Cyrus Csutoras v. Paradise High School

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CYRUS CSUTORAS, No. 19-17373

Plaintiff-Appellant,

D.C. No.

v. 2:16-cv-02210-

KJM-DMC

PARADISE HIGH SCHOOL; PARADISE

UNIFIED SCHOOL DISTRICT,

Defendants-Appellees. OPINION

Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, Chief District Judge, Presiding

Argued and Submitted June 15, 2021

San Francisco, California

Filed September 7, 2021

Before: Mary M. Schroeder, Milan D. Smith, Jr., and

Lawrence VanDyke, Circuit Judges.

Opinion by Judge VanDyke

2 CSUTORAS V. PARADISE HIGH SCHOOL

SUMMARY *

Americans with Disabilities Act / Rehabilitation Act

The panel affirmed the district court’s grant of summary

judgment in favor of Paradise High School and Paradise

Unified School District in an action brought under Title II of

the Americans with Disabilities Act and § 504 of the

Rehabilitation Act by Cyrus Csutoras.

Csutoras, a student with attention deficit disorder, sought

damages after he was assaulted and seriously injured by

another student at a high school football game.

The panel held that guidance issued by the Department

of Education in Dear Colleague Letters was not binding, and

the school’s failure to adopt all of the Letters’ suggestions

did not amount to disability discrimination. The panel held

that to assert a cognizable claim for damages under the ADA

or the Rehabilitation Act, Csutoras was required to establish

intentional discrimination or deliberate indifference by

defendants. The panel held that Csutoras did not meet the

high bar of deliberate indifference because the Dear

Colleague Letters did not make his need for social

accommodations “obvious,” such that failure to enact the

Letters’ recommendations constituted a denial of a

reasonable accommodation with deliberate indifference.

Further, no request for a social-related accommodation was

ever made, and no prior incidents of bullying or harassment

*

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

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

CSUTORAS V. PARADISE HIGH SCHOOL 3

involving Csoturas were observed or reported to the school

prior to the assault during the football game.

COUNSEL

Russell Clive Handy (argued), Potter Handy LLP, San

Diego, California; JD Zink, Zink & Lenzi Attorneys at Law,

Chico, California; Scottlynn J. Hubbard, Hubbard APC,

Chico, California; for Plaintiff-Appellant.

William D. Ayres (argued), Ayres Law Office, Redding,

California, for Defendants-Appellees.

OPINION

VANDYKE, Circuit Judge:

After getting assaulted and seriously injured by another

student at a high school football game, Cyrus Csutoras (who

suffered from attention deficit disorder) sued his school for

money damages, asserting claims under Title II of the

Americans with Disabilities Act (ADA), 42 U.S.C. § 12131

et seq., and Section 504 of the Rehabilitation Act of 1973

(Rehabilitation Act), 29 U.S.C. § 794. But Csutoras does not

argue the school violated any binding statutory or regulatory

provision. Instead, he argues that guidance issued by the

Department of Education (DOE) in various Dear Colleague

Letters should be binding, and that the school’s failure to

adopt all of the Letters’ suggestions for preventing

harassment of disabled students amounts to disability

discrimination.

4 CSUTORAS V. PARADISE HIGH SCHOOL

Csutoras attempts to use the Dear Colleague Letters at

issue in this case to leapfrog over the statutory requirements

to assert a cognizable claim under the ADA or the

Rehabilitation Act. But the agency guidance represented in

the particular Dear Colleague Letters here can’t relieve

Csutoras of the legal elements he must satisfy, particularly

intentional discrimination or deliberate indifference. The

Dear Colleague Letters don’t (nor does it seem they were

intended to) adjust the legal framework governing private

party lawsuits brought under the ADA or Rehabilitation Act.

Accordingly, Csutoras’s claims—which rely entirely on the

enforceability of the Dear Colleague Letters as distinct legal

obligations—fail. We therefore affirm the district court’s

grant of summary judgment to Paradise High School and

Paradise Unified School District (collectively, the “school”).

BACKGROUND

Csutoras transferred to Paradise High School during his

freshman year. Because of his attention deficit disorder, he

requested, and the school granted, two accommodations

pursuant to a Section 504 plan. The accommodations

allowed him (1) extra time to complete work when

necessary, and (2) assisted review of his notes to help keep

him organized. Both Csutoras and his mother signed off on

the proposed plan and denied the need for any further

accommodations. Csutoras’s agreed-upon educational plan

was entirely academic in nature; he never requested any

other accommodations from the school—including any

social accommodations related to harassment or bullying.

