Jennifer Binder Le Pape v. Lower Merion School District

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 22-2931

JENNIFER BINDER LE PAPE and FREDERIC LE PAPE,

Individually and on behalf of Alexandre Le Pape;

ALEXANDRE LE PAPE, Individually,

Appellants

v.

LOWER MERION SCHOOL DISTRICT

*(Amended pursuant to Clerk’s Order dated November

28, 2022)

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No. 2-20-cv-01416)

District Judge: Honorable Karen S. Marston

Argued January 18, 2024

Before: JORDAN, BIBAS, and AMBRO, Circuit Judges

(Opinion filed June 4, 2024)

Nicole M. Reimann (Argued)

Batchis Nestle & Reimann

7 Bala Avenue

Suite 202

Bala Cynwyd, PA 19004

Counsel for Appellants

Amy T. Brooks

Michael D. Kristofco (Argued)

Christina Gallagher

Wisler Pearlstine

460 Norristown Road

Suite 110

Blue Bell, PA 19422

Counsel for Appellee

Peter D. Keisler

Virginia A. Seitz

1501 K Street NW

Sidley Austin

Washington, DC 20005

Counsel for Amicus Appellant

Communication First

2

Selene A. Almazan-Altobelli

Council of Parent Attorneys and Advocates

P.O. Box 6767

Towson, MD 21285

Counsel for Amicus Appellant Council of

Parent Attorneys and Advocates

OPINION OF THE COURT

AMBRO, Circuit Judge

Non-verbal student Alexandre Le Pape (“Alex”) and his

family (collectively, the “Le Papes”) repeatedly requested that

the Lower Merion School District (the “School District” or

“District”) change his educational program to include a new

communication protocol. After it denied these requests and

Alex left public education, the Le Papes filed an administrative

special education due process complaint against the School

District seeking compensatory education, reimbursement for

tuition and services in the home, and the award of attorney fees

and costs. The family alleged that the District failed to protect

Alex’s rights and denied him a Free Accessible Public

Education (“FAPE”) under the Individuals with Disabilities

Education Act (“IDEA”), 20 U.S.C. § 1400, et seq.; Section

504 of the Rehabilitation Act of 1973 (“Section 504”), 29

U.S.C. § 794; Title II of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12131, et seq.; and Chapters 14 and 15

of the Pennsylvania Code, 22 Pa. Code Chs. 14-15.

3

An impartial administrative hearing officer ruled

against them on all claims, and they filed suit in the United

States District Court for the Eastern District of Pennsylvania.

In Count I of their complaint, the Le Papes alleged that the

District failed to provide a FAPE in violation of the IDEA,

Section 504, and state law; they sought compensatory

education, reimbursement for the private program they

developed for Alex following his withdrawal from the District,

and reimbursement for the psychological evaluation of him

that they coordinated. Counts II and III, seeking compensatory

damages and a jury trial, alleged the District intentionally

discriminated against Alex in violation of Section 504 and the

ADA.

The District Court granted the School District’s motions

for summary judgment on the ADA claim and judgment on the

administrative record for the denial-of-FAPE claims, in effect

rolling together their ADA and Section 504 claims with their

IDEA claim. The Le Papes now appeal the Court’s grant of

summary judgment for the District on their ADA claim and of

judgment on the administrative record for the District on their

ADA and Section 504 claims.1 Because the Court granted

judgment on them without applying the summary judgment

standard to which the Le Papes were entitled under Federal

Rule of Civil Procedure 56, we reverse and remand.

I. BACKGROUND

1

They do not appeal the Court’s treatment of their denial-of-

FAPE claims under the IDEA, Section 504, and state law.

4

a. Factual Background

Alex, who is now twenty-three years old, was formerly

a student in the School District. Diagnosed with autism and

speech-language impairment, he describes himself as a “non-

speaker.” Le Papes’ Br. at 5. He was eligible for special

education services under the IDEA categories of Autism,

Intellectual Disability, and Speech and Language Impairment.

During his time in the District, Alex used a Bluetooth keyboard

and iPad, in addition to visual scripts, pointing, and identifying

pictures. With these, he could communicate simple things like

requests for food or to go to the restroom or the school nurse.

In July 2017, when Alex was 16, his family learned

about a technique known as “Spelling to Communicate”

(“S2C”), in which a non-speaker points at letters on a

laminated alphabet board (“letter board”) held by a

communication support person. That summer, his family sent

the School District videos illustrating the technique. They

requested that representatives from the District observe Alex

using S2C, but it declined, telling Mrs. Le Pape that the

technique was not evidence based. She concedes that there was

then no published research to support the method (nor would

there be until 2019). In the fall of 2017, she nonetheless sent

another email requesting the District to reconsider its decision

and make changes to Alex’s Individualized Education Plan

(“IEP”), including provision for training District personnel in

S2C. Shortly thereafter, the District team assigned to Alex

revised his IEP to acknowledge her request, but not to

implement it. On December 10, Mrs. Le Pape again emailed

the District requesting changes to his IEP, including training

for S2C and to have a person trained in the method “work with

Alex at school all day, every day.” App. at 541.

5

Later that month, the School District finally agreed to

observe Alex at an S2C training session, and on December 28

two special education specialists from the District observed

him and his communication partner, Emily. The specialists had

reservations about the method and shared with the IEP team

that they needed to observe the protocol again, this time with

Alex’s teacher present. They also spoke with Elizabeth

Voseller, the inventor of S2C, as well as a practitioner trained

by her. After those conversations, the District’s special

education supervisor for Grades 10-12 emailed her supervisor

on January 15, 2018, stating that “[a]fter those two phone calls,

Denise [the District’s Speech and Language Department

Coordinator and Assistive Technology Coordinator for grades

K to 12] and I seem to have more questions than answers.”

