PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     _____________

                         No. 12-3264
                        _____________

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

            LOWER MERION SCHOOL DISTRICT
                    _____________

           APPEAL FROM THE UNITED STATES
                 DISTRICT COURT FOR THE
         EASTERN DISTRICT OF PENNSYLVANIA
              (D.C. Civ. Action No. 10-cv-06070)
          District Judge: Honorable Harvey Bartle, III
                        ______________

                     Argued: May 23, 2013
                       ______________

Before: RENDELL, GREENAWAY, JR., Circuit Judges, and
            ROSENTHAL, District Judge.

*
 Honorable Lee H. Rosenthal, District Judge, United States
District Court for the Southern District of Texas, sitting by
designation.




                               1
             (Opinion Filed: September 5, 2013)

                      ______________

                         OPINION
                      ______________

Sonja D. Kerr, Esq. (argued)
Public Interest Law Center of Philadelphia
1709 Benjamin Franklin Parkway
United Way Building, 2nd Floor
Philadelphia, Pennsylvania 19103
       Counsel for Appellants S.H. and Carol Durrell

Michael D. Kristofco, Esq. (argued)
ShaVon Y. Savage, Esq.
Jenna B. Berman, Esq.
Amy T. Brooks, Esq.
Wisler Pearlstine LLP
460 Norristown Road
Suite 110
Blue Bell, Pennsylvania 19422
       Counsel for Appellee Lower Merion School District


GREENAWAY, JR., Circuit Judge.

       On November 5, 2010, S.H. and her mother, Carol
Durrell (“Ms. Durrell”) (collectively, “Appellants”) filed suit
against Lower Merion School District (“School District”),
alleging violations of the Individuals with Disabilities
Education Act (“IDEA”), § 504 of the Rehabilitation Act




                              2
(“RA”), and § 202 of the Americans with Disabilities Act
(“ADA”). Appellants contend that the School District
misdiagnosed S.H. as disabled for several years, and that, as a
result, it is liable under the IDEA for compensatory education
and under the RA and ADA for compensatory damages. The
District Court dismissed Appellants‟ IDEA claim for failure
to state a claim. The District Court then granted summary
judgment in the School District‟s favor as to the RA and the
ADA claims. This appeal followed. For the reasons set forth
below, we will affirm.

                   I.     BACKGROUND

       A.     Facts

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


1
  Title I is a federally funded remedial program designed to
improve a student‟s academic performance in reading and
math. Title I supplements a student‟s regular school program
work by providing the student with extra instruction in the
student‟s regular classroom. Title I is not intended strictly for
disabled students, but for any student in need of extra help.




                               3
       On October 2, 2001, when S.H. was in second grade,
Ms. Durrell met with Santa Cucinotta, the school
psychologist (“Ms. Cucinotta”), the school counselor, and the
principal. At this conference, they discussed that S.H. was
having difficulty with confidence, as well as reading, writing,
and getting her thoughts on paper. The team collectively
agreed that S.H. should continue to receive Title I reading
services. After this meeting, Ms. Cucinotta began to monitor
S.H.‟s progress in her classes. The School District also
created a “Child Study Team” to monitor S.H.‟s progress.
Ms. Durrell participated in many of the Child Study Team
meetings.

       When S.H. was in third grade (the 2002-2003 school
year), Ms. Cucinotta and Ms. Durrell again discussed S.H.‟s
difficulties in school. During the spring of that year, S.H.
scored below the benchmark2 on the reading portion of the
Pennsylvania System of School Assessment (“PSSA”).3 On
May 23, 2003, Ms. Durrell met with the school counselor and
the principal. They agreed that, while S.H. was “enthusiastic”

2
  Throughout the record, there are references to S.H.‟s scores
on standardized tests as compared to benchmark scores.
However, aside from the absolute numerical value, we have
been provided no information with which to contextualize
these scores. Without additional insight as to their meaning,
we can ascribe only limited weight to these scores as part of
our analysis.
3
 S.H. scored 1217 when the benchmark score for a student
her age was 1321.




                              4
and “had a nice grade 3 experience,” the team needed to
develop strategies directed toward improving S.H.‟s attention
and focus. (App. 464.)

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

       Ms. Cucinotta began the evaluation in June 2004,
using the predicted achievement model to assess S.H.5 The


4
 S.H. scored 38 when the benchmark score for a student her
age was 42-48.
5
 The predicted achievement model is an accepted model
within the School District for evaluating students. Under this
model, a computer program generates an expected




                               5
results revealed a 16-point discrepancy between S.H.‟s
expected score of 106 and her Reading Comprehension score
of 90.6 As part of the evaluation, Ms. Cucinotta considered
whether any mitigating factors would have affected S.H.‟s
achievements, such as S.H.‟s personal or familial
circumstances.7 Ms. Cucinotta also spoke with Ms. Durrell,
reviewed a literacy specialist‟s evaluations of S.H. from the
end of third grade and the beginning of fourth grade, and
considered S.H.‟s below-benchmark PSSA and DRP scores.
Ms. Cucinotta considered the testing scores, as well as her
own “clinical observations of [S.H.‟s] language processing,
the difficulty [S.H.] had with directions, [and] the vocabulary
that [S.H.] didn‟t understand.” (App. 381.)

       Ms. Cucinotta concluded her evaluation at the
beginning of S.H.‟s fifth-grade year (the 2004-2005 school
year), and published the results in two evaluation reports,
dated September 2 and 13, 2004. As a result of the
evaluation, Ms. Cucinotta determined that S.H. had a learning

achievement score based on the student‟s IQ, which is then
compared to the student‟s actual score.
6
   Joanna Wexler, a psychologist for the School District,
testified in her deposition that a 15-point discrepancy between
the expected achievement score and the actual achievement
score is considered an indication of a learning disability.
7
  In January of 2002, tragedy struck S.H.‟s family when a
murder-suicide took the lives of five of S.H.‟s relatives,
including a 14-year-old cousin with whom S.H. was very
close. S.H. took these deaths particularly hard and had
difficulty coping with them.




                              6
disability in reading and math and recommended that she
receive specially designed instruction in these areas. The
reports also noted that S.H. was unhappy that she was
designated as disabled and had told Ms. Cucinotta that she did
not think she belonged in special education. Ms. Durrell
reviewed and signed the evaluation reports, indicating that
she agreed with the recommendations.

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

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

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




                              7
word identification, 6.4 grade level in word attack, and 6.7
grade level in word comprehension.

