Sullivan v. Vallejo City Unified School Dist., CIV. S-89-1505 LKK.

• Decision Date: 01 March 1990
• Docket Number: No. CIV. S-89-1505 LKK.,CIV. S-89-1505 LKK.
• Citation: 731 F. Supp. 947
• Court: U.S. District Court — Eastern District of California
• Parties: Christine SULLIVAN, By and Through Michele SULLIVAN, her Guardian Ad Litem, Plaintiff, v. VALLEJO CITY UNIFIED SCHOOL DISTRICT; The Governing Board of the Vallejo City Unified School District; Henry Elliott, Hal Pickens, Francesca Demgen, Coke Morrison, Gina Snyder, in their capacities as members of The Governing Board of the Vallejo City Unified School District; M. Dale Welsh, in his capacity as Superintendent of The Vallejo City Unified School District; Edward W. Brower, in his capacity as Director of Special Services for The Vallejo City Unified School District; Joseph Jones, in his capacity as Principal of Hogan Senior High School, Defendants.

731 F. Supp. 947

Christine SULLIVAN, By and Through Michele SULLIVAN, her Guardian Ad Litem, Plaintiff, v. VALLEJO CITY UNIFIED SCHOOL DISTRICT; The Governing Board of the Vallejo City Unified School District; Henry Elliott, Hal Pickens, Francesca Demgen, Coke Morrison, Gina Snyder, in their capacities as members of The Governing Board of the Vallejo City Unified School District; M. Dale Welsh, in his capacity as Superintendent of The Vallejo City Unified School District; Edward W. Brower, in his capacity as Director of Special Services for The Vallejo City Unified School District; Joseph Jones, in his capacity as Principal of Hogan Senior High School, Defendants.

No. CIV. S-89-1505 LKK.

United States District Court, E.D. California.

March 1, 1990.

Sidney Wolinsky and Linda D. Kilb, Disability Rights Educ. & Defense Fund, Berkeley, Cal., for plaintiff.

Jan K. Damesyn and Scott Yarnell, Kronick, Moskovitz, Tiedmann & Girard, Sacramento, Cal., for defendants.

Marian M. Johnston, Deputy Atty. Gen., Sacramento, Cal., for amicus State of Cal.

ORDER

KARLTON, Chief Judge Emeritus.

Plaintiff is a 16-year old disabled student at Hogan Senior High School in Vallejo, California. She has cerebral palsy, learning disabilities and rightside deafness. In her first amended complaint, filed on December 26, 1989,¹ plaintiff alleges that she currently uses a wheelchair for mobility. In February 1988, she participated in an intensive two-week training program organized by Canine Companions for Independence ("Canine Companions"), an organization that trains service dogs for use by people with disabilities. First Amended Complaint at paras. 16 and 17; Declaration of Bonita Bergin in Support of Motion for Preliminary Injunction at 1. At the conclusion of the training, plaintiff received a service dog for a probationary period which she subsequently completed. Id.

Plaintiff complains that defendants have refused to allow her to bring her service dog to school in violation of rights secured by section 504 of the Rehabilitation Act of 1974, 29 U.S.C. § 794, California Civil Code §§ 54.1 and 54.2, and California Civil Code § 51 (Unruh Civil Rights Act). Accordingly, she seeks injunctive and declaratory relief against the Vallejo City Unified School District, several school administrators and various members of the Vallejo School Board. She also seeks damages under claims for intentional and negligent infliction of emotional distress.

The matter is currently before the court on defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and plaintiff's motion for a preliminary injunction.

I DEFENDANTS' MOTION TO DISMISS

Defendants move to dismiss plaintiff's Rehabilitation Act claim, arguing that plaintiff has failed to exhaust available administrative remedies and thus this court is without subject matter jurisdiction. Defendants seek dismissal of plaintiff's pendent claims for failure to state a claim. For the reasons I explain below, the motion is denied.

A. The Rehabilitation Act Claim

1. Standards

It is well established that the party seeking to invoke the jurisdiction of the federal court has the burden of establishing that jurisdiction exists. KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 201, 81 L.Ed. 183 (1936); Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.1986). On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), the standards that must be applied vary according to the nature of the jurisdictional challenge. I have previously examined the mode of ascertaining and applying those standards, see Cervantez v. Sullivan, 719 F.Supp. 899, 903 (E.D.Cal.1989), and it is unnecessary to repeat that discussion at length here.

A complaint will be dismissed for lack of subject matter jurisdiction (1) if the cause does not "arise under" any federal law or the United States Constitution, (2) if there is no case or controversy within the meaning of the constitutional term, or (3) if the cause is not one described by any jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 699, 7 L.Ed.2d 663 (1962).