App. at 3787. The supervisor outlined various concerns,

including the lack of evidence for S2C, its similarity to the

Rapid Prompt Method that various studies had called into

question, that the American Speech-Language-Hearing

Association (“ASHA”) did not recognize S2C as an evidence-

based protocol, the lack of individuals communicating

independently using S2C, and that Alex did not, at that time,

use S2C at home except to complete homework. The special

education supervisor then reiterated the need to observe Alex

again, this time with his teacher, and recommended that the

District purchase letter boards and use them in reading class to

collect more data.

As the special education supervisor suggested, the

District specialists and Alex’s teacher, Ms. Van Horn,

conducted a second observation of Alex using S2C in late

January 2018, with the specialists viewing Alex, Emily, and his

teacher from a remote monitor in a separate room. During this

6

session, Emily and Alex went through review questions for

Alex’s U.S. History midterm. Initially, Emily did not have the

answer key, and Alex was not answering correctly; but once it

was provided to Emily, he started answering correctly. This

troubled Alex’s teacher as well as the specialists. After the

observation, the specialists asked Mrs. Le Pape more questions

about S2C and proposed obtaining letter boards and running a

trial in the classroom.

In February, the School District accepted the mother’s

offer to visit Alex’s classroom and show his teacher how to use

S2C. From then on, Alex would bring his letter board to school

every day and take it home with him. At the same time,

however, the District advised the Le Papes that, “as we have

shared with you, the reservations regarding training staff center

around our belief that we have highly trained staff who have

expertise and background to successfully utilize this tool. The

lack of research behind S2C[,] including research to drive

appropriate training with fidelity[,] remains a significant

concern for the [D]istrict.” App. at 549. Mrs. Le Pape took

this to mean District staff wished to see research on S2C as

well as a protocol for how to use it.

In March, Mrs. Le Pape came into the classroom of

Alex’s teacher several times to demonstrate the use of S2C,

with a special education specialist from the School District

present. His teacher had limited success attempting to use the

technique with Alex. Mrs. Le Pape conceded that these trials

were not successful, which she ascribed to the teacher’s lack of

training.

In April, the School District revised Alex’s IEP,

agreeing for staff to train for use of S2C. Mrs. Le Pape was

7

still dissatisfied with this, and in mid-July emailed the District

requesting that his IEP be revised yet again, this time to

incorporate the use of S2C with a trained partner, including in

Alex’s extracurricular activities. It responded that, “[a]s we

discussed at the start of the summer, we are training for trial.

Our team needs the opportunity to go through the training and

then to make the most informed recommendations going

forward.” App. at 557. On August 3, the District emailed the

Le Papes, stating that “[w]hile we have agreed to train in S2C

for the purposes of trial, please remember that the District has

significant and valid concerns with this method as it lacks

research to support its use.” App. at 4050.

That said, the training nonetheless took place over three

days at the end of September 2018, with participation by the

two special education specialists from the School District, two

of Alex’s teachers, and a certified school psychologist. Alex’s

teacher, Mr. Borsch, complained that the training was “kind of

all over the place” and that S2C was not a communication tool

but instead “[other people] prompting [Alex] to the right

answer.” App. at 2162-63. The school psychologist raised

multiple concerns about the method, including the lack of data

for it, the need for an explanation why the letter board couldn’t

be on a fixed structure, and the trainer’s use of the phrase “in

the neighborhood” when describing when an individual’s

response was close enough on the letter board to where the

correct response would be. App. at 563-64.

Over this time, Alex experienced an increase in self-

injurious and aggressive behaviors, including biting his hands

and pulling others’ hair. His treating psychiatrist ascribed these

behaviors to an increase in anxiety due to his inability to use

the letter board in school. In the fall of 2018, she recommended

8

that Alex not return to school until the School District

accommodated his use of the letter board and developed a plan

to transition him back into classroom learning. Citing his

increased anxiety, Alex’s parents removed him from school on

October 25.

On November 28, the School District team assigned to

Alex met for the final time and announced that it would not

incorporate S2C into Alex’s program. Mrs. Le Pape later

testified that the District raised concerns about the recent

statement of the ASHA that S2C was not evidence based and

“not recommended,” App. at 4755, as well as its dissatisfaction

with the training.

Once Alex had been out of school for six weeks,

however, the School District revised his IEP to indicate that if

he brought his own letter board and communication partner to

school, it would allow him to use both as a reasonable

accommodation. It still refused to provide its own

communication support person. On December 21, Alex’s

parents rejected the proposed IEP revisions, and Alex

continued his education from home, where private tutors met

with him and used S2C.

In total, Alex’s family spent 17 months, spanning two

school years, making at least 33 requests to his School District

to allow him to use the letter board in school and to train staff

to assist him in using it. At various times, his speech therapist,

psychiatrist, and behavior analyst each wrote to the District

stating that the letter board would be an effective means of

communication for him.

b. The Administrative Process

9

The Le Papes filed a due process complaint with the

Pennsylvania Department of Education, Office of Dispute

Resolution. They alleged that the School District failed to

protect Alex’s rights and denied him a FAPE under the IDEA,

Section 504, Title II of the ADA, and state law. A hearing

officer heard the complaint over three sessions; he did not

allow Alex to testify using the letter board and excluded videos

of him using it. In his final decision and order, the officer

found that the School District did not deny Alex a FAPE under

the IDEA, Section 504, and state law, and did not discriminate

against him in violation of Section 504. He held that he did not

have jurisdiction over the ADA discrimination claim, but that,

if he did, he would hold that the Le Papes had not proven the

District discriminated against Alex.

c. The District Court Process

The Le Papes timely filed a complaint with the District

Court. As noted above, in Count I of their complaint, filed on

March 12, 2020, they alleged that the School District failed to

provide a FAPE in violation of the IDEA, Section 504, and

state law. In Counts II and III, they alleged the District

intentionally discriminated against Alex in violation of the

ADA and Section 504 by refusing to permit him to

communicate with the letter board and failing to train staff so

he could do so. The Le Papes sought compensatory damages

and a jury trial on their intentional discrimination claims. In

its answer to the Le Papes’ intentional discrimination claims,

the District did not assert either the fundamental alteration or

10

undue burden exception to the ADA’s effective communication

requirement.2 Nor did it move to strike the jury demand.

