Opinion
Case No.: CV 20-9127-CBM(Ex)
2021-09-09
M. C., Plaintiff, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, et al., Defendants.
Andria Kyung Ah Seo, Melinda Ruth Bird, Disability Rights California, Los Angeles, CA, Lauren Misako Lystrup, Disability Rights California, Sacramento, CA, David Ward German, Vanaman German LLP, Sherman Oaks, CA, for Plaintiff. David R. Mishook, Fagen Friedman and Fulfrost LLP, Oakland, CA, Summer Danielle Dalessandro, Lozano Smith, San Diego, CA, for Defendant Los Angeles Unified School District. Amy E. Bisson Holloway, Keith Tohru Yamanaka, Sarah Kalas Bancroft, California Department of Education, Sacramento, CA, for Defendant California Department of Education.
Andria Kyung Ah Seo, Melinda Ruth Bird, Disability Rights California, Los Angeles, CA, Lauren Misako Lystrup, Disability Rights California, Sacramento, CA, David Ward German, Vanaman German LLP, Sherman Oaks, CA, for Plaintiff.
David R. Mishook, Fagen Friedman and Fulfrost LLP, Oakland, CA, Summer Danielle Dalessandro, Lozano Smith, San Diego, CA, for Defendant Los Angeles Unified School District.
Amy E. Bisson Holloway, Keith Tohru Yamanaka, Sarah Kalas Bancroft, California Department of Education, Sacramento, CA, for Defendant California Department of Education.
ORDER RE: DEFENDANT CALIFORNIA DEPARTMENT OF EDUCATION'S MOTION TO DISMISS [DKT. 39.]
CONSUELO B. MARSHALL, UNITED STATES DISTRICT JUDGE
The matter before the Court is Defendant California Department of Education's ("CDE") Motion to Dismiss. (Dkt. 39.) The matter is fully briefed. (Dkt. 40, 41.)
I. BACKGROUND
Plaintiff M.C. was a ten-year-old third grade student at the time of the hearing before the Administrative Law Judge ("ALJ"). (Dkt. 35-1 Second Amended Complaint ("SAC"); Administrative Decision "Decision" at 3.) Plaintiff attended a public school located in the Los Angeles Unified School District (the "District") and was deemed eligible for special education and related services due to Down-syndrome. (Id. at 6, 3.)
During the 2018-2019 school year, the District placed Plaintiff in a regular second grade class with an alternative curriculum, aide support and related services. (Id. at 4.) Similarly, for the 2019-2020 school year, the District placed Plaintiff in a regular third grade class with an alternate curriculum, aide support and related services. (Id. at 4.) Plaintiff's claim is based on the time period between the end of the 2018-2019 regular school year and the start of the 2019-2020 regular school year (the "extended school year"). (Id.) The Individuals with Disabilities Education Act ("IDEA") defines "least restrictive environment" as the education of disabled children with non-disabled children as much as possible. 20 U.S.C. § 1412(a)(5)(A). To provide the least restrictive environment, school districts must ensure: 1) that children with disabilities are educated with non-disabled peers; and 2) that special classes or separate schooling occur only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. Id. IDEA requires that the state agency have an Individualized Education Program ("IEP") in effect for each child with a disability. 20 U.S.C. § 1414(d)(2)(A).
The District had a Title 1 funded program (Extended Learning Opportunity Summer) during the summer of 2019, to assist at-risk students enrolled in the lowest performing schools in the District. (Id. at 11.) Plaintiff's school was not eligible to receive Title 1 funding, nor was Plaintiff an "at-risk" student in need of credit recovery for language arts to have been eligible for the program. (Id.)
