Brown v. Elk Grove Unified School District

Filing 25

ORDER signed by District Judge Kimberly J. Mueller on 2/20/18, DENYING in FULL the District's 9 Motion to Dismiss. The District shall file its answer within 14 days. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ISAIAH BROWN,

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Plaintiff,

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No. 2:17-CV-00396-KJM-DB

v.

ORDER

ELK GROVE UNIFIED SCHOOL
DISTRICT,
Defendant.

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Plaintiff, a recent high school graduate, sues Elk Grove School District for denying

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him access to play on several Varsity basketball teams because of his behavioral disability. The

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District moves to dismiss the first amended complaint, arguing plaintiff cannot show

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discriminatory animus nor show he was otherwise qualified for these high-level, selective teams.

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Mot., ECF No. 9; District Mem., ECF No. 9-1. Alternatively, the District moves to strike certain

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allegations as irrelevant. Id. Plaintiff opposes. ECF No. 17. The court heard the matter on

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November 3, 2017. ECF No. 21. As explained below, the court DENIES the District’s motions.

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I.

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BACKGROUND
Plaintiff Isaiah Brown, who had previously played on Franklin High School’s

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traveling basketball teams, was praised as one of the school’s best Junior Varsity basketball

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players. First Am. Compl. (“FAC”), ECF No. 7, ¶¶ 5, 7. Yet he was the only Junior Varsity
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player not invited to the school’s summer 2014 basketball program, an unofficial prerequisite to

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joining the Varsity team. Id. ¶ 9. Soon afterwards, the Varsity coach denied plaintiff a spot on

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the team’s roster. Id. Although the coach claimed he cut plaintiff for lacking “defensive

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awareness,” plaintiff alleges this reason was pretext, noting the coach told others he was “not

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going to deal” with plaintiff because “all he does is get upset” and “emotional” so he would not

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be a good fit. Id.

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Plaintiff’s volatility derives from his “emotional disturbance” disability, for which

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he received special education services under an Individual Educational Program (“IEP”). Id. ¶ 8

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(listing disability’s manifestations as including emotional outbursts, anger, defiance, yelling and

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swearing). In November 2014, one month after the Varsity coach cut plaintiff, plaintiff’s mother

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complained to the District that the exclusion was discriminatory. Id. ¶ 10. In December 2014,

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the District denied her complaint. Id.

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Determined to play Varsity basketball, plaintiff transferred within the District to

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Consumnes Oaks High School for his senior year, 2015 to 2016. Id. ¶¶ 5, 11. He was a starter in

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that school’s 2015 summer league, a good indicator he would play Varsity. Id. ¶ 11. The Varsity

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team’s assistant coach initially praised plaintiff as a “very strong” player who would “make a big

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impact.” Id. Yet, after tryouts, plaintiff was the only consistent summer league player who did

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not make the Varsity team. Id. ¶ 13. The head coach told plaintiff, “I’m not sure you’re going to

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fit in my roster,” but not “because of your talent[,]” it is because “you’re just a player with a lot of

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energy and [you] get very emotional.” Id. ¶¶ 13-14. Soon after, one of plaintiff’s former

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coaches e-mailed the head coach warning him plaintiff was qualified and should not be excluded

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because of his disability. Id. ¶ 16. Plaintiff’s mother filed a second discrimination complaint and

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requested an intra-District school transfer. Id. ¶ 17.

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Plaintiff immediately transferred to Pleasant Grove High School. Id. ¶¶ 5, 18. The

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District’s athletic director said plaintiff would be “allowed to try-out for the varsity basketball

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team at his new school.” Id. ¶ 17. In December 2015, even though the Varsity team needed

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qualified players and promoted Junior Varsity players to meet the team’s needs, plaintiff was not

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allowed to try out. Id. ¶ 19. Plaintiff alleges “on information and belief” the school’s Varsity

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coach was told plaintiff had a “bad attitude” and would be “trouble.” Id.

