B.S.M. v. Upper Darby Sch. Dist.

103 F.4th 956

B. S. M.; Gabrielle M., Appellants v. UPPER DARBY SCHOOL DISTRICT

No. 23-1595

United States Court of Appeals, Third Circuit

Argued January 17, 2024

Opinion filed: June 4, 2024

Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No. 2-21-cv-05164), District Judge: Honorable Anita B. Brody

Michael J. Connolly, Dennis C. McAndrews, D. Daniel Woody [Argued], McAndrews Mehalick Connolly Hulse & Ryan, 30 Cassatt Avenue, Berwyn, PA 19312, Counsel for Appellants

Michele J. Mintz, Beth N. Shore [Argued], Fox Rothschild, 980 Jolly Road, Suite 110, Blue Bell, PA 19422, Counsel for Appellee

Before: JORDAN, BIBAS, and AMBRO, Circuit Judges

OPINION OF THE COURT

AMBRO, Circuit Judge

Student B.S.M. ("Brooklyn") and her parent Gabrielle M. filed an administrative special education due process complaint against the Upper Darby School District (the "School District" or "District") seeking compensatory education pursuant to both the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq., and Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794. The impartial special education hearing officer held that the District had denied Brooklyn a Free Appropriate Public Education ("FAPE") when it provided an inadequate 504 plan but had not violated its "Child Find" obligation to identify Brooklyn timely under either statute. Her family filed a complaint in the United States District Court for the Eastern District of Pennsylvania, which affirmed the hearing officer's decision. Granting judgment on the administrative record to the School District, the Court stated that having analyzed Brooklyn's Child Find claim under the IDEA, it need not separately analyze it under Section 504. We disagree and therefore vacate and remand.

I. BACKGROUND

Brooklyn is a thirteen-year-old student who attended Upper Darby schools through sixth grade, after which she was enrolled in private school. On appeal, her family contends that the School District violated its Child Find obligation to identify Brooklyn as eligible for services under Section 504 when it failed to perform a comprehensive evaluation of her until fourth grade, despite her family requesting a comprehensive evaluation as early as kindergarten. To evaluate this, we find it useful to describe Brooklyn's medical and educational history during the period at issue.

a. Kindergarten

Brooklyn's family claims that her academic and social-emotional problems were evident as early as kindergarten (the 2016-2017 year), when her teacher noted on Brooklyn's report card that she needed improvement in attention and verbal/physical "self[-]control." App. at 889. In the middle of that year, Gabrielle "requested that the [School] District conduct a full psychoeducational evaluation of" Brooklyn. App. at 37. It reviewed her academic records and concluded that a full evaluation was unnecessary given her satisfactory performance on classroom-based assessments ("CBA") and the Dynamic Indicators of Basic Early Literacy Skills ("DIBELS").¹ According to the School District's own records, however, Brooklyn was below or well below the benchmark in sound fluency, phoneme segmentation, letter naming, and the DIBELS composite score. Her reading CBA scores were mostly not yet proficient, and her math CBA scores also included multiple basic scores and one below basic score.

The School District proposed conducting a speech and language evaluation, to which Gabrielle agreed. The evaluation report showed that Brooklyn was eligible for special education services "under the IDEA disability category of Speech or Language Impairmen[t]," and the School District developed an Individualized Education Plan ("IEP") addressing those needs. Id. She received speech and language therapy for the remainder of her kindergarten year and through first grade and most of second grade.

Per the assessments at the end of her kindergarten year, Brooklyn was still not yet proficient in six academic areas related to both reading and math. The school did not, however, perform a Section 504 evaluation.

b. First Grade

Brooklyn continued to struggle in first grade, receiving below basic on her Measures of Academic Performance ("MAP") math assessments and basic on her MAP reading assessments. Her DIBELS reading assessments produced multiple below or well below basic scores in nonsense word fluency for whole words read, accuracy, and retell quality of response. She was still not evaluated for a Section 504 plan.

c. Second Grade

At the start of second grade, Brooklyn's scores were much the same: most of her MAP assessments were basic in both reading and math. Her DIBELS scores—as well as her scores on another benchmark assessment, the AIMSweb—indicated she was still below the benchmark on nonsense word fluency for whole words read and accuracy.

