Morgan Hill Concerned Parents Association v. California Department of Education

Filing 25

ORDER signed by Judge Kimberly J. Mueller on 3/29/2013 ORDERING 13 Motion to Dismiss is DENIED. (Waggoner, D)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MORGAN HILL CONCERNED
PARENTS ASSOC., CONCERNED
PARENTS ASSOC.,

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Plaintiffs,

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No. 2:11-cv-3471-KJM-AC

ORDER

v.
CALIFORNIA DEPARTMENT OF
EDUCATION,
Defendant.

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The court heard argument on defendant California Department of Education’s

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(“CDE’s”) motion to dismiss, or in the alternative, motion for a more definite statement on

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July 27, 2012. (ECF 13.) Rony Sagy appeared for plaintiffs; Paul Lacy appeared for defendant.

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For the following reasons, the court DENIES defendant’s motion to dismiss and motion for a

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more definite statement.

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I.

STATUTORY BACKGROUND
The federal Individuals with Disabilities Education Act (“IDEA”) establishes a

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comprehensive regulatory framework to improve the schooling of disabled individuals.

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20 U.S.C. § 1400, et. seq. IDEA’s framework and California’s associated laws have been

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described helpfully as follows:

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IDEA is Spending Clause legislation. Virginia Office of Prot. &
Advocacy v. Virginia, Dept. of Educ., 262 F. Supp. 2d 648, 658
(E.D. Va. 2003). 20 U.S.C. § 1411(a)(1) directs the Secretary of
Education to make grants to States “to assist them to provide
special education and related services to children with disabilities in
accordance to this subchapter.” As a federal spending program,
IDEA operates “much in the nature of a contract: in return for
federal funds, the States agree to comply with federally imposed
conditions.” Pennhurst State Sch. & Hosp. v. Halderman
(“Pennhurst I”), 451 U.S. 1, 17 (1981). “Consequently, under the
IDEA a state is eligible for financial assistance only if it first
‘demonstrates to the satisfaction of the Secretary” that, among other
things, “children with disabilities and their parents are afforded the
procedural safeguards required by section 1415.’” Virginia Office of
Prot., 262 F. Supp. 2d 648, 658-659 (quoting 20 U.S.C.
§ 1412(a)(6)(A)).

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IDEA and its regulations 34 C.F.R. §§ 300.1, et seq., provide
procedural and substantive standards to educate students with
disabilities. 20 U.S.C. § 1401(d). IDEA requires a state, to receive
federal financial assistance, to effectuate a policy to assure disabled
children a free appropriate public education (“FAPE”). 20 U.S.C.
§ 1412(a)(1). A FAPE requires special education and related
services at public expense, under public supervision, and with no
charge to the student or parents. 20 U.S.C. §§ 1401(9) and (29).
IDEA requires a participating state to submit to the U.S.
Department of Education a plan of policies, procedures and
program descriptions. 20 U.S.C. § 1412(a). California participates
in IDEA, adopted a federally-approved state plan, and enacted
statutes and regulations to comply with federal requirements. See
Cal. Ed. Code, §§ 56000, et seq.; Cal. Code Regs., Tit. 5, §§ 3000,
et seq. Each disabled student's instruction is based on an
Individualized Education Program (“IEP”), pursuant to 20 U.S.C.
§ 1414(d). Parents are entitled to file a complaint with CDE
concerning matters of identification, evaluation or educational
placement of a child or FAPE provision. 20 U.S.C. § 1415(b)(6);
Cal. Code Regs., Tit. 5, §§ 4600, et seq.

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Under California's plan, the “district, special education local plan
area, or county office of education” of the child's residence is
responsible to identify disabled children, to assess suspected
disability, to determine educational placements and related services
through an IEP, and to provide needed education and related
services. Cal. Educ. Code, §§ 56300, 56302, 56340, 56344(b).

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[. . .]

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As to a proposal or refusal to initiate or change the identification,
evaluation or educational placement of a child, or the provision of a
FAPE, parents may request an administrative “due process hearing”
before an independent and impartial hearing officer to challenge the
result. 20 U.S.C. § 1415(f); Cal. Ed. Code, §§ 56501, et seq.; 34
C.F.R. §§ 300.506, 300.507, 300.508. CDE is required to enter into

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an interagency agreement with another state agency or contract with
a nonprofit organization to provide the independent and impartial
process. Cal. Ed. Code, § 56504.5. Pursuant to an interagency
agreement, the Office of Administrative Hearings conducts the due
process hearings and renders final administrative decisions. Cal. Ed.
Code, § 56505(h). A party subject to an unfavorable final
administrative decision may seek de novo review by a court of
competent jurisdiction. 20 U.S.C. § 1415(i)(2)(A); Cal. Ed. Code,
§ 56505(k).

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S.A. v. Tulare Cnty. Office of Ed., No. CV F 08-1215 LJO GSA, 2009 WL 30298, at *3–4 (E.D.

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Cal. Jan. 6, 2009).
In addition to due process hearings, parents and students have recourse to state

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complaint resolution procedures (“CRP”). 34 C.F.R. §§ 300.151–300.153. Under the CRP,

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parents and students may file a complaint with the state educational agency (“SEA”) when a local

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education agency (“LEA”) is not following special education laws or procedures or has not

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implemented what is already specifically written into a student’s IEP. While appeals to district

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courts from a CRP determination are not provided for in the federal CRP regulations, courts in

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this Circuit have entertained them. See, e.g., Christopher S. v. Stanislaus Cnty. Office of Educ.,

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384 F.3d 1205, 1211 (9th Cir. 2004); S.A., 2009 WL 30298, at *8.

