2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-5-2013

CG v. Comm of PA Dept of Ed

Precedential or Non-Precedential: Precedential

Docket No. 12-3747

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-3747

_____________

CG; SB, parents of minor children

enrolled in the Lancaster School District; WM; LS; DR; LC; 

AOP; RJ, parents of minor children enrolled in the Reading 

School District on behalf of their children, LP, SLB, BB, EE, 

DER, KC, AO, MJ and GJ, on behalf of all other similarly 

situated children in Pennsylvania

v.

THE COMMONWEALTH OF PENNSYLVANIA 

DEPARTMENT OF EDUCATION; 

GERALD ZAHORCHAK, its Secretary

CG; SB; LS; DR; LC,

 Appellants

___________________

On Appeal from the United States District Court 

for the Middle District of Pennsylvania

(D.C. No. 1-06-cv-01523)

District Judge: Honorable Yvette Kane

____________________

Argued: September 10, 2013 

Before: SMITH, SHWARTZ, and ROTH, Circuit Judges.

(Filed: November 5, 2013)

Kevin L. Quisenberry, Esq. [ARGUED]

Evalynn Welling, Esq.
2

Community Justice Project

429 Forbes Avenue

Suite 800

Pittsburgh, PA 15219

Counsel for Appellants

Sean A. Kirkpatrick, Esq. [ARGUED]

Office of Attorney General of Pennsylvania

Strawberry Square

15th Floor

Harrisburg, PA 17120-0000

Counsel for Appellees

Sonja D. Kerr, Esq.

Public Interest Law Center of Philadelphia

1709 Benjamin Franklin Parkway

United Way Building

2

nd Floor

Philadelphia, PA 19103

Counsel for Amici

____________________

OPINION OF THE COURT

____________________

SHWARTZ, Circuit Judge.

I.

Plaintiffs are members of a class of disabled students 

who attend schools in certain districts in Pennsylvania and 

who claim that Pennsylvania’s method for distributing special 

education funds violates various laws, including the 

Individuals with Disabilities Education Act [“IDEA”], 

Americans with Disabilities Act [“ADA”], and the 

Rehabilitation Act [“RA”]. After a bench trial, the District 

Court found that the funding formula did not deprive the class 

of a free appropriate public education [“FAPE”] as required 

by the IDEA and did not discriminate against them in 

violation of either the ADA or RA. Plaintiffs do not 

challenge the District Court’s finding that the funding 

formula does not violate the IDEA but do challenge its 
3

conclusions about their ADA and RA claims.

1

 Although 

compliance with the IDEA through the provision of a FAPE 

does not immunize a program or practice from being 

challenged under the ADA or RA, we agree with the District 

Court that Plaintiffs did not produce evidence showing that 

Pennsylvania’s funding program violates the ADA or RA and 

will thus affirm.

II.

Under the IDEA, states that provide special education 

funds are eligible for federal funds to implement state-wide 

special education programs that guarantee a FAPE to eligible 

disabled children. 20 U.S.C. § 1412(a)(1)(A). To this end, 

Pennsylvania enacted 24 P.S. § 25-2509.5, which sets forth its

special education funding formula. Under the formula, each 

school district receives, among other things, a base 

supplement, which is calculated by taking the total amount of 

base supplement money available and apportioning it among 

all districts based on the average daily membership of the 

district from the prior year under the assumption that 16% of 

students in each district are disabled. 

The class relevant to this appeal encompasses “all 

identified special-needs students attending schools with a 

17% or greater enrollment of special needs students and with 

a [market value/personal income ratio] of .65 or greater”

(hereinafter the “class districts”).2 After trial, the District 

Court found that the majority of children in Pennsylvania

attend schools in districts where the disabled students 

constitute 15% or less of the district’s student population 

(hereinafter the “nonclass districts”). Plaintiffs’ expert, Dr. 

Bruce Baker, provided evidence that the average special 

education subsidy per special education student in the class 

 

1

Plaintiffs asserted other claims for which judgment 

was entered in favor of Defendants either on summary 

judgment or after trial but they do not appeal these rulings. 

