Pat Oman, et al v. Portland Public Schools, et al

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, JOHNNIE B. RAWLINSON and DONALD W. MOLLOY) DISMISSED IN PART; AFFIRMED IN PART; REVERSED IN PART. The parties shall bear their own costs. Judge: DFO Authoring, FILED AND ENTERED JUDGMENT. [8175821] [10-35340, 10-35402]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



C.O., a minor,
Plaintiff,
and
PAT OMAN,
Plaintiff-Appellee,
v.
PORTLAND PUBLIC SCHOOLS,
Multnomah School District No. 1;
CONSTANCE BULL, individually and
in her capacity as PPS Special
Education Attorney,
Defendants-Appellants,
and
MAXINE KILCREASE, individually
and in her capacity as PPS
Program Director; THERESA
MIDDLETON, individually and in her
capacity as PPS District
representative; JANET WAGNER,
individually and in her capacity as
PPS District representative; JACK
UBIK, individually and in his
capacity as Fernwood Middle
School Principal; ALANA COULTER,
individually and in her capacity as
PPS Special Education supervisor;

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OMAN v. PORTLAND PUBLIC SCHOOLS

OREGON DEPARTMENT OF
EDUCATION; SUSAN CASTILLO,
individually and in her capacity as
Superintendent of Public Schools;
PORTLAND PUBLIC SCHOOL BOARD;
MARY MERTZ, PPS Director of
Special Education; STATE OF
OREGON, by and through its
Department of Education;
OFFICE OF ADMINISTRATIVE
HEARINGS; SUZY HARRIS; NANCY
LATINI; THOMAS EWING; DEANNA
HASSANPOUR, in her official
capacity as Deputy Chief
Administrative Law Judge of the
OAH; VICKI PHILLIPS, PPS
Superintendent,
Defendants.








C. O., a minor,
Plaintiff,
and
PAT OMAN,
Plaintiff-Appellant,
v.




No. 10-35340
D.C. No.
3:05-cv-00558-HU

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OMAN v. PORTLAND PUBLIC SCHOOLS

PORTLAND PUBLIC SCHOOLS,
Multnomah School District No. 1;
CONSTANCE BULL, individually and
in her capacity as PPS Special
Education Attorney; OREGON
DEPARTMENT OF EDUCATION; SUSAN
CASTILLO, individually and in her
capacity as Superintendent of
Public Schools; SUZY HARRIS;
NANCY LATINI; OFFICE OF
ADMINISTRATIVE HEARINGS; THOMAS
EWING; DEANNA HASSANPOUR, in
her official capacity as Deputy
Chief Administrative Law Judge
of the OAH,
Defendants-Appellees,
and
MAXINE KILCREASE, individually
and in her capacity as PPS
Program Director; THERESA
MIDDLETON, individually and in her
capacity as PPS District
representative; JANET WAGNER,
individually and in her capacity as
PPS District representative; JACK
UBIK, individually and in his
capacity as Fernwood Middle
School Principal;

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OMAN v. PORTLAND PUBLIC SCHOOLS

ALANA COULTER, individually and
in her capacity as PPS Special
Education supervisor; PORTLAND
PUBLIC SCHOOL BOARD; MARY
MERTZ, PPS Director of Special
Education; STATE OF OREGON, by
and through its Department of
Education; VICKI PHILLIPS, PPS
Superintendent,
Defendants.




No. 10-35402
D.C. No.
3:05-cv-00558-HU
OPINION



Appeal from the United States District Court
for the District of Oregon
Dennis James Hubel, Magistrate Judge, Presiding
Argued and Submitted
January 12, 2012—Seattle, Washington
Filed May 14, 2012
Before: Diarmuid F. O’Scannlain and Johnnie B. Rawlinson,
Circuit Judges, and Donald W. Molloy, District Judge.*
Opinion by Judge O’Scannlain

*The Honorable Donald W. Molloy, United States District Judge for the
District of Montana, sitting by designation.

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COUNSEL
Bruce L. Campbell, Miller Nash LLP, Portland, Oregon,
argued the cause and filed the briefs for the appellants-cross
appellees, Portland Public Schools, Multnomah School District, No. 1 and Constance Bull. With him on the briefs was
J. Michael Porter, Miller Nash LLP, Portland, Oregon.
Pat Oman, pro se, Portland, Oregon, argued the cause and
filed the briefs for the appellee-cross appellant.
Inge D. Wells, Oregon Department of Education, Salem, Oregon, argued the cause and filed the brief on behalf of the
cross-appellees, the Oregon Department of Education, Susan
Castillo, Suzy Harris, Nancy Latini, Chief Administrative
Law Judge Thomas Ewing, and Deputy Chief Administrative
Law Judge Deanna Hassanpour.

