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S.H. v. Lower Merion School District

United States Court of Appeals, Third Circuit

September 5, 2013

S.H., By and Through her Parent and Educational Decision Maker, Carol Durrell; CAROL DURRELL, Appellants

Argued: May 23, 2013


Sonja D. Kerr, Esq. (argued) Public Interest Law Center of Philadelphia, Counsel for Appellants S.H. and Carol Durrell

Michael D. Kristofco, Esq. (argued) ShaVon Y. Savage, Esq. Jenna B. Berman, Esq. Amy T. Brooks, Esq. Wisler Pearlstine LLP, Counsel for Appellee Lower Merion School District GREENAWAY, JR., Circuit Judge.

Before: RENDELL, GREENAWAY, JR., Circuit Judges, and ROSENTHAL, District Judge. [*]


GREENAWAY, JR., Circuit Judge.

On November 5, 2010, S.H. and her mother, Carol Durrell ("Ms. Durrell") (collectively, "Appellants") filed suit against Lower Merion School District ("School District"), alleging violations of the Individuals with Disabilities Education Act ("IDEA"), § 504 of the Rehabilitation Act ("RA"), and § 202 of the Americans with Disabilities Act ("ADA"). Appellants contend that the School District misdiagnosed S.H. as disabled for several years, and that, as a result, it is liable under the IDEA for compensatory education and under the RA and ADA for compensatory damages. The District Court dismissed Appellants' IDEA claim for failure to state a claim. The District Court then granted summary judgment in the School District's favor as to the RA and the ADA claims. This appeal followed. For the reasons set forth below, we will affirm.


A. Facts

S.H., who is African-American, began attending Penn Valley Elementary School in the Lower Merion School District in kindergarten. Beginning in first grade (the 2000-2001 school year), S.H. was placed in Title I classes.[1] Ms. Durrell received a brochure and letters explaining Title I services and consented to S.H.'s enrollment in the program. S.H. received Title I services from first grade through fifth grade.

On October 2, 2001, when S.H. was in second grade, Ms. Durrell met with Santa Cucinotta, the school psychologist ("Ms. Cucinotta"), the school counselor, and the principal. At this conference, they discussed that S.H. was having difficulty with confidence, as well as reading, writing, and getting her thoughts on paper. The team collectively agreed that S.H. should continue to receive Title I reading services. After this meeting, Ms. Cucinotta began to monitor S.H.'s progress in her classes. The School District also created a "Child Study Team" to monitor S.H.'s progress. Ms. Durrell participated in many of the Child Study Team meetings.

When S.H. was in third grade (the 2002-2003 school year), Ms. Cucinotta and Ms. Durrell again discussed S.H.'s difficulties in school. During the spring of that year, S.H. scored below the benchmark[2] on the reading portion of the Pennsylvania System of School Assessment ("PSSA").[3] On May 23, 2003, Ms. Durrell met with the school counselor and the principal. They agreed that, while S.H. was "enthusiastic" and "had a nice grade 3 experience, " the team needed to develop strategies directed toward improving S.H.'s attention and focus. (App. 464.)

At the beginning of S.H.'s fourth-grade year (the 2003-2004 school year), S.H. scored below the benchmark score on the Degrees of Readings Powers ("DRP") test.[4] On February 24, 2004, the Child Study Team, consisting of Ms. Durrell, Ms. Cucinotta, the school counselor, and S.H.'s fourth-grade teacher, met to discuss S.H.'s progress. They talked about S.H.'s enthusiasm for certain activities, but noted her unwillingness to continue participating in Title I reading classes, and her difficulties with "place value" in math, and "decoding" and "understanding the main idea" in reading. (App. 465.) The team decided to send a referral packet to pupil services for S.H. and issued a Permission to Evaluate ("PTE"), which is a request to the parent that the student be evaluated in order to determine eligibility and need for special education services. Ms. Durrell consented to the evaluation. That year, S.H.'s fourth-grade teacher also explained to Ms. Durrell that S.H. was "struggling" in her studies. On June 6, 2004, the School District issued another PTE for S.H., and on June 8, Ms. Durrell again consented.

Ms. Cucinotta began the evaluation in June 2004, using the predicted achievement model to assess S.H.[5] The results revealed a 16-point discrepancy between S.H.'s expected score of 106 and her Reading Comprehension score of 90.[6] As part of the evaluation, Ms. Cucinotta considered whether any mitigating factors would have affected S.H.'s achievements, such as S.H.'s personal or familial circumstances.[7]Ms. Cucinotta also spoke with Ms. Durrell, reviewed a literacy specialist's evaluations of S.H. from the end of third grade and the beginning of fourth grade, and considered S.H.'s below-benchmark PSSA and DRP scores. Ms. Cucinotta considered the testing scores, as well as her own "clinical observations of [S.H.'s] language processing, the difficulty [S.H.] had with directions, [and] the vocabulary that [S.H.] didn't understand." (App. 381.)

Ms. Cucinotta concluded her evaluation at the beginning of S.H.'s fifth-grade year (the 2004-2005 school year), and published the results in two evaluation reports, dated September 2 and 13, 2004. As a result of the evaluation, Ms. Cucinotta determined that S.H. had a learning disability in reading and math and recommended that she receive specially designed instruction in these areas. The reports also noted that S.H. was unhappy that she was designated as disabled and had told Ms. Cucinotta that she did not think she belonged in special education. Ms. Durrell reviewed and signed the evaluation reports, indicating that she agreed with the recommendations.

