applying “meaningful access” standard to 20 determine reasonable accommodation under Section 504
How later courts described this case
- applying “meaningful access” standard to 20 determine reasonable accommodation under Section 504
Written by the judges who cited it.
The opinion
Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 1 of 28 Page ID #:2713
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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J.G., a minor by and through his Case No. 2:19-cv-01268-JGB-E
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Guardians ad Litem, Jose G. and Martha F.,
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Plaintiff, FINDINGS OF FACT AND
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v. CONCLUSIONS OF LAW
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Los Angeles Unified School District,
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14 Defendant.
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1 Plaintiff J.G., by and through his Guardians ad Litem, Jose G. and Martha F.,
2 brought this action against Defendant Los Angeles Unified School District, alleging
3 (1) violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101,
4 et seq.; and (2) violations of Section 504 of the Rehabilitation Act (“Section 504”),
5 29 U.S.C. § 794, et seq.
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The case was tried to the Court without a jury on November 2, 3, 4, and 5,
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2021. In lieu of closing arguments, the Court ordered closing briefing. Defendant
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filed its closing brief on May 5, 2022. (“Def. Closing,” Dkt. No. 133.) Plaintiff
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filed his closing brief on May 9, 2022. (“Pl. Closing,” Dkt. No. 135.) Defendant
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filed its opposition to Plaintiff’s closing brief on May 23, 2022. (“Def. Opp.,” Dkt.
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No. 141.) Plaintiff filed his reply to Defendant’s closing brief on May 23, 2022.
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(“Pl. Reply,” Dkt. No. 142.)
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The Court, having considered all the evidence presented by the parties, the
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written submissions from both sides, and the argument of counsel, issues the
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following Findings of Fact and Conclusions of Law.
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1 I. FINDINGS OF FACT
2 A. General Facts
3 1. Javier Guerrero (“J.G.”) was born on September 28, 2001. (“Stip. Facts,”
4 Dkt. No. 144, 6B.)
5 2. J.G. has Down syndrome and is a person with a disability. (Id. 5B, 6A.) As a
6 result of his Down syndrome, J.G. has severe speech and language
7 impairments, as well as cognitive impairments. (Id. 6D.)
8 3. At all relevant times, J.G. attended public schools in the Los Angeles Unified
9 School District (the “District”) and received special education services.
10 (Id. 6C, 6E.)
11 B. Least Restrictive Environment
12 4. From 2004 to 2019, J.G. attended Lowman Special Education Center
13 (“Lowman”). (Id. 5A.)
14 5. J.G. received an Individualized Education Program (“IEP”) every year.
15 (“Def. Facts,” Dkt. No. 133-1, ¶ 4.) J.G.’s mother, Martha F., was part of
16 his IEP team and attended all of the IEP meetings with a Spanish translator.
17 (Id. ¶ 5.) J.G.’s mother testified that she usually signed the IEPs on the day
18 of the meetings, though she would receive a translated written copy of the
19 IEPs months later. (M. Flores Testimony 53:16–25 [Day 2].)
20 6. The District’s Policy Bulletin 5901.4, “Determining the Appropriate
21 Educational Placement for Students with Disabilities in the Least Restrictive
22 Environment (LRE),” dated May 15, 2017, states: “It is the policy of the
23 District that students with disabilities receive all supplementary aids,
24 services and placements, as determined by an individualized education
25 program (IEP) team, in the least restrictive environment. The general
26 education classroom with all appropriate supplementary aids and services is
27 the first educational setting that the IEP team must consider.” (Trial
28 Ex. 28.) “The extent to which students with disabilities are integrated with
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1 their nondisabled peers positively impacts their educational achievement and
2 their social growth.” (Id.)
3 7. At the June 8, 2006 IEP meeting, the IEP team offered to place J.G. on a
4 general education campus. (“Pl. Facts,” Dkt. No. 135-1, ¶ 19.) J.G.
5 attended Montague Street Elementary, a general education campus, for a
6 few months. At the September 26, 2006 IEP meeting, “Mom reported that
7 Javier has regressed from June to September. The change in schools and
8 routine was apparently too drastic and it has not met his needs. . . . She
9 wanted him to return to Lowman.” (Trial Ex. 5 at 17.) J.G. returned to
10 Lowman. (Pl. Facts ¶ 20; Def. Facts ¶ 8.)
11 8. On September 21, 2007, J.G.’s pediatrician wrote a letter to Lowman stating,
12 “His mother is very interested, as am I, in Javier attending school with more
13 functional kids.” (Pl. Facts ¶ 22; Trial Ex. 7.)
14 9. At the September 26, 2007 IEP meeting, J.G.’s mother expressed, “I want
15 my son Javier go to regular school.” (Pl. Facts ¶ 23; Trial Ex. 8 at 40.) At
16 the same meeting, the IEP team “agree[d] that Javier should be in a special
17 day class on a general education campus.” (Pl. Facts ¶ 24; Trial Ex. 8 at 37.)
18 10. However, J.G.’s mother did not know that the IEP team offered to place J.G.
19 on a general education campus. (Pl. Facts ¶¶ 25, 27.)
20 11. J.G. remained at Lowman until 2019. (Id. ¶ 28.)
21 12. Lynne Cripe is a teacher at Lowman who taught J.G. for the 2015–2016
22 (ninth grade) and 2018–2019 (twelfth grade) school years. (Stip. Facts 6K.)
23 13. In 2015, J.G.’s accommodations, modifications, and supports included
24 “individual and/or small group instruction, extended wait time for response,
25 frequent verbal/physical reminders and/or prompts to stay on task, and high
26 interest materials.” (Trial Ex. 23 at 32.) Ms. Cripe testified that although
27 these accommodations could have been provided on a general education
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1 campus, she believed that Lowman was the least restrictive environment for
2 J.G. for the ninth grade. (L. Cripe Testimony 118:20–22, 131:3–6.)
3 14. Sally Weinberger was a teacher at Lowman who taught J.G. for the
4 2016–2017 (tenth grade) and 2017–2018 (eleventh grade) school years.
5 (Stip. Facts 6J.)
6 15. Ms. Weinberg testified that J.G. required accommodations such as “verbal
7 prompting, physical prompting, modeling, reteaching, individualized
8 instruction, extended wait time, redirection,” and “high interest learning
9 materials.” (S. Weinberger Testimony 50:1–9.) She believed that “given
10 those accommodations, he can succeed anywhere.” (Id. 51:2–3.)