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

       On October 5, 2006, Ms. Durrell emailed S.H.‟s
seventh-grade ISL teacher and stated, “I am really concerned
about [S.H.‟s PSSA] score. She is below proficiency. Could
we consider having her work with the Reading Specialist . . .
she needs some one-to-one instruction to bring her up to
proficiency. This is a real concern for me now. . . it is
obvious that more needs to be done.” (App. 223-24, 573.) In
response to this email, the School District provided S.H. with
one-on-one instruction with a reading specialist. S.H. again
confided in her seventh-grade teacher that she was unhappy
with ISL and didn‟t feel like she needed the extra help.

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




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

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




8
 S.H. scored 49 when the benchmark score for a student her
age was 50-70.




                               9
Dr. Cosden thus concluded that S.H. was still in need of
special education in reading and math.9

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

       The School District complied with Ms. Durrell‟s other
requests as well. For example, on November 13, 2009, Ms.
Durrell emailed Dr. Kimberly Fedchak (“Dr. Fedchak”), a
school employee, to ask if Dr. Fedchak could meet with S.H.
one-on-one for additional instruction. Ms. Durrell wrote, “I
would like to know if [S.H.] can come in to work with you
one-on-one, during academic recovery to go over her test
corrections. She said she didn‟t have a clear understanding of
the material. She does have math goals in her IEP. I feel the
more individual instruction she has, the better she‟ll do.”
(App. 237, 704.) Dr. Fedchak agreed.

       Also in November of 2009, Dr. Cosden met with Ms.
Durrell and Ms. Durrell‟s legal counsel, as part of an IEP
meeting.     During this meeting, Ms. Durrell‟s counsel
requested a copy of the testing protocols relating to Dr.
Cosden‟s evaluation of S.H. Dr. Cosden lied to Ms. Durrell
and told her that the testing protocols had been destroyed. Dr.
Cosden later admitted that he had “intentionally misled the

9
  In June 2006, S.H.‟s close friend was killed in a car
accident, and S.H. struggled to cope with this death. Dr.
Cosden‟s report makes no mention of either this event or the
2002 murder-suicide.




                              10
family” because he did not think it was “ethical” for him to
disclose the protocols to “persons who have no ability to be
able to process and understand the information.” (App. 963.)

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

       Dr. Abdullah-Johnson also determined that any
discrepancy between S.H.‟s IQ and her achievement scores
was too small to constitute a severe discrepancy, and that the
data used in the 2004 report prepared by Ms. Cucinotta did
not support the School District‟s conclusion that S.H. had a
learning disability. He concluded that S.H.‟s designation as
learning disabled was, and always had been, erroneous.10

10
   Additionally, in connection with this lawsuit, two
additional experts, Dr. Tawanna Jones, a certified school
psychologist, and Dr. Ronald Rosenberg, a licensed
psychologist, also reviewed various documents, including
previous evaluations of S.H. and her test scores, and agreed
with Dr. Abdullah-Johnson that S.H. was not disabled.




                             11
       Following Dr. Abdullah-Johnson‟s evaluation, Ms.
Durrell requested that S.H. be removed from special
education. Dr. Cosden also prepared a Reevaluation Report.
The report discussed S.H.‟s academic history and included
observations from S.H.‟s then-current teachers. Dr. Cosden‟s
report also discussed the test results from Dr. Abdullah-
Johnson‟s evaluation of S.H., although it did not specifically
reference Dr. Abdullah-Johnson‟s determination that S.H.
was not, and never had been, disabled. The report did,
however, state that S.H. did not have a disability and
therefore was no longer eligible to receive special education.
On April 12, 2010, the School District issued a NOREP
indicating that S.H. did not have a specific learning disability
and removing her from special education. S.H. received no
special education in her junior and senior years of high
school.

      As of February 14, 2012, S.H. had been accepted to
West Virginia University, Kutztown University, Cabrini
College, and Neumann University.

       B.     Procedural History

       Following S.H.‟s removal from special education, the
School District moved to dismiss Ms. Durrell‟s complaint
before the Hearing Officer as moot, because S.H. was not a
child with a disability and therefore was no longer entitled to
the IDEA‟s protection.11 The Hearing Officer agreed and
determined that he did not have jurisdiction over S.H.‟s claim

11
  For purposes of that motion, as well as for this appeal, the
School District concedes that S.H. does not have, and has
never had, a learning disability.




                              12
because she admitted that she is not disabled and never has
been disabled.

        On November 5, 2010, Appellants filed suit in federal
district court, alleging three claims. Claim One asserted that,
under the IDEA, the School District violated its duty to
accurately identify children with disabilities and to ensure
that S.H. was properly evaluated and assessed as not disabled.
Claim Two alleged a violation of § 504 of the RA, and Claim
Three alleged a violation of § 202 of the ADA. Claims Two
and Three alleged that the School District discriminated
against S.H. by erroneously identifying her as a child with a
disability.

       Appellants sought compensatory education and
monetary damages. According to Appellants, S.H.‟s receipt
of special education services damaged her self-confidence
and academic progress.         It also prevented her from
participating in certain regular-curriculum classes, including
science and one year of foreign language during middle
school, and higher-level courses in high school. Appellants‟
expert calculated S.H.‟s damages as $127,010, which includes
two additional years of college tuition, 50 hours of
psychotherapy, and 600 hours of tutoring.

      On June 30, 2011, the District Court granted the
School District‟s motion to dismiss Claim One.12 The
12
  The School District also moved to dismiss Claims Two and
Three, which the District Court denied. The RA and the
ADA create causes of action for individuals who are
“regarded as” disabled. 29 U.S.C. § 705(20)(B); 42 U.S.C. §
12102(1)(C). The denial of the motion to dismiss Claims
Two and Three is not before us on appeal.




                              13
District Court concluded that, because S.H. asserts that she is
not disabled, she cannot be, for pleading purposes, “a „child
with a disability‟ and thus cannot seek relief under the
IDEA.” Durrell ex rel. S.H. v. Lower Merion Sch. Dist., No.
10-6070, 

, at *2 (E.D. Pa. June 30, 2011).13

        On July 19, 2012, the District Court granted summary
judgment in the School District‟s favor as to the remaining
RA and ADA claims. The District Court first ruled that, in
order to sustain a claim seeking compensatory damages under
the RA and ADA, a plaintiff must be able to show evidence
of intentional discrimination on the part of the defendant.
Durrell ex rel. S.H. v. Lower Merion Sch. Dist., No. 10-6070,

, at *5-7 (E.D. Pa. July 19, 2012). The
District Court then concluded that Appellants had produced
no evidence creating a genuine dispute of fact as to
intentional discrimination and granted summary judgment.

we find any misidentification of S.H.
unfortunate, plaintiffs have not come forward with any
evidence which would allow a reasonable jury to find that the
School District intentionally discriminated against S.H. when
it regarded her as disabled.”).

