Opinion
CV 19-6693-GW-FFMx
03-25-2021
S.T. v. LOS ANGELES UNIFIED SCHOOL DISTRICT, et al.
Mitchell Taebel, Phoenix, AZ, Pro Se.
Mitchell Taebel, Phoenix, AZ, Pro Se.
PROCEEDINGS: RULING ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR AN ORDER TREATING SPECIFIED FACTS AS ESTABLISHED [55]
GEORGE H. WU, UNITED STATES DISTRICT JUDGE
Attached hereto is the Court's Final Ruling. The Court DENIES Plaintiff's motion for partial summary judgment.
Ruling on Motion for Partial Summary Judgment
I. Background
Plaintiff S.T., by and through her guardian ad litem, N.T., sued Defendant Los Angeles Unified School District (the "District") for numerous claims, including violations of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act of 1973 ("the Rehabilitation Act"). See generally First Amended Complaint ("FAC"), Docket No. 10. Before the Court is S.T.’s motion for partial summary judgment. See Plaintiff's Motion for Partial Summary Judgment or in the Alternative for an Order Treating Specified Facts as Established ("Motion"), Docket No. 55.
A. Procedural Background
S.T. is a minor who resides with her parents in Los Angeles County. See FAC ¶ 3. N.T. is S.T.’s mother and legal guardian. See id. ¶ 4. S.T., by and through, N.T., filed her initial Complaint against the District on August 1, 2019, see Docket No. 1, and a First Amended Complaint on September 20, 2019. See FAC. S.T. alleged that she was a qualified individual with a disability within the meaning of Section 504 of the Rehabilitation Act and the Americans with Disabilities Act and brought claims for: (1) violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131, et seq. ; (2) retaliation under the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq. ; (3) discrimination under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) ; (4) retaliation under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) ; (5) violation of the Unruh Act, Cal. Civ. Code § 51 et seq. ; (6) negligence; and (7) negligent supervision. See generally FAC. On January 9, 2021, the Court granted the District's motion to dismiss the FAC as to the state law claims (the fifth, sixth, and seventh claims) and denied the District's motion to dismiss the FAC as to the federal claims (the first through fourth claims). See Docket No. 28.
N.T. is also a Plaintiff in this case but only as to the retaliation claims, which are not at issue in this motion for partial summary judgment. See FAC; Notice of Motion and Motion for Partial Summary Judgment, Docket No. 55, at 1. As such, N.T. is not a moving party here. See Notice of Motion and Motion for Partial Summary Judgment at 1 n.1; Defendant's Opposition to Motion for Partial Summary Judgment, Docket No. 59, at 4 n.2.
S.T. filed the instant motion for partial summary judgment, or in the alternative for an order treating specified facts as established, on January 28, 2021. See Motion. The District filed an opposition brief ("Opp'n"), see Docket No. 59, and S.T. filed a reply brief ("Reply"). See Docket No. 60. Both parties filed evidentiary objections. See Docket Nos. 59-2; 60-2.
S.T. requests summary judgment as to her first cause of action: discrimination under the ADA; and her third cause of action: discrimination under Section 504 of the Rehabilitation Act. See Notice of Motion and Motion for Partial Summary Judgment, Docket No. 55, at 1. She requests a finding of liability only as to the District's alleged "failure to provide instruction and respond to specific accommodation requests in the spring semester of 2017." See id. at 1 n.1; see also Motion at 2. The motion "does not address or waive the remainder of S.T.’s claims regarding discrimination and/or retaliation that occurred during the 2016-17 and 2017-18 school years, or any of N.T.’s retaliation claims during that time." See Notice of Motion and Motion for Partial Summary Judgment at 1 n.1.
B. Factual Background
Some of the underlying "undisputed" facts cited herein have been disputed by S.T. or the District. The Court has reviewed such disputes and has included in this summary only facts that are supported by the cited evidence, altering the proffered facts if necessary to accurately reflect the uncontroverted evidence. To the extent the cited underlying "undisputed" facts have been disputed, the Court finds that the stated disputes: (1) fail to controvert the proffered "undisputed" facts; (2) dispute the facts on grounds not germane to the below statements; and/or (3) fail to cite evidence in support of the disputing party's position. As such, the Court treats such facts as undisputed. Any proffered facts not included in this Ruling were found to be: (1) improper opinions or conclusions rather than facts; (2) unsupported by admissible evidence; (3) irrelevant to the Court's present analysis; or (4) some combination thereof.
