J.G. v. Los Angeles Unified School District

• Court: District Court, C.D. California
• Decided: February 21, 2023
• Docket: 2:19-cv-01268
• Status: Unknown

Opinion

Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 1 of 28 Page ID #:2713

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7

8 J.G., a minor by and through his Case No. 2:19-cv-01268-JGB-E 9 Guardians ad Litem, Jose G. and Martha F., 10 Plaintiff, FINDINGS OF FACT AND 11 v. CONCLUSIONS OF LAW 12 Los Angeles Unified School District, 13 14 Defendant.

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1 Plaintiff J.G., by and through his Guardians ad Litem, Jose G. and Martha F., 2 brought this action against Defendant Los Angeles Unified School District, alleging 3 (1) violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, 4 et seq.; and (2) violations of Section 504 of the Rehabilitation Act (“Section 504”), 5 29 U.S.C. § 794, et seq. 6 The case was tried to the Court without a jury on November 2, 3, 4, and 5, 7 2021. In lieu of closing arguments, the Court ordered closing briefing. Defendant 8 filed its closing brief on May 5, 2022. (“Def. Closing,” Dkt. No. 133.) Plaintiff 9 filed his closing brief on May 9, 2022. (“Pl. Closing,” Dkt. No. 135.) Defendant 10 filed its opposition to Plaintiff’s closing brief on May 23, 2022. (“Def. Opp.,” Dkt. 11 No. 141.) Plaintiff filed his reply to Defendant’s closing brief on May 23, 2022. 12 (“Pl. Reply,” Dkt. No. 142.) 13 The Court, having considered all the evidence presented by the parties, the 14 written submissions from both sides, and the argument of counsel, issues the 15 following Findings of Fact and Conclusions of Law. 16

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1 I. FINDINGS OF FACT 2 A. General Facts 3 1. Javier Guerrero (“J.G.”) was born on September 28, 2001. (“Stip. Facts,” 4 Dkt. No. 144, 6B.) 5 2. J.G. has Down syndrome and is a person with a disability. (Id. 5B, 6A.) As a 6 result of his Down syndrome, J.G. has severe speech and language 7 impairments, as well as cognitive impairments. (Id. 6D.) 8 3. At all relevant times, J.G. attended public schools in the Los Angeles Unified 9 School District (the “District”) and received special education services. 10 (Id. 6C, 6E.) 11 B. Least Restrictive Environment 12 4. From 2004 to 2019, J.G. attended Lowman Special Education Center 13 (“Lowman”). (Id. 5A.) 14 5. J.G. received an Individualized Education Program (“IEP”) every year. 15 (“Def. Facts,” Dkt. No. 133-1, ¶ 4.) J.G.’s mother, Martha F., was part of 16 his IEP team and attended all of the IEP meetings with a Spanish translator. 17 (Id. ¶ 5.) J.G.’s mother testified that she usually signed the IEPs on the day 18 of the meetings, though she would receive a translated written copy of the 19 IEPs months later. (M. Flores Testimony 53:16–25 [Day 2].) 20 6. The District’s Policy Bulletin 5901.4, “Determining the Appropriate 21 Educational Placement for Students with Disabilities in the Least Restrictive 22 Environment (LRE),” dated May 15, 2017, states: “It is the policy of the 23 District that students with disabilities receive all supplementary aids, 24 services and placements, as determined by an individualized education 25 program (IEP) team, in the least restrictive environment. The general 26 education classroom with all appropriate supplementary aids and services is 27 the first educational setting that the IEP team must consider.” (Trial 28 Ex. 28.) “The extent to which students with disabilities are integrated with 3 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 4 of 28 Page ID #:2716

1 their nondisabled peers positively impacts their educational achievement and 2 their social growth.” (Id.) 3 7. At the June 8, 2006 IEP meeting, the IEP team offered to place J.G. on a 4 general education campus. (“Pl. Facts,” Dkt. No. 135-1, ¶ 19.) J.G. 5 attended Montague Street Elementary, a general education campus, for a 6 few months. At the September 26, 2006 IEP meeting, “Mom reported that 7 Javier has regressed from June to September. The change in schools and 8 routine was apparently too drastic and it has not met his needs. . . . She 9 wanted him to return to Lowman.” (Trial Ex. 5 at 17.) J.G. returned to 10 Lowman. (Pl. Facts ¶ 20; Def. Facts ¶ 8.) 11 8. On September 21, 2007, J.G.’s pediatrician wrote a letter to Lowman stating, 12 “His mother is very interested, as am I, in Javier attending school with more 13 functional kids.” (Pl. Facts ¶ 22; Trial Ex. 7.) 14 9. At the September 26, 2007 IEP meeting, J.G.’s mother expressed, “I want 15 my son Javier go to regular school.” (Pl. Facts ¶ 23; Trial Ex. 8 at 40.) At 16 the same meeting, the IEP team “agree[d] that Javier should be in a special 17 day class on a general education campus.” (Pl. Facts ¶ 24; Trial Ex. 8 at 37.) 18 10. However, J.G.’s mother did not know that the IEP team offered to place J.G. 19 on a general education campus. (Pl. Facts ¶¶ 25, 27.) 20 11. J.G. remained at Lowman until 2019. (Id. ¶ 28.) 21 12. Lynne Cripe is a teacher at Lowman who taught J.G. for the 2015–2016 22 (ninth grade) and 2018–2019 (twelfth grade) school years. (Stip. Facts 6K.) 23 13. In 2015, J.G.’s accommodations, modifications, and supports included 24 “individual and/or small group instruction, extended wait time for response, 25 frequent verbal/physical reminders and/or prompts to stay on task, and high 26 interest materials.” (Trial Ex. 23 at 32.) Ms. Cripe testified that although 27 these accommodations could have been provided on a general education 28 4 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 5 of 28 Page ID #:2717

