E. et al v. Education, Department of et al
Filing
94
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' THIRD AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT re 85 - Signed by JUDGE ALAN C KAY on 11/20/2014. "The Court finds that Plaintiffs' Third Amended Complaint is moot. Alternatively, the Court finds that the claims in the Third Amended Complaint are ripe for summary adjudication. Accordingly, this case is dismissed with prejudice. T he Clerk of the Court is directed to close this case." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
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DEPARTMENT OF EDUCATION, STATE )
)
OF HAWAII, KATHRYN MATAYOSHI,
in her official capacity as the )
)
Superintendent and Chief
)
Executive Officer of the
Department of Education, State )
)
of Hawaii, HAWAII TECHNOLOGY
ACADEMY GOVERNING SCHOOL BOARD, )
MICHAEL FINDLEY, in his capacity)
as the chairperson of the Hawaii)
)
Technology Academy Governing
School Board, HAWAII TECHNOLOGY )
ACADEMY, and LEIGH FITZGERALD, )
in her official capacity as the )
)
Executive Director of Hawaii
)
Technology Academy,
)
)
Defendants.
)
JASON E., by and through his
parent and best friend, LINDA
E., and LINDA E. individually,
Civ. No. 12-00354 ACK-BMK
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ THIRD
AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF OR, IN
THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT
PROCEDURAL BACKGROUND
On June 20, 2012, Jason E. (“Student”), by and through
his mother Linda E. (“Parent”) (collectively “Plaintiffs”), filed
a Complaint against the State of Hawaii’s Department of Education
(“DOE”). (Doc. No. 1.) Plaintiffs’ Complaint sought, inter alia,
1
the reversal of an Administrative Hearing Officer’s May 21, 2012
decision regarding an Individualized Education Program (“IEP”)
set for Student’s 2012-2013 school year. (Id.) Under the
Individuals with Disabilities Education Act (“IDEA”), a qualified
disabled child is entitled to receive an IEP that offers a Free
Appropriate Public Education (“FAPE”).
On October 1, 2012, the DOE filed a Motion to
Dismiss Plaintiffs’ Complaint. (Doc. No. 19.) On February 14,
2013, the Court issued an Order Granting the DOE’s Motion to
Dismiss (“Feb. 14 Order”). (Doc. No. 31.) In the Feb. 14 Order,
the Court concluded that Plaintiffs’ Complaint for relief under
the IDEA was moot because Parent had executed a Revocation of
Consent Form indicating that she no longer wanted Student to
receive IDEA special education services. Feb. 14 Order at 17-23.
However, in an abundance of caution, the Court allowed Plaintiffs
to amend their Complaint, reasoning as follows:
[I]t is possible that Parent has an argument
that [the DOE] should have honored the
Revocation of Consent Form on June 15, 2012
by treating Student as a general education
student and continuing his enrollment at
[Hawaii Technology Academy (“HTA”)]. Instead
of asking for a mandate for special education
services, Parent could adjust her claim to
reflect her intent for Student to be treated
as a general education student at HTA.
Id. at 25. Further, the Court “note[d] that, on the other hand,
HTA has submitted a letter dated February 6, 2013, attached
hereto as Exhibit A, setting forth the school’s reasons why
2
Student should not remain at HTA as a general education student.”
Id.
Plaintiffs filed a First Amended Complaint on
March 19, 2013, and subsequently filed a Second Amended Complaint
on May 10, 2013. (Doc. Nos. 33 & 38.)
On August 28, 2013, Plaintiffs filed a Motion to
Request Court to Hear Additional Evidence. (Doc. No. 49.) On
October 2, 2013, the Court issued an Order denying this motion
and staying the case (“Oct. 2 Order”). (Doc. No. 62.) The Court
stayed the case because the parties were involved in a proceeding
in the Family Court of the First Circuit of the State of Hawaii
(“Family Court”). See Oct. 2 Order at 9-12.
On December 9, 2013, the Court issued a minute order
lifting the stay because the case in the Family Court had been
dismissed. (Doc. No. 70.)
On May 7, 2014, Plaintiffs filed the operative Third
Amended Complaint against the DOE, Kathryn Matayoshi, in her
official capacity as the Superintendent and Chief Executive
Officer of the DOE, HTA Governing School Board, Michael Findley,
in his capacity as the chairperson of HTA Governing School Board,
HTA, and Leigh Fitzgerald, in her official capacity as the
Executive Director of HTA (collectively “Defendants”). (Doc. No.
81.) On June 2, 2014, Defendants filed an Answer. (Doc. No. 84.)
On July 31, 2014, Defendants filed the instant
3
Motion to Dismiss Plaintiffs’ Third Amended Complaint for
Declaratory and Injunctive Relief or, in the Alternative, Motion
for Summary Judgment. (Doc. No. 85.) On October 20, 2014,
Plaintiffs filed an Opposition to Defendants’ Motion. (Doc. No.
88.)
A hearing regarding Defendants’ Motion was held on
November 10, 2014.1/
FACTUAL BACKGROUND
At the time of this proceeding, Student is 13 years
old. (Third Am. Compl. ¶ 3.) Student was born with Down Syndrome
and a heart condition. (Mot. Ex. 1 at 4.) He has been diagnosed
with Attention Deficit Hyperactivity Disorder. (Id.) He also has
mild bilateral hearing loss and wears corrective lenses to read.
(Id.) From 2008-2012, Student received IDEA special education
services. (Id. at 6-29; Third Am. Compl. ¶ 11.)
For the school years 2008-2012, Student attended
Hawaii Technology Academy, a DOE Public Charter School.2/ (Mot.