S.T. was a sixth-grade student at Gaspar De Portola Middle School ("Portola" or the "school") within the District during the 2016-2017 academic year. See Plaintiff's Response to Defendant's Separate Statement of Genuine Disputes of Material Fact ("SUF"), Docket No. 60-1, ¶ 1. She was twelve years old during the spring semester of 2017. Id. ¶ 3.
The Court will cite to Plaintiff's Response to Defendant's Separate Statement of Genuine Disputes of Material Fact ("SUF"), Docket No. 60-1, when referencing the parties’ undisputed facts, as it contains both parties’ proffered facts and responses thereto.
S.T. had problems keeping up with notetaking in her history class at Portola. Id. ¶ 5. It would take her one and a half hours or longer to complete her notes, a task meant to take 20 minutes. Id. (citing Declaration of Shawna L. Parks in Support of Plaintiff's Motion for Partial Summary Judgment ("Parks Decl."), Docket No. 57-1, Exh. P at 86). In October 2016, S.T. was transferred into the Academy of Integrated Arts & Technology, a hybrid special education and general education program at Portola with a smaller group setting, where "there was less note taking." Id. ¶ 6 (citing Parks Decl. Exh. P at 87). S.T. was considered a general education student in the program. Id. ¶ 7.
In January 2017, S.T. had pneumonia and missed several days of school. Id. ¶ 8. Her doctor requested that the school accommodate S.T. by, inter alia , allowing her extra time to get from class to class, monitoring her eating and drinking, allowing her extra time for homework, and reducing the amount of homework when needed. Id. ¶ 9.
S.T. returned to school around late January or early February 2017. Id. ¶ 11. N.T. observed that S.T. had extreme fatigue and "foggy" thinking. Id. ¶ 13. On March 4, 2017, S.T. fainted during a school event. Id. ¶ 15. According to S.T.’s Social Adjustment Report, by March 15, 2017, S.T. had missed eight consecutive school days and a total of 30 full days and 27 partial days due to "ongoing medical issues." Id. ¶ 20. On March 23, 2017, S.T.’s doctor sent a letter to the school stating that S.T. was "malnourished" and needed to eat during the school day. Id. ¶ 23.
On April 5, 2017, Portola's Pupil Services and Attendance Counselor ("PSA") spoke with N.T. and discussed Berenece Carlson Home Hospital School ("Carlson Home Hospital"), a District program to which school staff would refer students who could not attend a general education campus due to illness. Id. ¶¶ 24-25, 28. Carlson Home Hospital provided instruction at students’ homes, at hospitals, or through online services. Id. ¶ 26. On April 18, 2017, N.T. wrote a letter to Portola requesting a special education evaluation and home/hospital instruction for S.T. Id. ¶¶ 29, 31. The letter stated, in part, the following:
• "[S.T.] has missed most of this semester due to medical issues, which have resulted in [a] high level of anxiety. For these complications, she does not have the stamina to make it through a full day."
• "Some of her medical issues consist of irritable bowel syndrome, malnourishment, and excessive fatigue, lightheadedness, and weakness."
• "... I am requesting a home hospital teacher to provide education to [S.T.] while she cannot attend Portola."
Id. ¶¶ 30-31 (emphases in original). N.T. also explained to a Portola "bridge coordinator" – a coordinator acting as a bridge between special education and general education by, for example, providing parent support and handling Individualized Education Programs – that S.T. "was going through or waiting to go through genetic testing." Id. ¶ 32.
By April 19, 2017, the PSA believed that N.T. had consented to Carlson Home Hospital and had asked for the paperwork. Id. ¶ 33. The PSA's understanding was that S.T. needed the program because of her health condition. Id. ¶ 34. N.T. applied for "home hospital" instruction for S.T. on April 20, 2017. Id. ¶ 35. The accompanying medical authorization completed by S.T.’s doctor stated that S.T. had "severe malnutrition" and checked the box "No" when asked "Is student physically capable of attending classes on his/her school campus now, with accommodations to meet their physical or other needs?" Id. ¶ 36.
