H. v. Lemahieu

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK H., individually and as 
Guardian Ad Litem of Michelle H.
and Natalie H., minors,
Plaintiff-Appellant,
RIE H., individually and as
Guardian Ad Litem of Michelle H.
and Natalie H., minors,
Plaintiff-Appellant,
v.
PAUL LEMAHIEU, in his official
capacity as superintendent of the No. 05-16236
Hawaii Public Schools; ELSIE
TANAKA, in her official capacity as  D.C. No.
CV-00-00282-MLR
Principal of Kipapa Elementary
School; JUDITH SARAN-CHOCK, in OPINION
her official capacity as Principal
of Ala Wai Elementary School;
PETER CHUN, in his official
capacity as Principal of Hokulani
Elementary School; HAROLDEEN
WAKIDA, in her official capacity as
Principal of Ali’iolani Elementary
School; DEPARTMENT OF
EDUCATION, State of Hawaii; KEITH
HUNTER, SR., special master,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Hawaii
Manuel L. Real, District Judge, Presiding
591
592 MARK H. v. LEMAHIEU
Argued and Submitted
June 6, 2007—Honolulu, Hawaii
Filed January 17, 2008
Before: David R. Thompson, Marsha S. Berzon, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Berzon
594 MARK H. v. LEMAHIEU
COUNSEL
Michael K. Livingston, Honolulu, Hawaii, for the plaintiffs.
Dorothy D. Sellers, Deputy Attorney General, Honolulu,
Hawaii, for the defendants.
OPINION
BERZON, Circuit Judge:
In 2000, Mark H. and Rie H., both individually and as
guardians ad litem for their autistic daughters (“the H. fami-
ly”), sued the Hawaii Department of Education and various
MARK H. v. LEMAHIEU 595
school officials in their official capacities (collectively, “the
Agency”) for damages for alleged violations of the Individu-
als with Disabilities Education Act (IDEA), Pub. L. No. 91-
230, 84 Stat. 175 (Apr. 13, 1970), and of § 504 of the Reha-
bilitation Act of 1973 as amended, 29 U.S.C. § 794. Among
other rulings, the district court held that “there are no rights,
procedures, or remedies available under § 504 for violations
of the IDEA’s affirmative obligations,” and that the United
States Department of Education’s (“U.S. DOE’s”) § 504 regu-
lations are not enforceable through a private right of action.
It is the relationship between the IDEA and the U.S. DOE’s
regulations implementing § 504 of the Rehabilitation Act that
is at the heart of this case.
As it turns out, that relationship is not straightforward. The
IDEA requires, among other things, that states accepting
funds under the Act provide disabled children with a “free
appropriate public education” (“FAPE”). 20 U.S.C.
§ 1412(a)(1). Section 504 of the Rehabilitation Act requires
that disabled individuals not “be excluded from the participa-
tion in, be denied the benefits of, or be subjected to discrimi-
nation under any program or activity” that receives federal
funds. 29 U.S.C. § 794. The U.S. DOE regulations imple-
menting § 504 include a requirement that disabled children in
schools receiving federal funds be provided a “free appropri-
ate public education.” 34 C.F.R. § 104.33. The parties and the
district court have assumed throughout this litigation that a
violation of the IDEA statutory FAPE requirement necessarily
constitutes a violation of the § 504 regulations’ FAPE require-
ment, an understandable assumption given the use of identical
language. As we develop below, however, this assumption is
wrong. The FAPE requirements in the IDEA and in the § 504
regulations are, in fact, overlapping but different.
This fundamental misunderstanding has complicated our
resolution of the issues in this case. Additionally, Congress
has clearly stated its intent to preserve all remedies under
§ 504 for acts that also violate the IDEA. For these two rea-
596 MARK H. v. LEMAHIEU
sons, we hold the availability of relief under the IDEA does
not limit the availability of a damages remedy under the § 504
FAPE regulations.
As the H. family has assumed that alleging a violation of
the IDEA FAPE requirement is sufficient to allege a violation
of § 504, they have not specified precisely whether they
believe the U.S. DOE’s § 504 FAPE regulations, as opposed
to the IDEA FAPE requirement, were violated, and, if so, in
what regard. Without some clarity about precisely which
§ 504 regulations are at stake and why, we cannot determine
whether the H. family has sufficiently alleged a privately
enforceable cause of action for damages. We thus reverse the
order of the district court granting summary judgment to the
Agency and remand for further proceedings.
BACKGROUND
I. FACTS
A. Historical Background and the Felix Consent
Decree.
Hawaii has long struggled to provide adequate services to
special needs students in compliance with state and federal
law. The U.S. DOE performed a site visit to Hawaii in 1991
and determined that the Hawaii Department of Education
(“Hawaii DOE”) was not complying with federal law “be-
cause mental health services were not always provided to
meet the needs of special education students.”1 The U.S. DOE
report found that although “[t]he [Hawaii] DOE is legally
responsible for furnishing these services, . . . [t]he [Hawaii
1
The IDEA does not use the term “mental health services,” but requires
states to provide “related services” — including, for example, “psycholog-
ical services, physical and occupational therapy . . . [and] social work ser-
vices” — “as may be required to assist a child with a disability to benefit
from special education.” 20 U.S.C. § 1401(26); 20 U.S.C. § 1412.
MARK H. v. LEMAHIEU 597
Department of Health (“Hawaii DOH”)] provides some free
services to these students, but only when it has the resources.”
The U.S. DOE warned the Hawaii DOE that it must provide
or purchase appropriate mental health services for special
education students.
In January of 1993, a report by the Auditor for the State of
Hawaii entitled A Study on the Memorandum of Agreement
for Coordinating Mental Health Services to Children, No. 93-
1, acknowledged that efforts to coordinate among state agen-
cies the provision of mental health services for special educa-
tion students had largely failed. The report concluded that
“the [Hawaii DOE] must provide or purchase mental health
services for special education students when the [Hawaii
DOH] cannot provide these services.”
Later in 1993 a class of plaintiffs comprised of disabled
children and adolescents eligible for special education and
mental health services sued the Hawaii DOE and the Hawaii
DOH in federal court, claiming a failure to comply with the
IDEA and with § 504 of the Rehabilitation Act. Felix v. Wai-
hee, CV. No. 93-00367-DAE. The district court granted sum-
mary judgment for the class on the issue of liability, finding
that the agencies “ha[d] systematically failed to provide
required and necessary educational and mental health services
to qualified handicapped children,” in violation of both fed-
eral laws. Thereafter, in 1994, the parties entered into a con-
sent decree (the “Felix Decree”), which was approved by the
district court.