Ex. 1 at 6-29; Third Am. Compl. ¶ 11.) HTA educates students
using a “hybrid” model of face-to-face classes meeting three days
a week combined with a computer-based education program called
1/
Defendants did not file a reply in support of the instant
Motion.
2/
Public Charter Schools are publicly funded institutions
regulated by the Hawaii Board of Education; in addition to
general education, these schools provide IDEA services to
qualified children. (Mot. Ex. 1 at 4 n. 2.)
4
“Online School.” (Mot. Ex. 1 at 4-5.) The DOE implemented an IEP
for Student at HTA for every school year from 2008-2012.3/
On May 19, 2011, Student’s IEP team issued an IEP
that recommended placing Student in a full-time face-to-face
instruction program instead of HTA. (Id. at 21-22.) Parent
objected to the IEP’s recommendation to remove her son from HTA.
(Id. at 26.) On July 27, 2011, Plaintiffs filed a Request for
Impartial Due Process Hearing to contest the May 19, 2011 IEP.
(Id. at 2.) The Administrative Hearing Officer (“AHO”) held a
hearing over the course of five days and issued her decision on
May 21, 2012. (Id. at 2-3.) The AHO concluded that (1) the May
19, 2011 IEP offered Student a FAPE at the placement of Heeia
Elementary, and (2) HTA is not an appropriate placement because
Student “requires a face-to-face full time program” instead of
the hybrid program offered at HTA. (Id. at 41-43.)
On May 31, 2012, Leigh Fitzgerald, HTA’s Executive
Director, sent Parent a letter informing her that HTA will be
implementing the May 19, 2011 IEP and advising her to enroll
Student at Heeia Elementary, Student’s geographic home school.
(Id. Ex. 2.) Also on May 31, 2012, Dean Tsukada, District
Education Specialist (“DEC”) for the Leeward School District,
3/
Student attended HTA for the 2011-2012 school year under
the “stay put” provision of the IDEA, which allowed Student to
stay in his current educational placement at HTA while Parent
appealed the May 19, 2011 IEP. See 20 U.S.C. § 1415(j).
5
sent a memo to Rebecca Rosenberg, DEC for the Windward School
District, advising her of Student’s impending enrollment at Heeia
Elementary and requesting a “transition meeting” to share
information regarding Student’s needs. (Id. Ex. 3.)
On June 7, 2012, Rosenberg sent a letter to Parent
outlining Student’s Extended School Year (“ESY”) services and
stating that, pursuant to the AHO’s decision, ESY services would
be conducted in the Windward School District beginning on June
12, 2012. (Id. Ex. 4.)
On June 12, 2012, Fitzgerald sent a letter to Parent
stating that Student would be released from HTA on June 18, 2012,
because of the AHO’s May 21, 2012 decision. (Id. Ex. 5.)
On June 15, 2012, Parent signed a “Revocation of
Consent for Continued Provision of Special Education and Related
Services” (“Revocation of Consent Form”). (Id. Ex. 6.) This form
stated that (1) Parent wished to “revoke my consent to the
continued provision of special education and related services to
my child,” (2) the DOE will “no longer be required to have an . .
. [IEP] for my child,” and (3) Plaintiffs “will no longer be
entitled to the procedural safeguards established in the
[IDEA].”4/ (Id.)
4/
The procedural safeguards in the IDEA include the “stay
put” provision; Parent’s Revocation of Consent also appears to
have terminated “stay put” under the IDEA. Oct. 2 Order at 5 n.
6; see also 20 U.S.C. § 1415.
6
Parent also sent an email on June 15, 2012, to HTA
stating that she had delivered the Revocation of Consent Form.
Oct. 2 Order at 5. In her email, Parent stated: “I agree that the
result of my revocation for continued special education and
related services described above will be that an IEP will no
longer be implemented nor required.” Id. According to the email,
Parent believed that Student would “remain a registered and
enrolled general education student at [HTA].” Id. This email also
contains a paragraph where parent states that the IDEA gives
Parent “unilateral authority to refuse special education and
related services, including the related issue of revocation of
consent for the continued provision of special education and
related services.” Id. at 5-6.
On June 18, 2012, the HTA school-wide withdrawal
date for students, HTA withdrew Student from enrollment at the
school. Id. at 6.
On June 19, 2012, HTA issued a Prior Written Notice
(“PWN”) to Parent stating that Student was “no longer eligible
for special education and related services.” (Mot. Exs. 7-8.) The
PWN explained that Parent had the option of receiving special
education services under the most recent IEP, but that services
would not be provided because “parent has requested that all
services be revoked.” (Id.)
In an exchange of letters between Parent and the
7
DOE, HTA stated it withdrew Student on June 18, 2012 “as
instructed by the hearing officer’s ruling” and because the
Revocation of Consent Form was not effective until Parent
received the June 20, 2012 PWN. Oct. 2 Order at 6. HTA stated
that Parent could apply to enroll Student as a general education
student for the upcoming year. Id. at 6-7. Parent applied to
enroll Student at HTA for the 2012-2013 school year, but Student
was placed on the waiting list. Id. at 7. Student was not readmitted to HTA for the 2012-2013 school year; instead, Parent
homeschooled Student. Id.
On June 20, 2012, Plaintiffs filed their original
Complaint in this action. The Court issued its Order regarding
the DOE’s Motion to Dismiss on February 14, 2013.
On March 4, 2013, the DOE filed a Petition for
Family Supervision in the Family Court. Oct. 2 Order at 7. That
petition alleged, inter alia, that Parent had not been providing
Student an appropriate education.
