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It was at this crucial time that R.P. became severely depressed had a nervous breakdown,
and attempted suicide several times; R.P. experienced severe panic and anxiety attacks,
and was afraid to leave his room. R.P. was admitted at a behavioral center as a result of
the bulling, verbal and physical harassment he encountered at GPACS.

All of the Defendants were aware of the situation because Plaintiff contacted every single
one of the Defendants numerous times for years but they all failed to intervene on R.P.

Defendants were deliberately indifferent and turned a blind eye to the abuse and torment
ofR.P. and other disabled students in their care. Plaintiff will address the second part of
the Sixth Claim in so far as the court ruling referencing to the VRP and the failure to
comply does not give rise to rights in third parties such as Plaintiff in her response to the
Tenth,Eleventh and Twelfth Claim. See Doc No. 112-1 pg. 10, line 1-28. Pg. 11, line 1-10.7.
The District Court Erred In Ruling That The Ninth Claim like the Seventh And Eight
Claims For Relief Is Brought Against The School District Defendants And The Individual
Defendants In Their Official Capacities Is An IDEA Claim Impermissibly Recast As a §
504 Seeking Money Damages Unavailable Under The I.D.E.A. And Without Exhausting
Administrative Remedies Of The I.D.E.A. The Ninth Claim for relief Is Not An Improper

Plaintiff explained to the court that while I.D.E.A. is phrased in terms of a State's
affirmative duty to provide a free, appropriate public education, the Rehabilitation Act is
worded as a negative prohibition against disability discrimination in federally funded
programs. The latter provides: Rehabilitation Act of 1973 29 U.S.C. § 794(a). Referred to
this provision as "§ 504,No otherwise qualified individual with a disability in the United
States, as defined insection 706(8) of this title, shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of,or be subjected to
discrimination under any program or activity receiving Federal financial assistance . . . .
Page 35

Plaintiff stated in her Second Amended Complaint Doc 62, pg. 9, line 5-28. Pg. 10 line 1-17.
“To establish a violation of § 504, Plaintiffs will demonstrate that (1) R.P. is disabled as
defined by the Act; (2) R.P. is "otherwise qualified" to participate in school activities; (3)
the school or the Board receives federal financial assistance; and (4) R.P. was excluded
from participation in, denied the benefits of, or subject to discrimination at, the school.
Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir. 1991); 34 C.F.
R. § 104.4(a). In addition, to be liable, defendants "must know or be reasonably expected
to know of" R.P's disability. Nathanson, Medical College of Pennsylvania 926 F.2d at 1381.
However, plaintiffs "need not establish that there has been an intent to discriminate in
orderto prevail under § 504." Id. at 1384. See Alexander v. Choate, 469 U.S. 287, 297
(1985).There appear to be few differences, if any, between I.D.E.A.'s affirmative duty and §
504's negative prohibition. The regulations implementing § 504 adopt the I.D.E.A.
language, requiring that schools, which receive or benefit from federal financial assistance
"shall provide a free appropriate public education to each qualified handicapped person who
is in the recipient's jurisdiction." Alexander v. Choate, 469. U.S. 287, 297 (1985).Plaintiff
believes that through her supporting documents and Exhibits she did demonstrate that

(1) R.P. is disabled as defined by the Act;

(2) R.P. is "otherwise qualified"to participate in school activities;

(3) the school or the Board does receive federal financialassistance; and

(4) R.P. was excluded from participation in, denied the benefits of, or subjectto
discrimination while he attended GPACS and VUSD.

