Robb v. Bethel School Dist. # 403

• Decision Date: 21 October 2002
• Docket Number: No. 01-35823.,01-35823.
• Citation: 308 F.3d 1047
• Parties: Danicia ROBB; Lovie Robb, as parents and guardians of Latosha Robb; Latosha Robb, Plaintiffs-Appellants, v. BETHEL SCHOOL DISTRICT # 403; Bethel School Board; Jill Jacoby, Superintendent, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1047

308 F.3d 1047

Danicia ROBB; Lovie Robb, as parents and guardians of Latosha Robb; Latosha Robb, Plaintiffs-Appellants, v. BETHEL SCHOOL DISTRICT # 403; Bethel School Board; Jill Jacoby, Superintendent, Defendants-Appellees.

No. 01-35823.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 13, 2002.

Filed October 21, 2002.

John S. Stocks, Van Siclen, Stocks & Firkins, Auburn, WA, for the plaintiffs-appellants.

William A. Coats and Daniel C. Montopoli, Vandeberg Johnson & Gandara, Tacoma, WA, for the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-00-05130-FDB.

Before: HILL,^* GOULD, and BERZON, Circuit Judges.

GOULD, Circuit Judge.

This appeal requires us to decide whether a plaintiff who seeks only money damages is required to exhaust administrative remedies before instituting a claim under 42 U.S.C. § 1983 predicated on a violation of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1485. Answering a question that has divided our sister circuits, we hold that when a plaintiff has alleged injuries that could be redressed to any degree by the IDEA's administrative procedures and remedies, exhaustion of those remedies is required. We therefore affirm the district court's dismissal.

I

Latosha Robb attended school at Elk Plain School of Choice, an elementary school in the Bethel School District in Spanaway, Washington.¹ She has been diagnosed with cerebral palsy. When Ms. Robb was in the fourth grade, her teachers began removing her from the classroom five times a week for extended "peer-tutoring" by junior high school and high school students without the supervision of a certified teacher. The tutoring occurred on the floor of a dim hallway where there was no chair or desk for her to use.

Alleging that the School District's practice of removing Ms. Robb from the classroom for peer tutoring sessions violated the IDEA, her parents filed suit under 42 U.S.C. § 1983, on behalf of themselves and their daughter. They asked for money damages to compensate them for "lost educational opportunities" and "emotional distress, humiliation, embarrassment, and psychological injury." The district court dismissed the case for lack of subject matter jurisdiction on the ground that the plaintiffs were barred from pursuing a judicial remedy before they exhausted their administrative remedies under the IDEA. This appeal followed.

II

The IDEA provides federal money to state and local education agencies to assist them in educating disabled children, on the condition that the state and local agencies implement the substantive and procedural requirements of the Act. The principal purpose of the Act is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs ... [and] to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d).

To carry out these objectives, the IDEA provides procedural safeguards to permit parental involvement in all matters concerning the child's educational program and allows parents to obtain administrative and judicial review of decisions they deem unsatisfactory or inappropriate. Honig v. Doe, 484 U.S. 305, 311-12, 108 S.Ct. 592, 98 L.Ed.2d 686 (1998). Under this scheme of procedural protections, parents are entitled to (1) examination of all relevant records pertaining to evaluation and educational placement of their child; (2) prior written notice whenever the responsible educational agency proposes, or refuses, to change the child's placement; (3) an opportunity to present complaints concerning any aspect of the local agency's provision of a free appropriate public education; and (4) an opportunity for an "impartial due process hearing" with respect to any such complaints. Id. at 312, 108 S.Ct. 592. If a party is dissatisfied with or aggrieved by the findings and decisions made after the impartial due process hearing, that party may obtain additional administrative review by the state educational agency. 20 U.S.C. § 1415(g).

