                 FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


K.M., a minor, by and through her         No. 11-56259
Guardian Ad Litem, Lynn Bright,
                 Plaintiff-Appellant,       D.C. No.
                                         8:10-cv-01011-
                  v.                       DOC-MLG

TUSTIN UNIFIED SCHOOL DISTRICT,
               Defendant-Appellee.



D.H., a minor, by and through her         No. 12-56224
Guardian Ad Litem, K.H.,
                  Plaintiff-Appellant,      D.C. No.
                                         3:09-cv-02621-
                  v.                         L-NLS

POWAY UNIFIED SCHOOL DISTRICT,
              Defendant-Appellee.           OPINION


      Appeals from the United States District Court
          for the Central District of California
David O. Carter, District Judge, Presiding (No. 11-56259)
         and the Southern District of California
M. James Lorenz, Senior District Judge, Presiding (No. 12-
                          56224)
2             K.M. V. TUSTIN UNIFIED SCH. DIST.

                  Argued and Submitted
           December 3, 2012—Pasadena, California

                       Filed August 6, 2013

        Before: Marsha S. Berzon, Richard R. Clifton,
             and Sandra S. Ikuta, Circuit Judges.

                    Opinion by Judge Berzon


                           SUMMARY*


               Americans with Disabilities Act

    Reversing the district court’s grant of summary judgment
in two cases, the panel held that a school district’s
compliance with its obligations to a deaf or hard-of-hearing
child under the Individuals with Disabilities Education Act
does not also necessarily establish compliance with its
effective communication obligations to that child under Title
II of the Americans with Disabilities Act.

    The plaintiffs, high schoolers with hearing disabilities
who received special education services under the IDEA,
alleged that their school districts had an obligation under Title
II of the ADA to provide them with a word-for-word
transcription service.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             K.M. V. TUSTIN UNIFIED SCH. DIST.                   3

    The panel rejected the reasoning that (1) a valid IDEA
individualized education program, or IEP, satisfies a
regulation promulgated under § 504 of the Rehabilitation Act
requiring schools to make available to children with
disabilities a free appropriate public education; (2) § 504 and
Title II are substantially similar statutes; (3) therefore, a valid
IDEA IEP also satisfies Title II. The panel held that
compliance with the IDEA does not doom all § 504 claims.
In addition, there are material differences between § 504 and
Title II of the ADA. According deference to the Department
of Justice’s interpretation of the ADA effective
communication regulation, as expressed in an amicus brief,
the panel concluded that the ADA requirements regarding
students who are deaf or hard-of-hearing are different than
those imposed by the IDEA. The panel reversed the grants of
summary judgment on the ADA claims in both cases and on
a state law claim in one of the cases and remanded for further
proceedings consistent with its opinion.


                          COUNSEL

11-56259

David Martin Grey (argued), Grey & Grey, Santa Monica,
California, for Plaintiff-Appellant.

Jack Byron Clarke, Jr. (argued), Best Best & Krieger LLP,
Riverside, California; Cary K. Quan, Declues, Burkett &
Thompson, LLP, Huntington Beach, California, for
Defendant-Appellee.
4           K.M. V. TUSTIN UNIFIED SCH. DIST.

Jennifer Levin Eichhorn (argued), United States Department
of Justice Civil Rights Division/Appellate Section, for
Amicus Curiae United States of America.

Steven Robert Rech, Schwartz, Junell, Greenberg & Oathout,
LLP, Houston, Texas, for Amicus Curiae Alexander Graham
Bell Association for the Deaf and Hard of Hearing.

Keith L. Wurster, Baker & McKenzie LLP, Palo Alto,
California, for Amicus Curiae Council of Parent Attorneys
and Advocates, Inc.

12-56224

David Martin Grey (argued), Grey & Grey, Santa Monica,
California, for Plaintiff-Appellant.

Marlon Craig Wadlington (argued), Atkinson, Andelson,
Loya, Ruud & Romo, Cerritos, California, for Defendant-
Appellee.


                          OPINION

BERZON, Circuit Judge:

    These two cases, consolidated for oral argument, raise
questions about the obligations of public schools under
federal law to students who are deaf or hard-of-hearing. The
plaintiffs’ central claim is that their school districts have an
obligation under the Americans with Disabilities Act
(“ADA”) to provide them with a word-for-word transcription
service so that they can fully understand the teacher and
fellow students without undue strain and consequent stress.
             K.M. V. TUSTIN UNIFIED SCH. DIST.                  5

    K.M., a high schooler in the Tustin Unified School
District (“Tustin”) in Orange County, California, and D.H., a
high schooler in the Poway Unified School District
(“Poway”) in San Diego County, California, both have
hearing disabilities. Each student, through her parents,
requested that, to help her follow classroom discussions, her
school district provide her with Communication Access
Realtime Translation (“CART”) in the classroom. CART is
a word-for-word transcription service, similar to court
reporting, in which a trained stenographer provides real-time
captioning that appears on a computer monitor. In both cases,
the school district denied the request for CART but offered
other accommodations. Also in both cases, the student first
unsuccessfully challenged the denial of CART in state
administrative proceedings and then filed a lawsuit in federal
district court.

