G. v. THE COUNCIL ROCK SCHOOL DISTRICT et al

Filing 80

MEMORANDUM AND/OR OPINION ORDER THAT THE REPORT AND RECOMMENDATION (DOC. #75) IS APPROVED AND ADOPTED. DAVID G.'S OBJECTIONS TO THE R&R (DOC. #76) ARE OVERRULED. DAVID G.'S MOTION FOR JUDGMENT ON THE ADMINISTRATIVE RECORD AND FOR SUMMARY JU DGMENT (DOC. #68) IS DENIED AND COUNCIL ROCK SCHOOL DISTRICT'S MOTION FOR JUDGMENT ON THE ADMINISTRATIVE RECORD AND FOR SUMMARY JUDGMENT (DOC. #70) IS GRANTED, ETC. SIGNED BY HONORABLE LOUIS H. POLLAK ON 4/10/2012; 4/12/2012 ENTERED AND COPIES E-MAILED.(tomg, )

IN THE UNITED STATES DISTRICT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DAVID G., an adult with a disability
Plaintiff,

No. 06-1523

v.
THE COUNCIL ROCK SCHOOL
DISTRICT
Defendant.

Pollak, J.

April 10, 2012

MEMORANDUM & ORDER
Plaintiff David G. is a person with learning disabilities who was a student in
defendant Council Rock School District until his graduation in 2004. Presently before the
court are David G.’s objections to a Report and Recommendation (“R & R”) by United
States Magistrate Judge M. Faith Angell. The R & R recommends that David G.’s claim
that the school district denied him a free and appropriate public education (“FAPE”) in
his second through sixth-grade school years be denied and concludes that David G. is not
entitled to monetary damages. For the reasons stated below, I will approve and adopt

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Judge Angell’s R & R.
I. Background

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This case originated with a complaint filed on April 11, 2006. In his complaint,
David G. challenged a Pennsylvania Special Education Hearing Officer’s partial denial of
his claims under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §
1400 et seq. He also raised claims for monetary damages under Title II of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation
Act (“§ 504”), 29 U.S.C. § 794. I referred David G.’s case to Judge Angell, and the
parties filed cross-motions for judgment on the administrative record. On April 7, 2009,
Judge Angell filed a R & R recommending: (1) that I remand David G.’s case to the
hearing officer for a determination whether the school district denied David G. a FAPE in
his second through sixth-grade school years; and (2) that I affirm the hearing officer’s
decision in all other respects, including, in relevant part, the hearing officer’s order that
the school district provide David G. with compensatory education to remedy its failure to
provide David G. with a FAPE in the area of reading in his ninth and tenth-grade school
years. In a memorandum and order dated September 23, 2009, I approved and adopted
Judge Angell’s R & R. See David G. v. Council Rock Sch. Dist., 2009 WL 3109808 (E.D.

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The factual and procedural background of this case is set out in the two decisions
of the hearing officer in this matter, Judge Angell’s April 7, 2009 R & R, and my
previous Memorandum and Order. I provide only a brief summary of the relevant
background here.
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Pa.). My memorandum and order left open the question whether David G. was entitled to
monetary damages under the ADA and § 504. See id. at *3.
On remand, the hearing officer and appeals panel concluded that the school district
provided David G. a FAPE at all times during his second through sixth-grade school
years. On February 14, 2011, I granted David G.’s motion to reinstate his case and again
referred the case to Judge Angell. David G. filed a motion for judgment on the
administrative record and summary judgment, in which he argued that he was denied a
FAPE during his second through sixth-grade school years and restated his claim for
monetary damages. The school district responded, opposing David G.’s motion and
requesting that the hearing officer’s decision be affirmed and judgment be entered in its
favor on David G.’s claims for monetary damages.2 On December 21, 2011, Judge
Angell filed an R & R, which concluded that the hearing officer’s decision should be
affirmed and that David G.’s request for monetary damages should be denied. David G.
has now filed objections to Judge Angell’s R & R, and the school district has filed a
response to David G.’s objections.
II. Analysis
A. IDEA claim
The process of adjudicating cross motions for judgment on the administrative