       Appellants filed a timely appeal.

13
   The School District also sought to dismiss Claim One
under Fed. R. Civ. P. 12(b)(1) for lack of subject matter
jurisdiction. Recognizing that, unless Congress specifically
defines a limitation in a statute as jurisdictional, courts
“„should treat the restriction as nonjurisdictional in
character,‟” the District Court dismissed Claim One under
Rule 12(b)(6). S.H., 

, at *3 (quoting
Arbaugh v. Y&H Corp., 

, 516 (2006)).




                              14
II.    JURISDICTION AND STANDARD OF REVIEW

        The District Court had jurisdiction pursuant to 28
U.S.C. § 1331 and 20 U.S.C. § 1415(i). We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291.

        We exercise plenary review over a district court‟s
decision to dismiss a complaint under Rule 12(b)(6). Fleisher
v. Standard Ins. Co., 

, 120 (3d Cir. 2012). In
reviewing a dismissal, we “accept all well-pled allegations in
the complaint as true and draw all reasonable inferences in
favor of the non-moving party.” Brown v. Card Serv. Ctr.,

, 452 (3d Cir. 2006). To survive a motion to
dismiss, a complaint must contain sufficient factual
allegations that, when taken as true, “state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 

, 570 (2007). “A Rule 12(b)(6) motion should be
granted when it appears to a certainty that no relief can be
granted under any set of facts which could be proved.”
Nichole Med. Equip. & Supply Inc. v. TriCenturion, Inc., 

, 350 (3d Cir. 2012).

        We review a district court‟s grant of summary
judgment de novo, applying the same standard as the district
court. Gonzalez v. Sec’y of Dep’t of Homeland Sec., 

, 257 (3d Cir. 2012). A grant of summary judgment is
appropriate where the moving party has established “that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A fact is material if it might affect the outcome
of the suit under the governing law. Scheidemantle v.
Slippery Rock Univ. State Sys. of Higher Educ., 

,
538 (3d Cir. 2006). The reviewing court should view the
facts in the light most favorable to the non-moving party and




                              15
draw all reasonable inferences in that party‟s favor. 

on a motion for summary judgment, “the
non-moving party must present more than a mere scintilla of
evidence; „there must be evidence on which the jury could
reasonably find for the [non-movant].‟”          Jakimas v.
Hoffmann-La Roche, Inc., 

, 777 (3d Cir. 2007)
(alteration in original) (quoting Anderson v. Liberty Lobby,
Inc., 

, 252 (1986)).

                     III.   ANALYSIS

      A.      IDEA Claim

       Appellants argue that the District Court erred when it
dismissed their IDEA claim. Appellants contend that the
IDEA‟s jurisdictional umbrella encompasses not merely
children with disabilities, but also children who have been
misidentified as disabled. This question is a matter of first
impression for this Court, as it requires us to determine
whether the protections and remedies of the IDEA extend
beyond children with disabilities.        While Appellants‟
arguments are emotionally compelling, they are ultimately to
no avail.

           1. Plain Language of the Statute

        This question presents an issue of statutory
interpretation. “Our goal when interpreting a statute is to
effectuate Congress‟s intent. Because we presume that
Congress‟s intent is most clearly expressed in the text of the
statute, we begin our analysis with an examination of the
plain language of the relevant provision.” Hagans v. Comm’r
of Soc. Sec., 

, 295 (3d Cir. 2012) (citation and
internal quotation marks omitted); see also Jimenez v.




                              16
Quarterman, 

, 118 (2009) (“As with any
question of statutory interpretation, our analysis begins with
the plain language of the statute.”). “When the words of a
statute are unambiguous, then this first canon [of statutory
interpretation] is also the last: judicial inquiry is complete.”
Conn. Nat’l Bank v. Germain, 

, 254 (1992).
Moreover, “where the statutory language is unambiguous, the
court should not consider statutory purpose or legislative
history,” In re Phila. Newspapers, LLC, 

, 304
(3d Cir. 2010), because we operate under the “assumption
that the ordinary meaning of that language accurately
expresses the legislative purpose,” Park ’N Fly, Inc. v. Dollar
Park & Fly, Inc., 

, 194 (1985).

       With this framework in mind, we turn to the language
of the IDEA. The IDEA guarantees “procedural safeguards
with respect to the provision of a free appropriate public
education” to “children with disabilities and their parents.”
20 U.S.C. § 1415(a) (emphasis added). Children with
disabilities (and their parents) who claim violations of the
IDEA can file a complaint with a due process hearing officer.

complaint may pertain to “any matter
relating to the identification, evaluation, or educational
placement of the child, or the provision of a free appropriate
public education to such child.” 

added). Following the due process hearing, the
IDEA permits an aggrieved party to bring a civil action in any
court. 

a child may file a civil suit
only if he or she would have been entitled to file a complaint
before a hearing officer; it is clear from the plain language
that only “children with disabilities and their parents” may do
so.




                              17
      The IDEA defines “child with a disability” to mean

      a child with intellectual disabilities, hearing
      impairments (including deafness), speech or
      language impairments, visual impairments
      (including blindness), serious emotional
      disturbance (or referred to in this chapter as
      “emotional        disturbance”),      orthopedic
      impairments, autism, traumatic brain injury,
      other health impairments, or specific learning
      disabilities; and who by reason thereof needs
      special education and related services.

is no indication that the term “child
with a disability” includes children who are mistakenly
identified as disabled, but who are, in fact, not disabled.14
Therefore, under the Act‟s plain language, it is clear that the
IDEA creates a cause of action only for individuals with
disabilities. Because Appellants assert that S.H. is not, and
never was, a child with a disability, S.H. is excluded from the
IDEA‟s provisions and may not bring a claim under that Act.
(See Appellants Reply Br. 1 (“[The] School District . . .
cannot avoid reality that S.H. is not a child with a disability
and never was.”).) We cannot, sua sponte, create a cause of
action where the plain language of a statute does not provide
for one.15


