Jennifer Binder Le Pape v. LOWER MERION SCHOOL DISTRICT (Amended pursuant to Clerk’s Order dated November 28,…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 22-2931
JENNIFER BINDER LE PAPE and FREDERIC LE PAPE,
Individually and on behalf of Alexandre Le Pape;
ALEXANDRE LE PAPE, Individually,
Appellants
v.
LOWER MERION SCHOOL DISTRICT
*(Amended pursuant to Clerk’s Order dated November
28, 2022)
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No. 2-20-cv-01416)
District Judge: Honorable Karen S. Marston
Argued January 18, 2024

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Before: JORDAN, BIBAS, and AMBRO, Circuit Judges
(Opinion filed June 4, 2024)
Nicole M. Reimann (Argued)
Batchis Nestle & Reimann
7 Bala Avenue
Suite 202
Bala Cynwyd, PA 19004
Counsel for Appellants
Amy T. Brooks
Michael D. Kristofco (Argued)
Christina Gallagher
Wisler Pearlstine
460 Norristown Road
Suite 110
Blue Bell, PA 19422
Counsel for Appellee
Peter D. Keisler
Virginia A. Seitz
1501 K Street NW
Sidley Austin
Washington, DC 20005
Counsel for Amicus Appellant
Communication First

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Selene A. Almazan-Altobelli
Council of Parent Attorneys and Advocates
P.O. Box 6767
Towson, MD 21285
Counsel for Amicus Appellant Council of
Parent Attorneys and Advocates
OPINION OF THE COURT
AMBRO, Circuit Judge
Non-verbal student Alexandre Le Pape (“Alex”) and his
family (collectively, the “Le Papes”) repeatedly requested that
the Lower Merion School District (the “School District” or
“District”) change his educational program to include a new
communication protocol. After it denied these requests and
Alex left public education, the Le Papes filed an administrative
special education due process complaint against the School
District seeking compensatory education, reimbursement for
tuition and services in the home, and the award of attorney fees
and costs. The family alleged that the District failed to protect
Alex’s rights and denied him a Free Accessible Public
Education (“FAPE”) under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1400, et seq.; Section
504 of the Rehabilitation Act of 1973 (“Section 504”), 29
U.S.C. § 794; Title II of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12131, et seq.; and Chapters 14 and 15
of the Pennsylvania Code, 22 Pa. Code Chs. 14-15.

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An impartial administrative hearing officer ruled
against them on all claims, and they filed suit in the United
States District Court for the Eastern District of Pennsylvania.
In Count I of their complaint, the Le Papes alleged that the
District failed to provide a FAPE in violation of the IDEA,
Section 504, and state law; they sought compensatory
education, reimbursement for the private program they
developed for Alex following his withdrawal from the District,
and reimbursement for the psychological evaluation of him
that they coordinated. Counts II and III, seeking compensatory
damages and a jury trial, alleged the District intentionally
discriminated against Alex in violation of Section 504 and the
ADA.
The District Court granted the School District’s motions
for summary judgment on the ADA claim and judgment on the
administrative record for the denial-of-FAPE claims, in effect
rolling together their ADA and Section 504 claims with their
IDEA claim. The Le Papes now appeal the Court’s grant of
summary judgment for the District on their ADA claim and of
judgment on the administrative record for the District on their
ADA and Section 504 claims.1 Because the Court granted
judgment on them without applying the summary judgment
standard to which the Le Papes were entitled under Federal
Rule of Civil Procedure 56, we reverse and remand.
I. BACKGROUND
1 They do not appeal the Court’s treatment of their denial-of-
FAPE claims under the IDEA, Section 504, and state law.

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a. Factual Background
Alex, who is now twenty-three years old, was formerly
a student in the School District. Diagnosed with autism and
speech-language impairment, he describes himself as a “non-
speaker.” Le Papes’ Br. at 5. He was eligible for special
education services under the IDEA categories of Autism,
Intellectual Disability, and Speech and Language Impairment.
During his time in the District, Alex used a Bluetooth keyboard
and iPad, in addition to visual scripts, pointing, and identifying
pictures. With these, he could communicate simple things like
requests for food or to go to the restroom or the school nurse.
In July 2017, when Alex was 16, his family learned
about a technique known as “Spelling to Communicate”
(“S2C”), in which a non-speaker points at letters on a
laminated alphabet board (“letter board”) held by a
communication support person. That summer, his family sent
the School District videos illustrating the technique. They
requested that representatives from the District observe Alex
using S2C, but it declined, telling Mrs. Le Pape that the
technique was not evidence based. She concedes that there was
then no published research to support the method (nor would
there be until 2019). In the fall of 2017, she nonetheless sent
another email requesting the District to reconsider its decision
and make changes to Alex’s Individualized Education Plan
(“IEP”), including provision for training District personnel in
S2C. Shortly thereafter, the District team assigned to Alex
revised his IEP to acknowledge her request, but not to
implement it. On December 10, Mrs. Le Pape again emailed
the District requesting changes to his IEP, including training
for S2C and to have a person trained in the method “work with
Alex at school all day, every day.” App. at 541.

