Ronald E. Chambers v. SCHOOL DISTRICT OF PHILADELPHIA BOARD OF EDUCATION Ronald E. Chambers

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4790
RONALD E. CHAMBERS AND LESLIE A. CHAMBERS,
AS GUARDIANS OF FERREN CHAMBERS,
AN INCAPACITATED PERSON;
AND IN THEIR OWN RIGHT
v.
SCHOOL DISTRICT OF PHILADELPHIA
BOARD OF EDUCATION
Ronald E. Chambers and Leslie A. Chambers,
as guardians of Ferren Chambers, and in their own right,
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 05-cv-02535)
District Judge: Honorable Gene E. K. Pratter

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2
Argued September 22, 2009
Before: BARRY, FISHER and JORDAN, Circuit Judges.
(Filed: November 20, 2009 )
David J. Berney (Argued)
1628 John F. Kennedy Boulevard
8 Penn Center Plaza, Suite 1000
Philadelphia, PA 19103
Attorney for Appellants
Richard G. Tuttle (Argued)
Archer & Greiner
Suite 1600
One South Broad Street
Philadelphia, PA 19107
Attorney for Appellee
OPINION OF THE COURT
FISHER, Circuit Judge.
Robert and Leslie Chambers are the parents of Ferren
Chambers. Ferren suffers from cognitive and developmental
disorders and, although now in her twenties, functions on the
level of a young child. In 2005, the Chambers sued the School
District of Philadelphia Board of Education (the “School
District”). Alleging that the School District’s failure to provide

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The District Court referred to Ferren by her initials, F.C.1
On appeal, both parties refer to Ferren by her first name in full.
Noting that Ferren is not a minor, we adopt the parties’ practice
of referring to Ferren by her first name.
Dandy-Walker syndrome is “[a] congenital brain2
malformation[.]” Taber’s Cyclopedic Medical Dictionary 533
(20th ed. 2005).
3
Ferren with an appropriate education obstructed her intellectual
growth, the Chambers asserted various statutory and
constitutional violations, both in their own right and on Ferren’s
behalf. The District Court granted summary judgment for the
School District on all of the Chambers’ claims. The Chambers
now challenge that ruling in most, but not all, respects. Because
we conclude that the District Court erroneously found that the
Chambers waived two of the statutory claims asserted on
Ferren’s behalf, we will vacate that portion of its ruling and
remand for further proceedings consistent with this opinion. We
will affirm the balance of the District Court’s ruling.
I.
A.
Ferren was born on October 15, 1985. In April 1987,1
Ferren underwent testing by a pediatric neurologist, who
concluded that Ferren’s cognitive development was stunted
because of a birth defect. A second neurologist later determined
that Ferren suffered from Dandy-Walker syndrome.2

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4
In September 1990, before beginning school, Ferren was
evaluated by a school psychologist and diagnosed with mental
retardation. Thereafter, she was placed in a “life skills” program
at the Farrell School. After Ferren exhibited signs of regression,
Mr. Chambers removed her from the program and challenged
her classification as mentally retarded. A due process hearing
was conducted before a state appeals panel, which ruled that
Ferren should be reclassified as autistic and placed in an
appropriate program. The School District thereafter placed
Ferren in a program for autistic students at the Greenfield
Elementary School.
Ferren underwent several evaluations over the next few
years by various medical professionals. In 1992, a school
psychologist concluded that Ferren was severely autistic and
recommended that she be placed in a program for retarded
children with one-on-one supervision. A 1993 evaluation
determined that Ferren’s language and motor skills were
significantly underdeveloped. By 1994, Ferren was enrolled in
a program for autistic students at the Loesche Elementary
School, where she had one-on-one assistance. A medical
professional evaluated Ferren in that setting and recommended
that she be placed in a private school. Despite requests from
Ferren’s parents for such a placement, the School District did
not initially follow that recommendation.
In 1995, the Chambers sent the School District a request
for a due process hearing. The School District misplaced that
request. After a several-week-long delay due to the
misplacement of the request, a state appeals panel ordered the
School District to implement the recommendation by placing

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5
Ferren in a private school. In September 1995, the School
District placed Ferren at the Wordsworth Academy, a private
facility.
Although the Chambers were initially pleased with
Ferren’s new placement, they requested another due process
hearing in November 1996 because Ferren was receiving neither
speech therapy nor physical and occupational therapy. In 1997
and 1998, the parties entered into two settlement agreements,
requiring the School District to provide those services. The
School District did not do so. In 1999, the Chambers filed a
complaint with the Pennsylvania Bureau of Special Education,
which thereafter issued a report detailing the School District’s
failure to provide those services. After that report was issued,
the School District agreed to pay for Ferren’s speech therapy as
well as physical and occupational therapy.
In 2001, the School District asked a special education
consultant to assess Ferren’s progress at the Wordsworth
Academy. The Chambers objected to the School District’s
request, and a due process hearing ensued. After a state hearing
officer ordered the assessment to proceed, the consultant
determined that Wordsworth was an inappropriate setting for
Ferren and that she should be placed in a school for severely
retarded persons.
In April 2002, the Chambers filed another complaint with
the Bureau of Special Education, again charging that the School
District had failed to provide Ferren with speech therapy as well
as physical and occupational therapy. Later that month, a due
process hearing was held at the School District’s request.

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In April 2005, the Chambers were appointed Ferren’s3
guardians by a Pennsylvania court.
6
In November 2003, the Chambers requested another due
process hearing. The School District failed to forward that
request to the Pennsylvania Office for Dispute Resolution. In
December 2003, the Chambers directly contacted the Office for
Dispute Resolution to ask about the status of their hearing
request. Following the Chambers’ inquiry, a due process
hearing was held in March 2004.
In April 2004, after the March 2004 hearing, a hearing
officer issued a report. The hearing officer concluded that the
School District owed Ferren a total of 3,180 hours of
compensatory education for the 2001-2002, 2002-2003 and
2003-2004 school years. The hearing officer ordered
approximately $209,000 to be placed in a trust for Ferren’s
benefit. The hearing officer also ordered Ferren to be placed in
an educational program with students at or above her level.
Neither party appealed the hearing officer’s decision. Following
the hearing, Ferren began attending the Davidson School. The
School District has agreed to bear the cost of Ferren’s education
there until the close of the 2009-2010 school year.
B.
In May 2005, the Chambers, as Ferren’s guardians and in
their own right, filed a complaint against the School District in3
the United States District Court for the Eastern District of

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The Chambers filed an amended complaint in January4
2006. Any mention of the complaint refers to the amended
complaint, unless otherwise indicated.
7
Pennsylvania. Count One of the Chambers’ complaint, asserted4
on both the Chambers’ and Ferren’s behalf, alleged that the
School District failed to provide Ferren with a free and
appropriate education (“FAPE”) and thereby violated the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.
§ 1400, et seq.; § 202 of the Americans with Disabilities Act, 42
U.S.C. § 12132 (“ADA”); § 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794 (“RA”); and 42 U.S.C. § 1983. Count
Two, also asserted on both the Chambers’ and Ferren’s behalf,
alleged that the School District’s failure to provide Ferren with
a FAPE resulted in a deprivation of their due process rights and
sought relief under 42 U.S.C. § 1983. Count Three asserted a
claim solely on Ferren’s behalf under 42 U.S.C. § 1983 based on
alleged equal protection violations.
In January 2007, following discovery, the School District
moved for summary judgment. The District Court held a
hearing on the motion in March 2007. In a Memorandum and
Order entered on November 30, 2007, the District Court granted
the School District’s motion in its entirety and dismissed all of
the Chambers’ claims. Chambers v. Sch. Dist. of Phila. Bd. of
Educ., No. 05-2535, 2007 U.S. Dist. LEXIS 88003 (E.D. Pa.
Nov. 29, 2007).
The District Court, relying on Collinsgru v. Palmyra
Board of Education, 161 F.3d 225 (3d Cir. 1998), concluded