OPINION
O’SCANNLAIN, Circuit Judge:
We must decide, among other things, whether a parent may
bring a claim for nominal damages under the Individuals with
Disabilities Education Act.
I
In the 1970s, there was considerable concern about the
manner in which children with disabilities were educated in
this country, particularly the tendency of educators to isolate
them from their non-disabled peers. Congress responded by
passing the Education for All Handicapped Children Act, Pub.
L. No. 94-142, 89 Stat. 773 (1975), which evolved into the
Individuals with Disabilities Education Act (“IDEA”), 20
U.S.C. §§ 1400 et seq.. The goal of this landmark legislation

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was to “ensure that all children with disabilities have available to them a free appropriate public education” (a “FAPE”).
20 U.S.C. § 1400(d). Congress, however, never sought to lay
out a comprehensive definition of that term. Instead, it set out
broad requirements, see, e.g., id. § 1412(a)(5) (requiring disabled children to be educated in the same classrooms as nondisabled children to the “maximum extent appropriate”),
offered States funds in order to pursue them, and granted the
United States Department of Education authority to monitor
how those funds were spent, see id.
As a result, the primary authority for determining what substantively constitutes an “appropriate public education”
remains where it always was—with the States, specifically
with State Educational Agencies and Local Educational
Agencies. Id. § 1401(19), (32). These entities are delegated
the responsibility to locate disabled children within their geographical area, id. § 1412(a)(3), and the authority to develop
for each of them an individualized education program
(“IEP”), id. § 1414(d). Congress has also preserved a significant role in this process for parents, providing them with procedural rights under the IDEA, such as the right to participate
in the development of their child’s IEP, id. § 1414(d)(1)(B),
and to challenge the IEP through the State’s administrative
system, id. § 1415(f)(1)(A). Finally, Congress has provided
that a party dissatisfied with the outcome of these proceedings
may seek prospective relief in federal court. Id. § 1415(i).
II
A
Pat Oman is the mother of C.O., a young man who was
diagnosed as having special learning needs in 1996 when he
was a second grade student in the Portland Public Schools,
Multnomah School District No. 1 (“District”). Oman worked
with educators to develop an IEP for her son, and the District
began implementing it the following year. Unfortunately,

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C.O. did not progress as quickly as either his mother or his
teachers might have liked. And by the time that he applied for
the District’s magnet high school in 2002, he wrote at only a
third grade level. As such, he fell well below the high
school’s minimum entry requirements of meeting eighth
grade benchmarks.
Upon receipt of the news that her son would be unable to
attend the magnet high school, Oman requested all of C.O.’s
records, including those in the sole possession of his teachers,
to investigate what had happened. Meeting with limited success, her relationship with the District quickly deteriorated.
B
In March 2004, Oman filed an administrative complaint
alleging numerous procedural and substantive inadequacies in
C.O.’s IEP. Oman met several times with officials from the
District to resolve their differences. When it became apparent
that negotiations would be fruitless, however, the District
went into litigation mode. Its in-house lawyer, Constance
Bull, informed Oman that her client would not make any factual stipulations, would not participate in an informal discovery process created by the Oregon Rules of Civil Procedure,
and would not allow Oman to speak to its employees regarding the litigation without first discussing the matter with Bull.
After some limited discovery and a seven-day hearing, an
administrative law judge of the Oregon Department of Education concluded that the District had indeed violated the IDEA,
and ordered the District to provide certain compensatory education. Because places at Oman’s preferred outside service
provider were filled, C.O. was unable to begin (let alone complete) the ordered remedial education before the deadline set
by the District. C.O. graduated from high school the following
summer.

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C
Unsatisfied with the result of these administrative proceedings, Oman filed more than one pro se suit on behalf of herself and her son in federal district court, naming as defendants
the District, the Oregon Department of Education, and several
of their employees.
Oman alleged approximately twenty procedural and substantive violations of the IDEA. They may generally be categorized as (1) substantive inadequacy in C.O.’s education, (2)
procedural violations in developing and implementing C.O.’s
IEP, (3) placing illegal conditions on reimbursement requests,
and (4) retaliation against Oman for exercising her statutory
rights. Oman also asserted that the same conduct subjected the
defendants to liability under 42 U.S.C. § 1983. She sought
both monetary and prospective relief.
Finally, Oman alleged that the admissions policies for the
District’s magnet high schools—specifically their minimum
entry requirements and their review of applications based primarily upon grades—violate Section 504 of the Rehabilitation
Act as well as the Americans with Disabilities Act (“ADA”).
Oman alleged that, while facially neutral, these standards discriminate against the disabled by ensuring that they are placed
in more restrictive environments.
D
The district court disposed of almost all of Oman’s claims
before trial. It dismissed all claims brought by Oman on
behalf of C.O. because, as a non-attorney, she was not entitled
to represent him. The district court further concluded that
because Oman was not disabled, no claims under the Rehabilitation Act or the ADA remained. The court also dismissed
claims for compensatory damages as unprovided for by the
IDEA or by section 1983 to enforce the IDEA. Finally, after
discovery was completed, the district court dismissed as moot

