The Ninth Circuit Reversed Summary Judgment in Favor of School District on Claims of Discrimination Under Section 504 of The Rehabilitation Act and Title II of the Americans with Disabilities Act

STUDENT vs. MARK KELLY; BRANDON GALLAGHER; TARA BROWN; DINA MENDOZA; AL TRUNDLE & THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT

Disability Discrimination

The 9th Circuit reversed the district court’s summary judgment in favor of the school district 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 state law, and vacated a costs order in an action brought by a student and parents against a school district and related employees and principals.

Clarifying the standards for disability discrimination claims by disabled children based on access to educational services, the panel stated that the Individuals with Disabilities Education Act (“IDEA”) focuses on making a free appropriate public education (“FAPE”) available to disabled students through development of Individualized Education Programs (“IEPs”). The IDEA creates a cause of action for children and parents to pursue injunctive or other prospective relief through a civil action following an administrative due process hearing in order to compel compliance with the Act and proper implementation or modification of the child’s IEP.

Section 504 of the Rehabilitation Act is broader than the IDEA; it is concerned with discrimination in the provision of state services to all individuals with disabilities. The regulations adopted pursuant to section 504 require qualifying public schools to “provide a free appropriate public education to each qualified handicapped person.” FAPE is defined differently for purposes of section 504 than it is for the IDEA, and section 504’s regulations gauge the adequacy of services provided to disabled individuals by comparing them to the level of services provided to individuals who are not disabled.

Title II of the Americans with Disabilities Act (“ADA”) was modeled after section 504 and sets forth similar requirements for establishing a valid claim. A plaintiff bringing suit under section 504 or Title II of the ADA must show: (1) she is a qualified individual with a disability; (2) she was denied “a reasonable accommodation that [she] needs in order to enjoy meaningful access to the benefits of public services;” and (3) the program providing the benefit receives federal financial assistance.

To prevail on a claim for damages, the plaintiff must also prove a mens rea of intentional discrimination. The panel reversed the district court’s summary judgment on a claim that defendants denied the student meaningful access to educational benefits by violating 34 C.F.R. §§ 104.33(b)(1) and 104.34(a). The panel held that the parents’ consent to the student’s placement did not waive this claim.

The panel reversed the district court’s summary judgment on plaintiffs’ reasonable accommodation claim under section 504 and Title II. The panel concluded that a triable factual dispute existed as to whether the services plaintiffs faulted the school district for failing to provide were actually reasonable, necessary, and available accommodations for the student.

The district court also erred in dismissing plaintiffs’ damages claim for failure to show that the school district was on notice of the need for accommodation.

The 9th Circuit stated:

“To determine whether a defendant’s conduct was outrageous and a plaintiff’s emotional distress severe, 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).

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 WL5989327, 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.”

If Plaintiffs can establish that the school district’s conduct was extreme and outrageous, than a claim for intentional infliction of emotional distress can occur. 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.“

A. DISABILITY DISCRIMINATION

Plaintiffs allege that Defendants’ conduct in baiting student was so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency,” Mintz, 905 P.2d at 563. Defendants’ knowledge that the plaintiff is peculiarly susceptible to emotional distress by reason of some physical or mental condition rises to both extreme and outrageous conduct.”  (“eggshell plaintiff” principle)

Some students may have vulnerabilities which necessitate a greater degree of caution on the part of school districts and their employees. In M.W. v. Panama Buena Vista Union School Dist., supra,

B. Abuse of Power

The extreme and outrageous conduct may take place in the course of a relationship in which the defendant holds authority or other power over the plaintiff or the plaintiff’s interests. If the authority — such as police officers, school authorities, landlords, and collecting creditor — abuse their positions in some extreme manner, they may be liable to the plaintiff for IIED.
PRA requests for employee disciplinary records, investigative reports and/or complaints against public employees
Generally, complaints and/or charges of misconduct against a public employee can/must be disclosed if “the complaint is of a substantial nature and there is reasonable cause to believe the complaint or charge of misconduct is well-founded.” (See Bakersfield City School Dist. v. Superior Court (2004) 118 Cal. App. 4th 1041, 1044; see also BRV, Inc. v. Superior Court (2006) 143 Cal. App. 4th 742.)
See pdf attachment explaining School District’s Public Records Act obligations:

C. PROFESSOR MICHAEL CHWE vs. SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT

Verified Petition for Writ of Mandate Directed to Santa Monica Malibu Unified School District Ordering Compliance with the California Public Records Act

http://www.jdsupra.com/legalnews/verified-petition-for-writ-of-mandate-di-72936/

See pdf attachment of Professor Michael Chwe’s Public Records Act lawsuit against the Santa Monica Malibu Unified School District:

MICHAEL CHWE vs. SMMUSD RE WRIT OF MANDATE COMPLAINT

dwt20110223

Even the SMMUSD believed that they were obligated to release the Investigation Report

See pdf attachment of the SMMUSD Appellate Brief:

