ORDER DENYING COUNTERCLAIMANT'S MOTION FOR SUMMARY JUDGMENT [Dkt. Nos. 54, 64.]
GONZALO P. CURIEL, District Judge,
Before the Court is Counterclaimant K.C.'s motion for summary judgment as to the remaining causes of action under Title II of the Americans with Disabilities Act ("ADA") and California's Unruh Civil Rights Act ("Unruh Act") as alleged in the first amended counterclaim against Counterdefendant Poway Unified School District ("District"). On March 13, 2013, the Court denied Counterclaimant's motion for summary judgment as to the Individuals with Disabilities Education Act ("IDEA") claim but sua sponte stayed the remainder of the case pending a ruling by the Ninth Circuit in K.M. v. Tustin Unified Sch. Dist., No. SACV 10-1011, 2011 WL 2633673 (C.D. Cal. July 5, 2011); and D.H. v. Poway Unified Sch. Dist., No. 09cv2621-L(NLS) (S.D. Cal. June 12, 2012). In K.M. and D.H., the district courts granted summary judgment for the school districts holding that the school districts had fully complied with the IDEA and that the ADA claims were foreclosed by the failure of the IDEA claims. The plaintiffs appealed the decisions with the Ninth Circuit challenging the district courts rulings foreclosing their ADA claims arguing that Title II of the ADA is distinct from the school districts' obligation under the IDEA.
On August 6, 2013, the Ninth Circuit reversed and remanded the district court's granting of summary judgment on the ADA claim and the Unruh Act claim in K.M. and remanded the matter for further proceedings. K.M. v. Tustin Unified Sch. Dist. , 725 F.3d 1088, 1103 (9th Cir. 2013). The Ninth Circuit also reversed and remanded the district court's granting of summary judgment on the ADA claims in the D.H. case. Id.
On October 30, 2013, the Court lifted the stay in this case and set a briefing schedule on the remaining issues. (Dkt. No. 63.) On November 22, 2013, K.C. filed a brief in support of her motion for partial summary judgment. (Dkt. No. 64.) On December 6, 2013, District filed a response. (Dkt. No. 65.) Pursuant to the Court's order granting K.C. ex parte motion for leave to file a reply brief, K.C. filed a reply on December 11, 2013. (Dkt. No. 68.)
On December 23, 2013, K.C. filed a request for judicial notice as to the order granting plaintiff's motion for preliminary injunction, filed on December 19, 2013, in the D.H. case, 09cv2621-L(NLS). (Dkt. No. 69-1.) No opposition having been filed and since the document is subject to judicial notice, the Court GRANTS K.C.'s request for judicial notice.
On April 28, 2010, Plaintiff Poway Unified School District filed a complaint for reversal of due process decision against Defendant K.C., by and through her Guardian Ad Litem, Anna Cheng pursuant to the IDEA, 20 U.S.C. § 1400 et seq. (Dkt. No. 1.) District sought judicial review of Administrative Law Judge ("ALJ") Robert Helfand's decision, dated January 29, 2010, requiring District to provide K.C. with Communication Access Real-Time Translation ("CART"). On June 25, 2010, K.C. filed a counterclaim alleging violations of Section 504 of the Rehabilitation Act of 1973; violation of the ADA; and violation of the Unruh Civil Rights Act. (Dkt. No. 7.) The parties filed cross motions for summary judgment. (Dkt. Nos. 22, 23.) On September 26, 2011, District Judge Larry A. Burns issued an order vacating the ALJ's decision and referred the matter back to the ALJ for further proceedings. (Dkt. No. 40.) The parties' cross-motions for summary judgment were denied without prejudice. (Id.)
On May 21, 2012, on remand, ALJ Marian Tully found in favor of District and concluded that K.C. failed to show that CART was required to provide her with a free appropriate public education ("FAPE") under the IDEA. The parties returned to this Court. On June 20, 2012, K.C. filed a motion to amend her counterclaim which was granted. (Dkt. Nos. 46, 47.) On July 13, 2012, K.C. filed an amended counterclaim alleging claims under the ADA, the Unruh Civil Rights Act, § 504 of the Rehabilitation Act of 1973, reversal of the Office of Administrative Hearing ("OAH") decision, declaratory and injunctive relief. (Dkt. No. 50.)
On August 3, 2012, K.C. filed a motion for preliminary injunction requiring District to continue to provide her with CART while her appeal under the IDEA was pending. (Dkt. No. 52.) On August 18, 2012, the parties filed a stipulation where District agreed to provide K.C. with CART while her IDEA claim was pending in this Court. (Dkt. No. 53.)
