513 F.3d 922 (9th Cir. 2008), 05-16236, Mark H. v. Lemahieu

Docket Nº:05-16236.
Citation:513 F.3d 922
Party Name:MARK H., individually and as Guardian Ad Litem of Michelle H. and Natalie H., minors, Plaintiff-Appellant, Rie H., individually and as Guardian Ad Litem of Michelle H. and Natalie H., minors, Plaintiff-Appellant, v. Paul LEMAHIEU, in his official capacity as superintendent of the Hawaii Public Schools; Elsie Tanaka, in her official capacity as Prin
Case Date:January 17, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 922

513 F.3d 922 (9th Cir. 2008)

MARK H., individually and as Guardian Ad Litem of Michelle H. and Natalie H., minors, Plaintiff-Appellant,

Rie H., individually and as Guardian Ad Litem of Michelle H. and Natalie H., minors, Plaintiff-Appellant,


Paul LEMAHIEU, in his official capacity as superintendent of the Hawaii Public Schools; Elsie Tanaka, in her official capacity as Principal of Kipapa Elementary School; Judith Saran-Chock, in her official capacity as Principal of Ala Wai Elementary School; Peter Chun, in his official capacity as Principal of Hokulani Elementary School; Haroldeen Wakida, in her official capacity as Principal of Ali'iolani Elementary School; Department of Education, State of Hawaii; Keith Hunter, Sr., special master, Defendants-Appellees.

No. 05-16236.

United States Court of Appeals, Ninth Circuit.

Jan. 17, 2008

Argued and Submitted June 6, 2007.

Page 923

[Copyrighted Material Omitted]

Page 924


Michael K. Livingston, Honolulu, HI, for the plaintiffs.

Dorothy D. Sellers, Deputy Attorney General, Honolulu, HI, for the defendants.

Appeal from the United States District Court for the District of Hawaii; Manuel L. Real, District Judge, Presiding. D.C. No. CV-00-00282-MLR.



BERZON, Circuit Judge

In 2000, Mark H. and Rie H., both individually and as guardians ad litem for their autistic daughters ("the H. family"), sued the Hawaii Department of Education and various school officials in their official capacities (collectively, "the Agency") for damages for alleged violations of the Individuals with Disabilities Education Act (IDEA), Pub. L. No. 91-230, 84 Stat. 175 (Apr. 13, 1970), and of § 504 of the Rehabilitation Act of 1973 as amended, 29 U.S.C. § 794. Among other rulings, the district court held that "there are no rights, procedures, or remedies available under § 504 for violations of the IDEA's affirmative obligations," and that the United States Department of Education's ("U.S. DOE's") § 504 regulations are not

Page 925

enforceable through a private right of action. It is the relationship between the IDEA and the U.S. DOE's regulations implementing § 504 of the Rehabilitation Act that is at the heart of this case.

As it turns out, that relationship is not straightforward. The IDEA requires, among other things, that states accepting funds under the Act provide disabled children with a "free appropriate public education" ("FAPE"). 20 U.S.C. § 1412(a)(1). Section 504 of the Rehabilitation Act requires that disabled individuals not "be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity" that receives federal funds. 29 U.S.C. § 794. The U.S. DOE regulations implementing § 504 include a requirement that disabled children in schools receiving federal funds be provided a "free appropriate public education." 34 C.F.R. § 104.33. The parties and the district court have assumed throughout this litigation that a violation of the IDEA statutory FAPE requirement necessarily constitutes a violation of the § 504 regulations' FAPE requirement, an understandable assumption given the use of identical language. As we develop below, however, this assumption is wrong. The FAPE requirements in the IDEA and in the § 504 regulations are, in fact, overlapping but different.

This fundamental misunderstanding has complicated our resolution of the issues in this case. Additionally, Congress has clearly stated its intent to preserve all remedies under § 504 for acts that also violate the IDEA. For these two reasons, we hold the availability of relief under the IDEA does not limit the availability of a damages remedy under the § 504 FAPE regulations.

As the H. family has assumed that alleging a violation of the IDEA FAPE requirement is sufficient to allege a violation of § 504, they have not specified precisely whether they believe the U.S. DOE's § 504 FAPE regulations, as opposed to the IDEA FAPE requirement, were violated, and, if so, in what regard. Without some clarity about precisely which § 504 regulations are at stake and why, we cannot determine whether the H. family has sufficiently alleged a privately enforceable cause of action for damages. We thus reverse the order of the district court granting summary judgment to the Agency and remand for further proceedings.



