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J.M. v. Liberty Union High School District

United States District Court, N.D. California, San Francisco Division

May 16, 2017

J. M., Plaintiff,


          LAUREL BEELER, United States Magistrate Judge


         This case concerns the expulsion of J.M., a minor and former student at Liberty Union High School District.[1] J.M., who has ADHD, had “a verbal altercation with another student while playing an on-line video game” and, the next day, was “involved in a threatening confrontation with that same student on school grounds.”[2] J.M. challenges here the District's determination that his altercation-related conduct was not a manifestation of his ADHD and asserts two substantive claims: (1) discrimination under section 504 of the Rehabilitation Act, see 29 U.S.C. § 794; and (2) retaliation under section 504 of the Rehabilitation Act, see id.[3] He also seeks judicial review of the District's administrative hearing and determination.[4] The District moves to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6).

         The court can decide the matter without oral argument and so it vacated the hearing previously set for May 11, 2017. The court grants the motion and dismisses the complaint but grants leave to amend.


         1. The District Develops a Section 504 Plan for J.M.

         J.M. is sixteen years old and has Attention Deficit Hyperactivity Disorder (“ADHD”).[5] While in middle school (outside of the defendant's district), J.M. was provided with a section 504 Plan - a plan consisting of the “accommodations, supplementary aids, supports[, ] and services” necessary to provide him with a free appropriate public education.[6] In 2014, when J.M. enrolled in the District's high school, the District “evaluated him and again found him eligible for a 504 Plan” because of his ADHD.[7]

         The District's 504 Plan for J.M. “described the impact of [his] disability on his education, ” which was “limited to his poor attention and distractibility in the classroom, poor organization skills[, ] and frequent failure to complete and turn in assignments and homework.”[8] Under the Plan, J.M. received “class notes, preferential classroom seating, [and] enrollment in a tutorial support class.”[9] The Plan also contained “similar provisions focusing solely on his timely production and completion of his academic work.”[10]

         2. J.M. Is Involved in an Altercation; the District Conducts a Manifestation Determination; and J.M. Requests an Administrative Hearing

         One night in January 2016, J.M. had “a verbal altercation with another student while playing an on-line video game.”[11] The next day, he was “involved in a threatening confrontation with that same student on school grounds.”[12] “J.M. was immediately suspended and [the District] moved to expel him.”[13]

         The District then completed a “comprehensive psycho-educational assessment of J.M.”[14] The District's assessor considered whether J.M.'s conduct in the altercation “was caused by or had a direct and substantial relationship” to his ADHD.[15] The assessor found that it was not, and therefore his “conduct was not a manifestation” of his disability.[16] The assessor explained: “The conduct in question did not appear to be an act of impulsivity, [it] instead appeared to be an act organization [sic] and planning.”[17] J.M.'s parents disagreed with the determination.[18]

         To challenge the District's determination, J.M.'s parents requested a section 504 administrative hearing under the District's policies.[19] In that process, his parents obtained a copy of the District assessor's test protocols used in conducting J.M.'s assessment.[20] Those protocols revealed certain facts - including (among other things) J.M.'s “clinically significant” inability to independently generate ideas, responses, or problem-solving strategies; an inability to anticipate future events; a “severe” inability to consider the consequences of his own acts; and an “elevated” difficulty providing an appropriate emotional response - that J.M. asserts the assessor failed to consider.[21] The assessor instead “discussed only one symptom of ADHD - difficulty with organization and planning of tasks - and even then . . . failed to make a factual finding.”[22]

         J.M. submitted the above facts for the administrative hearing, which was held in May 2016.[23]At the hearing (and in his briefs), J.M. challenged the District's “failure to take any reasonable steps to locate [his] prior psycho-educational assessment from the prior school year.”[24] He asserted that such failure violated his “procedural right to a manifestation determination based upon all relevant and necessary records and information.”[25] But, following an evidentiary hearing, the hearing officer “upheld the D[istrict]'s determination that J.M.'s conduct was neither caused by nor had a direct and substantial relationship to J.M.'s disability and therefore was not a manifestation of his disability.”[26] The hearing officer did not address or make any factual findings regarding J.M.'s procedural challenge.[27]

         3. J.M. Sues the District

         After the administrative hearing, J.M. sued the District.[28] In the initial complaint, J.M. sought judicial review of the hearing officer's decision under section 504 of the Rehabilitation Act.[29] The District moved to dismiss the complaint for lack of subject-matter jurisdiction.[30] J.M. did not dispute that this court lacked jurisdiction but requested leave to amend to “present the facts in a manner that will support a substantive claim of discrimination under Section 504 . . . and establish subject matter jurisdiction.”[31] The court granted J.M. leave to amend the complaint.[32]

         J.M. did so and asserts two substantive Section 504 claims - one for discrimination and one for retaliation - and reasserts his request for review of the hearing officer's findings.[33] The District moves to dismiss the First Amended Complaint (“FAC”) under Rule 12(b)(6).[34]

         RULE 12(B)(6) LEGAL STANDARD

         Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of a “failure to state a claim upon which relief can be granted.” A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

         A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon which they rest. See Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not need detailed factual allegations, but “a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a claim for relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (internal citations omitted).

         To survive a motion to dismiss, a complaint must contain sufficient factual allegations, accepted as true, “‘to state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.''” Id. (quoting Twombly, 550 U.S. at 557).

         If a court dismisses a complaint, it should give leave to amend unless the “the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990).


