A.G. Ex Rel. Grundemann v. Paradise Valley Unified School District No. 69

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

A.G., a student, by and through Nos. 13-16239

parents William Grundemann and 13-16707

Rhonda Grundemann; WILLIAM

GRUNDEMANN; and RHONDA D.C. No.

GRUNDEMANN, individually,

2:11-cv-01899-

Plaintiffs-Appellants/

NVW

Cross-Appellees,

v.

PARADISE VALLEY UNIFIED OPINION

SCHOOL DISTRICT NO. 69; JAMES P.

LEE, Dr./Superintendent; NANCY

CASE; JULIE BACON; ANNE

GREENBERG; MARK LANE; SUE M.

SKIDMORE, Board Members; LAURA

BISTROW, PVUSD Special Education

Director; ELAINE JACOBS, Principal at

Vista Verde Middle School; ROBERT

KURKLAN, School Psychologist at

Vista Verde Middle School; KAREN

HUDSON, Teacher at Vista Verde

Middle School; LORNA GREEN,

Principal of Roadrunner School;

DEBBIE HARPER, Interventionist at

Roadrunner School; BARBARA

SICKLES, Interventionist at

Roadrunner School; JUDY CARLYLE,

Paraprofessional at Roadrunner

School; JENNIFER WILSON, Teacher at

2 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.

Roadrunner School; CYNTHIA

GILMORE, Teacher at Roadrunner

School,

Defendants-Appellees/

Cross-Appellants.

Appeal from the United States District Court

For the District of Arizona

Neil V. Wake, District Judge, Presiding

Argued and Submitted

September 16, 2015—San Francisco, California

Filed March 3, 2016

Before: Morgan Christen and Michelle T. Friedland,

Circuit Judges, and Ivan L.R. Lemelle, Senior District

Judge.*

Opinion by Judge Lemelle

*

The Honorable Ivan L.R. Lemelle, Senior District Judge for the U.S.

District Court for the Eastern District of Louisiana, sitting by designation.

A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 3

SUMMARY**

Disability Discrimination

The panel reversed the district court’s summary judgment

in favor of defendants on claims of discrimination under

section 504 of the Rehabilitation Act and Title II of the

Americans with Disabilities Act, reversed in part the district

court’s summary judgment on tort claims under Arizona state

law, and vacated a costs order in an action brought by a

student and her parents against a school district and related

employees and principals.

Clarifying the standards for disability discrimination

claims by disabled children based on access to educational

services, the panel stated that the Individuals with Disabilities

Education Act (“IDEA”) focuses on making a free

appropriate public education (“FAPE”) available to disabled

students through development of Individualized Education

Programs (“IEPs”). The IDEA creates a cause of action for

children and parents to pursue injunctive or other prospective

relief through a civil action following an administrative due

process hearing in order to compel compliance with the Act

and proper implementation or modification of the child’s IEP.

Section 504 of the Rehabilitation Act is broader than the

IDEA; it is concerned with discrimination in the provision of

state services to all individuals with disabilities. The

regulations adopted pursuant to section 504 require qualifying

public schools to “provide a free appropriate public education

to each qualified handicapped person.” FAPE is defined

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.

differently for purposes of section 504 than it is for the IDEA,

and section 504’s regulations gauge the adequacy of services

provided to disabled individuals by comparing them to the

level of services provided to individuals who are not disabled.

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

modeled after section 504 and sets forth similar requirements

for establishing a valid claim.

A plaintiff bringing suit under section 504 or Title II of

the ADA 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. To prevail

on a claim for damages, the plaintiff must also prove a mens

rea of intentional discrimination.

The panel reversed the district court’s summary judgment

on a claim that defendants denied the student meaningful

access to educational benefits by violating 34 C.F.R.

§§ 104.33(b)(1) and 104.34(a). The panel held that the

parents’ consent to the student’s placement did not waive this

claim.

The panel reversed the district court’s summary judgment

on plaintiffs’ reasonable accommodation claim under section

504 and Title II. The panel concluded that a triable factual

dispute existed as to whether the services plaintiffs faulted the

school district for failing to provide were actually reasonable,

necessary, and available accommodations for the student.

The district court also erred in dismissing plaintiffs’ damages

claim for failure to show that the school district was on notice

of the need for accommodation.

A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 5

The panel affirmed the district court’s summary judgment

on claims under Arizona state law for intentional and

negligent infliction of emotional distress. The panel reversed

the district court’s summary judgment on claims for assault,

battery, and false imprisonment.

The panel vacated the district court’s order denying costs

to defendants, and it remanded the case to the district court

for further proceedings.

COUNSEL

JoAnn Falgout, Law Office of JoAnn Falgout, P.L.C., Tempe,

Arizona, and Richard J. Murphy, Law Office of Richard J.

Murphy, P.L.C., Phoenix, Arizona, for Plaintiffs-

Appellants/Cross-Appellees.

Erin H. Walz and R. Scott Currey, Udall Shumway PLC,

Mesa, Arizona, for Defendants-Appellees/Cross-Appellants.