On August 28, 2015, Csutoras was talking with a female

classmate (Faith) at a high school football game when a male

classmate (Justin) suddenly approached and assaulted

Csutoras, punching him several times in the face. Csutoras

was seriously injured by the assault. The school had four

CSUTORAS V. PARADISE HIGH SCHOOL 5

adults supervising the game, but none of them observed or

stopped the incident. Both parties agree that Justin’s

motivation for the assault was not connected in any way to

Csutoras’s attention deficit or his blood clotting disorder. 1

In fact, Justin later admitted the attack was motivated by

jealousy, and the investigation after the incident confirmed

the same, characterizing the assault as motivated by

jealously over Csutoras’s relationship with Faith. In other

words, the parties agree the assault that motivated this

lawsuit was unmotivated in any way by Csutoras’s disability

(either his attention deficit or blood clotting disorder). 2

Prior to the football game, the school was unaware of any

harassment or bullying involving Csutoras. Csutoras’s

mother was likewise unaware. After the assault, an

investigation revealed that Justin “had hit [Csutoras] on the

shoulder during school [lunch]” a few days before the

football game and that Justin learned after hitting Csutoras’s

shoulder that Csutoras suffered from a blood clotting

disorder. But the lunch incident was not observed by any

school representative and was never reported to the school

by Csutoras or anyone else before the football game. So the

parties agree on this important fact: the school was unaware

1

The parties dispute both whether Csutoras has a blood-clotting

disorder, and whether it constitutes part of his qualifying disability or the

school was aware of it. The only disability identified on Csutoras’s 504

plan, and in his Complaint, was attention deficit disorder and no

accommodations were sought in connection with his blood clotting

disorder. But viewing the evidence in the light most favorable to

Csutoras, we will assume that Csutoras’s blood-clotting disorder was

part of his disability.

2

Csutoras’s counsel conceded the same at oral argument.

6 CSUTORAS V. PARADISE HIGH SCHOOL

of any harassment or bullying of Csutoras prior to the

football game where he was assaulted.

Csutoras filed suit against the school and sought

monetary damages, arguing the school violated the ADA and

Rehabilitation Act by failing to satisfy various Dear

Colleague Letters issued by the DOE’s Office for Civil

Rights (OCR) and Office of Special Education and

Rehabilitative Services (OSERS) between 2000 and 2014. 3

On cross motions for summary judgment, the district

court denied Csutoras’s motion for partial summary

judgment on liability and granted summary judgment to the

school, determining that the Dear Colleague Letters were not

3

See generally U.S. Dep’t of Educ., Office for Civil Rights and

Office of Special Educ. and Rehab. Servs., Dear Colleague Letter:

Prohibited Disability Harassment, July 25, 2000, https://www2.ed.gov/

print/about/offices/list/ocr/docs/disabharassltr.html (“2000 Letter”);

U.S. Dep’t of Educ., Office for Civil Rights, Dear Colleague Letter:

Harassment and Bullying, Oct. 26, 2010, https://www2.ed.gov/about/of

fices/list/ocr/letters/colleague-201010.pdf (“2010 Letter”); U.S. Dep’t of

Educ., Office of Special Educ. and Rehab. Servs., Dear Colleague Letter:

Bullying of Students with Disabilities, Aug. 20, 2013, https://www2.ed.

gov/policy/speced/guid/idea/memosdcltrs/bullyingdcl-8-20-13.pdf (“20

13 Letter”), https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/

bullyingdcl-enclosure-8-20-13.pdf (“2013 Letter Enclosure”); U.S.

Dep’t of Educ., Office for Civil Rights, Dear Colleague Letter: Respon

ding to Bullying of Students with Disabilities, Oct. 21, 2014, https://w

ww2.ed.gov/about/offices/list/ocr/letters/colleague-bullying-201410.pd

f (“2014 Letter”) (collectively, the “Dear Colleague Letters” or

“Letters”).

Csutoras only cited and relied on the 2013 and 2014 Letters in his

motion for partial summary judgment before the district court. On

appeal, Csutoras appears to rely on all four Letters and we agreed to take

judicial notice of them as they were made public through a government

entity and no party disputed their accuracy or authenticity.

