A.G. Ex Rel. Grundemann v. Paradise Valley Unified School District No. 69

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
A.G., a student, by and through Nos. 13-16239
parents William Grundemann and 13-16707
Rhonda Grundemann; WILLIAM
GRUNDEMANN; and RHONDA D.C. No.
GRUNDEMANN, individually,
2:11-cv-01899-
Plaintiffs-Appellants/
NVW
Cross-Appellees,
v.
PARADISE VALLEY UNIFIED OPINION
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
2 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.
Roadrunner School; CYNTHIA
GILMORE, Teacher at Roadrunner
School,
Defendants-Appellees/
Cross-Appellants.
Appeal from the United States District Court
For the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted
September 16, 2015—San Francisco, California
Filed March 3, 2016
Before: Morgan Christen and Michelle T. Friedland,
Circuit Judges, and Ivan L.R. Lemelle, Senior District
Judge.*
Opinion by Judge Lemelle
*
The Honorable Ivan L.R. Lemelle, Senior District Judge for the U.S.
District Court for the Eastern District of Louisiana, sitting by designation.
A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 3
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
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.
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.
A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 5
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.
COUNSEL
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.
6 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.
OPINION
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 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.
A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 7
§§ 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.
1
IEPs are mandated by the IDEA and aim at ensuring that a qualifying
student with a disability is provided a free appropriate public education as
defined under that Act. See 20 U.S.C. §§ 1401(9)(D), 1414(d). We explain
the relevance of these concepts in greater detail, infra.
8 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.
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 detained her until her mother
arrived to pick her up.
Later, on March 23, 2010, Officer Welsh was again
summoned by one of A.G.’s teachers to escort A.G. to the
Intervention Room. Officer Welsh attempted to handcuff
A.G. for allegedly poking her in the eye, but A.G. resisted
and eventually scratched Officer Welsh in the face and neck.
Officer Welsh placed A.G. in an arm bar, applied handcuffs,
and called for backup. A.G. was eventually arrested for
aggravated assault, transported to the police precinct for
booking, and placed in a juvenile detention room where she
kicked the table and chair. After being transported to the
Juvenile Court Center, A.G. was released to her parents. The
A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 9
charges stemming from both incidents were later dismissed,
and A.G. returned to the Roadrunner School. She was
eventually moved to the Howard S. Gray School, a private
psychiatric school, at district expense.
On June 16, 2011, A.G. and her parents filed an
administrative due process complaint with the Arizona
Department of Education alleging that A.G. was denied a
FAPE by the school district and its named representatives and
employees (the “school district defendants”). The
administrative complaint sought remedies available under the
IDEA. Plaintiffs also filed the present action in Arizona state
court against the school district defendants, the City of
Phoenix, and Officer Welsh. Defendants later removed the
action to the United States District Court for the District of
Arizona.
In their First Amended Complaint, plaintiffs alleged a
denial of FAPE under the procedural provisions of the IDEA,
Title II of the ADA, and section 504 of the Rehabilitation
Act, as well as various state common law tort claims against
the school district defendants. Plaintiffs’ principal
discrimination-based claims relate to the school district’s
alleged failure to provide adequate accommodations,
including a Functional Behavior Assessment (“FBA”), a
Behavior Intervention Plan (“BIP”), and a full-time aide, and
to the school district’s decision to change A.G.’s placement
from Vista Verde to the Roadrunner School. Plaintiffs alleged
that having further accommodations would have allowed
A.G. to continue attending Vista Verde.
In April of 2012, plaintiffs and the school district
defendants entered into a settlement agreement releasing
plaintiffs’ IDEA claims. Among other things, the settlement
10 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.
released the school district defendants of all liability for
administrative remedies available under the IDEA relating to
the failure to provide A.G. with a FAPE under the terms of
that Act.2 The settlement agreement expressly reserved
plaintiffs’ ability to proceed on their other federal claims
pending in district court. On April 23, 2013, the district court
also approved a settlement agreement dismissing all claims
against the City of Phoenix and Officer Welsh.
In May of 2013, the district court granted summary
judgment in favor of the school district defendants on all
remaining claims, dismissing plaintiffs’ claims under section
504 of the Rehabilitation Act and Title II of the ADA, as well
as plaintiffs’ state tort law claims. After the district court
entered its final judgment, the school district submitted a bill
of costs to the clerk of court and plaintiffs filed objections
thereto. The clerk issued a Judgment on Taxation of Costs in
favor of the school district, but plaintiffs later filed a motion
seeking review of that judgment pursuant to Federal Rule of
Civil Procedure 54(d)(1) and sanctions for defendants’
allegedly improper reimbursement request. The district court
agreed with plaintiffs and vacated the clerk’s assessment of
costs. Plaintiffs timely appealed the order granting summary
judgment and defendants timely cross-appealed the order
vacating costs.
JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction over plaintiffs’ federal
law claims and plaintiffs’ Rule 54(d) motion concerning costs
2
As will be discussed more fully, infra, the concept of FAPE is relevant
to, but distinct as between, the various Acts under which plaintiffs asserted
claims.
A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 11
pursuant to 28 U.S.C. § 1331 and plaintiffs’ state law claims
pursuant to 28 U.S.C. § 1367. We have appellate jurisdiction
pursuant to 28 U.S.C. § 1291.
We review de novo an order granting or denying a motion
for summary judgment. Mark H. v. Hamamoto, 620 F.3d
1090, 1097 (9th Cir. 2010); Delta Sav. Bank v. United States,
265 F.3d 1017, 1021 (9th Cir. 2001). We may “affirm a
summary judgment only if, viewing the evidence in the light
most favorable to the party against whom it is granted,” there
is no genuine issue of material fact such that the prevailing
party is entitled to judgment as a matter of law. Hamamoto,
620 F.3d at 1097 (citing Tribal Vill. of Akutan v. Hodel, 869
F.2d 1185, 1189 (9th Cir. 1989)). We draw all justifiable
factual inferences in favor of the nonmoving party, and we
reverse an order granting summary judgment if any rational
trier of fact could resolve a material factual issue in favor of
the nonmoving party. Id.
We review the district court’s decision to grant or deny
costs for abuse of discretion. Ass’n of Mexican-Am.
Educators v. California, 231 F.3d 572, 592 (9th Cir. 2000)
(en banc).
DISCUSSION
In the district court, the parties’ briefing conflated the
requirements for claims made under the IDEA, the ADA, and
section 504 of the Rehabilitation Act. Because remand is
necessary, we clarify the relevant standards for disability
discrimination claims by disabled children based on access to
educational services. We also briefly address plaintiffs’ state
law claims. The parties’ dispute concerning costs is mooted
12 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.
by the need to remand for further proceedings consistent with
this opinion.
I. Federal Legislation Addressing Special Education for
Disabled Children.
There are three primary and overlapping pieces of federal
legislation applicable to plaintiffs’ discrimination claims: The
IDEA, 20 U.S.C. §§ 1400–1491; section 504 of the
Rehabilitation Act, 29 U.S.C. § 794; and Title II of the ADA,
42 U.S.C. §§ 12131–12134.
Congress enacted the IDEA “to ensure that all children
with disabilities have available to them a free appropriate
public education [or ‘FAPE’] that emphasizes special
education and related services designed to meet their unique
needs and prepare them for further education, employment,
and independent living.” Mark H. v. Lemahieu, 513 F.3d 922,
928 (9th Cir. 2008) (quoting 20 U.S.C. § 1400(d)(1)(A)). The
IDEA focuses on making a FAPE available to disabled
students through development of Individualized Education
Programs (“IEPs”).3 Id.; 20 U.S.C. § 1401(9) (defining FAPE
in part as “special education and related services that . . . are
provided in conformity with the individualized education
program required under section 1414(d)”). States receiving
federal financial assistance under the IDEA must have in
place “policies and procedures” to properly develop IEPs for
qualifying children. Id. The IDEA creates a cause of action
for children and parents to pursue injunctive or other
3
The IDEA defines an IEP as “a written statement for each child with
a disability,” setting forth the child’s present levels of academic
achievement and functional performance and measurable academic and
functional goals. 20 U.S.C. § 1414(d).
A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 13
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. See 20 U.S.C.
§ 1415(i)(2)(C)(iii); Lemahieu, 513 F.3d at 928–29.
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. Lemahieu,
513 F.3d at 929. It provides that “[n]o 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
discrimination under any program or activity receiving
Federal financial assistance[.]” 29 U.S.C. § 794(a). Like the
IDEA, section 504 applies to public schools that receive
federal financial assistance. 29 U.S.C. § 794(b)(2)(B); see
also Lemahieu, 513 F.3d at 929. Section 504’s provisions are
not expressly affirmative in nature, but the Rehabilitation Act
empowers federal agencies to devise regulations aimed at
preventing prohibited discrimination. See Lemahieu, 513 F.3d
at 929.
