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School Districts Are Not Liable for Money Damages from the Misidentification of Students As Disabled...

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PRESS RELEASEThe Third Circuit Court of Appeals issued a decision affirming summary judgment in favor of the Lower Merion School District (“District”) in the case of Durrell ex. rel S.H. v. Lower Merion School District (No. 12-3264, U.S. App. LEXIS 18458, (3d Cir., 2013)) in which it ruled on multiple issues of first impression. The case involved a student who had been receiving special education services under the Individuals with Disabilities in Education Act (“IDEA”) from fourth grade through tenth grade at which point the family and the District exited the student from special education.

At all points in time, the parent had participated in IEP meetings, was given a copy of relevant evaluations and signed off on the student’s classes and IEPs. The student graduated from high school and was accepted to several different colleges and universities. The family nevertheless sued the District for compensatory education going back to the date the student was initially placed in special education claiming that the student never had a disability and was improperly regarded as disabled by the District. The family further alleged that the student was excluded from general education services because the District improperly regarded S.H. as being disabled and therefore discriminated against S.H. on the basis of S.H.’s perceived disability. The family brought claims against the District for money damages and compensatory education under the IDEA, Section 504 of the Rehabilitation Act (“§504”) and the Americans with Disabilities Act (“ADA”).

The case was dismissed at the due process level because the student was not claiming to be a student with a disability and was not requesting services under the IDEA or § 504. On appeal to the Eastern District Court of Pennsylvania, the Honorable Harvey A. Bartle, III dismissed the IDEA claims and granted the District’s motion for summary judgment on the ADA and §504 claims. Judge Bartle decided that in order to prevail on a discrimination claim for damages under either statute the family had to prove intentional discrimination and in this case, the family had not provided sufficient evidence of their claims.

In an opinion by the Honorable Joseph A. Greenaway, Jr., the Third Circuit Court of Appeals upheld Judge Bartle’s summary judgment dismissal. The Third Circuit held for the first time that the protections of the IDEA do not extend to students without disabilities. Therefore, if a student alleges that they do not have a disability or are misidentified as being eligible for services when they are not, the IDEA provides no cause of action.

The Third Circuit also decided, as an issue of first impression, that a claimant must make a showing of intentional discrimination for an award of compensatory damages under the ADA or §504. In so holding, the Third Circuit agreed with the majority of the circuit courts who have decided the issue that deliberate indifference is the standard which should be used to prove intentional discrimination. In order to establish deliberate indifference a claimant must allege sufficient facts to establish that the public actor 1) had knowledge that a federally protected right is substantially likely to be violated and 2) failed to act despite the knowledge. In this case, the court determined that S.H. had not set forth sufficient facts to prove that the District was deliberately indifferent to S.H.’s rights. Specifically, the family alleged that the District should have been on notice that S.H.’s rights were being violated because (1) S.H. complained about being in special education; (2) some of S.H.’s scores on standardized tests were at or above grade level; (3) the District knew that there was an over-representation of African American children within special education; and (4) other psychologists disagreed with the District’s evaluations. The Third Circuit found that none of this evidence, viewed in a light most favorable to S.H., established that the District knew that it was violating S.H.’s rights. Significantly, the Court held that actual knowledge of an incorrect evaluation is necessary to prove deliberate indifference and found that “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.”

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