2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-5-2013

S. H. v. Lower Merion School District

Precedential or Non-Precedential: Precedential

Docket No. 12-3264

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-3264

_____________

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

Maker, Carol Durrell; CAROL DURRELL,

Appellants

v.

LOWER MERION SCHOOL DISTRICT 

_____________

APPEAL FROM THE UNITED STATES 

DISTRICT COURT FOR THE 

EASTERN DISTRICT OF PENNSYLVANIA

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

District Judge: Honorable Harvey Bartle, III

______________

Argued: May 23, 2013

______________

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

ROSENTHAL, District Judge.

 

* Honorable Lee H. Rosenthal, District Judge, United States 

District Court for the Southern District of Texas, sitting by 

designation.
2

(Opinion Filed: September 5, 2013)

______________

OPINION

______________

Sonja D. Kerr, Esq. (argued)

Public Interest Law Center of Philadelphia

1709 Benjamin Franklin Parkway

United Way Building, 2nd Floor

Philadelphia, Pennsylvania 19103

Counsel for Appellants S.H. and Carol Durrell

Michael D. Kristofco, Esq. (argued)

ShaVon Y. Savage, Esq.

Jenna B. Berman, Esq.

Amy T. Brooks, Esq.

Wisler Pearlstine LLP

460 Norristown Road

Suite 110

Blue Bell, Pennsylvania 19422

Counsel for Appellee Lower Merion School District

GREENAWAY, JR., Circuit Judge.

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

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

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

alleging violations of the Individuals with Disabilities 

Education Act (“IDEA”), § 504 of the Rehabilitation Act 
3

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

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

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

result, it is liable under the IDEA for compensatory education 

and under the RA and ADA for compensatory damages. The 

District Court dismissed Appellants‟ IDEA claim for failure 

to state a claim. The District Court then granted summary 

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

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

below, we will affirm. 

I. BACKGROUND

A. Facts

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

Valley Elementary School in the Lower Merion School 

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

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

Durrell received a brochure and letters explaining Title I 

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

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

grade. 

 

1

Title I is a federally funded remedial program designed to 

improve a student‟s academic performance in reading and 

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

work by providing the student with extra instruction in the 

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

disabled students, but for any student in need of extra help. 
4

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

Ms. Durrell met with Santa Cucinotta, the school

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

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

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

and getting her thoughts on paper. The team collectively 

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

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

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

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

Ms. Durrell participated in many of the Child Study Team

meetings. 

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

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

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

scored below the benchmark2on the reading portion of the 

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

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

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

 

2

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

on standardized tests as compared to benchmark scores. 

However, aside from the absolute numerical value, we have 

been provided no information with which to contextualize 

these scores. Without additional insight as to their meaning, 

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

our analysis.

3

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

her age was 1321.
5

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

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

and focus. (App. 464.)

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

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

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

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

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

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

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

her unwillingness to continue participating in Title I reading 

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

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

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

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

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

evaluated in order to determine eligibility and need for special 

education services. Ms. Durrell consented to the evaluation. 

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

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

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

June 8, Ms. Durrell again consented. 

Ms. Cucinotta began the evaluation in June 2004, 

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

 

4

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

age was 42-48.

5

The predicted achievement model is an accepted model 

within the School District for evaluating students. Under this 

model, a computer program generates an expected 
6

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

expected score of 106 and her Reading Comprehension score 

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

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

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

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

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

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

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

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

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

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

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

Ms. Cucinotta concluded her evaluation at the 

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

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

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

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

 

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

compared to the student‟s actual score.

6

Joanna Wexler, a psychologist for the School District, 

testified in her deposition that a 15-point discrepancy between 

the expected achievement score and the actual achievement 

score is considered an indication of a learning disability. 

7

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

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

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

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

difficulty coping with them.
7

disability in reading and math and recommended that she 

receive specially designed instruction in these areas. The 

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

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

not think she belonged in special education. Ms. Durrell 

reviewed and signed the evaluation reports, indicating that 

she agreed with the recommendations. 

Following her designation as disabled, a team was 

assembled to develop an Individualized Education Program 

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

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

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

guidance counselor subsequently discussed S.H.‟s feelings

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

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

approved the Notice of Recommended Placement 

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

special education services during her fifth-grade year —

specifically, learning support in the resource room as well as

itinerant speech and language therapy. 

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

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

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

would continue to receive speech and language therapy, and 

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

called Instructional Support Lab (“ISL”). 