    In the district court, both K.M. and D.H. claimed that the
denial of CART violated both the Individuals with
Disabilities Education Act (“IDEA”) and Title II of the ADA.
In each case, the district court granted summary judgment for
the school district, holding that the district had fully complied
with the IDEA and that the plaintiff’s ADA claim was
foreclosed by the failure of her IDEA claim. On appeal, both
K.M. and D.H. do not contest the conclusion that their
respective school districts complied with the IDEA. They
challenge, however, the district courts’ grants of summary
judgment on their ADA claims, because they maintain that
Title II imposes effective communication obligations upon
public schools independent of, not coextensive with, schools’
obligations under the IDEA.

   In light of this litigation history, these appeals present this
court with a narrow question: whether a school district’s
6           K.M. V. TUSTIN UNIFIED SCH. DIST.

compliance with its obligations to a deaf or hard-of-hearing
child under the IDEA also necessarily establishes compliance
with its effective communication obligations to that child
under Title II of the ADA. For the reasons explained below,
we hold that it does not. We do not find in either statute an
indication that Congress intended the statutes to interact in a
mechanical fashion in the schools context, automatically
pretermitting any Title II claim where a school’s IDEA
obligation is satisfied. Moreover, in one of these cases, K.M.
v. Tustin, the Department of Justice (“DOJ”) has filed an
amicus brief in support of the plaintiff that includes an
interpretation of the relevant Title II regulations, to which we
accord deference under Auer v. Robbins, 519 F.S. 452 (1997),
and which bolsters our conclusion.

    FACTUAL AND PROCEDURAL BACKGROUND

                             K.M.

    Because of her hearing loss, K.M. is eligible for special
education services under the IDEA. Her eligibility means that
Tustin must provide K.M. with a “free appropriate public
education” (“FAPE”) suited to her individual needs. See
20 F.S.C. § 1412(a)(1). As required by the statute, Tustin has
convened regular meetings to develop an annual
“individualized education plan” (“IEP”) identifying K.M.’s
educational goals and laying out which special services
Tustin will provide to address those goals in the upcoming
academic year. See id. § 1412(a)(4).

   In spring 2009, when K.M. was completing the eighth
grade, Tustin and her parents began to prepare for her
upcoming transition to high school. At a June 2009 meeting
of K.M.’s IEP team, K.M.’s mother requested that Tustin
            K.M. V. TUSTIN UNIFIED SCH. DIST.               7

provide her with CART beginning the first day of ninth
grade, in Fall 2009. K.M.’s long-time auditory-visual
therapist recommended that K.M. receive CART in high
school. The IEP team deferred a decision on the CART
request, instead developing an IEP that offered K.M. other
accommodations.

    Shortly thereafter, K.M. filed an administrative complaint
challenging the June 2009 IEP. During the course of K.M.’s
ninth grade year, her parents and Tustin officials met for
several IEP meetings but were unable to come to an
agreement that would resolve the complaint. After providing
K.M. with trials of both CART and an alternative
transcription technology called TypeWell, her IEP team
concluded that she did not require transcription services to
receive a FAPE under the IDEA, see 20 F.S.C. § 1412(a)(1),
and reaffirmed the June 2009 IEP.

    K.M.’s challenge to the June 2009 IEP proceeded to a
seven-day hearing before a California administrative law
judge (“ALJ”). K.M. testified that she could usually hear her
teachers but had trouble hearing her classmates and classroom
videos. Several of K.M.’s teachers testified that, in their
opinion, K.M. could hear and follow classroom discussion
well.

    Applying the relevant legal standards, the ALJ concluded
that Tustin had complied with both its procedural and
substantive obligations under the IDEA and had provided
K.M. with a FAPE. The ALJ observed that K.M.’s mother
was requesting CART so that K.M. could “maximize her
potential,” but the IDEA, as interpreted by the Supreme Court
in Board of Education of Hendrick Hudson School District,
Westchester County v. Rowley, 458 F.S. 176 (1982), does not
8           K.M. V. TUSTIN UNIFIED SCH. DIST.

require schools to provide “a potential-maximizing
education.”

    Dissatisfied, K.M. filed a complaint in district court
challenging the ALJ decision on her IDEA claim. She also
asserted disability discrimination claims under Section 504 of
the Rehabilitation Act, Title II of the ADA, and California’s
Unruh Civil Rights Act. With respect to her ADA claim, she
sought, in addition to other relief, “an Order compelling
Defendants to provide CART.” The complaint alleges that
CART “is commonly paid for by other Southern California
public school districts,” including the Los Angeles Unified
School District and the Santa Monica Malibu School District,
and “is also commonly provided at the college level under the
ADA.”

    In declarations submitted to the district court, K.M.’s
teachers declared that she participated in classroom
discussions comparably to other students. K.M. saw her
situation quiet differently, emphasizing that she could only
follow along in the classroom with intense concentration,
leaving her exhausted at the end of each day.

    The district court granted summary judgment for Tustin.
First, as to K.M.’s IDEA claim, the district court stated that
it was “reluctant to adopt fully teacher and administrator
conclusions about K.M.’s comprehension levels over the
testimony of K.M. herself,” and found “that K.M.’s testimony
reveals that her difficulty following discussions may have
been greater than her teachers perceived.” Nevertheless, the
district court agreed with the ALJ that, under the relevant
legal standards, K.M. had been afforded a FAPE compliant
with the IDEA. Second, the district court held that “K.M.’s
claims under the ADA and the Rehabilitation Act fail on the
               K.M. V. TUSTIN UNIFIED SCH. DIST.                         9

merits for the same reason that her claim under [the] IDEA
failed.” Finally, the district court noted that Unruh Act
liability requires intentional discrimination or an ADA
violation, neither of which K.M. had shown.

