The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Before the Court is Plaintiffs Mark H. and Rie H.'s, individually and as guardians ad litem of Michelle H. and Natalie H. (collectively "Plaintiffs"), Motion for Partial Summary Judgment ("Motion"), filed November 3, 2011. Defendants the State of Hawai`i Department of Education, and Patricia Hamamoto, in her official capacity as Superintendent of the DOE (collectively "Defendants" or "the DOE"), filed their memorandum in opposition on November 29, 2011 and Plaintiffs filed their reply on December 6, 2011. This matter came on for hearing on December 20, 2011. Appearing on behalf of Plaintiffs were Michael Livingston, Esq., and Stanley Levin, Esq., and appearing on behalf of Defendants was Kenneth Robbins, Esq. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Plaintiffs' Motion is HEREBY DENIED for the reasons set forth below.
The case has been in active litigation for eleven years and on appeal to the Ninth Circuit three times. Most recently, the Ninth Circuit reversed the district court's grant of summary judgment to the DOE, and provided guidance on the adjudication of the liability claims under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The Ninth Circuit set forth the following procedural history:
As noted above, in 1999, the H. Family filed an administrative action against Hawaii DOE claiming violations of IDEA and the Rehabilitation Act § 504. In that action, an administrative hearing officer found that Hawaii DOE had denied Michelle and Natalie a Free Appropriate Public Education ("FAPE") under IDEA and that the girls' IEPs were inadequate. The hearing officer ordered Hawaii DOE to remedy the violations.
In 2000, the H. Family sued Hawaii DOE in federal district court, seeking damages for alleged violations of Rehabilitation Act § 504. The H. Family's theory was that because both IDEA and the regulations implementing Rehabilitation Act § 504 guarantee children with disabilities the right to a FAPE, they could prevail in their claim for damages under the Rehabilitation Act by establishing that Hawaii DOE violated Michelle and Natalie's right to a FAPE under IDEA.
In the 2000 case, the district court held that there was no private right of action to enforce the FAPE required by the regulations implementing the Rehabilitation Act § 504. The district court further held that the H. Family failed to establish a violation of § 504 because "the plaintiffs do not present any evidence that they were intentionally discriminated against solely by reason of their disability."
The H. Family appealed. In that appeal we held that although there is a private right of action under Rehabilitation Act § 504, simply establishing a violation of the right to a FAPE under IDEA is not sufficient to prevail in a § 504 claim for damages. [Mark H. v. Haw. Dep't of Educ., 513 F.3d 922, 924-25 (9th Cir. 2008).] Plaintiffs may prevail in a § 504 claim for damages, we held, by establishing that an organization that receives federal funds violated § 504 "intentionally or with deliberate indifference." Id. at 938. Plaintiffs may establish that an organization violated § 504 by showing that the public entity discriminated against, excluded, or denied the benefits of a public program to a qualified person with a disability. Id. at 937. This includes showing that the public entity denied the plaintiff a reasonable accommodation. Id. A violation of one of the regulations implementing § 504 may support a claim for damages if the violation denied the plaintiff meaningful access to a public benefit, and the defendant organization acted with deliberate indifference. Id. at 938-39. Having so clarified the legal standards, we remanded with the direction that the H. Family be given the opportunity to amend their complaint. Id. at 939.
In 2008, the H. Family filed an amended complaint (the complaint at issue in this appeal). In their amended complaint, the H. Family alleged that Hawaii DOE violated Rehabilitation Act § 504 by: (1) failing to provide the girls with the reasonable accommodation of their disabilities in the form of autism-specific special education services, and (2) failing to design the girls'
IEPs to meet the girls' needs as adequately as the needs of non-disabled students were met, as required by 34 C.F.R. § 104.33(b)(1)(i). Additionally, the H. Family alleged, Hawaii DOE acted with deliberate indifference.