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These multiple transfers and rejections affected plaintiff’s academic performance

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and emotional health. Id. ¶ 20. For instance, in a January 2016 IEP team meeting, plaintiff’s

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mother explained the importance of basketball to plaintiff’s academic progress, offering

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documentation. Id. ¶¶ 20-21. The IEP team agreed with the correlation, but deemed basketball

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an “extracurricular” activity; the District ignored plaintiff’s repeated requests to practice with the

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team. Id. ¶¶ 21-22. Although plaintiff had previously received an academic scholarship to play

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college basketball in Wyoming, it was rescinded for his lack of Varsity experience. Id. ¶ 25. He

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now attends Sacramento City College without a basketball scholarship and as a “red-shirt

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freshman.” Id. ¶ 26.

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Plaintiff brings three claims against the District: (1) Disability discrimination

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under Title II of the Americans with Disabilities Act (“ADA”); (2) disability discrimination under

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§ 504 of the Rehabilitation Act; and (3) failure to implement § 504’s implementing regulations.

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See generally FAC. Plaintiff initially brought two negligence claims as well, but has since

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dismissed them. See Stipulation, ECF No. 8.

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II.

DISTRICT’S MOTION TO DISMISS

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The District moves to dismiss all three operative claims, arguing it did not exclude

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plaintiff because of his disability; and that he simply was not Varsity material given his emotional

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state. See District Mem. at 15-16. The District explains plaintiff was given an equal opportunity

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to participate on a Varsity basketball team, but when shaping their teams the coaches could not

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ignore his blatant behavioral issues. Id. As explained below, plaintiff has alleged enough to

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withstand dismissal at this stage of litigation.

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A.

Legal Standard

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A party may move to dismiss for “failure to state a claim upon which relief can be

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granted.” Fed. R. Civ. P. 12(b)(6). The court may grant the motion only if the complaint lacks a

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“cognizable legal theory” or if its factual allegations do not support a cognizable legal theory.

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Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). A complaint
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must contain a “short and plain statement of the claim showing that the pleader is entitled to

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relief,” Fed. R. Civ. P. 8(a)(2), though it need not include “detailed factual allegations,” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007). But “sufficient factual matter” must make the claim

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at least plausible. Iqbal, 556 U.S. at 678. Conclusory or formulaic recitations of elements do not

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alone suffice. Id. (citing Twombly, 550 U.S. at 555). In a Rule 12(b)(6) analysis, the court must

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accept well-pled factual allegations as true and construe the complaint in plaintiff’s favor. Id.;

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Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).

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B.

Claims One and Two: Disability Discrimination

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To establish a disability discrimination claim under Title II of the ADA or under

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§ 504 of the Rehabilitation Act, plaintiff must allege (1) he has a qualified disability; (2) he was

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entitled to participate in a public entity’s services, program, or activities; (3) he was excluded

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from such services, programs or activities; (4) either partially (under Title II) or solely (under

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§ 504) based on his disability. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (citation

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omitted) (listing Title II elements); Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir. 1990)

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(citations omitted) (listing § 504 elements); see also Vinson v. Thomas, 288 F.3d 1145, 1152 n.7

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(9th Cir. 2002) (“We examine cases construing claims under the ADA, as well as section 504 of

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the Rehabilitation Act, because there is no significant difference in the analysis of rights and

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obligations created by the two Acts.”) (citation omitted). Because he seeks damages, plaintiff

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must also plead (5) the District’s deliberate indifference, which “requires both knowledge that a

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harm to a federally protected right is substantially likely, and a failure to act upon that

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likelihood.” Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001) (citations omitted).

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Plaintiff has plausibly pled each element.

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That the first and third elements are sufficiently pled is undisputed: Plaintiff has a

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qualifying disability, FAC ¶ 8, and he was excluded from Varsity basketball teams at public high

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schools in the District, id. ¶ 50 (listing exclusions). The sufficiency of the allegations supporting

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the remaining elements is disputed.

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As to plaintiff’s “entitlement” to be on Varsity, the District contends plaintiff’s
behavioral outbursts, regardless of the basis for them, rendered him unfit for Varsity team
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membership. District Mem. at 12. The District relies on the case of C.O. v. Portland Pub. Sch.,

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which clarifies educational institutions are not compelled to “disregard the disabilities of

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handicapped individuals or to make substantial modifications in their programs to allow disabled

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persons to participate”; the rule is merely that “a person who is ‘otherwise qualified’” may not be

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excluded “based upon his [] disability.” 679 F.3d 1162, 1169 (9th Cir. 2012) (citation omitted);

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see District Mem. at 11. “To be ‘otherwise qualified,’ an individual must be able to meet all of a

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program’s requirements in spite of his handicap.” C.O., 679 F.3d at 1169 (citations omitted).

