Third Circuit Finds That Student Misidentified As Disabled Cannot Bring IDEA Suit Against District

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The Individuals with Disabilities Education Act (IDEA) provides that the parent of a child with a disability can bring a due process complaint against a school district to address disputes related to the identification, evaluation, placement, or provision of a free and appropriate public education (FAPE) to the child. A successful parent can secure compensatory education services for the child to ameliorate educational harm caused by a prior deficient educational program. According to the Third Circuit, the parent of a child misidentified as disabled does not have a similar avenue for relief.

In Durrell v. Lower Merion School District, the student, S.H., received assistance through Title I programs beginning in first grade and was identified as having a learning disability at the beginning of fifth grade. S.H.’s mother consented to her evaluation and initial special education placement. S.H. continued to receive special education services through the tenth grade. At that time, her mother filed a due process complaint requesting an independent educational evaluation which the district agreed to provide. The independent educational evaluation indicated that S.H. did not have a learning disability, and never had. The district then exited S.H. from special education, and the hearing officer dismissed the complaint as moot. The mother filed a lawsuit claiming the district failed to properly evaluate S.H. and identify her as a student without a disability. She requested compensatory education, alleging that S.H.’s self-confidence and academic progress were harmed as a result of being misidentified as disabled.

The Third Circuit took notice of Congress’ findings identifying the problem of over-identification of minority students for special education services. However, the court also noted that Congress did not provide an individual right of action for misidentified minority students and their parents, like S.H. and her mother. Instead, the IDEA unambiguously provides that a due process hearing is only available to resolve issues related to the identification, evaluation, placement, or provision of FAPE to a child with a disability.  Because the parent claimed that S.H. did not have a disability, she could not seek relief under the IDEA.

The parent also raised claims under Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act. These statutes specifically provide a right of action to individuals “regarded as” disabled. As the school district certainly had regarded S.H. as having a disability, the parent could raise a claim under these statutes.

However, these claims were ultimately dismissed by the court as well. To succeed on a claim for compensatory damages under Section 504 or the ADA, the plaintiff must prove intentional discrimination, which includes deliberate indifference. The parent thus needed to show not only that the district’s initial eligibility determination was erroneous, but that the district knew that S.H. was not disabled and should not be in special education but failed to act. The evidence that between fifth and tenth grades S.H. had some above average and some below average test scores and good grades did not meet this burden.

While a parent who believes her child has been misidentified as disabled can always revoke consent for special education services, such a parent cannot seek relief under the IDEA; and to obtain compensatory damages under Section 504 or the ADA, she must be able to prove deliberate indifference or intentional discrimination by the district.