United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
before the Court is a Report and Recommendation
("R&R") (Doc, 74) by Magistrate Judge Carlson
recommending granting the parties' cross-motions for
judgment on the administrative record in part and denying the
motions in part, and affirming the Hearing Officer's
decision below in all respects. Docs. 42 and 54. Plaintiff
Pocono Mountain School District (the "District")
filed Objections to the R&R, to which Defendant TD, by
and through his parent S.D.L, responded. Docs. 79, 83. The
District also filed a reply to TD's response. Doc. 84.
For the reasons that follow, upon de novo review of
the R&R, the Court will adopt the R&R in part and
overrule it in part.
April 20, 2015, the District initiated this action to appeal
a decision issued by a Pennsylvania Snerial Education Hearina
Officer ("Hearina Officer") involvina TD, a former
student of the District. Doc. 1. At the administrative level,
the Hearing Officer, after receiving evidence and hearing
testimony from the parties, made 146 findings of fact. Doc.
10-2 ¶¶ 1-146 (hereinafter "Fact
Findings"). The Fact Findings detailed the series of
efforts by the District and TD's parent to provide
adequate education and related services to TD, who was
diagnosed with conversion disorder and anxiety disorder.
the end of 2011 to the beginning of 2012, when TD was in the
third grade, a female student touched TD's private parts
on multiple occasions. Id. ¶¶ 1-2. After
TD informed his mother of this, the mother notified the
school. The school immediately conducted an investigation and
determined that TD and the female student should be separated
at all times for the rest of the school year. Id.
¶¶ 15, 19. For unknown reasons, the female student
withdrew from the school the following week. Id.
¶ 20. For the few months after the investigation, TD
exhibited behavioral and social issues, such as disciplinary
notices and vision problems, though he maintained strong
grades. Id. ¶¶ 22-28, 48. He also began
seeing a consultant for victims of sexual abuse in the spring
of 2012. Id. ¶ 25. In May 2012, the District
conducted a meeting between District officials and TD's
parent, during which the District's central office
personnel opined that the school's initial investigation
into the touching incidents did not comply with District
protocol, but that they were confident that there were
procedures in place to ensure TD's safety and a smooth
transition into the fourth grade. Id. ¶¶
36-38. The District also agreed to evaluate TD for special
education services; the evaluation report, issued in July
2012, concluded that he did not have a disability under IDEA.
Id. ¶¶ 40, 47.
during TD's fourth grade year (fall of 2012 to spring of
2013), he continued to exhibit behavioral and social problems
at school, such as an altercation with other students,
frequent nurse visits and missing class time, and
disrespectful behavior towards his teacher, as well as
continued vision problems. Id. ¶¶ 51-56.
In January of 2013, the Parent arranged for an independent
neuropsychological evaluation to be conducted by Dr. Heather
Hoover, who diagnosed TD with conversion disorder (based on
his vision problems that lacked any physical or organic
etiology), and anxiety disorder for the first time.
Id. ¶¶ 60, 62, 81. The mother sent Dr.
Hoover's report to the District, and the school met with
the mother again in May 2013. Id. ¶¶ 92,
94. In the summer of 2013, a private school began contacting
the District requesting TD's records, and the District
dis-enrolled TD. However, after the mother requested yet
another meeting with the District and informed the District
that she had not yet decided if she were transferring TD into
private school, the District re-enrolled TD. Id.
¶¶ 101, 107-08, 111. The mother ultimately decided
to place TD in private school, where he attended fifth grade.
Id. ¶¶ 113-15. In November 2013, the
mother retained a private school psychologist to evaluate TD,
who concluded that TD "appeared to be a student who
qualified for services under the IDEA as a student with an
emotional disturbance and who required special education/
related services" but recommended further evaluation.
Id. ¶ 122. The mother shared this report with
the District, which agreed to conduct yet another independent
evaluation at the District's expense. Id. ¶
127. In May 2014, the independent evaluator retained by the
District concluded that TD did not qualify as "an
eligible student under IDEA," but did find that he had a
disability-namely, "conversion disorder and anxiety
disorder/not otherwise specified"-and that he qualified
for Section 504 accommodations. Id. ¶ 129. The
District agreed to implement and devise a Section 504 plan
for TD, should he return to the District's schools.