1 campus, she believed that Lowman was the least restrictive environment for 2 J.G. for the ninth grade. (L. Cripe Testimony 118:20–22, 131:3–6.) 3 14. Sally Weinberger was a teacher at Lowman who taught J.G. for the 4 2016–2017 (tenth grade) and 2017–2018 (eleventh grade) school years. 5 (Stip. Facts 6J.) 6 15. Ms. Weinberg testified that J.G. required accommodations such as “verbal 7 prompting, physical prompting, modeling, reteaching, individualized 8 instruction, extended wait time, redirection,” and “high interest learning 9 materials.” (S. Weinberger Testimony 50:1–9.) She believed that “given 10 those accommodations, he can succeed anywhere.” (Id. 51:2–3.) 11 16. As J.G.’s teachers, Ms. Cripe and Ms. Weinberger assessed and evaluated 12 J.G.’s educational progress on a daily and weekly basis. (Id. ¶¶ 22, 29.) 13 Ms. Cripe and Ms. Weinberger also provided annual written assessments of 14 J.G.’s performance in areas such as functional reading, functional writing, 15 and functional math in the IEPs. (Def. Facts ¶¶ 23, 30.) 16 17. In 2018, Ms. Weinberger conducted an Academic Assessment of J.G. and 17 wrote a report dated February 5, 2018. (Trial Ex. 31.) The report states: 18 “Javier attends a Special Day Program in a High School class consisting of 10 19 students. The students have a wide range of abilities. Javier is ambulatory 20 and responds to moderate adult assistance and prompting. Adults in the 21 classroom consist of one (1) Special Education Teacher, two (2) Health Care 22 Assistants, and one (1) Paraprofessional. Due to the various needs of the 23 students in the classroom, there are different tables which the students use. 24 Six (6) of the students are in wheelchairs and four (4) are ambulatory. 25 Classroom consists of a whiteboard for visual projection, computers, iPads, 26 printers, desks, class schedule, monthly calendar, bulletin boards for school 27 news and announcements. Oxford Picture Dictionary and Unique Learning 28 5 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 6 of 28 Page ID #:2718

1 System are part of the daily curriculum with whole group, small group, and 2 individualized instructional setting.” (Id. at 1.) 3 18. Anoush Boyajian is the Principal of Lowman. (Stip. Facts 6L.) Ms. Boyajian 4 testified that she believed Lowman was the least restrictive environment for 5 J.G. because he “had behavioral needs that needed to be addressed in a small 6 classroom.” (A. Boyajian Testimony 35:1–9.) 7 19. In or about 2018, Ms. Boyajian implemented an integration program, which 8 allowed students from general education schools to visit Lowman. (Def. 9 Facts ¶ 19.) This gave Lowman students, including J.G., an “opportunity to 10 integrate with typical peers.” (A. Boyajian Testimony 23:10–25.) 11 20. At the April 30, 2013 IEP meeting, the IEP team determined that Lowman 12 was the most appropriate placement for J.G. because he “requires verbal 13 instruction/prompting, physical prompting as needed, small group and 14 individual instruction, positive reinforcement,” and “communication 15 devices.” (Trial Ex. 21 at 22.) 16 21. At the March 20, 2014 IEP meeting, the IEP team began using a “Least 17 Restrictive Environment Analysis” form. (Trial Ex. 22 at 22.) The form 18 asked: “Can the supports, services, accommodations and/or modifications 19 in the student’s IEP be made available in a general education 20 classroom/setting?” (Id.) The IEP team answered “No.” (Id.) Then the 21 form asked: “Can the supports, services, accommodations and/or 22 modifications in the student’s IEP be made available on a general education 23 site in a special day program?” (Id.) The team again answered “No.” (Id.) 24 22. At the March 2, 2015; February 29, 2016; February 15, 2017; February 12, 25 2018; and February 19, 2019 IEP meetings, the IEP team again answered 26 “No” to both questions. That is, the IEP team determined that the 27 supports, services, accommodations and/or modifications in J.G.’s IEP 28 could not be made available in a general education classroom/setting or on a 6 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 7 of 28 Page ID #:2719

1 general education campus in a special day program. (Trial Ex. 23 at 30; Trial 2 Ex. 26; Trial Ex. 27; Trial Ex. 33 at 23; Trial Ex. 45 at 29; Def. Facts ¶ 7.) 3 23. In response to the second question regarding a special day program on a 4 general education campus, the 2015, 2016, 2017, 2018, and 2019 IEPs 5 contained the exact same explanation: “Javier requires an educational 6 environment that provides school-wide intensive therapy and a highly 7 structured environment to learn daily living techniques, and incorporate 8 these skills into his daily routine.” (Trial Ex. 23 at 30; Trial Ex. 26; Trial Ex. 9 27; Trial Ex. 33 at 23; Trial Ex. 45 at 29.) With respect to school-wide 10 intensive therapy, Ms. Cripe testified that “what we mean is all-inclusive, 11 every staff member, everybody working together for Javier to be able to 12 participate in things.” (L. Cripe Testimony 158:17–20.) 13 24. In addition to the February 19, 2019 IEP meeting, the IEP team reconvened 14 on March 13, 2019 and on May 30, 2019. (Trial Ex. 45 at 40–41.) On or 15 about June 5, 2019, J.G.’s mother expressed that J.G. had never received a 16 psychoeducational evaluation from the school and that the supports, 17 services, accommodations, and/or modifications in J.G.’s IEP can be made 18 available on a general education site in a special day program. (Id. at 43.) 19 25. On June 7, 2019, J.G. graduated from Lowman. 20 26. In August 2019, J.G. transferred to Sun Valley High School (“Sun Valley”), 21 a general education campus with a special day program. (Stip. Facts at 3.) 22 27. Lauren Foster is a special education teacher at Sun Valley who taught J.G. 23 during the 2019–2020 school year. (Stip. Facts 6I.) Ms. Foster testified that 24 J.G. “was able to integrate into” her “intellectually disabled moderate to 25 severe” class. (L. Foster Testimony 19:5–16.) She also testified that J.G. 26 “made significant progress” during that time. (Id. 22:6.) 27 28. Jamal Speakes was a general education film production teacher at Sun Valley 28 who taught J.G. during the 2019–2020 school year. (Pl. Facts ¶ 16.) In 7 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 8 of 28 Page ID #:2720

1 Mr. Speakes’s film production class, J.G. had an opportunity to collaborate 2 on projects with typical peers in general education. (J. Speakes Testimony 3 168:21–24.) Mr. Speakes testified that J.G. was “cooperative. He listened. 4 He followed directions.” (Id. 170:12.) 5 29. J.G.’s mother testified that since J.G. began attending Sun Valley, he “is 6 more independent, he’s learned more at Sun Valley School, and he knows 7 how to communicate better with everyone,” whereas he “made no 8 progress” at Lowman. (M. Flores Testimony 20:7–9, 12 [Day 2].) J.G.’s 9 father testified that “we thought [Lowman] was a good school because it was 10 a special school. Unfortunately, [J.G.] did not have the right support.” 11 (J. Guerrero Testimony 8:22–24.) 12 30. Plaintiff’s expert, Dr. Carlos Flores, a psychologist who performed J.G.’s 13 independent psychoeducational evaluation in the fall of 2018, testified that 14 he believed Lowman was not the least restrictive environment for J.G. 15 (C. Flores Testimony 82:5–7; Trial Ex. 82.) Among the reasons Dr. Flores 16 so concluded were that J.G. was “the highest functioning kid in the 17 classroom,” there was “no individualized attention,” there was “significant 18 noise” in the classroom, and there was no opportunity to socialize with 19 typical peers. (C. Flores Testimony 82:9–84:1.) 20 31. Plaintiff’s expert, Dr. Mary A. Falvey, an inclusion expert, observed J.G. on 21 September 12, 2019 at Sun Valley. (M. Falvey Testimony 75:19–22; Trial 22 Ex. 84 at 3.) She concluded that J.G. was “thriving both socially and 23 academically in his current placement” at Sun Valley. (Trial Ex. 84 at 5.) 24 “Because he is thriving so well in his current placement it is unclear why the 25 district denied him such a placement in the past. There does not appear to 26 be any evidence in his records, including his past IEPs that would warrant 27 denying him placement in a general education school.” (Id.) 28 // 8 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 9 of 28 Page ID #:2721

