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A.G. v. Paradise Valley Unified Sch. Dist. No. 69

United States Court of Appeals, Ninth Circuit

March 3, 2016

A.G., a student, by and through parents William Grundemann and Rhonda Grundemann; WILLIAM GRUNDEMANN; and RHONDA GRUNDEMANN, individually, Plaintiffs-Appellants/Cross-Appellees,
v.
PARADISE VALLEY UNIFIED SCHOOL DISTRICT NO. 69; JAMES P. LEE, Dr./Superintendent; NANCY CASE; JULIE BACON; ANNE GREENBERG; MARK LANE; SUE M. SKIDMORE, Board Members; LAURA BISTROW, PVUSD Special Education Director; ELAINE JACOBS, Principal at Vista Verde Middle School; ROBERT KURKLAN, School Psychologist at Vista Verde Middle School; KAREN HUDSON, Teacher at Vista Verde Middle School; LORNA GREEN, Principal of Roadrunner School; DEBBIE HARPER, Interventionist at Roadrunner School; BARBARA SICKLES, Interventionist at Roadrunner School; JUDY CARLYLE, Paraprofessional at Roadrunner School; JENNIFER WILSON, Teacher at Roadrunner School; CYNTHIA GILMORE, Teacher at Roadrunner School, Defendants-Appellees/Cross-Appellants

Argued and Submitted, San Francisco, California September 16, 2015.

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Appeal from the United States District Court For the District of Arizona. D.C. No. 2:11-cv-01899-NVW. Neil V. Wake, District Judge, Presiding.

SUMMARY[**]

Disability Discrimination

The panel reversed the district court's summary judgment in favor of defendants on claims of discrimination under section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act, reversed in part the district court's summary judgment on tort claims under Arizona state law, and vacated a costs order in an action brought by a student and her parents against a school district and related employees and principals.

Clarifying the standards for disability discrimination claims by disabled children based on access to educational services, the panel stated that the Individuals with Disabilities Education Act (" IDEA" ) focuses on making a free appropriate public education (" FAPE" ) available to disabled students through development of Individualized Education Programs (" IEPs" ). The IDEA creates a cause of action for children and parents to pursue injunctive or other prospective relief through a civil action following an administrative due process hearing in order to compel compliance with the Act and proper implementation or modification of the child's IEP. Section 504 of the Rehabilitation Act is broader than the IDEA; it is concerned with discrimination in the provision of state services to all individuals with disabilities. The regulations adopted pursuant to section 504 require qualifying public schools to " provide a free appropriate public education to each qualified handicapped person." FAPE is defined differently for purposes of section 504 than it is for the IDEA, and section 504's regulations gauge the adequacy of services provided to disabled individuals by comparing them to the level of services provided to individuals who are not disabled. Title II of the Americans with Disabilities Act (" ADA" ) was modeled after section 504 and sets forth similar requirements for establishing a valid claim.

A plaintiff bringing suit under section 504 or Title II of the ADA must show: (1) she is a qualified individual with a disability; (2) she was denied " a reasonable accommodation that [she] needs in order to enjoy meaningful access to the benefits of public services; " and (3) the program providing the benefit receives federal financial assistance. To prevail on a claim for damages, the plaintiff must also prove a mens rea of intentional discrimination.

The panel reversed the district court's summary judgment on a claim that defendants denied the student meaningful access to educational benefits by violating 34 C.F.R. § § 104.33(b)(1) and 104.34(a). The panel held that the parents' consent to the student's placement did not waive this claim.

The panel reversed the district court's summary judgment on plaintiffs' reasonable accommodation claim under section 504 and Title II. The panel concluded that a triable factual dispute existed as to whether the services plaintiffs faulted the school district for failing to provide were actually reasonable, necessary, and available accommodations for the student. The district court also erred in dismissing plaintiffs' damages claim for failure to show that the school district was on notice of the need for accommodation.

The panel affirmed the district court's summary judgment on claims under Arizona state law for intentional and negligent infliction of emotional distress. The panel reversed the district court's summary judgment on claims for assault, battery, and false imprisonment.

The panel vacated the district court's order denying costs to defendants, and it remanded the case to the district court for further proceedings.

