Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Van C. Sher and Carol L. Sher On Behalf of Themselves and Their Minor Son, Civil Action A.L.S v. Upper Moreland Township School District

December 28, 2012

VAN C. SHER AND CAROL L. SHER ON BEHALF OF THEMSELVES AND THEIR MINOR SON, CIVIL ACTION A.L.S., PLAINTIFFS,
v.
UPPER MORELAND TOWNSHIP SCHOOL DISTRICT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

The case before the Court on remand from the Court of Appeals for the Third Circuit ("Third Circuit") involves a former student of the Upper Moreland Township School District, who is diagnosed with Attention-Deficit Hyperactivity Disorder ("ADHD"), *fn1 and the issue of whether he was discriminated against because of his ADHD.

I. BACKGROUND

Plaintiffs, Van C. Sher and Carol L. Sher (collectively, "Plaintiffs"), currently proceeding pro se, are the grandparents and legal guardians of A.L.S. A.L.S. was enrolled within Defendant, Upper Moreland Township School District ("District" or "UMSD"), in the eighth grade and has since graduated. *fn2 While a student, Plaintiffs allege that the District, Superintendent of UMSD Dr. Robert Milrod, and UMSD Psychologist Howard Cohen (collectively, "Defendants") failed to accommodate A.L.S.'s ADHD and singled him out for disciplinary sanctions, including detentions, verbal warnings, and in-school and out-of-school suspensions. *fn3 (Compl.¶¶ 21-35.)

Liberally construing the Complaint, this lawsuit alleges, among other claims, violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Individuals with Disabilities Education Improvement Act of 2004 ("IDEA"), 20 U.S.C. §§ 1401 et seq., and Section 504 of the Rehabilitation Act of 1973 ("Section 504" or "Rehabilitation Act"), 29 U.S.C. § 794. *fn4 (See Compl.) Some of the claims allege that the District failed to provide A.L.S. a Free Appropriate Public Education ("FAPE"), as required by the IDEA and Section 504 of the Rehabilitation Act. (Id.) Plaintiffs sought compensatory education, reimbursement for educational expenses, and compensatory damages for future psychological care of A.L.S. (Id.)

By Memorandum Opinion dated August 19, 2011, we granted the Defendants' Motion to Dismiss in its entirety. See Sher, 2011 WL 3652474, at *1-14. Additionally, we denied Plaintiffs' Motion for Appointment of Counsel. Id. at *14. Plaintiffs filed a timely appeal. On appeal, the Third Circuit vacated this Court's ruling dismissing Plaintiffs' Section 504 Rehabilitation Act claim holding that further proceedings were required. Sher, 481 Fed. App'x at 764-65. Notably, the Third Circuit pointed out that "[i]n their brief, the Shers contest the District Court's decision only insofar as it dismissed their § 504 claims against the District." Id. at 763 n.2. Accordingly, the Third Circuit held that "they have waived any other arguments that the District Court erred in dismissing their complaint." Id. (citing Laborers' Int'l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994)). Consequently, the only claim that is at issue is Plaintiffs' Section 504 Rehabilitation Act claim against the District. *fn5

Regarding Plaintiff's Section 504 claim, the Third Circuit vacated our Order dismissing the claim and remanded the case instructing us to consider whether Plaintiffs, as A.L.S.'s guardians, have standing to assert a discrimination claim in their own right under Section 504 of the Rehabilitation Act. Sher, 481 Fed. App'x at 764-65. We find that they do not. Therefore, Plaintiffs' Section 504 Rehabilitation Act claim, their only remaining claim, will be dismissed for lack of standing. *fn6

II. DISCUSSION

"Standing is a threshold jurisdictional requirement, derived from the 'case or controversy' language of Article III of the Constitution." Pub. Interest Research Grp. of N.J. v. Magnesium Elektron, Inc., 123 F.3d 111, 117 (3d Cir. 1997) (citation omitted). Federal courts are under an independent obligation to examine their own jurisdiction, and "standing is perhaps the most important of the jurisdictional doctrines." FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990) (stating that the issue of standing may be raised by the court sua sponte at any stage of the proceedings). Since Plaintiffs' only remaining claim is under Section 504, the question is whether Plaintiffs may prosecute claims on their own behalf under only Section 504 of the Rehabilitation Act. We find that they cannot.