Barrie L. Brejcha, Yea-Jin Angela Chang, Donna J. Williams,

Jenny A. Austin, Angela C. Vigil, and Keith L. Wurster,

Baker & McKenzie LLP, Palo Alto, California, for Amicus

Curiae Council of Parent Attorneys and Advocates, Inc.

6 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.

OPINION

LEMELLE, District Judge:

A.G., a student eligible for special education services, and

her parents appeal the district court’s order granting summary

judgment on claims of discrimination under section 504 of

the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the

Americans with Disabilities Act, 42 U.S.C. §§ 12131–12134,

as well as on their tort claims under Arizona state law against

Paradise Valley Unified School District and related

employees and principals (together “defendants”). Defendants

cross-appeal the district court’s order vacating taxation of

costs. The parties settled other claims, including claims under

the Individuals with Disabilities in Education Act, 20 U.S.C.

§§ 1400–1491.

We reverse the district court’s order granting summary

judgment on plaintiffs’ federal law claims, reverse in part the

district court’s order granting summary judgment on

plaintiffs’ state law claims, vacate the district court’s order

addressing costs, and remand for further proceedings.

This appeal implicates overlapping federal statutes

addressing discrimination on the basis of disability.

Specifically, we address the requirement that all children with

disabilities receive a free appropriate public education

(“FAPE”), and the distinct but overlapping features of FAPE

set forth under the different statutory schemes. The related

statutory schemes at issue here are the Individuals with

Disabilities in Education Act (“IDEA”), 20 U.S.C.

§§ 1400–1491; section 504 of the Rehabilitation Act of 1973

(“section 504”), 29 U.S.C. § 794; and Title II of the

Americans with Disabilities Act (“ADA”), 42 U.S.C.

A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 7

§§ 12131–12134. The parties entered into a settlement

agreement that narrowed the scope of plaintiffs’ claims so

only claims under the Rehabilitation Act and the ADA are at

issue, but we review all three statutes to clarify the different

definitions and standards for FAPE that must be applied on

remand. We also discuss plaintiffs’ state law tort claims.

FACTS AND PROCEDURAL BACKGROUND

A.G. attended school in the Paradise Valley Unified

School District at various times between 2002 and September

of 2010. From August 17, 2009 through January 19, 2010,

A.G. attended seventh grade at Vista Verde Middle School 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. In November of 2009, A.G.’s

Individualized Education Plan (“IEP”) Team, which included

herself and her parents, adopted an IEP setting forth various

educational services that would be provided to A.G.1

Unfortunately, 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.

1

IEPs are mandated by the IDEA and aim at ensuring that a qualifying

student with a disability is provided a free appropriate public education as

defined under that Act. See 20 U.S.C. §§ 1401(9)(D), 1414(d). We explain

the relevance of these concepts in greater detail, infra.

8 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.

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, 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. The

IEP Addendum indicates that A.G.’s parents visited

Roadrunner and agreed that it would be an appropriate

placement for A.G., and that A.G.’s parents were informed

that A.G. would not be restrained at Roadrunner unless she

became a danger to herself or others.

A.G. demonstrated behavioral issues on her second day at

Roadrunner. 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.

Later, 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

A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 9

charges stemming from both incidents were later dismissed,

and A.G. returned to the Roadrunner School. She was

eventually moved to the Howard S. Gray School, a private

psychiatric school, at district expense.

On June 16, 2011, 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 the school district and its named representatives and

employees (the “school district defendants”). The

administrative complaint sought remedies available under the

IDEA. Plaintiffs also filed the present action in Arizona state

court against the school district defendants, the City of

Phoenix, and Officer Welsh. Defendants later removed the

action to the United States District Court for the District of

Arizona.

In their First Amended Complaint, plaintiffs alleged a

denial of FAPE under the procedural provisions of the IDEA,

Title II of the ADA, and section 504 of the Rehabilitation

Act, as well as various state common law tort claims against

the school district defendants. 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

to the school district’s decision to change A.G.’s placement

from Vista Verde to the Roadrunner School. Plaintiffs alleged

that having further accommodations would have allowed

A.G. to continue attending Vista Verde.

In April of 2012, plaintiffs and the school district

defendants entered into a settlement agreement releasing

plaintiffs’ IDEA claims. Among other things, the settlement

10 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.

released the school district defendants of all liability for

administrative remedies available under the IDEA relating to

the failure to provide A.G. with a FAPE under the terms of

that Act.2 The settlement agreement expressly reserved

plaintiffs’ ability to proceed on their other federal claims

pending in district court. On April 23, 2013, the district court

also approved a settlement agreement dismissing all claims

against the City of Phoenix and Officer Welsh.