CSUTORAS V. PARADISE HIGH SCHOOL 7

binding and that Csutoras was unable to show the school

violated any part of the existing regulatory scheme. Csutoras

appeals this decision, and we have jurisdiction under

28 U.S.C. § 1291.

STANDARD OF REVIEW

“We review de novo the district court’s decision on cross

motions for summary judgment. We consider, viewing the

evidence in the light most favorable to the nonmoving party,

whether there are genuine issues of material fact and whether

the district court correctly applied the relevant substantive

law.” Marable v. Nitchman, 511 F.3d 924, 929 (9th Cir.

2007) (citations omitted).

DISCUSSION

A. Csutoras’s Claims Fail As The Dear Colleague

Letters Are Not Binding.

Anticipating that he would be left without recourse

against the school absent enforcement of the Dear Colleague

Letters as binding law, Csutoras proposes two novel legal

theories. We reject both theories, as they lack any support

from the statutory text, binding regulations, or our caselaw. 4

4

Csutoras centers his claim entirely on the enforceability of the Dear

Colleague Letters, and notably concedes that “if the Dear Colleague

Letter’s guidance isn’t taken into account in assessing Defendants’

actions, and more importantly their failures to act, Csutoras probably

loses.”

8 CSUTORAS V. PARADISE HIGH SCHOOL

1. Csutoras’s Proposed Theories Conflict with

Binding Precedent.

First, Csutoras urges us to adopt a four-factor test, set out

in the 2014 Letter, as establishing whether certain conduct

gives rise to a disability-based harassment violation under

the ADA and Rehabilitation Act. 5 Under the OCR’s

proposed test, it may seek enforcement against a claimed

violation when: “(1) a student is bullied based on a

disability; (2) the bullying is sufficiently serious to create a

hostile environment; (3) school officials knew or should

know about the bullying; and (4) the school does not respond

appropriately.” 2014 Letter at 4 (emphasis added). But

5

Csutoras cites to footnote 18 of the 2013 Letter as the source for

this proposed test and claims that the 2013 Letter cites to Davis v.

Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999), as the original source.

But the 2013 Letter does not have a footnote 18 nor does it discuss this

test. We assume Csutoras is relying on the 2014 Letter, where a four-

factor test is discussed. But the 2014 Letter cites Davis in support of a

different legal standard applicable to “private lawsuits for money

damages” like this one—where courts have required actual knowledge

and deliberate indifference. 2014 Letter at 4 n.18. In fact, Davis

explicitly rejected the third factor of the test Csutoras urges: whether

“school officials know or should know about the bullying.” Davis,

526 U.S. at 642 (explaining the Court previously “declined the invitation

to impose liability under what amounted to a negligence standard—

holding the district liable for its failure to react to . . . harassment of

which it knew or should have known,” instead imposing damages only

if the school intentionally acted with deliberate indifference to

“harassment of which it had actual knowledge”). So under the Davis

framework—which is properly applied in private party lawsuits like this

case alleging peer-on-peer harassment based on disability—Csutoras

must show the school had actual knowledge of the harassment and was

deliberately indifferent. See Davis, 526 U.S. at 650 (“We thus conclude

that funding recipients are properly held liable in damages only where

they are deliberately indifferent to . . . harassment, of which they have

actual knowledge . . . .”).

CSUTORAS V. PARADISE HIGH SCHOOL 9

Csutoras’s proposal to apply this test in private lawsuits like

his is foreclosed by our precedent, which sets a much higher

bar for plaintiffs seeking damages under the ADA or

Rehabilitation Act by requiring they “prove that the

defendant intended to discriminate on the basis of his or her

disability, or was deliberately indifferent to the disability.”

T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist.,

806 F.3d 451, 466 (9th Cir. 2015) (citing Duvall v. County

of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001)).

The proposal is also foreclosed by the Letters

themselves, which acknowledge the four-factor test is

limited to administrative enforcement actions and suits for

injunctive relief—distinguishing it from the actual

knowledge and deliberate indifference standard that governs

private lawsuits for money damages (like the one Csutoras

brings here). 6 2014 Letter at 4 n.18. Because the Letters

explicitly disclaim governance of private actions for

damages, Csutoras’s first proposed theory is a non-starter.

Second, Csutoras asks us to hold that, collectively, the

Dear Colleague Letters provide adequate, constructive

notice to schools that all disabled students need social

accommodations (even if never requested) to prevent

bullying and harassment—thereby relieving him of his duty

to establish actual knowledge and deliberate indifference.