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The court construes the school district’s opposition as a cross motion for
judgment on the administrative record and summary judgment.
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record in IDEA cases is not a “true summary judgment procedure,” but rather is
effectively a “bench trial on a stipulated record.” Ojai Unified Sch. Dist. v. Jackson, 4
F.3d 1467, 1472 (9th Cir. 1993). The district court conducts a “modified de novo”
review, giving “due weight” to the hearing officer’s decision. S.H. v. State-Operated Sch.
Dist. of City of Newark, 336 F.3d 260, 270 (3d Cir. 2003); see also Susan N. v. Wilson
Sch. Dist., 70 F.3d 751, 757-58 (3d Cir. 1995); 20 U.S.C. § 1415(i)(2)(C). If a district
court declines to adopt the hearing officer’s factual findings, “it is obliged to explain
why.” S.H., 336 F.3d at 270 (3d Cir. 2003) (internal quotation marks and citation
omitted). A special rule applies to the hearing officer’s credibility determinations—a
district court must accept them “unless the nontestimonial, extrinsic evidence in the
record would justify a contrary conclusion.” L.E. v. Ramsey, 435 F.3d , 349 n.4 (3d Cir.
2006) (emphasis in original).
David G. objects to the R & R’s conclusion that the school district provided him a
FAPE at all times during his second through sixth-grade school years. He contends that
the evidence in the record establishes that the Individualized Education Programs
(“IEPs”) the school district developed and implemented during his second through sixthgrade school years were not “reasonably calculated to enable [him] to receive educational
benefits,” and that he therefore did not receive a FAPE. See Bd. of Educ. of Hendrick
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982). The hearing officer
acknowledged deficiencies in David G.’s IEPs, but concluded, based on a review of

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David G.’s educational records and the testimony of his educators, that these deficiencies
did not deprive David G. of educational benefits and, indeed, that he was offered “an
excellent program.” Giving due weight to the hearing officer’s decision, I agree with
Judge Angell’s conclusion that any deficiencies in David G.’s IEPs did not deprive him of
a FAPE. See id. at 200-201 (holding that the IDEA’s guarantee of a FAPE entitles
disabled students to a “basic floor of opportunity” in the form of “access to specialized
instruction and related services which are individually designed to provide educational
benefit”).
David G. further argues that he failed to make meaningful progress during the
relevant school years and that the school district, having notice of David G.’s purported
lack of progress, was required to modify his IEP and its instructional approach. Based on
the testimony of David G.’s teachers and Dr. Thomas Barnes—a school district
psychologist characterized by the hearing officer as “an especially credible and instructive
witness”—the hearing officer concluded that David G. made “slow and steady progress,”
which, “given his moderately severe learning disability” amounted to the educational
benefit to which he was entitled. I agree with Judge Angell’s conclusion that “[t]he
Hearing Officer’s finding that David made slow and steady progress . . . is sound and
supported by proper evidence,” including David G.’s educational records, Dr. Barnes’s
analysis and interpretation of David G.’s standardized tests, and the testimony of David
G.’s teachers.

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Accordingly, I will overrule David G.’s objections and affirm and adopt Judge
Angell’s conclusion that the school district provided David G. with a FAPE in his second
through sixth-grade school years.
B. ADA and RA claims
David G. also opposes the R & R’s conclusion that judgment should be entered
against him on his claim for monetary damages under the ADA and § 504. The standards
for determining liability under the ADA and § 504 are substantially the same; to prevail
on a claim brought under either statute, a plaintiff must establish that he or she “(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
[his or] her disability.” Chambers v. Sch. Dist. of Philadelphia Bd. of Educ., 587 F.3d
176, 189 (3d Cir. 2009), citing Nathanson v. Med. Coll. of Pa., 926 F.2d 227, 230 (3d Cir.
1991).3 The Third Circuit has held that a school district’s failure to provide a FAPE
“could violate § 504,” and that a showing of intentional discrimination is not necessary in
order to establish liability. Ridgewood Bd. of Ed. v. N.E. ex rel M.E., 172 F.3d 238, 253
(3d Cir. 1999).
The same remedies are available for violations of the ADA as for § 504, see 42
U.S.C. § 12133, and these remedies are, in turn, “coextensive with the remedies available

