Case: 14-17384, 01/21/2016, ID: 9835545, DktEntry: 17, Page 1 of 37

No. 14-17384
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_________________
JAMES CHADAM, et al.,
Plaintiffs-Appellants
v.
PALO ALTO UNIFIED SCHOOL DISTRICT,
Defendant-Appellee
_________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
_________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING
PLAINTIFFS-APPELLANTS AND URGING REVERSAL
_________________
JAMES COLE, JR.
General Counsel

VANITA GUPTA
Principal Deputy Assistant
Attorney General

FRANCISCO LOPEZ
JESSICA WOLLAND
Attorneys
U.S. Department of Education
Office of the General Counsel

MARK L. GROSS
THOMAS E. CHANDLER
Attorneys
Department of Justice
Civil Rights Division
Appellate Section – RFK 3748
Ben Franklin Station
P.O. Box 14403
Washington, DC 20044-4403
(202) 307-3192

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TABLE OF CONTENTS
PAGE
STATEMENT OF THE ISSUE ................................................................................. 1
INTEREST OF THE UNITED STATES .................................................................. 2
STATEMENT OF THE CASE .................................................................................. 3
1.

C.C.’s Removal From His Neighborhood School ................................. 3

2.

The Federal Complaint ......................................................................... 6

SUMMARY OF THE ARGUMENT ......................................................................10
ARGUMENT
PLAINTIFFS ALLEGE SUFFICIENT FACTS TO SUPPORT
CLAIMS OF INTENTIONAL DISCRIMINATION UNDER
TITLE II OF THE ADA AND SECTION 504 .............................................12
A.

The Second Amended Complaint Sufficiently Alleges
Violations Of Title II And Section 504 To Survive A
Motion To Dismiss...............................................................................13

B.

The District Court Erred In Dismissing The Complaint
Based On Its Conclusion That C.C. Constituted A
“Direct Threat”...................................................................................21

CONCLUSION ........................................................................................................29
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES
CASES:

PAGE

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................................................................12
Bangerter v. Orem City Corp., 46 F.3d 1491 (10th Cir. 1995) ...............................24
Barber v. Colorado Dep’t of Revenue, 562 F.3d 1222 (10th Cir. 2009)................. 19
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)....................................................12
Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448 (5th Cir. 2005) ............. 8
Blind Indus. & Servs. of Md. v. Route 40 Paintball Park,
No. 11-cv-3562, 2013 WL 1209649 (D. Md. Mar. 21, 2013).......................28
Bragdon v. Abbott, 524 U.S. 624 (1998) ........................................................... 22-23
C.G. v. Pennsylvania Dep’t of Educ., 734 F.3d 229 (3d Cir. 2013) ........................15
Chavez v. Blue Sky Natural Beverage Co.,
340 F. App’x 359 (9th Cir. 2009) ..................................................................13
Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996) ........................................ 21-22
Daubert v. Lindsay Unified Sch. Dist., 760 F.3d 982 (9th Cir. 2014).....................14
Doe v. Deer Mountain Day Camp, Inc.,
682 F. Supp. 2d 324 (S.D.N.Y. 2010) ...........................................................28
Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001) ........................ 14, 19-20
Fortyune v. City of Lomita, 766 F.3d 1098 (9th Cir. 2014) ....................................16
Gil v. Vortex, LLC, 697 F. Supp. 2d 234 (D. Mass. 2010) ......................................24
Gragg v. New York State Dep’t of Envtl. Conservation,
No. 97-cv-1506, 2000 WL 246272 (N.D.N.Y. Mar. 3, 2000) ......................24

- ii -

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CASES (continued):

PAGE

International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) ................. 19
Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005).....................................................12
Lockett v. Catalina Channel Express, Inc.,
496 F.3d 1061 (9th Cir. 2007) ................................................................passim
Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002) ....................................... 8, 18-20
Mary Jo C. v. New York State & Local Ret. Sys.,
707 F.3d 144 (2d Cir. 2013) ..........................................................................22
Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097 (9th Cir. 2008) ....... 12-13
Moss v. United States Secret Serv., 572 F.3d 962 (9th Cir. 2009) ..........................12
Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999) .............................23
School Bd. of Nassau Cnty. v. Arline, 480 U.S. 273 (1987) ....................................23
Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001)..........................24
Tennessee v. Lane, 541 U.S. 509 (2004) .................................................................16
Tyner v. Brunswick Cnty. Dep’t of Soc. Servs.,
776 F. Supp. 2d 133 (E.D.N.C. 2011) ...........................................................24
STATUTES:
Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq.
42 U.S.C. 12102(1)(A) ..................................................................................14
42 U.S.C. 12102(1)(C) ..................................................................................14
42 U.S.C. 12102(3)(A) ..................................................................................14
42 U.S.C. 12131 et seq. (Title II) .................................................................... 2
42 U.S.C. 12132................................................................................... 2, 13-14
42 U.S.C. 12133...............................................................................................2
42 U.S.C. 12134...............................................................................................2
42 U.S.C. 12205a .............................................................................................2
- iii -

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STATUTES (continued):