On April 28, 2017, the school held a Student Support and Progress Team meeting for S.T. Id. ¶ 37. A coordinator/counselor for gifted students, a school psychologist, the PSA, and two teachers attended the meeting. Id. ¶ 38. S.T. had missed 58 days of school at this point. Id. ¶ 39. The meeting notes stated, in part, the following:
• "Serious health concerns impeded a valid measurement of progress"
• "At the beginning of 6th grade, [S.T.] was under at the 2%-tile of weight. Currently she is 16 pounds under weight. She contracted walking pneumonia in December diagnosed in January. Mother says she has slow processing speed and eats in small quantities. [S.T.] has a history of passing out. Therapist says that she has developed post traumatic stress syndrome causing her anxiety. UCLA diagnosis is malnutrition."
Id. ¶¶ 40, 42. That same day, the PSA contacted Carlson Home Hospital and was told it would take eight to ten days to assign a teacher to S.T. Id. ¶ 43.
The school denied N.T.’s request for a special education evaluation for S.T. in a May 1, 2017 denial letter, which stated that after reviewing S.T.’s records and receiving a consent to release information from N.T., "School psychologist will be contacting private health providers regarding [S.T.’s] medical and mental health issues. Team will review accommodations and supports after contacting private health care providers." Id. ¶¶ 44-45.
On May 16, 2017, Carlson Home Hospital informed the PSA that a teacher had not been assigned to S.T. Id. ¶ 46. The PSA then notified the school's Assistant Principal. Id. ¶ 47. The District informed N.T. that it did not find a teacher for S.T.’s home hospital instruction on June 1, 2017, and that S.T. would have to reapply the following academic year. Id. ¶ 48. Carlson Home Hospital did not enroll S.T. in the spring of 2017 and informed the PSA on June 2, 2017 that S.T.’s application was still with the Counselor awaiting assignment to a teacher. Id. ¶¶ 52-53.
The PSA testified that while the Carlson Home Hospital said they would take S.T. as a student, the process of transitioning into the program could "have a long waiting period" and was "dependent on whether there is a teacher." See Reply Declaration of Shawna L. Parks in Support of Plaintiff's Motion for Partial Summary Judgment ("Parks Reply Decl."), Docket No. 60-4, Exh. B at 83. The PSA testified that the school informed parents that students would "remain in the school until which time Carlson can take them in as a student, and they're to continue to the best of their ability to complete their assignments and do their work because the teacher could still be grading that work, and at the point where Carlson actually sends us an acceptance letter is the point we would check the student out to the school; so [N.T.] was made aware of that." Id. When asked for clarification, the PSA further testified: "If you look at my earlier notes, I said that [N.T.’s] aware that the student will not be checked out until Carlson accepts her there, and I would have – I'm really good about explaining these things to the parents because the parents are always confused as they are with IEPs." SUF ¶ 65.
The District did not provide online or any other type of remote instruction for S.T. after N.T. submitted the paperwork to Carlson Home Hospital. Id. ¶ 49. In response to a deposition question regarding whether anyone was responsible – either the District or at the school – to make sure S.T. received instruction from some program within the District after she qualified for the Carlson Home Hospital program, PSA testified:
It's the parents’ responsibility to make sure that their child is continuing to do the class work [assigned at school] to the best of their ability. If [S.T.] was too sick to do all of it, then she could just do it to the best of her ability. The teachers were aware of her situation and were being accommodating; so they could either prepare the work for mom to pick up or a parent to pick up. They could e-mail it home to her.
As far as I know, the teachers were very concerned, and our teachers are usually extremely helpful. So if they understand a student is in that situation, they're going to cut them a lot of slack. They're going to give them less work.
So it's the parents’ responsibility to be in contact with the teachers and make sure that they're getting the work for the student.
Id. ¶ 64. In response to another question about whether she recalled "any conversations about what to do with [S.T.] vis-à-vis her school work" after N.T. filled out the paperwork and S.T. was approved for Carlson Home Hospital, but no teacher had been assigned, the PSA testified that the school work "would have just continued. She would have just continued to do her school work until she was accepted to Carlson. There wouldn't be a reason to revisit it because she would continue to do her school work to the best of her ability through Portola." Parks Decl., Exh. K at 96.