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

less than three months after she was placed in special 

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

Reading Mastery Test. She scored at a 5.3 grade level in
8

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

grade level in word comprehension. 

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

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

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

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

providing S.H. with accommodations for standardized testing. 

Ms. Durrell agreed to these accommodations. 

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

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

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

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

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

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

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

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

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

confided in her seventh-grade teacher that she was unhappy 

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

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

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

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

receiving good grades in her classes and had made positive 

progress toward her IEP goals. The report recommended

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

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

receive specialized instruction in reading and writing. 

Following the 2007 evaluation, these recommendations were 

implemented. Because S.H. continued to receive special 

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

eighth-grade science and Spanish. 
9

S.H. began attending Lower Merion High School when 

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

School District created a suggested schedule of classes for 

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

schedule home to Ms. Durrell. All parents of rising ninthgraders had the option of requesting a change in their child‟s 

suggested course schedule. Ms. Durrell had this option of 

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

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

Advanced Degrees of Reading Power Test.8

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

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

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

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

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

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

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

both the Literacy Specialist and the Math Specialist, and 

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

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

consistently demonstrated achievement levels below her 

intelligence level in the areas of reading and math. The 

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

learning disability, although the disability was not identified. 

 

8

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

age was 50-70.
10

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

special education in reading and math.

9

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

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

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

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

with this request within two days. 

The School District complied with Ms. Durrell‟s other 

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

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

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

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

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

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

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

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

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

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

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

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

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

requested a copy of the testing protocols relating to Dr. 

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

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

Cosden later admitted that he had “intentionally misled the 

 

9

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

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

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

2002 murder-suicide.
11

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

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

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

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

Process Complaint Notice, requesting a special education 

hearing and seeking an Independent Education Evaluation 

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

Durrell selected Dr. Umar Abdullah-Johnson (“Dr. AbdullahJohnson”), a nationally certified school psychologist, to 

perform the evaluation. The IEE was performed in January 

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

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

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

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

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

range for Reading Comprehension & Fluency, and in the 

“superior” range for Basic Reading. 

Dr. Abdullah-Johnson also determined that any 

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

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

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

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

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

learning disabled was, and always had been, erroneous.

10

 

 

10 Additionally, in connection with this lawsuit, two 

additional experts, Dr. Tawanna Jones, a certified school 

psychologist, and Dr. Ronald Rosenberg, a licensed 

psychologist, also reviewed various documents, including 

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

with Dr. Abdullah-Johnson that S.H. was not disabled. 
12

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

Durrell requested that S.H. be removed from special 

education. Dr. Cosden also prepared a Reevaluation Report. 

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

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

report also discussed the test results from Dr. AbdullahJohnson‟s evaluation of S.H., although it did not specifically 

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

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

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

therefore was no longer eligible to receive special education. 

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

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

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

special education in her junior and senior years of high 

school.

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

West Virginia University, Kutztown University, Cabrini 

College, and Neumann University.

B. Procedural History

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

School District moved to dismiss Ms. Durrell‟s complaint 

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

child with a disability and therefore was no longer entitled to 

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

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

 

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

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

never had, a learning disability.
13

because she admitted that she is not disabled and never has 

been disabled. 

On November 5, 2010, Appellants filed suit in federal 

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

under the IDEA, the School District violated its duty to 

accurately identify children with disabilities and to ensure 

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

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

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

and Three alleged that the School District discriminated

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

disability. 

Appellants sought compensatory education and 

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

of special education services damaged her self-confidence 

and academic progress. It also prevented her from 

participating in certain regular-curriculum classes, including 

science and one year of foreign language during middle

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

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

two additional years of college tuition, 50 hours of 

psychotherapy, and 600 hours of tutoring.

On June 30, 2011, the District Court granted the 

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

 

12 The School District also moved to dismiss Claims Two and 

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

ADA create causes of action for individuals who are 

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

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

Two and Three is not before us on appeal.
14

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

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

with a disability‟ and thus cannot seek relief under the 

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

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

On July 19, 2012, the District Court granted summary 

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

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

order to sustain a claim seeking compensatory damages under 

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

of intentional discrimination on the part of the defendant. 

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

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

District Court then concluded that Appellants had produced 

no evidence creating a genuine dispute of fact as to 

intentional discrimination and granted summary judgment. 

