UPDATE ON DISABILITY DISCRIMINATION:
Emerging Issues Affecting the Public & Private Sector
By
Sheryl J. Willert and Jessie L. Harris WILLIAMS KASTNER 601 Union Street, Suite 4100
Seattle, WA 98101 (206) 628-6600
I. DISPARATE TREATMENT CLAIMS UNDER THE ADA&WLAD
The ADA was enacted by Congress in 1990 with the stated purpose of eliminating discrimination against persons with disabilities in the workplace and in places open to the public. 42 U.S.C. § 12101. The Act applies to private, state or local government employers with 15 or more employees for at least 20 weeks. Title I of the ADA prohibits a covered employer from
discriminating against a “qualified individual with a disability”1 on the basis of such disability in regards to job application procedures, hiring, promotions, discharge, compensation, training, or any other terms or privileges of employment. See 42 U.S.C. § 12112(a).
In order to establish a prima facie claim for discrimination under the ADA it must be demonstrated that the employee: 1) is disabled as defined under the ADA; 2) is qualified to perform the essential functions of the position occupied or the position sought; and 3) suffered an adverse action because of his or her disability. Walton v. U.S. Marshal Service, 492 F.3d 998 (9th Cir. 2007); Wilking v. County of Ramsey, 153 F.3d 869 (8th Cir 1998).
The same burden-shifting scheme that applies in other employment discrimination actions
applies to ADA claims. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Once the employee establishes her prima facie case, the burden shifts to the employer to set forth a
legitimate, nondiscriminatory reason for the adverse action. If the employer meets this burden, the burden then shifts back to the employee to demonstrate that the employer’s reason is simply pretext for discrimination. Id. at 804.
Similar to the ADA, a plaintiff seeking to establish a claim prima facie disability discrimination claim under the WLAD must establish that he or she was: 1) disabled; 2) doing satisfactory work; and 3) suffered an adverse employment action. Anica v. Wal-Mart Stores, Inc., 120 Wn. App. 481, 489-91. The plaintiff must present specific and material facts to support each element. Marquis v. City of Spokane, 130 Wn.2d 97 (1996).
A. Defining Disability Under the ADA
An ADA claim cannot lie unless a plaintiff establishes that he or she is disabled within the meaning of the Act. Under the ADA, an employee is deemed disabled if he or she has 1) a physical or mental impairment that substantially limits one or more of the major life activities 2) a record of such an impairment, or 3) is regarded as having such an impairment. See 42 U.S.C. § 12102(2).
1. Impairment that Substantially Limits Major Life Activities
To qualify as a disability, the impairment must substantially limit the employee from performing major life activities. Major life activities for ADA purposes include functions such as caring for
1
Under the ADA, a “qualified individual with a disability” is an individual with a disability, who (with or without reasonable accommodation), is capable of performing the essential functions of the position the individual holds or desires. The Act defers to an employer’s judgment as to what functions of a job are essential. However, written job descriptions prepared by the employer will factor into a determination of whether a particular job junction is essential. 42 U.S.C. § 12111(8).
oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 CFR § 1630.2(i). A substantial limitation cannot include any impairment which interferes “in only a minor way” with the performance of manual tasks. Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002). Mental or physical impairments that can be corrected or assisted by medication are generally excluded from the ADA’s definition of a disability. Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) (visual impairment mitigated by corrective lenses did not qualify as a disability); see also Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999) (hypertension treatable with medication fell outside ADA’s definition of a disability).
Employees currently engaged in the use of illicit drugs are not protected under the ADA, nor are employees whose use of alcohol prevents them from performing an essential function of their job. However, recovering drug or alcohol abusers are protected, provided they are capable of performing their jobs. 42 U.S.C. § 12114.
Illustrative Cases
• Ashton v. American Tel. and Tel. Co., 2007 WL 595251, unpublished opinion (3rd Cir. 2007). The court of appeals found that an employee’s anxiety, agoraphobia and depression were temporary conditions lasting a total of three months and did not prevent her from completing her work assignments at home. Accordingly, her temporary conditions did not substantially limit her in the major life activity of thinking such that she was disabled under the ADA.