14
   There is no “regarded as” language in the IDEA, which
distinguishes it from the RA and the ADA, as discussed
below.
15
  Appellants also rely on our decision in Ferren C. v. School
District of Philadelphia, 

, 719 (3d Cir. 2010), in




                              18
            2. Legislative History

       Appellants argue that the plain language is not
dispositive. They claim that they can maintain a cause of
action under the IDEA because, even though S.H. is not
disabled, she is African-American and the IDEA should be
construed to protect minority children who are misidentified
as disabled. In making this argument, Appellants ask us
“simply to acknowledge the flip side of the „identification‟
coin; that after a school district has, through the IDEA‟s
procedures, misidentified an African-American child as
having a disability, the child enjoys the same protections of
the IDEA hearing process.” (Appellants Br. 17.) In support
of this proposition, Appellants point to language in the
“Findings” section of the IDEA and to a House committee
report prepared in anticipation of the IDEA‟s introduction,
both of which acknowledge the problem of minority students
being misidentified as disabled.16 Appellants contend that

which we held that a disabled young woman, who was 24
years old and not a “child,” was still entitled to bring a claim
under the IDEA. Appellants reason that since we allowed this
young woman, who is not a “child,” to bring a claim, we
should allow S.H., who is not “disabled,” to bring a claim.
(Appellants Reply Br. 11.) This argument stretches our
holding in Ferren C. beyond credulity. We permitted the
claim in Ferren C. because the harm to the young woman had
occurred while she was a “child with a disability.” S.H. has
never been a “child with a disability.”
16
     The “Findings” section of the IDEA states:

         Greater efforts are needed to prevent the
         intensification of problems connected with




                                19
      mislabeling and high dropout rates among
      minority children with disabilities.     More
      minority children continue to be served in
      special education than would be expected from
      the percentage of minority students in the
      general school population. African-American
      children are identified as having intellectual
      disabilities and emotional disturbance at rates
      greater than their White counterparts.

20 U.S.C. § 1400(c)(12)(A). Similarly, the relevant portion
of the House committee report, issued by the House
Committee on Education during its hearings on the IDEA,
states:

      For minority students, misclassification or
      inappropriate placement in special education
      programs can have significant adverse
      consequences, particularly when these students
      are being removed from regular education
      settings and denied access to the core
      curriculum. Of particular concern is that, often,
      the more separate a program is from the general
      education setting, the more limited the
      curriculum and the greater the consequences to
      the student, particularly in terms of access to
      postsecondary education and employment
      opportunities. . . . Research shows that African
      Americans are nearly three times as likely to be
      identified as mentally retarded as their peers
      and nearly twice as likely to be labeled
      emotionally disturbed.




                             20
“Congress would have not expressed such concern about the
misidentification of African-American children as disabled
and then left those same children without any recourse under
the IDEA.” (Appellants Br. 19.)

        Appellants‟ reliance on the statutory Findings and
House committee report is unavailing. Legislative history has
never been permitted to override the plain meaning of a
statute. As the Supreme Court has made clear, “Congress‟
„authoritative statement is the statutory text, not the
legislative history.‟” Chamber of Commerce v. Whiting, 

, 1980 (2011) (quoting Exxon Mobil Corp. v.
Allapattah Servs., Inc., 

, 568 (2005)).
Legislative history may not be used to alter the plain meaning
of a statute. “The law is what Congress enacts, not what its
members say on the floor.” Szehinskyj v. Att’y Gen., 

, 256 (3d Cir. 2005).

        Moreover, “legislative history may be referenced only
if the statutory language is written without a plain meaning,
i.e., if the statutory language is ambiguous.” Byrd v.
Shannon, 

, 123 (3d Cir. 2013). “Legislative
history . . . is meant to clear up ambiguity, not create it.”
Milner v. Dep’t of Navy, 

, 1267 (2011); see
also Velis v. Kardanis, 

, 81 (3d Cir. 1991)
(“There is no need to resort to legislative history unless the
statutory language is ambiguous.”). We must “not take the
opposite tack of allowing ambiguous legislative history to
muddy clear statutory language.” 

;
see also Nat’l Coal. for Students with Disabilities Educ. &

H.R. Rep. No. 108-77, at 98-99 (2003) (internal quotation
marks omitted).




                             21
Legal Def. Fund v. Allen, 

(4th Cir. 1998) (“This
plain meaning cannot be circumvented unless we have the
rare instance when there is a clearly expressed congressional
intent to the contrary or when a literal application of the plain
language would frustrate the statute‟s purpose or lead to an
absurd result.”). Because there is no ambiguity in the IDEA‟s
creation of a cause of action, we need not even look to
legislative history.17




17
    In any case, contrary to Appellants‟ assertions, the
legislative history does not evidence Congress‟s desire to
create a cause of action for students who are misidentified as
disabled. As the House committee report makes clear,
Congress sought to remedy the problem of over-identification
through the implementation of preventative and remedial
policies and practices at the local level. See H.R. Rep. No.
108-77, at 98-99.         Indeed, Congress enacted several
provisions within the IDEA aimed at addressing this problem.
See, e.g., 20 U.S.C. § 1412(a)(24) (conditioning receipt of
federal funds on the state‟s effectuation of “policies and
procedures designed to prevent the inappropriate over[-
]identification or disproportionate representation by race and
ethnicity of children as children with disabilities”); 

that the Secretary of Education has
overall responsibility to oversee the states‟ obligations and
responses as to “[d]isproportionate representation of racial
and ethnic groups in special education” as a result of
inappropriate identification).




                               22
          3. Child Find Provision

       Appellants also argue that IDEA‟s “Child Find”
requirement permits this lawsuit. IDEA‟s “Child Find”
provision states:

       All children with disabilities residing in the
       State, including children with disabilities who
       are homeless children or are wards of the State
       and children with disabilities attending private
       schools, regardless of the severity of their
       disabilities, and who are in need of special
       education and related services, are identified,
       located, and evaluated and a practical method is
       developed and implemented to determine which
       children with disabilities are currently receiving
       needed special education and related services.

20 U.S.C. § 1412(a)(3)(A). Appellants argue that, because
the duty to identify children with disabilities falls squarely on
schools, any parent should be able to bring a complaint to
enforce this provision as this is clearly a “matter relating to
the identification, evaluation, or educational placement of the
child, or the provision of a free appropriate public education
to such child.” 20 U.S.C. § 1415(b)(6)(A).