2

The District Court certified a second class that was 

comprised of disabled students with limited English 

proficiency [“LEP”] who attend school districts that have a 

10% or greater population of LEP students. Claims on behalf 

on this class are not being pursued in this appeal.
4

totaled $3327 and the average special education subsidy per 

special education student who attended schools in nonclass 

districts totaled $4108. Thus, students in the class, namely 

those who attend schools in districts where the disabled 

student population exceeds 17%, receive less funding per 

student than nonclass students.

Aside from evidence showing differences in funding 

per student, Dr. Baker provided evidence that: (1) students in 

class districts who received individualized educational plans3

[“IEP”] under the IDEA scored lower on Pennsylvania’s

standardized reading and math tests than IEP students in 

nonclass districts;

4

and (2) the graduation rates for IEP 

students in class districts was lower than the rate for IEP 

students in nonclass districts.

5

 Dr. Baker did not, however: 

(1) provide evidence about or evaluate the relationship 

between the receipt of a FAPE and funding levels; (2) 

consider the other funding sources that districts received or 

how districts allocated resources; (3) evaluate the 

appropriateness or implementation of the IEPs for students in 

either class or nonclass districts; or (4) evaluate the adequacy 

of the services provided. Moreover, Plaintiffs produced no

 

3An IEP has been described as the “primary 

mechanism” for implementing a FAPE. W.B. v. Matula, 67 

F.3d 484, 492 (3d Cir. 1995). It is developed by a team of 

educators, specialists, and the student’s parents to set forth a 

plan that will “enable the child to receive meaningful 

educational benefits in light of the student’s intellectual 

potential” and unique needs. Shore Reg’l High Sch. Bd. of 

Educ. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004) (internal 

quotation marks and citations omitted).

4

The District Court heard evidence concerning the 

Reading, Lancaster, Allentown, York City, and Harrisburg 

school districts. There was insufficient evidence to show that 

students attending the Reading and Allentown School 

Districts were members of the class. 

5

In discussing the standardized test performance and 

graduation rates, the District Court did not use the words 

“disabled students,” but rather described the students as those 

who receive IEPs. It is understood that these students would 

be protected under the laws at issue in this case. 
5

evidence to show that any student was deprived of a service 

because of Pennsylvania’s funding formula. 

Aside from Dr. Baker, the District Court heard 

testimony from parents and/or educators of six students. 

Five of the students attended school in nonclass districts and 

one attended school in a class district. The District Court 

found that Plaintiffs had failed to produce a single witness to 

testify that an IEP for any student was affected by a lack of 

funding or that any child had been denied a FAPE as a result 

of the funding formula, and stated that even if a student had 

been denied a FAPE, that denial necessarily was “the result of 

problems with the components of individual programs rather 

than systemic violations” and could have been remedied by 

taking advantage of existing administrative procedures, not 

by increased funding.6 App. 48. In short, the District Court 

concluded that Plaintiffs did not show that the funding 

formula systematically denied students of a FAPE in violation 

of the IDEA. The District Court further observed that while 

the evidence from Dr. Baker concerning the different 

educational outcomes for special education students in the 

class districts was “compelling,” App. 49, this evidence was 

of limited value in this case because Dr. Baker could not 

“directly tie funding levels to a denial of FAPE.” Id. 

With respect to Plaintiffs’ ADA and RA claims, the 

District Court observed that Plaintiffs’ claim that they were 

denied access to education services was based on the “same 

allegations and theories that underlie their IDEA claim.” 

