C.O. v. Portland Public Schools

• Decision Date: 22 December 2005
• Docket Number: No. CV05-558-HU.,CV05-558-HU.
• Citation: 406 F.Supp.2d 1157
• Parties: C.O., a minor, and Pat Oman, his parent, Plaintiffs, v. PORTLAND PUBLIC SCHOOLS, Multnomah School District No. 1, et al. Defendants.
• Court: U.S. District Court — District of Oregon

406 F.Supp.2d 1157

C.O., a minor, and Pat Oman, his parent, Plaintiffs, v. PORTLAND PUBLIC SCHOOLS, Multnomah School District No. 1, et al. Defendants.

No. CV05-558-HU.

United States District Court, D. Oregon.

December 22, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Pat Oman, Portland, Oregon, pro se.

Jeffrey D. Austin, J. Michael Porter, Sarah A. Lowinger, Miller Nash, Portland, Oregon, for defendants.

OPINION AND ORDER

HUBEL, United States Magistrate Judge.

This is an action brought pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1487; section 504 of the Rehabilitation Act, 29 U.S.C. § 794; Titles II and IV of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213; federal civil rights statutes, 42 U.S.C. §§ 1983 and 1985, based on violation of the First and Fourteenth Amendments to the United States Constitution and § 504, IDEA and ADA; Or.Rev.Stat. §§ 659.850, 659A.403, and 659A.142; and a common law claim for intentional infliction of emotional distress (IIED).

Plaintiffs are a child, C.O., and his parent, Pat Oman. Defendants are Portland Public Schools (PPS); the PPS Program Director, Maxine Kilcrease; PPS Special Education Attorney Constance Bull; PPS District representatives Theresa Middleton and Janet Wagner; Jack Ubik, former Fernwood Middle School principal; Alana Coulter, PPS Special Education supervisor; the Oregon Department of Education (ODE); and Susan Castillo, the Superintendent of Public Instruction.

Defendants move to dismiss the Amended Complaint.

Factual Allegations

The Amended Complaint alleges that from September 1993 to the present time, C.O. has been a student enrolled in PPS, identified with a "specific learning disability" and receiving special education services. He attended Laurelhurst Elementary School from 1993 to 1999 and Fernwood Middle School from 1999-2002. Since the 2002-2003 school year, he has been enrolled at Grant High School.

C.O. was identified as a student with a "specific learning disability" in February 1996. Testing done in February 1996, when C.O. was in second grade and had not received any special education services, showed that his math ability was at the second grade level. Testing done in February 2000, when C.O. was in the sixth grade, after more than three years of specialized instruction in math, showed that his overall math ability was equivalent to that of a third grader. Testing done in February 2003, when C.O. was in the ninth grade and after more than six years of specialized instruction in math, showed that C.O. had an overall math ability equivalent to that of a fourth grader.

In the summer of 1996, at his parents' expense, C.O. attended a short, intensive reading program for dyslexics, during which time he learned to read. Between February 1996 and February 2000, C.O.'s reading composite standard score rose from the fourth percentile to the 39^th percentile.

Plaintiffs allege that with appropriate instruction, including one-on-one tutoring, C.O. is capable of learning, as evidenced by the rise in his reading ability between February 1996 and February 2000. However, from February 2000 to February 2003, after three years of specialized instruction in reading, C.O.'s reading ability deteriorated; testing revealed that he had the academic skills of a sixth grader and his writing sample test score was at the equivalent of third grade.

PPS offers vocational, technical, and specialized education curricula at magnet schools and in designated special programs. However, it is PPS's policy that teams generating educational programs and placements for students with disabilities do not place disabled students in PPS magnet schools or in designated special programs, regardless of whether doing so would provide access to an individualized education suited to a particular disabled child.

The Amended Complaint alleges that from March 16-31, 2005, an administrative due process hearing was held to adjudicate most of the allegations contained in the Amended Complaint. However, plaintiffs allege that they are still aggrieved because the relief ordered by the administrative law judge (ALJ) is insufficient to allow C.O. access to the general curriculum and does not compensate for his lost educational opportunities. Plaintiffs request that the court receive the records of the administrative proceedings, hear additional evidence, and conduct a jury trial on their claims.

