J.N. v. Or. Dep't of Educ.

J.N., et al., Plaintiffs, v. OREGON DEPARTMENT OF EDUCATION, et al., Defendants.

Case No. 6:19-cv-00096-AA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON EUGENE DIVISION

September 1, 2020

OPINION AND ORDER

AIKEN, District Judge:

In this putative class action, four Oregon public school children with disabilities and the Council of Parent Attorneys and Advocates, Inc. ("COPAA") assert claims under the Individuals with Disabilities Education Act ("IDEA"), Title II of the Americans with Disabilities Act ("Title II"), and Section 504 of the Rehabilitation Act ("Section 504") against the Oregon Department of Education ("ODE"), ODE Director and Assistant Superintendent of Public Instruction Colt Gill, and Oregon Governor and Superintendent of Public Instruction Katherine Brown. Defendants move to dismiss for lack of standing. For the reasons discussed below, defendants' Motion (doc. 33) is DENIED.

BACKGROUND

I. Legal Framework

Before turning to the allegations in the Complaint, the Court will provide a brief overview of the three statutory schemes at issue in this case—the IDEA, Title II, and Section 504—and the policies that Oregon has adopted to implement its duties under those statutes.

A. IDEA

The federal Individuals with Disabilities Education Act ("IDEA") 20 U.S.C. § 1400 et seq., establishes a comprehensive regulatory framework to meet the educational needs of children with disabilities. The IDEA was passed in 1975 in response to Congress' perception that a majority of the approximately 8 million American children with disabilities "were either totally excluded from schools or were sitting idly in regular classrooms awaiting the time when they were old enough to 'drop out.'" Board of Educ. of Hendrick Hudson Central Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 179 (1982) (alterations normalized); see also 20 U.S.C. § 1400(c)(2). The IDEA is designed to "ensure that all children with disabilities have available to them a free appropriate education" and "that the rights of children with disabilities and parents of such children are protected[.]" 20 U.S.C. § 1400(d)(1)(A)-(B).

To obtain funding under the IDEA, a State must implement policies and procedures to ensure a free appropriate public education ("FAPE") in the least restrictive environment ("LRE") "to all children with disabilities residing in the State between the ages of 3 and 21, inclusive[.]" 20 U.S.C. § 1412(a)(1)(A) & (a)(5). A FAPE consists of "special education"—instruction specially designed to meet the unique needs of a child with disability—and "related services"—developmental, corrective, and other support services as may be required to assist a child to benefit from that instruction. 20 U.S.C. § 1401(9), (29), (26); Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, ___ U.S. ___, 137 S. Ct. 988, 993-94 (2017). A least restrictive environment is to the maximum extent appropriate, a general education in a regular classroom environment. 20 U.S.C. § 1412(a)(5). "[R]emoval . . . occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." Id.

A State receiving funding under the IDEA must formulate an individualized education program, or IEP, for each eligible child. 20 U.S.C. § 1412(a)(4). The IEP sets out a written comprehensive plan to achieve that child's unique academic and functional goals and includes "the special education and related services to be provided so that [the child] can advance appropriately toward those goals." Fry v. Napoleon Cmty. Schs., ___ U.S. ___, 137 S. Ct. 743, 749 (2017); 20 U.S.C. § 1414(d) (defining IEP); C.F.R. § 300.320. The IEP thus serves as the "primary vehicle" for ensuring each child a FAPE in the least restrictive environment. Fry, 137 S. Ct. at749. The IEP is developed by a child's IEP Team,¹ which then reviews and revises the IEP to ensure compliance with a detailed set of procedures. 20 U.S.C. § 1412(a)(4); 34 C.F.R. § 300.320—300.328. Further, the standard for determining whether a child receives a FAPE is whether the educational program offered to the child via the IEP is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"—a "standard [that] is markedly more demanding" than de minimis progress. Endrew F., 137 S. Ct. at 1000—01 ("When all is said and done, a student offered an educational program providing merely more than de minimis progress from year to year can hardly be said to have been offered an education at all.") (internal quotation marks omitted).

