H. v. Lemahieu

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK H., individually and as 

Guardian Ad Litem of Michelle H.

and Natalie H., minors,

Plaintiff-Appellant,

RIE H., individually and as

Guardian Ad Litem of Michelle H.

and Natalie H., minors,

Plaintiff-Appellant,

v.

PAUL LEMAHIEU, in his official

capacity as superintendent of the No. 05-16236

Hawaii Public Schools; ELSIE

TANAKA, in her official capacity as  D.C. No.

CV-00-00282-MLR

Principal of Kipapa Elementary

School; JUDITH SARAN-CHOCK, in OPINION

her official capacity as Principal

of Ala Wai Elementary School;

PETER CHUN, in his official

capacity as Principal of Hokulani

Elementary School; HAROLDEEN

WAKIDA, in her official capacity as

Principal of Ali’iolani Elementary

School; DEPARTMENT OF

EDUCATION, State of Hawaii; KEITH

HUNTER, SR., special master,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Hawaii

Manuel L. Real, District Judge, Presiding

591

592 MARK H. v. LEMAHIEU

Argued and Submitted

June 6, 2007—Honolulu, Hawaii

Filed January 17, 2008

Before: David R. Thompson, Marsha S. Berzon, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Berzon

594 MARK H. v. LEMAHIEU

COUNSEL

Michael K. Livingston, Honolulu, Hawaii, for the plaintiffs.

Dorothy D. Sellers, Deputy Attorney General, Honolulu,

Hawaii, for the defendants.

OPINION

BERZON, Circuit Judge:

In 2000, Mark H. and Rie H., both individually and as

guardians ad litem for their autistic daughters (“the H. fami-

ly”), sued the Hawaii Department of Education and various

MARK H. v. LEMAHIEU 595

school officials in their official capacities (collectively, “the

Agency”) for damages for alleged violations of the Individu-

als with Disabilities Education Act (IDEA), Pub. L. No. 91-

230, 84 Stat. 175 (Apr. 13, 1970), and of § 504 of the Reha-

bilitation Act of 1973 as amended, 29 U.S.C. § 794. Among

other rulings, the district court held that “there are no rights,

procedures, or remedies available under § 504 for violations

of the IDEA’s affirmative obligations,” and that the United

States Department of Education’s (“U.S. DOE’s”) § 504 regu-

lations are not enforceable through a private right of action.

It is the relationship between the IDEA and the U.S. DOE’s

regulations implementing § 504 of the Rehabilitation Act that

is at the heart of this case.

As it turns out, that relationship is not straightforward. The

IDEA requires, among other things, that states accepting

funds under the Act provide disabled children with a “free

appropriate public education” (“FAPE”). 20 U.S.C.

§ 1412(a)(1). Section 504 of the Rehabilitation Act requires

that disabled individuals not “be excluded from the participa-

tion in, be denied the benefits of, or be subjected to discrimi-

nation under any program or activity” that receives federal

funds. 29 U.S.C. § 794. The U.S. DOE regulations imple-

menting § 504 include a requirement that disabled children in

schools receiving federal funds be provided a “free appropri-

ate public education.” 34 C.F.R. § 104.33. The parties and the

district court have assumed throughout this litigation that a

violation of the IDEA statutory FAPE requirement necessarily

constitutes a violation of the § 504 regulations’ FAPE require-

ment, an understandable assumption given the use of identical

language. As we develop below, however, this assumption is

wrong. The FAPE requirements in the IDEA and in the § 504

regulations are, in fact, overlapping but different.

This fundamental misunderstanding has complicated our

resolution of the issues in this case. Additionally, Congress

has clearly stated its intent to preserve all remedies under

§ 504 for acts that also violate the IDEA. For these two rea-

596 MARK H. v. LEMAHIEU

sons, we hold the availability of relief under the IDEA does

not limit the availability of a damages remedy under the § 504

FAPE regulations.

As the H. family has assumed that alleging a violation of

the IDEA FAPE requirement is sufficient to allege a violation

of § 504, they have not specified precisely whether they

believe the U.S. DOE’s § 504 FAPE regulations, as opposed

to the IDEA FAPE requirement, were violated, and, if so, in

what regard. Without some clarity about precisely which

§ 504 regulations are at stake and why, we cannot determine

whether the H. family has sufficiently alleged a privately

enforceable cause of action for damages. We thus reverse the

order of the district court granting summary judgment to the

Agency and remand for further proceedings.

BACKGROUND

I. FACTS

A. Historical Background and the Felix Consent

Decree.

Hawaii has long struggled to provide adequate services to

special needs students in compliance with state and federal

law. The U.S. DOE performed a site visit to Hawaii in 1991

and determined that the Hawaii Department of Education

(“Hawaii DOE”) was not complying with federal law “be-

cause mental health services were not always provided to

meet the needs of special education students.”1 The U.S. DOE

report found that although “[t]he [Hawaii] DOE is legally

responsible for furnishing these services, . . . [t]he [Hawaii

1

The IDEA does not use the term “mental health services,” but requires

states to provide “related services” — including, for example, “psycholog-

ical services, physical and occupational therapy . . . [and] social work ser-

vices” — “as may be required to assist a child with a disability to benefit

from special education.” 20 U.S.C. § 1401(26); 20 U.S.C. § 1412.

MARK H. v. LEMAHIEU 597

Department of Health (“Hawaii DOH”)] provides some free

services to these students, but only when it has the resources.”

The U.S. DOE warned the Hawaii DOE that it must provide

or purchase appropriate mental health services for special

education students.

In January of 1993, a report by the Auditor for the State of

Hawaii entitled A Study on the Memorandum of Agreement

for Coordinating Mental Health Services to Children, No. 93-

1, acknowledged that efforts to coordinate among state agen-

cies the provision of mental health services for special educa-

tion students had largely failed. The report concluded that

“the [Hawaii DOE] must provide or purchase mental health

services for special education students when the [Hawaii

DOH] cannot provide these services.”

Later in 1993 a class of plaintiffs comprised of disabled

children and adolescents eligible for special education and

mental health services sued the Hawaii DOE and the Hawaii

DOH in federal court, claiming a failure to comply with the

IDEA and with § 504 of the Rehabilitation Act. Felix v. Wai-

hee, CV. No. 93-00367-DAE. The district court granted sum-

mary judgment for the class on the issue of liability, finding

that the agencies “ha[d] systematically failed to provide

required and necessary educational and mental health services

to qualified handicapped children,” in violation of both fed-

eral laws. Thereafter, in 1994, the parties entered into a con-

sent decree (the “Felix Decree”), which was approved by the

district court.