PAGE

Rehabilitation Act of 1973, 29 U.S.C. 701 et seq.
29 U.S.C. 705(20)(B).....................................................................................14
29 U.S.C. 705(20)(D) ....................................................................................23
29 U.S.C. 794 (Section 504) ............................................................................ 2
29 U.S.C. 794(a) ...................................................................................... 13-14
29 U.S.C. 794(b)(1)(A)..................................................................................16
29 U.S.C. 794a .................................................................................................2
REGULATIONS:
28 C.F.R. Pt. 35 ..........................................................................................................2
28 C.F.R. 35.130(b)(1)(i) .........................................................................................17
28 C.F.R. 35.130(b)(1)(ii) ..................................................................................15, 17
28 C.F.R. 35.130(b)(1)(iii) .......................................................................................15
28 C.F.R. 35.130(b)(1)(iv) .......................................................................................15
28 C.F.R. 35.139 ......................................................................................9, 11, 23, 29
28 C.F.R. 35.190(b)(2) ...............................................................................................3
28 C.F.R. 36.208 ......................................................................................................27
28 C.F.R. Pt. 41 ..........................................................................................................2
34 C.F.R. Pt. 104 ........................................................................................................3
34 C.F.R. 104.4(b)(1)(i) ...........................................................................................17
34 C.F.R. 104.4(b)(1)(ii) ....................................................................................15, 17
34 C.F.R. 104.4(b)(1)(iii) .........................................................................................15
34 C.F.R. 104.4(b)(1)(iv) .........................................................................................15

- iv -

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RULES:

PAGE

Fed. R. App. P. 29(a) .................................................................................................3
Fed. R. Civ. P. 8(a)(2) ..............................................................................................12
Fed. R. Civ. P. 12(b)(6)................................................................................ 12-13, 24
LEGISLATIVE HISTORY:
H.R. Rep. No. 485(II), 101st Cong., 2d Sess. (1990) ..............................................16
MISCELLANEOUS:
Peter F. Colwell and Karl L. Guntermann, The Value of Neighborhood
Schools, 3 Econ. Educ. Rev. (1984) ..............................................................18

-v-

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IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_________________
No. 14-17384
JAMES CHADAM, et al.,
Plaintiffs-Appellants
v.
PALO ALTO UNIFIED SCHOOL DISTRICT,
Defendant-Appellee
__________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
_________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING
PLAINTIFFS-APPELLANTS AND URGING REVERSAL
_________________
STATEMENT OF THE ISSUE
Defendant Palo Alto Unified School District transferred plaintiff C.C. from
his neighborhood school against his and his parents’ wishes because he had a
genetic marker for cystic fibrosis (but not the disease itself), and the school district
believed he posed a danger to two students in the school who had cystic fibrosis.
Plaintiffs filed suit for damages under Title II of the Americans with Disabilities
Act of 1990 (ADA) and Section 504 of the Rehabilitation Act (Section 504). The

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-2district court dismissed the complaint for failure to state a claim. We address the
following question:
Whether the district court erred in dismissing plaintiffs’ ADA and Section
504 claims on the basis that the school district reasonably believed C.C. posed a
direct threat for medical reasons to two students in his neighborhood school.
INTEREST OF THE UNITED STATES
This appeal arises from the application of Title II of the ADA, 42 U.S.C.
12131 et seq., and Section 504, 29 U.S.C. 794, and their implementing regulations,
to a public school district’s involuntary transfer of C.C. out of his neighborhood
school. Title II prohibits state and local governments from excluding an otherwise
qualified individual with a disability from participation in, or denying the
individual the benefits of, their services, programs, or activities because of the
disability, or otherwise discriminating against that individual on the basis of
disability. 42 U.S.C. 12132. Section 504 similarly prohibits disability
discrimination by recipients of federal funding. 29 U.S.C. 794. The Attorney
General has authority to bring civil actions to enforce both provisions. See 42
U.S.C. 12133; 29 U.S.C. 794a. The Justice Department also has authority to issue
regulations implementing Title II and, in programs receiving funds from the Justice
Department, Section 504. See 42 U.S.C. 12133-12134, 12205a; 29 U.S.C. 794,
794a; 28 C.F.R. Pts. 35 & 41. The Department of Education has the same

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-3regulatory responsibility under Section 504 for programs receiving federal funds
from that agency. See 34 C.F.R. Pt. 104; 28 C.F.R. 35.190(b)(2). In addition, the
Department of Education shares in the enforcement of Title II. The United States
has an interest in ensuring that these statutes and accompanying regulations are
properly interpreted and applied. The United States files this brief pursuant to
Federal Rule of Appellate Procedure 29(a).
STATEMENT OF THE CASE
1.

C.C.’s Removal From His Neighborhood School 1
a. In July 2012, the Chadams enrolled their son, C.C., in their neighborhood

middle school in the Palo Alto Unified School District. E.R. 110.2 As a newborn,
C.C. was diagnosed with the genetic marker for cystic fibrosis, but not the disease
itself. Despite the genetic marker, he does not have, and never has had, cystic
fibrosis and is a healthy teenager. E.R. 109-110.
When the Chadams registered C.C. for school, they completed a medical
information form. E.R. 110. On September 11, 2012, without permission from
C.C.’s parents, one of C.C.’s teachers told the parents (referred to as Mr. and Mrs.
X) of two students at the school that C.C. had cystic fibrosis. E.R. 111. Later that
1

Because the complaint was dismissed for failure to state a claim, we
summarize the facts as alleged in the second amended complaint.
2

Citations to “E.R. __” refer to page numbers in the Excerpts of Record
filed by plaintiffs-appellants along with their opening brief.

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-4day, the Chadams were asked to come to a meeting with the school principal and
other school officials. The Chadams were told that two students (siblings) at the
school had cystic fibrosis, and that the parents of those students had “discovered”
that C.C. also had the disease. E.R. 111. The Chadams responded that C.C. did
not, in fact, have cystic fibrosis. E.R. 111. That evening, Mrs. Chadam received a
telephone call from Mrs. X asking about C.C.’s medical condition and how long
the family intended to remain in Palo Alto. E.R. 111-112.
A few days later, Dr. Carlos Milla sent a letter to the school district
addressing medical issues arising from C.C.’s presence at the school. E.R. 112.
The letter does not indicate who asked him to send the letter. E.R. 112. 3 The letter
recommended that C.C. be removed from the middle school for the safety of Mrs.
X’s two children. E.R. 112. As a general matter, there is a risk of infection
between people who have cystic fibrosis because a person with the disease can be a
carrier of bacteria that is easily transmitted and harmful to others with cystic
fibrosis.
On September 14, 2012, the Chadams told the school principal that they did
not want C.C. to be transferred from his neighborhood school. E.R. 112. The
principal responded that there was no need to make any changes at that time

3

The district court noted that “[d]etails about Dr. Milla’s identity and
connection to the case are not disclosed.” E.R. 3.