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

unfortunate, plaintiffs have not come forward with any 

evidence which would allow a reasonable jury to find that the 

School District intentionally discriminated against S.H. when 

it regarded her as disabled.”). 

Appellants filed a timely appeal.

 

13 The School District also sought to dismiss Claim One 

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

jurisdiction. Recognizing that, unless Congress specifically 

defines a limitation in a statute as jurisdictional, courts 

“„should treat the restriction as nonjurisdictional in 

character,‟” the District Court dismissed Claim One under 

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

Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006)).
15

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 28 

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

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

We exercise plenary review over a district court‟s 

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

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

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

the complaint as true and draw all reasonable inferences in 

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

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

dismiss, a complaint must contain sufficient factual 

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

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

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

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

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

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

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

We review a district court‟s grant of summary 

judgment de novo, applying the same standard as the district 

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

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

appropriate where the moving party has established “that 

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

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

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

of the suit under the governing law. Scheidemantle v. 

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

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

facts in the light most favorable to the non-moving party and 
16

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

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

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

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

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

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

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

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

III. ANALYSIS

A. IDEA Claim

Appellants argue that the District Court erred when it 

dismissed their IDEA claim. Appellants contend that the 

IDEA‟s jurisdictional umbrella encompasses not merely 

children with disabilities, but also children who have been 

misidentified as disabled. This question is a matter of first 

impression for this Court, as it requires us to determine 

whether the protections and remedies of the IDEA extend 

beyond children with disabilities. While Appellants‟ 

arguments are emotionally compelling, they are ultimately to 

no avail. 

1. Plain Language of the Statute

This question presents an issue of statutory 

interpretation. “Our goal when interpreting a statute is to 

effectuate Congress‟s intent. Because we presume that 

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

statute, we begin our analysis with an examination of the 

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

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

internal quotation marks omitted); see also Jimenez v. 
17

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

question of statutory interpretation, our analysis begins with 

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

statute are unambiguous, then this first canon [of statutory 

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

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

Moreover, “where the statutory language is unambiguous, the 

court should not consider statutory purpose or legislative 

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

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

that the ordinary meaning of that language accurately 

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

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

With this framework in mind, we turn to the language 

of the IDEA. The IDEA guarantees “procedural safeguards 

with respect to the provision of a free appropriate public 

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

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

disabilities (and their parents) who claim violations of the 

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

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

relating to the identification, evaluation, or educational 

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

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

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

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

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

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

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

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

so. 
18

The IDEA defines “child with a disability” to mean

a child with intellectual disabilities, hearing 

impairments (including deafness), speech or 

language impairments, visual impairments 

(including blindness), serious emotional 

disturbance (or referred to in this chapter as 

“emotional disturbance”), orthopedic 

impairments, autism, traumatic brain injury, 

other health impairments, or specific learning 

disabilities; and who by reason thereof needs 

special education and related services.

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

with a disability” includes children who are mistakenly 

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

14

 

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

IDEA creates a cause of action only for individuals with 

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

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

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

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

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

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

action where the plain language of a statute does not provide 

for one.

15

 

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

distinguishes it from the RA and the ADA, as discussed 

below.

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

District of Philadelphia, 612 F.3d 712, 719 (3d Cir. 2010), in 
19

2. Legislative History

Appellants argue that the plain language is not 

dispositive. They claim that they can maintain a cause of 

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

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

construed to protect minority children who are misidentified 

as disabled. In making this argument, Appellants ask us 

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

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

procedures, misidentified an African-American child as 

having a disability, the child enjoys the same protections of 

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

of this proposition, Appellants point to language in the 

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

report prepared in anticipation of the IDEA‟s introduction, 

both of which acknowledge the problem of minority students 

being misidentified as disabled.16 Appellants contend that 

 

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

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

under the IDEA. Appellants reason that since we allowed this 

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

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

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

holding in Ferren C. beyond credulity. We permitted the 

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

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

never been a “child with a disability.”

16 The “Findings” section of the IDEA states:

Greater efforts are needed to prevent the 

intensification of problems connected with 
20

 

mislabeling and high dropout rates among 

minority children with disabilities. More 

minority children continue to be served in 

special education than would be expected from 

the percentage of minority students in the 

general school population. African-American 

children are identified as having intellectual 

disabilities and emotional disturbance at rates 

greater than their White counterparts. 

