J. M. v. Summit City Board of Education

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 20-3391
______
J.M., individually and o/b/o C.M.; E.M., individually and
o/b/o C.M.,
Appellants
v.
SUMMIT CITY BOARD OF EDUCATION
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-19-cv-00159)
District Judge: Honorable Kevin McNulty
____________
Argued: October 26, 2021
Before: GREENAWAY, JR., PHIPPS, and COWEN, *
Circuit Judges.
(Filed: July 1, 2022)
____________
* The Honorable Robert E. Cowen participated in oral
argument, retired, and resumed active status for the disposition
of this case.
Thomas J. O’Leary [ARGUED]
Walsh Pizzi O’Reilly & Falanga
Three Gateway Center
100 Mulberry Street, 15th Floor
Newark, NJ 07102
Counsel for Appellants
Jennifer N. Rosen Valverde [ARGUED]
Rutgers University School of Law
Special Education Clinic
123 Washington Street
Newark, NJ 07102
Counsel for Amici/Appellants
John B. Comegno II [ARGUED]
Anne R. Myers
Comegno Law Group
521 Pleasant Valley Avenue
Moorestown, NJ 08057
Counsel for Appellee
__________
PHIPPS, Circuit Judge.
This is a dispute about the timing of a school district’s
provision of special education and related services to a child
with autism. Although the school district provided those
services to the child after he was diagnosed with autism in
April 2017, it had denied the child those services fourteen
months earlier. At that time, in February 2016, the child was
six years old and in first grade, and the school district
determined that he was ineligible for those services because he
was not disabled and did not need them.
2
The child’s parents disagreed with that ineligibility
determination and sought redress under the Individuals with
Disabilities Education Act (the ‘IDEA’) and § 504 of the
Rehabilitation Act. In the administrative grievance that they
filed against the school district, they asserted that the school
district violated its statutory obligation to identify, locate, and
evaluate children with disabilities. On the premise that the
school district did not fulfill that duty, the parents claimed that
the school district denied their child his statutory right to a free
appropriate public education (a ‘FAPE’).
The parents’ claims did not succeed at the administrative
level or in the District Court. After holding an evidentiary
hearing, a hearing officer denied the parents’ administrative
grievance. To dispute that outcome along with the hearing
officer’s evidentiary rulings, the parents filed a complaint in
federal court. But the District Court upheld the hearing
officer’s determination and entered summary judgment in the
school district’s favor.
The parents have now appealed the District Court’s ruling.
Reviewing the District Court’s legal conclusions de novo, its
factual findings for clear error, and its evidentiary rulings for
abuse of discretion, see Munir v. Pottsville Area Sch. Dist.,
723 F.3d 423, 430 (3d Cir. 2013); Susan N. v. Wilson Sch.
Dist., 70 F.3d 751, 760 (3d Cir. 1995), we will affirm the
judgment for the reasons below.
I. FACTUAL BACKGROUND
A. The Four Months Before C.M. Enrolled in First
Grade in the Summit Public School District
From his infancy through kindergarten, C.M. attended day
care full-time. He met his developmental milestones, and the
day care described his participation and adjustment to
kindergarten as good and his behavior as fairly typical. But
toward the end of kindergarten, in May 2015, he began to have
3
meltdowns at day care. The day care staff could not manage
C.M.’s behavior, and they asked his parents to remove him
from the day care, which his parents did.
Prompted by concerns over his behavior (but not his
academic performance), C.M.’s parents retained Dr. Carolyn
McGuffog, a clinical psychologist and school
neuropsychologist, to evaluate C.M. In July and August of
2015, Dr. McGuffog administered sixteen neuropsychological
tests to C.M. over the course of four days.
B. C.M.’s First Month of First Grade in the Summit
Public School District
In September 2015, C.M. started first grade in the Summit
Public School District. Despite Dr. McGuffog’s admonition
that it was “very, very important to notify the school up front,”
C.M.’s parents did not alert the school district or his teacher to
his meltdowns in kindergarten. Hr’g Tr. at 51:1–2 (June 8,
2018) (testimony of Dr. Carolyn McGuffog) (JA1241).
Similarly, before the start of school, C.M.’s parents did not
inform anyone at Summit that they had retained Dr. McGuffog
to evaluate C.M.
But even without that upfront notice, by the middle of
September, Summit’s staff recognized that C.M. was
displaying behavioral problems in class. He got angry quickly,
and in frustration he would shout, push desks and staff, throw
materials, leave the room, hide under his desk, or refuse to talk.
He was removed from the classroom twice for disruptive
behavior, but after speaking with the school psychologist, he
calmed down and was able to return to the classroom and
participate. After one of those incidents, Summit’s staff
contacted C.M.’s parents and learned for the first time about
his behavioral issues at the end of kindergarten.
By the end of C.M.’s first month of first grade, Summit had
assembled a multidisciplinary team to examine potential
4
interventions in the classroom. That team consisted of the
school principal, the school psychologist, a special-education
teacher, a basic-skills teacher (who provides general-education
supplemental instruction), and C.M.’s general-education
teacher. They met in late September to identify and implement
the least restrictive classroom interventions that would
stabilize C.M.’s behavior.
After developing an intervention plan, the team
implemented several interventions. Those included having
places in the classroom for C.M. to go when he became upset,
having C.M. participate in a lunch-time social-skills group
once a week, and placing a card on C.M.’s desk to remind him
of certain rules, such as to use kind words and to avoid hurting
his friends. The intervention plan also called for rewarding
C.M. with Pokémon cards for following those rules. In
addition to those behavioral interventions, the team
implemented interventions to assist C.M. academically. The
team realized that C.M. had begun to experience academic
difficulties, and it arranged for him to receive extra reading
lessons four days a week and participate in an after-school
basic-skills program twice a week.
Finally, the intervention team established a plan for
monitoring the effects of these interventions, and it scheduled
a second meeting for November 18 to assess the effects of the
interventions.
C. The Results of the McGuffog Report and the
Broadening Evaluation of C.M.
In early October, Dr. McGuffog completed a forty-eight-
page report on her evaluations and shared it with C.M.’s
parents. That report provided a detailed analysis of C.M.’s test
results, and they were quite mixed. In several areas, C.M.
demonstrated cognitive strength and normal development,
such as a very high nonverbal intelligence, advanced
mathematical skills, an average working memory, and average
5
reading scores. But the test results also revealed areas of
concern. C.M. had a notable weakness in inhibitory control,
and although he barely met the minimum age requirement for
one of the tests, it showed that he had significant problems with
attentional regulation and impulsivity. The variation in the test
results led Dr. McGuffog to observe that C.M. “presents with
a complex array of neurocognitive strengths and weaknesses
that poses a challenging diagnostic challenge, particularly
given his young age.” McGuffog Neuropsychological
Evaluation Report at 36 (Oct. 8, 2015) (JA1720).
Despite the challenges, Dr. McGuffog made certain
diagnoses. She determined that C.M. had three disorders: a
language disorder, a social (pragmatic) communication
disorder, and a specific learning disorder. She further
recognized that C.M.’s test results were suggestive of autism
and ADHD, but due to the combination of C.M.’s strengths,
weaknesses, and young age, Dr. McGuffog declined to
diagnose him with autism or ADHD. Instead, she issued ‘rule-
out diagnoses’ for autism and ADHD, meaning that while she
did not diagnose those conditions, she could not rule them out
either.
Dr. McGuffog also made several recommendations for
Summit with respect to C.M.’s schooling. She suggested that
C.M. receive instruction in social skills, especially by means
of a social-skills group. She encouraged Summit to implement
behavioral supports and to provide academic support in
language arts. She also recommended that C.M. undergo two
more evaluations – one for speech and language, the other for
occupational therapy.
Even before it received those recommendations, Summit’s
intervention team had begun – on its own – to implement many
of those interventions, such as the use of a social-skills group
and a number of behavioral supports. And by early February
2016, Summit had implemented all of Dr. McGuffog’s
recommendations for C.M.’s schooling.
6
Dr. McGuffog also made recommendations for C.M.’s
parents. Based on those recommendations, they retained an
occupational therapist and a psychologist to evaluate C.M. and
prepare reports on their findings. Also, on Dr. McGuffog’s
advice, the parents scheduled weekly appointments for C.M.
with an occupational therapist and a psychologist.
D. C.M.’s Parents Request that Summit Evaluate
C.M. for Special Education
Although not recommended in the McGuffog Report,
C.M.’s parents requested, on October 26, 2015, that Summit
evaluate C.M. for special education and related services. In
response, Summit assembled a multidisciplinary group of nine
staff members and other professionals to formulate a plan for
evaluating C.M. 1 And in a meeting with C.M.’s parents and
Dr. McGuffog on November 11, that group offered to use every
procedure at its disposal to evaluate C.M.