In addition, to the liability, all defendants knew of R.P.’s disability. All Defendants refused
to provide the FAPE that her son was entitled to, particularly at a crucial point in his life.
Defendants retaliated against the Plaintiff and her children when she requested services
and complained about the pervasive and systemic violations at various meetings at GPACS,
VUSD and community meetings. GPACS discriminated against disabled students by
discouraging and denying enrollment to disabled students, denying disabled students
accommodations and related services (denying Peters son to carry a peak flow meter or to
go into the office to get hisasthma medication) and by retaliating against parents and
students who complained, and
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36therefore denying them the benefits of an education. See Second Amended Complaint
Doc62, pg. 9, line 5-28. Pg. 10 line 1-17.58. As In The Tenth, Eleventh And Twelfth Claim
For Relief; Individuals Have ACause Of Action To Enforce Section 601 of Title VI of the
Civil Rights Act of 1964 Provides:5The Third Circuit in W.B v. Matula 67 F.3d 484 (3d Cir.
1995) relied on the exception,of the 1984 Supreme Court decision, which held that;“When
EHA, § 504, and Equal Protection Clause claims overlap, EHA procedures are the exclusive
means by which parents and children can secure a free appropriate education. Smith v.
Robinson, 468 U.S. 992, 1012-13 (1984). In response to Smith, however,Congress amended
the EHA to add § 1415(f), a provision which establishes that thestatute's provisions are not
the sole means for redress available to disabled children and their parents. See The
Handicapped Children's Protection Act of 1986, Pub.L. No. 99-372 § 3, 100 Stat. 796 (1986).
In enacting § 1415(f), Congress specifically intended thatEHA violations could be redressed
by § 504 and § 1983 actions, as the legislative history reveals. The Senate Report discussed
Smith at length, including quoting favorably fromthe Smith dissent, see S.Rep. No. 99-112,
99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 1798, 1799 ("Senate Report").
The House Conference Report stated "[i]t isthe conferees' intent that actions brought
under 42 U.S.C. 1983 are governed by [§ 1415(f)]." H.R.Conf. Rep. No. 99-687, 99th Cong.,
2d Sess. (1986); 1986 U.S.C.C.A.N.1807, 1809. In addition, the House Report made explicit
that "since 1978, it has been Congress' intent to permit parents or guardians to pursue the
rights of handicapped children through EHA, section 504, and section 1983 . . . .
Congressional intent was ignored by the U.S. Supreme Court when . . . it handed down its
decision in Smith v.Robinson ." H.R. Rep. No. 99-296, 99th Cong., 1st Sess. 4 (1985)
("House Report") (firstemphasis added).Section 1415(f) was thus enacted to "reaffirm, in
light of [ Smith ], the viability of section504, 42 U.S.C 1983, and other statutes as separate
vehicles for ensuring the rights ofhandicapped children." Id. We have previously
characterized the enactment of § 1415(f)as overruling Smith . See Board of Education v.
Diamond , 808 F.2d 987, 994-95 (3d Cir. 1986). Far from inferring a congressional intent to
prevent § 1983 actions predicated on IDEA then, we conclude that Congress explicitly
approved such actions. Accordingly,§ 1983 supplies a private right of action for the instant
case.,,,,,,,, "[A]lthough weexamine the text and history of a statute to determine whether
Congress intended to create a right of action, we presume the availability of all appropriate
remedies unlessCongress has expressly indicated otherwise." Franklin v. Gwinnett County
Pub. Sch. ,503 U.S. 60, 66 (1992) (citation omitted) (monetary damages available as remedy
inaction to enforce Title IX). The Court went on to announce the "general rule" that
"absentclear direction to the contrary by Congress, the federal courts have the power to
awardany appropriate relief in a cognizable cause of action brought pursuant to a
federalstatute." Id. at 70-71. Since Franklin , one court of appeals has concluded that
"moneydamages are available under § 504." Rodgers v. Magnet Cove Public Schools , 34 F.
3d 642, 645 (8th Cir. 1994). See also Lue v. Moore , 43 F.3d 1203, 1205 (8th Cir. 1994)
(same). The Eighth Circuit reasoned that the Rehabilitation Act incorporates the
remediesof Title VI of the Civil Rights Act of 1964, Title IX is also modeled after Title VI,
and thus "the Court's holding on Title IX in Franklin applies equally to Title VI and
Section504 cases." Rodgers , 34 F.3d at 644. See 29 U.S.C. § 794a(a)(2). We agree, and
thushold that plaintiffs may seek monetary damages directly under § 504, as well as the §
1983 claim predicated on § 504.
Page 37
37“No person in the United States shall, on the ground of race, color, or national origin,be
excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving federal financial assistance.”Title VI of the Civil