S.T. did not return to Portola for instruction in the spring of 2017. SUF ¶ 54. However, because S.T. was still "enrolled" at the school, Portola continued to mark S.T. absent after she was approved for the Carlson Home Hospital program on April 28, 2017, resulting in 30 additional absences on her record after she was approved for the program and a total of 88 absences for the year. Id. ¶ 55. S.T. failed all academic classes except for math in the spring semester of 2017. Id. ¶ 57.
By October 2017, S.T. was diagnosed with Ehlers Danlos Syndrome ("EDS"). Id. ¶ 58. A medical evaluation conducted by the District stated that S.T. had experienced the following:
• "Hypermobile joints ..." "Pain. Fatigue. Issues with writing, using utensils, walking a lot or long distances."
• "Underweight. S/P GI symptoms such as reflux, bloating, abdominal pain appearing in 2016, resolving over a year."
• "Possible dysautonomia, with syncope, dizziness, decreased sweating."
• "Symptoms of anxiety. Biofeedback for anxiety. Therapy for PTSD over school, not feeling 100%."
Id. ¶ 59. All of the above were "strongly associated with EDS." Id.
II. Legal Standard
Summary judgment shall be granted when a movant "shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc. , 213 F.3d 474, 480 (9th Cir. 2000) (internal quotation marks and citations omitted). However, when the nonmoving party bears the burden of proving the claim or defense, the moving party does not need to produce any evidence or prove the absence of a genuine issue of material fact. See Celotex , 477 U.S. at 325, 106 S.Ct. 2548. Rather, the moving party's initial burden "may be discharged by ‘showing’ – that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Id.
Once the moving party meets its initial burden, the "party asserting that a fact cannot be or is genuinely disputed must support the assertion." Fed. R. Civ. P. 56(c)(1). "The mere existence of a scintilla of evidence in support of the [nonmoving party]’s position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Further, "[o]nly disputes over facts that might affect the outcome of the suit ... will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Liberty Lobby , 477 U.S. at 248, 106 S.Ct. 2505. At the summary judgment stage, a court does not make credibility determinations or weigh conflicting evidence. See id. at 249, 106 S.Ct. 2505. A court must draw all inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
III. Discussion
Under Title II of the ADA, "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. "To prove that a public program or service violated Title II of the ADA, a plaintiff must show: (1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability." Duvall v. Cnty. of Kitsap , 260 F.3d 1124, 1135 (9th Cir. 2001) (citation omitted).
Under Section 504 of the Rehabilitation Act, "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ..." 29 U.S.C. § 794(a). "Title II of the ADA was expressly modeled after § 504 of the Rehabilitation Act. A plaintiff bringing suit under § 504 must show (1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance." Duvall , 260 F.3d at 1135.
The District receives federal funds such that it is subject to Section 504 of the Rehabilitation Act. SUF ¶ 60.
"To establish a claim for damages under the Rehabilitation Act and ADA, a plaintiff must prove that the defendant intended to discriminate on the basis of his or her disability, or was deliberately indifferent to the disability." T.B. v. San Diego Unified Sch. Dist. , 806 F.3d 451, 466 (9th Cir. 2015) (citation omitted). S.T. argues that the District's conduct meets the standard for deliberate indifference. See Motion at 20; Reply at 16. "Deliberate 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 (citation omitted). "[A] failure to act must be a result of conduct that is more than negligent, and involves an element of deliberateness." Id.
A. Whether S.T. was a "Qualified Individual with a Disability" under the ADA and Rehabilitation Act in the Spring Semester of 2017
S.T. first argues that she qualifies as a person with a disability under the ADA and Section 504 of the Rehabilitation Act. See Motion at 10. While "S.T. did not have a formal diagnosis of EDS until October of 2017," she argues that she "had a physical and mental impairment that substantially limited her life activities of learning, reading, concentrating, eating and writing." See id. at 11-12.
The term "disability" under the ADA and Section 504 of the Rehabilitation Act is defined as "a physical or mental impairment that substantially limits one or more major life activities of such individual." 42 U.S.C. § 12102(1)(A) ; 29 U.S.C. § 705(9)(B). "[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." 42 U.S.C. § 12102(2)(A). The definition of "disability" is "construed in favor of broad coverage of individuals[.]" 42 U.S.C. § 12102(4)(A). "An impairment is a disability ... if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population " but an "impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting." 29 C.F.R. § 1630.2(j)(1)(ii) (emphasis added). Determining whether an impairment is substantially limiting "requires an individualized assessment." 29 C.F.R. § 1630.2(j)(1)(iv).