In the Felix Decree, the two state agencies acknowledged
that they had violated the federal IDEA and § 504 of the
Rehabilitation Act. The agencies agreed that the Hawaii DOE
would provide all educational services the Felix class mem-
bers require; that the Hawaii DOH would provide all mental
health services the class members require to benefit from the
educational services; and that the two agencies would create
and maintain a system of care adequate to provide a contin-
598 MARK H. v. LEMAHIEU
uum of services, placements, and programs necessary for dis-
abled students. The Felix Decree defined the plaintiff class as
“all children and adolescents with disabilities residing in
Hawaii, from birth to 20 years of age, who are eligible for and
in need of education and mental health services but for whom
programs, services, and placements are either unavailable,
inadequate, or inappropriate because of lack of a continuum
of services, programs, and placements.” Autistic children fall
within the Felix class.
B. Michelle H.
Michelle H. and Natalie H. are the children of Mark and
Rie H. Michelle H. was born on February 15, 1991. In March
1994, a Hawaii DOH psychologist who examined Michelle
concluded that she had “mild Autistic Spectrum Disorder (or
Pervasive Developmental Disorder).”2 The DOH psychologist
made a number of recommendations to address Michelle’s
limitations, including enrollment in the Hawaii DOE’s Pre-
school Program, use of numerous autism-specific approaches,
and assignment of an extra aide to work one-on-one with
Michelle in the classroom. According to the Hawaii DOE, the
psychologist’s recommendations to deal with Michelle’s
autism were never implemented “because of difficulties . . .
in getting appropriate personnel as well as appropriate fund-
ing.”
In April 1994, the Hawaii DOE performed its own aca-
demic and psychological evaluation of Michelle to determine
her early special education needs. The Hawaii DOE found
Michelle eligible for early special education services under
2
“Pervasive Developmental Disorder (PDD) is a category designated by
the American Psychiatric Association to indicate children with delay or
deviance in their social/language/motor and/or cognitive development. . . .
Autism is the most severe of the pervasive developmental disorders.”
Yale Developmental Disabilities Clinic, Information About Pervasive
Developmental Disorders, http://www.med.yale.edu/chldstdy/autism/
pddinfo.html#difference (last visited December 27, 2007).
MARK H. v. LEMAHIEU 599
the IDEA because of “chronic emotional impairment,” not
because she suffered from an autism disorder. The Hawaii
DOE developed an Individualized Educational Program
(“IEP”) for Michelle, including placement in a fully self-
contained special education classroom on a regular school
campus for an extended school year with special education
and speech therapy services. Michelle’s IEP was updated at
regular intervals through 1998, but the recommendations
remained substantially unchanged. No representative from
DOH attended any of the IEP sessions to discuss mental
health services.
In April 1997, the Hawaii DOE changed Michelle’s eligi-
bility category from “Emotional Impairment” to “Autism.”
The Hawaii DOE reassessed her IEP in January 1998, after
the diagnosis changed. The recommendations in the new IEP
remained nearly identical to those made before the change in
diagnosis and included no additional individualized services
related to autism.
C. Natalie H.
Natalie H. was born on August 3, 1992. In 1994, the pre-
school that Natalie was attending, concerned that she might
have a “pervasive development disorder,” referred her to the
Hawaii DOH. The Hawaii DOH performed a psychological
evaluation in September 1994 and determined that, at the age
of two, Natalie was developmentally at the age of a one-year
old overall, but that “[she] showed no symptoms of Pervasive
Developmental Disorder.” In early 1995, Natalie’s family
doctor observed developmental delays and referred her to
Kaiser Permanente for a neurological evaluation. The Kaiser
evaluation diagnosed Natalie with autism and recommended
that she be provided with appropriate special education.
In the spring of 1995, when Natalie was nearly three, the
Hawaii DOE academically evaluated her and deemed her eli-
gible for special education services, classifying her disability
600 MARK H. v. LEMAHIEU
as an “Early Childhood Learning Impairment,” not autism. An
IEP prepared for Natalie on July 7, 1995 specified that she
was to be placed in a fully self-contained special education
classroom on a regular school campus for an extended school
year, just as Michelle was.
Natalie’s next IEP assessment, in March 1996, noted that
the Kaiser evaluation had concluded in February 1995 that
she was autistic. Natalie’s IEP was reevaluated on an annual
basis through 1998, although, as with Michelle, no mental
health representative attended the meetings. In March 1998,
the Hawaii DOE changed Natalie’s eligibility category from
“Early Childhood Learning Impairment” to “Autism.”
D. The Administrative Hearing.
Natalie and Michelle’s parents initiated an administrative
action against the Hawaii DOE in 1999, alleging that the girls
were denied a free appropriate public education (“FAPE”)
under the IDEA and § 504,3 that their IEPs were deficient, and
that the Hawaii DOE had violated their procedural rights. A
hearing was held, and, in a detailed decision, the administra-
tive officer found significant violations of the IDEA. Among
his factual findings were that (1) “No special (autism) ser-
vices were provided from 1994 to 1998”; (2) at the elemen-
tary school the girls attended, “the principal did not include
mental health services as part of the IEP” because “this had
been the system . . . prior to” the Felix Decree “and she was
not familiar at that time with the new procedures”; (3) “No
IEP to the present time includes all of the mental health ser-
vices that were authorized or agreed upon by the IEP team”;
and (4) Natalie and Michelle’s special education teacher was
generally inexperienced and had no experience with autistic
children prior to her current job. The administrative officer
3
Although the H. family alleged both IDEA and § 504 violations at the
administrative level, the administrative ruling addressed only the IDEA
violations.
MARK H. v. LEMAHIEU 601
determined, based on these findings, that Natalie and Michelle
had been denied a FAPE under the IDEA, that their IEPs were
inadequate, and that numerous procedural violations had
occurred.
The administrative officer instructed the Hawaii DOE to
take a number of steps to remedy the violations. There is no
contention that the Hawaii DOE has not complied with the
administrative order, which was not appealed, or that Natalie
and Michelle are currently being denied a FAPE as defined by
the IDEA.
II. STATUTORY CONTEXT
Before recounting the procedural history of this case, we
examine the two related but separate statutes central to this lit-
igation, the IDEA and § 504 of the Rehabilitation Act.
The statute presently known as the IDEA originated in
1970 as part of the Education of the Handicapped Act. Pub.
L. No. 91-230, 84 Stat. 175 (Apr. 13, 1970). It was later
amended substantially in the Education for all Handicapped
Children Act of 1975, Pub. L. No. 94-142, 89 Stat. 773 (Nov.
29, 1975), and was amended again and renamed the “Individ-
uals with Disabilities Education Act” in 1990. Pub. L. No.