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

of the House committee report, issued by the House 

Committee on Education during its hearings on the IDEA, 

states:

For minority students, misclassification or 

inappropriate placement in special education 

programs can have significant adverse 

consequences, particularly when these students 

are being removed from regular education 

settings and denied access to the core 

curriculum. Of particular concern is that, often, 

the more separate a program is from the general 

education setting, the more limited the 

curriculum and the greater the consequences to 

the student, particularly in terms of access to 

postsecondary education and employment 

opportunities. . . . Research shows that African 

Americans are nearly three times as likely to be 

identified as mentally retarded as their peers 

and nearly twice as likely to be labeled 

emotionally disturbed. 
21

“Congress would have not expressed such concern about the 

misidentification of African-American children as disabled 

and then left those same children without any recourse under 

the IDEA.” (Appellants Br. 19.) 

Appellants‟ reliance on the statutory Findings and 

House committee report is unavailing. Legislative history has 

never been permitted to override the plain meaning of a 

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

„authoritative statement is the statutory text, not the 

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

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

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

Legislative history may not be used to alter the plain meaning

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

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

253, 256 (3d Cir. 2005).

Moreover, “legislative history may be referenced only 

if the statutory language is written without a plain meaning, 

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

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

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

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

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

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

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

opposite tack of allowing ambiguous legislative history to 

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

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

 

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

marks omitted). 
22

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

plain meaning cannot be circumvented unless we have the 

rare instance when there is a clearly expressed congressional 

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

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

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

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

legislative history.17

 

17 In any case, contrary to Appellants‟ assertions, the 

legislative history does not evidence Congress‟s desire to 

create a cause of action for students who are misidentified as 

disabled. As the House committee report makes clear, 

Congress sought to remedy the problem of over-identification 

through the implementation of preventative and remedial 

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

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

provisions within the IDEA aimed at addressing this problem. 

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

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

procedures designed to prevent the inappropriate over[-

]identification or disproportionate representation by race and 

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

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

overall responsibility to oversee the states‟ obligations and 

responses as to “[d]isproportionate representation of racial 

and ethnic groups in special education” as a result of 

inappropriate identification).
23

3. Child Find Provision

Appellants also argue that IDEA‟s “Child Find” 

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

provision states:

All children with disabilities residing in the 

State, including children with disabilities who 

are homeless children or are wards of the State 

and children with disabilities attending private 

schools, regardless of the severity of their 

disabilities, and who are in need of special 

education and related services, are identified, 

located, and evaluated and a practical method is 

developed and implemented to determine which 

children with disabilities are currently receiving 

needed special education and related services.

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

the duty to identify children with disabilities falls squarely on 

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

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

the identification, evaluation, or educational placement of the 

child, or the provision of a free appropriate public education 

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

Once again, Appellants‟ argument has no foothold in 

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

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

procedures by which to identify children with disabilities. 

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

with disabilities.” Appellants cannot escape the plain 

language of the IDEA. Moreover, under the evidence 

presented, it is clear that the School District satisfied its duty 
24

under the Child Find provision; the School District evaluated 

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

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

education.

Because the plain language of the statute only permits 

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

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

sustain her action.

B. Intentional Discrimination Under the RA

and ADA

Appellants also brought claims under § 504 of the RA 

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

No otherwise qualified individual with a 

disability in the United States, as defined in 

section 705(20) of this title, shall, solely by 

reason of her or his disability, be excluded from 

the participation in, be denied the benefits of, or 

be subjected to discrimination under any 

program or activity receiving Federal financial 

assistance . . . .

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

[N]o qualified individual with a disability shall, 

by reason of such disability, be excluded from 

participation in or be denied the benefits of the 

services, programs, or activities of a public 

entity, or be subjected to discrimination by any 

such entity.
25

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

protections not only to individuals who actually are disabled, 

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

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

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

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

barred from bringing these claims.

The same standards govern both the RA and the ADA 

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

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

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

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

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

program or was otherwise subject to discrimination because 

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

because Appellants seek compensatory damages, they are

required to make a showing of intentional discrimination to 

prevail on their claims. Appellants argue that no such 

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

1. Statutory Language

Section 203 of the ADA states that the remedies 

available under § 202 of the ADA are the same remedies 

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

clearly states that the remedies available under § 504 of the 

 

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

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

rights this subchapter provides to any person alleging 

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

of the ADA].” 42 U.S.C. § 12133.
26

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

Civil Rights Act of 1964.19 Based on this statutory language, 

the Supreme Court has observed that, “the remedies for 

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

Rehabilitation Act are coextensive with the remedies 

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

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

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

construing Title VI governs enforcement of the RA and the 

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

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

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

it follows rationally that the rights and remedies afforded 

under both statutes should be governed by Title VI 

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

cases construing it, require for compensatory damages to 

determine the appropriate standard here.