A. Historical Background and the Felix Consent Decree.

Hawaii has long struggled to provide adequate services to special needs students in compliance with state and federal law. The U.S. DOE performed a site visit to Hawaii in 1991 and determined that the Hawaii Department of Education ("Hawaii DOE") was not complying with federal law "because mental health services were not always provided to meet the needs of special education students."1 The U.S. DOE report found that although "[t]he [Hawaii] DOE is legally responsible for furnishing these services, . . . [t]he [Hawaii Department of Health ('Hawaii DOH')] provides some free services to these students, but only when it has the resources." The U.S. DOE warned the Hawaii DOE that it must

Page 926

provide or purchase appropriate mental health services for special education students.

In January of 1993, a report by the Auditor for the State of Hawaii entitled A Study on the Memorandum of Agreement for Coordinating Mental Health Services to Children, No. 93-1, acknowledged that efforts to coordinate among state agencies the provision of mental health services for special education students had largely failed. The report concluded that "the [Hawaii DOE] must provide or purchase mental health services for special education students when the [Hawaii DOH] cannot provide these services."

Later in 1993 a class of plaintiffs comprised of disabled children and adolescents eligible for special education and mental health services sued the Hawaii DOE and the Hawaii DOH in federal court, claiming a failure to comply with the IDEA and with § 504 of the Rehabilitation Act. Felix v. Waihee, CV. No. 93-00367-DAE. The district court granted summary judgment for the class on the issue of liability, finding that the agencies "ha[d] systematically failed to provide required and necessary educational and mental health services to qualified handicapped children," in violation of both federal laws. Thereafter, in 1994, the parties entered into a consent decree (the "Felix Decree"), which was approved by the district court.

In the Felix Decree, the two state agencies acknowledged that they had violated the federal IDEA and § 504 of the Rehabilitation Act. The agencies agreed that the Hawaii DOE would provide all educational services the Felix class members require; that the Hawaii DOH would provide all mental health services the class members require to benefit from the educational services; and that the two agencies would create and maintain a system of care adequate to provide a continuum of services, placements, and programs necessary for disabled students. The Felix Decree defined the plaintiff class as "all children and adolescents with disabilities residing in Hawaii, from birth to 20 years of age, who are eligible for and in need of education and mental health services but for whom programs, services, and placements are either unavailable, inadequate, or inappropriate because of lack of a continuum of services, programs, and placements." Autistic children fall within the Felix class.

B. Michelle H.

Michelle H. and Natalie H. are the children of Mark and Rie H. Michelle H. was born on February 15, 1991. In March 1994, a Hawaii DOH psychologist who examined Michelle concluded that she had "mild Autistic Spectrum Disorder (or Pervasive Developmental Disorder)."2 The DOH psychologist made a number of recommendations to address Michelle's limitations, including enrollment in the Hawaii DOE's Preschool Program, use of numerous autism-specific approaches, and assignment of an extra aide to work one-on-one with Michelle in the classroom. According to the Hawaii DOE, the psychologist's recommendations to deal with Michelle's autism were never implemented "because of difficulties . . . in getting appropriate personnel as well as appropriate funding."

In April 1994, the Hawaii DOE performed its own academic and psychological

Page 927

evaluation of Michelle to determine her early special education needs. The Hawaii DOE found Michelle eligible for early special education services under the IDEA because of "chronic emotional impairment," not because she suffered from an autism disorder. The Hawaii DOE developed an Individualized Educational Program ("IEP") for Michelle, including placement in a fully selfcontained special education classroom on a regular school campus for an extended school year with special education and speech therapy services. Michelle's IEP was updated at regular intervals through 1998, but the recommendations remained substantially unchanged. No representative from DOH attended any of the IEP sessions to discuss mental health services.

In April 1997, the Hawaii DOE changed Michelle's eligibility category from "Emotional Impairment" to "Autism." The Hawaii DOE reassessed her IEP in January 1998, after the diagnosis changed. The recommendations in the new IEP remained nearly identical to those made before the change in diagnosis and included no additional individualized services related to autism.

C. Natalie H.

Natalie H. was born on August 3, 1992. In 1994, the preschool that Natalie was attending, concerned that she might have a "pervasive development disorder," referred her to the Hawaii DOH. The Hawaii DOH performed a psychological evaluation in September 1994 and determined that, at the age of two, Natalie was developmentally at the age of a one-year old overall, but that "[she] showed no symptoms of Pervasive Developmental...

To continue reading