 

6

The class student’s parent testified about 

dissatisfaction at certain times with certain matters, such as 

the delay in commencing speech therapy during one academic 

year, the quality of the adaptive gym class, and the child’s 

access to computers, but the parent presented no testimony 

that any of these issues arose due to funding, and there was no 

evidence presented that these issues were emblematic of a 

systemic problem. As to the parents of students in nonclass 

districts, they too testified about having raised concerns about 

services that they sought for their children. They testified that 

their concerns were largely addressed and, to the extent a 

concern remained unaddressed, they provided no testimony 

that it was due to funding. 
6

App. 59. Acknowledging that there are circumstances in 

which a school could comply with the IDEA and yet fail to 

comply with the ADA and the RA, id. at 60 n.23, the District 

Court found based upon this record that “[b]ecause Plaintiffs 

have failed to establish a violation of the IDEA, and because 

the Section 504 and ADA claims are inextricably linked to 

the IDEA claims,” they did not establish a violation of the 

ADA or RA. App. 59. As a result, the District Court entered 

judgment in favor of Defendants on all claims. Plaintiffs 

appeal only the District Court’s judgment on the ADA and 

RA claims.

When reviewing a judgment entered after a bench trial, 

we exercise plenary review over the District Court’s 

conclusions of law and review the District Court’s findings of 

fact for clear error. Battoni v. IBEW Local Union No. 102 

Emp. Pension Plan, 594 F.3d 230, 233 (3d Cir. 2010). 

Because Plaintiffs do not challenge any of the District Court’s 

findings of fact, we accept the findings as true and exercise 

plenary review over the District Court’s legal conclusions.

III.

The IDEA governs the affirmative duty to provide a 

public education to disabled students, while the ADA and RA 

embody the negative prohibition against depriving disabled 

students of public education. W.B. v. Matula, 67 F.3d 484, 

492-93 (3d Cir. 1995). Thus, the IDEA provides a remedy 

for “inappropriate educational placement decisions, 

regardless of discrimination,” while the ADA and RA 

prohibit and provide a remedy for discrimination.7 Hornstine

 

7

The ADA provides:

[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.

42 U.S.C. § 12132. Moreover, the relevant regulations state 

that:
7

v. Twp. of Moorestown, 263 F. Supp. 2d 887, 901 (D.N.J. 

2003) (plaintiff received a FAPE but policy that sought to 

deny her valedictorian status was nonetheless discriminatory 

under the ADA and RA). 

 

A public entity, in providing any aid, benefit, or 

service, may not, directly or through 

contractual, licensing, or other arrangements, on 

the basis of disability--

(i) Deny a qualified individual with a disability 

the opportunity to participate in or benefit from 

the aid, benefit, or service;

(ii) Afford a qualified individual with a 

disability an opportunity to participate in or 

benefit from the aid, benefit, or service that is 

not equal to that afforded others; [or]

(iii) Provide a qualified individual with a 

disability with an aid, benefit, or service that is 

not as effective in affording equal opportunity 

to obtain the same result, to gain the same 

benefit, or to reach the same level of 

achievement as that provided to others . . . .

28 C.F.R. § 35.130(b)(1)(i)-(iii). 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). 
8

Failure to provide a FAPE violates Part B of the 

IDEA8and generally violates the ADA and RA because it 

deprives disabled students of a benefit that non-disabled 

students receive simply by attending school in the normal 

course—a free, appropriate public education.9 See Andrew 

M. v. Del. Cnty. Office of Mental Health and Mental 

Retardation, 490 F.3d 337, 350 (3d Cir. 2007). Indeed, in 

many cases, a plaintiff’s sole theory of RA and ADA 

discrimination is that the defendant school failed to provide a 

FAPE. Id. Failing to provide a FAPE in violation of the 

IDEA, however, is not the sole basis on which a student may 

bring a claim of discrimination under the ADA and RA. In 

fact, the IDEA itself states that it should not 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.” 20 U.S.C. § 1415(l). Thus, the IDEA does not 

restrict a student’s ability to pursue claims under the ADA 

and RA, and compliance with the IDEA does not 

automatically immunize a party from liability under the ADA 

or RA. See K.M. v. Tustin Unified Sch. Dist., 725 F.3d 1088, 

 

8

The IDEA requires states receiving federal special 

education assistance to “establish and maintain procedures in 

accordance with this section to ensure that children with 

disabilities and their parents are guaranteed procedural 

safeguards with respect to the provision of a free appropriate 

public education.” 20 U.S.C. § 1415(a).

