UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
J.M., by and through her Parents, Dana M. and Stephen M., and Dana M. and Stephen M., individually
Plaintiffs, Civil Action No. 23-0559-RGA
V.
CHRISTINA SCHOOL DISTRICT,
Defendant.
MEMORANDUM OPINION
Caitlin Elizabeth McAndrews, MCANDREWS, MEHALICK, CONNOLLY, HULSE & RYAN, P.C., Wilmington, DE; Jacqueline C. Lembeck (argued), MCANDREWS, MEHALICK, CONNOLLY, HULSE & RYAN, P.C., Berwyn, PA,
Attorneys for Plaintiffs.
Jennifer Marie Kinkus (argued), YOUNG, CONAWAY, STARGATT & TAYLOR LLP, Wilmington, DE,
Attorney for Defendant.
never ll 2024
aluincd STATES DISTRICT JUDGE: Plaintiffs J.M. and her parents (“Parents”) appeal to this Court from an administrative
Hearing Panel’s denial of tuition reimbursement, an equitable remedy under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seg. Plaintiffs also seek remedy
under Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794; the
Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, e¢ seq.; the federal and
state implementing regulations of the foregoing statutes; and 14 Del. Admin. C. § 922 ef seq.
(D.I. 18 at 1).! Before me are Plaintiffs’ Motion for Judgment on the Administrative Record
(D.I. 17) and Defendant Christina School District’s motion for the same (D.I. 19). I have
considered the parties’ briefing. (D.I. 18, 21) (Plaintiffs’ briefs); (D.I. 20) (Defendant’s brief). I
heard oral argument on November 12, 2024. (D.I. 23). For the reasons set forth below,
Defendant’s motion is GRANTED, and Plaintiffs’ motion is DENIED.
I. BACKGROUND
J.M. is a minor diagnosed with a neurodevelopmental disorder, ADHD, and Other
Specified Anxiety Disorder. (D.I. 18 at 2). She was born with congenital heart disease, which
has necessitated continued medical care. (/d.). J.M.’s conditions led to difficulty in math,
reading, and writing (id. at 1), which prompted the District to identify J.M. as requiring special
education under the IDEA in her fifth grade. (/d. at 2). A year later, frustrated with J.M.’s lack
of progress in the District, J.M.’s parents transferred her to The Pilot School (“Pilot”), a
| Plaintiffs barely brief anything other than the IDEA. Plaintiffs make no independent argument in support of tuition reimbursement under the ADA or Section 504. Plaintiffs make no argument at all concerning Delaware law. The Delaware law argument is forfeited. See Higgins v. Bayada Home Health Care Inc., 62 F.4th 755, 763 (3d Cir. 2023) (“[A]rguments raised in passing . . . but not squarely argued|[] are considered [forfeited.]” (quoting John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997)). “specialized school in Wilmington, Delaware for students with learning difficulties.” (Jd. at 6).
There, she was placed in a cohort of approximately six students, received individualized services,
and benefitted from weekly speech-language therapy, occupational therapy, and physical
therapy. (/d.) Her performance in math and reading improved. (/d.) J.M. remained at Pilot
until eighth grade, after which she attended Centreville Layton School (“Centreville”), a private
high school in Wilmington, Delaware offering classes of approximately seven to eight students
and individualized accommodation plans for each student. (Jd. at 9).
Meanwhile, the District offered an alternative: for each of the 2021—2022 and 2022-2023
school years in dispute, the District offered J.M. an Individualized Education Program (“IEP”), a
statement of the services, modifications, and supports to be provided for J.M. in public school.