 

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

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

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

of Federal assistance or Federal provider of such assistance 

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

20 That Congress intended to create identical remedies under 

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

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

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

U.S.C. § 12132.
27

In Guardians Association v. Civil Service Commission 

of New York, the Supreme Court unequivocally held that 

private individuals who brought suit under Title VI could not 

recover compensatory relief in the absence of a showing of 

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

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

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

not recover compensatory damages under Title VI except for 

intentional discrimination”). We therefore take the next 

logical step and hold that claims for compensatory damages 

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

finding of intentional discrimination. 

Appellants urge that our previous holding in 

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

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

Ridgewood, parents of a disabled child brought claims against 

Ridgewood Board of Education, alleging that Ridgewood‟s 

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

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

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

state law, and seeking compensatory damages under 42 

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

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

The District Court then granted summary judgment in 

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

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

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

that he was “excluded from participation in, denied the 

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

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

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

also concluded that summary judgment on the § 504 claim 
28

had been improperly granted. We stated that while “a 

plaintiff must demonstrate that defendants know or should be 

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

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

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

Ridgewood does not alter our analysis. Our statement 

in Ridgewood, that “a plaintiff need not prove that 

defendants‟ discrimination was intentional,” referred only to 

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

requirements for showing a violation of § 504, not the 

requirements for particular remedies. Our statement, thus, is 

inconsequential to whether a plaintiff seeking compensatory 

damages must allege intentional discrimination.21

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

sister Circuits applying Guardian‟s principles in the RA and 

the ADA context. All courts of appeals that have considered 

this issue have held that compensatory damages are not 

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

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

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

compensatory damages under either the ADA or the 

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

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

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

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

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

 

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

in Ridgewood, we would be forced to question its vitality 

following the Supreme Court‟s jurisprudence in Barnes, 536 

U.S. 181, and Sandoval, 532 U.S. 275.
29

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

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

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

compensatory damages under § 504 . . . only for intentional 

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

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

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

recover compensatory damages upon a showing of intentional 

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

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

compensatory damages under the RA “requires proof the 

defendant has intentionally discriminated against the 

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

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

under the RA requires a finding of intentional 

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

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

22

 

2. Standard for Intentional Discrimination

There have been two alternative standards suggested 

for intentional discrimination: discriminatory animus and 

deliberate indifference. Five of our sister courts have 

 

22 Appellants also argue that this Court should not require 

intentional discrimination because this Court has consistently 

rejected such standards in the IDEA compensatory remedy 

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

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

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

argument is inapposite as compensatory and punitive 

damages are not available under the IDEA. See Chambers, 

587 F.3d at 185-86.
30

explicitly rejected discriminatory animus and held that 

deliberate indifference satisfies the requisite showing of 

intentional discrimination. See Liese v. Indian River Cnty. 

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

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

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

generally applied a two-part standard for deliberate 

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

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

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

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

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

inferred when a policymaker acted with at least deliberate 

indifference to the strong likelihood that a violation of 

federally protected rights will result from the implementation 

of the challenged policy or custom” (internal quotation marks 

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

under the more lenient standard of deliberate indifference, a 

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

federally protected right was substantially likely and [that the 

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

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

a showing of personal ill will or animosity toward the 

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

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

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

“deliberate indifference must be a „deliberate choice, rather 

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

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

Cir. 2007).23

 

23 This definition of deliberate indifference in the RA and the 
31

Two courts of appeals have suggested that plaintiffs 

seeking compensatory damages must demonstrate a higher 

showing of intentional discrimination than deliberate 

indifference, such as discriminatory animus. See NievesMarquez, 353 F.3d at 126-27 (suggesting that discriminatory 

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

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

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

indifference standard and adopting a higher showing for 

intentional discrimination) (citing Carter v. Orleans Parish 

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

under a discriminatory animus standard, a plaintiff must show 

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

Which standard to apply — discriminatory animus or 

deliberate indifference — is a matter of first impression for 

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

 

ADA context is consistent with our standard of deliberate 

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

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

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

indifference requires proof that the prison “„knows of and 

disregards an excessive risk to inmate health or safety‟” 

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

definition is also consistent with the Supreme Court‟s 

definition of deliberate indifference in the context of sexual 

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

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

knowledge of discrimination in the recipient‟s programs and 

fail[ure] [to] adequately . . . respond”).
32

our sister courts and hold that a showing of deliberate 

indifference may satisfy a claim for compensatory damages 

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

the Eleventh Circuit recently noted, despite the adoption of 

the deliberate indifference standard by many of our sister 

courts, “there has been little explication for the conclusion 

that intentional discrimination under the RA may be 

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

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

same reasons provided by the Eleventh Circuit. 