11 16. As J.G.’s teachers, Ms. Cripe and Ms. Weinberger assessed and evaluated
12 J.G.’s educational progress on a daily and weekly basis. (Id. ¶¶ 22, 29.)
13 Ms. Cripe and Ms. Weinberger also provided annual written assessments of
14 J.G.’s performance in areas such as functional reading, functional writing,
15 and functional math in the IEPs. (Def. Facts ¶¶ 23, 30.)
16 17. In 2018, Ms. Weinberger conducted an Academic Assessment of J.G. and
17 wrote a report dated February 5, 2018. (Trial Ex. 31.) The report states:
18 “Javier attends a Special Day Program in a High School class consisting of 10
19 students. The students have a wide range of abilities. Javier is ambulatory
20 and responds to moderate adult assistance and prompting. Adults in the
21 classroom consist of one (1) Special Education Teacher, two (2) Health Care
22 Assistants, and one (1) Paraprofessional. Due to the various needs of the
23 students in the classroom, there are different tables which the students use.
24 Six (6) of the students are in wheelchairs and four (4) are ambulatory.
25 Classroom consists of a whiteboard for visual projection, computers, iPads,
26 printers, desks, class schedule, monthly calendar, bulletin boards for school
27 news and announcements. Oxford Picture Dictionary and Unique Learning
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1 System are part of the daily curriculum with whole group, small group, and
2 individualized instructional setting.” (Id. at 1.)
3 18. Anoush Boyajian is the Principal of Lowman. (Stip. Facts 6L.) Ms. Boyajian
4 testified that she believed Lowman was the least restrictive environment for
5 J.G. because he “had behavioral needs that needed to be addressed in a small
6 classroom.” (A. Boyajian Testimony 35:1–9.)
7 19. In or about 2018, Ms. Boyajian implemented an integration program, which
8 allowed students from general education schools to visit Lowman. (Def.
9 Facts ¶ 19.) This gave Lowman students, including J.G., an “opportunity to
10 integrate with typical peers.” (A. Boyajian Testimony 23:10–25.)
11 20. At the April 30, 2013 IEP meeting, the IEP team determined that Lowman
12 was the most appropriate placement for J.G. because he “requires verbal
13 instruction/prompting, physical prompting as needed, small group and
14 individual instruction, positive reinforcement,” and “communication
15 devices.” (Trial Ex. 21 at 22.)
16 21. At the March 20, 2014 IEP meeting, the IEP team began using a “Least
17 Restrictive Environment Analysis” form. (Trial Ex. 22 at 22.) The form
18 asked: “Can the supports, services, accommodations and/or modifications
19 in the student’s IEP be made available in a general education
20 classroom/setting?” (Id.) The IEP team answered “No.” (Id.) Then the
21 form asked: “Can the supports, services, accommodations and/or
22 modifications in the student’s IEP be made available on a general education
23 site in a special day program?” (Id.) The team again answered “No.” (Id.)
24 22. At the March 2, 2015; February 29, 2016; February 15, 2017; February 12,
25 2018; and February 19, 2019 IEP meetings, the IEP team again answered
26 “No” to both questions. That is, the IEP team determined that the
27 supports, services, accommodations and/or modifications in J.G.’s IEP
28 could not be made available in a general education classroom/setting or on a
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1 general education campus in a special day program. (Trial Ex. 23 at 30; Trial
2 Ex. 26; Trial Ex. 27; Trial Ex. 33 at 23; Trial Ex. 45 at 29; Def. Facts ¶ 7.)
3 23. In response to the second question regarding a special day program on a
4 general education campus, the 2015, 2016, 2017, 2018, and 2019 IEPs
5 contained the exact same explanation: “Javier requires an educational
6 environment that provides school-wide intensive therapy and a highly
7 structured environment to learn daily living techniques, and incorporate
8 these skills into his daily routine.” (Trial Ex. 23 at 30; Trial Ex. 26; Trial Ex.
9 27; Trial Ex. 33 at 23; Trial Ex. 45 at 29.) With respect to school-wide
10 intensive therapy, Ms. Cripe testified that “what we mean is all-inclusive,
11 every staff member, everybody working together for Javier to be able to
12 participate in things.” (L. Cripe Testimony 158:17–20.)
13 24. In addition to the February 19, 2019 IEP meeting, the IEP team reconvened
14 on March 13, 2019 and on May 30, 2019. (Trial Ex. 45 at 40–41.) On or
15 about June 5, 2019, J.G.’s mother expressed that J.G. had never received a
16 psychoeducational evaluation from the school and that the supports,
17 services, accommodations, and/or modifications in J.G.’s IEP can be made
18 available on a general education site in a special day program. (Id. at 43.)
19 25. On June 7, 2019, J.G. graduated from Lowman.
20 26. In August 2019, J.G. transferred to Sun Valley High School (“Sun Valley”),
21 a general education campus with a special day program. (Stip. Facts at 3.)
22 27. Lauren Foster is a special education teacher at Sun Valley who taught J.G.
23 during the 2019–2020 school year. (Stip. Facts 6I.) Ms. Foster testified that
24 J.G. “was able to integrate into” her “intellectually disabled moderate to
25 severe” class. (L. Foster Testimony 19:5–16.) She also testified that J.G.
26 “made significant progress” during that time. (Id. 22:6.)
27 28. Jamal Speakes was a general education film production teacher at Sun Valley
28 who taught J.G. during the 2019–2020 school year. (Pl. Facts ¶ 16.) In
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1 Mr. Speakes’s film production class, J.G. had an opportunity to collaborate
2 on projects with typical peers in general education. (J. Speakes Testimony
3 168:21–24.) Mr. Speakes testified that J.G. was “cooperative. He listened.
4 He followed directions.” (Id. 170:12.)
5 29. J.G.’s mother testified that since J.G. began attending Sun Valley, he “is
6 more independent, he’s learned more at Sun Valley School, and he knows
7 how to communicate better with everyone,” whereas he “made no
8 progress” at Lowman. (M. Flores Testimony 20:7–9, 12 [Day 2].) J.G.’s
9 father testified that “we thought [Lowman] was a good school because it was
10 a special school. Unfortunately, [J.G.] did not have the right support.”
11 (J. Guerrero Testimony 8:22–24.)
12 30. Plaintiff’s expert, Dr. Carlos Flores, a psychologist who performed J.G.’s
13 independent psychoeducational evaluation in the fall of 2018, testified that
14 he believed Lowman was not the least restrictive environment for J.G.
15 (C. Flores Testimony 82:5–7; Trial Ex. 82.) Among the reasons Dr. Flores
16 so concluded were that J.G. was “the highest functioning kid in the
17 classroom,” there was “no individualized attention,” there was “significant
18 noise” in the classroom, and there was no opportunity to socialize with
19 typical peers. (C. Flores Testimony 82:9–84:1.)