20 U.S.C. § 1414(d)(1)(A). The purpose of an JEP is to ensure that a student receives a free
appropriate public education (““FAPE”) as required by the IDEA. 20 U.S.C. § 1414(9). Though
each IEP was directed toward J.M.’s particular strengths and weaknesses, containing goals for
“written expression, reading comprehension, math problem solving and listening
comprehension” (D.I. 20 at 19), the services in each IEP differed significantly from those
available at Pilot and Centreville. Rather than being in a small group, J.M. would be placed in a
general education environment (“A” setting) of thirty-five to forty students (D.I. 20 at 11),”
where she would be provided with Accommodations, Modifications, and Supports (“AMS”)
such as preferential seating, specially adapted learning tools, and teacher check-ins, accompanied
with ten- to fifteen-minute small group instruction sessions. (D.I. 20 at 8-11, 13-14). Core
2 Other settings relevant to this opinion include the B, C, and D settings. A “B” setting includes services provided both in separate special education classes and the typical “A” setting; a “C” setting emphasizes separate education at the same facility; a “D” setting is a separate school. (D.I. 16-4 at 24 of 39). pet rriia ab TO Fa A Rees FA an a A PS mae iP ik a oo SIE: Lee KHEG LAP fi fd Pee 4 OF Pae OPT CRUG PP,
classes would be co-taught by a certified general education teacher and a certified special
education teacher. See Original Administrative Record (“AR”)’ at DOE000235, DOE000282,
DOE001446.*
J.M.’s parents rejected both IEPs and filed a Due Process Complaint with the Delaware
Department of Education seeking tuition reimbursement for J.M.’s education at Pilot and
Centreville for the 2021 and 2022 school years. (D.I. 18 at 2). Following an evidentiary hearing
held across multiple days, an independent administrative hearing panel (“Panel’’) found that the
District had offered J.M. a FAPE and that J.M.’s parents were not entitled to tuition
reimbursement. (D.I. 20 at 1). J.M.’s parents appeal the Panel’s decision, and both parties have
moved for Judgment on the Administrative Record. (D.I. 17, 19).
II. LEGAL STANDARD
Under the IDEA, J.M. is entitled toa FAPE. 20 U.S.C. § 1409(9) & 34 C.F.R. § 300.17.
To ensure the appropriateness of the education provided, the IDEA requires school districts to
form IEPs that implement instructional programs tailored to the student’s ability and skills.
J.D.G. v. Colonial Sch. Dist., 748 F. Supp. 2d 362, 367 (D. Del. 2010). An JEP must “consist[ ]
3 A notice of filing of the original administrative record is docketed at D.I. 6, but the original administrative record itself is filed only in paper and is not available electronically. Cites to the original administrative record use the “DOE” numbers at the top-right corner of each page. The parties filed an electronic supplement to the administrative record (D.I. 16) that contains supplemental exhibits and improved scans of certain exhibits in the original administrative record. Where possible, citations are to D.I. 16.
4 The parties dispute whether all or just some of J.M.’s core classes would be co-taught. (D.I. 23 at 50:10-16, 52:3-14). The Panel was not asked to address this issue. The Panel’s opinion therefore did not resolve it. The Panel’sl opinion says that J.M. would be placed in an “inclusion setting.” AR at DOE000040. To the extent that resolving this dispute depends on making determinations as to witness credibility, see, e.g., id. at DOE001818, I am ill-equipped to make this determination, not having seen the witnesses testify. For the reasons outlined in this opinion, however, I find that regardless of whether the District offered J.M. a co-taught setting for all or just some of her classes, each JEP constituted an offer of FAPE. 4 +. OYA riba oa a Po PPPaPT TEP eresa Toews Maen Roan Eoovt 4TA 4 Pare Deere eiPS ai. Ff re Raid fF eb Pade SOF 14 KaAOQCILE FF!
of a specific statement of a student’s present abilities, goals for improvement of the student’s
abilities, services designed to meet those goals, and a timetable for reaching the goals by way of
the services.” Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 589 (3d Cir. 2000). IEPs must
be “reasonably calculated to enable a child to make progress appropriate in light of the child's
circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386,
399 (2017). The central inquiry is “whether the IEP is reasonable, not whether the court regards
it as ideal.” Jd. The question of whether an IEP is appropriate is a question of fact. S.H. v.
State-Operated Sch. Dist. of City ofNewark, 336 F.3d 260, 270 (3d Cir. 2003).
If the parents of a child with a disability do not agree with the IEP offered by a school
district, they may request a due process hearing. 20 U.S.C. § 1415()(1). Ifa party disagrees
with the result of the administrative review process, the party may appeal that result to the
District Court. 20 U.S.C. § 1415(i)(2)(A). The party challenging the IEP carries the burden of
proof. Schaffer v. Weast, 546 U.S. 49, 62 (2005). This Court applies a “modified de novo”
standard of review to the administrative panel's decision. S.H., 336 F.3d at 270. Under that
standard, this Court must make its own findings of fact by a preponderance of the evidence, but
must give “due weight” to the panel’s findings of fact. Shore Reg’l High Sch. Bd. ofEduc. v.
P.S. ex rel. P.S., 381 F.3d 194, 199 (3d Cir. 2004). “Due weight” means that “[flactual findings
from the administrative proceedings are to be considered prima facie correct,” and “[i]fa
reviewing court fails to adhere to them, it is obliged to explain why.” Jd. (citations omitted).