1 C. Augmentative and Alternative Communication 2 32. Marshall Fenig is a District-employed speech-language pathologist assigned 3 to Lowman at all times relevant to this case. (Stip. Facts 6M.) 4 33. From 2006 to 2009, J.G. received direct, one-on-one language and speech 5 (“LAS”) services. (Def. Facts ¶ 11.) In 2009, J.G. received a Language and 6 Speech Assessment, which found that “he has made minimal progress in his 7 communication skills.” (Id. ¶ 12; Trial Ex. 11 at 4.) The Assessment 8 concluded that “the student is able to benefit from their Special Education 9 program without LAS related services support.” (Trial Ex. 11 at 5.) 10 34. From 2014 to 2017, Mr. Fenig worked with J.G. through the communication 11 support model, which involved Mr. Fenig visiting J.G.’s classroom once a 12 week to work with the class on language, speech, and communication skills. 13 (M. Fenig Testimony 83:20–25; Def. Facts ¶ 13.) 14 35. At the February 15, 2017 IEP meeting, J.G.’s mother requested a speech 15 assessment for J.G. (Stip. Facts 6N.) 16 36. Mr. Fenig conducted a Language and Speech and Augmentative and 17 Alternative Communication Assessment, and wrote a report dated June 1, 18 2017. (Id. 6O.) With respect to language and speech, the Assessment 19 concluded that “LAS services and support may be necessary for the student 20 to benefit from their Special Education program in the area of language.” 21 (Trial Ex. 29 at 5.) With respect to augmentative and alternative 22 communication (AAC), the Assessment recommended a “multi-modal 23 system to include Javier’s current modes of communication along with a 24 picture exchange system in conjunction with trials using a tablet with a 25 communication app.” (Id.) 26 37. On June 2, 2017, the IEP team amended the previous February 15, 2017 IEP 27 to include observations and recommendations from Mr. Fenig’s LAS and 28 AAC Assessment. (Trial Ex. 30.) The February 15, 2017 IEP listed J.G.’s 9 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 10 of 28 Page ID #:2722

1 Assistive Technology equipment as pictures, switches, and voice output 2 devices (Trial Ex. 27), whereas the June 2, 2017 IEP listed J.G.’s Assistive 3 Technology equipment as pictures, switches, and “tablet with 4 communication app trials” (Pl. Facts ¶ 62; Trial Ex. 30). 5 38. Pursuant to the June 2, 2017 IEP, J.G. once again received direct, one-on-one 6 LAS services with Mr. Fenig. (Pl. Facts ¶ 52.) 7 39. Previously, J.G. used AAC devices that were implemented by the teacher in 8 the classroom. (M. Fenig Testimony 102:18–22.) As a result of placing J.G. 9 in LAS services directly, Mr. Fenig could “trial systems that were more 10 specific to what [J.G.’s mother] was interested in.” (Id. 103:9–17.) 11 40. Mr. Fenig trialed J.G. with a Dynavox, a dynamic display system with 12 communication software, similar to an iPad. (Id. 118:16–22.) J.G. had used 13 the Dynavox in Ms. Weinberger’s classroom before. (Id. 118:3–5.) 14 41. However, J.G. often seemed to prefer other methods of communication. 15 (L. Foster Testimony 29:19–30:3 (“Javier preferred not to use his AAC 16 device.”); S. Weinberger Testimony 61:14–22 (“Q. Was it difficult to get 17 him to use communication devices in class? A. Yes.”); A. Boyajian 18 Testimony 22:19–21 (“He did have an AAC device, but he was not fond of 19 it. He didn’t use it consistently.”); M. Fenig 147:24–148:4 (“[A]lthough he 20 knew how to navigate the [Dynavox] and find things, when he had access to 21 the system, he would touch the icons, and then he would do signs.”).) 22 42. In or about 2017, based on the recommendation of an in-home therapist 23 unassociated with the District, J.G.’s mother purchased an iPad for J.G. to 24 use to communicate at home. (Pl. Facts ¶¶ 82-83.) 25 43. Between February 2017 and June 2017, J.G.’s mother asked Mr. Fenig twice 26 if J.G. could use his personal iPad at school. (Id. ¶ 84.) 27 44. Mr. Fenig denied J.G.’s mother’s request to bring J.G.’s personal iPad to 28 school. (Pl. Facts ¶ 90.) Mr. Fenig testified that one of the reasons he 10 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 11 of 28 Page ID #:2723

1 denied the request was because “there was a LAUSD policy that prohibited 2 it based on liability concerns.” (M. Fenig Testimony 96:23–97:1.) Another 3 reason was that he didn’t believe the personal iPad would help J.G. access 4 the curriculum at school. (Id. 97:2–6.) 5 45. J.G.’s mother was concerned that J.G. could not take the Dynavox outside 6 during recess. (Pl. Facts ¶ 86–88.) 7 46. When asked, “did you consider at the time [J.G.’s mother] made the request 8 that having a personal iPad that [J.G.] could take outside would increase his 9 communication beyond gestures and his sign language?”, Mr. Fenig replied: 10 “No, because the system that was chosen by the parent, which is totally fine 11 for home use, was not assessed by the District to see if it was actually an 12 appropriate system in the first place.” (M. Fenig Testimony 99:5–12.) 13 47. At the February 12, 2018 IEP meeting, J.G.’s mother again requested that 14 J.G. use his personal iPad at school. (Pl. Facts ¶ 85.) The IEP team noted: 15 “AAC device discussed. Parent requesting student has same device in 16 school as at home. Student uses a Dynovox [sic] system in school with an 17 iPad at home.” (Trial Ex. 33 at 28.) 18 48. On February 20, 2018, the IEP team “reconvened with student in 19 attendance.” (Id.) The team noted: “Discussion of LAS equipment for 20 communication. District would like to trial a new APP and device. If Javier 21 is successful a new IEP meeting would be held to add the new system. The 22 dynovox [sic] is a system to use to determine Javier’s interest in 23 communicating. Recommendation is to continue use of dynamic display unit 24 and trial new APP. LAS goal presented and discussed.” (Id.) 25 49. On June 27, 2018, Ms. Weinberger wrote a note (translated into Spanish) to 26 J.G.’s mother stating, the “speech therapist will contact the correct people 27 to bring the iPad back. I also talked to him about taking the iPad from school 28 to home and back, he will let me know more at a later date.” (Trial Ex. 39.) 11 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 12 of 28 Page ID #:2724