Mark H. v. Hamamoto ("Mark H. #2"), 620 F.3d 1090, 1095 (9th Cir. 2010) (footnotes omitted). The Ninth Circuit concluded that the district court erred when it granted the DOE's motion for summary judgment on Plaintiffs' claims that the DOE violated Rehabilitation Act § 504 by: (1) failing to provide the girls with the reasonable accommodation of autism-specific special education services; and (2) failing to design the girls' IEPs to meet the girls' needs as adequately as the needs of non-disabled students are met as required by 34 C.F.R. § 104.33(b)(1)(i). The Ninth Circuit remanded the case for further proceedings and ordered the case reassigned to a different judge. Id. at 1102.
On May 23, 2011, Plaintiffs filed a Motion to Preclude Relitigation of Factual Issues Adjudicated in the Administrative Hearing, asking that the DOE be collaterally estopped from relitigating the factual findings made by the Administrative Hearing Officer ("Hearings Officer") in her January 2000 Decision and Order ("Decision"). In a July 14, 2011 Order, Magistrate Judge Richard Puglisi ruled that the following eight facts are established by the Decision under the doctrine of collateral estoppel ("factual findings"):
1. From 1994 to 1998, the Hawaii DOE did not provide autism-specific services to the girls, although such services were available.
2. The Hawaii DOE did not include autism-specific services in the girls' IEPs before 1999.
3. Prior to the Administrative hearing,
Michelle and Natalie had not received "such services as are necessary to permit the child[ren] to benefit" from their education.
4. It was four years (1998) before the parents were given information about available mental health services.
5. Services that were required were not made available nor included in the IEP.
6. The unique needs of the girls were not included in the IEPs.
7. Functional analyses were not done for Michelle and Natalie prior to the Administrative Hearing.
8. During the relevant years of 1994-1998, the Hawaii DOE failed to provide Natalie or Michelle a reasonable accommodation that they needed to enjoy meaningful access to the benefits of a public education. [Order Granting Plaintiffs' Motion to Preclude Relitigation of Factual Issues Adjudicated in Administrative Hearing, (filed July 14, 2011), at 2-3 [dkt. no. 520] (citations omitted).]
Plaintiffs assert that liability, including deliberate indifference, has been established as a matter of law, leaving only the issues of causation and damages for trial. [Mem. in Supp. of Motion at 4-5.]
Plaintiffs acknowledge that the Hearings Officer did not expressly decide the issue of "deliberate indifference," however, they argue that the eight factual findings listed above effectively resolve in Plaintiffs' favor all issues of liability, including deliberate indifference under the standard articulated by the Ninth Circuit in Mark H. #2. Plaintiffs state that the instant Motion is addressed to the legal standard "related to Hawaii DOE's failure to provide a reasonable accommodation Michelle and Natalie needed to enjoy meaningful access to the benefits of public education." [Id. at 6-7 n.2.]
Plaintiffs set forth three possible standards of deliberate indifference under which the Court should find the DOE liable: (1) the Ninth Circuit's recent decision in Mark H. #2, based on the DOE's failure to adequately investigate whether the autism-specific services Michelle and Natalie needed were available as a reasonable accommodation; (2) vicarious liability under the doctrine of respondeat superior, based on the deliberate indifference of DOE employees; and (3) liability under City of Canton v. Harris, 489 U.S. 378 (1998), based on the DOE's continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees. [Id. at 11.]
First, as to the Mark H. #2 standard, Plaintiffs argue that the first three factual findings satisfy the first prong of the deliberate indifference standard, that "Michelle and Natalie needed autism-specific services in order to enjoy meaningful access to the benefits of public education." Factual findings #1, #2, and #3, read together, state that autism-specific services were necessary during the relevant time period. All of the factual findings also establish that autism-specific services were available as a reasonable accommodation. [Id. at 9-10.]
