A.G. v. Paradise Valley Unified Sch. Dist., Nos. 13/16239/13-16707 (9th Cir. Mar. 3, 2016)
Abstract: A U.S. Court of Appeals for the Ninth Circuit three-judge panel has ruled that a disabled student stated valid claims for damages under both § 504 of the Rehabilitation Act (§ 504) and Title II of the Americans with Disabilities Act (ADA). The panel concluded that the federal district court erred in granting a school district’s motion for summary judgment on the student’s claims for damages under § 504 and Title II of the ADA. It found that the student had alleged sufficient facts to raise a question of disputed material fact regarding whether the school district had denied the student meaningful access to educational benefits and reasonable accommodation. The panel also determined that the student had shown sufficient facts to raise the question of whether the school district had notice of the student’s need for an accommodation and failed to act. As a result, there was a material dispute of fact regarding the issue of deliberate indifference needed to recover damages based on the 504 and Title II of the ADA claims.
This summary is limited to the discussion of the § 504 and Title II of the ADA claims.
Facts/Issues: A.G., a special education student, attended Vista Verde Middle School (VVMS) in the Uniquely Gifted Program for students with high IQs and one or more learning or behavioral disabilities. During that time, A.G. periodically demonstrated aggressive, disruptive, and noncompliant behavior. Her Individualized Education Plan (IEP) set forth various educational services that would be provided to A.G.
However in December of 2009, A.G.’s behavior began to deteriorate. By January of 2010, she refused to go to class, destroyed school property, threatened to harm herself, wrote graffiti on a bathroom wall, and was uncooperative with a school resource officer, eventually physically striking that officer. A.G. was suspended from Vista Verde following the last incident.
In February 2010, A.G.’s IEP Team met and adopted an Addendum to A.G.’s IEP. Pursuant to the Addendum, A.G. was to be transferred to the Roadrunner School (RS), a school primarily designed for children with emotional disturbances, where she was to participate in an assortment of counseling, behavior management, and special education programs. A.G.’s parents agreed to the addendum. A.G.’s parents were informed that A.G. would not be restrained at RS unless she became a danger to herself or others.
A.G. demonstrated behavioral issues on her second day at RS. She resisted entering the school that day and had to be physically escorted onto the premises by staff members and led to the “Intervention Room.” During that incident, A.G. kicked a paraprofessional in the face. Officer Lori Welsh, a city police officer who worked as off-duty security at the school, was summoned and she arrested A.G. for aggravated assault and criminal damage. Officer Welsh placed A.G. in handcuffs and detained her until her mother arrived to pick her up.
On March 23, 2010, Officer Welsh was again summoned by one of A.G.’s teachers to escort A.G. to the Intervention Room. Officer Welsh attempted to handcuff A.G. for allegedly poking her in the eye, but A.G. resisted and eventually scratched Officer Welsh in the face and neck. Officer Welsh placed A.G. in an arm bar, applied handcuffs, and called for backup. A.G. was eventually arrested for aggravated assault, transported to the police precinct for booking, and placed in a juvenile detention room where she kicked the table and chair.
After being transported to the Juvenile Court Center, A.G. was released to her parents. The charges stemming from both incidents were later dismissed, and A.G. returned to RS. She was eventually moved to the Howard S. Gray School, a private psychiatric school, at the expense of Paradise Valley Unified School District (PVUSD).
A.G. and her parents filed an administrative due process complaint with the Arizona Department of Education alleging that A.G. was denied a FAPE by PVUSD and its named representatives and employees. The administrative complaint sought remedies available under the IDEA. Plaintiffs also filed the present action in Arizona state court against PVUSD, the City of Phoenix, and Officer Welsh. Defendants later removed the action to federal district court.
In their amended complaint, plaintiffs alleged a denial of FAPE under the procedural provisions of the Individuals with Disabilities Education Act (IDEA), under § 504 and Title II of the ADA, as well as various state common law tort claims against the school district defendants.
The plaintiffs’ principal discrimination-based claims relate to the school district’s alleged failure to provide adequate accommodations, including a Functional Behavior Assessment (FBA), a Behavior Intervention Plan (BIP), and a full-time aide, and PVUSD’s decision to change A.G.’s placement from VVMS to RS. Plaintiffs alleged that having further accommodations would have allowed A.G. to continue attending VVMS.
In April 2012, the plaintiffs and PVUSD entered into a settlement agreement releasing plaintiffs’ IDEA claims. The settlement agreement expressly reserved plaintiffs’ ability to proceed on their other federal claims pending in district court. In May 2013, the district court granted summary judgment in favor of PVUSD on all remaining claims, dismissing plaintiffs’ claims under § 504 and Title II of the ADA, as well as plaintiffs’ state tort law claims.
Ruling/Rationale: The Ninth Circuit panel reversed the district court decision granting PVUSD summary judgement on the § 504 and Title II of the ADA claims and remanded the case to the district court. It began its discussion pointing out that the plaintiffs’ discrimination claims hinged on three overlapping federal disability laws: IDEA, § 504, and Title II of the ADA.
The panel stated that “IDEA focuses on making a FAPE [free appropriate public education] available to disabled students through development of Individualized Education Programs.” It pointed out that § 504 “is broader than the IDEA” because “it is concerned with discrimination in the provision of state services to all individuals with disabilities.”