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-5because Mr. and Mrs. X had decided to move their two children out of the school.
E.R. 112. But two days later, Mrs. X requested that the school district remove
C.C. from the school so that her children could return. E.R. 113. The next day,
Dr. Milla sent the school another letter, this time stating that children with cystic
fibrosis “must not be” in the same school together. E.R. 113.
b. On September 17, 2012, the principal called the Chadams and stated that,
based on C.C.’s medical records and Mr. and Mrs. X’s demands, the school district
intended to transfer C.C. to a school approximately 3.5 miles away from the
Chadams’ home. E.R. 113. The Chadams demanded that the school district
provide evidence and documentation to support this decision. E.R. 113.
Several days later, the Chadams gave the school district a letter from one of
C.C.’s doctors, Dr. John Morton, stating that he has seen C.C. for the past five
years, C.C. does not have cystic fibrosis, there “has been no progression of the
symptoms” of cystic fibrosis, and C.C. is not “any risk whatsoever to other
children with [cystic fibrosis] even if they were using the same classroom.” E.R.
113. On the same day, the Chadams met with school district officials and
reiterated that although C.C. had the genetic marker for cystic fibrosis, he did not
have and never had the disease. E.R. 114. When the Chadams asked for the
reason C.C. was being transferred, they were told it was based on a letter from a
Stanford doctor, whom the school district did not identify. E.R. 114. A few days

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-6later, Mrs. Chadam again met with a school district official and offered to provide
more medical evidence that C.C. was not a risk to anyone. E.R. 114.
On September 28, 2012, the school district told the Chadams that it was
transferring C.C. to a different school. E.R. 114. A few weeks later, C.C. was
removed from class during the school day in front of his classmates and told that it
was his last day at that school. Distraught, he walked home without saying
goodbye to his classmates. E.R. 114.
On October 12, 2012, the Chadams filed suit in state court seeking to enjoin
the school district from transferring C.C. to a different school. Several weeks later,
the parties settled the case, and C.C. returned to his neighborhood middle school.
E.R. 114. C.C. did not attend school for approximately two weeks. E.R. 117.
2.

The Federal Complaint
a. On September 6, 2013, plaintiffs filed this action seeking damages. E.R.

126. Subsequently, they filed a second amended complaint. E.R. 108-119. Count
I alleges that defendant Palo Alto School District violated the ADA because it
“perceived [C.C.] as a disabled person” and deprived him of his “right to attend the
public school * * * closest to his home.” E.R. 115. Count I further alleges that,
as a result, C.C. suffered humiliation, anxiety, deterioration of his grades, and
various physical ailments. E.R. 116. Count II mirrors Count I and alleges a
violation of Section 504. E.R. 116-117. Other counts allege a violation of the

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-7“federal constitutional right to privacy” and common law negligence. E.R. 117119.
The school district moved to dismiss. E.R. 78-107. With regard to the ADA
and Section 504 claims, defendant argued that: (1) plaintiffs’ allegation that C.C.
was denied attendance at his neighborhood school did not constitute a claim that he
was denied the benefits of defendant’s educational program, as required by Title II
of the ADA and Section 504; (2) plaintiffs failed to allege that C.C. was a qualified
individual with a disability, noting that plaintiffs repeatedly asserted that C.C. did
not have cystic fibrosis; (3) plaintiffs failed to allege that defendant intended to
violate the ADA and Section 504, precluding liability for damages; (4) defendant’s
actions were “expressly allowed by law” – a California law requiring schools to
ensure the safety of all students – and therefore the transfer of C.C. was “legally
mandated” and “cannot form the basis of liability”; and (5) C.C.’s transfer was not
“because of” C.C.’s disability, but rather to protect the health and safety of others.
E.R. 90-101; see also E.R. 33-37, 42-44.4

4

Defendant also argued that plaintiffs’ ADA damages claim was barred by
the Eleventh Amendment. E.R. 93-96. Because the district court dismissed the
second amended complaint “for other reasons,” the court did not address this issue,
and therefore it is not presented here. E.R. 8-9. In any event, because plaintiffs
seek relief under both the ADA and Section 504, the complaint alleges that
defendant receives federal funds (E.R. 116), and, as noted below (p. 14 n.6), the
analysis under each statute for liability and remedies is substantially the same, it is
unnecessary to address whether plaintiffs’ Title II claim is barred by the Eleventh
(continued…)

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-8Plaintiffs responded that C.C. was a qualified person with a disability
because the defendant perceived and regarded C.C. as disabled. E.R. 64-66.
Plaintiffs also argued that, by being transferred to a different school, C.C. was
deprived of the benefit of attending his neighborhood school in accordance with
school district policy. E.R. 67. Plaintiffs further asserted that the complaint
adequately alleges intentional conduct by the defendant. E.R. 71-72. Finally,
plaintiffs asserted that compliance with state law is not a defense to a federal ADA
or Section 504 claim because the federal statutes preempt state law. E.R. 72.
b. The district court granted defendant’s motion to dismiss. E.R. 25. The
court concluded that plaintiffs alleged sufficient facts to support the inference that
defendant “regarded” C.C. as an “individual with a disability” and acted on that
mistaken belief. E.R. 9, 11-13. But the court found that defendant reasonably
believed that C.C. posed a health risk to the two children at school with cystic
fibrosis, and therefore defendant did not violate the ADA or Section 504. E.R. 1416, 20-21. The court did not address whether plaintiffs adequately alleged that
C.C. was denied the benefits of a program or activity.
(…continued)
Amendment. See, e.g., Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448,
454 (5th Cir. 2005) (unnecessary to decide whether Title II is valid Fourteenth
Amendment legislation where plaintiff has identical 504 claim); Lovell v.
Chandler, 303 F.3d 1039, 1050-1051 (9th Cir. 2002) (because State accepted
Section 504 federal funds, it waived its Eleventh Amendment immunity from suit
under that statute).