Further, Plaintiffs assert that the DOE knew that Michelle and Natalie needed autism-specific services and failed to adequately investigate whether those services were available as a reasonable accommodation. With respect to the DOE's knowledge, Plaintiffs argue that the DOE was on notice at all relevant times that an accommodation was required, and that Michelle and Natalie required autism-specific services. The Ninth Circuit opinion states that, in 1994 and 1995 respectively, the DOE knew that Michelle and Natalie had been diagnosed with autism. [Id. at 15 (citing 620 F.3d at 1093).] Despite this knowledge, the DOE did not investigate what accommodations were necessary. For example, functional analyses were not done, and the unique needs of the girls were not noted in the IEPs. [Id. at 17-19.] Plaintiffs rely on the reports and testimony of several DOE employees, including: (1) Dr. Margaret Koven, a Department of Health ("DOH") psychologist who diagnosed Michelle and recommended "autism-specific services"; [id. at 16 (citing Plaintiffs' Concise Statement of Facts ("Pltfs.' CSF"), Declaration of Counsel, Exh. B (5/3/94 Letter to Linda Kimoto), at 1);] (2) Pauline Kokubun, a DOE employee responsible for coordinating services for students, who provided other autistic students with autism-specific services; [id. at 19-20 (citing Mark H. #2, 620 F.at 1095, and Decl. of Counsel, Exh. E (7/3/01 Depo. Trans.), at 18-20);] (3) Dr. Daniel Legroff, whose report and testimony indicated that DOH autism specialists were providing autism-specific interventions to other students; [id. at 19-20 (citing Mark H. #2, at 1095, and Decl. of Counsel, Exh. D (1/5/01 Expert Report), at 6);] and (4) Dr. Robert Campbell, the DOE's Fed. R. Civ. P. 30(b)(6) designee and former Director of Special Education, who testified that the "full array" of special education and related services were available for children with autism, and that knowledge of the availability of related services was available to DOE personnel; [id. at 21-22 (citing Decl. of Counsel, Exh. F (4/24/01 Depo. Trans.), at 80-82)].
Second, as to respondeat superior liability, Plaintiffs argue that, under § 504, the DOE is vicariously liable for the deliberate indifference of its employees. They state that this theory is a "less stringent standard" for establishing deliberate indifference. [Id. at 22-23 (citing Canton, 489 U.S. at 392).] According to Plaintiffs, DOE employees, knew (1) beginning in 1994, that Michelle and Natalie required accommodation; and (2) beginning in 1994, that Michelle required autism-specific services, and, beginning in 1995, that Natalie required autism-specific services. DOE employees knew that autism-specific services were available as a reasonable accommodation, but, despite this knowledge, they failed to provide Michelle or Natalie with the reasonable accommodation they needed to enjoy meaningful access to the benefits of a public education. [Id. at 23.]
Third, Plaintiffs argue that the DOE is liable under the City of Canton standard because DOE policymakers were aware of, and acquiesced in, a long-standing pattern of violations of the federal rights of autistic children to meaningful access to public education. A public entity's "continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action -- the 'deliberate indifference'-- necessary to trigger municipal liability." [Id. at 25 (quoting Bd. of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 407-08 (1997)).] Plaintiffs assert that there is proof that DOE officials disregarded the "known or obvious consequence" that an omission in their training program would cause their employees to violate the federally protected rights of special education students. [Id. at 25-26.] Plaintiffs cite to the Ninth Circuit's decision in Mark H. v. Lemahieu, 513 F.3d 922, 925-26 (9th Cir. 2008) ("Mark H. #1"), to illustrate that the DOE knew by 1991 that it was violating § 504, and had been out of compliance for over a decade. Plaintiffs then discuss the Felix class action lawsuit and Consent Decree, finding a system-wide violation of statutory requirements.*fn1
[Id. at 27-28.] Plaintiffs argue that, during the period from 1994 to 1998, there is no question that the DOE had both actual and constructive knowledge that its special education system was violating the federal rights of its students, and that harm to Michelle and Natalie was likely, yet it failed to act on that likelihood. [Id. at 28-29.]
Last, Plaintiffs argue that "good faith" and lack of funds are not available defenses once deliberate indifference has been established. With respect to funding, Mark H. #1 rejected the DOE's excuse that it lacked funds to provide required special education services, and the excuse was also rejected by United States District Judge David Alan Ezra when he granted summary judgment on liability to the Felix class members.
In sum, Plaintiffs argue that they have established deliberate indifference as a matter of law because the DOE knew that Michelle and Natalie required reasonable accommodation, and that reasonable accommodation was ...