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The Chambers opinion also noted that establishing liability under “[t]he
[Rehabilitation Act] requires the additional showing that the program receives federal
financial assistance.” Id. at 189 n.20.
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in a private cause of action brought under Title VI of the Civil Rights Act of 1964.”
Barnes v. Gorman, 536 U.S. 181, 185 (2002); see also 29 U.S.C. § 794a(a)(2). While it
has long been established that “plaintiffs may seek monetary damages directly under §
504,” see W.B. v. Mathula, 67 F.3d 484, 494 (3d Cir. 1995), and so presumably under the
ADA as well, the Third Circuit has not yet ruled on the more specific question presented
here—whether monetary damages are available in the absence of a showing of intentional
discrimination.
In Guardians Association v. Civil Service Commission of New York City, a
divided Supreme Court held that private individuals must prove intentional discrimination
in order to recover compensatory damages under Title VI.4 463 U.S. § 582, 602-03, 607
(1983); see also Alexander v. Sandoval, 532 U.S. 275, 282-83 (2001) (“In Guardians, the
Court held that private individuals could not recover compensatory damages under Title
VI except for intentional discrimination.”(emphasis in original)). All of the courts of
appeals that have addressed the question whether, in the wake of Guardians,
compensatory damages are precluded in actions brought under the ADA and § 504 absent
a showing of intentional discrimination, have concluded that a showing of intentional

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Four members of the five-Justice majority on the issue of the availability of
compensatory damages also concluded that a showing of intentional discrimination was
necessary to establish liability under Title VI and its implementing regulations; however,
a different five-Justice majority concluded that a showing of discriminatory intent was
“not an essential element of a Title VI violation.” Id. at 607.
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discrimination is necessary.5 Several district courts within the Third Circuit have also so
concluded. See Chambers v. Sch. Dist. of Philadelphia Bd. of Ed., __ F. Supp. 2d

, at *

12 (E.D. Pa. 2011) (collecting cases). I know of only one district court opinion in this
Circuit following a different path—namely my opinion in Allyson B. v. Montgomery
County Intermediate Unit No. 23, 2008 WL 2405771 at *3 (E.D. Pa.). I now conclude
that I was wrong. Because the ADA and § 504 adopt Title VI’s remedies and private
individuals must prove intentional discrimination in order to recover compensatory
damages under Title VI, David G. must prove intentional discrimination in order to
recover monetary damages for a violation of the ADA or § 504.
Several of the courts of appeals that have adopted the intentional discrimination
standard have further concluded that “intentional discrimination can be inferred from a
defendant’s deliberate indifference to the strong likelihood that pursuit of its questioned
policies . . . will result in a violation of federally protected rights.” Powers, 184 F.3d at
1153; see also Meaghley, 639 F.3d at 389; Loeffler v. Staten Island University Hosp., 582
F.3d 268, 275 (2d Cir. 2009); Duvall v. County of Kitsap, 260 F.3d 1124, 1138-39 & n.
13 (9th Cir. 2001). In the present case, it is not necessary to determine the standard by

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See Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 126 (1st Cir. 2003); Bartlett
v. N.Y. State Bd. of Law Exam’rs, 156 F.3d 321, 331 (2d Cir. 1998), vacated on other
grounds 527 U.S. 1031 (1999); Marvin H. v. Austin Independent Sch. Dist., 714 F.2d
1348, 1356-57 (5th Cir. 1983); Meagley v. City of Little Rock, 639 F.3d 384, 389 (8th Cir.
2011); Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998); Powers v. MJB
Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999); Wood v. President and Trustees
of Spring Hill College, 978 F.2d 1214, 1219-20 (11th Cir. 1992).
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which intentional discrimination may be proven because David G. does not object to the
R & R’s conclusion that he “has not cited to any evidence in the record that would
establish a genuine issue of material fact as to intentional discrimination by the school
district in failing to provide David a FAPE in the area of reading in the ninth and tenth
grades.”
Accordingly, I will overrule David G.’s objections and approve and adopt Judge
Angell’s determination that the school district is entitled to summary judgment on David
G.’s claim for monetary damages.
III. Order
AND NOW, this 10th day of April, 2012, upon consideration of David G.’s
Motion for Judgment on the Administrative Record and Council Rock School District’s
response in opposition, and after review of the Report and Recommendation of United
States Magistrate Judge M. Faith Angell, it is hereby ORDERED that:
1.

The Report and Recommendation (Docket No. 75) is APPROVED and
ADOPTED as supplemented by this Memorandum;

2.

David G.’s objections to the Report and Recommendation (Docket No. 76)
are OVERRULED;

3.

David G.’s motion for judgment on the administrative record and for
summary judgment (Docket No. 68) is DENIED and Council Rock School
District’s motion for judgment on the administrative record and summary
judgment (Docket No. 70) is GRANTED;

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4.

The hearing officer’s determination that Council Rock School District
provided David G. a FAPE in his second through sixth-grade school years is
AFFIRMED;

5.

David G.’s request for monetary damages is DENIED.
BY THE COURT:

/s/ Louis H. Pollak
Pollak, J.

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