Following her designation as disabled, a team was assembled to develop an Individualized Education Program ("IEP") for S.H. The record indicates that the IEP team considered S.H.'s personal sentiment that she did not want to be in special education, and that Ms. Cucinotta and a guidance counselor subsequently discussed S.H.'s feelings with her. On October 1, 2004, Ms. Durrell attended an IEP meeting for S.H., during which Ms. Durrell received and approved the Notice of Recommended Placement ("NOREP"). The NOREP indicated that S.H. would receive special education services during her fifth-grade year — specifically, learning support in the resource room as well as itinerant speech and language therapy.

On November 14, 2004, the IEP team met again to create a revised IEP for S.H., which Ms. Durrell approved. A revised NOREP was subsequently issued, indicating that S.H. would continue to receive speech and language therapy, and would also be placed in a part-time learning support class called Instructional Support Lab ("ISL").

On January 25, 2005, when S.H. was in fifth grade and less than three months after she was placed in special education, S.H. scored above-grade level on the Woodcock Reading Mastery Test. She scored at a 5.3 grade level in word identification, 6.4 grade level in word attack, and 6.7 grade level in word comprehension.

From sixth to eighth grade, S.H. attended Welsh Valley Middle School in the School District. S.H.'s IEP team selected her classes, with her mother's approval. When S.H. was in sixth grade, the IEP team developed a new IEP providing S.H. with accommodations for standardized testing. Ms. Durrell agreed to these accommodations.

On October 5, 2006, Ms. Durrell emailed S.H.'s seventh-grade ISL teacher and stated, "I am really concerned about [S.H.'s PSSA] score. She is below proficiency. Could we consider having her work with the Reading Specialist . . . she needs some one-to-one instruction to bring her up to proficiency. This is a real concern for me now. . . it is obvious that more needs to be done." (App. 223-24, 573.) In response to this email, the School District provided S.H. with one-on-one instruction with a reading specialist. S.H. again confided in her seventh-grade teacher that she was unhappy with ISL and didn't feel like she needed the extra help.

On May 23, 2007, when S.H. was in seventh grade, the School District issued an evaluation report analyzing S.H.'s academic progress. The report indicated that S.H. was receiving good grades in her classes and had made positive progress toward her IEP goals. The report recommended S.H. be removed from special education services for language arts due to her progress in that area, but that she continue to receive specialized instruction in reading and writing. Following the 2007 evaluation, these recommendations were implemented. Because S.H. continued to receive special education, there was not time in her schedule for her to take eighth-grade science and Spanish.

S.H. began attending Lower Merion High School when she was in ninth grade (the 2008-2009 school year). The School District created a suggested schedule of classes for S.H.'s ninth-grade year, which included ISL, and sent the schedule home to Ms. Durrell. All parents of rising ninth-graders had the option of requesting a change in their child's suggested course schedule. Ms. Durrell had this option of picking different courses for S.H., but elected not to do so. That fall, S.H. scored just below the benchmark on the Advanced Degrees of Reading Power Test.8

On April 21, 2009, the School District issued a second PTE for S.H. to determine if she still needed special education; Ms. Durrell consented to the evaluation. Dr. Craig Cosden ("Dr. Cosden"), a School District psychologist, performed the evaluation. As part of the evaluation, Dr. Cosden spoke with both S.H. and Ms. Durrell, obtained reports from S.H.'s teachers, discussed S.H.'s progress with both the Literacy Specialist and the Math Specialist, and reviewed S.H.'s grades and scores on standardized tests. Dr. Cosden determined that S.H. had average intelligence, but consistently demonstrated achievement levels below her intelligence level in the areas of reading and math. The evaluation report also indicated that S.H. had a specific learning disability, although the disability was not identified. Dr. Cosden thus concluded that S.H. was still in need of special education in reading and math.[9]

S.H. continued to have ISL classes in tenth grade. On November 2, 2009, Ms. Durrell requested that the School District remove S.H. from ISL and place her in study hall. The School District changed S.H.'s schedule in accordance with this request within two days.

The School District complied with Ms. Durrell's other requests as well. For example, on November 13, 2009, Ms. Durrell emailed Dr. Kimberly Fedchak ("Dr. Fedchak"), a school employee, to ask if Dr. Fedchak could meet with S.H. one-on-one for additional instruction. Ms. Durrell wrote, "I would like to know if [S.H.] can come in to work with you one-on-one, during academic recovery to go over her test corrections. She said she didn't have a clear understanding of the material. She does have math goals in her IEP. I feel the more individual instruction she has, the better she'll do." (App. 237, 704.) Dr. Fedchak agreed.

Also in November of 2009, Dr. Cosden met with Ms. Durrell and Ms. Durrell's legal counsel, as part of an IEP meeting. During this meeting, Ms. Durrell's counsel requested a copy of the testing protocols relating to Dr. Cosden's evaluation of S.H. Dr. Cosden lied to Ms. Durrell and told her that the testing protocols had been destroyed. Dr. Cosden later admitted that he had "intentionally misled the family" because he did not think it was "ethical" for him to disclose the protocols to "persons who have no ability to be able to process and understand the information." (App. 963.)

On November 23, 2009, Ms. Durrell filed a Due Process Complaint Notice, requesting a special education hearing and seeking an Independent Education Evaluation ("IEE"). The School District consented to the IEE, and Ms. Durrell selected Dr. Umar Abdullah-Johnson ("Dr. Abdullah-Johnson"), a nationally certified school psychologist, to perform the evaluation. The IEE was performed in January 2010, and Dr. Abdullah-Johnson published his report on February 24, 2010. His intelligence tests revealed S.H.'s IQ to be 100, which is in the middle of the average range. The achievement test placed S.H. in the "average" range in four out of six composite score ...

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