The panel emphasized that § 504’s regulations require qualifying public schools to “provide a free appropriate public education to each qualified handicapped person.” It stated: “Under those section 504 regulations, FAPE requires ‘regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of [34 C.F.R.] §§ 104.34, 104.35, and 104.36.’”
However, the panel pointed out that “a showing that FAPE was denied under the IDEA does not necessarily establish a denial of FAPE under section 504.” It also explained that that while there are differences between § 504, and Title II of the ADA “for purposes of this appeal the elements of a valid Title II claim do not differ in any material sense from those of a valid section 504 claim and the two may be addressed together.”
Turning to the elements required to prove a claim under § 504, or Title II of the ADA, the panel said a plaintiff must show:
(1) she is a qualified individual with a disability; (2) she was denied a reasonable accommodation that [she] needs in order to enjoy meaningful access to the benefits of public services; and (3) the program providing the benefit receives federal financial assistance.
It also pointed out that a public entity can be liable for damages under § 504 if it “intentionally or with deliberate indifference fails to provide meaningful access or reasonable accommodation to disabled persons.”
The panel then turned to the question of whether the district court had erred in dismissing A.G.’s meaningful access and reasonable accommodation arguments. In regard to meaningful access, the plaintiffs contended that PVUSD denied A.G. meaningful access to educational benefits by violating two of section 504’s regulations: 34 C.F.R. § 104.33(b)(1) and 34 C.F.R. § 104.34(a).
Specifically, the panel argued that by placing A.G. at RS she was denied access to certain education programs, such as art, music and gifted classes because those were not available at RS. They also contended A.G. “was inappropriately placed in the Intervention Room for a total of approximately sixty hours.” In addition, the plaintiffs claimed PVUSD “denied A.G. meaningful access to the curriculum at both Vista Verde and Roadrunner because they failed to provide her appropriate behavioral supports and services at the two schools, as reflected in her allegedly deficient IEPs.”
According to the plaintiffs, PVUSD’s transfer of A.G. to RS failed to comply with 34 C.F.R. § 104.34’s procedural requirements, thus preventing A.G. from accessing certain educational opportunities. The panel rejected the district court’s reliance on the fact that the parents had consented to IEP addendum transferring A.G. to RS. It noted that the Ninth Circuit had previously “held that claims challenging the placement of a disabled child are not barred simply because the parents of the child consent, or fail to object, to such placement.”
The panel, instead, was persuaded that a claim that meaningful access has been “improperly denied within the meaning of [§ 504, or Title II of the ADA] is not ‘precluded or waived based on a parent’s consent to an IEP,’ at least where the issue is one that requires specialized expertise a parent cannot be expected to have.” It found, based on the “complex presentation of A.G.’s behavioral challenges,” that “the question whether Roadrunner was an appropriate placement for A.G. required specialized expertise.”
As a result, the panel provided the district court with detail instructions on remand:
(1) which claims for violation of section 504 regulations plaintiffs preserved; (2) whether those regulations fall within the scope of the prohibition contained in § 504 itself; (3) whether the school district violated those regulations; and (4) whether the school district’s violation of those regulations prevented A.G. from accessing her public education.
The panel next took up the issue of whether PVUSD failed to provide A.G. with reasonable accommodations to allow her to meaningfully access her education. The plaintiffs argued that “A.G. needed further behavioral services, including a full time behavioral aide, to meaningfully access her education.” It found the evidence presented by the plaintiffs created “an issue of material fact as to whether accommodations, such as a personal behavioral aide, would have helped A.G. remain at Vista Verde.”
The panel emphasized that § 504 “create[s] a duty to gather sufficient information from the disabled individual and qualified experts as needed to determine what accommodations are necessary.” It, therefore concluded “that a triable factual dispute exists as to whether the services plaintiffs fault the school district for failing to provide were actually reasonable, necessary, and available accommodations for A.G.” As a result, the panel held that the district court’s granting of summary judgment on this issue was improper.
Finally, the panel concluded that the plaintiffs had raised a issue of genuine fact on the question of whether PVUSD had notice that A.G. was in need of accommodation and acted to take action to provide such accommodation. It, therefore, found there was a triable issue of fact regarding whether PVUSD was deliberately indifferent, which would allow the plaintiffs to recover damages on the § 504 and Title II of the ADA claims.
A.G. v. Paradise Valley Unified Sch. Dist., Nos. 13/16239/13-16707 (9th Cir. Mar. 3, 2016)
[Editor’s Note: In August 2013, Legal Clips summarized a decision by a Ninth Circuit three-judge panel in K.M. v. Tustin Unified Sch. Dist. holding that compliance with IDEA does not satisfy all claims under Section 504 of the Rehabilitation Act or under the Americans with Disability Act (ADA). As a result, a school district’s provision of an IEP valid under the IDEA does not automatically preclude liability under Section 504 or the ADA. The panel also determined that there are material differences in the obligations imposed by the IDEA and the ADA to provide services to hearing impaired students.
In January 2014, Legal Clips published a Sua Sponte item announcing that NSBA and the California School Boards Association had filed an amicus brief with the U.S. Supreme Court in support of the school district, asking the Court to review and reverse the Ninth Circuit’s erroneous decision. The brief argued in part that “courts have consistently held that educational decisions for students with disabilities are governed by the provisions of the IDEA and its IEP team process.” ]