UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

9754 PAYNE v. PENINSULA SCHOOL DISTRICT
relief sought rather than the types of injuries alleged, we find
no merit to the distinction we have previously drawn between
physical and non-physical injuries. See Robb, 308 F.3d at
1052. Although physical injuries might bolster a plaintiff’s
likelihood of success in a case, there is no reason to treat constitutional
violations that do not result in physical injuries differently
under the exhaustion provision. See Blanchard, 420
F.3d at 922 (holding that the IDEA does not require exhaustion
when the plaintiff’s “emotional distress injuries . . . could
not be remedied through the educational remedies available
under the IDEA”).
[8] We also hold that in cases where a plaintiff is seeking
money damages, courts should not engage in the depth of
speculation we conducted in Robb. In that case, we inferred
that the Robbs sought money “[p]resumably 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 . . .
to provide these services in kind under the IDEA.” Robb, 308
F.3d at 1050. We no longer think that such speculation is
appropriate. Although we agree with the proposition that “a
plaintiff cannot avoid the IDEA’s exhaustion requirement
merely by limiting a prayer for relief to money damages,” id.
at 1049, we do not think, especially in the context of motions
to dismiss or summary judgment motions, that it is proper for
courts to assume that money damages will be directed toward
forms of relief that would be available under the IDEA.
[9] At the same time, plaintiffs cannot avoid exhaustion
through artful pleading. If the measure of a plaintiff’s damages
is the cost of counseling, tutoring, or private schooling
— relief available under the IDEA — then the IDEA requires
exhaustion. In such a case, the plaintiffs are seeking the same
relief, even if they are willing to accept cash in lieu of services
in kind. Accordingly, the exhaustion requirement would
also apply in cases where a plaintiff is arguing that a state’s