After that meeting, Summit formulated a proposal that
included five evaluations of C.M. in different areas. Summit
proposed a speech-and-language evaluation, a physical therapy
assessment, a social assessment, a psychological evaluation,
and an occupational therapy functional assessment. Summit
further proposed that each of those evaluations be conducted
by an appropriately qualified person: a speech-language
specialist, a physical therapist, a social worker, a psychologist,
and an occupational therapist. C.M.’s parents consented to that
plan.
1
The group included a learning consultant, a psychologist, a
social worker, a speech-language specialist, an occupational
therapist, the principal, C.M.’s teacher, and two graduate-level
psychology interns.
7
E. Summit’s Review of Its Initial Interventions
While the five evaluations were getting underway, the
intervention team met on November 18 to review the
previously implemented interventions. The team concluded
that C.M. was making progress and that the interventions were
working. The incentive to earn Pokémon cards daily had
reduced C.M.’s outbursts to two for the entire month-and-a-
half period. In addition to his behavioral growth, C.M. was
making clear progress with his social skills. The intervention
team also learned that C.M.’s teacher had, in line with Dr.
McGuffog’s recommendations, implemented some additional
sensory interventions, such as Velcro under his desk, to help
him sit still and pay attention. The team found that C.M. used
those interventions and seemed to like them. C.M. also
improved academically in fifteen areas, such as his reading
level, his use of writing conventions, and his mathematical
algebraic thinking.
Because C.M. had made meaningful progress and the
interventions were successful, the intervention team decided to
continue all of them. As far as making another assessment of
C.M.’s progress, the team decided to hold another meeting
after the five evaluations were completed.
F. Summit’s Determination, on February 8, 2016, that
C.M. Was Ineligible for Special Education
By early February 2016, Summit had amassed an array of
data on whether C.M. was eligible for special education. It had
the materials provided by C.M.’s parents: the McGuffog
Report, as well as supplemental reports from C.M.’s
occupational therapist and psychologist. The occupational
therapist determined that C.M. had delays in gross motor and
fine motor skills and that he had difficulty in coordination and
self-regulating. The psychologist, after observing C.M. in the
classroom, reported that he was participating independently,
and although his attention wandered, it was restored with
8
prompts. Overall, the psychologist found that C.M. was not
disruptive and that he could answer his teacher’s questions.
Summit also had the results of the five evaluations that it
performed specifically to evaluate C.M. for special education.
The assessment of C.M.’s speech and language abilities
involved two tests administered by a certified and licensed
speech-language pathologist. 2 C.M. scored in the 50th and
17th percentile on those. But to be communication impaired,
a child must score in the tenth percentile or below on two
assessments – and C.M. was not in that range on either test.
The results of the physical therapy evaluation, performed
by a physical therapist, reported areas of weakness. Those
included decreased attention as well as proximal shoulder and
hip joint weakness. But those issues did not affect C.M.’s gross
motor function during his school-day routine.
The social assessment, performed by a licensed social
worker, did not report any social concerns in the classroom.
The assessment found that C.M. got along well with his peers,
having made two friendships, and that he was very gentle,
sweet, and kind to other students, except when he felt that he
or someone else was the victim of an injustice (which was
infrequent). The social worker also observed that C.M. would
fidget and could get off task, but that was easily remedied with
redirection.
The psychological evaluation, performed by the school
psychologist, similarly determined that C.M. was generally
focused and on task, but that he required occasional adult
redirection. Like the social assessment, the psychological
2
The two tests were the Comprehensive Assessment of Spoken
Language (‘CASL’) and the Language Processing Test
Elementary -3 (‘LPT-3’).
9
evaluation described C.M. as friendly, cooperative, and
extremely polite. It also concluded that C.M. had a positive
attitude toward school, his family, and his peers.
The final evaluation – an occupational therapy assessment
performed by a registered occupational therapist – revealed
that C.M.’s gross motor skills, fine motor skills, and bilateral
motor skills were in the functional range. The occupational
therapist further determined that C.M. could perform school-
related tasks, but that for unfamiliar directions, he needed
repetition and benefited from one-on-one guidance.
Summit also gathered data on C.M. from several other
sources. Those included samples of C.M.’s work, paperwork
from the intervention team, and comments from C.M.’s parents
and Dr. McGuffog. In addition, Summit reviewed C.M.’s
report card, on which his teacher remarked that he had
developed “a greater understanding of the routines and
expectations of first grade,” had “made strides with
organizational skills since the start of the year,” and was
“practicing patience and self-control.” Pupil Progress Report
(Grade 1) at 4 (JA1752).
To evaluate all of that data and assess C.M.’s eligibility for
special education, Summit designated a group of fourteen staff
members and other professionals from multiple disciplines. 3
After considering the compiled data and sharing it with C.M.’s
parents, the group held a meeting on February 8, 2016, with
3
The group consisted of the school psychologist, the school
social worker, the school principal, the supervisor of special
education, a learning disabilities teacher consultant, two
physical therapists, two occupational therapists, C.M.’s
general-education teacher, C.M.’s basic-skills teacher, an
expert certified in speech-language pathology, and two
graduate-level psychology interns.
10
C.M.’s parents, Dr. McGuffog, and C.M.’s special-education
advocate.
That meeting ended with a determination that C.M. did not
meet the eligibility requirements for special education and
related services. All fourteen members of Summit’s evaluation
team agreed with that conclusion either because C.M. did not
have a disability or because C.M did not need special education
and related services. In support of that decision, Summit’s
team relied on the positive effects of the strategic behavioral
interventions, which reduced the incidents of poor behavior.
The group also recognized C.M.’s progress in reading and
math as well as the behavioral improvements noted on his
report card. Summit’s staff understood that C.M. still had
some weaknesses, but because he had positively responded to
the interventions, they decided to continue to implement those
in lieu of special education and related services.
C.M.’s parents, Dr. McGuffog, and C.M.’s special-
education advocate disagreed with the conclusion that C.M.
was ineligible for special education. Consistent with that
belief, C.M.’s parents continued to have their son evaluated by
Dr. McGuffog. They also retained a speech pathologist, Alana
Fichtelberg, to conduct additional evaluations of C.M. Both of
those professionals issued additional reports at the parents’
request. In early 2017, Dr. McGuffog concluded that C.M.
should be diagnosed with autism and ADHD.
After Summit received Dr. McGuffog’s recommendation,
it referred C.M. to a psychiatrist who diagnosed him with
autism and ADHD. In April 2017, Summit determined that,
based on the autism diagnosis, C.M. needed special education
and related services, and it began developing an individualized
education program (an ‘IEP’) for him. C.M.’s parents agreed
to that IEP in August 2017, shortly before C.M. entered third
grade.
In July 2019, C.M. left Summit to enroll in a private school.
11
II. PROCEDURAL HISTORY AND
JURISDICTIONAL ANALYSIS
While they continued to have C.M. evaluated, C.M.’s
parents also formally challenged Summit’s adverse eligibility
decision from February 8, 2016. They did so by filing a due
process complaint on May 25, 2016, with the Office of Special
Education of New Jersey’s Department of Education. See
20 U.S.C. § 1415(b)(7). That complaint alleged violations of
the IDEA and § 504 of the Rehabilitation Act.
The due process complaint prompted an impartial due
process hearing, see 20 U.S.C. § 1415(f)(1)(A), which took
place over several dates between July 2017 and June 2018.
Seven witnesses testified at the hearing. Both parties
introduced documentary evidence that Summit’s staff
considered at the time of the eligibility determination. C.M.’s
parents introduced the later-prepared reports from Dr.
McGuffog and Fichtelberg, but the hearing officer did not
consider them in reaching his determination because Summit
“did not have this information available at the time of the initial
determination.” Hearing Officer Final Decision at 18 (Oct. 12,
2018) (JA50).
In October 2018 – about fourteen months after Summit had
formalized an IEP for C.M. – the hearing officer issued a
decision upholding Summit’s determination that C.M. was not
eligible for special education as of February 8, 2016. In
reaching that conclusion, the hearing officer found that
Summit’s witnesses were “very credible,” id. at 17 (JA49), but
he discounted the testimony from C.M.’s mother and Dr.