At the April 3, 2019, IEP meeting, the IEP team determined that Plaintiff's least restrictive environment during the regular school year was a regular class with non-disabled peers. (Id. at 8.) The IEP team discussed other placement options for the extended school year, including a special day class environment. (Id. at 10.) The District operated both a mild/moderate special day class and a moderate/severe special day class during the extended school year. (Id. at 8.) The mild/moderate special day class was identified as a core curriculum, specific learning disorder, special day class, called SLD SDC. (Id.) The SLD SDC used the core curriculum taught by a special education teacher with a mild/moderate teaching credential. (Id.) Work was taught at grade level, without modifications. (Id.) The moderate/severe special day class, called the alternate curriculum SDC, was taught by a special education teacher with a moderate/severe teaching credential. (Id.) Each of these two special day classes consisted solely of disabled students. (Id. at 9.) The work in the alternative curriculum SDC class was modified. (Id. at 8-9.)
During the meeting, Parent requested the SLD SDC class for Plaintiff's extended school year. (Id. at 9.) However, Plaintiff required an alternate curriculum to meet his IEP goals, which included goals for functional writing, functional reading, and functional math. (Id.) To meet Plaintiff's unique needs, the District offered Plaintiff an individual behavior aide, adapted physical education, speech and language services, occupational therapy, and recreational therapy during the extended school year. (Id.) Parent consented to all parts of the April 3, 2019 IEP, except for the extended school year placement that included an alternate curriculum because Parent did not believe the alternate curriculum SDC was the least restrict environment for Plaintiff. (Id. at 10.) The District denied Parent's request and Plaintiff did not attend any school placement during the 2019 extended school year. (Id.)
Plaintiff filed a Complaint with the Office of Administrative Hearing ("OAH") against the District but did not name the CDE as a party to the suit. Plaintiff argued that special education during the extended school year should have been offered to him in the least restrictive environment, which should have included non-disabled peers in a regular classroom setting. (Id. at 5.) The District's academic intervention administrator Nancy Robinson and Dr. James Koontz, the District's moderate/severe program coordinator, testified at the hearing that the Extended Learning Opportunity Summer program was not a regular class and therefore was not considered a least restrictive environment option for Plaintiff. (Id.) Pursuant to § 3043(g), a school district is relieved of the obligation to place a special education student in a general education program if the district offers no regular summer school programs. 5 Cal. Code of Regs, tit. 5, § 3043(g). Thus, if during the regular academic year an individual's IEP specifies integration in the regular classroom, the District is not required to meet that component of the IEP if no regular summer school programs are being offered by that agency. Id.
The ALJ found that Plaintiff failed to prove that he was denied a free appropriate public education ("FAPE") because the District did not offer him placement in a regular class during the 2019 extended school year and failed to prove the District predetermined the IEP offer or if it was predetermined, impeded Plaintiff's right to a FAPE. (Id. at 20.)
Plaintiff, by and through his guardian ad litem S.B., filed a Complaint for review of the ALJ's decision in this Court against the District, the CDE and the State Superintendent, and alleged the following causes of action against CDE for its promulgation and regulation of § 3043(g) : Violation of IDEA, Violation of Americans with Disabilities Act ("ADA"), and Violation of Section 504 of the Rehabilitation Act of 1973. (Dkt. 35.)
II. JURISDICTION
The Court has jurisdiction over this action under the Individuals with Disabilities Education Act ("IDEA"). 20 U.S.C. § 1400 et seq.
III. LEGAL STANDARD
To survive a motion to dismiss, the complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Salameh v. Tarsadia Hotel , 726 F.3d 1124, 1129 (9th Cir. 2013) (citations omitted). The plausibility standard requires more than the sheer possibility or conceivability that a defendant has acted unlawfully. Id. "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Ashcroft , 556 U.S. at 678, 129 S.Ct. 1937. (citations and punctuation omitted). "Dismissal is proper under Rule 12(b)(6) if it appears beyond doubt that the non-movant can prove no set of facts to support its claims." Id. (quoting Adams v. Johnson , 355 F.3d 1179, 1183 (9th Cir. 2004) ).