Rights Act of 1964 was enacted to redress a pervasive problem of racediscrimination in
programs and activities receiving federal financial assistance. The broad language of
Section 601 can be read to encompass a prohibition on discriminating againstpersons who
complain about or oppose race discrimination. Title VI has been consistentlyinterpreted to
prohibit retaliation. The Supreme Court has also interpreted another anti-discrimination
statute to contain a prohibition on punishing individuals for opposingdiscrimination. As
noted in all of Plaintiff’s pleadings, responses to Defendants motions to dismiss and
supporting documents including the letters she sent to OCR she continuallydeclare that
Defendants retaliated against her and her son because she addressed title VI,I.D.E.A. and
Section 504 violations and for filing Uniform Complaints with OCR.The Voluntary
Resolution Plan “VRP” that was drafted between OCR and VUSDincluded the prohibitions,
a definition statement of harassment, including specific examplesof the types of conduct
that are prohibited, reporting, investigating, the range of disciplinemeasures which may be
imposed against persons found to have engaged in racially harassingand /or retaliatory
behavior in violation of the District’s policy and procedures; preventingviolations from
recurring, A prohibition of retaliation against any person who has broughta complaint
charging racial harassment, and /or participated in the complaint process;and Impartial
appeal procedures. Anti- retaliation, anti-harassment policies, teacher, studentand staff
training that VUSD agreed to draft and implement to comply with the laws. In theVRP the
prohibition of “retaliation” against any person who has brought a complaint orparticipated
in a complaint process is clear and VUSD agreed to implement the contractualagreement
in the VRP. Their law firm Stutz, Gallagher, Artiano, Shinoff and Holtz, ‘DanielShinoff’
who is representing VUSD in this case knew and should have known of the VRPsince his
firm too agreed to the VRP and a copy of the VRP was sent to them and VUSD byOCR lead
investigators; in addition by CDE investigators for the Out of Compliance issues.
Page 38
38Peters has standing to bring a private right of action for the retaliation she suffered
dueto Defendants wrongful, malicious, deliberate and indifferent actions against her
children,which caused her tremendous grief, extensive torment and loss wages. The very
fact thatOCR sent VUSD a second letter reminding VUSD that they had not complied with
thecontractual agreement under the VRP followed by a visit of about 10-12 CDE
investigators.Citing VUSD out of compliance with similar deficiencies, of discriminatory,
systemic and pervasive practices is self evident that VUSD and its agents retaliatory
actions againstPlaintiff and her son were deliberately indifferent, audacious, willful and
spiteful againstPlaintiff’s rights under constitutional and statutory mandates imposed
CongressionalSpending Clause Legislation and the 14 Amendment Due Process and Equal
Protectionunder the laws; See Amended Complaint Doc. 24 Pg. 10, 26-28 through Pg. 19.
line 27.The Supreme Court, and a majority of the courts of appeals have interpreted anti-
discrimination statutes to contain within them a prohibition on punishing individuals
forcomplaining about or advocating an end to discrimination even absent a specific
mention ofretaliation. The Supreme Court did so in Sullivan v. Little HuntingPark, Inc.,
396 U.S. 229 (1969). Sullivan was a white man who owned two homes in a community, each
of whichcame with a “membership share” that entitled the shareholder to use Community
Park owned and operated by a non-profit corporation. The view of both agencies is that
thestatute itself prohibits retaliation. The Department of Justice issued a manual to
federalagencies regarding recipients’ obligations under Title VI that stated “[a]
complainant maybring a retaliation claim under Title VI or under a Title VI regulation
that prohibitsretaliation.” Sullivan v. Little HuntingPark, Inc., 396 U.S. 229 (1969). In
Jackson v.Birmingham Board of Education No. 02-1672 2005 the Supreme Court of the
United StatesJustice O'Connor ruled that "Discrimination" is a broad term covering a
wide range ofintentional unequal treatment; "Retaliation is, by definition, an intentional
act." SeePlaintiff’s response to Defendants motion to dismiss her Third Amended
Complaint Doc.No. 86 Pg. 7, line 18-28 though pg. 10 line 27.
Page 39
399. As to the Claims for Relief Tenth, Eleventh and Twelfth; Plaintiff has her ownrights
Under the I.D.E.A.This Court has recognized that parents have standing to bring claims
under the I.D.E.A.Cheryl Blanchard v. Morton School District; Russ Davis; Regine
Aleksunas, SE teacher; JimGrossman, SLP; Robyn Goodwin, Principal Defendants. [Case
No. No. 03—35677], 420 F.3d 918; 2005. Chief Justice Schroeder delivered the opinion of
this Court in favor of a pro se mother with an autistic child who filed an action seeking
