                                                                           FILED
                           NOT FOR PUBLICATION                             APR 18 2016

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

J. C., by and through his mother and             No. 14-15300
guardian ad litem, W.P., and W.P.
individually,                                    D.C. No. 3:12-cv-03513-WHO

              Plaintiff - Appellant,
                                                 MEMORANDUM*
 v.

CAMBRIAN SCHOOL DISTRICT;
FAMMATRE CHARTER
ELEMENTARY SCHOOL; KRISTI
SCHWIEBERT; DEBORAH BLOW,

              Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Northern District of California
               William Horsley Orrick III, District Judge, Presiding

                       Argued and Submitted March 17, 2016
                            San Francisco, California

Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.

      J.C. and his mother, W.P., appeal from an adverse summary judgment

dismissing claims that J.C. was wrongfully denied admission to Fammatre Charter



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Elementary School because of his disability. The district court granted summary

judgment to the defendant school, school district, and school employees on all

claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1. The district court correctly granted summary judgment on J.C.’s ADA

and Rehabilitation Act claims because J.C. has failed to raise an issue of material

fact on causation. Under the ADA, J.C. is required to show that he was denied

admission “by reason of his disability.” 42 U.S.C. § 12132. The Rehabilitation

Act similarly requires J.C. to show that he was denied admission “solely by reason

of . . . his disability.” 29 U.S.C. § 794(a). J.C. has not presented admissible

evidence that raises a genuine issue of material fact that supports his theory that the

school’s admission decision was motivated by disability discrimination. To the

contrary, the evidence shows that J.C. was denied admission pursuant to a valid

admissions policy.

      Regardless of whether the school defendants were required to give

preference to existing students under California Education Code § 47605(d),

Fammatre’s enrollment policy explicitly gave preference to existing students. The

definition of “existing students” under Fammatre’s enrollment policy, however,

reasonably excluded students like J.C., who move out of district while attending

Fammatre. After the school district determined that the second grade class at


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Fammatre was at-capacity for budget reasons, the district’s decision not to admit

students on the waiting list, including J.C., was reasonable and not based on

discrimination. J.C.’s allegations of a strained relationship between his mother and

the school, isolated negative interactions between J.C., W.P. and school personnel,

and the process by which W.P. learned that J.C. would need to apply as a transfer

student, do not substantiate an allegation of disability discrimination. Because J.C.

has not raised an issue of material fact on the causation element of his ADA and

Rehabilitation Act claims, summary judgment was properly granted.

      2. J.C. concedes on appeal that his state tort claims depend on his ADA and

Rehabilitation Act claims. Because summary judgment was properly granted on

those claims, we affirm the summary dismissal of J.C.’s state tort claims as well.

      AFFIRMED.




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                                                                                 FILED
JC v Cambrian School Dist. No. 14-15300                                          APR 18 2016

                                                                          MOLLY C. DWYER, CLERK
Wardlaw, J., concurring in part and dissenting in part.                     U.S. COURT OF APPEALS



      I concur in the majority’s holding affirming the district court’s grant of

summary judgment on J.C.’s state law claims; those claims are barred by the

Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.

89, 117 (1984). And because J.C. cannot satisfy the Rehabilitation Act’s “strict[]”

causal standard, K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088,

1099 (9th Cir. 2013), I also concur in that portion of the majority’s holding. As to

J.C.’s ADA claim, however, I respectfully dissent.

      The majority holds that J.C. has not raised a genuine dispute of material fact

on the causation element of his ADA claim, i.e., whether he was denied admission

to Fammatre “by reason of his disability.” 42 U.S.C. § 12132. According to the

majority, the second-grade class was at capacity for budgetary reasons, so the

decision to exclude J.C. was reasonable and non-discriminatory. However,

because the district court held that J.C. was not “otherwise qualified” to attend

Fammatre and did not reach the causation element, the appropriate course is to

remand for the district court to consider this question in the first instance.

      Moreover, “[w]here a party’s motive or intent is in issue, summary judgment

is rarely proper.” Atkins v. Union Pac. R. Co., 685 F.2d 1146, 1149 (9th Cir.

1982). Here, J.C. has provided sufficient evidence to raise a genuine issue of fact
as to whether the second-grade enrollment cap was motivated solely by legitimate

budgetary concerns or at least in part by discriminatory animus. It is undisputed

that J.C. was first on Fammatre’s waiting list. In other words, the enrollment cap

narrowly excluded J.C. Among other evidence, J.C. provided attendance sheets

showing that Fammatre had accommodated 89 second graders during the

2010–2011 school year, then reduced the second-grade enrollment cap to 87

students for the 2011–2012 school year. The attendance sheets also indicate that

Fammatre could have moved one third grader out of the second and third-grade

combination class, creating space for an additional second grader without adverse

financial effects. Additionally, J.C.’s mother, W.P., testified that Fammatre staff

often responded to J.C.’s disability with frustration: For example, W.P. once

visited J.C. at school and discovered that he had been excluded from a class trip to

the library. W.P. also spoke to J.C.’s teacher about a time when she forced J.C.

and another disabled student to turn their desks around and face the back of the

classroom. The majority dismisses these troubling incidents as “isolated negative

interactions,” but “[w]hen plaintiffs allege intentional discrimination under the

ADA, . . . ‘any indication of discriminatory motive may suffice to raise a question

that can only be resolved by a factfinder.’” Pac. Shores Properties, LLC v. City of

Newport Beach, 730 F.3d 1142, 1156 (9th Cir. 2013) (quoting McGinest v. GTE

                                          2
Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004)).

      Based on this and other evidence, I would find that J.C. has raised a genuine

dispute of material fact on the causation element of his ADA claim. I would

further hold that the ADA claim is not barred by Eleventh Amendment immunity

under existing law, see Phiffer v. Columbia River Corr. Inst., 384 F.3d 791, 792

(9th Cir. 2004), but remand for further consideration in light of United States v.

Georgia, 546 U.S. 151 (2006).




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