2. Exhaustion of Claims

Defendants contend that this court lacks jurisdiction to entertain plaintiff's section 504 claim because she has failed to exhaust the administrative remedies provided by the Education of the Handicapped Act, 20 U.S.C. § 1400 et seq. ("EHA") as required by the Handicapped Children's Protection Act of 1986, 20 U.S.C. § 1415(f) ("HCPA"). Resolution of the motion turns upon a close examination of the relationship of the three statutes. I undertake that task below.

Section 504 to the Rehabilitation Act of 1973 generally prohibits discrimination against disabled individuals by federally funded programs.² The implementing regulations promulgated by the Department of Education make clear that educational institutions, including preschool, elementary and secondary schools that receive federal funds come within the ambit of the statute. See 34 C.F.R. §§ 104.31, et seq.; see also Timms v. Metro. School Dist. of Wabash Cty. Ind., 722 F.2d 1310, 1317 (7th Cir. 1983). The statute has been interpreted to require federal grantees to modify or excuse non-essential requirements which impede a disabled person from participating in the grantee's federally funded program. It has been held that a grantee's refusal to make "reasonable accommodations" for the disabled person can only be explained as "unreasonable or discriminatory." South-eastern Community College v. Davis, 442 U.S. 397, 413, 99 S.Ct. 2361, 2370, 60 L.Ed.2d 980 (1979).

The Education of the Handicapped Act, 20 U.S.C. § 1400, on the other hand, is a funding statute "passed in response to Congress' perception that a majority of handicapped children in the United States `were either totally excluded from schools or were sitting idly in regular classrooms awaiting the time when they were old enough to drop out.'" Bd. of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 3037, 73 L.Ed.2d 690 (1982), citing H.R.Rep. No. 94-332 at 2 (1975). To achieve the goal of ensuring that all handicapped children obtain a "free appropriate public education," the statute imposes on federally subsidized schools an affirmative obligation to create an "individualized education program" ("IEP") for each child who, as a result of a physical, mental or emotional disability, "requires special education and related services." 20 U.S.C. § 1401(a)(1) and (5). The Supreme Court has held that the substantive requirements of the statute are satisfied where the handicapped child receives "personalized instruction and sufficient support services to permit the child to benefit educationally from that instruction." Hendrick, 458 U.S. at 203, 102 S.Ct. at 3049. The High Court has determined that the guarantee of equal protection requires no more than the provision of a "basic floor of educational opportunity." Id. at 200, 102 S.Ct. at 3047. The statute, however, does impose extensive procedural requirements upon participating states. Thus it requires that the parents or guardians of handicapped children be provided notice and an opportunity to be heard in an administrative proceeding regarding any proposed changes in the child's educational program or placement. See 20 U.S.C. §§ 1415(b)(1)(D), 1415(b)(1)(E), 1415(b)(2) and 1415(c).³

In the context of primary and secondary education, EHA and section 504 present "a complimentary set of standards ... to determine the appropriate educational setting for a handicapped child." Martinez By and Through Martinez v. School Bd. of Hillsborough Cty., Fla., 861 F.2d 1502, 1505 (11th Cir.1988). While EHA and section 504 create parallel remedies where a school district fails in its obligation to provide a handicapped child with a basic floor of educational opportunity, see Timms, 722 F.2d at 1318, the substantive rights created by the two statutes are distinct. Moreover, in certain circumstances, section 504 creates greater substantive rights than those available under EHA. See Smith v. Robinson, 468 U.S. 992, 1021, 104 S.Ct. 3457, 3473, 82 L.Ed.2d 746 (1984). For example, section 504 provides a remedy, unavailable under EHA, where a disabled student has been provided basic educational opportunities but has been treated arbitrarily or in a different manner than similarly situated able-bodied students by virtue of his or her handicap.

Finally, a third statute must be considered. In 1986, Congress passed the Handicapped Children's Protection Act ("HCPA") as an amendment to EHA. 20 U.S.C. § 1415(f). HCPA requires exhaustion of the EHA administrative remedies prior to filing suit under Section 504 to the extent that the relief sought in the section 504 action would be equally available under EHA. The statute makes clear, however, that EHA does not "restrict or limit the rights, procedures and remedies available under ... Title V of the Rehabilitation Act of 1973." 20 U.S.C. § 1415(f).

Plaintiff seeks a court order requiring the school district to allow plaintiff to be accompanied by her service dog at school. Defendants argue that to achieve this goal, plaintiff can convene an IEP hearing for the purpose of determining whether she requires the assistance of the service dog to obtain the educational benefits guaranteed to her by EHA. Defendants conclude that since the possibility exists that plaintiff could achieve her objective through the IEP process, through a finding that the service dog would be of some educational benefit to plaintiff, this court's jurisdiction over parallel causes of action is conditioned on her exhaustion of these procedures pursuant to the HCPA. The argument will not lie.

Defendants' argument is premised on the erroneous assumption that plaintiff claims she is being deprived of a "free appropriate public education" within the meaning of EHA as a result of defendants' decision...