dissenting:
Congress has established that providing equal educational access for children with disabilities is an important national policy and has enacted important federal statutes to further the achievement of that goal, notably the Individuals with Disabilities Education Act (“IDEA”). See 20 U.S.C. §§ 1400-1485. In its wisdom, however, Congress has left primary responsibility in this area with state and local educational authorities, especially for resolving disputes. Only after exhausting the remedial processes available within the state and local agencies may individuals seeking relief under the IDEA have access to the federal courts. Id. § 1415. The exhaustion requirement gives education professionals with expertise a reasonable opportunity to investigate and correct discriminatory policies or practices before the matter is taken up by federal courts.
That is not an accident. “The exhaustion doctrine embodies the notion that ‘agencies, not the courts, ought to have primary responsibility for the programs that Congress has charged them to administer.’ ” Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 (9th Cir.1992) (quoting McCarthy v. Madigan, 503 U.S. 140, 145, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992)). “Exhaustion of the administrative process allows for the exercise of discretion and educational expertise by state and local agencies, affords full exploration of technical educational issues, furthers development of a complete factual record, and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.” Id. (emphasis added). As the Supreme Court has observed, “courts lack the ‘specialized knowledge and experience’ necessary to resolve ‘persistent and difficult questions of educational policy,’ ” and Congress shared that view when it adopted the IDEA. Board of Educ. v. Rowley, 458 U.S. 176, 208, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 42, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973)).
The majority holds that the district court erred in dismissing the Students’ action for failure to exhaust their administrative remedies. Though none of the Students have exercised their right to a due process hearing, specifically provided for in 20 U.S.C. § 1415(f) and Cal. Educ.Code § 56501(a), it is enough for the majority that one (but only one) of the Students pursued a state complaint resolution procedure (“CRP”) to completion. The pivotal assumption underlying the majority’s reasoning is that the agency expertise which could be obtained and applied in a due process hearing would not be useful and is not needed to resolve this challenge. That assumption and the majority’s analysis is faulty for three reasons.
First, the majority asserts that the school policy at issue is invalid because the school schedule decision was a blanket, across-the-board administrative decision by county education officials, not a decision that “resulted from any individual Student’s IEP [Individualized Education Program] process.” Ante at 1211. Indeed, the “across-the-board” nature of the decision turns out to be the engine which drives the majority decision. It is the reason relied upon by the majority to dis*1215regard the fact that it might be appropriate to count lunch and recess as instructional time and thus to decide that there is no need for the factual inquiry identified by the district court and discussed below. That a decision may be made across-the-board does not necessarily mean that it is unlawful, however. That is the nature of a “policy.” There is no requirement that all school policies relating to autistic children must be made on an individual basis, student-by-student, or must arise out of the IEP process, and there should not be.
Second, the majority incorrectly concludes that the school policy counting lunch and recess hours as instructional time is facially invalid. To the contrary, the validity of the school policy rests on a factual inquiry: whether the substantive goals and objectives of the Students’ IEPs permit the counting of lunch and recess as instructional time. Agency expertise and a developed administrative record would be useful in resolving that question.
Third, by dismissing this action for failure to exhaust administrative remedies, the district court elected not to exercise discretion given to it under our case law. In holding that the district court was wrong in declining to exempt these plaintiffs from the administrative exhaustion requirement, we limit the district court’s ability to decide when the administrative system, with its greater expertise, would be more adept at addressing the problem than the federal courts.
I agree with the district court that this challenge should not be substantively litigated in federal court before it has been addressed via the appropriate administrative process by an agency with greater expertise. I am thus unable to join my colleagues in the majority opinion and respectfully dissent.
1. The “across-the-board" decision
The majority opinion states that the school policy at issue is invalid because “the school schedule was an across-the-board administrative decision by [the county], not a decision that resulted from any individual Student’s IEP process,” or one that “arose out' of the IEP process.” Ante at 1211, 1212. Further, the majority says the factual inquiry discussed in more detail below — whether counting lunch and recess as instructional time is consistent with the Students’ IEPs — does not need to be made because the school policy was a “blanket decision,” or an “across-the-board decision [which] was made without examining any IEP.” Ante at 1212, n. 5.
