B. S. M.; Gabrielle M. v. UPPER DARBY SCHOOL DISTRICT Appeal from the United States District Court for the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 23-1595
B. S. M.; GABRIELLE M.,
Appellants
v.
UPPER DARBY SCHOOL DISTRICT
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
Argued January 17, 2024
Before: JORDAN, BIBAS, and AMBRO, Circuit Judges
(Opinion filed: June 4, 2024)

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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
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”),

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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

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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
1 Brooklyn was evaluated under many testing systems and in
many subjects, with rubrics variously using “At Benchmark,”
“Proficient,” and “Average” to indicate satisfactory
performance. For more detailed description of her scores, see
App. at 698-701; 734; 772; 802-04; 850-56; 864-66; 895-915;
929-35.

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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.

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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

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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

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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 and interviewing Brooklyn and Gabrielle, that
psychologist issued her own evaluation report. She agreed
with the District that Brooklyn was not eligible for an IEP
under the IDEA category of Emotional Disturbance, despite
her depression and suicidal ideation, but opined that she was
eligible under the IDEA category of Specific Learning
Disability.

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f. The Administrative Process and the District
Court’s Decision
Unsatisfied with the School District’s decision not to
provide Brooklyn an IEP, Gabrielle filed an administrative due
process complaint on March 31, 2021, seeking the District to
develop an appropriate program and placement for Brooklyn,
as well as compensatory education dating back to March 31,
2019.2 Gabrielle contended that the District had denied
Brooklyn a FAPE under the IDEA and Section 504 because it
had: (1) failed to satisfy its Child Find requirement properly
and timely to identify and evaluate students who are potentially
eligible for special-education services; (2) incorrectly
determined that Brooklyn was not eligible for an IEP; and (3)
not offered Brooklyn an appropriate 504 plan. At evidentiary
hearings on June 16, 2021, and July 8, 2021, a total of seven
witnesses testified, and the parties, represented by counsel,
introduced exhibits into evidence before a hearing officer.
On August 27, 2021, the hearing officer issued her
decision and order. She concluded that the School District’s
kindergarten evaluation of Brooklyn was sufficiently timely
and thorough to satisfy its Child Find obligations, as was its
eventual issuance of a 504 plan. She also found that Brooklyn
did not meet her burden of proving IDEA eligibility under the
Specific Learning Disability or Emotional Disturbance
categories and that the District had provided Brooklyn with an
2 The IDEA contains a two-year statute of limitations, which
we have held extends to Section 504 claims regarding denial
of a FAPE. See P.P. ex rel. Michael P. v. W. Chester Area Sch.
Dist., 585 F.3d 727, 735-37 (3d Cir. 2009).

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appropriate program and placement under the IDEA following
its 2020 evaluation. However, the officer concluded that the
accommodations set within the District’s 504 plan for
Brooklyn were too general to address adequately her social-
emotional challenges, and she ordered that the District
reconvene to revise her plan. She also ruled that Brooklyn was
entitled to one hour of compensatory education per week
during which school would have been in session from January
11, 2021—the start date of her 504 plan—until an appropriate
plan was developed.
On November 23, 2021, Gabrielle filed a complaint in
the United States District Court for the Eastern District of
Pennsylvania. The parties agreed that discovery was
unnecessary and that the matter would be decided on the
administrative record, and Gabrielle moved for judgment on
that record. After receiving briefs from both parties, the Court
issued a memorandum opinion and order on March 3, 2023,
agreeing with the hearing officer’s decision in its entirety.
A notice of appeal followed.
II. JURISDICTION & STANDARD OF REVIEW
The District Court had jurisdiction under 28 U.S.C. §
331 and 20 U.S.C. § 1514(i)(2). We have jurisdiction pursuant
to 28 U.S.C. § 1291. See D.K. v. Abington Sch. Dist., 696 F.3d
233, 243 (3d Cir. 2012) (“We have jurisdiction over [the
District Court’s] final order [granting judgment on the
administrative record] under 28 U.S.C. § 1291.”). It is true that
a motion for judgment on the administrative record is similar
to a motion for summary judgment, and we typically do not
consider a denial of summary judgment to constitute a final and

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appealable order, but here the District Court’s order dealt with
all claims in the complaint and directed the clerk to close the
case.
We review the District Court’s findings of fact for clear
error but give a fresh review of the legal standards it applied
and its legal conclusions. D.S. v. Bayonne Bd. of Educ., 602
F.3d 553, 564 (3d Cir. 2010). “A finding of fact is clearly
erroneous when, after reviewing the evidence, the court of
appeals is left with a definite and firm conviction that a mistake
has been committed.” Shore Reg’l High Sch. Bd. of Educ. v.
P.S., 381 F.3d 194, 199 (3d Cir. 2004) (internal quotation
marks omitted).
III. ANALYSIS
a. The IDEA and Section 504 Generally
As this case deals with the relationship between these
two similar, but not identical, statutes, we review the School
District’s obligations under each.
The IDEA furnishes federal funds to States but imposes
two significant conditions on them: school districts must (1)
timely identify students who need special education services
and (2) provide a FAPE to those students. See D.K. v. Abington
Sch. Dist., 696 F.3d 233, 244 (3d Cir. 2012). This first
obligation is known as Child Find, and it places the burden on
school districts, not parents, to identify children in need of