9

Providing a FAPE may also demonstrate compliance 

with the RA. For instance, in D.K. v. Abington Sch. Dist., 

this Court examined the school’s actions and found that it 

took proactive steps to provide the plaintiff assistance (such 

as extra time for assignments and a specialist) and provide a

FAPE, and thus complied with the RA by reasonably 

accommodating a handicapped child to ensure meaningful 

access to and participation in educational benefits. 696 F.3d 

233, 252-53 (3d Cir. 2012). In that case, “a finding that the 

school district did not deny D.K. a FAPE [was] equally 

dispositive of [the plaintiff’s] § 504 claim.” 696 F.3d at 253

n.8.
9

1102 (9th Cir. 2013); Ellenberg v. N.M. Military Inst., 478 

F.3d 1262, 1281-82 (10th Cir. 2007); Hornstine, 263 F. Supp. 

2d at 901.

Plaintiffs take no exception to the District Court’s 

finding that they received a FAPE or its conclusion that the 

funding scheme does not violate the IDEA. Rather, they now 

assert that Defendants violated the ADA and RA, not based 

upon an alleged failure to provide a FAPE, but on other 

grounds.

With limited exceptions,10 the same legal principles 

govern ADA and RA claims. To prove a claim under either

the ADA or RA, Plaintiffs must show that: (1) they are 

handicapped or disabled as defined under the statutes; (2) 

they are otherwise qualified to participate in the program at 

issue; and (3) they were precluded from participating in a 

program or receiving a service or benefit because of their 

disability. Chambers ex rel. Chambers, 587 F.3d at 189.

The statutes’ respective causation elements differ. See

42 U.S.C. § 12132 (“by reason of such disability”); 29 U.S.C. 

§ 794(a) (“solely by reason of her or his disability”). The RA 

allows a plaintiff to recover if he or she were deprived of an 

opportunity to participate in a program solely on the basis of 

disability, while the ADA covers discrimination on the basis 

of disability, even if there is another cause as well.11 To 

 

10 One difference between the ADA and RA is that to 

bring a claim under the RA, a plaintiff must show that the 

allegedly discriminating entity receives federal funding. 

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

Educ., 587 F.3d 176, 189 n.20 (3d Cir. 2009). There is no 

dispute that Defendants receive federal funds and are 

therefore subject to the provisions of the RA. Another 

difference involves the causation element, which will be 

examined later in the discussion.

11 Because the RA’s causation requirement requires 

disability to be the sole cause of discrimination, an alternative 

cause is fatal to an RA claim because disability would no 

longer be the sole cause. See, e.g., Menkowitz v. Pottstown 

Mem’l Med. Ctr., 154 F.3d 113, 125 (3d Cir. 1998). The 

existence of an alternative cause, however, may not 
10

satisfy either causation requirement, Plaintiffs must prove that 

they were treated differently based on the protected 

characteristic, namely the existence of their disability. This is 

because the “main thrust” of the ADA and RA “is to assure 

handicapped individuals receive the same benefits as the nonhandicapped,” Easley v. Snider, 36 F.3d 297, 305 (3d Cir. 

1994), as well as to prohibit discrimination against one 

“subgroup” of disabled people as compared to another 

subgroup if the characteristic distinguishing the two 

subgroups is the nature of their respective disability. Id. at 

306 (finding no ADA or RA violation because there was no 

“discrimination against a subgroup of the group of people 

who are physically disabled”); cf. Olmstead v. L.C. ex rel. 