• Heiko v. Colombo Savings Bank F.S.B., 434 F.3d 249 (1st Cir. 2006). The Court of Appeals overturned the district court’s finding that the plaintiff, who had end-stage renal disease and required dialysis, was not disabled under the ADA. The issue turned on whether the plaintiff’s impairment prevented him from engaging in a major life activity. In overturning the district court, the Court of Appeals reasoned that the elimination of bodily waste and toxins constituted a “major life activity” that plaintiff could not independently perform due to his condition. • Robinson v. Lockheed Martin Corp., 2007 WL 38345, unpublished opinion (3rd
Cir. 2007). The court determined that an employee’s seizure disorder did not substantially limit any of his major life activities, since it did not prevent him from playing sports, cooking, showering, driving, etc.
• Knapp v. City of Columbus, 2006 WL 1878332, unpublished opinion (6th Cir. 2006). The court found that three firefighters with attention deficit hyperactivity disorder, under treatment with Ritalin, were not disabled under the ADA and were not entitled to accommodations in taking promotion tests. The court determined that the ADA’s coverage is restricted to only those whose impairments are not mitigated by corrective measures. If an ADA plaintiff can fully compensate for impairment through medication, personal practice, or an alteration of behavior, a disability under the Act does not exist. The court disagreed with the firefighters’ claim that their ADHD substantially limited the major life activity of learning.
• Kampmier v. Emeritus Corp., 472 F.3d 930 (7th Cir. 2007). Although the plaintiff suffered from painful endometriosis requiring surgery, the condition did not limit her ability to engage in major life activities. When the employer fired her for failing to obtain a doctor’s note concerning her surgery, plaintiff sued alleging disability discrimination. The court held that she did not have her claim under the ADA because she did not make an individualized showing of a
disability. The court found that even though her conditions could impair major life functions, she lived an active life, cared for herself and her family, and could perform the tasks central to most persons’ lives.
2. Record of a Disability.
The ADA protects employees with a record or history of having a substantially limiting
impairment. 29 CFR § 1630.2(k). For instance, it protects an employee with a history of cancer, heart disease, or some other illness that is either in remission or has been cured. Another
example would include a person with a history of mental illness. 3. Regarded as Disabled.
The ADA covers employees who are mistakenly regarded by their employers as having an impairment that substantially limits a major life activity. 29 CFR § 1630.2(l).
Illustrative Case
• Taylor v. USF-Red Star Express, Inc., 2006 WL 3749598, unpublished opinion (3rd Cir. 2006). Employer was liable for regarding its employee as disabled even though the employee was responsible for the mistaken perception. The employee told his employer he was prone to seizures that made him a danger to the public. He was not. Employer did not allow him to work for 18 months because of conflicting physician opinions regarding the nature or severity of the seizures. B. Defining Disability Under the WLAD
Washington law previously defined a disability as a 1) sensory, mental, or physical abnormality that 2) substantially limits an employees ability to perform his or her job. Pulcino v. Fed. Express Corp., 141 Wn.2d 626, 641 (2000). This definition was significantly broader than the ADA’s definition, and allowed employees with temporary conditions (e.g., back strains, fractured limbs, etc.) to qualify as disabled under the WLAD.
Last year the Washington Supreme Court overturned Pulcino and adopted the narrower ADA definition. See McClarty v. Totem Electric, 157 Wn.2d 214, 229 (2006). However, in May 2007, the legislature amended the WLAD (effective July 22, 2007) to adopt a seemingly broader definition than originally articulated in Pulcino. See RCW 49.60.040(25).
The amendment defines a disability as an impairment that is medically cognizable or
It further states that a disability exists “whether it is temporary or permanent, common, or uncommon, mitigated or unmitigated, and whether or not it limits employee’s ability to work generally or at a particular job.” RCW 49.60.040(25(b). Of note, the legislature also made the amendment retroactive to apply to causes of action occurring before July 6, 2006 for the express purpose of nullifying the Supreme Court’s decision in McClarty.