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Oman’s claims for prospective relief under the IDEA because
C.O. had by then graduated from high school.
The district court awarded summary judgment on Oman’s
remaining claims except for those based upon three allegedly
retaliatory acts: (1) Bull’s refusal to participate in informal
discovery, (2) Bull’s insistence that Oman seek permission to
speak to District employees about litigation matters, and (3)
the Oregon Department of Education’s delay in producing the
administrative record during the federal litigation. A bench
trial was held. The district court concluded that the delay in
producing the records was due to good faith reliance on counsel rather than to a retaliatory motive. However, the district
court found that Bull’s actions were calculated to discourage
Oman from exercising her statutory rights to challenge C.O.’s
IEP. The district court held the District and Bull liable for $1
in nominal damages pursuant to the IDEA and section 1983.
The district court entered a final judgment in March 2010.
The District and Bull timely appealed their liability for nominal damages. Oman cross-appealed a number of issues.
III
In its appeal, the District argues that the district court erred
by inferring from the IDEA a private right of action for nominal damages. We agree.
A
[1] We have repeatedly held that the IDEA creates a “comprehensive enforcement scheme” in which compensatory
damages play no part. See, e.g., Blanchard v. Morton Sch.
Dist., 509 F.3d 934, 938 (9th Cir. 2007). The district court
acknowledged these rulings and dismissed Oman’s claims for
compensatory damages. But the district court allowed Oman
to seek nominal damages directly under the IDEA because, in
the district court’s view, recognizing such a cause of action

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would promote compliance with the IDEA without upsetting
Congress’s chosen enforcement scheme.
[2] Assuming the district court was correct that creating a
remedy for nominal damages would be more consistent with
the congressional plan than creating one for compensatory damages,1 this does not give federal courts license to invent a
cause of action. Without some indication that Congress
intended “to create not just a private right but also a private
remedy . . . . a cause of action does not exist and courts may
not create one, no matter how desirable that might be as a
policy matter, or how compatible with the statute.” Alexander
v. Sandoval, 532 U.S. 275, 286-87 (2001) (emphasis added)
(internal citations omitted). Instead, where Congress provides
funds to a State to pursue certain functions, “the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but
rather action by the Federal Government to terminate funds to
the State.” Gonzaga Univ. v. Doe, 536 U.S. 273, 280 (2002)
(internal quotation marks omitted).
[3] As we have previously noted, “[t]he wording of the
[IDEA] does not disclose a congressional intent to provide a
[compensatory] damage remedy.” Mountain View-Los Altos
Union High Sch. Dist. v. Sharron B.H., 709 F.2d 28, 30 (9th
Cir. 1983). Nor does it disclose a congressional intent to pro1
We doubt this is the case. Parties such as Oman, whose children have
graduated from high school, do not have standing to pursue prospective
relief under the IDEA. See B.C. v. Plumas Unified Sch. Dist., 192 F.3d
1260, 1263-64 (9th Cir. 1999). Creating a remedy for nominal damages
would prevent such cases from becoming moot and would entitle the parents (if successful and if they had attorneys) to attorneys’ fees. Arlington
Cent. Sch. Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 297-98 (2006); cf.
Shapiro v. Paradise Valley Unified Sch. Dist., 374 F.3d 857, 865 (9th Cir.
2004) (noting that under the applicable test “a party may be accorded prevailing party status by being awarded ‘some relief by the court’ ”). As
such, recognizing a cause of action for nominal damages could have considerable impact on the remedial scheme.