1 Ms. Weinberger testified that this note related to a District-issued iPad. 2 (S. Weinberger Testimony 53:13–18.) 3 50. On September 20, 2018, Plaintiff’s expert, Margaret Perkins, a speech- 4 language pathologist, recommended that J.G. use a PRiO device with the 5 LAMP Words for Life 84 software. (Trial Ex. 43 at 17.) Ms. Perkins 6 concluded that J.G. requires a speech generating device that has the 7 following characteristics and features: touchscreen, dynamic display, 8 portable, vocabulary organization that allows for motor automaticity, 9 individual icons that are word-based to allow for spontaneous novel 10 utterances, word prediction, bilingual, ability to “look up” icons for a 11 communication partner, among others. (Id. at 16–17.) 12 51. Mr. Fenig trialed J.G. with a District-issued iPad with TouchChat MultiChat 13 15 Adolescent, “an app that was more sophisticated than the one that his 14 home iPad had but was a little less complex than the one that Ms. Perkins 15 recommended.” (M. Fenig Testimony 104:15–19.) 16 52. On May 20, 2019, Mr. Fenig emailed Ms. Perkins, writing, “I still feel the 17 Touch Chat is appropriate for [J.G.’s] access to school since it already 18 contains organized school based themes which he is showing progress with. 19 Addressing your concerns . . . I said that I could set up the Touch Chat so 20 that he could work on icon combinations as opposed to always doing rote 21 phrases and that his AAC goal would reflect this as well.” (Trial Ex. 46 at 22 2.) Ms. Perkins replied, “Either system will work as long as he is generating 23 using a variety of: communication intents; parts of speech (e.g. asking 24 questions as well as answering), vocabulary-semantics (e.g. qualitative 25 comments); using single words that are multi-meaning . . . but I do think we 26 are on the same page.” (Id.) 27 53. The District’s Policy Bulletin 5540.0, “Assistive Technology Lending 28 Libraries,” dated August 16, 2011, provides: “Assistive technology devices 12 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 13 of 28 Page ID #:2725

1 that are determined to be appropriate for trial may be borrowed . . . for up to 2 60 calendar days.” (Trial Ex. 17.) Mr. Fenig was aware of this 60-day loan 3 policy when he was working with J.G. (M. Fenig Testimony 95:20–22.) 4 54. Although Mr. Fenig testified that the District-issued iPad was J.G.’s device 5 and that “[i]t wasn’t really a trial” (id. 104:21–22), J.G. was not allowed to 6 take the device home. (Pl. Facts ¶ 68.) Mr. Fenig testified that “it wasn’t 7 established if it was appropriate for it to go home yet.” (M. Fenig 8 Testimony 106:5–6.) Mr. Fenig explained that J.G. would be allowed to take 9 the device home when J.G. “showed a more proficient use and interest in the 10 system.” (Id. 105:18–19.) At no point from 2014 to June 2019 was J.G. 11 allowed to take a District-issued AAC device home. (Id. 90:13–17.) 12 55. On August 21, 2019, Keri Matsumoto, the speech-language pathologist at 13 Sun Valley (Stip. Facts at 6H), authorized J.G. to take a District-issued iPad 14 home. (Trial Ex. 47.) 15 56. J.G. has been permitted to bring his personal iPad to Sun Valley beginning in 16 the 2019–2020 school year. (Stip. Facts 6Q.) 17 57. On September 19, 2019, Ms. Perkins discovered that J.G. was still using the 18 TouchChat app. (Trial Ex. 49 at 9.) She had thought Mr. Fenig agreed that 19 J.G. “needed a more robust system, he needed to be able to switch to 20 Spanish, and he needed a word-based program. . . . I wasn’t sure why that 21 had not happened.” (M. Perkins Testimony 30:8–13.) 22 58. J.G.’s parents are monolingual Spanish speakers. At no point was J.G. given 23 a District-issued AAC device that could toggle between English and Spanish. 24 (Id. 40:19–22.) 25 D. Triennial Reevaluations 26 59. The District’s Policy Bulletin 6639.0, “Three-Year Review Individualized 27 Education Program (IEP) Psycho-Educational Reassessment 28 Requirements,” dated February 1, 2016, provides: “A reassessment of a 13 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 14 of 28 Page ID #:2726

1 student with a disability shall be conducted at least once every three years or 2 more frequently, if appropriate, unless the parent/guardian and the [Local 3 Educational Agency] agree, in writing, that a reassessment is unnecessary.” 4 (Trial Ex. 24.) Specifically, “the IEP team must determine at the [second] 5 annual IEP Review whether or not a three-year comprehensive psycho- 6 educational reassessment will be required as part of the upcoming three-year 7 review IEP.” (Id. at 2.) “The IEP team’s decision for reassessment must be 8 documented . . . .” (Id. at 5.) A “three-year review IEP must be held, 9 regardless of the IEP team’s decision to waive the formal comprehensive 10 psycho-educational assessment.” (Id. at 6.) 11 60. The policy states that a comprehensive psychoeducational three-year 12 assessment is required and may not be waived (a) for all students with an 13 eligibility of Emotional Disturbance (ED); (b) for students on the general 14 education curriculum whose previous three-year reassessment had been 15 waived; (c) at the first three-year review IEP following an initial 16 psychoeducational assessment; (d) when a parent/guardian or other member 17 of the IEP team makes a request; (e) when a student is transitioning from 18 early education/preschool programs to elementary programs; (f) if a student 19 is being considered for a change of curriculum from general curriculum to 20 alternative curriculum, or vice versa; (g) when there is new information to 21 suggest that the current eligibility is not appropriate; (h) when there is a 22 significant change in health, behavior, or educational needs such that 23 conditions would warrant a comprehensive reassessment; (i) prior to 24 determining that a child is no longer a child with a disability. (Id. at 4.) 25 61. The policy states that it may be appropriate to waive a three-year 26 reassessment if “the student is on alternative curriculum and there is no 27 evidence supporting the need to change the curriculum, eligibility, or 28 program supports.” (Id. at 5.) 14 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 15 of 28 Page ID #:2727

