Kutasi v. Las Virgenes Unified ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARBARA KUTASI; JOHN KUTASI, 
Plaintiffs-Appellants,
and
SHANE KUTASI, a minor through his
parent, Barbara Kutasi, No. 05-56006
Plaintiff,
v.  D.C. No.
CV-05-01592-DSF
LAS VIRGENES UNIFIED SCHOOL OPINION
DISTRICT; BOARD OF TRUSTEES OF
LAS VIRGENES UNIFIED SCHOOL
DISTRICT; DONALD ZIMRING; JOHN
FITZPATRICK; E. JOSEPH NARDO,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
May 14, 2007—Pasadena, California
Filed July 19, 2007
Before: Stephen Reinhardt, Raymond C. Fisher and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Fisher
8783
8786 KUTASI v. LAS VIRGENES USD
COUNSEL
Bryan C. Altman (argued) and Jennifer L. Gentin, Altman &
Morris, Los Angeles, California, for the plaintiffs-appellants.
Carol A. Woo, Benton, Orr, Duval & Buckingham, Ventura,
California, for the defendants-appellees.
OPINION
FISHER, Circuit Judge:
This case involves application of the exhaustion require-
ment under the Individuals with Disabilities Education Act
KUTASI v. LAS VIRGENES USD 8787
(“IDEA”), 20 U.S.C. § 1415(l). We reaffirm the principle that
plaintiffs must exhaust administrative remedies before filing
a civil lawsuit if they seek relief for injuries that could be
redressed to any degree by the IDEA’s administrative proce-
dures. See Robb v. Bethel Sch. Dist. # 403, 308 F.3d 1047,
1050 (9th Cir. 2002). Accordingly, we affirm the district
court’s dismissal without prejudice of the plaintiffs’ com-
plaint.
BACKGROUND1
Shane Kutasi is an autistic boy who was 11 years old when
the disputes at issue here arose. He attended the Round
Meadow Elementary School in Calabasas, California, from
1999 until he graduated in 2004. In 1999, Shane’s parents —
John and Barbara Kutasi — and the Las Virgenes School Dis-
trict (“School District”) agreed upon an individualized educa-
tion program (“IEP”). In accordance with the 1999 IEP,
Shane attended a general education first-grade class with an
aide for most of the morning and received home schooling in
the afternoon. The Kutasis and the School District, however,
were unable to reach agreement on a modified IEP for Shane
for the succeeding school years. As a result of a “stay put”
order issued by the California Special Education Hearing
Office (“SEHO”) that extended the terms of the 1999 IEP,
Shane continued to receive full inclusion in a classroom with
a modified curriculum, as well as speech and occupational
therapy services.
The complaint reveals a long history of apparently bitter
disagreement between the Kutasis and the School District,
and their conflict came to a head in the fall of 2004 after
Shane’s graduation from Round Meadow Elementary School.
1
Because the Kutasis appeal from an order granting the School Dis-
trict’s motion to dismiss, we accept all facts alleged in the Kutasis’ com-
plaint as true. See Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973
(9th Cir. 2004).
8788 KUTASI v. LAS VIRGENES USD
Shane was scheduled to attend the A.E. Wright Middle
School. But on August 27, 2004, three days before the 2004-
05 school term began, the School District proposed an IEP
that required Shane to be placed in a “Special Day Class,”
created for students with disabilities regardless of their age,
grade or specific disability. The Kutasis rejected the School
District’s proposal, and the parties continued to differ over the
kind of educational and related services to be provided Shane.
Shane briefly attended general education classes at Wright,
but was denied access to the school after three days by Princi-
pal Steven Rosensweig, who claimed that Shane was not
properly enrolled. Since September 2004, Shane has been
schooled at home by a team of behavioral therapists pursuant
to the stay put order.
The Kutasis filed a complaint in March 2005 in the federal
district court for the Central District of California, on their
own behalf and as guardian ad litem for Shane. Their com-
plaint charged the defendants — the Las Virgenes Unified
School District, the Board of Trustees of the District, Dr.
