Blunt v. Lower Merion School District

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

Nos. 11-4200, 11-4201, 11-4315

________________

No. 11-4200

________________

AMBER BLUNT, on behalf of herself and all others similarly

situated; CRYSTAL BLUNT; MICHAEL BLUNT, on their

own behalf and on behalf of all others similarly situated;

S.H.; W.W.; ERIC ALLSTON, on his own behalf and on

behalf of all others similarly situated; LYDIA JOHNSON, on

her own behalf and on behalf of all others similarly situated;

LINDA JOHNSON; CAROL DURRELL, on her own behalf

and on behalf of her minor daughter S.H.; CHANTAE HALL,

and on behalf of all others similarly situated; JUNE

COLEMAN, on her own behalf and on behalf of her minor

son, R.C., and on behalf of all others similarly situated;

LYNDA MUSE, on her own behalf and on behalf of her

minor daughter Q.G. and on behalf of all others similarly

situated; CHRISTINE DUDLEY, on her own behalf and on

behalf of her minor daughter W.W. and on behalf of all others

similarly situated; THE CONCERNED BLACK PARENTS

OF MAINLINE INC; THE MAINLINE BRANCH OF THE

NAACP

v.

LOWER MERION SCHOOL DISTRICT; THE LOWER

MERION SCHOOL BOARD; PENNSYLVANIA

DEPARTMENT OF EDUCATION

Linda Johnson, Lydia Johnson, Carol Durell, Chantae Hall,

S.H., Christine Dudley, W.W., Eric Allston, June Coleman,

R.C. Lynda Muse, and Q.G.,

Appellants in No. 11-4200

________________

No. 11-4201

________________

AMBER BLUNT, on behalf of herself and all others similarly

situated; CRYSTAL BLUNT; MICHAEL BLUNT, on their

own behalf and on behalf of all others similarly situated;

S.H.; W.W.; ERIC ALLSTON, on his own behalf and on

behalf of all others similarly situated; LYDIA JOHNSON, on

her own behalf and on behalf of all others similarly situated;

LINDA JOHNSON; CAROL DURRELL, on her own behalf

and on behalf of her minor daughter S.H.; CHANTAE HALL,

and on behalf of all others similarly situated; JUNE

COLEMAN, on her own behalf and on behalf of her minor

son, R.C., and on behalf of all others similarly situated;

LYNDA MUSE, on her own behalf and on behalf of her

minor daughter Q.G. and on behalf of all others similarly

situated; CHRISTINE DUDLEY, on her own behalf and on

behalf of her minor daughter W.W. and on behalf of all others

similarly situated; THE CONCERNED BLACK PARENTS

OF MAINLINE INC; THE MAINLINE BRANCH OF THE

2

NAACP

v.

LOWER MERION SCHOOL DISTRICT; THE LOWER

MERION SCHOOL BOARD; PENNSYLVANIA

DEPARTMENT OF EDUCATION

Amber Blunt, Crystal Blunt, Michael Blunt and Concerned

Black Parents of Mainline Inc.,

Appellants in No. 11-4201

________________

No. 11-4315

________________

AMBER BLUNT, on behalf of herself and all others similarly

situated; CRYSTAL BLUNT; MICHAEL BLUNT, on their

own behalf and on behalf of all others similarly situated;

S.H.; W.W.; ERIC ALLSTON, on his own behalf and on

behalf of all others similarly situated; LYDIA JOHNSON, on

her own behalf and on behalf of all others similarly situated;

LINDA JOHNSON; CAROL DURRELL, on her own behalf

and on behalf of her minor daughter S.H.; CHANTAE HALL,

and on behalf of all others similarly situated; JUNE

COLEMAN, on her own behalf and on behalf of her minor

son, R.C., and on behalf of all others similarly situated;

LYNDA MUSE, on her own behalf and on behalf of her

minor daughter Q.G. and on behalf of all others similarly

situated; CHRISTINE DUDLEY, on her own behalf and on

3

behalf of her minor daughter W.W. and on behalf of all others

similarly situated; THE CONCERNED BLACK PARENTS

OF MAINLINE INC; THE MAINLINE BRANCH OF THE

NAACP

v.

LOWER MERION SCHOOL DISTRICT; THE LOWER

MERION SCHOOL BOARD; PENNSYLVANIA

DEPARTMENT OF EDUCATION

Lower Merion School District,

Appellant in No. 11-4315

________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 2-07-03100)

District Judge: Hon. Harvey Bartle, III

________________

Argued June 11, 2013

BEFORE: MCKEE, Chief Judge, and AMBRO and

GREENBERG, Circuit Judges

(Filed: September 12, 2014)

______________

Patrick Castaneda

Matthew A. Goldberg

4

Carl W. Hittinger (argued)

John D. Huh

Lesli C. Esposito

Nathan P. Heller

DLA Piper

1650 Market Street

One Liberty Place, Suite 4900

Philadelphia, PA 19103

Attorneys for Appellants Linda Johnson, Lydia

Johnson, Carol Durrell, Chantae Hall, S.H., Christine

Dudley, W.W., Eric Allston, June Coleman, R.C., Lynda

Muse, and Q.G.

Jennifer R. Clarke (argued)

Benjamin D. Geffen

Sonja D. Kerr

Barbara E. Ransom

Public Interest Law Center of Philadelphia

1709 Benjamin Franklin Parkway

United Way Building, 2nd Floor

Philadelphia, PA 19103

Judith A. Gran

Reisman, Carolla & Gran

19 Chestnut Street

Haddonfield, NJ 08033

Attorneys for Appellants Amber Blunt, Crystal Blunt,

Michael Blunt and the Concerned Black Parents of

Mainline Inc.

5

Jenna B. Berman

Michael D. Kristofco (argued)

Wisler Pearlstine

460 Norristown Road

Suite 110

Blue Bell, PA 19422

Attorneys for Appellees Lower Merion School District

and Lower Merion School Board

Amy C. Foerster

Saul Ewing

Two North Second Street

Penn National Insurance Tower, 7th Floor

Harrisburg, PA 17101-0000

M. Abbegael Giunta

Howard G. Hopkirk (argued)

Office of Attorney General of Pennsylvania

Strawberry Square

15th Floor

Harrisburg, PA 17120-0000

Attorneys for Appellee Pennsylvania Department of

Education

______________

OPINION OF THE COURT

______________

6

GREENBERG, Circuit Judge.

TABLE OF CONTENTS

I. INTRODUCTION 9

II. FACTS AND PROCEDURAL HISTORY 15

III. STATEMENT OF JURISDICTION 33

IV. STANDARD OF REVIEW 34

V. ISSUES PRESENTED ON APPEAL 37

VI. SUMMARY OF THE LAW 40

A. The Individuals with Disabilities Education

Act 40

B. Redress and the Statute of Limitations under

the IDEA 44

C. Title VI of the Civil Rights Act of 1964 50

D. 42 U.S.C. § 1983 53

E. Section 504 of the Rehabilitation Act

and Relevant Regulations of the

Department of Education 55

F. Americans with Disabilities Act 58

7

G. Establishing a Prima Facie Case of

Racial Discrimination Through

Circumstantial Evidence 59

H. Class Actions and Res Judicata

(Claim Preclusion) Defenses 62

1. Claim Preclusion 62

2. Application of Res Judicata

(Claim Preclusion) in Class Actions 64

I. Standing 65

VII. ANALYSIS 71

A. The Effect of the Gaskin Settlement

on the Claims Against the PDE 72

B. Whether CBP Has Standing in this suit 77

C. The Blunts and the 90-day Statute of

Limitations under the IDEA, as Revised

by the Individuals with Disabilities

Improvement Act of 2004 96

D. Whether Appellants Established a Prima

Facie Case of Racial Discrimination 102

1. Rejection of Certain Evidence by

the District Court and Alleged

Impermissible Reliance on Other

8

Evidence Without a Daubert

Hearing 104

a. The MAP Presentation 106

b. Daniel Reschley’s Report 107

2. Whether the District Court Properly

Viewed the Evidence in the Light

Most Favorable to the Plaintiffs as

Non-Movants and Whether Plaintiffs

Established a Prima Facie Case of

Discrimination 109

3. Statistical Evidence 116

VIII. CONCLUSION 121

I. INTRODUCTION

In what may be an oversimplification, we introduce our

opinion on this appeal by setting forth that the central

controversy is a dispute over whether African American students

in the Lower Merion School District (“LMSD”) public schools

in Montgomery County, Pennsylvania, were deprived of

appropriate educational services due to racial discrimination and

segregation in violation of federal law. The plaintiffs

unsuccessfully brought this action pursuant to the Individuals

with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et

seq.; the Americans with Disabilities Act (“ADA”), 42 U.S.C.

9

§§ 12101, 12132; § 504 of the Rehabilitation Act of 1973 (the

“RA”), 29 U.S.C. § 794(a); Title VI of the Civil Rights Act of

1964 (“Title VI”), 42 U.S.C. § 2000d; 42 U.S.C. § 1983; and

state law, claiming that African American students in the LMSD

suffered from such discrimination.1 They now appeal from

portions of the District Court’s orders on federal issues entered

1

During the course of the District Court proceedings, plaintiffs,

based on a then recent examination by a psychologist, asserted

that five or six of the student plaintiffs had been identified

incorrectly as being learning disabled. Tr. Oral Arg. June 11,

2013, at 12, 14, 19, 36. Therefore, at oral argument before us

the parties focused on the Title VI and § 1983 claims, as the

District Court had held that the IDEA, ADA and RA were

inapplicable to the claims of the plaintiffs who by then

contended that they wrongly had been identified. The plaintiffs’

arguments were further limited because the IDEA, ADA, and

RA claims of all individual plaintiffs except those of one family,

the Blunts, were dismissed as a result of their failure to exhaust

IDEA administrative remedies. Recently, however, in a related

case, S.H. v. Lower Merion School District, 729 F.3d 248 (3d

Cir. 2013), involving litigants who also are parties to this action,

we held that students incorrectly identified as learning disabled

may not bring claims under the IDEA, though they still may

have claims under the RA and the ADA. Id. at 257, 260-61.

But, as far as we can ascertain, Amber Blunt, a student plaintiff,

and her parents continue to press their original claims under the

IDEA. Consequently, we address a statute of limitations issue

relating to their IDEA claims even though Amber now claims

that she is not learning disabled.

10

at various times during the course of the litigation. We,

however, are not concerned with the substance of the state law

claims on this appeal as the District Court did not exercise

jurisdiction over those claims.

This case encompasses a myriad of legal issues, including

standing to bring suit, application of a statute of limitations, res

judicata (claim preclusion), application of disability laws,

appropriateness of education provided to students, anti-

discrimination laws, and sections of the Code of Federal

Regulations implementing the applicable laws. The case on

appeal also includes a cross-appeal by the LMSD, but we will

dismiss the cross-appeal without deciding it on the merits as it is

moot. The District Court found that the plaintiffs did not

present sufficient evidence to survive LMSD’s motion for

summary judgment on the discrimination charges and the Court

dismissed plaintiffs’ other claims for other reasons. Thus, the

Court did not find that there had been any violations of federal

law.

Plaintiffs, now appellants, appeal from the District

Court’s October 20, 2011 Memorandum and Judgment Order

granting a final summary judgment to defendant LMSD and

against all the plaintiffs in the case remaining at the time that the

Court granted summary judgment, the Court already having

dismissed several of the parties and claims from the case by

previous orders.2 Appellants also appeal from rulings in two

2

Throughout the opinion we sometimes refer to the plaintiffs

and appellants collectively even though two different groups of

plaintiffs filed separate appeals which have been consolidated

11

intermediate orders that became final at the time of the entry of

the October 20, 2011 Memorandum and Judgment Order,

namely: the dismissal of all claims of plaintiffs, now appellants,

Amber Blunt, a now former student at LMSD, and Crystal and

Michael Blunt, her parents, in the District Court’s memorandum

and order of February 15, 2008, the “February 15, 2008 Order”;

the dismissal of all plaintiffs’ claims against the Pennsylvania

Department of Education (“PDE”) in the District Court’s order

and memorandum of August 19, 2009, the “August 19, 2009

Order”; and the dismissal of plaintiff Concerned Black Parents

of Mainline Inc. (“CBP”) as a party in the District Court’s

August 19, 2009 Order for lack of standing. Appellants’ No.

11-4201 br. at 1.

Plaintiffs, with the exception of the CBP and the

mainline branch of the NAACP (the “NAACP”), are present and

past African American students of the Lower Merion Township

public schools, who were placed in remedial classes after being

identified as learning “disabled” under the IDEA and/or those

students’ parents. The plaintiffs repeatedly used the term

“disabled” to describe the student plaintiffs throughout the

pleadings, a term consistent with the IDEA, a statute under

which they were making claims, as the IDEA safeguards the

along with the cross-appeal of the LMSD. Though LMSD is a

cross-appellant we do not include it when we refer to appellants.

We usually refer to the parties who brought this action as

plaintiffs when describing proceedings in the District Court and

as appellants when describing proceedings in this Court.

12

rights of disabled students. Nevertheless, at this stage in the

litigation some appellants argue that the LMSD incorrectly

identified them as learning disabled,3 thereby causing them

injury.4 Appellants claim that their placement in remedial

3

Even though by the time that the District Court considered the

motion for summary judgment most of the student plaintiffs

remaining in the case asserted that they had been misidentified

as learning disabled, the pleadings continued to identify the

students as learning disabled. In rendering its opinion on the

summary judgment motion, notwithstanding the pleadings, the

Court assumed with two exceptions that the student plaintiffs

were not disabled. We also note that Appellants’ No. 11-4201

br. at 1 n.2 recites that the correct name of Concerned Black

Parents of Mainline Inc. is simply Concerned Black Parents, Inc.

4

The Code of Federal Regulations sets forth that:

Child with a disability means a child evaluated in

accordance with §§ 300.304 through 300.311 as having

mental retardation, a hearing impairment (including

deafness), a speech or language impairment, a visual

impairment (including blindness), a serious emotional

disturbance (referred to in this part as ‘emotional

disturbance’), an orthopedic impairment, autism,

traumatic brain injury, an other [sic] health impairment, a

specific learning disability, deaf-blindness, or multiple

disabilities, and who, by reason thereof, needs special

education and related services.

34 C.F.R. § 300.8(a)(1).

13

classes had a negative impact on their opportunity for

educational advancement, but by the time of the proceedings on

the motion for summary judgment they were seeking relief in

the District Court only pursuant to Title VI and the Equal

Protection Clause of the Fourteenth Amendment through 42

U.S.C. § 1983. Appellants’ case is largely based on their

contention that the disproportionate placement of African

American students in remedial classes had a discriminatory

purpose and was the result of racial bias.5

Ultimately, the summary judgment question turns on

whether there is enough record evidence to establish that LMSD

intentionally discriminated against the plaintiffs, whether

through its own actions or by failing to correct a third party’s

5

Initially, the individually named students sought to bring their

claims on their own behalf and on behalf of the students

similarly situated as a class action; however, the District Court

ruled that class certification was inappropriate due to the highly

individualized aspects of each student’s claims. (No. 2:07-cv-

3100, Doc. No. 124). At oral argument, one appellants’

attorney acknowledged that the District Court had been correct

in not certifying the case as a class action (Tr. Oral Arg. June

11, 2013, at 6:18-21, 14:4-7 (“You can’t remedy it as a class

action . . . because of the individual issues.”)), and thus

appellants no longer seek to proceed in this case on a class

action basis.

14

intentional discrimination. Looking at the whole record, which

includes statistical evidence showing that minorities are

overrepresented in low achievement classes, we conclude that

there is no genuine issue of material fact concerning LMSD’s

intent. There is no evidence showing that the District intended

to discriminate against plaintiffs, nor that LMSD had knowledge

of any intentional discrimination on the part of its employees,

including deliberate indifference to discriminatory practices

against African American students as a form of intentional

discrimination. Accordingly, we will affirm the District Court’s

grant of summary judgment.

II. FACTS AND PROCEDURAL HISTORY

This suit has had many plaintiffs and defendants, though

some have come and gone, and includes many related issues and

claims.6 We now are dealing with what is left of this litigation

6

The District Court’s docket sheets lists numerous cases with

separate numbers as being related to this action. It is

particularly significant that in a related case, S.H. v. Lower

Merion School District, No. 2:10-cv-06070, in the Eastern

District of Pennsylvania involving two of the same litigants that

are parties in this case, Carol Durrell and her daughter,

identified in that case as “S.H.” and in this case as “Saleema

Hall,” that we have decided an appeal in a precedential opinion.

