McIntyre v. Eugene Sch. Dist. 4J

976 F.3d 902

Lexyngton MCINTYRE, Plaintiff-Appellant,

v.EUGENE SCHOOL DISTRICT 4J, Defendant-Appellee.

No. 19-35186

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 2020 Portland, Oregon

Filed September 23, 2020

Kimberly Sherman (argued), Education, Environmental, & Estate Law Group LLC, Eugene, Oregon; Marianne Dugan, Eugene, Oregon; for Plaintiff-Appellant.

Rebekah R. Jacobson (argued) and Shayna M. Rogers, Garrett Hemman Robertson P.C., Salem, Oregon, for Defendant-Appellee.

Before: Ferdinand F. Fernandez and Richard A. Paez, Circuit Judges, and Timothy M. Burgess,^* District Judge.

PAEZ, Circuit Judge:

Lexyngton McIntyre ("McIntyre") appeals the district court's order dismissing her complaint against Defendant Eugene School District 4J ("the District").¹ The operative complaint alleges that, while McIntyre was a student at South Eugene High School, school officials discriminated against her on the basis of her disabilities in violation of Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. The district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6) on the dual grounds that (1) McIntyre failed to exhaust her administrative remedies under the Individuals with Disabilities Education Act, and (2) McIntyre's claims were barred by the applicable two-year statute of limitations. Because the district court erred in both respects, we reverse in part and vacate in part and remand for further proceedings.²

I. BACKGROUND³

A. Factual Background

In 2017, McIntyre graduated from South Eugene High School, one of the District's schools, in Eugene, Oregon. From first grade until her high school graduation, McIntyre participated in the District's Language Immersion Program.

In early 2012, during the seventh grade, McIntyre was diagnosed with Attention Deficit Disorder ("ADD"). The District accordingly developed a "504 Plan" for McIntyre, which is a written document describing the regular or special education and related aids and services a student needs. The 504 Plan laid out limited accommodations for McIntyre, including extra time on tests and assignments, reduced assignments and projects, preferred seating, and a quiet and separate testing environment.⁴

In fall 2013, McIntyre started as a freshman in the International High School program at South Eugene High School. Like every other student in the French Immersion Program, McIntyre was enrolled in a French Language Program with teacher Michael Stasack. But Stasack declined to implement McIntyre's 504 Plan accommodations and repeatedly suggested that she did not belong in the Program due to her ADD. At the end of the school year in May 2014, McIntyre's parents filed with the District a formal "Bullying/Harassment" complaint against Stasack. The District investigated and found two violations of the District's discrimination and harassment policies. McIntyre suffered Post-Traumatic Stress Syndrome as a consequence of the discrimination and harassment she faced that year. As a remedy for the violations, the District offered McIntyre two options: she could attend college-level French classes through the University of Oregon or complete an "Independent Study" program through the District. McIntyre did not immediately select an option for her sophomore year; instead, she completed a yearlong study abroad program in Germany in 2014–15. She returned to her high school in fall 2015.

McIntyre's junior year was especially challenging. At the beginning of the eleventh grade in fall 2015, McIntyre was diagnosed with Addison's disease, a rare hormone condition.⁵ The District accordingly amended McIntyre's 504 Plan to include an emergency protocol that required school officials to call 911 if she were seriously injured. In addition, because of the disease, McIntyre could no longer take her ADD medication.

As to McIntyre's language study, after the District discouraged her from taking college courses, McIntyre accepted the District's offer of an independent study program for the 2015–16 school year. The instructor was Suzie McLauchlin, a non-language teacher who was not certified to administer the International Baccalaureate ("IB") exams and was not accredited to teach Advanced Placement ("AP") courses. McLauchlin rarely met with McIntyre. As the school year progressed, McIntyre lacked sufficient opportunity to practice French, and she was unprepared for the AP exam in spring 2016.

Among her other teachers, McIntyre's math teacher, Susie Nicholson, also repeatedly declined to implement the 504 Plan accommodations. In particular, Nicholson declined to provide McIntyre with testing accommodations, forcing McIntyre to take exams in a way that was embarrassing or left her with less time on the exams than her peers. Nicholson's actions further contributed to McIntyre's stress and anxiety and exacerbated her Addison's disease.

