S.H. Ex Rel. Durrell v. Lower Merion School District

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-3264

_____________

S.H., By and Through her Parent and Educational Decision

Maker, Carol Durrell; CAROL DURRELL,

Appellants

v.

LOWER MERION SCHOOL DISTRICT

_____________

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civ. Action No. 10-cv-06070)

District Judge: Honorable Harvey Bartle, III

______________

Argued: May 23, 2013

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Before: RENDELL, GREENAWAY, JR., Circuit Judges, and

ROSENTHAL, District Judge.

*

Honorable Lee H. Rosenthal, District Judge, United States

District Court for the Southern District of Texas, sitting by

designation.

1

(Opinion Filed: September 5, 2013)

______________

OPINION

______________

Sonja D. Kerr, Esq. (argued)

Public Interest Law Center of Philadelphia

1709 Benjamin Franklin Parkway

United Way Building, 2nd Floor

Philadelphia, Pennsylvania 19103

Counsel for Appellants S.H. and Carol Durrell

Michael D. Kristofco, Esq. (argued)

ShaVon Y. Savage, Esq.

Jenna B. Berman, Esq.

Amy T. Brooks, Esq.

Wisler Pearlstine LLP

460 Norristown Road

Suite 110

Blue Bell, Pennsylvania 19422

Counsel for Appellee Lower Merion School District

GREENAWAY, JR., Circuit Judge.

On November 5, 2010, S.H. and her mother, Carol

Durrell (“Ms. Durrell”) (collectively, “Appellants”) filed suit

against Lower Merion School District (“School District”),

alleging violations of the Individuals with Disabilities

Education Act (“IDEA”), § 504 of the Rehabilitation Act

2

(“RA”), and § 202 of the Americans with Disabilities Act

(“ADA”). Appellants contend that the School District

misdiagnosed S.H. as disabled for several years, and that, as a

result, it is liable under the IDEA for compensatory education

and under the RA and ADA for compensatory damages. The

District Court dismissed Appellants‟ IDEA claim for failure

to state a claim. The District Court then granted summary

judgment in the School District‟s favor as to the RA and the

ADA claims. This appeal followed. For the reasons set forth

below, we will affirm.

I. BACKGROUND

A. Facts

S.H., who is African-American, began attending Penn

Valley Elementary School in the Lower Merion School

District in kindergarten. Beginning in first grade (the 2000-

2001 school year), S.H. was placed in Title I classes.1 Ms.

Durrell received a brochure and letters explaining Title I

services and consented to S.H.‟s enrollment in the program.

S.H. received Title I services from first grade through fifth

grade.

1

Title I is a federally funded remedial program designed to

improve a student‟s academic performance in reading and

math. Title I supplements a student‟s regular school program

work by providing the student with extra instruction in the

student‟s regular classroom. Title I is not intended strictly for

disabled students, but for any student in need of extra help.

3

On October 2, 2001, when S.H. was in second grade,

Ms. Durrell met with Santa Cucinotta, the school

psychologist (“Ms. Cucinotta”), the school counselor, and the

principal. At this conference, they discussed that S.H. was

having difficulty with confidence, as well as reading, writing,

and getting her thoughts on paper. The team collectively

agreed that S.H. should continue to receive Title I reading

services. After this meeting, Ms. Cucinotta began to monitor

S.H.‟s progress in her classes. The School District also

created a “Child Study Team” to monitor S.H.‟s progress.

Ms. Durrell participated in many of the Child Study Team

meetings.

When S.H. was in third grade (the 2002-2003 school

year), Ms. Cucinotta and Ms. Durrell again discussed S.H.‟s

difficulties in school. During the spring of that year, S.H.

scored below the benchmark2 on the reading portion of the

Pennsylvania System of School Assessment (“PSSA”).3 On

May 23, 2003, Ms. Durrell met with the school counselor and

the principal. They agreed that, while S.H. was “enthusiastic”

2

Throughout the record, there are references to S.H.‟s scores

on standardized tests as compared to benchmark scores.

However, aside from the absolute numerical value, we have

been provided no information with which to contextualize

these scores. Without additional insight as to their meaning,

we can ascribe only limited weight to these scores as part of

our analysis.

3

S.H. scored 1217 when the benchmark score for a student

her age was 1321.

4

and “had a nice grade 3 experience,” the team needed to

develop strategies directed toward improving S.H.‟s attention

and focus. (App. 464.)

At the beginning of S.H.‟s fourth-grade year (the

2003-2004 school year), S.H. scored below the benchmark

score on the Degrees of Readings Powers (“DRP”) test.4 On

February 24, 2004, the Child Study Team, consisting of Ms.

Durrell, Ms. Cucinotta, the school counselor, and S.H.‟s

fourth-grade teacher, met to discuss S.H.‟s progress. They

talked about S.H.‟s enthusiasm for certain activities, but noted

her unwillingness to continue participating in Title I reading

classes, and her difficulties with “place value” in math, and

“decoding” and “understanding the main idea” in reading.

(App. 465.) The team decided to send a referral packet to

pupil services for S.H. and issued a Permission to Evaluate

(“PTE”), which is a request to the parent that the student be

evaluated in order to determine eligibility and need for special

education services. Ms. Durrell consented to the evaluation.

That year, S.H.‟s fourth-grade teacher also explained to Ms.

Durrell that S.H. was “struggling” in her studies. On June 6,

2004, the School District issued another PTE for S.H., and on

June 8, Ms. Durrell again consented.

Ms. Cucinotta began the evaluation in June 2004,

using the predicted achievement model to assess S.H.5 The

4

S.H. scored 38 when the benchmark score for a student her

age was 42-48.

5

The predicted achievement model is an accepted model

within the School District for evaluating students. Under this

model, a computer program generates an expected

5

results revealed a 16-point discrepancy between S.H.‟s

expected score of 106 and her Reading Comprehension score

of 90.6 As part of the evaluation, Ms. Cucinotta considered

whether any mitigating factors would have affected S.H.‟s

achievements, such as S.H.‟s personal or familial

circumstances.7 Ms. Cucinotta also spoke with Ms. Durrell,

reviewed a literacy specialist‟s evaluations of S.H. from the

end of third grade and the beginning of fourth grade, and

considered S.H.‟s below-benchmark PSSA and DRP scores.

Ms. Cucinotta considered the testing scores, as well as her

own “clinical observations of [S.H.‟s] language processing,

the difficulty [S.H.] had with directions, [and] the vocabulary

that [S.H.] didn‟t understand.” (App. 381.)

Ms. Cucinotta concluded her evaluation at the

beginning of S.H.‟s fifth-grade year (the 2004-2005 school

year), and published the results in two evaluation reports,

dated September 2 and 13, 2004. As a result of the

evaluation, Ms. Cucinotta determined that S.H. had a learning

achievement score based on the student‟s IQ, which is then

compared to the student‟s actual score.

6

Joanna Wexler, a psychologist for the School District,

testified in her deposition that a 15-point discrepancy between

the expected achievement score and the actual achievement

score is considered an indication of a learning disability.