See S.H. v. Lower Merion Sch. Dist., 729 F.3d 248 (3d Cir.

2013). Saleema Hall is identified as a litigant in the most recent

version of the complaint in this case in the caption as is her

sister, Chantae Hall and her mother, Carol Durrell.

15

by entertaining the present appeals which have been

consolidated with the cross-appeal in this Court under No. 11-

4200.7

The plaintiffs filed the original complaint on July 30,

2007. At that time the plaintiffs were current or former students

in the LMSD, four parents, and the two organizations that we

have identified.8 The original defendants were the LMSD and

We note that S.H. changed her theory of recovery in the

other action from her theory in this case, although she filed it

under the same statutes based on the same set of facts on which

she previously had relied in this case. Her theory in the other

action was that she is not and never has been learning disabled

and was placed improperly in special education classes. Id. at

255-56. Other student plaintiffs in this case have asserted the

same theory of liability (incorrect identification as learning

disabled), but inasmuch as Saleema Hall and Carroll Durell have

not withdrawn as plaintiffs in this litigation (they were named in

the third amended complaint) it appears that they press their

claims in the two cases on both theories though they are

inconsistent.

7

DLA Piper, LLP and the Public Interest Law Center of

Philadelphia represent separate groups of appellants and have

filed separate briefs on their behalf. For the sake of clarity we

will distinguish between their briefs on the basis of the appeal

numbers.

8

The original plaintiffs were Amber Blunt, on behalf of herself

and all others similarly situated; Crystal Blunt and Michael

Blunt, on their own behalf and on behalf of all others similarly

16

two of its officials in their official capacity.9 No. 2:07-cv-3100,

Doc. No. 1.10

The plaintiffs filed a first amended complaint (“FAC”) on

September 26, 2007, adding three plaintiffs (two current or

former students in the LMSD and one parent)11 and several

situated; Linda Johnson, on her own behalf, on behalf of her

daughter, Lydia Johnson, and all others similarly situated; Carol

Durrell, on her own behalf, on behalf of her minor daughter,

Saleema Hall, and on behalf of all others similarly situated;

Christine Dudley, on her own behalf, and on behalf of her minor

son, Walter Whiteman, and on behalf of all others similarly

situated; Eric Allston on his own behalf and on behalf of all

others similarly situated; Concerned Black Parents, Inc.; and the

Mainline Branch of the NAACP. No. 2:07-cv-3100, Doc. No.

1.

9

The officials were Jamie Savedoff, Superintendent, and

Michael Kelly, Director of Pupil Services. No. 2:07-cv-3100,

Doc. No. 1.

10

Though the parties sometimes have used the term “the

District” to refer to the LMSD, because this usage may be

confusing inasmuch as we regularly refer to the District Court,

we have used the term “LMSD.”

11

Chantae Hall, the daughter of Carroll Durrell and sister of

Saleema Hall, both of whom were parties in the original

complaint, was added as were June Coleman, on her own behalf

17

defendants, including the Lower Merion School Board, its

President, Vice President, and various members of the Board

(together, the “School Board”), the Pennsylvania Department of

Education (the “PDE”), and two of its officials. No. 2:07-cv-

3100, Doc. No. 10. Inasmuch as the LMSD and the School

Board have the same interest in this case and are represented by

the same attorneys, we sometimes refer to them together as the

LMSD. The plaintiffs named the PDE as a defendant because

they believed that it failed to meet the supervisory, monitoring

and compliance procedural obligations that federal law imposed

on it. The FAC concerned, inter alia, as appellants indicate in

one of their briefs, “a decision of the Pennsylvania Special

Education Due Process Appeals Review Panel (the ‘Appeals

Panel’) pursuant to the IDEA.” Appellants’ No. 11-4201 br. at

8-9;12 see also J.A. vol. 2, at 91-151. As stated above, the

and on behalf of her minor son, Richard “Ricky” Coleman, and

on behalf of all others similarly situated.

12

The brief further explains that Crystal and Michael Blunt are

the parents of Amber Blunt, a 2005 graduate of Lower Merion

High School who “was identified as a student with a Specific

Learning Disability.” Appellants’ No. 11-4201 br. at 8-9. The

Blunts sought payment by LMSD for the tuition for a six-week

remedial program that West Chester University required Amber

to take as a condition of her admission. Id. The Blunts argued

that the LMSD “should pay for this program to compensate for

the fact that it failed to develop and implement transition

services for Amber as required by the IDEA.” Id. The Blunts

also were dissatisfied that Amber was not admitted into her first

choice college, Temple University, although two of the three

18

original complaint alleged that the defendants violated the

IDEA, 34 C.F.R. § 300.600 (regarding the monitoring

requirements imposed on states receiving federal funds for

education of students with disabilities), the ADA, § 504 of the

RA, Title VI, and 42 U.S.C. § 1983, all premised on the theory

that plaintiffs had learning disabilities for which LMSD had not

made adequate provisions. The FAC invoked the same legal

theories/statutes as the original complaint. J.A. vol. 2, at 91-

151.

On October 8, 2007, LMSD and the School Board filed a

motion to dismiss the FAC, arguing that the plaintiffs had failed

to exhaust their administrative remedies, the CBP and NAACP

did not have standing, and the FAC failed to state a claim upon

which relief could be granted. They also contended that the

IDEA action was untimely. No. 2:07-cv-3100, Doc. No. 11.

On November 19, 2007, the PDE filed a motion to

dismiss the FAC for lack of subject matter jurisdiction.13 No.

2:07-cv-3100, Doc. Nos. 21-22; J.A. vol. 2, at 284. PDE argued

that the Blunt plaintiffs’ claims fell outside the IDEA’s statute

of limitations and that the other individual student plaintiffs had

not exhausted their administrative remedies under the IDEA. Id.

The PDE further argued that its sovereign immunity barred the

colleges to which she applied did admit her.

13

Gerald Zohorchak and John Tommasini, who were named in

their official capacities as officers of PDE, joined in this motion

but they no longer are parties to this suit, and appellants do not

challenge their dismissal.

19

state law claims asserted against it, and that plaintiffs had failed

to state a claim upon which relief could be granted against it.

Id.

On February 15, 2008, the District Court entered an order

dismissing various plaintiffs and claims from the FAC. The

Court methodically eliminated each federal law claim that the

Blunt plaintiffs made against each defendant. In particularly

significant holdings that we address at length below, the Court

held that a 90-day statute of limitations in the IDEA barred the

Blunts’ claims under the IDEA, RA, and ADA and that a

separate two-year statute of limitations barred their other claims.

Consequently, the order dismissed the Blunts’ federal claims in

their entirety, although their state law claims remained. See No.

2:07-cv-3100, Doc. No. 9; see also J.A. vol. I, at 42.42-42.45.

The Court also determined that the individual plaintiffs, other

than the Blunts, had not sought an administrative remedy for

their IDEA claims, and therefore it dismissed the IDEA claims

of the remaining individual plaintiffs against the LMSD

defendants for lack of subject matter jurisdiction. J.A. vol. 1, at

42.16. However, the Court found that the individual plaintiffs

did not need to exhaust administrative remedies with respect to

their claims against the PDE because Pennsylvania regulations

provide for administrative resolution of disputes between

students, their parents, and their representatives and school

districts, but do not provide for administrative resolution of

similar disputes with the Commonwealth. Id. at 42.17.

The District Court also dismissed plaintiffs’ ADA and

RA claims (other than the Blunts’ claims) against the LMSD and

the School Board for failure to exhaust their administrative

20

remedies, reasoning that the claims were based on the same

allegations as plaintiffs’ IDEA claims and that, if the plaintiffs

were entitled to relief, it would have been available through the

IDEA administrative dispute process. Id. at 42.18-42.19. The

Court noted that “[t]he parties agree[d]” regarding the

exhaustion requirement for those claims. Id. The Court found,

however, that the IDEA exhaustion requirement did not bar

plaintiffs’ claims under Title VI because, unlike the IDEA, Title

VI does not “focus on ‘the rights of children with disabilities.’”

Id. at 42.19. The Court also did not find that the plaintiffs

needed to exhaust their § 1983 claims administratively.

In addition, as we indicated above, the District Court

concluded that the NAACP and CBP lacked standing as

plaintiffs.14 Id. at 42.33. The Court also found that the counts

against individual defendants in their official capacity (as

representatives of the other defendants, LMSD, the School

Board and PDE) were duplicative, and therefore it dismissed the

FAC against those individuals to “simplify[ ] the litigation in a

way that does not cause any prejudice to plaintiffs.”15 Id. at

42.35-42.36.

14

Although the NAACP attempted in the next version of the

complaint to allege facts to support its standing, as we already

have indicated it does not appeal from the holding that it does

not have standing. On the other hand, CBP has appealed from

the order dismissing it from the case because of its lack of

standing.

15

The appellants have not appealed from this ruling and we

therefore will not discuss it further.

21

The plaintiffs filed a second amended complaint (“SAC”)

on July 8, 2008, adding two plaintiffs, one parent and one

student.16 No. 2:07-cv-3100, Doc. No. 49. The SAC, in accord

with the District Court’s February 15, 2008 Order, removed as

defendants the School Board members previously so-named in

their official capacities. But the SAC continued to name the

School Board in its caption though it did not make allegations

against the School Board in its body. The SAC, however,

included the PDE and two of its officials as defendants. The

SAC continued to name the Blunts as plaintiffs, despite the

circumstance that the Court had dismissed all of their federal

claims in its February 15, 2008 Order.17 The SAC also added

several paragraphs discussing the CBP’s alleged increase of

expenditures that it attributed to “the inferior quality of LMSD’s

dual system of education.” Moreover, the SAC named several

persons who the CBP claimed were members of that

organization in a clear attempt to demonstrate that the CBP had

standing. SAC at 34-36. In addition, the SAC added six

paragraphs regarding plaintiff NAACP’s expenditure of

16

The added plaintiffs were Lynda Muse, on behalf of herself

and her minor son, Quiana Griffin, and on behalf of all others

similarly situated. No. 2:07-cv-3100, Doc. No. 49.

17

In contending that the District Court had jurisdiction,

plaintiffs argued that “[t]he Blunt Plaintiffs have fully exhausted

their administrative remedies under the IDEA, 20 U.S.C. §

1415; the other individual Plaintiffs are excused from doing so

because such efforts would be futile.” No. 2:07-cv-3100, Doc.

Nos. 9, 55; J.A. vol. 2, at 95.

22

resources in addressing alleged issues with the LMSD. SAC at

37-38.18

The plaintiffs filed a third and final amended complaint

(“TAC”) on August 5, 2008. No. 2:07-cv-3100, Doc. No. 55;

J.A. vol. 9, 3847-97. The plaintiffs remained the same in the

TAC as previously except that one parent was no longer a

plaintiff.19 The TAC, however, no longer named two officials

of the School Board as defendants, and it did not name the

officials of the PDE that the plaintiffs previously had named as

defendants. The TAC continued to list the School Board as a

named defendant in the caption, and the PDE and LMSD

remained named defendants in both the caption and the body of

the TAC.20 Despite the District Court’s dismissal of all of the

18

Inasmuch as the NAACP is no longer a party in this litigation,

these paragraphs are now immaterial.

19

Linda Johnson, the parent of Lydia Johnson, was dropped as a

plaintiff in the TAC. No. 2:07-cv-3100, Doc. No. 55; J.A. vol.

9, 3847-97. Nevertheless, she was listed as an appellant in the

notice of appeal.

20

Specifically, in the introduction to the TAC:

3. Plaintiffs assert that LMSD routinely misuses so-

called below grade level programs and modified classes

to remove African American students from the general

education curriculum, in some instances to avoid

evaluating a student’s eligibility for services under the

23

Blunts’ federal claims in the complaint in its February 15, 2008

Order, the TAC included them again in Count VI against the

LMSD and the School Board pursuant to the Pennsylvania

Public School Code, 22 Pa. Code §14.102 et. seq.21 Plaintiffs

IDEA. Plaintiffs further assert that LMSD intentionally

segregates these African American students in classes

that are taught below grade level while depriving them of

grade-level subject matter and materials that are provided

to their Caucasian peers at all educational levels.

4. Plaintiffs also assert that the Pennsylvania

Department of Education (PDE) failed to enforce the

IDEA’s mandate that it ensure that children with

disabilities receive an appropriate education in the least

restrictive environment and that African American

children in the LMSD are not inappropriately over-

identified or disproportionately placed in special

education classes. By their claims against PDE,

Plaintiffs seek to remedy wide-spread violations of the

Equal Protection and Due Process Clauses of the

Fourteenth Amendment . . . the IDEA, the [ADA],

[Section 504 of the RA], [Title VI] and Section 1983 of

the Civil Rights Act of 18971 [sic].

TAC at 2-3; J.A. vol. 9, at 3848-49.

21

Several pages of the alleged factual basis for the Blunts’

claims, appearing in the “Parties” section of the SAC, were

deleted in the TAC, and the identification of Amber and her

parents as “African American” was added to that section. No.

2:07-cv-3100 Doc. Nos. 36, 55.

24

sought widespread injunctive relief and “compensatory damages

each on their own behalf to offset the deprivations of an

appropriate education to which they are entitled.” TAC at 3,

para. 6; J.A. vol. 9, at 3849.

The LMSD and the School Board filed an answer to the

TAC and a separate motion for judgment on the pleadings on

August 15, 2008. The PDE filed an answer to the TAC on

August 19, 2008. No. 2:07-cv-3100, Doc. No. 58.

On August 15, 2008, the LMSD and the School Board

filed a motion for partial judgment on the pleadings addressed to

the Blunts’ remaining state law claims, which the Blunts

formally opposed on August 29, 2008. J.A. vol. 3, at 561-72,

575-89. The District Court issued a Memorandum and Order on

November 18, 2008, (the “November 18, 2008 Order”), in

which it noted that the motion incorrectly had been styled as a

motion for partial judgment on the pleadings, when it was really

a motion to dismiss for lack of subject matter jurisdiction. The

Court granted the motion,22 finding that it did not have

supplemental jurisdiction over the Blunts’ state law claims and

22

The District Court noted that there was little overlap of the

operative facts of Amber Blunt’s claims with the claims of the

other plaintiffs, as the claims involved different time periods,

different treatment, and possibly different schools. J.A. vol. 3,

at 602. In this regard, the Court noted that “each of the student-

plaintiffs presents an entirely different factual predicate for his

or her claims.” Id. Accordingly, the Court concluded that it

could not exercise supplemental jurisdiction over the Blunts’

remaining claims, which were based on state law. Id. at 603.

25

that there was not a common nucleus of operative fact between

her claims and those of the other students.23 J.A. vol. 3, at 597.

On December 22, 2008, the remaining plaintiffs moved

for class certification. No. 2:07-cv-3100, Doc. No. 64. After

the parties briefed the issues, the District Court held a hearing

on the motion on July 21, 2009. Id., Doc. No. 122.24 By an

order of August 19, 2009, (the “August 19, 2009 Order”), the

Court denied plaintiffs’ motion for class certification

(Appellants’ No. 11-4200 br. at 39),25 again dismissed the

23

The Blunts have not appealed from the District Court’s ruling

that it lacked subject matter jurisdiction over their state law

claims.

24

The District Court scheduled oral argument on the class

certification issue for June 26, 2009, but we are uncertain

whether the Court held an argument on that day in addition to

the July 21, 2009 argument, or whether argument took place on

the second date because the original argument had been

postponed. No. 2:07-cv-3100, Doc. No. 118.

25

In doing so, the District Court explained that, among other

rationales for this denial, it had determined that the factual

circumstances of potential class members were too disparate to make

final injunctive or declaratory relief appropriate to the class as a

whole. J.A. vol. 1, at 42.60. The Court noted that the disparate

factual circumstances of individual students also likely would

overwhelm the litigation:

Analysis of whether an African American student with a

26

claims brought by the CBP and the NAACP for lack of standing,

and found that a prior court-entered settlement agreement

reached in Gaskin v. Pennsylvania, 389 F. Supp. 2d 628 (E.D.

Pa. 2005), barred all claims against the PDE, which it therefore

dismissed from the case. J.A. vol. 1, at 42.46-42.69.

In concluding that CBP lacked standing, the District

Court found that it did not have a personal stake in the outcome

of the litigation, and did not suffer an injury giving it standing.