In the Felix Decree, the two state agencies acknowledged

that they had violated the federal IDEA and § 504 of the

Rehabilitation Act. The agencies agreed that the Hawaii DOE

would provide all educational services the Felix class mem-

bers require; that the Hawaii DOH would provide all mental

health services the class members require to benefit from the

educational services; and that the two agencies would create

and maintain a system of care adequate to provide a contin-

598 MARK H. v. LEMAHIEU

uum of services, placements, and programs necessary for dis-

abled students. The Felix Decree defined the plaintiff class as

“all children and adolescents with disabilities residing in

Hawaii, from birth to 20 years of age, who are eligible for and

in need of education and mental health services but for whom

programs, services, and placements are either unavailable,

inadequate, or inappropriate because of lack of a continuum

of services, programs, and placements.” Autistic children fall

within the Felix class.

B. Michelle H.

Michelle H. and Natalie H. are the children of Mark and

Rie H. Michelle H. was born on February 15, 1991. In March

1994, a Hawaii DOH psychologist who examined Michelle

concluded that she had “mild Autistic Spectrum Disorder (or

Pervasive Developmental Disorder).”2 The DOH psychologist

made a number of recommendations to address Michelle’s

limitations, including enrollment in the Hawaii DOE’s Pre-

school Program, use of numerous autism-specific approaches,

and assignment of an extra aide to work one-on-one with

Michelle in the classroom. According to the Hawaii DOE, the

psychologist’s recommendations to deal with Michelle’s

autism were never implemented “because of difficulties . . .

in getting appropriate personnel as well as appropriate fund-

ing.”

In April 1994, the Hawaii DOE performed its own aca-

demic and psychological evaluation of Michelle to determine

her early special education needs. The Hawaii DOE found

Michelle eligible for early special education services under

2

“Pervasive Developmental Disorder (PDD) is a category designated by

the American Psychiatric Association to indicate children with delay or

deviance in their social/language/motor and/or cognitive development. . . .

Autism is the most severe of the pervasive developmental disorders.”

Yale Developmental Disabilities Clinic, Information About Pervasive

Developmental Disorders, http://www.med.yale.edu/chldstdy/autism/

pddinfo.html#difference (last visited December 27, 2007).

MARK H. v. LEMAHIEU 599

the IDEA because of “chronic emotional impairment,” not

because she suffered from an autism disorder. The Hawaii

DOE developed an Individualized Educational Program

(“IEP”) for Michelle, including placement in a fully self-

contained special education classroom on a regular school

campus for an extended school year with special education

and speech therapy services. Michelle’s IEP was updated at

regular intervals through 1998, but the recommendations

remained substantially unchanged. No representative from

DOH attended any of the IEP sessions to discuss mental

health services.

In April 1997, the Hawaii DOE changed Michelle’s eligi-

bility category from “Emotional Impairment” to “Autism.”

The Hawaii DOE reassessed her IEP in January 1998, after

the diagnosis changed. The recommendations in the new IEP

remained nearly identical to those made before the change in

diagnosis and included no additional individualized services

related to autism.

C. Natalie H.

Natalie H. was born on August 3, 1992. In 1994, the pre-

school that Natalie was attending, concerned that she might

have a “pervasive development disorder,” referred her to the

Hawaii DOH. The Hawaii DOH performed a psychological

evaluation in September 1994 and determined that, at the age

of two, Natalie was developmentally at the age of a one-year

old overall, but that “[she] showed no symptoms of Pervasive

Developmental Disorder.” In early 1995, Natalie’s family

doctor observed developmental delays and referred her to

Kaiser Permanente for a neurological evaluation. The Kaiser

evaluation diagnosed Natalie with autism and recommended

that she be provided with appropriate special education.

In the spring of 1995, when Natalie was nearly three, the

Hawaii DOE academically evaluated her and deemed her eli-

gible for special education services, classifying her disability

600 MARK H. v. LEMAHIEU

as an “Early Childhood Learning Impairment,” not autism. An

IEP prepared for Natalie on July 7, 1995 specified that she

was to be placed in a fully self-contained special education

classroom on a regular school campus for an extended school

year, just as Michelle was.

Natalie’s next IEP assessment, in March 1996, noted that

the Kaiser evaluation had concluded in February 1995 that

she was autistic. Natalie’s IEP was reevaluated on an annual

basis through 1998, although, as with Michelle, no mental

health representative attended the meetings. In March 1998,

the Hawaii DOE changed Natalie’s eligibility category from

“Early Childhood Learning Impairment” to “Autism.”

D. The Administrative Hearing.

Natalie and Michelle’s parents initiated an administrative

action against the Hawaii DOE in 1999, alleging that the girls

were denied a free appropriate public education (“FAPE”)

under the IDEA and § 504,3 that their IEPs were deficient, and

that the Hawaii DOE had violated their procedural rights. A

hearing was held, and, in a detailed decision, the administra-

tive officer found significant violations of the IDEA. Among

his factual findings were that (1) “No special (autism) ser-

vices were provided from 1994 to 1998”; (2) at the elemen-

tary school the girls attended, “the principal did not include

mental health services as part of the IEP” because “this had

been the system . . . prior to” the Felix Decree “and she was

not familiar at that time with the new procedures”; (3) “No

IEP to the present time includes all of the mental health ser-

vices that were authorized or agreed upon by the IEP team”;

and (4) Natalie and Michelle’s special education teacher was

generally inexperienced and had no experience with autistic

children prior to her current job. The administrative officer

3

Although the H. family alleged both IDEA and § 504 violations at the

administrative level, the administrative ruling addressed only the IDEA

violations.

MARK H. v. LEMAHIEU 601

determined, based on these findings, that Natalie and Michelle

had been denied a FAPE under the IDEA, that their IEPs were

inadequate, and that numerous procedural violations had

occurred.

The administrative officer instructed the Hawaii DOE to

take a number of steps to remedy the violations. There is no

contention that the Hawaii DOE has not complied with the

administrative order, which was not appealed, or that Natalie

and Michelle are currently being denied a FAPE as defined by

the IDEA.

II. STATUTORY CONTEXT

Before recounting the procedural history of this case, we

examine the two related but separate statutes central to this lit-

igation, the IDEA and § 504 of the Rehabilitation Act.

The statute presently known as the IDEA originated in

1970 as part of the Education of the Handicapped Act. Pub.

L. No. 91-230, 84 Stat. 175 (Apr. 13, 1970). It was later

amended substantially in the Education for all Handicapped

Children Act of 1975, Pub. L. No. 94-142, 89 Stat. 773 (Nov.

29, 1975), and was amended again and renamed the “Individ-

uals with Disabilities Education Act” in 1990. Pub. L. No.