7

In January of 2002, tragedy struck S.H.‟s family when a

murder-suicide took the lives of five of S.H.‟s relatives,

including a 14-year-old cousin with whom S.H. was very

close. S.H. took these deaths particularly hard and had

difficulty coping with them.

6

disability in reading and math and recommended that she

receive specially designed instruction in these areas. The

reports also noted that S.H. was unhappy that she was

designated as disabled and had told Ms. Cucinotta that she did

not think she belonged in special education. Ms. Durrell

reviewed and signed the evaluation reports, indicating that

she agreed with the recommendations.

Following her designation as disabled, a team was

assembled to develop an Individualized Education Program

(“IEP”) for S.H. The record indicates that the IEP team

considered S.H.‟s personal sentiment that she did not want to

be in special education, and that Ms. Cucinotta and a

guidance counselor subsequently discussed S.H.‟s feelings

with her. On October 1, 2004, Ms. Durrell attended an IEP

meeting for S.H., during which Ms. Durrell received and

approved the Notice of Recommended Placement

(“NOREP”). The NOREP indicated that S.H. would receive

special education services during her fifth-grade year —

specifically, learning support in the resource room as well as

itinerant speech and language therapy.

On November 14, 2004, the IEP team met again to

create a revised IEP for S.H., which Ms. Durrell approved. A

revised NOREP was subsequently issued, indicating that S.H.

would continue to receive speech and language therapy, and

would also be placed in a part-time learning support class

called Instructional Support Lab (“ISL”).

On January 25, 2005, when S.H. was in fifth grade and

less than three months after she was placed in special

education, S.H. scored above-grade level on the Woodcock

Reading Mastery Test. She scored at a 5.3 grade level in

7

word identification, 6.4 grade level in word attack, and 6.7

grade level in word comprehension.

From sixth to eighth grade, S.H. attended Welsh

Valley Middle School in the School District. S.H.‟s IEP team

selected her classes, with her mother‟s approval. When S.H.

was in sixth grade, the IEP team developed a new IEP

providing S.H. with accommodations for standardized testing.

Ms. Durrell agreed to these accommodations.

On October 5, 2006, Ms. Durrell emailed S.H.‟s

seventh-grade ISL teacher and stated, “I am really concerned

about [S.H.‟s PSSA] score. She is below proficiency. Could

we consider having her work with the Reading Specialist . . .

she needs some one-to-one instruction to bring her up to

proficiency. This is a real concern for me now. . . it is

obvious that more needs to be done.” (App. 223-24, 573.) In

response to this email, the School District provided S.H. with

one-on-one instruction with a reading specialist. S.H. again

confided in her seventh-grade teacher that she was unhappy

with ISL and didn‟t feel like she needed the extra help.

On May 23, 2007, when S.H. was in seventh grade, the

School District issued an evaluation report analyzing S.H.‟s

academic progress. The report indicated that S.H. was

receiving good grades in her classes and had made positive

progress toward her IEP goals. The report recommended

S.H. be removed from special education services for language

arts due to her progress in that area, but that she continue to

receive specialized instruction in reading and writing.

Following the 2007 evaluation, these recommendations were

implemented. Because S.H. continued to receive special

education, there was not time in her schedule for her to take

eighth-grade science and Spanish.

8

S.H. began attending Lower Merion High School when

she was in ninth grade (the 2008-2009 school year). The

School District created a suggested schedule of classes for

S.H.‟s ninth-grade year, which included ISL, and sent the

schedule home to Ms. Durrell. All parents of rising ninth-

graders had the option of requesting a change in their child‟s

suggested course schedule. Ms. Durrell had this option of

picking different courses for S.H., but elected not to do so.

That fall, S.H. scored just below the benchmark on the

Advanced Degrees of Reading Power Test.8

On April 21, 2009, the School District issued a second

PTE for S.H. to determine if she still needed special

education; Ms. Durrell consented to the evaluation. Dr. Craig

Cosden (“Dr. Cosden”), a School District psychologist,

performed the evaluation. As part of the evaluation, Dr.

Cosden spoke with both S.H. and Ms. Durrell, obtained

reports from S.H.‟s teachers, discussed S.H.‟s progress with

both the Literacy Specialist and the Math Specialist, and

reviewed S.H.‟s grades and scores on standardized tests. Dr.

Cosden determined that S.H. had average intelligence, but

consistently demonstrated achievement levels below her

intelligence level in the areas of reading and math. The

evaluation report also indicated that S.H. had a specific

learning disability, although the disability was not identified.

8

S.H. scored 49 when the benchmark score for a student her

age was 50-70.

9

Dr. Cosden thus concluded that S.H. was still in need of

special education in reading and math.9

S.H. continued to have ISL classes in tenth grade. On

November 2, 2009, Ms. Durrell requested that the School

District remove S.H. from ISL and place her in study hall.

The School District changed S.H.‟s schedule in accordance

with this request within two days.

The School District complied with Ms. Durrell‟s other

requests as well. For example, on November 13, 2009, Ms.

Durrell emailed Dr. Kimberly Fedchak (“Dr. Fedchak”), a

school employee, to ask if Dr. Fedchak could meet with S.H.

one-on-one for additional instruction. Ms. Durrell wrote, “I

would like to know if [S.H.] can come in to work with you

one-on-one, during academic recovery to go over her test

corrections. She said she didn‟t have a clear understanding of

the material. She does have math goals in her IEP. I feel the

more individual instruction she has, the better she‟ll do.”

(App. 237, 704.) Dr. Fedchak agreed.

Also in November of 2009, Dr. Cosden met with Ms.

Durrell and Ms. Durrell‟s legal counsel, as part of an IEP

meeting. During this meeting, Ms. Durrell‟s counsel

requested a copy of the testing protocols relating to Dr.

Cosden‟s evaluation of S.H. Dr. Cosden lied to Ms. Durrell

and told her that the testing protocols had been destroyed. Dr.

Cosden later admitted that he had “intentionally misled the

9

In June 2006, S.H.‟s close friend was killed in a car

accident, and S.H. struggled to cope with this death. Dr.

Cosden‟s report makes no mention of either this event or the

2002 murder-suicide.

10

family” because he did not think it was “ethical” for him to

disclose the protocols to “persons who have no ability to be

able to process and understand the information.” (App. 963.)

On November 23, 2009, Ms. Durrell filed a Due

Process Complaint Notice, requesting a special education

hearing and seeking an Independent Education Evaluation

(“IEE”). The School District consented to the IEE, and Ms.

Durrell selected Dr. Umar Abdullah-Johnson (“Dr. Abdullah-

Johnson”), a nationally certified school psychologist, to

perform the evaluation. The IEE was performed in January

2010, and Dr. Abdullah-Johnson published his report on

February 24, 2010. His intelligence tests revealed S.H.‟s IQ

to be 100, which is in the middle of the average range. The

achievement test placed S.H. in the “average” range in four

out of six composite score areas, in the “below average”

range for Reading Comprehension & Fluency, and in the

“superior” range for Basic Reading.