20 31. Plaintiff’s expert, Dr. Mary A. Falvey, an inclusion expert, observed J.G. on
21 September 12, 2019 at Sun Valley. (M. Falvey Testimony 75:19–22; Trial
22 Ex. 84 at 3.) She concluded that J.G. was “thriving both socially and
23 academically in his current placement” at Sun Valley. (Trial Ex. 84 at 5.)
24 “Because he is thriving so well in his current placement it is unclear why the
25 district denied him such a placement in the past. There does not appear to
26 be any evidence in his records, including his past IEPs that would warrant
27 denying him placement in a general education school.” (Id.)
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//
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1 C. Augmentative and Alternative Communication
2 32. Marshall Fenig is a District-employed speech-language pathologist assigned
3 to Lowman at all times relevant to this case. (Stip. Facts 6M.)
4 33. From 2006 to 2009, J.G. received direct, one-on-one language and speech
5 (“LAS”) services. (Def. Facts ¶ 11.) In 2009, J.G. received a Language and
6 Speech Assessment, which found that “he has made minimal progress in his
7 communication skills.” (Id. ¶ 12; Trial Ex. 11 at 4.) The Assessment
8 concluded that “the student is able to benefit from their Special Education
9 program without LAS related services support.” (Trial Ex. 11 at 5.)
10 34. From 2014 to 2017, Mr. Fenig worked with J.G. through the communication
11 support model, which involved Mr. Fenig visiting J.G.’s classroom once a
12 week to work with the class on language, speech, and communication skills.
13 (M. Fenig Testimony 83:20–25; Def. Facts ¶ 13.)
14 35. At the February 15, 2017 IEP meeting, J.G.’s mother requested a speech
15 assessment for J.G. (Stip. Facts 6N.)
16 36. Mr. Fenig conducted a Language and Speech and Augmentative and
17 Alternative Communication Assessment, and wrote a report dated June 1,
18 2017. (Id. 6O.) With respect to language and speech, the Assessment
19 concluded that “LAS services and support may be necessary for the student
20 to benefit from their Special Education program in the area of language.”
21 (Trial Ex. 29 at 5.) With respect to augmentative and alternative
22 communication (AAC), the Assessment recommended a “multi-modal
23 system to include Javier’s current modes of communication along with a
24 picture exchange system in conjunction with trials using a tablet with a
25 communication app.” (Id.)
26 37. On June 2, 2017, the IEP team amended the previous February 15, 2017 IEP
27 to include observations and recommendations from Mr. Fenig’s LAS and
28 AAC Assessment. (Trial Ex. 30.) The February 15, 2017 IEP listed J.G.’s
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1 Assistive Technology equipment as pictures, switches, and voice output
2 devices (Trial Ex. 27), whereas the June 2, 2017 IEP listed J.G.’s Assistive
3 Technology equipment as pictures, switches, and “tablet with
4 communication app trials” (Pl. Facts ¶ 62; Trial Ex. 30).
5 38. Pursuant to the June 2, 2017 IEP, J.G. once again received direct, one-on-one
6 LAS services with Mr. Fenig. (Pl. Facts ¶ 52.)
7 39. Previously, J.G. used AAC devices that were implemented by the teacher in
8 the classroom. (M. Fenig Testimony 102:18–22.) As a result of placing J.G.
9 in LAS services directly, Mr. Fenig could “trial systems that were more
10 specific to what [J.G.’s mother] was interested in.” (Id. 103:9–17.)
11 40. Mr. Fenig trialed J.G. with a Dynavox, a dynamic display system with
12 communication software, similar to an iPad. (Id. 118:16–22.) J.G. had used
13 the Dynavox in Ms. Weinberger’s classroom before. (Id. 118:3–5.)
14 41. However, J.G. often seemed to prefer other methods of communication.
15 (L. Foster Testimony 29:19–30:3 (“Javier preferred not to use his AAC
16 device.”); S. Weinberger Testimony 61:14–22 (“Q. Was it difficult to get
17 him to use communication devices in class? A. Yes.”); A. Boyajian
18 Testimony 22:19–21 (“He did have an AAC device, but he was not fond of
19 it. He didn’t use it consistently.”); M. Fenig 147:24–148:4 (“[A]lthough he
20 knew how to navigate the [Dynavox] and find things, when he had access to
21 the system, he would touch the icons, and then he would do signs.”).)
22 42. In or about 2017, based on the recommendation of an in-home therapist
23 unassociated with the District, J.G.’s mother purchased an iPad for J.G. to
24 use to communicate at home. (Pl. Facts ¶¶ 82-83.)
25 43. Between February 2017 and June 2017, J.G.’s mother asked Mr. Fenig twice
26 if J.G. could use his personal iPad at school. (Id. ¶ 84.)
27 44. Mr. Fenig denied J.G.’s mother’s request to bring J.G.’s personal iPad to
28 school. (Pl. Facts ¶ 90.) Mr. Fenig testified that one of the reasons he
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1 denied the request was because “there was a LAUSD policy that prohibited
2 it based on liability concerns.” (M. Fenig Testimony 96:23–97:1.) Another
3 reason was that he didn’t believe the personal iPad would help J.G. access
4 the curriculum at school. (Id. 97:2–6.)
5 45. J.G.’s mother was concerned that J.G. could not take the Dynavox outside
6 during recess. (Pl. Facts ¶ 86–88.)
7 46. When asked, “did you consider at the time [J.G.’s mother] made the request
8 that having a personal iPad that [J.G.] could take outside would increase his
9 communication beyond gestures and his sign language?”, Mr. Fenig replied:
10 “No, because the system that was chosen by the parent, which is totally fine
11 for home use, was not assessed by the District to see if it was actually an
12 appropriate system in the first place.” (M. Fenig Testimony 99:5–12.)
13 47. At the February 12, 2018 IEP meeting, J.G.’s mother again requested that
14 J.G. use his personal iPad at school. (Pl. Facts ¶ 85.) The IEP team noted:
15 “AAC device discussed. Parent requesting student has same device in
16 school as at home. Student uses a Dynovox [sic] system in school with an
17 iPad at home.” (Trial Ex. 33 at 28.)
18 48. On February 20, 2018, the IEP team “reconvened with student in
19 attendance.” (Id.) The team noted: “Discussion of LAS equipment for
20 communication. District would like to trial a new APP and device. If Javier
21 is successful a new IEP meeting would be held to add the new system. The
22 dynovox [sic] is a system to use to determine Javier’s interest in
23 communicating. Recommendation is to continue use of dynamic display unit
24 and trial new APP. LAS goal presented and discussed.” (Id.)
