                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 16a0079n.06

                                            No. 14-6213

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                  Feb 05, 2016
R.K., by his next friends, J.K. and R.K.,
                                    )
                                    )                                         DEBORAH S. HUNT, Clerk
    Plaintiff-Appellant,            )
                                    )
v.                                  )                            ON APPEAL FROM THE
                                    )                            UNITED STATES DISTRICT
BOARD OF EDUCATION OF SCOTT COUNTY, )                            COURT FOR THE EASTERN
KENTUCKY,                           )                            DISTRICT OF KENTUCKY
                                    )
    Defendant-Appellee.             )
                                    )



       Before: GUY, MOORE, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. R.K.’s parents believe that the Scott County school board

discriminated against their diabetic son by moving him out of his neighborhood school to a

different school that had a full-time nurse on staff. They brought this suit, asserting claims under

the Americans with Disabilities Act, the Rehabilitation Act, and state law, among other things.

The district court granted summary judgment to the school board. We affirm.

                                                 I.

       R.K. was diagnosed with Type-1 diabetes at the age of four. As a result, he needs

periodic insulin injections and must monitor his sugar intake throughout the day. In March 2009,

R.K.’s parents tried to enroll him in kindergarten for the coming school year at Eastern

Elementary. Eastern is one of five elementary schools in Scott County and the school that

children in R.K.’s neighborhood were zoned to attend. R.K.’s parents told school administrators
No. 14-6213, R.K. v. School Board of Scott County


that R.K. was diabetic and needed daily insulin injections. At the time, R.K. used a pen needle

for his injections; the device resembles a large ink pen with a needle on one end. The user must

dial the appropriate insulin dosage on the device, insert the needle into his skin, and press a

button to deliver the insulin dose. R.K.’s parents also submitted a Preventative Health Care

Examination Form, prepared by R.K.’s doctor (and required by the Commonwealth of

Kentucky), that stated: “For [R.K.’s] diabetes, will require frequent finger stick glucose checks

+ nurse to help with insulin administration.”

       After a series of meetings with R.K.’s parents, the school board concluded that R.K.

should attend a school with a full-time nurse on staff. That left Western Elementary and Anne

Mason Elementary as the only options for R.K. His parents thought that R.K. did not need a

nurse’s help with his injections, but that if he did, a nurse could come from one of the other

schools to Eastern during lunch. The school board disagreed and enrolled R.K. at Anne Mason.

       In September 2009, during R.K.’s kindergarten year, R.K. transitioned from the pen

needle to an insulin pump. The pump automatically delivers insulin doses over the course of the

day. R.K.’s physician prepared a diabetes-management plan which provided that R.K. “must be

supervised by an adult with dose administration via pump.” R.K.’s parents renewed their request

to transfer R.K. to Eastern.

       In December 2009, the school board met with R.K.’s parents. At the meeting, school

district nurses Rose Lewis and Tony Harrison expressed concerns about allowing untrained staff

to supervise R.K. Lewis also noted that the insulin pump is an infusion, which she did not

recommend delegating to someone other than a nurse. As a result, the school board denied

R.K.’s request to transfer. R.K. finished his kindergarten year at Anne Mason.




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No. 14-6213, R.K. v. School Board of Scott County


       The following school year, 2010-2011, R.K.’s parents sought to enroll him at Eastern for

first grade. Prior to the start of the school year, the school board met with R.K.’s parents and

considered an updated diabetes-management plan from R.K.’s physician. According to the new

plan, R.K. was “independent in manipulating his pump” and only needed help counting

carbohydrates—help that, according to R.K.’s doctor, could be rendered “by any trained

layperson” and “[d]oes not require nurse.” Despite the physician’s note, the school board

continued to think that R.K. needed a nurse’s supervision after considering R.K.’s independence

in using the insulin pump, his maturity, variations in his blood-sugar levels, and the number of

times he required treatment during the day. R.K. remained at Anne Mason for the first grade.

       By second grade, R.K. was fully independent in using his insulin pump, so the school

board enrolled him at Eastern as his parents requested. Two months into the school year,

however, R.K.’s family moved to a different school zone.

       In the middle of the transfer dispute, R.K. (through his parents) sued the school board and

superintendent. R.K. claimed that the school board violated the ADA, the Rehabilitation Act, the

Fourteenth Amendment, and the Kentucky Civil Rights Act by sending him to Anne Mason. As

remedies, he sought injunctive relief and money damages. The district court granted summary

judgment to the school board and the superintendent on all claims. R.K. appealed. We affirmed

the grant of summary judgment to the superintendent, but vacated the grant of summary

judgment to the board and remanded for further discovery. R.K. ex rel J.K. v. Bd. of Educ. of

Scott Cnty., 494 F. App’x 589 (6th Cir. 2012). After discovery, the district court again granted

summary judgment to the school board. R.K. now appeals as to his claims under the ADA,

Rehabilitation Act, and Kentucky Civil Rights Act.