McGuffog. The problems with C.M.’s mother’s testimony
were that she was “combative and obstinate,” she “seemed to
not want to respond,” and she “hesitated sometimes when
answering simple questions.” Id. The hearing officer also did
not afford a great deal of weight to Dr. McGuffog’s testimony
on several grounds: she “appeared upset” that her
recommendations were not implemented; she dismissed
12
C.M.’s report cards without proper justification; and, with
respect to at least one issue, she did not convey “[a] fair reading
of her first report.” Id. at 18 (JA50). Substantively, after
reviewing Summit’s evaluations and considering C.M.’s
positive responses to the interventions, the hearing officer
concluded that Summit had satisfied its child-find obligations
as of February 8, 2016.
In March 2020, about a year and a half after the hearing
officer’s dismissal of the due process complaint – and after
C.M.’s parents had enrolled him in private school in July 2019
– C.M.’s parents initiated this civil action in the District Court.
They claimed that Summit violated the IDEA and § 504 of the
Rehabilitation Act, and they sought several forms of relief.
Those included compensatory education for the time when
C.M. was allegedly denied a FAPE (February 2016 through
August 2017), an order requiring Summit to amend C.M.’s IEP
to include services and interventions that Dr. McGuffog and
Fichtelberg recommended after the February 2016 eligibility
decision, and reimbursement for the costs of C.M.’s private-
school education. By asserting those claims, the complaint fell
within the District Court’s subject matter jurisdiction. See
20 U.S.C. § 1415(i)(2)(A), (3)(A) (allowing parties aggrieved
by the decision of a hearing officer after an IDEA due process
hearing to file a civil action in federal district court); 28 U.S.C.
§ 1331; Mengine v. Runyon, 114 F.3d 415, 418 (3d Cir. 1997)
(recognizing that 28 U.S.C. § 1331 grants district courts
jurisdiction over Rehabilitation Act claims).
The parties cross-moved for summary judgment, and the
District Court ruled in Summit’s favor. It held that Summit
satisfied its child-find obligation and did not violate § 504 of
the Rehabilitation Act. The District Court also refused to enter
a declaratory judgment that Summit was responsible for
C.M.’s private-school tuition because that claim had not been
exhausted administratively. Finally, the District Court rejected
the parents’ arguments that the hearing officer’s credibility
judgments were improper, that the McGuffog and Fichtelberg
13
post hoc reports should be considered, and that Summit had to
amend its IEP.
The parents timely appealed the District Court’s final order,
bringing this case within this Court’s appellate jurisdiction.
See 28 U.S.C. § 1291.
III. DISCUSSION
A. The Denial-of-FAPE Claim Based on a Breach of
the Child-Find Duty
As Spending Clause legislation, the IDEA may impose
conditions on school districts in return for their receipt of
federal funding. See Arlington Cent. Sch. Dist. Bd. of Educ. v.
Murphy, 548 U.S. 291, 295 (2006) (“Congress enacted the
IDEA pursuant to the Spending Clause.”); see generally
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17
(1981). Consistent with that constitutional authority, the IDEA
places two significant responsibilities on school districts with
respect to children with disabilities: the child-find obligation
and the duty to provide a free appropriate public education,
commonly referred to as a ‘FAPE,’ to children with
disabilities. See D.K. v. Abington Sch. Dist., 696 F.3d 233, 244
(3d Cir. 2012) (“[S]chools must: (1) identify children in need
of special education services (Child Find); and (2) provide
a FAPE to disabled students.”). 4
4
See also 20 U.S.C. § 1401(3)(A) (defining “child with a
disability” as having two elements: a qualifying disability
and a need for special education and related services); N.J.
Admin. Code § 6A:14-3.5(c) (conditioning eligibility for
special education and related services on three requirements:
(i) the child must have a qualifying disability; (ii) the child
must have a need for special education and related services;
14
The child-find obligation requires school districts to
“identif[y], locate[], and evaluate[]” all “children with
disabilities . . . who are in need of special education and related
services.” 20 U.S.C. § 1412(a)(3)(A); see also id. § 1401(29)
(defining “special education”), (26) (defining “related
services”). A school district has a duty to evaluate a child for
a disability upon “notice of behavior that is likely to indicate a
disability.” D.K., 696 F.3d at 250 (quoting Ridley Sch. Dist. v.
M.R., 680 F.3d 260, 271 (3d Cir. 2012)); see also P.P. ex rel.
Michael P. v. West Chester Area Sch. Dist., 585 F.3d 727, 738
(3d Cir. 2009) (explaining that the child-find duty requires
school districts to evaluate “all students who are reasonably
suspected of having a disability under the statute[]”). Once a
school district has such a reasonable suspicion that a child has
a disability, it has a reasonable time to evaluate “the specific
problems a potentially disabled student is having.” D.K.,
696 F.3d at 250; see Ridley, 680 F.3d at 271.
The IDEA also imposes specific requirements for
evaluating a child who is reasonably suspected of having a
disability. In conducting an evaluation, a school district must
assess the child “in all areas of suspected disability,” 20 U.S.C.
§ 1414(b)(3)(B), but that does not require the evaluation to be
“designed to identify and diagnose every possible disability,”
D.K., 696 F.3d at 250. See P.P., 585 F.3d at 738–39 (finding
no child-find violation where a school district failed to identify
disabilities that were not reasonably suspected at the time).
Also, a school district’s assessment must seek to gain “relevant
information” about the “educational needs of the child” to
determine if the child needs special education and related
services. 20 U.S.C. § 1414(b)(3)(C); see also W.A. v. Hendrick
Hudson Cent. Sch. Dist., 927 F.3d 126, 145 (2d Cir. 2019)
(finding no child-find violation where “there was no reason to
suspect that special education was needed to remedy [the
child’s] disability”). The IDEA further requires a school
and (iii) the child’s disability must adversely affect his or her
educational performance).
15
district’s evaluation to be “administered by trained and
knowledgeable personnel,” 20 U.S.C. § 1414(b)(3)(A)(iv),
who must use “a variety of assessment tools and strategies,” id.§ 1414(b)(2)(A), along with “technically sound instruments,”
id. § 1414(b)(2)(C). See also id. § 1414(c)(1)(A) (requiring
school districts to review “data on the child” from several
different sources). It is not enough for a school district to rely
on a “single measure or assessment as the sole criterion,” id.
§ 1414(b)(2)(B), or to use assessment methods in ways that are
not “valid and reliable,” id. § 1414(b)(3)(A)(iii). See also id.
§ 1414(b)(3)(A)(i) (prohibiting the use of evaluation materials
that are “discriminatory on a racial or cultural basis”). If a
school district meets these statutory requirements for
identifying, locating, and evaluating a child with disabilities,
then it discharges its child-find obligation.
After identifying a child with a disability who is also in
need of special education and related services, a school district
is obligated to provide a FAPE to the disabled child. See
20 U.S.C. § 1412(a)(1)(A); see also id. § 1401(3) (defining
“child with a disability”). To do so, a school district, in
coordination with the child’s parents, should develop an IEP
and provide special education and related services to the
disabled child. See Schaffer v. Weast, 546 U.S. 49, 53 (2005)
(explaining that “[t]he core of the [IDEA] . . . is the cooperative
process that it establishes between parents and schools”); see
also 20 U.S.C. § 1401(9) (defining “free appropriate public
education”); id. § 1414(d) (defining “individualized education
program”). Together, the child-find duty and the FAPE
obligation require public schools to “identify and effectively
educate” disabled children. P.P., 585 F.3d at 735 (explaining
further that if disabled children “require specialized services
that the public institution cannot provide,” then the school must
“pay for their education elsewhere”).
The IDEA creates a cause of action against a school district
that fails to provide a FAPE to a child who has a disability and
needs special education and related services. See 20 U.S.C.
16
§ 412(a)(1)(A); id. § 1415(f)(3)(E)(i)–(ii), (i)(2). Due to the
relationship between the child-find obligation and the duty to
provide a FAPE, a denial-of-FAPE claim may be premised on
a child-find violation. 5 Such a claim has three elements. First,
the child must have a disability for which he or she needs
special education and related services. See 20 U.S.C.
§§ 1412(a)(1)(A) (entitling all “children with disabilities” to a
FAPE), 1401(3)(A) (defining “child with a disability” as a
child with a qualifying disability and a need for special
education and related services). Second, the school district
must breach its child-find duty. See 20 U.S.C.
§ 1412(a)(3)(A); P.P., 585 F.3d at 738; Mr. P v. West Hartford
Bd. of Educ., 885 F.3d 735, 750 (2d Cir. 2018). Third, the
school district’s child-find breach must impede the child’s
right to a FAPE, or, alternatively, the child-find breach must
either “significantly impede[]” parental participation rights or
“cause[] a deprivation of educational benefits.” 20 U.S.C.