Rather, “[i]ts injuries [we]re more akin to an abstract,

ideological interest in the litigation as opposed to the necessary

‘personal stake in the outcome’ of the controversy necessary to

confer standing.” J.A. vol. 1, at 42.52. In addition, the Court

reasoned that CBP did not have standing to bring suit on behalf

of its members because, according to CBP’s bylaws, it did not

have any members. J.A. vol. 1, at 42.53-54; August 19, 2009

Order at 9 (“The corporation’s bylaws specifically state ‘the

Corporation shall have no members.’ In light of this express

statement in a formal document governing the conduct of the

disability was deprived of an appropriate education will be

highly individualized and dependent upon that particular

student’s needs, capabilities, and the IEP in place for that

child. These individual determinations, which must be made

to determine whether a particular student falls within the class

definition and whether such student has a cause of action,

weigh against certifying this class.

J.A. vol. 1, at 42.61.

27

corporation, we find that it does not have standing to bring suit

on behalf of its members because it has none.”). J.A. vol. 1, at

42.54.

The District Court also dismissed the claims against the

PDE because the settlement agreement that the parties had

reached in Gaskin barred this action against the PDE. The

Court noted that Gaskin was similar to this action, as 12

students with disabilities and 11 disability advocacy groups

brought that case against the PDE, among others, pursuant to the

IDEA, § 504 of the RA, and Title II of the ADA. The Gaskin

plaintiffs made similar (although not identical) allegations as

those in this case, alleging that the defendants failed to provide

disabled students the opportunity to participate in regular

education classrooms, provided insufficient supplementary aids

and services, and generally failed to provide them with a free

appropriate public education (“FAPE”). J.A. vol. 1, at 42.63,

42.67. Though the Court acknowledged that the Gaskin

complaint had not alleged racial discrimination as “the basis for

the improper treatment of those with learning disabilities,” the

Court nonetheless held that the causes of action in Gaskin and

here arose from the same “common nucleus of operative facts.”

The Court therefore concluded that the release included in the

Gaskin settlement agreement, which by its terms was effective

for five years from September 19, 2005, to September 19, 2010,

barred the claims in this case because the plaintiffs brought this

action and individual plaintiffs in this action were evaluated and

identified as learning disabled during this period. J.A. vol. 1, at

42.67, 42.68; Tr. Oral Arg. June 11, 2013, at 19:9-22.

Significantly, the class of plaintiffs in the Gaskin litigation was

very broad and included “all present and future school age

28

students with disabilities in the Commonwealth of

Pennsylvania.”26

On April 5, 2011, the District Court denied a motion by

LMSD to amend its answer to the plaintiffs’ TAC to include an

additional defense based on releases that certain plaintiffs

signed after the LMSD filed its answer in this case because the

Court believed that the LMSD unreasonably had delayed

making the motion. J.A. vol. 1, at 46-47. LMSD has filed a

cross-appeal from the order but, as will be seen, this appeal is

moot and thus we do not address it.

The LMSD filed a motion for summary judgment on July

15, 2011, (No. 2:07-cv-3100, Doc. No. 159), and it is that

motion that has led to the order at the heart of this appeal. The

26

We queried the attorneys for appellees at oral argument as to

whether the Gaskin settlement should apply given that the

plaintiffs in Gaskin brought their claims under the IDEA, ADA

and RA, and the appellants other than the Blunts were

advancing only § 1983 and Title VI claims. Tr. Oral Arg. June

13, 2013, at 27. However, as noted above, we recently

indicated in a related case, S.H. v. Lower Merion School

District, 729 F.3d 248 (3d Cir. 2013), that litigants who

incorrectly were identified as disabled might be able to bring

suit under the ADA and RA, but cannot bring suit under the

IDEA, as that statute extends only to disabled individuals, not to

individuals who incorrectly were identified as disabled. Id. at

257-58. But regardless of what claims could have been brought

against the PDE, as we explain below the Gaskin settlement bars

the claims in this case.

29

parties filed numerous documents in support of and in

opposition to the motion for summary judgment. On October 4,

2011, the District Court held a hearing on the motion, at which

time the Court afforded all parties the opportunity to present

their arguments. No. 2:07-cv-3100, Doc. Nos. 174, 183.

On October 20, 2011, the District Court made three

docket entries, two of which were orders and a third which is

the memorandum explaining the basis for those orders

(collectively, the “October 20, 2011 Memorandum and

Judgment Order”). No. 2:07-cv-3100, Doc. Nos. 180-82. In the

October 20, 2011 Memorandum and Judgment Order, the Court

denied plaintiffs’ motion to partially exclude and/or limit the

report and testimony of Daniel J. Reschly, Ph.D., a witness for

the LMSD, as moot. No. 2:07-cv-3100, Doc. No. 181. The

Court’s principal order granted summary judgment to the LMSD

against all remaining plaintiffs in the action. J.A. vol. 1, at 1-39;

also available at No. 2:07-cv-3100, Doc. No. 182. The Court

held that the plaintiffs had failed to put forth any evidence from

which a reasonable inference could be drawn that the LMSD

intentionally segregated the students on the basis of race into

inferior educational programs in violation of Title VI. J.A. vol.

1, at 30-32. The Court also held that plaintiffs had failed to

establish a 42 U.S.C. § 1983 case for violation of the Equal

Protection Clause of the Fourteenth Amendment, as they had not

established that the LMSD had engaged in purposeful

discrimination and had not been deliberately indifferent to

plaintiffs’ rights. J.A. vol. 1, at 33-34.

The District Court noted in particular that plaintiffs were

required to “raise at least some reasonable inference that they

30

were placed into classes and offered services by the [LMSD]

due to intentional discrimination based on their race and not

simply due to errors in evaluation.” The Court concluded that

plaintiffs had failed to support this inference with sufficient

evidence, and had not put forth more than a scintilla of evidence

that the LMSD had acted with a racially discriminatory purpose

in identifying them as disabled and placing them in special

education courses (regardless of whether this identification was

correct or not). They also failed to identify an official policy or

custom that was deliberately indifferent to plaintiffs’ rights.

J.A. vol. 1, at 32-36;27 also available at No. 2:07-cv-3100, Doc.

No. 180.

On November 18, 2011, the Blunt plaintiffs and the CBP

filed a notice of appeal from the District Court’s October 20,

2011 Memorandum and Judgment Order. J.A. vol. 1, at 40-42.

In an attempt to preserve their right to appeal from all of the

Court’s dispositive orders, their November 18, 2011 notice of

appeal stated that “[w]ithout limiting their right to appeal any

particular order rendered during District Court proceedings,

Plaintiffs listed herein specifically appeal the following orders.”

The notice of appeal then went on to challenge the February 15,

27

The District Court correctly observed that the LMSD’s

awareness (as evidenced by the formation of a committee to

address the concerns of African American parents) of an

achievement gap, between Caucasian and African American

students, and its failure to eliminate that gap were not evidence

of intentional discrimination or deliberate indifference toward

African American students. J.A. vol. 1, at 36.

31

2008 Order dismissing the Blunts’ claims under the IDEA and

the District Court’s orders of February 15, 2008, and August 19,

2009, as they pertained to CBP and its lack of standing. J.A.

vol. 1, at 40-42; see also No. 2:07-cv-3100, Doc. No. 186.

Also on November 18, 2011, plaintiffs Linda Johnson,

Lydia Johnson, Durrell/Hall, Dudley/Whiteman, Allston,

Coleman, and Muse/Griffin filed an appeal generally from the

District Court’s October 20, 2011 Memorandum and Judgment

Order. Their notice of appeal specifically cited the District

Court’s order of August 19, 2009, in which the Court dismissed

the claims against defendant PDE, an order of October 20, 2011,

entering the summary judgment in favor of LMSD, and an order

of October 20, 2011, denying as moot plaintiffs’ motion to

preclude expert testimony. No. 2:07-cv-3100, Doc. No. 187.

On December 1, 2011, LMSD filed a cross-appeal from

the portion of the District Court’s February 15, 2008 Order

which denied LMSD’s motion to dismiss plaintiffs’ Title VI

claims for failure to exhaust administrative remedies28 and, as

we have indicated, the District Court’s April 5, 2011 denial of

28

As explained above, the District Court dismissed plaintiffs’

IDEA, RA and ADA claims against LMSD, other than those of

the Blunts, for failure to exhaust administrative remedies, but

had found that Title VI relief was not available through the

administrative process set up for resolving IDEA disputes, and

thus it did not dismiss the Title VI claims for failure to exhaust

administrative remedies. Of course, the Court similarly did not

dismiss the § 1983 claims because there were no administrative

remedies available under that section.

32

its motion to amend its answer to the TAC. J.A. vol. 1, at 43-

45; 2:07-cv-3100, Doc. Nos. 123-24.

III. STATEMENT OF JURISDICTION

The District Court had jurisdiction over the plaintiffs’

federal law claims pursuant to 20 U.S.C. § 1415(i)(3)(A),29 28

U.S.C. § 1331, and 28 U.S.C. § 1343(a)(3). In addition, the

plaintiffs claimed that the Court had supplemental jurisdiction

over their state law claims pursuant to 28 U.S.C. § 1367. We,

however, do not determine whether the District Court had

jurisdiction over the state law claims because no party contends

that the Court erred in not exercising jurisdiction over those

claims. We have appellate jurisdiction under 28 U.S.C. § 1291.

IV. STANDARD OF REVIEW

It is well established that we employ a plenary standard

in reviewing orders entered on motions for summary judgment,

applying the same standard as the district court. Kelly v.

Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010) (citing

29

“The district courts of the United States shall have jurisdiction

of actions brought under this section without regard to the

amount in controversy.” 20 U.S.C. § 1415(i)(3)(A).

33

Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009)); Albright

v. Virtue, 273 F.3d 564, 570 (3d Cir. 2001); see also Montone v.

City of Jersey City, 709 F.3d 181, 189 (3d Cir. 2013);

Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir.

1995) (citing Beazer E., Inc. v. United States Envtl. Protection

Agency, Region III, 963 F.2d 603, 606 (3d Cir. 1992)).

Inasmuch as our review is plenary, “[w]e may affirm the District

Court on any grounds supported by the record,” even if the court

did not rely on those grounds. Nicini v. Morra, 212 F.3d 798,

805 (3d Cir. 2000).30

In considering an order entered on a motion for summary

judgment, “we view the underlying facts and all reasonable

inferences therefrom in the light most favorable to the party

opposing the motion.” Babbitt, 63 F.3d at 236. As we also

have explained, “[a] factual dispute is material if it bears on an

essential element of the plaintiff’s claim, and is genuine if a

reasonable jury could find in favor of the nonmoving party.”

Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 580 (3d

Cir. 2003) (citing Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d

Cir. 2002) (in turn quoting Cloverland-Green Spring Dairies,

Inc. v. Pa. Milk Mktg. Bd., 298 F.3d 201, 210 (3d Cir. 2002))).

However, where a non-moving party fails sufficiently to

30

We note that sometimes in our opinions we refer to the

standard of review on an appeal from an order for summary

judgment as “plenary” and sometimes as “de novo.” We discern

no difference between the plenary and de novo standards of

review. See 19-206 Pratt, Moore’s Federal Practice – Civil §

206.04 (2013).

34

establish the existence of an essential element of its case on

which it bears the burden of proof at trial, there is not a genuine

dispute with respect to a material fact and thus the moving party

is entitled to judgment as a matter of law. Lauren W. v.

Deflaminis, 480 F.3d 259, 266 (3d Cir. 2007). Further, mere

allegations are insufficient, and “[o]nly evidence sufficient to

convince a reasonable factfinder to find all of the elements of

[the] prima facie case merits consideration beyond the Rule 56

stage.” Id. (quoting and citing Celotex Corp. v. Catrett, 477

U.S. 317, 324, 106 S.Ct. 2548, 2553 (1986) (internal quotation

marks omitted)).

We review a district court’s determinations concerning

the admissibility of evidence for an abuse of discretion. See

Martin v. Monumental Life Ins. Co., 240 F.3d 223, 232 (3d Cir.

2001) (“Where a party makes known the substance of the

evidence it desires to introduce, we review the District Court’s

decision to exclude the evidence for an abuse of discretion.”)

(citing Narin v. Lower Merion Sch. Dist., 206 F.3d 323, 334 (3d

Cir. 2000)). There is an abuse of discretion if the district court’s

decision “‘rests upon a clearly erroneous finding of fact, errant

conclusion of law or an improper application of law to fact.’”

Forrest v. Beloit Corp., 424 F.3d 344, 349 (3d Cir. 2005) (citing

In re Merritt Logan, Inc. v. Fleming Cos., Inc, 901 F.2d 349,

359 (3d Cir. 1990)) (quoting Oddi v. Ford Motor Co., 234 F.3d

136, 146 (3d Cir. 2000)). “An abuse of discretion can also

occur ‘when no reasonable person would adopt the district

court’s view.’ We will not interfere with the district court’s

exercise of discretion ‘unless there is a definite and firm

conviction that the court below committed a clear error of

judgment in the conclusion it reached upon a weighing of the

35

relevant factors.’” Oddi, 234 F.3d at 146 (internal citations

omitted).31

It is also well established that we review de novo a

district court’s determination of a party’s standing to bring suit,

as a court makes a determination of whether a party has standing

on a legal basis, at least where, as here, the determination does

not depend on the court’s resolution of a factual dispute. See

National Collegiate Athletic Ass’n v. Governor of N. J., 730

F.3d 208, 218 (3d Cir. 2013); Common Cause of Pa. v.

Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009).32

Judgments of a court applying the IDEA’s statute of

limitations but not resolving disputes of fact are subject to

plenary review as conclusions of law, but “whether [plaintiffs]

proved an exception to the [IDEA] statute of limitations, and

whether the [School] District fulfilled its FAPE obligations . . .

are subject to clear error review as questions of fact. Such

[f]actual findings from the administrative proceedings are to be

considered prima facie correct, and if [we] do[ ] not adhere to

31

On the other hand, “[t]o the extent an evidentiary issue turns on the

interpretation of a Federal Rule of Evidence, rather than the mere

application of the rule, our review is plenary.” Forrest, 424 F.3d at

349 (emphasis added) (citing In re Paoli R.R. Yard PCB Litig., 35

F.3d 717, 749 (3d Cir. 1994)).

32

Citing Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181,

188 (3d Cir. 2006); see also Public Interest Research Grp. of

N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 119 (3d

Cir. 1997).

36

those findings, we must explain why.” D.K. v. Abington Sch.

Dist., 696 F.3d 233, 243 (3d Cir. 2012) (internal citations and

quotation marks omitted) (citing and quoting P.P. ex. rel.

Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 734 (3d

Cir. 2009); S.H. v. State-Operated Sch. Dist. of Newark, 336

F.3d 260, 269-70 (3d Cir. 2003)).

When a district court reviews an administrative law

judge’s decision, a court of appeals exercises plenary review

over the court’s legal conclusions, and reviews its findings of

fact with a “modified de novo” standard of review (giving the

administrative factual findings “due weight” and considering

them to be prima facie correct) for clear error. Lauren W., 480

F.3d at 266. However, we do not make such an analysis here, as

the issue before us with respect to the Blunts, the only

appellants who exhausted their administrative remedies, is

whether the District Court correctly dismissed their case on the

grounds that they brought it beyond the period allowed by the

statute of limitations. The resolution of that issue would not be

aided by administrative expertise.

V. ISSUES PRESENTED ON APPEAL

Though the District Court made many rulings, the

appellants have appealed only from some of them. Accordingly,

we are able to summarize the issues on this appeal as follows:

1. Did the District Court correctly dismiss the action

against the PDE on the basis of res judicata (claim preclusion)?

37

2. Did the District Court correctly conclude that CBP did

not have standing as a plaintiff in this action?

3. Does the IDEA’s 90-day statute of limitations, in

which a party adversely affected by an administrative

determination of an IDEA claim may bring a state or federal

suit, enacted on December 3, 2004, and effective July 1, 2005,

apply to bar the Blunts’ federal action, given that they first

began the administrative judicial process on April 8, 2005, when

the IDEA’s statute of limitations for bringing a claim in state or

federal court after receiving an adverse administrative

determination was two years, and they received their final

adverse administrative disposition on August 31, 2005, almost

two months after the new 90-day statute of limitations came into

effect, and almost nine months after Congress enacted it?33

4. Did the District Court abuse its discretion in how it

33

We note that although the statute of limitations issue was not

discussed at oral argument, the Blunts’ brief raises a challenge

to the District Court’s ruling on the issue as a prime point of

argument. Appellants’ br. No. 11-4201 at 31-37. Presumably,

however, in the case of student appellants who no longer are

claiming to be disabled, but rather are claiming to have been

misidentified as disabled, a statute of limitations issue would be

inapplicable. However, as far as we can tell from the record, at

least one or two of the student plaintiffs do not challenge their

identification as disabled, and counsel for the Blunts has not

withdrawn the argument regarding the statute of limitations

which thus has been preserved on appeal. Therefore, we

address the statute of limitations issue.