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Later that month, the School District finally agreed to
observe Alex at an S2C training session, and on December 28
two special education specialists from the District observed
him and his communication partner, Emily. The specialists had
reservations about the method and shared with the IEP team
that they needed to observe the protocol again, this time with
Alex’s teacher present. They also spoke with Elizabeth
Voseller, the inventor of S2C, as well as a practitioner trained
by her. After those conversations, the District’s special
education supervisor for Grades 10-12 emailed her supervisor
on January 15, 2018, stating that “[a]fter those two phone calls,
Denise [the District’s Speech and Language Department
Coordinator and Assistive Technology Coordinator for grades
K to 12] and I seem to have more questions than answers.”
App. at 3787. The supervisor outlined various concerns,
including the lack of evidence for S2C, its similarity to the
Rapid Prompt Method that various studies had called into
question, that the American Speech-Language-Hearing
Association (“ASHA”) did not recognize S2C as an evidence-
based protocol, the lack of individuals communicating
independently using S2C, and that Alex did not, at that time,
use S2C at home except to complete homework. The special
education supervisor then reiterated the need to observe Alex
again, this time with his teacher, and recommended that the
District purchase letter boards and use them in reading class to
collect more data.
As the special education supervisor suggested, the
District specialists and Alex’s teacher, Ms. Van Horn,
conducted a second observation of Alex using S2C in late
January 2018, with the specialists viewing Alex, Emily, and his
teacher from a remote monitor in a separate room. During this

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session, Emily and Alex went through review questions for
Alex’s U.S. History midterm. Initially, Emily did not have the
answer key, and Alex was not answering correctly; but once it
was provided to Emily, he started answering correctly. This
troubled Alex’s teacher as well as the specialists. After the
observation, the specialists asked Mrs. Le Pape more questions
about S2C and proposed obtaining letter boards and running a
trial in the classroom.
In February, the School District accepted the mother’s
offer to visit Alex’s classroom and show his teacher how to use
S2C. From then on, Alex would bring his letter board to school
every day and take it home with him. At the same time,
however, the District advised the Le Papes that, “as we have
shared with you, the reservations regarding training staff center
around our belief that we have highly trained staff who have
expertise and background to successfully utilize this tool. The
lack of research behind S2C[,] including research to drive
appropriate training with fidelity[,] remains a significant
concern for the [D]istrict.” App. at 549. Mrs. Le Pape took
this to mean District staff wished to see research on S2C as
well as a protocol for how to use it.
In March, Mrs. Le Pape came into the classroom of
Alex’s teacher several times to demonstrate the use of S2C,
with a special education specialist from the School District
present. His teacher had limited success attempting to use the
technique with Alex. Mrs. Le Pape conceded that these trials
were not successful, which she ascribed to the teacher’s lack of
training.
In April, the School District revised Alex’s IEP,
agreeing for staff to train for use of S2C. Mrs. Le Pape was

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still dissatisfied with this, and in mid-July emailed the District
requesting that his IEP be revised yet again, this time to
incorporate the use of S2C with a trained partner, including in
Alex’s extracurricular activities. It responded that, “[a]s we
discussed at the start of the summer, we are training for trial.
Our team needs the opportunity to go through the training and
then to make the most informed recommendations going
forward.” App. at 557. On August 3, the District emailed the
Le Papes, stating that “[w]hile we have agreed to train in S2C
for the purposes of trial, please remember that the District has
significant and valid concerns with this method as it lacks
research to support its use.” App. at 4050.
That said, the training nonetheless took place over three
days at the end of September 2018, with participation by the
two special education specialists from the School District, two
of Alex’s teachers, and a certified school psychologist. Alex’s
teacher, Mr. Borsch, complained that the training was “kind of
all over the place” and that S2C was not a communication tool
but instead “[other people] prompting [Alex] to the right
answer.” App. at 2162-63. The school psychologist raised
multiple concerns about the method, including the lack of data
for it, the need for an explanation why the letter board couldn’t
be on a fixed structure, and the trainer’s use of the phrase “in
the neighborhood” when describing when an individual’s
response was close enough on the letter board to where the
correct response would be. App. at 563-64.
Over this time, Alex experienced an increase in self-
injurious and aggressive behaviors, including biting his hands
and pulling others’ hair. His treating psychiatrist ascribed these
behaviors to an increase in anxiety due to his inability to use
the letter board in school. In the fall of 2018, she recommended

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that Alex not return to school until the School District
accommodated his use of the letter board and developed a plan
to transition him back into classroom learning. Citing his
increased anxiety, Alex’s parents removed him from school on
October 25.
On November 28, the School District team assigned to
Alex met for the final time and announced that it would not
incorporate S2C into Alex’s program. Mrs. Le Pape later
testified that the District raised concerns about the recent
statement of the ASHA that S2C was not evidence based and
“not recommended,” App. at 4755, as well as its dissatisfaction
with the training.
Once Alex had been out of school for six weeks,
however, the School District revised his IEP to indicate that if
he brought his own letter board and communication partner to
school, it would allow him to use both as a reasonable
accommodation. It still refused to provide its own
communication support person. On December 21, Alex’s
parents rejected the proposed IEP revisions, and Alex
continued his education from home, where private tutors met
with him and used S2C.
In total, Alex’s family spent 17 months, spanning two
school years, making at least 33 requests to his School District
to allow him to use the letter board in school and to train staff
to assist him in using it. At various times, his speech therapist,
psychiatrist, and behavior analyst each wrote to the District
stating that the letter board would be an effective means of
communication for him.
b. The Administrative Process