IV. DISCUSSION
A. IDEA Framework
"The IDEA offers federal funds to States in exchange for a commitment: to furnish a ‘free appropriate public education’—more concisely known as a FAPE—to all children with certain physical or intellectual disabilities." Fry v. Napoleon Cmty. Sch. , ––– U.S. ––––, 137 S. Ct. 743, 748, 197 L.Ed.2d 46 (2017). Once a public educational agency accepts the IDEA's financial assistance, an eligible child acquires a "substantive right" to a FAPE. Id. at 749. "[A] FAPE comprises ‘special education and related services’—both ‘instruction’ tailored to meet a child's ‘unique needs’ and sufficient ‘supportive services’ to permit the child to benefit from that instruction." Id. at 748-49. "Under the IDEA, an ‘individualized education program,’ called an IEP for short, serves as the ‘primary vehicle’ for providing each child with the promised FAPE." Id. at 749. A FAPE requires public educational agencies to provide an eligible disabled student with an education in the "least restrictive environment." 20 U.S.C. § 1412(a)(5).
B. Procedural Arguments
1. Administrative Remedies
CDE asserts Plaintiff failed to exhaust administrative remedies against CDE by failing to obtain a ruling against CDE before an ALJ. Plaintiff asserts naming CDE as a respondent in a complaint before OAH would be futile because OAH does not have jurisdiction over the CDE.
The exhaustion doctrine embodies the notion that "agencies, not the courts, ought to have primary responsibility for the programs that Congress has charged them to administer." Hoeft v. Tucson Unified Sch. Dist. , 967 F.2d 1298, 1303 (9th Cir. 1992). A dissatisfied parent may begin the administrative formal procedure by filing a complaint as to any matter concerning the provision of a FAPE with the local or state educational agency (as state law provides). See § 1415(b)(6). That pleading generally triggers a "[p]reliminary meeting" involving the contending parties, § 1415(f)(1)(B)(i) ; at their option, the parties may pursue a full-fledged mediation process. See § 1415(e). The matter then proceeds to a "due process hearing" before an impartial hearing officer. § 1415(f)(1)(A) ; see § 1415(f)(3)(A)(i). Any decision of the officer granting relief must be "based on a determination of whether the child received a [FAPE]." § 1415(f)(3)(E)(i).
"[T]here are certain situations in which it is not appropriate to require the use of due process and review procedures set out in [ 20 U.S.C. § 1415(b) and (c) ] of the [IDEA] before filing a lawsuit." Hoeft , 967 F.2d at 1303. These include complaints where: "(1) it would be futile to use the due process procedures ...; (2) an agency has adopted a policy or pursued a practice of general applicability that is contrary to the law; (3) it is improbable that adequate relief can be obtained by pursuing administrative remedies (e.g., the hearing officer lacks the authority to grant the relief sought)." Id. 1303-04.
In Stassart v. Lakeside Joint Sch. Dist. , C 09-1131 JF, 2009 WL 2566717, at *4-5, 2009 U.S. Dist. LEXIS 72841, at *12-13 (N.D. Cal. Aug. 18, 2009), the plaintiff filed a complaint before an OAH, and did not name CDE as a party in the administrative proceeding. Id. The complaint alleged that CDE staff failed to act in a timely manner to investigate and resolve the parent's complaints. Id. 2009 WL 2566717, at *4-5, 2009 U.S. Dist. LEXIS 72841 at *13. The court granted CDE's motion to dismiss and found "where a state agency is not made a party to an administrative proceeding, it is denied the opportunity to remedy the wrong complained of, and claims with respect to that agency will not be considered to have been exhausted." Most notably, the court reasoned that the plaintiff's complaint had not pled futility of administrative exhaustion with respect to the CDE, specifically. See id. 2009 WL 2566717, at *5, 2009 U.S. Dist. LEXIS 72841 at *14 (The plaintiff's complaint only alleged "it would be futile to continue filing complaints alleging the same violations and requesting the same relief."). In contrast, Plaintiff's SAC alleges "[n]aming CDE as a respondent in a complaint before the OAH is futile ... because OAH would immediately dismiss CDE from the proceeding." (SAC ¶ 106.)