Following the conference under Federal Rule of Civil

Procedure 16, the District Court sua sponte ordered briefing on

whether the ADA claim was independent of the FAPE claim

and how the resolution of that question should affect discovery

and scheduling. On March 12, 2021, the Court issued an order

deciding the issue and concluding that the ADA claim was

subsumed by the FAPE claim.

In arriving at that conclusion, the Court applied the

framework from Fry v. Napoleon Community Schools, 580

U.S. 154, 170-71 (2017). The Supreme Court there instructed

that a plaintiff must exhaust his non-IDEA claim through an

IDEA hearing only if the essential element (“gravamen”) of the

non-IDEA claim relates to the denial of a FAPE. Applying that

case, the District Court concluded that “the crux of [the Le

Papes’] complaint remain[ed] the denial of a FAPE,” App. at

165; so, under Fry, they were required to exhaust their ADA

claim in an IDEA proceeding, which it concluded they did.

But the Court did not stop there. It next held that “given

[its] conclusion that the ADA claim [was] in essence a denial

of a FAPE, [the Le Papes were] not entitled to a jury trial on

2

The ADA “does not require a public entity to take any action

that it can demonstrate would result [1] in a fundamental

alteration in the nature of a service, program, or activity or [2]

in undue financial and administrative burdens[,]” though it

must still “ensure that, to the maximum extent possible,

individuals with disabilities receive the benefits or services

provided by the public entity.” 28 C.F.R. § 35.164.

11

that claim.” App. at 170. However, it gave them leave to

amend “to the extent [they] are able to plead additional facts

that may show that their ADA claim does not arise out of the

District’s alleged denial of a FAPE to [Alex].” App. at 172.

The Le Papes did so, filing an amended complaint

alleging that the School District’s refusal to permit Alex to

communicate by means of the letter board and to train staff on

its use denied him the equal opportunity to participate in and

enjoy the benefits of guidance counseling services, school

nurse services, extracurricular activities, academic programs,

peer relationships, and off-campus activities. As before, the Le

Papes sought money damages and demanded a jury trial, and

as before, the District’s answer did not assert the fundamental

alteration or undue burden exceptions to the ADA’s effective

communication requirement, nor did it move to strike the jury

demand.

On April 22, 2021, the District Court issued a

Scheduling Order with “the case [] proceeding on two tracks”:

one for the administrative appeal and one for the discrimination

claims. App. at 10. For the latter, the Court established

deadlines for fact and expert discovery, summary judgment,

Daubert and in limine motions, and pretrial memoranda. It

also set a trial date. On the administrative appeal, it established

deadlines for motions to supplement the administrative record

and for judgment thereon.

The Le Papes duly began discovery on their

discrimination claims. When they noticed a Fed. R. Civ. P.

30(b)(6) deposition of the School District, however, it resisted,

and the Le Papes moved to compel. The District argued that

they sought to “engage in garden style discovery of matters

12

which were exhausted during the due process hearing[,]” with

“[v]irtually everything [they] want[ed] to inquire about in the

30(b)(6) deposition involv[ing] matters which were covered

during the [] hearing.” App. at 311. The Court granted the Le

Papes’ motion to compel, and the parties conducted

discovery—including interrogatories, depositions, and expert

discovery—over the summer of 2021.

In parallel, the Le Papes moved to supplement the

administrative record on the administrative appeal with Alex’s

testimony, videos of him communicating by using the letter

board, and peer-reviewed research published in May 2020 in

support of S2C. The School District opposed the motion. On

September 17, 2021, the District Court issued a memorandum

opinion and order mostly granting the Le Papes’ requests. It

observed that, in their amended complaint, they “raised a

revised ADA discrimination claim that differed in material

respects from their original ADA claim.” App. at 352.

Therefore, it reiterated, this “set the case on two tracks because,

if Plaintiffs stated claims for intentional discrimination

unrelated to the denial of FAPE claim, they may have been

entitled to a jury trial on those claims, whereas the

administrative appeal was to be decided by the Court on the

administrative record.” App. at 40 n.12. As to the Le Papes’

requests to supplement the record, the Court admitted Alex’s

testimony and videos of him using the letter board to

communicate, but not the peer-reviewed study from 2020,

stating that because the study was published after the

conclusion of the administrative hearing, the hearing officer

could not be faulted for failing to address it. However, “[t]he

Court t[ook] no position as to whether the study [wa]s

admissible as evidence with respect to Plaintiffs’ ADA claim,

which [wa]s proceeding as an independent claim filed

13

originally in th[at] Court—not as an administrative appeal.”

App. at 362 n.7.

The Le Papes moved for summary judgment on liability

for the ADA claim, and the School District moved for summary

judgment on the intentional discrimination claims under both

Section 504 and the ADA. In addition to their cross-motions

for summary judgment, the parties filed cross-motions for

judgment on the administrative record as to the denial-of-FAPE

claims.