Dr. Abdullah-Johnson also determined that any

discrepancy between S.H.‟s IQ and her achievement scores

was too small to constitute a severe discrepancy, and that the

data used in the 2004 report prepared by Ms. Cucinotta did

not support the School District‟s conclusion that S.H. had a

learning disability. He concluded that S.H.‟s designation as

learning disabled was, and always had been, erroneous.10

10

Additionally, in connection with this lawsuit, two

additional experts, Dr. Tawanna Jones, a certified school

psychologist, and Dr. Ronald Rosenberg, a licensed

psychologist, also reviewed various documents, including

previous evaluations of S.H. and her test scores, and agreed

with Dr. Abdullah-Johnson that S.H. was not disabled.

11

Following Dr. Abdullah-Johnson‟s evaluation, Ms.

Durrell requested that S.H. be removed from special

education. Dr. Cosden also prepared a Reevaluation Report.

The report discussed S.H.‟s academic history and included

observations from S.H.‟s then-current teachers. Dr. Cosden‟s

report also discussed the test results from Dr. Abdullah-

Johnson‟s evaluation of S.H., although it did not specifically

reference Dr. Abdullah-Johnson‟s determination that S.H.

was not, and never had been, disabled. The report did,

however, state that S.H. did not have a disability and

therefore was no longer eligible to receive special education.

On April 12, 2010, the School District issued a NOREP

indicating that S.H. did not have a specific learning disability

and removing her from special education. S.H. received no

special education in her junior and senior years of high

school.

As of February 14, 2012, S.H. had been accepted to

West Virginia University, Kutztown University, Cabrini

College, and Neumann University.

B. Procedural History

Following S.H.‟s removal from special education, the

School District moved to dismiss Ms. Durrell‟s complaint

before the Hearing Officer as moot, because S.H. was not a

child with a disability and therefore was no longer entitled to

the IDEA‟s protection.11 The Hearing Officer agreed and

determined that he did not have jurisdiction over S.H.‟s claim

11

For purposes of that motion, as well as for this appeal, the

School District concedes that S.H. does not have, and has

never had, a learning disability.

12

because she admitted that she is not disabled and never has

been disabled.

On November 5, 2010, Appellants filed suit in federal

district court, alleging three claims. Claim One asserted that,

under the IDEA, the School District violated its duty to

accurately identify children with disabilities and to ensure

that S.H. was properly evaluated and assessed as not disabled.

Claim Two alleged a violation of § 504 of the RA, and Claim

Three alleged a violation of § 202 of the ADA. Claims Two

and Three alleged that the School District discriminated

against S.H. by erroneously identifying her as a child with a

disability.

Appellants sought compensatory education and

monetary damages. According to Appellants, S.H.‟s receipt

of special education services damaged her self-confidence

and academic progress. It also prevented her from

participating in certain regular-curriculum classes, including

science and one year of foreign language during middle

school, and higher-level courses in high school. Appellants‟

expert calculated S.H.‟s damages as $127,010, which includes

two additional years of college tuition, 50 hours of

psychotherapy, and 600 hours of tutoring.

On June 30, 2011, the District Court granted the

School District‟s motion to dismiss Claim One.12 The

12

The School District also moved to dismiss Claims Two and

Three, which the District Court denied. The RA and the

ADA create causes of action for individuals who are

“regarded as” disabled. 29 U.S.C. § 705(20)(B); 42 U.S.C. §

12102(1)(C). The denial of the motion to dismiss Claims

Two and Three is not before us on appeal.

13

District Court concluded that, because S.H. asserts that she is

not disabled, she cannot be, for pleading purposes, “a „child

with a disability‟ and thus cannot seek relief under the

IDEA.” Durrell ex rel. S.H. v. Lower Merion Sch. Dist., No.

10-6070, 2011 WL 2582147, at *2 (E.D. Pa. June 30, 2011).13

On July 19, 2012, the District Court granted summary

judgment in the School District‟s favor as to the remaining

RA and ADA claims. The District Court first ruled that, in

order to sustain a claim seeking compensatory damages under

the RA and ADA, a plaintiff must be able to show evidence

of intentional discrimination on the part of the defendant.

Durrell ex rel. S.H. v. Lower Merion Sch. Dist., No. 10-6070,

2012 WL 2953956, at *5-7 (E.D. Pa. July 19, 2012). The

District Court then concluded that Appellants had produced

no evidence creating a genuine dispute of fact as to

intentional discrimination and granted summary judgment.

Id. at *8 (“While we find any misidentification of S.H.

unfortunate, plaintiffs have not come forward with any

evidence which would allow a reasonable jury to find that the

School District intentionally discriminated against S.H. when

it regarded her as disabled.”).

Appellants filed a timely appeal.

13

The School District also sought to dismiss Claim One

under Fed. R. Civ. P. 12(b)(1) for lack of subject matter

jurisdiction. Recognizing that, unless Congress specifically

defines a limitation in a statute as jurisdictional, courts

“„should treat the restriction as nonjurisdictional in

character,‟” the District Court dismissed Claim One under

Rule 12(b)(6). S.H., 2011 WL 2582147, at *3 (quoting

Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006)).

14

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 28

U.S.C. § 1331 and 20 U.S.C. § 1415(i). We have appellate

jurisdiction pursuant to 28 U.S.C. § 1291.

We exercise plenary review over a district court‟s

decision to dismiss a complaint under Rule 12(b)(6). Fleisher

v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). In

reviewing a dismissal, we “accept all well-pled allegations in

the complaint as true and draw all reasonable inferences in

favor of the non-moving party.” Brown v. Card Serv. Ctr.,

464 F.3d 450, 452 (3d Cir. 2006). To survive a motion to

dismiss, a complaint must contain sufficient factual

allegations that, when taken as true, “state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). “A Rule 12(b)(6) motion should be

granted when it appears to a certainty that no relief can be

granted under any set of facts which could be proved.”

Nichole Med. Equip. & Supply Inc. v. TriCenturion, Inc., 694

F.3d 340, 350 (3d Cir. 2012).

We review a district court‟s grant of summary

judgment de novo, applying the same standard as the district

court. Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d

254, 257 (3d Cir. 2012). A grant of summary judgment is

appropriate where the moving party has established “that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A fact is material if it might affect the outcome

of the suit under the governing law. Scheidemantle v.

Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535,

538 (3d Cir. 2006). The reviewing court should view the

facts in the light most favorable to the non-moving party and

15

draw all reasonable inferences in that party‟s favor. Id.

However, to prevail on a motion for summary judgment, “the

non-moving party must present more than a mere scintilla of

evidence; „there must be evidence on which the jury could

reasonably find for the [non-movant].‟” Jakimas v.

Hoffmann-La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007)

(alteration in original) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 252 (1986)).

III. ANALYSIS

A. IDEA Claim

Appellants argue that the District Court erred when it

dismissed their IDEA claim. Appellants contend that the

IDEA‟s jurisdictional umbrella encompasses not merely

children with disabilities, but also children who have been

misidentified as disabled. This question is a matter of first

impression for this Court, as it requires us to determine

whether the protections and remedies of the IDEA extend

beyond children with disabilities. While Appellants‟

arguments are emotionally compelling, they are ultimately to

no avail.