The IDEA anticipates that a child's disability-related behaviors may challenge a State's ability to provide a FAPE. 20 U.S.C. § 1400(c)(5). Thus, a State, through its local educational agency ("LEA")—typically a school district—must conduct a functional behavioral assessment for any child who displays challenging behaviors due to a disability and, as appropriate, for any child removed from school for more than ten school days. 20 U.S.C. § 1415(k)(1)(D)(ii), (F). Further, a school may not remove a child from a regular education environment unless "the nature or severity of the [child's] disability . . . is such that education in regular classes with the use ofsupplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114.

The IDEA accords two distinct procedural safeguards to parents and students to challenge a student's placement or the formulation or implementation of an IEP: (1) an impartial due process hearing before a hearing officer that can be appealed to the state education agency and then to a court 20 U.S.C. § 1415(b)(6), (i)(2)(a); and (2) a state complaint resolution process before the state education agency, that can also be appealed in a civil action, 20 U.S.C. § 1415(f), (i)(2)(a). If a parent or other person challenges a child's program, that child must "stay put" in his or her "current educational placement" unless that child's parent requests otherwise. 34 C.F.R. § 300.518(a). This guarantee is termed the "stay put" provision. See Olu-Cole v. E.L. Haynes Public Charter Sch., 930 F.3d 519, 524 (D.C. Cir. 2019) ("The purpose of the stay-put command is to strip schools of the unilateral authority they traditionally employed to exclude disabled students from school.") (quoting Honig v. Doe, 484 U.S. 305, 323 (1988)) (alterations normalized) (emphasis in Olu-Cole).

Oregon accepts federal funding for special education under the IDEA. Thus, Oregon's state education agency, ODE, must ensure that the LEA's are providing a FAPE to all eligible students. ODE must monitor the LEAs' performance, enforce the IDEA's requirements, and obtain and provide technical assistance. 20 U.S.C. § 1416(a)(1) & (3), (e)(1). Accordingly, Oregon has enacted statutes and regulations to comply with those requirements. See ORS Title 30, Ch. 343 (SpecialEducation and Other Specialized Education Services); OAR Ch. 581 Div. 15 (Special Education).

Under Oregon's IDEA framework, each LEA is responsible for evaluating and determining the eligibility for all children in the district. OAR 581-015-2105. The LEA must then provide those children a FAPE in the least restrictive environment.² OAR 581-015-2040; OAR 581-015-2240. Further, LEAs must provide parents an opportunity to participate in IEP development, annual IEP review, and any IEP modification meetings. OAR 581-015-2190; OAR 581-015-2195. LEAs must provide prior written notice to parents before making IEP changes that affect a child's placement. OAR 581-015-2310.

Oregon has adopted procedures for the two administrative review processes required by federal law: a due process hearing before an Administrative Law Judge of the Oregon Office of Administrative Hearings, OAR 581-015-2340, OAR 581-015-2365; and the "state complaint process" conducted by ODE, OAR 581-015-2030.

B. Title II of the ADA and Section 504

Title II of the ADA, 42 U.S.C. §§ 12131 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, are federal anti-discrimination laws. Under Title II, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services,programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. "A regulation implementing Title II requires a public entity to make 'reasonable modifications' to its 'policies, practices, or procedures' when necessary to avoid . . . discrimination[]" on the basis of disability. Fry, 137 S. Ct. at 749; 28 C.F.R. § 35.130(b)(7). Under Section 504, no person with disabilities "shall, solely by reason of her or his disability, be excluded from the 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). Courts have interpreted Section 504 to require "reasonable modifications to existing practices to accommodate persons with disabilities." Fry, 137 S. Ct. at 749 (citing Alexander v. Choate, 469 U.S. 287, 299-300 (1985)) (internal quotation marks omitted).

In the context of public education, Title II and Section 504 forbid the denial of meaningful access to public education.³ See A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1204 (9th Cir. 2016) (stating elements of a claim under Title II or Section 504 and applying to public education). Title II and Section 504 thus guarantee equal access to public education; the IDEA guarantees individually-tailored education services and educational benefit from those services. See Endrew F., 137 S. Ct. at 1000 (holding that a FAPE under the IDEA must confer an "educational benefit that is . . . more than de minimis").

Under Section 504, a State must provide a FAPE to all school children with disabilities, often implemented...