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

by Franczek Radelet P.C.
Contact

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.  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.
Contact
more
less

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.