101-476, 104 Stat. 1103 (Oct. 30, 1990). For simplicity, we

refer to all versions of the statute as IDEA, even though that

title did not appear until 1990.

At the time the 1975 amendments were enacted, “the

majority of disabled children in America were ‘either totally

excluded from schools or sitting idly in regular classrooms

awaiting the time when they were old enough to [drop out].’ ”

Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 52 (2005)

(quoting H.R. Rep. No. 94-332, p. 2 (1975)). Among Con-

gress’s purposes in enacting the IDEA was “to ensure that all

children with disabilities have available to them a free appro-

priate public education that emphasizes special education and

602 MARK H. v. LEMAHIEU

related services designed to meet their unique needs and pre-

pare them for further education, employment, and indepen-

dent living.” 20 U.S.C. § 1400(d)(1)(A). The IDEA defines a

FAPE as:

special education and related services that — (A)

have been provided at public expense, under public

supervision and direction, and without charge; (B)

meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary

school, or secondary school education in the State

involved; and (D) are provided in conformity with

the individualized education program required under

section 1414(d) of this title.

20 U.S.C. § 1401(9).

States that receive federal financial assistance under the

IDEA must demonstrate that they have in effect “policies and

procedures” to provide disabled children with a FAPE, by

developing an “individualized education program” (“IEP”) for

each child.4 20 U.S.C. § 1412(a), (a)(1), (a)(4). The IDEA

4

20 U.S.C. § 1414(d) defines an IEP as:

. . . a written statement for each child with a disability that is

developed, reviewed, and revised in accordance with this section

and that includes—

(I) a statement of the child’s present levels of academic

achievement and functional performance, including—

(aa) how the child’s disability affects the child’s involvement

and progress in the general education curriculum;

(bb) for preschool children, as appropriate, how the disability

affects the child’s participation in appropriate activities; and

(cc) for children with disabilities who take alternate assess-

ments aligned to alternate achievement standards, a description

of benchmarks or short-term objectives;

(II) a statement of measurable annual goals, including aca-

demic and functional goals, designed to—

MARK H. v. LEMAHIEU 603

creates a cause of action under which a court may grant indi-

viduals “such relief as [it] determines is appropriate” for vio-

lations of the IDEA. 20 U.S.C. § 1415(i)(2)(C)(iii). Although

injunctive relief is available under the IDEA, “ordinarily

monetary damages are not.” Witte v. Clark County School

Dist., 197 F.3d 1271, 1275 (9th Cir. 1999); see also Taylor by

and through Taylor v. Honig, 910 F.2d 627, 628 (9th Cir.

1990).

While the IDEA focuses on the provision of appropriate

public education to disabled children, the Rehabilitation Act

of 1973 more broadly addresses the provision of state services

to disabled individuals. Section 504 of the Rehabilitation Act,

the Act’s core provision, states that:

No otherwise qualified individual with a disability in

the United States . . . shall, solely by reason of her

or his disability, be excluded from the participation

in, be denied the benefits of, or be subjected to dis-

crimination under any program or activity receiving

Federal financial assistance or under any program or

activity conducted by any Executive agency or by

the United States Postal Service.

29 U.S.C. § 794(a). Section 504 applies to all public schools

that receive federal financial assistance. See 29 U.S.C.

§ 794(b)(2)(B) (defining “program or activity” to include the

operations of “local educational agenc[ies]”).

Agencies may promulgate regulations that implement the

requirements concerning treatment of disabled individuals

(aa) meet the child’s needs that result from the child’s disabil-

ity to enable the child to be involved in and make progress in

the general education curriculum; and

(bb) meet each of the child’s other educational needs that result

from the child’s disability; . . .

604 MARK H. v. LEMAHIEU

contained in § 504. See Alexander v. Choate, 469 U.S. 287,

304 n.24 (1985) (agencies have “substantial leeway to explore

areas in which discrimination against the handicapped pose[s]

particularly significant problems and to devise regulations to

prohibit such discrimination”); S. Rep. 93-1297, at 40-41

(1974), as reprinted in 1974 U.S.C.C.A.N. 6373, 6390 (Sec-

tion 504 “does not specifically require the issuance of regula-

tions . . . but it is clearly mandatory in form . . . and such

regulations . . . are intended.”). The Department of Health,

Education and Welfare [“HEW”], the predecessor to the U.S.

DOE, promulgated regulations interpreting § 504. Those reg-

ulations are currently in force as U.S. DOE regulations. 34

C.F.R. §§ 104.1-104.61.

As pertinent to this case, the U.S. DOE’s § 504 regulations

require recipients of federal funds to “provide a free appropri-

ate public education to each qualified handicapped person,”

and define “appropriate education” as:

regular or special education and related aids and ser-

vices that (i) are designed to meet individual educa-

tional 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.

34 C.F.R. § 104.33(a), (b).

The first regulation cross-referenced in § 104.33, § 104.34,

requires that recipients place disabled individuals in a “regular

educational environment” unless it can be shown that “the

education of the person in the regular environment with the

use of supplementary aids and services cannot be achieved

satisfactorily.” 34 C.F.R. § 104.34(a). When a handicapped

individual is removed from a regular environment, the facility

in which she is placed must be “comparable” to that used by

non-disabled students. 34 C.F.R. § 104.34(c). The remaining

MARK H. v. LEMAHIEU 605

cross-referenced regulations, 34 C.F.R. §§ 104.35 and 104.36,

require evaluation and testing of all those who need or are

believed to need special education, as well as the development

of procedural safeguards to ensure that guardians of disabled

children receive notice, access to relevant records, and an

opportunity for an “impartial hearing.”

Section 504 establishes an implied private right of action

allowing victims of prohibited discrimination, exclusion, or

denial of benefits to seek “the full panoply of remedies,

including equitable relief and [compensatory] damages.”

Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d

1103, 1107 (9th Cir. 1987); see also Barnes v. Gorman, 536

U.S. 181, 189 (2002). Punitive damages are not available

under § 504. Barnes, 536 U.S. at 189.

In sum, the IDEA contains a statutory FAPE provision and

allows private causes of action only for prospective relief.

Section 504 contains a broadly-worded prohibition on dis-

crimination against, exclusion of and denial of benefits for

disabled individuals, under which the U.S. DOE has promul-

gated regulations containing a FAPE requirement worded

somewhat differently from the IDEA FAPE requirement. Sec-

tion 504 can be privately enforced to provide, in addition to

prospective relief, compensatory but not punitive damages for

past violations.

III. FEDERAL COURT PROCEEDINGS

The litigation history of this case is somewhat tortuous. We

recount these proceedings in some detail, as they demonstrate

the significance of the assumptions about the relationship

between § 504 and the IDEA that have persisted throughout

this litigation.