There simply is no requirement that all school policies relating to autistic children must arise out of individual students’ IEPs, or anything in the law which forbids a school from making broad-based decisions. The majority opinion provides neither reasoning nor citation to any authority to support the proposition that there is. Indeed, it is obvious that most school policies of widespread application-r-such as what days and hours school programs will be offered — do not arise from IEPs. I venture that not a single IEP says what time the school day should ordinarily end — 2:15, 3:00, 3:30, or whatever — but plainly every school sets a time, including a time that applies to students with disabilities. It does not violate federal law if that time does not “result from” or “arise out of’ individual students’ IEPs.
The majority argues nonetheless that the “across-the-board” policy in this case is forbidden, even if it is not forbidden generally, because of a California state regulation which provides that “the ‘instructional day’ for special education students ‘shall be the same period of time as [the] regular school day for that chronological peer group unless otherwise specified in the
*1216[IEP].’ ” Ante at 1211-12, n. 3 (emphasis and alterations in original). The majority appears to misunderstand either the defendants’ position, the regulation, or both. Defendants do not claim that they are permitted to provide autistic children with less instructional time because of something specified in the IEPs of those students. Instead, they contend that, after increasing the instructional time provided to autistic students by thirty minutes per day, in response to the CRP report by the California Department of Education (“CDE”), the amount of instructional time provided to the special education students is equal to or greater than the period of time provided to their peers in regular classes. If that is correct, the “unless” clause of the regulation, which references the IEPs, does not come into play. There is simply nothing in that regulation which requires that this or any other policy arise only out of the IEP process or which precludes the development of an “across-the-board” policy. The CDE — the agency primarily responsible for issuing and for enforcing the regulation in question — apparently concluded that the county was in compliance with the regulation. Ante at 1208.1 Thus, it is unclear why the majority concludes, contrary to the CDE, that this regulation “requires that the decision be made in the context of the Students’ IEPs.” Ante at 1211-12, n. 3. It does not.2
Plaintiffs’ complaint is that the county’s scheduling decision discriminates against autistic children because it provides them with less instructional time than is provided to other students. Our focus should properly be on whether that allegation is factually correct — i.e., the factual inquiry discussed below. How the policy was developed may be evidence relevant to the issue, but that is not itself the legal basis for the Students’ complaint.
The majority relies principally on decisions from the Office of Civil Rights (“OCR”) of the Department of Education which held that certain policies of shortened school days for disabled students violated section 504 of the Rehabilitation Act and the Americans with Disabilities Act. See ante at 1212-13. The OCR line of cases does not, however, support the proposition that the scheduling policy at issue is invalid as a “blanket” policy or that review of individual students’ IEPs is unnecessary to resolve the complaint. Rather, these cases support the district court’s conclusion that a developed administrative record and educational expertise are useful in determining the policy’s legality.
*1217The OCR did not rule in- these cases that the school policies at issue were facially illegal. Rather, the agency made particularized, factually intensive inquiries that relied upon developed administrative records. For example, in Greater Lafayette Area (IN) Special . Services, 352 Educ. Handicapped L. Rep. (CRR) 601 (June 14, 1988), the OCR was explicit that its “examination of the applicable portions of six (of 19) IEPs for students at the Center disclosed that the IEPs failed to reflect specific goals and objectives regarding behavior or other activities to be worked on during lunch or breaks.” 352 E.H.L.R. at 602.
Defendants in this case respond to the claim of discrimination by contending that they do not in fact discriminate, becausq as much instructional time is provided to autistic children as to other children. As correctly described by the district court, the key factual issue pertaining to that defense is whether the application of the scheduling policy is actually consistent with individual students’ IEPs. If it is not — if instructional activity during lunch and recess is not appropriate under the students’ IEPs — then the defense fails. That requires an examination of the IEPs, which is what the OCR did in Greater Lafayette Area. The majority is wrong in presuming that the individual IEPs do not matter in determining whether there has been a violation here.
We held in Hoeft that “[sjtructuring a complaint as a challenge to policies, rather than as a challenge to an individualized education program formulated pursuant to these policies ... does not suffice to establish entitlement to a waiver of the IDEA’S exhaustion requirement.” Id. at 1304(em-phasis added). We specifically rejected the “contention that whenever the challenge involves policies applied to all[disabled] students, exhaustion is excused,” and for good reason. Id. School districts require a degree of flexibility in devising general policies. The majority’s approach effectively requires school districts establishing policies of general applicability, such as those regarding basic resource allocations, to tailor them to the needs of every disabled child, despite the fact that such policies are mostly dictated by outside forces. While school policies must reflect and be consistent with the goals and objectives of disabled students’ IEPs, until now we have never required, school districts to formulate general policies for disabled children ' through a bottom-up “IEP process” in which all students’ IEPs ■dictate the exact contours of the resulting policy.