         1. Section 504 Discrimination Claim

         Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). “Section 504 applies to all public schools that receive federal financial assistance.” Mark H. v. Lemahieu, 513 F.3d 922, 929 (9th Cir. 2008).

         To state a claim under section 504, a plaintiff must show: “(1) she is a qualified individual with a disability; (2) she was denied ‘a reasonable accommodation that [she] needs in order to enjoy meaningful access to the benefits of public services;' and (3) the program providing the benefit receives federal financial assistance.” 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)); see also Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). The plaintiff can satisfy the second prong “by showing that the program denied her meaningful access to public education . . . by violating a regulation that implements section 504's prohibitions.” A.G., 815 F.3d at 1204 (citing Lemahieu, 513 F.3d at 938-39). When asserting an implementing-regulation-based claim, the plaintiff must allege “precisely which § 504 regulations are at stake and why, ” or, “in what regard” the regulation was violated. Lemahieu, 513 F.3d at 925.

         In the public-school context, section 504's implementing regulations require “schools to ‘provide a free appropriate public education to each qualified handicapped person.'” A.G., 815 F.3d at 1203 (quoting 34 C.F.R. § 104.33(a)). That free appropriate public education (“FAPE”)

         requires “regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of [34 C.F.R.] §§ 104.34, 104.35, and 104.36.” 34 C.F.R. § 104.33(b)(1); see also A.G., 815 F.3d at 1203.

         1.1 Private Right of Action

         J.M. asserts two implementing-regulation violations, both based in 34 C.F.R. § 104.36.

         Whether a plaintiff can bring a claim under a specific implementing regulation depends on whether the regulation asserted “come[s] within the § 504 implied right of action.” Lemahieu, 513 F.3d at 935; see H. v. Mill Valley School Dist., No. 15-cv-05751-HSG, 2016 WL 3162174, at *4 (N.D. Cal. June 7, 2016). “For purposes of determining whether a particular regulation is ever enforceable through the implied right of action contained in a statute, the pertinent question is simply whether the regulation falls within the scope of the statute's prohibition.” Lemahieu, 513 F.3d at 938. “[T]o be enforceable through the § 504 implied private right of action, regulations must be tightly enough linked to § 504 that they ‘authoritatively construe' that statutory section, rather than impose new obligations.” Id. at 939 (quoting Alexander v. Sandoval, 532 U.S. 275, 284 (2001)). Section 504's “reasonable accommodation” and “meaningful access” requirements are relevant “when evaluating whether regulations ‘come within § 504's substantive scope.'” P.P. v. Compton Unified Sch. Dist., 135 F.Supp.3d 1098, 1118 (C.D. Cal. 2015) (quoting Lemahieu, 513 F.3d at 938).

         In P.P. v. Compton Unified School District, the court found that 34 C.F.R. § 104.36, “as invoked in [that] case, is ‘a variety of meaningful access regulation, ' such that it is encompassed within § 504's implied right of action.” 135 F.Supp.3d at 1119. There, the plaintiffs alleged that the school district failed to “established procedures regarding notice, ” which “resulted in negative consequences for class members who were entitled to the protection of procedural safeguards, including suspension, involuntary transfer, and expulsion.” Id. (internal quotations omitted). Distinguishing cases that involved “no underlying discrimination claim” (and instead involved only claims for violation of section 104.36's procedural provisions), the alleged consequences of the district's failure were “related to Plaintiffs' general theory of disability-based deprivation.” Id. (distinguishing Power ex. rel. Power v. Sch. Bd. of City of Virginia Beach, 276 F.Supp.2d 515, 519 (E.D. Va. 2003)). And so the plaintiffs could sue under § 104.36.

         Here, as in P.P., the court construes the complaint to invoke § 104.36 as “a variety of meaningful access regulation.” The gravamen of J.M.'s complaint is that the District did not apply the correct standard (or provide a review process) to evaluate his documented ADHD-related symptoms before expelling him. As such (and liberally construed) the claim is not one attacking only section 104.36's procedural requirements, but one that involves a related, underlying discrimination claim.

         1.2 Violation of the “Manifestation Determination” Regulations

         J.M. asserts that the District violated section 504 and implementing regulation 34 C.F.R. § 104.36 by applying the incorrect “legal standing in making a manifestation determination.”[35] He alleges that “the correct legal standard is not whether the student's behavior was caused by or had a direct and substantial relationship to his disability, the standard used by the D[istrict], but simply whether the behavior bears a relationship to the disability.”[36]

         34 C.F.R. § 104.36 requires public schools to establish a system of procedural safeguards “with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services.” That system must include “notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person's parents or guardian and representation by counsel, and a review procedure.” Id. Compliance with the procedural safeguards of [the Individuals with Disabilities in Education Act (“IDEA”)] is one means of meeting this requirement.” Id.

         The IDEA, designed “to ensure that all children with disabilities have available to them a free appropriate public education, ” see Lamahieu, 513 F.3d at 928 (quoting 20 U.S.C. § 1400(d)(1)(A)), provides for a manifestation-determination process. See 20 U.S.C. § 1415(k)(E); 34 C.F.R. 300.530(e). That process requires, before changing a child's placement, that the local educational agency, the parents, and the child's individualized-education-program (“IEP”) team members “review all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents, ” to determine:

(I) if the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or
(II) if the conduct in question was the direct result of the local educational agency's failure to implement the IEP.

20 U.S.C. § 1415(k)(E)(i); 34 C.F.R. 300.530(e)(1). If the group determines that either of those two conditions is applicable to the child, “the conduct shall be determined to be a manifestation of the child's disability.” ...

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