1. Plain Language of the Statute

This question presents an issue of statutory

interpretation. “Our goal when interpreting a statute is to

effectuate Congress‟s intent. Because we presume that

Congress‟s intent is most clearly expressed in the text of the

statute, we begin our analysis with an examination of the

plain language of the relevant provision.” Hagans v. Comm’r

of Soc. Sec., 694 F.3d 287, 295 (3d Cir. 2012) (citation and

internal quotation marks omitted); see also Jimenez v.

16

Quarterman, 555 U.S. 113, 118 (2009) (“As with any

question of statutory interpretation, our analysis begins with

the plain language of the statute.”). “When the words of a

statute are unambiguous, then this first canon [of statutory

interpretation] is also the last: judicial inquiry is complete.”

Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992).

Moreover, “where the statutory language is unambiguous, the

court should not consider statutory purpose or legislative

history,” In re Phila. Newspapers, LLC, 599 F.3d 298, 304

(3d Cir. 2010), because we operate under the “assumption

that the ordinary meaning of that language accurately

expresses the legislative purpose,” Park ’N Fly, Inc. v. Dollar

Park & Fly, Inc., 469 U.S. 189, 194 (1985).

With this framework in mind, we turn to the language

of the IDEA. The IDEA guarantees “procedural safeguards

with respect to the provision of a free appropriate public

education” to “children with disabilities and their parents.”

20 U.S.C. § 1415(a) (emphasis added). Children with

disabilities (and their parents) who claim violations of the

IDEA can file a complaint with a due process hearing officer.

Id. § 1415(b)(6). The complaint may pertain to “any matter

relating to the identification, evaluation, or educational

placement of the child, or the provision of a free appropriate

public education to such child.” Id. § 1415(b)(6)(A)

(emphasis added). Following the due process hearing, the

IDEA permits an aggrieved party to bring a civil action in any

court. Id. § 1415(i)(2)(A). Thus, a child may file a civil suit

only if he or she would have been entitled to file a complaint

before a hearing officer; it is clear from the plain language

that only “children with disabilities and their parents” may do

so.

17

The IDEA defines “child with a disability” to mean

a child with intellectual disabilities, hearing

impairments (including deafness), speech or

language impairments, visual impairments

(including blindness), serious emotional

disturbance (or referred to in this chapter as

“emotional disturbance”), orthopedic

impairments, autism, traumatic brain injury,

other health impairments, or specific learning

disabilities; and who by reason thereof needs

special education and related services.

Id. § 1401(3)(A). There is no indication that the term “child

with a disability” includes children who are mistakenly

identified as disabled, but who are, in fact, not disabled.14

Therefore, under the Act‟s plain language, it is clear that the

IDEA creates a cause of action only for individuals with

disabilities. Because Appellants assert that S.H. is not, and

never was, a child with a disability, S.H. is excluded from the

IDEA‟s provisions and may not bring a claim under that Act.

(See Appellants Reply Br. 1 (“[The] School District . . .

cannot avoid reality that S.H. is not a child with a disability

and never was.”).) We cannot, sua sponte, create a cause of

action where the plain language of a statute does not provide

for one.15

14

There is no “regarded as” language in the IDEA, which

distinguishes it from the RA and the ADA, as discussed

below.

15

Appellants also rely on our decision in Ferren C. v. School

District of Philadelphia, 612 F.3d 712, 719 (3d Cir. 2010), in

18

2. Legislative History

Appellants argue that the plain language is not

dispositive. They claim that they can maintain a cause of

action under the IDEA because, even though S.H. is not

disabled, she is African-American and the IDEA should be

construed to protect minority children who are misidentified

as disabled. In making this argument, Appellants ask us

“simply to acknowledge the flip side of the „identification‟

coin; that after a school district has, through the IDEA‟s

procedures, misidentified an African-American child as

having a disability, the child enjoys the same protections of

the IDEA hearing process.” (Appellants Br. 17.) In support

of this proposition, Appellants point to language in the

“Findings” section of the IDEA and to a House committee

report prepared in anticipation of the IDEA‟s introduction,

both of which acknowledge the problem of minority students

being misidentified as disabled.16 Appellants contend that

which we held that a disabled young woman, who was 24

years old and not a “child,” was still entitled to bring a claim

under the IDEA. Appellants reason that since we allowed this

young woman, who is not a “child,” to bring a claim, we

should allow S.H., who is not “disabled,” to bring a claim.

(Appellants Reply Br. 11.) This argument stretches our

holding in Ferren C. beyond credulity. We permitted the

claim in Ferren C. because the harm to the young woman had

occurred while she was a “child with a disability.” S.H. has

never been a “child with a disability.”

16

The “Findings” section of the IDEA states:

Greater efforts are needed to prevent the

intensification of problems connected with

19

mislabeling and high dropout rates among

minority children with disabilities. More

minority children continue to be served in

special education than would be expected from

the percentage of minority students in the

general school population. African-American

children are identified as having intellectual

disabilities and emotional disturbance at rates

greater than their White counterparts.

20 U.S.C. § 1400(c)(12)(A). Similarly, the relevant portion

of the House committee report, issued by the House

Committee on Education during its hearings on the IDEA,

states:

For minority students, misclassification or

inappropriate placement in special education

programs can have significant adverse

consequences, particularly when these students

are being removed from regular education

settings and denied access to the core

curriculum. Of particular concern is that, often,

the more separate a program is from the general

education setting, the more limited the

curriculum and the greater the consequences to

the student, particularly in terms of access to

postsecondary education and employment

opportunities. . . . Research shows that African

Americans are nearly three times as likely to be

identified as mentally retarded as their peers

and nearly twice as likely to be labeled

emotionally disturbed.

20

“Congress would have not expressed such concern about the

misidentification of African-American children as disabled

and then left those same children without any recourse under

the IDEA.” (Appellants Br. 19.)

Appellants‟ reliance on the statutory Findings and

House committee report is unavailing. Legislative history has

never been permitted to override the plain meaning of a

statute. As the Supreme Court has made clear, “Congress‟

„authoritative statement is the statutory text, not the

legislative history.‟” Chamber of Commerce v. Whiting, 131

S. Ct. 1968, 1980 (2011) (quoting Exxon Mobil Corp. v.

Allapattah Servs., Inc., 545 U.S. 546, 568 (2005)).

Legislative history may not be used to alter the plain meaning

of a statute. “The law is what Congress enacts, not what its

members say on the floor.” Szehinskyj v. Att’y Gen., 432 F.3d

253, 256 (3d Cir. 2005).

Moreover, “legislative history may be referenced only

if the statutory language is written without a plain meaning,

i.e., if the statutory language is ambiguous.” Byrd v.

Shannon, 715 F.3d 117, 123 (3d Cir. 2013). “Legislative

history . . . is meant to clear up ambiguity, not create it.”

Milner v. Dep’t of Navy, 131 S. Ct. 1259, 1267 (2011); see

also Velis v. Kardanis, 949 F.2d 78, 81 (3d Cir. 1991)

(“There is no need to resort to legislative history unless the

statutory language is ambiguous.”). We must “not take the

opposite tack of allowing ambiguous legislative history to

muddy clear statutory language.” Milner, 131 S. Ct. at 1266;

see also Nat’l Coal. for Students with Disabilities Educ. &

H.R. Rep. No. 108-77, at 98-99 (2003) (internal quotation

marks omitted).