101-476, 104 Stat. 1103 (Oct. 30, 1990). For simplicity, we
refer to all versions of the statute as IDEA, even though that
title did not appear until 1990.
At the time the 1975 amendments were enacted, “the
majority of disabled children in America were ‘either totally
excluded from schools or sitting idly in regular classrooms
awaiting the time when they were old enough to [drop out].’ ”
Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 52 (2005)
(quoting H.R. Rep. No. 94-332, p. 2 (1975)). Among Con-
gress’s purposes in enacting the IDEA was “to ensure that all
children with disabilities have available to them a free appro-
priate public education that emphasizes special education and
602 MARK H. v. LEMAHIEU
related services designed to meet their unique needs and pre-
pare them for further education, employment, and indepen-
dent living.” 20 U.S.C. § 1400(d)(1)(A). The IDEA defines a
FAPE as:
special education and related services that — (A)
have been provided at public expense, under public
supervision and direction, and without charge; (B)
meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary
school, or secondary school education in the State
involved; and (D) are provided in conformity with
the individualized education program required under
section 1414(d) of this title.
20 U.S.C. § 1401(9).
States that receive federal financial assistance under the
IDEA must demonstrate that they have in effect “policies and
procedures” to provide disabled children with a FAPE, by
developing an “individualized education program” (“IEP”) for
each child.4 20 U.S.C. § 1412(a), (a)(1), (a)(4). The IDEA
4
20 U.S.C. § 1414(d) defines an IEP as:
. . . a written statement for each child with a disability that is
developed, reviewed, and revised in accordance with this section
and that includes—
(I) a statement of the child’s present levels of academic
achievement and functional performance, including—
(aa) how the child’s disability affects the child’s involvement
and progress in the general education curriculum;
(bb) for preschool children, as appropriate, how the disability
affects the child’s participation in appropriate activities; and
(cc) for children with disabilities who take alternate assess-
ments aligned to alternate achievement standards, a description
of benchmarks or short-term objectives;
(II) a statement of measurable annual goals, including aca-
demic and functional goals, designed to—
MARK H. v. LEMAHIEU 603
creates a cause of action under which a court may grant indi-
viduals “such relief as [it] determines is appropriate” for vio-
lations of the IDEA. 20 U.S.C. § 1415(i)(2)(C)(iii). Although
injunctive relief is available under the IDEA, “ordinarily
monetary damages are not.” Witte v. Clark County School
Dist., 197 F.3d 1271, 1275 (9th Cir. 1999); see also Taylor by
and through Taylor v. Honig, 910 F.2d 627, 628 (9th Cir.
1990).
While the IDEA focuses on the provision of appropriate
public education to disabled children, the Rehabilitation Act
of 1973 more broadly addresses the provision of state services
to disabled individuals. Section 504 of the Rehabilitation Act,
the Act’s core provision, states that:
No otherwise qualified individual with a disability in
the United States . . . shall, solely by reason of her
or his disability, be excluded from the participation
in, be denied the benefits of, or be subjected to dis-
crimination under any program or activity receiving
Federal financial assistance or under any program or
activity conducted by any Executive agency or by
the United States Postal Service.
29 U.S.C. § 794(a). Section 504 applies to all public schools
that receive federal financial assistance. See 29 U.S.C.
§ 794(b)(2)(B) (defining “program or activity” to include the
operations of “local educational agenc[ies]”).
Agencies may promulgate regulations that implement the
requirements concerning treatment of disabled individuals
(aa) meet the child’s needs that result from the child’s disabil-
ity to enable the child to be involved in and make progress in
the general education curriculum; and
(bb) meet each of the child’s other educational needs that result
from the child’s disability; . . .
604 MARK H. v. LEMAHIEU
contained in § 504. See Alexander v. Choate, 469 U.S. 287,
304 n.24 (1985) (agencies have “substantial leeway to explore
areas in which discrimination against the handicapped pose[s]
particularly significant problems and to devise regulations to
prohibit such discrimination”); S. Rep. 93-1297, at 40-41
(1974), as reprinted in 1974 U.S.C.C.A.N. 6373, 6390 (Sec-
tion 504 “does not specifically require the issuance of regula-
tions . . . but it is clearly mandatory in form . . . and such
regulations . . . are intended.”). The Department of Health,
Education and Welfare [“HEW”], the predecessor to the U.S.
DOE, promulgated regulations interpreting § 504. Those reg-
ulations are currently in force as U.S. DOE regulations. 34
C.F.R. §§ 104.1-104.61.
As pertinent to this case, the U.S. DOE’s § 504 regulations
require recipients of federal funds to “provide a free appropri-
ate public education to each qualified handicapped person,”
and define “appropriate education” as:
regular or special education and related aids and ser-
vices that (i) are designed to meet individual educa-
tional 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(a), (b).
The first regulation cross-referenced in § 104.33, § 104.34,
requires that recipients place disabled individuals in a “regular
educational environment” unless it can be shown that “the
education of the person in the regular environment with the
use of supplementary aids and services cannot be achieved
satisfactorily.” 34 C.F.R. § 104.34(a). When a handicapped
individual is removed from a regular environment, the facility
in which she is placed must be “comparable” to that used by
non-disabled students. 34 C.F.R. § 104.34(c). The remaining
MARK H. v. LEMAHIEU 605
cross-referenced regulations, 34 C.F.R. §§ 104.35 and 104.36,
require evaluation and testing of all those who need or are
believed to need special education, as well as the development
of procedural safeguards to ensure that guardians of disabled
children receive notice, access to relevant records, and an
opportunity for an “impartial hearing.”
Section 504 establishes an implied private right of action
allowing victims of prohibited discrimination, exclusion, or
denial of benefits to seek “the full panoply of remedies,
including equitable relief and [compensatory] damages.”
Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d
1103, 1107 (9th Cir. 1987); see also Barnes v. Gorman, 536
U.S. 181, 189 (2002). Punitive damages are not available
under § 504. Barnes, 536 U.S. at 189.
In sum, the IDEA contains a statutory FAPE provision and
allows private causes of action only for prospective relief.
Section 504 contains a broadly-worded prohibition on dis-
crimination against, exclusion of and denial of benefits for
disabled individuals, under which the U.S. DOE has promul-
gated regulations containing a FAPE requirement worded
somewhat differently from the IDEA FAPE requirement. Sec-
tion 504 can be privately enforced to provide, in addition to
prospective relief, compensatory but not punitive damages for
past violations.
III. FEDERAL COURT PROCEEDINGS
The litigation history of this case is somewhat tortuous. We
recount these proceedings in some detail, as they demonstrate
the significance of the assumptions about the relationship
between § 504 and the IDEA that have persisted throughout
this litigation.