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services. Id. at 249.3 They must “identif[y], locate[], and
evaluate[] . . . children with disabilities” who need “special
education and related services.” 20 U.S.C. § 1412(a)(3)(A).
Upon “notice of behavior that is likely to indicate a disability,”
school districts have a reasonable amount of time to evaluate
“the specific problems a potentially disabled student is
having[.]” D.K., 696 F.3d at 250 (quoting Ridley Sch. Dist. v.
M.R., 680 F.3d 260, 271 (3d Cir. 2012)). Under the IDEA, they
must evaluate the child “in all areas of suspected disability.”
20 U.S.C. § 1414(b)(3)(B). However, the evaluation need not
be “designed to identify and diagnose every possible
disability,” D.K., 696 F.3d at 250, nor must it identify
disabilities that are not reasonably suspected at the time. Cf.
P.P. ex rel. Michael P. v. West Chester Area Sch. Dist., 585
F.3d 727, 738-39 (3d Cir. 2009).
Section 504 “do[es] similar statutory work . . . by
prohibiting discrimination against students on the basis of
disability, and it has child find, evaluation, and FAPE
requirements[.]” P.P., 585 F3d at 735. However, it and the
IDEA are not the same. Crucially, “Section 504 defines
disability more broadly than the IDEA, and thus, some students
covered by Section 504 are not covered under the IDEA.”
Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 269 n.4
(3d Cir. 2014). Specifically, Section 504 defines disability to
include “any mental or psychological disorder,” 34 CFR
§104.3(j)(2)(i)(B), whereas the IDEA lists thirteen specific
categories of educational disabilities and requires that the
3 Pennsylvania codifies Child Find at 22 Pa. Code §§ 14.121-
14.125, which imposes screening and evaluation requirements
on school districts.

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student need special education and related services because of
them. 20 U.S.C. § 1401(3)(A).4
Moreover, the IDEA explicitly provides that “[n]othing
in [it] shall be construed to restrict or limit the rights,
procedures, and remedies available under . . . the Rehabilitation
Act or other [f]ederal laws protecting the rights of children with
disabilities . . . .” § 1415(l). To take a step back, in 1982 the
Supreme Court considered the relationship between the IDEA
and other laws protecting the interests of children with
disabilities. It held that the IDEA was “the exclusive avenue”
for those children to challenge the adequacy of their education.
4 Section 504 covers those with “(A) any physiological
disorder or condition, cosmetic disfigurement, or anatomical
loss affecting one or more of the following body systems:
neurological; musculoskeletal; special sense organs;
respiratory, including speech organs; cardiovascular;
reproductive, digestive, genito-urinary; hemic and lymphatic;
skin; and endocrine; or (B) any mental or psychological
disorder, such as intellectual disability, organic brain
syndrome, emotional or mental illness, and specific learning
disabilities[.]” 34 CFR § 104.3(j)(2)(i) (emphasis added).
Compare to the IDEA, which covers only “child[ren] [] (i) with
intellectual disabilities, hearing impairments (including
deafness), speech or language impairments, visual
impairments (including blindness), serious emotional
disturbance . . . , orthopedic impairments, autism, traumatic
brain injury, other health impairments, or specific learning
disabilities; and (ii) who, by reason thereof, need[] special
education and related services.” 20 U.S.C. § 1401(3)(A).

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Smith v. Robinson, 468 U.S. 992, 2009 (1982). In response,
Congress passed the Handicapped Children’s Protection Act of
1986, P.L. 99-372, 100 Stat. 796, which “overturned Smith’s
preclusion of non-IDEA claims.” Fry v. Napoleon Cmty. Sch.,
580 U.S. 154, 161 (2017). That Act, however, also imposed a
“carefully defined exhaustion requirement”; it requires
plaintiffs suing under those other laws for “relief that is also
available under [the IDEA]” first to exhaust the IDEA’s
administrative procedures. Id. (citing § 1415(l)). That is,
plaintiffs must go through a “due process hearing” before local
or state administrators. § 1415(f)(1)(A). If they are “aggrieved
by the findings and decision” of that hearing officer, they may
“bring a civil action” in “any State court of competent
jurisdiction or in a district court of the United States[,] without
regard to the amount in controversy.” § 1415(i)(2)(A). But
beyond this requirement to exhaust, Section 504 plaintiffs
retain the “rights, procedures, and remedies” otherwise
available to them. § 1415(l).
b. The District Court’s Decision
Though the language of § 1415(l) cautions against
treating Section 504 claims as subsumed within IDEA claims
and thereby resolved by their disposition, the District Court did
just that. After analyzing Brooklyn’s Child Find claim under
the IDEA, it relegated its analysis under Section 504 to a
footnote. Noting that her family argued that the hearing officer
“erroneously conflat[ed]” the requirements of the two claims,
the Court proceeded to repeat the error. App. at 21 n.15
(internal quotation marks omitted). It acknowledged that “the
reach of Section 504 is broader than that of the IDEA,” but
nonetheless held that a separate Section 504 analysis was
“unnecessary” because “[w]hen a party makes claims under
Section 504 that are ‘parallel’ to IDEA claims, ‘i.e., because