The issue as to whether the retroactive provision is valid remains unresolved. On July 27, 2007 U.S. District Court Judge Marsha Pechman (of the Western District of WA) issued an order in Varga v. Stanwood-Camano School District, Cause No. C06-178MJP declaring the retroactive provision of the Legislative amendment invalid on grounds that it violates the separation of powers doctrine. Several months later, on September 28, 2007, U.S. District Court Judge, Thomas Zilly (also of the Western District of WA) issued a contradictory ruling in Delaplaine v. United Airlines, Inc., 2007 WL 2821494 (W.D. WA 2008) finding the retroactive amendment valid and enforceable.
It remains to be seen how the Ninth Circuit will resolve this question. If the Ninth Circuit upholds the retroactive amendment, it would completely nullify the McClarty decision, making the broader definition of a disability binding on claims arising after July 6, 2006. If the
retroactive provision is declared invalid, claims arising between July 6, 2006 and July 21, 2007 will be subject to the narrower ADA definition of a disability as adopted by McClarty; and actions arising after July 22, 2007 (the effective date of the amendment) will be subject to the broader definition of a disability.
II. DISCRIMINATION BASED ON FAILURE TO ACCOMMODATE.
A. Reasonable Accommodation under the ADA
The ADA also imposes an affirmative duty upon employers to make reasonable accommodations for an employee’s disability, unless it can be demonstrated that the accommodation “would impose an undue hardship on the operation of the business.” 42 U.S.C. § 12112(b)(5); see also Zivkovic v. Southern California Edison Co., 302 F.3d 1080 (9th Cir. 2002). Even if an employer does not discriminate in hiring, promoting or firing a disabled employee, its failure to
accommodate disabled employees may constitute disability discrimination.
Reasonable accommodations often consist of physical changes to the workplace to aid disabled employees, e.g., installing ramps for wheelchair-bound employees. Examples of other
accommodations might include: 1) modifying job duties or work schedules; 2) allowing additional unpaid leave for medical reasons; 3) moving the employee to a vacant light-duty position; 4) installing special equipment to help the employee perform his duties; 5) providing the employee with a reader or interpreter; or 6) modifying tests, examinations, training materials or policies.2 See 29 CFR § 1630.2(o).
2
In order to establish a prima facie “failure to accommodate” claim under the ADA, the employee must demonstrate that: 1) he is disabled; 2) he was qualified to perform the essential functions of the job with an accommodation; and 3) he suffered an adverse employment action because of his disability. Allen v. Pacific Bell, 348 F.3d 1113 (9th Cir. 2003).
As noted, an employer is not required to provide a specific accommodation if it would cause an undue hardship. Whether an accommodation causes an undue hardship to an employer will be considered in light of factors such as: 1) the nature and expense of the accommodation, 2) the overall financial resource of the facility involved in providing the accommodation, and 3) the impact of he accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties. See 42 U.S.C. § 12111(10).
It bears noting that under the ADA, the duty to provide a reasonable accommodation is not triggered until the employee requests the same. The exception to this rule is where an employee has a known disability that impairs his/her ability to effectively communicate a need for an accommodation. Zivkovic, 302 F.3d at1089.
Illustrative Cases
• Barnhart v. Wal-Mart Stores, Inc., 2006 WL 3147301, unpublished opinion (3rd Cir. 2006). The court determined that a Wal-Mart employee who was denied a transfer to the position of loss prevention associate because he was unable to hear without a hearing aid had no claim under the ADA. The court found that the employee’s suggested
accommodation – use of a two-way pager – was not reasonable because the primary purpose for the position was to apprehend shoplifters, which required constant visual contact with suspects. The court reiterated that a reasonable accommodation includes an adjustment the work place that enables a disabled employee to perform essentials
functions of the job. The court found that the use of a two-way pager would divert the employee’s attention away from suspects and to the screen of his pager. Such an
accommodation was unreasonable because it could not assist the employee in performing essential functions of his job.
• EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561 (8th Cir. 2007). The court of appeals found that Wal-Mart violated the ADA in failing to hire a man bound to a wheelchair as a greeter or cashier. The court determined that because the potential employee could perform the essential functions of the greeter and cashier position with a reasonable accommodation.
