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
2

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
3

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. 
4

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-ofFAPE claims under the IDEA, Section 504, and state law.
5

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 “nonspeaker.” 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.
6

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 evidencebased 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 
7

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 
8

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 selfinjurious 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 
9

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 
10

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 
11

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.
12

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 
13

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 
14

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 
15

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.
16

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 
17

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

mentioning the testimony of Alex or his behaviorspecialist 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 
18

[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 

Advocates5and Communication First6each 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-forprofit 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. 
19

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).

 
20

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). 
21

(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)8and (g)9shall 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).
22

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
23

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’ crossmotions 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. 
24

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.
25

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). 
26

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. 
27

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 nonmoving 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. 
28

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 communitybased 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 
29

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 
30

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. 
31

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 nonIDEA 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 
32

Papes conducted after filing their amended complaint for nonFAPE-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.
33

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 denialof-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.