The Panel’s credibility determinations of live witness testimony are given “special weight,”
meaning that the Court must accept those determinations “unless the non-testimonial, extrinsic
evidence in the record would justify a contrary conclusion.” Jd. (citation omitted). “[T]he word ” Side ae! pelea!
‘justify’ demands essentially the same standard of review given to a trial court's findings of fact
by a federal appellate court[,|” id., that is, clear error.
Were the Court to determine that the District did not offer a FAPE, two questions would
remain: first, whether the private schools at which J.M.’s parents placed her were appropriate;
second, whether equitable considerations justify denying reimbursement. See Florence Cnty.
Sch. Dist. Four v. Carter by & through Carter, 510 U.S. 7, 15-16 (1993); Sch. Comm. of Town
ofBurlington, Mass. v. Dep’t ofEduc. ofMass., 471 U.S. 359, 369-70 (1985); C LH. v. Cape
Henlopen Sch. Dist., 606 F.3d 59, 67 (3d Cir. 2010); 20 U.S.C. § 1412(A)(10)(C) (iii).
Il. DISCUSSION
A. Both the 2021 and 2022 IEPs were Offers of a FAPE.
Per Endrew F., the primary question before this Court is whether the 2021 and 2022 IEPs
were “reasonably calculated to enable [J.M.] to make progress appropriate in light of [her]
circumstances.” 580 U.S. at 399. I conclude that they were. Both the 2021 and 2022 IEPs
offered services directed explicitly toward J.M.’s primary areas of weakness, including, among
others, written expression, reading comprehension, math problem-solving, visual perception,
attention to task, and task anxiety. (D.I. 16-4 at 10-21 of 39; D.I. 16-6 at 12-21 of 24). After
considering the evidence, which included witness testimony, psychoeducational evaluation, AR
at DOE000025, “records from [Pilot,] input from her teachers, a classroom observation, and
input from her physical, speech, and occupational therapists,” id. at DOE000046, the Panel
determined that each IEP offered services tailored to J.M.’s individual circumstances and needs,
id. at DOE000048.
Parents argue that the available data does not support the District’s recommendations to
reduce the level of services J.M. was to receive. (D.I. 18 at 16). The Parents’ arguments, however, are not sufficient to meet Parents’ burden of demonstrating that the IEPs offered were
unreasonable.
First, Parents argue that J.M.’s evaluations demonstrate that J.M. requires a higher level
of services than the District’s IEPs offered. (/d. at 16-17). Two evaluations are most relevant: a
neuropsychological evaluation conducted in July of 2017 by Dr. Maya Zayat, a licensed
psychologist with Nemours Alfred I. duPont Hospital for Children (id. at 3) (“Nemours
Evaluation”), and an Evaluation Summary Report issued in October 2020 by the District. (/d. at
7) (‘2020 ESR”). The Nemours Evaluation recommended “substantial individualization and
direct services,” including small group instruction, along with other interventions such as
additional time to complete tasks, frequent brief breaks, and preferential seating. (D.I. 16-1 at 7—
9). The 2020 ESR took note of J.M.’s performance across a range of areas, including listening
comprehension, written expression, and math concepts and applications, in which J.M. scored in
the 0.2, 7th, and 10th percentiles, respectively (D.I. 18 at 7, citing AR at DOE000174—-175), and
concluded that J.M. suffered from a learning disability in reading comprehension, math problem
solving skills, listening comprehension, and written expression. (D.I. 18 at 7, citing AR at
DOE000183-185).
It is incorrect to suggest, as Parents do, that the evaluations demonstrate that J.M.
required a small group setting (id. at 17) to satisfy the IDEA. First, this mischaracterizes the
Nemours Evaluation, which only states that J.M. “would benefit from” a smaller class size. (D.I.
16-1 at 8). Other recommendations in the Nemours Evaluation, like preferential seating, clearly
contemplate a larger class environment. (/d. at 9). The 2020 ESR, for its part, did not make
specific recommendations as to class size or other AMS. AR at DOE000157-187. Regardless,
even if the recommendations included in the Nemours Evaluation were framed as a mandate, the hes of - PSP rs Fe A ro :
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District would not necessarily be required to include every recommendation in the IEPs. The
IEP must merely be reasonable, not ideal. Endrew F., 580 U.S. at 399.
Second, Parents point to J.M.’s success at Pilot as evidence that a reduction in services
was unjustified in the record. (D.I. 18 at 17). It is true that J.M. showed progress at Pilot (D.I.
