Ninth Circuit Decides Important IDEA/ADA/504 Issues in Pro Se Case

Yesterday, the United States Court of Appeals for the Ninth Circuit issued an opinion in Oman v. Portland Public Schools.  The case, brought pro se by the parent of a child with a disability, raised two basic questions by the time it got to the Ninth Circuit:  (1) whether a court can award nominal damages for a violation of the IDEA; and (2) whether a school district violates Title II of the ADA or Section 504 of the Rehabilitation Act by refusing to modify its admissions policy for a magnet high school for an individual whose failure to satisfy the policy resulted from his disability and the school district's prior failure to provide a free appropriate public education.

The court answered both of these questions in the negative.  As to the first question, it held that the IDEA's grant of authority to district courts to award "appropriate" relief for violations of the statute did not extend to the award of money damages.  And it held (without much analysis) that the remedies set forth in the IDEA itself are the exclusive remedies for the violation of the statute, so that there can be no Section 1983 claim for a violation of the statute.  The court was right, I think, that this holding was consistent with precedent from the Ninth Circuit, but all of the precedent on which the court relied preceded the Supreme Court's decision in Forest Grove School District v. T.A., which emphasized the broad discretion that the IDEA's appropriate-relief language grants to district courts to determine proper remedies.  Although I think there are arguments the Ninth Circuit could have made here, the court did not even attempt to engage Forest Grove's interpretation of the appropriate-relief language.  Indeed, the Ninth Circuit did not even cite Forest Grove.

The Ninth Circuit resolved the second question in language that, while potentially confinable to the case's facts, rather broadly suggests that the admissions policies of charter and magnet schools can only rarely if ever be challenged under the ADA and Section 504:

Whether a party may bring a damages action based upon the admissions policies of a magnet school is a question of first impression in this circuit, if not in this country, and thus we turn to the requirements of the Rehabilitation Act. “Section 504 by its terms does not compel educational institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate,” but merely requires them not to exclude a person who is “otherwise qualified” based upon his or her disability. Se. Cmty. Coll. v. Davis, 442 U.S. 397, 405 (1979). To be “otherwise qualified,” an individual must be “able to meet all of a program’s requirements in spite of his handicap.” Id. at 406; see also St. Johnsbury Acad. v. D.H., 240 F.3d 163, 173 (2d Cir. 2001) (applying the Davis standard to a high school’s special education evaluation process).  

Though we do not read this to give schools leave to adopt requirements that are not reasonably related to the program at issue, cf. id., we “extend[] judicial deference to an educational institution’s academic decisions in ADA and Rehabilitation Act cases.” Zuckle, 166 F.3d at 1047. And it is not unreasonable to require a minimum of eighth grade proficiency from anyone who is applying to a magnet high school.

That Congress did not intend to provide a private cause of action for monetary damages based on such a claim is confirmed when these provisions are read in the context of Con- gress’s other education policies. In particular, Congress has explicitly contemplated that public school districts might create magnet and charter programs. See 20 U.S.C. § 1413(a)(5); 34 C.F.R. §§ 226, 280. It has required special approval by the Secretary of Education that any such program is in compliance with federal law for magnet schools to receive federal funding. 34 C.F.R. § 280 (implementing the Magnet Schools Assistance Program). Hundreds of school districts have taken advantage of these procedures, many creating schools with competitive admissions policies more stringent than those here. Cf. U.S. Dep’t of Education, Successful Magnet High Schools: Innovations in Education (2008), available at http://www2.ed.gov/admins/comm/ choice/magnet-hs/index.html. And yet, we know of no case holding such institutions liable for violations of the ADA or Rehabilitation Act. Nor do we know of any regulation adopted pursuant to the Rehabilitation Act, the ADA, or the IDEA that prohibits such practices. Indeed the burgeoning number of charter and magnet school programs operating without the interference of either Congress or the Department of Education confirms that they are an accepted part of our educational system. As such, we will not impose liability upon them without further indication of Congressional intent.

This language is deeply problematic.   Both the ADA and Section 504 require school districts to make reasonable modifications in their policies and practices in order to avoid discrimination on the basis of disability.  That's clear from the Department of Justice regulations implementing Title II of the ADA, the Department of Education regulations implementing Section 504 in the school setting, and a long line of post-Southeastern judicial decisions.  And there is nothing in those statutes that exempt magnet and charter schools from these requirements.  Indeed, Section 504 applies to every entity that receives federal financial assistance, and Title II applies to every service, program, or activity of a state or local government.  The Supreme Court's decision in Pennsylvania Department of Corrections v. Yeskey specifically rejected the notion that lower courts could demand "further indication of Congressional intent" (to quote the Ninth Circuit here) before applying those statutes to the fullest extent of their plain terms.

Perhaps the case is best read as simply holding that the modification the plaintiff sought to this magnet school's admissions criteria was necessarily unreasonable.  But the court provides no analysis on this point, only the statement that courts defer to academic decisions and the ipse dixit that "is not unreasonable to require a minimum of eighth grade proficiency from anyone who is applying to a magnet high school."  And the remainder of the court's language suggests a much broader, and more problematic, holding.

To decide questions of the magnitude of the ones presented here, in such broad terms, in a published opinion, and to do so in a case in which the losing party was not even represented by counsel, does not seem to me the right way to go about things.