§ 1415(f)(3)(E)(ii)(I)–(III); see D.K., 696 F.3d at 249
(characterizing a breach of the child-find duty as a procedural
violation); D.S., 602 F.3d at 565 (recognizing that “[a]
procedural violation is actionable under the IDEA only if it
results in a loss of educational opportunity for the student,
seriously deprives parents of their participation rights, or
causes a deprivation of educational benefits”).
To pursue a denial-of-FAPE claim premised on a breach of
the child-find duty, parents must first file an administrative
grievance, known as a ‘due process complaint,’ against the
school district. See 20 U.S.C. § 1415(b)(6)(A); see also id.§ 1415(b)(7)(A) (stating that a due process complaint must
include the child’s name and address, the name of the child’s
5
Another recognized category of denial-of-FAPE claims
encompasses challenges to a school district’s failure to provide
a FAPE after a school district has determined that a child has a
disability and is in need of special education and related
services. See, e.g., Endrew F., 137 S. Ct. at 998–99; D.S. v.
Bayonne Bd. of Educ., 602 F.3d 553, 556–57 (3d Cir. 2010).
17
school, a description of the problem, and a proposed
resolution); Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d
266, 272 (3d Cir. 2014). A due process complaint may be
resolved either through mediation, see 20 U.S.C. § 1415(e)(1),
or by a hearing officer at a due process hearing, which is an
impartial state- or local-level administrative adjudicatory
process, see id. § 1415(f)(1)(A). See generally 2 Ronna Greff
Schneider & Phyllis E. Brown, Education Law: First
Amendment, Due Process and Discrimination Litigation § 6:9
(Oct. 2019 update); Charles J. Russo & Ralph D. Mawdsley,
Education Law § 5.07 (2021). Absent the consent of the other
party, only the grievances presented in the due process
complaint may be raised by the party who requested the due
process hearing. See 20 U.S.C. § 1415(f)(3)(B). After the due
process hearing, the hearing officer makes findings and
determinations to resolve the claim. See id. § 1415(f)(3)(E).
A party aggrieved by the hearing officer’s decision may
commence a civil action in federal district court and seek “such
relief as the court determines is appropriate.” Id.
§ 1415(i)(2)(C)(iii). But a civil action brought in federal court
after a due process hearing can relate only to “the complaint
presented” at the hearing. Id. § 1415(i)(2)(A); see Batchelor,
759 F.3d at 272 (“In the normal case, exhausting the IDEA’s
administrative process is required in order for the statute to
grant subject matter jurisdiction to the district court.” (citation,
alteration, and internal quotation marks omitted)); Chambers
v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 186 n.14 (3d
Cir. 2009) (“[A] party seeking judicial relief from the decision
of state administrative proceedings may do so only to the
extent that the party sought such relief in those proceedings.”).
When it reviews a hearing officer’s decision, a district court
applies a unique “modified de novo” standard of review, under
which it gives “due weight” to the hearing officer’s
determinations while it bases its own decision on the
preponderance of the evidence. Ridley, 680 F.3d at 268; see
20 U.S.C. § 1415(i)(2)(C)(iii); S.H. v. State-Operated Sch.
Dist. of Newark, 336 F.3d 260, 270 (3d Cir. 2003).
18
The civil action brought by C.M.’s parents contains two
denial-of-FAPE claims, which were presented in their due
process complaint. Both of those claims are premised on child-
find violations. First, C.M.’s parents assert that Summit
violated its child-find obligation by misconstruing the data
indicating that C.M. had a specific learning disability. Second,
they claim that Summit breached its child-find duty by not
further evaluating whether C.M. had autism or ADHD. The
success of both claims hinges on the second element of a child-
find claim: a breach of the child-find duty. 6 As explained
below, Summit did not breach its child-find obligation in either
respect.
1. The Claim that Summit Breached Its Child-
Find Obligation with Respect to Diagnosing
a Specific Learning Disability
C.M.’s parents first contend that Summit violated its child-
find duty by erroneously concluding that C.M. did not have a
specific learning disability as of February 8, 2016. As defined
by the IDEA (and similarly by New Jersey regulation), the term
‘specific learning disability’ generally means a psychological
impairment in reading, written or oral expression, or math:
[It is] a disorder in [one] or more of the basic
psychological processes involved in
understanding or in using language, spoken or
written, which disorder may manifest itself in the
6
There is no dispute that C.M. satisfies the other two elements
of a child-find claim. For the first element, C.M. was
eventually diagnosed with a disability – autism – for which he
needed special education and related services. Under the third
element, Summit did not determine that C.M. qualified for
special education and related services until April 2017.
19
imperfect ability to listen, think, speak, read,
write, spell, or do mathematical calculations.
20 U.S.C. § 1401(30)(A); see also N.J. Admin. Code § 6A:14-
3.5(c)(12). 7 New Jersey allows school districts to use two
methods to evaluate a specific learning disability: the severe-
discrepancy approach and the response-to-intervention
approach. See N.J. Admin. Code § 6A:14-3.5(c)(12)(i), (ii).
Under either method, New Jersey requires school districts to
provide specific documentation of its assessment. See id.
§ 6A:14-3.4(h)(4).
a. The Severe-Discrepancy Approach to
Identifying a Specific Learning
Disability
The first method for identifying a specific learning
disability is the severe-discrepancy approach. Consistent with
its name, that method examines whether there is a severe
discrepancy “between the student’s current achievement and
intellectual ability in one or more [areas of academic
aptitude].” N.J. Admin. Code § 6A:14-3.5(c)(12)(i). If a
school district uses the severe-discrepancy approach, New
Jersey requires it to “adopt procedures that utilize a statistical
formula and criteria for determining severe discrepancy.” Id.
§ 6A:14–3.5(c)(12)(iv). In line with that requirement, Summit
has determined that a 22-point differential between a child’s
7
The IDEA further clarifies that the term ‘specific learning
disability’ includes “perceptual disabilities, brain injury,
minimal brain dysfunction, dyslexia, and developmental
aphasia,” and it excludes “a learning problem that is primarily
the result of visual, hearing, or motor disabilities, of
intellectual disabilities, of emotional disturbance, or of
environmental, cultural, or economic disadvantage.”
20 U.S.C. § 1401(30)(B)–(C); see also N.J. Admin. Code
§ 6A:14-3.5(c)(12).
20
achievement and intellectual ability constitutes a severe
discrepancy.
When he was tested in July and August 2015, C.M.’s
measured achievement in three areas was below 90, 8 but his
full-scale IQ was 113. Because C.M.’s scores in those three
areas were over 22 points below his I.Q. score, he would
qualify as having a specific learning disability in those three
areas under the severe-discrepancy approach.
Critically, however, the IDEA contains a specific exception
to the severe-discrepancy approach. Under that provision, a
school district may use the severe-discrepancy method to find
a specific learning disability, but it is not required to use that
approach – or even consider the results of that approach for
child-find purposes:
[W]hen determining whether a child has a
specific learning disability as defined in section
1401 of this title, a local educational agency shall
not be required to take into consideration
whether a child has a severe discrepancy
between achievement and intellectual ability in
oral expression, listening comprehension,
written expression, basic reading skill, reading
comprehension, mathematical calculation, or
mathematical reasoning.
20 U.S.C. § 1414(b)(6)(A) (emphasis added).
Thus, although New Jersey regulations permit the severe-
discrepancy method, a school district does not violate its child-
find obligation by disregarding the results of the severe-
discrepancy approach. Yet if a school district relies on that
8
C.M. measured at 83 in listening comprehension, 89 in
sentence composition, and 88 in pseudoword decoding.
21
approach, then a severe discrepancy establishes only that the
child has a specific learning disability, and a separate inquiry
is needed to ascertain whether the student needs special
education and related services.
Here, Summit did not violate its child-find obligation by
not considering the results of the severe-discrepancy approach.
Summit could have relied on that approach to conclude that
C.M. had specific learning disabilities in three areas where his
aptitude scores were below 90. But Summit was not required
to do so. See 20 U.S.C. § 1414(b)(6)(A). Nor did it violate its
child-find duty by giving no consideration to the results of the
severe-discrepancy approach in assessing C.M. for a specific
learning disability. See id.b. The Response-to-Intervention
Approach to Identifying a Specific
Learning Disability
The second method allowed in New Jersey to evaluate a
specific learning disability is the response-to-intervention
approach. That method applies increasingly intensive and
individualized instruction to a child and evaluates the child’s
progress in response to that intervention. See 20 U.S.C.