As an initial matter, the deliberate indifference 

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

the ADA than is the discriminatory animus alternative. In 

discussing the enactment of the RA and the ADA, the 

Supreme Court observed that “[d]iscrimination against the 

handicapped was perceived by Congress to be most often the 

product, not of invidious animus, but rather of 

thoughtlessness and indifference — of benign neglect.” 

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

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

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

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

agencies and commentators on the plight of the handicapped 

similarly have found that discrimination against the 

handicapped is primarily the result of apathetic attitudes 

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

Consistent with these motivations, the RA and the ADA are 

targeted to address “more subtle forms of discrimination” 

than merely “obviously exclusionary conduct.” Chapman, 

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

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

RA‟s and the ADA‟s purpose to end systematic neglect. See 
33

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

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

the invisibility of the handicapped in America” (quoting 118 

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

Moreover, the standard of deliberate indifference, 

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

protecting the disabled, is also consistent with contract 

principles at play when legislation is passed via the Spending 

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

were enacted under Congress‟s Spending Clause power; 

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

nature of a contract” between the federal government and 

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

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

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

Congress‟ power to legislate under the spending power rests 

on whether the recipient voluntarily and knowingly accepts 

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

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

The Supreme Court has thus reasoned that a recipient of 

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

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

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

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

monetary damages under Title IX).

Because the deliberate indifference standard requires 

knowledge, this standard satisfies contract law principles 
34

while still protecting the disabled.24 As the Eleventh Circuit 

explained,

 

24 We note that our conclusion today — that deliberate 

indifference is the standard for the requisite showing of 

intentional discrimination in RA and ADA actions — is 

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

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

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

held that plaintiffs challenging a policy of the National 

Collegiate Athletic Association (“NCAA”) under Title VI 

could not satisfy the “intentional discrimination” requirement 

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

at 553 (addressing a challenge to a NCAA provision which 

raised the academic eligibility criteria for incoming student 

athletes that adversely affected black athletes); see also 

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

state policy that required all drivers‟ license examinations to 

be administered in English with no aids or accommodations 

for individuals who spoke English as a second language, and 

that adversely affected individuals of foreign national origin).

In reaching this conclusion, Pryor specifically rejected 

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

568. Pryor did so because it equated deliberate indifference 

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

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

this jurisprudence makes clear, deliberate indifference is a 

form of intentional discrimination, and not a pseudonym for 

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

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

indifference is a form of intentional discrimination). Despite 

this mislabeling of deliberate indifference, Pryor‟s holding 
35

The deliberate indifference standard best 

reflects the purposes of § 504 while 

unambiguously providing the notice-andopportunity requirements of Spending Clause 

legislation. A lower standard would fail to 

provide the notice-and-opportunity 

 

that the mere fact of disparate impact is insufficient to sustain 

a Title VI challenge to a facially neutral policy remains good 

law. 

Pryor is inapplicable to our situation here. In cases 

involving action (or inaction) toward an individual that results 

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

Court has readily accepted that deliberate indifference can 

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

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

standard of deliberate indifference where a teacher sexually 

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

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

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

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

Supreme Court‟s jurisprudence on deliberate indifference in 

the sexual harassment context is not easily transferrable to 

challenges to facially neutral policies). 

Thus, to the extent that Pryor equated deliberate 

indifference with disparate impact, that holding cannot stand. 

To the extent that Pryor addressed the requisite showing of 

intentional discrimination for challenges to facially neutral 

policies with disparate impacts, we offer no comment.
36

requirements to RA defendants, while a higher 

standard—requiring discriminatory animus—

would run counter to congressional intent as it 

would inhibit § 504‟s ability to reach knowing 

discrimination in the absence of animus. 

Liese, 701 F.3d. at 348. 