1 62. J.G.’s parents never waived J.G.’s right to receive a psychoeducational 2 evaluation at Lowman. (M. Flores Testimony 19:25–20:2.) 3 63. Dr. Flores testified that a psychoeducational evaluation should be conducted 4 every three years for a student with disabilities because it is an “objective 5 standardized approach” that provides a “baseline” for assessing a child’s 6 current functioning. (C. Flores Testimony 57:10–59:18.) The evaluations 7 help determine whether the student is making progress and whether the 8 interventions are benefiting the student, or if they need to be modified. (Id.) 9 64. At the September 30, 2005 IEP meeting, the IEP team selected the option 10 for “formal assessment is needed to re-establish eligibility.” (Trial Ex. 2 at 11 16.) The team noted, “Javier will have a CTAR by June 15, 2006 for 12 transition to Kindergarten.” (Id.) The June 8, 2006 IEP meeting was 13 marked as a three-year review. (Trial Ex. 4 at 1.) 14 65. At the September 24, 2008 IEP meeting, the IEP team selected the option 15 for “formal assessment is needed to re-establish eligibility.” (Trial Ex. 10 at 16 24.) The June 10, 2009 IEP meeting was marked as a three-year review. 17 (Trial Ex. 12 at 1.) In 2009, J.G. received a Language and Speech 18 Assessment. (Def. Facts ¶ 12; Trial Ex. 11.) 19 66. At the June 7, 2011 IEP meeting, in response to the question, “Is formal 20 assessment needed to re-establish eligibility?”, the IEP team selected “No.” 21 (Trial Ex. 14 at 23.) The May 11, 2012 IEP meeting was marked as a three- 22 year review. (Trial Ex. 19 at 1.) 23 67. At the March 20, 2014 IEP meeting, in response to the question, “Is formal 24 assessment needed to re-establish eligibility?”, the IEP team selected “No.” 25 (Trial Ex. 22 at 24.) The March 2, 2015 IEP meeting was marked as a three- 26 year review. (Trial Ex. 23 at 1.) 27 68. At the February 15, 2017 IEP meeting, in response to the question, “Is 28 formal assessment needed to re-establish eligibility?”, the IEP team selected 15 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 16 of 28 Page ID #:2728

1 “No.” (Trial Ex. 27.) The February 20, 2018 IEP meeting was marked as a 2 three-year review. (Trial Ex. 33 at 1.) At the February 20, 2018 IEP 3 meeting, in response to the question, “Do the Parent and the District (local 4 educational agency) agree that a reassessment is unnecessary?”, the team 5 selected “Yes.” (Id. at 25.) 6 69. Maria Zaragoza was a school psychologist at Lowman from approximately 7 2012 to 2019. (M. Zaragoza Testimony 135:2; 136:6–7.) During her tenure 8 at Lowman, Ms. Zaragoza never conducted a psychoeducational evaluation 9 of J.G. (Pl. Facts ¶ 104; M. Zaragoza Testimony 152:16–20.) She testified 10 that “there is specific guidance for the IEP team to determine when a 11 psychoeducational reassessment is not necessary.” (M. Zaragoza Testimony 12 155:12–14.) For example, if “the eligibility has not changed and the student 13 continues to make consistent expected progress,” or there are “no 14 significant health or behavior changes.” (Id. 155:15–18.) 15 E. Administrative Proceedings 16 70. On April 5, 2018, J.G., by and through his parents, filed a due process 17 complaint against the District with the Office of Administrative Hearings 18 (“OAH”) regarding J.G.’s educational program. (Pl. Facts ¶ 111.) 19 71. On May 21, 2018, J.G. settled all special education claims arising under the 20 Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, 21 et seq., and over which OAH has jurisdiction. (Id. ¶ 112; Trial Ex. 36 at 1.) 22 Plaintiff specifically did not release any alleged or potential claims arising 23 under the ADA or Section 504. (Trial Ex. 36 at 1.) 24 72. Pursuant to the Final Settlement Agreement, the District agreed to fund an 25 independent psychoeducational evaluation of J.G. conducted by Dr. Flores, 26 as well as an independent AAC evaluation of J.G. conducted by Ms. Perkins. 27 (Id. at 1–2.) 28 16 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 17 of 28 Page ID #:2729

1 73. Dr. Flores observed J.G. on August 1 and September 26, 2018, and wrote an 2 independent psychoeducational evaluation report dated October 31, 2018. 3 (Trial Ex. 44 at 1.) 4 74. Ms. Perkins observed J.G., and wrote an augmentative and alternative 5 communication evaluation report dated September 20, 2018. (Trial Ex. 43.) 6 75. On August 16, 2019, Plaintiff filed a second due process complaint against 7 the District with the OAH regarding J.G.’s educational program from 8 May 16, 2018 onwards. (Pl. Facts ¶ 113.) 9 76. On October 8, 9, and 10, 2019, Administrative Law Judge (“ALJ”) Alexa 10 Hohensee heard the matter. (Id. ¶ 115.) 11 77. The issues at the hearing were: (1) Did the District deny J.G. a free 12 appropriate public education (“FAPE”) when it failed to offer J.G. 13 (a) placement in the least restrictive environment from May 16, 2018 to 14 June 7, 2019; and (b) appropriate AAC services from May 16, 2018 to 15 August 16, 2019? (2) Did the District deny J.G. a FAPE when it failed to 16 implement J.G.’s AAC services at home during the 2019 extended school 17 year? (3) Did the District’s May 30, 2019 IEP deny J.G. a FAPE by not 18 offering appropriate AAC implementation training for J.G., his parents, and 19 teachers? (Id. ¶ 116.) 20 78. On November 18, 2019, ALJ Hohensee issued her decision.1 (Id. ¶ 117.) 21 The District prevailed on all issues. (Id.) 22 // 23 // 24 // 25 26

27 1 ALJ Hohensee’s November 18, 2019 decision was not admitted into evidence at trial. Thus, the Court does not consider the decision as evidence and references it 28 only to the extent this Court’s prior orders incorporated it. 17 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 18 of 28 Page ID #:2730