    This appeal followed, in which K.M. challenges only the
district court’s rulings on her ADA and Unruh Act claims.1

                                  D.H.

    Like K.M., D.H. is eligible for and receives special
education services under the IDEA, pursuant to an annual
IEP. At an IEP meeting held towards the end of D.H.’s
seventh-grade year, D.H.’s parents “agreed . . . that [D.H.]
was making progress,” but said that they “believed that [she]
needed CART in order to have equal access in the
classroom.” The IEP team decided that CART was not
necessary to provide D.H. with a FAPE, noting that D.H. was
making good academic progress.

    D.H. filed an administrative complaint challenging her
April 2009 IEP. During the ensuing hearing, D.H. testified
that she sometimes had trouble following class discussions
and teacher instructions. The ALJ concluded, however, that
Poway had provided D.H. with a FAPE under the IDEA,
finding that D.H. “hears enough of what her teachers and
fellow pupils say in class to allow her to access the general
education curriculum” and “did not need CART services to
gain educational benefit.”


 1
   Under California law, “a violation of the ADA is, per se, a violation of
the Unruh Act.” Lentini v. Calif. Ctr. for the Arts, 370 F.3d 837, 847 (9th
Cir. 2004). We therefore do not discuss K.M.’s Unruh Act claim
separately from her ADA claim.
10           K.M. V. TUSTIN UNIFIED SCH. DIST.

    D.H. challenged the ALJ decision on her IDEA claim in
district court, and also alleged disability discrimination
claims under Section 504 of the Rehabilitation Act and Title
II of the ADA, seeking, in addition to other relief, “an Order
compelling Defendants to provide CART.” Like K.M.’s
complaint, D.H.’s complaint alleges that CART is commonly
provided by other Southern California school districts and at
the college level.

    D.H. entered high school in Fall 2010. Before the district
court, D.H. submitted a declaration in support of her motion
for summary judgment which she declared that she has
continued to have difficulty hearing in her classes. Although
D.H. can use visual cues to follow conversations, “[u]se of
these strategies requires a lot of mental energy and focus,”
leaving her “drained” at the end of the school day. D.H.’s
declaration questioned whether her teachers understood the
extra effort it required for her to do well in school.

       The district court initially granted partial summary
judgment for Poway on D.H.’s IDEA claim, holding that the
April 2009 IEP provided a FAPE under the IDEA. Although
noting that it was “sympathetic to the parents’ view that the
CART service would make it easier for [D.H.] to follow the
lectures and class discussions,” the district court denied the
request to order the service, on the ground that “the IDEA
does not require States to ‘maximize each child’s potential
. . . .’” Later, the district court granted summary judgment for
defendants on D.H.’s remaining — ADA and Section 504 —
claims. Relying in part on the earlier district court decision in
K.M. v. Tustin, the district court held that “a plaintiff’s failure
to show a deprivation of a FAPE under the IDEA dooms a
claim under [Section] 504, and, accordingly, under the
ADA.”
            K.M. V. TUSTIN UNIFIED SCH. DIST.                11

   This appeal, in which D.H. challenges only the district
court’s ruling on her ADA claim, followed.

                       DISCUSSION

   I. General Statutory Background

    Before discussing K.M. and D.H.’s specific claims, we
provide some necessary context concerning the three statutes
primarily implicated by these appeals, the IDEA, Title II of
the ADA, and Section 504 of the Rehabilitation Act,
especially as they apply to accommodation of students with
communication difficulties.

                              A.

    The IDEA requires schools to make available to children
with disabilities a “free appropriate public education,” or
“FAPE,” tailored to their individual needs. 20 F.S.C.
§ 1400(d)(1)(A). States receiving federal funds under the
IDEA must show that they have implemented “policies and
procedures” to provide disabled children with a FAPE,
including procedures to develop an IEP for each eligible
child. Id. § 1412(a), (a)(1), (a)(4).

     The IDEA enumerates several general factors that a
child’s IEP team must consider in developing her IEP. These
are “the strengths of the child,” “the concerns of the parents
for enhancing the education of their child,” “the results of the
initial evaluation or most recent evaluation of the child,” and
“the academic, developmental, and functional needs of the
child.” Id. § 1414(d)(3)(A). In addition, the IDEA enumerates
“special factors” that must be considered if a child has a
12          K.M. V. TUSTIN UNIFIED SCH. DIST.

particular type of disability. For a child who is deaf or hard-
of-hearing, the IEP team is required to

       consider the child’s language and
       communication needs, opportunities for direct
       communications with peers and professional
       personnel in the child’s language and
       communication mode, academic level, and
       full range of needs, including opportunities
       for direct instruction in the child’s language
       and communication mode[.]

Id. § 1414(d)(3)(B)(iv). The IEP team is also required to
“consider whether the child needs assistive technology
devices and services.” Id. § 1414(d)(3)(B)(v).