Based on the evidence in the record, the Court would agree with S.T. that she qualifies as a person with a disability under the ADA and Section 504 of the Rehabilitation Act. N.T. observed that S.T. had extreme fatigue and "foggy" thinking. SUF ¶ 13. S.T. fainted during a school event in March 2017. Id. ¶ 15. She missed several school days that semester due to "ongoing medical issues." Id. ¶ 20. In March 2017, S.T.’s doctor sent a letter to the school stating that S.T. was "malnourished" and needed to eat during the school day. Id. ¶ 23.
Additionally, in April 2017, a PSA at Portola discussed the Carlson Home Hospital program with N.T., a program to which school staff would refer students who had physical or mental health issues keeping them from attending a general education campus. Id. ¶¶ 24-25. In the April 2017 medical authorization accompanying N.T.’s application for Carlson Home Hospital, S.T.’s doctor stated that S.T. had "severe malnutrition" and checked the box "No" when asked "Is student physically capable of attending classes on his/her school campus now, with accommodations to meet their physical or other needs?" Id. ¶ 36. N.T. requested a home hospital teacher to provide S.T. instruction while S.T. could not attend Portola due to medical issues, and informed the school that S.T. did "not have the stamina to make it through a full day" and had "excessive fatigue, lightheadedness, and weakness." Id. ¶¶ 30-31. The notes from the April 28, 2017 Student Support and Progress Team meeting stated that S.T. had "slow processing speed" and "a history of passing out." Id. ¶ 42.
As such, it appears S.T.’s health issues substantially limited her abilities to eat – if not also her abilities to read, concentrate, and learn – which, as S.T. notes, "impacted her ability to participate in school." See Reply at 5. Her health issues substantially limited her ability to do so "as compared to most people in the general population" during the time relevant to the instant motion. See 29 C.F.R. § 1630.2(j)(1)(ii).
The District contends that there "are triable issues of material fact" as to whether S.T. was a qualified individual with a disability "for the April 2017 to June 2017 time frame sufficient to trigger ADA and Rehabilitation Act obligations on the District's part," as S.T. was not diagnosed with EDS until October 2017. See Opp'n at 11. The District does not cite any authorities requiring a formal diagnosis under the ADA or Rehabilitation Act. The Court would find that, based on the evidence, the District was well aware that S.T.’s health issues prevented her from attending school during the spring semester of 2017, despite not having an official diagnosis.
The District further argues that there is a triable issue of material fact as to whether S.T.’s ability to "learn" or "read" or "concentrate" was "substantially limited" because she received "excellent grades" the previous semester under similar health conditions. See Opp'n at 12. The Court is not persuaded by this argument, as the evidence shows that S.T. was not physically capable of attending classes in April 2017, which did not appear to be the case the previous semester. See, e.g. , SUF ¶ 36. Moreover, S.T. does not solely contend that her health issues caused her to fail her classes, but that her health issues impacted her ability to participate in school. See Reply at 5.
Accordingly, the Court would find no genuine issue of material fact as to whether S.T. was a qualified person with a disability under the ADA and Section 504 of the Rehabilitation Act in the spring of 2017.
B. Whether the District Violated the ADA and Section 504 of the Rehabilitation Act
S.T. next contends that the District violated the ADA and Section 504 of the Rehabilitation Act by failing to address S.T.’s disability-related needs and ensure access to its educational program. See Motion at 13. Specifically, S.T. argues that the District: (1) failed to provide S.T. with any instruction after N.T. and the District agreed that S.T. qualified for home instruction through the Carlson Home Hospital program; and (2) failed to provide S.T. reasonable accommodations. See id. at 13, 16-17.
1. Whether the District's Failure to Provide Instruction Violated the ADA and Rehabilitation Act
N.T. submitted the paperwork to Carlson Home Hospital on April 20, 2017. SUF ¶ 35. While Carlson Home Hospital told the school on April 28, 2017 that it would take eight to ten days to assign a teacher to S.T., the program was not able to find a teacher as of June 1, 2017. Id. ¶¶ 43, 48. N.T. was aware that S.T. would remain at Portola until Carlson Home Hospital could take her in as a student. See id. ¶ 65; Parks Reply Decl., Exh. B at 83. The PSA testified that the process of transitioning into the Carlson Home Hospital program could "have a long waiting period," was "dependent on whether there is a teacher," and was "often swamped with students" at the end of the school year. See Parks Reply Decl., Exh. B. at 83, 86.