1 II. CONCLUSIONS OF LAW 2 1. J.G. is a person with a disability as defined by the ADA and Section 504 of 3 the Rehabilitation Act. (Stip. Facts 6A.) 4 2. The District receives federal financial assistance and is therefore subject to 5 the ADA and Section 504 of the Rehabilitation Act. (Id. 6F, 6G.) 6 3. The Court previously held that Plaintiff’s ADA and Section 504 claims are 7 not barred by the IDEA’s exhaustion requirement because Plaintiff does not 8 “seek[] relief that is also available under” the IDEA. (“MTD Order,” Dkt. 9 No. 36 at 4.) To determine whether a plaintiff who brought suit under a 10 statute other than the IDEA seeks relief for the denial of a free appropriate 11 public education (“FAPE”), such that the plaintiff is required to exhaust the 12 IDEA’s remedies, a court should look to the crux, or the gravamen, of the 13 plaintiff’s complaint, setting aside any attempts at artful pleading. Fry 14 v. Napoleon Cmty. Schs., 580 U.S. 154, 169 (2017). This Court found that 15 the gravamen of Plaintiff’s complaint relates to the District’s alleged failure 16 to provide reasonable accommodations for J.G.’s disability, not to the denial 17 of a FAPE. (MTD Order at 5.) The Ninth Circuit’s opinion in D. D. by & 18 through Ingram v. Los Angeles Unified Sch. Dist., 18 F.4th 1043, 1049 (9th 19 Cir. 2021) (en banc), does not change this Court’s analysis. 20 4. The Court also previously held that Plaintiff’s claims are not barred by the 21 statute of limitations because at least some of the District’s alleged 22 discriminatory acts and/or policy and practice occurred within the 23 limitations period. (MTD Order at 5.) See Douglas v. Cal. Dep’t of Youth 24 Auth., 271 F.3d 812, 822 (9th Cir. 2001). 25 5. Title II of the ADA provides that “no qualified individual with a disability 26 shall, by reason of such disability, be excluded from participation in or be 27 denied the benefits of the services, programs, or activities of a public entity, 28 or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. 18 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 19 of 28 Page ID #:2731

1 6. Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified 2 individual with a disability . . . shall, solely by reason of her or his disability, 3 be excluded from the participation in, be denied the benefits of, or be 4 subjected to discrimination under any program or activity receiving Federal 5 financial assistance . . . .” 29 U.S.C.§ 794(a). 6 7. “Although several material differences exist between them, see K.M. ex rel. 7 Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1099 (9th Cir. 2013), to 8 bring a suit under the ADA and Section 504 requires the same elements: 9 (1) the child is a qualified individual with a disability; (2) [he] was denied a 10 reasonable accommodation that [he] needs to enjoy meaningful access to the 11 benefits of public services; and (3) the program providing the benefit 12 receives federal financial assistance.” McIntyre v. Eugene Sch. Dist. 4J, 976 13 F.3d 902, 912 (9th Cir. 2020); see A.G. v. Paradise Valley Unified Sch. Dist. 14 No. 69, 815 F.3d 1195, 1203–04 (9th Cir. 2016) (“[T]he elements of a valid 15 Title II claim do not differ in any material sense from those of a valid section 16 504 claim and the two may be addressed together.”). 17 8. Plaintiff asserts three theories of liability: (1) The District unlawfully 18 segregated J.G. at Lowman; (2) the District denied J.G. access to effective 19 communication; and (3) the District failed to conduct triennial reevaluations. 20 (“Pretrial Conference Order,” Dkt. No. 144 at 7–11.) 21 A. Unlawful Segregation 22 9. The ADA preamble expressly defines unjustified segregation as a form of 23 discrimination. 42 U.S.C. § 12101(5) (“[I]ndividuals with disabilities 24 continually encounter various forms of discrimination, including . . . 25 segregation.”); see Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 599–600. 26 10. The relevant regulations specify that a “public entity shall administer 27 services, programs, and activities in the most integrated setting appropriate 28 to the needs of qualified individuals with disabilities.” 28 C.F.R. 19 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 20 of 28 Page ID #:2732

1 § 35.130(d); see 34 C.F.R. § 104.4(b)(iv). The “most integrated setting 2 appropriate” is defined as “a setting that enables individuals with disabilities 3 to interact with non-disabled persons to the fullest extent possible.” 4 Olmstead, 527 U.S. at 592 (quoting 28 C.F.R. pt. 35, App. A (1998)). 5 11. The Court previously granted partial summary judgment on Plaintiff’s 6 unlawful segregation claim from February 19, 2019 through May 30, 2019 7 because the OAH had “necessarily decided” that issue. (“MSJ Order,” 8 Dkt. No. 83 at 11–12.) The Court reasoned: “In order to determine the 9 merits of Plaintiff’s IDEA claim, the OAH was required to assess whether 10 J.G. was placed in the least restrictive learning environment from February 11 to May of 2019—or whether J.G. could have been instructed and integrated 12 in a general public school during the time.” (Id. at 11.) The OAH found that 13 Lowman was not the least restrictive environment (“LRE”) for J.G. (Id.) 14 “[B]y holding that Lowman was not the LRE for J.G., the OAH ‘necessarily 15 decided’ the relevant issue under Section 504 and the ADA: whether the 16 District administered J.G. education in the ‘most integrated setting 17 appropriate’ from February to May of 2019.” (Id. (citation omitted).) 18 Thus, the Court held that collateral estoppel applied and granted partial 19 summary judgment on Plaintiff’s unlawful segregation claim. (Id.) 20 12. Collateral estoppel does not apply to the period before February 19, 2019 21 because Plaintiff settled all LRE claims arising under the IDEA up to the 22 date of the settlement agreement. (Trial Ex. 36 at 4–5.) Any claims that 23 J.G.’s placement at Lowman was not the LRE before February 19, 2019 were 24 not “actually litigated and decided in the prior proceedings,” nor was there a 25 “full and fair opportunity to litigate the issue.” See Oyeniran v. Holder, 672 26 F.3d 800, 806 (9th Cir. 2012) (citation omitted). 27 13. Plaintiff expressly did not release any claims arising under the ADA or 28 Section 504. (Trial Ex. 36 at 1.) 20 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 21 of 28 Page ID #:2733

1 14. The Court now finds that J.G.’s placement at Lowman during the entirety of 2 the 2018–2019 (twelfth grade) school year was not the “most integrated 3 setting appropriate” or otherwise “necessary” to provide him with effective 4 education services under the ADA and Section 504. See 28 C.F.R. § 5 35.130(d); 34 C.F.R. § 104.4(b)(iv). When Dr. Flores observed J.G. in 6 Ms. Cripe’s classroom on September 26, 2018, he noted that J.G. “seemed 7 to perform at a higher cognitive level than the rest of the students in the 8 class.” (Trial Ex. 44 at 3.) This observation, among others, led Dr. Flores to 9 conclude that Lowman was not the appropriate placement: “J.G. should 10 have been placed in an educational setting with peers at his same or higher 11 functioning to meet his developmental needs.” (Trial Ex. 82 at 1.) 12 15. Ms. Cripe testified that in general, the accommodations J.G. needed could be 13 provided on a general education campus. (L. Cripe Testimony 131:3–6.) 14 Ms. Weinberger also testified that given those accommodations, J.G. could 15 succeed anywhere. (S. Weinberger Testimony 51:2–3.) 16 16. J.G.’s mother testified that J.G. did not experience any problems 17 transitioning from Lowman to Sun Valley, a general education campus, in 18 2019. (M. Flores Testimony 124:16–18 [Day 1].) In fact, J.G.’s mother 19 testified that he “is more independent, he’s learned more at Sun Valley 20 School, and he knows how to communicate better with everyone.” 21 (M. Flores Testimony 20:7–9, 12 [Day 2].) Ms. Foster, who taught J.G. 22 during the 2019–2020 school year, stated that J.G. made significant progress 23 in her special day class at Sun Valley. During that time, J.G. also had an 24 opportunity to integrate with typical peers in a film production class. 25 17. The District presented no evidence why J.G. could not have been 26 accommodated at Sun Valley prior to the 2019–2020 school year. 27 18. J.G.’s 2015, 2016, 2017, 2018, and 2019 IEPs all state that “Javier requires an 28 educational environment that provides school-wide intensive therapy and a 21 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 22 of 28 Page ID #:2734