§ 1414(b)(6)(B); N.J. Admin. Code § 6A:14–3.5(c)(12)(ii);
see also Michael P. v. Dep’t of Educ., 656 F.3d 1057, 1061–62
(9th Cir. 2011). If the child responds positively to the
intervention, then he or she does not have a specific learning
disability for which special education and related services are
needed. But if the child responds negatively to the intervention
or responds in a neutral way, then the child does have a specific
learning disability and is in need of special education and
related services. Thus, the response-to-intervention approach
can function as a two-for-one: a negative or neutral response to
intervention indicates that the child has a specific learning
disability and is in need of special education and related
services.
22
Through its intervention team, Summit started using the
response-to-intervention approach a month into C.M.’s first-
grade year. That team reviewed C.M.’s classroom behavior,
and then it designed and implemented specific interventions to
assist him. After implementing the first round of interventions
for a month and a half, the team evaluated C.M.’s response and
concluded that the interventions were working well.
As part of its evaluation of C.M.’s eligibility for special
education and related services, a broader group of twelve
members of Summit’s staff reevaluated C.M.’s response to
Summit’s interventions about two and a half months after
Summit’s first evaluation. After that more comprehensive
review, based on a larger data set, that group also determined
that C.M. had benefited from the interventions and was making
progress during his first five months of first grade. 9
On this record, Summit did not violate its child-find duty
by concluding that C.M. did not have a specific learning
disability. Both the intervention team and the specially
assembled evaluation group consisted of “trained and
knowledgeable personnel.” 20 U.S.C. § 1414(b)(3)(A)(iv).
And they gained relevant information about C.M.’s
educational needs through a recognized method – incremental,
9
C.M.’s parents argue that Summit improperly implemented
the response-to-intervention method in violation of federal and
New Jersey regulations. They cite 34 C.F.R. § 300.309(b)(2);
id. § 300.311(a)(1), (7); and N.J. Admin. Code § 6A:14-
3.4(h)(6)(i). But without an explanation as to how those
alleged procedural violations affected the reliability of
Summit’s substantive findings, the parents’ argument does not
provide a basis for discrediting Summit’s reliance on the
response-to-intervention approach. See D.S., 602 F.3d at 565–
66 (declining to award relief to parents based on an alleged
procedural violation where the school district “substantially
satisfied” the IDEA’s requirements).
23
potentially escalating interventions based on different tools and
strategies. See id. § 1414(b)(3)(C), (b)(2)(A). Having met the
relevant statutory requirements and having observed that
C.M.’s classroom behavior and academic performance
improved in response to interventions, Summit met its child-
find obligations even though it concluded that, as of
February 8, 2016, C.M. did not need special education and
related services for a specific learning disability.
2. The Claim that Summit Breached Its Child-
Find Obligation by not Evaluating C.M.
Further for Autism and ADHD
C.M.’s parents and amici also assert that Summit violated
its child-find obligation by not specifically evaluating C.M. for
autism and ADHD by February 8, 2016. 10 Their challenge
depends on whether Summit had “notice of behavior that is
likely to indicate” one of those disabilities as of that date. D.K.,
696 F.3d at 250 (quoting Ridley, 680 F.3d at 271). For context
on that notice issue, both parties recognize that behavioral
issues and academic struggles are typical in early childhood,
especially in the transition to first grade. And although C.M.’s
parents had Dr. McGuffog administer a battery of sixteen tests
to C.M. over the summer before he entered first grade, they did
not alert Summit to C.M.’s behavioral issues before the school
year. Thus, it was not until after C.M. started first grade that
Summit had notice of his occasional outbursts, trouble
maintaining attention, and, later, difficulty with writing. No
one here contends that those behaviors by a six-year-old child
transitioning to first grade sufficed to put Summit on notice
that he may have autism or ADHD. See D.K., 696 F.3d at 251
10
The IDEA does not define autism or ADHD, which is an
abbreviation for attention deficit hyperactivity disorder. But
New Jersey regulations define ‘autism,’ see N.J. Admin. Code
§ 6A:14–3.5(c)(2), and the term ‘other health impairment,’ as
defined in the regulation, encompasses ADHD, see id.
§ 6A:14–3.5(c)(9).
24
(explaining that, in early primary-school years, “hyperactivity,
difficulty following instructions, and tantrums are not atypical”
and that those behaviors alone do not necessarily raise a
reasonable suspicion that the child has a disability). Rather,
the dispute centers on Summit’s child-find duty after C.M.’s
parents shared the McGuffog Report – with its rule-out
diagnoses for autism and ADHD.
Amici urge a new rule for rule-out diagnoses. They assert
that under the child-find duty, a rule-out diagnosis triggers an
obligation to assess a child specifically for the condition that
cannot be ruled out. But no such bright-line rule exists under
the IDEA. And this case demonstrates why. Dr. McGuffog
declined to conclude that C.M. had autism or ADHD in large
part due to his young age, and she noted that his academic
struggles were very new. She also recognized that C.M.
exhibited a “complex array of neurocognitive strengths and
weaknesses,” and posed a “diagnostic challenge, particularly
given his young age.” McGuffog Neuropsychological
Evaluation Report at 36 (Oct. 8, 2015) (JA1720). Thus, by its
own terms, the McGuffog Report concluded that it was too
early to diagnose C.M. for autism or ADHD – one way or the
other. In light of that conclusion and without additional
behavior that indicated a likelihood of autism or ADHD,
Summit did not violate its child-find duty by not immediately
evaluating C.M. for those disabilities – especially since doing
so would involve re-administering several of the same tests that
Dr. McGuffog administered just months beforehand. 11
11
That is not to say that a rule-out diagnosis has no role in the
child-find analysis: if the rule-out diagnosis is based on reliable
evaluations and assessments, then, in combination with other
circumstances, it may contribute to the likelihood that a child
has a disability. But a rule-out diagnosis alone does not compel
a school district to conduct additional specific evaluations,
25
Without advocating for a bright-line rule, C.M.’s parents
argue that Summit violated the child-find duty by not
evaluating C.M. specifically for autism and ADHD before
classifying him as ineligible for special education and related
services. But Summit made that eligibility decision only six
months after Dr. McGuffog evaluated C.M. And without C.M.
exhibiting appreciably more symptoms, Summit did not breach
its child-find duty despite its conclusion that C.M. was still too
young to be evaluated specifically for autism and ADHD.
C.M.’s parents’ child-find argument comes undone more
decisively due to Summit’s active response to C.M.’s behavior.
After C.M.’s parents requested special education, Summit
began a multidisciplinary assessment of C.M. consisting of
five separate evaluations, each conducted by a trained and
knowledgeable professional. Although those tests revealed
developmental weaknesses, none were significant, and they
were offset by evidence of strength and progress. See Ridley,
680 F.3d at 272 (“[J]ust because a child has an area of
weakness, it doesn’t necessarily mean that she has a disability.”
(citation and alteration omitted)).
In addition to those five multidisciplinary evaluations,
Summit intervened to address C.M.’s behavioral issues. With
those interventions – which began during C.M.’s first month of
school, before Dr. McGuffog completed her report or proposed
any interventions – his social skills started to improve, and his
incidents of misbehavior became infrequent.
Similarly, Summit intervened in response to C.M.’s
emerging academic difficulties. It provided him extra reading
lessons four days a week and enrolled him in an after-school
‘basic skills’ program that met twice a week to reinforce his
reading and math skills. Afterwards, C.M. demonstrated
much less to re-administer the same tests that led to the rule-
out diagnosis.
26
measurable improvement in fifteen areas of academic
performance.
Based on the additional five multidisciplinary evaluations
and the progress that C.M. was making without special
education in both areas of concern (his problematic behaviors
and his emerging academic struggles), Summit did not breach
its child-find obligations by concluding that C.M. did not need
special education as of February 8, 2016. See D.K., 696 F.3d
at 252 (upholding a finding that no child-find violation
occurred where the school district’s faculty “did not neglect
[the child’s] difficulties” but rather “took proactive steps to
afford him extra assistance and worked closely with his parents
to maximize his potential for improvement”); Ridley, 680 F.3d
at 272 (holding that no child-find violation occurred where the
school district “appeared to be invested in addressing [the
child’s] needs and provid[ed] appropriate instruction and
interventions before rushing to special education
identification”).
3. The Parent’s Remaining Arguments Against
the District Court’s Rejection of Their IDEA
Claim Do Not Succeed.
a. The District Court Did Not
Improperly Exclude Evidence of
Facts that Arose After Summit
Initially Denied Eligibility.
