Blanchard v. Morton School

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHERYL BLANCHARD, 
Plaintiff-Appellant,
v. No. 03-35677
MORTON SCHOOL DISTRICT; RUSS  D.C. No.
CV-02-05101-FDB
DAVIS; REGINE ALEKSUNAS, SE
Teacher; JIM GROSSMAN, SLP; OPINION
ROBYN GOODWIN, Principal,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding
Argued and Submitted
January 14, 2005—Seattle, Washington
Filed August 19, 2005
Before: Mary M. Schroeder, Chief Judge, Alfred T. Goodwin
and Susan P. Graber, Circuit Judges.
Opinion by Chief Judge Schroeder
10957
BLANCHARD v. MORTON SCHOOL DISTRICT 10959
COUNSEL
Lonnie Davis, Disabilities Law Project, Seattle, Washington,
for the plaintiff-appellant.
Jocelyn J. Lyman, Law, Lyman, Daniel, Kamerrer & Bog-
danovich, P.S., Olympia, Washington, for the defendants-
appellees.
10960 BLANCHARD v. MORTON SCHOOL DISTRICT
OPINION
SCHROEDER, Chief Judge:
This is an action by the mother of a child with autism, who
seeks damages for the mother’s own emotional distress
caused by the conduct of the defendants, the Morton School
District and its current and former employees, in providing
special education services to her son. The district court dis-
missed the action for failure to exhaust administrative reme-
dies under the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. §§ 1400-1482. We reverse, because
there were no administrative remedies available for her to
exhaust. We remand to the district court to consider the merits
of her claims.
Plaintiff Cheryl Blanchard’s son is enrolled in a special
education program provided by the Morton School District
(“District”). Blanchard, pro se, represented her son in a series
of administrative actions against the District, alleging that the
District failed to accommodate him under the IDEA. In 2000,
an administrative law judge concluded that the District had
not properly implemented the student’s individualized educa-
tion plan and had denied the student a free appropriate public
education as mandated by section 1415 of the IDEA. The
administrative law judge ordered the District to implement the
plan, and provide compensatory education to the student for
the District’s past failings. The record indicates that Blan-
chard felt compelled to initiate four other hearings on behalf
of her son between 2001 and 2003, aimed at implementing
and modifying the plan.
In 2002, Blanchard filed this complaint pro se against the
District and several of its current and former employees.
Blanchard sought money damages pursuant to 42 U.S.C.
§ 1983 for alleged emotional distress caused by the conduct
of the defendants in providing special education services to
her son under the IDEA. Blanchard sought damages for her
BLANCHARD v. MORTON SCHOOL DISTRICT 10961
emotional distress due to the defendants’ alleged “deliberate
indifference and violation of rights,” as well as reimburse-
ment for the income she lost while pursuing her son’s reme-
dies under the IDEA.
The defendants moved to dismiss her claim pursuant to
Federal Rule of Civil Procedure 12(b)(1). The district court
appointed pro bono counsel for Blanchard. The district court
later granted the defendants’ motion to dismiss, concluding
that Blanchard failed to exhaust her administrative remedies
under the IDEA. Blanchard appeals through her pro bono
counsel.
DISCUSSION
[1] The IDEA was enacted “to ensure that all children with
disabilities have available to them a free appropriate public
education that emphasizes special education and related ser-
vice designed to meet their unique needs.” 20 U.S.C.
§ 1400(d)(1)(A). The IDEA sets out a comprehensive educa-
tional scheme that confers on disabled students a substantive
right to public education. Hoeft v. Tuscon Unified Sch. Dist.,
967 F.2d 1298, 1300 (9th Cir. 1992). Under the IDEA, state
or local educational agencies can receive federal funding to
assist them in educating disabled children. To receive the
funding, state and local educational agencies must ensure that
children with disabilities — and their parents — are guaran-
teed specified procedural safeguards with regard to the provi-
sion of free appropriate public education by the agencies. 20
U.S.C. § 1415(a).
[2] The IDEA does not restrict or limit the rights of dis-
abled students or their parents under other statutes. The IDEA
requires, however, 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) [due process
hearing] and (g) [appeal] of this section shall be exhausted to
the same extent as would be required had the action been
10962 BLANCHARD v. MORTON SCHOOL DISTRICT
brought under this subchapter.” 20 U.S.C. § 1415(l). If a
plaintiff is required to exhaust administrative remedies but
fails to do so, the federal courts do not have jurisdiction to
hear the plaintiff’s claim. Witte v. Clark County Sch. Dist.,
197 F.3d 1271, 1274 (9th Cir. 1999). (The policy behind the
exhaustion requirement is to ensure that educational agencies
have the first opportunities to remedy shortcomings in their
educational programs for disabled students. See Hoeft, 967
F.2d at 1303; see also Christopher S. v. Stanislaus County
Office of Educ., 384 F.3d 1205, 1209 (9th Cir. 2004). Relief
under the IDEA therefore must be appropriate in light of the
primary purpose of the IDEA. Sch. Comm. of Burlington v.
Dep’t of Educ. of Mass., 471 U.S. 359, 369 (1985). Relief is
available under the IDEA when “[b]oth the genesis and the
manifestations of the problem are educational.” Charlie F. v.
Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 993 (7th
Cir. 1996); see also Robb v. Bethel Sch. Dist. #403, 308 F.3d
1047, 1052 (9th Cir. 2002). At the same time, courts have rec-
ognized that the IDEA’s administrative remedies cannot com-
pensate for a plaintiff’s injuries that are completely non-
educational. Padilla v. Sch. Dist. No. 1 of Denver, 233 F.3d
1268, 1274 (10th Cir. 2000).
[3] Thus, under the relevant statute, exhaustion of adminis-
trative remedies is required when a plaintiff is seeking “relief
that is also available under” the IDEA. 20 U.S.C. § 1415(l).
Blanchard argues that the district court erred in concluding
that she failed to exhaust required administrative remedies
before filing this suit. Blanchard did not pursue administrative
remedies on her own behalf before filing suit. The issue in
this appeal therefore is whether Blanchard was seeking “relief
that is also available under” the IDEA, so that exhaustion was
required.
[4] 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
BLANCHARD v. MORTON SCHOOL DISTRICT 10963
be relief in the precise form the plaintiff prefers.” Robb, 308
F.3d at 1049. But there must be some relief available.
[5] Blanchard’s complaint sought money damages for emo-
tional distress and for lost wages caused by the District’s
alleged deliberate indifference toward her son’s IDEA claims
and the District’s alleged violations of the IDEA. Money
damages for retrospective and non-educational injuries are not
available under the IDEA. See Witte, 197 F.3d at 1275; see
also Polera v. Bd. of Educ. of the Newburgh Enlarged City
Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002); Charlie F., 98
F.3d at 991; Hall v. Knott County Bd. of Educ., 941 F.2d 402,
407 (6th Cir. 1991). That alone is not dispositive, for a plain-
tiff cannot avoid the IDEA’s exhaustion requirement simply
by limiting a prayer for relief to money or services that are not
provided under the IDEA. Robb, 308 F.3d at 1049. The dispo-
sitive question therefore is whether Blanchard is seeking rem-
edy for injuries that could be redressed to any degree by the
IDEA’s administrative procedures. Id. at 1050.
[6] The remedies available under the IDEA include educa-
tional services for disabled children. See 20 U.S.C. §§ 1400-
1482. They do not provide an adequate remedy for Blanchard.
[7] We held in Witte that a plaintiff seeking monetary relief
for alleged past physical and emotional abuse by school staff
was not required to exhaust administrative remedies under the
IDEA. 197 F.3d at 1276. We emphasized that “all educational
issues already have been resolved to the parties’ mutual satis-
faction through the [administrative] process.” Id. at 1275.
That is true here, as well. Following Witte, we hold that Blan-
chard had no remedies under the IDEA to exhaust. Blanchard
has resolved the educational issues implicated by her son’s
disability and has obtained the educational relief available
under the IDEA on behalf of her son.
The District relies on Robb. In that case, a student with
cerebral palsy and her parents sought damages for lost educa-
10964 BLANCHARD v. MORTON SCHOOL DISTRICT
tional opportunities, emotional distress, humiliation, embar-
rassment, and psychological injury after the student was
removed from the classroom for extended tutoring. Robb, 308
F.3d at 1048. We held that because these injuries could be
remedied to some degree by the IDEA’s administrative proce-
dures and remedies, the plaintiffs must exhaust those adminis-
trative remedies before filing suit. Id. at 1054. We stated:
“Where, as here, a plaintiff’s injuries are part and parcel of
the educational process, we must give the local administrators
the first opportunity to remedy them.” Id. at 1053 n.4. In this
case, however, Blanchard’s emotional distress injuries and
lost income could not be remedied through the educational
remedies available under the IDEA. See Witte, 197 F.3d at
1275.
[8] The District also stresses that the IDEA requires school
districts to provide “related services” to education, including
“psychological services, . . . social work services, [and] coun-
seling services, . . . as may be required to assist a child with
a disability to benefit from special education.” 20 U.S.C.
§ 1401(26)(A). See Robb, 308 F.3d at 1050. The regulations
implementing the statute provide that the required psychologi-
cal services may include “[p]lanning and managing a program
of psychological services, including psychological counseling
for children and parents.” 34 C.F.R. § 300.24(b)(9)(v). The
act thus has some provision for counseling parents, but only
with respect to assisting the child. See 20 U.S.C.
§ 1401(26)(A). The psychological services available under the
IDEA would not provide a remedy for Blanchard’s own
claims of emotional injury.
We emphasize that our holding is a narrow one: that there
is no procedural barrier to Blanchard’s claim that the defen-
dants’ acts (as distinct from her child’s disability) have caused
her to incur damages for emotional distress. In the present
posture of the case we are not called on to decide whether
Blanchard’s claim is, substantively, cognizable under federal
law nor, even if so, whether her claim is meritorious. We hold
BLANCHARD v. MORTON SCHOOL DISTRICT 10965
only that, because the IDEA provides no remedy for Blan-
chard, she need not exhaust administrative remedies before
filing suit. We therefore reverse the district court’s dismissal
of Blanchard’s complaint and remand the case for further pro-
ceedings.
REVERSED AND REMANDED.