Donald Zimring (Acting Superintendent of the District), John
Fitzpatrick (Acting Superintendent of the District) and E.
Joseph Nardo (Director of Special Education Services for the
District) (collectively “Defendants”) — with two counts of
violating 42 U.S.C. § 1983 and one count of violating § 504
of the Rehabilitation Act of 1973. The Kutasis alleged that the
Defendants “engaged in a pattern and practice of retaliatory
and discriminatory actions against Shane and his parents.”
The complaint identified 18 alleged “retaliatory and discrimi-
natory actions”:
(1) [F]ailing to properly investigate and remedy
complaints of non-compliance filed with the United
States Department of Education, Office for Civil
Rights (“OCR”);
(2) interfering with Barbara and John Kutasis’
custodial rights over Shane;
KUTASI v. LAS VIRGENES USD 8789
(3) in September 2004, refusing to allow Shane
to attend A.E. Wright after he had been assigned
classes and had already attended school;
(4) repeatedly refusing to reimburse the Kutasis
for Shane’s therapy by failing to pay invoices pre-
sented pursuant to the Stay Put Order;
(5) on February 9, 2004, singling out and
demanding that the Kutasis turn over videotapes of
Shane made by Barbara Kutasi at Round Meadow
while not requiring this of any other parents;
(6) from September 2000 through May 2004,
requiring that the Kutasis sign Shane in and out from
school everyday when no other student was required
to do so;
(7) refusing to allow the Kutasis to visit the
Resource Classroom during a tour of the A.E.
Wright camps while allowing other parents to do so;
(8) on two separate occasions demanding that
the Kutasis leave the Special Day Class at A.E.
Wright during an observation;
(9) humiliating Barbara Kutasi in front of other
students and parents each time she visited Shane at
Round Meadow;
(10) repeatedly setting Shane’s IEP on the same
date and time — but different location — as the
Kutasis’ other child’s IEP;
(11) deliberately setting an IEP on Shane’s
birthday in August 2003 and August 2004;
8790 KUTASI v. LAS VIRGENES USD
(12) refusing to allow the Kutasis to volunteer
for several field trips that were taken at Round
Meadow;
(13) requiring that Barbara Kutasi obtain a TB
test and a medical release in order to be a “room par-
ent” volunteer when this “rule” was not enforced
against any other parent;
(14) conducting unnecessary and unreasonable
surveillance of the Kutasis when they visited Round
Meadow;
(15) attempting to obtain Shane’s private medi-
cal records without the Kutasis’ permission and con-
sent;
(16) failing to provide the Kutasis periodic
reports of Shane’s progress while other parents
receive such reports;
(17) demanding that another of the Kutasi chil-
dren personally attend Shane’s IEP meeting; and
(18) otherwise punishing and threatening Plain-
tiffs for having exercised constitutionally and statu-
torily protected rights.
On April 8, 2005 — after the Kutasis filed their complaint
in federal court, but before the district court issued a ruling —
the School District filed an administrative hearing request,
asking the SEHO to approve the August 2004 proposed IEP.
The School District’s request did not refer to any of the dis-
criminatory acts alleged in the Kutasis’ complaint. While the
School District’s administrative hearing was still pending
before the SEHO, the district court granted the Defendants’
motion to dismiss, holding that the Kutasis failed to exhaust
the IDEA’s administrative remedies before filing suit in fed-
KUTASI v. LAS VIRGENES USD 8791
eral court. Recognizing that “[t]he threshold question is
whether the injuries alleged could have been redressed to any
degree by the IDEA’s administrative procedures and reme-
dies” (emphasis in original), the court found that “[e]ven a
cursory review of Plaintiffs’ Complaint makes clear that some
of the alleged injuries could almost certainly be redressed by
the IDEA’s administrative procedures and remedies.” The
court concluded that, for example, an administrative hearing
“could potentially be dispositive, or, at the least, would be
helpful to this Court’s analysis” of the Kutasis’ allegations
that the Defendants refused to allow Shane to attend Wright
and repeatedly refused to reimburse them for Shane’s therapy.