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II.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Morgan Hill Concerned Parents Association and Concerned Parents

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Association (“plaintiffs”) are unincorporated associations composed of parents of children with

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disabilities. (First Amended Complaint (“FAC”) ¶ 4.) The purpose of these associations is to

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protect the legal rights of disabled children. (Id.) Defendant CDE is an SEA that oversees the

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local school districts throughout California. (FAC ¶ 5.) Plaintiffs filed their amended complaint

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on April 23, 2012, alleging defendant has not ensured FAPE by not complying with its

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monitoring, investigating, and enforcement obligations under the IDEA. (FAC ¶ 37.)
On June 13, 2012, defendant filed the present motion to dismiss both for lack of

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jurisdiction and for failure to state a claim, or in the alternative for a more definite statement.

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(ECF 13.) Plaintiffs opposed the motion on June 29, 2012 (ECF 14), and defendant replied July

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6, 2012 (ECF 15). The court heard oral argument on the motion on August 6, 2012. (Hearing

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Tr., ECF 20.)
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III.

LEGAL STANDARDS
A.

Motion to Dismiss for Lack of Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction and, until proven otherwise, cases

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lie outside the jurisdiction of the court. Kokkonen v. Guardian Life Ins. Co. of Am., 511

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U.S. 375, 377–78 (1994). Lack of subject matter jurisdiction may be challenged by either party

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or raised sua sponte by the court. FED. R. CIV. P. 12(b)(1); FED. R. CIV. P. 12(h)(3); see also

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Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583–84 (1999). A Rule 12(b)(1) jurisdictional

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attack may be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a

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facial attack, the complaint is challenged as failing to establish federal jurisdiction, even assuming

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all the allegations are true and construing the complaint in the light most favorable to a

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plaintiff. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

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By contrast, in a factual attack, the challenger provides evidence that an alleged

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fact is false, or a necessary jurisdictional fact is absent, resulting in a lack of subject matter

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jurisdiction. Id. In these circumstances, the allegations are not presumed to be true and “the

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district court is not restricted to the face of the pleadings, but may review any evidence, such as

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affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.”

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McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). “Once the moving party has

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converted the motion to dismiss into a factual motion by presenting affidavits or other evidence

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properly brought before the court, the party opposing the motion must furnish affidavits or other

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evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage v.

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Glendale Union High Sch., 343 F.3d 1036, 1040 n.2 (9th Cir. 2003).

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Jurisdictional dismissal is “exceptional” and warranted only “‘where the alleged

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claim under the constitution or federal statutes clearly appears to be immaterial and made solely

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for the purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial and

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frivolous.’” Safe Air for Everyone, 373 F.3d at 1039 (quoting Bell v. Hood, 327 U.S. 678, 682-83

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(1946)). The Ninth Circuit has held that “[j]urisdictional finding of genuinely disputed facts is

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inappropriate when ‘the jurisdictional issue and substantive issues are so intertwined that the

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question of jurisdiction is dependent on the resolution of factual issues going to the merits of an
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action.’” Sun Valley Gasoline, Inc. v. Ernst Enters., Inc., 711 F.2d 138, 139 (9th Cir. 1983)

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(quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)). “Normally, the

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question of jurisdiction and the merits of an action will be considered intertwined where . . . a

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statute provides the basis for both the subject matter jurisdiction of the federal court and the

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plaintiff's substantive claim for relief.” Id. (quotation omitted). Where a jurisdictional attack is

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mounted against a claim that implicates statutory interpretation, the court should refrain from

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dismissing where an interpretation is available that supports jurisdiction. See Steel Co. v. Citizens

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for a Better Env’t, 523 U.S. 83, 89 (1998) (“[T]he district court has jurisdiction if ‘the right of the

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petitioners to recover under their complaint will be sustained if the Constitution and laws of the

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United States are given one construction and will be defeated if they are given another.’” (quoting

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Bell, 327 U.S. at 685 (1946)); Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage

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Leasehold & Easement in the Cloverly Subterranean Geological Formation, 524 F.3d 1090, 1094

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(9th Cir. 2008).

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B.

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Motion to Dismiss for Failure to State a Claim upon Which Relief Can Be
Granted
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to

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dismiss a complaint for “failure to state a claim upon which relief can be granted.” A court may

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dismiss “based on the lack of cognizable legal theory or the absence of sufficient facts alleged

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under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

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1990).

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Although a complaint need contain only “a short and plain statement of the claim

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showing that the pleader is entitled to relief,” FED. R. CIV. P. 8(a)(2), in order to survive a motion

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to dismiss this short and plain statement “must contain sufficient factual matter . . . to ‘state a

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claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something

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more than “an unadorned, the-defendant-unlawfully-harmed-me accusation” or “‘labels and

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conclusions’ or ‘a formulaic recitation of the elements of a cause of action . . . .’” Id. (quoting

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Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss
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for failure to state a claim is a “context-specific task that requires the reviewing court to draw on

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its judicial experience and common sense.” Id. at 679. Ultimately, the inquiry focuses on the

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interplay between the factual allegations of the complaint and the dispositive issues of law in the

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action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

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In making this context-specific evaluation, this court “must presume all factual

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allegations of the complaint to be true and draw all reasonable inferences in favor of the

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nonmoving party.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). This rule

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does not apply to “‘a legal conclusion couched as a factual allegation,’” Papasan v. Allain,

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478 U.S. 265, 286 (1986) (quoted in Twombly, 550 U.S. at 555), nor to “allegations that

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contradict matters properly subject to judicial notice” or to material attached to or incorporated by

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reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.