In 2000, the girls and their parents filed a federal lawsuit

against the Hawaii DOE and various school officials in their

official capacities for violations of the IDEA and of § 504 of

606 MARK H. v. LEMAHIEU

the Rehabilitation Act of 1973. The complaint requested com-

pensatory, punitive,5 and hedonic damages,6 and stated that it

was authorized by § 504 of the Rehabilitation Act, the IDEA,

and 42 U.S.C. § 1983. The H. family alleged, among other

things, that the “[Agency]’s failure to provide autism specific

services to Natalie and Michelle during the crucial years of

ages three to seven through appropriately trained personnel

and in appropriate classrooms was a violation of § 504, and

constituted deliberate indifference to the needs and rights of

these children.” The complaint continued by alleging that

“Michelle and Natalie have been discriminated against by the

[d]efendants solely because of their disabilities.”

A. October 18, 2000 Ruling on Motion to Dismiss.

The Agency moved to dismiss the complaint on several

grounds. Among other contentions, the Agency maintained

that the IDEA is the exclusive remedy for injuries caused by

violation of its provisions. More specifically, the Agency

argued that the H. family’s § 504 claim is barred because (1)

the H. family only litigated the IDEA claims, not the claims

under § 504, in the administrative hearing; and (2) § 504 does

not provide money damages for acts that also violate the

IDEA. The Agency also argued that all of the claims in the

complaint were barred by sovereign immunity.

The district court granted the motion to dismiss in part, and

denied it in part.7 With respect to the exclusivity of the IDEA

as a remedy, the court determined that the H. family had

exhausted its administrative remedies under the IDEA, but did

not address the Agency’s other arguments as to why the IDEA

5

The H. family has since conceded that punitive damages are not avail-

able under § 504, pursuant to Barnes v. Gorman, 536 U.S. 181 (2002).

6

Hedonic damages are “for the loss of the pleasure of being alive.”

BLACK’S LAW DICTIONARY 417 (8th ed. 2004).

7

The case was at this point assigned to Judge David Ezra, who had pre-

sided over the Felix litigation.

MARK H. v. LEMAHIEU 607

cause of action for prospective relief is the only remedy avail-

able to the H. family. The court held that the Eleventh

Amendment did not bar the § 504 claims, but did bar any

claims against the state under § 1983 for money damages.

B. July 24, 2001 Summary Judgment Ruling.

The Agency then moved for summary judgment, advancing

several new arguments and reiterating their earlier Eleventh

Amendment arguments. The H. family filed a cross-motion

for partial summary judgment, arguing (1) that the administra-

tive hearing decision on the IDEA was res judicata with

regard to the question whether the girls were denied a FAPE;

and (2) that the appropriate substantive standard in an action

for damages under § 504 is whether a defendant demonstrated

“deliberate indifference” to the disabled individual’s accom-

modation needs, not whether a defendant acted with discrimi-

natory animus.

The district court granted the H. family’s cross-motion in

its entirety, and granted in part and denied in part the Agen-

cy’s motion. In granting the motion, the court held that

“[d]efendants are precluded from arguing that Michelle and

Natalie were not denied FAPE.” The court rejected most of

the Agency’s arguments on summary judgment but agreed

with the Agency that non-equitable monetary damages are not

available under the IDEA and that the appropriate defendant

for monetary relief is the state, not state officials in their offi-

cial capacities. As a result of these rulings, the only remaining

claim as of 2001 was the § 504 cause of action against the

state itself for monetary relief.

C. May 25, 2005 Summary Judgment Ruling.

On March 12, 2004, the case was reassigned to Judge

Manuel Real of the Central District of California, on tempo-

rary assignment to the District of Hawaii. The Agency again

moved for summary judgment, reasserting some arguments

608 MARK H. v. LEMAHIEU

made earlier in its motion to dismiss and motion for summary

judgment and making one new argument: that the H. family’s

proffered evidence failed to show the “deliberate indiffer-

ence” the court had ruled was required for a § 504 violation.

In a motion for partial summary judgment filed the same day,

the H. family argued that Judge Ezra’s prior rulings governed

as law of the case, and further maintained that they were enti-

tled to summary judgment on the issue of liability because the

Agency failed to provide a FAPE and acted with deliberate

indifference in doing so.

Judge Real granted the Agency’s motion for summary

judgment and denied the H. family’s motion. He held that

there is no § 504 cause of action for violation of any affirma-

tive right to a FAPE, reasoning that “IDEA procedures remain

the exclusive remedy for correcting problems within the terms

of the act, and for deciding what is best suited to a free appro-

priate public education.” Judge Real further held that (1) pur-

suant to Alexander v. Sandoval, 532 U.S. 275 (2001), the U.S.

DOE’s § 504 regulations can not be enforced through the

right of action implied under § 504; and (2) a state’s waiver

of sovereign immunity under § 504 does not extend to claims

for damages for failure to provide an IDEA FAPE. Finally

Judge Real concluded that, even if the H. family had a valid

§ 504 cause of action, the state would prevail on the merits,

because “the [p]laintiffs do not present any evidence that they

were intentionally discriminated against, ‘solely by reason of

their disability.’ ” The case was dismissed. The H. family

appeals from this final judgment.

ANALYSIS

I. EFFECT OF IDEA ON AVAILABILITY OF

REMEDIES UNDER § 504 OF THE REHABILITATION

ACT FOR DENIAL OF FAPE.

The district court held that the availability of injunctive

relief under the IDEA precludes suits for damages under

MARK H. v. LEMAHIEU 609

§ 504 for government actions that violate both statutes. This

conclusion was erroneous for two reasons.8

8

The H. family argues that Judge Real abused his discretion when he

reconsidered Judge Ezra’s earlier rulings on whether the IDEA is the

exclusive remedy for denial of a FAPE and on whether plantiffs’ § 504

claim is barred by sovereign immunity. See Milgard Tempering v. Selas

Corp. of Am., 902 F.2d 703, 715 (9th Cir. 1990) (holding that the district

court’s application of the law of the case doctrine is reviewed for an abuse

of discretion). Our case law leaves some doubt concerning whether the

law of the case doctrine constrains a district court’s discretion to recon-

sider its own rulings prior to final judgment. See City of Los Angeles v.

Santa Monica Baykeeper, 254 F.3d 882, 888 (9th Cir. 2001) (holding that

the law of the case doctrine is “wholly inapposite” when a district court

reconsiders an order over which it retains jurisdiction); but see United

States v. Alexander, 106 F.3d 874, 876-77 (9th Cir. 1997) (holding that the

district court was barred from reconsidering, after a mistrial and a change

of judges, its own previous ruling on a motion to suppress in the absence

of changed law or circumstances); United States v. Smith, 389 F.3d 944,

949-50 (9th Cir. 2004) (relying on Santa Monica Baykeeper for the hold-

ing that “the law of the case doctrine is wholly inapposite” when a district

court reconsiders an order over which it retains jurisdiction and distin-

guishing Alexander on the ground that in that case the district court did not

reconsider in a “timely” fashion (internal quotation marks omitted)).