On March 13, 2013, the DOE received an “Exceptions
to Compulsory Education” form from Parent, which requested that
Student be withdrawn from the 2012 school year because Parent was
homeschooling him.5/ (Mot. Ex. 9.)
5/
Parent dated this form June 18, 2012. (Mot. Ex. 9.)
According to Defendants, “Parent revealed in her deposition that
she dated her signature on the Form as June 18, 2012 to comport
with Student’s departure from HTA but that she actually signed
(continued...)
8
On March 19, 2013, and May 10, 2013, respectively,
Plaintiffs filed their First and Second Amended Complaints.
On November 25, 2013, the Family Court Petition was
dismissed.6/ (See Doc. No. 70.)
On May 7, 2014, Plaintiffs filed the operative Third
Amended Complaint.
At the Nov. 10 hearing, the Court learned that several
important events have occurred since the Third Amended Complaint
was filed. Specifically, in July 2014, Student was enrolled at
HTA as a general education student. On September 16, 2014, IDEA
special education services were implemented for Student with an
IEP meeting scheduled for October 21, 2014. However, on the eve
of the October 21 meeting, Parent again revoked her consent to
IDEA services. Consequently, at the October 21 meeting, Student’s
special education services under § 504 of the Rehabilitation Act
were discussed.
At present, Student is enrolled as a sixth grade
general education student at HTA despite the fact that he is
5/
(...continued)
the document in March 2013.” (Id. at 9.) The Court notes that
Defendants have not attached a copy of the relevant portion of
Parent’s deposition transcript to the instant Motion.
6/
Evidently, the Family Court Petition was dismissed because
Parent stated before the Family Court that she was homeschooling
Student. (Rosenberg Decl. ¶ 6.) According to Defendants, the
Family Court cautioned Parent that any attempt to reenroll
Student in a DOE school may result in the filing of a new
petition. (Id. ¶ 7.)
9
chronologically a ninth grader and academically performs at the
level of a kindergartner or first grader.7/ Evidently, Student is
receiving certain special education services including 1:1
instruction at HTA through a § 504 plan.8/
Defendants stated at the Nov. 10 hearing that Student
is aggressive, abusive, non-complaint, disruptive, and
experiences toileting issues. Defendants expressed concern as to
how HTA will provide for the safety and academic success of other
students given Student’s behaviors. Defendants further stated
that parents of other HTA students have expressed concern that
Student is interfering with classroom instruction and that, as a
consequence, these parents may withdrew their children from HTA.
Defendants asserted that HTA cannot explain the situation to the
parents because of confidentiality issues.
According to Defendants, HTA is doing everything it
can to provide Student a § 504 FAPE, but that it would be in the
Student’s best interest to receive the full panoply of special
education services under the IDEA. The Court notes that Parent
7/
At the Nov. 10 hearing, Defendants stated that HTA placed
Student in a sixth grade classroom as a “compromise” and that the
school had to account for Student’s physical size, which is
commensurate with his age, and aggressive behavior.
8/
Defendants have not submitted any declarations or other
evidence in support of this statement; however, Plaintiffs, at
the Nov. 10 hearing, did not dispute that Student is currently
receiving certain special education services including 1:1
instruction at HTA through a § 504 plan.
10
has once again revoked her consent to IDEA services and,
moreover, it appears that, notwithstanding the revocation,
Student is receiving various special education services including
1:1 instruction through a § 504 plan.
When questioned by the Court as to what the ideal
situation would be for Student, Defendants stated that their
“hands are tied” because state law requires HTA to enroll any
applicant to the school if space is available. Specifically,
H.R.S. § 302D-34(b)(2) makes it mandatory for “start-up” public
charter schools like HTA to enroll students “who submit an
application, unless the number of students who submit an
application exceeds the capacity of a program, class, grade
level, or building.” Id. Notwithstanding this statute, Defendants
expressed concern as to how HTA will provide viable instruction
to Student given that the AHO previously determined that HTA was
unsuitable even with full IDEA services and that Student needs a
face-to-face, five-day a week program, instead of the hybrid,
three-day a week program offered by HTA.
In short, HTA, like the AHO, believes that placing
Student at the school as a general education student is not in
the Student’s best interest.9/ See Feb. 14 Order at 24.
9/
In her May 21, 2012 decision, the AHO found that Kathy
English, Parent’s “Advocate” from the Hawaii Disability Rights
Center, observed that HTA was not an inappropriate placement for
Student “because his behaviors were interfering with his ability
(continued...)
11
STANDARD
I.
Motion to Dismiss for Lack of Subject-Matter
Jurisdiction
Federal Rule of Civil Procedure (“Rule”) 12(b)(1)
authorizes the Court to dismiss a complaint for “lack of subjectmatter jurisdiction.” Because mootness is an issue pertaining to
the federal court’s subject-matter jurisdiction under Article
III, it is properly raised in a motion to dismiss under Rule
12(b)(1), not Rule 12(b)(6). White v. Lee, 227 F.3d 1214, 1243
(2000); Kingman Reef Atoll Investments v. U.S. Dep’t of Interior,
195 F.Supp.2d 1178, 1182 n.2 (D. Haw. 2002).
A motion to dismiss for lack of subject matter
jurisdiction that is properly raised may either (1) “attack the
allegations of the complaint as insufficient to confer subject
matter jurisdiction on the court” (“facial attack”) or (2) “may
attack the existence of subject matter jurisdiction in fact”
(“factual attack”). Malama Makua v. Rumsfeld, 136
F.Supp.2d 1155, 1159 (D. Haw. 2001); White, 227 F.3d at 1242.