damages for the mother's ownemotional distress caused by the conduct of the defendants,
the Morton School District and its current and former employees, in providing special
education services to her son. ThisCourt reversed the ruling of the district court and ruled
that there was no exhaustion ofadministrative remedies for Blanchard’s claims. Blanchard
also sought money damagesagainst current and former employees pursuant to 42 U.S.C. §
1983 for alleged emotionaldistress caused by the conduct of the defendants in providing
special education services to her son under the I.D.E.A. See also Lillian L. Mosely, v.
Board of Education of the City ofChicago United States Court of Appeals for the Seventh
Circuit 434 F.3d 527; 2006.Mosely, a pro se mother of a student with special needs
eventually sued for retaliation underthe I.D.E.A. 20 U.S.C. §§ 1400 et seq., complaining
about her son’s Melvin's treatment and the procedures the school had used, and under 42
U.S.C. § 1983, asserting that her own civilrights had been violated through the Board's
retaliatory acts. The Seventh Circuit Court ofappeals reversed the denial of her complaint
by the district court and ruled that Mosely could proceed.Weber v. Cranston Sch. Comm.,
212 F.3d 41, 50 (1stCir. 2000) a parent brought claimsagainst the school district
individually claiming that the school district retaliated against herdue to her efforts to
enforce the provisions of the I.D.E.A. and Section 504 by filingcomplaints about the school
district’s failure to provide services to her son. 212 F.3d at 45-47. The retaliation included
efforts to “put the parent on the defensive” and “shut her down”in the special education
process, placing restrictions on her access to her son’s educational
Page 40
40records, and threatening to report her to the Department of Children, Youth and
Families.6Id. at 47. A party who has standing to bring claims in federal court should be
able to pursuethose claims with or without an attorney in federal court. The statutory right
to self-representation in civil cases under 28 U.S.C. § 1654 is parallel to the constitutional
right to self-representation. See Andrews, 780 F.2d at 137; O'Reilly, 692 F.2d at 867; In re
LasColinas Dev. Corp., 585 F.2d at 12. Maroni v. Pemi-Baker Regional School District, No.
03-1407 (1st Cir. October 9, 2003).If a party has standing to bring a claim with an attorney,
it follows that they also have astatutory right to bring that claim without an attorney. See
Boswell v. Mayer, 169 F.3d 384,387 (6thCir. 1999). The statutory right to self-
representation in 28 U.S.C § 1654 providesthat “parties may plead and conduct their own
cases personally or by counsel...." (emphasisadded). Similarly, standing is the
determination of whether a specific person is the properparty to bring a particular claim to
federal court for adjudication. Raines v. Byrd, 521 U.S.811, 818 (1997); Warth v. Seldin,
422 U.S. 490, 498-99 (1975). A determination that a partyhas standing means that the party
is the proper person to bring that claim because they havea “personal stake” in the dispute
and a have suffered or will likely suffer a "particularized injury,” which means that "the
injury must affect the plaintiff in a personal and individualway." Byrd, 521 U.S. at 818-19;
Warth, 422 U.S. at 498-99; Lujan v. Defenders of Wildlife,504 U.S. 555, 560-561(1992). A
finding of standing should also be a finding that the partyis asserting “their own case”
under 28 U.S.C § 1654 since the party has a “personal stake” inthe outcome of the case
and a “particularized injury” as a result of particulars of the case.Once a party has
standing to bring a claim in federal court, the party should be entitled to bring that claim
with or without an attorney under 28 U.S.C § 1654. To have standing, threespecific
elements must be met: 1) personal injury or threat of injury, 2) that is fairlytraceable to
the defendant, and 3) that is likely to be redressed by the requested relief.6Ms. Weber
subsequently brought another claim in federal court pro se alleging theschool district
denied her daughter FAPE. Weber v. Cranston Public School Committee,245 F.Supp.2d 401
(D.R.I. 2003).
Page 41
41Raines, 521 U.S. at 818; Weber v. Cranston Sch. Comm., 212 F.3d 41, 50 (1stCir. 2000);
Valley Forge Christian College v. Americans United for Separation of Church and State,
Inc., 454 U.S. 464, 472 (1982). Plaintiff Peters in this case meet these standing
requirements for both the substantive and procedural claims she raised and, as a result,
has a right under28 U.S.C § 1654 to pursue these claims in federal court without an
attorney. The declared violation by the school district of these statutory and constitutional
rights constitutes injuryin fact that is fairly traceable to the defendant’s actions. Weber,
212 F.3d at 50; Heldman vSobol, 962 F.2d 148 (2ndCir. 1992); Warth, 422 U.S. at 514;
Havens Realty Corp. v.Coleman, 455 U.S. 363, 373 (1982).