38

treated certain evidence that plaintiffs offered by not giving it

greater weight and not considering the evidence in the light most

favorable to the plaintiffs when the Court considered and

granted the motion for summary judgment made by the LMSD

and, on the other hand, in how it treated certain evidence that

LMSD offered for consideration on that motion?

5. Did plaintiffs establish a prima facie case of

discrimination in violation of Title VI and § 1983 such that

summary judgment was inappropriate?34

VI. SUMMARY OF THE LAW

A. The Individuals with Disabilities Education Act

Congress enacted the IDEA, 20 U.S.C. § 1400 et seq.,

with the goal of “improving educational results for children with

disabilities.” 20 U.S.C. § 1400(c)(1). The congressional

findings and purposes section of the IDEA is quite broad and

sets forth in great detail Congress’ intention in adopting the

IDEA.

Each public school district in a state that accepts federal

34

LMSD argues that the District Court improperly denied its

motion to amend its answer. We, however, do not reach that

issue because our determination that the Court properly granted

summary judgment in its favor and our affirmance of the other

orders on appeal are dispositive of the issue.

39

funds under IDEA35 has a continuing obligation, called the

“child find” requirement, to identify and evaluate all students

reasonably believed to have a disability, and each state receiving

funds must establish procedures to effectuate this requirement.

Ridley Sch. Dist. v. M.R., 680 F.3d 260, 271 (3d Cir. 2012). As

we pointed out in Ridley, Pennsylvania has set forth child find

procedures in 22 Pa. Code §§ 14.121 through 14.125. Id.

States receiving federal funding for assistance in the

education of children with disabilities under the IDEA are

responsible for providing a FAPE to any students who are

identified as learning disabled until they reach 21 years of age.

See 20 U.S.C. § 1400(c)-(d)); see also 34 C.F.R. §§ 300.1-

300.2;36 Jonathan H. v. Souderton Area Sch. Dist., 562 F.3d

527, 528 (3d Cir. 2009); Lauren W., 480 F.3d at 272. As we

explained in Ridley:

35

“The IDEA was enacted pursuant to the congressional

spending power. [Thus, a] state is not generally bound by the

IDEA unless it receives federal funding under the statute.”

A.W. v. Jersey City Pub. Schs., 341 F.3d 234, 247 (3d Cir.

2003) (internal citations omitted).

36

“The purposes of this part are-- (a) To ensure that all children

with disabilities have available to them a free appropriate public

education that emphasizes special education and related services

designed to meet their unique needs and prepare them for further

education, employment, and independent living; . . .” 34 C.F.R.

§ 300.1(a). Further, “[t]his part applies to each State that

receives payments under Part B of the Act, as defined in §

300.4.” 34 C.F.R. § 300.2(a).

40

A FAPE consists of educational instruction specially

designed to meet the unique needs of the handicapped

child, supported by such services as are necessary to

permit the child to benefit from the instruction.

Although a state is not required to maximize the potential

of every handicapped child, it must supply an education

that provides significant learning and meaningful benefit

to the child. [T]he provision of merely more than a

trivial educational benefit is insufficient.

680 F.3d at 268 (internal quotation marks omitted) (citing Bd. of

Educ. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 3050

(1982); Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d

Cir. 1999); L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 390 (3d

Cir. 2006)).

In providing a FAPE to a disabled student, school

districts must work with the student’s parents to create an

individualized education plan (“IEP”), containing certain

elements that the Code of Federal Regulations specifies must be

made available to each disabled student. We have explained the

balance between reasonable goals for the IEP and a parent’s

fondest hopes for the parent’s child as follows:

Under the IDEA, school districts must work with parents

to design an IEP, which is a program of individualized

instruction for each special education student. ‘Each IEP

must include an assessment of the child’s current

educational performance, must articulate measurable

educational goals, and must specify the nature of the

special services that the school will provide.’ Although

the IEP must provide the student with a ‘basic floor of

41

opportunity,’ it does not have to provide ‘the optimal

level of services,’ or incorporate every program

requested by the child’s parents. . . . [T]he IDEA

guarantees to a disabled child ‘an education that is

appropriate, not one that provides everything that might

be thought desirable by loving parents’ . . . . ‘[A]t a

minimum, the IEP must be reasonably calculated to

enable the child to receive meaningful educational

benefits in light of the student’s intellectual potential,’

and ‘individual abilities.’

Ridley, 680 F.3d at 276 (internal citations omitted).

Congress amended the IDEA through the Individuals

with Disabilities Improvement Act of 2004 to require that an

IEP include “a statement of the special education and related

services and supplementary aids and services, based on peer-

reviewed research to the extent practicable, to be provided to the

child.” Ridley, 680 F.3d at 276 (emphasis in original) (quoting

and citing 20 U.S.C. § 1414(d)(1)(A)(i)(IV)). Because neither

the text of the IDEA nor the regulations promulgated under it

provided guidance regarding the peer-review research provision,

we looked to the agency’s interpretation of its own regulations

for guidance, and determined (1) that although schools should

strive to base a student’s IEP on peer-reviewed research to the

maximum extent possible, the student’s IEP team must be

allowed to be flexible in devising an appropriate program for

any particular student in light of the available research; and (2)

courts must accord significant deference to the choices made by

school officials as to what constitutes an appropriate program

42

for each student.37 Ridley, 680 F.3d at 277 (citing 71 Fed. Reg.

at 46,665 (2006); D.S., 602 F.3d at 556-57; Ridgewood, 172

F.3d at 247).

B. Redress and the Statute of Limitations

under the IDEA

“If parents believe that an IEP fails to provide their

child with a FAPE, they may request an administrative

37

We explained that “[g]iven that the IDEA does not require an

IEP to provide the ‘optimal level of services,’ we likewise hold

that the IDEA does not require a school district to choose the

program supported by the optimal level of peer-reviewed

research. Rather, the peer-review specially designed instruction

in an IEP must be ‘reasonably calculated to enable the child to

receive meaningful educational benefits in light of the student’s

intellectual potential.’” Ridley, 680 F.3d at 277 (citing

Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176,

182 (3d Cir. 2009)). While we recognized that “there may be

cases in which the specially designed instruction proposed by a

school district is so at odds with current research that it

constitutes a denial of a FAPE,” and that “if it is practicable for

a school district to implement a program based upon peer-

reviewed research, and the school fails to do so, that will weigh

heavily against a finding that the school provided a FAPE,”

nonetheless we declined to set a bright-line rule as to what

constitutes an adequately peer-reviewed special education

program, and emphasized that the appropriateness of an IEP

must be considered on a case-by-case basis, taking into account

the available research. Id. at 279.

43

‘impartial due process hearing,’” as may a school district if it

wants to change an existing IEP or seeks an evaluation without

the parents’ consent. Ridley, 680 F.3d at 269-70 (citing 20

U.S.C. § 1415(f); Schaffer, 546 U.S. at 53, 126 S.Ct. at 532).

The burden of persuasion in an administrative hearing

under the IDEA lies with the party seeking relief. See Schaffer,

546 U.S. at 62, 126 S.Ct. at 537. Similarly, the party judicially

challenging an administrative decision bears the burden of

persuasion with respect to the finding for each claim challenged.

Ridley, 680 F.3d at 270.

On December 3, 2004, Congress revised the IDEA with

the Individuals with Disabilities Improvement Act of 2004,

which included a two-year statute of limitations governing the

time during which an aggrieved party may file a request for an

administrative due process hearing under the IDEA. P.L. 108-

446, 118 Stat. 2647 (2004); 20 U.S.C. § 1415(f)(3)(c). The two-

year period runs from the date that the parent knew or should

have known about the alleged action that forms the basis for the

complaint. The same two-year statute of limitations for bringing

administrative claims also applies to other legal claims premised

on the IDEA, such as claims under § 504 of the RA, or claims

“invoking Child Find and FAPE duties.” D.K., 696 F.3d at 244

(quoting P.P. ex. rel. Michael P., 585 F.3d at 734). In the same

legislation, Congress shortened the statute of limitations to 90

days for a party dissatisfied with the result of the administrative

proceedings to bring a federal or state judicial action to

challenge that result. Though Congress mandated that these

new statutes of limitations were to be retroactive, it delayed

their effective dates until July 1, 2005.

44

In 2010, we determined that the seven-month “grace

period” between the enactment of the two-year statute of

limitations and its effective date provided litigants with

reasonable notice and opportunity to bring claims, so that it was

not unfair to impose the new statute of limitations and thus the

period that the limitations period allowed was not impermissibly

short. Steven I. v. Cent. Bucks Sch. Dist., 618 F.3d 411, 415-16

(3d Cir. 2010).38 We further explained that “all persons are

charged with knowledge of the provisions of statutes and must

take note of the procedure adopted by them, [and] a legislature

need do nothing more than enact and publish the law, and afford

the citizenry a reasonable opportunity to familiarize itself with

its terms and to comply.” Id. at 416 (internal citations and

quotation marks omitted). Thus, we noted that the Supreme

38

In so doing, we cited a Supreme Court decision reciting that

[t]his court has often decided that statutes of limitation

affecting existing rights are not unconstitutional, if a

reasonable time is given for the commencement of an

action before the bar takes effect.

It is difficult to see why, if the legislature may prescribe

a limitation where none existed before, it may not change

one which has already been established. The parties to a

contract have no more a vested interest in a particular

limitation which has been fixed than they have in an

unrestricted right to sue.

Wilson v. Iseminger, 185 U.S. 55, 63, 22 S.Ct. 573, 575 (1902)

(internal quotation marks omitted).

45

Court

has upheld retroactive adjustments to a limitations period

only when the legislature has provided a grace period

during which the potential plaintiff could reasonably be

expected to learn of the change in the law and then

initiate his action. In the context of a retrospective

statute of limitations, a reasonable grace period provides

an adequate guarantee of fairness. Having suffered the

triggering event of an injury, a potential plaintiff is likely

to possess a heightened alertness to the possibly

changing requirements of the law bearing on his claim.

Id. at 417 (quoting Texaco, Inc. v. Short, 454 U.S. 516, 549, 102

S.Ct. 781, 802 (1982) (internal quotation marks omitted)).

An IDEA claimant’s right to redress does not end with

the administrative review process, for any aggrieved party who

received an adverse administrative determination regarding his

or her complaints with respect to IDEA compliance may bring

an action in a “[s]tate court of competent jurisdiction or in a

district court of the United States, without regard to the amount

in controversy,” 20 U.S.C. § 1415(i)(2)(A), within 90 days of

the final administrative decision, 20 U.S.C. § 1415(i)(2)(B). 39

Prior to the amendment of the IDEA shortening the limitations

period, the time for bringing suit in a state or federal court after

receiving an adverse administrative determination had been two

39

But an action may be brought in a state with “an explicit time

limitation for bringing such an action . . . in such time as the

State law allows.” 20 U.S.C. § 1415(i)(2)(B).

46

years. The amendment adopting the 90-day statute of

limitations passed by Congress on December 3, 2004, became

effective July 1, 2005, seven months after its enactment. This

90-day statute of limitations period begins running on “the date

of the decision of the [administrative] hearing officer.” 20

U.S.C. § 1415(i)(2)(B); see also Jonathan H., 562 F.3d at 530

(“Section 1415(i)(2)(B) limits a party’s right to ‘bring an action’

to within 90 days after the final administrative decision.”).

As with ADA claims, a party seeking redress under the

IDEA must exhaust administrative remedies before filing an

action seeking redress in a state or federal court. See Komninos

by Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775,

778 (3d Cir. 1994) (citing Smith v. Robinson, 468 U.S. 992,

1011-12, 104 S.Ct. 3457, 3468-69 (1984)); see also I.M. ex rel.

C.C. v. Northampton Pub. Schs., 869 F. Supp. 2d 174 (D. Mass.

2012) (“Plaintiffs’ conceded failure to exhaust their

administrative remedies with regard to the ADA-grounded claim

and/or appeal such a decision within 90 days is fatal to its

present viability.”).

We have explained that the policy of requiring

exhaustion of administrative remedies is strong but it has some

very limited exceptions, namely:

 where exhaustion would be futile or inadequate

(see Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592,

606 (1988));

 where the issue presented is a purely legal

question;

47

 where the administrative agency cannot grant

relief (for example, due to lack of authority); and

 an emergency situation, such as where exhaustion

of administrative remedies would cause ‘severe or

irreparable harm’ to the litigant.

Komninos, 13 F.3d at 778-79.40

Nonetheless, we have cautioned that “[t]he advantages of

awaiting completions of the administrative hearings are

particularly weighty in Disabilities Education Act cases. That

process offers an opportunity for state and local agencies to

exercise discretion and expertise in fields in which they have

substantial experience. . . . [Therefore], courts should be wary

of foregoing the benefits to be derived from a thorough

development of the issues in the administrative proceeding.” Id.

at 779-80. We have explained that “the IDEA provides a

comprehensive remedial scheme” and “includes a judicial

remedy for violations of any right ‘relating to the identification,

evaluation, or educational placement of [a] child, or the

provision of a free appropriate public education to such child.’”

A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 803 (3d Cir.

2007) (citing 20 U.S.C. § 1415(b)(6)).41

40

Citing, inter alia, Honig, 484 U.S. at 327, 108 S.Ct. at 606.

41

In A.W. we further noted that “[b]y preserving rights and

remedies ‘under the Constitution,’ section 1415(l) does permit

plaintiffs to resort to section 1983 for constitutional violations,

notwithstanding the similarity of such claims to those stated

directly under IDEA. But section 1415(l) does not permit

48

C. Title VI of the Civil Rights Act of 1964

Title VI of the Civil Rights Act provides that “[n]o

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.” 42 U.S.C. §

2000d. Title VI further provides, in relevant part, that the

guidelines and criteria established by Title VI “dealing with

conditions of segregation by race, whether de jure or de facto, in

the schools of the local educational agencies of any State shall

be applied uniformly in all regions of the United States . . .

whatever the origin or cause of such segregation.” 42 U.S.C. §

2000d-6(a).

plaintiffs to sue under section 1983 for an IDEA violation,

which is statutory in nature. Nothing in section 1415(l)

overrules the Court’s decision in Smith [v. Robinson, 468 U.S.

992, 104 S.Ct. 3457 (1984)], to the extent it held that Congress

intended IDEA to provide the sole remedies for violations of

that same statute. . . . Indeed . . . the Court has continued to

refer to the IDEA as an example of a statutory enforcement

scheme that precludes a § 1983 remedy.” A.W., 486 F.3d at

798-803 (emphasis added). Thus, we note that for the five or

six student plaintiffs who have changed their theory of liability

and now argue that the LMSD incorrectly identified them as

disabled, this part of the analysis presumably would not apply,

as they no longer make claims under the IDEA. However, as we

previously have noted, appellants did challenge the District

Court’s determination on this issue in the briefs in No. 11-4201.

49

The application of Title VI to recipients of federal

assistance through the Department of Education, as explained in

the Code of Federal Regulations is especially germane to this

case:

(a) General. 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

otherwise subjected to discrimination under any program

to which this part applies.

(b) Specific discriminatory actions prohibited.

(1) A recipient under any program to which this part

applies may not, directly or through contractual or

other arrangements, on ground of race, color, or

national origin:

(i) Deny an individual any service, financial aid,

or other benefit provided under the program;

(ii) Provide any service, financial aid, or other

benefit to an individual which is different, or is

provided in a different manner, from that

provided to others under the program;

(iii) Subject an individual to segregation or

separate treatment in any matter related to his

receipt of any service, financial aid, or other

benefit under the program;

(iv) Restrict an individual in any way in the

50

enjoyment of any advantage or privilege enjoyed

by others receiving any service, financial aid, or

other benefit under the program;

(v) Treat an individual differently from others in

determining whether he satisfies any admission,

enrollment, quota, eligibility, membership or

other requirement or condition which individuals

must meet in order to be provided any service,

financial aid, or other benefit provided under the

program;

...