The regulations adopted pursuant to section 504 require
qualifying public schools to “provide a free appropriate
public education to each qualified handicapped person.” 34
C.F.R. § 104.33(a); Lemahieu, 513 F.3d at 929.4 “FAPE” is
defined differently for purposes of section 504 than it is for
the IDEA. Under those section 504 regulations, FAPE
requires “regular or special education and related aids and
services that (i) are designed to meet individual educational
4
The United States Department of Education adopted enabling
regulations at 34 C.F.R. §§ 104.1–104.61. See 34 C.F.R. § 104.1.
14 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.
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) (emphasis added). 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. One method of
ensuring that the educational aids and services are “designed
to meet individual education needs” as required under
§ 104.33(b)(1)(i) is to implement an IEP developed in
accordance with the IDEA, 34 C.F.R. § 104.33(b)(2), but a
showing that FAPE was denied under the IDEA does not
necessarily establish a denial of FAPE under section 504.
Lemahieu, 513 F.3d at 933 (“Plaintiffs who allege a violation
of the [section 504] FAPE requirement . . . may not obtain
damages simply by proving that the IDEA FAPE
requirements were not met.”).
Title II of the ADA was modeled after section 504 of the
Rehabilitation Act. Duvall v. County of Kitsap, 260 F.3d
1124, 1135 (9th Cir. 2001). It provides that “no qualified
individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132. Although Title II is different from section 504 in
several respects, see K.M. ex rel. Bright v. Tustin Unified Sch.
Dist., 725 F.3d 1088, 1099 (9th Cir. 2013),5 for purposes of
5
For instance, section 504 imposes a stricter causal standard (“solely
by reason of disability”) than Title II’s “motivating factor” standard. See
K.M. ex rel. Bright, 725 F.3d at 1098. Because plaintiffs raise factual
A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 15
this appeal the elements of a valid Title II claim do not differ
in any material sense from those of a valid section 504 claim
and the two may be addressed together.
We have held “that § 504 contains an implied private
right of action for damages to enforce its provisions.”
Lemahieu, 513 F.3d at 935. 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. Mark H. v. Hamamoto, 620 F.3d 1090, 1097 (9th
Cir. 2010). A plaintiff may satisfy prong two by showing that
the federally funded program denied her services that she
needed to enjoy meaningful access to the benefits of a public
education and that were available as reasonable
accommodations. Id. at 1097–98. A plaintiff can also satisfy
prong two by showing that the program denied her
meaningful access to public education through another
means, such as by violating a regulation that implements
section 504’s prohibitions. Lemahieu, 513 F.3d at 938–39;
see Alexander v. Choate, 469 U.S. 287, 301 (1985)
(interpreting section 504 to “requir[e] that an otherwise
qualified handicapped individual must be provided with
meaningful access to the benefit that the grantee offers”).
Finally, to prevail on a claim for damages under section
504 and Title II, “plaintiffs must prove a mens rea of
‘intentional discrimination’ . . . [and] that standard may be
met by showing ‘deliberate indifference,’ . . . not only by
issues that prevent summary judgment under either standard, the
differences between them are not of consequence here.
16 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.
showing ‘discriminatory animus.’” Lemahieu, 513 F.3d at
938 (quoting Duvall, 260 F.3d at 1138). Under our case law,
“[d]eliberate indifference requires both knowledge that a
harm to a federally protected right is substantially likely, and
a failure to act upon that . . . likelihood.” Duvall, 260 F.3d at
1139. The plaintiff establishes the requisite knowledge (or
notice) on behalf of the defendant when she shows that she
“alerted the public entity to [her] need for accommodation (or
where the need for accommodation is obvious, or required by
statute or regulation).” Id.
“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 accommodation to
disabled persons.” Lemahieu, 513 F.3d at 938.
II. The district court improperly dismissed A.G.’s
meaningful access and reasonable accommodation
arguments.
A. Meaningful Access
We have held that a plaintiff may establish denial of
“meaningful access” under section 504 and Title II by
showing there was “a violation of one of the regulations
implementing” section 504, if such violation denied the
plaintiff meaningful access to a public benefit. Mark H. v.