For these reasons, the Plaintiff respectfully requests that this Court reverse the Southern
District Court’s dismissal of her Complaint and remand her case for further proceedings.
To rule that Plaintiff may pursue the claims she raised in the district court, with or without
an attorney. In the alternative, the Plaintiff asks that this Court reverse the district court’
s decision in part and rule that the Plaintiff may pursue her claims of procedural violations
and appoint counsel to allow her son to pursue claims for substantive violations.  Oral
ArgumentGiven the importance of the issues presented in this appeal and that they are
issues of first impression in this Circuit, the Plaintiff request the opportunity to present
oral argument.

Certificate of Compliance

I hereby certify that the foregoing INFORMAL BRIEF contains 13,922 words as indicated
by the word count tool contained in the “Word XP” word processing program.

Respectfully submitted,
Original Brief dated February 16, 2007

Page 42


I _______ declare that: I am over the age of eighteen years and not a party to the action. I
hereby certify that on this 16th day of February 2007, I caused the original and seven (7)
copies of the ReplyBrief for Plaintiff-Appellant Silvia Peters to be delivered by third-party
commercial carrier for overnight delivery to: Office of the Clerk U.S. Court of Appeals for
the Ninth Circuit P.O. Box 193939San Francisco, CA 94119-3939(415) 556-9800
I further certify that on this 16th day of February 2007, I caused two copies of the same to
be served by third-party commercial carrier to:

Stutz, Artiano Shinoff & Holtz                             Rick H. Knock Esq. SBN 170170      
A professional Corporation                                   Kris Jacobs, Esq. SBN 174944
Daniel Shinoff Esq. SBN 099129                            7840 El Cajon Boulevard, Suite 500
Gil Abid Esq. SBN 19577                                        La Mesa, California 91941
12488 Historic Decatur Road, Suite 200
San Diego, Ca. 92106
Counsel for Defendants-Appellees

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.  Executed this 16th day of February 2007 at Oceanside,
Originally signed and dated February 16, 2007

San Diego
Education Report I
SD Education Rprt Blog
Peters versus Guajome Park Academy
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