C.M.’s parents argue that the District Court improperly
excluded evidence of facts that arose after February 8, 2016,
the date that Summit determined that C.M. was ineligible for
special education and related services. Specifically, C.M.’s
parents sought to introduce a total of five reports that were
written after that adverse eligibility determination: three
reports from Dr. McGuffog that related to her multiple
evaluations of C.M. between July 2016 and February 2017, and
two reports from Alana Fichtelberg (the speech pathologist)
27
relating to evaluations of C.M. in July 2016 and February 2017.
The purpose for introducing those reports was to prove “that
Summit’s ineligibility determination was manifestly
unreasonable.” Appellants’ Br. 43. The District Court did not
abuse its discretion in declining to supplement the record with
those reports.
In challenging the outcome of a due process hearing in a
federal district court, a party may seek to supplement the record
with additional evidence. See 20 U.S.C. § 1415 (i)(2)(C)(ii).
But a district court has discretion to exclude evidence that is
irrelevant, cumulative, or otherwise unhelpful. See D.K.,
696 F.3d at 253 (“[T]he court need not consider evidence that
is irrelevant or cumulative . . . .” (citation omitted)); see also
Susan N., 70 F.3d at 760 (“While a district court appropriately
may exclude [post hoc] evidence, a court must exercise
particularized discretion in its rulings so that it will consider
evidence relevant, non-cumulative and useful in determining
whether Congress’ goal has been reached for the child
involved.”). 12
Under the relevance standard, a district court may exclude
post hoc evidence offered to prove a breach of a school
district’s child-find obligation. The IDEA specifies that a
school district’s child-find duty requires a review of “existing
evaluation data on the child.” 20 U.S.C. § 1414(c)(1)(A)
(emphasis added); see also N.J. Admin. Code § 6A:14-3.5(c)
(requiring eligibility determinations to “be based on all
12
See also Maggie Wittlin, Hindsight Evidence, 116 Colum. L.
Rev. 1323, 1389 (2016) (explaining that “the Third Circuit . . .
considers hindsight evidence only to the extent that it is
relevant” to IDEA issues); Note, Dennis Fan, No IDEA What
the Future Holds: The Retrospective Evidence Dilemma,
114 Colum. L. Rev. 1503, 1540 (2014) (explaining that the
“rule allowing retrospective evidence as articulated by the
Third Circuit . . . is best stated as a relevance rule”).
28
assessments conducted” up to the point of decision (emphasis
added)). Thus, the child-find duty is based on the “snapshot of
the student’s condition at the time of the” school district’s
child-find determinations. Lisa M. v. Leander Indep. Sch.
Dist., 924 F.3d 205, 215 (5th Cir. 2019); see also L.J. v.
Pittsburg Unified Sch. Dist., 850 F.3d 996, 1004 (9th Cir.
2017). And evidence of a child’s behaviors or test results
outside of that snapshot – such as reports that did not exist
when a school district decided not to evaluate a child or when
a school district denied eligibility – are not relevant to whether
the school district breached its child-find obligations.
But not all facts arising after an adverse eligibility decision
are irrelevant. Later-occurring facts may be relevant to other
elements of a denial-of-FAPE claim premised on a breach of
the child-find duty. For example, such facts may be relevant
to whether the child had a disability. Similarly, evidence of
later-occurring facts may be relevant to determining how long
or to what degree a school district denied a FAPE to a disabled
child.
Here, the five later-in-time reports were not proffered to
prove that C.M. was disabled or to establish the amount of time
that Summit did not provide special education and related
services. Instead, those reports of C.M.’s performance on
subsequent tests sought to show that the school district
breached its child-find obligation. Yet, as explained above, the
reports are irrelevant to that issue. Accordingly, the District
Court did not abuse its discretion in excluding the five reports
from the record after “considering” them and finding that they
are not “relevant.” J.M. v. Summit City Bd. of Educ., 2020 WL
6281719, at *7 (D.N.J. Oct. 27, 2020). 13
13
Our dissenting colleague fears that preventing the use of post
hoc evidence to prove a breach of the child-find duty
“encourages schools to conduct cursory evaluations in the first
instance.” Dissent at 7–8. He would extend precedent from
29
b. The District Court Did Not Err in
Crediting the Hearing Officer’s
Adverse Credibility Determinations.
C.M.’s parents also contend that the District Court erred by
deferring to the hearing officer’s negative credibility
determination with respect to Dr. McGuffog’s testimony at the
due process hearing.
As a general principle, a reviewing court deferentially
reviews a fact-finder’s assessment of a witness’s credibility.
See Cooper v. Harris, 137 S. Ct. 1455, 1474 (2017) (explaining
that appellate courts “give singular deference to a trial court’s
judgments about the credibility of witnesses” because “the
various cues that ‘bear so heavily on the listener’s
understanding of and belief in what is said’ are lost on an
appellate court later sifting through a paper record” (quoting
Anderson v. Bessemer City, 470 U.S. 564, 575 (1985))). And
in the IDEA context, when a federal court reviews a hearing
officer’s credibility determination, it must credit that
assessment “unless the nontestimonial, extrinsic evidence in
the record would justify a contrary conclusion.” D.K.,
other areas of IDEA jurisprudence to the child-find context.
But the IDEA precludes that approach in the child-find context
because the child-find obligation requires school districts to
review “existing evaluation data on the child.” 20 U.S.C.
§ 1414(c)(1)(A) (emphasis added). And the irrelevance of post
hoc evidence in assessing a child-find breach does not
legitimatize cursory evaluations. To the contrary, this Circuit’s
jurisprudence already recognizes that if a school district
conducts “a poorly designed and ineffective round of testing”
or fails to evaluate a child when “school officials are on notice
of behavior that is likely to indicate a disability,” then the
school district breaches its child-find obligation. D.K.,
696 F.3d at 250; see also 20 U.S.C. § 1414(b)(3)(B) (requiring
school districts to evaluate “in all areas of suspected
disability”).
30
696 F.3d at 243 (quoting Shore Reg’l High Sch. Bd. of Educ. v.
P.S., 381 F.3d 194, 199 (3d Cir. 2004)); see also Ridley,
680 F.3d at 273 n.7.
Here, C.M.’s parents identify no nontestimonial, extrinsic
evidence that contradicts the hearing officer’s adverse
credibility determinations. Without a valid basis to diverge
from the hearing officer’s negative credibility assessments, the
District Court did not err.
c. The District Court Did Not Err by
Rejecting the Claim for Declaratory
Judgment.
C.M.’s parents further contend that the District Court erred
by not entering a declaratory judgment related to two events
that took place after they filed their due process complaint.
Specifically, C.M.’s parents seek a judgment declaring that
Summit should have implemented additional interventions in
its later-developed IEP for C.M. and that Summit owes them
the costs of private-school tuition. Since those events had not
occurred when C.M.’s parents filed their due process
complaint, they were not raised in the due process complaint.
Yet without the consent of the opposing party, which Summit
did not provide, a due process complaint limits the scope of the
issues that may be raised at the due process hearing and later
reviewed in court. See 20 U.S.C. § 1415(f)(3)(B) (preventing
the party who requests the due process hearing from raising
“issues at the due process hearing that were not raised in the
[due process complaint]” without the other party’s consent); id.§ 1415(i)(2)(A) (providing that a party aggrieved by the
hearing officer’s findings and decision may bring a civil action
“with respect to the [due process] complaint presented”).
C.M.’s parents could have sought to amend their due process
complaint once those events occurred. See 20 U.S.C.
§ 1415(c)(2)(E) (describing options for amendment); N.J.
Admin. Code § 6A:14-2.7(i) (same). Or they could have
challenged those events through a separate, later-in-time due
31
process complaint. But they did neither. Without doing so,
they are not entitled to a declaratory judgment on either issue,
and the District Court did not err in rejecting their request for
such relief.
B. The District Court Did Not Err in Rejecting the
Claim Under § 504 of the Rehabilitation Act.
C.M.’s parents also appeal the District Court’s rejection of
their claim under § 504 of the Rehabilitation Act. See
29 U.S.C. § 794. They have not presented any evidence unique
to that claim either at the administrative level or in the District
Court. Rather, they assert a § 504 cause of action purely as a
companion to their denial-of-FAPE claim. Due to the
similarities between the two statutes, it is possible for the same
underlying facts to establish liability for a denial-of-FAPE
claim under the IDEA and a violation of § 504 of the
Rehabilitation Act.
The IDEA and § 504 have several common characteristics.
Both statutes apply to public schools that receive federal
financial assistance. See 20 U.S.C. §§ 1412, 1413; 29 U.S.C.
§ 794(b)(2)(B). And both protect persons with disabilities.