JoAnn Falgout, Law Office of JoAnn Falgout, P.L.C., Tempe, Arizona, and Richard J. Murphy, Law Office of Richard J. Murphy, P.L.C., Phoenix, Arizona, for Plaintiffs-Appellants/Cross-Appellees.

Erin H. Walz and R. Scott Currey, Udall Shumway PLC, Mesa, Arizona, for Defendants-Appellees/Cross-Appellants.

Barrie L. Brejcha, Yea-Jin Angela Chang, Donna J. Williams, Jenny A. Austin, Angela C. Vigil, and Keith L. Wurster, Baker & McKenzie LLP, Palo Alto, California, for Amicus Curiae Council of Parent Attorneys and Advocates, Inc.

Before: Morgan Christen and Michelle T. Friedland, Circuit Judges, and Ivan L.R. Lemelle, Senior District Judge.[*]

OPINION

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Ivan L.R. Lemelle, District Judge:

A.G., a student eligible for special education services, and her parents appeal the district court's order granting summary judgment on claims of discrimination under section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the Americans with Disabilities Act, 42 U.S.C. § § 12131-12134, as well as on their tort claims under Arizona state law against Paradise Valley Unified School District and related employees and principals (together " defendants" ). Defendants cross-appeal the district court's order vacating taxation of costs. The parties settled other claims, including claims under the Individuals with Disabilities in Education Act, 20 U.S.C. § § 1400-1491.

We reverse the district court's order granting summary judgment on plaintiffs' federal law claims, reverse in part the district court's order granting summary

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judgment on plaintiffs' state law claims, vacate the district court's order addressing costs, and remand for further proceedings.

This appeal implicates overlapping federal statutes addressing discrimination on the basis of disability. Specifically, we address the requirement that all children with disabilities receive a free appropriate public education (" FAPE" ), and the distinct but overlapping features of FAPE set forth under the different statutory schemes. The related statutory schemes at issue here are the Individuals with Disabilities in Education Act (" IDEA" ), 20 U.S.C. § § 1400-1491; section 504 of the Rehabilitation Act of 1973 (" section 504" ), 29 U.S.C. § 794; and Title II of the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § § 12131-12134. The parties entered into a settlement agreement that narrowed the scope of plaintiffs' claims so only claims under the Rehabilitation Act and the ADA are at issue, but we review all three statutes to clarify the different definitions and standards for FAPE that must be applied on remand. We also discuss plaintiffs' state law tort claims.

FACTS AND PROCEDURAL BACKGROUND

A.G. attended school in the Paradise Valley Unified School District at various times between 2002 and September of 2010. From August 17, 2009 through January 19, 2010, A.G. attended seventh grade at Vista Verde Middle School in the Uniquely Gifted Program for students with high IQs and one or more learning or behavioral disabilities. During that time, A.G. periodically demonstrated aggressive, disruptive, and noncompliant behavior. In November of 2009, A.G.'s Individualized Education Plan (" IEP" ) Team, which included herself and her parents, adopted an IEP setting forth various educational services that would be provided to A.G.[1] Unfortunately, in December of 2009, A.G.'s behavior began to deteriorate. By January of 2010, she refused to go to class, destroyed school property, threatened to harm herself, wrote graffiti on a bathroom wall, and was uncooperative with a school resource officer, eventually physically striking that officer. A.G. was suspended from Vista Verde following the last incident.

In February 2010, A.G.'s IEP Team met and adopted an Addendum to A.G.'s IEP. Pursuant to the Addendum, A.G. was to be transferred to the Roadrunner School, a school primarily designed for children with emotional disturbances, where she was to participate in an assortment of counseling, behavior management, and special education programs. The IEP Addendum indicates that A.G.'s parents visited Roadrunner and agreed that it would be an appropriate placement for A.G., and that A.G.'s parents were informed that A.G. would not be restrained at Roadrunner unless she became a danger to herself or others.

A.G. demonstrated behavioral issues on her second day at Roadrunner. She resisted entering the school that day and had to be physically escorted onto the premises by staff members and led to the " Intervention Room." During that incident, A.G. kicked a paraprofessional in the face. Officer Lori Welsh, a city police officer who worked as off-duty security at the school, was summoned and she arrested A.G. for aggravated assault and criminal damage. Officer Welsh placed A.G. in handcuffs and

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detained her until her mother arrived to ...


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