FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK H., individually and as
Guardians Ad Litem of Michelle
H. and Natalie H., minors; RIE H.,
individually and as Guardians Ad
Litem of Michelle H. and Natalie
No. 09-15754
H., minors,
Plaintiffs-Appellants, D.C. No.
v. 1:00-cv-00282-
MLR-LEK
PATRICIA HAMAMOTO, in her official
OPINION
capacity as Superintendent of the
Hawaii Department of Education;
DEPARTMENT OF EDUCATION,
STATE OF HAWAII,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Manuel L. Real, District Judge, Presiding
Argued and Submitted
June 18, 2010—Honolulu, Hawaii
Filed August 26, 2010
Before: Betty B. Fletcher, Harry Pregerson, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Pregerson
12867
12870 MARK H. v. HAMAMOTO
COUNSEL
Davis Levin Livingston, Stanley E. Levin, and Michael K.
Livingston, Honolulu, Hawaii, and Keith H.S. Peck, Peck &
Associates, Honolulu, Hawaii, for the plaintiffs-appellants.
Mark J. Bennett, Attorney General of Hawaii, and Dorothy
Sellers, Hawaii Solicitor General, Honolulu, Hawaii, for the
defendants-appellees.
MARK H. v. HAMAMOTO 12871
OPINION
PREGERSON, Circuit Judge:
Following remand from our court, Mark H. v. Haw. Dep’t
of Educ., 513 F.3d 922 (9th Cir. 2008), Mark H. and Rie H.,
individually and as guardians ad litem for their daughters
Michelle H. and Natalie H., (collectively “H. Family”) filed
an amended complaint against the Hawaii Department of Edu-
cation (acting through its employees), and Patricia Hama-
moto, in her official capacity as Superintendent of the Hawaii
Department of Education (collectively “Hawaii DOE”). In
their amended complaint, the H. Family sought damages for
Hawaii DOE’s alleged violations of the Rehabilitation Act
§ 504.
Specifically, the H. Family alleged that, from 1994 to 1999,
Hawaii DOE denied Michelle and Natalie meaningful access
to the benefits of a public education in two key ways: (1) by
failing to provide the girls with reasonable accommodations
for their disabilities through autism-specific special education
services, and (2) by failing to design the girls’ Individualized
Education Programs (“IEPs”) to meet the girls’ needs as ade-
quately as the needs of non-disabled students were met. The
H. Family alleged that these failures were the result of the
Hawaii DOE’s deliberate indifference and therefore violated
the Rehabilitation Act § 504, giving rise to a private cause of
action for damages.
The district court granted summary judgment in favor of
Hawaii DOE. The H. Family appealed. For the reasons
explained in detail below, we reverse.
I. FACTUAL AND PROCEDURAL HISTORY
A. Undisputed Facts
The following facts are undisputed. Michelle and Natalie
both have autism. Because of their autism, both girls have sig-
12872 MARK H. v. HAMAMOTO
nificant barriers to learning. The girls are essentially non-
verbal and have a limited ability to have meaningful interac-
tions with others.
In 1994, Hawaii DOE and the Hawaii Department of
Health entered into the Felix consent decree. In the Felix
decree, the two state agencies recognized that they had vio-
lated the federal Individuals with Disabilities Education Act
(“IDEA”) and the Rehabilitation Act by failing to provide
necessary education and mental health services to qualified
handicapped children. The Felix decree requires the two agen-
cies to work together to provide the services necessary to
enhance the likelihood of positive learning outcomes for stu-
dents with disabilities, including autism. Ultimately, Hawaii
DOE is responsible for ensuring that its students receive
appropriate special education services.
In 1994, when Michelle was three years old, Hawaii DOE
found her eligible for special education services. That same
year, a Hawaii Department of Health psychologist diagnosed
Michelle with autism and informed Hawaii DOE of his diag-
nosis. The Department of Health psychologist recommended
that Hawaii DOE provide Michelle with numerous autism-
specific services.1 Hawaii DOE did not implement these rec-
ommendations.
Hawaii DOE also found Natalie eligible for special educa-
tion services in 1994, when Natalie was two years old. In
1995, Hawaii DOE identified Natalie as eligible for special
education services based on early childhood learning impair-
ment. That same year, Kaiser, the H. Family’s medical pro-
1
“Autism-specific services” as used in this opinion refers to the specific
mental health and special education services that Hawaii Department of
Health psychologists recommended that Michelle and Natalie receive
because of their autism (such as intensive behavioral therapy), as distin-
guished from the general special education services that the girls received
(such as placement in a special education class with a teacher who had no
special training in teaching children with autism).