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No. 14-6213, R.K. v. School Board of Scott County


                                                  II.

       We review de novo the district court’s grant of summary judgment. Gradisher v. City of

Akron, 794 F.3d 574 (6th Cir. 2015). We may affirm on any grounds supported by the record.

Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 362 (6th Cir. 2012).

       As applied here, the ADA and Rehabilitation Act cover largely the same ground. S.S. v.

E. Ky. Univ., 532 F.3d 445, 452-53 (6th Cir. 2008). In addition, the Kentucky Civil Rights Act

mirrors the ADA and Rehabilitation Act. Brohm v. JH Prop. Inc., 149 F.3d 517, 520 (6th Cir.

1998); Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky. 2003). Thus, we analyze all

three claims together.

       The parties devote the bulk of their argument to whether R.K. has a substantive right to

attend his neighborhood school under the Rehabilitation Act and ADA, and if so whether the

school board violated that right. But the parties overlook another element of R.K.’s claims,

which is whether he can obtain the remedies he seeks.

       R.K. seeks two remedies: First, he seeks to enjoin the school board from denying him an

“educational opportunity” or “singling him out for disparate treatment” because of his diabetes.

In March 2014, however, Kentucky amended KRS § 158.838 to provide that “a school district

shall permit a student who has diabetes . . . to attend the same school the student would attend if

the student did not have diabetes,” and that the school district “shall not prohibit a student has

diabetes . . . from attending any school on the sole basis that . . . [t]he school does not have a full-

time nurse.” KRS § 158.838(8)(a). Thus, the new statute already forbids the actions that R.K.

seeks to enjoin. Moreover, for years now, the school board undisputedly has not “singled out”

R.K. for disparate treatment based on his diabetes. R.K. presents no evidence to suggest that this

will change any time soon. Thus, his request for injunctive relief is moot.



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No. 14-6213, R.K. v. School Board of Scott County


          Second, R.K. seeks money damages. The parties agree that, to obtain money damages

under the ADA and the Rehabilitation Act, R.K. must show that the school board acted with

“deliberate indifference” towards his federally-protected rights. See generally Duvall v. County

of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001). (We assume without deciding that the parties are

correct on this point, see Hill v. Bradley Cnty. Bd. of Educ., 295 F. App’x 740, 742 (6th Cir.

2008)).     A party acts with deliberate indifference if it disregards a “known or obvious

consequence” of its actions, namely that its actions will violate the plaintiff’s federally-protected

rights. See Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 410-11 (1997).

Here, R.K. points to no evidence that the school board knew that it would likely violate his rights

when it assigned him to a school with a full-time nurse. That is true even though R.K. had two

opportunities to conduct discovery—both before his first appeal and before this one. This is not

a case where a school board ignored a student’s request for help. Rather, the student’s parents

simply disagreed with the school as to whether a nurse was necessary to provide it. Thus, as a

matter of law, R.K. is not entitled to damages on his federal claims.

          We analyze claims under the Kentucky Civil Rights Act the same way we analyze claims

under the federal statutes. See Bryson v. Regis Corp., 498 F.3d 561, 574 (6th Cir. 2007). R.K.’s

evidence (or lack thereof) is the same for his state and federal claims. R.K. therefore cannot

recover damages under the Kentucky Civil Rights Act either.

          Because R.K. is not entitled to any of the relief he seeks, we have no occasion to reach

the question whether any of the anti-discrimination statutes guarantees a right to attend one’s

neighborhood school.

                                           *       *     *

          The district court’s judgment is affirmed.



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No. 14-6213, R.K. v. School Board of Scott County


       KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in

part. I agree that R.K.’s request for injunctive relief is moot, in light of his family’s relocation

to a new part of Scott County, the decision of the Board of Education of Scott County (“the

School Board”) to assign R.K. to his new neighborhood school ever since, and Kentucky’s recent

enactment of a law requiring that diabetic children be educated in the public school to which they

would otherwise have been assigned. I dissent from the majority’s holding that R.K. cannot

recover compensatory damages as a matter of law, however, because R.K. has proffered facts

from which a jury could infer that the School Board was aware that a nurse was not required to

assist R.K. and that an adult could easily be trained to provide the necessary assistance. I would

therefore reach the merits of R.K.’s argument that the School Board discriminated against R.K.

by denying him a generally available benefit—assignment to one’s neighborhood school—based

solely upon a concern regarding the availability of a nurse to supervise his diabetes treatment at

his neighborhood school.