6

Csutoras’s original complaint sought both monetary damages and

injunctive relief but he made no effort to pursue injunctive relief before

the district court and on appeal pursues only monetary damages.

Csutoras does not dispute his suit is one for money damages. Instead,

when confronted with footnote 18 from the 2014 Letter—which clarifies

its guidance is not applicable to suits like his for money damages—he

insists it should be “the only statement in the 2014 letter not entitled to

deference.”

10 CSUTORAS V. PARADISE HIGH SCHOOL

Csutoras’s interpretation of the Dear Colleague Letters

attempts to stretch them far afield from what they actually

say and what our precedent allows. Essentially, Csutoras

argues that any instance of peer-on-peer harassment or

bullying directed towards a disabled student (regardless of

the harasser’s motivations or the school’s precautions)

should, at a minimum, create a colorable claim of disability

discrimination against the school and a fact issue for the jury

to resolve. But such an expansive interpretation is

foreclosed by the law governing private suits for damages,

which requires that plaintiffs meet the high bar of deliberate

indifference—i.e., where “the school’s response to the

harassment or lack thereof was clearly unreasonable in light

of the known circumstances.” Karasek v. Regents of Univ.

of Cal., 956 F.3d 1093, 1105 (9th Cir. 2020) (emphases

added) (alterations and quotation marks omitted) (citing

Davis, 526 U.S. at 648).

While the deliberate-indifference inquiry involves

factual determinations, it “does not [as Csutoras suggests]

‘transform every school disciplinary decision into a jury

question.’” Estate of Lance v. Lewisville Indep. Sch. Dist.,

743 F.3d 982, 997 (5th Cir. 2014) (quoting Gant ex rel. Gant

v. Wallingford Bd. of Educ., 195 F.3d 134, 141 (2d Cir.

1999) (internal quotations omitted)) (citing Davis, 526 U.S.

at 648). Nor, as the Supreme Court explained in Davis, does

it require schools to purge themselves of every instance of

bullying or harassment to avoid liability. See 526 U.S. at

648 (emphasizing that the deliberate indifference standard

“does not mean that recipients can avoid liability only by

purging their schools of actionable peer harassment or that

administrators must engage in particular disciplinary

action.”). The Supreme Court has also made clear that in

appropriate cases, a school’s response to harassment or the

precautions it puts in place to prevent harassment may be

CSUTORAS V. PARADISE HIGH SCHOOL 11

reasonable as a matter of law. See id. at 649. And here—

given that the record is devoid of any fact (including any

request from Csutoras for a social-related accommodation)

that would suggest he required surveillance or assistance

beyond the limited adult supervision provided at the football

game—the school’s precautions were within the wide range

of reasonableness afforded by our precedent and therefore

reasonable as a matter of law. The school’s response to

Csutoras’s harassment, which he does not challenge nor do

we see any basis to second-guess, was also reasonable as it

included a prompt and full investigation into the incident and

suspension of the assailant.

As other courts have observed before, “[j]udges make

poor vice principals,” and thus need to be careful second-

guessing a school’s disciplinary decisions or restricting the

flexibility that school administrators require and our laws

afford. Estate of Lance, 743 F.3d at 996; see also Karasek,

956 F.3d at 1105; Johnson v. Ne. Sch. Corp., 972 F.3d 905,

912 (7th Cir. 2020) (citing Davis, 526 U.S. at 633, 648–49).

The Letters themselves cannot satisfy Csutoras’s obligation

to demonstrate that the school had actual knowledge of prior

harassment, which the school met with a clearly

unreasonable response. Nor do we read the Letters as

attempting such a feat, as they consistently recognize that a

school’s responsibilities toward any particular student are

highly contextual and caution that “[t]here is no one-size-

fits-all or simple solution” to the problem of bullying. 2013

Letter Enclosure at 1.

Enforcement of the guidance as Csutoras suggests would

also likely be unworkable and highly problematic because it

lacks any administrable standard for the trier-of-fact to

determine liability or the regulated schools to gauge

12 CSUTORAS V. PARADISE HIGH SCHOOL

compliance. 7 And as our caselaw recognizes, no amount of

supervision could completely neutralize the risk of peer-on-

peer harassment or bullying—underscoring why the

guidance provided in these Dear Colleague Letters is simply

that: aspirational, non-binding guidance that cannot create or

change the elements of a private cause of action. See Davis,

526 U.S. at 648.

2. The Dear Colleague Letters Do Not Create Legal

Obligations.