Zimring, 527 U.S. 581, 598 n.10 (1999) (stating that 

discrimination may exist among members of the same general 

protected class). In other words, Plaintiffs must show that 

they have been deprived of a benefit or opportunity provided 

to non-disabled students or a group of students with some 

other category of disability, because of their disability. They 

have not done so.12

 

necessarily be fatal to an ADA claim so long as disability 

“played a role in the . . . decisionmaking process and . . . had 

a determinative effect on the outcome of that process.” New 

Directions Treatment Servs. v. City of Reading, 490 F.3d 

293, 300 n.4 (3d Cir. 2007) (reversing the denial of summary 

judgment in favor of plaintiff in part because the District 

Court improperly applied the RA’s sole causation 

requirement to plaintiff’s ADA claim, which required only 

“but for” causation).

12 There is no dispute that Plaintiffs arguably satisfy 

certain elements of a claim under the ADA or the RA, 

namely: (1) they are disabled; (2) they are otherwise qualified 

to participate in school activities; and (3) as to the RA claim 

specifically, the school receives federal financial assistance. 

As to the causation element, Plaintiffs have presented some 

evidence that educational performance (as measured by test 

scores and graduation rates) in class districts is lower as 

compared to non-class districts, but they did not prove that 

lack of supplemental funding is a cause or the sole cause of 

those discrepancies and that these funding decisions were 

based on disability. 
11

The core of Plaintiffs’ claim is that Pennsylvania’s 

funding formula distributes supplemental special education 

funds in a manner that gives school districts with higher

numbers of disabled students less supplemental funding per 

disabled student than those districts with lower numbers of 

disabled students. Even assuming that this scheme has a 

disparate impact on certain disabled students,

13 and even if 

the inequity stems at least in part from the location of their 

school, this alone is insufficient to prove a claim under the 

RA or ADA. Indeed, the Supreme Court has “reject[ed] the 

boundless notion that all disparate-impact showings constitute 

prima facie cases under” the RA. Alexander v. Choate, 469 

U.S. 287. 299 (1985). Rather, as Alexander instructed, the 

Act requires that “an otherwise qualified handicapped 

individual must be provided with meaningful access to the 

benefit” offered. Id. at 301. Thus, to establish liability, 

Plaintiffs must prove that the qualified individual has been 

deprived of meaningful access to a benefit to which he or she 

was entitled. 

Plaintiffs here have failed to produce evidence to 

show that the funding formula deprived the class members of

a program, benefit, or service that was provided to the 

 

13 Judge Roth notes that she does not consider the 

disparate impact of the funding mechanism here to be an 

“even if” assumption. She concludes that this funding 

mechanism subjects students with disabilities to disparate 

treatment “by reason of” their disability. 29 U.S.C. § 12132; 

42 U.S.C. § 794(a). Pennsylvania specifically selected a 

funding formula that depends, in part, on its assumptions 

about the concentration of students with disabilities. The 

funding formula therefore takes the student’s disability status 

as a relevant metric in distributing funds. Having done so, the 

formula then provides less funding for some students with a 

disability vis-à-vis others—the very essence of a disparate 

impact claim. See Olmstead, 527 U.S. at 598 & n.10 (noting 

that discrimination prohibited by the ADA includes policies 

that create differential effects between the same class of 

individuals); Helen L. v. DiDario, 46 F.3d 325, 336 n.21 (3d 

Cir. 1995) (same). 
12

disabled students who attend schools in the nonclass districts. 

The District Court’s unchallenged factual findings support the 

conclusion that there is an absence of evidence that any class 

member was deprived of a service available to nonclass 

members.14 Thus, based on this record, we are compelled to 

reject Plaintiffs’ claim that the use of the 16% figure and its 

resulting disparity in per student funding for students in class 

districts as compared to nonclass districts violates the ADA or 

RA.

IV.

For the foregoing reasons, we will affirm the judgment 

of the District Court.

 

14 As the District Court appropriately noted, Plaintiffs 

produced performance metrics that appear to show that the 

special education students in Pennsylvania are not making the 

type of progress that one would hope they could achieve. 

That said, the role of a federal court is to evaluate the 

evidence under the governing law. Here, the evidence 

adduced did not show that these differing outcomes were the 

result of the funding formula and thus, Plaintiffs have not 

demonstrated on this record that the formula violates the RA 

or ADA.