The Kutasis filed a timely notice of appeal.
After the district court dismissed the Kutasis’ complaint,
the SEHO issued a ruling against the School District on the
August 2004 proposed IEP, finding that it did not constitute
a free appropriate public education in the least restrictive
environment. The SEHO’s opinion did not, however, address
any of the issues raised by the Kutasis’ complaint. Thus, the
Kutasis’ claims still have not been exhausted.
STANDARD OF REVIEW
Whether exhaustion is required under the IDEA in a partic-
ular case is a question of law that this court reviews de novo.
See Witte v. Clark County Sch. Dist., 197 F.3d 1271, 1274
(9th Cir. 1999).
DISCUSSION
I. Statutory Framework
The IDEA is a comprehensive educational scheme that con-
fers on students with disabilities a substantive right to public
education. See Van Duyn v. Baker Sch. Dist. 5J, 481 F.3d 770,
776 (9th Cir. 2007); Hoeft v. Tucson Unified Sch. Dist., 967
F.2d 1298, 1300 (9th Cir. 1992). The IDEA provides financial
8792 KUTASI v. LAS VIRGENES USD
assistance to enable states to meet their educational needs, but
conditions funding on the effectuation of a policy that assures
all children with disabilities the right to a free appropriate
public education. See 20 U.S.C. § 1412(a)(1). To that end, the
IDEA requires that school districts develop an IEP for each
child with a disability. See Winkelman v. Parma City Sch.
Dist., 127 S. Ct. 1994, 2000 (2007).
[1] When parents are unsatisfied with “the adequacy of the
education provided, the construction of the IEP, or some
related matter, IDEA provides procedural recourse.” Id. at
2001. Participating states must establish procedures giving
“[a]n opportunity for any party to present a complaint . . .
with respect to any matter relating to the identification, evalu-
ation, or educational placement of the child, or the provision
of a free appropriate public education to such child.” 20
U.S.C. § 1415(b)(6)(A); see also Cal. Educ. Code § 56501(a).
After a complaint is filed, the local or state educational
agency must convene a meeting with the parents and the rele-
vant members of the IEP team “where the parents of the child
discuss their complaint” and the educational agency “is pro-
vided the opportunity to [reach a resolution].” 20 U.S.C.
§ 1415(f)(1)(B)(i). If the educational agency cannot resolve
the complaint “to the satisfaction of the parents within 30
days of the receipt of the complaint,” id. § 1415(f)(B)(ii), then
the parents are entitled to request “an impartial due process
hearing,” id. § 1415(f).
[2] California has adopted legislation to comply with
IDEA’s due process hearing requirements. See Cal. Educ.
Code §§ 56500-56507. Under state law, a parent may initiate
a due process hearing regarding the provision of a free appro-
priate public education for a child and that hearing will be
conducted “at the state level.” Id. at § 56501(a), (b)(4). The
IDEA mandates that administrative hearings be conducted by
officers who possess knowledge of relevant education law,
and are capable of conducting hearings and rendering deci-
sions “in accordance with appropriate, standard legal prac-
KUTASI v. LAS VIRGENES USD 8793
tice.” 20 U.S.C. § 1415(f)(3)(A). To that end, California’s
administrative hearings must be conducted by “a hearing offi-
cer knowledgeable in administrative hearings and under con-
tract with the State Department of Education.” Cal. Code
Regs. tit. v, § 3082. A decision resulting from the due process
hearing “shall be final,” 20 U.S.C. § 1415(i)(1)(A), except
that “[a]ny party aggrieved by the 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,” id. § 1415(i)(2)(A);
see also Cal. Educ. Code § 56505(k).