• Warren v. Volusia County, 2006 WL 1818938, unpublished opinion (11th Cir.). An employer was not required to provide reasonable accommodation to an employee who did not ask for the accommodation. The duty to provide a reasonable accommodation is not triggered unless a specific demand has been made, and while there are no “magic words” required knowledge of her disability, limitations and desire to return to work did not trigger the right to an accommodation. If such were shown, the plaintiff would still then bear the burden that such accommodation allows him/her to perform the job’s essential functions.
B. Reasonable Accommodation Under the WLAD
The WLAD also requires employers to reasonably accommodate a disabled employee, provided it would not result an undue hardship. Pulcino v. Federal Express Corp., 141 Wn.2d 629 (1998). To establish a prima facie case of failure to accommodate under the WLAD, the employee must establish: 1) he is disabled; 2) he was qualified to perform the essential functions of the job with accommodation; 3) he gave the employer notice of the abnormality and its substantial
limitations; and 4) upon notice, the employer failed to affirmatively adopt available measures that were medically necessary to accommodate the abnormality. Hines v. Todd Pacific
Shipyards Corp., 127 Wn. App. 356, 371 (2005); Davis v. Microsoft Corp., 149 Wn.2d 521, 532 (2003).
Under Washington law, an employee is not entitled to any accommodation he or she demands. Rather, an employer is only obligated to provide an employee with “medically necessary” accommodations. Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 147 (2004). The employee bears the burden of proving the accommodation is medically necessary. See Hines, 127 Wn. App. at 373. Assuming an employee establishes that his proposed accommodation is available and medically necessary, the burden shifts to the employer to show that the proposed solution is not feasible. Pulcino, 141 Wn.2d at 643.
III. HOSTILE WORK ENVIRONMENT
The ADA and WLAD also recognize a disability-based hostile work environment claim. See Brian L. Porto, Annotation, Actions Under Americans with Disabilities Act (42 U.S.C.A. §§ 12101 et seq.) to Remedy Alleged Harassment or Hostile Work Environment, 162 A.L.R. Fed. 602, 612024 (2000); see also Robel v. Roundup Corp., 148 Wn.2d 35 (2002). In order to establish a disability-based hostile work environment claim, a plaintiff must prove 1) that he or she was disabled within the meaning of the antidiscrimination statute; 2) that the harassment was unwelcome; 3) that it was because of the disability; 4) that it affected the terms and conditions of the employment; and 5) that it was imputable to the employer. Robel, 148 Wn.2d at 45.
In order to impute discrimination to an employer, a jury must find that 1) an owner, manager, partner or corporate officer personally participated in the harassment or 2) the employer knew or should have known of the harassment and failed to take reasonably prompt and adequate
corrective action. Id. at 44 (citing Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401 (1985). The corrective action must be of such a nature to have been reasonably calculated to end the
harassment. Id. at 48. IV. EMPLOYER DEFENSES
A. Direct Threat
Under the ADA, employers are not required to hire employees whose presence in the work place causes a “direct threat” to the health and safety of the employee with a disability or others. 42 U.S.C. § 12113(a) – (b). A direct threat is a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation. Id. § 1211(3). An employer must make an
“individualized assessment of the individual’s present ability to safely perform the essential functions of the job.” Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 86 (2002); see also Morton v. United Parcel Service, 272 F.3d 1249, 1258-59 (9th Cir. 2001).
B. Bona Fide Occupational Qualification
In Washington, an otherwise discriminatory qualification may be deemed not discriminatory under the WLAD if it is based upon a bona fide occupational qualification (“BFOQ”). See RCW 49.60.180(1); Rhodes v. URM Stores, Inc., 95 Wn. App. 794 (1999). Such a qualification must be reasonably necessary for the operation of the employer’s business or enterprise and the burden of proof rests with the employer. This defense is not applicable to disability claims under the ADA.