See Endrew F., 137 S. Ct. at 993 (stating that “[a] State
covered by the IDEA must provide a disabled child with . . .
special education and related services”); Ridgewood Bd. of
Educ. v. N.E., 172 F.3d 238, 253 (3d Cir. 1999) (explaining
that § 504 “prohibits discrimination on the basis of disability
in federally funded programs”). Moreover, this Circuit allows
relief under both causes of action as long as the § 504 claim is
presented in the due process complaint consistent with the
IDEA’s exhaustion requirement. See 20 U.S.C. § 1415(l);
Wellman v. Butler Area Sch. Dist., 877 F.3d 125, 131–34 (3d
Cir. 2017).
The two statutes also differ in important respects. They
define the term ‘disability’ differently. Under the
Rehabilitation Act, the child’s disability must limit a major life
32
activity, but the IDEA does not have that requirement.
Compare 29 U.S.C. § 794(a) (incorporating the definition of
“disability” from the Americans with Disabilities Act), with
20 U.S.C. § 1401(3); see also Batchelor, 759 F.3d at 269 n.4
(“Section 504 defines disability more broadly than the IDEA,
and thus, some students covered by Section 504 are not
covered under the IDEA.”); B.C. v. Mount Vernon Sch. Dist.,
837 F.3d 152, 159 (2d Cir. 2016) (explaining that, by defining
‘disability’ differently, the IDEA and § 504 impose “distinct
legal standards” and “provide for different inquiries”). The
statutes also impose different duties to protect persons with
disabilities. Central to the IDEA’s protection of children with
disabilities are the affirmative child-find and FAPE duties, see
20 U.S.C. § 1412(a)(1)(A), (a)(3)(A), but § 504 protects
persons with disabilities by making it illegal for a federally
funded program to discriminate against a disabled person
solely by reason of his or her disability, see 29 U.S.C. § 794(a).
See generally Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 756
(2017) (“[T]he IDEA guarantees individually tailored
educational services, while Title II and § 504 promise non-
discriminatory access to public institutions.”); Matula, 67 F.3d
at 492 (“While [the] IDEA is phrased in terms of a state’s
affirmative duty to provide a free, appropriate public
education, the Rehabilitation Act is worded as a negative
prohibition against disability discrimination in federally
funded programs.”). The IDEA also identifies several specific
components of the affirmative duties that it imposes, see, e.g.,
20 U.S.C. § 1412(a)(3)(A) (describing the child-find duty); id.§ 1412(a)(1)(A) (requiring a participating state to provide a
FAPE to disabled children); id. § 1414 (listing evaluation
procedures and requirements), while § 504 requires a showing
that disability discrimination was the sole cause of a denial of
a benefit, see U.S.C. § 794(a). Also, the statutes differ in the
relief that plaintiffs can obtain, most notably with § 504
allowing plaintiffs to recover compensatory damages when
they can show that the “discrimination was intentional.” D.E.
v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 269 (3d Cir. 2014)
(explaining further that a showing of “negligence or
33
bureaucratic inaction” does not suffice for intentional conduct
(quoting S.H. v. Lower Merion Sch. Dist., 729 F.3d 248, 263
(3d Cir. 2013))); cf. Chambers v. Sch. Dist. of Phila. Bd. of
Educ., 587 F.3d 176, 186 (3d Cir. 2009) (holding that
“compensatory and punitive damages are not an available
remedy under the IDEA”).
Depending on the factual basis for a denial-of-FAPE claim,
the legal differences between the IDEA and § 504 may be of
no moment. A child could meet both definitions of disability,
bring a claim that falls into the overlapping space between the
IDEA’s affirmative duty and § 504’s negative duty, and show
that disability discrimination was the sole cause for the denial
of a FAPE. In those circumstances, liability for a denial-of-
FAPE will also result in liability under § 504. See P.P.,
585 F.3d at 735–36; Ridgewood Bd. of Educ., 172 F.3d at 253;
Andrew M. v. Del. Cnty. Off. of Mental Health & Mental
Retardation, 490 F.3d 337, 349 (3d Cir. 2007). But a denial of
a FAPE is not a per se violation of § 504. See Andrew M.,
490 F.3d at 349.
For this case, it is not necessary to analyze whether the
§ 504 claim may be brought as a companion to the denial-of-
FAPE claim. That is so because C.M.’s parents do not succeed
on their denial-of-FAPE claim, and they offer no additional
evidence in support of their § 504 claim. Thus, even if the facts
of this case rendered the legal differences between the two
statutes immaterial, the failure of the denial-of-FAPE claim
would still foreclose the § 504 claim. Accordingly, the District
Court did not err in rejecting C.M.’s parents’ claim under § 504
of the Rehabilitation Act.
***
For the foregoing reasons, we will affirm the judgment of
the District Court.
34
GREENAWAY, JR., Circuit Judge, dissenting.
The purpose of the Individuals with Disabilities
Education Act (“IDEA”) is to provide equality of educational
opportunity for children with special challenges. Information
regarding a child’s capabilities is key to determining whether
that child qualifies as disabled and what constitutes an
appropriate educational plan. When experts provide
information that can facilitate the provision of an appropriate
educational plan, the school decisionmakers should be armed
with it so they can make an informed judgment. This is
especially true where expert reports are post-hoc—meaning
created after the initial eligibility determination—because they
are prepared when a child’s challenges persist and may be more
comprehensive as well as the product of more time and money
relative to the information upon which the initial eligibility
determination was based.
I believe that the District Court erred in excluding five
reports that were prepared in connection with evaluations of
C.M. that took place after Summit’s February 8, 2016 adverse
eligibility determination. Those reports could have been
relevant in determining whether the school district satisfied its
duty to provide C.M. with a free appropriate public education
(“FAPE”). We should accordingly vacate and remand the
cause to the District Court so that it can apply the appropriate
standard in considering whether to rely on this post-hoc
evidence. I therefore dissent.
When Congress enacted the IDEA, its purpose was to
ensure that states receiving federal education funding provided
students a FAPE. 20 U.S.C. § 1414(d)(1)(A). The FAPE
mandate applies with equal force to children with disabilities.
Pursuant to their child-find obligation, school districts must
1
“identif[y], locate[], and evaluate[]” children with disabilities,
20 U.S.C. § 1412(a)(3)(A), and assess them “in all areas of
suspected disability,” § 1414(b)(3)(B). Schools satisfy their
duty to provide a FAPE to children with disabilities by
developing an Individualized Education Plan (“IEP”). 20
U.S.C. § 1414(d). The IDEA’s purpose can be realized only if
schools vigilantly seek to identify signs of disability—whether
they be behavioral or academic—and tailor a child’s education
accordingly to facilitate educational progress.
In holding that courts can essentially summarily exclude
post-hoc evidence bearing on whether a school district
breached its child-find obligation, I fear that we may have
created a loophole that undermines the IDEA’s purpose and
insulates school districts from liability under the IDEA.
I begin my analysis with the text of the IDEA itself. The
IDEA provides that “[a]ny party aggrieved by the
[administrative] findings and decision” has the right to bring a
civil action during which the court “shall hear additional
evidence at the request of a party.” 20 U.S.C. §
1415(i)(2)(C)(ii). Although we have limited our review to
then-existing evidence in some scenarios, we have also
interpreted “additional evidence” to include post-hoc evidence
in others.
For instance, we have considered post-hoc evidence in
evaluating the reasonableness of an IEP. In Fuhrmann ex rel.
Fuhrmann v. E. Hanover Sch. Dist. Bd. of Educ., we held that
“evidence of a student’s later educational progress may be
considered only in determining whether the original IEP was
reasonably calculated to afford some educational benefit”
when offered. 993 F.2d 1031, 1040 (3d Cir. 1992). For other
inquiries relating to an IEP, the snapshot rule, which bars post-
2
hoc evidence, applies. Under that rule, “the measure and
adequacy of an IEP can only be determined as of the time it is
offered to the student, and not at some later date.” Id.In Susan N. v. Wilson Sch. Dist., we extended
Fuhrmann beyond the IEP context to the broader IDEA
eligibility context. In that case, we held that the district court
erred in summarily excluding additional evidence that was not
available when a school district determined that a child was
ineligible for special education. 70 F.3d 751, 755, 759-62 (3d
Cir. 1995). Extending Fuhrmann, we held that “after-acquired
evidence . . . should be used by courts only in assessing the
reasonableness of the district’s initial decisions regarding a
particular IEP or the provision of special education services at
all.” Id. at 762 (emphasis added).