25 49. On June 27, 2018, Ms. Weinberger wrote a note (translated into Spanish) to
26 J.G.’s mother stating, the “speech therapist will contact the correct people
27 to bring the iPad back. I also talked to him about taking the iPad from school
28 to home and back, he will let me know more at a later date.” (Trial Ex. 39.)
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1 Ms. Weinberger testified that this note related to a District-issued iPad.
2 (S. Weinberger Testimony 53:13–18.)
3 50. On September 20, 2018, Plaintiff’s expert, Margaret Perkins, a speech-
4 language pathologist, recommended that J.G. use a PRiO device with the
5 LAMP Words for Life 84 software. (Trial Ex. 43 at 17.) Ms. Perkins
6 concluded that J.G. requires a speech generating device that has the
7 following characteristics and features: touchscreen, dynamic display,
8 portable, vocabulary organization that allows for motor automaticity,
9 individual icons that are word-based to allow for spontaneous novel
10 utterances, word prediction, bilingual, ability to “look up” icons for a
11 communication partner, among others. (Id. at 16–17.)
12 51. Mr. Fenig trialed J.G. with a District-issued iPad with TouchChat MultiChat
13 15 Adolescent, “an app that was more sophisticated than the one that his
14 home iPad had but was a little less complex than the one that Ms. Perkins
15 recommended.” (M. Fenig Testimony 104:15–19.)
16 52. On May 20, 2019, Mr. Fenig emailed Ms. Perkins, writing, “I still feel the
17 Touch Chat is appropriate for [J.G.’s] access to school since it already
18 contains organized school based themes which he is showing progress with.
19 Addressing your concerns . . . I said that I could set up the Touch Chat so
20 that he could work on icon combinations as opposed to always doing rote
21 phrases and that his AAC goal would reflect this as well.” (Trial Ex. 46 at
22 2.) Ms. Perkins replied, “Either system will work as long as he is generating
23 using a variety of: communication intents; parts of speech (e.g. asking
24 questions as well as answering), vocabulary-semantics (e.g. qualitative
25 comments); using single words that are multi-meaning . . . but I do think we
26 are on the same page.” (Id.)
27 53. The District’s Policy Bulletin 5540.0, “Assistive Technology Lending
28 Libraries,” dated August 16, 2011, provides: “Assistive technology devices
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1 that are determined to be appropriate for trial may be borrowed . . . for up to
2 60 calendar days.” (Trial Ex. 17.) Mr. Fenig was aware of this 60-day loan
3 policy when he was working with J.G. (M. Fenig Testimony 95:20–22.)
4 54. Although Mr. Fenig testified that the District-issued iPad was J.G.’s device
5 and that “[i]t wasn’t really a trial” (id. 104:21–22), J.G. was not allowed to
6 take the device home. (Pl. Facts ¶ 68.) Mr. Fenig testified that “it wasn’t
7 established if it was appropriate for it to go home yet.” (M. Fenig
8 Testimony 106:5–6.) Mr. Fenig explained that J.G. would be allowed to take
9 the device home when J.G. “showed a more proficient use and interest in the
10 system.” (Id. 105:18–19.) At no point from 2014 to June 2019 was J.G.
11 allowed to take a District-issued AAC device home. (Id. 90:13–17.)
12 55. On August 21, 2019, Keri Matsumoto, the speech-language pathologist at
13 Sun Valley (Stip. Facts at 6H), authorized J.G. to take a District-issued iPad
14 home. (Trial Ex. 47.)
15 56. J.G. has been permitted to bring his personal iPad to Sun Valley beginning in
16 the 2019–2020 school year. (Stip. Facts 6Q.)
17 57. On September 19, 2019, Ms. Perkins discovered that J.G. was still using the
18 TouchChat app. (Trial Ex. 49 at 9.) She had thought Mr. Fenig agreed that
19 J.G. “needed a more robust system, he needed to be able to switch to
20 Spanish, and he needed a word-based program. . . . I wasn’t sure why that
21 had not happened.” (M. Perkins Testimony 30:8–13.)
22 58. J.G.’s parents are monolingual Spanish speakers. At no point was J.G. given
23 a District-issued AAC device that could toggle between English and Spanish.
24 (Id. 40:19–22.)
25 D. Triennial Reevaluations
26 59. The District’s Policy Bulletin 6639.0, “Three-Year Review Individualized
27 Education Program (IEP) Psycho-Educational Reassessment
28 Requirements,” dated February 1, 2016, provides: “A reassessment of a
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1 student with a disability shall be conducted at least once every three years or
2 more frequently, if appropriate, unless the parent/guardian and the [Local
3 Educational Agency] agree, in writing, that a reassessment is unnecessary.”
4 (Trial Ex. 24.) Specifically, “the IEP team must determine at the [second]
5 annual IEP Review whether or not a three-year comprehensive psycho-
6 educational reassessment will be required as part of the upcoming three-year
7 review IEP.” (Id. at 2.) “The IEP team’s decision for reassessment must be
8 documented . . . .” (Id. at 5.) A “three-year review IEP must be held,
9 regardless of the IEP team’s decision to waive the formal comprehensive
10 psycho-educational assessment.” (Id. at 6.)
11 60. The policy states that a comprehensive psychoeducational three-year
12 assessment is required and may not be waived (a) for all students with an
13 eligibility of Emotional Disturbance (ED); (b) for students on the general
14 education curriculum whose previous three-year reassessment had been
15 waived; (c) at the first three-year review IEP following an initial
16 psychoeducational assessment; (d) when a parent/guardian or other member
17 of the IEP team makes a request; (e) when a student is transitioning from
18 early education/preschool programs to elementary programs; (f) if a student
19 is being considered for a change of curriculum from general curriculum to
20 alternative curriculum, or vice versa; (g) when there is new information to
21 suggest that the current eligibility is not appropriate; (h) when there is a
22 significant change in health, behavior, or educational needs such that
23 conditions would warrant a comprehensive reassessment; (i) prior to
24 determining that a child is no longer a child with a disability. (Id. at 4.)
25 61. The policy states that it may be appropriate to waive a three-year
26 reassessment if “the student is on alternative curriculum and there is no
27 evidence supporting the need to change the curriculum, eligibility, or
28 program supports.” (Id. at 5.)
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1 62. J.G.’s parents never waived J.G.’s right to receive a psychoeducational
2 evaluation at Lowman. (M. Flores Testimony 19:25–20:2.)