[3] Parents and disabled students may seek relief for
education-related injuries under federal laws other than the
IDEA. See Blanchard v. Morton Sch. Dist., 420 F.3d 918, 920
(9th Cir. 2005). However, the IDEA requires that before
plaintiffs may file a civil action under “the Constitution, the
Americans with Disabilities Act, title V of the Rehabilitation
Act or other Federal laws protecting the rights of children
with disabilities,” they must exhaust the IDEA’s due process
hearing procedure if the action “seek[s] relief that is also
available under” the IDEA. 20 U.S.C. § 1415(l). The IDEA’s
exhaustion requirement recognizes the traditionally strong
state and local interest in education, allows for the exercise of
discretion and educational expertise by state agencies, affords
full exploration of technical educational issues, furthers devel-
opment of a factual record and promotes judicial efficiency by
giving state and local agencies the first opportunity to correct
shortcomings. See Hoeft, 967 F.2d at 1303.
Resisting the district court’s application of § 1415(l) to
their claims, the Kutasis argue that they were not required to
exhaust the IDEA’s administrative procedures for two rea-
sons. First, they request that we separate their claims from
those of their son, and argue that exhaustion should not be
required for their claims because the “IDEA provides admin-
istrative remedies for children who need special education but
8794 KUTASI v. LAS VIRGENES USD
not for their parents.” Second, the Kutasis argue that even if
exhaustion was required here, exhaustion would have been
futile because their injuries could not have been redressed to
any degree by a due process hearing. Neither argument per-
suades us to exempt the Kutasis from § 1415(l)’s exhaustion
requirement.
II. Availability of Administrative Remedies
[4] First, we address the Kutasis’ assertion that the IDEA
does not provide parents with any administrative remedies to
exhaust. Implicitly conceding that their complaint included
claims brought on Shane’s behalf that do require exhaustion,
the Kutasis request that on this appeal, we separate their
claims as parents from those of their son. We decline to do so.
The Kutasis did not present this option to the district court
and, adhering to our general rule, we will not “reframe this
appeal to review what would be (in effect) a different case
than the one the district court decided below.” Robb, 308 F.3d
at 1053 n.4. Taking the complaint as originally pled, no one
disputes that, at the very least, Shane could have sought a
remedy through the IDEA’s administrative procedures.
[5] Even if we were to separate the parents’ claims on
appeal, we would still reject the Kutasis’ attempt to avoid the
IDEA’s exhaustion requirement. The IDEA defines one of its
purposes as seeking “to ensure that the rights of children with
disabilities and parents of such children are protected.” 20
U.S.C. § 1400(d)(1)(B) (emphasis added). The Kutasis inter-
pret this language to mean that the IDEA and its administra-
tive procedures protect only the rights of disabled children.
But the Supreme Court recently rejected this interpretation,
concluding that “[t]he word ‘rights’ in the quoted language
refers to the rights of parents as well as the rights of the
child.” Winkelman, 127 S. Ct. at 2002. Accordingly, “parents
enjoy enforceable rights at the administrative stage” of an
IDEA proceeding. Id. The Kutasis’ statutory argument plainly
fails.
KUTASI v. LAS VIRGENES USD 8795
III. Futility of Administrative Remedies
The Kutasis also argue that any attempt at exhaustion
would have been futile. “The [IDEA’s] exhaustion require-
ment is not . . . a rigid one.” Porter v. Bd. of Trustees of Man-
hattan Beach, 307 F.3d 1064, 1069 (9th Cir. 2002). Plaintiffs
need not seek a due process hearing “where resort to the
administrative process would either be futile or inadequate.”
Hoeft, 967 F.3d at 1303. But a party that alleges futility or
inadequacy of IDEA administrative procedures bears the bur-
den of proof. See Robb, 308 F.3d at 1050 n.2.