The District did not provide online or any other type of remote instruction for S.T. after N.T. submitted the paperwork to Carlson Home Hospital. SUF ¶ 49. The PSA testified that Portola was not set up to provide S.T. with online or physical instruction outside the classroom, but that the teachers would always provide students who could not physically be in school with schoolwork, to the best of their abilities. See Parks Reply Decl., Exh. B at 82. For example, teachers could prepare schoolwork for N.T. to pick up for S.T., and S.T. could correspond with her teachers via email or phone. See id. at 81-82, 87. While the school could not provide S.T. with actual classroom instruction when she was not physically at school, the teachers could go over the work with S.T. by email or phone and "would have found some way to assist her if she needed help." See id. at 87. S.T. only would be expected to complete the schoolwork to the best of her ability, and the teachers would accommodate her and give her less work based on her situation. See id. at 84-85.
S.T. argues that by failing to provide instruction while she was unable to attend school and waiting for Carlson Home Hospital to find her a teacher, the District "failed to provide meaningful access to its educational program during the spring semester of 2017." See Motion at 14; see also Crowder v. Kitagawa , 81 F.3d 1480, 1484 (9th Cir. 1996) (citing Alexander v. Choate , 469 U.S. 287, 302, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), and explaining that in interpreting the Rehabilitation Act, the Supreme Court "determined it more useful to assess whether disabled persons were denied ‘meaningful access’ to state-provided services" rather than "attempt to classify a type of discrimination as either ‘deliberate’ or ‘disparate impact’ "). The District responds in part that there is a triable issue of material fact as to whether the District violated the ADA or Rehabilitation Act because N.T. testified she did not think Carlson Home Hospital was the best option for S.T. See Opp'n at 13. This argument misses the mark, because as S.T. notes, the full context of N.T.’s testimony establishes N.T.’s desire and intent for S.T. to finish the school year with Carlson Home Hospital. See Reply at 6-8.
However, the Court would find triable issues of material fact as to whether the District's failure to provide remote or other physical instruction for S.T. – in light of the options it provided students who were unable to physically attend school, such as having a parent pick up schoolwork, sending schoolwork via email, having teachers go over the schoolwork with students via email or phone, and adjusting requirements based on what the students could complete to the best of their abilities – failed to provide S.T. "meaningful access" to the school's educational program. None of the cases cited by S.T. establish that the measures taken by the District were insufficient to provide "meaningful access" to public education. S.T. cites Crowder , in which the Ninth Circuit held that Hawaii's 120-day quarantine requirement for carnivorous animals entering the state was "a policy, practice or procedure which discriminates against visually-impaired individuals by denying them meaningful access to state services, programs and activities by reason of their disability in violation of the ADA." See Crowder , 81 F.3d at 1485 ; see also Motion at 13. The Ninth Circuit further found there was "a genuine dispute of material fact as to whether the plaintiff's proposed modifications to Hawaii's quarantine" were reasonable modifications which should be implemented or fundamental alterations which the state could reject, and noted that "the determination of what constitutes reasonable modification is highly fact-specific, requiring case-by-case inquiry." See Crowder , 81 F.3d at 1485-86 (citation omitted). The context of this case differs from that in the instant matter and does not establish as a matter of law that that S.T. was denied meaningful access to public education or that the school's accommodations for students who could not physically attend school were not reasonable modifications to accommodate S.T.
Similarly, S.T. cites Rodde v. Bonta , 357 F.3d 988, 998 (9th Cir. 2004), in which the Ninth Circuit upheld a preliminary injunction precluding a county from closing a hospital because plaintiffs had demonstrated that the closing would "reduce, and in some instances eliminate, necessary medical services for disabled Medi-Cal patients while continuing to provide the medical care required and sought by Medi-Cal recipients without disabilities" and thus "would constitute discrimination on the basis of disability." See Motion at 13-14. This case also does not establish that S.T. was denied meaningful access to public education in the context of the instant matter.