3 63. Dr. Flores testified that a psychoeducational evaluation should be conducted
4 every three years for a student with disabilities because it is an “objective
5 standardized approach” that provides a “baseline” for assessing a child’s
6 current functioning. (C. Flores Testimony 57:10–59:18.) The evaluations
7 help determine whether the student is making progress and whether the
8 interventions are benefiting the student, or if they need to be modified. (Id.)
9 64. At the September 30, 2005 IEP meeting, the IEP team selected the option
10 for “formal assessment is needed to re-establish eligibility.” (Trial Ex. 2 at
11 16.) The team noted, “Javier will have a CTAR by June 15, 2006 for
12 transition to Kindergarten.” (Id.) The June 8, 2006 IEP meeting was
13 marked as a three-year review. (Trial Ex. 4 at 1.)
14 65. At the September 24, 2008 IEP meeting, the IEP team selected the option
15 for “formal assessment is needed to re-establish eligibility.” (Trial Ex. 10 at
16 24.) The June 10, 2009 IEP meeting was marked as a three-year review.
17 (Trial Ex. 12 at 1.) In 2009, J.G. received a Language and Speech
18 Assessment. (Def. Facts ¶ 12; Trial Ex. 11.)
19 66. At the June 7, 2011 IEP meeting, in response to the question, “Is formal
20 assessment needed to re-establish eligibility?”, the IEP team selected “No.”
21 (Trial Ex. 14 at 23.) The May 11, 2012 IEP meeting was marked as a three-
22 year review. (Trial Ex. 19 at 1.)
23 67. At the March 20, 2014 IEP meeting, in response to the question, “Is formal
24 assessment needed to re-establish eligibility?”, the IEP team selected “No.”
25 (Trial Ex. 22 at 24.) The March 2, 2015 IEP meeting was marked as a three-
26 year review. (Trial Ex. 23 at 1.)
27 68. At the February 15, 2017 IEP meeting, in response to the question, “Is
28 formal assessment needed to re-establish eligibility?”, the IEP team selected
15
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1 “No.” (Trial Ex. 27.) The February 20, 2018 IEP meeting was marked as a
2 three-year review. (Trial Ex. 33 at 1.) At the February 20, 2018 IEP
3 meeting, in response to the question, “Do the Parent and the District (local
4 educational agency) agree that a reassessment is unnecessary?”, the team
5 selected “Yes.” (Id. at 25.)
6 69. Maria Zaragoza was a school psychologist at Lowman from approximately
7 2012 to 2019. (M. Zaragoza Testimony 135:2; 136:6–7.) During her tenure
8 at Lowman, Ms. Zaragoza never conducted a psychoeducational evaluation
9 of J.G. (Pl. Facts ¶ 104; M. Zaragoza Testimony 152:16–20.) She testified
10 that “there is specific guidance for the IEP team to determine when a
11 psychoeducational reassessment is not necessary.” (M. Zaragoza Testimony
12 155:12–14.) For example, if “the eligibility has not changed and the student
13 continues to make consistent expected progress,” or there are “no
14 significant health or behavior changes.” (Id. 155:15–18.)
15 E. Administrative Proceedings
16 70. On April 5, 2018, J.G., by and through his parents, filed a due process
17 complaint against the District with the Office of Administrative Hearings
18 (“OAH”) regarding J.G.’s educational program. (Pl. Facts ¶ 111.)
19 71. On May 21, 2018, J.G. settled all special education claims arising under the
20 Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400,
21 et seq., and over which OAH has jurisdiction. (Id. ¶ 112; Trial Ex. 36 at 1.)
22 Plaintiff specifically did not release any alleged or potential claims arising
23 under the ADA or Section 504. (Trial Ex. 36 at 1.)
24 72. Pursuant to the Final Settlement Agreement, the District agreed to fund an
25 independent psychoeducational evaluation of J.G. conducted by Dr. Flores,
26 as well as an independent AAC evaluation of J.G. conducted by Ms. Perkins.
27 (Id. at 1–2.)
28
16
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1 73. Dr. Flores observed J.G. on August 1 and September 26, 2018, and wrote an
2 independent psychoeducational evaluation report dated October 31, 2018.
3 (Trial Ex. 44 at 1.)
4 74. Ms. Perkins observed J.G., and wrote an augmentative and alternative
5 communication evaluation report dated September 20, 2018. (Trial Ex. 43.)
6 75. On August 16, 2019, Plaintiff filed a second due process complaint against
7 the District with the OAH regarding J.G.’s educational program from
8 May 16, 2018 onwards. (Pl. Facts ¶ 113.)
9 76. On October 8, 9, and 10, 2019, Administrative Law Judge (“ALJ”) Alexa
10 Hohensee heard the matter. (Id. ¶ 115.)
11 77. The issues at the hearing were: (1) Did the District deny J.G. a free
12 appropriate public education (“FAPE”) when it failed to offer J.G.
13 (a) placement in the least restrictive environment from May 16, 2018 to
14 June 7, 2019; and (b) appropriate AAC services from May 16, 2018 to
15 August 16, 2019? (2) Did the District deny J.G. a FAPE when it failed to
16 implement J.G.’s AAC services at home during the 2019 extended school
17 year? (3) Did the District’s May 30, 2019 IEP deny J.G. a FAPE by not
18 offering appropriate AAC implementation training for J.G., his parents, and
19 teachers? (Id. ¶ 116.)
20 78. On November 18, 2019, ALJ Hohensee issued her decision.1 (Id. ¶ 117.)
21 The District prevailed on all issues. (Id.)
22
//
23
//
24
//
25
26
27
1 ALJ Hohensee’s November 18, 2019 decision was not admitted into evidence at
trial. Thus, the Court does not consider the decision as evidence and references it
28
only to the extent this Court’s prior orders incorporated it.
17
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1 II. CONCLUSIONS OF LAW
2 1. J.G. is a person with a disability as defined by the ADA and Section 504 of
3 the Rehabilitation Act. (Stip. Facts 6A.)
4 2. The District receives federal financial assistance and is therefore subject to
5 the ADA and Section 504 of the Rehabilitation Act. (Id. 6F, 6G.)
6 3. The Court previously held that Plaintiff’s ADA and Section 504 claims are
7 not barred by the IDEA’s exhaustion requirement because Plaintiff does not
8 “seek[] relief that is also available under” the IDEA. (“MTD Order,” Dkt.