Hamamoto, 620 F.3d 1090, 1096 (9th Cir. 2010). To support
such a cause of action, the regulation must be an
“implementing regulation” within the meaning of Alexander
v. Sandoval, 532 U.S. 275 (2001). See Mark H. v. Lemahieu,
513 F.3d 922, 935 (9th Cir. 2008) (“According to Sandoval,
regulations can only be enforced through the private right of
action contained in a statute when they ‘authoritatively
A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 17
construe’ the statute; regulations that go beyond a
construction of the statute’s prohibitions do not fall within the
implied private right of action, even if valid.” (quoting
Sandoval, 532 U.S. at 284)).
On appeal, plaintiffs argue that defendants denied A.G.
meaningful access to educational benefits by violating two of
section 504’s regulations: 34 C.F.R. § 104.33(b)(1) and 34
C.F.R. § 104.34(a). Section 104.33 requires a school district
to provide “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”
cross-referenced regulations, including § 104.34 among
others. 34 C.F.R. § 104.33(b)(1) (emphasis added). Plaintiffs
claim that A.G.’s placement at Roadrunner denied her
meaningful access because certain educational opportunities
such as art, music, and gifted classes were not available at
Roadrunner, and because she was inappropriately placed in
the Intervention Room for a total of approximately sixty
hours. They also claim that the school district defendants
denied A.G. meaningful access to the curriculum at both
Vista Verde and Roadrunner because they failed to provide
her appropriate behavioral supports and services at the two
schools, as reflected in her allegedly deficient IEPs.
Therefore, plaintiffs argue, A.G.’s educational opportunities
at Vista Verde and Roadrunner were not “as adequate[] as”
those provided to her peers at Vista Verde. 34 C.F.R.
§ 104.33(b)(1)(i).
Section 104.34 mandates that a disabled student be placed
in the least restrictive “regular educational environment[,]”
and requires that school districts comply with various
18 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.
evaluative procedures and justify any changes in placement.
34 C.F.R. § 104.34(a). Plaintiffs argue that the school district
transferred her to Roadrunner school without complying with
§ 104.34’s procedural requirements, and that this transfer
prevented her from accessing certain educational
opportunities.
The district court dismissed plaintiffs’ meaningful access
argument. In doing so, it appeared to reason that A.G.’s
parents’ consent to placement at Roadrunner waived the
claim. The district court also ruled that A.G. was not
“qualified” to participate in the art, music, and gifted
education classes of which she claimed to be deprived,
because “she had repeatedly refused to do so at Vista Verde.”
Finally, the court noted that A.G.’s parents participated in the
IEP team meetings where they had an opportunity to raise
concerns that Roadrunner’s behavioral policies were
inappropriate for students diagnosed with autism.
The district court’s reliance on A.G.’s parents’ consent
was misplaced. We have previously held that claims
challenging the placement of a disabled child are not barred
simply because the parents of the child consent, or fail to
object, to such placement. J.W. ex rel. J.E.W. v. Fresno
Unified Sch. Dist., 626 F.3d 431, 447 (9th Cir. 2010). The
conclusion in J.W. arose from an IDEA claim rather than
claims under section 504 or Title II, but we are persuaded that
a claim that meaningful access has been improperly denied
within the meaning of these latter statutes is not “precluded
or waived based on a parent’s consent to an IEP,” id., at least
where the issue is one that requires specialized expertise a
parent cannot be expected to have. Cf. id. (providing that
parents’ affirmative insistence on an intervention, such as
mainstreaming, may be a relevant consideration in
A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 19
meaningful access analysis). Given the complex presentation
of A.G.’s behavioral challenges, the question whether
Roadrunner was an appropriate placement for A.G. required
specialized expertise. Because the district court relied on
A.G.’s parents’ consent to placement at Roadrunner in
dismissing plaintiffs’ meaningful access claim without
evaluating whether A.G.’s educational needs were met as
adequately as those of her non-disabled peers, its decision
must be reversed and remanded.
That said, on remand the district court will need to
evaluate in the first instance whether plaintiffs have a valid
claim under these or other section 504 regulations. See
Lemahieu, 513 F.3d at 939–40. It is unclear from the
appellate record exactly which regulations plaintiffs allege
were violated by defendants and which violations allegedly
prevented A.G. from meaningfully accessing public
education. Thus, on remand, the district court should evaluate
(1) which claims for violation of section 504 regulations
plaintiffs preserved; (2) whether those regulations “fall within
the scope of the prohibition contained in § 504 itself,”
Lemahieu, 513 F.3d at 935 (citing Sandoval, 532 U.S. at 284);
(3) whether the school district violated those regulations; and
(4) whether the school district’s violation of those regulations
prevented A.G. from accessing her public education,
Hamamoto, 620 F.3d at 1101.