For the summary judgment motions on the intentional

discrimination claims, the Court denied the School District’s

motion on the Section 504 claim, stating that because “the

hearing officer heard and denied that claim in the due process

hearing,” the Court would “address it in [its] decision on the

parties’ cross-motions for judgment on the administrative

record.” App. at 3 n.1. It then turned to the ADA claim, briefly

reciting the relevant facts, including that “[e]ight medical and

educational professionals ha[d] opined that [S2C] is an

effective means of communication for [Alex].” App. at 4 n.3.

However, the Court then reasoned that the ADA claim was

subsumed by the IDEA denial-of-FAPE claim. “Because

Plaintiffs’ ADA claim seeks a remedy for denial of a FAPE,” it

concluded, “they are not entitled to a jury trial on that claim.”

App. at 19. It then granted the School District’s motion for

summary judgment on the ADA claim, holding that it would

“consider the Plaintiffs’ ADA claim, like their IDEA and

Section 504 claims, on appeal from the hearing officer’s

decision.” App. at 19. Though it denied summary judgment to

the District on the Section 504 discrimination claim and

granted it on the ADA discrimination claim, it did so with an

14

identical result: it would consider both claims as part of the

administrative appeal.

Nine months later, it considered that appeal. In so

doing, it “conduct[ed] a ‘modified de novo review’ of [the]

hearing officer’s decision” as to all claims, under which the

hearing officer’s factual findings were considered “prima facie

correct.” App. at 41; App. at 60-65.3

On the merits, the District Court affirmed the hearing

officer’s conclusion that the School District had not denied

Alex a FAPE under any statute, finding that “[t]he record and

3

The Supreme Court has held that when considering

administrative appeals of IDEA claims, district courts should

accord “due weight” to factual findings made in the

administrative hearings required by that Act. Bd. of Educ. of

Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v.

Rowley, 458 U.S. 176, 206 (1982). This standard, known as

modified de novo review, “requires the court to consider the

‘[f]actual findings from the administrative proceedings . . . [to

be] prima facie correct’ and, if the court fails to adopt those

findings, it must explain its reasons for departing from them.”

Mary T. v. Sch. Dist. of Phila., 575 F.3d 235, 241 (3d Cir. 2009)

(quoting Shore Reg’l High Sch. Bd. of Educ. v. P.S. ex rel. P.S.,

381 F.3d 194, 199 (3d Cir. 2004) (internal citation omitted)).

Our Circuit has not yet decided whether this standard of review

applies to a district court’s review of hearing officers’ decisions

regarding denial-of-FAPE claims under non-IDEA laws. See

T.F. v. Fox Chapel Area Sch. Dist., 589 F. App’x 594, 598 (3d

Cir. 2014) (assuming arguendo that de novo review applies

because it would affirm the Section 504 decision in either

case). As discussed below, we decline to extend modified de

novo review to such circumstances.

15

supplemental evidence support the [h]earing [o]fficer’s

conclusion that the District was not required to implement S2C

because it was not an effective means of communication for

[Alex].” App. at 54. In particular, the Court agreed that the

District did not need to implement S2C because “hearing

officers and parents are not permitted to second guess a school

district’s decision about which methodology to implement to

address a disabled student’s needs.” App. at 52.

While the District Court agreed with the Le Papes that

the hearing officer’s credibility determinations were “sweeping

and not necessarily supported by the testimonial evidence[,]”

App. at 48, it concluded that it was “bound to adopt” them

because “the non-testimonial evidence in the record

demonstrates that S2C is not an effective means of

communication for [Alex].” Id. It acknowledged his

testimony—delivered using a letter board—that it was

effective communication for him, as well as opinions from his

clinicians in the administrative record; however, the Court

concluded that these did not “outweigh the bulk of the

evidence, which goes to the contrary.” App. at 51. And though

it did consider the videos of Alex answering questions

correctly, it found that his “communication partners are, to

some degree, guiding him to the correct answer, which

suggests that S2C is not [Alex’s] own voice and supports the

District’s decision not to implement the method.” Id. The Le

Papes argued that while Ridley School District v. M.R., 680

F.3d 260 (3d Cir. 2012), does not require a school district to

apply the disabled student’s preferred method of

communication if it can implement an alternative, effective

method of communication, the letter board was Alex’s only

effective means of communication. The Court, however,

rejected this contention, finding that “the record demonstrates

16

that [Alex] is a skilled typist.” App. at 53. It did so without

mentioning the testimony of Alex or his behavior specialist that

he could merely type what others told him, nor did it note the

additional opinions of the “[e]ight medical and educational

professionals” the Le Papes later presented at summary

judgment. App. at 4 n.3.

The District Court then turned to the Le Papes’ ADA and

Section 504 claims for intentional discrimination, observing

that the “parties agree that . . . the only dispute is whether, by

refusing to allow [Alex] to use S2C in school, the District

denied [him] benefits of the program or otherwise subjected

[him] to discrimination because of his disability.” App. at 61.

Because the Le Papes had only argued these claims on

summary judgment, not the motions for judgment on the

administrative record, the Court stated it would consider their

arguments made on summary judgment “to the extent [they]

are based on evidence available in the administrative record.”

App. at 61 n.19.

In this context, the Court did not acknowledge evidence

developed through months of discovery, including the expert

testimony and opinions it had referenced in its earlier ruling on

summary judgment. It reasoned that it had already determined

the intentional discrimination claims were denial-of-FAPE

claims, and it had just rejected all of the latter claims, so,

logically, “Plaintiffs [we]re not entitled to relief under Section

504 or the ADA.” App. at 61-62. In the alternative, the Court

concluded that even if these were not denial-of-FAPE claims,

the Le Papes had failed to establish that Alex was discriminated

against because they “ha[d] not adduced evidence to

demonstrate the efficacy of the S2C method, particularly in

light of the credible testimony of District staff who observed

17

[Alex] using the method and believed that [he] was being

guided or prompted while using the methodology,” App. at 64

n.20. Moreover, “neither Section 504 nor the ADA requires

schools to implement an unproven, ineffective means of

communication, even if it is the student’s preferred method.”