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2001). A court’s consideration of documents attached to a complaint or incorporated by reference

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or matter of judicial notice will not convert a motion to dismiss into a motion for summary

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judgment. United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003).

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C.

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Motion for a More Definite Statement
A motion for a more definite statement under Rule 12(e) “should not be granted

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unless the defendant cannot frame a responsive pleading.” Famolare, Inc. v. Edison Bros. Stores,

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Inc., 525 F. Supp. 940, 949 (E.D. Cal. 1981).

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IV.

ANALYSIS

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Defendant seek to dismiss plaintiffs’ complaint in its entirety both for lack of

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jurisdiction and for failure to state a claim. The court will address subject matter jurisdiction and

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then failure to state a claim arguments. Finally, the court will consider defendant’s alternative

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motion for a more definite statement.

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A.

Subject Matter Jurisdiction
Defendant argues that this court does not have subject matter jurisdiction over

plaintiffs’ claims because plaintiffs do not have a private right of action under the IDEA. (Def.’s

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Mot. to Dismiss at 5, ECF 13-1.) Plaintiffs base jurisdiction upon 28 U.S.C. § 13311 and

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20 U.S.C. § 1415(i)(2), among other statutes. (FAC ¶ 1.) 20 U.S.C. § 1415(i)(2) explicitly

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confers a private right of action for claims “relating to the identification, evaluation, or

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educational placement of the child, or the provision of a free appropriate public education to such

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child.” 20 U.S.C. § 1415(b)(6).

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The absence of legislative provision of a private right of action is not jurisdictional

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unless a plaintiff’s claims are “immaterial,” “insubstantial,” or “frivolous” and made solely for

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the purpose of manufacturing jurisdiction. Safe Air for Everyone, 373 F.3d at 1039. Plaintiffs’

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claims here are not immaterial, insubstantial, or frivolous. Even if section 1415(i)(2) of the IDEA

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did not confer jurisdiction on this court by creating a private right of action, no provision of IDEA

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divests the court of authority under 28 U.S.C. § 1331 to review CDE’s compliance with federal

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law. See Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 642 (2002) (stating the

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same in a case reviewing FCC Commissioner’s compliance with 47 U.S.C. § 252(e)(6)).

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Moreover, where a jurisdictional attack is mounted against a claim that implicates statutory

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interpretation, the court should refrain from dismissing where an interpretation is available that

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supports jurisdiction. See Steel Co., 523 U.S. at 89. This court has subject matter jurisdiction

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under 28 U.S.C. § 1331.

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B.

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Private Right of Action, Standing, and Exhaustion
In addition to asserting plaintiffs do not have a private right of action, defendant

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also argues in response to the court’s sua sponte question at hearing that plaintiffs do not have

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standing to bring claims of systemic IDEA noncompliance against the CDE. (ECF 20 at 2, 4.)

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Defendant also contends that plaintiffs did not exhaust their administrative remedies.2 (ECF 13-1

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at 16–17.) The court addresses these three arguments in turn, concluding they each lack merit.

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Section 1331 reads: “The district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States.”
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Defendant also argues that plaintiffs’ claims, to the extent they seek redress for denying
FAPE to individual students, are time-barred by the IDEA’s statute of limitations. (ECF 13-1 at
17.) The court does not address this argument because plaintiffs do not seek individual remedies.
(See FAC at 34-35.)
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Defendant presents two arguments against this court’s finding a private right of

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action for claims alleging CDE’s systemic noncompliance with the IDEA, which is an issue of

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first impression in the Ninth Circuit. The first argument is that as Spending Clause legislation,

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the IDEA cannot impose upon the state a private cause of action not clearly spelled out. (ECF 13-

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1 at 6.) The second argument is that the statutory scheme created by the IDEA is upset if the

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court reads a private cause of action into the statute. (Id.)

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IDEA Private Right of Action

Plaintiffs argue that every other court entertaining a case such as this has found a

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private right of action, and that as a matter of statutory construction Congress did not intend to

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foreclose a private right of action. (ECF 14 at 5-9.) Subsection 1412(a)(14)(E) states that no

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private right of action arises out of SEA actions specifically enumerated in that paragraph. (ECF

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20 at 29–31.) With reference to Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. at 642-

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43, plaintiffs argue that if certain actions are made reviewable, that does not mean review of

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others is excluded; if Congress had intended for the relevant sections of the IDEA not to create

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private rights of action, it would have expressly stated so instead of restricting the declaration to

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one limited paragraph. (ECF 20 at 29.)

