A federal judge from the Eastern District of California has denied a school district’s motion to dismiss the claim of a former high school basketball player who claimed the district discriminated against him when it kept him off the varsity basketball team because of his behavioral disability. In so ruling, the court found that the plaintiff had alleged “enough to withstand” the motion to dismiss, brought pursuant to Federal Rule of Civil Procedure 12(b)6.
Plaintiff Isaiah Brown, who had previously played on Franklin High School’s traveling basketball teams, was allegedly praised as one of the school’s best junior varsity basketball players. Yet he was the only JV player not invited to the school’s summer 2014 basketball program, an unofficial prerequisite to joining the varsity team. Soon afterwards, the varsity coach denied plaintiff a spot on the team’s roster. Although the coach claimed he cut plaintiff for lacking “defensive awareness,” the plaintiff alleged that the reason was pretext, noting the coach told others he was “not going to deal” with the plaintiff because “all he does is get upset” and “emotional” so he would not be a good fit.
The plaintiff’s volatility derives from his “emotional disturbance” disability, for which he received special education services under an Individual Educational Program (IEP).
In November 2014, one month after the varsity coach cut the plaintiff, his mother complained to the Elk Grove Unified School District that the exclusion was discriminatory. In December 2014, the district denied her complaint.
The plaintiff tried to transfer to other schools within the district, but each time he was not permitted, despite his apparent ability, to make the varsity roster.
In response, Brown brought three claims against the district: (1) Disability discrimination under Title II of the Americans with Disabilities Act (ADA); (2) disability discrimination under § 504 of the Rehabilitation Act; and (3) failure to implement § 504’s implementing regulations.
The district moved to dismiss all three claims, arguing that it did not exclude “the plaintiff because of his disability; and that he simply was not varsity material given his emotional state. The district explains the plaintiff was given an equal opportunity to participate on a varsity basketball team, but when shaping their teams the coaches could not ignore his blatant behavioral issues.”
In reviewing claims one and two (disability discrimination), the court wrote that “to establish a disability discrimination claim under Title II of the ADA or under § 504 of the Rehabilitation Act, the plaintiff must allege (1) he has a qualified disability; (2) he was entitled to participate in a public entity’s services, program, or activities; (3) he was excluded from such services, programs or activities; (4) either partially (under Title II) or solely (under § 504) based on his disability. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (listing Title II elements); Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir. 1990) (listing § 504 elements); see also Vinson v. Thomas, 288 F.3d 1145, 1152 n.7 (9th Cir. 2002) (“We examine cases construing claims under the ADA, as well as section 504 of the Rehabilitation Act, because there is no significant difference in the analysis of rights and obligations created by the two Acts.”)
“Because he seeks damages, the plaintiff must also plead (5) the district’s deliberate indifference, which ‘requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood.’ Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001). Plaintiff has plausibly pled each element.
“That the first and third elements are sufficiently pled is undisputed: The plaintiff has a qualifying disability and he was excluded from varsity basketball teams at public high schools in the district.”
The court continued: “As to the plaintiff’s ‘entitlement’ to be on varsity, the district contends the plaintiff’s behavioral outbursts, regardless of the basis for them, rendered him unfit for varsity team membership. The district relies on the case of C.O. v. Portland Pub. Sch., which clarifies educational institutions are not compelled to ‘disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate’; the rule is merely that ‘a person who is otherwise qualified’ may not be excluded ‘based upon his disability.’ 679 F.3d 1162, 1169 (9th Cir. 2012); ‘To be otherwise qualified, an individual must be able to meet all of a program’s requirements in spite of his handicap.’ C.O., 679 F.3d at 1169. Although the evidence may later prove the plaintiff’s behavioral outbursts meant he did not meet the requirements for temperament of a varsity player, the plaintiff’s allegations, construed in his favor, plausibly show he ‘met all of [Varsity’s] requirements in spite of his handicap.’ Id.; (highlighting plaintiff’s talent and his praise from coaches). Dismissal on this basis is unwarranted.
“As to causation, the district contends again that plaintiff was denied a position on the varsity team based on inadequate qualifications; he was not denied a varsity position based on his disability. But the complaint plausibly alleges the plaintiff’s disability drove the exclusion. He was the only Franklin JV player not promoted to Varsity and the only consistent summer league player not promoted to varsity. When faced with a ‘noticeable lack of players,’ Pleasant Grove’s varsity coach promoted JV players rather than selecting the plaintiff for the team. Indeed, all the varsity coaches based the plaintiff’s exclusion on his emotional state at least in part and the complaint directly links plaintiff’s emotional state to his disability. These allegations are enough at the pleading stage.
“Finally, the allegations plausibly state the district acted with deliberate indifference. The district knew about the plaintiff’s behavioral issues. The district knew the plaintiff was denied a varsity spot because of his behavior: Coaches openly stated as much, the plaintiff’s mother twice filed discrimination complaints and his former coach warned others the plaintiff was qualified so his disability should not prohibit him from playing. It is also plausible to infer from the complaint that the district noticed his decline in academic performance and well-being, as evidenced by the January 2016 IEP meeting during which plaintiff’s mother drew this link, and by her repeated requests for this meeting.
“In short, at the pleading stage, a plaintiff need not prove discrimination; he must merely plead a plausible discrimination claim. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002) (explaining prima facie discrimination case is an “evidentiary standard, not a pleading requirement.) The plaintiff has met this requirement here. His ADA and § 504 disability discrimination claims therefore survive dismissal.
Turning to claim three and the Section 504 implementing regulations, the court noted that he alleges the district violated the regulations identified as 34 C.F.R. § 104.37(a)(1)1 and 34 C.F.R. § 104.37(c)(1)2 by providing neither reasonable accommodations nor meaningful access.
The court wrote that the plaintiff’s “reasonable accommodation theory as pled survives dismissal. When an entity is on notice of needed accommodations, it ‘is required to undertake a fact-specific investigation to determine what constitutes a reasonable accommodation.’ A.G. v. Paradise Valley Unified Sch. Dist. No. 69 (“A.G.”), 815 F.3d 1195, 1207 (9th Cir. 2016).” In this instance, the plaintiff “has plausibly pled that the district knew he was denied access to varsity basketball teams based on his disability yet did nothing to investigate this exclusion or accommodate him with alternate arrangements. This theory survives.”
Similarly, the meaningful access theory survived dismissal. “A plaintiff may pursue such a theory by pleading a violation of a § 504 implementing regulation that ‘denied [him] meaningful access to a public benefit.’ A.G., 815 F.3d at 1204. The plaintiff alleged Pleasant Grove specifically denied him an equal opportunity to participate on varsity despite his qualifications, in violation of 34 C.F.R. § 104.37(c)(1), by refusing to let him try out for the team. These allegations are sufficient to plead a plausible ‘meaningful access’ denial claim.”
Isaiah Brown v. Elk Grove Unified School District; E.D. Cal.; No. 2:17-CV-00396-KJM-DB, 2018 U.S. Dist. LEXIS 27090; 2/20/18
Attorneys of Record: (for plaintiff) Jay T. Jambeck, LEAD ATTORNEY, Damien Berkes Troutman, Leigh Law Group, San Francisco, CA. (for defendant) Evan Michael McLean, LEAD ATTORNEY, Domenic D. Spinelli, Spinelli Donald & Nott, Sacramento, CA.