       Once again, Appellants‟ argument has no foothold in
the plain language of the statute. The Child Find provision,
by its own language, imposes a duty on the school to create
procedures by which to identify children with disabilities.
However, the obligation of this duty is still only to “children
with disabilities.”      Appellants cannot escape the plain
language of the IDEA. Moreover, under the evidence
presented, it is clear that the School District satisfied its duty




                               23
under the Child Find provision; the School District evaluated
S.H. on numerous occasions in accordance with its internal
policies, and S.H. was found to be eligible for special
education.

       Because the plain language of the statute only permits
a child with a disability to bring a claim under the IDEA,
S.H., who by her own admission is not disabled, cannot
sustain her action.

      B.     Intentional Discrimination Under the RA
             and ADA

       Appellants also brought claims under § 504 of the RA
and § 202 of the ADA. Section 504 of the RA provides:

      No otherwise qualified individual with a
      disability in the United States, as defined in
      section 705(20) of this title, shall, solely by
      reason of her or his disability, be excluded from
      the participation in, be denied the benefits of, or
      be subjected to discrimination under any
      program or activity receiving Federal financial
      assistance . . . .

29 U.S.C. § 794(a). Section 202 of the ADA similarly states:

      [N]o qualified individual with a disability shall,
      by reason of such disability, be excluded from
      participation in or be denied the benefits of the
      services, programs, or activities of a public
      entity, or be subjected to discrimination by any
      such entity.




                              24
42 U.S.C. § 12132. Both the RA and ADA extend their
protections not only to individuals who actually are disabled,
but also to individuals who are “regarded as” having a
disability. See 29 U.S.C. § 705(20)(B); 42 U.S.C. §
12102(1)(C). There is no dispute that S.H. was “regarded as”
disabled by the School District, and therefore S.H. is not
barred from bringing these claims.

       The same standards govern both the RA and the ADA
claims. Chambers ex rel. Chambers v. Sch. Dist. of Phila.
Bd. of Educ., 

, 189 (3d Cir. 2009). To prevail on
these claims, Appellants must demonstrate that S.H.: “(1) has
a disability; (2) was otherwise qualified to participate in a
school program; and (3) was denied the benefits of the
program or was otherwise subject to discrimination because
of her disability.” 

concluded that,
because Appellants seek compensatory damages, they are
required to make a showing of intentional discrimination to
prevail on their claims. Appellants argue that no such
showing is required. We have not yet spoken on this issue.

          1. Statutory Language

       Section 203 of the ADA states that the remedies
available under § 202 of the ADA are the same remedies
available under § 505 of the RA.18 Similarly, § 505 of the RA
clearly states that the remedies available under § 504 of the

18
    “The remedies, procedures, and rights set forth in [§
505(a)(2) of the RA] shall be the remedies, procedures, and
rights this subchapter provides to any person alleging
discrimination on the basis of disability in violation of [§ 202
of the ADA].” 42 U.S.C. § 12133.




                              25
RA shall be the same remedies available under Title VI of the
Civil Rights Act of 1964.19 Based on this statutory language,
the Supreme Court has observed that, “the remedies for
violations of § 202 of the ADA and § 504 of the
Rehabilitation Act are coextensive with the remedies
available in a private cause of action under Title VI of the
Civil Rights Act of 1964.”20 Barnes v. Gorman, 

, 185 (2002). Plainly, therefore, Supreme Court precedent
construing Title VI governs enforcement of the RA and the
ADA as well. See Meagley v. City of Little Rock, 

, 389 (8th Cir. 2011) (“The ADA was modeled on the
Rehabilitation Act, which had been modeled after Title VI, so
it follows rationally that the rights and remedies afforded
under both statutes should be governed by Title VI
precedent.”) Thus, we must look to what Title VI, and the
cases construing it, require for compensatory damages to
determine the appropriate standard here.



19
  “The remedies, procedures, and rights set forth in title VI of
the Civil Rights Act of 1964 . . . shall be available to any
person aggrieved by any act or failure to act by any recipient
of Federal assistance or Federal provider of such assistance
under [§ 504 of the RA].” 29 U.S.C. § 794a(a)(2).
20
   That Congress intended to create identical remedies under
Title VI, the RA, and ADA is hardly surprising given how
closely the language of both the ADA and RA track Title VI.
Compare 42 U.S.C. § 2000d, with 29 U.S.C. § 794, and 42
U.S.C. § 12132.




                              26
        In Guardians Association v. Civil Service Commission
of New York, the Supreme Court unequivocally held that
private individuals who brought suit under Title VI could not
recover compensatory relief in the absence of a showing of
intentional discrimination. 

, 597, 607 (1983);
see Alexander v. Sandoval, 

, 282-83 (2001)
(restating Guardian‟s holding that “private individuals [can]
not recover compensatory damages under Title VI except for
intentional discrimination”). We therefore take the next
logical step and hold that claims for compensatory damages
under § 504 of the RA and § 202 of the ADA also require a
finding of intentional discrimination.

       Appellants urge that our previous holding in
Ridgewood Board of Education v. N.E. ex rel. M.E., 

(3d Cir. 1999), suggests a different outcome. In
Ridgewood, parents of a disabled child brought claims against
Ridgewood Board of Education, alleging that Ridgewood‟s
failure to provide their son, M.E., with a free appropriate
public education (“FAPE”) constituted a violation of the
IDEA, § 504 of the RA, 42 U.S.C. § 1983, and New Jersey
state law, and seeking compensatory damages under 42
U.S.C. § 1983. 

