2024:
The MLO Minute: “MLO Secures a Significant Victory in the Third Circuit for Children with Disabilities”
By Daniel Woody, Esq., Federal Litigation and Appellate Counsel, Michael Connolly, Esq., Supervising Partner of The Special Education Department, and Dennis McAndrews, Esq., Founder and Managing Partner Emeritus —
FOR IMMEDIATE RELEASE –
On June 4, 2024, the Third Circuit held in B.S.M. v. Upper Darby School District, — F.4th —, 23-cv-1595 (3d Cir. 2024) that children with disabilities have enforceable rights under Section 504 of the Rehabilitation Act of 1973 (Section 504) independent of their rights under the Individuals with Disabilities Education Act (IDEA). More specifically, the court held that Section 504 contains its own Child Find obligation independent of IDEA, and that a school district is required to evaluate and identify children with suspected disabilities under Section 504 even where the district evaluated under IDEA and found the student ineligible under IDEA. This is a published and precedential decision.
Over the years, courts have been slowly eroding the protections of Section 504 for children with disabilities and folding Section 504 entirely into IDEA. School districts and some courts would frequently argue that where a school district satisfies IDEA, it also satisfies Section 504. But Section 504 has a broader definition of disability than IDEA and thus covers more children than IDEA. Furthermore, Congress, when it passed IDEA, included a subsection specifically stating that all remedies under Section 504 remain available to protect the rights of children with disabilities. 20 U.S.C. § 1415(l). Congress passed subsection 1415(l) to correct the misperception that IDEA was intended to replace Section 504.
While IDEA and Section 504 have many similarities, there are also important differences between the two statutes. Section 504 has a different, broader definition of disability than IDEA, which limits the definition of disability to 13 discrete classifications. In addition, to qualify for an IEP, a child must require Specially Designed Instruction (modifications to the curriculum), which is not required by Section 504. Section 504 also contains its own Child Find requirement. 34 C.F.R. § 104.32. In keeping, in B.S.M., the Third Circuit held that the lower court erred by failing to examine whether the school district should have evaluated the student under Section 504, despite finding her ineligible under IDEA. The court then listed a plethora of examples of social, emotional, behavioral, and cognitive needs which indicated that the student should have been evaluated for a 504 Plan, even if she did not require an IEP.
Furthermore, the court held that the de novo standard of review applies to Section 504 and Americans with Disabilities Act (ADA) claims, not the “modified de novo” standard of review, which is standard of review applied in federal court when reviewing IDEA claims. De novo is a Latin term meaning “anew.” When a court applies the de novo standard of review, it decides the issues without deference to the factual findings made by the hearing officer at the due process hearing. This aspect of the holding provides increased space between IDEA and Section 504 claims and will help parents assert Section 504 claims independent of IDEA claims.
Along with the B.S.M. case, the Third Circuit issued a companion case to further strengthen a student’s Section 504 and ADA rights. In Le Pape v. Lower Merion School District, — F. 4th —, 22-cv-2931 (3d Cir. June 4, 2024), the Third Circuit held that where a family presents both a denial of FAPE claim and an intentional discrimination claim, the intentional discrimination standard is not subject to the modified de novo review standard and must be decided via the summary judgment standard with the plaintiffs entitled to discovery and a jury trial. (Intentional discrimination matters are more serious claims and result in actual money damages for the student.)
There, the school district argued that the facts developed at the due process hearing were the same facts needed to decide the family’s intentional discrimination claim under Section 504 and the ADA. The district court agreed with the school district that it would not consider evidence gathered during discovery when deciding the intentional discrimination claim, but instead would base the decision entirely on the administrative record. The Third Circuit held that this was in error.
Initially, like the B.S.M. case, the court in Le Pape definitively held that the de novo standard of review applies to Section 504 claims.
Critically, and as will be significant for many of our clients moving forward, the Third Circuit discussed how a student can have an intentional discrimination claim under Section 504 and the ADA even where the school district did NOT deny the student a FAPE. The Third Circuit gave the example of when the school district failed to consider a verbally impaired student’s preference for a communication device or method. The ADA requires more than IDEA when it comes to communication devices and methods that a student prefers.
Both Le Pape and B.S.M. significantly strengthen Section 504 and ADA claims at a time when they were being swallowed up by the IDEA. In cases in which a child was not found eligible under IDEA, parents can use B.S.M. to argue that the school district is still liable under Section 504, unless the school district properly evaluated the child under Section 504’s broader definition of disability. And Le Pape allows parents to assert intentional discrimination claims under Section 504 and the ADA even where the school district arguably provided the student with a FAPE. These precedential decisions provide more rights to children with disabilities.
We have been advocating for the rights of students with disabilities for over 40 years. Our initial special education consultations are free, and the majority of our cases are handled on a contingency basis without hourly charges to our clients. We look forward to working with your family! Click here to contact us today!
