NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 24 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRYSTAL MORALES, No. 17-56724

Plaintiff-Appellant, D.C. No. 8:14-cv-00699-AG-DFM v.

NEWPORT-MESA UNIFIED SCHOOL MEMORANDUM*

DISTRICT,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Argued and Submitted April 8, 2019 Pasadena, California

Before: PAEZ and CLIFTON, Circuit Judges, and KATZMANN,** Judge.

Crystal Morales appeals the district court’s orders affirming the California

Office of Administrative Hearings (“OAH”)’s decision and granting summary

judgment in favor of Newport-Mesa Unified School District (“Newport-Mesa”).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gary S. Katzmann, Judge for the United States Court of International Trade, sitting by designation. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Morales is a former student of Newport Harbor High School in Newport

Beach who, halfway through her senior year, was hit by a car, resulting in life-

threatening injuries and traumatic brain injury. After graduating from high school,

Morales, through her mother, filed a petition with the OAH alleging various

violations of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.

§§ 1400 et seq.1 The Administrative Law Judge (“ALJ”) concluded that Newport-

Mesa failed in its child find duties because, despite having notice about the

traumatic brain injury, Newport-Mesa failed to offer Morales’s mother an

assessment plan to determine Morales’s eligibility for special education. The ALJ

therefore concluded that Newport-Mesa denied Morales a free appropriate public

education (“FAPE”). The ALJ also concluded that there were no other procedural

violations that denied Morales a FAPE and that, for the purposes of the IDEA,

Morales graduated with a valid high school diploma. On the basis of the child find

violation, the ALJ awarded 40 hours of tutoring (valued at $2,600), a vocational

assessment, and an assistive technology assessment.

Morales timely filed a complaint with the district court, challenging OAH’s

rulings against her and bringing a claim under Section 504 of the Rehabilitation

1 Morales also argued that Newport-Mesa denied her rights under Section 504 of the Rehabilitation Act, the Americans with Disabilities Act and state civil right laws. OAH dismissed these claims for lack of jurisdiction under the IDEA.

2 Act, 29 U.S.C. § 794. The district court affirmed the OAH decision in full and

granted Newport-Mesa’s motion for summary judgment on the Section 504 claim.

Reviewing the district court’s conclusions of law and summary judgment order de

novo, and its findings of fact for clear error, see Timothy O. v. Paso Robles Unified

Sch. Dist., 822 F.3d 1105, 1118 (9th Cir. 2016), A.G. v. Paradise Valley Unified

Sch. Dist. No. 69, 815 F.3d 1195, 1202 (9th Cir. 2016), we affirm both rulings.

2. First, we agree with the district court’s conclusion that the administrative

findings merit substantial weight because they were “thorough and careful.” Park

ex rel. Park v. Anaheim Union High Sch. Dist., 464 F.3d 1025, 1031 (2006) (per

curiam). The ALJ’s decision “contains a complete factual background as well as a

discrete analysis supporting the ultimate conclusions.” Id. (citing Seattle Sch.

Dist., No. 1 v. B.S., 82 F.3d 1493, 1499 (9th Cir. 1996)). The record supports the

ALJ’s determination that Morales’s mother received the procedural safeguards

required under 34 C.F.R. § 300.504, and that any other procedural violations of

Morales’s rights were harmless for the reasons identified by the ALJ. See R.B. ex

rel. F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 942 (9th Cir. 2007) (“A

procedural violation does not constitute a denial of a FAPE if the violation fails to

result in a loss of educational opportunity.” (internal quotation marks and

alterations omitted)).

The ALJ also properly concluded that Morales cannot challenge Newport-

3 Mesa’s waiver of graduation requirements as a denial of a FAPE under the IDEA.

See Wyner ex. rel. Wyner v. Manhattan Beach Unified Sch. Dist., 223 F.3d 1026,

1028–29 (9th Cir. 2000) (noting that California Education Code § 56501(a)

provides for jurisdiction for only “due process” claims that arise under the IDEA).

The IDEA “requires an educational program reasonably calculated to enable a

child to make progress appropriate in light of the child’s circumstances,” but it

does not impose objective standards on a student’s high school diploma. Endrew

F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001–02

(2017).

We also affirm the ALJ’s award of some compensatory education services.

Given Morales’s generalized request for “academic services, transition services,

related services, and mental health services,” the ALJ did not abuse her discretion

in relying on Dr. Nancy Merkel’s recommendation of the Fusion Learning

Academy. See Park, 464 F.3d at 1033. On appeal, Morales failed to articulate the

exact services she was requesting, and, as noted in Parents of Student W. v.

Puyallup Sch. Dist., No. 3, Morales’s graduation weighs heavily against expanding

the remedy already awarded. 31 F.3d 1489, 1497 (9th Cir. 1994).

3. Lastly, the district court did not err in granting summary judgment on

Morales’s Section 504 claims. Morales has not shown how Newport-Mesa’s

alleged failure to accommodate her was the result of intentional discrimination or

4 deliberate indifference. Mark H. v. Lemahieu, 513 F.3d 922, 938 (9th Cir. 2008).

Specifically, Morales has not shown a triable issue of fact as to whether Newport-

Mesa waived graduation requirements or failed to provide a Section 504

assessment solely on the basis of her disability. Id.; see also K.M. ex rel. Bright v.

Tustin Unified Sch. Dist., 725 F.3d 1088, 1099 (9th Cir. 2013) (noting that “[t]he

causal standard for the Rehabilitation Act is even stricter [than Title II], requiring a

plaintiff to show a denial of services solely by reason of disability.” (internal

quotation marks and citation omitted)).

While we are sympathetic to Morales’s situation, we are cognizant of the

Supreme Court’s admonition that courts not “substitute their own notions of sound

educational policy for those of the school authorities which they review.” Endrew

F., 137 S. Ct. at 1001 (citing Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist.

Westchester Cty. v. Rowley, 458 U.S. 176, 206 (1982) (quotation mark omitted)).

We are also wary of the possibility of school districts acting with less good faith

and pushing students like Morales out the door when they would otherwise qualify

for special needs education and related services. Under the circumstances

presented in this record, however, we affirm the district court’s judgment in all

respects.

AFFIRMED.

5