[6] The futility exception derives from the language of the
IDEA itself, which limits the exhaustion requirement to cases
where the plaintiff “seek[s] relief that is also available” under
the IDEA. 20 U.S.C. § 1415(l). If the plaintiff seeks a remedy
for an injury that could not be redressed by the IDEA’s
administrative procedures, then the claim falls outside
§ 1415(l)’s rubric and exhaustion is unnecessary. See Robb,
308 F.3d at 1050. On the other hand, if the injury could be
redressed “to any degree” by the IDEA’s administrative pro-
cedures — or if the IDEA’s ability to remedy an injury is
unclear — then exhaustion is required. See id.[7] Our futility analysis is guided by three cases that have
addressed the scope of the IDEA’s exhaustion requirement. In
Witte, 197 F.3d at 1272-73, a student with Tourette’s Syn-
drome filed an action under 42 U.S.C. § 1983, the Rehabilita-
tion Act and the Americans with Disabilities Act after he was
allegedly force-fed oatmeal, strangled and subjected to emo-
tional abuse. The plaintiff sought money damages, which are
not “available under” the IDEA. See id. at 1275. We con-
cluded that because the plaintiff sought only monetary dam-
ages, and because all educational issues had already been
resolved to the parties’ mutual satisfaction through the IEP
process, the plaintiff was not “seeking relief that is also avail-
able” under the IDEA. Id. (quoting 20 U.S.C. § 1415(l)).
8796 KUTASI v. LAS VIRGENES USD
Blanchard v. Morton School District, 420 F.3d 918 (9th
Cir. 2005), also involved claims for which the IDEA provided
no remedy. The plaintiff in Blanchard — the mother of an
autistic child — successfully argued that exhaustion of IDEA
administrative proceedings was not required because she
sought damages for her own emotional distress caused by the
defendants’ conduct. Blanchard had represented her son in a
series of administrative actions against the defendant school
district, resulting in an order compelling the district to imple-
ment an IEP and to provide compensatory education to the
student to remedy the district’s past failings. See id. at 920.
Blanchard’s complaint was limited to money damages for her
emotional distress due to the defendants’ alleged “deliberate
indifference and violation of rights,” as well as reimburse-
ment for wages lost while pursuing her son’s remedies under
the IDEA. Id. at 920. Emphasizing that the plaintiff had “re-
solved the educational issues implicated by her son’s disabil-
ity and . . . obtained the educational relief available under the
IDEA on behalf of her son,” we concluded that exhaustion
was not required because “Blanchard’s emotional distress
injuries and lost income could not be remedied through the
educational remedies available under the IDEA.” Id. at 921,
922 (citing Witte, 197 F.3d at 1275). Thus, “because the
IDEA provide[d] no remedy for Blanchard,” exhaustion was
excused. Id. at 922 (emphasis added).
We circumscribed Witte, however, in Robb v. Bethel School
District # 403, where we clarified that a plaintiff cannot evade
the IDEA’s exhaustion requirement merely by limiting a
claim to money damages. There, a student’s parents filed a
§ 1983 action on behalf of themselves and their daughter after
the student was removed from her classroom and tutored by
junior high and high school students. 308 F.3d at 1048. The
plaintiffs requested money damages as compensation for “lost
educational opportunities” and “emotional distress, humilia-
tion, embarrassment, and psychological injury.” Id. Even
though an administrative proceeding could not provide relief
in the form requested by the plaintiffs, we concluded “[i]t
KUTASI v. LAS VIRGENES USD 8797
would be inappropriate for a federal court to short-circuit the
local school district’s administrative process based on the pos-
sibility that some residue of the harm Ms. Robb allegedly suf-
fered 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.” Id. at 1050. Robb distinguished Witte on three
grounds: (1) the Robb plaintiffs had not “taken full advantage
of the IDEA administrative procedures to secure the remedies
available thereunder”; (2) they did not allege physical injury;
and (3) they requested money damages for “psychological and
educational injuries the IDEA may remedy.” Id. at 1052.