21

Legal Def. Fund v. Allen, 152 F.3d 283 (4th Cir. 1998) (“This

plain meaning cannot be circumvented unless we have the

rare instance when there is a clearly expressed congressional

intent to the contrary or when a literal application of the plain

language would frustrate the statute‟s purpose or lead to an

absurd result.”). Because there is no ambiguity in the IDEA‟s

creation of a cause of action, we need not even look to

legislative history.17

17

In any case, contrary to Appellants‟ assertions, the

legislative history does not evidence Congress‟s desire to

create a cause of action for students who are misidentified as

disabled. As the House committee report makes clear,

Congress sought to remedy the problem of over-identification

through the implementation of preventative and remedial

policies and practices at the local level. See H.R. Rep. No.

108-77, at 98-99. Indeed, Congress enacted several

provisions within the IDEA aimed at addressing this problem.

See, e.g., 20 U.S.C. § 1412(a)(24) (conditioning receipt of

federal funds on the state‟s effectuation of “policies and

procedures designed to prevent the inappropriate over[-

]identification or disproportionate representation by race and

ethnicity of children as children with disabilities”); Id. §

1416(a)(3)(C) (stating that the Secretary of Education has

overall responsibility to oversee the states‟ obligations and

responses as to “[d]isproportionate representation of racial

and ethnic groups in special education” as a result of

inappropriate identification).

22

3. Child Find Provision

Appellants also argue that IDEA‟s “Child Find”

requirement permits this lawsuit. IDEA‟s “Child Find”

provision states:

All children with disabilities residing in the

State, including children with disabilities who

are homeless children or are wards of the State

and children with disabilities attending private

schools, regardless of the severity of their

disabilities, and who are in need of special

education and related services, are identified,

located, and evaluated and a practical method is

developed and implemented to determine which

children with disabilities are currently receiving

needed special education and related services.

20 U.S.C. § 1412(a)(3)(A). Appellants argue that, because

the duty to identify children with disabilities falls squarely on

schools, any parent should be able to bring a complaint to

enforce this provision as this is clearly a “matter relating to

the identification, evaluation, or educational placement of the

child, or the provision of a free appropriate public education

to such child.” 20 U.S.C. § 1415(b)(6)(A).

Once again, Appellants‟ argument has no foothold in

the plain language of the statute. The Child Find provision,

by its own language, imposes a duty on the school to create

procedures by which to identify children with disabilities.

However, the obligation of this duty is still only to “children

with disabilities.” Appellants cannot escape the plain

language of the IDEA. Moreover, under the evidence

presented, it is clear that the School District satisfied its duty

23

under the Child Find provision; the School District evaluated

S.H. on numerous occasions in accordance with its internal

policies, and S.H. was found to be eligible for special

education.

Because the plain language of the statute only permits

a child with a disability to bring a claim under the IDEA,

S.H., who by her own admission is not disabled, cannot

sustain her action.

B. Intentional Discrimination Under the RA

and ADA

Appellants also brought claims under § 504 of the RA

and § 202 of the ADA. Section 504 of the RA provides:

No otherwise qualified individual with a

disability in the United States, as defined in

section 705(20) 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 . . . .

29 U.S.C. § 794(a). Section 202 of the ADA similarly states:

[N]o 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.

24

42 U.S.C. § 12132. Both the RA and ADA extend their

protections not only to individuals who actually are disabled,

but also to individuals who are “regarded as” having a

disability. See 29 U.S.C. § 705(20)(B); 42 U.S.C. §

12102(1)(C). There is no dispute that S.H. was “regarded as”

disabled by the School District, and therefore S.H. is not

barred from bringing these claims.

The same standards govern both the RA and the ADA

claims. Chambers ex rel. Chambers v. Sch. Dist. of Phila.

Bd. of Educ., 587 F.3d 176, 189 (3d Cir. 2009). To prevail on

these claims, Appellants must demonstrate that S.H.: “(1) has

a disability; (2) was otherwise qualified to participate in a

school program; and (3) was denied the benefits of the

program or was otherwise subject to discrimination because

of her disability.” Id. The District Court concluded that,

because Appellants seek compensatory damages, they are

required to make a showing of intentional discrimination to

prevail on their claims. Appellants argue that no such

showing is required. We have not yet spoken on this issue.

1. Statutory Language

Section 203 of the ADA states that the remedies

available under § 202 of the ADA are the same remedies

available under § 505 of the RA.18 Similarly, § 505 of the RA

clearly states that the remedies available under § 504 of the

18

“The remedies, procedures, and rights set forth in [§

505(a)(2) of the RA] shall be the remedies, procedures, and

rights this subchapter provides to any person alleging

discrimination on the basis of disability in violation of [§ 202

of the ADA].” 42 U.S.C. § 12133.

25

RA shall be the same remedies available under Title VI of the

Civil Rights Act of 1964.19 Based on this statutory language,

the Supreme Court has observed that, “the remedies for

violations of § 202 of the ADA and § 504 of the

Rehabilitation Act are coextensive with the remedies

available in a private cause of action under Title VI of the

Civil Rights Act of 1964.”20 Barnes v. Gorman, 536 U.S.

181, 185 (2002). Plainly, therefore, Supreme Court precedent

construing Title VI governs enforcement of the RA and the

ADA as well. See Meagley v. City of Little Rock, 639 F.3d

384, 389 (8th Cir. 2011) (“The ADA was modeled on the

Rehabilitation Act, which had been modeled after Title VI, so

it follows rationally that the rights and remedies afforded

under both statutes should be governed by Title VI

precedent.”) Thus, we must look to what Title VI, and the

cases construing it, require for compensatory damages to

determine the appropriate standard here.

19

“The remedies, procedures, and rights set forth in title VI of

the Civil Rights Act of 1964 . . . shall be available to any

person aggrieved by any act or failure to act by any recipient

of Federal assistance or Federal provider of such assistance

under [§ 504 of the RA].” 29 U.S.C. § 794a(a)(2).

20

That Congress intended to create identical remedies under

Title VI, the RA, and ADA is hardly surprising given how

closely the language of both the ADA and RA track Title VI.

Compare 42 U.S.C. § 2000d, with 29 U.S.C. § 794, and 42

U.S.C. § 12132.

26

In Guardians Association v. Civil Service Commission

of New York, the Supreme Court unequivocally held that

private individuals who brought suit under Title VI could not

recover compensatory relief in the absence of a showing of

intentional discrimination. 463 U.S. 582, 597, 607 (1983);

see Alexander v. Sandoval, 532 U.S. 275, 282-83 (2001)

(restating Guardian‟s holding that “private individuals [can]

not recover compensatory damages under Title VI except for

intentional discrimination”). We therefore take the next

logical step and hold that claims for compensatory damages

under § 504 of the RA and § 202 of the ADA also require a

finding of intentional discrimination.