In 2000, the girls and their parents filed a federal lawsuit
against the Hawaii DOE and various school officials in their
official capacities for violations of the IDEA and of § 504 of
606 MARK H. v. LEMAHIEU
the Rehabilitation Act of 1973. The complaint requested com-
pensatory, punitive,5 and hedonic damages,6 and stated that it
was authorized by § 504 of the Rehabilitation Act, the IDEA,
and 42 U.S.C. § 1983. The H. family alleged, among other
things, that the “[Agency]’s failure to provide autism specific
services to Natalie and Michelle during the crucial years of
ages three to seven through appropriately trained personnel
and in appropriate classrooms was a violation of § 504, and
constituted deliberate indifference to the needs and rights of
these children.” The complaint continued by alleging that
“Michelle and Natalie have been discriminated against by the
[d]efendants solely because of their disabilities.”
A. October 18, 2000 Ruling on Motion to Dismiss.
The Agency moved to dismiss the complaint on several
grounds. Among other contentions, the Agency maintained
that the IDEA is the exclusive remedy for injuries caused by
violation of its provisions. More specifically, the Agency
argued that the H. family’s § 504 claim is barred because (1)
the H. family only litigated the IDEA claims, not the claims
under § 504, in the administrative hearing; and (2) § 504 does
not provide money damages for acts that also violate the
IDEA. The Agency also argued that all of the claims in the
complaint were barred by sovereign immunity.
The district court granted the motion to dismiss in part, and
denied it in part.7 With respect to the exclusivity of the IDEA
as a remedy, the court determined that the H. family had
exhausted its administrative remedies under the IDEA, but did
not address the Agency’s other arguments as to why the IDEA
5
The H. family has since conceded that punitive damages are not avail-
able under § 504, pursuant to Barnes v. Gorman, 536 U.S. 181 (2002).
6
Hedonic damages are “for the loss of the pleasure of being alive.”
BLACK’S LAW DICTIONARY 417 (8th ed. 2004).
7
The case was at this point assigned to Judge David Ezra, who had pre-
sided over the Felix litigation.
MARK H. v. LEMAHIEU 607
cause of action for prospective relief is the only remedy avail-
able to the H. family. The court held that the Eleventh
Amendment did not bar the § 504 claims, but did bar any
claims against the state under § 1983 for money damages.
B. July 24, 2001 Summary Judgment Ruling.
The Agency then moved for summary judgment, advancing
several new arguments and reiterating their earlier Eleventh
Amendment arguments. The H. family filed a cross-motion
for partial summary judgment, arguing (1) that the administra-
tive hearing decision on the IDEA was res judicata with
regard to the question whether the girls were denied a FAPE;
and (2) that the appropriate substantive standard in an action
for damages under § 504 is whether a defendant demonstrated
“deliberate indifference” to the disabled individual’s accom-
modation needs, not whether a defendant acted with discrimi-
natory animus.
The district court granted the H. family’s cross-motion in
its entirety, and granted in part and denied in part the Agen-
cy’s motion. In granting the motion, the court held that
“[d]efendants are precluded from arguing that Michelle and
Natalie were not denied FAPE.” The court rejected most of
the Agency’s arguments on summary judgment but agreed
with the Agency that non-equitable monetary damages are not
available under the IDEA and that the appropriate defendant
for monetary relief is the state, not state officials in their offi-
cial capacities. As a result of these rulings, the only remaining
claim as of 2001 was the § 504 cause of action against the
state itself for monetary relief.
C. May 25, 2005 Summary Judgment Ruling.
On March 12, 2004, the case was reassigned to Judge
Manuel Real of the Central District of California, on tempo-
rary assignment to the District of Hawaii. The Agency again
moved for summary judgment, reasserting some arguments
608 MARK H. v. LEMAHIEU
made earlier in its motion to dismiss and motion for summary
judgment and making one new argument: that the H. family’s
proffered evidence failed to show the “deliberate indiffer-
ence” the court had ruled was required for a § 504 violation.
In a motion for partial summary judgment filed the same day,
the H. family argued that Judge Ezra’s prior rulings governed
as law of the case, and further maintained that they were enti-
tled to summary judgment on the issue of liability because the
Agency failed to provide a FAPE and acted with deliberate
indifference in doing so.
Judge Real granted the Agency’s motion for summary
judgment and denied the H. family’s motion. He held that
there is no § 504 cause of action for violation of any affirma-
tive right to a FAPE, reasoning that “IDEA procedures remain
the exclusive remedy for correcting problems within the terms
of the act, and for deciding what is best suited to a free appro-
priate public education.” Judge Real further held that (1) pur-
suant to Alexander v. Sandoval, 532 U.S. 275 (2001), the U.S.
DOE’s § 504 regulations can not be enforced through the
right of action implied under § 504; and (2) a state’s waiver
of sovereign immunity under § 504 does not extend to claims
for damages for failure to provide an IDEA FAPE. Finally
Judge Real concluded that, even if the H. family had a valid
§ 504 cause of action, the state would prevail on the merits,
because “the [p]laintiffs do not present any evidence that they
were intentionally discriminated against, ‘solely by reason of
their disability.’ ” The case was dismissed. The H. family
appeals from this final judgment.
ANALYSIS
I. EFFECT OF IDEA ON AVAILABILITY OF
REMEDIES UNDER § 504 OF THE REHABILITATION
ACT FOR DENIAL OF FAPE.
The district court held that the availability of injunctive
relief under the IDEA precludes suits for damages under
MARK H. v. LEMAHIEU 609
§ 504 for government actions that violate both statutes. This
conclusion was erroneous for two reasons.8
8
The H. family argues that Judge Real abused his discretion when he
reconsidered Judge Ezra’s earlier rulings on whether the IDEA is the
exclusive remedy for denial of a FAPE and on whether plantiffs’ § 504
claim is barred by sovereign immunity. See Milgard Tempering v. Selas
Corp. of Am., 902 F.2d 703, 715 (9th Cir. 1990) (holding that the district
court’s application of the law of the case doctrine is reviewed for an abuse
of discretion). Our case law leaves some doubt concerning whether the
law of the case doctrine constrains a district court’s discretion to recon-
sider its own rulings prior to final judgment. See City of Los Angeles v.
Santa Monica Baykeeper, 254 F.3d 882, 888 (9th Cir. 2001) (holding that
the law of the case doctrine is “wholly inapposite” when a district court
reconsiders an order over which it retains jurisdiction); but see United
States v. Alexander, 106 F.3d 874, 876-77 (9th Cir. 1997) (holding that the
district court was barred from reconsidering, after a mistrial and a change
of judges, its own previous ruling on a motion to suppress in the absence
of changed law or circumstances); United States v. Smith, 389 F.3d 944,
949-50 (9th Cir. 2004) (relying on Santa Monica Baykeeper for the hold-
ing that “the law of the case doctrine is wholly inapposite” when a district
court reconsiders an order over which it retains jurisdiction and distin-
guishing Alexander on the ground that in that case the district court did not
reconsider in a “timely” fashion (internal quotation marks omitted)).