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The Le Papes filed a due process complaint with the
Pennsylvania Department of Education, Office of Dispute
Resolution. They alleged that the School District failed to
protect Alex’s rights and denied him a FAPE under the IDEA,
Section 504, Title II of the ADA, and state law. A hearing
officer heard the complaint over three sessions; he did not
allow Alex to testify using the letter board and excluded videos
of him using it. In his final decision and order, the officer
found that the School District did not deny Alex a FAPE under
the IDEA, Section 504, and state law, and did not discriminate
against him in violation of Section 504. He held that he did not
have jurisdiction over the ADA discrimination claim, but that,
if he did, he would hold that the Le Papes had not proven the
District discriminated against Alex.
c. The District Court Process
The Le Papes timely filed a complaint with the District
Court. As noted above, in Count I of their complaint, filed on
March 12, 2020, they alleged that the School District failed to
provide a FAPE in violation of the IDEA, Section 504, and
state law. In Counts II and III, they alleged the District
intentionally discriminated against Alex in violation of the
ADA and Section 504 by refusing to permit him to
communicate with the letter board and failing to train staff so
he could do so. The Le Papes sought compensatory damages
and a jury trial on their intentional discrimination claims. In
its answer to the Le Papes’ intentional discrimination claims,
the District did not assert either the fundamental alteration or

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undue burden exception to the ADA’s effective communication
requirement.2 Nor did it move to strike the jury demand.
Following the conference under Federal Rule of Civil
Procedure 16, the District Court sua sponte ordered briefing on
whether the ADA claim was independent of the FAPE claim
and how the resolution of that question should affect discovery
and scheduling. On March 12, 2021, the Court issued an order
deciding the issue and concluding that the ADA claim was
subsumed by the FAPE claim.
In arriving at that conclusion, the Court applied the
framework from Fry v. Napoleon Community Schools, 580
U.S. 154, 170-71 (2017). The Supreme Court there instructed
that a plaintiff must exhaust his non-IDEA claim through an
IDEA hearing only if the essential element (“gravamen”) of the
non-IDEA claim relates to the denial of a FAPE. Applying that
case, the District Court concluded that “the crux of [the Le
Papes’] complaint remain[ed] the denial of a FAPE,” App. at
165; so, under Fry, they were required to exhaust their ADA
claim in an IDEA proceeding, which it concluded they did.
But the Court did not stop there. It next held that “given
[its] conclusion that the ADA claim [was] in essence a denial
of a FAPE, [the Le Papes were] not entitled to a jury trial on
2 The ADA “does not require a public entity to take any action
that it can demonstrate would result [1] in a fundamental
alteration in the nature of a service, program, or activity or [2]
in undue financial and administrative burdens[,]” though it
must still “ensure that, to the maximum extent possible,
individuals with disabilities receive the benefits or services
provided by the public entity.” 28 C.F.R. § 35.164.

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that claim.” App. at 170. However, it gave them leave to
amend “to the extent [they] are able to plead additional facts
that may show that their ADA claim does not arise out of the
District’s alleged denial of a FAPE to [Alex].” App. at 172.
The Le Papes did so, filing an amended complaint
alleging that the School District’s refusal to permit Alex to
communicate by means of the letter board and to train staff on
its use denied him the equal opportunity to participate in and
enjoy the benefits of guidance counseling services, school
nurse services, extracurricular activities, academic programs,
peer relationships, and off-campus activities. As before, the Le
Papes sought money damages and demanded a jury trial, and
as before, the District’s answer did not assert the fundamental
alteration or undue burden exceptions to the ADA’s effective
communication requirement, nor did it move to strike the jury
demand.
On April 22, 2021, the District Court issued a
Scheduling Order with “the case [] proceeding on two tracks”:
one for the administrative appeal and one for the discrimination
claims. App. at 10. For the latter, the Court established
deadlines for fact and expert discovery, summary judgment,
Daubert and in limine motions, and pretrial memoranda. It
also set a trial date. On the administrative appeal, it established
deadlines for motions to supplement the administrative record
and for judgment thereon.
The Le Papes duly began discovery on their
discrimination claims. When they noticed a Fed. R. Civ. P.
30(b)(6) deposition of the School District, however, it resisted,
and the Le Papes moved to compel. The District argued that
they sought to “engage in garden style discovery of matters

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which were exhausted during the due process hearing[,]” with
“[v]irtually everything [they] want[ed] to inquire about in the
30(b)(6) deposition involv[ing] matters which were covered
during the [] hearing.” App. at 311. The Court granted the Le
Papes’ motion to compel, and the parties conducted
discovery—including interrogatories, depositions, and expert
discovery—over the summer of 2021.
In parallel, the Le Papes moved to supplement the
administrative record on the administrative appeal with Alex’s
testimony, videos of him communicating by using the letter
board, and peer-reviewed research published in May 2020 in
support of S2C. The School District opposed the motion. On
September 17, 2021, the District Court issued a memorandum
opinion and order mostly granting the Le Papes’ requests. It
observed that, in their amended complaint, they “raised a
revised ADA discrimination claim that differed in material
respects from their original ADA claim.” App. at 352.
Therefore, it reiterated, this “set the case on two tracks because,
if Plaintiffs stated claims for intentional discrimination
unrelated to the denial of FAPE claim, they may have been
entitled to a jury trial on those claims, whereas the
administrative appeal was to be decided by the Court on the
administrative record.” App. at 40 n.12. As to the Le Papes’
requests to supplement the record, the Court admitted Alex’s
testimony and videos of him using the letter board to
communicate, but not the peer-reviewed study from 2020,
stating that because the study was published after the
conclusion of the administrative hearing, the hearing officer
could not be faulted for failing to address it. However, “[t]he
Court t[ook] no position as to whether the study [wa]s
admissible as evidence with respect to Plaintiffs’ ADA claim,
which [wa]s proceeding as an independent claim filed