For a facial attack on subject matter jurisdiction, “all
allegations of material fact are taken as true and construed in
the light most favorable to the nonmoving party.” Malama, 136 F.
Supp. 2d at 1159. On the other hand, for a factual attack, “no
9/
(...continued)
to learn.” (Mot. Ex. 1 at 43.) At the Nov. 10 hearing, Plaintiffs
contested this finding and argued that English’s testimony was
“taken out of context.”
12
presumptive truthfulness attaches to the plaintiff’s allegations,
and the existence of disputed material facts will not preclude
the trial court from evaluating for itself the existence of
subject matter jurisdiction in fact.” Id. at 1159-60 (citing
Thornhill Publ’g Co. v. General Tel. & Elecs. Corp., 594 F.2d
730, 733 (9th Cir. 1979)).
“Once challenged, the party asserting subject matter
jurisdiction has the burden of proving its existence.” Robinson
v. U.S., 586 F.3d 683, 685 (9th Cir. 2009). Additionally, once
the party bringing the Rule 12(b)(1) motion presents evidence or
other affidavits before the court challenging jurisdiction, the
party opposing the motion must present affidavits or other
evidence necessary to satisfy its burden of establishing subject
matter jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d
1035, 1039 (9th Cir. 2004). Furthermore, when considering a Rule
12(b)(1) motion to dismiss, the district court may “hear evidence
regarding jurisdiction” and “resolve factual disputes where
necessary.” Robinson v. U.S., 586 F.3d 683, 685 (9th Cir. 2009).
In this case, Defendants bring a factual challenge
to the Court’s subject matter jurisdiction, and attach two
declarations and nine exhibits to the instant Motion. See Safe
Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)
(attack on subject matter jurisdiction is considered factual if
the attack relies on extrinsic evidence and does not rely solely
13
on the pleadings).
II.
Motion for Summary Judgment
Under Rule 56, a party may move for summary judgment
on any claim or defense, or part of a claim or defense. Summary
judgment “should be granted ‘if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Maxwell v. Cnty. of
San Diego, 697 F.3d 941, 947 (9th Cir. 2012) (quoting F.R.C.P.
56(a)). Under Rule 56, a “party asserting that a fact cannot be
or is genuinely disputed must support the assertion,” either by
“citing to particular parts of materials in the record” or by
“showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” F.R.C.P.
56(c)(1).
The substantive law determines which facts are
material; “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “The mere existence of
some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.”
Scott v. Harris, 550 U.S. 372, 380 (2007) (emphasis in original).
14
A genuine issue of material fact exists if “a
reasonable jury could return a verdict for the nonmoving party.”
United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012).
Conversely, “[w]here the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is
no genuine issue for trial.” Scott, 550 U.S. at 380.
The moving party has the burden of persuading the court
as to the absence of a genuine issue of material fact. Avalos v.
Baca, 596 F.3d 583, 587 (9th Cir. 2010).10/ If the moving party
satisfies its burden, the nonmoving party “must do more than
simply show that there is some metaphysical doubt as to the
material facts.” Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th
Cir. 2010). The nonmoving party must present evidence of a
“genuine issue for trial,” F.R.C.P. 56(e), that is “significantly
probative or more than merely colorable.” LVRC Holdings LLC v.
Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (citation omitted).
Summary judgment will be granted against a party who fails to
demonstrate facts sufficient to establish “an element essential
to that party’s case and on which that party will bear the burden
10/
When the party moving for summary judgment would bear the
burden of proof at trial, the movant must present evidence which
would entitle it to a directed verdict if the evidence were to go
uncontroverted at trial. Miller v. Glenn Miller Prods., 454 F.3d
975, 987 (9th Cir. 2006) (citation omitted). In contrast, when
the nonmoving party would bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by pointing
out the absence of evidence from the nonmoving party. Id.
(citation omitted).
15
of proof at trial.” Parth v. Pomona Valley Hosp. Med. Ctr., 630
F.3d 794, 798-99 (9th Cir. 2010) (citation omitted).
When evaluating a motion for summary judgment, the
court must “view the facts and draw reasonable inferences in the
light most favorable to the party opposing the summary judgment
motion.” Scott v. Harris, 550 U.S. 372, 378 (2007). The court may
not, however, weigh conflicting evidence or assess credibility.
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008).11/ Accordingly,
if “reasonable minds could differ as to the import of the
evidence,” summary judgment will be denied. Anderson, 477 U.S. at
250–51.
III.
Special Consideration for Pro Se Litigants
Parent represents herself and her son pro se.12/ The
Ninth Circuit has cautioned that pro se litigants must be treated
with liberality. See Waters v. Young, 100 F.3d 1437, 1441 (9th
11/
Nonetheless, a “conclusory, self-serving affidavit” that
lacks detailed facts and supporting evidence may not create a
genuine issue of material fact. F.T.C. v. Neovi, Inc., 604 F.3d
1150, 1159 (9th Cir. 2010). Moreover, “[w]hen opposing parties
tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.” Scott,
550 U.S. at 380. “The general rule in the Ninth Circuit is that a
party cannot create an issue of fact by an affidavit
contradicting his prior deposition testimony.” Yeager v. Bowlin,
693 F.3d 1076, 1080 (9th Cir. 2012).
12/
The Court notes that at the Nov. 10 hearing Parent stated
that although she drafted the Third Amended Complaint, she
consulted with attorneys to help her prepare it.
16
Cir. 1996). At the same time, however, the Ninth Circuit has held
that “an ordinary pro se litigant, like other litigants, must
comply strictly with the summary judgment rules.”13/ Thomas v.
Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citing Bias v.
Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007)). Because trial
courts “generally do not intervene to save litigants from their
choice of counsel . . . [a] litigant who chooses himself as legal
representative should be treated no differently.” Jacobsen v.
Filler, 790 F.2d 1362, 1364-65 (9th Cir. 1986) (emphasis in
original). District courts therefore have no duty “to search for
evidence that would create a factual dispute.” Bias, 508 F.3d at
1219.
DISCUSSION
Defendants argue that Plaintiffs’ Third Amended
Complaint is moot. Alternatively, Defendants argue that
Plaintiffs’ claims in the Third Amended Complaint are ripe for
summary adjudication. (Mot. at 18.) The Court will address these
arguments in turn.
I.
Whether Plaintiffs’ Third Amended Complaint is Moot
Under Article III of the Constitution, federal courts
only have jurisdiction over “actual, ongoing controversies.”
13/
The Court notes that pro se prisoners are afforded more
leniency regarding the standard for summary judgment. See Thomas
v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). However,
Plaintiffs are not prisoners representing themselves pro se.
17
Honig v. Doe, 484 U.S. 305, 317 (1988). “A party must maintain a
live controversy at all stages of review, not simply at the date
the action is initiated.” Dep’t of Educ., State of Hawaii v.
Rodarte ex rel. Chavez, 127 F.Supp.2d 1103, 1112 (D. Haw. 2000)
(citing Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 797 (9th
Cir. 1999) (en banc)); accord Honig, 484 U.S. at 317. “If an
action or claim loses its character as a live controversy, then
the action or claim becomes ‘moot,’ and [courts] lack
jurisdiction to resolve the underlying dispute.” Madison, 177
F.3d at 797. “Whether a live controversy exists depends on
whether [the court] can grant effective relief in the event that
[the court] decide[s] the matter on the merits.” Indep. Living
Center of Southern Cal. v. Maxwell-Jolly, 590 F.3d 725, 727 (9th
Cir. 2009) (internal quotation marks omitted).
In the Third Amended Complaint, Plaintiffs seek various
forms of relief. Among other things, Plaintiffs request “a
preliminary and permanent injunction to return [Student] to full
enrollment at HTA.” (Third Am. Compl. at 16.) Plaintiffs further
request a declaratory judgment “that the actions of [] Defendants
set forth in this [] Case constituted violations of the
Constitution, a deprivation of civil rights pursuant to 42 U.S.C.
§ 1983 et seq.; and violations of the IDEA, Section 504, and
Title II of the ADA; and Hawaii anti-discrimination and charter
school laws.” (Id. at 14-15.)
18
Because the Third Amended Complaint is far from clear,
the Court, at the Nov. 10 hearing, directly questioned Plaintiffs
as to what relief they are seeking. Plaintiffs responded that
they want Student to receive a Free Appropriate Public Education
at HTA as a general education student.14/
It appears that Defendants have provided such relief.
Specifically, in July 2014, HTA enrolled Student at the school as
a general education student. Further, on September 16, 2014, HTA
instituted special education services for Student with an IEP
meeting scheduled for October 21, 2014. However, shortly before
this meeting was set to take place, Parent once again revoked her
consent to IDEA services. As a result, the October 21 meeting was
used to discuss Student’s services under § 504 of the
Rehabilitation Act. Currently, Student is enrolled at HTA as a
14/
At the Nov. 10 hearing, Plaintiffs also requested that
Student be provided speech therapy services under § 504. However,
the Court need not consider this request because it was not pled
in the Third Amended Complaint. Moreover, Plaintiffs have not
provided any evidence as to why Student needs speech therapy
services.
Plaintiffs further requested that the Court issue an order
that HTA must abide by the terms of the U.S. Department of
Education, Office of Civil Right’s (“OCR”) April 19, 2012
“Resolution Agreement.” That agreement provides that under
certain circumstances a HTA educational aide will escort Student
to designated “pick-up” and “drop-off” locations. At the Nov. 10
hearing, Plaintiffs stated that a new agreement regarding this
issue has been formulated, which would appear to amend or
supersede the April 19 OCR agreement. Thus, it appears that
Plaintiffs’ request is moot. If Parent believes that the
aforementioned agreements are insufficient to meet Student’s §
504 needs, the parties should meet to resolve the same.
19
general education student with the school endeavoring to provide
Student a § 504 FAPE through, among other things, 1:1
instruction.15/ While Plaintiffs argue that HTA is not providing
sufficient special education services16/; such an argument is
unavailing given that HTA has attempted to provide Student with
the more robust services of the IDEA (which includes the
implementation of an IEP) and that Parent has voluntarily elected
to forgo these services by revoking IDEA consent.
As a final matter, the Court notes that Plaintiffs’
Third Amended Complaint can avoid dismissal if an exception to
the mootness doctrine applies. The Court has described those
exceptions as follows:
First, there is an exception for cases that
are capable of repetition while evading
review. This exception applies only in
exceptional circumstances. To fit the
exception, “a controversy must meet two
requirements: (1) the challenged action was
in duration too short to be fully litigated
prior to its cessation or expiration, and (2)
there was a reasonable expectation that the
same complaining party would be subjected to
the same action again.” [Public Utilities
Com’n of State of Cal. v. F.E.R.C., 100 F.3d
1451, 1459 (9th Cir. 1996)]. The second
exception exists when a party voluntarily
ceases its allegedly illegal conduct and
there is a reasonable expectation that the
wrong will be repeated. [Doe v. Madison Sch.
15/
See footnote 8 supra.