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Defendant’s Spending Clause argument draws on C.O. v. Portland Public School,

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679 F.3d 1162 (9th Cir. 2012), which observes that “the typical remedy for state noncompliance

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with federally imposed conditions is not a private cause of action for noncompliance but rather

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action by the Federal Government to terminate funds to the State.” 679 F.3d at 1167 (quoting

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Gonzaga Univ. v. Doe, 536 U.S. 273, 280 (2002) (internal quotations omitted)). In Virginia

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Office of Protection & Advocacy v. Virginia Department of Education, 262 F. Supp. 2d 648 (E.D.

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Va. 2003) (“the Virginia case”), the court observed that federal statutes like the IDEA, that rely

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on the spending power function, are similar to contracts with the states. 262 F. Supp. 2d at 658

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(citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). In exchange for

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money, the states agree to undertake certain obligations. Id. The obligations of the states must be

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knowing and voluntary, which requires that the obligation be clearly spelled out.3 Id. (quoting

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Pennhurst, 451 U.S. at 17). This “concept is commonly known as Pennhurst’s ‘clear statement

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rule.’” Id. Defendant argues that in this case, the obligation to be responsible to private citizens

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is not clearly spelled out and no textual inference supports plaintiffs’ position because the

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USDOE is the entity that ordinarily enforces the administrative and reporting duties imposed

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upon the SEAs. (ECF 13-1 at 6.)

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Given the statutory language and structure, and the weight of judicial precedent,

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the court finds plaintiffs have a private right of action to challenge CDE’s alleged systemic

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noncompliance with its IDEA obligations. The IDEA creates a private right of action in

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subsection 1415(i)(2)(A), which reads:

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Any party aggrieved by the findings and decision made under
subsection (f) or (k) who does not have the right to an appeal under
subsection (g), and any party aggrieved by the findings and decision
made under this subsection, shall have the right to bring a civil
action with respect to the complaint presented pursuant to this
section, which action may be brought in any State court of
competent jurisdiction or in a district court of the United States,
without regard to the amount in controversy.

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Moreover, subsection 1415(i)(3)(A) provides: “The district courts of the United States shall have

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jurisdiction of actions brought under this section without regard to the amount in controversy.”

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Where Congress did not grant parties a private right of action under the IDEA, it withheld such a

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grant explicitly:

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Notwithstanding any other individual right of action that a parent or
student may maintain under this subchapter [sections 1412-1427]
nothing in this paragraph shall be construed to create a right of
action on behalf of an individual student for the failure of a
particular State educational agency or local educational agency staff
person to be highly qualified, or to prevent a parent from filing a

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The court in the Virginia case ultimately found that the IDEA did not create a private right of
action to challenge a school board’s handling of a CRP complaint. Id. at 659. As also discussed
below, this holding is not persuasive in this Circuit because it contradicts Ninth Circuit precedent
that entertains parties’ appeals from CRP complaints. See, e.g., Christopher S. v. Stanislaus Cnty.
Office of Educ., 384 F.3d 1205, 1211 (9th Cir. 2004).
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complaint about staff qualifications with the State educational
agency as provided for under this subchapter.

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20 U.S.C. § 1412(a)(14)(E). In other words, subsection 1415(i)(2) expressly grants a private right

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of action under subsection (f), which references complaints made under subsection (b)(6):

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“Whenever a complaint has been received under subsection (b)(6) or (k), the parents or the local

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educational agency involved in such complaint shall have an opportunity for an impartial due

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process hearing . . . .” Subsection (b)(6), in turn, provides that states must provide any party an

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opportunity to present a complaint “with respect to any matter relating to the identification,

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evaluation, or educational placement of the child, or the provision of a free appropriate public

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education to such child.” 20 U.S.C. § 1412(b)(6). This court finds, in company with the Third

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Circuit, that claims alleging a SEA’s systemic failure to comply with its IDEA obligations, which

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results in a systematic denial of FAPE, are claims “with respect to any matter relating to the

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identification, evaluation, or educational placement of the child, or the provision of a free

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appropriate public education to such child.” Beth V. v. Carroll, 87 F.3d 80, 86 (3d Cir. 1995)

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(finding private right of action for complaints that Pennsylvania Department of Education had

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consistently failed to investigate and timely resolve IDEA complaints). Inasmuch as plaintiffs’

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failure to investigate claim relates to the CRP administrative process, the Ninth Circuit impliedly

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has recognized these kinds of claims as supported by a private right of action, by entertaining

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them. Christopher S. v. Stanislaus Cnty. Office of Educ., 384 F.3d 1205, 1211 (9th Cir. 2004);

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see also S.A. v. Tulare Cnty. Office of Ed., No. CV F 08-1215 LJO GSA, 2009 WL 30298, at *7–

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8 (E.D. Cal. Jan. 6, 2009) (distinguishing the Virginia case and following Beth V. to find plaintiffs

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had private right of action against CDE for its failure to produce educational records under the

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IDEA).

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Moreover, the IDEA explicitly states that SEAs are responsible for ensuring that

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“the requirements of this subchapter are met,” 20 U.S.C. § 1412(a)(11)(A)(i), and requires

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“States” to monitor LEAs and to enforce “this subchapter,” 20 U.S.C. § 1416(a)(1)(C). These

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IDEA provisions demonstrate that Congress intended states to be responsible for enforcing the

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IDEA and intended individual parents and students to have private recourse when states shirk
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their responsibility, which satisfies Pennhurst’s clear statement standard. See Pennhurst,

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451 U.S. at 17–18 (“[I]n those instances where Congress has intended the States to fund certain

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entitlements as a condition of receiving federal funds, it has proved capable of saying so

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explicitly.”).