    The IDEA does not, however, specify “any substantive
standard prescribing the level of education to be accorded
handicapped children.” Rowley, 458 F.S. at 189. Rather, the
IDEA primarily provides parents with various procedural
safeguards, including the right to participate in IEP meetings
and the right to challenge an IEP in state administrative
proceedings and, ultimately, in state or federal court. Rowley
saw the statute as resting on the premise “that adequate
compliance with the procedures prescribed would in most
cases assure much if not all of what Congress wished in the
way of substantive content in an IEP.” Rowley, 458 F.S. at
206; see also Schaffer ex rel. Schaffer v. Weast, 546 F.S. 49,
59–60 (2005). “The core of the statute . . . is the cooperative
process that it establishes between parents and schools.”
Schaffer, 546 F.S. at 53.

    The IDEA does have a substantive component, but a
fairly modest one: The IEP developed through the required
             K.M. V. TUSTIN UNIFIED SCH. DIST.                13

procedures must be “reasonably calculated to enable the child
to receive educational benefits.” Rowley, 458 F.S. at 206–07.
The IDEA does not require states to provide disabled children
with “a potential-maximizing education.” Id. at 197 n.21.
This access-centered standard means that, for a child being
educated in mainstream classrooms, an IEP is substantively
valid so long as it is “reasonably calculated to enable the
child to achieve passing marks and advance from grade to
grade.” Id. at 204.

                               B.

    In contrast to the more process-oriented IDEA, the ADA
imposes less elaborate procedural requirements. It also
establishes different substantive requirements that public
entities must meet.

    Title II of the ADA, the title applicable to public services,
provides that “no 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,” and requires that the DOJ promulgate
regulations to implement this provision. 42 F.S.C. §§ 12132,
12134 (emphasis added). We have recognized that, under the
principles of deference established in Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 F.S. 837
(1984), the DOJ’s Title II-implementing regulations “should
be given controlling weight unless they are arbitrary,
capricious, or manifestly contrary to the statute.” Armstrong
v. Schwarzenegger, 622 F.3d 1058, 1065 (9th Cir. 2010)
(internal quotation marks and citations omitted).
14            K.M. V. TUSTIN UNIFIED SCH. DIST.

    Among the DOJ’s Title II-implementing regulations, and
at the core of these appeals, is the so-called “effective
communications regulation,” which spells out public entities’
communications-related duties towards those with
disabilities. See 28 C.F.R. § 35.160 (2010).2 The Title II
effective communications regulation states two requirements:
First, public entities must “take appropriate steps to ensure
that communications with applicants, participants, and
members of the public with disabilities are as effective as
communications with others.” Id. § 35.160(a). Second, public
entities must “furnish appropriate auxiliary aids and services
where necessary to afford an individual with a disability an
equal opportunity to participate in, and enjoy the benefits of,
a service, program, or activity conducted by a public entity.”
Id. § 35.160(b)(1). The Title II regulations define the phrase
“auxiliary aids and services” for purposes of § 35.160 as
including, inter alia, “real-time computer-aided transcription
services” and “videotext displays.” Id. § 35.104. “In
determining what type of auxiliary aid and service is
necessary, a public entity shall give primary consideration to
the requests of the individual with disabilities.” Id.
§ 35.160(b)(2).

    A separate, more general Title II regulation limits the
application of these requirements: Notwithstanding any other
requirements in the regulations, a public entity need not,
under Title II, “take any action that it can demonstrate would
result in a fundamental alteration in the nature of a service,
program, or activity or in undue financial and administrative


 2
    The Title II regulations, including § 35.160, were amended effective
March 15, 2011, see 75 Fed. Reg. 56164-01 (Sept. 15, 2010), but the
language we quote was not changed in any substantive way relevant to
this appeal.
            K.M. V. TUSTIN UNIFIED SCH. DIST.                15

burdens.” Id. § 35.164. The public entity has the burden to
prove that a proposed action would result in undue burden or
fundamental alteration, and the decision “must be made by
the head of the public entity or his or her designee after
considering all resources available for use in the funding and
operation of the service, program, or activity and must be
accompanied by a written statement of the reasons for
reaching that conclusion.” Id. The public entity must “take
any other action that would not result in such an alteration or
such burdens but would nevertheless ensure that, to the
maximum extent possible, individuals with disabilities
receive the benefits or services provided by the public entity.”
Id.

    As should be apparent, the IDEA and Title II differ in
both ends and means. Substantively, the IDEA sets only a
floor of access to education for children with communications
disabilities, but requires school districts to provide the
individualized services necessary to get a child to that floor,
regardless of the costs, administrative burdens, or program
alterations required. Title II and its implementing regulations,
taken together, require public entities to take steps towards
making existing services not just accessible, but equally
accessible to people with communication disabilities, but
only insofar as doing so does not pose an undue burden or
require a fundamental alteration of their programs.

                              C.

    Finally, at least as a general matter, public schools must
comply with both the IDEA and the ADA. The IDEA
obviously governs public schools. There is also no question
that public schools are among the public entities governed by
Title II. See 42 F.S.C. § 12101(a)(3) (listing “education” in
16          K.M. V. TUSTIN UNIFIED SCH. DIST.

the ADA congressional findings section as one of “critical
areas” in which disability discrimination exists); Tennessee
v. Lane, 541 F.S. 509, 525 (2004) (listing “public education”
among the sites of discrimination that Congress intended to
reach with Title II).