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originally in th[at] Court—not as an administrative appeal.”
App. at 362 n.7.
The Le Papes moved for summary judgment on liability
for the ADA claim, and the School District moved for summary
judgment on the intentional discrimination claims under both
Section 504 and the ADA. In addition to their cross-motions
for summary judgment, the parties filed cross-motions for
judgment on the administrative record as to the denial-of-FAPE
claims.
For the summary judgment motions on the intentional
discrimination claims, the Court denied the School District’s
motion on the Section 504 claim, stating that because “the
hearing officer heard and denied that claim in the due process
hearing,” the Court would “address it in [its] decision on the
parties’ cross-motions for judgment on the administrative
record.” App. at 3 n.1. It then turned to the ADA claim, briefly
reciting the relevant facts, including that “[e]ight medical and
educational professionals ha[d] opined that [S2C] is an
effective means of communication for [Alex].” App. at 4 n.3.
However, the Court then reasoned that the ADA claim was
subsumed by the IDEA denial-of-FAPE claim. “Because
Plaintiffs’ ADA claim seeks a remedy for denial of a FAPE,” it
concluded, “they are not entitled to a jury trial on that claim.”
App. at 19. It then granted the School District’s motion for
summary judgment on the ADA claim, holding that it would
“consider the Plaintiffs’ ADA claim, like their IDEA and
Section 504 claims, on appeal from the hearing officer’s
decision.” App. at 19. Though it denied summary judgment to
the District on the Section 504 discrimination claim and
granted it on the ADA discrimination claim, it did so with an

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identical result: it would consider both claims as part of the
administrative appeal.
Nine months later, it considered that appeal. In so
doing, it “conduct[ed] a ‘modified de novo review’ of [the]
hearing officer’s decision” as to all claims, under which the
hearing officer’s factual findings were considered “prima facie
correct.” App. at 41; App. at 60-65.3
On the merits, the District Court affirmed the hearing
officer’s conclusion that the School District had not denied
Alex a FAPE under any statute, finding that “[t]he record and
3 The Supreme Court has held that when considering
administrative appeals of IDEA claims, district courts should
accord “due weight” to factual findings made in the
administrative hearings required by that Act. Bd. of Educ. of
Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v.
Rowley, 458 U.S. 176, 206 (1982). This standard, known as
modified de novo review, “requires the court to consider the
‘[f]actual findings from the administrative proceedings . . . [to
be] prima facie correct’ and, if the court fails to adopt those
findings, it must explain its reasons for departing from them.”
Mary T. v. Sch. Dist. of Phila., 575 F.3d 235, 241 (3d Cir. 2009)
(quoting Shore Reg’l High Sch. Bd. of Educ. v. P.S. ex rel. P.S.,
381 F.3d 194, 199 (3d Cir. 2004) (internal citation omitted)).
Our Circuit has not yet decided whether this standard of review
applies to a district court’s review of hearing officers’ decisions
regarding denial-of-FAPE claims under non-IDEA laws. See
T.F. v. Fox Chapel Area Sch. Dist., 589 F. App’x 594, 598 (3d
Cir. 2014) (assuming arguendo that de novo review applies
because it would affirm the Section 504 decision in either
case). As discussed below, we decline to extend modified de
novo review to such circumstances.

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supplemental evidence support the [h]earing [o]fficer’s
conclusion that the District was not required to implement S2C
because it was not an effective means of communication for
[Alex].” App. at 54. In particular, the Court agreed that the
District did not need to implement S2C because “hearing
officers and parents are not permitted to second guess a school
district’s decision about which methodology to implement to
address a disabled student’s needs.” App. at 52.
While the District Court agreed with the Le Papes that
the hearing officer’s credibility determinations were “sweeping
and not necessarily supported by the testimonial evidence[,]”
App. at 48, it concluded that it was “bound to adopt” them
because “the non-testimonial evidence in the record
demonstrates that S2C is not an effective means of
communication for [Alex].” Id. It acknowledged his
testimony—delivered using a letter board—that it was
effective communication for him, as well as opinions from his
clinicians in the administrative record; however, the Court
concluded that these did not “outweigh the bulk of the
evidence, which goes to the contrary.” App. at 51. And though
it did consider the videos of Alex answering questions
correctly, it found that his “communication partners are, to
some degree, guiding him to the correct answer, which
suggests that S2C is not [Alex’s] own voice and supports the
District’s decision not to implement the method.” Id. The Le
Papes argued that while Ridley School District v. M.R., 680
F.3d 260 (3d Cir. 2012), does not require a school district to
apply the disabled student’s preferred method of
communication if it can implement an alternative, effective
method of communication, the letter board was Alex’s only
effective means of communication. The Court, however,
rejected this contention, finding that “the record demonstrates

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that [Alex] is a skilled typist.” App. at 53. It did so without
mentioning the testimony of Alex or his behavior specialist that
he could merely type what others told him, nor did it note the
additional opinions of the “[e]ight medical and educational
professionals” the Le Papes later presented at summary
judgment. App. at 4 n.3.
The District Court then turned to the Le Papes’ ADA and
Section 504 claims for intentional discrimination, observing
that the “parties agree that . . . the only dispute is whether, by
refusing to allow [Alex] to use S2C in school, the District
denied [him] benefits of the program or otherwise subjected
[him] to discrimination because of his disability.” App. at 61.
Because the Le Papes had only argued these claims on
summary judgment, not the motions for judgment on the
administrative record, the Court stated it would consider their
arguments made on summary judgment “to the extent [they]
are based on evidence available in the administrative record.”
App. at 61 n.19.
In this context, the Court did not acknowledge evidence
developed through months of discovery, including the expert
testimony and opinions it had referenced in its earlier ruling on
summary judgment. It reasoned that it had already determined
the intentional discrimination claims were denial-of-FAPE
claims, and it had just rejected all of the latter claims, so,
logically, “Plaintiffs [we]re not entitled to relief under Section
504 or the ADA.” App. at 61-62. In the alternative, the Court
concluded that even if these were not denial-of-FAPE claims,
the Le Papes had failed to establish that Alex was discriminated
against because they “ha[d] not adduced evidence to
demonstrate the efficacy of the S2C method, particularly in
light of the credible testimony of District staff who observed