16/
The Court notes that Parent has previously submitted an
Exceptions to Compulsory Education form indicating that she
intended to homeschool Student for the 2012 school year.
20
Dist. No. 321, 177 F.3d 789, 799 (9th Cir.
1999)]. The third exception bars a finding of
mootness if a petitioner would suffer
“collateral legal consequences” if the
[challenged] actions [] were allowed to
stand. Id.
Browell v. Lemahieu, 127 F.Supp.2d 1117, 1128 (D. Haw. 2000).
As will be discussed in more detail below, Plaintiffs’
primary claim is that Defendants failed to honor Parent’s June
15, 2012 Revocation of Consent Form and email by continuing
Student’s enrollment at HTA as a general education student.
Plaintiffs appear to argue that the first and second exceptions
to the mootness doctrines are applicable as Student could regain
eligibility for IDEA special education services, Parent could
initially give permission and then later revoke her consent for
Student to receive those services, and Defendants could then fail
to honor Parent’s intent for Student to remain as a general
education student at HTA. (See Third Am. Compl. ¶ 37.) While the
first and second steps in this scenario have occurred since the
filing of the Third Amended Complaint, the final step has not:
HTA has kept Jason E. as a general education student after Parent
revoked her IDEA consent. As to the third exception,
“Plaintiff[s] [do] not argue, and this Court cannot fathom, that
any legal consequences would result from” Plaintiffs’ Third
Amended Complaint being held moot. Id. Thus, none of the above
exceptions to the mootness doctrine apply to save Plaintiffs’
Third Amended Complaint.
21
In sum, because Student is currently enrolled at HTA as
a general education student and because it appears that HTA has
endeavored to provide Student a Free Appropriate Public
Education,17/ the Court concludes that Plaintiffs have received
the relief that they seek. Thus, a live controversy does not
exist in this case and, therefore, Plaintiffs’ Third Amended
Complaint is moot.18/ See Maxwell-Jolly, 590 F.3d at 727.
II.
Whether Plaintiffs’ Claims in the Third Amended
Complaint Are Ripe for Summary Adjudication
For two reasons, the Court agrees with Defendants’
alternative argument that Plaintiffs’ claims are ripe for summary
adjudication. First, as discussed above, it appears that the
relief requested by Plaintiffs in connection with the claims in
the Third Amended Complaint has already been provided. Second, as
discussed directly below, Plaintiffs have not submitted
sufficient argument or evidence in support of these claims.
A. “Failure to Honor” Claims
17/
The Court notes that Plaintiffs have not produced any
evidence indicating that a § 504 FAPE has not been provided to
Student.
18/
This Court notes two federal court decisions holding that
a parent’s revocation of consent for IDEA services does not
eliminate the broader protections provided by the Rehabilitation
Act and Title II of the ADA. See Kimble v. Douglas County Sch.
Dist. RE-1, 925 F.Supp.2d 1176, 1182-85 (D. Co. 2013) and D.F. ex
rel. L.M.P. v. Leon County School Bd., No. 4:13cv3-RH/CAS, 2014
WL 28798, at *2-3 (N.D. Fla. Jan. 2, 2014). Under the Kimble and
Leon decisions, it appears any need for this suit does not exist
since § 504 and Title II of the ADA provide Plaintiffs a vehicle
through which to seek special education services.
22
The vast majority of Plaintiffs’ claims in the Third
Amended Complaint are based on Defendants’ alleged failure to
honor Parent’s June 15, 2012 Revocation of Consent Form and email
by continuing Student’s enrollment at HTA as a general education
student.19/ (See Third Am. Compl. ¶¶ 22-38.) Although Plaintiffs
assert that such conduct violated, inter alia, the First, Fifth,
and Fourteenth Amendments to the U.S. Constitution, § 504, Title
II of the ADA, and state anti-discrimination and public charter
school laws; Plaintiffs fail to explain how these authorities
support their assertion. It appears that the only authority that
has addressed this issue is the United States Department of
Education. United States DOE regulations to the IDEA provide that
[o]nce a parent revokes consent for special
education and related services under §
300.300(b), the child is a general education
student. Consequently, the child may be
placed in any classroom where other general
education students are placed.
Assistance to States for the Education of Children with
Disabilities and Preschool Grants for Children with Disabilities,
73 Fed. Reg. 73006-01, 73013 (emphasis added). As shown, these
regulations do not expressly state that, after a parent revokes
IDEA consent, a disabled student must remain at the same school
as a general education student; rather, the regulations leave
19/
The Court again notes that Parent sent the DOE an
Exceptions to Compulsory Education form, which requested that
Student be withdrawn from the 2012 school year because Parent
intended to homeschool him.
23
open the possibility that a student may be placed in a different
school as a general education student.
Accordingly, it appears that Plaintiffs’ “failure to
honor claims” are without merit.
B. Remaining Claims
In addition to their “failure to honor” claims,
Plaintiffs assert several other claims under § 504, Title II of
the ADA, Hawaii anti-discrimination and public charter school
laws, and the First, Fifth, and Fourteenth Amendments to the U.S.
Constitution.
1. Claims Under § 504 and Title II of the ADA
“While the IDEA focuses on the provision of
appropriate public education to disabled children, the
Rehabilitation Act of 1973 more broadly addresses the provision
of state services to disabled individuals.” Mark H. v. Lemahieu,
513 F.3d 922, 929 (9th Cir. 2008). Section 504 of the
Rehabilitation Act provides that no disabled individual “shall,
solely by reason of her or his disability, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving federal
financial assistance.” 29 U.S.C. § 794(a). Section 504 further
defines “program or activity” as “all of the operations of . . .
a local educational agency,” among other entities. Id. §
794(b)(2)(B).