In the context of the instant matter, one way a plaintiff may establish denial of "meaningful access" to public education under Title II of the ADA and Section 504 of Rehabilitation Act is "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." See A.G. v. Paradise Valley Unified Sch. Dist. No. 69 , 815 F.3d 1195, 1204 (9th Cir. 2016) (quotation omitted). S.T. has not argued that the District violated one of the regulations implementing Section 504 of the Rehabilitation Act. S.T. does argue, however, that "a public entity fails to provide meaningful access when it fails to provide reasonable accommodations," and that by failing "to provide Carlson Home Hospital – an accommodation that both N.T. and Portola school staff agreed she needed, and that S.T.’s doctor approved" – the District failed to provide S.T. meaningful access to public education. See Motion at 15-17; see also Alexander , 469 U.S. at 301, 105 S.Ct. 712 ("to assure meaningful access, reasonable accommodations in the grantee's program or benefit may have to be made"); A.G. , 815 F.3d at 1204 (a plaintiff may satisfy part of the showing required to prevail on a Section 504 claim 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" (citation omitted)).
As S.T. notes, the District did not provide the Carlson Home Hospital accommodation during the spring semester of 2017 because the program could not find a teacher for her. See Motion at 17; see also Parks Reply Decl., Exh. B. at 83, 86. The District contends it was N.T.’s responsibility to ensure that S.T. kept up with assignments while she was unable to attend school until there was an opening for S.T. at Carlson Home Hospital. See Opp'n at 13. S.T. argues it is not a parent's legal duty to determine whether accommodations are necessary and to ensure those accommodations are provided. See Reply at 9-10; see also A.G. , 815 F.3d at 1207 (noting that while the student's parents did not request certain services, the parents "did not have the expertise – nor the legal duty – to determine what accommodations might allow [the student] to remain in her regular educational environment"). S.T. is correct that it was not N.T.’s legal duty to determine what accommodations were reasonable or would provide S.T. meaningful access to the school's educational program. However, the Court still would find triable issues of material fact as to whether the actions the District did take were reasonable accommodations and thus sufficient to provide S.T. meaningful access to public education. At the February 25, 2021 hearing on the instant motion, S.T.’s counsel reiterated the argument that N.T. requested the accommodation of home instruction for S.T. – which S.T.’s doctor approved and the District agreed S.T. needed – yet the District did not provide this accommodation. Citing Duvall , S.T.’s counsel argued that upon receiving a request for accommodation, a public entity must undertake a fact-specific investigation to determine what constitutes a reasonable accommodation. See 260 F.3d at 1139. While it is unclear to the Court whether the District conducted such an investigation, it appears that the District did find home instruction to be a reasonable accommodation for S.T., as S.T. was physically incapable of attending classes on campus, and discussed the option with N.T. See SUF ¶ 24. The school then referred S.T. to Carlson Home Hospital based on her health conditions and continued to check on her application status after N.T. submitted the paperwork. See id. ¶¶ 24, 43, 46, 52.
The District also informed N.T. that S.T. would remain at Portola until Carlson Home Hospital could take her in as a student. See SUF ¶ 65; Parks Reply Decl., Exh. B at 83. N.T. was aware that students waiting to hear from Carlson Home Hospital were "to continue to the best of their ability to complete their assignments and do their work because the teacher could still be grading that work, and at the point where Carlson actually sends us an acceptance letter is the point we would check the student out to the school." See Parks Reply Decl., Exh. B at 83. In the meantime, the school provided various accommodations such that students who could not physically attend class could receive help from their teachers and complete schoolwork, tailored to the extent their specific situations allowed. See id. at 81-87. S.T.’s counsel argued at the February 25, 2021 hearing that the evidence proffered by the District, i.e. , the PSA's testimony regarding these accommodations, does not state that the District actually provided S.T. this help. S.T.’s counsel argued that instead, the PSA's deposition testimony was phrased in hypothetical, conditional language. Counsel's point is well taken. However, based on the evidence in the record at this point, the Court would not find as a matter of law that the District did not reasonably accommodate S.T. The Court would find a triable issue of material fact as to whether the steps the District took – in referring S.T. to Carlson Home Hospital, ensuring that N.T. was aware S.T. should continue to the best of her ability to complete her assignments while waiting to hear from Carlson Home Hospital, and having the accommodations described by the PSA available as options – were sufficient to constitute reasonable accommodations under the ADA and Rehabilitation Act.