C. Same Actor Defense
Both the Ninth Circuit and Washington courts have recognized the “same actor” defense, which hold, “where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory action.” Coghlan v. American Seafoods Company LLC, 413 F.3d 1090, 1096 (9th Cir. 2005) (analyzing the “same actor” defense in the context of the WLAD). The Washington Supreme Court has utilized this defense to dismiss a disability claim where a person is hired and fired by the same person within a relatively short period. Hill v. BCTI Income Fund-II, 144 Wn.2d 172, 189-90 (2001).
V. REMEDIES UNDER THE ADA&WLAD
An employee who prevails in establishing a discrimination claim under either the ADA or WLAD may recover back pay (with pre-judgment interest, front pay, actual damages, reasonable attorney fees and damages for mental anguish or emotional distress. Under the ADA, an
employee may also recover punitive damages if the employer discriminates with malice or reckless indifference to the federally protected rights of the employee. Kolstad v. American Dental Ass’n., 527 U.S. 526, 529-30 (1999). An employer may avoid liability for compensatory and punitive damages under the ADA by demonstrating that it made a good faith effort to accommodate the disability. See 42 U.S.C. § 1981a(3).
Legislative Update
• ADA Restoration Bill (House Bill 3195): Introduced by Steny Hoyer (D. MD) and James Sensenbrenner (R. WI), the bill seeks to overturn key Supreme Court decisions narrowing the ADA’s definition of disability – Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), Murphy v. United Parcel Services, Inc., 527 U.S. 516 (1999). If passed, it would amend 42 U.S.C. § 12101 to state, in part: “[t]he determination of whether an individual has a physical impairment shall be made without considering the impact of any mitigating measures the individual may or may not be using or whether or not any manifestations of an impairment are episodic, in remission, or latent.”
VI. SPECIAL EDUCATION &IDEACLAIMS
A. Individuals with Disabilities Education Act (“IDEA”)
The IDEA was enacted in 1975 with the objective of ensuring that “all children with disabilities have available to them a free appropriate public education …” 20 U.S.C. 1400(d)(1)(A) – (B). With the IDEA came the requirement that school districts work with parents to develop an Individualized Education Program (“IEP”) for disabled students. 20 U.S.C. § 1414(d). The IEP includes an evaluation of the student’s current educational performance and designs an instructional program to assist the student in achieving annual and short-term objectives. Id. Parents of disabled children are afforded the opportunity to fully participate in the development and implementation of the IEP. 42 U.S.C. § 1414(a) – (d). The IEP team must, at a minimum, include the student’s parents, regular education teacher (if the child is or may be participating in the regular education environment), special education teacher, a school representative with local authority, and a person capable of interpreting the student’s evaluation results. Id. at § 1414(1)(B).
The IEP has been described as the “centerpiece of the IDEA’s education delivery system for disabled children.” See Honig v. Doe, 484 U.S. 305, 311 (1988). Accordingly, it is not
surprising that most IDEA claims involve disputes over the formation or implementation of the IEP. The Act prescribes a process by which parents who object to aspects of the IEP can file an administrative complaint and obtain an impartial due process hearing. 20 U.S.C. § 1414(f). In Washington, the Office of the Superintendent of Public Instruction (OSPI) is charged with promulgating rules to satisfy IDEA mandates including due process hearings. See WAC 392-172-350. At the due process hearing, parents have a right to be accompanied and advised by counsel, present evidence, cross-examine and compel the attendance of witnesses. 20 U.S.C. § 1414(h).
Parents aggrieved by a hearing officer’s findings and decision can file a civil action in either federal or state court. Id. at § 1415(i)(2). Such actions tend to assert procedural or substantive defects involving the IEP process, in which case a court must decide whether the alleged defects effectively deprive the student of a free appropriate public education (“FAPE”). 42 U.S.C. § 1415(f)(3)(E)(i). The party asserting a violation of the IDEA bears the burden of proof. Schaffer v. Weast, 546 U.S. 49 (2005); Doe v. Ariz. Dept. of Educ., 111 F.3d 678, 681 (9th Cir. 1997).