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both claims concern the District’s alleged FAPE denial,
resolution of the IDEA issue will also resolve the
Rehabilitation Act issue.” Id. (citations omitted). As the Child
Find claims were “parallel to one another because both concern
the same conduct by the [School] District in allegedly denying
a FAPE to Brooklyn[,]” no separate analysis was necessary.
Id. Alternatively, the Court noted in one sentence that even if
a separate analysis were necessary, it would find the District
had “discharged its obligations” by “timely evaluat[ing]”
Brooklyn in a “thorough manner,” as already addressed in its
IDEA analysis. Id.
The same conduct can, of course, serve as the basis for
IDEA and Section 504 claims. But that doesn’t avoid the need
to perform a Section 504 analysis. As noted above, Section
504 covers more students than does the IDEA, including
students who are merely perceived as disabled. 28 C.F.R. §
35.108(a)(1)(iii). A student could be covered under one statute
but not the other, and courts in our Circuit have found this to
be the case. See also Lauren G. ex rel. Scott G. v. West Chester
Area Sch. Dist., 906 F. Supp. 2d 375 (E.D. Pa. 2012) (holding
that a school district violated Section 504 for periods of a
child’s education when it did not violate the IDEA).5 Indeed,
5 In other respects, Section 504 imposes fewer demands on
school districts than does the IDEA, notably imposing less
rigorous notice and consent requirements, as well as not
specifically requiring a written educational plan like an IEP.
And some Section 504 claims require proof of elements the
IDEA does not; notably, intentional discrimination claims
require proof of deliberate indifference to recover
compensatory damages. See D.E. v. Cent. Dauphin Sch. Dist.,

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Brooklyn’s educational history is a case in point; from
kindergarten through second grade, she received special
education services under the IDEA, and from fourth grade on,
she received them under Section 504. Her claims under both
laws are plainly different—their timing alone reveals that.
Moreover, the differences in the statutes’ definitions of
disability—particularly which emotional issues they
encompass—are central to the family’s argument. For that
reason, the School District’s reliance on J.M. v. Summit City
Bd. of Educ., 39 F.4th 126 (3d Cir. 2022), is misplaced. In
J.M., the School District points out, we found that plaintiffs did
“not present[] any evidence unique to th[e Section 504] claim
. . . . [T]hey assert[ed] a § 504 cause of action purely as a
companion to their denial-of-FAPE claim.” Id. at 146. Thus,
we held that it was “not necessary to analyze whether the § 504
claim m[ight have been] brought as a companion to the denial-
of-FAPE claim . . . because [the student]’s parents d[id] not
succeed on their denial-of-FAPE claim, and they offer[ed] no
additional evidence in support of their § 504 claim.” Id. at 147
(emphasis added). But we noted as well that “the statutes differ
in important respects,” including the scope of disability,
though “[d]epending on the factual basis for a denial-of-FAPE
claim, the legal differences . . . may be of no moment.” Id. at
146-47 (emphasis added). In J.M.—where the student’s
Section 504 argument consisted merely of six lines in his
opening brief asserting that because the school district denied
him a FAPE under the IDEA, it denied him one under Section
504—those differences indeed were of no moment. Here—
where the crux of Brooklyn’s argument hinges on the School
765 F.3d 260, 269 (3d Cir. 2014) (citing S.H. v. Lower Merion
Sch. Dist., 729 F.3d 248, 261, 263 (3d Cir. 2013)).

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District repeatedly refusing to perform a comprehensive
evaluation that might have detected a Section 504-eligible
disability at a much earlier date—is an instance where they are.
* * * * *
While there is significant debate about when the School
District was put on notice of Brooklyn’s emotional struggles,
her family contends they introduced sufficient evidence to
show that it should have reasonably suspected her of qualifying
as disabled under Section 504 earlier than it did, meaning it
erred in refusing to conduct the comprehensive evaluation the
family repeatedly requested. We cannot resolve this factual
question. The trial court needs to conduct this analysis and
determine whether the School District violated its Child Find
obligations under Section 504.6 We therefore vacate the grant
of judgment on the administrative record for the School
District and remand to perform this analysis.
6 To the extent the District Court, in its review of the hearing
officer’s decision as to Brooklyn’s Section 504 claim, will
need to make factual determinations based on the
administrative record, we note that “the Supreme Court has
required district courts to apply modified de novo review only
in their review of IDEA claims . . . , and we decline to extend
that review to claims under the ADA and Section 504[.]” Le
Pape v. Lower Merion Sch. Dist, No. 22-2931, op. at 11 (3d
Cir. June 4, 2024) (citing Bd. of Educ. of Hendrick Hudson
Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176,
206 (1982)).

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