Robb

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…

dissenting:

In my view, the majority decides issues not before us, misreads the IDEA’S exhaustion requirement, and fails to properly apply the holding of Witte v. Clark County Sch. Dist., 197 F.3d 1271 (9th Cir.1999), to the case at hand. I therefore respectfully dissent.

First, the only issue now properly before this court is whether plaintiffs can pursue their claim for past emotional damages. Plaintiffs initially sought relief for educational as well as emotional damages. Plaintiffs’ counsel stated at oral argument, however, that plaintiffs now seek relief only for past emotional damages. 1 In so doing, plaintiffs were not changing their claims; rather they were clarifying what their claims were. It is permissible for counsel to waive or limit their claims at oral argument. When they do, we make our decision based on their narrowed claim, rather than reaching out to decide issues no longer in the case. See Vinson v. Thomas, 288 F.3d 1145 , 1148 n. 1 (9th Cir.2001).

Of course, plaintiffs will be bound for the rest of this ease to pursue only the limited damages relief they have now told us they are seeking. Because that is the case, there is no reason to decide the question…