16-4 at 2; D.I. 16-20 at 2-5; D.I. 16-21 at 2-28), but this is not the standard for deciding whether
the District’s proposed JEPs constituted a FAPE. Nowhere does the IDEA suggest that public
school districts’ IEPs be measured against the benchmark of private, specialized academic
institutions—again, the “ideal” is not the relevant standard. Endrew F., 580 U.S. at 399. “The
focus must remain on whether the program the District offered was appropriate, not whether [the
private school’s] program was better.” Ruari C. by & through Ronan C. v. Pennsbury Sch. Dist.,
2023 WL 5339603, at *7 (E.D. Pa. Aug. 18, 2023), aff'd, 2024 WL 3633700 (3d Cir. Aug. 2,
2024).
Further deflating Plaintiffs’ point is that one of their strongest concerns with the District’s ©
IEPs, as compared to Pilot’s, is class size and the general education setting. (D.I. 18 at 12).
While it may be true that J.M. would be better served individually in a smaller setting, it is also
true that the IDEA exhibits a strong statutory preference for integrating children with disabilities
into the general educational setting, approving removal from that setting only “when the nature
or severity of the disability of a child is such that” integration “cannot be achieved
satisfactorily.” 20 U.S.C. § 1412(a)(5). “[Flor most children, a FAPE will involve integration in
the regular classroom and individualized special education calculated to achieve advancement
from grade to grade.” Endrew F., 508 U.S. at 401. As the Third Circuit has noted, the IDEA’s
tension between individualized programs and the preference for “mainstreaming” is often best
resolved through the use of “supplementary aids and services.” Oberti by Oberti v. Bd. ofEduc. AN PM esa ere ce ee eek ed oT eR Sa TPR ep A Pe ame eA Ss wt ob A Maes? A~ PAOCUIMENRT Re LA DES “4 RHeEG meld TAii :fea? g Page Got POCAAANS ASE i4é OFPannell ALP ARe BO teat
of Borough of Clementon Sch. Dist., 995 F.2d 1204, 1214 (3d Cir. 1993) (citation omitted). The
District employed just such an approach here.
Third, Parents contrast J.M.’s success at Pilot with her struggles in the District, arguing
that if J.M. did not succeed in the general education environment before, she will not in the
future. (D.I. 18 at 19). This argument is unpersuasive for two reasons. One, Parents’ assessment
of J.M.’s academic performance is not equivalent to the standard of services the District is
legally obligated to provide under the IDEA. “[The student’s] success at [the private school] is
relevant, but only to the extent that it shows [the student’s] abilities and thus the level of progress
the District should have strived for.” A.M. v. Wallingford-Swarthmore Sch. Dist., 629 F. Supp.
3d 285, 299 (E.D. Pa. 2022) (citations omitted). Two, past is not always prologue—not only are
there significant differences between the 2017 IEP and the 2021 and 2022 IEPs (compare D.I.
16-2 with D.I. 16-4, 16-6), but J.M.’s circumstances also changed in the interim. The District
considered reports from Pilot indicating J.M.’s progress when it crafted the 2021 and 2022 IEPs.
See, e.g., AR at DOE001436 (testimony from the District’s Director of Special Services noting
the role J.M.’s progress at Pilot played in determining the extent of physical therapy in the 2021
IEP), DOE001154—1157 (testimony from Newark High School’s Special Education Coordinator
noting math and reading “progress updates” from Pilot that the 2022 IEP team used). For
example, the 2022 IEP relied upon reports from five different teachers at Pilot regarding J.M.’s
academic progress (D.I. 16-6 at 5 of 24), an Occupational Therapy report regarding J.M.’s visual
sequential memory (id. at 8 of 24), and both a Triennial Assessment and two Physical Therapy
Progress Reports regarding J.M.’s physical mobility and balance. (/d. at 8—9 of 24).
