UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

9776 PAYNE v. PENINSULA SCHOOL DISTRICT
sion and nightmares is “also available” under the IDEA if the
regression and nightmares are likely to continue. 3 Here—as
discussed in further detail below—the Paynes sought damages
for the past and ongoing academic and psychological aftereffects
of D.P.’s claimed mistreatement by the school district.
In such cases, the plain text of § 1415(l) requires a plaintiff
to exhaust the IDEA’s administrative procedures before filing
a civil suit. 4
The majority expresses concern that this “muscular” view
of § 1415(l) “penalize[s] disabled students for their disability,”
Maj. Op. at 9762, “preempt[s] all cases involving the mistreatment
of disabled students by a school,” id., and
3 Plaintiffs can also avoid the IDEA’s exhaustion requirement if they can
prove that recourse to the IDEA’s administrative procedures would have
been futile or inadequate. For example, parents who seek monetary damages
as compensation for the out-of-pocket expenses they paid for a specialized
form of private tutoring or private psychological counseling could
avoid the IDEA’s exhaustion requirement if they prove that such tutoring
or counseling was 1) necessary, and 2) could not have been provided by
the school district. The party alleging futility of IDEA procedures bears
the burden of proving its futility. Doe v. Arizona Dep’t of Educ., 111 F.3d
678, 681 (9th Cir. 1997). This exception to the exhaustion requirement
does not apply to the Paynes, as they presented no evidence of futility; of
course, neither did the school district. See infra at pages 9783-84.
4 The majority contends this plain reading of § 1415(l) is somehow
inconsistent with Witte, because the court in Witte could have speculated
that the child—who alleged only retrospective physical injuries—also
could have alleged ongoing psychological harm. See Maj. Op. at 9760-61.
This is wrong: § 1415(l) requires exhaustion only when a plaintiff is
“seeking relief that is also available under [the IDEA].” 20 U.S.C.
§ 1415(l) (emphasis added). If, as in Witte, a plaintiff does not allege academic
or psychological injuries—and thus is not seeking academic or psychological
relief—§ 1415(l) obviously does not permit a court to invent
such injuries for the plaintiff. Here, per the plaintiff’s own complaint and
deposition testimony, the only relief sought was academic and psychological
relief which is “also available under the IDEA.” I would hold that
exhaustion is required only where academic or “related services” could
correct the injuries claimed by the plaintiff, not where such services could
also correct injuries which are purely conjectural.