District Court first found that
Ridgewood had provided M.E. with a FAPE under the IDEA.
The District Court then granted summary judgment in
Ridgewood‟s favor as to M.E.‟s claim under § 504 of the RA.

the District Court concluded that
M.E.‟s § 504 claim failed because M.E. had not demonstrated
that he was “excluded from participation in, denied the
benefits of, or subject to the discrimination at, the school.”

reversed, finding that the evidence showed
that Ridgewood had not provided M.E. with a FAPE. We
also concluded that summary judgment on the § 504 claim




                             27
had been improperly granted. We stated that while “a
plaintiff must demonstrate that defendants know or should be
reasonably expected to know of his disability,” to establish a
§ 504 violation, “a plaintiff need not prove that defendants’
discrimination was intentional.” 

does not alter our analysis. Our statement
in Ridgewood, that “a plaintiff need not prove that
defendants‟ discrimination was intentional,” referred only to
liability, and not damages; it was intended to address the
requirements for showing a violation of § 504, not the
requirements for particular remedies. Our statement, thus, is
inconsequential to whether a plaintiff seeking compensatory
damages must allege intentional discrimination.21

       We also note that our holding here is in line with our
sister Circuits applying Guardian‟s principles in the RA and
the ADA context. All courts of appeals that have considered
this issue have held that compensatory damages are not
available under § 504 of the RA and § 202 of the ADA absent
intentional discrimination. See 

(“All circuits to decide the question have held that to recover
compensatory damages under either the ADA or the
Rehabilitation Act, a plaintiff must establish that the agency‟s
discrimination was intentional. . . . And they have all done so
for good reason.”); T.W. ex rel. Wilson v. Sch. Bd. of
Seminole Cnty., 

, 603-04 (11th Cir. 2010);
Loeffler v. Staten Island Univ. Hosp., 

, 275 (2d

21
  Even if we were to accept Appellants‟ view of our holding
in Ridgewood, we would be forced to question its vitality
following the Supreme Court‟s jurisprudence in Barnes, 

, and Sandoval, 

.




                              28
Cir. 2009); Mark H. v. Lemahieu, 

, 938 (9th Cir.
2008); Nieves-Marquez v. Puerto Rico, 

, 126
(1st Cir. 2003) (“[P]rivate individuals may recover
compensatory damages under § 504 . . . only for intentional
discrimination.”); Delano-Pyle v. Victoria Cnty., 

, 574 (5th Cir. 2002) (“A plaintiff asserting a private
cause of action for violations of the ADA or the RA may only
recover compensatory damages upon a showing of intentional
discrimination.”); Powers v. MJB Acquisition Corp., 

, 1153 (10th Cir. 1999) (holding that a claim for
compensatory damages under the RA “requires proof the
defendant has intentionally discriminated against the
plaintiff”); Pandazides v. Va. Bd. of Educ., 

, 830
n.9 (4th Cir. 1994) (acknowledging that recovery of damages
under the RA requires a finding of intentional
discrimination); Bd. of Educ. of Twp. High Sch. Dist. No. 211
v. Ross, 

, 278 (7th Cir. 2007) (same).22

          2. Standard for Intentional Discrimination

       There have been two alternative standards suggested
for intentional discrimination: discriminatory animus and
deliberate indifference. Five of our sister courts have
22
   Appellants also argue that this Court should not require
intentional discrimination because this Court has consistently
rejected such standards in the IDEA compensatory remedy
cases. See M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 

, 397 (3d Cir. 1996); Carlisle Area Sch. Dist. v. Scott P.
ex rel. Bess. P., 

, 537 (3d Cir. 1995). This
argument is inapposite as compensatory and punitive
damages are not available under the IDEA. See 

.




                              29
explicitly rejected discriminatory animus and held that
deliberate indifference satisfies the requisite showing of
intentional discrimination. See Liese v. Indian River Cnty.
Hosp. Dist., 

, 348 (11th Cir. 2012); 

; 

; Mark 

; 

. These courts have
generally applied a two-part standard for deliberate
indifference, requiring both (1) “knowledge that a harm to a
federally protected right is substantially likely,” and (2) “a
failure to act upon that likelihood.” Duvall v. Cnty. of Kitsap,

, 1139 (9th Cir. 2001); see also 

(holding that “intentional discrimination may be
inferred when a policymaker acted with at least deliberate
indifference to the strong likelihood that a violation of
federally protected rights will result from the implementation
of the challenged policy or custom” (internal quotation marks
and alterations omitted)); 

(holding that
under the more lenient standard of deliberate indifference, a
plaintiff must prove that “„the defendant knew that harm to a
federally protected right was substantially likely and [that the
defendant] failed to act on that likelihood‟” (quoting 

)). Deliberate indifference “„does not require
a showing of personal ill will or animosity toward the
disabled person.‟” 

(quoting Barber
v. Colo. Dep’t of Revenue, 

, 1228-29 (10th Cir.
2009)); see also 

. However,
“deliberate indifference must be a „deliberate choice, rather
than negligence or bureaucratic inaction.‟” 

(quoting Reynolds v. Giuliani, 

, 193 (2d
Cir. 2007).23


23
     This definition of deliberate indifference in the RA and the




                                30
       Two courts of appeals have suggested that plaintiffs
seeking compensatory damages must demonstrate a higher
showing of intentional discrimination than deliberate
indifference, such as discriminatory animus. See Nieves-

(suggesting that discriminatory
animus is the level of intent required) (citing Schultz v. Young
Men’s Christian Ass’n of U.S., 

, 290-91 (1st Cir.
1999)); 

(rejecting a deliberate
indifference standard and adopting a higher showing for
intentional discrimination) (citing Carter v. Orleans Parish
Pub. Schs., 

, 264 (5th Cir. 1984)). To succeed
under a discriminatory animus standard, a plaintiff must show
“prejudice, spite or ill will.” 

.

       Which standard to apply — discriminatory animus or
deliberate indifference — is a matter of first impression for
our Court. We now follow in the footsteps of a majority of

ADA context is consistent with our standard of deliberate
indifference in the context of § 1983 suits by prison inmates.
See Natale v. Camden Cnty. Corr. Facility, 

, 582
(3d Cir. 2003) (holding that, in a § 1983 claim, deliberate
indifference requires proof that the prison “„knows of and
disregards an excessive risk to inmate health or safety‟”
(quoting Farmer v. Brennan, 

, 837 (1994)). The
definition is also consistent with the Supreme Court‟s
definition of deliberate indifference in the context of sexual
harassment claims under Title IX. See Gebser v. Lago Vista
Indep. Sch. Dist., 

, 290 (1998) (requiring “actual
knowledge of discrimination in the recipient‟s programs and
fail[ure] [to] adequately . . . respond”).




                              31
our sister courts and hold that a showing of deliberate
indifference may satisfy a claim for compensatory damages
under § 504 of the RA and § 202 of the ADA. However, as
the Eleventh Circuit recently noted, despite the adoption of
the deliberate indifference standard by many of our sister
courts, “there has been little explication for the conclusion
that intentional discrimination under the RA may be
established by deliberate indifference.” 

. We offer our explanation here and adopt many of the
same reasons provided by the Eleventh Circuit.