34 C.F.R. § 100.3(a), (b)(1)(i)-(b)(1)(v).

Private individuals who bring suits under Title VI may

not recover compensatory relief unless they show that the

defendant engaged in intentional discrimination. Guardians

Assoc. v. Civil Serv. Comm’n of N.Y., 463 U.S. 582, 597, 607,

103 S.Ct. 3221, 3230, 3235 (1983); see also Alexander v.

Sandoval, 532 U.S. 275, 282-83, 121 S.Ct. 1511, 1517-18

(2001) (reaffirming that private individuals cannot recover

compensatory damages under Title VI except in cases of

intentional discrimination). Recently, we held that plaintiffs

bringing claims under the ADA and RA may establish

intentional discrimination with a showing of deliberate

indifference. S.H. v. Lower Merion Sch. Dist., 729 F.3d 248,

263 (3d Cir. 2013). Given the parallels between Title VI and

the statutes at issue in S.H., our rationale for adopting deliberate

indifference as a form of intentional discrimination in S.H.

applies with equal force in the Title VI context. We explained

51

that the deliberate indifference standard was “better suited to the

remedial goals of the RA and the ADA,” id. at 264, which is

also true for Title VI given that the remedies available for

violations of Title VI are coextensive with those available under

the ADA and the RA, Barnes v. Gorman, 536 U.S. 181, 185,

122 S.Ct. 2097, 2100 (2002).

Other courts of appeals to have considered the issue

agree that deliberate indifference may, in certain circumstances,

establish intentional discrimination for the purposes of a Title

VI claim. See, e.g., Zeno v. Pine Plains Cent. Sch. Dist., 702

F.3d 655, 664-65 (2d Cir. 2012) (explaining that deliberate

indifference to teacher or peer harassment of individual may

create liability if a plaintiff establishes “(1) substantial control,

(2) severe and discriminatory harassment, (3) actual knowledge,

and (4) deliberate indifference”); Bryant v. Indep. Sch. Dist. No.

I-38 of Garvin Cnty., Ok., 334 F.3d 928, 934 (10th Cir. 2003)

(holding that “deliberate indifference to known instances of

student-on-student racial harassment is a viable theory in a Title

VI intentional discrimination suit”); Monteiro v. Tempe Union

High Sch. Dist., 158 F.3d 1022, 1033 (9th Cir. 1998) (finding

that school district may violate Title VI if there is a racially

hostile environment, the district had notice of the problem, and

it failed to respond adequately). The Supreme Court, addressing

claims under Title IX, explained that in order to establish

deliberate indifference, a plaintiff must show that the school

district had knowledge of the alleged misconduct and the power

to correct it but nonetheless failed to do so. See Davis v.

Monroe Cnty. Bd. of Educ., 526 U.S. 629, 645-49, 119 S.Ct.

1661, 1672-74; S.H., 729 F.3d at 265. Constructive knowledge

is not sufficient; “only actual knowledge is a predicate to

52

liability.” Zeno, 702 F.3d at 666.

D. 42 U.S.C. § 1983

42 U.S.C. § 1983 states, in relevant part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or

the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper

proceeding for redress . . .

To establish a § 1983 claim, a plaintiff must prove that a

defendant’s discriminatory action was purposeful:

To bring a successful claim under 42 U.S.C. § 1983 for a

denial of equal protection, plaintiffs must prove the

existence of purposeful discrimination. They must

demonstrate that they ‘receiv[ed] different treatment

from that received by other individuals similarly

situated.’

Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990)

(internal citations omitted). We further explained in Brown v.

City of Pittsburgh, 586 F.3d 263, 293 (3d Cir. 2009):

Our analysis yields the following conclusion: in

order to establish municipal liability for selective

53

enforcement of a facially viewpoint- and content-

neutral regulation, a plaintiff whose evidence

consists solely of the incidents of enforcement

themselves must establish a pattern of

enforcement activity evincing a governmental

policy or custom of intentional discrimination on

the basis of viewpoint or content.

We also have explained that “[a]n essential element of a

claim of selective treatment under the Equal Protection Clause is

that the comparable parties were ‘similarly situated.’ Persons

are similarly situated under the Equal Protection Clause when

they are alike ‘in all relevant aspects.’” Startzell v. City of

Phila., 533 F.3d 183, 203 (3d Cir. 2008) (citing Hill v. City of

Scranton, 411 F.3d 118, 125 (3d Cir. 2005)).

E. Section 504 of the Rehabilitation Act and

Relevant Regulations of the Department of

Education

Section 504 of the RA, 29 U.S.C. § 701 et seq., states, in

relevant part:

No otherwise qualified individual with a disability

in the United States, . . . 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). Thus, § 504 of the RA requires school

districts receiving federal funding to provide a FAPE to each

54

qualified handicapped person within the recipient’s jurisdiction.

See Lauren W., 480 F.3d at 274; see also Ridley, 680 F.3d at

280 (quoting W.B. v. Matula, 67 F.3d 484, 492 (3d Cir. 1995),

abrogated on other grounds by A.W., 486 F.3d 791); 34 C.F.R.

§ 104.33(a)-(b).42 We have explained that this means “a school

42

34 C.F.R. § 104.33 provides:

(a) General. A recipient that operates a public elementary or

secondary education program or activity shall provide a free

appropriate public education to each qualified handicapped

person who is in the recipient’s jurisdiction, regardless of the

nature or severity of the person’s handicap.

(b) Appropriate education.

(1) For the purpose of this subpart, the provision of an

appropriate education is the provision of regular or special

education and related aids and services that (i) are

designed to meet individual educational needs of

handicapped persons as adequately as the needs of

nonhandicapped persons are met and (ii) are based upon

adherence to procedures that satisfy the requirements of

§§ 104.34, 104.35, and 104.36.

(2) Implementation of an Individualized Education

Program developed in accordance with the Education of

the Handicapped Act is one means of meeting the

standard established in paragraph (b)(1)(i) of this section.

(3) A recipient may place a handicapped person or refer

such a person for aid, benefits, or services other than

55

district must reasonably accommodate the needs of the

handicapped child so as to ensure meaningful participation in

educational activities and meaningful access to educational

benefits. . . . However, § 504 does not mandate ‘substantial’

changes to the school’s programs, and courts ‘should be mindful

of the need to strike a balance between the rights of the student

and [his or her] parents and the legitimate financial and

administrative concerns of the [s]chool [d]istrict.’” Ridley, 680

F.3d at 280-81 (internal citation omitted); Ridgewood, 172 F.3d

at 247; Southeastern Cmty. Coll. v. Davis, 442 U.S. 397, 405,

99 S.Ct. 2361, 2366 (1979). On the other hand, mere

administrative or fiscal convenience does not constitute a

sufficient justification for providing separate or different

services to a handicapped child. Ridley, 680 F.3d at 281 (citing

Helen L. v. DiDario, 46 F.3d 325, 338 (3d Cir. 1995)).

To establish that there has been a violation of § 504 of

the RA, a plaintiff must prove that: (1) the student was

disabled;43 (2) (s)he was “otherwise qualified” to participate in

those that it operates or provides as its means of carrying

out the requirements of this subpart. If so, the recipient

remains responsible for ensuring that the requirements of

this subpart are met with respect to any handicapped

person so placed or referred.

43

Again, as noted, a recent psychological evaluation of the

students in question, performed by plaintiffs’ psychologist at

their behest, has concluded that five or six of the students at

issue are not learning disabled, and thus a § 504 analysis

presumably is not relevant to those students’ claims.

56

school activities; (3) the school district received federal financial

assistance; and (4) the student was excluded from participation

in or denied the benefits of the educational program receiving

the funds, or was subject to discrimination under the program.

See id. at 280.

F. Americans with Disabilities Act

In a provision similar to the safeguards we have

outlined above, Title II of the ADA provides, in relevant

part:

Subject to the provisions of this subchapter, no

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.

42 U.S.C. § 12132.

The Code of Federal Regulations has effectuated

the ADA by mandating that there be equal opportunity in

benefits and services for disabled individuals. It

provides, in relevant part,

(b)(1) A public entity, in providing any aid,

benefit, or service, may not, directly or through

contractual, licensing, or other arrangements, on

the basis of disability—

57

...

(ii) Afford a qualified individual with a

disability an opportunity to participate in

or benefit from the aid, benefit, or service

that is not equal to that afforded others;

(iii) Provide a qualified individual with a

disability with an aid, benefit, or service

that is not as effective in affording equal

opportunity to obtain the same result, to

gain the same benefit, or to reach the same

level of achievement as that provided to

others;

...

(vii) Otherwise limit a qualified individual

with a disability in the enjoyment of any

right, privilege, advantage, or opportunity

enjoyed by others receiving the aid,

benefit, or service.

...

28 C.F.R. § 35.130(b)(1)(ii), (iii), (vii).

We have explained that “the substantive standards for

determining liability under the Rehabilitation Act and the ADA

are the same.” Ridley, 680 F.3d at 282-83 (citing McDonald v.

Pa. Dep’t of Pub. Welfare, 62 F.3d 92, 94-95 (3d Cir. 1995)).

58

G. Establishing a Prima Facie Case of Racial

Discrimination Through Circumstantial Evidence

Inasmuch as we have recognized that individuals who

violate the law based on discriminatory motives sometimes do

not leave a trail of direct evidence, but instead “cover their

tracks” by providing alternate explanations for their actions, we

have found that a plaintiff may establish a prima facie factual

foundation of discrimination by drawing reasonable inferences

from certain objective facts that are generally not in dispute.

See Barnes Found. v. Twp. of Lower Merion, 242 F.3d 151,

162-63 (3d Cir. 2001).44

In International Brotherhood of Teamsters v. United

States, a Title VII employment discrimination case mentioned

44

In Barnes, a case involving a museum with a primarily

African American board of directors, the plaintiffs’ evidence

consisted mainly of affidavits from attorneys expressing their

viewpoint that zoning enforcement had been unequal with

respect to the museum. In this regard, the plaintiffs claimed that

there had been unequal treatment of the museum as compared to

its neighbors in the enforcement of parking regulations.

Moreover, it was claimed that one resident of the municipality

in which the museum was located used “code words” at a public

meeting in a manner that the plaintiffs believed had racial

undertones. Nevertheless, we concluded that the evidence

provided “a totally inadequate foundation on which to predicate

an inference that racial animus motivated the appellants,” 242

F.3d at 164, except perhaps as to the one individual who had

used the “code words.”

59

several times during oral argument in this case,45 the Supreme

Court rejected defendants’ arguments that statistics never can

establish a prima facie case of discrimination. Rather, the Court

held that statistics, when bolstered by other evidence, may,

depending on the circumstances, establish a prima facie case of

racial discrimination. 431 U.S. 324, 338-40, 97 S.Ct. 1843,

1856-57 (1977). However, the Court cautioned that the

“usefulness [of statistics] depends on all of the surrounding facts

and circumstances.” Id. at 340, 97 S.Ct. at 1856-57.

Importantly, the Supreme Court has explained that

neither the “courts or defendants [are] obliged to assume that

plaintiffs’ statistical evidence is reliable,” and has cited, for

example, the weaknesses inherent in small or incomplete data

sets and/or inadequate statistical techniques. Watson v. Fort

45

Many of the cases that discuss statistical evidence as it relates

to establishment of a prima facie case of discrimination do so in

the context of employment litigation under Title VII. Though

we are not suggesting that a Title VI prima facie case

necessarily requires a plaintiff to meet the same burden of proof

that a plaintiff must meet in a Title VII case, as we have no need

to address that possibility, the general discussion of the

usefulness of statistics as prima facie evidence in Title VII cases

is instructive. Indeed, we have recognized that “[a]lthough the

Supreme Court has not yet spoken on the issue, the courts of

appeals have generally agreed that the parties’ respective

burdens in a Title VI disparate impact case should follow those

developed in Title VII cases.” Powell v. Ridge, 189 F.3d 387,

393 (3d Cir. 1999).

60

Worth Bank & Trust, 487 U.S. 977, 996, 108 S.Ct. 2777, 2790

(1988); see also Teamsters, 431 U.S. at 339 n.20, 97 S.Ct. at

1857 n.20 (“Considerations such as small sample size may, of

course, detract from the value of such evidence.”).

The Supreme Court also has rejected the use of particular

standard deviations or “any alternative mathematical standard”

in establishing a prima facie case of employment discrimination,

and has stressed that the significance or substantiality of

numerical disparities must be judged on a case-by-case basis.

“[S]uch a case-by-case approach properly reflects our

recognition that statistics ‘come in infinite variety and . . . their

usefulness depends on all of the surrounding facts and

circumstances.’” Watson, 487 U.S. at 995 n.3, 108 S.Ct. at

2789 n.3 (internal citations omitted). Moreover, the Court has

noted that its “formulations, which have never been framed in

terms of any rigid mathematical formula, have consistently

stressed that statistical disparities must be sufficiently

substantial that they raise such an inference of causation.” Id. at

995, 108 S.Ct. at 2789.

H. Class Actions and Res Judicata (Claim

Preclusion) Defenses

1. Claim Preclusion

We have explained that

[c]laim preclusion, formerly referred to as res judicata,

gives dispositive effect to a prior judgment if a particular

issue, although not litigated, could have been raised in

the earlier proceeding. Claim preclusion requires: (1) a

61

final judgment on the merits in a prior suit involving; (2)

the same parties or their privities [sic]; and (3) a

subsequent suit based on the same cause of action.

Bd. of Trs. of Trucking Emps. of N. Jersey Welfare Fund, Inc. -

Pension Fund v. Centra, 983 F.2d 495, 504 (3d Cir. 1992)

(citing United States v. Athlone Indus., Inc., 746 F.2d 977, 983

(3d Cir. 1984)).

In analyzing whether these three elements have been met,

we “[do] not apply this conceptual test mechanically, but focus

on the central purpose of the doctrine, to require a plaintiff to

present all claims arising out [of] the same occurrence in a

single suit. In so doing, we avoid piecemeal litigation and

conserve judicial resources.” Sheridan v. NGK Metals Corp.,

609 F.3d 239, 260 (3d Cir. 2010) (quoting Churchill v. Star

Enters., 183 F.3d 184, 194 (3d Cir. 1999) (internal quotation

marks omitted)) (in turn quoting Athlone, 746 F.2d at 984).

We further have explained that “[w]e take a ‘broad view’

of what constitutes the same cause of action” and that “res

judicata generally is thought to turn on the essential similarity of

the underlying events giving rise to the various legal claims.”

Sheridan, 609 F.3d at 261 (emphasis in original) (citing

Churchill, 183 F.3d at 194) (quoting Athlone, 746 F.2d at 983-

84). In analyzing essential similarity, we consider several

factors: “(1) whether the acts complained of and the demand for

relief are the same . . .; (2) whether the theory of recovery is the

same; (3) whether the witnesses and documents necessary at

trial are the same . . .; and (4) whether the material facts alleged

are the same. It is not dispositive that a plaintiff asserts a

different theory of recovery or seeks different relief in the two

62

actions.” Id. at 261 (internal quotation marks omitted) (quoting

Davis v. U.S. Steel Supply, 688 F.2d 166, 171 (3d Cir. 1982));

see also Elkadrawy v. Vanguard Grp., 584 F.3d 169, 173 (3d

Cir. 2009) (“This analysis does not depend on the specific legal

theory invoked, but rather [on] the essential similarity of the

underlying events giving rise to the various legal claims.)

(internal quotation marks omitted).

Thus, res judicata bars a claim litigated between the same

parties or their privies in earlier litigation where the claim arises

from the same set of facts as a claim adjudicated on the merits in

the earlier litigation. “Moreover, ‘res judicata bars not only

claims that were brought in the previous action, but also claims

that could have been brought.’” Id. (internal citations omitted)

(quoting Davis v. U.S. Steel Supply, 688 F.2d at 171). Further,

“[t]he fact that several new and discrete discriminatory events

are alleged does not compel a different result. A claim

extinguished by res judicata ‘includes all rights of the plaintiff

to remedies against the defendant with respect to all or any part

of the transaction, or series of connected transactions, out of

which the action arose.’” Id. at 174 (emphasis in original)

(quoting Restatement (Second) of Judgments § 24(1) (1982)).

2. Application of Res Judicata (Claim

Preclusion) in Class Actions

We have explained that “[i]t is now settled that a

judgment pursuant to a class settlement can bar later claims

based on the allegations underlying the claims in the settled

class action. This is true even though the precluded claim was

not presented, and could not have been presented, in the class

action itself.” In re Prudential Ins. Co. of Am. Sales Practice

63

Litig., 261 F.3d 355, 366 (3d Cir. 2001). While “it may seem

anomalous at first glance . . . that courts without jurisdiction to

hear certain claims have the power to release those claims as

part of a judgment . . . we have endorsed the rule because it

serves the important policy interest of judicial economy by

permitting parties to enter into comprehensive settlements that

prevent relitigation of settled questions at the core of a class

action.” Id. at 366 (internal quotation marks omitted) (quoting

Grimes v. Vitalink Comm’ns Corp., 17 F.3d 1553, 1563 (3d

Cir.1994)).

