Mark H. v. Lemahieu, No. 05-16236 (9th Cir. Jan. 17, 2008)
The U.S. Court of Appeals for the Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA, GU, MP) has reversed a U.S. district court in Hawai‘i that had ruled that the availability of injunctive relief under IDEA precludes a suit for damages under § 504 over actions that violate both statutes. However, the appeals court remanded the case to the lower court on the question of whether a plaintiff has a private right of action to sue to enforce the U.S. Department of Education’s § 504 regulations. The Ninth Circuit first found that the free appropriate public education (FAPE) requirement under the Individuals with Disabilities Education Act (IDEA) and § 504 of the Rehabilitation Act (§ 504) FAPE regulation, while using identical language, are overlapping but different. Unlike FAPE under IDEA, “FAPE under § 504 is defined to require a comparison between the manner in which the needs of disabled and non-disabled children are met, and focuses on the ‘design’ of a child’s educational program.” Moreover, “§ 504 regulations distinctly state that adopting a valid IDEA IEP is sufficient but not necessary to satisfy the § 504 FAPE requirements.” Second, the appeals court found that Congress had manifested a clear intent to make remedies available for violation of the Rehabilitation Act that also violate IDEA. In response the U.S. Supreme Court ruling that “‘remedies, rights, and procedures’ available under the IDEA were the exclusive relief for failure to provide a FAPE,” so that remedies under the Rehabilitation Act were unavailable, the court noted, Congress amended IDEA to make it clear that nothing in IDEA’s statutory language “shall be construed to restrict or limit the rights, procedures, and remedies available under … the Rehabilitation Act.” The legislative history also supported this plain language.
The Ninth Circuit remanded the case for clarification of the facts alleged, which the appeals court said it needed in order to determine whether “the district court’s ultimate conclusion—that no cause of action for damages is available on these facts under § 504—is correct.” Whether the plaintiffs “can bring an action to enforce the § 504 regulations will depend on whether those regulations come within the § 504 implied right of action,” the appeals court concluded. The district court, based on the U.S. Supreme Court’s decision in Alexander v. Sandoval, 532 U.S. 275 (2001), held that “because the § 504 FAPE regulations uniformly impose ‘affirmative obligations’ that are not imposed by the statute itself, they are not enforceable at all through the implied private right of action.” This failed to take into account three key features of § 504 and the § 504 FAPE regulations, the Ninth Circuit found. First, the § 504 regulations were unlike the regulation at issue in Sandoval in that they “are not fairly viewed as imposing liability based only on unintentionally created ‘effects or outcomes.’” Second, the Ninth Circuit rejected the lower court’s “apparent concern that the § 504 regulations create free-floating ‘affirmative obligations,’” finding instead that the obligation created is a comparative one. “In other words,” the court found, “school districts need only design education programs for disabled persons that are intended to meet their educational needs to the same degree that the needs of nondisabled students are met, not more.” Third, the district court’s reading of § 504’s prohibitions was too narrow given that “the legislative history of the Rehabilitation Act and the nature of discrimination against disabled individuals have led us to construe the § 504 prohibition somewhat more broadly.” The appeals court also determined that the discriminatory or deliberately indifferent mens rea (state of mind) on the part of the government, which a plaintiff must prove to support a damages remedy, was not relevant to determining simply whether a regulation falls within the scope of the statute’s prohibition.
Mark H. v. Lemahieu, No. 05-16236 (9th Cir. Jan. 17, 2008)