Fourth, Parents make a related argument that the District’s IEPs offered no “transition
plan” through which J.M.’s AMS would be gradually phased out. (D.I. 18 at 19). Parents point to testimony from Newark High School’s Special Education Coordinator suggesting that when
removing supports, “[one] usually phase[s] the supports out, [rather than] delet[ing] them all at
one time.” (Ud.; AR at DOE001241). This argument fails for three reasons. First, Parents
overstate the Coordinator’s testimony, which is consistent with the District’s IEPs. Though the
IEPs represent a significant cutback in J.M.’s AMS, the Coordinator was correct that J.M.’s
AMS were not deleted all at one time—as outlined above, both IEPs retained significant AMS to
aid in J.M.’s education. Second, each IEP included interventions that would aid in J.M.’s
transition to public school, including consultative physical therapy to assist in J.M.’s transition
“to a large multilevel environment” (D.I. 16-4 at 6 of 39 (2021 IEP), D.I. 16-6 at 19 of 24 (2022
IEP)), a gradual increase in task duration depending on J.M.’s success in the A setting (D.I. 16-4
at 13 of 39), and a range of AMS intended to ameliorate task anxiety, much of which would be
attributable to J.M.’s new environment (D.I. 16-4 at 14 of 39 (2021 IEP), D.I. 16-6 at 21 of 24
(2022 IEP), AR at DOE001610 (testimony of clinical psychologist as to J.M.’s tendency to be
overwhelmed by large groups)). If these interventions proved insufficient, a Special Education
Coordinator monitoring J.M.’s progress would be able to schedule an JEP revision. AR at DOE
001143-1144. Third, Parents cite no authority suggesting that inclusion ofa transition plan is a
per se requirement for providing a FAPE under the IDEA. Especially considering testimony
from the District’s psychologist that placement in a larger educational environment would be beneficial to J.M.’s social and emotional health, see AR at DOE000779, the District’s offered
means for transitioning J.M. to that environment did not preclude a finding of FAPE.°
5] also note that there is seemingly no record of Parents’ objection to the lack of transition plan specifically in either IEP. At oral argument, counsel for Parents represented that Parents had raised such an issue during the IEP meetings with the District (D.I. 23 at 14:9-12, 54:39), but the citation provided by counsel (see AR at DOE000537) is to J.M.’s closing brief in the Due Process Hearing—not to any evidence that parents raised this issue at the IEP meetings. 10 Fifth, Parents take issue with the Panel opinion’s lack of citations in its analysis and
discussion. (D.I. 18 at 22). I agree with Parents that the Panel’s opinion could be improved, but
I disagree that its opinion is so lacking as to find no support in the record. The lack of citations
in the Panel opinion’s discussion section bears no connection to the merits of the Panel’s
conclusion, which was based on extensive findings of fact for which the Panel diligently
provided citations. AR at DOE000023-41. It is clear that many of these findings of fact support
the Panel’s conclusion. For example, the Panel noted J.M.’s strong performance at Pilot, id. at
DOE000025, her “unremarkable” testing with respect to “social, emotional, and behavioral
functioning,” id. at DOE000028, the 2021 IEP team’s review of records from Pilot School and
J.M.’s assessments and evaluations, id. at DOE000034, and each IEP’s terms as they related to
J.M.’s specific needs, id. at DOE000030-34, DOE000036-41. Plaintiffs challenge none of these
findings of fact, or any of the other findings of fact on which the Panel based its decision.
Applying the modified de novo standard, see S.H., 336 F.3d at 270, I accept the Panel’s findings.
Sixth, Parents assert that the following quote from the Panel’s decision demonstrates that
the Panel’s decision was based on “patently incorrect” (D.I. 18 at 21) conclusions: “While the
record is devoid of any evidence to support a finding that [J.M.] would thrive in any setting other
than ‘A,’ testimony of a number of credible witnesses support a finding that she could actually
regress in any alternative setting.” AR at DOE000045. According to Parents, the record is
replete with evidence of J.M.’s ability to thrive in non-A settings—the most obvious being her
successful tenure at Pilot. (D.I. 18 at 21). With that being the case, Parents argue, J should
overturn the Panel’s opinion. I disagree. Parents read the Panel’s comment out of context to
suggest that it found any non-A setting to be inappropriate. The Panel’s comment, however—in
fact, its entire opinion—is unconcerned with non-A settings. The Panel’s inquiry was whether
1] Fy~~ arora a"ae) ~PApus APE FUNEE OFA, A OSes my Morac irsnaentwfA f mae Pe ae BE bay es A : i : Fe : / Xe CRI Hh dl te US US Ue, RAPER EER ER ale
the setting included in the IEPs—the A setting—necessarily precluded a FAPE. With that being
the case, the more natural interpretation of the Panel’s comment (as poorly phrased as it may be)
is that the record lacks any evidence showing that J.M. required a non-A setting to thrive
academically. I am inclined to view the Panel’s comment this way because, at multiple points in
the opinion, including the immediately preceding paragraph, the Panel acknowledges J.M.’s
progress at Pilot. See, e.g., AR at DOE000025, DOE000036, DOE000045. It would be strange
for the Panel to assert that there was no evidence of the same thing the Panel repeatedly
acknowledged.