       As the majority recognizes, compensatory damages under Title II of the Americans with

Disabilities Act and § 504 of the Rehabilitation Act are available only upon a showing of

intentional discrimination, which most courts have held requires a finding that the public entity

acted with deliberate indifference. See S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d

248, 260–63 (3d Cir. 2013); Maj. Op. at 5 (noting that the parties agree that the deliberate-

indifference standard applies to this case). The deliberate-indifference standard “requir[es] both

(1) ‘knowledge that a harm to a federally protected right is substantially likely,’ and (2) ‘a failure

to act upon that likelihood.’” S.H., 729 F.3d at 263 (quoting Duvall v. Cty. of Kitsap, 260 F.3d

1124, 1139 (9th Cir. 2001)). The majority rests on the first prong, holding that R.K. failed to




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No. 14-6213, R.K. v. School Board of Scott County


submit evidence to show “that the school board knew that it would likely violate his rights when

it assigned him to a school with a full-time nurse.” Maj. Op. at 5. I disagree.


       The requisite knowledge is shown “[w]hen the plaintiff has alerted the public entity to his

need for accommodation.” Duvall, 260 F.3d at 1139. Accordingly, it is enough that a plaintiff

has given the public entity the information necessary to understand the need for and

reasonableness of the requested accommodation. See, e.g., id. at 1040 (hearing-impaired litigant

informed county-court staff of his need for “videotext display” for court hearings and of the

inadequacy of preexisting accommodations for the hearing impaired); S.H., 729 F.3d at 265

(plaintiff alleging wrongful diagnosis and placement in special education was required to prove

“knowledge that a federally protected right is substantially likely to be violated (i.e., knowledge

that S.H. was likely not disabled and therefore should not have been in special education)”);

Mark H v. Hamamoto, 620 F.3d 1090, 1099 (9th Cir. 2010) (holding, in a case alleging that the

Hawaii Department of Education failed to accommodate the needs of autistic children, that

“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”); Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 276–77 (2d Cir. 2009) (hospital

had appropriate level of knowledge of patient’s need for an American Sign Language interpreter

where the patient and family members alleged making “attempts to secure an interpreter prior to

surgery” and afterward).


       R.K. has provided sufficient evidence from which a jury could find that the School Board

acted with this level of knowledge. R.K.’s parents repeatedly requested that the School Board

train a non-nurse at Eastern Elementary to assist R.K. in counting carbohydrates and

administering insulin. See R. 82-2 (J.K. Aff. ¶¶ 5–7, 13–16, 18, 20) (Page ID #588–92). The

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No. 14-6213, R.K. v. School Board of Scott County


record further contains evidence from which a jury could find that the School Board was aware

that a nurse was not required to assist R.K. See id. ¶ 13 (Page ID #590) (stating that the

County’s Director of Child and Family Health Services—who was present at the July 2009

meeting with R.K.’s parents and School Board officials—indicated that “an insulin pump, unlike

injections, does not require a nurse’s presence”); R. 84-13 (Sept. 18, 2009 Diabetes Medical

Management Plan at 3) (Page ID #1189) (form filled out by R.K.’s doctor, which stated “[t]he

student must be supervised by an adult with dose administration via pump”); R. 84-20 (July 28,

2010 Diabetes Medical Management Plan at 4–5) (Page ID #1214–15) (form filled out by R.K.’s

doctor, stating that “any trained layperson can supervise or help put into pump,” that “[R.K] is

independent in manipulating his pump,” and that R.K “[d]oes not require nurse”).1 Finally, the

record contains evidence from which a jury could conclude that the School Board was aware of

the ease with which a non-nurse could be trained to assist someone in R.K.’s position. See R.

82-2 (J.K. Aff. ¶¶ 10, 14) (Page ID #589, 591). Because a jury finding that R.K. requested an

accommodation and that the School Board knew that the accommodation was needed and could

be provided is all that is needed to establish the knowledge necessary for a finding of deliberate

indifference, I dissent from the majority’s conclusion that R.K. is not entitled to compensatory

damages as a matter of law.




       1
        Additionally, albeit in testimony that was often conflicting, Tony Harrison, the School
Board’s Director of Nursing, admitted that having someone who was “trained” to assist R.K.
would have been acceptable and later said that having a nurse was better, but not required. See
R. 82-4 (Harrison Dep. at 22:7–26:21, 35:1–18, 42:18–43:1, 48:16–19, 49:2–4, 50:3–15, 70:10–
13) (Page ID #653–57, 666, 673–74, 679–81, 701).
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