1. Procedural Violations
Procedural claims concerning the IEP typically involve allegations that a school district failed to conduct a proper evaluation, convene a conference, allow for parental participation, include appropriate personnel on the IEP team, train staff or aides, or maintain proper records.
However, procedural omissions will not result in a per se FAPE deprivation. Ford ex rel., Ford v. Long Beach Unified School Dist., 291 F.3d 1086, 1089 (9th Cir. 2002). Technical
violations, for example, “will not render an IEP invalid.” Burilovich v. Bd. of Educ., 208 F.3d 560, 566 (6th Cir.), cert. denied, 531 U.S. 957 (2000).
A child is denied a FAPE only if a procedural violation 1) results in the loss of educational opportunity, or 2) seriously infringes the parents’ opportunity to participate in the IEP
formation process.” Park v. Anaheim Union High School Dist., 464 F.3d 1025, 1031 (9th Cir. 2006); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994 (1st Cir. 1990).
Illustrative Cases
• R.B., ex rel., F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 938 (9th Cir. 2007). The parent of a disabled student alleged an IDEA violation based on, among other things, the school district’s inclusion of a special education teacher, who had never taught the child, on the IEP team. Although the IEP team did not comply with the IDEA, the violation was harmless because the administrative hearing officer and the district court had previously determined that the child was ineligible to receive IDEA benefits.
• M.L. v. Federal Way Sch. Dist., 394 F.3d 634 (9th Cir. 2005). The parents of a severely autistic child, who declined to attend the IEP meeting, filed an administrative complaint alleging a violation of the IDEA because a regular education teacher was not included on the IEP team. The district court granted summary judgment affirming the
administrative law judge’s determination that the IEP team was appropriately
constituted given the evaluation report recommended against integrating the student into regular education classrooms. The court of appeals reversed the district court, finding that the school district’s failure to include a regular education teacher on the IEP
significantly deviated from the procedural requirements of the IDEA. The court further remanded the matter to the district court with an instruction to “direct the school district to select an IEP team that fully complies with the procedural requirements of the
IDEA.”
• H.B., ex rel. P.B. v. Las Virgenes Unified School Dist., 2007 WL 1989594, unpublished decision (9th. Cir. 2007). The district court found that a school district committed a procedural violation of the IDEA by predetermining the student’s placement, thereby depriving the parents of a meaningful opportunity to participate in the IEP process. The court of appeals reversed the district court on grounds that it failed to make specific factual findings regarding the school district’s motive and whether it would have considered placements other than its proposed placements if the parents had raised alternative placements.
2. Substantive Violations
In order to establish a substantive violation of the IDEA a plaintiff must demonstrate that a school district failed to: 1) address the student’s unique needs; 2) provide adequate support services necessary for the child to achieve his or her educational goals; or 3) comply with the IEP. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203 (1982); Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 893 (9th Cir. 1995).
Claims of substantive violations typically involve allegations that a school district failed to provide an adequate support services, or “materially” implement aspects of the IEP. A material failure occurs when “there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the IEP.” Van Duyn v. Baker Sch. Dist., __F.3d __, 2007 WL 2493495 (9th Cir. 2007); see also, Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000) (de minimis failures to implement an IEP do not amount to a violation of the IDEA); Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n. 3 (8th Cir. 2003) (IDEA is violated only when a school fails to implement an essential element of the IEP).
Illustrative Cases
• Van Duyn, supra. The parent of an autistic child brought an action against the school district claiming that the school district committed substantive violations of the IDEA by failing to implement certain aspects of the IEP, or provide the level of math instruction specified in the IEP. The court determined that while the majority of the alleged failures were not material, the school district’s failure to provide sufficient math instruction was a material failure and thus a substantive violation of the IDEA.