B. Reasonable Accommodation
A plaintiff may establish prohibited discrimination under
section 504 and Title II by showing that a public entity denied
her a “reasonable accommodation” necessary to achieve
meaningful access to her education. To succeed on such a
claim, a plaintiff must show that the “defendant failed to
20 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.
make reasonable modifications that would accommodate the
plaintiff’s disability without fundamentally altering the nature
of the program or activity,” 1 Americans with Disabilities:
Practice and Compliance Manual § 1:247 (2015); Wong v.
Regents of the Univ. of Cal., 192 F.3d 807, 816 (9th Cir.
1999), and that the accommodation would have enabled her
to meet the “program’s essential eligibility requirements.”
E.R.K. ex rel. R.K. v. Haw. Dep’t of Educ., 728 F.3d 982, 992
(9th Cir. 2013).
Relying on the report and deposition testimony of their
behavioral psychologist expert, Dr. Jolenea B. Ferro, PhD.,
BCBA-D, plaintiffs argued below that A.G. needed further
behavioral services, including a full time behavioral aide, to
meaningfully access her education. They also assert that the
school district’s inquiry into these accommodations would
have demonstrated that they were necessary, reasonable, and
available and that they would have allowed A.G. to continue
her education at Vista Verde rather than be transferred to
Roadrunner.
The district court dismissed this claim, noting that “[o]n
the evidence presented, it cannot be assumed that if A.G. had
been provided a Functional Behavior Assessment, a Behavior
Intervention Plan, and a full-time behavioral aide, she would
have had fewer behavior problems and would not have posed
a danger to herself and others.” But this conclusion directly
contradicts the conclusions of Dr. Ferro, whose report and
testimony plaintiffs submitted in support of their reasonable
accommodation claim. Dr. Ferro stated that A.G.’s outbursts
at Vista Verde “demonstrate[d] that AG needed the
accommodations of an FBA and a BIP to have meaningful
access to her education.” Dr. Ferro’s opinions were
corroborated by evidence that A.G.’s classroom teacher
A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 21
believed that A.G. needed more behavioral support and that
the teacher sought assistance to better meet A.G.’s needs.
This evidence creates an issue of material fact as to whether
accommodations, such as a personal behavioral aide, would
have helped A.G. remain at Vista Verde. Moreover,
defendants did not dispute in the district court or on appeal
that a full-time aide could have been available.
The district court also observed that A.G.’s parents never
requested some of the services she later argued the school
district should have provided. We agree with this observation,
but it overlooks that A.G.’s parents did not have the
expertise—nor the legal duty—to determine what
accommodations might allow A.G. to remain in her regular
educational environment. See 1 Americans with Disabilities:
Practice and Compliance Manual § 1:247 (2015) (“[A]
plaintiff’s failure to expressly ‘request’ an accommodation is
not fatal to a claim where the defendant otherwise had
knowledge of an individual’s disability and needs but took no
action.”); Duvall, 260 F.3d at 1136 (Section 504 “create[s] a
duty to gather sufficient information from the disabled
individual and qualified experts as needed to determine what
accommodations are necessary.”).
As a consequence, we conclude that a triable factual
dispute exists as to whether the services plaintiffs fault the
school district for failing to provide were actually reasonable,
necessary, and available accommodations for A.G. Thus,
summary judgment on this issue was improper. See Fed. R.
Civ. P. 56(a).6
6
In locating the existence of a genuine issue of material fact on the
question of reasonable accommodations, we express no opinion on
whether the accommodations discussed in Dr. Ferro’s report were
22 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.
C. Deliberate Indifference
Where, as here, the plaintiff seeks damages under section
504 and the ADA, she must show the defendant had notice of
her need for an accommodation and “fail[ed] to act.” Duvall,
260 F.3d at 1139. She can establish notice by showing that
she “alerted the public entity to [her] need for
accommodation;” or that “the need for accommodation [was]
obvious, or required by statute or regulation.” Id. When an
entity is on notice of the need for accommodation, it “is
required to undertake a fact-specific investigation to
determine what constitutes a reasonable accommodation.” Id.
The district court dismissed plaintiffs’ damages claims
after concluding from Dr. Ferro’s deposition testimony that
plaintiffs did not show the school district was on notice of the
need for accommodations. Specifically, the district court
relied on Dr. Ferro’s testimony that some of the services that
plaintiffs claim were necessary were “not legally required by
federal or state statute.”