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8
that Mr. and Mrs. Chambers had no standing to pursue Count
One’s IDEA claim. To the extent the Chambers sought
compensatory damages under the IDEA on Ferren’s behalf, the
District Court determined that such damages are not available
under that statute and that their IDEA claim therefore failed as
a matter of law. The District Court also understood the
Chambers’ alleged ADA and RA violations to be the predicates
of a 42 U.S.C. § 1983 claim. Relying on A.W. v. The Jersey City
Public Schools, 486 F.3d 791 (3d Cir. 2007) (en banc), the
District Court held that those claims failed as a matter of law
because, in the Court’s view, § 1983 provides no remedy for
violations of the IDEA or the RA. In a footnote, the District
Court reasoned that it could treat the Chambers’ RA claim the
same as their ADA claim because, according to the District
Court, such claims are analogous. The District Court further
determined that the Chambers had waived their ADA and RA
claims asserted on Ferren’s behalf.
The District Court construed Count Two’s due process
claim to allege both substantive and procedural due process
violations. To the extent Count Two alleged substantive due
process violations on their own behalf, the District Court,
relying on McCurdy v. Dodd, 352 F.3d 820 (3d Cir. 2003),
found that the Chambers’ failure to present evidence that the
School District intentionally interfered with the parent-child
relationship, was fatal to such a claim. To the extent Count Two
alleged procedural due process violations on the Chambers’
behalf, the District Court reasoned that the Chambers had failed
both to identify a protected property interest and, even assuming
the existence of such an interest, to demonstrate any deprivation
of that interest. With respect to Count Three’s equal protection

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9
claim on Ferren’s behalf, the District Court determined that the
Chambers had presented no evidence to sustain such a claim.
This timely appeal followed.
II.
The District Court had jurisdiction under 28 U.S.C.
§ 1331. This Court has jurisdiction under 28 U.S.C. § 1291.
We exercise plenary review over the District Court’s grant or
denial of summary judgment. Alexander v. Nat’l Fire Ins. of
Hartford, 454 F.3d 214, 219 n.4 (3d Cir. 2006) (citation
omitted). To that end, we are “required to apply the same test
the district court should have utilized initially.” Oritani Sav. &
Loan Ass’n v. Fidelity & Deposit Co. of Md., 989 F.2d 635, 637
(3d Cir. 1993) (quotation marks and citation omitted). Summary
judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). In determining whether such relief is warranted, “[t]he
evidence of the nonmovant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). The inquiry is “whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Id. at 251-52.

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The School District contends that the Chambers have5
failed to exhaust their administrative remedies under the IDEA.
The School District never asserted an exhaustion defense before
the District Court. Ordinarily, such an omission would result in
a waiver of that defense on appeal. See Smith v. Mensinger, 293
F.3d 641, 647 n.3 (3d Cir. 2002) (“[E]xhaustion is an
affirmative defense which can be waived if not properly
preserved by a defendant.” (citing Ray v. Kertes, 285 F.3d 287
(3d. Cir. 2002)). In some instances, however, exhaustion is a
jurisdictional matter and therefore cannot be waived. See In re
Morrissey, 717 F.2d 100, 102 (3d Cir. 1983) (noting that lack of
jurisdiction is non-waivable). We do not reach this issue here.
It is undisputed that the Chambers did not appeal the6
April 2004 decision issued in the state administrative
proceedings. For reasons expressed elsewhere, we do not
address the effect of their failure to do so on the viability of their
IDEA claim. We pause to note, though, that the April 2004
decision was, by most measures, favorable to the Chambers.
The IDEA permits only a “party aggrieved” by a state
administrative decision to seek judicial review. 20 U.S.C.
10
III.
A. IDEA Claims
In Count One of their complaint, the Chambers allege
that the School District failed to provide Ferren with a FAPE, as
required by the IDEA. They seek damages for that violation on5
both their own and Ferren’s behalf.6

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§ 1415(i)(2)(A). While we question whether the Chambers, who
for all intents and purposes were the prevailing party in the state
administrative proceedings, qualify as a “party aggrieved”
within the meaning of the IDEA, cf. Jeremy H. v. Mount
Lebanon Sch. Dist., 95 F.3d 272, 278 n.10 (3d Cir. 1996), we
likewise do not resolve this issue here.
Any mention of the IDEA in this opinion refers to its7
pre-2004 amendment version. See, e.g., J. L. v. Mercer Island
Sch. Dist., 575 F.3d 1025, 1035 n.7 (9th Cir. 2009).
11
Under the IDEA , a state is eligible for federal funding if7
it makes a FAPE available to disabled children. 20 U.S.C.
§ 1412(a)(1). The state administers a FAPE by developing an
“individualized education program” (“IEP”) for every disabled
child. 20 U.S.C. § 1414(d); see also Bd. of Educ. v. Rowley, 458
U.S. 176, 181-82 (1982). Although the IDEA does not set forth
definite guidelines for the formulation of an IEP, Rowley, 458
U.S. at 189, at a minimum, “[t]he IEP must be reasonably
calculated to enable the child to receive meaningful educational
benefits in light of the student’s intellectual potential,” Shore
Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir.
2004) (internal quotation marks and citation omitted).
The IDEA allows any party – the parent of a disabled
child or the state – to file a complaint “with respect to any
matter relating to the identification, evaluation, or educational
placement of the child, or the provision of a free appropriate
public education to such child[.]” 20 U.S.C. § 1415(b)(6). The
filing of a complaint gives rise to a due process hearing, which

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We have previously explained that “[t]he Pennsylvania8
Department of Education funds an independent entity to
administer and oversee disputes related to special education
services, the Office for Dispute Resolution. This entity is
responsible for choosing [h]earing [o]fficers and [a]ppeals
[p]anel members.” Mary Courtney T., 575 F.3d at 240 n.1.
12
is conducted in compliance with state procedures. 20 U.S.C.
§ 1415(f)(1). Under Pennsylvania law, a hearing officer
presides over such a hearing. Mary Courtney T. v. Sch. Dist.,
575 F.3d 235, 240 (3d Cir. 2009). After a hearing, “any party
aggrieved by the findings and decision rendered in such a
hearing may appeal such findings and decision to the State
educational agency.” 20 U.S.C. § 1415(g)(1). In Pennsylvania,
an appeal is taken to an appeals panel. Mary Courtney T., 575
F.3d at 240. Once the appeals panel has issued a decision, the8
IDEA authorizes “[a]ny party aggrieved by the findings and
decision” to appeal to a federal district court. 20 U.S.C.
§ 1415(i)(2)(A); see also Carlisle Area Sch. v. Scott P., 62 F.3d
520, 527 (3d Cir. 1995).
In this case, the District Court found that the Chambers
lacked standing to pursue their IDEA claim based on this
Court’s decision in Collinsgru, 161 F.3d 225. In Collinsgru, the
parents sought to represent their disabled son in an IDEA suit.
The district court denied that request. On appeal, we affirmed.
After reviewing the IDEA’s language and legislative history, we
concluded that the IDEA does not “create joint rights in
parents.” Id. at 236.

