th Cir. 1996), cert.
denied, 519 U.S. 1092 (1997); Mrs. W. v. Tirozzi, 832 F.2d
748, 756 (2d Cir. 1987); W.L.G. v. Houston County Bd. of
Educ., 975 F. Supp. 1317, 1328 (M.D. Ala. 1997).
Additionally, some courts have held that whenever a claim
falls within the purview of the IDEA – that is, whenever it
relates to the provision of a “free appropriate public
education” to a disabled child – exhaustion is required,
whether or not the plaintiff characterizes the claim as one
arising under the IDEA. See Hayes, 877 F.2d at 813-14;
Franklin v. Frid, 7 F. Supp. 2d 920, 922, 925-26 (W.D. Mich.
1998) (concluding that despite allegations of a school
official’s intentionally humiliating, poking, hitting, slapping,
and verbally abusing a student, the “gravamen of the claim”
fell within the purview of the IDEA, requiring exhaustion);
Waterman v. Marquette-Alger Intermediate Sch. Dist., 739 F.
Supp. 361, 364-65 (W.D. Mich. 1990) (citing Hayes). Hayes,
Franklin, and Waterman concluded that complaints
concerning the disciplinary practices of a school district relate
to the way that the district provides education, and thus
necessarily come within the scope of the IDEA.5 However,
because we conclude that exhaustion would be futile in
Covington’s case, there is no need to address the issues
involved in Hayes. Thus, we express no opinion as to
whether Covington’s complaint falls within the ambit of the
No. 99-5210 Covington v. Knox County School
System, et al.
9
6In Crocker I, this court held that parents suing under the IDEA were
required to exhaust their administrative remedies. See Crocker I, 873
F.2d at 936. In a subsequent appeal after remand, this court held that
those plaintiffs could not obtain general damages under the IDEA for
emotional or dignitary injuries, nor could they do so by bringing a § 1983
suit for such general damages based on violations of the IDEA. See
Crocker II, 980 F.2d at 386-87; see also Hall v. Knott County Bd. of
Educ., 941 F.2d 402, 406-07 (6th Cir. 1991) (holding that plaintiffs can
obtain reimbursement for past or future educational expenses under the
IDEA but not general damages, such as compensation for lost earning
power), cert. denied, 502 U.S. 1077 (1992). In deciding Crocker and
Hall, we relied in part on the Supreme Court’s insistence that, although
plaintiffs can obtain reimbursement for educational costs under the IDEA,
such reimbursement should not be characterized as “damages.” See
School Comm. v. Department of Educ., 471 U.S. 359, 370-71 (1985). We
have not previously considered the question whether exhaustion is
required by the legislative scheme of the IDEA when a plaintiff asserts a
valid damages claim under § 1983 that is not cognizable under the IDEA,
however.
IDEA or whether a plaintiff who has stated a claim
independent of the IDEA must still utilize the state’s
administrative process before filing in federal court. For the
same reason, we do not reach Covington’s equal protection or
Seventh Amendment claims.
Covington further contends that because the plain language
of 20 U.S.C. § 1415(l) requires exhaustion only when the
plaintiff seeks relief “that is also available under” the IDEA,
and because general money damages are not available under
the IDEA, see Crocker v. Tennessee Secondary Sch. Athletic
Ass’n, 980 F.2d 382, 386-87 (6th Cir. 1992) (Crocker II), she
was not required to exhaust her administrative remedies. We
disagree that the plaintiff’s damages claim alone excuses her
from exhausting her administrative remedies. Although the
Sixth Circuit has not decided the question,6 most courts have
held that a plaintiff seeking money damages is required to
exhaust administrative remedies under the IDEA, even if
money damages are not available under the IDEA or through
the administrative process. See, e.g., Charlie F. v. Board of
Educ., 98 F.3d 989, 991-93 (7th Cir. 1996); Doe v. Alfred,

-- 8 of 8 --