Reliance on this testimony was error for three reasons.
First, Dr. Ferro was not in a position to provide an expert
legal opinion. See, e.g., Hangarter v. Provident Life &
Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (“[A]n
expert witness cannot give an opinion as to her legal
conclusion, i.e., an opinion on an ultimate issue of law.
Similarly, instructing the jury as to the applicable law is the
distinct and exclusive province of the court.” (internal
citations omitted)). Second, though the district court
reasonable, necessary, and available or even whether all of the
interventions she discussed qualify as “accommodations” within the
meaning of Section 504. These are questions to be evaluated on remand.
A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 23
acknowledged the three distinct means for establishing that
the school district had notice of the need for accommodation,
it conflated the latter two means for establishing notice when
it concluded: “[i]f legal necessity was not obvious to Dr.
Ferro, then it cannot be assumed that it would be obvious to
Defendants.” But the fact that an accommodation was legally
required by statute or regulation serves as an independent
basis to establish notice, Duvall, 260 F.3d at 1139; whether
the need for accommodation was obvious is a separate factual
inquiry. Id. (“When the plaintiff has alerted the public entity
to his need for accommodation (or where the need for
accommodation is obvious, or required by statute or
regulation), the public entity is on notice that an
accommodation is required, and the plaintiff has satisfied the
first element of the deliberate indifference test.” (emphasis
added)).
Third, the district court erred in failing to recognize that
there exists a genuine factual dispute as to whether the need
for accommodations was obvious. Dr. Ferro testified—
improperly and without citation to authority—that the
accommodation was not legally required, but she never
testified that the need for accommodation was not obvious.
To the contrary, Dr. Ferro asserted in her expert report that
the documented deterioration in A.G.’s behavior should have
triggered accommodations. Plaintiffs also introduced an
email from one of A.G.’s teachers complaining that the
existing behavioral support regime was insufficient to meet
A.G.’s needs, and evidence that A.G.’s parents had
previously requested a full-time behavioral aide for A.G. The
school district does not expressly rebut plaintiffs’ assertion
that A.G.’s deteriorating behavior made the need for
accommodations obvious but cites instead to the IEP
Addendum and argues that it shows A.G. was able to access
24 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.
her special education classes without the implementation of
further services. The parties’ competing assertions on this
point only establish that a factual dispute exists regarding
whether the need for accommodation was obvious and
whether the school district was therefore constructively on
notice of the need.
In light of the foregoing, we reverse the district court’s
order granting summary judgment in favor of the school
district on plaintiffs’ section 504 and Title II claims and
remand for further consideration consistent with this opinion.
III. Arizona State Law Tort Claims
Plaintiffs also brought tort claims against the school
district defendants under Arizona law. The district court
dismissed all of these claims, and we reverse in part this
portion of the district court’s order.7
A. Intentional and Negligent Infliction of Emotional
Distress
To establish a claim for intentional infliction of emotional
distress (“IIED”) under Arizona law, a plaintiff must prove:
(1) extreme and outrageous conduct by the defendant; (2)
intent to cause emotional distress or reckless disregard of the
near certainty that such distress will result from the
defendant’s conduct; and (3) severe emotional distress on the
plaintiff’s part that occurs as a result. Citizen Publ’g Co. v.
Miller, 115 P.3d 107, 110 (Ariz. 2005) (en banc). A plaintiff
7
Because plaintiffs expressly declined to appeal the district court’s
grant of summary judgment on their negligent supervision claim, we do
not reach that claim.
A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 25
must show that the defendant’s acts were “so outrageous in
character and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious
and utterly intolerable in a civilized community.” Mintz v.
Bell Atl. Sys. Leasing Int’l, Inc., 905 P.2d 559, 563 (Ariz. Ct.
App. 1995) (citing Cluff v. Farmers Ins. Exch., 460 P.2d 666,
668 (Ariz. Ct. App. 1969)).
To determine whether a defendant’s conduct was
outrageous and a plaintiff’s emotional distress severe,
Arizona courts have traditionally considered “defendant’s
knowledge that the plaintiff is peculiarly susceptible to
emotional distress by reason of some physical or mental
condition.” Lucchesi v. Frederic N. Stimmell, M.D., Ltd., 716
P.2d 1013, 1016 (Ariz. 1986) (in banc) (citations omitted).