9 No. 36 at 4.) To determine whether a plaintiff who brought suit under a
10 statute other than the IDEA seeks relief for the denial of a free appropriate
11 public education (“FAPE”), such that the plaintiff is required to exhaust the
12 IDEA’s remedies, a court should look to the crux, or the gravamen, of the
13 plaintiff’s complaint, setting aside any attempts at artful pleading. Fry
14 v. Napoleon Cmty. Schs., 580 U.S. 154, 169 (2017). This Court found that
15 the gravamen of Plaintiff’s complaint relates to the District’s alleged failure
16 to provide reasonable accommodations for J.G.’s disability, not to the denial
17 of a FAPE. (MTD Order at 5.) The Ninth Circuit’s opinion in D. D. by &
18 through Ingram v. Los Angeles Unified Sch. Dist., 18 F.4th 1043, 1049 (9th
19 Cir. 2021) (en banc), does not change this Court’s analysis.
20 4. The Court also previously held that Plaintiff’s claims are not barred by the
21 statute of limitations because at least some of the District’s alleged
22 discriminatory acts and/or policy and practice occurred within the
23 limitations period. (MTD Order at 5.) See Douglas v. Cal. Dep’t of Youth
24 Auth., 271 F.3d 812, 822 (9th Cir. 2001).
25 5. Title II of the ADA provides that “no qualified individual with a disability
26 shall, by reason of such disability, be excluded from participation in or be
27 denied the benefits of the services, programs, or activities of a public entity,
28 or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
18
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1 6. Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified
2 individual with a disability . . . shall, solely by reason of her or his disability,
3 be excluded from the participation in, be denied the benefits of, or be
4 subjected to discrimination under any program or activity receiving Federal
5 financial assistance . . . .” 29 U.S.C.§ 794(a).
6 7. “Although several material differences exist between them, see K.M. ex rel.
7 Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1099 (9th Cir. 2013), to
8 bring a suit under the ADA and Section 504 requires the same elements:
9 (1) the child is a qualified individual with a disability; (2) [he] was denied a
10 reasonable accommodation that [he] needs to enjoy meaningful access to the
11 benefits of public services; and (3) the program providing the benefit
12 receives federal financial assistance.” McIntyre v. Eugene Sch. Dist. 4J, 976
13 F.3d 902, 912 (9th Cir. 2020); see A.G. v. Paradise Valley Unified Sch. Dist.
14 No. 69, 815 F.3d 1195, 1203–04 (9th Cir. 2016) (“[T]he elements of a valid
15 Title II claim do not differ in any material sense from those of a valid section
16 504 claim and the two may be addressed together.”).
17 8. Plaintiff asserts three theories of liability: (1) The District unlawfully
18 segregated J.G. at Lowman; (2) the District denied J.G. access to effective
19 communication; and (3) the District failed to conduct triennial reevaluations.
20 (“Pretrial Conference Order,” Dkt. No. 144 at 7–11.)
21 A. Unlawful Segregation
22 9. The ADA preamble expressly defines unjustified segregation as a form of
23 discrimination. 42 U.S.C. § 12101(5) (“[I]ndividuals with disabilities
24 continually encounter various forms of discrimination, including . . .
25 segregation.”); see Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 599–600.
26 10. The relevant regulations specify that a “public entity shall administer
27 services, programs, and activities in the most integrated setting appropriate
28 to the needs of qualified individuals with disabilities.” 28 C.F.R.
19
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1 § 35.130(d); see 34 C.F.R. § 104.4(b)(iv). The “most integrated setting
2 appropriate” is defined as “a setting that enables individuals with disabilities
3 to interact with non-disabled persons to the fullest extent possible.”
4 Olmstead, 527 U.S. at 592 (quoting 28 C.F.R. pt. 35, App. A (1998)).
5 11. The Court previously granted partial summary judgment on Plaintiff’s
6 unlawful segregation claim from February 19, 2019 through May 30, 2019
7 because the OAH had “necessarily decided” that issue. (“MSJ Order,”
8 Dkt. No. 83 at 11–12.) The Court reasoned: “In order to determine the
9 merits of Plaintiff’s IDEA claim, the OAH was required to assess whether
10 J.G. was placed in the least restrictive learning environment from February
11 to May of 2019—or whether J.G. could have been instructed and integrated
12 in a general public school during the time.” (Id. at 11.) The OAH found that
13 Lowman was not the least restrictive environment (“LRE”) for J.G. (Id.)
14 “[B]y holding that Lowman was not the LRE for J.G., the OAH ‘necessarily
15 decided’ the relevant issue under Section 504 and the ADA: whether the
16 District administered J.G. education in the ‘most integrated setting
17 appropriate’ from February to May of 2019.” (Id. (citation omitted).)
18 Thus, the Court held that collateral estoppel applied and granted partial
19 summary judgment on Plaintiff’s unlawful segregation claim. (Id.)
20 12. Collateral estoppel does not apply to the period before February 19, 2019
21 because Plaintiff settled all LRE claims arising under the IDEA up to the
22 date of the settlement agreement. (Trial Ex. 36 at 4–5.) Any claims that
23 J.G.’s placement at Lowman was not the LRE before February 19, 2019 were
24 not “actually litigated and decided in the prior proceedings,” nor was there a
25 “full and fair opportunity to litigate the issue.” See Oyeniran v. Holder, 672
26 F.3d 800, 806 (9th Cir. 2012) (citation omitted).
27 13. Plaintiff expressly did not release any claims arising under the ADA or
28 Section 504. (Trial Ex. 36 at 1.)
20
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1 14. The Court now finds that J.G.’s placement at Lowman during the entirety of
2 the 2018–2019 (twelfth grade) school year was not the “most integrated
3 setting appropriate” or otherwise “necessary” to provide him with effective
4 education services under the ADA and Section 504. See 28 C.F.R. §
5 35.130(d); 34 C.F.R. § 104.4(b)(iv). When Dr. Flores observed J.G. in
6 Ms. Cripe’s classroom on September 26, 2018, he noted that J.G. “seemed
7 to perform at a higher cognitive level than the rest of the students in the
8 class.” (Trial Ex. 44 at 3.) This observation, among others, led Dr. Flores to
9 conclude that Lowman was not the appropriate placement: “J.G. should
10 have been placed in an educational setting with peers at his same or higher
11 functioning to meet his developmental needs.” (Trial Ex. 82 at 1.)
12 15. Ms. Cripe testified that in general, the accommodations J.G. needed could be
13 provided on a general education campus. (L. Cripe Testimony 131:3–6.)
14 Ms. Weinberger also testified that given those accommodations, J.G. could
15 succeed anywhere. (S. Weinberger Testimony 51:2–3.)