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[Alex] using the method and believed that [he] was being
guided or prompted while using the methodology,” App. at 64
n.20. Moreover, “neither Section 504 nor the ADA requires
schools to implement an unproven, ineffective means of
communication, even if it is the student’s preferred method.”
App. at 65.
The Le Papes timely appealed the District Court’s grant
of summary judgment for the School District on their ADA
claim as well as the Court’s entry of judgment on the
administrative record for the District on both their ADA and
Section 504 claims.4 Council of Parent Attorneys and
Advocates5 and Communication First6 each filed amicus curiae
briefs (respectively, “Amicus Br. 1” and “Amicus Br. 2”) in
support of the Le Papes.
4 As mentioned, the family is no longer pursuing their claims
under the IDEA and state law.
5 “The Council of Parent Attorneys and Advocates is a not-for-
profit organization for parents of children with disabilities,
their attorneys[,] and advocates[,] …[and] provides resources,
training, and information for parents, advocates, and attorneys
to assist in obtaining [] free appropriate public education …
under the Individuals with Disabilities Education Act[.]”
Amicus Br. 1 at 1.
6 “Communication First is a national, disability-led nonprofit
organization dedicated to protecting and advancing the human,
civil, and communication rights of the estimated 5 million
children and adults in the United States who, due to disability
or other condition, cannot rely on speech alone to be heard and
understood.” Amicus Br. 2 at 1.

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II. JURISDICTION & STANDARD OF REVIEW
The District Court had jurisdiction under 28 U.S.C. §
1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We apply plenary review to the District Court’s grant of
summary judgment, “applying the same standard that the lower
court should have applied.” Chisolm v. McManimon, 275 F.3d
315, 321 (3d Cir. 2001). Summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). We review all facts in the light
most favorable to the non-moving party and draw “all
justifiable inferences . . . in [its] favor.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
III. ANALYSIS
a. The IDEA, ADA, and Section 504 generally
The IDEA, ADA, and Section 504 of the Rehabilitation
Act all provide protections for students with disabilities.7 But
7 Section 1412 of the IDEA provides in part:
A State is eligible for assistance … if [it] … has in
effect policies and procedures to ensure that [it] meets
each of the following conditions [, inter alia,]: A free
appropriate public education is available to all children
with disabilities residing in the State between the ages
of 3 and 21[.]
20 U.S.C. § 1412(a)(1)(A).

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how do these overlapping laws interact? For a brief time
following the Supreme Court’s decision in Smith v. Robinson,
468 U.S. 992, 1009 (1984), the IDEA was “the exclusive
avenue through which a plaintiff [could] assert an equal
protection claim to a publicly financed special education[,]”
precluding claims asserting the right to a FAPE under other
laws, such as Section 504. Congress, however, promptly
“overturned Smith’s preclusion of non-IDEA claims while also
adding a carefully defined exhaustion requirement[,]” Fry, 580
U.S. at 161, per the Handicapped Children’s Protection Act of
1986, Pub. L. No. 99-372, 100 Stat. 796, which amended the
IDEA to add Section 1415(l). It “‘reaffirm[ed] the viability’ of
federal statutes like the ADA or Rehabilitation Act ‘as separate
vehicles,’ no less integral than the IDEA[.]” 580 U.S. at 161
Section 202 of the ADA provides:
Subject to the provisions of this subchapter, no qualified
individual with a disability shall, by reason of 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.
Section 504 of the Rehabilitation Act provides:
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).

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21
(quoting H.R. Rep. 99-296 at 4 (1985)). Under Section
1415(l),
[n]othing in this chapter shall be construed to restrict or
limit the rights, procedures, and remedies available
under the Constitution, the Americans with Disabilities
Act of 1990, title V of the Rehabilitation Act of 1973,
or other Federal laws protecting the rights of children
with disabilities, except that before the filing of a civil
action under such laws seeking relief that is also
available under this subchapter, the procedures under
subsections (f)8 and (g)9 shall be exhausted to the same
extent as would be required had the action been brought
under this subchapter.
20 U.S.C. § 1415(l). As mentioned above, in Fry the Supreme
Court held that a plaintiff is required to exhaust his non-IDEA
claims in a hearing under the procedures in the IDEA only if
his “suit [] seek[s] relief for the denial of a FAPE, because that
is the only ‘relief’ the IDEA makes ‘available.’” Id. The Court
reserved the question of whether exhaustion is required when
a plaintiff seeks to remedy a denial of a FAPE with a form of
relief that is not available under the IDEA. 580 U.S. at 165
n.4. Recently, however, it answered this question in Perez v.
Sturgis Public Schools, 598 U.S. 142 (2023), reemphasizing
8 Subsection (f) sets out the procedure for impartial due process
hearings. 20 U.S.C. § 1415(f).
9 Subsection (g) prescribes the procedure for appeals of
hearing-officer decisions to state educational agencies. 20
U.S.C. § 1415(g).