In May of 2013, the district court granted summary

judgment in favor of the school district defendants on all

remaining claims, dismissing plaintiffs’ claims under section

504 of the Rehabilitation Act and Title II of the ADA, as well

as plaintiffs’ state tort law claims. After the district court

entered its final judgment, the school district submitted a bill

of costs to the clerk of court and plaintiffs filed objections

thereto. The clerk issued a Judgment on Taxation of Costs in

favor of the school district, but plaintiffs later filed a motion

seeking review of that judgment pursuant to Federal Rule of

Civil Procedure 54(d)(1) and sanctions for defendants’

allegedly improper reimbursement request. The district court

agreed with plaintiffs and vacated the clerk’s assessment of

costs. Plaintiffs timely appealed the order granting summary

judgment and defendants timely cross-appealed the order

vacating costs.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction over plaintiffs’ federal

law claims and plaintiffs’ Rule 54(d) motion concerning costs

2

As will be discussed more fully, infra, the concept of FAPE is relevant

to, but distinct as between, the various Acts under which plaintiffs asserted

claims.

A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 11

pursuant to 28 U.S.C. § 1331 and plaintiffs’ state law claims

pursuant to 28 U.S.C. § 1367. We have appellate jurisdiction

pursuant to 28 U.S.C. § 1291.

We review de novo an order granting or denying a motion

for summary judgment. Mark H. v. Hamamoto, 620 F.3d

1090, 1097 (9th Cir. 2010); Delta Sav. Bank v. United States,

265 F.3d 1017, 1021 (9th Cir. 2001). We may “affirm a

summary judgment only if, viewing the evidence in the light

most favorable to the party against whom it is granted,” there

is no genuine issue of material fact such that the prevailing

party is entitled to judgment as a matter of law. Hamamoto,

620 F.3d at 1097 (citing Tribal Vill. of Akutan v. Hodel, 869

F.2d 1185, 1189 (9th Cir. 1989)). We draw all justifiable

factual inferences in favor of the nonmoving party, and we

reverse an order granting summary judgment if any rational

trier of fact could resolve a material factual issue in favor of

the nonmoving party. Id.

We review the district court’s decision to grant or deny

costs for abuse of discretion. Ass’n of Mexican-Am.

Educators v. California, 231 F.3d 572, 592 (9th Cir. 2000)

(en banc).

DISCUSSION

In the district court, the parties’ briefing conflated the

requirements for claims made under the IDEA, the ADA, and

section 504 of the Rehabilitation Act. Because remand is

necessary, we clarify the relevant standards for disability

discrimination claims by disabled children based on access to

educational services. We also briefly address plaintiffs’ state

law claims. The parties’ dispute concerning costs is mooted

12 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.

by the need to remand for further proceedings consistent with

this opinion.

I. Federal Legislation Addressing Special Education for

Disabled Children.

There are three primary and overlapping pieces of federal

legislation applicable to plaintiffs’ discrimination claims: The

IDEA, 20 U.S.C. §§ 1400–1491; section 504 of the

Rehabilitation Act, 29 U.S.C. § 794; and Title II of the ADA,

42 U.S.C. §§ 12131–12134.

Congress enacted the IDEA “to ensure that all children

with disabilities have available to them a free appropriate

public education [or ‘FAPE’] that emphasizes special

education and related services designed to meet their unique

needs and prepare them for further education, employment,

and independent living.” Mark H. v. Lemahieu, 513 F.3d 922,

928 (9th Cir. 2008) (quoting 20 U.S.C. § 1400(d)(1)(A)). The

IDEA focuses on making a FAPE available to disabled

students through development of Individualized Education

Programs (“IEPs”).3 Id.; 20 U.S.C. § 1401(9) (defining FAPE

in part as “special education and related services that . . . are

provided in conformity with the individualized education

program required under section 1414(d)”). States receiving

federal financial assistance under the IDEA must have in

place “policies and procedures” to properly develop IEPs for

qualifying children. Id. The IDEA creates a cause of action

for children and parents to pursue injunctive or other

3

The IDEA defines an IEP as “a written statement for each child with

a disability,” setting forth the child’s present levels of academic

achievement and functional performance and measurable academic and

functional goals. 20 U.S.C. § 1414(d).

A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 13

prospective relief through a civil action following an

administrative due process hearing in order to compel

compliance with the Act and proper implementation or

modification of the child’s IEP. See 20 U.S.C.

§ 1415(i)(2)(C)(iii); Lemahieu, 513 F.3d at 928–29.

Section 504 of the Rehabilitation Act is broader than the

IDEA; it is concerned with discrimination in the provision of

state services to all individuals with disabilities. Lemahieu,

513 F.3d at 929. It provides that “[n]o 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

discrimination under any program or activity receiving

Federal financial assistance[.]” 29 U.S.C. § 794(a). Like the

IDEA, section 504 applies to public schools that receive

federal financial assistance. 29 U.S.C. § 794(b)(2)(B); see

also Lemahieu, 513 F.3d at 929. Section 504’s provisions are

not expressly affirmative in nature, but the Rehabilitation Act

empowers federal agencies to devise regulations aimed at

preventing prohibited discrimination. See Lemahieu, 513 F.3d

at 929.

The regulations adopted pursuant to section 504 require

qualifying public schools to “provide a free appropriate

public education to each qualified handicapped person.” 34

C.F.R. § 104.33(a); Lemahieu, 513 F.3d at 929.4 “FAPE” is

defined differently for purposes of section 504 than it is for

the IDEA. Under those section 504 regulations, FAPE

requires “regular or special education and related aids and

services that (i) are designed to meet individual educational

4

The United States Department of Education adopted enabling

regulations at 34 C.F.R. §§ 104.1–104.61. See 34 C.F.R. § 104.1.