16 16. J.G.’s mother testified that J.G. did not experience any problems
17 transitioning from Lowman to Sun Valley, a general education campus, in
18 2019. (M. Flores Testimony 124:16–18 [Day 1].) In fact, J.G.’s mother
19 testified that he “is more independent, he’s learned more at Sun Valley
20 School, and he knows how to communicate better with everyone.”
21 (M. Flores Testimony 20:7–9, 12 [Day 2].) Ms. Foster, who taught J.G.
22 during the 2019–2020 school year, stated that J.G. made significant progress
23 in her special day class at Sun Valley. During that time, J.G. also had an
24 opportunity to integrate with typical peers in a film production class.
25 17. The District presented no evidence why J.G. could not have been
26 accommodated at Sun Valley prior to the 2019–2020 school year.
27 18. J.G.’s 2015, 2016, 2017, 2018, and 2019 IEPs all state that “Javier requires an
28 educational environment that provides school-wide intensive therapy and a
21
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1 highly structured environment to learn daily living techniques, and
2 incorporate these skills into his daily routine.” However, it is unclear what
3 “school-wide intensive therapy” is and why J.G. continues to need it. That
4 the explanation for J.G.’s placement remained the same year after year
5 suggests that the IEP team may not have seriously considered other options.
6 19. The District’s argument that J.G.’s mother approved all of J.G.’s IEPs,
7 including his placement at Lowman, is inapposite. “[C]laims challenging the
8 placement of a disabled child are not barred simply because the parents of
9 the child consent, or fail to object, to such placement.” A.G., 815 F.3d at
10 1205. J.G.’s parents do not have, and could not be expected to have,
11 “specialized expertise” regarding the appropriate placement for J.G. See id.
12 20. J.G.’s placement in a special education center was a more segregated setting
13 than a special education day class on a general education campus. A general
14 education campus provides J.G. with daily access to typical peers at lunch,
15 during class transitions, and in general education elective classes such as film
16 production. Ms. Cripe, Ms. Weinberger, and Ms. Foster testified that the
17 accommodations, modifications, and supports J.G. required could have been
18 provided on a general education campus. Therefore, Lowman was not the
19 “most integrated setting appropriate” for J.G.’s needs during at least the
20 2018–2019 (twelfth grade) school year. The Court finds that J.G. was
21 unnecessarily segregated at Lowman during the 2018–2019 school year in
22 violation of the ADA and Section 504.
23 21. To recover monetary damages under the ADA or Section 504, “a plaintiff
24 must prove intentional discrimination on the part of the defendant.” Duvall
25 v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). A deliberate
26 indifference standard applies. Id. “Deliberate indifference requires both
27 knowledge that a harm to a federally protected right is substantially likely,
28 and a failure to act upon that likelihood.” Id. at 1139.
22
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1 22. “When the plaintiff has alerted the public entity to his need for
2 accommodation (or where the need for accommodation is obvious, or
3 required by statute or regulation), the public entity is on notice that an
4 accommodation is required, and the plaintiff has satisfied the first element of
5 the deliberate indifference test.” Id. The District was required by regulation
6 to provide a public education in the “most integrated setting appropriate” to
7 J.G.’s needs. See 28 C.F.R. § 35.130(d). Plaintiff has met the first element
8 of the deliberate indifference test.
9 23. “[I]n order to meet the second element of the deliberate indifference test, a
10 failure to act must be a result of conduct that is more than negligent, and
11 involves an element of deliberateness.” Duvall, 260 F.3d at 1139. “Because
12 in some instances events may be attributable to bureaucratic slippage that
13 constitutes negligence rather than deliberate action or inaction, we have
14 stated that deliberate indifference does not occur where a duty to act may
15 simply have been overlooked, or a complaint may reasonably have been
16 deemed to result from events taking their normal course.” Id.
17 24. Here, the Court finds that the District did not act with deliberate
18 indifference in placing J.G. at Lowman during the 2018–2019 school year.
19 Each year, the IEP team, including J.G.’s mother, gathered to discuss J.G.’s
20 progress, goals, and placement for the following school year. For many
21 years, Lowman was the appropriate placement for J.G.—until it wasn’t.
22 25. In 2006, J.G. transferred to a general education campus, only to regress
23 developmentally and return to Lowman after a few months. In 2007, J.G.’s
24 mother requested and the IEP team agreed to once again place J.G. on a
25 general education campus, but for unknown reasons, the transfer did not
26 happen. No one on the IEP team, including J.G.’s mother, followed up
27 regarding that placement in 2007. Any potential LRE claim J.G. may have
28 had regarding his 2007 placement is likely time-barred, and given the sparse
23
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1 record before the Court regarding J.G.’s pre-high-school years, it cannot find
2 that J.G.’s placement at Lowman constituted a continuing violation from
3 2007 to 2019. J.G.’s mother did not renew her request to place J.G. on a
4 general education campus until 2019.
5 26. Given that J.G. was previously unsuccessful on a general education campus,
6 J.G.’s parents did not raise concerns about Lowman for more than a decade,
7 and J.G. was making progress on his yearly IEP goals, the District could have
8 reasonably believed that Lowman was the appropriate placement. Although
9 the District failed to proactively consider other placement options for J.G.,
10 its actions amount to “bureaucratic slippage” rather than deliberate
11 inaction. Thus, Plaintiff has not met the second element of the deliberate
12 indifference test and is not entitled to recover damages from the District.
13 B. Effective Communication
14 27. The ADA and Section 504 require public entities to provide reasonable
15 accommodations to persons with disabilities to ensure that such persons
16 enjoy meaningful access to the benefits of public services. See K.M., 725
17 F.3d at 1102 (applying “meaningful access” standard to determine
18 reasonable accommodation under the ADA); Mark H. v. Hamamoto, 620
19 F.3d 1090, 1097 (9th Cir. 2010) (applying “meaningful access” standard to
20 determine reasonable accommodation under Section 504).
21 28. A “plaintiff may establish denial of ‘meaningful access’ under section 504
22 and Title II by showing there was a violation of one of the regulations
23 implementing [the statutes], if such violation denied the plaintiff meaningful
24 access to a public benefit.” A.G., 815 F.3d at 1204.
25 29. The effective communication regulations require a public entity to “take
26 appropriate steps to ensure that communications with applicants,
27 participants, members of the public, and companions with disabilities are as
28 effective as communications with others.” 28 C.F.R. § 35.160(a)(1).
24
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1 Further, a public entity “shall furnish appropriate auxiliary aids and services
2 where necessary to afford individuals with disabilities . . . an equal
3 opportunity to participate in, and enjoy the benefits of, a service, program, or
4 activity of a public entity.” Id. § 35.160(b)(1); see K.M., 725 F.3d at 1096.