Id. ¶ 136. However, TD remained in private
school as of the time his mother filed the special education
complaint that led to the administrative proceedings.
Id. ¶ 137.
on documentary evidence and witness testimony during the
administrative hearings, the Hearing Officer found that (1)
TD was not eligible for a free and appropriate public
education ("FAPE") under the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C.
§ 1400 et seq., because he "does not qualify as a
student with a disability under the IDEA"; (2) but TD
was disabled (due to his conversion disorder and
anxiety disorder) under Section 504 of the Rehabilitation Act
of 1973, 20 U.S.C. § 794 ("Section 504"), and
that he was denied FAPE under Section 504 as of May 14, 2013,
which entitled him to one hour of compensatory education per
school day for a period of 26 school days, as well as tuition
reimbursement for the 2013-14 and 2014-15 school years; and
(3) the District demonstrated deliberate indifference towards
TD on the basis of his disability. Doc. 10-2 at 38-49
(hereinafter "Hearing Op.").
parties filed cross-motions for judgment on the
administrative record or, in the alternative, for summary
judgment. Docs. 42 and 54. They agreed that they would not
"seek to supplement the administrative recommend"
and that their motions "shall be decided by the Court on
the basis of the administrative record previously filed...in
this action." Doc. 35 at 1-2. Neither party's motion
clearly specifies the relief requested or what findings below
they would ask this Court to affirm or overturn in their
proposed orders. See Docs. 42-1, 54-1 (merely asking
the Court to grant their respective motions for summary
judgment, or in the alternative, judgment on the
administrative record). The Court surmises from the
parties' briefs that the District asks the Court to
overturn the Hearing Officer's findings of disability,
denial of FAPE, finding of deliberate indifference, and
consequent compensatory education and tuition reimbursement
damages under Section 504, and affirm the finding that TD is
not disabled under IDEA, while TD requests the opposite
relief, that is, affirming the Hearing Officer's findings
as to the Section 504 analysis, and even extending the
compensatory education "from the period March 2012 to
May 14, 2013." Docs. 43, 54.
parties' motions were referred to Magistrate Judge
Carlson on September 25, 2017. After consideration of the
parties' briefs and the record, Magistrate Judge Carlson
issued the R&R, recommending that the parties'
cross-motions each be granted in part and denied in part, and
that the Hearing Officer's decision be affirmed in all
District objected to the R&R in a scattered brief,
arguing that the R&R failed "to consider the record
as a whole"; that it "merely incorporates the
Hearing Officer's Decision without analysis necessary to
this Appeal"; that it failed "to consider the
extensive evidence and testimony provided by the
District's 'educational professionals' greater
expertise with educational matters'" (though the
District fails to name who these "educational
professionals" are or where their opinions can be found
on the record); that it "proceeds by implication and is
unclear as to the significance or relevance of its Statements
[of Facts]"; that it conflates the legal standards under
Section 504 and IDEA; that it "fails to address the
hearing officer's application of the poisoned waters
doctrine"; and that it unfairly dismissed the holding of
T.F. v. Fox Chapel Area School Dist, 589 Fed.Appx.
594, 598 (3d Cir. 2014). See Doc. 79 (hereinafter
outset, the Court notes that the District's
"Objections" do little to engage in a meaningful
analysis of the R&R, but instead relies on either
patently false statements (for example, claiming the
Magistrate Judge failed to consider the "poisoned
waters" argument and T.F. v. Fox Chapel's
holding when the R&R addressed both) or on empty
rhetoric. See e.g., Objections at 6 (stating
"The objective of the R&R appears to be to get rid
of this case, not to deal with it" without citation or
further analysis); id. at 3 (claiming that
"[t]he R&R's adoption of the Decision renders it
tautological" and that "the failures of the R&R
put the District back to square one" without additional
support or explanation); id. (stating that instead
of "having to make the same arguments by way of
Objection to the R&R," the District
"incorporates by reference as if fully set forth herein
the District's brief in support of the Motion for
Judgment on the Administrative Record, or, in the
Alternative, for Summary Judgment, dated April 25,
2016," even though incorporation of prior briefs is not
permitted under Local Rule 7.8); id. at 22 (arguing that
the R&R "could be accused of the fairly common
fallacy of relating things in time and therefore in cause:
nunc pro tunc. But things related in time are not
therefore related in cause..."). The Objections also
repeatedly accuse the Magistrate Judge of failing to consider
the oral argument transcript as evidence, id., at 2,
4-5, 26, despite the fact that oral argument is only a means
for counsel to address what is already contained in the
record, not a conduit for the parties to introduce new
evidence. See Jersey Cent. Power & Light Co. v. Lacey
Twp., 772 F.2d 1103, 1109-10 (3d Cir. 1985) ("Legal
memoranda and oral argument are not evidence and cannot by
themselves create a factual dispute sufficient to defeat a
summary judgment motion."), cert. denied, 475
U.S. 1013 (1986); Orson, Inc. v. Miramax Film Corp.,
79 F.3d 1358, 1372 (3d Cir. 1996) (same).
bizarrely, the Objections include an email from a college
professor criticizing the R&R's legal reasoning. Doc.
79 at 16. The Court is baffled by the inclusion of a post
hoc opinion on the R&R's soundness from a person
unrelated to this case. The inclusion of the email is not
only irrelevant, but is also, as a general matter, highly
inappropriate, as not even expert witnesses involved in the
case are permitted to opine on the legal issues of the case.
See, e.g., Berckeley Inv. Grp., Ltd. v. Colkitt, 455
F.3d 195, 217 (3d Cir. 2006) ("Although Federal Rule of
Evidence 704 permits an expert witness to give expert
testimony that 'embraces an ultimate issue to be decided
by the trier of fact,' an expert witness is prohibited
from rendering a legal opinion.") (citing United
States v. Leo, 941 F.2d 181, 195-96 (3d Cir. 1991)).
Moreover, the email offers cursory statements with no
citations to the record or the R&R. The Court will
therefore disregard any arguments based on the third-party
the above, upon de novo review of the R&R and a
modified de novo review of the Hearing Officer's
fact findings, the Court will overrule the R&R in part
because the record does not support the Hearing Officer's
findings of deliberate indifference by the District, and
because the Hearing Officer erred in determining TD to be
disabled under Section 504, but not disabled under IDEA.
district court may "designate a magistrate judge to
conduct hearings, including evidentiary hearings, and to
submit to a judge of the court proposed findings of fact and
recommendations for the disposition" of certain matters
pending before the court. 28 U.S.C. § 636(b)(1)(B). If a
party timely and properly files a written objection to a
Magistrate Judge's Report & Recommendation, the
District Court "shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made." Id. at § 636(b)(1); see also
Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011); Local
Rule of the Middle District of Pennsylvania 72.3.
deciding an IDEA case, the District Court applies a modified
version of de novo review and is required to give
due weight to the factual findings of the ALJ." L£
v. Ramsey Bd. of Educ, 435 F.3d 384, 389 (3d Cir.
2006) (collecting cases). Under this standard,
"[f]actual findings from the administrative proceedings
are to be considered prima facie correct," and
¶]f a reviewing court fails to adhere to them, it is
obliged to explain why." S.H. v. State-Operated
School Dist. of City of Newark, 336 F.3d 260, 271 (3d
Cir.2003) (citing MM. v. Sen. Dist. of Greenville
County, 303 F.3d 523, 530-31 (4th
Cir.2002)). "In addition, if a state
administrative agency has heard live testimony and has found
the testimony of one witness to be more worthy of belief than
the contradictory testimony of another witness, that
determination is due special weight." Shore
Reg'l High Sch. Bd. of Educ. v. P.S. ex rel. P.S.,
381 F.3d 194, 199 (3d Cir. 2004) (internal citations
omitted). "Specifically, this means that a District
Court must accept the state agency's credibility
determinations 'unless the non-testimonial, extrinsic
evidence in the record would justify a contrary
conclusion.'" id. (quoting Carlisle
Area School v. Scott P., 62 F.3d 520, 529 (3d Cir.
1995)) (emphasis in original).
district court's review of the hearing officer's
application of legal standards and conclusions of law, on the
other hand, is subject to plenary review." Jana K.
ex rel. Tim K. v. Annville-Cleona Sch. Dist, 39
F.Supp.3d 584, 594 (M.D. Pa. 2014) (citing Warren G. v.