This focus on the plaintiff’s susceptibility to emotional
distress is also referred to as the “eggshell plaintiff” rule. See
Yanes v. Maricopa County, No. CV-11-0274, 2012 WL
5989327, at *5 n.9 (Ariz. Ct. App. Nov. 8, 2012) (“The
Restatement clearly recognizes the application of the eggshell
plaintiff rule to claims for intentional infliction of emotional
distress.” (citing Restatement (Second) of Torts § 46 cmt. j
(Am. Law. Inst. 1965))); see also Restatement (Second) of
Torts § 46 cmt. f (“The extreme and outrageous character of
the conduct may arise from the actor’s knowledge that the
other is peculiarly susceptible to emotional distress, by reason
of some physical or mental condition or peculiarity.”).
Despite this necessarily fact-intensive analysis, it is only
when reasonable minds could differ in determining whether
conduct is sufficiently extreme or outrageous that an IIED
claim should survive summary judgment. Mintz, 905 P.2d at
563. Here, the district court ruled that plaintiffs failed to raise
a genuine issue of material fact showing the school district
26 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.
defendants’ conduct was extreme and outrageous. We agree.
While Officer Welsh’s actions arresting A.G. likely would
have warranted review by a jury to decide whether they were
extreme or outrageous, plaintiffs settled all claims against
Welsh and the City of Phoenix.8 Viewing the evidence in
plaintiffs’ favor, the conduct fairly attributable to the school
district defendants—failure to research whether interventions
were appropriate and to provide the necessary
accommodations, touching A.G.’s legs in an effort to restrain
her, escorting A.G. to the Intervention Room, attempting to
seat A.G., and enlisting Officer Welsh’s assistance—was not
“so outrageous in character and so extreme in degree, as to go
beyond all possible bounds of decency,” Mintz, 905 P.2d at
563, even considering the “eggshell plaintiff” principle.
Because there is no material issue of fact concerning the
school district’s conduct, plaintiffs’ IIED claim was correctly
dismissed.
The negligent infliction of emotional distress (“NIED”)
claim was also correctly dismissed. The district court found
the facts alleged by plaintiffs did not rise to the predicate
level typically required for such a claim in Arizona. Plaintiffs
mention the NIED claim in their opening brief, but their reply
brief makes clear that they did not intend to preserve this
cause of action when they settled with defendants City of
Phoenix and Officer Welsh. We affirm the district court’s
dismissal of this claim.
8
Although the settlement agreement is not part of the record on appeal,
the plaintiffs agree that they are “not relying on the actions of Officer
Welsh” to support their tort claims.
A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 27
B. Assault and Battery
To establish a claim for battery under Arizona law, the
plaintiff must allege that the defendant intentionally engaged
“in an act that results in harmful or offensive contact with the
person of another.” Duncan v. Scottsdale Med. Imaging, Ltd.,
70 P.3d 435, 438 (Ariz. 2003) (en banc) (citing Restatement
(Second) of Torts §§ 13, 18). Similarly, a claim for common-
law assault requires that the plaintiff allege that the defendant
acted “with intent to cause another harmful or offensive
contact or apprehension thereof, and the other person
apprehend[ed] imminent contact.” Garcia v. United States,
826 F.2d 806, 809 n.9 (9th Cir. 1987) (citing Restatement
(Second) of Torts § 21) (applying Arizona law). The two
claims are the same except that assault does not require the
offensive touching or contact. Id. Both require the defendant
have the requisite intent. Chappell v. Wenholz, 247 P.3d 192,
195 (Ariz. Ct. App. 2011) (“Battery is an intentional tort
under Arizona law.”); Blankinship v. Duarte, 669 P.2d 994,
999 (Ariz. Ct. App. 1983) (characterizing assault and battery
as intentional torts).
Plaintiffs assert that in order to prevail on claims for
assault and battery in Arizona, a plaintiff need only show that
a defendant intended an act, and that the act caused harmful
or offensive conduct. Plaintiffs are mistaken. Under Arizona
law, “the act that caused the harm will qualify as intentional
conduct only if the actor desired to cause the consequences—
and not merely the act itself—or if he was certain or
substantially certain that the consequences would result from
the act.” Mein ex rel. Mein v. Cook, 193 P.3d 790, 794 (Ariz.
Ct. App. 2008). In this respect, Arizona law follows the
principle from the Restatement (Second) of Torts that: “If the
actor knows that the consequences are certain, or
28 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.
substantially certain, to result from his act, and still goes
ahead, he is treated by the law as if he had in fact desired to
produce the result.” Mein, 193 P.3d at 794 (quoting
Restatement (Second) of Torts § 8A cmt. b) (emphasis
omitted).
