Ninth Circuit Decision Requires Parents to Raise Section 504 Discrimination Claims in Due Process Complaints

January 2009

In J.G. v. Douglas County School District (9th Cir. 2008) 2008 WL 5377696, the Ninth Circuit Court of Appeals held that parents are required to allege claims of discrimination under Section 504 of the Rehabilitation Act of 1973 (“Section 504”) in order to preserve such claims for appeal.  This case arose following a school district’s initial assessment of twin autistic brothers.  In the underlying due process hearing and subsequent appeal, the students’ parents argued that a delay in the students’ initial assessment denied them a free, appropriate public education (“FAPE”) as mandated by the Individuals with Disabilities Education Improvement Act (“IDEA”).  On appeal, the parents contended for the first time that the school district’s offer to place the twins in a preschool for developmentally delayed students constituted discrimination under Section 504.

With respect to the discrimination claim under Section 504, the school district sought summary judgment, arguing that the parents’ failure to raise the claim during the due process hearing prevented them from raising it before the District Court.  The District Court agreed and granted the school district’s motion.

Before the Ninth Circuit, the parents contended that their claim of discrimination could not be heard in an IDEA due process hearing.  The Ninth Circuit disagreed, holding that IDEA due process hearings are an appropriate forum for claims “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.”  (20 U.S.C. § 1415(b)(6).)  The Ninth Circuit therefore vacated the grant of summary judgment, and remanded the issue to the District Court with instructions to dismiss the discrimination claim for lack of jurisdiction.

The Ninth Circuit ruling requires parents to raise claims of discrimination under Section 504 during the initial due process hearing or risk forfeiting such claims in any subsequent appeal to the federal courts.  However, it does not appear that the Ninth Circuit intended to expand the jurisdictional limits of due process proceedings.  While the Ninth Circuit suggested that a claim of discriminatory placement is a “matter relating to the identification, evaluation, or educational placement of the child” pursuant to 20 U.S.C. § 1415(b)(6), it did not suggest that parents raising such a claim would be able to seek monetary damages available under Section 504 within the administrative process.  The Ninth Circuit’s opinion seems to imply that, even when raised, discrimination claims are unlikely to be heard in a due process proceeding -- that the act of raising such claims serves little purpose other than to put the school district on notice of such claims.

In light of the Ninth Circuit’s ruling we expect to see parents raising Section 504 discrimination claims in requests for due process hearings.  It is not yet clear how OAH will treat these claims.

This F3 NewsFlash is a summary only and not legal advice.  We recommend that you consult with legal counsel to determine how this case may apply to your specific facts and circumstances.   Information on a free NewsFlash subscription can be found at

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