24
“[T]he focus of the prohibition in § 504 is whether
disabled persons were denied meaningful access to state-provided
services.” Mark H., 513 F.3d at 937. Section 504 “require[s]
reasonable modifications necessary to correct for instances in
which qualified disabled people are prevented from enjoying
‘meaningful access’ to a benefit because of their disability.”
Id. at 937-38 (emphasis in original).
Furthermore, the regulations implementing § 504 require
that school districts “provide a [FAPE] to each qualified
handicapped person who is in the [district’s] jurisdiction.” 34
C.F.R. § 104.33(a). Although both the IDEA and § 504 require the
provision of a FAPE, “FAPE under the IDEA and FAPE as defined in
the Section 504 regulations are similar but not identical.” Mark
H., 513 F.3d at 933. “[U]nlike FAPE under the IDEA, FAPE under §
504 is defined to require a comparison between the manner in
which the needs of disabled and non-disabled children are met,
and focuses on the ‘design’ of a child’s educational program.”
Id.
One way to meet the FAPE requirement of § 504 is to
implement an IEP that provides a FAPE under the IDEA; however, a
plaintiff “may not obtain damages simply by proving that the IDEA
FAPE requirements were not met.” Id. The FAPE requirement in a §
504 action means that “school districts need only design
education programs for disabled persons that are intended to meet
25
their educational needs to the same degree that the needs of
nondisabled students are met, not more.” Id. at 936-97 (emphasis
in original).
Like the Rehabilitation Act, the ADA is a broad antidiscrimination statute that applies to disabled students in
public schools. See 42 U.S.C. § 12101 et seq. Title II of the ADA
prohibits discrimination by “exclu[sion] from participation in or
[denial of] the benefits of the services, programs, or activities
of a public entity.” Id. § 12132. Because Title II of the ADA and
§ 504 involve the same substantive standards, courts analyze
these statutes together. See K.M. ex rel. Bright v. Tustin
Unified Sch. Dist., 725 F.3d 1088, 1098 (9th Cir. 2013) (“[W]e
have discussed the close relationship between Section 504 and
Title II of the ADA. Congress used the earlier-enacted Section
504 as a model when drafting Title II. We have observed on
occasion that there is no significant difference in the analysis
of rights and obligations created by the two Acts.”) (internal
quotation marks and citations omitted).
“[T]o state a claim under [§ 504 of] the Rehabilitation
Act, a plaintiff must allege that ‘(1) he is an individual with a
disability; (2) he is otherwise qualified to receive the benefit;
(3) he was denied the benefits of the program solely by reason of
his disability; and (4) the program receives federal financial
assistance.’” O’Guinn v. Lovelock Correctional Center, 502 F.3d
26
1056, 1060 (9th Cir. 2007) (quoting Duvall v. County of Kitsap,
260 F.3d 1124, 1135 (9th Cir. 2001)).
The parties do not appear to dispute that Student is
disabled within the meaning of § 504, he is otherwise qualified
to be a public student at HTA, and HTA receives federal financial
assistance. Thus, the only issue is whether the third element is
satisfied. Plaintiffs appear to argue that Defendants denied
Student the benefits of HTA by reason of his disability in two
ways. First, Plaintiffs appear to claim that Defendants have
failed to provide Student certain “reasonable accommodations”
including the components of the April 19, 2012 OCR agreement,
“preferential seating,” “aide for [Student] to participate in
field trips” and “walk from car to classroom,” and services to
help Student “communicative effectively in [the] classroom.” (See
Opp. at 4-5.) Second, Plaintiffs appear to claim that Defendants
have failed to design and implement an education plan or program
that provides Student a FAPE. (See id. at 3.)
Regarding the first claim, the Court has previously
determined that the April 19, 2012 OCR agreement has been amended
or superseded by a new agreement. See footnote 14 supra.
Plaintiffs have not produced any evidence that HTA has failed to
comply with the terms of the new agreement. As to the remainder
of the accommodations listed above, Plaintiffs have not submitted
any affidavits, declarations, or other evidence indicating why
27
Student requires these accommodations. Instead, Plaintiffs rely
entirely on Parent’s conclusory statements in her declarations
and in the Opposition brief that these accommodations are
reasonable and should be provided to Student under § 504. (See,
e.g., Opp. at 4.) This Court has previously held that selfserving statements in an opposition to a summary judgment motion
cannot create a genuine issue of material fact for trial or
constitute evidence. See Motoyama v. Hawaii, Dept. of Transp.,
864 F.Supp.2d 965, 977 (D. Haw. 2012) (citing Villiarimo v. Aloha
Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (explaining
that uncorroborated allegations and “self-serving testimony” do
not create a genuine issue of material fact); Singh v. INS, 213
F.3d 1050, 1054 n. 8 (9th Cir. 2000) (statements in motions are
not evidence and therefore are not entitled to evidentiary
weight)); see also FTC v. Publ’g Clearing House, Inc., 104 F.3d
1168, 1171 (9th Cir. 1997) (“A conclusory, self-serving
affidavit, lacking detailed facts and any supporting evidence, is
insufficient to create a genuine issue of material fact.”). It
therefore appears that Plaintiffs have failed to create a genuine
issue of material fact as to whether Defendants violated § 504 by
failing to provide certain “reasonable accommodations.”