14 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.

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(b)(1) (emphasis added). Section 504’s regulations

gauge the adequacy of services provided to disabled

individuals by comparing them to the level of services

provided to individuals who are not disabled. One method of

ensuring that the educational aids and services are “designed

to meet individual education needs” as required under

§ 104.33(b)(1)(i) is to implement an IEP developed in

accordance with the IDEA, 34 C.F.R. § 104.33(b)(2), but a

showing that FAPE was denied under the IDEA does not

necessarily establish a denial of FAPE under section 504.

Lemahieu, 513 F.3d at 933 (“Plaintiffs who allege a violation

of the [section 504] FAPE requirement . . . may not obtain

damages simply by proving that the IDEA FAPE

requirements were not met.”).

Title II of the ADA was modeled after section 504 of the

Rehabilitation Act. Duvall v. County of Kitsap, 260 F.3d

1124, 1135 (9th Cir. 2001). It provides that “no qualified

individual with a disability shall, by reason of such disability,

be excluded from participation in or be denied the benefits of

the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C.

§ 12132. Although Title II is different from section 504 in

several respects, see K.M. ex rel. Bright v. Tustin Unified Sch.

Dist., 725 F.3d 1088, 1099 (9th Cir. 2013),5 for purposes of

5

For instance, section 504 imposes a stricter causal standard (“solely

by reason of disability”) than Title II’s “motivating factor” standard. See

K.M. ex rel. Bright, 725 F.3d at 1098. Because plaintiffs raise factual

A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 15

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.

We have held “that § 504 contains an implied private

right of action for damages to enforce its provisions.”

Lemahieu, 513 F.3d at 935. A plaintiff bringing suit under

section 504 or Title II of the ADA 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. Mark H. v. Hamamoto, 620 F.3d 1090, 1097 (9th

Cir. 2010). A plaintiff may satisfy prong two by showing that

the federally funded program denied her services that she

needed to enjoy meaningful access to the benefits of a public

education and that were available as reasonable

accommodations. Id. at 1097–98. A plaintiff can also satisfy

prong two by showing that the program denied her

meaningful access to public education through another

means, such as by violating a regulation that implements

section 504’s prohibitions. Lemahieu, 513 F.3d at 938–39;

see Alexander v. Choate, 469 U.S. 287, 301 (1985)

(interpreting section 504 to “requir[e] that an otherwise

qualified handicapped individual must be provided with

meaningful access to the benefit that the grantee offers”).

Finally, to prevail on a claim for damages under section

504 and Title II, “plaintiffs must prove a mens rea of

‘intentional discrimination’ . . . [and] that standard may be

met by showing ‘deliberate indifference,’ . . . not only by

issues that prevent summary judgment under either standard, the

differences between them are not of consequence here.

16 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.

showing ‘discriminatory animus.’” Lemahieu, 513 F.3d at

938 (quoting Duvall, 260 F.3d at 1138). Under our case law,

“[d]eliberate indifference requires both knowledge that a

harm to a federally protected right is substantially likely, and

a failure to act upon that . . . likelihood.” Duvall, 260 F.3d at

1139. The plaintiff establishes the requisite knowledge (or

notice) on behalf of the defendant when she shows that she

“alerted the public entity to [her] need for accommodation (or

where the need for accommodation is obvious, or required by

statute or regulation).” Id.

“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 accommodation to

disabled persons.” Lemahieu, 513 F.3d at 938.

II. The district court improperly dismissed A.G.’s

meaningful access and reasonable accommodation

arguments.

A. Meaningful Access

We have held that a plaintiff may establish denial of

“meaningful access” under section 504 and Title II by

showing there was “a violation of one of the regulations

implementing” section 504, if such violation denied the

plaintiff meaningful access to a public benefit. Mark H. v.

Hamamoto, 620 F.3d 1090, 1096 (9th Cir. 2010). To support

such a cause of action, the regulation must be an

“implementing regulation” within the meaning of Alexander

v. Sandoval, 532 U.S. 275 (2001). See Mark H. v. Lemahieu,

513 F.3d 922, 935 (9th Cir. 2008) (“According to Sandoval,

regulations can only be enforced through the private right of

action contained in a statute when they ‘authoritatively

A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 17

construe’ the statute; regulations that go beyond a

construction of the statute’s prohibitions do not fall within the

implied private right of action, even if valid.” (quoting

Sandoval, 532 U.S. at 284)).

On appeal, plaintiffs argue that defendants 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). Section 104.33 requires a school district

to provide “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”

cross-referenced regulations, including § 104.34 among

others. 34 C.F.R. § 104.33(b)(1) (emphasis added). Plaintiffs

claim that A.G.’s placement at Roadrunner denied her

meaningful access because certain educational opportunities

such as art, music, and gifted classes were not available at

Roadrunner, and because she was inappropriately placed in

the Intervention Room for a total of approximately sixty

hours. They also claim that the school district defendants

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.

