In a recent decision, B.S.M. v. Upper Darby School District, the Third Circuit ruled that the rights of children with disabilities under Section 504 of the Rehabilitation Act of 1973 are distinct from their rights under the Individuals with Disabilities Education Act (IDEA).
A school’s Child Find obligations may require evaluation under Section 504 even if a student was evaluated and determined to be ineligible under the IDEA.
Facts In The Case
Student B.S.M., through her parents, filed a due process complaint against Upper Darby School District seeking compensatory education under both the IDEA and Section 504. The hearing officer initially held that the District had denied the student a FAPE when it provided an inadequate 504 plan, but had not violated its Child Find obligation to identify the student timely under either statute.
Subsequently, her family filed a complaint in the Eastern District of Pennsylvania and the District Court affirmed the hearing officer’s decision.
The Court acknowledged that “the reach of Section 504 is broader than that of the IDEA,” but nonetheless held that a separate Section 504 analysis was “unnecessary” because “[w]hen a party makes claims under Section 504 that are ‘parallel’ to IDEA claims . . . resolution of the IDEA issue will also resolve the [Section 504] issue.”
Outcome & Significance
The Court stated that the same conduct can serve as the basis for both IDEA and Section 504 claims, but an analysis under each statue must be undertaken as a student “could be covered under one statute but not the other, and courts in [this] Circuit have found this to be the case.”
Here, the student’s educational history weighed heavily in favor of this interpretation. She received special education services under the IDEA from kindergarten through second grade, and from fourth grade on, received services under Section 504.
The Third Circuit noted that there are differences in both statutes’ definitions of disability, which was central to the Parents’ argument that the “ . . . District repeatedly refused to perform a comprehensive evaluation that might have detected a Section 504-eligible disability at a much earlier date . . .”
Although it is disputed when exactly the District was put on notice in regard to the Student’s emotional struggles, the Court agreed and found that the District erred in refusing to conduct the comprehensive evaluation that the Student’s family repeatedly requested. However, the Third Circuit did not go so far as to resolve this factual question and rather, vacated the previous judgment in favor of the District.
At present, the matter has been remanded to the lower court to perform an analysis under Section 504 to determine whether the District violated its Child Find obligations.
Honorable Mention
In a footnote, the B.S.M. Court cited to another recent case, Le Pape v. Lower Merion School District, reiterating that a modified de novo review is applied only in IDEA claims, not under Section 504 or American with Disabilities Act (ADA) claims.
In Le Pape, the Third Circuit reversed the grant of summary judgment to the School District by clarifying that “[a] denial-of-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.” After all, the IDEA’s exhaustion requirement applies only to suits that ‘see[k] relief also available under’ [the] IDEA.”
Besides this exhaustion requirement, the IDEA places no restrictions on Section 504 or ADA claims. Significantly, an intentional discrimination claim under the ADA, as asserted in Le Pape, may succeed even if a Student plausibly received a FAPE under the IDEA.
Bottom Line for Schools
With this update, schools should be aware of their Child Find obligations pursuant to both Section 504 and the IDEA. Ineligibility under the IDEA does not obviate responsibility to evaluate under Section 504.
Additionally, even if based upon the same facts, IDEA claims may be resolved through administrative appeal, while Section 504 and ADA claims may proceed to Court, even in instances where the school district provided the Student with a FAPE.