We need not resolve here whether the law of the case doctrine ever

applies in district court to previous rulings of that district court. Judge

Ezra understood the Agency’s arguments about the exclusivity of the

IDEA remedy as raising only a question of administrative exhaustion, and

so never decided whether the IDEA is the exclusive remedy for acts that

violate its terms. As a result, there was no ruling by Judge Ezra on the

exclusivity of the IDEA, and no “law of the case” on this issue prior to

Judge Real’s ruling. Further, to the extent that Judge Real decided whether

sovereign immunity barred the H. family’s actions under § 504, he held

only that it barred actions under § 504 to enforce the IDEA FAPE provi-

sions. Because, for reasons we develop at length below, the § 504 FAPE

regulations and the IDEA FAPE requirement are distinct, this ruling did

not determine whether actions under § 504 to enforce the § 504 regula-

tions are barred by sovereign immunity. As the H. family may pursue

damages only for a violation of the § 504 FAPE requirements, Judge

Real’s sovereign immunity ruling is simply not relevant. Moreover, the

Agency does not rely on or defend Judge Real’s sovereign immunity rul-

ing on appeal, stating in its brief that “[i]n the present case, the State is

not questioning the fact that it has waived its Eleventh Amendment immu-

nity in return for receiving federal financial assistance under the IDEA and

the Rehabilitation Act.”

610 MARK H. v. LEMAHIEU

First, the district court’s conclusion assumed that FAPE in

the IDEA and FAPE in the U.S. DOE § 504 regulations are

identical. This assumption underlies not only the district

court’s ruling on the second summary judgment motion but

all of the proceedings in this case. In particular, it also under-

lies the district court’s earlier holding that the administrative

hearing determination that Michelle and Natalie were denied

a FAPE under the IDEA was res judicata with regard to

whether they were denied a FAPE under the § 504 regula-

tions. An examination of the definitions of FAPE in the two

statutes demonstrates that this assumption is false.

[1] FAPE under the IDEA and FAPE as defined in the

§ 504 regulations are similar but not identical. When it pro-

mulgated its § 504 regulations, the U.S. DOE described them

as “generally conform[ing] to the standards established for the

education of handicapped persons in . . . the [IDEA].” Depart-

ment of Education, Establishment and Title and Chapters, 45

Fed. Reg. 30,802, 30,951 (May 4, 1980) (emphasis added).

Although overlapping in some respects, the two requirements

contain significant differences.

[2] The most important differences are that, unlike FAPE

under the IDEA, FAPE under § 504 is defined to require a

comparison between the manner in which the needs of dis-

abled and non-disabled children are met, and focuses on the

“design” of a child’s educational program. See 34 C.F.R.

§ 104.33(b)(1) (a FAPE requires education and services “de-

signed to meet individual educational needs of handicapped

persons as adequately as the needs of nonhandicapped per-

sons are met” (emphasis added)); cf. 20 U.S.C. §§ 1401(9),

1414(d)(1)(A)(i)(II).

Moreover, the U.S. DOE’s § 504 regulations distinctly state

that adopting a valid IDEA IEP is sufficient but not necessary

to satisfy the § 504 FAPE requirements. 34 C.F.R.

§ 104.33(b)(2) (“Implementation of an [IEP under the IDEA]

is one means of meeting” the substantive portion of the § 504

MARK H. v. LEMAHIEU 611

regulations’ definition of FAPE (emphasis added)); id. at

§ 104.36 (“Compliance with the procedural safeguards of sec-

tion 615 of the [IDEA] is one means of meeting” the § 504

procedural requirements in § 104.36) (emphasis added).

Plaintiffs who allege a violation of the FAPE requirement

contained in U.S. DOE’s § 504 regulations, consequently,

may not obtain damages simply by proving that the IDEA

FAPE requirements were not met.

[3] The district court thus erred when it held that the H.

family’s § 504 claim attempts “to correct what is in essence

a mere violation of a [FAPE] under the IDEA,” and that the

IDEA is therefore the H. family’s exclusive remedy. At the

same time, this examination of the text of the § 504 regula-

tions and the IDEA demonstrates that the H. family cannot

rely on the administrative hearing officer’s decision with

regard to an IDEA FAPE as dispositive of whether a FAPE

was denied under § 504. So, to the extent that the district

court held, in deciding the first summary judgment motion,

that the administrative hearing officer’s IDEA decision pre-

cluded further litigation as to whether a FAPE was denied

under the § 504 regulations, that decision is also incorrect.9

[4] Second, and as important, Congress has clearly

expressed its intent that remedies be available under Title V

of the Rehabilitation Act for acts that also violate the IDEA,

overriding the holding of the Supreme Court in Smith v. Rob-

inson, 468 U.S. 992 (1984). In Smith, the Court considered

the relationship between the remedies available under § 504

and those available under the IDEA. Petitioners in Smith

9

At oral argument, the H. family stated that they were not relying on

that res judicata ruling as dispositive of the specific question whether a

FAPE was provided under § 504. We note that our conclusion that the

administrative hearing decision is not dispositive of whether Michelle and

Natalie were provided a FAPE under § 504 does not affect the district

court’s holding to the extent that it determined that the administrative

hearing decision precludes litigation on the question whether an IDEA

FAPE was provided.

612 MARK H. v. LEMAHIEU

established that their rights under the IDEA had been violated

because no FAPE was provided, and then sought payment of

their attorney’s fees under Title V of the Rehabilitation Act.

Smith, 468 U.S. at 1016. The Court in Smith held that the

“remedies, rights, and procedures” available under the IDEA

were the exclusive relief for failure to provide a FAPE, so that

remedies under Title V of the Rehabilitation Act, including

payment of a prevailing party’s attorney’s fees, were unavail-

able. Id. at 1019.

Congress responded to the decision in Smith by adding to

the IDEA what is now 20 U.S.C. § 1415(l), which provides.

Nothing in this chapter shall be construed to restrict

or limit the rights, procedures, and remedies avail-

able under the Constitution, the Americans with Dis-

abilities Act of 1990, title V of the Rehabilitation

Act of 1973, or other Federal laws protecting the

rights of children with disabilities, except 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) and (g) of this sec-

tion shall be exhausted to the same extent as would

be required had the action been brought under this

subchapter.