SMMUSD BRIEF IN SUPPORT OF RELEASING INVESTIGATION REPORT BASED ON WELL FOUNDED COMPLAINT

The Santa Monica Malibu Unified School District Was Ordered to Release their Investigation Report Concerning the Sexual Harrasment of its Students by their Teachers

http://www.jdsupra.com/legalnews/the-santa-monica-malibu-unified-school-d-42102/

See pdf attachment to the Court of Appeals of the State of California, Second Appellate District’s landmark ruling in Professor Chwe’s lawsuit against the Santa Monica Malibu Unified School District:

MICHAEL CHWE vs SMMUSD RE APPEALS COURT PUBLISHED OPINION

B231787-1

The Court of Appeal of the State of California, Second Appellate District, ruled  that “Marken occupies a position of trust and responsibility as a classroom teacher, and the public has a legitimate interest in knowing whether and how the District enforces its sexual harassment policy. . . . the public’s interest in disclosure of this information—the public’s right to know—outweighs Marken’s privacy interest in shielding the information from disclosure.”

In Baez v. Superior Court, 2008 WL 5394067 (Cal. Ct. App.) the defense representing the Burbank Unified School District asserted attorney-client privilege and the work-product doctrine as grounds for refusing to turn over the file from a investigation report.
The Second District Court of Appeal ordered production of the Sandhu investigative file, holding that disclosure was essential for fair adjudication of the action. (Baez v. Superior Court, 2008 WL 5394067 (Cal. Ct. App.).) Case Number B208294Description:Petition granted by opinion

See link: http://chwe.net/safety/failures.html

See pdf attachment:

SMMUSD IRRESPONSIBILITY ENDANGERS OUR CHILDREN

The 9th Circuit also reversed the district court’s summary judgment on claims for assault, battery, and false imprisonment.

See pdf copy of the

A.G. v. Paradise Valley Unified School District

9th Circuit Opinion here:

13-16239

Sadly, there is so much dysfunction at the Santa Monica Malibu Unified School District

Other Santa Monica Malibu Unified School District litigation and Errors in Judgment

1. SEVERE BULLYING AT MALIBU HIGH SCHOOL & THE SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT’s RATIFICATION OF THE CONDUCT

Los Angeles Superior Court Complaint

Student vs. Santa Monica Malibu Unified School District;

Sebastian Dane Sartorius; Jordan Clarke et al.

About one in every four children in the United States is bullied regularly. It’s stunning to think that a quarter of our young people are having their lives ruined by the negative actions of others. And when you consider the levels of stress, depression and suicides in youngsters that can be tied in with this worrying epidemic, it brings the issue of bullying even sharper into focus. The situation needs addressing. And fast.

https://www.facebook.com/bullymovie/photos/a.137885059591313.24798.107214895991663/987550114624799/?type=3&theater

Parents of bullies can be sued

The financial and emotional consequences are potentially devastating

See Article here:

http://www.metrokids.com/MetroKids/November-2012/Bullies-parents-can-be-sued/

See Santa Monica Dispatch Article Entitled:

“Victim Becomes Villain in Malibu Controversy”

http://www.santamonicadispatch.com/2014/02/victim-becomes-villain-in-malibu-controversy/

A couple of incidents in the bleachers that overlook the swimming pool at Malibu High School two years ago are still reverberating through the school and the community and, ironically, the young victim has become the villain of the piece.

In November and December, 2012, on several occasions, during water polo team practice, a Varsity team player, Sebastian Sartorius committed what have been officially described as “multiple counts of battery” on a younger, smaller Junior Varsity team member who was sitting in the bleachers. On learning of the incident, High School principal Jerry Block removed Sartorius from the team.

Following the incidents, the younger boy left the team and discontinued his 9th grade PE class. He also told officials about two previous instances in which Sartorius had allegedly roughed him up.

Not only did members of both the Junior Varsity and Varsity water polo teams continue to harass the young boy, some parents and students spread stories that the so-called victim had exaggerated, describing what was obviously innocent water polo horseplay as serious assaults. At the same time, an online campaign expressed outrage at Sartorius’ being charged with battery and suspended, and some parents threatened to retaliate by withholding contributions they’d agreed to make to the school.

For more details, go to:

https://lawofficesofbarryfagan.wordpress.com/2014/08/24/severe-bullying-at-malibu-high-school-the-smmusds-ratification-of-the-conduct/

IMAG0391

LOS ANGELES SUPERIOR COURT COMPLAINT

SPECIAL INTERROGATORY NO. 13:

LIST THE FULL NAME AND JOB TITLE OF THOSE INDIVIDUALS AT SMMUSD (AND/OR MALIBU HIGH SCHOOL) RESPONSIBLE AMENDING/REVERSING CANCELING AND OR OTHERWISE MODIFYING THE DISCIPLINARY SUSPENSION OF DEFENDANT SEBASTIAN SARTORIUS ISSUED IN OR AROUND NOVEMBER 2012.

RESPONSE TO SPECIAL INTERROGATORY NO. 13:

SANDRA LYON, SUPERINTENDENT OF THE SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT.

SIGNED UNDER PENALTY OF PERJURY AT SANTA MONICA, CA ON 12/20/2013.