We need not resolve here whether the law of the case doctrine ever
applies in district court to previous rulings of that district court. Judge
Ezra understood the Agency’s arguments about the exclusivity of the
IDEA remedy as raising only a question of administrative exhaustion, and
so never decided whether the IDEA is the exclusive remedy for acts that
violate its terms. As a result, there was no ruling by Judge Ezra on the
exclusivity of the IDEA, and no “law of the case” on this issue prior to
Judge Real’s ruling. Further, to the extent that Judge Real decided whether
sovereign immunity barred the H. family’s actions under § 504, he held
only that it barred actions under § 504 to enforce the IDEA FAPE provi-
sions. Because, for reasons we develop at length below, the § 504 FAPE
regulations and the IDEA FAPE requirement are distinct, this ruling did
not determine whether actions under § 504 to enforce the § 504 regula-
tions are barred by sovereign immunity. As the H. family may pursue
damages only for a violation of the § 504 FAPE requirements, Judge
Real’s sovereign immunity ruling is simply not relevant. Moreover, the
Agency does not rely on or defend Judge Real’s sovereign immunity rul-
ing on appeal, stating in its brief that “[i]n the present case, the State is
not questioning the fact that it has waived its Eleventh Amendment immu-
nity in return for receiving federal financial assistance under the IDEA and
the Rehabilitation Act.”
610 MARK H. v. LEMAHIEU
First, the district court’s conclusion assumed that FAPE in
the IDEA and FAPE in the U.S. DOE § 504 regulations are
identical. This assumption underlies not only the district
court’s ruling on the second summary judgment motion but
all of the proceedings in this case. In particular, it also under-
lies the district court’s earlier holding that the administrative
hearing determination that Michelle and Natalie were denied
a FAPE under the IDEA was res judicata with regard to
whether they were denied a FAPE under the § 504 regula-
tions. An examination of the definitions of FAPE in the two
statutes demonstrates that this assumption is false.
[1] FAPE under the IDEA and FAPE as defined in the
§ 504 regulations are similar but not identical. When it pro-
mulgated its § 504 regulations, the U.S. DOE described them
as “generally conform[ing] to the standards established for the
education of handicapped persons in . . . the [IDEA].” Depart-
ment of Education, Establishment and Title and Chapters, 45
Fed. Reg. 30,802, 30,951 (May 4, 1980) (emphasis added).
Although overlapping in some respects, the two requirements
contain significant differences.
[2] The most important differences are that, unlike FAPE
under the IDEA, FAPE under § 504 is defined to require a
comparison between the manner in which the needs of dis-
abled and non-disabled children are met, and focuses on the
“design” of a child’s educational program. See 34 C.F.R.
§ 104.33(b)(1) (a FAPE requires education and services “de-
signed to meet individual educational needs of handicapped
persons as adequately as the needs of nonhandicapped per-
sons are met” (emphasis added)); cf. 20 U.S.C. §§ 1401(9),
1414(d)(1)(A)(i)(II).
Moreover, the U.S. DOE’s § 504 regulations distinctly state
that adopting a valid IDEA IEP is sufficient but not necessary
to satisfy the § 504 FAPE requirements. 34 C.F.R.
§ 104.33(b)(2) (“Implementation of an [IEP under the IDEA]
is one means of meeting” the substantive portion of the § 504
MARK H. v. LEMAHIEU 611
regulations’ definition of FAPE (emphasis added)); id. at
§ 104.36 (“Compliance with the procedural safeguards of sec-
tion 615 of the [IDEA] is one means of meeting” the § 504
procedural requirements in § 104.36) (emphasis added).
Plaintiffs who allege a violation of the FAPE requirement
contained in U.S. DOE’s § 504 regulations, consequently,
may not obtain damages simply by proving that the IDEA
FAPE requirements were not met.
[3] The district court thus erred when it held that the H.
family’s § 504 claim attempts “to correct what is in essence
a mere violation of a [FAPE] under the IDEA,” and that the
IDEA is therefore the H. family’s exclusive remedy. At the
same time, this examination of the text of the § 504 regula-
tions and the IDEA demonstrates that the H. family cannot
rely on the administrative hearing officer’s decision with
regard to an IDEA FAPE as dispositive of whether a FAPE
was denied under § 504. So, to the extent that the district
court held, in deciding the first summary judgment motion,
that the administrative hearing officer’s IDEA decision pre-
cluded further litigation as to whether a FAPE was denied
under the § 504 regulations, that decision is also incorrect.9
[4] Second, and as important, Congress has clearly
expressed its intent that remedies be available under Title V
of the Rehabilitation Act for acts that also violate the IDEA,
overriding the holding of the Supreme Court in Smith v. Rob-
inson, 468 U.S. 992 (1984). In Smith, the Court considered
the relationship between the remedies available under § 504
and those available under the IDEA. Petitioners in Smith
9
At oral argument, the H. family stated that they were not relying on
that res judicata ruling as dispositive of the specific question whether a
FAPE was provided under § 504. We note that our conclusion that the
administrative hearing decision is not dispositive of whether Michelle and
Natalie were provided a FAPE under § 504 does not affect the district
court’s holding to the extent that it determined that the administrative
hearing decision precludes litigation on the question whether an IDEA
FAPE was provided.
612 MARK H. v. LEMAHIEU
established that their rights under the IDEA had been violated
because no FAPE was provided, and then sought payment of
their attorney’s fees under Title V of the Rehabilitation Act.
Smith, 468 U.S. at 1016. The Court in Smith held that the
“remedies, rights, and procedures” available under the IDEA
were the exclusive relief for failure to provide a FAPE, so that
remedies under Title V of the Rehabilitation Act, including
payment of a prevailing party’s attorney’s fees, were unavail-
able. Id. at 1019.
Congress responded to the decision in Smith by adding to
the IDEA what is now 20 U.S.C. § 1415(l), which provides.
Nothing in this chapter shall be construed to restrict
or limit the rights, procedures, and remedies avail-
able under the Constitution, the Americans with Dis-
abilities Act of 1990, title V of the Rehabilitation
Act of 1973, or other Federal laws protecting the
rights of children with disabilities, except that before
the filing of a civil action under such laws seeking
relief that is also available under this subchapter, the
procedures under subsections (f) and (g) of this sec-
tion shall be exhausted to the same extent as would
be required had the action been brought under this
subchapter.