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Other courts also have concluded that individual parents and students can bring

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IDEA claims alleging a SEA systemically is not complying with its IDEA obligations. In New

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Jersey Protection & Advocacy, Inc. v. New Jersey Department of Education, 563 F. Supp. 2d 474

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(D.N.J. 2008) (“the New Jersey case”), plaintiffs, a collection of advocacy groups for disabled

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schoolchildren, sued the New Jersey Department of Education (“NJDOE”), as well as numerous

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individual school boards. The first claim presented by plaintiffs alleged a violation of the IDEA

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by, among other things, “(a) failing to provide children with disabilities with a free appropriate

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public education in the least restrictive environment; [and] (j) failing to appropriately and

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effectively monitor school district compliance with special education mandates and ensure timely

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correction of noncompliance once identified.” (First Am. Compl. ¶ 121 (New Jersey case, No.

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07-2978 (D.N.J.).) The balance of the plaintiffs’ complaint alleged violations against various

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local districts and asserted other more factually specific allegations against the NJDOE. (Id.)

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The court directly confronted the question of whether provisions of the IDEA created individual

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rights, and concluded that a private action “may generally challenge the NJDOE’s compliance

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with the IDEA, including any obligations imposed on the state in Section 1416.” 563 F. Supp. 2d

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at 490.

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Additionally, in Corey H. v. Board of Education of City of Chicago, 995 F. Supp.

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900, 903 (N.D. Ill. 1998), the plaintiffs based their suit on a failure of the Illinois State Board of

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Education “to meet its statutory responsibility to ensure such compliance [by the LEAs with the

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IDEA].” The Illinois court also concluded that plaintiffs possessed a private right of action under

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the IDEA. Id. at 916–17.

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This court concludes that the IDEA embodies a private right to enforce the IDEA’s

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obligations against the CDE. Because the court finds a private right of action exists, defendant’s

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structural argument based upon the difficulties the CDE would face in complying with both
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USDOE and court orders loses persuasive force. Other courts also have also considered this

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argument and rejected it, in part because the language of the IDEA clearly evinces Congress’s

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intent to permit individuals to use other federal statutes as vehicles to enforce the IDEA’s

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requirements. See Corey H., 995 F. Supp. at 916-17 (citing Marie O. v. Edgar, 131 F.3d 610, 615

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(7th Cir. 1997)); see also 20 U.S.C. § 1415(l) (“Nothing in this chapter shall be construed to

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restrict or limit the rights, procedures, and remedies available under the Constitution . . . or other

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Federal laws protecting the rights of children with disabilities . . . .”). Moreover, an injunction

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directed at an SEA does not conflict with USDOE oversight any more than an injunction directed

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at an LEA conflicts with SEA oversight, and the latter situation is permitted by the text of section

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1415 and established precedent.

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2.

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As organizations, plaintiffs must meet the requirements for standing laid out in

Standing

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Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1997). An

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association has representational standing when “(a) its members would otherwise have standing

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to sue in their own right; (b) the interests it seeks to protect are germane to the organization's

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purpose; and (c) neither the claim asserted nor the relief requested requires the participation of

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individual members in the lawsuit.” Id. Because the asserted purpose of the plaintiff associations

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is to ensure and protect the legal rights of children who are IDEA beneficiaries, the interests the

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instant action seeks to protect are germane, if not identical, to the associations’ purpose. (FAC

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¶ 4.) This satisfies the second requirement. Further, because the suit does not pertain to

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violations of any particular children’s rights and seeks only equitable relief (FAC at 34–35), there

22

is no risk that the participation of individual members will be required in the lawsuit, and the third

23

requirement is met. Hunt, 432 U.S. at 344.

24

However, defendant objects that the individual members lack standing to bring the

25

current action, and therefore the first requirement cannot be satisfied. (ECF 20 at 4.) The court

26

understands defendant’s objection to go properly to the existence of a private right of action, that

27

is statutory standing, and not to constitutional standing. See Hawaii Disability Rights Ctr. v.

28

Cheung, 513 F. Supp. 2d 1185, 1191-93 (D. Haw. 2007) (distinguishing between constitutional
12

1

standing and statutory standing). The elements of constitutional standing — injury in fact,

2

causation, and redressability, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) — are

3

met here. Denial of FAPE to a child is also an injury to the parent. Winkelman ex rel. Winkelman

4

v. Parma City Sch. Dist., 550 U.S. 516, 526 (2007). Consequently, the asserted denial of FAPE

5

constitutes injury in fact to members of the associations. (FAC ¶ 4.) Causation is satisfied

6

because defendant is subject to statutory monitoring, investigation and enforcement obligations,

7

and ultimately is responsible for ensuring the provision of FAPE. (FAC ¶¶ 6, 15.) Finally, the

8

injury is redressable because the abdication of responsibility is alleged to be ongoing, and the

9

injunctive relief requested could cause those children currently denied FAPE to be provided

10

FAPE in the future. (FAC ¶ 4.)

11

The elements of standing are satisfied.

12

3.

13

Defendant notes that 20 U.S.C. § 1415(i)(1)(a) requires exhaustion of

Exhaustion of Administrative Remedies

14

administrative remedies, specifically a due process hearing and an appeal, prior to entry into

15

federal court. (ECF 13-1 at 16-17 (citing Payne v. Peninsula Sch. Dist., 653 F.3d 863 (9th Cir.