App. at 65.

The Le Papes timely appealed the District Court’s grant

of summary judgment for the School District on their ADA

claim as well as the Court’s entry of judgment on the

administrative record for the District on both their ADA and

Section 504 claims.4 Council of Parent Attorneys and

Advocates5 and Communication First6 each filed amicus curiae

briefs (respectively, “Amicus Br. 1” and “Amicus Br. 2”) in

support of the Le Papes.

4

As mentioned, the family is no longer pursuing their claims

under the IDEA and state law.

5

“The Council of Parent Attorneys and Advocates is a not-for-

profit organization for parents of children with disabilities,

their attorneys[,] and advocates[,] …[and] provides resources,

training, and information for parents, advocates, and attorneys

to assist in obtaining [] free appropriate public education …

under the Individuals with Disabilities Education Act[.]”

Amicus Br. 1 at 1.

6

“Communication First is a national, disability-led nonprofit

organization dedicated to protecting and advancing the human,

civil, and communication rights of the estimated 5 million

children and adults in the United States who, due to disability

or other condition, cannot rely on speech alone to be heard and

understood.” Amicus Br. 2 at 1.

18

II. JURISDICTION & STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C. §

1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We apply plenary review to the District Court’s grant of

summary judgment, “applying the same standard that the lower

court should have applied.” Chisolm v. McManimon, 275 F.3d

315, 321 (3d Cir. 2001). Summary judgment is appropriate “if

the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). We review all facts in the light

most favorable to the non-moving party and draw “all

justifiable inferences . . . in [its] favor.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986).

III. ANALYSIS

a. The IDEA, ADA, and Section 504 generally

The IDEA, ADA, and Section 504 of the Rehabilitation

Act all provide protections for students with disabilities.7 But

7

Section 1412 of the IDEA provides in part:

A State is eligible for assistance … if [it] … has in

effect policies and procedures to ensure that [it] meets

each of the following conditions [, inter alia,]: A free

appropriate public education is available to all children

with disabilities residing in the State between the ages

of 3 and 21[.]

20 U.S.C. § 1412(a)(1)(A).

19

how do these overlapping laws interact? For a brief time

following the Supreme Court’s decision in Smith v. Robinson,

468 U.S. 992, 1009 (1984), the IDEA was “the exclusive

avenue through which a plaintiff [could] assert an equal

protection claim to a publicly financed special education[,]”

precluding claims asserting the right to a FAPE under other

laws, such as Section 504. Congress, however, promptly

“overturned Smith’s preclusion of non-IDEA claims while also

adding a carefully defined exhaustion requirement[,]” Fry, 580

U.S. at 161, per the Handicapped Children’s Protection Act of

1986, Pub. L. No. 99-372, 100 Stat. 796, which amended the

IDEA to add Section 1415(l). It “‘reaffirm[ed] the viability’ of

federal statutes like the ADA or Rehabilitation Act ‘as separate

vehicles,’ no less integral than the IDEA[.]” 580 U.S. at 161

Section 202 of the ADA provides:

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.

Section 504 of the Rehabilitation Act provides:

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).

20

(quoting H.R. Rep. 99-296 at 4 (1985)). Under Section

1415(l),

[n]othing in this chapter shall be construed to restrict or

limit the rights, procedures, and remedies available

under the Constitution, the Americans with Disabilities

Act of 1990, title V of the Rehabilitation Act of 1973,

or other Federal laws protecting the rights of children

with disabilities, except that before the filing of a civil

action under such laws seeking relief that is also

available under this subchapter, the procedures under

subsections (f)8 and (g)9 shall be exhausted to the same

extent as would be required had the action been brought

under this subchapter.

20 U.S.C. § 1415(l). As mentioned above, in Fry the Supreme

Court held that a plaintiff is required to exhaust his non-IDEA

claims in a hearing under the procedures in the IDEA only if

his “suit [] seek[s] relief for the denial of a FAPE, because that

is the only ‘relief’ the IDEA makes ‘available.’” Id. The Court

reserved the question of whether exhaustion is required when

a plaintiff seeks to remedy a denial of a FAPE with a form of

relief that is not available under the IDEA. 580 U.S. at 165

n.4. Recently, however, it answered this question in Perez v.

Sturgis Public Schools, 598 U.S. 142 (2023), reemphasizing

8

Subsection (f) sets out the procedure for impartial due process

hearings. 20 U.S.C. § 1415(f).

9

Subsection (g) prescribes the procedure for appeals of

hearing-officer decisions to state educational agencies. 20

U.S.C. § 1415(g).

21

the ADA’s independence from the IDEA. The Sixth Circuit

had affirmed a district court’s dismissal of an ADA claim based

on the denial of a FAPE because the plaintiff had failed to

exhaust his claim through an IDEA hearing. In reversing, the

Supreme Court held that the IDEA’s exhaustion requirement

did not apply because the plaintiff sought compensatory

damages, not equitable relief, and § 1415(l) “applies only to

suits that ‘see[k] relief . . . also available under’ [the] IDEA.”

Id. at 147 (emphasis in original) (also noting that “everyone

agrees [the] IDEA does not provide” compensatory damages).

The text of § 1415(l) makes clear that, besides this

exhaustion requirement, the IDEA places no restrictions on

ADA and Section 504 claims. Once he has exhausted those

claims in an IDEA hearing, a plaintiff may pursue them as he

otherwise would in a district court. The court then must

examine the claim for sufficiency of pleading or evidence as

applicable to the motion in front of it.