    Moreover, Congress has specifically and clearly provided
that the IDEA coexists with the ADA and other federal
statutes, rather than swallowing the others. See Payne v.
Peninsula Sch. Dist., 653 F.3d 863, 872 (9th Cir. 2011) (en
banc). After the Supreme Court interpreted an earlier version
of the IDEA to provide the “exclusive avenue” for pursuing
“an equal protection claim to a publicly financed special
education,” Smith v. Robinson, 468 F.S. 992, 1009 (1984),
Congress enacted legislation to overturn that ruling. An
amendment to the IDEA, enacted in 1986, clarified that the
IDEA does not foreclose any additional constitutional or
federal statutory claims that children with disabilities may
have, so long as they first exhaust their IDEA claims through
the IDEA administrative process. See Pub. L. 99-372, 100
Stat. 796 (1986); see also Mark H. v. Lemahieu, 513 F.3d
922, 934 (9th Cir. 2008). In its current version, the IDEA
non-exclusivity provision reads:

       Nothing in this chapter shall be construed to
       restrict or limit the rights, procedures, and
       remedies available under the Constitution, the
       Americans with Disabilities Act of 1990
       [42 F.S.C. § 12101 et seq.], title V of the
       Rehabilitation Act of 1973 [29 F.S.C. § 791 et
       seq.], or other Federal laws protecting the
       rights of children with disabilities, except that
       before the filing of a civil action under such
       laws seeking relief that is also available under
            K.M. V. TUSTIN UNIFIED SCH. DIST.                17

       this subchapter, the procedures under
       subsections (f) and (g) shall be exhausted to
       the same extent as would be required had the
       action been brought under this subchapter.

20 F.S.C. § 1415(l) (alterations in original).

                              D.

    It is against this statutory background that we shall
consider how the IDEA and Title II interact with respect to
school districts’ obligations to IDEA-eligible students, like
K.M. and D.H., who are deaf or hard-of-hearing. First,
however, we must clarify one way in which the statutes do
not interact.

    In the district court’s analysis in K.M., relied upon by the
district court in D.H., the plaintiffs’ ADA claims were
tethered to their IDEA claims through the connective thread
of a third federal statute, Section 504 of the Rehabilitation
Act. Section 504 bars the exclusion of individuals with
disabilities from any program or activity receiving federal
funds. See 29 F.S.C. § 794(a). The district court in K.M.
reasoned that “the fact that K.M. has failed to show a
deprivation of a FAPE under IDEA . . . dooms her claim
under Section 504, and, accordingly, her ADA claim”
(emphasis added). Similarly, the district court in D.H.
reasoned that “a plaintiff’s failure to show a deprivation of a
FAPE under the IDEA dooms a claim under [Section] 504,
and, accordingly, under the ADA” (emphasis added).

    The district courts arrived at this reasoning by combining
two lines of our case law. In the first line of cases, we have
identified a partial overlap between the statutory FAPE
18            K.M. V. TUSTIN UNIFIED SCH. DIST.

provision under the IDEA and a similar provision within the
Section 504 regulations promulgated by the Department of
Education, requiring schools receiving federal funds to
provide “a free appropriate public education to each qualified
handicapped person who is in the recipient’s jurisdiction.”
34 C.F.R. § 104.33(a). Although both the IDEA and the
Section 504 regulation use the locution “free appropriate
public education,” or “FAPE,” we have concluded that the
two FAPE requirements are “overlapping but different.” See
Mark H., 513 F.3d at 925, 933.3 At the same time, we have
noted that, as provided by the Section 504 FAPE regulation,
“adopting a valid IDEA IEP is sufficient but not necessary to
satisfy the [Section] 504 FAPE requirements.” Id. at 933
(citing 34 C.F.R. § 104.33(b)(2)); see also A.M. v. Monrovia
Unified Sch. Dist., 627 F.3d 773, 782 (9th Cir. 2010).

    In the second line of cases, we have discussed the close
relationship between Section 504 and Title II of the ADA.
Congress used the earlier-enacted Section 504 as a model
when drafting Title II. See Duvall v. Cnty. of Kitsap, 260 F.3d
1124, 1135 (9th Cir. 2001). We have observed on occasion
that “there is no significant difference in the analysis of rights
and obligations created by the two Acts.” Vinson v. Thomas,
288 F.3d 1145, 1152 n.7 (9th Cir. 2002).

    Combining these two lines of cases, the district courts
reasoned that (1) a valid IDEA IEP satisfies the Section 504
FAPE regulation; (2) Section 504 and Title II are


 3
   Most importantly, the Section 504 regulations define FAPE “to require
a comparison between the manner in which the needs of disabled and
non-disabled children are met, and focus[] on the ‘design’ of a child’s
educational program,” while the IDEA definition of FAPE does not
require a comparative analysis. Id. at 933.
            K.M. V. TUSTIN UNIFIED SCH. DIST.               19

substantially similar statutes; (3) therefore, a valid IDEA IEP
also satisfies Title II. This syllogism overstates the
connections both between the IDEA and Section 504, and
between Section 504 and Title II.

