D. D. v. L. A. Unified Sch. Dist.

• Decision Date: 31 December 2020
• Docket Number: No. 19-55810,19-55810
• Citation: 984 F.3d 773
• Parties: D. D., a minor, BY AND THROUGH his Guardian Ad Litem, Michaela INGRAM, Plaintiff-Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

984 F.3d 773

D. D., a minor, BY AND THROUGH his Guardian Ad Litem, Michaela INGRAM, Plaintiff-Appellant,

v.LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant-Appellee.

No. 19-55810

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 2, 2020 Pasadena, California

Filed December 31, 2020

LIPEZ, Circuit Judge:

Appellant D.D., an elementary school student who has attention deficit hyperactivity disorder

("ADHD") and severe, disability-related behavioral issues, brought this action pursuant to the Americans with Disabilities Act ("ADA") alleging that the Los Angeles Unified School District ("the District") denied him "equal access to [a] public education" because of his disability. D.D. seeks damages for harms stemming from his repeated exclusion from school and for abusive treatment he experienced when he attended. The district court dismissed D.D.’s complaint on the ground that he failed to exhaust his claim through the administrative procedures prescribed by the Individuals with Disabilities Education Act ("IDEA"), as required when a plaintiff seeks relief under other federal statutes for the denial of a free appropriate public education ("FAPE"). See 20 U.S.C. §§ 1400, 1415(l ).

Having appellate jurisdiction pursuant to 28 U.S.C. § 1291, we vacate that dismissal. A close review of D.D.’s allegations reveals that the gravamen of his ADA claim is discrimination separate from his right to a FAPE. Hence, his ADA claim is not subject to IDEA exhaustion. See Fry v. Napoleon Cmty. Sch. , ––– U.S. ––––, 137 S. Ct. 743, 748, 197 L.Ed.2d 46 (2017).

I. FACTUAL BACKGROUND¹

D.D. is an elementary school student whose "disability-related behaviors ranged from being off-task and impulsive to being physically aggressive toward peers and adults." As early as kindergarten (the 2015–2016 school year), D.D.’s mother was regularly called to take him home early from school "because his ‘behaviors interfered [with] the other students.’ " D.D.’s mother requested a one-to-one aide "to accommodate D.D.’s needs and enable him to participate with his peers," but the request was denied. D.D. transferred to a different school for first grade, but his behavior worsened. He struck himself, his classmates, and school staff members. D.D. left the classroom regularly and, at times, caused property damage, "once punching a classroom fire extinguisher."

Early in the first-grade year, D.D.’s mother was given "an ultimatum": she could either retrieve D.D. from school because of his "disruptive, disability-related behaviors," or have a family member serve as his one-to-one aide in the classroom. Both D.D.’s mother and her partner, Albert, worked full-time jobs, but they decided that Albert would leave his job to serve as D.D.’s aide. However, late in the school year, on a day that Albert was unavailable, D.D. had a "severe behavioral incident" that prompted the school to summon a Psychiatric Emergency Team ("PET team"). The episode subsided before the PET team arrived at the school, and D.D.’s mother took him home. That evening, the PET team came to the family's home and informed D.D.’s parents that he needed to be placed on a 24-hour psychiatric hold at a hospital. Ultimately, D.D. spent seven days at the facility. After this incident, D.D.’s mother again unsuccessfully requested a one-to-one aide for him.

D.D.’s behavioral issues persisted through the second grade, even with Albert accompanying him on most days. His mother again sought accommodations, including a one-to-one aide or placement in a non-public school, which were denied. A particularly serious episode occurred in October 2017, when D.D. threw a chair and a water bottle, the latter hitting a classroom aide. The aide took D.D. out of the classroom so he could calm down, and, while outside, D.D. "stumbled down a few stairs." Upon his return to the classroom, D.D. claimed that the aide had pushed him down the stairs. The school principal called the police, who interviewed D.D. at school. His parents were not called. The episode left D.D. emotionally shaken.

After this incident, school staff members routinely taunted D.D., "telling [him] that if he did not behave, they would call the police and he would end up either in jail or in the hospital again." These threats traumatized D.D. and caused "lasting emotional harm, making it impossible for him to attend school altogether." At the end of November 2017, D.D.’s mother withdrew him from school for several weeks. In mid-December, he re-enrolled in his original elementary school, but his circumstances did not improve. "He commonly left class and walked around the campus for almost the entire school day unattended."