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-9The court construed defendant’s argument that state law required it to
transfer C.C. to another school to protect the health of other students as raising the
“direct threat” defense under Title II, citing 28 C.F.R. 35.139. E.R. 14. The court
then applied the reasoning of Lockett v. Catalina Channel Express, Inc., 496 F.3d
1061 (9th Cir. 2007), which addressed circumstances where a defendant believes a
person with a disability poses a risk to others and has to make a quick, one-time
decision about whether to exclude the person for that reason. E.R. 15. This Court
in Lockett concluded that a defendant may make such a decision without violating
Title II if it made a reasonable judgment about the risks involved. E.R. 15 (citing
Lockett, 496 F.3d at 1067).
Relying on Lockett, the district court stated that plaintiffs “have not alleged
any facts to support the inference that [the school district] did not act in an effort to
preserve the safe operation of the school. Nor have they alleged any facts to
support the inference that [the school district’s] brief exclusion of C.C. from the
school closest to his home, in light of the risk involved, was not reasonable given
the information [the school district] had.” E.R. 15. The court emphasized that
plaintiffs acknowledge that the school district “told them it was basing its decision
on medical evidence provided both by Dr. Milla and a ‘top Stanford doctor,’” and
that the school district “made its decisions on the basis of its belief that C.C.’s
presence in the school was a serious threat to other students.” E.R. 15-16. The

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- 10 court concluded that “the Chadams admit that [the school district] believed the risk
to other children was real and based on medical evidence.” E.R. 16. The court
therefore held that dismissal was appropriate.
Finally, the court concluded that, even if plaintiffs’ claims were not
dismissed for other reasons, they failed because the complaint does not allege
sufficient facts to support a claim of intentional discrimination, which is a
prerequisite for damages claims under the ADA and Section 504. E.R. 17-21.
c. On December 3, 2014, plaintiffs filed a timely notice of appeal. E.R. 2627.
SUMMARY OF THE ARGUMENT
This appeal arises in the context of a motion to dismiss on the pleadings.
Counts I and II (the ADA and Section 504 claims) allege sufficient facts to support
the claim that, by involuntarily transferring C.C. from his neighborhood school,
defendant denied C.C. the benefits of a program, service, or activity, or otherwise
discriminated against him, because of his perceived disability. That is enough to
survive a motion to dismiss. The complaint also alleges sufficient facts to support
plaintiffs’ claim that defendant acted with discriminatory intent, and that therefore
defendant may be liable for monetary damages. Indeed, because defendant
admitted that the transfer was tied to its belief that C.C. had cystic fibrosis, it is
clear that its action was intentionally based on disability.

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- 11 The allegations in this case present a quintessential ADA claim – allegations
that a child was denied access to his neighborhood school based on prejudice,
stereotypes, and unfounded fear. Here, that fear was that C.C. – because of a
perceived, but not actual and, hence, misunderstood, medical condition – might put
the health of two other students at risk. But a public entity cannot deny an
otherwise qualified individual the benefit of a service, program, or activity based
on the possibility that a child’s disability might cause a direct threat to others
without making an individualized “direct threat” assessment “based on reasonable
judgment that relies on current medical knowledge or on the best available
objective evidence.” 28 C.F.R. 35.139. The direct threat exception is an
affirmative defense that defendant must assert, and on which defendant bears the
burden of proof. Accordingly, whether defendant used “reasonable judgment” in
concluding that C.C., a child with a genetic marker for cystic fibrosis but not the
disease itself, posed a health risk to other children, and that a transfer to a different
school was required, are fact questions that cannot be resolved in the context of a
motion to dismiss. The district court’s conclusion to the contrary constitutes legal
error.

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- 12 ARGUMENT
PLAINTIFFS ALLEGE SUFFICIENT FACTS TO SUPPORT CLAIMS OF
INTENTIONAL DISCRIMINATION UNDER TITLE II OF THE ADA AND
SECTION 504
To survive a motion to dismiss on the pleadings, a complaint must comply
with Federal Rule of Civil Procedure 8(a)(2) by providing “a short and plain
statement of the claim showing that the pleader is entitled to relief ” so that
defendant is given fair notice of what the claim is and the grounds upon which it
rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations
“must be enough to raise a right to relief above the speculative level” and allege
“enough facts to state a claim to relief that is plausible on its face” and to “nudge[]
the[] claims across the line from conceivable to plausible.” Id. at 555, 570; see
also Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009).5
This Court has summarized: “[F]or a complaint to survive a motion to
dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that
content, must be plausibly suggestive of a claim entitling the plaintiff to relief.”
Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Therefore,

5

This Court reviews de novo a district court’s dismissal of a complaint for
failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1102 (9th Cir. 2008).
The Court accepts “all factual allegations in the complaint as true and construe[s]
the pleadings in the light most favorable to the nonmoving party.” Knievel v.
ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).

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- 13 “[d]ismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a
cognizable legal theory or sufficient facts to support a cognizable legal theory.”
Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A
motion to dismiss “is not a procedure for resolving a contest between the parties
about the facts or the substantive merits of the plaintiff’s case.” Chavez v. Blue
Sky Natural Beverage Co., 340 F. App’x 359, 360 (9th Cir. 2009) (citation
omitted).
A.