MARK H. v. HAMAMOTO 12873
vider, diagnosed Natalie with autism. Hawaii DOE noted
Natalie’s autism diagnosis in her 1995 IEP.2
B. Disputed Facts
The H. Family made the following allegations in their
amended complaint, which Hawaii DOE disputed as either
untrue or not established by the record. At the time the girls
were diagnosed as autistic, they were capable of benefitting
from a public education by learning effective speech and
communication skills, but only with the help of autism-
specific services. Hawaii DOE knew that the girls needed
autism-specific services, were entitled to receive these ser-
vices, and that it was obligated to provide those services.
From 1994 to 1999, Hawaii DOE neither provided the girls
with the autism-specific services they needed to access the
benefits of a public education nor designed the girls’ IEPs to
meet the girls’ needs as adequately as the needs of non-
disabled students were met. The H. Family contends that
these failures were the result of the Hawaii DOE’s deliberate
indifference to the girls’ needs and their federally protected
rights.
The H. Family supported these allegations with reports and
other documentation prepared by Dr. Daniel B. LeGoff, a
licensed psychologist and pediatric neuro-psychologist who
worked for the Hawaii Department of Health both directly
and as a consultant. Dr. LeGoff provided an analysis of the
special needs of autistic children. According to Dr. LeGoff,
children with autism do not learn in the same ways as normal
children. Rather, children with autism need specialized teach-
ing that incorporates repetition, routine, and behavioral rein-
forcement. It is widely recognized by psychologists and other
mental health experts that children with autism typically need
2
Under the Individuals with Disabilities Education Act, public schools
are required to develop IEPs for each qualifying student with a disability
to address the student’s specific needs. 20 U.S.C. § 1414(d).
12874 MARK H. v. HAMAMOTO
to receive autism-specific services in order to learn and
develop. These autism-specific services include behavioral
therapies such as “Discrete Trial Training,” use of a dedicated
therapeutic aide in the classroom, and “structured teaching” pro-
grams.3 Children with autism who receive early, autism-
specific services typically experience much greater develop-
ment of their cognitive, adaptive, communication, and social
skills than children with autism who do not receive such ser-
vices.4
Dr. LeGoff reported that Hawaii DOE did not provide
either Michelle or Natalie with any autism-specific services
prior to 1998, when Michelle was six years old and Natalie
was five years old. Although Hawaii DOE did provide the
girls with some speech and occupational therapy, those ser-
vices were delivered without consultation with autism or men-
tal health specialists.
In 1998, four years after the first Department of Health psy-
chologist recommended that Hawaii DOE provide Michelle
with numerous autism-specific services, Dr. LeGoff provided
Hawaii DOE with specific recommendations regarding the
autism-specific services Michelle and Natalie needed.
According to Dr. LeGoff, when he first made his recommen-
dations to the girls’ school, the school principal refused to
include these recommendations in the girls’ IEPs.
In 1999, the H. Family filed an administrative action
against Hawaii DOE under IDEA and the Rehabilitation Act
§ 504. The hearing officer in that action made a number of
3
This is an illustrative, not an exhaustive, list. Additionally, although
Dr. LeGoff, and other psychologists, agree that Michelle and Natalie
needed these services because of their autism and that “best practices” for
teaching children with autism include these services, we recognize the
possibility that children with other disabilities might also need some of
these same services.
4
In this context, “early” means preschool age and younger.
MARK H. v. HAMAMOTO 12875
factual findings relevant to this appeal. The hearing officer
found that from 1994 to 1998, Hawaii DOE did not provide
autism-specific services to the girls, although such services
were available. Additionally, the hearing officer found that
Hawaii DOE did not include autism-specific services in the
girls’ IEPs before 1999. Based on these facts, the hearing offi-
cer determined that prior to the hearing, the girls had not
received “such services as are necessary to permit the child[-
ren] to benefit” from their education.
The H. Family’s allegations also find support in the deposi-
tion testimony of several individuals. Paula Maruyama,
Michelle’s preschool teacher, testified that Michelle and Nata-
lie should have had intensive instruction throughout the
school year, but did not receive it. Michelle and Natalie’s
father testified at his deposition that from 1994 to 1998, the
girls “were warehoused and put in a classroom with some-
body who sat on the other side of the room and did very lit-
tle.”