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In Winkelman, the Court declined to address our core9
holding in Collinsgru: “whether IDEA entitles parents to
litigate their child’s claims pro se.” Winkelman, 550 U.S. at
535. In Collinsgru, we answered that question in the negative.
161 F.3d at 232 (holding that “the plaintiffs have failed to meet
their burden of showing Congress’s intent to change the
common-law rule against non-lawyer representation” in IDEA
suits).
13
As both parties’ acknowledge, the District Court’s
reliance on Collinsgru is misplaced, as the pertinent part of our
holding in that case was abrogated by the Supreme Court in
Winkelman v. Parma City School District, 550 U.S. 516 (2007).9
In Winkelman, which was decided after the District Court held
a hearing on the School District’s summary judgment motion but
before it issued its ruling on the motion, the Supreme Court
explained that the IDEA obligates school districts to develop an
IEP for every child with a disability and that parents play an
important role in that process. 550 U.S. at 524. The Court
“interpret[ed] the [IDEA’s] references to parents’ rights to mean
what they say: that [the] IDEA includes provisions conveying
rights to parents as well as to children.” Id. at 529. Thus, the
Court reasoned that because “parents enjoy enforceable rights at
the administrative stage, . . . it would be inconsistent with the
statutory scheme to bar them from continuing to assert these
rights in federal court.” Id. at 526. Under Winkelman,
therefore, parents undoubtedly have substantive rights under the
IDEA that they may enforce by prosecuting claims brought
under that statute on their own behalf. Accordingly, the District

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The School District implicitly acknowledges the pall10
Winkelman casts on the District Court’s standing determination,
but nevertheless urges us to affirm on the ground that the
Chambers failed to hew to the procedural requirements for filing
an IDEA claim. For instance, the School District points to the
Chambers’ alleged failure to provide the District Court with “the
records of the administrative proceedings[.]” 20 U.S.C.
§ 1415(i)(2)(C)(i). There is no hint in the record that the School
District litigated this point before the District Court, and
therefore it is not properly before us. See Harris v. City of
Phila., 35 F.3d 840, 845 (3d Cir. 1994) (observing that “[t]his
court has consistently held that it will not consider issues that
are raised for the first time on appeal”); Newark Morning
Ledger Co. v. United States, 539 F.2d 929, 932-33 (3d Cir.
1976).
14
Court erred in determining that the Chambers do not have
standing to pursue their IDEA claim.
Because the District Court stopped its analysis after its
standing determination, it did not address whether summary
judgment was otherwise appropriate with respect to the
Chambers’ IDEA claim. Under other circumstances, we might10
remand to the District Court for it to address the Chambers’
IDEA claim in the first instance. We see no need to do so here,
as we may affirm the District Court’s ruling on other grounds.
See Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000) (en banc)
(“We may affirm the District Court on any grounds supported by
the record.” (citation omitted)).

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15
Before the District Court, the School District attempted
to meet its summary judgment burden by arguing that the
damages the Chambers sought were not allowable under the
IDEA. In its view, compensatory damages for future losses and
pain and suffering are never available under the statute. In their
opposition to the motion, the Chambers argued that they were
entitled to “recover monetary damages due to the School
District’s violation of the IDEA[.]” (App. 109.) The District
Court, concluding that all of the damages the Chambers sought
were purely compensatory damages, agreed with the School
District that such damages are not available under the IDEA.
On appeal, the School District renews its contention that the
Chambers are impermissibly seeking compensatory damages.
The Chambers, for their part, counter that they are seeking not
only compensatory damages, but out-of-pocket expenses they
incurred because of the School District’s intractability.
Specifically, they request reimbursement for attorney’s fees,
evaluation costs and travel expenses, all of which they allegedly
incurred while providing services to Ferren that the School
District was supposed to provide.
By its plain terms, the IDEA does not limit the type of
relief a court may order, so long as that relief is “appropriate.”
We have not squarely decided whether compensatory damages
are available under the IDEA. See Bucks County Dep’t of
Mental Health/Mental Retardation v. Pennsylvania, 379 F.3d
61, 68 n.5 (3d Cir. 2004) (“We have not settled whether
damages are recoverable in an action arising solely under

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In W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995), we held11
that money damages are available in a § 1983 action based on an
IDEA violation. Id. at 494. We overruled that portion of Matula
in A.W. v. Jersey City Public Schools, 486 F.3d 791 (3d Cir.
2007) (en banc). In Jersey City, we held that because “the
IDEA provides a comprehensive remedial scheme[,] . . .
Congress did not intend § 1983 to be available to remedy
violations of the IDEA.” 486 F.3d at 803. Nothing in Jersey
City intimates disapproval of Matula’s dictum regarding the
potential availability of compensatory damages in IDEA suits.
Burlington in fact addressed the IDEA’s predecessor,12
The Education of the Handicapped Act, which, for the purposes
of this discussion, is in all material respects identical to the
IDEA. Jersey City, 486 F.3d at 796 n.8.
16
IDEA.”). The Supreme Court, however, has spoken on this11
issue. In School Committee of the Town of Burlington v.
Department of Education of Massachusetts, 471 U.S. 359
(1985), the Court held that a party may seek restitution under the
IDEA for out-of-pocket expenses that the school district12
“should have paid all along and would have borne in the first
instance had it developed a proper IEP.” Id. at 371; see also
Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12
(1993). The Court made clear that the IDEA authorized such a
monetary award precisely because it did not constitute damages.
See Burlington, 471 U.S. at 370-71.
Following Burlington, every circuit that has addressed
this issue has held that compensatory and punitive damages are

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Other circuits have recognized that the weight of13
authority disfavors the availability of compensatory damages
under the IDEA but have not yet decided the issue. See, e.g.,
Moseley v. Bd. of Educ. of Albuquerque Pub. Schs, 483 F.3d
689, 693-94 (10th Cir. 2007).
17
not available under the IDEA. See Blanchard v. Morton Sch.
Dist., 420 F.3d 918, 921 (9th Cir. 2005); Ortega v. Bibb County
Sch. Dist., 397 F.3d 1321, 1325-26 (11th Cir. 2005);
Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 124-26 (1st Cir.
2003); Gean v. Hattaway, 330 F.3d 758, 774 (6th Cir. 2003);
Polera v. Bd. of Educ., 288 F.3d 478, 485-86 (2d Cir. 2002);
Sellers v. Sch. Bd., 141 F.3d 524, 526-27 (4th Cir. 1998);
Charlie F. v. Bd. of Educ., 98 F.3d 989, 991 (7th Cir. 1996);
Heidemann v. Rother, 84 F.3d 1021, 1033 (8th Cir. 1996).13
Those courts have recognized that the “IDEA’s primary purpose
is to ensure [a] FAPE, not to serve as a tort-like mechanism for
compensating personal injury.” Nieves-Marquez, 353 F.3d at
125. The Seventh Circuit has aptly framed the issue:
[T]he structure of the statute – with its elaborate
provision for educational services and payments
to those who deliver them – is inconsistent with
monetary awards to children and parents. . . .
[W]e conclude that damages are not relief that is
available under the IDEA. This is the norm for
social-welfare programs that specify benefits in
kind at public expense, whether medical care or
housing or, under the IDEA, education.

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18
Charlie F., 98 F.3d at 991 (internal quotation marks and
citations omitted). The Fourth Circuit’s explanation is likewise
persuasive:
Tort-like damages are simply inconsistent with
IDEA’s statutory scheme. The touchstone of a
traditional tort-like remedy is redress for a broad
range of harms associated with personal injury,
such as pain and suffering, emotional distress,
harm to reputation, or other consequential
damages. By contrast, the touchstone of IDEA is
the actual provision of a free appropriate public
education. . . . Compensatory or punitive
damages would transform IDEA into a remedy for
pain and suffering, emotional distress, and other
consequential damages caused by the lack of a
free appropriate public education. Such a result
would be inconsistent with the structure of the
statute, which so strongly favors the provision of
and, where appropriate, the restoration of
educational rights.
Sellers, 141 F.3d at 527 (internal quotation marks, citations, and
footnote omitted).
We at least suggested our agreement with the authority
outlined above in our en banc decision in Jersey City, 486 F.3d
791. In Jersey City, we recognized, in light of Burlington, that
“[t]he district court is authorized to grant ‘such relief as the
court determines is appropriate,’ including attorneys’ fees,
reimbursement for a private educational placement, and