"Section 504 of the Rehabilitation Act prohibits recipients of federal funds, including schools, from discriminating on the basis of disabilities." Chambers v. Phila. Sch. Dist., 827 F. Supp. 2d 409, 416 (E.D. Pa. 2011) (citing 29 U.S.C. §794(a)). "Section 504 is similar to the IDEA [Individuals with Disabilities Education Act, 20 U.S.C. §§ 1401 et seq.] in that it provides a mechanism to redress the failure on the part of a state receiving federal funds to provide a free appropriate public education [FAPE] to children with disabilities. Annika T. v. Unionville Chadds-Ford Sch. Dist., No. 08-4944, 2009 WL 778350, at *3 (E.D. Pa. Mar. 24, 2009). The IDEA imposes an affirmative duty on states which accept certain federal funds to provide all disabled children FAPE, while Section 504 imposes a negative prohibition against disability discrimination in programs that are federally-funded. Id. (citing Neena S. v. The Sch. Dist. of Phila., No. 05-5404, 2008 WL 5273546, at *6 (E.D. Pa. Dec. 19, 2008)).

An instructive case on the issue of whether Plaintiffs have standing to bring a claim on their own behalf under Section 504 of the Rehabilitation Act is Winkleman v. Parma City Sch. Dist., 550 U.S. 516 (2007). In Winkleman, the parents of an autistic child filed suit against the child's school district for violations of the IDEA. 550 U.S. at 519-20. The district court granted judgment on the pleadings finding the child was given a FAPE. Id. at 521. The United States Court of Appeals for the Sixth Circuit dismissed the appeal based upon the premise that the parents, who were proceeding pro se, could not prosecute their child's IDEA claim. Id. The United States Supreme Court ("Supreme Court") reversed and remanded the Sixth Circuit's ruling holding that parents can assert their own claims under the IDEA with regards to the denial of a FAPE for their child. *fn7 Id. at 521, 533-35.

The Supreme Court held that parents have "independent, enforceable rights concerning the education of their children" under the IDEA. Id. at 529. In so holding, the Court relied upon the text of IDEA which has many references to "the rights of children with disabilities and parents of such children." Id. at 523 (citing 20 U.S.C. § 1400(d)(1)(B)). The Court held that parents have standing in federal court "to prosecute IDEA claims on their own behalf" based upon both procedural violations of the IDEA and the substantive denial of a "free appropriate public education" to their children. Id. at 533-535. The Winkleman decision clearly confers independent parental standing under the IDEA on their own behalf. However, the more complicated issue before us is whether parents may bring a claim on their own behalf solely under Section 504 of the Rehabilitation Act.

Since Winkleman, there has been a split among federal courts disagreeing about whether the Supreme Court's decision conferring independent parental standing under the IDEA equally extends to parental claims on their own behalf under Section 504 of the Rehabilitation Act. Courts extending the Winkleman decision to Section 504 rely upon the parallel statutory rights in both the IDEA and Section 504 of "any party aggrieved" to seek appropriate relief in the federal court. See C.J.G. v. Scranton Sch. Dist., No. 07-1314, 2007 WL 4269816, at *5 (M.D. Pa. Dec. 3, 2007) (noting the similar language used in the Rehabilitation Act permitting recovery for "a party aggrieved" finding that "any party aggrieved" should be construed to the fullest extent permitted); Tereance D. ex rel. Wanda D v. Sch. Dist. of Phila., 548 F. Supp. 2d 162, 170 (E.D. Pa. 2008).

Other courts concluding that independent parental standing under the IDEA extends equally to claims by parents on their own behalf under Section 504 focus on the emphasis in Winkleman on the broader principle regarding the "importance of parents in the educational role of their children" noting that "a parent of a child with a disability has a particular and personal interest" in preventing discrimination against the child. See Winkelman , 50 U.S. at 529; see also Blanchard v. Morton Sch. Dist., 509 F.3d 934, 938 (9th Cir. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.