Therefore, plaintiffs argue, A.G.’s educational opportunities

at Vista Verde and Roadrunner were not “as adequate[] as”

those provided to her peers at Vista Verde. 34 C.F.R.

§ 104.33(b)(1)(i).

Section 104.34 mandates that a disabled student be placed

in the least restrictive “regular educational environment[,]”

and requires that school districts comply with various

18 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.

evaluative procedures and justify any changes in placement.

34 C.F.R. § 104.34(a). Plaintiffs argue that the school district

transferred her to Roadrunner school without complying with

§ 104.34’s procedural requirements, and that this transfer

prevented her from accessing certain educational

opportunities.

The district court dismissed plaintiffs’ meaningful access

argument. In doing so, it appeared to reason that A.G.’s

parents’ consent to placement at Roadrunner waived the

claim. The district court also ruled that A.G. was not

“qualified” to participate in the art, music, and gifted

education classes of which she claimed to be deprived,

because “she had repeatedly refused to do so at Vista Verde.”

Finally, the court noted that A.G.’s parents participated in the

IEP team meetings where they had an opportunity to raise

concerns that Roadrunner’s behavioral policies were

inappropriate for students diagnosed with autism.

The district court’s reliance on A.G.’s parents’ consent

was misplaced. We have 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. J.W. ex rel. J.E.W. v. Fresno

Unified Sch. Dist., 626 F.3d 431, 447 (9th Cir. 2010). The

conclusion in J.W. arose from an IDEA claim rather than

claims under section 504 or Title II, but we are persuaded that

a claim that meaningful access has been improperly denied

within the meaning of these latter statutes is not “precluded

or waived based on a parent’s consent to an IEP,” id., at least

where the issue is one that requires specialized expertise a

parent cannot be expected to have. Cf. id. (providing that

parents’ affirmative insistence on an intervention, such as

mainstreaming, may be a relevant consideration in

A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 19

meaningful access analysis). Given the complex presentation

of A.G.’s behavioral challenges, the question whether

Roadrunner was an appropriate placement for A.G. required

specialized expertise. Because the district court relied on

A.G.’s parents’ consent to placement at Roadrunner in

dismissing plaintiffs’ meaningful access claim without

evaluating whether A.G.’s educational needs were met as

adequately as those of her non-disabled peers, its decision

must be reversed and remanded.

That said, on remand the district court will need to

evaluate in the first instance whether plaintiffs have a valid

claim under these or other section 504 regulations. See

Lemahieu, 513 F.3d at 939–40. It is unclear from the

appellate record exactly which regulations plaintiffs allege

were violated by defendants and which violations allegedly

prevented A.G. from meaningfully accessing public

education. Thus, on remand, the district court should evaluate

(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,”

Lemahieu, 513 F.3d at 935 (citing Sandoval, 532 U.S. at 284);

(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,

Hamamoto, 620 F.3d at 1101.

B. Reasonable Accommodation

A plaintiff may establish prohibited discrimination under

section 504 and Title II by showing that a public entity denied

her a “reasonable accommodation” necessary to achieve

meaningful access to her education. To succeed on such a

claim, a plaintiff must show that the “defendant failed to

20 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.

make reasonable modifications that would accommodate the

plaintiff’s disability without fundamentally altering the nature

of the program or activity,” 1 Americans with Disabilities:

Practice and Compliance Manual § 1:247 (2015); Wong v.

Regents of the Univ. of Cal., 192 F.3d 807, 816 (9th Cir.

1999), and that the accommodation would have enabled her

to meet the “program’s essential eligibility requirements.”

E.R.K. ex rel. R.K. v. Haw. Dep’t of Educ., 728 F.3d 982, 992

(9th Cir. 2013).

Relying on the report and deposition testimony of their

behavioral psychologist expert, Dr. Jolenea B. Ferro, PhD.,

BCBA-D, plaintiffs argued below that A.G. needed further

behavioral services, including a full time behavioral aide, to

meaningfully access her education. They also assert that the

school district’s inquiry into these accommodations would

have demonstrated that they were necessary, reasonable, and

available and that they would have allowed A.G. to continue

her education at Vista Verde rather than be transferred to

Roadrunner.

The district court dismissed this claim, noting that “[o]n

the evidence presented, it cannot be assumed that if A.G. had

been provided a Functional Behavior Assessment, a Behavior

Intervention Plan, and a full-time behavioral aide, she would

have had fewer behavior problems and would not have posed

a danger to herself and others.” But this conclusion directly

contradicts the conclusions of Dr. Ferro, whose report and

testimony plaintiffs submitted in support of their reasonable

accommodation claim. Dr. Ferro stated that A.G.’s outbursts

at Vista Verde “demonstrate[d] that AG needed the

accommodations of an FBA and a BIP to have meaningful

access to her education.” Dr. Ferro’s opinions were

corroborated by evidence that A.G.’s classroom teacher

A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 21

believed that A.G. needed more behavioral support and that

the teacher sought assistance to better meet A.G.’s needs.