In January 2018, D.D. was referred to a non-public school with a small program and more adult assistance. That placement initially improved his academic experience, but he was routinely bullied on the bus and, on three occasions, he arrived home from school with noticeable bruises on his face

. Two of those episodes involved attacks by other students; on the third occasion, a staff member slammed D.D.’s face against a wall when he became aggressive. D.D. stopped attending school at the end of May "because [his mother] feared for his safety." He enrolled in a new non-public school in September 2018.

Meanwhile, in March 2018, D.D.’s mother had requested a due process hearing before California's Office of Administrative Hearings, Special Education Division, consistent with the requirements of the IDEA.² See 20 U.S.C. § 1415(f). The 43-page "Request for Mediation & Due Process Hearing" described in detail the District's asserted failures to provide D.D. with the evaluations, services, and programs necessary to provide him with a FAPE, despite the goals and assessments specified in his individualized education program ("IEP").³ The Request noted that, in addition to his behavior issues and ADHD, D.D. "has need in the areas of communication and fine motor skills, for which he has received language and speech ("LAS") therapy and occupational therapy ("OT")." The Request stated that, for the 2015–2016 and 2016–2017 school years, the District had failed, inter alia , to provide D.D. with a "one-to-one behavior aide or behavior intervention implementation ("BII") services."

The Request also asserted a litany of educational deficits resulting from the alleged inadequate provision of services. For example, the document stated that, as of December 2016, when D.D.’s IEP Team met for its annual review, "[h]e had not met any of his goals[ ] in the areas of find[sic] reading, writing, expressive language, math, and behavioral support." As of October 2017, his IEP indicated that he had met his math and reading goals, but not his goals in writing, expressive language, occupational therapy, or behavior support. The Request reported that D.D.’s mother had asked the IEP Team at that time to consider a one-to-one behavioral aide or moving D.D. to a non-public school. The IEP Team declined both options.

The Request identified thirteen "problems" that needed to be addressed. Problems One through Five listed deficiencies that allegedly denied D.D. a FAPE from February or March 2016 through the present (i.e., early 2018), including the failure to provide behavioral, speech and language, psychological, and social-skills services. Problems Six through Nine disputed different assessments of D.D. performed by the District, noted the failure to reevaluate his occupational therapy needs, and requested independent evaluations at public expense. Problems Ten and Eleven asserted that the District had failed to offer D.D. a FAPE in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and Problem Twelve stated that the District "violated Section 504 of the Rehabilitation Act and the Americans with Disabilities Act when it discriminated against [D.D.] on the basis of his disability." Problem Thirteen asserted a violation of a state civil rights statute (the "Unruh Civil Rights Act").

In the Requested Remedies section of the document, D.D.’s mother sought an order directing the District to provide eight specified services "as an offer of FAPE," including "a full time, one-to-one behaviorally trained aide by a nonpublic agency," twelve hours per month of "behavior intervention development," and revision of D.D.’s "behavioral support plan."⁴ She also sought (1) funding or reimbursement for various assessments and evaluations,⁵ (2) compensatory education services, ⁶ (3) damages for violations of the Rehabilitation Act, ADA, and Unruh Civil Rights Act, and (4) "any other remedies deemed appropriate by the hearing officer assigned to this case."

D.D. and the District eventually negotiated a settlement agreement resolving "all educational claims ... arising under the IDEA, ... and all California special education statutes and regulations." The six-page agreement expressly did not "release any claims for damages required to be asserted in a court of law and which could not have been asserted in proceedings under the IDEA and/or California special education statutes and regulations," including "any claims that can be made under" the ADA.

In January 2019, D.D. filed this action against the District, alleging violations of the ADA and the Rehabilitation Act. A subsequent amended complaint dropped the Rehabilitation Act claim and sought only damages for disability discrimination under the ADA. The District filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and, as noted above, the district court dismissed the complaint. The court accepted the District's argument that D.D.’s federal action "mirrors the ... due process complaint and does, at the end of the day, seek FAPE relief." Accordingly, the court held that the ADA claim must be exhausted through the administrative process and that, because D.D. had not done so, his complaint must be dismissed without prejudice.

II. ANALYSIS

A. Standard of Review

The district...