Despite the intervening passage of § 1415(l), the district
court relied on the reasoning of the Supreme Court in Smith
and held that, by bringing a damages claim under § 504 for
denial of a FAPE, the H. family was impermissibly attempt-
ing to “circumvent or enlarge on the remedies available under
the [IDEA] by resort to § 504.” With regard to § 1415(l), the
district court concluded, and the Agency here argues, that the
legislative history of § 1415(l) of the IDEA shows that it was
intended only to permit recovery of attorneys’ fees under
§ 504, not damages.
[5] Even if the legislative history supported this conclusion,
it could not overrule the statute’s plain language. See Botosan
MARK H. v. LEMAHIEU 613
v. Paul McNally Realty, 216 F.3d 827, 831 (9th Cir. 2000).
The plain text of the statute preserves all rights and remedies
under the Rehabilitation Act, not just attorneys’ fees. Given
the absence of any ambiguity in the statute’s text, there is no
need to examine its legislative history.
In any event, the statute’s legislative history is not to the
contrary. The district court observed that neither the Senate
nor House reports discussed the possibility of monetary dam-
ages under § 1415(l). See S. REP. NO. 99-112 (1986), as
reprinted in 1986 U.S.C.C.A.N. 1798. Nowhere in the legisla-
tive history of the statute, however, does Congress state that
it was intended to provide only for attorneys’ fees, or that it
was not intended to allow monetary damages under § 504. Cf.
United States v. Turkette, 452 U.S. 576, 591 (1981) (observ-
ing that, although “the legislative history [of RICO] forcefully
supports the view that the major purpose of [the statute] is to
address the infiltration of legitimate businesses,” that does not
require “the negative inference that [the statute] [does] not
reach the activities of enterprises organized and existing for
criminal purposes” where the plain text of the statute clearly
includes all “enterprises”).10
[6] In sum, availability of relief under the IDEA does not
limit the availability of a damages remedy under § 504 for
failure to provide the FAPE independently required by § 504
and its implementing regulations.11
10
We have recently held that, despite passage of § 1415(l), the provi-
sions of the IDEA are not enforceable under § 1983. Blanchard v. Morton
Sch. Dist., ___ F.3d ___, 2007 WL 4225789 at *3 (9th Cir. 2007). The
conclusion that § 1983 actions cannot be used to enforce the IDEA does
not affect our analysis in this case. Section 1415(l) explicitly mentions the
remedies available under the Rehabilitation Act and indicates that they are
preserved, but does not refer to § 1983.
11
Because the § 504 FAPE requirement differs from the IDEA FAPE
requirement, it is not clear how the exhaustion provision of § 1415(l)
applies to suits for damages for failure to provide a § 504 FAPE. We need
not reach this issue, because the H. family did exhaust the IDEA adminis-
trative remedies.
614 MARK H. v. LEMAHIEU
II. IMPLIED RIGHT OF ACTION TO ENFORCE
§ 504 REGULATIONS.
The district court further held that there is no private right
of action available to enforce in any respect the U.S. DOE’s
§ 504 regulations regarding provision of a FAPE. On exami-
nation, we observe that the district court’s approach to this
question did not recognize some considerations likely to be
informative in determining whether there is or is not a private
cause of action for damages available to enforce the § 504
FAPE regulations. As we explain below, however, we cannot
determine without clarification of the H. family’s allegations
whether the district court’s ultimate conclusion — that no
cause of action for damages is available on these facts under
§ 504 — is correct, and so remand for further proceedings.
A.
[7] It has long been established that § 504 contains an
implied private right of action for damages to enforce its pro-
visions. See Greater L.A. Council on Deafness v. Zolin, Inc.
812 F.2d 1103, 1107 (9th Cir. 1987). Whether the H. family
can bring an action to enforce the § 504 regulations will
depend on whether those regulations come within the § 504
implied right of action.
[8] In Alexander v. Sandoval, 532 U.S. 275 (2001), the
Supreme Court addressed the circumstances under which reg-
ulations can be enforced using the private right of action cre-
ated by a Spending Clause-based statute. See Day v. Apoliona,
496 F.3d 1027, 1037 n.12 (9th Cir. 2007). Sandoval held that
disparate impact regulations promulgated under § 602 of Title
VI of the Civil Rights Act of 1964 impose affirmative obliga-
tions that go beyond the requirements of § 601 and so do not
fall within the private right of action created by the statute.
Sandoval, 532 U.S. at 285-86. According to Sandoval, regula-
tions can only be enforced through the private right of action
contained in a statute when they “authoritatively construe” the
MARK H. v. LEMAHIEU 615
statute; regulations that go beyond a construction of the stat-
ute’s prohibitions do not fall within the implied private right
of action, even if valid.12 Id. at 284. As applied here, Sandoval
instructs that whether the § 504 regulations are privately
enforceable will turn on whether their requirements fall within
the scope of the prohibition contained in § 504 itself.
The district court held that § 504 “merely prohibits inten-
tional discrimination,” while the § 504 FAPE regulations pur-
port to create “affirmative obligations.” Applying Sandoval,
the district court concluded that because the § 504 FAPE reg-
ulations uniformly impose “affirmative obligations” that are
not imposed by the statute itself, they are not enforceable at
all through the implied private right of action.
The district court’s approach to this question fails to recog-
nize three key features of § 504 and the § 504 FAPE regula-
tions:
First, insofar as the district court was drawing a direct anal-
ogy to Sandoval’s prohibition on private causes of action
under a disparate impact regulation, that analogy is not
entirely persuasive. The § 504 regulations in question —
unlike the regulations under § 602 that the Supreme Court
characterized in Sandoval as “disparate impact” regulations
— are not fairly viewed as imposing liability based only on
unintentionally created “effects” or outcomes.
The Title VI regulations at issue in Sandoval provided that
funding recipients may not “utilize criteria or methods of
administration which have the effect of subjecting individuals
to discrimination because of their race, color, or national ori-
gin.” 28 C.F.R. § 42.104(b)(2) (emphasis added). In contrast,
the § 504 FAPE regulations encompass several provisions, the
12
The Court in Sandoval made clear that it was not declaring the Title
VI disparate impact regulations substantively invalid. Alexander v. Sando-
val, 532 U.S. 275, 281 (2001).
616 MARK H. v. LEMAHIEU
central requirement being that disabled children must be pro-
vided an “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.” 34 C.F.R. § 104.33(b)(1). The plain language of this
first, overarching FAPE regulation is not violated by a mere
difference in educational outcomes or “effects.” Rather, it is
violated only if a state fails to “design” educational plans so
as to meet the needs of both disabled and nondisabled chil-
dren comparably. To “design” something to produce a certain,
equal outcome involves some measure of intentionality. And
an obligation to “design” something in a certain way is not
violated simply because the actual impact of the design turns
out otherwise than intended.