Despite the intervening passage of § 1415(l), the district

court relied on the reasoning of the Supreme Court in Smith

and held that, by bringing a damages claim under § 504 for

denial of a FAPE, the H. family was impermissibly attempt-

ing to “circumvent or enlarge on the remedies available under

the [IDEA] by resort to § 504.” With regard to § 1415(l), the

district court concluded, and the Agency here argues, that the

legislative history of § 1415(l) of the IDEA shows that it was

intended only to permit recovery of attorneys’ fees under

§ 504, not damages.

[5] Even if the legislative history supported this conclusion,

it could not overrule the statute’s plain language. See Botosan

MARK H. v. LEMAHIEU 613

v. Paul McNally Realty, 216 F.3d 827, 831 (9th Cir. 2000).

The plain text of the statute preserves all rights and remedies

under the Rehabilitation Act, not just attorneys’ fees. Given

the absence of any ambiguity in the statute’s text, there is no

need to examine its legislative history.

In any event, the statute’s legislative history is not to the

contrary. The district court observed that neither the Senate

nor House reports discussed the possibility of monetary dam-

ages under § 1415(l). See S. REP. NO. 99-112 (1986), as

reprinted in 1986 U.S.C.C.A.N. 1798. Nowhere in the legisla-

tive history of the statute, however, does Congress state that

it was intended to provide only for attorneys’ fees, or that it

was not intended to allow monetary damages under § 504. Cf.

United States v. Turkette, 452 U.S. 576, 591 (1981) (observ-

ing that, although “the legislative history [of RICO] forcefully

supports the view that the major purpose of [the statute] is to

address the infiltration of legitimate businesses,” that does not

require “the negative inference that [the statute] [does] not

reach the activities of enterprises organized and existing for

criminal purposes” where the plain text of the statute clearly

includes all “enterprises”).10

[6] In sum, availability of relief under the IDEA does not

limit the availability of a damages remedy under § 504 for

failure to provide the FAPE independently required by § 504

and its implementing regulations.11

10

We have recently held that, despite passage of § 1415(l), the provi-

sions of the IDEA are not enforceable under § 1983. Blanchard v. Morton

Sch. Dist., ___ F.3d ___, 2007 WL 4225789 at *3 (9th Cir. 2007). The

conclusion that § 1983 actions cannot be used to enforce the IDEA does

not affect our analysis in this case. Section 1415(l) explicitly mentions the

remedies available under the Rehabilitation Act and indicates that they are

preserved, but does not refer to § 1983.

11

Because the § 504 FAPE requirement differs from the IDEA FAPE

requirement, it is not clear how the exhaustion provision of § 1415(l)

applies to suits for damages for failure to provide a § 504 FAPE. We need

not reach this issue, because the H. family did exhaust the IDEA adminis-

trative remedies.

614 MARK H. v. LEMAHIEU

II. IMPLIED RIGHT OF ACTION TO ENFORCE

§ 504 REGULATIONS.

The district court further held that there is no private right

of action available to enforce in any respect the U.S. DOE’s

§ 504 regulations regarding provision of a FAPE. On exami-

nation, we observe that the district court’s approach to this

question did not recognize some considerations likely to be

informative in determining whether there is or is not a private

cause of action for damages available to enforce the § 504

FAPE regulations. As we explain below, however, we cannot

determine without clarification of the H. family’s allegations

whether the district court’s ultimate conclusion — that no

cause of action for damages is available on these facts under

§ 504 — is correct, and so remand for further proceedings.

A.

[7] It has long been established that § 504 contains an

implied private right of action for damages to enforce its pro-

visions. See Greater L.A. Council on Deafness v. Zolin, Inc.

812 F.2d 1103, 1107 (9th Cir. 1987). Whether the H. family

can bring an action to enforce the § 504 regulations will

depend on whether those regulations come within the § 504

implied right of action.

[8] In Alexander v. Sandoval, 532 U.S. 275 (2001), the

Supreme Court addressed the circumstances under which reg-

ulations can be enforced using the private right of action cre-

ated by a Spending Clause-based statute. See Day v. Apoliona,

496 F.3d 1027, 1037 n.12 (9th Cir. 2007). Sandoval held that

disparate impact regulations promulgated under § 602 of Title

VI of the Civil Rights Act of 1964 impose affirmative obliga-

tions that go beyond the requirements of § 601 and so do not

fall within the private right of action created by the statute.

Sandoval, 532 U.S. at 285-86. According to Sandoval, regula-

tions can only be enforced through the private right of action

contained in a statute when they “authoritatively construe” the

MARK H. v. LEMAHIEU 615

statute; regulations that go beyond a construction of the stat-

ute’s prohibitions do not fall within the implied private right

of action, even if valid.12 Id. at 284. As applied here, Sandoval

instructs that whether the § 504 regulations are privately

enforceable will turn on whether their requirements fall within

the scope of the prohibition contained in § 504 itself.

The district court held that § 504 “merely prohibits inten-

tional discrimination,” while the § 504 FAPE regulations pur-

port to create “affirmative obligations.” Applying Sandoval,

the district court concluded that because the § 504 FAPE reg-

ulations uniformly impose “affirmative obligations” that are

not imposed by the statute itself, they are not enforceable at

all through the implied private right of action.

The district court’s approach to this question fails to recog-

nize three key features of § 504 and the § 504 FAPE regula-

tions:

First, insofar as the district court was drawing a direct anal-

ogy to Sandoval’s prohibition on private causes of action

under a disparate impact regulation, that analogy is not

entirely persuasive. The § 504 regulations in question —

unlike the regulations under § 602 that the Supreme Court

characterized in Sandoval as “disparate impact” regulations

— are not fairly viewed as imposing liability based only on

unintentionally created “effects” or outcomes.

The Title VI regulations at issue in Sandoval provided that

funding recipients may not “utilize criteria or methods of

administration which have the effect of subjecting individuals

to discrimination because of their race, color, or national ori-

gin.” 28 C.F.R. § 42.104(b)(2) (emphasis added). In contrast,

the § 504 FAPE regulations encompass several provisions, the

12

The Court in Sandoval made clear that it was not declaring the Title

VI disparate impact regulations substantively invalid. Alexander v. Sando-

val, 532 U.S. 275, 281 (2001).

616 MARK H. v. LEMAHIEU

central requirement being that disabled children must be pro-

vided an “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.” 34 C.F.R. § 104.33(b)(1). The plain language of this

first, overarching FAPE regulation is not violated by a mere

difference in educational outcomes or “effects.” Rather, it is

violated only if a state fails to “design” educational plans so

as to meet the needs of both disabled and nondisabled chil-

dren comparably. To “design” something to produce a certain,

equal outcome involves some measure of intentionality. And

an obligation to “design” something in a certain way is not

violated simply because the actual impact of the design turns

out otherwise than intended.