On August 22, 2012, K.C. filed a motion for summary judgment on all claims in the amended counterclaim. (Dkt. No. 54.) On October 22, 2012, the case was transferred to the undersigned judge. (Dkt. No. 55.) On March 13, 2013, the Court denied K.C.'s motion for summary judgment as to the IDEA claim and sua sponte stayed the case pending a decision by the Ninth Circuit in K.M. v. Tustin Unified Sch. Dist., No. SACV 10-1011, 2011 WL 2633673 (C.D. Cal. July 5, 2011); and D.H. v. Poway Unified Sch. Dist., No. 09cv2621-L(NLS) (S.D. Cal. June 12, 2012). On August 6, 2013, the Ninth Circuit reversed and remanded the district court's granting of summary judgment on the ADA claims in both cases and on the Unruh Civil Rights Act claim in K.M. v. Tustin. K.M. v. Tustin Unified Sch. Dist., 725 F.3d 1088 (9th Cir. 2013). The Ninth Circuit held that school district's compliance with its obligation to deaf or hard-of-hearing child under the IDEA did not necessarily establish compliance with its effective communication obligations to that child under Title II of the ADA. Id.
At the time of the due process hearing, in December 2009, K.C. was a 15 year old girl, with profound hearing loss in both ears, attending general education classes in the Poway Unified School District. K.C.'s hearing loss occurred at the age of five months as a result of meningitis. K.C. received a cochlear implant in her right ear at 22 months. She wore a hearing aide in the left ear until she received a cochlear implant in her left ear around the end of April 2009. In July 2009, K.C.'s audiologist concluded that K.C. hears about 52 percent of what is said in real-life situations.
On May 18, 2009, an individualized education program ("IEP") meeting was convened to discuss K.C.'s transition from middle school to high school. In attendance at the meeting were parents, program specialists Jodie Payne and Geralyn Murray; Deaf and Hard of Hearing ("DHH") itinerant teachers Carol Reeves and Ms. Simpson; Ms. Suennen; Ms. Mehaffie; Ms. Ugalde; and Kelly Burke, an assistant principal at the High School. (Supp. AR 570; AR 187.) At the meeting, parents requested CART transcription service. (Supp. AR 570.) After discussing K.C.'s performance in school, her goals, needs, services, accommodations, supplemental aids and services, assistive technological devices and services, communication strategies, teacher comments, and parent comments and requests, (AR 187-97), the May 18, 2009 IEP offered the following: DHH Language and Speech, Resource Specialist Program Learning Strategies class; preferential seating; a second set of text books for the home; copies of teacher's notes when necessary; closed captioning for media; peer note taker in Health class; personal auditory FM system; laptop for streaming closed captioned videos; closed caption decoder; visual presentation of new materials and vocabulary; and directions to teachers to face K.C. when speaking. (Supp. AR 570.) It also determined transcription would be provided in English, Geometry and Biology; however, it did not specify which program it would utilize. (Supp. AR 570.) Parents refused to consent to the IEP and requested that the type of transcription service be designated in the IEP.
On June 9, 2009, the IEP meeting was reconvened to discuss which type of transcription system would be provided to K.C. (Supp. AR 571.) Parents sought CART for K.C. Ms. Simpson informed parents with District had communicated with other school districts about CART and described a student from one district who switched from CART to "meaning-for-meaning" system because he was overwhelmed by the amount of information presented in the verbatim format. (Supp. AR 571.) Ms. Simpson concluded "meaning for meaning" system was appropriate for K.C. (Supp. AR 571.) District concluded that K.C. would benefit from transcription services but IEP team did not specify the modality or specific program. (AR 198.) Parents did not consent to the IEP. (AR 200.)
In a declaration, K.C. states that she must "concentrate intently" to understand what little she hears. (Dkt. No. 54-2, K.C. Decl. ¶ 2.) Since she only hears part of what is said, she must think carefully and use the context to figure out what is said. ( Id. ¶ 4.) She also uses visual strategies like lip reading, and observing a person's face and body language to figure out what is said. (Id.) These strategies require intense concentration and focus. (Id.) Use of these strategies causes K.C. to be exhausted and drained at the end of the school day. (Id.) She frequently gets headaches from concentrating intently in order to listen and understand spoken language at school. (Id.)
In class, she cannot hear because people are either too far away, talking over one another, or there is background noise. ( Id. ¶ 3.) It is also difficult for her to hear and understand what other students say since they talk too ...