This is essential because a plaintiff may be able to make

out an intentional discrimination claim under the ADA even if

he receives a FAPE under the IDEA. A key difference between

the IDEA’s FAPE obligation and the ADA’s effective

communication requirement—and one central to the Le Papes’

claim—is the emphasis that the public entity must place on the

disabled student’s preference when deciding what

accommodations to provide. For example, under the IDEA the

IEP team for a deaf or hard-of-hearing child must consider,

among other factors, “the child’s language and

communication needs,” “opportunities for direct

communications with peers and professional[s] in the child’s

language and communication mode,” and “whether the

child needs assistive technology devices and services.” 20

22

U.S.C. § 1414(d)(3)(B)(iv) & (v). It “does not require that

parental preferences be implemented, so long as the IEP is

reasonably calculated to provide some educational benefit.”

Bradley ex rel. Bradley v. Ark. Dep’t of Educ., 443 F.3d 965,

975 (8th Cir. 2006).

But the ADA, by regulation, adds another requirement:

the public entity must “give primary consideration to the

requests of [the] individual[] with disabilities.” 28 C.F.R. §

35.160(b)(2) (emphasis added). This difference can determine

what auxiliary aids and services a child receives. Under the

ADA, “[t]he public entity shall honor the choice [of the

individual with a disability] unless it can demonstrate that

another effective means of communication exists or that use of

the means chosen would not be required under § 35.164.” 28

C.F.R. Part 35, App. A.

b. The District Court’s Decision

In this context, when considering the parties’ cross-

motions for summary judgment, the District Court should have

performed the inquiry demanded by Fed. R. Civ. P. 56 for the

ADA and Section 504 claims—determining whether, viewing

all facts in the light most favorable to the non-moving party,

there exists any genuine issue of material fact. Instead, it

postponed its merits analysis on both claims. It denied

summary judgment to the School District on the Section 504

discrimination claim, stating it would consider that claim on

appeal from the administrative record. Then, it found that the

ADA discrimination claim was subsumed by the Le Papes’

denial-of-FAPE claim and held that because this was an

“equitable injury,” the Le Papes were not entitled to a jury trial

on their ADA claim, despite seeking compensatory damages.

23

App. at 19 (emphasis in original). As with the Section 504

discrimination claim, the Court considered the claim on the

administrative record (though it granted summary judgment in

favor of the School District on the ADA discrimination claim

while denying it on Section 504 discrimination). App. at 3

n.1.10

Ruling for the School District on the ADA

discrimination claim without any examination of the factual

record that had been developed over the course of months of

discovery, the District Court went too far in its application of

Fry. Having conducted its inquiry under that case and found

that the “gravamen” of Le Pape’s ADA claim was the denial of

a FAPE, App. at 14, it granted summary judgment for the

School District and decided the claim on the parties’ motions

for judgment on the administrative record. However, the only

effect of finding that the gravamen of an ADA claim is denial

of a FAPE should be that the claim must be exhausted through

an IDEA hearing, which the District Court correctly found the

Le Papes had done.

But to exhaust an ADA claim in no way extinguishes its

independent existence. As the Fifth Circuit recently noted

under similar circumstances, “Fry’s ‘gravamen’ of the

complaint test speaks only to § 1415(l)’s exhaustion

requirement and does not prohibit standalone ADA claims, as

evidenced by Perez.” Lartigue v. Northside Indep. Sch. Dist.,

2024 WL 1261291, at *9 (5th Cir. Mar. 26, 2024). As a result,

10

Further adding to the confusion, the Court did so despite

stating that “the remedies, procedures, and rights under the

ADA are the same as those under Section 504.” App. at 18-19.

24

a party may have “viable, standalone ADA claims

notwithstanding the presence of a FAPE.” Id.

The exhaustion requirement does not change that;

instead, it is crafted to preserve those independent avenues of

relief. “Provided that a plaintiff satisfies the exhaustion

requirement of the IDEA”—which per Perez may not have

applied to the Le Papes’ ADA claim11—“a plaintiff may assert

claims for relief for the denial of a FAPE under multiple federal

statutes.” E.E. v. Ridgefield Park Bd. of Educ., 2020 WL

3097473, at *8 (D.N.J. June 11, 2020), aff’d sub nom. Esposito

v. Ridgefield Park Bd. of Educ., 856 F. App’x 367 (3d Cir.

2021). As did the court in E.E., where “Defendant appear[ed]

to argue that Plaintiffs’ Section 504 and ADA claims [were]

subsumed into their IDEA claims,” the District Court here

ought to have “conduct[ed] an independent analysis under each

statute” and “analyze[d the Le Papes’] Section 504 and ADA

claims separately from the IDEA claims.” Id. To do otherwise

runs afoul of § 1415(l)’s explicit preservation of the rights of

children with disabilities under the ADA and the Rehabilitation

Act.

11

The Le Papes argue that, in light of Perez, they were not

required to exhaust their ADA and Section 504 claims seeking

compensatory damages. First, we point out that the District

Court found the claims were exhausted and did not dismiss

them for failure to exhaust. Second, the Le Papes also sought

the award of attorney fees and costs, remedies which are also

available under the IDEA. Perez did not address this situation,

but our case law states that a request for attorney fees is a

request for relief available under the IDEA. Batchelor v. Rose

Tree Media Sch. Dist., 759 F.3d 266, 276-77 (3d Cir. 2014).