Despite Plaintiff's failure to assert a futile argument in his Opposition, it likely would have been futile for Plaintiff to name the CDE as a party to the complaint before the OAH. OAH has jurisdiction to hear cases alleging a public agency provided special education and related services. The CDE has general supervisory responsibility over local education agencies. 20 U.S.C. § 1412(a)(11). CDE is only required to provide services if a local education agency ("LEA" or school district) is unable or unwilling to establish and maintain programs in compliance with the IDEA. Everett H v. Dry Creek Joint Elem. Sch. Dist. , No. 2:13-cv-00889-MCE, 2016 U.S. Dist. LEXIS 136270, at *6 (E.D. Cal. Sept. 30, 2016); 20 U.S.C. § 1413(g)(1) (State Education Agency ("SEA" or CDE) must "provide special education and related services directly to children with disabilities" if the SEA determines that an LEA "unable to establish and maintain programs of free appropriate public education"). Neither Plaintiff's SAC, nor its complaint before the OAH alleges CDE provided special education or related services to Plaintiff.
During the hearing on June 8, 2021, when asked by the Court to address futility, Plaintiff's counsel stated that the "argument of futility is not necessary" based on the facts in this case, but asked the court to consider futility if the Court finds Plaintiff has not satisfied exhaustion.
Plaintiff bears the burden to prove futility or inadequacy of the IDEA procedures. Doe v. Ariz. Dep't of Educ. , 111 F.3d 678, 681 (9th Cir. 1997). After the filing of the Complaint in this Court, Plaintiff filed a complaint against CDE before the OAH alleging a violation of IDEA, ADA and Section 504. Student [M.C.] v. Cal. Dep't of Educ., et al. , OAH Case No. 2021040099 (Apr. 16, 2021). In the complaint before the OAH, Plaintiff alleged that CDE's promulgation of § 3043(g) is "contrary to the IDEA's least restrictive environment requirement" and sought an injunction requiring CDE to withdraw § 3043(g). (Dkt. 47-2.) In CDE's motion to dismiss for lack of jurisdiction before the OAH, CDE argued that OAH did not have jurisdiction over the CDE because an agency subject to due process hearing for the purported denial of FAPE must be "providing special education or related services" and must be "involved in decisions regarding the pupil." The OAH granted CDE's motion holding that the court lacked jurisdiction. Before this Court, Plaintiff similarly alleged CDE's promulgation of § 3043(g) "permits districts to disregard IDEA's requirement for placement in the least restrictive setting," the regulation is "contrary to IDEA," and seeks an injunction requiring CDE to withdraw § 3043(g). (SAC ¶¶ 6, 7.) CDE takes the position that Plaintiff should be required to name the CDE as a party before an OAH, even though Plaintiff's FAC does not allege that the CDE provides "special education or related services."
In G.M. ex rel. Marchese v. Drycreek Joint Elem. Sch. Dist. , 2:10-cv-00944-GEB, 2011 WL 9793, at *7, 2010 U.S. Dist. LEXIS 137896, at *21 (E.D. Cal. Dec. 30, 2010), the court found that the plaintiffs failed to show futility and noted that the plaintiffs "could have filed for another due process hearing and named ... the CDE." (brackets omitted).
At least three other district courts in this circuit have noted that the CDE was dismissed from the administrative process for lack of jurisdiction. S.B. v. Cal. Dep't of Educ. , 327 F. Supp. 3d 1218, 1231, 1242 (E.D. Cal. Aug. 27, 2018) (dismissing claims against CDE for failure to exhaust and noting that OAH dismissed CDE after determining that the claims against CDE were outside the scope of OAH's jurisdiction and the relief Plaintiffs sought was "outside the OAH's jurisdiction to grant"); Paul G. v. Monterey Peninsula Unified Sch. Dist. , No. 16-cv-05582-BLF, 2018 WL 2763302 at *8-9, 2018 U.S. Dist. LEXIS 98183 (N.D. Cal. June 8, 2018) (noting that dismissal of CDE by OAH from the underlying administrative proceedings did not constitute exhaustion of the claim against CDE because the issues involved technical educational matters that required the agency to consider in the first instance); Rivera v. Fremont Union High Sch. Dist. , No. 5:12-CV-05714-EJD, 2013 WL 4674831 at *2, 2013 U.S. Dist. LEXIS 126043 at *2 (N.D. Cal. Aug. 30, 2013) (noting that CDE's dismissal from the underlying administrative proceedings was insufficient to establish exhaustion because a completed administrative proceeding on the merits as to the student was required to exhaust the claims). In contrast to these cases that involved settlements with school districts on the IDEA claims, Plaintiff did obtain a decision from an ALJ on the IDEA claim against the District, which is "necessary to furnish this Court with a record conducive to judicial review." S.B. , 327 F. Supp. 3d at 1257. Thus, this case differs from previous district court cases analyzing jurisdiction.