In contrast, a disparate effect or impact need not be the
result of “design” at all, could be entirely accidental, and need
not be recognized once it occurs. This much was made clear
in Alexander v. Choate, 469 U.S. 287 (1985).
In Choate, the Supreme Court expressed its view that,
while § 504 may prohibit some disparate impacts, it is not
intended to prohibit all such impacts. Choate, 469 U.S. at
299. The Court repeatedly distinguished disparate impact dis-
crimination from other forms of discrimination by noting that
disparate impact discrimination arises from actions that dis-
criminate only in “effect” rather than “design.” Id. at 292,
297. And the Court was concerned that a prohibition on any
and all disparate impacts would lead to liability for effects
brought about wholly inadvertently, indeed, even for effects
that agencies had acted to avoid. Id. at 298. By requiring only
appropriate “design” of programs, § 104.33 does not fall into
that category of “disparate impacts” about which the Court
was most concerned in Choate.
Second, § 104.33 requires a comparison between the treat-
ment of disabled and nondisabled children, rather than simply
requiring a certain set level of services for each disabled
MARK H. v. LEMAHIEU 617
child. So, contrary to the district court’s apparent concern that
the § 504 regulations create free-floating “affirmative obliga-
tions,” in fact the obligation created is a comparative one. In
other words, school districts need only design education pro-
grams for disabled persons that are intended to meet their edu-
cational needs to the same degree that the needs of
nondisabled students are met, not more.
Further, the regulations also prohibit separating handi-
capped students from nonhandicapped students unless “it is
demonstrated . . . that the education of the person in the regu-
lar environment with the use of supplementary aids and ser-
vices cannot be achieved satisfactorily,” and require that
disabled children be provided “comparable facilities” to those
used by non-disabled children. 34 C.F.R. § 104.34(a)-(c).
Even if some of the other regulations might be characterized
as imposing “affirmative obligations” rather than prohibiting
discrimination, regulations aimed at preventing baseless seg-
regation of disabled and nondisabled students clearly repre-
sent a prohibition on simple discrimination as long
understood. Cf. Brown v. Bd. of Educ., 347 U.S. 483, 493
(1954).
Third, regardless of whether or not the § 504 FAPE regula-
tions can be characterized as to some degree prohibiting “dis-
parate impacts” or imposing “affirmative obligations,” the
district court gave the prohibition contained in § 504 itself too
cramped a reading. The text of § 504 prohibits not only “dis-
crimination” against the disabled, but also “exclu[sion] from
. . . participation in” and “deni[al] [of] the benefits of” state
programs solely by reason of a disability. 29 U.S.C. § 794(a).
This language is nearly identical to the language in Title VI,
and, in general, the remedies available under both § 504 and
Title II of the Americans with Disabilities Act (the “ADA”),
42 U.S.C. § 12132,13 are “linked” to Title VI. Ferguson v.
13
“[T]here is no significant difference in the analysis of rights and obli-
gations created by” the Rehabilitation Act and the ADA. Vinson v.
Thomas, 288 F.3d 1145, 1152 n.7 (9th Cir. 2002).
618 MARK H. v. LEMAHIEU
City of Phoenix, 157 F.3d 668, 673 (9th Cir. 1998). But see
Choate, 469 U.S. at 293 n.7 (“[T]oo facile an assimilation of
Title VI law to § 504 must be resisted.”). Nonetheless, the
legislative history of the Rehabilitation Act and the nature of
discrimination against disabled individuals have led us to con-
strue the § 504 prohibition somewhat more broadly.
This court has recognized that the focus of the prohibition
in § 504 is “whether disabled persons were denied ‘meaning-
ful access’ to state-provided services.” Crowder v. Kitagawa,
81 F.3d 1480, 1484 (9th Cir. 1996) (quoting Choate, 469 U.S.
at 302); Bird v. Lewis & Clark College, 303 F.3d 1015, 1020
(9th Cir. 2002) (“[T]he College must provide Bird with
‘meaningful access’ to its programs.”). Thus, although § 504
does not require “substantial adjustments in existing programs
beyond those necessary to eliminate discrimination against
otherwise qualified individuals,” it, like the ADA, does
require reasonable modifications necessary to correct for
instances in which qualified disabled people are prevented
from enjoying “ ‘meaningful access’ to a benefit because of
their disability.” Southeastern Community College v. Davis,
442 U.S. 397, 410 (1979); Choate, 469 U.S. at 301 (declining
to decide whether § 504 encompasses disparate impact dis-
crimination while characterizing “[t]he balance struck in
Davis” as “requir[ing] that an otherwise qualified handi-
capped individual must be provided with meaningful access
to the benefit that the grantee offers” and noting that “to
assure meaningful access, reasonable accommodations . . .
may have to be made”); see also Vinson v. Thomas, 288 F.3d
1145, 1154 (9th Cir. 2002) (“A failure to provide reasonable
accommodation can constitute discrimination under section
504 of the Rehabilitation Act.”); Weinreich v. Los Angeles
County Metro. Transp. Auth., 114 F.3d 976, 979 (9th Cir.
1997). Moreover, contrary to the Agency’s contentions at oral
argument, evidence that appropriate services were provided to
some disabled individuals does not demonstrate that others
were not denied meaningful access “solely on the basis of
their disability.” See Lovell v. Chandler, 303 F.3d 1039, 1054
MARK H. v. LEMAHIEU 619
(9th Cir. 2002) (“The State’s appropriate treatment of some
disabled persons does not permit it to discriminate against
other disabled people under any definition of ‘meaningful
access.’ ”).14
The district court and the Agency appear to have forgotten
the established § 504 “reasonable accommodation” and
“meaningful access” requirements in evaluating whether the
§ 504 FAPE regulations come within § 504’s substantive
scope. The reason for this elision may have been a misunder-
standing about the distinction between interpreting the scope
of the prohibition contained in § 504 and determining the state
of mind with which a violation of § 504 must be committed
so as to give rise to a damages remedy.
Our cases on the appropriate mens rea standard for a § 504
damages remedy recognize — as they must after Crowder —
that § 504 itself prohibits actions that deny disabled individu-
als “meaningful access” or “reasonable accommodation” for
their disabilities. See Duvall v. County of Kitsap, 260 F.3d
1124, 1135-36 (9th Cir. 2001); Ferguson, 157 F.3d at 679. Cf.