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vide a remedy for nominal damages. It does allow district
courts to “give all ‘appropriate relief,’ but absent legislative
history suggesting the contrary, such a phrase is usually construed as a mere grant of jurisdiction . . . and not of authority
to award retrospective damages,” id. (quoting 20 U.S.C.
§ 1415(e)(2)), whether they be compensatory or nominal. See
also Ortega v. Bibb Cnty. Sch. Dist., 397 F.3d 1321, 1323-25
(11th Cir. 2005) (refusing to infer a cause of action for nominal damages for failure to provide a nurse capable of addressing a child’s medical needs). We thus conclude that
dissatisfied plaintiffs such as Oman may not bring a claim for
nominal damages under the IDEA.
B
[4] This does not end our inquiry, however, because Oman
has also asserted a claim for relief under section 1983. While
both questions depend upon congressional intent, “whether a
statutory violation may be enforced through [section] 1983 is
a different inquiry than that involved in determining whether
a private right of action can be implied from a particular statute.” Gonzaga Univ., 536 U.S. at 283 (internal quotation
marks omitted). In this context, whether Oman may bring a
claim under section 1983 turns on whether the gravamen of
her claim for relief is under the IDEA. If it is, she is limited
to the remedies available under the IDEA. See Blanchard, 509
F.3d at 938. If it is not, she may seek relief under section
1983. See, e.g., Witte v. Clark Cnty. Sch. Dist., 197 F.3d 1271,
1273 (9th Cir. 1999), overruled in part on other grounds by
Payne v. Peninsula Sch. Dist., 653 F.3d 863, 871 (9th Cir.
2011) (en banc).
In the related context of exhaustion of administrative remedies, we have recently reexamined our definition of what constitutes a claim for relief under the IDEA. Payne, 653 F.3d at
874. We had previously implied that the distinction depended
on the specific injury alleged—for example a physical injury
versus the denial of a FAPE. Id. at 873. But finding that

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approach to be inconsistent with the language of the statute,
we now consider whether a plaintiff seeks (1) monetary relief
as the “functional equivalent” of a remedy available under the
IDEA, (2) “prospective injunctive relief to alter an IEP or the
educational placement of a disabled student,” or (3) “to
enforce rights that arise as a result of a denial” of a FAPE. Id.
at 875.
[5] Oman claims that she was denied sufficient access to
discovery during administrative proceedings, an injury that
was clearly remediable through those same proceedings. She
merely needed to make a formal request for it, and she did
not. Her claim is therefore the functional equivalent of a claim
of procedural defect under the IDEA, and she is limited to
relief available under that statute. Accord M.T.V. v. Dekalb
Cnty. Sch. Dist., 446 F.3d 1153, 1158-59 (11th Cir. 2006)
(concluding that retaliation in the form of additional testing
fell within the gambit of the IDEA because it “relat[ed] to the
identification, evaluation, or educational placement of the
child or the provision of a [FAPE] to such a child” (internal
quotation marks omitted)).2
IV
In her cross appeal, Oman asserts that the district court
should not have dismissed her claims for monetary relief
under the Rehabilitation Act and ADA based on the admissions policy of the District’s magnet high school.3 We dis2

Given that the IDEA does not provide a remedy for damages and
C.O.’s graduation from high school renders us unable to provide the prospective relief that Oman seeks, B.C., 192 F.3d at 1263-64, we lack jurisdiction to consider Oman’s cross appeals based upon the IDEA.
3
The district court did err by holding that as a non-disabled person
Oman could not bring such a claim. Barker v. Riverside Cnty. Office of
Educ., 584 F.3d 821, 825-26 (9th Cir. 2009). But we may uphold a district
court’s decision to dismiss for failure to state a claim based upon any
ground supported in the record. Shaw v. Cal. Dep’t of Alcoholic Beverage
Control, 788 F.2d 600, 603 (9th Cir. 1986).

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agree. Congress has not expressed an intent to create a cause
of action for monetary damages based on such a claim.
The language of the ADA and section 504 of the Rehabilitation Acts differ slightly, but they provide that “[n]o otherwise qualified individual with a disability . . . shall, solely by
reason of her or his disability, be excluded from the participation” in a program or activity receiving federal financial assistance, 29 U.S.C. § 794, or a public entity, 42 U.S.C. § 12132.
These statutes provide a private cause of action in certain circumstances. See Mark H. v. Lemaheiu, 513 F.3d 922, 935 (9th
Cir. 2008); see also Zukle v. Regents of Univ. of Cal., 166
F.3d 1041, 1045 (9th Cir. 1999) (describing a claimant’s burden of proof under these statutes).
Recently, we concluded that in certain very limited
instances, these statutes may even provide a cause of action
for failure of a public school to provide a FAPE. Mark H.,
513 F.3d at 936. But see Diaz-Fonseca v. Puerto Rico, 451
F.3d 13, 19 (1st Cir. 2006). In Mark H., we noted that the
Department of Education’s regulations specifically require
that recipients of federal funds “provide a free appropriate
education to each qualified handicapped person” to comply
with the Rehabilitation Act. 513 F.3d at 936 (discussing 34
C.F.R. § 104.33). As these regulations defined what constitutes a FAPE somewhat differently than does the IDEA, we
decided that the IDEA does not preclude all claims based
upon these regulations. Id. However, “regulations can only be
enforced through the private right of action contained in a
statute when they ‘authoritatively construe’ the statute.” Id. at
935 (quoting Sandoval, 532 U.S. at 284). We therefore concluded that a parent may bring a claim for compensatory damages only if the regulations’ “requirements fall within the
scope of the prohibition contained in § 504 [of the Rehabilitation Act] itself.” Id. Because the parties and the district court
in that case had assumed that the IDEA had precluded relief
under the Rehabilitation Act, however, we concluded that it
was not yet time to define the contours of that potential cause