[8] We conclude that the present case is controlled by Robb
because, unlike the plaintiffs in Witte and Blanchard, the
Kutasis have not resolved all educational issues underlying
their claims. See Witte, 197 F.3d at 1275; Blanchard, 420
F.3d at 921-22. That much is obvious from the Kutasis’
request for damages to remedy the Defendants’ refusal “to
allow Shane to attend A.E. Wright after he had been assigned
classes and had already attended school.” The School Dis-
trict’s refusal to allow Shane to attend school is precisely the
kind of educational injury that we expect plaintiffs to adjudi-
cate at the administrative stage before seeking relief from a
court of law. See Hacienda La Puente Unified Sch. Dist. of
Los Angeles v. Honig, 976 F.2d 487, 489 (9th Cir. 1992)
(upholding SEHO decision ordering student’s reinstatement at
school); see also Demers v. Leominster Sch. Dep’t, 96 F.
Supp. 2d 55, 58 (D. Mass. 2000) (requiring that plaintiff seek-
ing order directing school district to reinstate student in regu-
lar class program exhaust IDEA’s administrative remedies).
[9] In the same vein, the Kutasis complain about injuries
resulting from the Defendants’ decision to schedule Shane’s
IEP conference for the same date and time as their other
child’s IEP conference and from the Defendants’ failure to
provide educational reports on Shane’s progress. The Kutasis
have not explained why these allegedly hostile bureaucratic
acts could not have been remedied by the SEHO simply man-
8798 KUTASI v. LAS VIRGENES USD
dating periodic reports and appropriate meeting times in the
future. See Radcliffe v. Sch. Bd. of Hillsborough County, 38
F. Supp. 2d 994, 1000 (M.D. Fla. 1999) (requiring exhaustion
of plaintiffs’ request for an injunction requiring the school
district to hold an IEP meeting at a specific time). Although
such a remedy from the SEHO would not provide the specific
form of relief the Kutasis seek — money damages — it could
alleviate the root cause of their injury. “For purposes of
exhaustion, ‘relief that is also available under’ the IDEA does
not necessarily mean relief that fully satisfies the aggrieved
party. Rather, it means ‘relief suitable to remedy the wrong
done the plaintiff, which may not always be relief in the pre-
cise form the plaintiff prefers.’ ” Blanchard, 420 F.3d at 921(quoting Robb, 308 F.3d at 1049).
[10] The Kutasis’ complaint also alleges that the Defen-
dants have not adequately reimbursed them for Shane’s at-
home therapy provided pursuant to the stay put order. Once
again, the Kutasis fail to bear their burden of proving that
resort to the IDEA’s administrative procedures would be
futile. The SEHO has the authority to order reimbursement for
therapy expenditures. See Glendale Unified Sch. Dist. v.
Almasi, 122 F. Supp. 2d 1093, 1104 (C.D. Cal. 2000)
(upholding SEHO order mandating reimbursement for occu-
pational therapy); see also Zasslow v. Menlo Park City Sch.
Dist., 2001 WL 1488617, *4 (N.D. Cal. 2001) (reviewing
order mandating reimbursement for speech and language ther-
apy). Indeed, the Kutasis have themselves received such
redress from an IDEA due process hearing in the past. Their
notice of related cases submitted to the district court included
a copy of a state court complaint the Kutasis filed in 2005,
seeking $62,000 in damages. The state court complaint
alleged that on October 13, 2000, the SEHO issued a stay put
order requiring that the Las Virgenes Unified School District
“reimburse [John and Barbara Kutasi] for applied behavioral
therapy services” pursuant to an agreement between the par-
ties. Taking the Kutasis’ allegation as true — and we have no
reason to doubt its accuracy — we must conclude that SEHO
KUTASI v. LAS VIRGENES USD 8799
could again order the School District to reimburse the Kutasis
for all outstanding invoices.
[11] Because the Kutasis allege injuries that could be
redressed to some degree by the IDEA’s administrative proce-
dures and remedies, the district court’s dismissal of their com-
plaint without prejudice is AFFIRMED.