    First, we have never held that compliance with the IDEA
dooms all Section 504 claims. In Mark H., we held only that
“adopting a valid IDEA IEP is sufficient . . . to satisfy the
[Section] 504 FAPE requirements.” 513 F.3d at 925
(emphasis added) (citing 34 C.F.R. § 104.33(b)(2)). We so
held because the Section 504 FAPE regulation itself provides
that provision of a FAPE under the IDEA “is one means of
meeting the standard established in paragraph (b)(1)(i) of
this section,” 34 C.F.R. § 104.33(b)(2) (emphasis added), i.e.,
the Section 504 FAPE standard. Because a school district’s
provision of a FAPE under the IDEA meets Section 504
FAPE requirements, a claim predicated on finding a violation
of the Section 504 FAPE standard will fail if the IDEA FAPE
requirement has been met. Section 504 claims predicated on
other theories of liability under that statute and its
implementing regulations, however, are not precluded by a
determination that the student has been provided an IDEA
FAPE.

    Second, the connection between Title II and Section 504
is nuanced. Although the general anti-discrimination
mandates in the two statutes are worded similarly, there are
material differences between the statutes as a whole. First,
their jurisdictions, while overlapping, are not coextensive:
Section 504 governs all entities receiving federal funds
(public or private), while Title II governs all public entities
(federally funded or not). Compare 29 F.S.C. § 794 with
42 F.S.C. § 12132. Second, Title II’s prohibition of
discrimination or denial of benefits “by reason of” disability
20          K.M. V. TUSTIN UNIFIED SCH. DIST.

“establishes a ‘motivating factor’ causal standard for liability
when there are two or more possible reasons for the
challenged decision and at least one of them may be
legitimate.” Martin v. Cal. Dep’t of Veterans Affairs,
560 F.3d 1042, 1048–49 (9th Cir. 2009). In other words, “if
the evidence could support a finding that there is more than
one reason for an allegedly discriminatory decision, a
plaintiff need show only that discrimination on the basis of
disability was a ‘motivating factor’ for the decision.” Id. By
contrast, “[t]he causal standard for the Rehabilitation Act is
even stricter,” id., requiring a plaintiff to show a denial of
services “solely by reason of” disability. 29 F.S.C. § 794(a).

    Congress has also delegated regulatory responsibility
differently under the two statutes. Section 504 mandates
generally that the head of each executive agency must
promulgate its own regulations “as may be necessary” to
implement Section 504’s nondiscrimination mandate with
respect to that agency’s programs. See 29 F.S.C. § 794(a).
Thus, for example, the Department of Education promulgates
regulations implementing Section 504 with respect to
federally funded education programs. See generally 34 C.F.R.
part 104. For Title II, Congress made a more specific, and
centralized, delegation, confiding regulatory authority wholly
in the Justice Department. See 42 F.S.C. § 12134(a).

    Congress also mandated that the federal regulations
implementing Title II be consistent with certain, but not all,
of the regulations enforcing Section 504. See id. § 12134(b).
Specifically, Congress mandated that the Title II regulations
as to all topics “[e]xcept for ‘program accessibility, existing
facilities,’ and ‘communications’” be consistent with the
Section 504 regulations codified at 28 C.F.R. part 41, and that
the Title II regulations as to “‘program accessibility, existing
            K.M. V. TUSTIN UNIFIED SCH. DIST.              21

facilities,’ and ‘communications’” be consistent with the
Section 504 regulations codified at 28 C.F.R. part 39. Id.
Congress did not, however, mandate that Title II regulations
be consistent with the Section 504 FAPE regulation, which is
codified at 34 C.F.R. part 104.

    Neither K.M. nor D.H.’s theory of Title II liability is
predicated on a denial of FAPE under any definition of that
term; indeed, Title II does not impose any FAPE requirement.
Rather, both K.M. and D.H. ground their claims in the Title
II effective communications regulation, which they argue
establishes independent obligations on the part of public
schools to students who are deaf or hard-of-hearing. Insofar
as the Title II effective communications regulation has a
Section 504 analog, it is not the Section 504 FAPE regulation
at 34 C.F.R. § 104.33 we construed in the Mark H. line of
cases. Rather, it is the Section 504 communications regulation
at 28 C.F.R. § 39.160, as that is the regulation with which
Congress has specified that Title II communications
regulations must be consistent. See 42 F.S.C. § 12134(b).

   II. The IDEA and ADA Communications Provisions

                             A.

    The question whether a school meets the ADA’s
requirements for accommodating deaf or hard-of-hearing
students as long as it provides a FAPE for such students in
accord with the IDEA is therefore one that cannot be
answered through any general principles concerning the
overall relationship between the two statutes. Instead, we
must address the question by comparing the particular
provisions of the ADA and the IDEA covering students who
are deaf or hard-of-hearing, as well as the implementing
22             K.M. V. TUSTIN UNIFIED SCH. DIST.

regulations for those provisions. If the ADA requirements are
sufficiently different from, and in some relevant respect more
stringent than, those imposed by the IDEA, then compliance
with the IDEA FAPE requirement would not preclude an
ADA claim. Because we have no cases addressing the
parallelism between the IDEA and either the Title II effective
communications regulation or its analogous Section 504
regulation, we must construe the relevant statutes and
regulations as a question of first impression.

    In doing so, “[w]e afford . . . considerable respect” to the
DOJ’s interpretation of the ADA effective communication
regulation, as expressed in its amicus brief to this court. M.R.
v. Dreyfus, 697 F.3d 706, 735 (9th Cir. 2011). “An agency’s
interpretation of its own regulation is ‘controlling unless
plainly erroneous or inconsistent with the regulation.’” Id.
(quoting Auer, 519 F.S. at 461) (other citations omitted).4
Applying that standard, we conclude from our comparison of
the relevant statutory and regulatory texts that the IDEA
FAPE requirement and the Title II communication
requirements are significantly different. The result is that in
some situations, but not others, schools may be required
under the ADA to provide services to deaf or hard-of-hearing
students that are different than the services required by the
IDEA.