According to Pauline Kokubun, a Hawaii DOE employee
responsible for coordinating services for children with disabil-
ities, from 1994 to 1999, Hawaii DOE was providing other
autistic students with autism-specific services, including
assistance from in-classroom therapeutic aides and Discrete
Trial Training. Kokubun’s account is corroborated by a report
prepared by Dr. LeGoff that explains that at least three
Department of Health autism specialists were actively provid-
ing autism-specific interventions to other Hawaii DOE stu-
dents during this time period.
Eventually, all the relevant Hawaii DOE employees agreed
that the Michelle and Natalie needed, and could receive, the
autism-specific services that Dr. LeGoff recommended. By
2003, after the administrative hearing, the girls had a teacher
trained in autism-specific instruction, attended special after-
school mental health programs, and were receiving behavioral
intervention services. Since Hawaii DOE began providing
12876 MARK H. v. HAMAMOTO
these services, the girls have made some developmental prog-
ress, but their social and communication skills, as well as their
ability to have meaningful interpersonal interactions, remain
limited.
Dr. LeGoff concludes that it is likely that the girls would
have made significantly more progress had they received the
appropriate services sooner. According to Dr. LeGoff, Hawaii
DOE’s failure to provide appropriate autism-specific services
to the girls from 1994 to 1999 amounted to a “tragic loss” of
developmental opportunity for the girls. Likewise, at the
administrative hearing, several experts testified that Hawaii
DOE’s failure to provide Michelle and Natalie with timely
autism-specific services caused irreparable harm to both girls.
C. Procedural History
The procedural history in this case is replete with evidence
of the girls’ autism and Hawaii DOE’s willful refusal to
acknowledge it and provide autism-specific services.
As noted above, in 1999, the H. Family filed an administra-
tive action against Hawaii DOE claiming violations of IDEA
and the Rehabilitation Act § 504.5 In that action, an adminis-
trative hearing officer found that Hawaii DOE had denied
Michelle and Natalie a Free Appropriate Public Education
(“FAPE”) under IDEA and that the girls’ IEPs were inade-
5
IDEA and the Rehabilitation Act are both federal anti-discrimination
statutes that provide causes of action for children with disabilities. Mark
H. v. Haw. Dep’t of Educ., 513 F.3d 922, 928-29 (9th Cir. 2008). “While
the IDEA focuses on the provision of appropriate public education to dis-
abled children, the Rehabilitation Act of 1973 more broadly addresses the
provision of state services to disabled individuals.” Id. at 929. The reme-
dies available under IDEA are limited and do not include compensatory
damages. Id. at 929. The remedies available under Rehabilitation Act
§ 504 are broader and include compensatory damages. Id. at 930.
MARK H. v. HAMAMOTO 12877
quate. The hearing officer ordered Hawaii DOE to remedy the
violations.6
In 2000, the H. Family sued Hawaii DOE in federal district
court, seeking damages for alleged violations of Rehabilita-
tion Act § 504. The H. Family’s theory was that because both
IDEA and the regulations implementing Rehabilitation Act
§ 504 guarantee children with disabilities the right to a FAPE,
they could prevail in their claim for damages under the Reha-
bilitation Act by establishing that Hawaii DOE violated
Michelle and Natalie’s right to a FAPE under IDEA.
In the 2000 case, the district court held that there was no
private right of action to enforce the FAPE required by the
regulations implementing the Rehabilitation Act § 504. The
district court further held that the H. Family failed to establish
a violation of § 504 because “the plaintiffs do not present any
evidence that they were intentionally discriminated against
solely by reason of their disability.”
The H. Family appealed. In that appeal we held that
although there is a private right of action under Rehabilitation
Act § 504, simply establishing a violation of the right to a
FAPE under IDEA is not sufficient to prevail in a § 504 claim
for damages. Mark H., 513 F.3d at 924-25. Plaintiffs may pre-
vail in a § 504 claim for damages, we held, by establishing
that an organization that receives federal funds violated § 504
“intentionally or with deliberate indifference.” Id. at 938.
Plaintiffs may establish that an organization violated § 504 by
showing that the public entity discriminated against,
excluded, or denied the benefits of a public program to a qual-
ified person with a disability. Id. at 937. This includes show-
ing that the public entity denied the plaintiff a reasonable
accommodation. Id. A violation of one of the regulations
6
The H. Family do not contend that Hawaii DOE failed to comply with
that administrative order, which was not appealed, or that Michelle and
Natalie are currently being denied a FAPE as defined by the IDEA.