Appellants urge that our previous holding in

Ridgewood Board of Education v. N.E. ex rel. M.E., 172 F.3d

238 (3d Cir. 1999), suggests a different outcome. In

Ridgewood, parents of a disabled child brought claims against

Ridgewood Board of Education, alleging that Ridgewood‟s

failure to provide their son, M.E., with a free appropriate

public education (“FAPE”) constituted a violation of the

IDEA, § 504 of the RA, 42 U.S.C. § 1983, and New Jersey

state law, and seeking compensatory damages under 42

U.S.C. § 1983. Id. at 245. The District Court first found that

Ridgewood had provided M.E. with a FAPE under the IDEA.

The District Court then granted summary judgment in

Ridgewood‟s favor as to M.E.‟s claim under § 504 of the RA.

Id. at 246. Specifically, the District Court concluded that

M.E.‟s § 504 claim failed because M.E. had not demonstrated

that he was “excluded from participation in, denied the

benefits of, or subject to the discrimination at, the school.”

Id. On appeal, we reversed, finding that the evidence showed

that Ridgewood had not provided M.E. with a FAPE. We

also concluded that summary judgment on the § 504 claim

27

had been improperly granted. We stated that while “a

plaintiff must demonstrate that defendants know or should be

reasonably expected to know of his disability,” to establish a

§ 504 violation, “a plaintiff need not prove that defendants’

discrimination was intentional.” Id. (emphasis added).

Ridgewood does not alter our analysis. Our statement

in Ridgewood, that “a plaintiff need not prove that

defendants‟ discrimination was intentional,” referred only to

liability, and not damages; it was intended to address the

requirements for showing a violation of § 504, not the

requirements for particular remedies. Our statement, thus, is

inconsequential to whether a plaintiff seeking compensatory

damages must allege intentional discrimination.21

We also note that our holding here is in line with our

sister Circuits applying Guardian‟s principles in the RA and

the ADA context. All courts of appeals that have considered

this issue have held that compensatory damages are not

available under § 504 of the RA and § 202 of the ADA absent

intentional discrimination. See Meagley, 639 F.3d at 389

(“All circuits to decide the question have held that to recover

compensatory damages under either the ADA or the

Rehabilitation Act, a plaintiff must establish that the agency‟s

discrimination was intentional. . . . And they have all done so

for good reason.”); T.W. ex rel. Wilson v. Sch. Bd. of

Seminole Cnty., 610 F.3d 588, 603-04 (11th Cir. 2010);

Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d

21

Even if we were to accept Appellants‟ view of our holding

in Ridgewood, we would be forced to question its vitality

following the Supreme Court‟s jurisprudence in Barnes, 536

U.S. 181, and Sandoval, 532 U.S. 275.

28

Cir. 2009); Mark H. v. Lemahieu, 513 F.3d 922, 938 (9th Cir.

2008); Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 126

(1st Cir. 2003) (“[P]rivate individuals may recover

compensatory damages under § 504 . . . only for intentional

discrimination.”); Delano-Pyle v. Victoria Cnty., 302 F.3d

567, 574 (5th Cir. 2002) (“A plaintiff asserting a private

cause of action for violations of the ADA or the RA may only

recover compensatory damages upon a showing of intentional

discrimination.”); Powers v. MJB Acquisition Corp., 184 F.3d

1147, 1153 (10th Cir. 1999) (holding that a claim for

compensatory damages under the RA “requires proof the

defendant has intentionally discriminated against the

plaintiff”); Pandazides v. Va. Bd. of Educ., 13 F.3d 823, 830

n.9 (4th Cir. 1994) (acknowledging that recovery of damages

under the RA requires a finding of intentional

discrimination); Bd. of Educ. of Twp. High Sch. Dist. No. 211

v. Ross, 486 F.3d 267, 278 (7th Cir. 2007) (same).22

2. Standard for Intentional Discrimination

There have been two alternative standards suggested

for intentional discrimination: discriminatory animus and

deliberate indifference. Five of our sister courts have

22

Appellants also argue that this Court should not require

intentional discrimination because this Court has consistently

rejected such standards in the IDEA compensatory remedy

cases. See M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d

389, 397 (3d Cir. 1996); Carlisle Area Sch. Dist. v. Scott P.

ex rel. Bess. P., 62 F.3d 520, 537 (3d Cir. 1995). This

argument is inapposite as compensatory and punitive

damages are not available under the IDEA. See Chambers,

587 F.3d at 185-86.

29

explicitly rejected discriminatory animus and held that

deliberate indifference satisfies the requisite showing of

intentional discrimination. See Liese v. Indian River Cnty.

Hosp. Dist., 701 F.3d 334, 348 (11th Cir. 2012); Meagley,

639 F.3d at 389; Loeffler, 582 F.3d at 275; Mark H., 513 F.3d

at 938; Powers, 184 F.3d at 1153. These courts have

generally applied a two-part standard for deliberate

indifference, requiring both (1) “knowledge that a harm to a

federally protected right is substantially likely,” and (2) “a

failure to act upon that likelihood.” Duvall v. Cnty. of Kitsap,

260 F.3d 1124, 1139 (9th Cir. 2001); see also Loeffler, 582

F.3d at 275 (holding that “intentional discrimination may be

inferred when a policymaker acted with at least deliberate

indifference to the strong likelihood that a violation of

federally protected rights will result from the implementation

of the challenged policy or custom” (internal quotation marks

and alterations omitted)); Liese, 701 F.3d at 344 (holding that

under the more lenient standard of deliberate indifference, a

plaintiff must prove that “„the defendant knew that harm to a

federally protected right was substantially likely and [that the

defendant] failed to act on that likelihood‟” (quoting T.W.,

610 F.3d at 604)). Deliberate indifference “„does not require

a showing of personal ill will or animosity toward the

disabled person.‟” Meagley, 639 F.3d at 389 (quoting Barber

v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228-29 (10th Cir.

2009)); see also Loeffler, 582 F.3d at 275. However,

“deliberate indifference must be a „deliberate choice, rather

than negligence or bureaucratic inaction.‟” Loeffler, 582 F.3d

at 276 (quoting Reynolds v. Giuliani, 506 F.3d 183, 193 (2d

Cir. 2007).23

23

This definition of deliberate indifference in the RA and the

30

Two courts of appeals have suggested that plaintiffs

seeking compensatory damages must demonstrate a higher

showing of intentional discrimination than deliberate

indifference, such as discriminatory animus. See Nieves-

Marquez, 353 F.3d at 126-27 (suggesting that discriminatory

animus is the level of intent required) (citing Schultz v. Young

Men’s Christian Ass’n of U.S., 139 F.3d 286, 290-91 (1st Cir.

1999)); Delano-Pyle, 302 F.3d at 575 (rejecting a deliberate

indifference standard and adopting a higher showing for

intentional discrimination) (citing Carter v. Orleans Parish

Pub. Schs., 725 F.2d 261, 264 (5th Cir. 1984)). To succeed

under a discriminatory animus standard, a plaintiff must show

“prejudice, spite or ill will.” Liese, 701 F.3d at 344.

Which standard to apply — discriminatory animus or

deliberate indifference — is a matter of first impression for

our Court. We now follow in the footsteps of a majority of

ADA context is consistent with our standard of deliberate

indifference in the context of § 1983 suits by prison inmates.

See Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582

(3d Cir. 2003) (holding that, in a § 1983 claim, deliberate

indifference requires proof that the prison “„knows of and

disregards an excessive risk to inmate health or safety‟”

(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The

definition is also consistent with the Supreme Court‟s

definition of deliberate indifference in the context of sexual

harassment claims under Title IX. See Gebser v. Lago Vista

Indep. Sch. Dist., 524 U.S. 274, 290 (1998) (requiring “actual

knowledge of discrimination in the recipient‟s programs and

fail[ure] [to] adequately . . . respond”).

31

our sister courts and hold that a showing of deliberate

indifference may satisfy a claim for compensatory damages

under § 504 of the RA and § 202 of the ADA. However, as

the Eleventh Circuit recently noted, despite the adoption of

the deliberate indifference standard by many of our sister

courts, “there has been little explication for the conclusion

that intentional discrimination under the RA may be

established by deliberate indifference.” Liese, 701 F.3d at

345. We offer our explanation here and adopt many of the

same reasons provided by the Eleventh Circuit.

As an initial matter, the deliberate indifference

standard is better suited to the remedial goals of the RA and

the ADA than is the discriminatory animus alternative. In

discussing the enactment of the RA and the ADA, the

Supreme Court observed that “[d]iscrimination against the

handicapped was perceived by Congress to be most often the

product, not of invidious animus, but rather of

thoughtlessness and indifference — of benign neglect.”

Alexander v. Choate, 469 U.S. 287, 295 (1985); see also

Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 944-45

(9th Cir. 2011) (applying Choate‟s discussion of the

enactment of the RA to the ADA). Moreover, “[f]ederal

agencies and commentators on the plight of the handicapped

similarly have found that discrimination against the

handicapped is primarily the result of apathetic attitudes

rather than affirmative animus.” Alexander, 469 U.S. at 296.

Consistent with these motivations, the RA and the ADA are

targeted to address “more subtle forms of discrimination”

than merely “obviously exclusionary conduct.” Chapman,

631 F.3d at 945. Thus, a standard of deliberate indifference,

rather than one that targets animus, will give meaning to the

RA‟s and the ADA‟s purpose to end systematic neglect. See

32

Choate, 469 U.S. at 295 (noting that Senator Humphrey, who

introduced the measure, stated that “we can no longer tolerate

the invisibility of the handicapped in America” (quoting 118

Cong. Rec. 525-26 (1972))).

Moreover, the standard of deliberate indifference,

while accommodating the RA‟s and the ADA‟s function in

protecting the disabled, is also consistent with contract

principles at play when legislation is passed via the Spending

Clause. See Liese, 701 F.3d at 347. The RA and the ADA

were enacted under Congress‟s Spending Clause power;

legislation that is enacted under this power “is much in the

nature of a contract” between the federal government and

recipients of federal funds. Pennhurst State Sch. & Hosp. v.

Halderman, 451 U.S. 1, 17 (1981). “Just as a valid contract

requires offer and acceptance of its terms, „the legitimacy of

Congress‟ power to legislate under the spending power rests

on whether the recipient voluntarily and knowingly accepts

the terms of the contract.‟” Barnes, 536 U.S. at 186

(alterations omitted) (quoting Pennhurst, 451 U.S. at 17).

The Supreme Court has thus reasoned that a recipient of

federal funding, such as the School District here, may be held

liable for money damages only when it is on notice by statute

that it has violated the law. Id. (discussing monetary damages

under Title VI); Gebser, 524 U.S. at 287 (discussing

monetary damages under Title IX).

Because the deliberate indifference standard requires

knowledge, this standard satisfies contract law principles

33

while still protecting the disabled.24 As the Eleventh Circuit

explained,

24

We note that our conclusion today — that deliberate

indifference is the standard for the requisite showing of

intentional discrimination in RA and ADA actions — is

reconcilable with our previous decision in Pryor v. Nat’l

Collegiate Athletic Ass’n, 288 F.3d 548 (3d Cir. 2002).

Relying on the Supreme Court‟s decision in Sandoval, Pryor

held that plaintiffs challenging a policy of the National

Collegiate Athletic Association (“NCAA”) under Title VI

could not satisfy the “intentional discrimination” requirement

through evidence of disparate impact alone. Pryor, 288 F.3d

at 553 (addressing a challenge to a NCAA provision which

raised the academic eligibility criteria for incoming student

athletes that adversely affected black athletes); see also

Sandoval, 532 U.S. at 278-79 (addressing a challenge to a

state policy that required all drivers‟ license examinations to

be administered in English with no aids or accommodations

for individuals who spoke English as a second language, and

that adversely affected individuals of foreign national origin).

In reaching this conclusion, Pryor specifically rejected

deliberate indifference as a viable theory. Pryor, 288 F.3d at

568. Pryor did so because it equated deliberate indifference

with disparate impact. Id. at 567. In light of the Supreme

Court‟s post-Sandoval jurisprudence, this was improper. As

this jurisprudence makes clear, deliberate indifference is a

form of intentional discrimination, and not a pseudonym for

disparate impact. See, e.g., Jackson v. Birmingham Bd. of

Educ., 544 U.S. 167, 173 (2005) (recognizing that deliberate

indifference is a form of intentional discrimination). Despite

this mislabeling of deliberate indifference, Pryor‟s holding

34

The deliberate indifference standard best

reflects the purposes of § 504 while

unambiguously providing the notice-and-

opportunity requirements of Spending Clause

legislation. A lower standard would fail to

provide the notice-and-opportunity

that the mere fact of disparate impact is insufficient to sustain

a Title VI challenge to a facially neutral policy remains good

law.

Pryor is inapplicable to our situation here. In cases

involving action (or inaction) toward an individual that results

in a violation of rights, such as we have here, the Supreme

Court has readily accepted that deliberate indifference can

create a viable cause of action. See Gebser, 524 U.S. at 290-

91 (finding that the school district may be liable under the

standard of deliberate indifference where a teacher sexually

harassed a student); Davis v. Monroe Cnty., 526 U.S. 629,

643 (1999) (same where a student sexually harassed another

student); see also Horner v. Ky. High Sch. Athletic Ass’n, 206

F.3d 685, 692-93 (6th Cir. 2000) (recognizing that the

Supreme Court‟s jurisprudence on deliberate indifference in

the sexual harassment context is not easily transferrable to

challenges to facially neutral policies).

Thus, to the extent that Pryor equated deliberate

indifference with disparate impact, that holding cannot stand.

To the extent that Pryor addressed the requisite showing of

intentional discrimination for challenges to facially neutral

policies with disparate impacts, we offer no comment.

35

requirements to RA defendants, while a higher

standard—requiring discriminatory animus—

would run counter to congressional intent as it

would inhibit § 504‟s ability to reach knowing

discrimination in the absence of animus.

Liese, 701 F.3d. at 348.