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22
the ADA’s independence from the IDEA. The Sixth Circuit
had affirmed a district court’s dismissal of an ADA claim based
on the denial of a FAPE because the plaintiff had failed to
exhaust his claim through an IDEA hearing. In reversing, the
Supreme Court held that the IDEA’s exhaustion requirement
did not apply because the plaintiff sought compensatory
damages, not equitable relief, and § 1415(l) “applies only to
suits that ‘see[k] relief . . . also available under’ [the] IDEA.”
Id. at 147 (emphasis in original) (also noting that “everyone
agrees [the] IDEA does not provide” compensatory damages).
The text of § 1415(l) makes clear that, besides this
exhaustion requirement, the IDEA places no restrictions on
ADA and Section 504 claims. Once he has exhausted those
claims in an IDEA hearing, a plaintiff may pursue them as he
otherwise would in a district court. The court then must
examine the claim for sufficiency of pleading or evidence as
applicable to the motion in front of it.
This is essential because a plaintiff may be able to make
out an intentional discrimination claim under the ADA even if
he receives a FAPE under the IDEA. A key difference between
the IDEA’s FAPE obligation and the ADA’s effective
communication requirement—and one central to the Le Papes’
claim—is the emphasis that the public entity must place on the
disabled student’s preference when deciding what
accommodations to provide. For example, under the IDEA the
IEP team for a deaf or hard-of-hearing child must consider,
among other factors, “the child’s language and
communication needs,” “opportunities for direct
communications with peers and professional[s] in the child’s
language and communication mode,” and “whether the
child needs assistive technology devices and services.” 20

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23
U.S.C. § 1414(d)(3)(B)(iv) & (v). It “does not require that
parental preferences be implemented, so long as the IEP is
reasonably calculated to provide some educational benefit.”
Bradley ex rel. Bradley v. Ark. Dep’t of Educ., 443 F.3d 965,
975 (8th Cir. 2006).
But the ADA, by regulation, adds another requirement:
the public entity must “give primary consideration to the
requests of [the] individual[] with disabilities.” 28 C.F.R. §
35.160(b)(2) (emphasis added). This difference can determine
what auxiliary aids and services a child receives. Under the
ADA, “[t]he public entity shall honor the choice [of the
individual with a disability] unless it can demonstrate that
another effective means of communication exists or that use of
the means chosen would not be required under § 35.164.” 28
C.F.R. Part 35, App. A.
b. The District Court’s Decision
In this context, when considering the parties’ cross-
motions for summary judgment, the District Court should have
performed the inquiry demanded by Fed. R. Civ. P. 56 for the
ADA and Section 504 claims—determining whether, viewing
all facts in the light most favorable to the non-moving party,
there exists any genuine issue of material fact. Instead, it
postponed its merits analysis on both claims. It denied
summary judgment to the School District on the Section 504
discrimination claim, stating it would consider that claim on
appeal from the administrative record. Then, it found that the
ADA discrimination claim was subsumed by the Le Papes’
denial-of-FAPE claim and held that because this was an
“equitable injury,” the Le Papes were not entitled to a jury trial
on their ADA claim, despite seeking compensatory damages.

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24
App. at 19 (emphasis in original). As with the Section 504
discrimination claim, the Court considered the claim on the
administrative record (though it granted summary judgment in
favor of the School District on the ADA discrimination claim
while denying it on Section 504 discrimination). App. at 3
n.1.10
Ruling for the School District on the ADA
discrimination claim without any examination of the factual
record that had been developed over the course of months of
discovery, the District Court went too far in its application of
Fry. Having conducted its inquiry under that case and found
that the “gravamen” of Le Pape’s ADA claim was the denial of
a FAPE, App. at 14, it granted summary judgment for the
School District and decided the claim on the parties’ motions
for judgment on the administrative record. However, the only
effect of finding that the gravamen of an ADA claim is denial
of a FAPE should be that the claim must be exhausted through
an IDEA hearing, which the District Court correctly found the
Le Papes had done.
But to exhaust an ADA claim in no way extinguishes its
independent existence. As the Fifth Circuit recently noted
under similar circumstances, “Fry’s ‘gravamen’ of the
complaint test speaks only to § 1415(l)’s exhaustion
requirement and does not prohibit standalone ADA claims, as
evidenced by Perez.” Lartigue v. Northside Indep. Sch. Dist.,
2024 WL 1261291, at *9 (5th Cir. Mar. 26, 2024). As a result,
10 Further adding to the confusion, the Court did so despite
stating that “the remedies, procedures, and rights under the
ADA are the same as those under Section 504.” App. at 18-19.

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25
a party may have “viable, standalone ADA claims
notwithstanding the presence of a FAPE.” Id.
The exhaustion requirement does not change that;
instead, it is crafted to preserve those independent avenues of
relief. “Provided that a plaintiff satisfies the exhaustion
requirement of the IDEA”—which per Perez may not have
applied to the Le Papes’ ADA claim11—“a plaintiff may assert
claims for relief for the denial of a FAPE under multiple federal
statutes.” E.E. v. Ridgefield Park Bd. of Educ., 2020 WL
3097473, at *8 (D.N.J. June 11, 2020), aff’d sub nom. Esposito
v. Ridgefield Park Bd. of Educ., 856 F. App’x 367 (3d Cir.
2021). As did the court in E.E., where “Defendant appear[ed]
to argue that Plaintiffs’ Section 504 and ADA claims [were]
subsumed into their IDEA claims,” the District Court here
ought to have “conduct[ed] an independent analysis under each
statute” and “analyze[d the Le Papes’] Section 504 and ADA
claims separately from the IDEA claims.” Id. To do otherwise
runs afoul of § 1415(l)’s explicit preservation of the rights of
children with disabilities under the ADA and the Rehabilitation
Act.
11 The Le Papes argue that, in light of Perez, they were not
required to exhaust their ADA and Section 504 claims seeking
compensatory damages. First, we point out that the District
Court found the claims were exhausted and did not dismiss
them for failure to exhaust. Second, the Le Papes also sought
the award of attorney fees and costs, remedies which are also
available under the IDEA. Perez did not address this situation,
but our case law states that a request for attorney fees is a
request for relief available under the IDEA. Batchelor v. Rose
Tree Media Sch. Dist., 759 F.3d 266, 276-77 (3d Cir. 2014).