12878 MARK H. v. HAMAMOTO
implementing § 504 may support a claim for damages if the
violation denied the plaintiff meaningful access to a public
benefit, and the defendant organization acted with deliberate
indifference. Id. at 938-39. Having so clarified the legal stan-
dards, we remanded with the direction that the H. Family be
given the opportunity to amend their complaint. Id. at 939.
In 2008, the H. Family filed an amended complaint (the
complaint at issue in this appeal). In their amended complaint,
the H. Family alleged that Hawaii DOE violated Rehabilita-
tion Act § 504 by: (1) failing to provide the girls with the rea-
sonable accommodation of their disabilities in the form of
autism-specific special education services, and (2) failing to
design the girls’ IEPs to meet the girls’ needs as adequately
as the needs of non-disabled students were met, as required by
34 C.F.R. § 104.33(b)(1)(i). Additionally, the H. Family
alleged, Hawaii DOE acted with deliberate indifference.
Hawaii DOE moved for summary judgment. The district
court found that Hawaii DOE’s obligation to provide Michelle
and Natalie meaningful access to a public education under
Rehabilitation Act § 504 required only that Hawaii DOE “de-
sign education programs for [Michelle and Natalie] that are
intended to meet their educational needs to the same degree
that the needs of nondisabled students are met, not more. Fur-
ther, the district court found that there was “no genuine issue
of material fact as to whether the girls were denied ‘meaning-
ful access’ ” because the H. Family failed to present specific
facts comparing the design of their children’s education with
that of non-disabled students. The district court also found
that the H. Family failed to present a genuine issue of material
fact as to whether Hawaii DOE acted with deliberate indiffer-
ence. On these bases, the district court granted Hawaii DOE’s
motion for summary judgment. The H. Family timely
appealed.
II. STANDARD OF REVIEW
This court reviews a grant of summary judgment de novo.
Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.
MARK H. v. HAMAMOTO 12879
2000). “[This] review is governed by the same standard used
by the trial court under Federal Rule of Civil Procedure
56(c).” Delta Sav. Bank v. United States, 265 F.3d 1017, 1021
(9th Cir. 2001) (internal citations omitted). Under this stan-
dard, “[w]e may affirm a summary judgment only if, viewing
the evidence in the light most favorable to the party against
whom it is granted, we find no genuine issue of material fact,
and we find that the prevailing party is clearly entitled to
judgment as a matter of law.” Tribal Vill. of Akutan v. Hodel,
869 F.2d 1185, 1189 (9th Cir. 1988). “All justifiable factual
inferences must be drawn in [ ] favor [of the nonmoving
party], and we must reverse the grant of summary judgment
if any rational trier of fact could resolve a material factual
issue in [ ] favor [of the nonmoving party].” Sprint PCS
Assets, L.L.C. v. City of Palos Verdes Estates, 583 F.3d 716,
720 (9th Cir. 2009).
III. DISCUSSION
[1] Rehabilitation Act § 504 forbids organizations that
receive federal funding, including public schools, from dis-
criminating against people with disabilities. 29 U.S.C.
§ 794(b)(2)(B); Mark H., 513 F.3d at 929; Bird v. Lewis &
Clark Coll., 303 F.3d 1015, 1020 (9th Cir. 2002). Section 504
provides that “no otherwise qualified individual with a dis-
ability . . . 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 activ-
ity receiving Federal financial assistance.” 29 U.S.C.
§ 794(a); see also 34 C.F.R. § 104.4. If an organization that
receives federal funds violates Rehabilitation Act § 504 inten-
tionally or with deliberate indifference, it may be liable for
compensatory damages. See Mark H., 513 F.3d at 930, 938.
A. Meaningful Access/Reasonable Accommodation
[2] An organization that receives federal funds violates
§ 504 if it denies a qualified individual with a disability a rea-
12880 MARK H. v. HAMAMOTO
sonable accommodation that the individual needs in order to
enjoy meaningful access to the benefits of public services. See
Alexander v. Choate, 469 U.S. 287, 301-02 & n.21 (1985);
Mark H., 513 F.3d at 937; Bird, 303 F.3d at 1020, 1022.7
Michelle and Natalie’s ages and disabilities render them qual-
ified individuals as defined by 34 C.F.R. § 104.3(j), (l)(2),
(m). Section 504 applies to Hawaii DOE because it is a public
school system. See 29 U.S.C. § 794(b)(2)(B); 20 U.S.C.