The Second Amended Complaint Sufficiently Alleges Violations Of Title II
And Section 504 To Survive A Motion To Dismiss
1. Title II states: “[N]o 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. Section 504 states: “No
otherwise qualified individual with a disability * * * 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). Therefore, to prove a violation of
Title II or Section 504 a plaintiff must establish three elements: (1) he or she is a
qualified individual with a disability; (2) he or she was excluded from participation
in, or was denied the benefit of, a public entity’s service, program, or activity, or
was otherwise discriminated against by the public entity; and (3) the public entity

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- 14 did so by reason of his or her disability. 42 U.S.C. 12132; 29 U.S.C. 794(a); see
Daubert v. Lindsay Unified Sch. Dist., 760 F.3d 982, 985 (9th Cir. 2014) (setting
forth elements of Title II). 6 In addition, where, as here, the plaintiff seeks
damages, the plaintiff must prove that the public entity acted with discriminatory
intent. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001).
The ADA defines “disability” as “a physical or mental impairment that
substantially limits one or more major life activities.” 42 U.S.C. 12102(1)(A).
The statutory definition of disability also includes “being regarded as having” such
an impairment. 42 U.S.C. 12102(1)(C). “An individual meets the requirement of
‘being regarded as having such an impairment’ if the individual establishes that he
or she has been subjected to an action prohibited under this chapter because of an
actual or perceived physical or mental impairment whether or not the impairment
limits or is perceived to limit a major life activity.” 42 U.S.C. 12102(3)(A); see
also 29 U.S.C. 705(20)(B) (applying Title II’s definition of disability to Section
504).
The Justice Department’s Title II regulations state that, in providing benefits
and services, discrimination includes providing “a qualified individual with a

6

Plaintiffs allege that the school district receives federal funds. E.R. 116.
Under the facts alleged in the complaint, the claims under Title II and Section 504
can be combined for analytic purposes. See, e.g., Duvall v. County of Kitsap, 260
F.3d 1124, 1135-1136 (9th Cir. 2001).

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- 15 disability an opportunity to participate in or benefit from the aid, benefit, or service
that is not equal to that afforded others,” or providing such person “an aid, benefit,
or service that is not as effective in affording equal opportunity.” 28 C.F.R.
35.130(b)(1)(ii)-(iii) (emphasis added). They also state that a public entity may not
provide “different or separate aids, benefits, or services to individuals with
disabilities” unless such action is “necessary” to provide such persons with “aids,
benefits, or services that are as effective as those provided to others.” 28 C.F.R.
35.130(b)(1)(iv) (emphasis added). The statutes and regulations reflect Congress’s
intent that individuals with disabilities receive the same benefits of a program as
those without disabilities. See C.G. v. Pennsylvania Dep’t of Educ., 734 F.3d 229,
236 (3d Cir. 2013); see also 34 C.F.R. 104.4(b)(1)(ii)-(iv) (Department of
Education regulations implementing Section 504).
2. The complaint alleges that defendant perceived C.C. as a person with a
disability; the district court correctly concluded that these allegations satisfy the
definition of being regarded as having a disability. E.R. 11-13. The allegations in
the complaint also clearly assert that defendant removed C.C. from his
neighborhood school because it thought he had cystic fibrosis (the district court did
not address this element of a statutory violation, i.e., that defendant acted by reason
of C.C.’s disability). E.R. 110-114. Therefore, the only issues concerning the
sufficiency of plaintiffs’ allegations are: (1) whether plaintiffs adequately allege

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- 16 that, by removing C.C. from his neighborhood school, defendant denied him a
benefit of its educational program, or otherwise discriminated against him because
of his disability; and (2) whether plaintiffs adequately allege, to support a damages
claim, that defendant did so intentionally.
a. First, the complaint sufficiently alleges that defendant denied C.C. a
benefit of its educational program by removing him from his neighborhood school.
See E.R. 115-116. 7
There is no dispute that defendant’s educational program is a service,
program, or activity encompassed by Title II and Section 504.8 See, e.g.,
Tennessee v. Lane, 541 U.S. 509, 524-525 (2004) (referring to “public education”
as a public service, program, or activity covered by Title II). Although the district
7

The issue whether defendant’s actions also violate Title II’s and Section
504’s more general prohibitions against a person being “subjected to
discrimination” is not presented here.
8

Although neither the ADA nor the Title II regulations define these terms,
Section 504 defines “program or activity” as “all of the operations of” a qualifying
local government. 29 U.S.C. 794(b)(1)(A). The ADA statutory language is based
on that of Section 504. See, e.g., Fortyune v. City of Lomita, 766 F.3d 1098, 11011102 (9th Cir. 2014). This Court has explained that Title II’s phrase “services,
programs, or activities” is “similarly broad, bringing within its scope anything a
public entity does” as long as it is a “normal function of a government entity.” Id.
at 1102 (citation and internal quotation marks omitted). This conclusion is
consistent with the notion that the ADA must be broadly construed to implement
its fundamental purpose of eliminating discrimination against persons with
disabilities. Id. at 1101; see also H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 84
(1990) (Title II extends Section 504’s anti-discrimination provision “to all actions
of state and local governments”).