This evidence creates an issue of material fact as to whether

accommodations, such as a personal behavioral aide, would

have helped A.G. remain at Vista Verde. Moreover,

defendants did not dispute in the district court or on appeal

that a full-time aide could have been available.

The district court also observed that A.G.’s parents never

requested some of the services she later argued the school

district should have provided. We agree with this observation,

but it overlooks that A.G.’s parents did not have the

expertise—nor the legal duty—to determine what

accommodations might allow A.G. to remain in her regular

educational environment. See 1 Americans with Disabilities:

Practice and Compliance Manual § 1:247 (2015) (“[A]

plaintiff’s failure to expressly ‘request’ an accommodation is

not fatal to a claim where the defendant otherwise had

knowledge of an individual’s disability and needs but took no

action.”); Duvall, 260 F.3d at 1136 (Section 504 “create[s] a

duty to gather sufficient information from the disabled

individual and qualified experts as needed to determine what

accommodations are necessary.”).

As a consequence, we conclude 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. Thus,

summary judgment on this issue was improper. See Fed. R.

Civ. P. 56(a).6

6

In locating the existence of a genuine issue of material fact on the

question of reasonable accommodations, we express no opinion on

whether the accommodations discussed in Dr. Ferro’s report were

22 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.

C. Deliberate Indifference

Where, as here, the plaintiff seeks damages under section

504 and the ADA, she must show the defendant had notice of

her need for an accommodation and “fail[ed] to act.” Duvall,

260 F.3d at 1139. She can establish notice by showing that

she “alerted the public entity to [her] need for

accommodation;” or that “the need for accommodation [was]

obvious, or required by statute or regulation.” Id. When an

entity is on notice of the need for accommodation, it “is

required to undertake a fact-specific investigation to

determine what constitutes a reasonable accommodation.” Id.

The district court dismissed plaintiffs’ damages claims

after concluding from Dr. Ferro’s deposition testimony that

plaintiffs did not show the school district was on notice of the

need for accommodations. Specifically, the district court

relied on Dr. Ferro’s testimony that some of the services that

plaintiffs claim were necessary were “not legally required by

federal or state statute.”

Reliance on this testimony was error for three reasons.

First, Dr. Ferro was not in a position to provide an expert

legal opinion. See, e.g., Hangarter v. Provident Life &

Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (“[A]n

expert witness cannot give an opinion as to her legal

conclusion, i.e., an opinion on an ultimate issue of law.

Similarly, instructing the jury as to the applicable law is the

distinct and exclusive province of the court.” (internal

citations omitted)). Second, though the district court

reasonable, necessary, and available or even whether all of the

interventions she discussed qualify as “accommodations” within the

meaning of Section 504. These are questions to be evaluated on remand.

A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 23

acknowledged the three distinct means for establishing that

the school district had notice of the need for accommodation,

it conflated the latter two means for establishing notice when

it concluded: “[i]f legal necessity was not obvious to Dr.

Ferro, then it cannot be assumed that it would be obvious to

Defendants.” But the fact that an accommodation was legally

required by statute or regulation serves as an independent

basis to establish notice, Duvall, 260 F.3d at 1139; whether

the need for accommodation was obvious is a separate factual

inquiry. Id. (“When the plaintiff has alerted the public entity

to his need for accommodation (or where the need for

accommodation is obvious, or required by statute or

regulation), the public entity is on notice that an

accommodation is required, and the plaintiff has satisfied the

first element of the deliberate indifference test.” (emphasis

added)).

Third, the district court erred in failing to recognize that

there exists a genuine factual dispute as to whether the need

for accommodations was obvious. Dr. Ferro testified—

improperly and without citation to authority—that the

accommodation was not legally required, but she never

testified that the need for accommodation was not obvious.

To the contrary, Dr. Ferro asserted in her expert report that

the documented deterioration in A.G.’s behavior should have

triggered accommodations. Plaintiffs also introduced an

email from one of A.G.’s teachers complaining that the

existing behavioral support regime was insufficient to meet

A.G.’s needs, and evidence that A.G.’s parents had

previously requested a full-time behavioral aide for A.G. The

school district does not expressly rebut plaintiffs’ assertion

that A.G.’s deteriorating behavior made the need for

accommodations obvious but cites instead to the IEP

Addendum and argues that it shows A.G. was able to access

24 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.

her special education classes without the implementation of

further services. The parties’ competing assertions on this

point only establish that a factual dispute exists regarding

whether the need for accommodation was obvious and

whether the school district was therefore constructively on

notice of the need.

In light of the foregoing, we reverse the district court’s

order granting summary judgment in favor of the school

district on plaintiffs’ section 504 and Title II claims and

remand for further consideration consistent with this opinion.

III. Arizona State Law Tort Claims

Plaintiffs also brought tort claims against the school

district defendants under Arizona law. The district court

dismissed all of these claims, and we reverse in part this

portion of the district court’s order.7

A. Intentional and Negligent Infliction of Emotional

Distress

To establish a claim for intentional infliction of emotional

distress (“IIED”) under Arizona law, a plaintiff must prove:

(1) extreme and outrageous conduct by the defendant; (2)

intent to cause emotional distress or reckless disregard of the

near certainty that such distress will result from the

defendant’s conduct; and (3) severe emotional distress on the

plaintiff’s part that occurs as a result. Citizen Publ’g Co. v.