The IDEA requires a plaintiff to exhaust his or her administrative remedies before commencing suit if that person is "seeking relief that is also available under" the IDEA. 20 U.S.C. § 1415(l). Because money damages are not "available under" the IDEA, Witte v. Clark County Sch. Dist., 197 F.3d 1271, 1275 (9th Cir.1999), it might seem that a plaintiff can avoid the IDEA's exhaustion requirement merely by limiting the prayer for relief to money damages. But only one circuit court has so held. See W.B. v. Matula, 67 F.3d 484, 496 (3d Cir. 1995). A larger number of circuit courts have taken the opposite approach. See Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 64 (1st Cir.2002) ("[P]laintiffs who bring an IDEA-based claim under 42 U.S.C. § 1983, in which they seek only money damages, must exhaust the administrative process available under the IDEA as a condition precedent to entering a state or federal court."); Covington v. Knox County Sch. Sys., 205 F.3d 912, 916 (6th Cir.2000) ("We disagree that the plaintiff's damages claim alone excuses her from exhausting her administrative remedies."); Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 993 (7th Cir.1996) ("[W]e are unwilling to allow parents to opt out of the IDEA by proclaiming that it does not offer them anything they value."); Padilla v. Sch. Dist. No. 1 in the City and County of Denver, Colo., 233 F.3d 1268, 1274 (10th Cir.2000) (same); N.B. v. Alachua County Sch. Bd., 84 F.3d 1376, 1379 (11th Cir.1996) ("[I]f the plaintiff's argument is to be accepted, then future litigants could avoid the exhaustion requirement simply by asking for relief that administrative authorities could not grant.").

With the First, Sixth, Seventh, Tenth, and Eleventh Circuits, we hold that a plaintiff cannot avoid the IDEA's exhaustion requirement merely by limiting a prayer for relief to money damages. We understand "available" relief to mean relief suitable to remedy the wrong done the plaintiff, which may not always be relief in the precise form the plaintiff prefers. Charlie F., 98 F.3d at 992; Padilla, 233 F.3d at 1274. Our primary concern in determining whether a plaintiff must use the IDEA's administrative procedures relates to the source and nature of the alleged injuries for which he or she seeks a remedy, not the specific remedy requested. The dispositive question generally is whether the plaintiff has alleged injuries that could be redressed to any degree by the IDEA's administrative procedures and remedies. If so, exhaustion of those remedies is required. If not, the claim necessarily falls outside the IDEA's scope, and exhaustion is unnecessary. Where the IDEA's ability to remedy a particular injury is unclear, exhaustion should be required to give educational agencies an initial opportunity to ascertain and alleviate the alleged problem.

This case is a good example of why parents should not be permitted to opt out of the IDEA simply by making a demand for money or services the IDEA does not provide.² The Robbs seek money to compensate them for "lost educational opportunities" and "emotional distress, humiliation, embarrassment, and psychological injury." Why do they want this money? Presumably at least in part to pay for services (such as counseling and tutoring) that will assist their daughter's recovery of self-esteem and promote her progress in school. Damages could be measured by the cost of these services. Yet the school district may be able (indeed, may be obliged) to provide these services in kind under the IDEA. The IDEA requires a school district to provide not only education but also "related services," including

such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services ...) as may be required to assist a child with a disability to benefit from special education.

20 U.S.C. § 1401(22). The regulations implementing the statute provide that "psychological services" include "psychological counseling for children and parents." 34 C.F.R. § 300.24(b)(9)(v). This battery of educational, psychological, and counseling services could go a long way to correct past wrongdoing by helping Ms. Robb to heal psychologically and to catch up with her peers academically, if she has not done so already. It would be inappropriate for a federal court to short-circuit the local school district's administrative process based on the possibility that some residue of the harm Ms. Robb allegedly suffered may not be fully remedied by the services Congress specified in the IDEA. We are not ready to say that money is the only balm.

The educational professionals and hearing officers who evaluate claims under the IDEA may conclude (a) that adequate remedial services can be provided or (b) that Latosha Robb does not require services. The first outcome would show that relief is available under the IDEA; the second would provide information relevant to Ms. Robb's claims under statutes other than the IDEA. In either event, pursuit of the administrative process would be fruitful, rather than futile.

Our holding is strongly supported by the Supreme Court's recent decision in Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001), which involved the exhaustion requirement in the Prison Litigation Reform Act (PLRA). The PLRA's exhaustion requirement is framed in language similar to the IDEA's. The PLRA refers to "administrative remedies ......