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19
compensatory education.” Id. at 802; see Shore Reg’l, 381 F.3d
at 197 (affirming an administrative law judge’s order for a
school district “to reimburse [the student] for the out-of-district
tuition and related costs, including [the student’]s reasonable
attorneys’ fees”); Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78,
85 (3d Cir. 1996). Indeed, in Bucks County, we pointed to our
earlier broad interpretations of the term “appropriate.” 379 F.3d
at 67. In line with that expansive view, we also clarified that
“appropriate” should not be read so narrowly so
as to preclude [a plaintiff] from being paid for her
time just because she did not write a check to a
third party. If we limited reimbursement to actual
out-of-pocket expenses, we would give a narrow
construction to “appropriate,” and this would be
contrary to both the Supreme Court’s broad
interpretation of the term in Burlington and our
own broad interpretation in Matula.
Id. at 69.
Given the Supreme Court’s pronouncement in Burlington
as well as the plain language and structure of the IDEA, we
agree with our sister circuits, and now hold, that compensatory
and punitive damages are not an available remedy under the
IDEA. That language and structure make plain that Congress
intended to ensure that disabled children receive a FAPE under
appropriate circumstances, not to create a mechanism for
compensating disabled children and their families for their pain
and suffering where a FAPE is not provided. Accordingly, to

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20
the extent the Chambers seek such damages on their IDEA
claim, that claim fails as a matter of law.
The Chambers contend, however, that they are not
seeking merely compensatory damages. They claim to have
incurred expenses because of the School District’s alleged
shortcomings in providing Ferren with a FAPE. Even if the
relief the Chambers now seek – attorney’s fees, evaluation costs
and travel expenses – is appropriate under the IDEA, an issue
we need not decide, the Chambers have waived their right to
request it.
The Chambers never asserted before the District Court
that they were seeking any damages other than compensatory
damages. Indeed, their complaint is rife with prayers for
“compensatory damages.” (App. 44, 47, 50-51.) Nowhere in
their pleadings before the District Court is there even an oblique
reference to the attorney’s fees, evaluation costs and travel
expenses they now request. In fact, during the hearing on the
School District’s summary judgment motion, the District Court
several times endeavored to pinpoint the exact types of damages
the Chambers sought. In response, the Chambers’ attorney
made somewhat contradictory remarks on the nature of the
damages his clients wanted. At one point, he stated: “[T]here
is no pain and suffering. There is a claim for loss of life’s
pleasures, because essentially what – and this goes to really the
experts, and also the underlying condition of this child.” (App.
241.) Later on, he argued about “the touchstone for what is
appropriate in these cases. It’s an attempt to make the child who
is deprived of a free and appropriate education, to the extent
possible, to make that child whole. And if that encompasses

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We note as well that the plain language of the IDEA14
appears to prohibit the very approach the Chambers have taken.
The IDEA clearly states that a party “shall have the right to
bring a civil action with respect to the complaint presented
pursuant to this section[.]” 20 U.S.C. 1415(i)(2)(A) (emphasis
supplied). In other words, the IDEA provides that a party
seeking judicial relief from the decision of state administrative
21
monetary damages, then they are [sic] appropriate situation.”
(App. 259.)
Similarly, in their opposition to the School District’s
summary judgment motion, the Chambers maintained that they
had “set forth a viable claim for compensatory damages against
the School District under [the] IDEA” and “clearly present[ed]
a triable issue for compensatory damages under the IDEA.”
(App. 102-03.) They further represented that they had “suffered
greatly due to the repeated refusal and failure of the School
District to provide their daughter with agreed to and appropriate
educational services” and that they “may recover monetary
damages due to the School District’s violation of the IDEA[.]”
(App. 107-09.)
In sum, the Chambers unambiguously, and under direct
questioning by the District Court, invoked their right to seek
compensatory damages alone. Only now, on appeal, do they say
they want reimbursement for attorney’s fees, evaluation costs
and travel expenses. Because they never litigated their right to
that relief before the District Court, they have waived their right
to do so before us. See DIRECTV, Inc. v. Seijas, 508 F.3d 123,14

-- 21 of 49 --

proceedings may do so only to the extent that the party sought
such relief in those proceedings.
Here, the hearing officer’s April 2004 report recites the
nature of the Chambers’ complaint. It “addresses two issues:
the appropriateness of the [School District’s] offer of FAPE for
the last two and a half years and the appropriateness of the
[School District’s] current proposal. The parents seek relief in
the form of an appropriate program and placement as well as
compensatory education for the 2001-2002, 2002-2003 and
2003-2004 school years.” (App. 125 (emphasis supplied).) The
report, which spans some fifteen pages, recounts the factual and
procedural history between the Chambers and the School
District, lists the issues under consideration, makes conclusions
of law, and orders specific relief. Significantly, nowhere in that
report is there any mention of the attorney’s fees, evaluation
costs and travel expenses the Chambers request on appeal.
These circumstances also support a finding that the Chambers
have waived their right to that relief. See, e.g., J. L. v. Mercer
Island Sch. Dist., 575 F.3d 1025, 1038 (9th Cir. 2009)
(reasoning that the district court could not consider an issue that
the plaintiffs never submitted in their IDEA administrative
complaint or due process hearing because that issue was
“unexhausted”); Blackmon v. Springfield R-XII Sch. Dist., 198
F.3d 648, 655-56 (8th Cir. 1999) (concluding that the parents’
failure to raise an issue before the hearing officer was
“significant, because under well-established judicial
interpretations of the IDEA [their daughter] had an obligation to
exhaust her administrative remedies with regard to the issues
22

-- 22 of 49 --

upon which she seeks judicial review” (citations omitted)).
The District Court also found that, to the extent the15
Chambers sought to remedy alleged RA and ADA violations
through § 1983, such an avenue was foreclosed by Jersey City.
The Chambers do not challenge that finding on appeal.
23
125 n.1 (3d Cir. 2007) (“It is well established that arguments not
raised before the District Court are waived on appeal.” (citing
Belitskus v. Pizzingrilli, 343 F.3d 632, 645 (3d Cir. 2003)).
Accordingly, notwithstanding the District Court’s
erroneous determination that the Chambers have no standing to
pursue their IDEA claim, we will affirm summary judgment for
the School District on that claim, as asserted by the Chambers
and Ferren.
B. ADA and RA Claims
In Count One of the complaint, the Chambers allege
violations of § 504 of the RA and § 202 of the ADA on both
their own and Ferren’s behalf.
The District Court determined that the Chambers lacked
standing to pursue their RA and ADA claims on their own
behalf for much the same reason it found they lacked standing
to pursue their IDEA claim under Collinsgru. Notwithstanding15
the District Court’s misplaced reliance on Collinsgru, we need
not address the viability of the Chambers’ RA and ADA claims,
at least to the extent the Chambers assert those claims on their

-- 23 of 49 --

In fact, the only mention the Chambers make of these16
claims, insofar as they are asserted on their own behalf, is to
challenge the District Court’s finding that they waived them
during the hearing on the summary judgment motion. The
Chambers’ challenge, however, is limited to the District Court’s
determination that those claims were waived insofar as they
were asserted on Ferren’s behalf. Indeed, the Chambers appear
to have no quarrel with the District Court’s finding that they
agreed to waive at least the ADA claim to the extent they sought
relief in their own right. (See Appellants’ Br. 33 (stating that the
Chambers’ attorney “conceded only to dismiss Parents’ ADA
claims”) (emphasis in original and footnote omitted).)
24
own behalf. Our review of the record convinces us that the
Chambers failed both to press those claims in the District Court
and to revive them in their opening brief on appeal. As a
consequence, those claims are waived. See F.D.I.C. v. Deglau,16
207 F.3d 153, 169-70 (3d Cir. 2000); Laborers’ Int’l Union of
N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d
Cir. 1994).
With respect to the Chambers’ ADA and RA claims
asserted on Ferren’s behalf, the District Court concluded that
those statutes were merely the predicates for what it perceived
to be a § 1983 claim. Relying on our decision in Jersey City, in
which we held that § 1983 does not offer a plaintiff a remedy for
violations of the IDEA or the RA, the District Court found that
summary judgment was warranted. The Chambers do not
question that finding on appeal. To the extent the Chambers
asserted claims directly under the RA and the ADA on Ferren’s