1 highly structured environment to learn daily living techniques, and 2 incorporate these skills into his daily routine.” However, it is unclear what 3 “school-wide intensive therapy” is and why J.G. continues to need it. That 4 the explanation for J.G.’s placement remained the same year after year 5 suggests that the IEP team may not have seriously considered other options. 6 19. The District’s argument that J.G.’s mother approved all of J.G.’s IEPs, 7 including his placement at Lowman, is inapposite. “[C]laims challenging the 8 placement of a disabled child are not barred simply because the parents of 9 the child consent, or fail to object, to such placement.” A.G., 815 F.3d at 10 1205. J.G.’s parents do not have, and could not be expected to have, 11 “specialized expertise” regarding the appropriate placement for J.G. See id. 12 20. J.G.’s placement in a special education center was a more segregated setting 13 than a special education day class on a general education campus. A general 14 education campus provides J.G. with daily access to typical peers at lunch, 15 during class transitions, and in general education elective classes such as film 16 production. Ms. Cripe, Ms. Weinberger, and Ms. Foster testified that the 17 accommodations, modifications, and supports J.G. required could have been 18 provided on a general education campus. Therefore, Lowman was not the 19 “most integrated setting appropriate” for J.G.’s needs during at least the 20 2018–2019 (twelfth grade) school year. The Court finds that J.G. was 21 unnecessarily segregated at Lowman during the 2018–2019 school year in 22 violation of the ADA and Section 504. 23 21. To recover monetary damages under the ADA or Section 504, “a plaintiff 24 must prove intentional discrimination on the part of the defendant.” Duvall 25 v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). A deliberate 26 indifference standard applies. Id. “Deliberate indifference requires both 27 knowledge that a harm to a federally protected right is substantially likely, 28 and a failure to act upon that likelihood.” Id. at 1139. 22 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 23 of 28 Page ID #:2735

1 22. “When the plaintiff has alerted the public entity to his need for 2 accommodation (or where the need for accommodation is obvious, or 3 required by statute or regulation), the public entity is on notice that an 4 accommodation is required, and the plaintiff has satisfied the first element of 5 the deliberate indifference test.” Id. The District was required by regulation 6 to provide a public education in the “most integrated setting appropriate” to 7 J.G.’s needs. See 28 C.F.R. § 35.130(d). Plaintiff has met the first element 8 of the deliberate indifference test. 9 23. “[I]n order to meet the second element of the deliberate indifference test, a 10 failure to act must be a result of conduct that is more than negligent, and 11 involves an element of deliberateness.” Duvall, 260 F.3d at 1139. “Because 12 in some instances events may be attributable to bureaucratic slippage that 13 constitutes negligence rather than deliberate action or inaction, we have 14 stated that deliberate indifference does not occur where a duty to act may 15 simply have been overlooked, or a complaint may reasonably have been 16 deemed to result from events taking their normal course.” Id. 17 24. Here, the Court finds that the District did not act with deliberate 18 indifference in placing J.G. at Lowman during the 2018–2019 school year. 19 Each year, the IEP team, including J.G.’s mother, gathered to discuss J.G.’s 20 progress, goals, and placement for the following school year. For many 21 years, Lowman was the appropriate placement for J.G.—until it wasn’t. 22 25. In 2006, J.G. transferred to a general education campus, only to regress 23 developmentally and return to Lowman after a few months. In 2007, J.G.’s 24 mother requested and the IEP team agreed to once again place J.G. on a 25 general education campus, but for unknown reasons, the transfer did not 26 happen. No one on the IEP team, including J.G.’s mother, followed up 27 regarding that placement in 2007. Any potential LRE claim J.G. may have 28 had regarding his 2007 placement is likely time-barred, and given the sparse 23 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 24 of 28 Page ID #:2736

1 record before the Court regarding J.G.’s pre-high-school years, it cannot find 2 that J.G.’s placement at Lowman constituted a continuing violation from 3 2007 to 2019. J.G.’s mother did not renew her request to place J.G. on a 4 general education campus until 2019. 5 26. Given that J.G. was previously unsuccessful on a general education campus, 6 J.G.’s parents did not raise concerns about Lowman for more than a decade, 7 and J.G. was making progress on his yearly IEP goals, the District could have 8 reasonably believed that Lowman was the appropriate placement. Although 9 the District failed to proactively consider other placement options for J.G., 10 its actions amount to “bureaucratic slippage” rather than deliberate 11 inaction. Thus, Plaintiff has not met the second element of the deliberate 12 indifference test and is not entitled to recover damages from the District. 13 B. Effective Communication 14 27. The ADA and Section 504 require public entities to provide reasonable 15 accommodations to persons with disabilities to ensure that such persons 16 enjoy meaningful access to the benefits of public services. See K.M., 725 17 F.3d at 1102 (applying “meaningful access” standard to determine 18 reasonable accommodation under the ADA); Mark H. v. Hamamoto, 620 19 F.3d 1090, 1097 (9th Cir. 2010) (applying “meaningful access” standard to 20 determine reasonable accommodation under Section 504). 21 28. A “plaintiff may establish denial of ‘meaningful access’ under section 504 22 and Title II by showing there was a violation of one of the regulations 23 implementing [the statutes], if such violation denied the plaintiff meaningful 24 access to a public benefit.” A.G., 815 F.3d at 1204. 25 29. The effective communication regulations require a public entity to “take 26 appropriate steps to ensure that communications with applicants, 27 participants, members of the public, and companions with disabilities are as 28 effective as communications with others.” 28 C.F.R. § 35.160(a)(1). 24 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 25 of 28 Page ID #:2737