16

2011)).) “‘Exhaustion of the administrative process allows for the exercise of discretion and

17

educational expertise by state and local agencies, affords full exploration of technical educational

18

issues, furthers development of a complete factual record, and promotes judicial efficiency by

19

giving these agencies the first opportunity to correct shortcomings in their educational programs

20

for disabled children.’” (Id. at 16 (quoting Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298,

21

1303 (9th Cir. 1992)).) Defendant acknowledges that administrative remedies may be bypassed

22

in cases of systemic violations, but argues plaintiffs’ framing of an individual issue as systemic is

23

insufficient. (ECF 13-1 at 16–17 (citing Doe v. Ariz. Dept. of Educ., 111 F.3d 678, 683 (9th Cir.

24

1997)).)

25

Plaintiffs contend that their claims have been mischaracterized, because they do

26

not seek remedies for individual students and consequently their claims are entirely systemic,

27

making exhaustion unnecessary. (ECF 14 at 17-18.) Citing to Hoeft, 967 F.2d at 1303–1304,

28

1307, plaintiffs argue the Ninth Circuit has held exhaustion under the IDEA is not required in any
13

1

one of four circumstances: (1) where the administrative process is either futile or inadequate,

2

(2) where an agency has adopted a policy or practice contrary to law, (3) where the severity of

3

violations threaten basic statutory goals, and (4) where state policies are challenged. (ECF 14 at

4

17-18.) Plaintiffs assert their allegations in the First Amended Complaint satisfy all four of these

5

factors. (Id. at 18.)

6

Exhaustion of administrative remedies is not necessary in the present case because

7

it would be futile and because the severity of the alleged violations threatens the IDEA’s basic

8

statutory goals. Due process hearing officers are not authorized to adjudicate questions of

9

statutory compliance. Porter v. Bd. of Trs. of Manhattan Beach Unified Sch. Dist., 307 F.3d

10

1064, 1074 (9th Cir. 2002) (citing Hoeft, 967 F.2d at 1307); see also Christopher S. v. Stanislaus

11

Cnty. Office of Educ., 384 F.3d at 1211 (plaintiffs not required to exhaust IDEA administrative

12

remedies when challenging a school district’s policy that shortened the school day for autistic

13

students). Further, as plaintiffs are alleging the CRP process itself is broken as part of their

14

failure to investigate claim (FAC 74), they are not required to pursue this administrative remedy

15

either. See Hoeft, 967 F.2d at 1304 (citing cases in which the due process procedures themselves

16

were challenged and concluding that exhaustion is not required when the challenged policies or

17

practices are enforced at the highest administrative level, such that the only meaningful remedy is

18

through the courts). Moreover, plaintiffs are alleging defendant’s systemic state policies are

19

violating the IDEA by denying California students FAPE, which is a violation severe enough to

20

threaten the basic purpose of the IDEA. J.G. v. Bd. of Educ. of Rochester City Sch. Dist.,

21

830 F.2d 444, 446-47 (2d Cir. 1987).

22

C.

Sufficiency of Factual Pleading

23

Defendant argues plaintiffs’ claims are insufficiently pled for two reasons, and

24

additionally argues that injunctive and declaratory relief is unwarranted. (ECF 13-1 at 7–15.)

25

First, defendant argues that the complaint is conclusory and fails to plead facts establishing

26

defendant violated the IDEA. (Id. at 7–10.) In its reply, defendant argues that certain exhibits

27

plaintiffs present render a violation of the IDEA implausible. (ECF 15 at 5–8.) At oral argument,

28

defendant expanded upon this point, noting that the size of the California school system assured
14

1

some IDEA disputes and violations were virtually certain, and arguing that the examples

2

presented therefore failed to imply systemic violations of the IDEA. (ECF 20 at 9–10.) Second,

3

defendant argues that the IDEA creates no direct responsibility to provide or implement FAPE

4

within the school districts, and therefore no facts can be alleged that would entitle plaintiffs to

5

relief. (ECF 13-1 at 10–11.)

6

Plaintiffs respond that paragraphs 23 to 30 and 44 to 80 of the complaint contain

7

non-conclusory factual allegations that state a convincing claim for relief. (ECF 14 at 9–11.)

8

Additionally, plaintiffs note they do not argue defendant itself should have provided FAPE

9

directly, only that defendant should have ensured FAPE by monitoring, investigating and

10

enforcing the IDEA. (Id. at 11–13.) Plaintiffs justify their requested relief by noting that a prayer

11

for injunctive relief is considered differently than a motion for a permanent injunction, and that if

12

their injunctive relief is stripped away they will have no remedy should they prevail on the merits.

13

(Id. at 14.)

14

The court concludes that plaintiffs have pled their claims and requested relief

15

sufficiently to satisfy the standard set forth in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

16

Defendant’s arguments focus on liability for particular denials of FAPE, and correctly observe

17

that the failure of an LEA is not necessarily the failure of an SEA. (ECF 13-1 at 11.) However,

18

the gravamen of plaintiffs’ complaint is that defendant has failed generally to monitor, investigate

19

and enforce the IDEA. (FAC ¶¶ 37–80.) The violations alleged in Exhibit A of the First

20

Amended Complaint are intended as examples of systemic violations, and no individual remedy

21

for those violations is sought. (ECF 14 at 18.) Consequently, defendant’s argument regarding the

22

placement of responsibility to provide FAPE is unavailing.