-- 24 of 49 --

The hearing transcript leaves little, if any, doubt that the17
District Court’s reference was a result of inadvertent error. The
District Court stated as follows to the School District’s attorney:
[W]hat is the formulation of the plaintiffs’ claims,
because in different places, in the amended
complaint, I note the Rehabilitation Act Claim,
and the ADA Claims were asserted separately, as
well as through the 1983 vehicle. I think that
25
behalf, the District Court concluded in a footnote that the
Chambers had waived those claims:
It appears from the Amended Complaint as
though Plaintiffs assert their Rehabilitation Act
and ADA claims separately as well as through the
vehicle of § 1983; however, in the Response to
Defendant’s Motion, counsel seems to pursue the
claims only under § 1983. (Resp. at 16.) During
oral argument Plaintiffs’ counsel confirmed that
Plaintiffs are pursuing claims under § 1983, not
the individual statutes. Tr. March 13, 2007 at 8.
Chambers, 2007 U.S. Dist. LEXIS 88003, at *27 n.8.
We cannot agree with the District Court’s conclusion that
the Chambers waived their right to proceed directly under the
RA and the ADA. The District Court’s reference to a statement
made by the Chambers’ attorney on page 13 of the hearing
transcript is in all likelihood a result of inadvertent error. At17

-- 25 of 49 --

that’s how we read it. . . . So, I mean, it may not
be the most appropriate question to ask you, but to
your ask [sic] your opponent, whether the
plaintiffs are pursuing claims under the individual
statutes or think they are?
(App. 208.)
26
that stage of the hearing, the District Court was engaged in a
colloquy with the School District’s attorney, not the Chambers’
attorney. Moreover, later in the hearing the Chambers’ attorney
clarified that the Chambers fully intended to keep all of their
options on the table:
THE COURT: But it’s unclear to me
whether you believe you can
sustain these dual actions
from start to finish, and then
you have both an IDEA
claim for the parents, and a
1983 case predicated on the
IDEA. Just using that as an
example.
[PLAINTIFFS’
COUNSEL]: Yes, I think you can proceed
with both, and I think
Matula says that you’re
permitted to – that you can
recover directly under the

-- 26 of 49 --

We also question the District Court’s finding that the18
Chambers asserted their RA and ADA claims only “through the
vehicle of § 1983” based on their opposition to the School
District’s summary judgment motion. We recognize that the
Chambers did state, somewhat confusingly, that “[t]he predicate
violation of plaintiffs’ rights secured by [the RA and the ADA]
27
IDEA and Section 504 for a
violation, but you can also
proceed through a 1983
action and –
. . . .
[A]nd that’s why I want to
obviously leave myself
open. I don’t want to
foreclose, because I think
the courts have suggested
there might be slightly
different remedies available
the way you proceed, and
that’s what I would suggest.
(App. 251.)
This colloquy between the District Court and the
Chambers’ attorney persuades us that the Chambers did not
intend to waive their right to pursue their RA and ADA claims
on Ferren’s behalf.18

-- 27 of 49 --

is the basis for plaintiffs’ civil rights action under 42 U.S.C.
§ 1983.” (App. 105.) Elsewhere, however, the Chambers did
not suggest that they were abandoning any remedy they might
have under those statutes themselves. In short, we think the
District Court should have addressed these claims to determine
if summary judgment was otherwise proper.
Section 504 of the RA provides:19
No otherwise qualified individual with a disability
in the United States . . . shall, solely by reason of
her or his disability, be excluded from the
participation in, be denied the benefits of, or be
subjected to discrimination under any program or
activity receiving Federal financial assistance . . . .
29 U.S.C. § 794(a).
Section 202 of the ADA provides:
Subject to the provisions of this title, no qualified
individual with a disability shall, by reason of
28
Because the same standards govern both the Chambers’
RA and ADA claims, we may address both claims in the same
breath. McDonald v. Pennsylvania, 62 F.3d 92, 95 (3d Cir.
1995) (“Whether suit is filed under the Rehabilitation Act or
under the Disabilities Act, the substantive standards for
determining liability are the same.” (citation omitted)). To
prevail on a violation of either of those statutes, the Chambers19

-- 28 of 49 --

such disability, be excluded from participation in
or be denied the benefits of the services,
programs, or activities of a public entity, or be
subjected to discrimination by any such entity.
42 U.S.C. § 12132.
The RA requires the additional showing that the20
program receives federal financial assistance. 29 U.S.C.
§ 794(a). There is no dispute that this element applies to the
School District.
29
had to demonstrate that Ferren (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 her disability. See20
Nathanson v. Med. Coll. of Pa., 926 F.2d 1368, 1380 (3d Cir.
1991) (citing Strathie v. Dep’t of Transp., 716 F.2d 227, 230 (3d
Cir. 1983)).
The parties do not dispute that the first two elements are
satisfied. The parties disagree only on the third element:
whether Ferren was denied a benefit of an education program
because of her disability. In an effort to meet its summary
judgment burden, the School District argued before the District
Court that Ferren was not denied any educational benefits.
According to the School District, it “actively tried to provide an
appropriate education setting for Ferren[.]” (App. 88.) To
buttress its position, the School District pointed to the various
educational programs in which Ferren was enrolled over the

-- 29 of 49 --

30
course of several years, the numerous medical and psychological
evaluations she underwent to test her progress, and the several
types of special therapies and services she received. These facts
are supported by reference to the School District’s Statement of
Undisputed Material Facts, which in turn is tethered to different
parts of the record. In the School District’s view, “[t]hese facts
show that Ferren was actively participating in school programs
and was not discriminated against.” (App. 89.)
Taking the evidence in a light most favorable to the
Chambers, as we must in this posture, we do not believe that the
School District met its initial summary judgment burden based
on its proffer to the District Court. We have previously said that
“the failure to provide a free appropriate public education
violates IDEA and therefore could violate [the RA].”
Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 253 (3d Cir.
1999) (citing Matula, 67 F.3d at 492-93.) We think that the
record contains enough of a genuine factual dispute about
whether the School District in fact provided Ferren with a
FAPE, not to mention whether the School District otherwise
committed RA and ADA violations. We must therefore refrain
from wading into this dispute. In light of the District Court’s
erroneous dismissal of the Chambers’ RA and ADA claims
based on its misperception of the Chambers’ position, and
because we do not find summary judgment to be appropriate
based on the record in its current incarnation, we will vacate the
grant of summary judgment on those claims.

-- 30 of 49 --

31
C. Due Process Claims
In Count Two, the Chambers allege that the School
District violated their rights under the Due Process Clause of the
Constitution. The District Court bifurcated its treatment of that
claim, construing it to assert both procedural and substantive
violations. On appeal, the parties do not dispute that tack, and
we see no reason to question it.
1. Substantive Due Process
Turning first to the Chambers’ substantive due process
claim asserted on their own behalf, the Chambers allege that the
School District’s failure to provide a FAPE for Ferren has
deprived them “of their daughter’s companionship and
association” and caused them to suffer emotional distress by
preventing Ferren from becoming more communicative. (App.
47.)
The Supreme Court has “observed that the core of the
concept of due process is protection against arbitrary action and
that only the most egregious official conduct can be said to be
arbitrary in the constitutional sense.” United Artists Theatre
Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 399 (3d Cir.
2003) (internal quotation marks omitted) (citing County of
Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998)). Thus, to
prevail on a substantive due process claim, “a plaintiff must
prove the particular interest at issue is protected by the
substantive due process clause and the government’s deprivation
of that protected interest shocks the conscience.” Chainey v.
Street, 523 F.3d 200, 219 (3d Cir. 2008) (citation omitted).