Furthermore, the relief Plaintiff seeks, an injunction requiring CDE to withdraw Cal. Code Regs. tit. 5, § 3043(g), cannot be addressed by the OAH. Kutasi v. Las Virgenes Unified Sch. Dist. , 494 F.3d 1162, 1163 (9th Cir. 2007) (When determining futility, the question is whether plaintiff "seek[s] relief for injuries that could be redressed to any degree by the IDEA's administrative procedures."). Article III, § 3.5, of the California Constitution provides that:
[A]n administrative agency, including an administrative agency created by the Constitution ... has no power ... (c) to declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination ....
Cal. Const. art. III, § 3.5. OAH "has no power" to declare Cal. Code Regs. tit. 5, § 3043(g) unenforceable or refuse to enforce the statute. Since the relief sought by Plaintiff cannot be provided by the OAH, Plaintiff is not required to exhaust the administrative remedies because requiring him to do so would be futile.
Accordingly, Plaintiff met his burden of showing that exhausting his administrative rights against the CDE would have been futile.
2. Express Private Right of Action
Alternatively, CDE argues Plaintiff does not have an express private right of action against CDE under IDEA. Plaintiff asserts IDEA creates an express private right of action for a party aggrieved by the findings and decision in an underlying OAH due process hearing.
"The only express private right of civil action provided under the IDEA is for an appeal of a decision by the OAH under 20 U.S.C. § 1415(i)(2)(A)." Hunt v. Lincoln Unified Sch. Dist. , No. 2:14-cv-02815-KJM, 2016 U.S. Dist. LEXIS 58283 at *11 (E.D. Cal. May 2, 2016). Pursuant to § 1415(i)(2)(A) :
Any party aggrieved by the findings and decision made under subsection (f) or (k) who does not have the right to an appeal under subsection (g), and any party aggrieved by the findings and decision made under this subsection, shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States, without regard to the amount in controversy.
CDE relies on M.M. v. Lafayette Sch. Dist. , 767 F.3d 842, 860 (9th Cir. 2014), which held §§ 1412(a) and 1415(a) of the IDEA do not provide a private right of action. However, the Circuit's decision was limited to §§ 1412(a) and 1415(a) and did not discuss whether § 1415(i)(2)(A) provided a private right of action. The Circuit in Lafayette also declined to reach whether a private right of action can be implied in §§ 1412 and 1415 of the IDEA. Id. at 890 n.8; Emma C. v. Eastin , No. 96-cv-04179-TEH, 2015 WL 5029283 at *5, 2015 U.S. Dist. LEXIS 113355 (N.D. Cal. Aug. 25, 2015) (" Lafayette merely held that there is no express private right of action under 20 U.S.C. §§ 1412(a) and 1415(a) ; it did not address other sections of the IDEA."). CDE made the same argument before a district court in S.B. v. Cal. Dep't of Educ. , 327 F. Supp. 3d 1218, 1241 (E.D. Cal. 2018). In S.B. , the court held that S.B.’s claims were not precluded for lack of a private right of action under IDEA because CDE failed to show how the broad and express right of action in § 1415(i) did not encompasses plaintiff S.B.’s claim. The decision in S.B. is persuasive and the Court finds Plaintiff has a private right of action under 20 U.S.C. § 1415(i)(2)(A) against the CDE. (SAC ¶ 37.)