§ 7801(26)(A). Thus, Hawaii DOE is liable for damages for
violating § 504 if it failed to provide Natalie or Michelle a
reasonable accommodation that they needed to enjoy mean-
ingful access to the benefits of a public education, and did so
with deliberate indifference. See Mark H., 513 F.3d at 937-38;
see also 29 U.S.C. § 794(a); 34 C.F.R. § 104.4.
1. Reasonable Accommodation
Hawaii DOE violated the Rehabilitation Act § 504 by
denying Michelle and Natalie reasonable accommodation if:
(1) the girls needed autism-specific services to enjoy mean-
ingful access to the benefits of a public education, (2) Hawaii
was on notice that the girls needed those autism-specific ser-
vices, but did not provide those services, and (3) autism-
specific services were available as a reasonable accommoda-
tion. See, e.g., Duvall v. County of Kitsap, 260 F.3d 1124,
1136-38 (9th Cir. 2001) (holding that there were genuine
issues of fact regarding reasonable accommodation where
there was some evidence that a hearing impaired plaintiff
needed videotext display to follow court proceedings and that
defendants denied plaintiff’s request for videotext display
without adequately investigating whether videotext display
was available as a reasonable accommodation).
Reasonable accommodation does not require an organiza-
tion to make fundamental or substantial alterations to its pro-
7
Punitive damages are not available as a remedy for violations of Reha-
bilitation Act § 504. Mark H., 513 F.3d at 930.
MARK H. v. HAMAMOTO 12881
grams. See Choate, 469 U.S. at 300-01; Mark H., 513 F.3d at
937. Reasonableness “depends on the individual circum-
stances of each case, and requires a fact-specific, individual-
ized analysis of the disabled individual’s circumstances and
the accommodations that might allow him to [enjoy meaning-
ful access to the program.]” Vinson v. Thomas, 288 F.3d
1145, 1154 (9th Cir. 2002) (internal citation and quotation
marks omitted). An accommodation is reasonable if it is “rea-
sonable on its face, i.e., ordinarily or in the run of cases.” U.S.
Airways, Inc. v. Barnett, 535 U.S. 391, 402 (2002).
“[M]ere speculation that a suggested accommodation is not
feasible falls short of the reasonable accommodation require-
ment; [the Rehabilitation Act] create[s] a duty to gather suffi-
cient information from the disabled individual and qualified
experts as needed to determine what accommodations are nec-
essary.” Duvall, 260 F.3d at 1136 (internal quotation marks
omitted).
Here, the H. Family alleged that because of their disabili-
ties, neither Michelle nor Natalie could enjoy meaningful
access to the benefits of a public education without autism-
specific services. The H. Family also alleged that, from 1994
to 1999, Hawaii DOE was on notice that the girls needed the
services, but failed to provide them. The H. Family further
alleged that those autism-specific services were available as
a reasonable accommodation. There is evidence supporting
each of these allegations.
[3] First, evidence supports the allegation that because of
their autism, Michelle and Natalie could not access the bene-
fits of a public education without receiving autism-specific
services. For example, an administrative hearing officer found
that from 1994 to 1998, Michelle and Natalie did not receive
“such [special education] services as are necessary to permit
[them] to benefit” from their education. Additionally, Dr.
LeGoff reported that to benefit from their education, the girls
needed autism-specific services such as Discrete Trial Train-
12882 MARK H. v. HAMAMOTO
ing and the full-time assistance of a specially trained thera-
peutic aide.
[4] Second, evidence supports the allegation that from
1994 to 1999, Hawaii DOE was on notice that the girls
needed the autism-specific services, but failed to provide
those services. For example, in 1994 a Hawaii Department of
Health psychologist reported to Hawaii DOE that Michelle
was autistic and needed to be provided with numerous autism-
specific services. By 1995, Hawaii DOE knew that Natalie
had also been diagnosed as autistic. These facts could give
rise to an inference that Hawaii DOE also knew that Natalie
needed autism-specific services.
[5] Additionally, expert and percipient witnesses testified
that Hawaii DOE did not provide Michelle and Natalie with
those autism-specific services. The administrative hearing
officer likewise found that Hawaii DOE did not provide any
autism-specific services to the girls from 1994 to 1999.
[6] Finally, evidence supports the allegation that such
autism-specific services were available as a reasonable
accommodation. For example, Dr. LeGoff testified that
Hawaii DOE provided such services to other students with
autism. Additionally, Hawaii DOE employee Pauline Koku-
bun testified that other autistic children in the school system
were receiving autism-specific services at the same time that
Michelle and Natalie were not receiving such services.