-- 31 of 49 --

In McCurdy, we noted that we had explicitly declined21
to address the existence of such an interest in at least two
previous cases. See Schieber v. City of Phila., 320 F.3d 409,
423 n.6 (3d Cir. 2003) (“I also express no view on whether the
Schiebers, as parents, had a liberty interest in the continued
companionship of their adult, emancipated child.”); Freedman
v. City of Allentown, 853 F.2d 1111, 1117 n.5 (3d Cir. 1988)
(“In light of our disposition, we do not reach the issue whether
parents of an adult decedent may maintain a section 1983
claim.”).
32
Furthermore, because “the nature of the conduct that is
sufficiently egregious to shock the conscience varies depending
on the context,” United Artists Theatre Circuit, 316 F.3d at 399
n.5, a court must “determine what level of conduct is egregious
enough to amount to a constitutional violation and, then,
whether there is sufficient evidence that [the defendant’s]
conduct rose to that level.” Nicini, 212 F.3d at 809.
In granting summary judgment on the Chambers’
substantive due process claim, the District Court relied almost
exclusively on our decision in McCurdy v. Dodd, 352 F.3d 820
(3d Cir. 2003). In McCurdy, a father sued a Philadelphia police
officer who had shot and killed his independent adult son. The
father alleged that he had a protected liberty interest in the
companionship, care, and affection of his son. We found no
legal support for that allegation. We began by noting the
absence of any Supreme Court recognition of such an interest.
We also found no authority in our own case law recognizing
such an interest. Finally, we took stock of a circuit split on the21

-- 32 of 49 --

33
issue. For several reasons, we concluded that “a broad
expansion of due process protections to encompass McCurdy’s
proposed definition is unwarranted in this case.” Id. at 829.
First, we reasoned that the parental interest in companionship
with a child substantially diminishes when the child reaches
adulthood. Id. Second, we explained our reluctance to “to
extend the Due Process Clause to cover official actions that
were not deliberately directed at the parent-child relationship[.]”
Id. (emphasis supplied). Thus, we found that the police officer’s
shooting of McCurdy’s son, while deliberate in a technical
sense, did not amount to a due process violation because it did
not aim to sever the parent-child relationship. Id. at 829-31.
McCurdy specifically addresses situations involving
independent adult children. Id. at 830 (“[W]e hold that the
fundamental guarantees of the Due Process Clause do not
extend to a parent’s interest in the companionship of his
independent adult child.”). Indeed, we recognized in that case
that “the cases extending liberty interests of parents under the
Due Process Clause focus on relationships with minor children.”
Id. at 827 (emphasis in original). Ferren, like McCurdy’s son,
has reached the age of majority under Pennsylvania law. See 23
Pa. Cons. Stat. § 5101(b). In McCurdy, however, we
acknowledged that “adulthood is often a fact-specific inquiry
heavily dependent on the unique context of each situation.” 352
F.3d at 830. For that reason, we explained that states often
“recognize the more fluid concept of ‘emancipation,’ as well as
adulthood[,]” and that “there may be rare instances where the
more flexible concept of emancipation more appropriately fits
the parent-child relationship at issue.” Id. (citations and
footnote omitted). As an example, we briefly discussed the

-- 33 of 49 --

34
Superior Court of Pennsylvania’s decision in Geiger v. Rouse,
715 A.2d 454 (Pa. Super. Ct. 1998), in which the child was over
eighteen but was “‘totally dependent upon her parents as a result
of her moderately severe cerebral palsy,’ severe depression, and
lack of means of employment.” McCurdy, 352 F.3d at 830 n.8
(quoting Geiger, 715 A.2d at 458). We noted in dicta that “we
can conceive of situations where parents in similar
circumstances would have a relationship with their adult child
which is indistinguishable from a relationship with a minor
child.” Id. Because McCurdy presented no evidence that his
son was not emancipated at the time of his death, we held that
he had failed to make a threshold showing of a constitutional
violation.
The scenario we described in dicta in McCurdy is
precisely the one that is presented in this case. The record
leaves no room for doubt that Ferren functions on the level of a
young child and is completely dependent on her parents in
nearly every aspect of her daily life.
As we noted in McCurdy, the Supreme Court has made
clear that the “guarantee of due process has been applied to
deliberate decisions of government officials to deprive a person
of life, liberty, or property.” Daniels v. Williams, 474 U.S. 327,
331 (1986) (emphasis in original) (collecting cases); see also id.
at 328 (“[T]he Due Process Clause is simply not implicated by
a negligent act of an official causing unintended loss of or injury
to life, liberty, or property.”) (emphasis in original). The
Supreme Court’s statement on this point does not differentiate
between adult and minor or unemancipated offspring. Similarly,
in McCurdy, we did not, as a general matter, draw any

-- 34 of 49 --

We are not alone in requiring proof of deliberate22
conduct by the state, regardless of whether a child is a minor or
an adult. See Robertson v. Hecksel, 420 F.3d 1254, 1260 (11th
Cir. 2005) (rejecting a substantive due process claim where the
plaintiff “does not allege the state has interfered with how she
raises her minor child” and “does [not] claim the state action
targeted her custody of her minor child”); Russ v. Watts, 414
F.3d 783, 789-90 (7th Cir. 2005) (“Under any standard, finding
a constitutional violation based on official actions that were not
directed at the parent-child relationship would stretch the
concept of due process far beyond the guiding principles set
forth by the Supreme Court.”); Ortiz v. Burgos, 807 F.2d 6, 8
(1st Cir. 1986) (“[W]e think it significant that the Supreme
Court has protected the parent only when the government
directly acts to sever or otherwise affect his or her legal
relationship with a child. The Court has never held that
governmental action that affects the parental relationship only
incidentally . . . is susceptible to challenge for a violation of due
process.”) (emphasis supplied).
35
distinction between children and adults insofar as we noted the
requirement that executive conduct be deliberate in order to give
rise to a due process violation: “In the context of parental
liberty interests, . . . the Due Process Clause only protects
against deliberate violations of a parent’s fundamental rights –
that is, where the state action at issue was specifically aimed at
interfering with protected aspects of the parent-child
relationship.” 352 F.3d at 827-28.22

-- 35 of 49 --

36
In light of the Supreme Court’s clear statements that only
deliberate conduct implicates due process, we now extend our
holding in McCurdy to situations involving minor and
unemancipated children. In doing so, we reiterate that only
deliberate executive conduct in such instances may give rise to
a substantive due process violation. The Chambers have failed
to allege, much less adduce competent evidence, that the School
District deliberately sought to harm their relationship with
Ferren, and thus their substantive due process claim fails as a
matter of law.
We next address the Chambers’ substantive due process
claim asserted on Ferren’s behalf. The Chambers essentially
allege that the School District violated Ferren’s substantive due
process rights by consistently denying her a FAPE over the
course of many years. In their view, the School District’s
knowledge that Ferren was denied a FAPE and indifference to
that denial shocks the conscience. The District Court did not
explicitly address this claim in its ruling, evidently concluding
that only the parents had alleged a substantive due process
violation. We read the complaint, however, to allege that
Ferren’s own substantive due process rights were violated. On
appeal, the Chambers restate their belief that the School District
violated Ferren’s substantive due process rights.
As we have already explained, to prevail on a substantive
due process claim a plaintiff ordinarily “must prove the
particular interest at issue is protected by the substantive due
process clause and the government’s deprivation of that
protected interest shocks the conscience.” Chainey, 523 F.3d at
219 (citation omitted). Merely negligent conduct, on the other

-- 36 of 49 --

37
hand, does not suffice. Lewis, 523 U.S. at 849. “In between
these two extremes is a middle range of conduct known as
deliberate indifference, which may rise to the level of
conscience-shocking in certain circumstances.” A.M. v. Luzerne
County Juvenile Det. Ctr., 372 F.3d 572, 579 (3d Cir. 2004)
(citation omitted). “The question of whether conduct amounting
to deliberate indifference is sufficient to shock the conscience
requires an exact analysis of the circumstances in a given case.”
Id. (alteration, internal quotation marks and citation omitted).
Where, as here, a state actor has had an opportunity to actually
deliberate, we employ the deliberate indifference standard. See
id.
In Luzerne, we explained how the deliberate indifference
standard is applied to a governmental entity in a § 1983 action
pursuant to Monell v. Department of Social Services of the City
of New York, 436 U.S. 658 (1978):
A governmental entity . . . cannot be liable under
a theory of respondeat superior or vicarious
liability. Rather, in order for a governmental
entity (generically referred to as a “municipality”)
to be liable for the violation of a constitutional
right under § 1983, the plaintiff must identify a
policy or custom of the entity that caused the
constitutional violation. A plaintiff can establish
causation by demonstrating that the municipal
action was taken with deliberate indifference as to
its known or obvious consequences.