Of note, Susan N. requires courts to consider the post-
hoc evidence—it does not require courts to incorporate that
evidence into its findings. Specifically, it provides:
While a district court appropriately may exclude
additional evidence, a court must exercise particularized
discretion in its rulings so that it will consider evidence
relevant, non-cumulative and useful in determining
whether Congress’ goal has been reached for the child
involved. Consequently, on the remand the district
court should use this standard in determining whether to
admit the proffered additional evidence, i.e., would the
evidence assist the court in ascertaining whether
Congress’ goal has been and is being reached for the
child involved.
3
Id. at 760. 1 While courts are required to consider post-hoc
evidence, they must also heed Susan N.’s warning to review
that evidence “carefully” given the “dangers inherent in . . .
second-guessing the decisions of a school district with
information to which it could not possibly have had access at
the time it made those decisions.” Id. at 762.
My colleagues in the majority assert that the snapshot
rule applies to child-find obligations, citing Lisa M. v. Leander
Indep. Sch. Dist., 924 F.3d 205, 215 (5th Cir. 2019) and L.J. v.
Pittsburg Unified Sch. Dist., 850 F.3d 996, 1004 (9th Cir.
2017). According to the majority, it follows that “evidence of
a child’s behaviors or test results outside of that snapshot . . .
are not relevant to whether the school district breached its
child-find obligations.” Majority Op. 35. This means that a
court can exercise its discretion to exclude the post-hoc
evidence offered to prove breach because it is irrelevant. See
D.K. v. Abington Sch. Dist., 696 F.3d 233, 253 (3d Cir. 2012)
1
We have also applied the Susan N. inquiry outside of the IEP
context. In D.K. v. Abington Sch. Dist., we declined to
summarily exclude post-hoc evidence—namely, an expert
report opining on the appropriateness of a school district’s
response to a child’s behavioral incidents—offered to support
a claim that the school district failed to provide a child with a
FAPE before it designed an IEP for that child. 696 F.3d 233,
243 (3d Cir. 2012). Although we ultimately excluded the
evidence because it was duplicative, our rejection of the
snapshot rule shows that Susan N. applies beyond the IEP
context and to the broader IDEA context. See id. at 253.
Accordingly, applying Susan N. to the propriety of an
eligibility determination is not an unprincipled extension of our
precedent.
4
(“[T]he court need not consider evidence that is irrelevant . . .
.” (citation omitted)). By declaring that post-hoc evidence is
irrelevant to the issue of a school district’s child-find breach
under the snapshot rule, the majority essentially gives courts
carte blanche to summarily reject that evidence.
Initially, we are not bound by Lisa M. or L.J., both of
which are out-of-circuit decisions. We are, however, bound by
Fuhrmann as well as Susan N.’s extension of Fuhrmann to the
broader IDEA eligibility context. If the majority had applied
Susan N., it would be hard pressed to explain why post-hoc
reports prepared in connection with evaluations of a child and
providing disability diagnoses are irrelevant to whether a
school district breached its child-find obligation—namely, its
duty to “identif[y], locate[], and evaluate[]” children with
disabilities, 20 U.S.C. § 1412(a)(3)(A), and to provide them
with a FAPE, 20 U.S.C. § 1414(d).
That the majority would allow consideration of post-hoc
evidence with regard to other elements of a denial-of-FAPE
claim—such as whether the child has a disability or
determining the extent to which a school district denied a
FAPE—is of no moment. The evidence existing at the time of
the eligibility determination may be cursory or under-
developed, rendering families unable to demonstrate the school
district’s breach. Because breach is a required element of a
denial-of-FAPE claim, the inability to use post-hoc evidence
to show breach could prove fatal to the entire claim. 2
2
As the majority explained, there are three required elements
of a denial-of-FAPE claim. First, the child must have a
disability for which he or she needs special education and
related services. See 20 U.S.C. §§ 1412(a)(1)(A). Second, the
5
Here, both the District Court and Administrative Law
Judge (“ALJ”) rejected the post-hoc evidence, and our review
of that legal conclusion is de novo. T.R. v. Kingwood Twp. Bd.
of Ed., 205 F.3d 572, 576 (3d Cir. 2000). The ALJ upheld
Summit’s eligibility determination based on the snapshot rule,
citing Fuhrmann. The ALJ reasoned that because Summit
“used all information available to it at the time of the eligibility
meeting on February 8, 2016,” it satisfied that rule. J.A. 56.
Likewise, the District Court applied the snapshot rule,
reasoning that eligibility “is a snapshot of the student’s
condition at the time of the eligibility determination.” J.A. 16
(quoting Lisa M., 924 F.3d at 215 (internal footnote omitted)).
Given that a student’s condition as of the eligibility
determination is all that matters under the snapshot rule, the
District Court concluded that the post-hoc reports were not
“relevant to the ALJ’s decision.” J.A. 15-16. Further, the
District Court declined to rely on Susan N., noting that Susan
N.’s holding is limited to the reasonableness of an IEP. 3
school district must breach its child-find duty in a manner that
impedes the child’s right to a FAPE. See D.K., 696 F.3d at
250. Third, the school district’s child-find violation must
deprive the disabled child of needed special education and
related services, thereby denying the child a FAPE. See 20
U.S.C. § 1415(f)(3)(E)(i)-(ii).
3
The District Court cited D.S. v. Bayonne Bd. of Educ. for this
proposition. However, that case involved the appropriateness
of an IEP, so we had no occasion to discuss the type of
evidence that could be used to determine the accuracy of an
IDEA eligibility determination. See 602 F.3d 553, 555-56 (3d
Cir. 2010). The District Court also cited Lisa M. v. Leander
Indep. Sch. Dist., which limits the review of an eligibility
determination to information available at the time of evaluation
6
According to the District Court, there is “good reason not to
extend Susan N. here: unlike the eligibility determination, the
reasonableness of an IEP is measured by “staff implementation
and student performance over a period of time.” J.A. 16
(quoting Lisa M., 924 F.3d at 215 (internal footnote omitted)).
In excluding the post-hoc evidence, the District Court
analyzed the relevance of the post-hoc reports under the wrong
standard. As a threshold matter, Susan N. applies because the
IDEA eligibility determination constitutes “the provision of
special education services at all.” See 70 F.3d at 762. What
else could “at all” refer to or mean if not the eligibility
determination itself? “[T]he provision of special education
services at all” hinges on the eligibility determination. If a
school district finds a child ineligible for special education, the
inquiry ends—the school will not provide special education
services. If, however, the school district finds the child
eligible, it will provide special education services.
Accordingly, the District Court should have analyzed whether
the post-hoc reports are “relevant, non-cumulative and useful”
in determining whether Congress’ goal—to ensure that
Summit provided C.M. with a FAPE—was being met. See id.Untethered to the snapshot rule, it does not necessarily follow
that the post-hoc reports would be irrelevant. The District
Court would have the discretion to exclude the reports, but only
after making appropriate inquiry. Its failure to meaningfully
consider the post-hoc evidence based on the snapshot rule
constitutes error.
because “[s]ubsequent events do not determine ex ante
reasonableness in the eligibility context.” 924 F.3d 205, 214-
15 (5th Cir. 2019). That case is not binding.
7
The majority’s departure from our own precedent leaves
children with disabilities in a vulnerable position and
jeopardizes their educational progress. It also gives school
districts perverse incentives. Specifically, it encourages
schools to conduct cursory evaluations in the first instance
without concern for liability based on more thorough expert
evaluations that diagnose students with disabilities and occur
after the child has been found ineligible for special education.
For instance, envision a school district that is confronted
with a young child exhibiting a persistent inability to pay
attention during class. On one hand, that behavior could be
construed as normal behavior for a child of that age. On the
other, that behavior could signal a disability. Knowing that its
special eligibility determination for that child will be measured
against only the information available at the time of the
decision, the school district may be inclined to perform a
perfunctory examination of the child in order to save time and
resources. After all, the school district can ostensibly attribute
those attention deficit issues to the child’s preference for
socializing over addition and subtraction—a preference likely
shared by many of his or her classmates. Then, months later,
if a third-party were to conduct a comprehensive evaluation
and diagnose that child with a disability, that child’s family
would be unable to use the diagnosis as evidence that the
school district breached its duty to provide a FAPE. According
to the majority, that evidence would be irrelevant. The school
district would be insulated from liability, and the child will
have sustained years of an inadequate education with no
recourse.
The District Court should have considered whether the
post-hoc reports diagnosing C.M. with disabilities would assist
in determining whether Summit had provided a FAPE to C.M.
8
as opposed to rejecting them as irrelevant under the snapshot
rule. I respectfully dissent.
9