It is highly significant that adding parties to the class in a

subsequent class action does not necessarily preclude parties

from satisfying the second prong of the res judicata test, that the

parties are the same or privies of the parties in the first action.

See, e.g., Sheridan, 609 F.3d at 261 (“The fact that there are

additional parties in Sheridan II does not affect our

conclusion.”) (citing Gregory v. Chehi, 843 F.2d 111, 119 (3d

Cir. 1988) (“The essence of the cause of action asserted against

the defendants in the state proceeding is not altered by the

addition of more parties.”)).

I. Standing

Article III, § 1 of the Constitution confers judicial power

on the federal courts, but limits their jurisdiction to cases and

controversies “which are appropriately resolved through the

judicial process.” Lujan v. Defenders of Wildlife, 504 U.S. 555,

560, 112 S.Ct. 2130, 2136 (1992) (quoting Whitmore v.

Arkansas, 495 U.S. 149, 155, 112 S.Ct. 1717, 1722 (1990)

(“[T]he core component of standing is an essential and

unchanging part of the case-or-controversy requirement of

64

Article III.”) (internal quotation marks omitted)). It is well

established that plaintiffs bear the burden of demonstrating that

they have standing in the action that they have brought. See

Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 291 (3d

Cir. 2005) (citing Storino v. Borough of Point Pleasant Beach,

322 F.3d 293, 296 (3d Cir. 2003)).

The Supreme Court has explained that “the irreducible

constitutional minimum of standing contains three elements”:

(1) the invasion of a concrete and particularized legally

protected interest and resulting injury in fact that is actual or

imminent, not conjectural or hypothetical; (2) a causal

connection between the injury and the conduct complained of,

meaning that the injury must be fairly traceable to the

challenged action of the defendant; and (3) it must be likely, as

opposed to merely speculative, that the injury will be redressed

by a favorable decision. Lujan, 504 U.S. at 560, 112 S.Ct. at

2136, 2147 (1992) (citing Sierra Club v. Morton, 405 U.S. 727,

740-41 n.16, 92 S.Ct. 1361, 1368-69 n.16 (1972)). See Nat’l

Collegiate Athletic Ass’n, 730 F.3d at 218.

An injury is “concrete” if it is real, or distinct and

palpable, as opposed to merely abstract, and is sufficiently

particularized if “‘it affect[s] the plaintiff in a personal and

individual way.’” New Jersey Physicians, Inc. v. President of

the United States, 653 F.3d 234, 238 (3d Cir. 2011) (citing City

of L.A. v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665

(1983)) (citing and quoting Lujan, 504 U.S. at 560 n.1, 112

S.Ct. at 2136 n.1). A harm is “actual or imminent” rather than

“conjectural or hypothetical” where it is presently or actually

occurring, or is sufficiently imminent. The determination of

65

what is imminent is somewhat elastic, but it is fair to say that

plaintiffs relying on claims of imminent harm must demonstrate

that they face a realistic danger of sustaining a direct injury from

the conduct of which they complain. Id. (citing Babbitt v.

United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct.

2301, 2308 (1979)).

In the context of a motion to dismiss, we have held that

the “[i]njury-in-fact element is not Mount Everest. The contours

of the injury-in-fact requirement, while not precisely defined,

are very generous, requiring only that claimant allege [ ] some

specific, identifiable trifle of injury.” Danvers Motor Co., 432

F.3d at 294 (quoting Bowman v. Wilson, 672 F.2d 1145, 1151

(3d Cir. 1982)).

The Supreme Court explained the difference in the

burden placed on the plaintiff to satisfy the standing requirement

at the motion to dismiss stage as compared to the motion for

summary judgment stage, as follows:

At the pleading stage, general factual allegations of

injury resulting from the defendant’s conduct may

suffice, for on a motion to dismiss we ‘presum[e] that

general allegations embrace those specific facts that are

necessary to support the claim.’ In response to a

summary judgment motion, however, the plaintiff can no

longer rest on such ‘mere allegations,’ but must ‘set

forth’ by affidavit or other evidence ‘specific facts,’ Fed.

Rule Civ. Proc. 56(e), which for purposes of the

summary judgment motion will be taken to be true. And

at the final stage, those facts (if controverted) must be

‘supported adequately by the evidence adduced at trial.’

66

Lujan, 504 U.S. at 561, 112 S.Ct. at 2137 (internal citations

omitted).

The Court further has noted that:

‘Beyond the constitutional requirements, the federal

judiciary has also adhered to a set of prudential

principles that bear on the question of standing.’ One of

these is the requirement that the plaintiff ‘establish that

the injury he complains of (his aggrievement, or the

adverse effect upon him) falls within the “zone of

interests” sought to be protected by the statut[e] [or

constitutional guarantee] whose violation forms the legal

basis for his complaint.’ The ‘zone-of-interests’

formulation first appeared in cases brought under § 10 of

the Administrative Procedure Act, 5 U.S.C. § 702, but

we have subsequently made clear that the same test

similarly governs claims under the Constitution in

general. Indeed, we have indicated that it is more strictly

applied when a plaintiff is proceeding under a

‘constitutional . . . provision’ . . .

Wyoming v. Oklahoma, 502 U.S. 437, 468-69, 112 S.Ct. 789,

807-08 (1992) (internal citations omitted) (emphasis in original).

An organization or association may have standing to

bring a claim where (1) the organization itself has suffered

injury to the rights and/or immunities it enjoys; or (2) where it is

asserting claims on behalf of its members and those individual

members have standing to bring those claims themselves. See

Common Cause of Pa., 558 F.3d at 261. Where an organization

asserts its standing to sue on its own behalf, “a mere ‘interest in

67

a problem,’ no matter how longstanding the interest and no

matter how qualified the organization is in evaluating the

problem, is not sufficient by itself to render the organization

‘adversely affected’ or ‘aggrieved.’” Sierra Club v. Morton, 405

U.S. at 739, 92 S.Ct. at 1368; see also Pennsylvania Prison Soc.

v. Cortes, 508 F.3d 156, 162 (3d Cir. 2007).

Where an organization is asserting that it has standing on

behalf of its members, it is claiming that it has “representational

standing.” There are three requirements for this type of

standing:

(1) the organization’s members must have standing to

sue on their own; (2) the interests the organization seeks

to protect are germane to its purpose, and (3) neither the

claim asserted nor the relief requested requires individual

participation by its members.

Pennsylvania Prison Soc., 508 F.3d at 163 n.10 (citing Hunt v.

Wash. State Apple Adver. Com’n, 432 U.S. 333, 343, 97 S.Ct.

2434, 2441 (1977)); see also Public Interest Research Grp. of

N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 119 (3d

Cir. 1997).

Regarding the first prong, we have explained that “[t]he

Supreme Court has repeatedly held that generalized grievances

shared by the public at large do not provide individual plaintiffs

with standing,” and further that “the right to have the

government act in accordance with the law [is] insufficient, by

itself, to support standing.” Id. at 120. Rather, the plaintiff

organization must “make specific allegations establishing that at

least one identified member had suffered or would suffer harm.”

68

Summers v. Earth Island Inst., 555 U.S. 488, 498, 129 S.Ct.

1142, 1151 (2009).

We also have rejected the “formalistic argument” that an

organization necessarily lacks standing “because [its] charter

prohibits [it] from having members,” but rather in some cases

have relied upon “indicia of membership” in analyzing an

organization’s standing. See Public Interest Research Grp., 123

F.3d at 119 (citing Hunt, 432 U.S. at 334, 97 S.Ct. at 2436-

37).46 But we also have held that a plaintiff by making

expenditures to advance litigation does not suffer sufficient

damage to support standing. Fair Hous. Council of Suburban

Phila. v. Montgomery Newspapers, 141 F.3d 71, 79 (3d Cir.

1998).47

Finally, “‘the jurisdictional issue of standing can be

46

In Hunt, the Supreme Court held that “it would exalt form

over substance to differentiate” between the Washington State

Apple Advertising Commission, which represented the interests

of all apple growers and suppliers, whose membership in the

State of Washington was mandatory and who paid dues and

directly benefitted economically from the Commission’s

activities, and a traditional trade organization.

47

Other courts of appeals “have, however, adopted different

views of whether the injury necessary to establish standing

flows automatically from the expenses associated with

litigation.” But we have aligned “ourselves with those courts

holding that litigation expenses alone do not constitute damage

sufficient to support standing.” Fair Hous., 141 F.3d at 78-79.

69

raised at any time,’” by either a party or by the court. See

Center For Biological Diversity v. Kempthorne, 588 F.3d 701,

707 (9th Cir. 2009) (quoting United States v. Viltrakis, 108 F.3d

1159, 1160 (9th Cir. 1997)) (citing Summers, 555 U.S. 488, 129

S.Ct. 1142); see also Steele v. Blackman, 236 F.3d 130, 134 n.4

(3d Cir. 2001) (“Although Appellees do not address standing,

we are required to raise issues of standing sua sponte if such

issues exist.”) (internal quotation marks omitted). It is hardly

surprising that we have this obligation inasmuch as “federal

appellate courts have a bedrock obligation to examine both their

own subject matter jurisdiction and that of the district courts

[,and] . . . standing is ‘perhaps the most important’ of

jurisdictional doctrines.” Public Interest Research Grp., 123

F.3d at 117 (citing FW/PBS Inc. v. City of Dallas, 493 U.S. 215,

230-31, 110 S.Ct. 596, 607 (1990); Chabal v. Reagan, 822 F.2d

349, 355 (3d Cir. 1987)).

VII. ANALYSIS

Now that we have set forth the procedural history, facts,

and applicable law in this case we directly address the issues

raised in this appeal. We first will discuss whether the District

Court correctly determined that the Gaskin settlement and final

adjudication barred the claims against the PDE. Then we will

discuss whether CBP has standing as a litigant in this case. Our

third focus will be on the issue of whether the IDEA’s 90-day

statute of limitations bars the Blunt plaintiffs’ claims. Finally,

we will discuss whether any of the plaintiffs still in the action

when the LMSD moved for summary judgment established a

prima facie case of racial discrimination under Title VI and/or

70

presented sufficient evidence to demonstrate that the LMSD

violated the Equal Protection Clause of the Fourteenth

Amendment in violation of 42 U.S.C. § 1983 so that the District

Court erroneously entered its October 20, 2011 Memorandum

and Judgment Order granting summary judgment in favor of the

LMSD.48 As part of this last issue, we will review for abuse of

discretion the District Court’s determinations in using the

evidence submitted on the motion for summary judgment.

A. The Effect of the Gaskin Settlement on the

Claims Against the PDE

We conclude that the District Court correctly held that

the Gaskin settlement barred the plaintiffs’ claims against the

PDE. Although the Gaskin plaintiffs were basing their claims

against the PDE on its alleged supervisory failure and did not

assert that it engaged in racial discrimination, the Gaskin class

consisted of “all school-age students with disabilities in

Pennsylvania who have been denied a free appropriate education

in regular classrooms with individualized supportive services,

individualized instruction, and accommodations they need to

succeed in the regular education classroom.” J.A. vol. 1, at

42.64. The allegations against PDE in this case are strikingly

similar to those made against it in Gaskin. As the District Court

48

Although we do not reach this issue with respect to the Blunts

(as the brief in No. 11-4201 filed on their behalf did not and

could not challenge the summary judgment), it is difficult to see

how we would have come to a different result if we had done so.

71

summarized:

As in Gaskin, the plaintiffs here claim that the PDE

violated the IDEA by failing to identify children with

disabilities and provide needed special education and

related services and by failing to provide the plaintiffs

and members of the putative class a free, appropriate

public education. As in Gaskin, plaintiffs here bring a

claim against the PDE under § 504 of the Rehabilitation

Act.

J.A. vol. 1, at 42.67.

We conclude that the claims plaintiffs asserted against

the PDE in this case overlap with the claims made in Gaskin.

Though plaintiffs here advance theories of racial motivation not

raised in Gaskin, the claims here arise from a “common nucleus

of operative facts” when compared to the claims in Gaskin:

namely LMSD’s failure to provide a FAPE to students by

mishandling identification and/or testing of students for learning

disabilities which resulted in incorrect placements. Thus, the

release entered into in Gaskin bars the claims here against the

PDE because the Gaskin release covered claims arising between

2005 and 2010 and included all present and future students with

disabilities within the Commonwealth of Pennsylvania. Indeed,

appellants acknowledge that most, though not all, of the plaintiff

students in this case were evaluated individually and their IEPs

formulated before the Gaskin settlement. Tr. Oral Arg. June 11,

2013, at 19:9-22.

As explained above, we apply res judicata and claim

preclusion as a consequence of settlement agreements because

72

by doing so we encourage settlements and “serve[ ] the

important policy interest of judicial economy by permitting

parties to enter into comprehensive settlements that ‘prevent

relitigation of settled questions at the core of a class action.’”

Prudential, 261 F.3d at 366. We see no reason to depart from

that policy in this case.

In considering the res judicata issue we recognize that,

although the Gaskin release was broad,49 there is no suggestion

in the record that the attorneys who represented the parties in

Gaskin did not negotiate the settlement at arms’ length.

Moreover, the district court in Gaskin reviewed and accepted the

settlement; and the settlement led the parties to forego additional

litigation in which they could have advanced their positions with

the hope of obtaining what they perceived would be a more

favorable outcome than the settlement agreement provided them.

We agree with the PDE that the claims against it in this case,

like those in Gaskin, deal with its alleged failure to monitor

special education programs carried out by school districts in

Pennsylvania, including the procedures regarding testing of

students for special education services and other aspects of the

provision of special education services to students entitled to

them, and that the settlement covered the period from 2005-

2010. Tr. Oral Arg. June 11, 2013, at 26:12-25.

We recognize that appellants argue that the District Court

here erred in its interpretation of the parties’ intent in entering

into the Gaskin settlement agreement. Tr. Oral Arg. June 11,

2013, at 21-23. There can be no doubt that, as other courts have

49

See Tr. Oral Arg. June 11, 2013, at 28.1.

73

held, “[t]he best evidence of . . . intent is, of course, the

settlement agreement itself.” Norfolk S. Corp. v. Chevron,

U.S.A., Inc., 371 F.3d 1285, 1289 (11th Cir. 2004) (emphasis

added); see also Davis v. Huskipower Outdoor Equip. Corp.,

936 F.2d 193, 196 (5th Cir. 1991) (“[A] settlement agreement is

an enforceable contract to which a court must give legal effect

according to the parties’ intent as expressed in the document.”);

Miller v. Ginsberg, 874 A.2d 93, 99 (Pa. Super. Ct. 2005);50

Lubrizol Corp. v. Exxon Corp., 871 F.2d 1279, 1283 (5th Cir.

1989) (where parties express their intent in language in

settlement agreement and were represented by skilled attorneys,

court should not look beyond that language to understand

agreement). Moreover, as the Court of Appeals for the Ninth

Circuit explained in Facebook, Inc. v. Pacific Northwest

Software, Inc., 640 F.3d 1034, 1040 (9th Cir. 2011), a

settlement agreement may release all claims arising out of the

transaction with which the release was concerned even if they

are not yet known; and broad releases are valid at least when

50

“Settlement agreements are regarded as contracts and must be

considered pursuant to general rules of contract interpretation.

The fundamental rule in construing a contract is to ascertain and

give effect to the intention of the parties. Thus, we will adopt

an interpretation which, under all circumstances, ascribes the

most reasonable, probable, and natural conduct of the parties,

bearing in mind the objects manifestly to be accomplished.

Additionally, if the language appearing in the written agreement

is clear and unambiguous, the parties’ intent must be discerned

solely from the plain meaning of the words used.” Miller, 874

A.2d at 99 (internal citations and quotation marks omitted).

74

negotiated between sophisticated parties. Overall, we are

satisfied from the terms of the Gaskin settlement that it included

the claims made against the PDE here, and thus the settlement

barred them.51

51

We have not overlooked appellants’ argument that the Gaskin

settlement could not bar claims that arose after its effective date.

Rather, we reject that argument because the settlement included

claims of “future” students and therefore necessarily it included

the claims that arose after its effective date.