The same applies to S.T.’s counsel's argument at the hearing that the District could have offered other accommodations while waiting for Carlson Home Hospital to find a teacher for S.T., such as look into the City of Angels program. The Court would find a genuine dispute of material fact as to whether the District's failure to do so was a failure to reasonably accommodate S.T. under the ADA and the Rehabilitation Act for the reasons stated above.
Based on the evidence before the Court, a triable factual dispute exists as to whether the District's failure to provide remote or other physical instruction for S.T. outside the classroom failed to provide S.T. meaningful access to the District's educational services or failed to reasonably accommodate S.T. as a matter of law. That is, a factual dispute exists as to what constitutes "meaningful access" to public education in the context of this case, and whether the District needed to do more than it did after N.T. applied for the Carlson Home Hospital program in order to provide S.T. meaningful access to public education. The Court thus would deny S.T.’s motion for partial summary judgment on this ground.
2. Whether the District Failed to Provide Other Reasonable Accommodations
S.T. also contends that the District failed to provide meaningful access to public education by failing to provide other accommodations – specifically, the accommodations listed in her doctor's January 2017 letter to Portola. See Motion at 17. The District responds that it provided "the same type of accommodations listed by S.T.’s doctor." See Opp'n at 14. S.T. argues that the District "submits little to no contemporaneous evidence that any accommodations were provided" and that the District provides no evidence showing the District responded to the doctor's request that S.T. have a reduced amount of homework when needed. See Reply at 14.
The Court has reviewed the evidence submitted by the District and would find that it creates a triable factual dispute as to whether the accommodations the District did provide were reasonable under the ADA and Rehabilitation Act. As S.T. notes, contemporaneous evidence shows that during the spring semester of 2017, the school made physical education accommodations for S.T., allowed her to leave class early for a snack, and allowed her to eat in class. See Reply at 14; Declaration of Matthew R. Hicks in Support of Defendant's Opposition ("Hicks Decl."), Docket No. 59-3, Exh. 10 at MRH-Decl_093-095. While the deposition testimony and other evidence cited by the District discuss additional accommodations implemented on undefined dates or in the context of the April 2017 Student Support and Progress Team meeting, the evidence does not, as S.T. argues, only show that the accommodations were provided months after S.T.’s doctor requested them. See Reply at 15. Nor does such evidence render the accommodations per se unreasonable under the ADA and Rehabilitation Act. For example, the school coordinator/counselor for gifted students testified that prior to the April 2017 meeting, she met with teachers and "talked about making sure that [S.T.] is allowed breaks if she needs to ... if she needed food or water or to drink her power shake, that she was allowed to go and do that, or if she needed to see me, she was allowed to come out of class ..." See Hicks Decl., Exh. 1 at 47-48. Although the testimony does not state exactly when those discussions occurred, the Court cannot find as a matter of law at this point that the District did not provide reasonable accommodations during the spring semester of 2017 based on this and other comparable testimony.
Similarly, notes accompanying the April 2017 Student Support and Progress Team meeting state that S.T. was given a pass to leave class when needed and given extended time on tests and assignments. See id. at Dist_744. While the notes do not indicate when these accommodations were provided, the Court, in considering all the evidence including S.T.’s doctor's letter, would find at this point a genuine dispute of material fact as to whether these accommodations were reasonable under the ADA and Rehabilitation Act.
As such, there are triable issues of material fact as to whether the District provided S.T. reasonable accommodations, and the Court would deny S.T.’s motion for partial summary judgment on this ground as well. The Court thus need not address the parties’ remaining arguments.
C. The Parties’ Requests for Evidentiary Rulings
Both parties have filed evidentiary objections. See Docket Nos. 59-2; 60-2.
As to the District's objections, the Court sustains the following: 3 as to "She also told me that she had stomach pains," 4, 5 as to "Ms. Miller indicated to me that S.T. should just come back to school," and 7. The Court overrules the remaining objections. See Docket No. 59-2.
As to S.T.’s objections, the Court sustains the following: 3-6, 8-10, 13, 14. The Court overrules the remaining objections. See Docket No. 60-2.
IV. Conclusion
Based on the foregoing discussion, the Court would DENY Plaintiff's motion for partial summary judgment.