        As an initial matter, the deliberate indifference
standard is better suited to the remedial goals of the RA and
the ADA than is the discriminatory animus alternative. In
discussing the enactment of the RA and the ADA, the
Supreme Court observed that “[d]iscrimination against the
handicapped was perceived by Congress to be most often the
product, not of invidious animus, but rather of
thoughtlessness and indifference — of benign neglect.”
Alexander v. Choate, 

, 295 (1985); see also
Chapman v. Pier 1 Imports (U.S.) Inc., 

, 944-45
(9th Cir. 2011) (applying Choate‟s discussion of the
enactment of the RA to the ADA). Moreover, “[f]ederal
agencies and commentators on the plight of the handicapped
similarly have found that discrimination against the
handicapped is primarily the result of apathetic attitudes
rather than affirmative animus.” 

.
Consistent with these motivations, the RA and the ADA are
targeted to address “more subtle forms of discrimination”
than merely “obviously exclusionary conduct.” 

. Thus, a standard of deliberate indifference,
rather than one that targets animus, will give meaning to the
RA‟s and the ADA‟s purpose to end systematic neglect. See




                             32


(noting that Senator Humphrey, who
introduced the measure, stated that “we can no longer tolerate
the invisibility of the handicapped in America” (quoting 118
Cong. Rec. 525-26 (1972))).

        Moreover, the standard of deliberate indifference,
while accommodating the RA‟s and the ADA‟s function in
protecting the disabled, is also consistent with contract
principles at play when legislation is passed via the Spending
Clause. See 

. The RA and the ADA
were enacted under Congress‟s Spending Clause power;
legislation that is enacted under this power “is much in the
nature of a contract” between the federal government and
recipients of federal funds. Pennhurst State Sch. & Hosp. v.
Halderman, 

, 17 (1981). “Just as a valid contract
requires offer and acceptance of its terms, „the legitimacy of
Congress‟ power to legislate under the spending power rests
on whether the recipient voluntarily and knowingly accepts
the terms of the contract.‟” 

(alterations omitted) (quoting 

).
The Supreme Court has thus reasoned that a recipient of
federal funding, such as the School District here, may be held
liable for money damages only when it is on notice by statute
that it has violated the law. 

under Title VI); 

(discussing
monetary damages under Title IX).

      Because the deliberate indifference standard requires
knowledge, this standard satisfies contract law principles




                             33
while still protecting the disabled.24 As the Eleventh Circuit
explained,


24
    We note that our conclusion today — that deliberate
indifference is the standard for the requisite showing of
intentional discrimination in RA and ADA actions — is
reconcilable with our previous decision in Pryor v. Nat’l
Collegiate Athletic Ass’n, 

(3d Cir. 2002).
Relying on the Supreme Court‟s decision in Sandoval, Pryor
held that plaintiffs challenging a policy of the National
Collegiate Athletic Association (“NCAA”) under Title VI
could not satisfy the “intentional discrimination” requirement
through evidence of disparate impact alone. 

(addressing a challenge to a NCAA provision which
raised the academic eligibility criteria for incoming student
athletes that adversely affected black athletes); see also

(addressing a challenge to a
state policy that required all drivers‟ license examinations to
be administered in English with no aids or accommodations
for individuals who spoke English as a second language, and
that adversely affected individuals of foreign national origin).
In reaching this conclusion, Pryor specifically rejected
deliberate indifference as a viable theory. 

. Pryor did so because it equated deliberate indifference
with disparate impact. 

light of the Supreme
Court‟s post-Sandoval jurisprudence, this was improper. As
this jurisprudence makes clear, deliberate indifference is a
form of intentional discrimination, and not a pseudonym for
disparate impact. See, e.g., Jackson v. Birmingham Bd. of
Educ., 

, 173 (2005) (recognizing that deliberate
indifference is a form of intentional discrimination). Despite
this mislabeling of deliberate indifference, Pryor‟s holding




                              34
       The deliberate indifference standard best
       reflects the purposes of § 504 while
       unambiguously providing the notice-and-
       opportunity requirements of Spending Clause
       legislation. A lower standard would fail to
       provide       the      notice-and-opportunity

that the mere fact of disparate impact is insufficient to sustain
a Title VI challenge to a facially neutral policy remains good
law.

       Pryor is inapplicable to our situation here. In cases
involving action (or inaction) toward an individual that results
in a violation of rights, such as we have here, the Supreme
Court has readily accepted that deliberate indifference can
create a viable cause of action. See 

91 (finding that the school district may be liable under the
standard of deliberate indifference where a teacher sexually
harassed a student); Davis v. Monroe Cnty., 

,
643 (1999) (same where a student sexually harassed another
student); see also Horner v. Ky. High Sch. Athletic Ass’n, 

, 692-93 (6th Cir. 2000) (recognizing that the
Supreme Court‟s jurisprudence on deliberate indifference in
the sexual harassment context is not easily transferrable to
challenges to facially neutral policies).

       Thus, to the extent that Pryor equated deliberate
indifference with disparate impact, that holding cannot stand.
To the extent that Pryor addressed the requisite showing of
intentional discrimination for challenges to facially neutral
policies with disparate impacts, we offer no comment.




                               35
       requirements to RA defendants, while a higher
       standard—requiring discriminatory animus—
       would run counter to congressional intent as it
       would inhibit § 504‟s ability to reach knowing
       discrimination in the absence of animus.

.

       C.     Grant of Summary Judgment

        We now turn to the merits of the appeal: whether there
is evidence in the summary judgment record that creates a
genuine factual dispute as to whether the School District was
deliberately indifferent toward S.H. by mislabeling her as a
disabled student. To satisfy the deliberate indifference
standard, Appellants must present evidence that shows both:
(1) knowledge that a federally protected right is substantially
likely to be violated (i.e., knowledge that S.H. was likely not
disabled and therefore should not have been in special
education), and (2) failure to act despite that knowledge. See

.

       Appellants argue that the School District had
knowledge that S.H. had likely been misidentified for several
reasons: (1) S.H. told her teachers in fifth grade and middle
school that she did not think she belonged in special
education; (2) S.H. protested her placement in special
education in tenth grade by refusing to attend speech therapy;
(3) within three months of S.H.‟s misidentification as a
disabled student, S.H.‟s reading scores surpassed the fifth-
grade level; (4) S.H.‟s scores on standardized tests continued
to show that S.H. tested at or around grade level; (5) S.H.
continued to do well in school, making Honor Roll in seventh
and eighth grade; and (6) the evaluations of three separate




                              36
psychologists, including Dr. Abdullah-Johnson, revealed that
S.H. was not disabled. We find these reasons unpersuasive to
create a genuine factual dispute as to knowledge.