Lovell, 303 F.3d at 1054 (assuming that “meaningful access”
is the appropriate standard). Those cases then go on to ana-
lyze the state of mind with regard to a denial of “meaningful
access” or “reasonable accommodation” necessary to justify
14
Without deciding whether any cause of action the H. family may
allege in the future based on the § 504 FAPE regulations meets the stan-
dard of Sandoval, we observe that a number of the § 504 FAPE regula-
tions are arguably intended to ensure “meaningful access” to public
education. In particular, a disabled individual may be denied “meaningful
access” to public education when that education is not designed to meet
her needs as adequately as the needs of other students are met. See 34
C.F.R. § 104.33. The FAPE regulations also require adherence to certain
procedures intended to facilitate provision of a FAPE, including testing
and evaluation, 34 C.F.R. § 104.35, and notice to parents of educational
plans for their children. 34 C.F.R. § 104.36. Depending on the particular
circumstances, testing and evaluation of a disabled child may be necessary
to ensure “meaningful access” to an appropriate education, as might notice
to a child’s parents of the educational plan for that child.
620 MARK H. v. LEMAHIEU
monetary damages. As to this latter question, we have held
that plaintiffs must prove a mens rea of “intentional discrimi-
nation,” to prevail on a § 504 claim, but that that standard
may be met by showing “deliberate indifference,” and not
only by showing “discriminatory animus.” See Duvall, 260
F.3d at 1138; id. at 1139 (deliberate indifference is “knowl-
edge that a harm to a federally protected right is substantially
likely, and a failure to act upon that likelihood”); Lovell, 303
F.3d at 1056. Thus, a public entity can be liable for damages
under § 504 if it intentionally or with deliberate indifference
fails to provide meaningful access or reasonable accommoda-
tion to disabled persons.
For purposes of determining whether a particular regulation
is ever enforceable through the implied right of action con-
tained in a statute, the pertinent question is simply whether
the regulation falls within the scope of the statute’s prohibi-
tion. The mens rea necessary to support a damages remedy is
not pertinent at that stage of the analysis. It becomes essential,
instead, in determining whether damages can actually be
imposed in an individual case. See Sandoval, 532 U.S. at 280
(considering which actions are encompassed by the prohibi-
tion in § 601).15 The district court took a misstep when it
brought the mens rea question into the private cause of action
analysis.
[9] In sum, the § 504 FAPE regulations are somewhat dif-
ferent from the Title VI disparate impact regulation in Sando-
val, because the regulations focus on “design” rather than
“effect” and establish only a comparative obligation. Further,
because the basic statutory prohibition has been understood
somewhat differently in Title VI and § 504, to the degree the
15
We note that, as this brief discussion of our case law on the mens rea
requirement indicates, to the extent that the district court concluded that
the H. family, in order to recover damages, is required to demonstrate a
mental state greater than deliberate indifference to the requirements
imposed by the FAPE regulations, it erred.
MARK H. v. LEMAHIEU 621
§ 504 FAPE regulations that the H. family invokes can be
interpreted as a variety of meaningful access regulation, they
will fall within the § 504 implied cause of action. Finally, to
obtain damages, the H. family will ultimately have to demon-
strate that the Agency was deliberately indifferent to the vio-
lation of whatever requirements the family validly seeks to
enforce.
B.
We also note that resolution of the question whether the
regulations can be enforced through the right of action in
§ 504 will likely be dispositive of the Eleventh Amendment
sovereign immunity concerns that have frequently popped up
in this case. The state argues that, while states do not enjoy
sovereign immunity from suits to enforce § 504 itself, see
Lovell v. Chandler, 303 F.3d at 1051, the U.S. DOE’s § 504
regulations cannot be enforced against states because they
demand more of the states than they bargained for when they
agreed to waive their Eleventh Amendment sovereign immu-
nity.
[10] However, as our discussion of Sandoval demonstrates,
to 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. Sandoval, 532 U.S. at 284. Reg-
ulations that do not impose obligations beyond § 504’s prohi-
bition on disability-based disadvantage but instead implement
that prohibition are part of the bargain struck between states
and the federal government. See Lovell, 303 F.3d at 1051;
Douglas v. Cal. Dept. of Youth Auth., 271 F.3d 812, 820-21
(9th Cir. 2001); cf. Vinson v. Thomas, 288 F.3d at 1151, 1154
(holding that state was not immune from a suit under § 504
in a case in which plaintiff relied in part on Department of
Justice regulations promulgated under the ADA). Accord-
ingly, those regulations that can be enforced through the
622 MARK H. v. LEMAHIEU
§ 504 private right of action under Sandoval are almost cer-
tainly enforceable against the states in a damages action.
C.
[11] We do not here decide whether the H. family has
alleged a privately enforceable cause of action for damages
against the state. To this point, both parties have proceeded on
the assumption that the IDEA and the § 504 FAPE require-
ments are identical, and have not litigated whether any of the
§ 504 FAPE regulations, as opposed to the IDEA FAPE
requirements, can support a private cause of action. We there-
fore remand to the district court for further proceedings. On
remand, the H. family should be given an opportunity to
amend its complaint to specify which § 504 regulations they
believe were violated and which support a privately enforce-
able cause of action. See Verizon Delaware, Inc. v. Covad
Commc’ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004) (Federal
Rule of Civil Procedure 15(a) embodies a “policy favoring
liberal amendment”).16
For the foregoing reasons, the district court decision is
REVERSED and REMANDED.17
16
The H. family also argues that “rare and extraordinary circumstances”
require reassignment of the case on remand. United Nat’l Ins. Co. v. R&D
Latex Corp., 242 F.3d 1102, 1118 (9th Cir. 2001) (internal quotation
marks omitted). The H. family has pointed to no circumstances sufficient
to justify reassignment of the case. Judge Real did not abuse his discretion
when he revisited Judge Ezra’s earlier substantive orders, nor was his
change in the scheduling order for filing pre-trial motions inappropriate.
See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002)
(district courts have “broad discretion in supervising the pretrial phase of
litigation” (quotation omitted)). The H. family’s request for reassignment
is therefore denied.
17
As we do not decide whether the H. family has alleged a privately
enforceable cause of action, we do not reach the family’s argument that
the district court erred in holding that there is no material question of fact
as to whether plaintiffs were “intentionally discriminated” against so as to
MARK H. v. LEMAHIEU 623
support a damages action under § 504, nor do we reach the family’s
motion for summary judgment. We do note that, as with the district court’s
ruling on sovereign immunity, the court held only that there was insuffi-
cient evidence of intentional discrimination as to the IDEA’s FAPE
requirements, not the § 504 FAPE regulations. The district court’s deci-
sion therefore does not determine whether the H. family has demonstrated
a triable issue as to violation of the § 504 regulations.