25

We reiterate that the IDEA’s FAPE requirement and the

ADA/Section 504’s effective communication requirement

provide for different inquiries. As mentioned, the effective

communication requirement imposes a greater obligation of

equal access than does the FAPE requirement: “[T]he

requirement that a State provide specialized educational

services to handicapped children [under the Education for All

Handicapped Children Act, the predecessor to the IDEA,]

generates no additional requirement that the services so

provided be sufficient to maximize each child’s potential

‘commensurate with the opportunity provided other

children[,]’” and its legislative history does “not . . . imply a

congressional intent to achieve strict equality of opportunity or

services.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist.,

Westchester Cnty. v. Rowley, 458 U.S. 176, 198 (1982).

Because the ADA and Section 504’s effective communication

requirement is so specific, a school may still be in violation of

those laws even when a child is able to make educational

progress sufficient for a FAPE under the IDEA. For example,

if a child is achieving passing marks and advancing from grade

to grade, he is presumed to be receiving a FAPE. Rowley, 458

U.S. at 204. But that does not mean he is being provided with

“equal opportunity to participate in, and enjoy the benefits of,

a service, program, or activity of a public entity.” 28 C.F.R. §

35.160(b)(1) (emphasis added). Nor does it mean that, as the

effective communication requirement instructs, the school has

“give[n] primary consideration to the requests of [the]

individual[] with disabilities.” § 35.160(b)(2) (emphasis

added). These are separate questions from whether Alex was

denied a FAPE, and the District Court should not have

collapsed these inquiries. “[T]he provision of [a] FAPE under

the IDEA does not limit a student’s right to effective

communication [under the ADA.]” U.S. Dept. of Just. & U.S.

26

Dept. of Educ., Frequently Asked Questions 15 (Nov. 2014).

There is no “indication that Congress intended [the ADA and

the IDEA] to interact in a mechanical fashion in the school[]

context, automatically pretermitting any Title II [of the ADA]

claim where a school’s IDEA obligation is satisfied[,]” and

there is no basis to conclude that “the success or failure of a

student’s IDEA claim dictates, as a matter of law, the success

or failure of her [ADA] claim.” K.M. ex rel. Bright v. Tustin

Unified Sch. Dist., 725 F.3d 1088, 1092, 1101 (3d Cir. 2013).

Federal Rule of Civil Procedure 56 allows a district

court to grant summary judgment “if the movant shows that

there is no genuine issue as to any material fact and the movant

is entitled to judgment as a matter of law.” In assessing this, a

court “view[s] the facts in the light most favorable to the non-

moving party,” and a “judge’s function at the summary

judgment stage is not to weigh the evidence and determine the

truth of the matter, but to determine whether there is a genuine

issue for trial.” Tse v. Ventana Med. Sys., Inc., 297 F.3d 210,

218 (3d Cir. 2002) (citing Celotex Corp. v. Catrett, 477 U.S.

317 (1986), and Anderson, 477 U.S. at 249). We don’t know

from the District Court’s opinion whether there existed genuine

issues of material fact precluding entry of summary judgment.

It addressed only whether the Le Papes’ previously pled ADA

claim was independent from their FAPE claims. Finding that

the former was FAPE-based, the Court decided to grant

summary judgment for the School District on the ADA claim

and “consider [it], like [the Le Papes’] IDEA and Section 504

claims, on appeal from the hearing officer’s decision.” App. at

19. Rule 56 disallows such a grant of summary judgment

without examination of the factual record.

27

That inquiry immediately reveals a disputed issue of

material fact: the efficacy of the letter board compared to other

forms of communication. There is no dispute that the letter

board is Alex’s preferred method of communication, which is

to be the “primary consideration” under the ADA in a public

entity’s determination of what types of auxiliary aids and

services are necessary for effective communication. 28 C.F.R.

§ 35.160(b)(2). Public entities are exempt from acquiescing to

the disabled person’s preference if they can provide an

alternative, effective means of communication; but

“[g]enerally, the effectiveness of auxiliary aids and/or services

is a question of fact precluding summary judgment.” Chisolm,

275 F.3d at 327.

There is ample evidence from which a reasonable jury

could conclude that that School District violated the ADA’s

effective communication requirement by denying Alex his

preferred method of communication without providing an

effective alternative. He testified that the letter board is

effective for him and remains his preferred communication

method. He is a non-speaker who for the first 16 years of his

life had “very minimal communication,” was able to say only

a few words, and was unable to communicate clearly and as he

wished. App. at 1264. By typing, he could transcribe the

speech of others but could not communicate his own thoughts.

For example, he could not communicate with the school nurse

or the guidance counselor about his college plans, course

selection, testing, and accommodations; nor could he

participate in class, extracurricular activities, or community-

based instruction. In addition to Alex’s own testimony, seven

treating clinicians and Dr. Barry Prizant—a speech pathologist

and psycholinguist who has been awarded ASHA’s highest

honors, has practiced for nearly 50 years, and reviewed

28

approximately 185 minutes of Alex communicating with the

letter board and interviewed him—testified that the letter board

is effective communication for him. And Alex’s treating

psychiatrist, Dr. Manley Ghaffari, who is board-certified in

child and adolescent psychiatry and focuses her practice on

neurodiverse patients, testified that the letter board was

“extremely effective in allowing [Alex] to express his thoughts

and feelings.” App. at 1635. Meanwhile, Vanessa von Hagen,

a board-certified behavior analyst and the lead clinician on

Alex’s home team for several years, testified that he cannot

orally communicate in sentences and can only type what he

hears, not his own thoughts. She also testified that the letter

board was effective communication for Alex. Indeed, as the

School District’s initial denial of the letter board turned almost

exclusively on its concerns about the auxiliary aid’s efficacy,

that was the most material fact at issue.