       To begin, we are unpersuaded by Appellants‟ reliance
on S.H.‟s testimony that she expressed unhappiness at being
designated disabled in fifth grade (when she was ten years
old) and later also told her seventh-grade teacher that she did
not feel like she belonged in ISL classes. S.H.‟s subjective
complaints about being put in special education classes put
the School District on notice of nothing more than the fact
that S.H. did not like being in special education classes.
More importantly, Ms. Durrell, despite S.H.‟s feelings,
continued to approve her placement in special education.
Where the parent agrees with, and gives informed consent to,
a child‟s placement in special education, a child‟s feelings to
the contrary can hardly constitute “notice.” For similar
reasons, we cannot say that S.H.‟s testimony that she told her
IEP team that she hated going to speech therapy creates a
genuine dispute of material fact as to the School District‟s
knowledge.

       Appellants‟ contention that the evaluations by the three
psychologists put the School District on notice is also to no
avail. Dr. Abdullah-Johnson performed his evaluation in
2010. The other two evaluations, those of Dr. Jones and Dr.
Rosenberg, were submitted in preparation for this lawsuit in
2012, more than two years after S.H. had been removed from
special education.25 These reports only evidence the School

25
  Dr. Jones conducted her evaluation of S.H. in December
2011, and Dr. Rosenberg conducted his evaluation in January
2012.




                              37
District‟s knowledge subsequent to their publication; nothing
in the reports can be said to create a genuine dispute as to the
School District‟s knowledge at the time it designated S.H. as
having a learning disability (i.e. from 2004 through 2009).

       Moreover, liability in this case is not dependent merely
on whether the School District‟s psychologists erred in their
determinations. The relevant inquiry is knowledge, and
evidence that the School District may have been wrong about
S.H.‟s diagnosis is not evidence that the School District had
knowledge that it was a wrong diagnosis. Nor does evidence
that the School District‟s evaluation processes were defective
bear on our analysis.26 Additionally, we cannot say that the
School District failed to act on this knowledge, as the School
District immediately exited S.H. from special education


26
   Appellants allege that Ms. Cucinotta‟s and Dr. Cosden‟s
evaluations were defective for using the predicted
achievement method, failing to consider S.H.‟s familial
circumstances and personal tragedies, and failing to consider
all of S.H.‟s test scores. However, evidence that the School
District would have, or should have, known that S.H. was not
disabled had the evaluations been free of defects, is
insufficient.      Deliberate indifference requires actual
knowledge; allegations that one would have or “should have
known” will not satisfy the knowledge prong of deliberate
indifference. Bistrian v. Levi, 

, 367 (3d Cir.
2012) (holding that, under the deliberate indifference
standard, “[i]t is not sufficient that the official should have
known of the risk” (emphasis added)). As such, we will not
consider the allegedly defective evaluations as part of the
knowledge analysis.




                              38
following Dr. Abdullah-Johnson‟s evaluation and upon Ms.
Durrell‟s request.

        Appellants‟ best argument as to knowledge is that
S.H.‟s test scores and good grades in school should have put
the School District on notice that she did not have a learning
disability. Ultimately, this evidence is insufficient as well.
As an initial matter, S.H.‟s test scores, when taken as a whole,
are not conclusive. While S.H. performed well in some areas
on various tests throughout her educational career, she
performed below average in other areas. For example, when
S.H. was in seventh grade, S.H. scored at a 7.4 grade-level in
vocabulary on the Stanford Diagnostic Reading Test, but
scored at a 5.3 grade-level in comprehension and at a 4.1
grade-level in “scanning.” (App. 624.) Similarly, in eighth
grade, S.H. performed at the “advanced” level in reading and
“proficient” level in writing on the PSSA, but performed
“below basic” in both math and science. (App. 625, 658.)
Additionally, Appellants have offered no evidence that high
test scores are an indication that a student likely does not have
a learning disability, nor have they offered evidence that
children in special education usually do not receive good
grades.

       Put simply, Appellants have presented no evidence
that would create a genuine dispute as to whether the School
District knew, prior to Dr. Abdullah-Johnson‟s evaluation,
that S.H. had likely been misidentified as having a learning
disability. Thus, we need not explore the second prong of the




                               39
deliberate indifference test, i.e., whether the School District
failed to act.27

27
   Appellants also seem to suggest that the School District
was on notice that it had likely misidentified S.H. because it
was aware of the pervasive problem of over-identifying
minority children as disabled in general. In support of this
argument, Appellants point to: (1) the IDEA‟s statutory
warnings about over-identification; (2) a 2006 self-
assessment conducted by the School District that revealed
that over-identification was occurring within the district; and
(3) the deposition testimony from Assistant Superintendent
Michael Kelly, who acknowledged awareness that a
disproportionate number of African-American students were
in special education compared to their representation in the
student body. This position is untenable.

        While the “Findings” section of the IDEA, 20 U.S.C.
§§ 1400(c)(12)(A)-(E), does in fact suggest that over-
identification of minority children is a pressing concern, we
fail to see the logic that this brief warning in a national law
should put a local school district on notice of anything.
Furthermore, as the 2006 self-assessment is not in the record
before us, we may not consider it. Even if we were to
consider it, the evidence to be gleaned from the 2006 self-
assessment is far more limited than Appellants are willing to
acknowledge. The 2006 self-assessment did not put the
School District on notice of over-identification specifically; at
most, the 2006 self-assessment merely put the School District
on notice that “there was a disproportionate number of
African-American students in special education programs in
Lower Merion.” Blunt v. Lower Merion Sch. Dist., 826 F.
Supp. 2d 749, 757 (E.D. Pa. 2011) (discussing the contents of




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                   IV.    CONCLUSION

      For the foregoing reasons, we will affirm the District
Court‟s orders.




the 2006 self-assessment evaluation which noted that African-
Americans constituted 7.7% of the student body and 12.7% of
the students in special education). Thus, the 2006 self-
assessment evidences only that the School District knew that
a disproportionate number of African-American students
were enrolled in special education, a fact that Mr. Kelly
testified to as well. We cannot infer from this that the School
District knew that S.H. in particular had been misidentified.
Such an argument is too attenuated to stand.




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