75

B. Whether CBP Has Standing in this Suit52

52

As a matter of convenience this subsection largely is written

as though for the Court, but in fact this section in its entirety

represents only the views of Judge Greenberg, as Chief Judge

McKee and Judge Ambro agree with aspects of the section but,

as they explain in their separate opinions, not its conclusion that

CBP does not have standing. Although Judge Ambro, in his

concurring opinion, concludes that “CBP has standing to sue on

its own behalf,” he also observes that “CBP has not explained

how, were it permitted to continue as a plaintiff in the case, it

could prevail where the individual Plaintiffs have failed.” Chief

Judge McKee writes that “CBP’s likelihood of success on the

merits has no bearing on its standing.” Judge Ambro, however,

did not make his observation to support Judge Greenberg’s

conclusion that CBP does not have standing. Rather, Judge

Ambro’s point is that, even if CBP has standing, it could not

save its case as it could not survive LMSD’s motion for

summary judgment. Judge Greenberg agrees that, even if CBP

had standing, it would lose on the merits. See infra note 62.

We note that Chief Judge McKee sets forth that CBP was

dismissed at an “early stage” of the litigation and did not have

the opportunity to engage in discovery. But as we explain

below, the District Court considered the standing issue twice,

once in proceedings leading to the February 15, 2008 Order

dismissing CBP for lack of standing, and again in proceedings

leading to the August 19, 2009 Order again dismissing CBP for

lack of standing, and in entering the second order the Court

considered testimony. See infra note 57. Indeed, there was a

76

The District Court dismissed CBP as a plaintiff on its

own behalf in its February 15, 2008 Order because the Court

concluded that CBP had failed to “allege any injury whatsoever”

to itself beyond advancing evidence that at best insufficiently

could support an inference that “the defendants’ conduct may

have caused [CBP] . . . to ‘suffer a setback to the

organization[’s] abstract social interests.’” J.A. vol. 1, at 42.33.

The Court also determined in its February 15, 2008 Order that

CBP had not met the three-part test that Hunt v. Washington

State Apple Advertising Commission indicated needed to be met

for an organization to sue on behalf of its members. The CBP

failed in this respect because it did not “provid[e] the court with

the identity of any member or alleged in the Amended

Complaint that any of [its] members has suffered an injury[, and

great deal of discovery in this case after the Court originally

dismissed CBP as a party on February 15, 2008, and both this

opinion and Chief Judge McKee’s opinion refer to this

discovery.

Judge Ambro and Judge Greenberg see no reason why

CBP’s participation in the discovery process would have made

any difference in the outcome of this litigation by somehow

having enabled it to survive the motion for summary judgment if

it had been directed against it. In this regard, they point out that

both groups of plaintiffs had the goal of establishing that LMSD

had been violating anti-discrimination and anti-segregation laws

and regulations and so would have had the same objective in the

discovery process.

77

that w]ithout that information, the court ha[d] no basis to

conclude that the organization[] ha[s] standing to bring claims

on behalf of [its] members.” J.A. vol. 1, at 42.33-42.34.

Though CBP’s lack of standing may make no difference with

respect to its claims against the PDE inasmuch as the Gaskin

settlement may have foreclosed those claims, its claim to have

standing raises an issue that must be addressed, for it continues

to assert claims against the LMSD.53

CBP has not demonstrated that it suffered an injury to

itself conferring standing, and, even if its claim is true that it

has members notwithstanding its bylaws, CBP does not have

standing to sue on their behalf. CBP has a stated purpose to

promote “equity and excellence in the response of school

districts to the needs of diverse student populations; to address

issues related to education for populations identified as minority

and/or African American; and to identify, monitor, and inform

parents about educational issues impacting disadvantaged

students, their families and the community at large.” J.A. vol. 1,

at 42.50.

In its complaint, CBP identified itself as having been

“operating as an organization in the LMSD for about 13 years,”

and as “a non-profit Pennsylvania corporation whose purpose is,

inter alia, to promote equity and excellence in the response of

school districts to the needs of diverse student populations; to

53

“May have” is used because CBP was not a member of the

plaintiff class in Gaskin though it might be so regarded to the

extent that it asserts it has representational standing. This point

need not be explored further.

78

address issues related to education for populations identified as

minority and/or African American; and to identify, monitor, and

inform parents about educational issues impacting

disadvantaged students, their families and the community at

large.” No. 2:07-cv-3100, Doc. No. 1, pp. 23-24; J.A. vol. 2, at

509. CBP claimed to bring the action “on its behalf and on

behalf of its members.” Id. at 25. CBP identified its members

generally as follows: “[t]he members of the organization are

residents of the Lower Merion School District and current and

former parents or students of the District.” Id. at 510. The

District Court noted that, notwithstanding these allegations,

CBP supplied documents that stated that it had no members.

See August 19, 2009 Order at 5, No. 2:07-cv-3100, Doc. No.

123 (“The organization’s bylaws specifically state ‘[t]he

Corporation shall have no members.’”). Nevertheless, CBP’s

prohibition in its bylaws against having members does not

necessarily mean that it could not have standing as a plaintiff on

behalf of its members. If such a determination were predicated

solely on the basis of the bylaws, it would advance the strictly

formalistic approach that we have rejected in other cases. See

Public Interest Research Grp., 123 F.3d at 119. Nonetheless,

the bylaws do provide context to the overall analysis,

particularly in considering whether CBP has attempted to create

standing for itself by changing its structure and membership and

by its expenditure of resources in response to the District

Court’s observations concerning its standing.

In the TAC, the last revised complaint in this case, CBP

did not change its statement of purpose quoted above. It,

however, did identify 11 of its members by name, five of whom

are individually named plaintiffs in this case, and it also

79

identified itself as “support[ing]” several more class members

and individually named plaintiffs in this case at school-related

meetings and court proceedings. TAC, No. 2:07-cv-3100, Doc.

No. 55, pp. 25-26. CBP also went to great pains to explain the

rise in its expenditures “over the five years” in relation to this

case because, as discussed above, the expenditure of funds by an

organization on behalf of a cause, though not determinative, is

one factor that may be considered in resolving a standing issue.

The CBP’s alleged expenditures on behalf of the interests

embodied in this case included:

 Use of its resources to ‘host educational

consultants and experts’ with the purpose of

providing information to the Plaintiffs, class

members, community and LMSD;

 A ‘sharp’ rise in expenditures over the last five

years due to its efforts to ‘protect its members

from the adverse impact’ of ‘the inferior quality

of LMSD’s dual system of education’;

 Expenditure of resources as a result of its

attending meetings related to IEPs, Section 504

and ‘disciplinary meetings, court hearings and

parent-teacher conferences with and/or on behalf

of’ various plaintiffs, CBP members and class

members;

 Its efforts in facilitating a ‘Conciliation

Agreement between LMSD and the Pennsylvania

Human Relations Commission in which the

District promised, inter alia, to eradicate the

disproportionate suspension of African American

students as compared to White students’;

80

 Production of a 45-minute video ‘highlighting the

issue of racial inequality’;

 Making the public aware of ‘racial graffiti and

symbols’ which ‘were promulgated at both LMSD

high school and middle school buildings’;54

 Publication of a community newsletter and ‘News

Notes . . . to disseminate the compilations of data

on’ alleged racial disparities in application of

disciplinary measures, segregation by race and

‘under achievement of African American students

in the [Lower Merion] District’;

 The ‘organization’ of educational, career,

standardized test, financial aid, and college

preparatory seminars.

TAC at 25-26; J.A. vol. 9, at 3871-72.

Even if all of these expenditures were legitimate, CBP

has not established organizational standing. An organization

may establish a “concrete and demonstrable injury” sufficient to

confer standing if a defendant’s actions “perceptibly impair” the

organization’s ability to provide services. Havens Realty Corp.

v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 1124

(1982). 55 In Havens, the Supreme Court determined that a

54

It is not clear what these symbols were, who promulgated

them, or why the LMSD should be held responsible for them.

No. 2:07-cv-3100 Doc. No. 55, p. 26.

81

nonprofit organization formed to promote equal housing through

counseling and referral services had standing to bring an action

charging that operators of rental housing units had “steered”

potential tenants to certain properties based on race. HOME

alleged that its mission had been frustrated because it had to

devote significant resources to identify and counteract the

defendants’ racial steering. The Supreme Court held that these

allegations, if proven, would constitute an injury in fact, and

thus HOME had standing to sue on its own behalf because the

defendants’ practices had impaired its ability to provide

services. Id. at 379, 102 S.Ct. at 1124. However, organizations

may not satisfy the injury in fact requirement by making

expenditures solely for the purpose of litigation, Fair Hous., 141

F.3d at 75, nor by simply choosing to spend money fixing a

problem that otherwise would not affect the organization at all.

La Asociacion de Trabajadores de Lake Forest v. City of Lake

Forest, 624 F.3d 1083, 1088 (9th Cir. 2010). “It must instead

show that it would have suffered some other injury if it had not

diverted resources to counteracting the problem.” Id.

CBP has failed to show how LMSD’s actions have

55

We all agree that Havens supplies the correct standard for

determining whether an organization has alleged an injury in

fact sufficient to confer standing. We disagree, however, about

whether CBP’s allegations are sufficient to meet that standard.

This disagreement is irrelevant to the resolution of this appeal,

however, inasmuch as Judge Ambro and Judge Greenberg point

out that CBP has not explained how it could win on the merits.

Thus, even assuming CBP does have organizational standing,

our ultimate holding would be the same.

82

“perceptibly impaired” its mission.56 CBP’s very purpose

relates to actions directly involving LMSD, and its expenditures

were devoted to protecting students’ interests in their

interactions with LMSD. In Havens, HOME’s purpose was to

promote equality in the Richmond area overall and its interests

thus went far beyond monitoring the specific actions at issue in

the Havens case. By contrast, the CBP is targeted only at

LMSD, so its very purpose was to expend resources to educate

the public regarding the LMSD’s behavior. J.A. vol. 2, at 510

(defining CBP’s membership as residents of LMSD and LMSD

parents and students). Because it is targeted at LMSD, all of

CBP’s resources would necessarily have been spent on LMSD-

related projects. CBP has failed to show why this particular

litigation has frustrated its mission, or caused a “concrete and

demonstrable” injury to its activities. It appears that the alleged

additional expenditures were consistent with CBP’s typical

activities, and it is thus unclear the effect, if any, that this

litigation had on their expenditures. See Fair Hous., 141 F.3d at

77-78 (refusing to confer standing at summary judgment where

plaintiff failed to present evidence that it altered its operations

or diverted resources based on litigation); Havens, 455 U.S. at

379, 102 S.Ct. at 1124 (explaining that mere “abstract social

interests” do not confer standing (citing Sierra Club, 405 U.S. at

739, 92 S.Ct. at 1368)). CBP simply has not established that the

LMSD’s actions have frustrated its efforts to fulfill its mission.

56

We emphasize that much of what we write with respect to

standing reflects the views only of Judge Greenberg.

83

Thus, it has not established standing to sue on its own behalf.57

CBP also has not established that it has standing to sue

on behalf of its members, if it has any. Hunt v. Washington

State Apple Advertising Commission is a useful starting point in

the consideration of this issue because the Supreme Court

discussed indicia of membership as a means of establishing that

57

As we state above, see supra note 52, the District Court

considered the standing issue twice, once in proceedings leading

to the February 15, 2008 Order dismissing CBP for lack of

standing, and again in proceedings leading to the August 19,

2009 Order again dismissing CBP for lack of standing. This

latter consideration included testimony. The dissent parses this

testimony in detail, and Judge Greenberg likewise considers it in

his analysis. However, a plaintiff may not simply make

repeated amendments to a complaint to “fix” the standing issue.

In this regard, the court’s reasoning in La Asociacion de

Trabajadores is instructive: “[A plaintiff] may not effectively

amend its [c]omplaint by raising a new theory of standing in its

response to a motion for summary judgment. ‘Simply put,

summary judgment is not a procedural second chance to flesh

out inadequate pleadings.’” 624 F.3d at 1089 (internal citations

omitted) (quoting Wasco Prods., Inc. v. Southwall Techs., Inc.,

435 F.3d 989, 992 (9th Cir. 2006)). This is not to say that a

plaintiff never can cure a pleading with respect to a standing

issue in response to a motion for summary judgment challenging

its standing. Rather, the court of appeals’ comments are

appropriate in the circumstances of this case.

84

an organization has members. 432 U.S. at 344, 97 S.Ct. at

2442.

In Hunt, the Supreme Court determined that a

commission created by the State of Washington to represent

and promote the advertising interests of that State’s apple

growers, whose collective efforts constituted “a multimillion

dollar enterprise which plays a significant role in Washington’s

economy,” had standing to challenge a North Carolina statute

prohibiting the display of apple grading codes on boxes of

apples shipped to North Carolina. Id. at 336, 97 S.Ct. at 2438.

The Washington State apple grading system had been in place

for over 60 years, and the stamp reflecting the apple grading was

a selling point for Washington State apples because of the good

reputation of that State’s apple growing regulations. But due to

the structure of the industry, it would have been difficult to pack

some apples in unstamped boxes and ensure that they were sent

to North Carolina, while ensuring that stamped boxes were

separated and not shipped to North Carolina. Id. at 337, 97

S.Ct. at 2438-39. The Supreme Court found that in the

circumstances of that case58 the Washington State Apple

Advertising Commission had standing to bring the action

challenging the North Carolina statute. Id. at 344-45, 97 S.Ct. at

58

“Under the circumstances presented here, it would exalt form

over substance to differentiate between the Washington

Commission [as a government-mandated organization] and a

traditional trade association representing individual growers and

dealers who collectively form its constituency.” Hunt, 432 U.S.

at 345, 97 S.Ct. at 2442 (emphasis added).

85

2442. The Court explained that “while the apple growers and

dealers are not ‘members’ of the Commission in the traditional

trade association sense,” because their membership was not

voluntary, but rather was required by statute, “they possess[ed]

all of the indicia of membership in an organization.” Id. at 344,

97 S.Ct. at 2442.

In making this determination, the Court noted that only

Washington State apple growers and dealers could elect the

members of the Commission, and that the growers and dealers

alone financed its activities, including litigation costs, through

mandatory assessments levied on them. Id. at 344-45, 97 S.Ct.

at 2442. The Court found that “[i]n a very real sense, therefore,

the Commission represents the State’s growers and dealers and

provides the means by which they express their collective views

and protect their collective interests.” Id. at 345, 97 S.Ct. at

2442. The Court reasoned that the statutorily-mandated

participation of apple growers and dealers through assessments

did not bar the Commission from having standing, analogizing

that

[m]embership in a union, or its equivalent, is often

required. Likewise, membership in a bar association,

which may also be an agency of the State, is often a

prerequisite to the practice of law. Yet in neither

instance would it be reasonable to suggest that such an

organization lacked standing to assert the claims of its

constituents.

Id., 97 S.Ct. at 2442.

Further, the Court noted that the Commission had a

86

strong direct interest in the litigation, because its existence

depended on the economic health of the Washington State

apple-growing industry. Moreover, assessments based on the

volume of apples grown and packaged provided the

Commission’s funding and the North Carolina regulation was

expected to have a great economic impact on the Washington

State apple industry. Id., 97 S.Ct. at 2442.

Though appellants rely heavily on Hunt, Judge

Greenberg believes that it clearly is distinguishable. CBP is not

funded through mandatory assessments of African American

students or their parents residing in the LMSD. Further, CBP’s

funding is not tied directly to a clear economic interest which

will be affected by the outcome of this litigation. The analogy

of a traditional trade organization discussed in Hunt is simply

not relevant to the CBP’s position in this case. Moreover, in an

entirely different setting, the Court based its decision in Hunt on

the circumstances of that case, including an analysis of how the

Commission functioned as an organization.59

59

In support of his contention that CBP has standing, Chief

Judge McKee indicates that if CBP “can establish both the

discriminatory practices and resultant harm alleged, any

injunctive or declaratory relief would surely inure to the benefit

of African American students and parents in the school district.

These students and parents are no more required have to be a

party to this suit in order to benefit from the requested relief

than the constituents in Hunt were required to be parties to

benefit receive the benefits there.” The problem with this

statement is that, though it indicates that non-parties may benefit

87

Although appellants amended their complaint after the

District Court’s dismissal of the CBP to name several alleged

individual CBP members as plaintiffs, CBP’s organizational

documents state that it does not have members. Moreover, even

though appellants also added statements to the complaint

asserting that the CBP was making expenditures related to this

suit after the District Court noted the lack of economic impact of

the litigation on CBP, this amendment does not supply the basis

for standing. It is clear that a nonprofit entity cannot create

standing in a lawsuit in which it has no direct economic interest

by having its representatives attend meetings regarding the issue

that the entity intends to raise in the suit, or by making

expenditures to “educate” the public on what it regards as the

factual or legal basis for its agenda. As the court said in Center

for Law and Education v. United States Department of

Education, 315 F. Supp. 2d 15, 24-25 (D.D.C. 2004):

Without concrete and demonstrable injury to the

groups’ activities, however, evidence of a drain

on the organizations’ resources does not amount

to an injury-in-fact for standing purposes. . . .