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- 17 court did not resolve this issue, attending one’s neighborhood school is a benefit of
that program. Plaintiffs allege that defendant’s attendance policy is that students
attend their neighborhood schools. E.R. 115-116. Plaintiffs further allege that if
C.C. was not perceived as having cystic fibrosis, he would not have been excluded
from his neighborhood school. E.R. 115. Therefore, plaintiffs have sufficiently
alleged that defendant denied C.C. the benefits of attending his neighborhood
school because of his perceived disability. See 28 C.F.R. 35.130(b)(1)(i)-(ii); 34
C.F.R. 104.4(b)(1)(i)-(ii).
There are often significant benefits to attending one’s neighborhood school.
Parents may value the opportunity to send their children to neighborhood schools,
as it can help the family more easily participate in extracurricular activities, the
Parent Teacher Association, and informal networks of parents and children. Going
to a neighborhood school can also help the child and his family foster connections
with the local community. Further, assigning a child to a neighborhood school can
reduce the safety hazards to children in traveling to school, decrease the cost of
transporting students, and increase the amount of communication between the
family and the school. Moreover, in a neighborhood school environment, it may
be that the “cost of communication and cooperation among the parents of school
children is reduced” and information about student, teacher, and administrator

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- 18 behavior can be more easily shared. Peter F. Colwell and Karl L. Guntermann,
The Value of Neighborhood Schools, 3 Econ. Educ. Rev. 177, 177 (1984).
b. Second, the district court erred in concluding that the complaint did not
allege sufficient facts to support the allegation that defendant acted with
discriminatory intent. The court stated that although plaintiffs allege defendant’s
conduct “was intended to cause harm and injury to plaintiffs, they do not allege
any facts to support that accusation” and plaintiffs “admit that [defendant’s]
actions resulted from its belief that student safety was at risk.” E.R. 18 (internal
quotation marks omitted). In so concluding, the court misconstrued the intent
element and failed to properly construe plaintiffs’ allegations in the context of a
motion to dismiss.
The discriminatory intent standard does not require a showing of bad motive
or ill will. A plaintiff satisfies the discriminatory intent standard by showing that
defendant intentionally excluded plaintiff from access to a benefit or service
because of plaintiff’s disability. In Lovell v. Chandler, 303 F.3d 1039 (9th Cir.
2002), for example, certain individuals with disabilities were excluded from a state
healthcare program. This Court explained that, unlike cases alleging a failure to
accommodate, “this case involves facial discrimination, in the form of a
categorical exclusion of disabled persons from a public program,” and “by its very
terms, facial discrimination is ‘intentional.’” Id. at 1057. Indeed, this is the most

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- 19 straightforward type of intentional discrimination claim. Cf. International Bhd. of
Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977) (“‘Disparate treatment’
* * * is the most easily understood type of discrimination. The employer simply
treats some people less favorably than others because of their [protected
characteristic].”).
Therefore, the absence of bad faith does not prevent an award of damages
where, as here, the defendant purposely subjects an individual to different
treatment because of his disability. Plaintiffs are not required to allege (and prove)
that the defendant intended, in an act of bad faith or bad motive, to “harm” or
“injure” them. E.R. 18. “Intentional discrimination does not require a showing of
personal ill will or animosity toward the disabled person.” Barber v. Colorado
Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009). As this Court has
explained, the purpose of the intent standard “is not to measure the degree of
institutional ill will toward a protected group, or to weigh competing institutional
motives,” but to ensure that the entity had knowledge and notice that its actions
may violate statutory prohibitions as a prerequisite to financial liability. Lovell,
303 F.3d at 1057.
This Court has also held that evidence that a public entity acted with
“deliberate indifference” can establish intentional discrimination under Title II.
Duvall, 260 F.3d at 1138-1140 (addressing a reasonable accommodation claim).

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- 20 The deliberate indifference standard is satisfied by showing “knowledge that a
harm to a federally protected right is substantially likely, and a failure to act upon
that likelihood.” Id. at 1139. This Court has made clear that where, as here, a
public entity “facially discriminates” against persons with disabilities, or
categorically excludes them from a public program or benefit, the public entity is
“at the very least, ‘deliberately indifferent.’” Lovell, 303 F.3d at 1057. In these
circumstances, the public entity necessarily has the requisite knowledge and notice
of its potential liability, and fails “to act with the requisite care to protect the rights
of [persons with disabilities].” Ibid.
Here, the complaint alleges that defendant believed C.C. had cystic fibrosis
and, solely for that reason, removed him from his neighborhood school. E.R. 110114. The complaint alleges, for example, that the school principal called the
Chadams and stated that “based upon C.C.’s * * * medical information and the
demands of Mr. [a]nd Mrs. X,” the school district intended to transfer C.C. to a
different school. E.R. 113. In view of these straightforward allegations, the
complaint cannot reasonably be construed to allege anything other than that
defendant intentionally removed C.C. from his school, and therefore denied him
the benefit of attending his neighborhood school, because of his perceived
disability. As discussed below, defendant’s belief that it had to transfer C.C. to
protect the safety of other students may be used as a possible affirmative defense to

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- 21 plaintiffs’ claims, but it does not defeat the complaint for damages at the pleading
stage.
B.

The District Court Erred In Dismissing The Complaint Based On Its
Conclusion That C.C. Constituted A “Direct Threat”
Defendant did not directly argue that C.C. posed a direct threat to other

students at his school. Rather, defendant argued that transferring C.C. did not
violate Title II and Section 504 because state law required the school district to
transfer C.C. to another school to protect Mr. and Mrs. X’s two children. E.R. 99100. The district court construed this argument as asserting the “direct threat”
defense, and concluded that C.C.’s transfer was reasonable as a “one-time
exclusion” because the school district believed that C.C. posed a health risk to
others. E.R. 15-16. The court dismissed the Title II and Section 504 counts on this
basis. E.R. 16. In so doing, the district court erred.
1. First, the argument that defendant could not have violated Title II because
its actions were required by state law is not correct. Even if defendant’s actions
fell within the scope of the state law, which they did not because C.C. did not have
cystic fibrosis and therefore was not a health risk to other students, the ADA may
preempt inconsistent state laws, or require modification to or exemption from such
laws, where necessary to effectuate its purpose. In Crowder v. Kitagawa, 81 F.3d
1480 (9th Cir. 1996), this Court addressed a request by a person with a disability
using a guide dog for an exemption from Hawaii’s law requiring the quarantine of