Cumberland Cnty. Sch. Dist, 190 F.3d 80, 83 (3d
Cir.1999)). See also M.S.-G v. Lenape Reg'l High Sch.
Dist Bd. of Educ, 306 Fed.Appx. 772, 773 n. 1 (3d Cir.
2009) ("Although the District Court must employ a
modified de novo review of the decisions of an
administrative fact finder, and we, in turn, review the
District Court's factual findings for clear error, no
such deference is called for when the decisions of the ALJ
and District Court involve only questions of law.")
(internal citations omitted).
administrative proceeding below, TD's parent filed a
special education complaint alleging that TD was eligible for
special education services and accommodations under both IDEA
and Section 504. IDEA imposes an affirmative duty for the
school district to provide every disabled child with a
"free appropriate public education," i.e. FAPE, 20
U.S.C. § 1412(a)(1), while Section 504 is a negative
prohibition on discrimination against students based on their
disabilities. Both Acts require a school to provide FAPE to
disabled students and are often treated analogously. M.R.
v. Ridley Sch. Dist, 744 F.3d 112, 116 (3d Cir. 2014)
("§ 504's negative prohibition is similar to
the IDEA'S 'affirmative duty' and also requires
schools that receive federal financial assistance to provide
qualified students with a FAPE.").
IDEA, "[a] FAPE...includes both 'special
education" and "related services.'"
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch.
Dist, 137 S.Ct. 988, 994, 197 L.Ed.2d 335 (2017)
(quoting 20 U.S.C. § 1401(9)). '"Special
education' is 'specially designed instruction ... to
meet the unique needs of a child with a disability';
'related services' are the support services
'required to assist a child ... to benefit from' that
instruction." Id. (quoting 20 U.S.C.
§§ 1401(26), (29)). Although a state is not
required to maximize the potential of every handicapped
child, it must supply an education that provides
'significant learning' and 'meaningful
benefit' to the child." Ridley Sch. Dist. v.
M.R., 680 F.3d 260, 269 (3d Cir. 2012) (citing D.S.
v. Bayonne Bd. of Educ, 602 F.3d 553, 556 (3d
prevail on a Section 504 claim, a plaintiff must establish
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; and (4) he
was excluded from participation in, denied the benefits of,
or subject to discrimination at, the school."
Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172
F.3d 238, 253 (3d Cir. 1999). An individual is defined as
having a "disability" if he or she has "(A) a
physical or mental impairment that substantially limits one
or more major life activities of such individual; (B) a
record of such an impairment; or (C) [is] regarded as having
such an impairment...." 42 U.S.C. § 12102(1).
the similar standards between IDEA and Section 504, "a
party may use the same conduct as the basis for claims under
both the IDEA and [Section 504] of the RA [i.e.
Rehabilitation Act]." Andrew M. v. Delaware Cty.
Office of Mental Health & Mental Retardation, 490
F.3d 337, 349 (3d Cir. 2007). See also P.P. ex rel.
Michael P. v. W. Chester Area Sch. Dist, 585 F.3d 727,
735 (3d Cir. 2009) ("The IDEA and § 504 of the
Rehabilitation Act do similar statutory work....Section 504
of the Rehabilitation Act is parallel to the IDEA in its
protection of disabled students: it protects the rights of
disabled children by prohibiting discrimination against
students on the basis of disability, and it has child find,
evaluation, and FAPE requirements, like the IDEA.");
D.K. v. Abington Sch. Dist, 696 F.3d 233, 253 (3d
Cir. 2012) ("As under the IDEA, providing a FAPE in
accordance with § 504 requires a school district to
reasonably accommodate the needs of the handicapped child so
as to ensure meaningful participation in educational
activities and meaningful access to educational benefits.