Although the district court recited this correct legal
standard, it applied it incorrectly. Here, plaintiffs introduced
evidence that creates an issue of fact as to whether the school
district defendants physically escorted and restrained A.G.
when she was not a danger to herself or others and despite
knowing of her tactile sensitivity.9 Viewed in plaintiffs’
favor, this evidence prevents entry of summary judgment. See
Duncan, 70 P.3d at 438 (Arizona law provides a remedy for
intentional acts that result in “harmful or offensive contact”);
see also Garcia, 826 F.2d at 809 n.9. As a consequence,
summary judgment on plaintiffs’ assault and battery claims
was improper.10
9
We recognize that, in certain circumstances, restraining a child with
tactile sensitivity may be necessary to prevent the child from engaging in
behavior that is self-injurious or injurious to others. Here, plaintiffs agree
that school district staff were authorized to physically restrain A.G. if she
became a danger to herself or others. But A.G.’s mother and Officer
Welsh testified in their respective depositions that A.G. was not a danger
to herself or others when district staff physically escorted her to the
intervention room on two occasions. Furthermore, according to Principal
Lorna Green, Roadrunner school had a policy of physically escorting
children who were not a danger to themselves or others, notwithstanding
a particular child's tactile defensiveness.
10
The parties stipulated that A.G. would not testify. The district court
seemed to conclude that the assault and battery claims could not be
established without A.G.’s testimony that what she experienced was
harmful or offensive, or that she was put in imminent apprehension of
receiving such contact. We do not agree that A.G. was required to testify
A.G. V. PARADISE VALLEY UNIFIED SCH. DIST. 29
C. False Imprisonment
To establish a claim for false imprisonment in Arizona, a
plaintiff must show detention without consent or lawful
authority. See Slade v. City of Phoenix, 541 P.2d 550, 552
(Ariz. 1975) (in division). “The essential element necessary
to constitute either false arrest or false imprisonment is
unlawful detention.” Id. “[W]here a person is a danger to
[herself] or others because of [her] mental condition, . . . it is
lawful to restrain [her] so long as necessary until other lawful
measures can be followed.” Furrh v. Ariz. Bd. of Regents, 676
P.2d 1141, 1146 (Ariz. Ct. App. 1983).
Plaintiffs argue that the school district falsely imprisoned
A.G. when they physically restrained her, despite A.G.’s IEP
Addendum providing that she would not be restrained unless
she presented a danger to herself or others, and the district’s
training manuals directing staff to stop transporting a student
who is struggling against an escort. The district court ruled
that, in light of the numerous instances reflected in the record
where A.G. is alleged to have presented a danger to herself or
others, there was evidence that she presented such a danger
on February 3, 2010 and March 23, 2010, dates when
defendants could not have avoided restraining her. But the
district court neglected to consider the evidence in the record
showing that A.G. presented no such danger on those
occasions. Because plaintiffs introduced evidence sufficient
to create a genuine issue of material fact as to whether A.G.
was a danger to herself or others when school district staff
to support these claims. See State v. Angle, 720 P.2d 100, 105 (Ariz. Ct.
App. 1985), affirmed in part, vacated in part on other grounds, 720 P.2d
79 (Ariz. 1986).
30 A.G. V. PARADISE VALLEY UNIFIED SCH. DIST.
restrained her, summary judgment on plaintiffs’ false
imprisonment claim was improper.11
IV. Taxation of Costs
Because it is necessary to reverse the order granting
summary judgment on plaintiffs’ section 504 and Title II
claims, the order denying costs to the defendants is vacated.
See Atonio v. Wards Cove Packing Co., 10 F.3d 1485, 1504
(9th Cir. 1993) (citing Garrett v. City & County of San
Francisco, 818 F.2d 1515, 1521 (9th Cir. 1987)).
REVERSED in part; AFFIRMED in part; VACATED
in part; and REMANDED. Each party shall bear its own
costs on appeal.
11
We hold that the district court erred in granting summary judgment
on plaintiffs’ assault, battery, and false imprisonment claims because
plaintiffs succeeded in raising a genuine issue of material fact as to each
of these claims. See, e.g., Tekle v. United States, 511 F.3d 839, 854–55
(9th Cir. 2006). We express no view on what the result should be on any
of those claims on remand.