The facts are more contested as to Brooklyn's emotional struggles in this period. During an annual check-up with her family physician, she expressed suicidal ideation. Concerned whether she truly felt that way or was "saying these things [ ] for attention," App. at 847, Gabrielle had Brooklyn evaluated by the Child Guidance Resource Center on February 18, 2019, where a licensed psychologist diagnosed her with "Other Specified Depressive Disorder" and referred her to weekly outpatient therapy, App. at 847-48.

The District Court found it to be "unclear" whether Gabrielle shared this diagnosis with the School District. To undermine any inference that it knew of the diagnosis, the District points to the family's actions during Brooklyn's reevaluation process under the IDEA, which took place around the same time as her private psychological evaluation. As part of that process, Gabrielle completed a parent input form, received February 26, 2023; she stated that Brooklyn's strengths were in "reading, math, [and] art[,]" and that she needed a "small teaching environment" and "calm and patient surroundings." App. at 801. Brooklyn's father provided a parent input form the same day, stating that her strengths were in "reading, writing, [and] art[,]" and that she needed help in math. Id. Neither parent mentioned, however, Brooklyn's depression diagnosis; instead, both left blank the "[m]edical history" section of the form. Before the hearing officer, Gabrielle testified that she did share the diagnosis with the school, but the officer, considering its absence on the parent input forms, as well as Gabrielle's inability to remember when she allegedly shared the diagnosis, found that she did not do so at that time.

On April 12, 2019, following evaluation by a speech and language pathologist, Brooklyn was discharged from special-education services.

d. Third Grade

Brooklyn continued to struggle emotionally and academically in third grade. In October, her classroom teacher called Gabrielle to discuss that "Brooklyn ha[d] been getting very upset often and at random times and often w[ould] begin to cry." App. at 839. At her mother's request and with the approval of the school principal, the teacher referred Brooklyn to the school social worker. According to her teacher, Brooklyn "lack[ed] self-confidence" and would sometimes "arrive at school upset and would refuse to talk and wasn't able to quickly/timely recover from the setback." App. at 673.

Academically, she started the year scoring below average on her reading and writing tests. In the third marking period, she scored below average on three of six assessments, and in the fourth marking period she was below average on all of them, plus all her math chapter tests. App. at 854-55.

e. Fourth Grade

At the beginning of fourth grade, Brooklyn scored below basic in math and reading MAP assessments, and her initial CBAs showed well below average performance in reading and below average in writing. Indeed, she would score above basic only once throughout the entire year.

Brooklyn's emotional struggles continued. In October of 2020, she was privately evaluated by another licensed psychologist, who diagnosed her with "Disruptive Mood Regulation Disorder" and recommended she receive ten hours per month of therapy. App. at 831. Following this report, issued October 5, Gabrielle requested that the School District provide Brooklyn with a 504 plan. The District promptly responded on October 8 by requesting her family's consent for a comprehensive psychoeducational evaluation of Brooklyn, which they granted. A board-certified school psychologist conducted the evaluation, reviewing Brooklyn's educational records and outside reports received by Gabrielle, obtaining input about Brooklyn's development and behavior from both her parents, observing her in a virtual classroom on two occasions, and administering cognitive and achievement testing with ratings from Brooklyn, Gabrielle, and one of her fourth-grade teachers.

The psychologist issued her evaluation report on December 4, concluding that Brooklyn was not eligible for specially designed instruction. Per the psychologist, there was no discrepancy between Brooklyn's ability and her performance, as is necessary to meet the IDEA criteria for a Specific Learning Disability, nor did she meet the IDEA criteria for Emotional Disturbance. The psychologist did, however, recommend that the District develop a 504 plan to address Brooklyn's social and emotional needs. On February 26, 2021, the School District convened to develop such a 504 plan addressing Brooklyn's math weaknesses as well as her social and emotional needs. Gabrielle consented to implementing the plan, though she wrote that she believed Brooklyn "need[ed] the support of an IEP." App. at 688.

Even after the 504 plan was implemented, Brooklyn continued to exhibit troubling behavior at home, and Gabrielle hired a private certified school psychologist to conduct an independent review of the School District's evaluation report. On June 8, 2021, after administering various cognitive and emotional tests...