1 Further, a public entity “shall furnish appropriate auxiliary aids and services 2 where necessary to afford individuals with disabilities . . . an equal 3 opportunity to participate in, and enjoy the benefits of, a service, program, or 4 activity of a public entity.” Id. § 35.160(b)(1); see K.M., 725 F.3d at 1096. 5 30. The Ninth Circuit has treated 28 C.F.R. § 35.160 as an “implementing 6 regulation” of Title II of the ADA within the meaning of Alexander 7 v. Sandoval, 532 U.S. 275 (2001). See Duvall, 260 F.3d at 1136. As such, 8 this regulation is privately enforceable. 9 31. Here, the District did not deny J.G. meaningful access to a public education 10 by failing to provide J.G. with a dedicated AAC device in a timely manner. 11 J.G. used a multi-modal system to communicate. Between 2014 and 2019, 12 J.G. had access to and used various AAC devices at school, including iPads 13 with GoTalk and TouchChat apps, Dynavox, single-switch devices, and 14 multi-switch devices. (M. Fenig Testimony 116:5–16; S. Weinberger 15 Testimony 61:4–9.) Mr. Fenig trialed J.G. with a dedicated AAC device, but 16 J.G. often seemed to prefer other methods of communication. (L. Foster 17 Testimony 29:19–30:3 (“Javier preferred not to use his AAC device.”); 18 S. Weinberger Testimony 61:14–22 (“Q. Was it difficult to get him to use 19 communication devices in class? A. Yes.”); A. Boyajian Testimony 22:19–21 20 (“He did have an AAC device, but he was not fond of it. He didn’t use it 21 consistently.”); M. Fenig 147:24–148:4 (“[A]lthough he knew how to 22 navigate the [Dynavox] and find things, when he had access to the system, he 23 would touch the icons, and then he would do signs.”).) 24 32. Although the District was dilatory in assigning J.G. a dedicated AAC device, 25 including authorizing its use at home, it did not fail to provide J.G. with 26 appropriate AAC devices to ensure effective communication at school. J.G. 27 always had means to communicate in and outside of the classroom, even if it 28 25 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 26 of 28 Page ID #:2738

1 was not with his parents’ preferred device. (See S. Weinberger Testimony 2 51:19–23.) 3 33. The District also did not deny J.G. meaningful access to a public education 4 by denying his mother’s request to let him use his personal iPad at school. It 5 is well settled that the ADA and Section 504 “create a duty to gather 6 sufficient information from the [disabled individual] and qualified experts as 7 needed to determine what accommodations are necessary.” Updike 8 v. Multnomah Cnty., 870 F.3d 939, 954 (9th Cir. 2017) (alteration in 9 original) (citation omitted). The reasonableness of an accommodation 10 provided to ensure effective communication “depends on the individual 11 circumstances of each case, and requires a fact-specific, individualized 12 analysis of the disabled individual’s circumstances and the accommodations 13 that might allow him to [enjoy meaningful access to the program.]” 14 Hamamoto, 620 F.3d at 1098 (alteration in original) (citation omitted). 15 34. Mr. Fenig undertook a fact-specific investigation to determine whether J.G. 16 needed a reasonable accommodation. J.G. did not express a preference for 17 his personal iPad over any other AAC device, including a District-issued 18 iPad. Ms. Perkins, an independent speech-language pathologist, 19 recommended that J.G. use a more complex system than what was installed 20 on his personal iPad. Ms. Perkins also did not offer an opinion as to whether 21 J.G. should use his personal iPad or a District-issued iPad. Given these 22 considerations, Mr. Fenig reasonably concluded that J.G. did not require his 23 personal iPad to access his education. See McCullum v. Orlando Reg’l 24 Healthcare Sys., Inc., 768 F.3d 1135, 1147 (“The regulations do not require 25 [public entities] to supply any and all auxiliary aids even if they are desired 26 and demanded.”). The District had already provided alternative means of 27 effective communication. Accordingly, the District did not violate the ADA 28 and Section 504 by denying Plaintiff his right to effective communication. 26 Case 2:19-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 27 of 28 Page ID #:2739

1 C. Triennial Reevaluations 2 35. Plaintiff argues that the District violated the ADA and Section 504 by failing 3 conduct a psychoeducational assessment of J.G. once every three years. 4 36. As discussed above, a plaintiff may establish his ADA or Section 504 claim 5 “by showing there was a violation of one of the regulations implementing 6 [the statutes], if such violation denied the plaintiff meaningful access to a 7 public benefit.” A.G., 815 F.3d at 1204. To support such a claim, the 8 regulation must be an “implementing regulation” within the meaning of 9 Alexander v. Sandoval. Id. “According to Sandoval, regulations can only be 10 enforced through a private right of action contained in a statute when they 11 ‘authoritatively construe’ the statute; regulations that go beyond a 12 construction of the statute’s prohibitions do not fall within the implied 13 private right of action, even if valid.” Mark H. v. Lemahieu, 513 F.3d 922, 14 935 (9th Cir. 2008). Not every violation of a regulation promulgated 15 pursuant to Title II of the ADA or Section 504 supports a privately 16 enforceable cause of action. T.L. by Layne v. S. Kern Unified Sch. Dist., 17 2018 WL 1960605, at *4 (E.D. Cal. Apr. 26, 2018). 18 37. Plaintiff cites regulations that require the District to reevaluate a child with a 19 disability “at least once every 3 years, unless the parent and the public 20 agency agree that a reevaluation is unnecessary.” 34 C.F.R. § 300.303; see 21 also id. § 300.304. Although the Ninth Circuit has indicated that the 22 regulation requiring a school district to provide a FAPE to each child with a 23 disability, 34 C.F.R. § 104.33, is “tightly enough linked” to Section 504 that 24 it “authoritatively construes” that statutory section, no court in this Circuit 25 has held the same for the reevaluation regulation, 34 C.F.R. §§ 300.303–304. 26 See Lemahieu, 513 F.3d at 939; see also P.P. v. Compton Unified Sch. Dist., 27 135 F. Supp. 3d 1098, 1119 (C.D. Cal. 2015) (holding that 34 C.F.R. §§ 28 27 Case 2119-cv-01268-JGB-E Document 146 Filed 02/21/23 Page 28 of 28 Page ID #:2740

1 104.33, 104.36, and 104.32, “as invoked in this case,” are a “variety of 2 meaningful access regulation[s|” and therefore privately enforceable). 3 38. Plaintiff failed to argue at trial that the cited regulations are implementing 4 regulations of either of the statutes under which he brought his claims. As 5 such, the Court cannot hold that the reevaluation regulations, 34 C.F.R. 6 §§ 300.303-304, are privately enforceable under Sandoval. 7 39. For the foregoing reasons, the Court concludes that the District violated the 8 ADA and Section 504 by unlawfully segregating J.G. at a special education 9 center during the 2018-2019 school year. However, the District did not act 10 with deliberate indifference and Plaintiff is not entitled to recover monetary 11 damages. 12 13 - 14 | Dated: February 21, 2023 oan 15 T ONORABLE JESUS G. BERNAL Unked States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 28