 4
   Auer deference does not apply where the regulation at issue “does little
more than restate the terms of the statute itself.” Gonzales v. Oregon,
546 F.S. 243, 257 (2006). That exception is inapplicable here, where, as
in Auer, the regulation does not parrot the statute but rather “[gives]
specificity to a statutory scheme the [DOJ] was charged with enforcing.”
Id. at 256 (construing Auer).
              K.M. V. TUSTIN UNIFIED SCH. DIST.                      23

    First, the factors that the public entity must consider in
deciding what accommodations to provide deaf or hard-of-
hearing children are different. The key variables in the IDEA
framework are the child’s “needs” and “opportunities.” When
developing a deaf or hard-of-hearing child’s IEP for IDEA
purposes, the IEP team is required to consider, among other
factors, “the child’s language and communication needs,”
“opportunities for direct communications with peers and
professional personnel in the child’s language and
communication mode,” and “whether the child needs assistive
technology devices and services.” 20 F.S.C.
§ 1414(d)(3)(B)(iv)&(v) (emphases added). Under the ADA
effective communications regulation, a public entity is also
required to “furnish appropriate auxiliary aids and services
where necessary.” 28 C.F.R. § 35.160(b)(1) (emphasis
added). But the ADA adds another variable: In determining
how it will meet the child’s needs, the ADA regulations
require that the public entity “give primary consideration to
the requests of the individual with disabilities.” Id.
§ 35.160(b)(2) (emphasis added).5 That provision has no
direct counterpart in the IDEA. Although the IDEA requires
schools to consult with parents and to include the child in IEP
meetings “whenever appropriate,” 20 F.S.C.
§ 1414(d)(1)(B)(vii), it does not require that parental or child
requests be assigned “primary” weight. Cf. Bradley ex rel.
Bradley v. Ark. Dep’t of Ed., 443 F.3d 965, 975 (8th Cir.
2006) (“[T]he IDEA does not require that parental
preferences be implemented, so long as the IEP is reasonably
calculated to provide some educational benefit.”).


  5
    Where the individual is a minor, as will generally be the case in the
schools context, we assume that such requests would ordinarily be made
via the parent. We do not decide whether the child’s preferences might
trump the parent’s in a situation in which they disagreed.
24           K.M. V. TUSTIN UNIFIED SCH. DIST.

    Second, Title II provides the public entity with defenses
unavailable under the IDEA. Specifically, Title II “does not
require a public entity to take any action that it can
demonstrate would result in a fundamental alteration in the
nature of a service, program, or activity or in undue financial
and administrative burdens.” 28 C.F.R. § 35.164. In
particular, as the DOJ explained in its amicus brief to this
court, the ADA effective communication obligation “is
limited to the provision of services for existing programs; the
ADA does not require a school to provide new programs or
new curricula” (emphasis in original). The IDEA does not
provide schools with any analog to Title II’s fundamental
alteration and undue burden defenses.

    Third, the specific regulation at issue here, the Title II
effective communications regulation, requires public schools
to communicate “as effective[ly]” with disabled students as
with other students, and to provide disabled students the
“auxiliary aids . . . necessary to afford . . . an equal
opportunity to participate in, and enjoy the benefits of,” the
school program. 28 C.F.R. §§ 35.160(a)(1) & (b)(1)
(emphasis added). That requirement is not relevant to IDEA
claims, as the IDEA does not require schools to “provide
‘equal’ educational opportunities” to all students. Rowley,
458 F.S. at 198.

    Given these differences between the two statutes, we are
unable to articulate any unified theory for how they will
interact in particular cases. Precisely because we are unable
to do so, we must reject the argument that the success or
failure of a student’s IDEA claim dictates, as a matter of law,
the success or failure of her Title II claim. As a result, courts
evaluating claims under the IDEA and Title II must analyze
each claim separately under the relevant statutory and
            K.M. V. TUSTIN UNIFIED SCH. DIST.                25

regulatory framework. We note, however, that nothing in our
holding should be understood to bar district courts from
applying ordinary principles of issue and claim preclusion in
cases raising both IDEA and Title II claims where the IDEA
administrative appeals process has functionally adjudicated
some or all questions relevant to a Title II claim in a way that
precludes relitigation. Cf. Pace v. Bogalusa City Sch. Bd.,
403 F.3d 272, 290–97 (5th Cir. 2005) (en banc) (holding that
ADA and Section 504 claims were issue-precluded by failure
of IDEA claims based on identical accessibility guidelines);
Indep. Sch. Dist. No. 283 v. S.D., 88 F.3d 556, 562 (8th Cir.
1996) (when IDEA claims are exhausted through the
administrative process, “principles of issue and claim
preclusion may properly be applied to short-circuit redundant
claims under other laws”).

                              B.

    Both school districts make one final argument that
requires a brief response. They argue that, even if analyzed
independently under Title II, K.M. and D.H.’s claims must
fail because ADA liability requires plaintiffs to show that
they were denied “meaningful access” to school services,
programs, or activities, and that they cannot make this
showing. The phrase “meaningful access” derives not from
the text of the ADA or its implementing regulations, but from
the Supreme Court’s opinion in Alexander v. Choate,
469 F.S. 287 (1985).

