The opinion of the court was delivered by: Ambrose, Chief District Judge.
OPINION and ORDER OF COURT SYNOPSIS
Pending before the Court is Defendants', H.H.'s and his parents', Motion for Partial Summary Judgment (Docket No. 50). After careful consideration of the submissions of the parties and for the reasons set forth below, I find that Defendants' Motion (Docket No. 50) is granted.
This Court incorporates by reference the facts in the Background section set forth in its Opinion and Order of Court dated July 25, 2005, as though the same were set forth herein fully and at length. (Docket No. 34).
Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law. Fed R. Civ. P. 56(c). A fact is material when it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Rule 56 mandates the entry of judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering a motion for summary judgment, the Court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the non-moving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324. Summary judgment must therefore be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988), quoting Celotex, 477 U.S. at 322.
A. SECTION 504 AND THE ADA
The main issue for determination in the pending Motion is whether a finding of a denial of FAPE under the IDEA is discrimination per se under §504 of the Rehabilitation Act and the ADA. See, Docket No. 50, ¶ 6. Specifically, Defendants urge this Court that its finding of a denial of FAPE for the 2003-2004 school year under the IDEA is per se discrimination under §504 and the ADA, such that they are entitled to summary judgment as to those counts. See, Docket No. 50, ¶8. In response, Plaintiff argues that a finding of a FAPE violation under the IDEA does not equate to a per se violation under §504 or the ADA. See, Docket No. 53.
Section 504 prohibits disability discrimination by, inter alia, programs and activities receiving federal funds.*fn1 29 U.S.C. §794(a). Title II of the ADA "extends section 504's anti-discrimination principles to public entities" generally.*fn2 Helen L. v. DiDario, 46 F.3d 325, 332 (3d Cir. 1995); 42 U.S.C. §12132. To establish a prima facie case of disability discrimination under §504, a plaintiff must prove that (1) he is "disabled"as defined by the Act; (2) he is "otherwise qualified" to participate in school activities; (3) the school or the board of education receives federal financial assistance; (4) he was excluded from participation in, denied the benefits of, or subject to discrimination at the school; and (5) the school or the board of education knew or should be reasonably expected to know of his disability.*fn3 W.B. v. Matula, 67 F.3d 484, 492 (3d Cir. 1995); Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 253 (3d Cir. 1999). All of the same elements, except the third element relating to federal funds, are required to establish a prima facie case of discrimination under the ADA. 42 U.S.C. §12132.
It is true that the Third Circuit has held that "there are few differences, if any, between IDEA's affirmative duty and §504's negative prohibition and [has] noted that the regulations implementing §504 require school districts 'provide a free appropriate education to each qualified handicapped person in [its] jurisdiction.'" Ridgewood, 172 F.3d at 253, quoting W.B., 67 F.3d at 492-93. This does not mean, however, that the failure to provide a FAPE is per se discrimination under §504 or the ADA. To the contrary, as the Third Circuit stated later in its opinion, "the failure to provide a free appropriate public education violates IDEA and therefore could violate §504." Id, (emphasis added). Thus, there is no per se finding. To recover under §504 or the ADA, a plaintiff must still meet all of the elements of a prima facie case under said statutes. Id.
In this case, Plaintiff concedes elements 1-3 and element 5. Docket No. 53, p. 7. Plaintiff's only argument in this regard is that "H.H. was not excluded from participation at the District....[T]he record contains direct and substantial evidence that the District did not discriminate against H.H. Special Education and related services were provided to H.H. at no cost, and he obtained benefit from the educational programs and placements in his IEP despite the District's failure to provide a behavioral intervention plan which resulted in an award of tuition reimbursement." Docket No. 53, pp. 7-8. For the reasons set forth in my opinion dated July 25, 2005 (Docket No. 34) regarding a denial of a FAPE for the 2003-2004 school year, I disagree with Plaintiff. I find there is no genuine issue ...