[7] In sum, the H. Family made specific allegations that:
(1) the girls’ disability made it impossible for them to enjoy
meaningful access to the benefits of a public education with-
out autism-specific services; (2) Hawaii DOE was on notice
that the girls needed those services, but failed to provide
them; and (3) those services were available as a reasonable
accommodation. Evidence supports each of these allegations.
Accordingly, the H. Family raised genuine issues of material
fact as to whether Hawaii DOE denied the girls meaningful
MARK H. v. HAMAMOTO 12883
access to the benefits of a public education by denying them
reasonable accommodation.
2. Deliberate Indifference
[8] Hawaii DOE acted with deliberate indifference if it (1)
“[had] knowledge that a harm to a federally protected right is
substantially likely,” and (2) “fail[ed] to act upon that likeli-
hood.” Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir.
2002). Hawaii DOE had knowledge that a harm to a federally
protected right was substantially likely if Hawaii DOE knew
that Michelle and Natalie needed accommodation of autism-
specific services. See id. Hawaii DOE failed to act upon that
likelihood if it failed to adequately investigate whether those
autism-specific services were a reasonable accommodation.
See id.; Duvall, 260 F.3d at 1139-40. Thus, Hawaii DOE
acted with deliberate indifference if it knew that Michelle and
Natalie needed autism-specific services in order to enjoy
meaningful access to the benefits of a public education and
failed to investigate whether those services were available as
a reasonable accommodation.
The H. Family has presented evidence that raises genuine
issues of material fact as to whether Hawaii DOE knew that
Michelle and Natalie needed autism-specific services to
access the benefits of a public education, and as to whether
Hawaii DOE failed to adequately investigate whether those
services were available as a reasonable accommodation.
[9] First, as discussed above, the H. Family has supported
their allegation that from 1994 to 1999, Hawaii DOE knew
that Michelle and Natalie needed autism-specific services in
order to access the benefits of a public education.
[10] Second, the evidence presented supports the allega-
tion that although Hawaii DOE was aware that Michelle and
Natalie needed these accommodations, Hawaii DOE failed to
adequately investigate whether such accommodations were
12884 MARK H. v. HAMAMOTO
available. For example, there is evidence that Hawaii DOE
was providing such autism-specific services to other autistic
children during this same time period. If a jury concludes that
Hawaii DOE was providing autism-specific services to other
students, and that Hawaii DOE was on notice that Michelle
and Natalie needed such services, those conclusions could
easily support the inference that Hawaii DOE did not ade-
quately investigate whether it could provide autism-specific
services to Michelle and Natalie.
[11] Accordingly, the H. Family raised a genuine issue of
material fact as to whether Hawaii DOE acted with deliberate
indifference.
3. Hawaii DOE’s Arguments
a. Meaningful Access
Hawaii DOE argues that the H. Family cannot show that it
denied Michelle and Natalie meaningful access by showing
that Hawaii DOE failed to provide reasonable accommoda-
tion. Hawaii DOE supports this argument in part by pointing
to 34 C.F.R. § 104.33, a regulation implementing Rehabilita-
tion Act § 504. Regulation § 104.33 requires public schools to
design programs for students with disabilities to meet their
“individual educational needs . . . as adequately as the needs
of non[-disabled] persons are met.” 34 C.F.R.
§ 104.33(b)(1)(i). This regulatory requirement, Hawaii DOE
argues, is the only way in which a school district may deny
a student meaningful access. That one regulation identifies a
specific requirement for compliance with the Rehabilitation
Act § 504, however, does not negate the broader rule that a
federally funded entity violates the Rehabilitation Act § 504
if it denies a qualified disabled person the reasonable accom-
modation that the person needs in order to enjoy meaningful
access to a program or service.
Hawaii DOE also argues that the H. Family cannot rely on
reasonable accommodation cases from other contexts, such as
MARK H. v. HAMAMOTO 12885
college or graduate school, to determine what constitutes a
reasonable accommodation in preschool or elementary school.
Although it might be improper to rely on specific examples of
what amounts to reasonable accommodation from a different
context, there is nothing improper in extrapolating the reason-
able accommodation standard, or how that standard is applied,
from a different context. See, e.g., Mark H., 513 F.3d at 937-
38 (drawing on cases from other contexts to outline the mean-
ingful access and reasonable accommodation standards).