[A]n organization’s expenses in the pursuit of its

agenda are self-effectuating and [claiming them as

injury-in-fact] would allow any advocacy group

to manufacture standing by choosing to expend

from any declaratory or injunctive relief that CBP obtains, a

standing inquiry addresses the different matter of whether a

party can seek that relief. Judge Greenberg believes that CBP

cannot do so.

88

resources to advocate against policy decisions

made by the federal government.

Otherwise, the implication would be that any individual or

organization wishing to be involved in a lawsuit could create a

corporation for the purpose of conferring standing, or could

adopt bylaws so that the corporation expressed an interest in the

subject matter of the case, and then spend its way into having

standing.

Fair Housing discussed the artificial creation of standing,

and cited and quoted with approval a case that noted that “[a]n

organization cannot, of course, manufacture the injury necessary

to maintain a suit from its expenditure of resources on that very

suit. Were the rule otherwise, any litigant could create injury in

fact by bringing a case, and Article III would present no real

limitation.” Fair Hous., 141 F.3d at 79 (quoting Spann v.

Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990) (internal

quotation marks omitted)); see also Kennedy v. Ferguson, 679

F.3d 998, 1003 (8th Cir. 2012) (citing Spann for the proposition

that litigation-related costs are not injuries for the purposes of

assessing an organization’s standing to bring suit on its own

behalf); AHF Cmty. Dev., LLC v. City of Dallas, 633 F. Supp.

2d 287, 194 (N.D. Tex. 2009) (“The Fifth Circuit has held that

an organization cannot ‘bootstrap standing’ by claiming a drain

on its resources as a result of costs incurred for the particular

lawsuit in which it asserts standing.”). In City of Philadelphia v.

Beretta U.S.A., Corp., 126 F. Supp. 2d 882, 897 (E.D. Pa.

2000), the district court made the following convincing

statement with respect to artificial standing:

It is also disturbing that the organizational

89

plaintiffs argue that they may sue for the costs of

educational sessions and other programs which

they run to counteract gun violence. By this

logic, any social action organization may confer

standing upon itself by voluntarily spending

money on the social problem of its choice.

Analogously, the environmentalist group in Lujan

[v. Defenders of Wildlife, 504 U.S. 555, 1112

S.Ct. 2130 (1992)] would have standing to protest

the endangerment of wildlife in Sri Lanka simply

by running programs to preserve foreign fauna.

This would be a novel and vast expansion of

associational liability for which plaintiffs have

advanced no precedential support. It also

contradicts the prudential concern behind the

standing doctrine that courts not become vehicles

for the advancement of ideological and academic

agendas.

In addition to not overcoming the foregoing problems

with respect to its standing, CBP does not satisfy the third

requirement for an organization to have standing to sue on

behalf of its members, namely that neither the claim the

organization is asserting nor “the relief requested requires the

participation of individual members in the lawsuit.” Hunt, 432

U.S. at 343, 97 S.Ct. at 2441. Even if the District Court’s

analysis regarding CBP’s lack of members and its attenuated

claims of injury did not demonstrate that CBP did not have

standing, after considering this third criterion it is clear that the

District Court reached the correct result. It is an accepted

principle that “[b]ecause claims for monetary relief usually

90

require individual participation, courts have held associations

cannot generally raise these claims on behalf of their members.”

Pennsylvania Psychiatric Soc’y v. Green Spring Health Servs.,

Inc., 280 F.3d 278, 284 (3d Cir. 2002).60

Here, individual student plaintiffs are seeking monetary

reimbursement for remedial courses that they either already

have taken or wish to take, and that they contend were necessary

because of LMSD’s failure to provide them with a FAPE or

60

Plaintiffs did seek prospective injunctive relief in the TAC,

including an injunction prohibiting LMSD from placing African

American students in special education programs “whether or

not they have a disability” and forcing the LMSD to identify and

evaluate African American students who may have been

improperly placed in lower-level courses, as well as monitoring

and training programs for parents and LMSD staff. J.A. 533-34.

As we discussed below, because the individual plaintiffs are

parties to the suit, prudential concerns restrict the conferring of

representational standing on the CBP because the individuals

affected are capable of litigating their rights on their own behalf.

Moreover, in Pennsylvania Psychiatric Society, the distinction

between compensatory and injunctive relief was justified by the

need for assurance that “the the remedy, if granted, will inure to

the benefit of those members of the association actually

injured.” 280 F.3d at 284 (quoting Hunt, 432 U.S. at 343, 97

S.Ct. at 2441). Although the relief would benefit CBP’s

members, the members actually injured are already parties to

this suit. It is thus unnecessary for the CBP to have standing to

vindicate their rights.

91

LMSD’s incorrect analysis that they were learning disabled.

Although a determination of whether this case should be

certified as a class action is no longer an issue in this case, the

District Court’s explanation of the highly individualized nature

of these claims is instructive on this last point. It should be

readily apparent to anyone reviewing this case that, in view of

the complex and varying facts asserted for the individual

students and the myriad legal theories presented in the District

Court, the Court was correct in finding that it would have been

inappropriate to certify this case as a class action. For many of

the same reasons, the facts of this case make organizational

representation of the individual plaintiffs insufficient without

their personal participation in this litigation. After all, the

particular aspects of each student’s educational needs, indeed

the very individualized character of the application of IEP and

FAPE to an individual student’s needs, necessarily means that

addressing the diverse factual assertions in this case would

require individual participation from each student litigant

involved.

Significantly, the third prong of the Hunt test is

prudential, not constitutional. See United Food & Commercial

Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544,

555-56, 116 S.Ct. 1529, 1535-36 (1996). As the Supreme Court

explained, this inquiry is designed to ensure that sufficient

reasons exist to justify departing from the “background

presumption . . . that litigants may not assert the rights of absent

third parties,” and thus focuses on “matters of administrative

convenience and efficiency.” Id. at 556, 116 S.Ct. at 1536.

CBP’s claim to standing is grounded on the claims of its

members—individual students—who are also plaintiffs in the

92

lawsuit. Unlike other cases conferring standing on

organizations, the plaintiffs in this case are not absent. See, e.g.,

id. (organization suing on behalf of its members); Hunt, 432

U.S. at 343, 97 S.Ct. at 2441 (same); Pennsylvania Psychiatric

Soc’y, 280 F.3d at 280 (same).61 The remedies sought here—

compensatory and injunctive—will benefit individual plaintiffs

that are already parties to the suit. Permitting the CBP to litigate

this case on behalf of its members, when those members are

already parties to the lawsuit in their own right, does not fulfill

the Supreme Court’s guidance to focus on “administrative

convenience and efficiency” in determining prudential standing.

United Food, 517 U.S. at 557, 116 S.Ct. at 1536.

61

The fact that the plaintiffs are parties to the suit distinguishes

this case from “‘the long line of cases in which organizations

have sued to enforce civil rights’” to which Judge McKee’s

dissent has referred. It is true that, in many circumstances, an

organizational plaintiff may be the best (and only) mechanism

by which discrimination against a large group of individuals

may be remedied. However, where—as here—individual

plaintiffs have brought suit on their own behalf, courts are not

justified in making an exception to the general rule that third

parties may not assert their rights. Although, in Powell v.

Ridge, 189 F.3d 391 (3d Cir. 1999), claims for both individual

and organizational plaintiffs were permitted to proceed, the suit

challenged state policy affecting all students in Philadelphia

schools, a class far larger than the eleven parents who actually

joined the suit. By contrast, the group at issue here affects a

much smaller set of students who are all capable of joining the

suit as individuals or as a class.

93

As the District Court explained:

the amount of compensatory education necessary for

each named plaintiff and class member would require a

highly individualized inquiry into that student’s unique

needs, whether those needs were met, the extent to which

the School District failed to provide that student with a

free, appropriate public education and the proper amount

of compensatory education necessary to redress any

deficiencies. The individualized analysis of each

student’s educational history and needs precludes a

finding that a class would be efficiently managed by this

court.

August 19, 2009 Order at 17, No. 2:07-cv-3100, Doc. No. 123.

The District Court’s findings regarding the individualized

nature of the factual basis for each plaintiff’s claim go directly

to the third prong for organizational standing, which requires

that, for an organization to assert standing on behalf of its

members, their individual participation in the lawsuit must be

unnecessary. It is very clear that the highly individualized

components of the plaintiffs’ claims, the complex history of

each plaintiff’s IEP and evaluations, and the changes in

understanding of his or her disability status, led the Court to

conclude correctly that the students’ individual participation in

this lawsuit was required. Thus, the Court believed that CBP is

not an appropriate representational litigant for individual

students and/or their parents.62

62

Although the District Court’s dismissal of CBP’s claims due

94

C. The Blunts and the 90-day Statute of

Limitations under the IDEA, as Revised by the

Individuals with Disabilities Improvement Act

of 2004

Appellants now argue, contrary to their original

contentions in the District Court in their complaint even as

amended, that five or six63 of the individual student plaintiffs do

not have a learning disability and the LMSD incorrectly

identified them and placed them in special education classes.

Nonetheless, we discuss the IDEA statute of limitations, as

revised in 2004, because it appears that the Blunts still seek a

recovery under the IDEA based on the contention that Amber

to lack of standing is believed correct by Judge Greenberg, even

if CBP had standing it would not be successful in this case in

light of our disposition of the other issues in this appeal. We,

however, will not avoid deciding the standing issue on the

ground that it is moot, for the necessity for a party to have

standing is jurisdictional and thus a court of appeals always

must determine if the district court from which the appellant

took the appeal had jurisdiction.

63

As we already have indicated, this new theory rests on an

evaluation prepared by a psychologist that the plaintiffs engaged

to evaluate the student plaintiffs. Tr. Oral Arg. June 11, 2013,

at 36-38. During oral arguments, one of appellants’ attorneys

put the number of students who appellants claimed were

classified incorrectly at five but the other attorney put the

number at six. Tr. Oral Arg. June 11, 2013, at 12, 14, 19, 36.

Our analysis does not depend on the figure being five or six.

95

was identified as disabled but without challenging the accuracy

of the identification with respect to that contention.

Accordingly, it is not clear that Amber in this litigation has

joined in all respects with the other students now identifying

themselves as having been incorrectly identified as disabled.

In its February 15, 2008 Order, the District Court found

that the Blunts’ ADA, RA, Title VI, and § 1983 claims were

barred on a different basis than their IDEA claims. J.A. vol. 1,

at 42.21-42.29.64 In reaching its conclusion, the Court applied

Pennsylvania’s two-year statute of limitations for personal

injury actions to the Blunts’ ADA, RA, Title VI, and § 1983

claims because the applicable federal statutes did not include

governing statutes of limitations with respect to these claims.

See Sameric Corp v. City of Phila., 142 F.3d 582, 598-99 (3d

Cir. 1998). The Court concluded that the claims were time-

barred because Amber Blunt had graduated from high school on

June 9, 2005, and the original complaint in this case was filed in

the District Court on July 30, 2007, more than two years after

Amber suffered her alleged injuries. J.A. vol. 1, at 42.28. The

Blunts do not challenge this disposition. But the Blunts do

challenge the Court’s holding that the IDEA 90-day statute of

limitations barred their IDEA claims.

In reviewing this determination, we note the following

64

In its February 15, 2008 Order, the District Court noted that

the Blunts conceded that their IDEA, ADA and RA claims

against PDE were untimely, but contended that their IDEA,

ADA and RA claims against the LMSD and the School Board

were timely. J.A. vol. 1, at 42.29.

96

timeline: the LMSD denied the Blunts’ request for “transitional

services” on April 8, 2005, the Blunts requested a due process

hearing under the IDEA on April 11, 2005, a two-day hearing

followed, and the Hearing Officer issued his decision on July

25, 2005. Id. at 42.23. Both the Blunts and the LMSD filed

exceptions to the Hearing Officer’s decision with an Appeals

Panel which issued its ruling on August 31, 2005. Id.

Therefore, for purposes of calculating the time allowed by the

statute of limitations for the Blunts to file their action under the

IDEA, their cause of action accrued on August 31, 2005.

The Blunts argue that the 90-day statute of limitations for

an IDEA claimant adversely affected by an administrative

decision to bring suit in state or federal court does not apply to

their case, even though this statute of limitations became

effective on July 1, 2005, and the decision in their

administrative case became final on August 31, 2005. They

argue that we should reach this result because they filed their

request for a due process hearing on April 8, 2005, before the

change in the limitations period. Therefore, the Blunts believe

that an earlier version of the IDEA under which their IDEA

claims would have been timely should apply in their case. In

their view, to apply the 90-day statute of limitations effective on

July 1, 2005, to their case “would be an impermissible

retroactive application of IDEA amendments.” J.A. vol. 1, at

42.20. They assert that their case is unique because there has

been no other case applying the statute of limitations in a

situation in which the administrative due process hearing request

was made before the 2004 IDEA amendments became effective,

but the final administrative decision was rendered after the

amendments had become effective. Thus, they contend that the

97

90-day statute of limitations should not bar their IDEA claims.

We, however, agree with the District Court, which “[was]

not persuaded” by their contention because “[t]he date that the

hearing was requested is irrelevant.” J.A. vol. 1, at 42.23.

Rather, we look at the statute of limitations in effect on the date

of the final administrative decision, August 31, 2005. Indeed, it

might be asked why we even would consider applying any other

limitations period as the Blunts could not have brought their

IDEA action before August 31, 2005. Consequently, when the

Blunts’ federal cause of action arose, the 90-day statute of

limitations was in effect, and when they brought their case in the

District Court on July 30, 3007, it was untimely. Inasmuch as

the law setting forth the limitations period changed on

December 3, 2004, and became effective on July 1, 2005, the

change as applied to them was hardly abrupt and it left the

Blunts with nine months, from December 3, 2004, until August

31, 2005, to become familiar with the revisions, and an

additional 90 days after August 31, 2005, in which to file their

action.

The LMSD cites Steven I. for the proposition that the

two-year statute of limitations governing due process hearings is

retroactive to the extent that it applies to proceedings pending

when it became effective. It further contends that the seven

months between the enactment of this new statute of limitations

and its effective date gave potential claimants sufficient notice

so that its retroactive application did not violate due process.

The Blunts contend, however, that Steven I. is not applicable

because that case dealt with the two-year statute of limitations

for bringing an administrative claim under the IDEA, rather than

98

the specific statute of limitations at issue, i.e., 90-day statute of

limitations for bringing a state or federal suit after receipt of an

adverse administrative determination. But the Blunts cannot

convincingly explain why an analysis regarding the 90-day

statute of limitations, embodied in 20 U.S.C. § 1415(i)(2)(B)

and applicable to the filing of a judicial challenge in a state or

federal court to an administrative decision, should be different

from an analysis of the validity of the changing of the time

period in which to bring an administrative claim under the

IDEA, embodied in 20 U.S.C. § 1415(f)(3)(C). In considering

this matter we point out that the amendment of the IDEA on

December 3, 2004, which took effect on July 1, 2005, dealt with

both limitations periods.

We find that the reasoning we employed in Steven I. is

applicable here. In that case we relied on the analysis in

Texaco, Inc. v. Short, 454 U.S. at 532, 102 S.Ct. at 793. In

Texaco v. Short, the Court spoke to the issue of fairness, which

balances the need for a grace period when shortening a

limitations period, with the need for injured parties to be vigilant

in protecting their rights:

The Court has upheld retroactive

adjustments to a limitations period only

when the legislature has provided a grace

period during which the potential plaintiff

could reasonably be expected to learn of

the change in the law and then initiate his

action. In the context of a retrospective

statute of limitations, a reasonable grace

period provides an adequate guarantee of

99

fairness. Having suffered the triggering

event of an injury, a potential plaintiff is

likely to possess a heightened alertness to

the possibly changing requirements of the

law bearing on his claim. Because redress

necessarily depends on recourse to the

State’s judicial system, the State is free to

condition its intervention on rules of

procedure, and further, to impose on the

potential plaintiff the obligation to monitor

changes in those rules. Plaintiffs, and their

attorneys, are so aware.

Id. at 549, 102 S.Ct at 802.

We therefore concluded in Steven I. that the plaintiffs in

that case had been afforded ample time to make themselves

aware of the new two-year statute of limitations measured from

the date

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