The Panel buttresses its conclusion in the challenged sentence by explaining that not only
was the A setting appropriate, any other setting may have disserved J.M., as explained by
credible witnesses. Though the Panel does not explain which witnesses those may be, I can
fairly conclude that the Panel is referring to the District’s school psychologist, see AR at
DOE000778—781, the District’s Director of Special Services, see id. at DOE001441-1443, anda ©
Special Education Coordinator, see id. at DOE001360-1361, each of whom commented on the
appropriateness of the A setting in comparison to its alternatives. The Panel’s crediting of these
witnesses’ testimony receives “special weight.” Shore Reg’l High Sch. Bd. of Educ., 381 F.3d at
199. I decline to disregard the Panel’s entire finding on the basis of one errant comment for
which a reasonable interpretation presents itself.°
6 Plaintiffs argue that the Panel erred as a matter of law by allowing after-the-fact testimony to retrospectively alter the contents of the IEPs. (D.I. 18 at 20-21). It is true that IEPs must be assessed based on the written document. See D.S. v. Bayonne Bd. ofEduc., 602 F.3d 553, 564— 55 (3d Cir. 2010) (citing Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 762 (3d Cir. 1995)). Plaintiffs cite to just two examples of such testimony, neither of which seems particularly significant. (D.I. 18 at 23, citing AR at DOE001477 (“60 day temporary IEP”); AR at DOE001461 (time telling can be taught in eighth grade math class)). There is absolutely no indication in the Panel’s Decision that it relied on such testimony. Thus, the identified testimony did not amend or alter the IEPs.
12 PS ses ’ 5 ~ é rm es OA a . eS PAM ~ — raPoa - aefa PAE Bae a j CA OELay ae Beh Oe So BENE Ay PAYPERRO Yio rGEay 2 ft Le tet Ub Gab LY Se PALA, LOMAS PPE bad
To conclude, Plaintiffs’ argument boils down to asserting that the District’s IEPs are
simply not good enough. The Panel, considering the concrete goals set by each IEP, the
numerous Accommodations, Modifications, and Supports designed to support J.M. in the general
education environment, the small-group and one-on-one instruction time set aside for J.M.
throughout the week, as well as the Panel’s own assessment of the evidence before it, decided
otherwise. See AR at DOE000048. Short of “substitut[ing] [my] own notions of sound
educational policy for those of local school authorities,” S.H, 336 F.3d at 270, I see no basis for
departing from the Panel’s determination. Because I find that the 2021 and 2022 IEPs offered a
FAPE, it is unnecessary to determine whether Pilot and Centreville were appropriate placements,
or whether equitable considerations justify denying relief. See Carter, 510 U.S. at 15-16;
Burlington, 471 U.S. at 369-70.
B. For the Foregoing Reasons, Plaintiffs’ § 504 and ADA Arguments Fail.
In addition to seeking relief under the IDEA, Plaintiffs have brought their claim under
§ 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and the Americans with Disabilities Act ,
of 1990, 42 U.S.C. § 12101, et seg. These claims rise and fall with the Plaintiffs’ IDEA claim.
Per W.B. v. Matula, there are “few differences, if any, between IDEA’s affirmative duty and
§ 504's negative prohibition. Indeed, the regulations implementing § 504 adopt the IDEA
language.” 67 F.3d 484, 492 (3d Cir. 1995) (citing 34 C.F.R. § 104.33(a)).’ Furthermore, as
Plaintiffs concede, their ADA claim is contingent on their § 504 claim. (D.I. 18 at 16).
’ Parents cite one case, Lauren G. ex rel. Scott G. v. W. Chester Area Sch. Dist., 906 F. Supp. 2d 375 (E.D. Pa. 2012), in which a court granted tuition reimbursement under § 504 during a period for which no relief was granted under the IDEA. That case rested, however, on a determination that the statute of limitations for relief under the IDEA had run, not a substantive difference between the standards for relief under § 504 and the IDEA. See id. at 396 n.15.
13 IV. CONCLUSION
The District’s 2021 and 2022 IEPs both offered a free appropriate public education under
the Individuals with Disabilities Education Act. Both are the result of careful consideration by
the District of the available information, and they are reasonably calculated to enable J.M.’s
academic progress.
An appropriate order will follow.
14