Finally, with respect to meaningful access, Hawaii DOE
argues that the H. Family cannot rely solely on the fact that
Hawaii DOE violated Michelle and Natalie’s rights to a FAPE
under IDEA to establish liability under Rehabilitation Act
§ 504. This is an accurate statement of law, but it is irrelevant
to this case because the H. Family does not merely rely on
Hawaii DOE’s IDEA violations. Instead, as outlined above,
the H. Family has alleged that Hawaii DOE failed to provide
Michelle and Natalie with the reasonable accommodation that
would have allowed the girls to enjoy meaningful access to
the benefits of a public education.
b. Deliberate Indifference
[12] Hawaii DOE also argues that the H. Family failed to
raise a genuine issue of material fact with respect to deliberate
indifference. Hawaii DOE advances two theories in support of
this argument: (1) that the H. Family relied solely on the fact
that Hawaii DOE violated IDEA to show that Hawaii DOE
acted with deliberate indifference, and (2) that Hawaii DOE
was merely negligent, not deliberately indifferent, to Michelle
and Natalie’s federally protected rights. These arguments fail.
First, the H. Family has done more than argue that Hawaii
DOE violated IDEA. Second, Hawaii DOE’s assertion that it
was merely negligent, rather than deliberately indifferent,
only highlights that there is a dispute of fact; it does not
resolve the question in Hawaii DOE’s favor.
12886 MARK H. v. HAMAMOTO
4. Summary Judgment Was Improper
[13] In sum, the H. Family introduced evidence creating
material issues of fact as to whether Hawaii DOE denied
Michelle and Natalie meaningful access to the benefits of a
public education by failing to provide them with reasonable
accommodation and did so with deliberate indifference.
Accordingly, summary judgment on the H. Family’s § 504
meaningful access/reasonable accommodation claim was
improper.
B. Regulation § 104.33
The H. Family also advanced a Rehabilitation Act § 504
claim for damages against Hawaii DOE based on Hawaii
DOE’s alleged violation of 34 C.F.R. § 104.33(b)(1)(i).8 The
H. Family can prevail on this claim by establishing that:
Hawaii DOE violated Regulation § 104.33(b)(1)(i), that viola-
tion denied Michelle and Natalie meaningful access to the
benefit of a public education, and Hawaii DOE acted with
deliberate indifference. See Mark H., 513 F.3d at 937-39.
1. Violation of 34 C.F.R. § 104.33(b)(1)(i)
[14] 34 C.F.R. § 104.33(a) requires that Hawaii DOE “pro-
vide a free appropriate public education to each qualified
handicapped person who is in the recipient’s jurisdiction,
regardless of the nature or severity of the person’s handicap.”
Regulation § 104.33(b)(1)(i) explains that in order to provide
a free appropriate public education, Hawaii DOE must design
the “regular or special education and related aids and ser-
vices” provided to students with disabilities “to meet [the]
individual educational needs of [those students] as adequately
as the needs of non[-disabled] persons are met.” 34 C.F.R.
§ 104.33(b)(1)(i).
8
The United States Department of Education developed regulations to
implement the Rehabilitation Act. Mark H., 513 F.3d at 929. Regulation
§ 104.33 is one of those regulations. See 34 C.F.R. § 104.33.
MARK H. v. HAMAMOTO 12887
The H. Family alleged that Hawaii DOE violated 34 C.F.R
§ 104.33(b)(1)(i) because the design of Michelle and Natalie’s
IEPs was so inadequate that Michelle and Natalie were unable
to access any of the benefits of a public education. Presum-
ably, at a minimum, Hawaii DOE’s education programs for its
non-disabled students allow those students to access at least
some benefits of a public education. Thus, the H. Family
alleged, Hawaii DOE did not design Michelle and Natalie’s
IEPs to meet their needs as adequately as the needs of other
students are met.
As discussed in detail above, the evidence presented raises
a genuine issue of material fact as to whether Michelle and
Natalie needed autism-specific services in order to access the
benefits of public education. The evidence also supports the
allegation that the IEPs that Hawaii DOE provided Michelle
and Natalie were not designed to provide those autism-
specific services. For example, the administrative hearing
officer found that, before 1999, the girls’ IEPs did not include
autism-specific services. Additionally, Dr. LeGoff reported
that Hawaii DOE initially refused to include the autism-
specific services that he recommended in the girls’ IEPs.