23

1.

24

The first cause of action is rooted in 20 U.S.C. § 1412(a)(11)(A), which mandates

First Cause of Action: Failure to Ensure the Provision of FAPE

25

that “[t]he State educational agency is responsible — for ensuring that the requirements of this

26

subchapter are met.” (FAC ¶ 9.) The first requirement imposed, in section 1412(a)(1)(A), is that

27

“[a] free appropriate public education [be] available to all children with disabilities.”

28

Responsibility for the ultimate provision of FAPE unquestionably lies with defendant. Plaintiffs
15

1

plead myriad facts in support of this claim. For example, plaintiffs allege CDE does not have a

2

system in place to ensure the integrity and accuracy of the data on which a finding of

3

noncompliance rests. (FAC ¶ 44.) Thus, the Los Angeles Unified School District Monitor found

4

a discrepancy between the data entered by LEAs and the students’ actual schedules: the former

5

showed substantially higher compliance levels regarding provision of FAPE than the latter. (Id.)

6

This states a plausible claim for relief.

7

2.

8

The second cause of action is based on sections 1411(e)(2)(B) and 1416. (FAC

Second Cause of Action: Failure to Monitor

9

¶ 16.) Section 1411(e)(2)(B) specifically requires that funds reserved by the SEA be used to

10

monitor, investigate complaints, and enforce the provisions of the IDEA. These activities are

11

required, as the title of the subsection expressly indicates: “Required activities.” The specific

12

requirement of monitoring is explained in more detail in section 1416. Section 1416(a)(1)(C)

13

requires that SEAs monitor LEAs with a focus on improving educational results for all children

14

with disabilities and on meeting program requirements, 20 U.S.C. § 1416(a)(2)), by using

15

quantifiable indicators to determine whether FAPE is being provided in the least restrictive

16

environment and whether racial or ethnic groups are inappropriately identified as disabled, 20

17

U.S.C. § 1416(a)(3). The IDEA therefore clearly lays out not simply a duty to monitor, but

18

explanations of how the monitoring must be done.

19

Plaintiffs allege that defendant fails to solicit data effectively from parents because

20

the surveys are sent through the schools and home with the children, resulting in fewer surveys

21

reaching the parents than if the surveys were mailed directly to the parents. (FAC ¶ 45.) Further,

22

the surveys are returned to the children’s teachers, discouraging criticism of the teachers,

23

especially because the surveys must be signed. (Id.) Additionally, the plaintiffs charge that not

24

all the information collected is utilized by defendant. (FAC ¶¶ 47–49.) It may well be, as

25

defendant suggests, that this accusation is either incorrect or incompletely describes defendant’s

26

actions. (ECF 13-1 at 8.) However, it is premature to consider the truth or merit of these claims

27

on a motion for dismissal. These allegations state a plausible claim for relief.

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/////
16

1

3.

2

The third cause of action also is based on sections 1411(e)(2)(B) and 1416, which

3

require that complaints be investigated. (FAC ¶ 16.) Plaintiffs allege that defendant ignores the

4

parents who present the complaints and instead simply accepts assurances from the LEA that the

5

complaints are baseless. (FAC ¶ 73.) Although the IDEA does not specify exactly what degree

6

of investigation is required for section 1415 complaints, something more than taking the LEAs at

7

their word is implied. The extensive procedural safeguards otherwise detailed in section 1415

8

and the fact that funds are set aside for investigations in section 1411(e)(2)(B) suggest that

9

something greater than a perfunctory call to the LEA is expected. These allegations also state a

10

Third Cause of Action: Failure to Investigate

plausible claim for relief.

11

4.

12

The fourth cause of action is also based on sections 1411(e)(2)(B) and 1416, which

Fourth Cause of Action: Failure to Enforce

13

require the SEA to enforce the IDEA. (FAC ¶ 16.) Plaintiffs allege that compliance is not

14

demanded sufficiently quickly and that defendant fails to adequately ensure compliance, for

15

example by warning the LEAs which student’s records they will inspect prior to conducting

16

inspections and by not conducting “field” inspections. (FAC ¶¶ 78–79.) The court finds a

17

plausible claim based on these allegations.

18

5.

19

To establish a prima facie violation of the Rehabilitation Act, 29 U.S.C. § 794

Fifth Cause of Action: Rehabilitation Act

20

(“section 504”), plaintiffs must demonstrate: (1) that the students in question are disabled; (2) the

21

students are otherwise qualified to participate in an LEA’s program; (3) the students have been

22

subjected to discrimination solely because of their disability; and (4) defendant receives federal

23

funding. Alex G. ex rel. Dr. Steven G. v. Bd. of Trs. of Davis Joint Unified Sch. Dist., 387 F.

24

Supp. 2d 1119, 1124 (E.D. Cal. 2005) (citing Wong v. Regents of Univ. of Cal., 192 F.3d 807, 816

25

(9th Cir. 1999)). When alleging violations of FAPE under section 504, plaintiffs are required to

26

go beyond the definition provided in the IDEA and demonstrate a violation of FAPE as defined in

27

34 C.F.R. § 104.33. Mark H. v. Lemahieu, 513 F.3d 922, 933 (9th Cir. 2008).

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/////
17

1

At oral argument, defendant raised the issue of whether section 504 was violated,

2

noting that the definitions of FAPE in section 504 and the IDEA are different. (ECF 20 at 6.)