Miller, 115 P.3d 107, 110 (Ariz. 2005) (en banc). A plaintiff

7

Because plaintiffs expressly declined to appeal the district court’s

grant of summary judgment on their negligent supervision claim, we do

not reach that claim.

A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 25

must show that the defendant’s acts were “so outrageous in

character and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious

and utterly intolerable in a civilized community.” Mintz v.

Bell Atl. Sys. Leasing Int’l, Inc., 905 P.2d 559, 563 (Ariz. Ct.

App. 1995) (citing Cluff v. Farmers Ins. Exch., 460 P.2d 666,

668 (Ariz. Ct. App. 1969)).

To determine whether a defendant’s conduct was

outrageous and a plaintiff’s emotional distress severe,

Arizona courts have traditionally considered “defendant’s

knowledge that the plaintiff is peculiarly susceptible to

emotional distress by reason of some physical or mental

condition.” Lucchesi v. Frederic N. Stimmell, M.D., Ltd., 716

P.2d 1013, 1016 (Ariz. 1986) (in banc) (citations omitted).

This focus on the plaintiff’s susceptibility to emotional

distress is also referred to as the “eggshell plaintiff” rule. See

Yanes v. Maricopa County, No. CV-11-0274, 2012 WL

5989327, at *5 n.9 (Ariz. Ct. App. Nov. 8, 2012) (“The

Restatement clearly recognizes the application of the eggshell

plaintiff rule to claims for intentional infliction of emotional

distress.” (citing Restatement (Second) of Torts § 46 cmt. j

(Am. Law. Inst. 1965))); see also Restatement (Second) of

Torts § 46 cmt. f (“The extreme and outrageous character of

the conduct may arise from the actor’s knowledge that the

other is peculiarly susceptible to emotional distress, by reason

of some physical or mental condition or peculiarity.”).

Despite this necessarily fact-intensive analysis, it is only

when reasonable minds could differ in determining whether

conduct is sufficiently extreme or outrageous that an IIED

claim should survive summary judgment. Mintz, 905 P.2d at

563. Here, the district court ruled that plaintiffs failed to raise

a genuine issue of material fact showing the school district

26 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.

defendants’ conduct was extreme and outrageous. We agree.

While Officer Welsh’s actions arresting A.G. likely would

have warranted review by a jury to decide whether they were

extreme or outrageous, plaintiffs settled all claims against

Welsh and the City of Phoenix.8 Viewing the evidence in

plaintiffs’ favor, the conduct fairly attributable to the school

district defendants—failure to research whether interventions

were appropriate and to provide the necessary

accommodations, touching A.G.’s legs in an effort to restrain

her, escorting A.G. to the Intervention Room, attempting to

seat A.G., and enlisting Officer Welsh’s assistance—was not

“so outrageous in character and so extreme in degree, as to go

beyond all possible bounds of decency,” Mintz, 905 P.2d at

563, even considering the “eggshell plaintiff” principle.

Because there is no material issue of fact concerning the

school district’s conduct, plaintiffs’ IIED claim was correctly

dismissed.

The negligent infliction of emotional distress (“NIED”)

claim was also correctly dismissed. The district court found

the facts alleged by plaintiffs did not rise to the predicate

level typically required for such a claim in Arizona. Plaintiffs

mention the NIED claim in their opening brief, but their reply

brief makes clear that they did not intend to preserve this

cause of action when they settled with defendants City of

Phoenix and Officer Welsh. We affirm the district court’s

dismissal of this claim.

8

Although the settlement agreement is not part of the record on appeal,

the plaintiffs agree that they are “not relying on the actions of Officer

Welsh” to support their tort claims.

A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 27

B. Assault and Battery

To establish a claim for battery under Arizona law, the

plaintiff must allege that the defendant intentionally engaged

“in an act that results in harmful or offensive contact with the

person of another.” Duncan v. Scottsdale Med. Imaging, Ltd.,

70 P.3d 435, 438 (Ariz. 2003) (en banc) (citing Restatement

(Second) of Torts §§ 13, 18). Similarly, a claim for common-

law assault requires that the plaintiff allege that the defendant

acted “with intent to cause another harmful or offensive

contact or apprehension thereof, and the other person

apprehend[ed] imminent contact.” Garcia v. United States,

826 F.2d 806, 809 n.9 (9th Cir. 1987) (citing Restatement

(Second) of Torts § 21) (applying Arizona law). The two

claims are the same except that assault does not require the

offensive touching or contact. Id. Both require the defendant

have the requisite intent. Chappell v. Wenholz, 247 P.3d 192,

195 (Ariz. Ct. App. 2011) (“Battery is an intentional tort

under Arizona law.”); Blankinship v. Duarte, 669 P.2d 994,

999 (Ariz. Ct. App. 1983) (characterizing assault and battery

as intentional torts).