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- 22 dogs entering the State. In reversing summary judgment for the defendants, this
Court explained that Hawaii’s quarantine law was subject to the ADA’s reasonable
modification requirement, and that there was a genuine issue of fact whether the
plaintiffs’ proposed modifications to the law amounted to “reasonable
modifications.” Id. at 1485; see also Mary Jo C. v. New York State & Local Ret.
Sys., 707 F.3d 144, 163 (2d Cir. 2013) (“ADA’s reasonable modification
requirement contemplates modification to state laws, thereby permitting
preemption of inconsistent state laws, when necessary to effectuate Title II’s
reasonable modification provision.”). Therefore, the mere fact that a requested
accommodation conflicts with state law does not mean that the accommodation is
necessarily unreasonable or fundamentally alters the State’s program. Moreover,
that argument provides no basis to dismiss the complaint at the pleading stage. See
Mary Jo C., 707 F.3d at 163-165.
2. Second, defendant has the burden to raise and prove direct threat as an
affirmative defense. As this Court has recognized, the party “asserting a ‘direct
threat’ as a basis for excluding an individual bears a heavy burden of
demonstrating that the individual poses a significant risk to the health and safety of
others.” Lockett v. Catalina Channel Express, Inc., 496 F.3d 1061, 1066 (9th Cir.
2007). A good faith belief that a risk exists is not sufficient. See Bragdon v.
Abbott, 524 U.S. 624, 649 (1998). Nor can defendant rely on generalizations about

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- 23 the effects of a disability. Rather, “[i]n determining whether an individual poses a
direct threat to the health or safety of others, a public entity must make an
individualized assessment, based on reasonable judgment that relies on current
medical knowledge or on the best available objective evidence.” 28 C.F.R.
35.139.9
This assessment must address “the nature, duration, and severity of the risk;
the probability that the potential injury will actually occur; and whether reasonable
modifications of policies, practices, or procedures or the provision of auxiliary aids
or services will mitigate the risk.” 28 C.F.R. 35.139; see Bragdon, 524 U.S. at
648-649 (Title III ADA case; dentist who believed treating HIV-infected patient
constituted a direct threat “had the duty to assess the risk of infection based on the
objective, scientific information available”). Requiring the defendant to make an
“individualized direct threat inquiry” based on “the best current medical or other
objective evidence” is essential to the ADA’s fundamental goal of “protect[ing]
disabled individuals from discrimination based on prejudice, stereotypes, or
unfounded fear.” Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1248 (9th Cir.
1999) (Title I ADA case).

9

See also School Bd. of Nassau Cnty. v. Arline, 480 U.S. 273 (1987)
(interpreting Section 504 to include the direct threat defense); cf. 29 U.S.C.
705(20)(D) (addressing direct threat in Section 504 employment cases).

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- 24 Because the direct threat defense requires the defendant to make the specific
factual showing set forth above, it is rare that it can be the basis for a motion to
dismiss. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)
(“Review is limited to the contents of the complaint.”); cf. Bangerter v. Orem City
Corp., 46 F.3d 1491, 1502 (10th Cir. 1995) (reversing dismissal of Fair Housing
Act case; plaintiff made out a prima facie case of disability discrimination and
“there was no basis in this record to conclude – at least not on a 12(b)(6) motion –
what legitimate government purposes were involved” in the challenged
restrictions). As one court has explained, whether plaintiff was a direct threat “is a
question of fact arising from what would be an affirmative defense to a claim of
irrational intentional disability discrimination,” and therefore “[a]n anticipated
‘direct threat’ defense * * * is not grounds for a Rule 12(b)(6) dismissal.” Tyner
v. Brunswick Cnty. Dep’t of Soc. Servs., 776 F. Supp. 2d 133, 152 (E.D.N.C.
2011); see also Gil v. Vortex, LLC, 697 F. Supp. 2d 234, 242 (D. Mass. 2010)
(direct threat defense, “which is fact-laden, simply has no place in a motion to
dismiss”).10

10

Cf. Gragg v. New York State Dep’t of Envtl. Conservation, No. 97-cv1506, 2000 WL 246272, at *4-5 (N.D.N.Y. Mar. 3, 2000) (dismissing ADA count
where plaintiff conceded at oral argument that, given his history of seizures,
defendant had an obligation to prevent him from driving as part of his job, and
complaint failed to allege any facts challenging the defendant’s determination that
plaintiff posed a direct threat to others). Also, dismissal on the pleadings may be
(continued…)

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- 25 The fact that, here, the complaint recites the school district’s justification for
transferring C.C. cannot support dismissal of the complaint. E.R. 112-113
(referring to Dr. Milla’s letters recommending that C.C. be removed from the
school for the safety of Mrs. X’s children and that “children with cystic fibrosis
* * * must not be” in the same classroom). First, the complaint repeatedly
alleges that C.C. does not, in fact, have cystic fibrosis, and that C.C.’s parents
repeatedly told that to school officials. Indeed, that is the basis of this lawsuit in
the first place. Dr. Milla’s letters do not address the question at issue in this case –
whether a child with a genetic marker for cystic fibrosis, but not the disease itself,
may pose a direct threat to the health of children with cystic fibrosis. As such, the
letters do not constitute an individualized assessment of C.C.’s condition.
Accordingly, the complaint’s reference to Dr. Milla’s letters cannot support the
conclusion that C.C. posed a direct threat to others.
Moreover, even considering Dr. Milla’s letters at this stage of the case,
whether defendant could reasonably have believed that C.C. posed a significant
health risk (as the court found) is a fact question that cannot be resolved on the
(…continued)
appropriate in the rare instance where the court of appeals for the circuit in which
the district court resides has already held that an individual with the same
disability, with identical manifestations, in the precise factual circumstances
alleged in the complaint, presents a direct threat. In those circumstances, it is
likely that a full trial would not change the outcome. That, of course, is not the
situation presented here.