In contrast, a disparate effect or impact need not be the

result of “design” at all, could be entirely accidental, and need

not be recognized once it occurs. This much was made clear

in Alexander v. Choate, 469 U.S. 287 (1985).

In Choate, the Supreme Court expressed its view that,

while § 504 may prohibit some disparate impacts, it is not

intended to prohibit all such impacts. Choate, 469 U.S. at

299. The Court repeatedly distinguished disparate impact dis-

crimination from other forms of discrimination by noting that

disparate impact discrimination arises from actions that dis-

criminate only in “effect” rather than “design.” Id. at 292,

297. And the Court was concerned that a prohibition on any

and all disparate impacts would lead to liability for effects

brought about wholly inadvertently, indeed, even for effects

that agencies had acted to avoid. Id. at 298. By requiring only

appropriate “design” of programs, § 104.33 does not fall into

that category of “disparate impacts” about which the Court

was most concerned in Choate.

Second, § 104.33 requires a comparison between the treat-

ment of disabled and nondisabled children, rather than simply

requiring a certain set level of services for each disabled

MARK H. v. LEMAHIEU 617

child. So, contrary to the district court’s apparent concern that

the § 504 regulations create free-floating “affirmative obliga-

tions,” in fact the obligation created is a comparative one. In

other words, school districts need only design education pro-

grams for disabled persons that are intended to meet their edu-

cational needs to the same degree that the needs of

nondisabled students are met, not more.

Further, the regulations also prohibit separating handi-

capped students from nonhandicapped students unless “it is

demonstrated . . . that the education of the person in the regu-

lar environment with the use of supplementary aids and ser-

vices cannot be achieved satisfactorily,” and require that

disabled children be provided “comparable facilities” to those

used by non-disabled children. 34 C.F.R. § 104.34(a)-(c).

Even if some of the other regulations might be characterized

as imposing “affirmative obligations” rather than prohibiting

discrimination, regulations aimed at preventing baseless seg-

regation of disabled and nondisabled students clearly repre-

sent a prohibition on simple discrimination as long

understood. Cf. Brown v. Bd. of Educ., 347 U.S. 483, 493

(1954).

Third, regardless of whether or not the § 504 FAPE regula-

tions can be characterized as to some degree prohibiting “dis-

parate impacts” or imposing “affirmative obligations,” the

district court gave the prohibition contained in § 504 itself too

cramped a reading. The text of § 504 prohibits not only “dis-

crimination” against the disabled, but also “exclu[sion] from

. . . participation in” and “deni[al] [of] the benefits of” state

programs solely by reason of a disability. 29 U.S.C. § 794(a).

This language is nearly identical to the language in Title VI,

and, in general, the remedies available under both § 504 and

Title II of the Americans with Disabilities Act (the “ADA”),

42 U.S.C. § 12132,13 are “linked” to Title VI. Ferguson v.

13

“[T]here is no significant difference in the analysis of rights and obli-

gations created by” the Rehabilitation Act and the ADA. Vinson v.

Thomas, 288 F.3d 1145, 1152 n.7 (9th Cir. 2002).

618 MARK H. v. LEMAHIEU

City of Phoenix, 157 F.3d 668, 673 (9th Cir. 1998). But see

Choate, 469 U.S. at 293 n.7 (“[T]oo facile an assimilation of

Title VI law to § 504 must be resisted.”). Nonetheless, the

legislative history of the Rehabilitation Act and the nature of

discrimination against disabled individuals have led us to con-

strue the § 504 prohibition somewhat more broadly.

This court has recognized that the focus of the prohibition

in § 504 is “whether disabled persons were denied ‘meaning-

ful access’ to state-provided services.” Crowder v. Kitagawa,

81 F.3d 1480, 1484 (9th Cir. 1996) (quoting Choate, 469 U.S.

at 302); Bird v. Lewis & Clark College, 303 F.3d 1015, 1020

(9th Cir. 2002) (“[T]he College must provide Bird with

‘meaningful access’ to its programs.”). Thus, although § 504

does not require “substantial adjustments in existing programs

beyond those necessary to eliminate discrimination against

otherwise qualified individuals,” it, like the ADA, does

require reasonable modifications necessary to correct for

instances in which qualified disabled people are prevented

from enjoying “ ‘meaningful access’ to a benefit because of

their disability.” Southeastern Community College v. Davis,

442 U.S. 397, 410 (1979); Choate, 469 U.S. at 301 (declining

to decide whether § 504 encompasses disparate impact dis-

crimination while characterizing “[t]he balance struck in

Davis” as “requir[ing] that an otherwise qualified handi-

capped individual must be provided with meaningful access

to the benefit that the grantee offers” and noting that “to

assure meaningful access, reasonable accommodations . . .

may have to be made”); see also Vinson v. Thomas, 288 F.3d

1145, 1154 (9th Cir. 2002) (“A failure to provide reasonable

accommodation can constitute discrimination under section

504 of the Rehabilitation Act.”); Weinreich v. Los Angeles

County Metro. Transp. Auth., 114 F.3d 976, 979 (9th Cir.

1997). Moreover, contrary to the Agency’s contentions at oral

argument, evidence that appropriate services were provided to

some disabled individuals does not demonstrate that others

were not denied meaningful access “solely on the basis of

their disability.” See Lovell v. Chandler, 303 F.3d 1039, 1054

MARK H. v. LEMAHIEU 619

(9th Cir. 2002) (“The State’s appropriate treatment of some

disabled persons does not permit it to discriminate against

other disabled people under any definition of ‘meaningful

access.’ ”).14

The district court and the Agency appear to have forgotten

the established § 504 “reasonable accommodation” and

“meaningful access” requirements in evaluating whether the

§ 504 FAPE regulations come within § 504’s substantive

scope. The reason for this elision may have been a misunder-

standing about the distinction between interpreting the scope

of the prohibition contained in § 504 and determining the state

of mind with which a violation of § 504 must be committed

so as to give rise to a damages remedy.

Our cases on the appropriate mens rea standard for a § 504

damages remedy recognize — as they must after Crowder —

that § 504 itself prohibits actions that deny disabled individu-

als “meaningful access” or “reasonable accommodation” for

their disabilities. See Duvall v. County of Kitsap, 260 F.3d

1124, 1135-36 (9th Cir. 2001); Ferguson, 157 F.3d at 679. Cf.