C. Grant of Summary Judgment

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

is evidence in the summary judgment record that creates a 

genuine factual dispute as to whether the School District was 

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

disabled student. To satisfy the deliberate indifference 

standard, Appellants must present evidence that shows both: 

(1) knowledge that a federally protected right is substantially 

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

disabled and therefore should not have been in special 

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

Duvall, 260 F.3d at 1139. 

Appellants argue that the School District had 

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

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

school that she did not think she belonged in special 

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

education in tenth grade by refusing to attend speech therapy; 

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

disabled student, S.H.‟s reading scores surpassed the fifthgrade level; (4) S.H.‟s scores on standardized tests continued 

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

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

and eighth grade; and (6) the evaluations of three separate 
37

psychologists, including Dr. Abdullah-Johnson, revealed that 

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

create a genuine factual dispute as to knowledge. 

To begin, we are unpersuaded by Appellants‟ reliance

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

designated disabled in fifth grade (when she was ten years 

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

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

complaints about being put in special education classes put 

the School District on notice of nothing more than the fact

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

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

continued to approve her placement in special education. 

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

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

the contrary can hardly constitute “notice.” For similar 

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

IEP team that she hated going to speech therapy creates a 

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

knowledge. 

Appellants‟ contention that the evaluations by the three 

psychologists put the School District on notice is also to no 

avail. Dr. Abdullah-Johnson performed his evaluation in 

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

Rosenberg, were submitted in preparation for this lawsuit in 

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

special education.25 These reports only evidence the School 

 

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

2011, and Dr. Rosenberg conducted his evaluation in January 

2012. 
38

District‟s knowledge subsequent to their publication; nothing 

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

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

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

Moreover, liability in this case is not dependent merely 

on whether the School District‟s psychologists erred in their 

determinations. The relevant inquiry is knowledge, and 

evidence that the School District may have been wrong about 

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

knowledge that it was a wrong diagnosis. Nor does evidence 

that the School District‟s evaluation processes were defective 

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

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

District immediately exited S.H. from special education 

 

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

evaluations were defective for using the predicted 

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

circumstances and personal tragedies, and failing to consider 

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

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

disabled had the evaluations been free of defects, is 

insufficient. Deliberate indifference requires actual 

knowledge; allegations that one would have or “should have 

known” will not satisfy the knowledge prong of deliberate 

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

2012) (holding that, under the deliberate indifference 

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

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

consider the allegedly defective evaluations as part of the 

knowledge analysis.
39

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

Durrell‟s request. 

Appellants‟ best argument as to knowledge is that 

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

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

disability. Ultimately, this evidence is insufficient as well. 

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

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

on various tests throughout her educational career, she 

performed below average in other areas. For example, when 

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

vocabulary on the Stanford Diagnostic Reading Test, but 

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

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

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

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

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

Additionally, Appellants have offered no evidence that high 

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

a learning disability, nor have they offered evidence that 

children in special education usually do not receive good 

grades. 

Put simply, Appellants have presented no evidence 

that would create a genuine dispute as to whether the School 

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

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

disability. Thus, we need not explore the second prong of the 
40

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

failed to act.27

 

27 Appellants also seem to suggest that the School District 

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

was aware of the pervasive problem of over-identifying 

minority children as disabled in general. In support of this 

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

warnings about over-identification; (2) a 2006 selfassessment conducted by the School District that revealed 

that over-identification was occurring within the district; and 

(3) the deposition testimony from Assistant Superintendent 

Michael Kelly, who acknowledged awareness that a 

disproportionate number of African-American students were 

in special education compared to their representation in the 

student body. This position is untenable.

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

§§ 1400(c)(12)(A)-(E), does in fact suggest that overidentification of minority children is a pressing concern, we 

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

should put a local school district on notice of anything. 

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

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

consider it, the evidence to be gleaned from the 2006 selfassessment is far more limited than Appellants are willing to 

acknowledge. The 2006 self-assessment did not put the 

School District on notice of over-identification specifically; at 

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

on notice that “there was a disproportionate number of 

African-American students in special education programs in 

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

Supp. 2d 749, 757 (E.D. Pa. 2011) (discussing the contents of 
41

IV. CONCLUSION

For the foregoing reasons, we will affirm the District 

Court‟s orders. 

 

the 2006 self-assessment evaluation which noted that AfricanAmericans constituted 7.7% of the student body and 12.7% of 

the students in special education). Thus, the 2006 selfassessment evidences only that the School District knew that 

a disproportionate number of African-American students 

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

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

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

Such an argument is too attenuated to stand.