C. Grant of Summary Judgment

We now turn to the merits of the appeal: whether there

is evidence in the summary judgment record that creates a

genuine factual dispute as to whether the School District was

deliberately indifferent toward S.H. by mislabeling her as a

disabled student. To satisfy the deliberate indifference

standard, Appellants must present evidence that shows both:

(1) knowledge that a federally protected right is substantially

likely to be violated (i.e., knowledge that S.H. was likely not

disabled and therefore should not have been in special

education), and (2) failure to act despite that knowledge. See

Duvall, 260 F.3d at 1139.

Appellants argue that the School District had

knowledge that S.H. had likely been misidentified for several

reasons: (1) S.H. told her teachers in fifth grade and middle

school that she did not think she belonged in special

education; (2) S.H. protested her placement in special

education in tenth grade by refusing to attend speech therapy;

(3) within three months of S.H.‟s misidentification as a

disabled student, S.H.‟s reading scores surpassed the fifth-

grade level; (4) S.H.‟s scores on standardized tests continued

to show that S.H. tested at or around grade level; (5) S.H.

continued to do well in school, making Honor Roll in seventh

and eighth grade; and (6) the evaluations of three separate

36

psychologists, including Dr. Abdullah-Johnson, revealed that

S.H. was not disabled. We find these reasons unpersuasive to

create a genuine factual dispute as to knowledge.

To begin, we are unpersuaded by Appellants‟ reliance

on S.H.‟s testimony that she expressed unhappiness at being

designated disabled in fifth grade (when she was ten years

old) and later also told her seventh-grade teacher that she did

not feel like she belonged in ISL classes. S.H.‟s subjective

complaints about being put in special education classes put

the School District on notice of nothing more than the fact

that S.H. did not like being in special education classes.

More importantly, Ms. Durrell, despite S.H.‟s feelings,

continued to approve her placement in special education.

Where the parent agrees with, and gives informed consent to,

a child‟s placement in special education, a child‟s feelings to

the contrary can hardly constitute “notice.” For similar

reasons, we cannot say that S.H.‟s testimony that she told her

IEP team that she hated going to speech therapy creates a

genuine dispute of material fact as to the School District‟s

knowledge.

Appellants‟ contention that the evaluations by the three

psychologists put the School District on notice is also to no

avail. Dr. Abdullah-Johnson performed his evaluation in

2010. The other two evaluations, those of Dr. Jones and Dr.

Rosenberg, were submitted in preparation for this lawsuit in

2012, more than two years after S.H. had been removed from

special education.25 These reports only evidence the School

25

Dr. Jones conducted her evaluation of S.H. in December

2011, and Dr. Rosenberg conducted his evaluation in January

2012.

37

District‟s knowledge subsequent to their publication; nothing

in the reports can be said to create a genuine dispute as to the

School District‟s knowledge at the time it designated S.H. as

having a learning disability (i.e. from 2004 through 2009).

Moreover, liability in this case is not dependent merely

on whether the School District‟s psychologists erred in their

determinations. The relevant inquiry is knowledge, and

evidence that the School District may have been wrong about

S.H.‟s diagnosis is not evidence that the School District had

knowledge that it was a wrong diagnosis. Nor does evidence

that the School District‟s evaluation processes were defective

bear on our analysis.26 Additionally, we cannot say that the

School District failed to act on this knowledge, as the School

District immediately exited S.H. from special education

26

Appellants allege that Ms. Cucinotta‟s and Dr. Cosden‟s

evaluations were defective for using the predicted

achievement method, failing to consider S.H.‟s familial

circumstances and personal tragedies, and failing to consider

all of S.H.‟s test scores. However, evidence that the School

District would have, or should have, known that S.H. was not

disabled had the evaluations been free of defects, is

insufficient. Deliberate indifference requires actual

knowledge; allegations that one would have or “should have

known” will not satisfy the knowledge prong of deliberate

indifference. Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir.

2012) (holding that, under the deliberate indifference

standard, “[i]t is not sufficient that the official should have

known of the risk” (emphasis added)). As such, we will not

consider the allegedly defective evaluations as part of the

knowledge analysis.

38

following Dr. Abdullah-Johnson‟s evaluation and upon Ms.

Durrell‟s request.

Appellants‟ best argument as to knowledge is that

S.H.‟s test scores and good grades in school should have put

the School District on notice that she did not have a learning

disability. Ultimately, this evidence is insufficient as well.

As an initial matter, S.H.‟s test scores, when taken as a whole,

are not conclusive. While S.H. performed well in some areas

on various tests throughout her educational career, she

performed below average in other areas. For example, when

S.H. was in seventh grade, S.H. scored at a 7.4 grade-level in

vocabulary on the Stanford Diagnostic Reading Test, but

scored at a 5.3 grade-level in comprehension and at a 4.1

grade-level in “scanning.” (App. 624.) Similarly, in eighth

grade, S.H. performed at the “advanced” level in reading and

“proficient” level in writing on the PSSA, but performed

“below basic” in both math and science. (App. 625, 658.)

Additionally, Appellants have offered no evidence that high

test scores are an indication that a student likely does not have

a learning disability, nor have they offered evidence that

children in special education usually do not receive good

grades.

Put simply, Appellants have presented no evidence

that would create a genuine dispute as to whether the School

District knew, prior to Dr. Abdullah-Johnson‟s evaluation,

that S.H. had likely been misidentified as having a learning

disability. Thus, we need not explore the second prong of the

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deliberate indifference test, i.e., whether the School District

failed to act.27

27

Appellants also seem to suggest that the School District

was on notice that it had likely misidentified S.H. because it

was aware of the pervasive problem of over-identifying

minority children as disabled in general. In support of this

argument, Appellants point to: (1) the IDEA‟s statutory

warnings about over-identification; (2) a 2006 self-

assessment conducted by the School District that revealed

that over-identification was occurring within the district; and

(3) the deposition testimony from Assistant Superintendent

Michael Kelly, who acknowledged awareness that a

disproportionate number of African-American students were

in special education compared to their representation in the

student body. This position is untenable.

While the “Findings” section of the IDEA, 20 U.S.C.

§§ 1400(c)(12)(A)-(E), does in fact suggest that over-

identification of minority children is a pressing concern, we

fail to see the logic that this brief warning in a national law

should put a local school district on notice of anything.

Furthermore, as the 2006 self-assessment is not in the record

before us, we may not consider it. Even if we were to

consider it, the evidence to be gleaned from the 2006 self-

assessment is far more limited than Appellants are willing to

acknowledge. The 2006 self-assessment did not put the

School District on notice of over-identification specifically; at

most, the 2006 self-assessment merely put the School District

on notice that “there was a disproportionate number of

African-American students in special education programs in

Lower Merion.” Blunt v. Lower Merion Sch. Dist., 826 F.

Supp. 2d 749, 757 (E.D. Pa. 2011) (discussing the contents of

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IV. CONCLUSION

For the foregoing reasons, we will affirm the District

Court‟s orders.

the 2006 self-assessment evaluation which noted that African-

Americans constituted 7.7% of the student body and 12.7% of

the students in special education). Thus, the 2006 self-

assessment evidences only that the School District knew that

a disproportionate number of African-American students

were enrolled in special education, a fact that Mr. Kelly

testified to as well. We cannot infer from this that the School

District knew that S.H. in particular had been misidentified.

Such an argument is too attenuated to stand.

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