2. STUDENT vs. WENDY WAX GELLIS & THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT

This lawsuit alleges that the SMMUSD and Wendy Wax Gellis are criminally liable for violations of California Penal Code § 11166 and 11172(a) et seq. for filing a knowingly false child abuse report with child services and the police.

Santa Monica Dispatch Article Concerning Santa Monica-Malibu Unified School District’s Retaliatory Acts Against Students and Parents by Filing False Claims of Child Abuse with the Department of Children & Family Services.

See link to News Article here:

http://www.santamonicadispatch.com/2009/01/smmusd-vs-student/

The lawsuit alleges that an example of retaliatory action by the SMMUSD and Wendy Wax Gellis taken against this family includes knowingly and maliciously filing a false child rape and domestic violence allegation with the local law enforcement and with the Los Angeles County Department of Children and Family Services (DCFS) in retaliation for parent’s exercise of their federally protected right to bring claims against the SMMUSD before the United States Department of Education’s Office for Civil Rights (OCR).

The family alleges that on December 18, 2013, SMMUSD employee named Wendy Wax Gellis made a knowingly false referral to the Los Angeles Department of Children and Family Services (DCFS), and to local law enforcement that parent raped her own son. The allegations were determined by all investigating agencies to be unfounded.

For details of this pending Federal lawsuit go to:

https://lawofficesofbarryfagan.wordpress.com/2014/08/25/santa-monica-dispatch-article-concerning-smmusds-retaliatory-acts-against-students-and-parents-by-filing-false-claims-of-child-abuse-with-the-department-of-children-family-services/

3. Student v SMMUSD:

9th Circuit Court of Appeals Case No. 13-55665 &District Court No. 2:12-cv-03059-SVWPJW

The Santa Monica Malibu Unified School District Did Not Act “Reasonably” When It Chose To Conduct An IEP Meeting Without the Parents’ Presence

For details of this other SMMUSD litigation, go to:

https://lawofficesofbarryfagan.wordpress.com/2015/06/04/student-vs-santa-monica-malibu-unified-school-district-re-the-santa-monica-malibu-unified-school-district-did-not-act-reasonably-when-it-chose-to-conduct-an-iep-meeting-without-pa/

*Legal Fees in the amount of $215,000 were approved by the SMMUSD’s Board of Education on June 29, 2015.

See June 29, 2015 Board of Education Minutes: Re: Attorney’s Fee Settlement in the amount of $215,000

http://www.smmusd.org/brd1415/min062915_spmtg.pdf

4. SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT IRRESPONSIBILITY ENDANGERS OUR CHILDREN

The Santa Monica Malibu Unified School District demonstrates a consistent pattern of evading responsibility for child safety. The SMMUSD has refused to answer questions about teachers who have sexually abused and sexually harassed children, failed to inform parents when their children have been victims of potentially criminal harassment, destroyed evidence concerning harassment of children, asked parents to destroy emails and not talk to each other about teacher sexual harassment of children, removed evidence of child abuse from its own records, impugned the testimony of its own employees who report child abuse, ordered teacher’s aides to not talk to parents, tried to intimidate students and parents, tried to mislead parents about their legal rights, publicly misrepresented its own legal obligations, and violated California state law.

https://lawofficesofbarryfagan.wordpress.com/2014/08/24/smmusd-irresponsibility-endangers-our-children

See link: http://chwe.net/safety/failures.html

5. Other Santa Monica Malibu Unified School District Board of Education’s Errors in Judgment:

Superintendent Sandra Lyon Receives a Three Year Contract Extension:

Despite all of the above facts, on July 15, 2015 the Santa Monica Malibu Unified School District’s Board of Education has awarded Superintendent Sandra Lyon with a new three year Contract.

Santa Monica-Malibu Unified School District Superintendent Sandra L. Lyon was granted a new three-year contract Wednesday, raising her salary to $239,200 annually, among the highest in California. Sandra Lyon’s total compensation including fringe benefits is hard to determine, although it was put at $282,030 in 2013, according to Transparent California, a website that tracks salary and other compensation for public employees throughout the state.
For details, go to:

It’s time to fire Superintendent Sandra Lyon

See pdf copy:

IT’S TIME TO FIRE SMMUSD’S SUPERINTENDENT SANDRA LYON

See link to Change.org Petition:

https://www.change.org/p/the-santa-monica-malibu-unified-school-district-s-board-of-education-it-s-time-to-fire-santa-monica-malibu-unified-school-district-s-superintendent-sandra-lyon

Email the Santa Monica Unified School District’s Board of Education:

brd@smmusd.org

Oscar de la Torre
odelatorre@smmusd.org
Dr. Jose Escarce
jescarce@smmusd.org
Craig Foster
cfoster@smmusd.org
Maria Leon-Vazquez
mlvazquez@smmusd.org
Laurie Lieberman
President
llieberman@smmusd.org
Ralph Mechur
Vice President
rmechur@smmusd.org
Dr. Richard
Tahvildaran-Jesswein
rtahvildaranjesswein@smmusd.org
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