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Although the evidence may later prove plaintiff’s behavioral outbursts meant he did not meet the

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requirements for temperament of a Varsity player, plaintiff’s allegations, construed in his favor,

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plausibly show he “met all of [Varsity’s] requirements in spite of his handicap.” Id.; see FAC

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¶¶ 5, 7, 11, 13 (highlighting plaintiff’s talent and his praise from coaches). Dismissal on this

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basis is unwarranted.

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As to causation, the District contends again that plaintiff was denied a position on

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the Varsity team based on inadequate qualifications; he was not denied a Varsity position based

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on his disability. District Mem. at 14. But the complaint plausibly alleges plaintiff’s disability

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drove the exclusion. He was the only Franklin Junior Varsity player not promoted to Varsity,

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id. ¶ 9, and the only consistent Consumnes summer league player not promoted to Varsity,

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id. ¶ 13. When faced with a “noticeable lack of players,” Pleasant Grove’s Varsity coach

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promoted Junior Varsity players rather than selecting plaintiff for the team, id. ¶ 19. Indeed, all

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the Varsity coaches based plaintiff’s exclusion on his emotional state at least in part, id. ¶¶ 8-9,

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13-14, 19, 28, and the complaint directly links plaintiff’s emotional state to his disability, id. ¶ 8.

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These allegations are enough at the pleading stage.

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Finally, the allegations plausibly state the District acted with deliberate

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indifference. The District knew about plaintiff’s behavioral issues. Id. ¶¶ 8, 21-22, 24, 28. The

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District knew plaintiff was denied a Varsity spot because of his behavior: Coaches openly stated

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as much, plaintiff’s mother twice filed discrimination complaints and his former coach warned

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others plaintiff was qualified so his disability should not prohibit him from playing, id. ¶¶ 10,

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16-17, 24. It is also plausible to infer from the complaint that the District noticed his decline in
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academic performance and well-being, as evidenced by the January 2016 IEP meeting during

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which plaintiff’s mother drew this link, and by her repeated requests for this meeting, id.

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¶¶ 20-21.

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In short, at the pleading stage, a plaintiff need not prove discrimination; he must

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merely plead a plausible discrimination claim. See Swierkiewicz v. Sorema N. A., 534 U.S. 506,

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510 (2002) (explaining prima facie discrimination case is an “evidentiary standard, not a pleading

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requirement.”). Plaintiff has met this requirement here. His ADA and § 504 disability

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discrimination claims therefore survive dismissal.

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C.

Claim Three: Section 504 Implementing Regulations

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Students may bring a private right of action against a school district for violating

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section 504’s “reasonable accommodation” and “meaningful access” implementing regulations.

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Mark H. v. Lemahieu, 513 F.3d 922, 937-38 (9th Cir. 2008). Here, plaintiff alleges the District

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violated the regulations identified as 34 C.F.R. § 104.37(a)(1)1 and 34 C.F.R. § 104.37(c)(1)2 by

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providing neither reasonable accommodations nor meaningful access. FAC ¶¶ 47-48.

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1.

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Plaintiff’s reasonable accommodation theory as pled survives dismissal. When an

Reasonable Accommodations

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entity is on notice of needed accommodations, it “is required to undertake a fact-specific

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investigation to determine what constitutes a reasonable accommodation.” A.G. v. Paradise

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Valley Unified Sch. Dist. No. 69 (“A.G.”), 815 F.3d 1195, 1207 (9th Cir. 2016) (citation omitted).