    Choate involved a class-action lawsuit brought by
individuals with disabilities who argued that cost-saving
measures to Tennessee’s Medicaid program would
disproportionately affect them and therefore amounted to
impermissible discrimination under Section 504. Id. at 289.
26            K.M. V. TUSTIN UNIFIED SCH. DIST.

Rejecting both the contention that Section 504 reaches only
purposeful discrimination and “the boundless notion that all
disparate-impact showings constitute prima facie cases under
[Section] 504,” the Court construed Section 504 as including
a “meaningful access” standard that identified which
disparate-impact showings rise to the level of actionable
discrimination. Id. at 299. In construing Section 504 in this
manner, the Court considered and relied on the regulations
applicable to Section 504. Id. at 304–05 & n.24.

    We have relied on Choate’s construction of Section 504
in ADA Title II cases, and have held that to challenge a
facially neutral government policy on the ground that it has
a disparate impact on people with disabilities, the policy must
have the effect of denying meaningful access to public
services. See Crowder v. Kitagawa, 81 F.3d 1480, 1484 (9th
Cir. 1996). As in Choate, in considering Title II’s
“meaningful access” requirement, we are guided by the
relevant regulations interpreting Title II. See Duvall, 260 F.3d
at 1136; accord Chisolm v. McManimon, 275 F.3d 315,
325–36 (3d Cir. 2001). Consequently, in determining whether
K.M. and D.H. were denied meaningful access to the school’s
benefits and services, we are guided by the specific standards
of the Title II effective communications regulation.6

    In other words, the “meaningful access” standard
incorporates rather than supersedes applicable interpretive
regulations, and so does not preclude K.M. and D.H. from


  6
   Neither school district has argued that the effective communications
regulation is an impermissible application of Title II, including its
meaningful access standard. Our court has applied the regulation before.
E.g. Duvall, 260 F.3d 1124. As no party has challenged it, we do not
address the regulation’s validity.
             K.M. V. TUSTIN UNIFIED SCH. DIST.                27

litigating their claims under those regulations. The school
districts’ suggestion to the contrary therefore fails.

    III.    Application to This Case

    Finally, we return to the specifics of the cases before us
in this appeal. Here, in both cases, the district court held that
the plaintiff’s Title II claim was foreclosed as a matter of law
by the failure of her IDEA claim. For the reasons explained
above, the district courts legally erred in granting summary
judgment on that basis. The failure of an IDEA claim does
not automatically foreclose a Title II claim grounded in the
Title II effective communications regulation.

    Although we could review the record to determine
whether there are alternate legal or factual grounds on which
to affirm summary judgment, see Video Software Dealers
Ass’n v. Schwarzenegger, 556 F.3d 950, 956 (9th Cir. 2009),
we are not bound to do so, see Badea v. Cox, 931 F.2d 573,
575 n.2 (9th Cir. 1991). In Mark H., for example, we reversed
a grant of summary judgment where the parties and the
district court had misunderstood the interaction between two
federal statutes, and remanded for further proceedings
consistent with the relationship between those statutes as
newly clarified by our opinion. Mark H., 513 F.3d at 925,
939–40.

    Here too, prudence counsels in favor of returning these
cases to the district court for further proceedings. Having
granted summary judgment on legal grounds, neither district
court considered whether there was a genuine issue of
material fact as to the school districts’ compliance with Title
II. Moreover, the school districts have litigated these cases
thus far from the position that the plaintiffs’ IDEA and Title
28             K.M. V. TUSTIN UNIFIED SCH. DIST.

II claims were coextensive.7 Now that we have clarified that
the school districts’ position is not correct, we expect that the
parties may wish to further develop the factual record and, if
necessary, revise their legal positions to address the specifics
of a Title II as opposed to an IDEA claim.

    To give the district courts an opportunity to consider the
merits of K.M. and D.H.’s Title II claims in the first instance,
we reverse the grants of summary judgment on the ADA
claims in both cases and on the Unruh Act claim in K.M. v.
Tustin, and remand for further proceedings consistent with
this opinion, without prejudice to whether the school districts
may renew their motions for summary judgment on other
grounds.8

                          CONCLUSION

   For the foregoing reasons, we REVERSE the grants of
summary judgment on the ADA claims in both cases and on



 7
    Although they made Title II-specific arguments in the alternative, the
IDEA claims were clearly the focus of their litigation efforts. Their Title
II defenses relied on arguments more properly related to the plaintiffs’
IDEA claims, such as whether the plaintiffs had been provided with a
FAPE.
    8
      The Third Circuit has observed in a somewhat similar Title II
communications case that, “[g]enerally, the effectiveness of auxiliary aids
and/or services is a question of fact precluding summary judgment.”
Chisolm, 275 F.3d at 327; see also Duvall, 260 F.3d at 1136–38. In the
education context, Title II communications claims may conceivably be
more amenable to summary judgment given the extensive factual record
that will often have been developed through IEP meetings and
administrative appeals. We do not, at this juncture, express any general
opinion on this question.
            K.M. V. TUSTIN UNIFIED SCH. DIST.               29

the Unruh Act claim in K.M. v. Tustin, and REMAND for
further proceedings in both cases consistent with this opinion.