-- 37 of 49 --

38
Luzerne, 372 F.3d at 580 (internal quotation marks and citations
omitted).
“Policy is made when a decisionmaker possessing final
authority to establish municipal policy with respect to the action
issues an official proclamation, policy, or edict.” Kneipp v.
Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996) (alteration, internal
quotation marks and citation omitted). Customs are “practices
of state officials so permanent and well settled as to virtually
constitute law.” Id. (alteration, internal quotation marks and
citation omitted). “[I]t is incumbent upon a plaintiff to show
that a policymaker is responsible either for the policy or, through
acquiescence, for the custom.” Andrews v. Phila., 895 F.2d
1469, 1480 (3d Cir. 1990). “Once a § 1983 plaintiff identifies
a municipal policy or custom, he must demonstrate that, through
its deliberate conduct, the municipality was the moving force
behind the injury alleged.” Berg v. County of Allegheny, 219
F.3d 261, 276 (3d Cir. 2000) (internal quotation marks and
citation omitted). “If . . . the policy or custom does not facially
violate federal law, causation can be established only by
demonstrating that the municipal action was taken with
deliberate indifference as to its known or obvious consequences.
A showing of simple or even heightened negligence will not
suffice.” Id. (internal quotation marks and citations omitted).
The Chambers have not identified any policies or
customs of the School District on the basis of which a
reasonable finder of fact could premise liability. Instead, they
have only alleged that because of the School District’s “policy
or custom of intentionally refusing to provide clearly necessary
and appropriate educational services[] to severely

-- 38 of 49 --

39
developmentally impaired students like Plaintiff, Ferren
Chambers has been deprived of a free and appropriate public
education.” (App. 46.) Significantly, at summary judgment a
non-moving party may

-- 39 of 49 --

The only actual evidence on which the Chambers rely23
to show the existence of the School District’s deliberate
indifference is various snippets of deposition testimony of Henry
Gross, the School District’s Director of Special Education
Services. When asked about the provision of educational
services to Ferren, Gross testified as follows:
I think there was a great concern of mine that not
only was [sic] the two periods of speech not being
provided to Ferren, and I made numerous calls
over numerous time periods and . . . I was very
upset that this had not been provided. . . . And I
was calling and writing e-mails frequently in that
time period to get those services provided, and
finally they were provided. But again, these were
instances where in the region neither my
superintendent nor I could assign speech
therapists, could assign transportation or aides
with contracted services. We had to rely on the
private school office and those other offices
within the Family Resource Network and later the
Office of Specialized Service to provide this.
(App. 159-60.)
The Chambers’ reliance on this testimony to support their
contention that the School District was deliberately indifferent
to the implementation of Ferren’s educational plan, is
40
not rest on mere allegations. Trap Rock Indus., Inc. v. Local23

-- 40 of 49 --

misplaced. First, that testimony evinces the School District’s
bona fide attempts to implement that plan in the face of great
logistical hardship, not a deliberate indifference to Ferren’s
educational needs. Second, the fact that the School District’s
attempts ultimately proved inadequate on several fronts does not
demonstrate that the School District was operating according to
any official policy designed to derail the implementation of that
plan or otherwise to deny Ferren educational benefits to which
she was statutorily entitled.
41
825, Int’l Union of Operating Eng’rs, AFL-CIO, 982 F.2d 884,
890 (3d Cir. 1992).
The Chambers likewise fail to point to any “practices . . .
so permanent and well settled as to virtually constitute law.”
Berg, 219 F.3d at 275 (quotation marks and citation omitted).
Indeed, we have previously rejected a § 1983 claim where the
plaintiff “provided no evidence that [the school district’s] policy
is to ignore the responsibilities imposed by IDEA. Rather the
evidence presented was that [the school district] failed to fulfill
its responsibilities.” Ridgewood, 172 F.3d at 252. While it is
certainly true that the School District in this case too frequently
failed to fulfill commitments it had made with respect to
Ferren’s education, the record does not support a finding that the
School District’s policy is to ignore the responsibilities imposed
by the IDEA. Accordingly, we see no reason to disturb the
District Court’s ruling on the Chambers’ substantive due process
claim on Ferren’s behalf.

-- 41 of 49 --

The Chambers do, however, spotlight a litany of other24
alleged conduct by the School District that they argue constitutes
a deprivation of procedural due process. The lion’s share of that
conduct occurred more than two years before the complaint was
filed, and thus any portion of the Chambers’ due process claim
premised on that conduct is time-barred. See McGovern v. City
of Phila., 554 F.3d 114, 115 n.2 (3d Cir. 2009) (noting that
§ 1983 claims are governed by a two-year statute of limitations
in Pennsylvania); Sameric Corp. of Del., Inc. v. City of Phila.,
142 F.3d 582, 599 (3d Cir. 1998) (“[B]ecause Pennsylvania’s
statute of limitations for personal injury is two years, Sameric’s
due process claims are subject to a two-year statute of
limitations.” (citations omitted)).
42
2. Procedural Due Process
The Chambers also allege a violation of procedural due
process. The District Court construed the complaint to allege
that the School District refused to schedule mandatory
conferences with the Chambers and intentionally misplaced their
requests for due process hearings. On appeal, the Chambers do
not explicitly dispute that these allegations form the basis of
their procedural due process claim.24
To prevail on “a claim under § 1983 for deprivation of
procedural due process rights, a plaintiff must allege that (1) he
was deprived of an individual interest that is encompassed
within the Fourteenth Amendment’s protection of ‘life, liberty,
or property,’ and (2) the procedures available to him did not
provide due process of law.” Hill v. Borough of Kutztown, 455

-- 42 of 49 --

43
F.3d 225, 234 (3d Cir. 2006) (internal quotation marks and
citation omitted). “In evaluating a procedural due process claim,
we first determine whether the asserted individual interests are
encompassed within the fourteenth amendment’s protection of
life, liberty, or property.” Baraka v. McGreevey, 481 F.3d 187,
205 (3d Cir. 2007) (quotation marks and citation omitted).
Property interests are “created and their dimensions are defined
by existing rules or understandings that stem from an
independent source such as state law – rules or understandings
that secure certain benefits and that support claims of
entitlement to those benefits.” Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 577 (1972). “To have a property interest in
a benefit, a person clearly must have more than an abstract need
or desire for it. He must have more than a unilateral expectation
of it. He must, instead, have a legitimate claim of entitlement to
it.” Id. State law does not define the parameters of due process
for the purposes of the Fourteenth Amendment. See Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). Rather,
federal law defines those parameters. Witkowski v. Welch, 173
F.3d 192, 205 (3d Cir. 1999).
The first procedural due process violation the Chambers
allege stems from the School District’s failure to hold
conferences with them. The District Court assumed that the
Chambers meant prehearing conferences, as then-defined by 22
Pa. Code § 14.161, reprinted in 31 Pa. Bull. 3032 (June 9,
2001). Neither party contests that assumption, and we have no
reason to do so.
Section 14.161, at the time this lawsuit was commenced,
stated, in pertinent part, as follows: “When a parent requests