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26
We reiterate that the IDEA’s FAPE requirement and the
ADA/Section 504’s effective communication requirement
provide for different inquiries. As mentioned, the effective
communication requirement imposes a greater obligation of
equal access than does the FAPE requirement: “[T]he
requirement that a State provide specialized educational
services to handicapped children [under the Education for All
Handicapped Children Act, the predecessor to the IDEA,]
generates no additional requirement that the services so
provided be sufficient to maximize each child’s potential
‘commensurate with the opportunity provided other
children[,]’” and its legislative history does “not . . . imply a
congressional intent to achieve strict equality of opportunity or
services.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist.,
Westchester Cnty. v. Rowley, 458 U.S. 176, 198 (1982).
Because the ADA and Section 504’s effective communication
requirement is so specific, a school may still be in violation of
those laws even when a child is able to make educational
progress sufficient for a FAPE under the IDEA. For example,
if a child is achieving passing marks and advancing from grade
to grade, he is presumed to be receiving a FAPE. Rowley, 458
U.S. at 204. But that does not mean he is being provided with
“equal opportunity to participate in, and enjoy the benefits of,
a service, program, or activity of a public entity.” 28 C.F.R. §
35.160(b)(1) (emphasis added). Nor does it mean that, as the
effective communication requirement instructs, the school has
“give[n] primary consideration to the requests of [the]
individual[] with disabilities.” § 35.160(b)(2) (emphasis
added). These are separate questions from whether Alex was
denied a FAPE, and the District Court should not have
collapsed these inquiries. “[T]he provision of [a] FAPE under
the IDEA does not limit a student’s right to effective
communication [under the ADA.]” U.S. Dept. of Just. & U.S.

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27
Dept. of Educ., Frequently Asked Questions 15 (Nov. 2014).
There is no “indication that Congress intended [the ADA and
the IDEA] to interact in a mechanical fashion in the school[]
context, automatically pretermitting any Title II [of the ADA]
claim where a school’s IDEA obligation is satisfied[,]” and
there is no basis to conclude that “the success or failure of a
student’s IDEA claim dictates, as a matter of law, the success
or failure of her [ADA] claim.” K.M. ex rel. Bright v. Tustin
Unified Sch. Dist., 725 F.3d 1088, 1092, 1101 (3d Cir. 2013).
Federal Rule of Civil Procedure 56 allows a district
court to grant summary judgment “if the movant shows that
there is no genuine issue as to any material fact and the movant
is entitled to judgment as a matter of law.” In assessing this, a
court “view[s] the facts in the light most favorable to the non-
moving party,” and a “judge’s function at the summary
judgment stage is not to weigh the evidence and determine the
truth of the matter, but to determine whether there is a genuine
issue for trial.” Tse v. Ventana Med. Sys., Inc., 297 F.3d 210,
218 (3d Cir. 2002) (citing Celotex Corp. v. Catrett, 477 U.S.
317 (1986), and Anderson, 477 U.S. at 249). We don’t know
from the District Court’s opinion whether there existed genuine
issues of material fact precluding entry of summary judgment.
It addressed only whether the Le Papes’ previously pled ADA
claim was independent from their FAPE claims. Finding that
the former was FAPE-based, the Court decided to grant
summary judgment for the School District on the ADA claim
and “consider [it], like [the Le Papes’] IDEA and Section 504
claims, on appeal from the hearing officer’s decision.” App. at
19. Rule 56 disallows such a grant of summary judgment
without examination of the factual record.

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28
That inquiry immediately reveals a disputed issue of
material fact: the efficacy of the letter board compared to other
forms of communication. There is no dispute that the letter
board is Alex’s preferred method of communication, which is
to be the “primary consideration” under the ADA in a public
entity’s determination of what types of auxiliary aids and
services are necessary for effective communication. 28 C.F.R.
§ 35.160(b)(2). Public entities are exempt from acquiescing to
the disabled person’s preference if they can provide an
alternative, effective means of communication; but
“[g]enerally, the effectiveness of auxiliary aids and/or services
is a question of fact precluding summary judgment.” Chisolm,
275 F.3d at 327.
There is ample evidence from which a reasonable jury
could conclude that that School District violated the ADA’s
effective communication requirement by denying Alex his
preferred method of communication without providing an
effective alternative. He testified that the letter board is
effective for him and remains his preferred communication
method. He is a non-speaker who for the first 16 years of his
life had “very minimal communication,” was able to say only
a few words, and was unable to communicate clearly and as he
wished. App. at 1264. By typing, he could transcribe the
speech of others but could not communicate his own thoughts.
For example, he could not communicate with the school nurse
or the guidance counselor about his college plans, course
selection, testing, and accommodations; nor could he
participate in class, extracurricular activities, or community-
based instruction. In addition to Alex’s own testimony, seven
treating clinicians and Dr. Barry Prizant—a speech pathologist
and psycholinguist who has been awarded ASHA’s highest
honors, has practiced for nearly 50 years, and reviewed