We need not resolve this dispute now, nor was it proper

for the District Court to do so. Under the Constitution’s

Seventh Amendment, the Le Papes were entitled to have a jury

evaluate the effectiveness of the communication supports for

Alex, and this precluded summary judgment where there

existed a disputed issue of material fact. See Chisolm, 275 F.3d

at 326-32. Critically, the Court’s role on summary judgment

was not to decide that issue. Still less was its role to defer the

question and then decide it by a judgment on the administrative

record under the modified de novo standard of review.

The School District contends that the Le Papes merely

attempt to side-step issue preclusion; by its argument, the

hearing officer’s denial-of-FAPE decision precludes

subsequent ADA or Section 504 discrimination claims because

the factual issues underlying those discrimination claims are

29

identical to those already determined by the hearing officer in

the administrative process. We disagree. As a preliminary

matter, the School District did not argue to the District Court

that the hearing officer’s decision should stop independent

inquiries, and this argument is thus forfeited. But even if not,

it would fail because “[w]hen exhausting an administrative

process is a prerequisite to suit in court,” we do not give

“preclusive effect to the agency’s determination . . . [.]” B&B

Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 152

(2015). Additionally, “the legal standards under the IDEA and

the ADA in this context are significantly different, barring

application of issue preclusion to [the Le Papes’] federal ADA

claim.” Lartigue, 2024 WL 1261291, at *8.

Because there exists at least one disputed issue of

material fact, we reverse the Court’s grant of summary

judgment for the School District on the Le Papes’ ADA claim.

c. The District Court’s Decision on the

Administrative Record

With the legal understanding set out above, we

comment further on how it affects the District Court’s decision

on the parties’ cross-motions based on the administrative

record. Though the Court correctly set the case “on two

tracks,” App. 10, with the intentional discrimination claims to

be resolved on summary judgment and the IDEA

administrative appeal on the administrative record, it

ultimately resolved all three claims based on the administrative

record without any discussion of the discovery record. By

doing so, it went off course in three respects.

30

First, it acknowledged that, under the modified de novo

standard, it presumed that the hearing officer’s findings were

prima facie correct. If it had limited the administrative review

to the IDEA claim, that would have been fine. But the

ADA/Section 504 claims could not be resolved on the

administrative record alone. They needed to be resolved at

least on summary judgment, whereby a court is to construe all

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

draw “all justifiable inferences . . . in [its] favor,” Anderson,

477 U.S. at 255, which would mean applying a de novo

standard of review. This case has a strange procedural history;

but even had the Le Papes moved for judgment on the

administrative record on those claims, the Supreme Court has

required district courts to apply modified de novo review only

in their review of IDEA claims, Rowley, 458 U.S. at 206, and

we decline to extend that review to claims under the ADA and

Section 504. Applying modified de novo review to those

claims curtailed the Le Papes’ rights and remedies under non-

IDEA federal law, as forbidden by § 1415(l), and arrogated

jury functions to the Court in violation of the Seventh

Amendment.

Next, the District Court left out the factual and expert

evidence that had been developed for summary judgment

consideration. Though the Le Papes did not argue their

intentional discrimination claims when briefing for judgment

on the administrative record, the Court sua sponte interposed

the arguments they had made at summary judgment. App. at

61 n.19. Yet in assessing their intentional discrimination

claims, the Court limited which arguments (as well as what

evidence) it would consider to only “those arguments [which]

are based on evidence available in the administrative record.”

Id. In effect, this disregarded the extensive discovery the Le

31

Papes conducted after filing their amended complaint for non-

FAPE-related intentional discrimination. The Court instead

resolved the claims on the record from a proceeding where they

had not even pursued an intentional discrimination claim,

indeed, one where they had argued that the hearing officer had

no jurisdiction over the ADA claim.12

Finally, applying that modified de novo standard of

review and failing to consider the discovery record, the Court

concluded that the Le Papes’ evidence “[did] not outweigh the

bulk of the [other] evidence,” App. at 51, and resolved any

discrepancies by deferring to the hearing officer’s

determinations. The snag is that the Court, in deciding

judgment on the administrative record, weighed the evidence

and determined the truth of the matter, deciding disputed issues

of material fact that were plainly for a jury. For example, in

addressing the School District’s email that it would allow the

use of a letter board—but not provide a communication

partner—“as a reasonable accommodation under [the] ADA,”

App. at 1263, the Court dismissed the suggestion that this

might reflect the District’s recognition that the letter board was

effective, which would be relevant to whether it acted in

violation of the ADA when it failed to “honor the choice [of the

individual with a disability].” 28 C.F.R. Part 35, App. A. It

instead stated that this did not “change the analysis” and

adopted the District’s explanation that “using the spelling to

communicate was detrimental[,] but it was more detrimental

12

We note that it is strange that the Le Papes did not argue the

same for their Section 504 claim, when the claims were almost

legally indistinguishable and both sought compensatory

damages.

32

for [Alex] not to be in school.” App. at 64. That issue is best

left for a jury.

* * * *

We clarify some muddled law in our Circuit. A denial-

of-FAPE claim under the IDEA can be resolved through an

administrative appeal, but ADA and Section 504

discrimination claims seeking compensatory damages, even if

on the same facts, should be resolved through summary

judgment and, possibly, trial. See Chisolm, 275 F.3d at 326-

32. We therefore reverse the District Court’s grant for the

School District of summary judgment on the Le Papes’ ADA

discrimination claim as well as judgment on the administrative

record for their discrimination claims under both that law and

Section 504,13 and we remand for further proceedings.

13

To repeat, the Le Papes do not appeal the District Court’s

treatment of their denial-of-FAPE claim under Section 504,

only their discrimination claim under that law.

33