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Plaintiff alleges the District knew about his behavioral issues, knew how central
basketball was to his life, and knew three Varsity coaches cited his emotional instability, a

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“[The District] shall provide non-academic and extracurricular services and activities in
such manner as is necessary to afford handicapped students an equal opportunity for participation
in such services and activities.” 34 C.F.R. § 104.37(a)(1).
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“In providing physical education courses and athletics and similar aid, benefits, or
services to any of its students, [the District] may not discriminate on the basis of handicap. A
recipient that offers physical education courses or that operates or sponsors interscholastic, club,
or intramural athletics shall provide to qualified handicapped students an equal opportunity for
participation.” 34 C.F.R. § 104.37(c)(1).
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manifestation of his disability, as reason to exclude him; yet the District neither investigated the

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issue nor attempted accommodations. See FAC ¶¶ 8-9, 13-14, 19, 50.

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Regarding accommodations, plaintiff cites his IEP team’s conclusion that playing

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basketball would increase his wellbeing and academic performance and alleges the District

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denied him a reasonable accommodation by refusing to let him at least practice with the team.

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FAC ¶¶ 22, 24. The District’s briefing explains why it believes this theory should ultimately fail.

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See District Mem. at 18 (allowing accommodations “would be highly unfair to the [nondisabled]

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students who earned their spot on a varsity basketball roster”; “[p]ractice is the time where

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coaches dedicate time to their players’ progress” so this “request is highly unreasonable.”). But at

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the pleading stage, the court does not evaluate the request’s reasonableness; the court need only

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assess the complaint’s sufficiency. Plaintiff has plausibly pled that the District knew he was

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denied access to Varsity basketball teams based on his disability, yet did nothing to investigate

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this exclusion or accommodate him with alternate arrangements. This theory survives.

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2.

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Plaintiff’s meaningful access theory also survives dismissal. A plaintiff may

Meaningful Access

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pursue such a theory by pleading a violation of a § 504 implementing regulation that “denied

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[him] meaningful access to a public benefit.” A.G., 815 F.3d at 1204 (citation omitted). Plaintiff

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alleges Pleasant Grove specifically denied him an equal opportunity to participate on Varsity

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despite his qualifications, in violation of 34 C.F.R. § 104.37(c)(1), by refusing to let him try out

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for the team. FAC ¶¶ 17-19. These allegations are sufficient to plead a plausible “meaningful

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access” denial claim. This theory survives as well.

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D. Conclusion

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Plaintiff has sufficiently pled all three operative claims. The court DENIES the

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District’s motion to dismiss.

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III.

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DISTRICT’S ALTERNATIVE MOTION TO STRIKE
Alternatively, the District asks the court to strike certain allegations as irrelevant.

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See District Mem. at 22-23. A court “may strike from a pleading an insufficient defense or any

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redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The District
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asks the court to strike nine paragraphs from the complaint as irrelevant and immaterial. District

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Mem. at 22-23 (citing FAC ¶¶ 18-19, 21-22, 32, 35, 40, 42, 50).

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The District raises two arguments to support its strike motion, both of which this

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court rejects. First, the District argues allegations pertaining to Pleasant Grove High School’s

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refusal to offer plaintiff a tryout are irrelevant, reasoning plaintiff was not entitled to one because

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he enrolled well after tryouts concluded and the team had been selected. District Mem. at 23.

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But the allegations are relevant in context: Plaintiff alleges the District’s athletic director said he

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would be “allowed to try-out for the varsity basketball team at his new school.” FAC ¶ 17. The

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refusal to offer him a tryout could plausibly show discrimination. Plaintiff alleges the team still

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had a “noticeable lack of players” at the time, and the coaches recruited from Junior Varsity

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instead of selecting plaintiff. Id. ¶ 19.

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Second, the District argues allegations pertaining to the January 2016 IEP meeting,

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which occurred after plaintiff was denied a tryout, are irrelevant to claims of discrimination.

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District Mem. at 22. But these allegations, which link basketball to plaintiff’s academic success,

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are relevant to damages and the claim the District denied him the reasonable accommodation of at

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least practicing with the team, despite not making the roster.

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The court DENIES the District’s motion to strike.
IV.

CONCLUSION
As explained above, the court DENIES the District’s motion in FULL. The

District shall file its answer within 14 days.

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IT IS SO ORDERED.

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This resolves ECF No. 9.

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DATED: February 20, 2018.

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UNITED STATES DISTRICT JUDGE

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