5 30. The Ninth Circuit has treated 28 C.F.R. § 35.160 as an “implementing
6 regulation” of Title II of the ADA within the meaning of Alexander
7 v. Sandoval, 532 U.S. 275 (2001). See Duvall, 260 F.3d at 1136. As such,
8 this regulation is privately enforceable.
9 31. Here, the District did not deny J.G. meaningful access to a public education
10 by failing to provide J.G. with a dedicated AAC device in a timely manner.
11 J.G. used a multi-modal system to communicate. Between 2014 and 2019,
12 J.G. had access to and used various AAC devices at school, including iPads
13 with GoTalk and TouchChat apps, Dynavox, single-switch devices, and
14 multi-switch devices. (M. Fenig Testimony 116:5–16; S. Weinberger
15 Testimony 61:4–9.) Mr. Fenig trialed J.G. with a dedicated AAC device, but
16 J.G. often seemed to prefer other methods of communication. (L. Foster
17 Testimony 29:19–30:3 (“Javier preferred not to use his AAC device.”);
18 S. Weinberger Testimony 61:14–22 (“Q. Was it difficult to get him to use
19 communication devices in class? A. Yes.”); A. Boyajian Testimony 22:19–21
20 (“He did have an AAC device, but he was not fond of it. He didn’t use it
21 consistently.”); M. Fenig 147:24–148:4 (“[A]lthough he knew how to
22 navigate the [Dynavox] and find things, when he had access to the system, he
23 would touch the icons, and then he would do signs.”).)
24 32. Although the District was dilatory in assigning J.G. a dedicated AAC device,
25 including authorizing its use at home, it did not fail to provide J.G. with
26 appropriate AAC devices to ensure effective communication at school. J.G.
27 always had means to communicate in and outside of the classroom, even if it
28
25
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1 was not with his parents’ preferred device. (See S. Weinberger Testimony
2 51:19–23.)
3 33. The District also did not deny J.G. meaningful access to a public education
4 by denying his mother’s request to let him use his personal iPad at school. It
5 is well settled that the ADA and Section 504 “create a duty to gather
6 sufficient information from the [disabled individual] and qualified experts as
7 needed to determine what accommodations are necessary.” Updike
8 v. Multnomah Cnty., 870 F.3d 939, 954 (9th Cir. 2017) (alteration in
9 original) (citation omitted). The reasonableness of an accommodation
10 provided to ensure effective communication “depends on the individual
11 circumstances of each case, and requires a fact-specific, individualized
12 analysis of the disabled individual’s circumstances and the accommodations
13 that might allow him to [enjoy meaningful access to the program.]”
14 Hamamoto, 620 F.3d at 1098 (alteration in original) (citation omitted).
15 34. Mr. Fenig undertook a fact-specific investigation to determine whether J.G.
16 needed a reasonable accommodation. J.G. did not express a preference for
17 his personal iPad over any other AAC device, including a District-issued
18 iPad. Ms. Perkins, an independent speech-language pathologist,
19 recommended that J.G. use a more complex system than what was installed
20 on his personal iPad. Ms. Perkins also did not offer an opinion as to whether
21 J.G. should use his personal iPad or a District-issued iPad. Given these
22 considerations, Mr. Fenig reasonably concluded that J.G. did not require his
23 personal iPad to access his education. See McCullum v. Orlando Reg’l
24 Healthcare Sys., Inc., 768 F.3d 1135, 1147 (“The regulations do not require
25 [public entities] to supply any and all auxiliary aids even if they are desired
26 and demanded.”). The District had already provided alternative means of
27 effective communication. Accordingly, the District did not violate the ADA
28 and Section 504 by denying Plaintiff his right to effective communication.
26
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1 C. Triennial Reevaluations
2 35. Plaintiff argues that the District violated the ADA and Section 504 by failing
3 conduct a psychoeducational assessment of J.G. once every three years.
4 36. As discussed above, a plaintiff may establish his ADA or Section 504 claim
5 “by showing there was a violation of one of the regulations implementing
6 [the statutes], if such violation denied the plaintiff meaningful access to a
7 public benefit.” A.G., 815 F.3d at 1204. To support such a claim, the
8 regulation must be an “implementing regulation” within the meaning of
9 Alexander v. Sandoval. Id. “According to Sandoval, regulations can only be
10 enforced through a private right of action contained in a statute when they
11 ‘authoritatively construe’ the statute; regulations that go beyond a
12 construction of the statute’s prohibitions do not fall within the implied
13 private right of action, even if valid.” Mark H. v. Lemahieu, 513 F.3d 922,
14 935 (9th Cir. 2008). Not every violation of a regulation promulgated
15 pursuant to Title II of the ADA or Section 504 supports a privately
16 enforceable cause of action. T.L. by Layne v. S. Kern Unified Sch. Dist.,
17 2018 WL 1960605, at *4 (E.D. Cal. Apr. 26, 2018).
18 37. Plaintiff cites regulations that require the District to reevaluate a child with a
19 disability “at least once every 3 years, unless the parent and the public
20 agency agree that a reevaluation is unnecessary.” 34 C.F.R. § 300.303; see
21 also id. § 300.304. Although the Ninth Circuit has indicated that the
22 regulation requiring a school district to provide a FAPE to each child with a
23 disability, 34 C.F.R. § 104.33, is “tightly enough linked” to Section 504 that
24 it “authoritatively construes” that statutory section, no court in this Circuit
25 has held the same for the reevaluation regulation, 34 C.F.R. §§ 300.303–304.
26 See Lemahieu, 513 F.3d at 939; see also P.P. v. Compton Unified Sch. Dist.,
27 135 F. Supp. 3d 1098, 1119 (C.D. Cal. 2015) (holding that 34 C.F.R. §§
28
27
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1 104.33, 104.36, and 104.32, “as invoked in this case,” are a “variety of
2 meaningful access regulation[s|” and therefore privately enforceable).
3 38. Plaintiff failed to argue at trial that the cited regulations are implementing
4 regulations of either of the statutes under which he brought his claims. As
5 such, the Court cannot hold that the reevaluation regulations, 34 C.F.R.
6 §§ 300.303-304, are privately enforceable under Sandoval.
7 39. For the foregoing reasons, the Court concludes that the District violated the
8 ADA and Section 504 by unlawfully segregating J.G. at a special education
9 center during the 2018-2019 school year. However, the District did not act
10 with deliberate indifference and Plaintiff is not entitled to recover monetary
11 damages.
12
13 -
14 | Dated: February 21, 2023 oan
15 T ONORABLE JESUS G. BERNAL
Unked States District Judge
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