Plaintiffs assert that in order to prevail on claims for

assault and battery in Arizona, a plaintiff need only show that

a defendant intended an act, and that the act caused harmful

or offensive conduct. Plaintiffs are mistaken. Under Arizona

law, “the act that caused the harm will qualify as intentional

conduct only if the actor desired to cause the consequences—

and not merely the act itself—or if he was certain or

substantially certain that the consequences would result from

the act.” Mein ex rel. Mein v. Cook, 193 P.3d 790, 794 (Ariz.

Ct. App. 2008). In this respect, Arizona law follows the

principle from the Restatement (Second) of Torts that: “If the

actor knows that the consequences are certain, or

28 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.

substantially certain, to result from his act, and still goes

ahead, he is treated by the law as if he had in fact desired to

produce the result.” Mein, 193 P.3d at 794 (quoting

Restatement (Second) of Torts § 8A cmt. b) (emphasis

omitted).

Although the district court recited this correct legal

standard, it applied it incorrectly. Here, plaintiffs introduced

evidence that creates an issue of fact as to whether the school

district defendants physically escorted and restrained A.G.

when she was not a danger to herself or others and despite

knowing of her tactile sensitivity.9 Viewed in plaintiffs’

favor, this evidence prevents entry of summary judgment. See

Duncan, 70 P.3d at 438 (Arizona law provides a remedy for

intentional acts that result in “harmful or offensive contact”);

see also Garcia, 826 F.2d at 809 n.9. As a consequence,

summary judgment on plaintiffs’ assault and battery claims

was improper.10

9

We recognize that, in certain circumstances, restraining a child with

tactile sensitivity may be necessary to prevent the child from engaging in

behavior that is self-injurious or injurious to others. Here, plaintiffs agree

that school district staff were authorized to physically restrain A.G. if she

became a danger to herself or others. But A.G.’s mother and Officer

Welsh testified in their respective depositions that A.G. was not a danger

to herself or others when district staff physically escorted her to the

intervention room on two occasions. Furthermore, according to Principal

Lorna Green, Roadrunner school had a policy of physically escorting

children who were not a danger to themselves or others, notwithstanding

a particular child's tactile defensiveness.

10

The parties stipulated that A.G. would not testify. The district court

seemed to conclude that the assault and battery claims could not be

established without A.G.’s testimony that what she experienced was

harmful or offensive, or that she was put in imminent apprehension of

receiving such contact. We do not agree that A.G. was required to testify

A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 29

C. False Imprisonment

To establish a claim for false imprisonment in Arizona, a

plaintiff must show detention without consent or lawful

authority. See Slade v. City of Phoenix, 541 P.2d 550, 552

(Ariz. 1975) (in division). “The essential element necessary

to constitute either false arrest or false imprisonment is

unlawful detention.” Id. “[W]here a person is a danger to

[herself] or others because of [her] mental condition, . . . it is

lawful to restrain [her] so long as necessary until other lawful

measures can be followed.” Furrh v. Ariz. Bd. of Regents, 676

P.2d 1141, 1146 (Ariz. Ct. App. 1983).

Plaintiffs argue that the school district falsely imprisoned

A.G. when they physically restrained her, despite A.G.’s IEP

Addendum providing that she would not be restrained unless

she presented a danger to herself or others, and the district’s

training manuals directing staff to stop transporting a student

who is struggling against an escort. The district court ruled

that, in light of the numerous instances reflected in the record

where A.G. is alleged to have presented a danger to herself or

others, there was evidence that she presented such a danger

on February 3, 2010 and March 23, 2010, dates when

defendants could not have avoided restraining her. But the

district court neglected to consider the evidence in the record

showing that A.G. presented no such danger on those

occasions. Because plaintiffs introduced evidence sufficient

to create a genuine issue of material fact as to whether A.G.

was a danger to herself or others when school district staff

to support these claims. See State v. Angle, 720 P.2d 100, 105 (Ariz. Ct.

App. 1985), affirmed in part, vacated in part on other grounds, 720 P.2d

79 (Ariz. 1986).

30 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.

restrained her, summary judgment on plaintiffs’ false

imprisonment claim was improper.11

IV. Taxation of Costs

Because it is necessary to reverse the order granting

summary judgment on plaintiffs’ section 504 and Title II

claims, the order denying costs to the defendants is vacated.

See Atonio v. Wards Cove Packing Co., 10 F.3d 1485, 1504

(9th Cir. 1993) (citing Garrett v. City & County of San

Francisco, 818 F.2d 1515, 1521 (9th Cir. 1987)).

REVERSED in part; AFFIRMED in part; VACATED

in part; and REMANDED. Each party shall bear its own

costs on appeal.

11

We hold that the district court erred in granting summary judgment

on plaintiffs’ assault, battery, and false imprisonment claims because

plaintiffs succeeded in raising a genuine issue of material fact as to each

of these claims. See, e.g., Tekle v. United States, 511 F.3d 839, 854–55

(9th Cir. 2006). We express no view on what the result should be on any

of those claims on remand.