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of action. Id. at 939-40 (noting that the parties had “not litigated” that issue). Those parameters remain murky.
[6] Whether a party may bring a damages action based
upon the admissions policies of a magnet school is a question
of first impression in this circuit, if not in this country, and
thus we turn to the requirements of the Rehabilitation Act.
“Section 504 by its terms does not compel educational institutions to disregard the disabilities of handicapped individuals
or to make substantial modifications in their programs to
allow disabled persons to participate,” but merely requires
them not to exclude a person who is “otherwise qualified”
based upon his or her disability. Se. Cmty. Coll. v. Davis, 442
U.S. 397, 405 (1979). To be “otherwise qualified,” an individual must be “able to meet all of a program’s requirements in
spite of his handicap.” Id. at 406; see also St. Johnsbury Acad.
v. D.H., 240 F.3d 163, 173 (2d Cir. 2001) (applying the Davis
standard to a high school’s special education evaluation process).
[7] Though we do not read this to give schools leave to
adopt requirements that are not reasonably related to the program at issue, cf. id., we “extend[ ] judicial deference to an
educational institution’s academic decisions in ADA and
Rehabilitation Act cases.” Zuckle, 166 F.3d at 1047. And it is
not unreasonable to require a minimum of eighth grade proficiency from anyone who is applying to a magnet high school.
[8] That Congress did not intend to provide a private cause
of action for monetary damages based on such a claim is confirmed when these provisions are read in the context of Congress’s other education policies. In particular, Congress has
explicitly contemplated that public school districts might
create magnet and charter programs. See 20 U.S.C.
§ 1413(a)(5); 34 C.F.R. §§ 226, 280. It has required special
approval by the Secretary of Education that any such program
is in compliance with federal law for magnet schools to
receive federal funding. 34 C.F.R. § 280 (implementing the

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Magnet Schools Assistance Program). Hundreds of school
districts have taken advantage of these procedures, many creating schools with competitive admissions policies more
stringent than those here. Cf. U.S. Dep’t of Education,
Successful Magnet High Schools: Innovations in Education
(2008), available at http://www2.ed.gov/admins/comm/
choice/magnet-hs/index.html. And yet, we know of no case
holding such institutions liable for violations of the ADA or
Rehabilitation Act. Nor do we know of any regulation
adopted pursuant to the Rehabilitation Act, the ADA, or the
IDEA that prohibits such practices. Indeed the burgeoning
number of charter and magnet school programs operating
without the interference of either Congress or the Department
of Education confirms that they are an accepted part of our
educational system. As such, we will not impose liability
upon them without further indication of Congressional intent.4
V
We have reviewed Oman’s other contentions in her crossappeal and find them either waived or lacking in merit.
[9] For the foregoing reasons, Oman’s cross claims relating to the IDEA are DISMISSED for lack of jurisdiction. The
district court is REVERSED as to its finding the District liable under the IDEA and section 1983 for nominal damages.
4

We are similarly unconvinced by Oman’s assertion that C.O.’s IEP was
defective because the District failed to place him in a particular magnet
school program in favor of a “more restrictive” environment. Neither the
IDEA nor the Rehabilitation Act require that disabled children be placed
in the program that their parents think would maximize their potential. Bd.
of Ed. of Hendrick Hudson Sch. Dist. v. Rowley, 458 U.S. 176, 189-90
(1982) (defining the “least restrictive environment” component of the
IDEA); cf. Mark H., 513 F.3d at 933 (noting that compliance with the
IDEA is sufficient to satisfy the school’s duty under the Rehabilitation
Act). Instead, they require only that disabled and non-disabled children be
educated together to the extent possible. 20 U.S.C. § 1412(a)(5); 34 C.F.R.
§ 104.34(a). Oman has not alleged that the District failed to meet this
requirement.

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It is AFFIRMED on all other counts. The parties shall bear
their own costs.
DISMISSED IN PART, AFFIRMED IN PART, and
REVERSED IN PART.