Wednesday, September 11, 2013
The over-identification of low-income and students of color in special education classes has been a problem for decades. But do children who are misidentified and placed in special education have a cause of action under the Individuals with Disabilities Education Act? No, according to the Third Circuit in a decision released last week in S.H. v. Lower Merion School District. S.H. is an African-American student who received Title I remedial instruction services from first grade to her sophomore year in high school. After testing in high school, several experts and the school district concluded that S.H. had been misdiagnosed as disabled. The experts found that while S.H. had underperformed on proficiency tests in her early education, earlier assessments that S.H. was learning disabled may have failed to consider the impact of a family tragedy that deeply affected S.H. in third-grade, when a murder-suicide took the lives of five of her relatives, and of the accidental death of one of S.H.’s best friends four years later. S.H. told her teachers that she did not think that she belonged in special education and protested her placement by refusing to attend speech therapy. In the 5th grade, her reading scores showed proficiency, and she made the honor roll in 7th and 8th grades. While S.H. was in special education, there was not time in her schedule to take some core courses such as eighth-grade science and Spanish. When S.H. was reevaluated in high school, evaluators concluded that she was not, and likely never was disabled. S.H. was removed from special education in her last two years of high school. She sued the school district for compensatory education and damages under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act (ADA). The district court dismissed the IDEA claim outright for failing to state a claim and granted the school district’s summary judgment motion on the § 504 and ADA claims.
The Third Circuit found that the protections and remedies of the IDEA extend do not extend beyond children with disabilities. The Court interpreted the plain language of the IDEA to apply only to “children with disabilities and their parents” that does not include “children who are mistakenly identified as disabled, but who are, in fact, not disabled.” But S.H.’s § 504 and ADA claims were not barred by the statutes’ plain language because those laws protect disabled persons and persons who who are “regarded as” having a disability. The Third Circuit then turned to another issue of first impression: which standard of intentional discrimination to apply to S.H.’s claims. The court adopted the majority of circuits’ view that the deliberate indifference standard “is better suited to the remedial goals of [Section 504] and the ADA than is the discriminatory animus alternative.” However, the circuit court upheld the district court’s grant of summary judgment, finding that S.H. could not show that the school district knew of or was deliberately indifferent to her misdiagnosis before S.H.'s evaluation in 2010. Read the opinion in S.H. v. Lower Merion School District here.