United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN, Chief United States District Judge.
case comes before me on Defendant's Motion for Summary
Judgement . For the following reasons, I GRANT the motion
and dismiss all claims with prejudice.
Save Access Academy (S AA) is an unincorporated association
of "talented and gifted" students and "twice
exceptional" students who attend the ACCESS Academy
(ACCESS) and their parents. Oregon students who perform at or
above the 97th percentile on one or more nationally normed
language arts, math, or cognitive/intellectual tests are
considered Talented and Gifted (TAG) students and are
entitled to instruction designed to accommodate their levels
and accelerated rates of learning. "Twice
exceptional" students are those who (1) give evidence of
the potential for high achievement in areas such as specific
academics, general intellectual ability, creativity,
leadership, and/or visual, spatial, or performing arts; and
(2) have a disability recognized under state and federal law.
exceptional students qualify to receive an Individualized
Education Plan (IEP)or a § 504 accommodation plan from the
Oregon Public School District. About 15% of the 336 students
in ACCESS have IEPs, and another 6.5% of ACCESS students have
Section 504 accommodation plans. About 14% of elementary and
middle school students in the Portland Public School District
was initially run as a first grade through eighth grade
program out of Rose City Park Elementary. On May 29, 2018,
SAA filed its initial complaint and a Motion for a
Preliminary Injunction . On May 30, 2018, the PPS Board of
Education voted to split ACCESS into two school sites. After
holding oral argument on the issue on June 29, 2018, 1
rejected the Motion for a Preliminary Injunction. Since that
hearing, SAA filed an Amended Complaint which withdrew a
claim alleging violation of the Equal Protection Clause,
added Superintendent Guerrero as a defendant to the first
claim, and added claims for violation of the Due Process
Clause and for negligence per se. Defendant Multnomah County
School District No. 1J, also known as Portland Public Schools
(PPS), has moved for summary judgment on SAA's Amended
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law. Fed. R.
Civ. Pro. 56(a). Although the movant has the burden of
showing that no genuine issue of fact exists, the nonmoving
party may not rest upon "mere allegations or denials of
his pleading, but must set forth specific facts showing that
there is a genuine issue for trial." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Each of
SAVE's claims has further legal standards that apply,
which will be discussed with that claim.
First Amended Complaint raises five claims for relief. I
address each claim in turn.
First Claim - Violation of Due Process
Fourteenth Amendment prohibits the government from depriving
any person of property without due process of law. To make a
§1983 claim based on deprivation of procedural due
process; SAA must successfully show three things: "(1) a
liberty or property interest protected by the Constitution;
(2) a deprivation of the interest by the government; (3) lack
of process." Portman v. County of Santa Clara,
995 F.2d 898, 904 (9th Cir. 1993).
first claim alleges that PPS deprived SAA of due process by
removing its "right to a government conferred program
known as ACCESS Academy as a 1st through 12th grade gifted
program located on a single campus." First Am. Compl.
 at 25. SAA cites Goss v. Lopez,419 U.S. 565
(1975), for the proposition that a protected interest in
property can be created and defined by sources independent of
the United States Constitution, such as state statutes or
rules which entitle state citizens to certain benefits. In
Goss, the Supreme Court held that because Ohio
established and maintained a public school system which it
required children to attend, Ohio had created a protected