The majority’s approach could cripple the ability of school districts to create generally applicable policies. • The reasoning underlying the opinion implies that where one student’s IEP may be potentially in conflict with a general school policy, the policy decision must be rescinded, even though it could be compatible with the IEPs of all other affected disabled students. The fact that the policy fits most students — in this ' case, for instance, the possibility that providing instruction during lunch and recess hours may be appropriate for most autistic children — does not mean that the students who do not fit that policy do not have basis to complain. They do, but that is a complaint best taken up through review of the individual students’ needs, via a due process hearing. If a student is being shortchanged, the due process hearing will so determine and will address the deficiency. In the meantime, there should be nothing improper or unlawful about application of the policy to students for whom it fits.
2. Facial invalidity of the policy ■
Our decision in Hoeft made clear that the requirement that administrative reme*1218dies must be exhausted should be excused solely in the rare circumstances where “only questions of law are involved in determining the validity of a policy, as when the policy facially violates the IDEA.... In such cases, agency expertise and an administrative record are theoretically unnecessary in resolving the issue at hand.” Hoeft, 967 F.2d at 1305 (emphasis added).
This is not such a case. As the district court made clear, this case presents a factual inquiry — whether the substantive goals and objectives of the Students’ IEPs permit the counting of lunch and recess as instructional time. Further, that is an inquiry which may have a different answer for different students — it may be appropriate to count instructional activities during lunch and recess as instructional time for some students but not for others. Resolution of that inquiry would be aided by both a developed administrative record and educational expertise. The district court here not only lacked educational expertise, but did not even have before it a complete administrative record containing the IEPs of all the Students.
The district court stated that “it is not unlawful to include lunch and recess minutes for special education instruction if the IEP contains goals and objectives regarding those skills and if appropriate instruction is provided during that time.” The majority opinion does not dispute that legal conclusion. Nor does the majority contest the observation by the district court that it had “no information about the IEP of Robert F and knows nothing at all about the IEPs of the other children in Classroom B6 or any other classrooms attended by autistic children.” (Emphasis added). Finding the record inadequate to make the requisite factual determination, the district court concluded that the “plaintiffs’ complaint is one that should be handled by an impartial due process hearing,” and that the question of whether “the law allows inclusion of lunch and recess minutes depend[s] on the IEP ... ,[and is] a factual inquiry that ... should be addressed in the first instance in the due process hearing provisions of the IDEA.”3 The district court was right.
In characterizing the school policy as a “decision [which] was made without examining any IEP,” ante at 1212, n. 5, for example, the majority does not comment on the possibility that school officials might already have had an independent understanding of whether it would be appropriate to count instruction provided during lunch and recess periods, under the IEPs of affected students, so that they did not need to examine the IEPs. The majority does not even rule out the possibility that counting lunch and recess as instructional time might be consistent with the IEPs of every single student affected by the policy. Since the IEPs are not in the record, we do not know. Those facts are important. The lack of a developed record is a legitimate and appropriate reason for the district court to decide that exhaustion of administrative remedies should be required here.
The majority’s conclusion may be prompted, at least in part, by skepticism concerning the substantive merit of the defendants’ position. The notion that “lunch” and “recess” should count as instructional time may seem dubious on its face to persons not familiar with the needs *1219of autistic children. It certainly struck me that way, at first. The circumstances here make it easy to infer that the rationale being offered for the county’s policy lacks merit and was simply an after-the-fact rationalization. Thus, the question posed by this case may seem to be a simple one, for which administrative exhaustion should not be required, since a developed administrative record and the application of expertise are not necessary to answer the question.
On closer examination, though, the record here offers support for the defendants’ position. Notably, the CDE, in the complaint resolution process, sustained the position that it could be appropriate to count instructional efforts during lunch and recess. The district court had before it a declaration which stated, in the court’s words, “that the IEPs of the three plaintiffs in this action contain goals and objectives designed to develop specific functional skills that are taught to these students during each lunch and recess period of the school day.” The question posed by this case turns out not to be so simple, after all.