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In fact, the very evidence on which the Chambers rely25
to demonstrate the existence of a property interest in prehearing
conferences actually undercuts, rather than bolsters, their
position. They point us to the hearing officer’s April 2004
report, in which the hearing officer stated that “[n]othing about
the [School District’s] decision to waive the pre-hearing
conference . . . violates the state special education regulations
since either party may waive a pre-hearing.” (App. 131.
(emphasis supplied and citation omitted).)
44
and the school district or early intervention agency in the case of
a young child agrees to participate in a prehearing conference,
the conference shall be convened within 10 days of receipt of
the parent notice . . . .” 22 Pa. Code § 14.161(2), reprinted in 31
Pa. Bull. 3032 (June 9, 2001). The District Court found that
§ 14.161 “requires the agreement of both parties to a pre-hearing
conference.” Chambers, 2007 U.S. Dist. LEXIS 88003, at *22.
We agree. The Chambers’ perception that § 14.161 grants them
a property interest is predicated on a misreading of that
provision. Section 14.161 gives the Chambers no more than a
“unilateral expectation” of a prehearing conference. Roth, 40825
U.S. at 577. It plainly does not vest them with a “legitimate
claim of entitlement.” Id.
The second procedural due process violation the
Chambers allege is the School District’s misplacement of their
November 2003 request for a due process hearing. It is
undisputed that: the School District failed to forward that
request to the Office for Dispute Resolution; the Chambers
directly contacted the Office for Dispute Resolution in

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45
December 2003 to inquire about their request; a due process
hearing was held in March 2004 following the Chambers’
inquiry. The District Court found that, despite the School
District’s failure to forward the Chambers’ hearing request, any
deprivation was remedied when the Office for Dispute
Resolution, at the Chambers’ prompting, eventually, though
belatedly, convened a hearing, the result of which was favorable
to the Chambers.
At the time the Chambers filed their complaint, 22 Pa.
Code § 14.162, on which the Chambers evidently relied to show
the existence of a property interest, provided, in relevant part,
that “[a] hearing shall be held within 30 days after a parent’s or
school district’s initial request for a hearing.” 22 Pa. Code
§ 14.162(q)(1), reprinted in 31 Pa. Bull. 3033 (June 9, 2001).
There is no dispute that a hearing was not held within thirty days
of the Chambers’ submission of their request. We will assume
for the sake of argument that the Chambers have identified a
property interest created by state law. See, e.g., Thomas v. Town
of Hammonton, 351 F.3d 108, 113 (3d Cir. 2003) (assuming
arguendo that the plaintiff had a property right where state law
mandated notice and a hearing before an employee could be
terminated). Their claim is nevertheless fatally flawed. We
have explained that although § “1983 does not include any mens
rea requirement in its text, . . . the Supreme Court has plainly
read into it a state of mind requirement specific to the particular
federal right underlying a § 1983 claim.” Jordan v. Fox,
Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1277 (3d Cir.
1994) (citing Parratt v. Taylor, 451 U.S. 527, 532 (1981)).
Accordingly, we have recognized that “a negligent deprivation
of due process will not sustain a § 1983 claim.” Id. (citation

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46
omitted). Instead, “a plaintiff who wishes to sustain a § 1983
claim based upon a violation of procedural due process must, at
a minimum, prove recklessness or ‘gross negligence’ and in
some instance may be required to show a ‘deliberate decision to
deprive’ the plaintiff of due process.” Id. (quoting Daniels, 474
U.S. at 333-34).
In this case, the record offers no evidentiary support for
the Chambers’ claim that the School District intentionally
misplaced or failed to forward their hearing request, or that the
School District exhibited recklessness or gross negligence by
misplacing or failing to forward that request. The record
suggests only that the School District’s error – and the School
District concedes that it made a mistake – was negligent at most.
Such conduct is not actionable under § 1983 under these
circumstances. The Chambers’ procedural due process claim
therefore fails as a matter of law.
D. Equal Protection
Count Three of the complaint alleges violations of
Ferren’s rights under the Equal Protection Clause of the
Constitution. Specifically, it alleges that the School District
intentionally discriminated against disabled students such as
Ferren. The District Court granted summary judgment for the
School District on this claim, reasoning that the Chambers, who
were asserting the claim on Ferren’s behalf, had failed to adduce
any evidence to support it.
The Fourteenth Amendment provides that “[n]o State
shall . . . deny to any person within its jurisdiction the equal

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47
protection of the laws.” U.S. Const. amend. XIV, § 1. “This is
essentially a direction that all persons similarly situated should
be treated alike.” Shuman v. Penn Manor Sch. Dist., 422 F.3d
141, 151 (3d Cir. 2005) (citation omitted). “To bring a
successful claim under 42 U.S.C. § 1983 for a denial of equal
protection, plaintiffs must prove the existence of purposeful
discrimination.” Andrews, 895 F.2d at 1478 (citation omitted).
“They must demonstrate that they received different treatment
from that received by other individuals similarly situated.” Id.
(internal quotation marks and citation omitted).
We must reject the Chambers’ equal protection claim,
since we agree with the District Court that the Chambers fell far
short of their burden of establishing that the School District
purposefully treated Ferren differently from similarly situated
students. In its summary judgment motion, the School District
argued that the Chambers “have done no discovery to determine
if Ferren was treated differently that [sic] these ‘other similarly
situated students.’” (App. 90.) In other words, the School
District sought to meet its summary judgment burden by
highlighting “the absence of a genuine issue of material fact”
with respect to the Chambers’ equal protection claim. See
Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 401 (3d
Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)).
Once the School District met its initial burden, it was
incumbent on the Chambers to show the existence of a genuine
issue of material fact. They plainly failed to do so. In their
opposition to the School District’s motion, the Chambers elected
to rebut the School District’s argument with no more than a

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Before the District Court, the Chambers’ equal26
protection claim was premised on the theory that Ferren was
treated differently from similarly situated disabled students. On
appeal, the Chambers argue that Ferren was treated differently
from students without disabilities. Because that particular
argument is advanced for the first time on appeal, it is waived.
See Del. Nation v. Pennsylvania, 446 F.3d 410, 416 (3d Cir.
2006) (“Absent exceptional circumstances, this Court will not
consider issues raised for the first time on appeal.”). We
sometimes decline to find waiver “when manifest injustice
would result from a failure to consider a novel issue.” Gass v.
Virgin Islands Tel. Corp., 311 F.3d 237, 246 (3d Cir. 2002)
(internal quotation marks and citations omitted). No departure
from the general waiver rule is warranted here, as the Chambers
also have failed to present any evidence to buttress their newly
minted equal protection theory.
48
conclusory statement that Ferren was “treated differently than
other disabled children to whom the school district has met their
obligations [sic].” (App. 107.) That effort, standing alone, was
deficient, as the record does not reflect that the Chambers
presented any competent evidence in support of their claim, as
they were required to do. See Olympic Junior, Inc. v. David
Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972) (“Conclusory
statements [and] general denials . . . [are] insufficient to avoid
summary judgment.” (collecting cases)). Given this evidentiary
deficiency, we will affirm the District Court’s grant of summary
judgment on the Chambers’ equal protection claim on Ferren’s
behalf.26

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We express no opinion on the viability of Ferren’s ADA27
and RA claims.
49
IV. CONCLUSION
The circumstances of this case tug forcefully at the
heartstrings. Mr. and Mrs. Chambers’ resolve and dedication to
Ferren are both admirable and compelling. The hardship they
have endured for more than two decades in addressing Ferren’s
daily challenges no doubt has been compounded by their
struggle to obtain an appropriate education for her. These
concerns notwithstanding, the compensatory relief the Chambers
seek for themselves is unavailable under the IDEA, and they
have waived their right to relief under the other statutory
schemes they have invoked. The ADA and the RA, however,
may provide an avenue to relief for Ferren. The Chambers27
cannot proceed on any of their constitutional claims, as they
failed to meet their summary judgment burden on those claims.
For the foregoing reasons, we will affirm the District
Court’s grant of summary judgment on the Chambers’ IDEA
claim, both on their own and Ferren’s behalf; their ADA and RA
claims asserted in their own right; and their constitutional
claims, on both their own and Ferren’s behalf. We will vacate
the District Court’s grant of summary judgment on the
Chambers’ ADA and RA claims asserted on Ferren’s behalf and
remand to the District Court for further proceedings consistent
with this opinion.

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