As to the second claim, it appears that Student is
receiving certain special education services including 1:1
28
instruction through a § 504 plan.20/ While Plaintiffs argued at
the Nov. 10 hearing that Student’s current § 504 plan does not
provide him a FAPE; Plaintiffs have not presented any
declarations, affidavits, or other evidence showing the alleged
deficiencies with the § 504 plan. In the absence of any other
evidence in the record, it therefore appears that Plaintiffs have
not created a genuine issue of material fact regarding their
claim that Defendants violated § 504 by failing to design and
implement an education plan or program that provides Student a
FAPE.
For these reasons, the Court finds that Plaintiffs have
failed to create a genuine issue of material fact as to whether
Student was denied the benefits of HTA solely by reason of his
disability (third element of § 504 claim). Accordingly, the Court
grants Defendants’ motion for summary judgment as to Plaintiffs’
claims under § 504 of the Rehabilitation Act and Title II of the
ADA.
2. Claims Under Hawaii Anti-Discrimination and
Public Charter School Laws
Plaintiffs also assert claims under Hawaii antidiscrimination and public charter school laws, specifically,
H.R.S. § 302A-436, Chapter 302D, § 368-1.5, and § 489-3.21/
20/
See footnote 8 supra.
21/
Plaintiffs’ Third Amended Complaint alleges a violation of
(continued...)
29
H.R.S. § 302A-436 generally provides that the DOE
“shall establish and administer instruction, special facilities,
and special services for the education, therapy, and training of
exceptional children, and provide in connection therewith
corrective therapy, together with academic, occupational, and
related training.” Id. § 302A-436(a).
Chapter 302D of the H.R.S. governs Hawaii public
charter schools. Of relevance to this case, H.R.S. § 302D-30
states that the DOE
shall be responsible for the provision of a
[FAPE]. Any charter school that enrolls
special education students or identifies one
of its students as eligible for special
education shall be responsible for providing
the educational and related services required
by a student’s individual education program.
The programs and services for the student
shall be determined collaboratively by the
student’s individualized education program
team, which includes the student’s parents or
legal guardians.
If the charter school is unable to provide
all of the required services, then the
department shall provide the student with
services as determined by the student’s
individualized educational program team.
Id. § 302D-30(b).22/
21/
(...continued)
H.R.S. “§ 302D” and
Because there is no
construes the Third
302D and § 489-3 of
“§ 489.” (See Third Am. Compl. ¶¶ 1 & 28.)
section 302D or 489 of the H.R.S., the Court
Amended Complaint as referring to Chapter
the H.R.S., respectively.
22/
The Court notes that Parent revoked her consent to IDEA
(continued...)
30
H.R.S. § 368-1.5 is the state law analogue of § 504
of the Rehabilitation Act. The language of § 368-1.5 is
materially identical to § 504: “No otherwise qualified individual
in the State shall, solely by reason of his or her disability, be
excluded from the participation in, be denied the benefits of, or
be subjected to discrimination by state agencies, or under any
program or activity receiving state financial assistance.” H.R.S.
§ 368-1.5(a).
Similar to Title II of the ADA, H.R.S. § 489-3
prohibits discrimination on the basis of disability in public
accommodations in Hawaii: “Unfair discriminatory practices that
deny, or attempt to deny, a person the full and equal enjoyment
of the goods, services, facilities, privileges, advantages, and
accommodations of a place of public accommodation on the basis of
. . . disability are prohibited.” Id.
As shown, these state statutes are substantively
similar to § 504 of the Rehabilitation Act and Title II of the
ADA, and seem to provide the same rights and obligations as the
federal statutes. It therefore appears that the analysis
regarding Plaintiffs’ state-law claims is the same as the
analysis regarding Plaintiffs’ § 504 and ADA Title II claims.
Because the Court has already determined that Defendants’ motion
22/
(...continued)
services on June 15, 2012, and again on the eve of the October
21, 2014 meeting.
31
for summary judgment should be granted as to Plaintiffs’ § 504
and ADA Title II claims, see section II.B.1. supra, with
Plaintiffs providing no evidence to the contrary, the Court must
conclude that Defendants’ motion for summary judgment should be
granted as to Plaintiffs’ claims under the provisions of the
H.R.S. discussed above.
3. Constitutional Claims
Finally, Plaintiffs assert claims under the First,
Fifth, and Fourteenth Amendments to the U.S. Constitution. (Third
Am. Compl. ¶ 1.) These claims are frivolous. Plaintiffs present
no evidence that Defendants infringed on their First Amendment
rights, such as the “right to speak freely.” See Wooley v.
Maynard, 430 U.S. 705, 714 (1977). As to their Fifth and
Fourteenth Amendment due process claims, Plaintiffs do not
explain what process was due to them that they did not receive.
See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982).
Rather, it appears that Plaintiffs received the protections
provided by these amendments through the five-day Impartial Due
Process Hearing and May 21, 2012 AHO decision.
Accordingly, the Court grants Defendants’ motion for
summary judgment as to Plaintiffs’ constitutional claims.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’
Motion to Dismiss Plaintiffs’ Third Amended Complaint for
32
Declaratory and Injunctive Relief or, in the Alternative, Motion
for Summary Judgment.
The Court finds that Plaintiffs’ Third Amended
Complaint is moot. Alternatively, the Court finds that the claims
in the Third Amended Complaint are ripe for summary adjudication.
Accordingly, this case is dismissed with prejudice. The Clerk of
the Court is directed to close this case.
IT IS SO ORDERED.
DATED:
Honolulu, Hawai#i, November 20, 2014.
___________________________________
Alan C. Kay
Senior United States District Judge
Jason E. et al. v. Department of Education, State of Hawaii et al., Civ. No.
12-00354 ACK-BMK: ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’
THIRD AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF OR, IN THE
ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT
33
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