Without any supporting cases, Csutoras asks us to chart

a new course and enforce the Dear Colleague Letters as

binding law. But Csutoras points to no evidence, nor did we

find any, that the Dear Colleague Letters were issued as the

“authoritative” or “official position” of the Department of

Education for purposes of private damages actions. See

Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019). For that

reason, they lack any force of law for that purpose. A

holding otherwise would create an “unfair surprise” for

regulated parties because the guidance would create new

duties beyond those currently imposed. Id. at 2417–18.

Moreover, the Letters themselves disclaim any binding

authority and explicitly state that they don’t apply to private

suits for money damages—which is exactly what Csutoras

has brought here. 2014 Letter at 4 n.18; 2010 Letter at 1 n.6.

The Letters expressly limit their application to

administrative enforcement actions and lawsuits seeking

7

Indeed, some of the practical concerns with enforcing vague

agency guidance were demonstrated in oral argument when Csutoras’s

counsel was unable to answer exactly how many adults at the football

game (beyond the four provided) would have satisfied the “best practice”

of providing “active adult supervision” since the Letters suggest no set

number or preferred ratio.

CSUTORAS V. PARADISE HIGH SCHOOL 13

injunctive relief. 8 And the Letters are chock-full of vague

and aspirational words—“encourag[ing] schools to

“consider” some of the recommendations they “can”

implement—that confirm the non-binding nature of their

suggestions and undercut Csutoras’s argument that they

were meant to provide any binding regulatory standard for

private enforcement. 9

In sum, because the Dear Colleague Letters are not

authoritative and do not apply in suits for money damages

like the one Csutoras appeals here, they do not create a

private regulatory scheme or alter the legal regime we are

bound to apply. 10

8

2014 Letter at 4 n.18. (acknowledging that the 2014 Letter outlines

“the standard for administrative enforcement of Section 504 and in court

cases where plaintiffs are seeking injunctive relief. It is different from

the standard in private lawsuits for money damages, which, many courts

have held requires proof of a school’s actual knowledge and deliberate

indifference.”) (emphases added); see also 2010 Letter at 1 n.6

(clarifying the guidance applies only to administrative enforcement

actions and cases where injunctive relief is sought).

9

2013 Letter Enclosure at 1 (“[t]here is no one-size-fits-all or simple

solution” to the problem of bullying and “[w]e encourage you to

carefully consider each of these practices”); 2000 Letter at 1

(recognizing its purpose to “develop greater awareness of this issue [of

disability harassment], to remind interested persons of the legal and

educational responsibilities that institutions have . . . , and to suggest

measures that school officials should take to address this very serious

problem.”).

10

In this case, we need not decide whether all Dear Colleague

Letters, or similar documents, are or are not eligible for deference or can

or cannot create legal obligations. The Supreme Court had granted

certiorari to decide this question. See Gloucester Cnty. Sch. Bd. v. G.G.

ex rel. Grimm, 137 S. Ct. 369 (2016); see also Petition for Writ of

14 CSUTORAS V. PARADISE HIGH SCHOOL

B. Csutoras’s Claims Fail Under Our Binding

Precedent.

To establish a claim under the ADA or Rehabilitation

Act, Csutoras “must show: (1) [he] is a qualified individual

with a disability; (2) [he] was denied a reasonable

accommodation that he needs in order to enjoy meaningful

access to the benefits of public services; and (3) the program

providing the benefit receives federal financial assistance”

(for the Rehabilitation Act claim) or is a public entity (for

the ADA claim). A.G. v. Paradise Valley Unified Sch. Dist.

No. 69, 815 F.3d 1195, 1204 (9th Cir. 2016) (quoting Mark

H. v. Hamamoto, 620 F.3d 1090, 1097 (9th Cir. 2010)

(cleaned up)). 11 Although there is some dispute over the

nature of Csutoras’s disability, the parties agree the first and

third elements have been satisfied at this stage, which centers

our analysis on whether a reasonable accommodation was

denied. The reasonable accommodation element can be

satisfied by showing the school wrongly denied an

Certiorari at i, Gloucester Cnty. Sch. Bd. v. G.G. ex rel. Grimm, 137 S.

Ct. 369 (2016) (No. 16-273) (“[S]hould deference extend to an

unpublished agency letter that, among other things, does not carry the

force of law and was adopted in the context of the very dispute in which

deference is sought?”). However, the Court later remanded the case

without issuing a decision on the merits because of new guidance issued

by the Department of Education and Department of Justice. See

Gloucester Cnty. Sch. Bd. v. G.G. ex rel. Grimm, 137 S. Ct. 1239 (2017).