Standards

A motion under Rule 12(b)(6) should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Edwards v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir. 2004). When ruling on a 12(b)(6) motion, the complaint must be construed in the light most favorable to the plaintiff. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.2003).

Statutory Background

A. The IDEA

IDEA provides states with federal funds to help educate children with disabilities if the states provide every qualified child with a free appropriate public education (FAPE) that meets federal statutory requirements. Amanda J. v. Clark County School Dist., 267 F.3d 877, 882 (9th Cir.2001). Congress enacted the IDEA "to ensure that all children with disabilities have available to them a free appropriate education that emphasizes special education and related services designed to meet their unique needs" and "to ensure that educators and parents have the necessary tools to improve educational results for children with disabilities ..." 20 U.S.C. §§ 1400(d)(1)(A) and (3).

The disabled child's needs are addressed in an Individualized Education Program (IEP), which is specially created for that child through the collaborative efforts of the child's parents, teachers, the local educational agency, and, in appropriate cases, the child himself. 20 U.S.C. § 1414(d)(1)(B). To comply with the IDEA, the IEP must describe the child's present performance levels, the educator's short and long term goals, the specific educational services to be provided, how much the child can participate in regular educational programs, and objective criteria for measuring the child's progress. 20 U.S.C. § 1414(d)(1)(A). At a minimum, the IEP must be reviewed annually to measure the child's progress and to modify his goals and objectives. 20 U.S.C. § 1414(d)(1)(A), (d)(4). Parents and teachers may request more frequent IEP reviews if they feel the child's needs have changed or are not being successfully addressed. Id.

The IDEA creates a right, enforceable in federal court, to the free appropriate public education required by the statute. Honig v. Doe, 484 U.S. 305, 310, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). The IDEA also grants parents specific procedural rights, which they may enforce in administrative proceedings as well as federal court. The IDEA allows parents to represent their children in administrative due process hearings before state or local agencies. 20 U.S.C. § 1415(h)(2); 34 C.F.R. § 303.422(b)(2) (parents have the right to present evidence and examine witnesses in administrative due process hearings held pursuant to IDEA).

IDEA also confers the right to bring a civil action in federal court after a state administrative decision on the adequacy of the child's IEP. Id. at 1415(i)(2)(A).

B. Section 504 of the Rehabilitation Act

To make out a claim under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, a plaintiff must establish, inter alia, that he is 1) an individual with a disability; 2) otherwise qualified; and 3) subjected to discrimination solely by reason of his disability. 29 U.S.C. § 794(a).

C. The ADA

Title II of the ADA provides:

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.

Title II of the ADA was expressly modeled after Section 504 of the Rehabilitation Act. Zukle v. Regents of the University of California, 166 F.3d 1041, 1045 (9th Cir.1999); Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir.2001).

By statute, the remedies for violations of the ADA and the Rehabilitation Act are co-extensive with each other, 42 U.S.C. § 12133; 29 U.S.C. § 794a(a)(2), and are linked to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. These statutes require that ADA and Rehabilitation Act remedies be construed in the same manner as remedies under Title VI. States are no longer immune from damages. 42 U.S.C. § 2000d-7(a)(2). Ferguson v. City of Phoenix, 157 F.3d 668, 673 (9th Cir.1998).

Claims

A. IDEA

Plaintiffs allege that the defendants violated IDEA in the following respects:

1. Defendant Middleton, as the PPS person authorized to commit resources, made final decisions about what to include in C.O.'s IEP at the final IEP meeting on April 24, 2002. Middleton was unfamiliar with C.O., lacked knowledge about specific learning disabilities generally and dyslexia in particular, did not ensure that a regular teacher participated in that meeting, and did not provide copies of C.O.'s prior educational records to the parent before the meeting, although asked to do so. Defendants Middleton and PPS did not give full and fair consideration to the parent's requests for evaluations, services, measurable goals and other IEP content, accommodations, and supports for C.O.; did not provide prior written notice as required by law; and failed to ensure that a final version of the IEP was provided to the parent, all precluding the parent from meaningful involvement in the development of the IEP.

2. The IEP developed for C.O. in April 2002 was substantively defective in that defendants Wagner and Middleton failed to provide sufficient resources, measurable goals, accommodations...