In reversing the district court’s imposition of the exhaustion requirement, the majority disregards our observation in Hoeft that “[fjederal courts — generalists with no experience in the educational needs of handicapped students — are given the benefit of expert factfinding by a state agency devoted to this very purpose.” 967 F.2d at 1303 (emphasis added). Like the district court, we lack a developed administrative record and the requisite expertise to determine whether the substantive goals and objectives of the Students’ IEPs permit the counting of lunch and recess as instructional time. The exhaustion requirement is intended to help us overcome those limitations. It should not be dispensed with here.
3. The district court’s exercise of discretion
Our prior cases have given district courts discretion to decide when the exhaustion requirement may be dispensed with as unnecessary in a given case, or when the state system — with its greater level of expertise — would be more adept at addressing the problem than the federal courts. We have stated that “on a case by case basis, district courts may choose to require or to, accept exhaustion of the CRP as a substitute for exhausting IDEA procedures in challenges to facially invalid policies.” Porter v. Board of Trustees, 307 F.3d 1064, 1073 (9th Cir.2002) (internal quotation marks omitted) (first emphasis added); see also id. at 1074 (stating that “the filing of a CRP complaint may be sufficient to meet the exhaustion requirement” and that “the CRP may serve as a substitute for due process system exhaustion”) (emphases added).
In other words, we have only held that under certain, unique circumstances, district courts possess the discretion to deviate from IDEA’S statutory directive requiring administrative, due process system exhaustion. We have never held that completion of the CRP may serve as an automatic exemption from the exhaustion requirement, nor have we ever reversed a district court for adhering to IDEA’S requirement of administrative exhaustion.
That is, however, what the majority’s decision does here. It does that in the face of a clear conclusion by the district court, after reviewing the issues and record, that the decisionmaking process in this particular case would be better served by requiring initial review of individual Student’s claims in due process hearings within the state’s administrative process. In holding that the district court must exempt these plaintiffs from the administrative exhaustion requirement, we limit *1220the district court’s discretion to decide when the administrative adjudication system — with its greater level of expertise— would be more adept at addressing the problem than the federal courts. That is something we have not done in our previous decisions, and which we should not do here.
k. Conclusion
Requiring plaintiffs to exhaust the administrative remedies does not mean that their claims will be unfairly or improperly denied. Court review is still available to them if the administrative adjudicative process fails. But there is no reason to assume that the administrative process will fail. If, in fact, the school scheduling decision here cannot be reconciled with the Students’ IEPs, that will likely be the result reached in a due process hearing. Neither the Students nor the majority have given any reason to believe otherwise.
Moreover, a substantive resolution to the complaint would likely have been reached far more quickly if the Students had exhausted the administrative process when they could have and should have, rather than battled to avoid that process. I cannot help but note that this lawsuit concerns a schedule announced at the beginning of the 2000-01 school year, more than four years ago. By inviting appeal of district court determinations that plaintiffs should be required to exhaust administrative remedies before proceeding in court, our decision here will likely encourage more court activity rather than less. That is not what Congress intended.
I respectfully dissent.
. The regulation does not require that the instructional time be at exactly the same time of day. The reference by the majority to the fact that the autistic students receive instruction during lunch and recess, while their peers do not, is irrelevant. That does not constitute a violation, at least apparently not according to the CDE. The regulation speaks to the ''period” or quantity of time, not to what hour of the day or what activity may be involved.
. To be clear, whether defendants’ justification is true depends upon the factual inquiry discussed below — whether it is appropriate to count instruction provided during lunch or recess periods as instructional time for these students. A proper answer to that question may properly involve a review of the needs of the students and the types of instruction that are appropriate, as expressed in the IEPs. It is not my position that the IEPs are not relevant. It is my position that schools should not be limited to policies which may emerge from the IEP process itself. A school should be permitted to establish policies applicable to all students, or to all disabled students, without necessarily violating the law simply because that policy was developed and applied on an across-the-board basis. If students with disabilities are shortchanged as a result, they have remedies, but a violation should not be assumed — or requirements of exhaustion disregarded — simply because an across-the-board policy is announced.
. Nor did the CDE have before it a complete administrative record in the complaint resolution process. The only IEP it had belonged to Christopher S. It did not have the IEPs for any of the other plaintiffs to this action or any of the other autistic students affected by the policy which is challenged here. The CDE concluded, after the county lengthened the school day for autistic children, that the school’s policy did not violate state and federal law.