Lovell, 303 F.3d at 1054 (assuming that “meaningful access”

is the appropriate standard). Those cases then go on to ana-

lyze the state of mind with regard to a denial of “meaningful

access” or “reasonable accommodation” necessary to justify

14

Without deciding whether any cause of action the H. family may

allege in the future based on the § 504 FAPE regulations meets the stan-

dard of Sandoval, we observe that a number of the § 504 FAPE regula-

tions are arguably intended to ensure “meaningful access” to public

education. In particular, a disabled individual may be denied “meaningful

access” to public education when that education is not designed to meet

her needs as adequately as the needs of other students are met. See 34

C.F.R. § 104.33. The FAPE regulations also require adherence to certain

procedures intended to facilitate provision of a FAPE, including testing

and evaluation, 34 C.F.R. § 104.35, and notice to parents of educational

plans for their children. 34 C.F.R. § 104.36. Depending on the particular

circumstances, testing and evaluation of a disabled child may be necessary

to ensure “meaningful access” to an appropriate education, as might notice

to a child’s parents of the educational plan for that child.

620 MARK H. v. LEMAHIEU

monetary damages. As to this latter question, we have held

that plaintiffs must prove a mens rea of “intentional discrimi-

nation,” to prevail on a § 504 claim, but that that standard

may be met by showing “deliberate indifference,” and not

only by showing “discriminatory animus.” See Duvall, 260

F.3d at 1138; id. at 1139 (deliberate indifference is “knowl-

edge that a harm to a federally protected right is substantially

likely, and a failure to act upon that likelihood”); Lovell, 303

F.3d at 1056. Thus, a public entity can be liable for damages

under § 504 if it intentionally or with deliberate indifference

fails to provide meaningful access or reasonable accommoda-

tion to disabled persons.

For purposes of determining whether a particular regulation

is ever enforceable through the implied right of action con-

tained in a statute, the pertinent question is simply whether

the regulation falls within the scope of the statute’s prohibi-

tion. The mens rea necessary to support a damages remedy is

not pertinent at that stage of the analysis. It becomes essential,

instead, in determining whether damages can actually be

imposed in an individual case. See Sandoval, 532 U.S. at 280

(considering which actions are encompassed by the prohibi-

tion in § 601).15 The district court took a misstep when it

brought the mens rea question into the private cause of action

analysis.

[9] In sum, the § 504 FAPE regulations are somewhat dif-

ferent from the Title VI disparate impact regulation in Sando-

val, because the regulations focus on “design” rather than

“effect” and establish only a comparative obligation. Further,

because the basic statutory prohibition has been understood

somewhat differently in Title VI and § 504, to the degree the

15

We note that, as this brief discussion of our case law on the mens rea

requirement indicates, to the extent that the district court concluded that

the H. family, in order to recover damages, is required to demonstrate a

mental state greater than deliberate indifference to the requirements

imposed by the FAPE regulations, it erred.

MARK H. v. LEMAHIEU 621

§ 504 FAPE regulations that the H. family invokes can be

interpreted as a variety of meaningful access regulation, they

will fall within the § 504 implied cause of action. Finally, to

obtain damages, the H. family will ultimately have to demon-

strate that the Agency was deliberately indifferent to the vio-

lation of whatever requirements the family validly seeks to

enforce.

B.

We also note that resolution of the question whether the

regulations can be enforced through the right of action in

§ 504 will likely be dispositive of the Eleventh Amendment

sovereign immunity concerns that have frequently popped up

in this case. The state argues that, while states do not enjoy

sovereign immunity from suits to enforce § 504 itself, see

Lovell v. Chandler, 303 F.3d at 1051, the U.S. DOE’s § 504

regulations cannot be enforced against states because they

demand more of the states than they bargained for when they

agreed to waive their Eleventh Amendment sovereign immu-

nity.

[10] However, as our discussion of Sandoval demonstrates,

to be enforceable through the § 504 implied private right of

action, regulations must be tightly enough linked to § 504 that

they “authoritatively construe” that statutory section, rather

than impose new obligations. Sandoval, 532 U.S. at 284. Reg-

ulations that do not impose obligations beyond § 504’s prohi-

bition on disability-based disadvantage but instead implement

that prohibition are part of the bargain struck between states

and the federal government. See Lovell, 303 F.3d at 1051;

Douglas v. Cal. Dept. of Youth Auth., 271 F.3d 812, 820-21

(9th Cir. 2001); cf. Vinson v. Thomas, 288 F.3d at 1151, 1154

(holding that state was not immune from a suit under § 504

in a case in which plaintiff relied in part on Department of

Justice regulations promulgated under the ADA). Accord-

ingly, those regulations that can be enforced through the

622 MARK H. v. LEMAHIEU

§ 504 private right of action under Sandoval are almost cer-

tainly enforceable against the states in a damages action.

C.

[11] We do not here decide whether the H. family has

alleged a privately enforceable cause of action for damages

against the state. To this point, both parties have proceeded on

the assumption that the IDEA and the § 504 FAPE require-

ments are identical, and have not litigated whether any of the

§ 504 FAPE regulations, as opposed to the IDEA FAPE

requirements, can support a private cause of action. We there-

fore remand to the district court for further proceedings. On

remand, the H. family should be given an opportunity to

amend its complaint to specify which § 504 regulations they

believe were violated and which support a privately enforce-

able cause of action. See Verizon Delaware, Inc. v. Covad

Commc’ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004) (Federal

Rule of Civil Procedure 15(a) embodies a “policy favoring

liberal amendment”).16

For the foregoing reasons, the district court decision is

REVERSED and REMANDED.17

16

The H. family also argues that “rare and extraordinary circumstances”

require reassignment of the case on remand. United Nat’l Ins. Co. v. R&D

Latex Corp., 242 F.3d 1102, 1118 (9th Cir. 2001) (internal quotation

marks omitted). The H. family has pointed to no circumstances sufficient

to justify reassignment of the case. Judge Real did not abuse his discretion

when he revisited Judge Ezra’s earlier substantive orders, nor was his

change in the scheduling order for filing pre-trial motions inappropriate.

See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002)

(district courts have “broad discretion in supervising the pretrial phase of

litigation” (quotation omitted)). The H. family’s request for reassignment

is therefore denied.

17

As we do not decide whether the H. family has alleged a privately

enforceable cause of action, we do not reach the family’s argument that

the district court erred in holding that there is no material question of fact

as to whether plaintiffs were “intentionally discriminated” against so as to

MARK H. v. LEMAHIEU 623

support a damages action under § 504, nor do we reach the family’s

motion for summary judgment. We do note that, as with the district court’s

ruling on sovereign immunity, the court held only that there was insuffi-

cient evidence of intentional discrimination as to the IDEA’s FAPE

requirements, not the § 504 FAPE regulations. The district court’s deci-

sion therefore does not determine whether the H. family has demonstrated

a triable issue as to violation of the § 504 regulations.