Towards the end of her junior year in spring 2016, the District reassigned Stasack to a different school after it investigated another student's complaint against him. McIntyre's peers in the French Immersion Program organized a walk-out to protest Stasack's reassignment. They also protested the accommodations that students with disabilities sought, believing that Stasack was "fired because of the 504 kids." With McLauchlin's permission, students walked out from McLauchlin's social studies class on May 26, 2016. McIntyre felt isolated from her peers and betrayed by McLauchlin and the school administrators who failed to intervene. Throughout the following year, McIntyre's classmates maintained their resentment, harassing and bullying McIntyre for her perceived role in Stasack's transfer. They ultimately designed a sweatshirt celebrating him, which students wore at their graduation ceremony in 2017. School officials never addressed the hostile learning environment McIntyre experienced.

In June 2016, McIntyre fractured her ankle during a physical education class. Despite the 504 Plan's emergency protocol requiring school officials to call 911, school officials declined to call for an ambulance.

During her 2016–17 senior year, the District made it difficult for McIntyre to apply for college in light of her disability. The District failed to submit documentation for McIntyre to receive testing accommodations with the College Board, declined to properly record academic credit for independent study and physical education classes from her junior year, and refused to help McIntyre obtain the necessary evaluations and approvals for IB and College Board testing accommodations.

B. District Court Proceedings

McIntyre, after turning eighteen, filed this lawsuit on May 3, 2018. The First Amended Complaint, the operative complaint, raised two claims. McIntyre alleged one claim under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131 –34, alleging that the District failed to provide reasonable accommodations to McIntyre. McIntyre also alleged a claim under Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794, alleging that the District discriminated against her by failing to provide her with reasonable accommodations and creating a hostile learning environment. The complaint sought declaratory and injunctive relief, economic and non-economic money damages, and reasonable attorneys’ fees and costs.

In response to the District's motion to dismiss, a magistrate judge recommended granting the motion for failure to state a claim. The magistrate judge concluded that McIntyre's claims, although raised under the ADA and Section 504, could not proceed because she had failed to administratively exhaust them as provided by the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 – 1491.⁶ Although McIntyre never sought and was never recommended for an individualized education program ("IEP"), the magistrate judge, relying on Fry v. Napoleon Cmty. Schs. , ––– U.S. ––––, 137 S. Ct. 743, 197 L.Ed.2d 46 (2017), nonetheless concluded that the gravamen of McIntyre's claims involved the provision of a free appropriate public education ("FAPE") and therefore exhaustion was required. The magistrate judge also determined that minority tolling did not apply to McIntyre's claims, explaining that Oregon's minority tolling statute is inconsistent with the IDEA. The magistrate judge also determined that equitable tolling did not apply given that McIntyre's parents were aware of her alleged injuries.

McIntyre timely filed objections to the magistrate judge's Findings and Recommendation ("F&R"). The district court adopted the F&R in full. McIntyre v. Eugene Sch. Dist. 4J , No. 6:18-CV-00768-MK, 2019 WL 294758, at *1 (D. Or. Jan. 23, 2019). The district court dismissed the First Amended Complaint without prejudice but granted McIntyre fourteen days to file a motion for leave to amend. Id. at *4. McIntyre filed a notice declining to amend her complaint. In response, the court entered judgment dismissing the case.

McIntyre timely appealed.

II. THE GOVERNING FEDERAL STATUTES

There are three major overlapping pieces of federal legislation generally applicable to a child's claims of disability discrimination in school: the IDEA, Section 504 of the Rehabilitation Act, and Title II of the ADA. See A.G. v. Paradise Valley Unified Sch. Dist. No. 69 , 815 F.3d 1195, 1202 (9th Cir. 2016). Because this appeal turns on their interplay, we provide an overview here.

A. The IDEA

"Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education [or "FAPE"] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.’ " Id. (citation omitted) (alteration in original). In exchange for federal funds, states agree to comply with a number of statutory conditions, including the requirement to provide a FAPE to all eligible...