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Save Access Academy v. Multnomah County School District No. 1J

United States District Court, D. Oregon, Portland Division

March 13, 2019

MULTNOMAH COUNTY SCHOOL DISTRICT NO. 1J, an Oregon public corporate entity by and through the Board of Directors of Multnomah County School District No. 1J and GUADALUPE GUERRERO, Superintendent, individually and in his official capacity, Defendants.


          MICHAEL W. MOSMAN, Chief United States District Judge.

         This case comes before me on Defendant's Motion for Summary Judgement [71]. For the following reasons, I GRANT the motion and dismiss all claims with prejudice.


         Plaintiff 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.

         Twice exceptional students qualify to receive an Individualized Education Plan (IEP)[1]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 have IEPs.

         ACCESS 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 [2]. 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 Complaint.


         A court 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.


         SAA's First Amended Complaint raises five claims for relief. I address each claim in turn.

         I. First Claim - Violation of Due Process

         The 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).

         SAA's Property Interest

         SAA's 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. [70] 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 property ...

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