• Park v. Anaheim Union High Sch. Dist., 464 F.3d 1025 (9th Cir. 2006). The plaintiff parents argued that the school district committed substantive a violation of IDEA by refusing to furnish their child with a special support therapy the parents believed was necessary. The court noted that the hearing officer, after considering eight days extensive expert testimony and evidence on the issue, determined that the requested therapy was not necessary to achieve the goals specified in the IEP. The court agreed with the hearing officer’s finding that the IEP goals could be achieved through alternative communications, ongoing practice at home and adaptive physical education. Accordingly, the school district’s failure to provide the support service proposed by the parents did not amount to a substantive violation of the IDEA. The court also noted that iterated that due weight should be accorded to the hearing officer’s determination where they are thorough and careful (quoting, Seattle Sch. Dist. No 1 v. B.S., 82 F.3d 1493 (9th Cir. 1996).
3. Remedies Under the IDEA
In addition to deciding the propriety of an IEP or hearing officer’s decision, a court may require a school district to reimburse private education expenses if it finds that the school district did not made a FAPE available to a child in a timely manner and that private placement was appropriate. Sch. Comm. of the Town of Burlington v. Dept. of Educ., 471 U.S. 359, 369-70 (1985); Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1315 (9th Cir. 1987).
Reasonable attorney’s fees and costs may be recovered by the parents of a disabled child who prevail in an IDEA action. 42 U.S.C. § 1415(i)(3)(b) A school district may recover attorney’s
fees and costs only upon showing that the IDEA claim is frivolous, unreasonable or without foundation. Id.
It is not uncommon for parents of special education students to pursue causes of action under the ADA, Section 504 of the Rehabilitation Act or § 1983.3 However, if the relief sought can be addressed to any degree under the IDEA’s administrative process, those remedies must be exhausted beforehand.
Illustrative Cases
• Robb v. Bethel Sch. Dist. No 403, 308 F.3d 1047 (9th Cir. 2002). The parents of a disabled fourth grade student filed a lawsuit against school a district on grounds that their child was being denied educational opportunities because she was being removed from her classroom and tutored by high school students without
supervision. The parents filed a § 1983 claim and argued they were not required to pursue the IDEA’s administrative process because their pray for relief was limited to money damages and did not seek specific relief under the IDEA. The court determined that the money damages sought by the parents were in part to pay for tutoring and related services, which the school district may have been obligated to provide under the IDEA. Because a portion of the parents’ complaint sought a remedy available under the IDEA, they were required to exhaust the administrative process.
• Kutasi v. Las Virgenes Unified School Dist., 494 F.3d 1162 (2007). The parents of a disabled student sued a school district under § 1983 and Section 504 of the Rehabilitation Act following protracted disputes with the school district over their son’s IEP. The parents argued that because they asserted claims on their own behalf they were not required to exhaust the IDEA administrative process. The court found that the parents’ individual claims were also subject to the IDEA’s exhaustion requirement, noting that the IDEA confers rights to disabled children and their parents.
• P.N. v. Seattle School District No. 1, 474 F.3d 1165 (9th Cir. 2007). The parents of a special education student voluntarily dismissed their IDEA administrative claim after reaching a settlement agreement wherein the school district agreed to reimburse them for costs associated with their child’s psychological evaluation and attendance at a private school. The parents then filed an action in federal court to recover attorney fees only. The court noted that attorney fees under the
3
School districts are also subject the provisions of Title II of the ADA (42 U.S.C. § 12131 et seq.) and Section 504 of the Rehabilitation Act as those statutes prohibit local government entities from discriminating against disabled individuals in the dispensation of public benefits or services. Likewise, 42 U.S.C. § 1983 prohibits discrimination under color of state law. Aside from the remedies available under the IDEA, parents of special education students who succeed in establishing discrimination under Title II of the ADA, Section 504 or § 1983 may recover special and general damages (e.g., compensatory damages, pain and suffering, humiliation, emotional distress). Punitive damages are recoverable under those statutes if a plaintiff can establish that a school district acted with deliberate indifference. City of Canton v. Harris, 489 U.S. 378 (1988); Ferguson v. City of Phoenix, 157 F.3d 668 (9th Cir. 1998).
IDEA could only be recovered by the prevailing party. In order to qualify as the prevailing party, there must be a judicially sanctioned action (judicial
imprimatur). Because the settlement agreement was entered into voluntarily and
without any judicial determination, the parents were not prevailing parties and were therefore not entitled to attorney fees.