Consequently, our finding that the School District did not
deny D.K. a FAPE is equally dispositive of Plaintiffs'
§ 504 claim.") (internal quotation marks omitted).
this does not mean "that a violation of the IDEA is a
perse violation of [Section 504 of] the RA... even
in cases also brought under the IDEA... a plaintiff must
still prove that there was a violation of [Section 504 of]
the RA." Andrew M., 490 F.3d at 349 (internal
The Hearing Officer Erred in Awarding Compensatory Damages
Under Section 504 Because the Record Does Not Support a
Finding of Deliberate Indifference
on his finding that TD was deprived of FAPE under Section
504, the Hearing Officer awarded an hour of compensatory
education for every school day from May 14, 2013 to the end
of that school year. Hearing Op. at 42-43. He separately
awarded the parent tuition reimbursement for school years
2013-2014 and 2014-2015 "as a result of the
District's denial of FAPE to [TD] under Section
504/Chapter 15 [i.e. Pennsylvania Code's regulation
implementing Section 504]." Id. at 46. Before
awarding compensatory damages under Section 504 however,
there must be a finding of deliberate indifference on the
part of the school district. S.H. ex rel. Durrell v.
Lower Marion School District, 729 F.3d 248, 262- 63 (3d
Cir. 2013). See also Fox Chapel, 589 Fed.Appx. at
599 ("To recover compensatory damages under Section 504,
Appellants must establish intentional discrimination.")
(quoting S.H., 729 F.3d at 262).
their motion for judgment on the administrative record, the
District argued that tuition reimbursement under Section 504
is a form of compensatory damages and therefore requires a
showing of deliberate indifference. Doc. 43, at 24-26.
However, TD's counsel argues that no such showing is
required because tuition reimbursement is equitable relief,
not compensatory damages. TD's brief cited two Supreme
Court cases from 1985 and 1993, both of which addressed only
appropriate remedies under IDEA, not Section 504. See
Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ.
of Mass., 471 U.S. 359, 374, 105 S.Ct. 1996, 2005, 85
L.Ed.2d 385 (1985) and Florence County School Dist. Four
v. Carter, 510 U.S. 7, 114 S.Ct. 361, 126 L.Ed.2d 284
(1993). See also Forest Grove Sch. Dist. v. TA, 557
U.S. 230, 238, 129 S.Ct. 2484, 2491, 174 L.Ed.2d 168 (2009)
(noting that Burlington and Carter held
that IDEA authorizes courts to award parents reimbursement
costs for special education costs).
least two recent (albeit non-precedential) opinions, the
Third Circuit squarely addressed the question of whether
tuition reimbursement constituted compensatory damages under
Section 504 and answered in the affirmative. See Fox
Chapel, 589 Fed.Appx. at 599 (in the context of
discussing Section 504, noting that "[t]o recover
compensatory damages under Section 504, Appellants must
establish intentional discrimination...in an effort to avoid
the heightened burden of proof for compensatory damages,
Appellants contend that tuition reimbursement is an equitable
remedy. We are not persuaded by this argument. It is hard to
imagine what would constitute compensatory damages in these
circumstances if not tuition reimbursement...As such, we
agree with the District Court's application of the higher
intentional-discrimination standard."); Sch. Dist.
of Philadelphia v. Kirsch, 722 Fed.Appx. 215, 228 (3d
Cir. 2018) (in the context of ADA an Section 504 claims,
noting that the "Parents fail to articulate why
reimbursement for money they have paid constitutes equitable
relief rather than compensatory damages. In essence, tuition
reimbursement compensates parents for education expenses.
Thus it is properly classified as compensatory damage
attempt to extend equitable authority for tuition
reimbursement to Section 504, TD's brief cites only
nonbinding district court cases that touch on the possibility
of reimbursement under both IDEA and Section 504 without
finding deliberate indifference. See Doc. 55 at 18
(citing Lauren G. v. West Chester Area School Dist,906 F.Supp.2d 375 (E.D. Pa. 2012); Molly L v. Lower
Merion School Dist,194 F.Supp.2d 422 (E.D. Pa.
2002);Kevin M. v. Bristol Twp. School
Dist, 2002 WL 73233 (E.D. Pa. Jan. 16, 2002);
Borough of Palmyra., Bd. Of Educ. v. F.C., 2
F.Supp.2d 637 (D.N.J. 1998)). Not only are these cases not
binding on this Court, they were also decided before Fox
Chapel and Kirsch, the latter of which was
issued this year. Thus, the Court will follow the Third
Circuit's recent guidance that tuition ...