C. Allegations of the Complaint: Failure to State a Claim
1. Second Cause of Action: Violation of IDEA
Under the IDEA, a state receiving federal education funding is required to provide a FAPE to disabled children. 20 U.S.C. § 1412(a)(1). Pursuant to § 1412(a)(10)(B)(ii), the State educational agency ("SEA") shall determine "whether such schools and facilities meet standards that apply to State educational agencies and local educational agencies." "[A] state educational agency, such as the [C]DE, can be held liable for IDEA violations when it fails to comply with its duty to assure that the IDEA's requirements are implemented." Jackson v. Pine Bluff Sch. Dist. , No. 4:16CV00301-JM-JTR, 2017 WL 2296896, at *5, 2017 U.S. Dist. LEXIS 81206, at *10-11 (E.D. Ariz. May 12, 2017) (citing Pachl v. Seagren , 453 F.3d 1064, 1070 (8th Cir. 2006) ). See Chavez v. N.M. Pub. Educ. Dep't , 621 F.3d 1275, 1289 (10th Cir. 2010) ("[I]t seems well-established that ... the SEA, is indeed potentially financially responsible for an LEA's failure to comply with its responsibilities."). Thus, to set forth a plausible IDEA claim, "a plaintiff must plead sufficient facts that would allow a reasonable trier of fact to infer that the defendant denied the plaintiff's right to a FAPE." B.D. v. D.C. , No. 15-1139, 2016 WL 11705083 at *2, 2016 U.S. Dist. LEXIS 202543 at *7 (D.D.C. Aug. 11, 2016).
In the SAC, Plaintiff alleges CDE, as the state education agency, is "primarily responsible for the State supervision" of local school districts and ensuring they comply with IDEA requirements. (SAC ¶¶ 32, 37, 92.) Plaintiff further alleges CDE had an obligation to ensure that a FAPE was available to all children with disabilities, and its regulation of § 3043(g) allowed the District to maintain policies which denied Plaintiff a FAPE in the least restrictive environment. (SAC ¶¶ 92, 93, 95.) Lastly, Plaintiff alleges CDE's violations of IDEA caused Plaintiff to suffer substantial educational and developmental losses. Thus, the Court finds Plaintiff sufficiently pled an IDEA claim against CDE.
2. Fourth and Sixth Cause of Action: Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act
To plead a prima facie ADA claim, a plaintiff must allege as follows: (1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of a public entity's services, programs, or activities; (3) he is either excluded from participation in or denied the benefits of the public entity's services, programs, or activities or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was solely by reason of his disability. Sheehan v. City & Cnty. of S.F. , 743 F.3d 1211, 1232 (9th Cir. 2014). Additionally, with respect to a § 504 claim, a plaintiff must plead that the program at issue receives federal assistance. Duvall v. Cnty. of Kitsap , 260 F.3d 1124, 1135 (9th Cir. 2001).
Plaintiff alleges that CDE is a "public entity" within the meaning of Title II of the ADA. (SAC ¶ 128.) Next, Plaintiff alleges CDE's § 3043(g) regulation, which does not require a public education agency to place an individual in a regular classroom if the district does not offer regular summer school programs, excludes him from receiving a FAPE because his IEP specifies integration in a regular classroom. (SAC ¶ 129.) Plaintiff also alleges he is an individual who qualifies for special education services under IDEA on the basis of Intellectual Disability and was denied equal opportunity to benefit from the extended school year services. (SAC ¶¶ 12, 130.) Lastly, Plaintiff alleges the denial was a result of his disability. (SAC ¶ 144.) Thus, the Court finds Plaintiff sufficiently pled an ADA and Section 504 claim against CDE. Langley v. Guiding Hands Sch., Inc. , 2021 WL 1212713, at *7, 2021 U.S. Dist. LEXIS 63302, at *20 (E.D. Cal. Mar. 30, 2021) (denying CDE's motion to dismiss the plaintiff's ADA and § 504 claims for failure to state a claim).
V. CONCLUSION
Accordingly, the Court DENIES CDE's Motion to Dismiss.