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- 26 pleadings. The complaint alleges that defendant was repeatedly told that C.C. had
only a genetic marker for cystic fibrosis, and not the disease itself, and that C.C.’s
doctor opined that, therefore, C.C. did not pose a health threat to the two students
who had cystic fibrosis. E.R. 111-114. This fact issue is clearly disputed. As a
result, the district court erred in holding that, as a matter of law, C.C. fell within
the direct threat exception, without further factual development regarding what
medical information the school district had available, and whether it exercised
reasonable judgment relying on current medical knowledge, in excluding him.
3. In dismissing the complaint, the court relied upon this Court’s decision in
Lockett, 496 F.3d at 1061. In that case, a public ferry boat service had a “danderfree” area for a frequent passenger who was allergic to animals. Id. at 1063. When
a passenger with a service animal sought to use that area of the boat (with its more
comfortable accommodations), the ferry service refused. In affirming summary
judgment for the defendant, this Court held that this one-time refusal did not
violate the ADA. See id. at 1065-1067. This Court stated that the ferry was
scheduled to depart and the boat staff needed to make an “on the spot” decision
whether to expose the frequent traveler to animal dander or to accommodate the
plaintiff. Id. at 1065. In these circumstances, this Court concluded that the ferry
could exclude the plaintiff from the dander-free area while it investigated the
matter. See id. at 1065-1066. This Court emphasized that its holding was limited

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- 27 to this “single determination” and the context of whether the ferry should have
“immediately accede[d] to” the plaintiff’s request. Id. at 1066. In these
circumstances, this Court found that the defendant had exercised “reasonable
judgment” as required under the ADA Title III direct threat regulation, 28 C.F.R.
36.208. Id. at 1067.
Applying Lockett, the district court explained that the school officials here
reasonably believed C.C. posed a risk to others and that they had to make a quick,
one-time decision about whether to exclude him. E.R. 14-16. In effect, the court
applied what could be characterized as an “exigent circumstances” direct threat
defense, and concluded that plaintiffs did not “allege[] any facts to support the
inference that [the school district’s] brief exclusion of C.C. from the school closest
to his home, in light of the risk involved, was not reasonable given the information
[the school district] had.” E.R. 15.
Lockett has no application here. The school district was not faced with the
need to make the same kind of immediate, on-the-spot decision without the benefit
of time to investigate and assess any potential risk. Indeed, Mr. and Mrs. X moved
their children out of the school first, and doctors were involved. School personnel
then took nearly a month to determine how to resolve the matter.
The school district had plenty of time to make an informed decision, and at
least could have confirmed, as his parents repeatedly stated, that C.C. actually did

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- 28 not have cystic fibrosis, but only the genetic marker. In Doe v. Deer Mountain
Day Camp, Inc., 682 F. Supp. 2d 324, 349-350 (S.D.N.Y. 2010), the court rejected
a basketball camp’s argument that it did not violate the ADA by refusing to admit
an HIV-positive child because it had less than a week to assess the child’s
condition and could not have determined whether the child actually posed a
significant risk to others. The court in Doe, citing Lockett, stated that although “in
certain circumstances, courts may apply a lower standard of reasonableness to a
non-medically trained person with a very short time period in which to make a
decision, * * * this is not such a case” because, in part, “[d]efendants had several
days to make their determination.” Id. at 349; cf. Blind Indus. & Servs. of Md. v.
Route 40 Paintball Park, No. 11-cv-3562, 2013 WL 1209649, at *2-4 (D. Md.
Mar. 21, 2013) (court, citing Lockett, concludes that paintball facility did not
violate ADA by excluding blind individuals who arrived an hour late, as the
facility was required to make a “one-time, on-the-spot decision” that there was
insufficient time to orient the players on safety issues).
Indeed, had the school district made the required individualized assessment,
the school district could have asked Dr. Milla to opine on the risks, if any, that
C.C.’s true situation – as someone with only a genetic marker – posed to students
with the disease. On those facts, the doctor’s conclusion may well have been very
different. And even if the consensus of medical opinion turned out to be that a

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- 29 child with only the genetic marker poses some risk, the school district was required
to consider the severity of the risk, the probability that potential injury would
occur, and whether any accommodations would permit C.C. to remain at his
neighborhood school while mitigating those risks. See 28 C.F.R. 35.139. The
complaint does not reflect that any such determinations were made.
CONCLUSION
This Court should reverse the district court’s judgment and remand the case
for further proceedings.
Respectfully submitted,
JAMES COLE, JR.
General Counsel

FRANCISCO LOPEZ
JESSICA WOLLAND
Attorneys
U.S. Department of Education
Office of the General Counsel

VANITA GUPTA
Principal Deputy Assistant
Attorney General
/s/ Thomas E. Chandler
MARK L. GROSS
THOMAS E. CHANDLER
Attorneys
Department of Justice
Civil Rights Division
Appellate Section – RFK 3748
Ben Franklin Station
P.O. Box 14403
Washington, DC 20044-4403
(202) 307-3192

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CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Federal Rule of
Appellate Procedure 32(a)(7)(B) and Federal Rule of Appellate Procedure 29(d)
because this brief contains 6,915 words, excluding the parts of the brief exempted
by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of
Appellate Procedure 32(a)(6) because this brief has been prepared in a
proportionally spaced typeface using Microsoft Word 2007 in 14-point Times New
Roman font.
/s/ Thomas E. Chandler
THOMAS E. CHANDLER
Attorney
Date: January 21, 2016

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CERTIFICATE OF SERVICE
I hereby certify that on January 21, 2016, I electronically filed the foregoing
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING
PLAINTIFFS-APPELLANTS AND URGING REVERSAL with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system.
I certify that all participants in this case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.

/s/ Thomas E. Chandler
THOMAS E. CHANDLER
Attorney