3

Additionally, defendant argues that the First Amended Complaint fails to allege element three,

4

and that as an additional fifth element, in the educational context, plaintiffs must demonstrate the

5

decisions relating to the students show either bad faith or gross misjudgment. (ECF 13-1 at 18

6

(citing Alex G., 387 F. Supp. 2d at 1124).) Plaintiffs respond that element three is alleged in

7

paragraph 22 of the First Amended Complaint, and element five is alleged in paragraphs 32

8

through 36. (ECF 14 at 13.) Further, plaintiffs state that the facts alleged in these paragraphs are

9

covered in greater detail in the attached exhibits describing mistreatment of students. (Id.)

10

Defendant’s reply brief notes that the instances described suggest no discrimination, bad faith or

11

gross misjudgment on the part of the LEAs. (ECF 15 at 8–9.) Plaintiff responds that defendant

12

and the LEAs cannot be distinguished because of defendant’s monitoring, investigative and

13

enforcement obligations. (ECF 20 at 7-8.)

14

Plaintiffs have adequately pled a section 504 violation. As a threshold matter, the

15

court finds plaintiffs have sufficiently alleged a violation of FAPE as defined under section 504.

16

Mark H., 513 F.3d at 933. Allegations that students are not being educated in the least restrictive

17

environment support a claim of violation of FAPE under section 504. See 34 C.F.R.

18

§§ 104.33(b)(1), 104.34(a) (stating disabled individuals must be educated in the least restrictive

19

environment). The First Amended Complaint alleges at length that this requirement is not

20

satisfied, beginning at paragraph 22 and including Exhibit A. Turning to the first element, it is

21

clear that every child contemplated as covered in the current action is disabled, because the First

22

Amended Complaint contemplates harm only to disabled children. The second element also is

23

met because the affected children are all IDEA beneficiaries. Regarding the third element,

24

plaintiffs allege at paragraphs 22 and 23 in the First Amended Complaint that disabled students

25

are victims of discrimination, and as a result of insufficient training and the challenges presented

26

by disabled students, they are frequently educated in a more restrictive environment than

27

necessary. If true, this would mean that the relevant regulations were violated solely as a result of

28

the students’ disabilities. Lastly, defendant indisputably receives federal funding.
18

1

Since the decision in Alex G. in 2005, the Ninth Circuit has clarified the correct

2

mens rea component of a Rehabilitation Act violation as intentional discrimination or deliberate

3

indifference. Mark H., 513 F.3d at 938. In paragraphs 78 to 80 of the First Amended Complaint,

4

plaintiffs allege that defendant has chosen not to enforce the IDEA, which reasonably may be

5

assumed to include enforcement of the least restrictive environment provisions, when it becomes

6

aware of violations. If true, this would tend to suggest deliberate indifference, thereby satisfying

7

the fifth element. Plaintiffs have stated a plausible claim for violation of section 504.

8

6.

9

The factual allegations reviewed above also demonstrate that plaintiffs have stated

Sixth Cause of Action: California Education Code

10

a plausible claim of violation of California Education Code § 56000, et seq., and the regulations

11

promulgated under those sections, 5 Cal. Code Regs. § 3000, et seq., which impose upon the CDE

12

many of the same duties as the IDEA. See, e.g., Cal. Educ. Code 56100(b) (requiring the State

13

Board of Education, the governing body of the CDE, to monitor LEA plans to ensure FAPE).

14

7.

15

Defendant argues that plaintiffs do not meet the requirements to receive

Declaratory Relief

16

declaratory and injunctive relief because, among other things, this relief would contradict public

17

policy by interfering with the USDOE’s enforcement role. (ECF 13-1 at 12–15.) Because

18

plaintiffs have standing and a private right of action, as discussed above, and because all causes

19

of action state plausible claims, this suit presents a valid case or controversy, permitting

20

declaratory relief.

21

D.

Request for a More Definite Statement

22

Federal Rule of Civil Procedure 12(e) permits a party to move for a more definite

23

statement when a pleading is “so vague or ambiguous that the party cannot reasonably prepare a

24

response.” Defendant argues this is the case here, as the First Amended Complaint “meanders

25

through various topics” and “is essentially set out in a prose format akin to an essay.” (ECF 13-1

26

at 1, 15.) As defendant itself notes, a more definite statement is appropriate only “if the

27

complaint is so indefinite that the defendant cannot ascertain the nature of the claim being

28

asserted.” (ECF 13-1 at 15 (citing Jensen v. Quality Loan Serv. Corp., 702 F. Supp. 2d 1183,
19

1

1188 (E.D. Cal. 2010)).) The court has already determined that plaintiffs have pled the elements

2

necessary to state their causes of action plausibly. The First Amended Complaint serves the

3

essential purpose of giving defendant notice of the claims being asserted.

4

V.

CONCLUSION

5

For the foregoing reasons, defendant’s motions are DENIED.

6

IT IS SO ORDERED.

7

DATED: March 29, 2013.

8
9
UNITED STATES DISTRICT JUDGE

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