[15] Accordingly, the H. Family raised genuine issues of
material fact as to whether Hawaii DOE failed to design
Michelle’s and Natalie’s IEPs to include the autism-specific
services necessary to meet Michelle’s and Natalie’s educa-
tional needs as adequately as the needs of non-disabled stu-
dents were met. This raises a plausible § 104.33(b)(1)(i)
claim.
2. Meaningful Access
In Mark H., this court observed that “a disabled individual
may be denied ‘meaningful access’ to public education when
that education is not designed to meet her needs as adequately
as the needs of other students are met.” Mark H., 513 F.3d at
938 n.14. Here, if, as the H. Family alleged, Hawaii DOE vio-
12888 MARK H. v. HAMAMOTO
lated § 104.33(b)(1)(i) by failing to design Michelle’s and
Natalie’s IEPs so as to provide the girls any access to the ben-
efits of a public education, such a violation would also likely
establish the denial of meaningful access. Consequently, the
H. Family raised genuine issues of material fact as to whether
Hawaii DOE violated Regulation § 104.33(b)(1)(i) in such a
way that the violation denied Michelle and Natalie meaning-
ful access to the benefits of a public education.
3. Deliberate Indifference
The H. Family can establish that Hawaii DOE acted with
deliberate indifference by showing that: (1) Hawaii DOE
knew that its actions would likely result in a violation of
Michelle and Natalie’s federally protected right to have edu-
cation programs that were designed to meet their needs as
adequately as the needs of other students are met and (2)
Hawaii DOE failed to act upon that likelihood. See Lovell,
303 F.3d at 1056.
Hawaii DOE knew that it was obligated by 34 C.F.R.
§ 104.33(b)(1)(i) to design Michelle and Natalie’s IEPs to
meet their needs as adequately as the as the needs of other stu-
dents are met. The H. Family alleged that in order for
Michelle and Natalie’s IEPs to be designed to meet their
needs as adequately as the needs of other students are met,
Hawaii DOE needed to design Michelle and Natalie’s IEPs to
include autism-specific services. The H. Family further
alleged that Hawaii DOE did not design Michelle and Nata-
lie’s IEPs to include autism-specific services. As outlined
above, evidence supports these allegations.
Thus, the H. Family raised genuine issues of material fact
as to whether Hawaii DOE knew that its failure to design
Michelle and Natalie’s IEPs to include autism-specific ser-
vices was likely to result in a violation of Michelle and Nata-
lie’s federally protected rights, and failed to act upon that
likelihood. Accordingly, the H. Family raised genuine issues
MARK H. v. HAMAMOTO 12889
of material fact as to whether Hawaii DOE violated 34 C.F.R.
§ 104.33(b)(1)(i) with deliberate indifference.
4. Summary Judgment Was Improper
[16] In sum, the H. Family introduced evidence raising
genuine issues of material fact as to whether: (1) Hawaii DOE
violated § 104.33(b)(1)(i) such that it denied Michelle and
Natalie meaningful access to the benefits of a public educa-
tion; and (2) Hawaii DOE acted with deliberate indifference.
Thus, the district court erred in granting Hawaii DOE’s
motion for summary judgment on the H. Family’s meaningful
access/Regulation § 104.33(b)(1)(i) claim.
C. Reassignment
Judge Real has presided over this case twice now, even
though the case was originally assigned to him through his
temporary assignment to the District of Hawaii. Accordingly,
we direct the Clerk of the United States District Court for
Hawaii to reassign this case to a different judge. See D’Lil v.
Best W. Encina Lodge & Suites, 538 F.3d 1031, 1040-41 (9th
Cir. 2008) (holding that reassignment is appropriate in
unusual circumstances).
IV. CONCLUSION
For all the above-outlined reasons, the district court erred
when it granted Hawaii DOE’s motion for summary judgment
on the H. Family’s claims that Hawaii DOE violated Rehabili-
tation Act § 504 by: (1) failing to provide the girls with the
reasonable accommodation of autism-specific special educa-
tion services, and (2) failing to design the girls’ IEPs to meet
the girls’ needs as adequately as the needs of non-disabled
students are met as required by 34 C.F.R. § 104.33(b)(1)(i).
Accordingly, we reverse the district court’s grant of summary
judgment on those claims, and remand for further proceedings
consistent with this opinion.
12890 MARK H. v. HAMAMOTO
[17] Because of the unusual circumstances in this case, we
direct the Clerk of the United States District Court for Hawaii
to reassign this case to a different judge.
REVERSED, REMANDED, AND REASSIGNED.