11

Because “there is no significant difference in the analysis of rights

and obligations created by the [ADA and the Rehabilitation Act],” K.M.

ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1098 (9th Cir.

2013) (quoting Vinson v. Thomas, 288 F.3d 1145, 1152 n.7 (9th Cir.

2002)), we collectively address the claims under both statutes. The few

differences between the two—jurisdictional requirements, the causal

standard for liability, the entity with regulatory responsibility, and the

consistency across regulations, id. at 1098–99—are not implicated here.

CSUTORAS V. PARADISE HIGH SCHOOL 15

accommodation request or failed to comply with a binding

regulation. A.G., 815 F.3d at 1204. Here, because the Dear

Colleague Letters are not binding and the parties agree a

social-related accommodation was never requested or

denied, Csutoras cannot establish the second element of his

ADA and Rehabilitation Act claims.

Further, as a private plaintiff seeking money damages,

Csutoras must clear an additional hurdle: proving a “mens

rea of intentional discrimination” in the failure to

accommodate, which “may be met by showing deliberate

indifference.” A.G., 815 F.3d at 1204 (quoting Mark H.,

513 F.3d at 938 (internal quotations omitted)). “Deliberate

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; see

also Mark H., 620 F.3d at 1099.

To meet the high bar of deliberate indifference, a

plaintiff must first show that the public entity was on notice

of the need for an accommodation. See Duvall, 260 F.3d

at 1139. Notice is usually provided “[w]hen 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).” Id. (emphases added). Here, the

parties agree that Csutoras never requested any

accommodation related to social interactions, bullying, or

harassment. And because the Dear Colleague Letters that

Csutoras relies on are not binding, the specific

accommodations they suggest are not “required by statute or

regulation.” Accordingly, the sole remaining question is

whether, as Csutoras urges, the Dear Colleague Letters

(which note that students with disabilities are at a greater risk

of being harassed or bullied) made his need for social

accommodations “obvious”—such that failure to enact their

16 CSUTORAS V. PARADISE HIGH SCHOOL

recommendations constituted a denial of a reasonable

accommodation with deliberate indifference.

The answer is no, because this “obvious” determination

cannot be made in a vacuum detached from the facts. And,

despite Csutoras’s urging to the contrary, the Dear Colleague

Letters in this case cannot serve as a substitute for the factual

basis required to show the accommodation need was

obvious. See, e.g., A.G., 815 F.3d at 1208 (explaining

“whether the need for accommodation was obvious is a

separate factual inquiry” (emphasis added), considering an

expert report from a behavioral psychologist regarding the

student’s behavior, an email from the student’s teacher, and

the parents’ request for an aide as evidence of a factual

dispute as to the obviousness of the need for

accommodation). As the Letters emphasize, no one-size-

fits-all approach to bullying or harassment is appropriate—

notwithstanding Csutoras’s urging that we unilaterally

assume the need for and demand the provision of social

accommodations for all disabled students, irrespective of

their individual needs and circumstances.

None of the facts here support Csutoras’s view that his

need for social-related accommodations was “obvious.” No

request for a social-related accommodation was ever made

(and both Csutoras and his mother denied that he needed any

other accommodations after approving the academic

accommodations in his 504 plan). No prior incidents of

bullying or harassment involving Csutoras were observed by

or reported to the school, other than the lunch incident,

which was reported only after the assault during the football

game. And there is no evidence or even allegation that the

school ignored any widespread bullying or harassment of

disabled students. The only “fact” Csutoras points to in

support of his “obvious” argument is the existence of the

CSUTORAS V. PARADISE HIGH SCHOOL 17

Dear Colleague Letters—which cannot and do not satisfy his

burden to demonstrate the school had actual notice of his

need for a reasonable accommodation related to a qualifying

disability. See Mark H., 620 F.3d at 1097. 12

CONCLUSION

We reject Csutoras’s invitation to make the agency

guidance at issue binding. And without it, as the district

court and even Csutoras recognized, his claims fail as a

matter of law. Accordingly, summary judgment for Paradise

High School and Paradise Unified School District was

properly granted.

The judgment of the district court is AFFIRMED.

12

Several other issues plague Csutoras’s claims (including that there

appears to be no evidence that he was harassed or bullied because of his

disability). But we need not reach those alternative grounds to affirm

summary judgment.