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29
approximately 185 minutes of Alex communicating with the
letter board and interviewed him—testified that the letter board
is effective communication for him. And Alex’s treating
psychiatrist, Dr. Manley Ghaffari, who is board-certified in
child and adolescent psychiatry and focuses her practice on
neurodiverse patients, testified that the letter board was
“extremely effective in allowing [Alex] to express his thoughts
and feelings.” App. at 1635. Meanwhile, Vanessa von Hagen,
a board-certified behavior analyst and the lead clinician on
Alex’s home team for several years, testified that he cannot
orally communicate in sentences and can only type what he
hears, not his own thoughts. She also testified that the letter
board was effective communication for Alex. Indeed, as the
School District’s initial denial of the letter board turned almost
exclusively on its concerns about the auxiliary aid’s efficacy,
that was the most material fact at issue.
We need not resolve this dispute now, nor was it proper
for the District Court to do so. Under the Constitution’s
Seventh Amendment, the Le Papes were entitled to have a jury
evaluate the effectiveness of the communication supports for
Alex, and this precluded summary judgment where there
existed a disputed issue of material fact. See Chisolm, 275 F.3d
at 326-32. Critically, the Court’s role on summary judgment
was not to decide that issue. Still less was its role to defer the
question and then decide it by a judgment on the administrative
record under the modified de novo standard of review.
The School District contends that the Le Papes merely
attempt to side-step issue preclusion; by its argument, the
hearing officer’s denial-of-FAPE decision precludes
subsequent ADA or Section 504 discrimination claims because
the factual issues underlying those discrimination claims are

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30
identical to those already determined by the hearing officer in
the administrative process. We disagree. As a preliminary
matter, the School District did not argue to the District Court
that the hearing officer’s decision should stop independent
inquiries, and this argument is thus forfeited. But even if not,
it would fail because “[w]hen exhausting an administrative
process is a prerequisite to suit in court,” we do not give
“preclusive effect to the agency’s determination . . . [.]” B&B
Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 152
(2015). Additionally, “the legal standards under the IDEA and
the ADA in this context are significantly different, barring
application of issue preclusion to [the Le Papes’] federal ADA
claim.” Lartigue, 2024 WL 1261291, at *8.
Because there exists at least one disputed issue of
material fact, we reverse the Court’s grant of summary
judgment for the School District on the Le Papes’ ADA claim.
c. The District Court’s Decision on the
Administrative Record
With the legal understanding set out above, we
comment further on how it affects the District Court’s decision
on the parties’ cross-motions based on the administrative
record. Though the Court correctly set the case “on two
tracks,” App. 10, with the intentional discrimination claims to
be resolved on summary judgment and the IDEA
administrative appeal on the administrative record, it
ultimately resolved all three claims based on the administrative
record without any discussion of the discovery record. By
doing so, it went off course in three respects.

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31
First, it acknowledged that, under the modified de novo
standard, it presumed that the hearing officer’s findings were
prima facie correct. If it had limited the administrative review
to the IDEA claim, that would have been fine. But the
ADA/Section 504 claims could not be resolved on the
administrative record alone. They needed to be resolved at
least on summary judgment, whereby a court is to construe all
facts in the light most favorable to the non-moving party and
draw “all justifiable inferences . . . in [its] favor,” Anderson,
477 U.S. at 255, which would mean applying a de novo
standard of review. This case has a strange procedural history;
but even had the Le Papes moved for judgment on the
administrative record on those claims, the Supreme Court has
required district courts to apply modified de novo review only
in their review of IDEA claims, Rowley, 458 U.S. at 206, and
we decline to extend that review to claims under the ADA and
Section 504. Applying modified de novo review to those
claims curtailed the Le Papes’ rights and remedies under non-
IDEA federal law, as forbidden by § 1415(l), and arrogated
jury functions to the Court in violation of the Seventh
Amendment.
Next, the District Court left out the factual and expert
evidence that had been developed for summary judgment
consideration. Though the Le Papes did not argue their
intentional discrimination claims when briefing for judgment
on the administrative record, the Court sua sponte interposed
the arguments they had made at summary judgment. App. at
61 n.19. Yet in assessing their intentional discrimination
claims, the Court limited which arguments (as well as what
evidence) it would consider to only “those arguments [which]
are based on evidence available in the administrative record.”
Id. In effect, this disregarded the extensive discovery the Le

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32
Papes conducted after filing their amended complaint for non-
FAPE-related intentional discrimination. The Court instead
resolved the claims on the record from a proceeding where they
had not even pursued an intentional discrimination claim,
indeed, one where they had argued that the hearing officer had
no jurisdiction over the ADA claim.12
Finally, applying that modified de novo standard of
review and failing to consider the discovery record, the Court
concluded that the Le Papes’ evidence “[did] not outweigh the
bulk of the [other] evidence,” App. at 51, and resolved any
discrepancies by deferring to the hearing officer’s
determinations. The snag is that the Court, in deciding
judgment on the administrative record, weighed the evidence
and determined the truth of the matter, deciding disputed issues
of material fact that were plainly for a jury. For example, in
addressing the School District’s email that it would allow the
use of a letter board—but not provide a communication
partner—“as a reasonable accommodation under [the] ADA,”
App. at 1263, the Court dismissed the suggestion that this
might reflect the District’s recognition that the letter board was
effective, which would be relevant to whether it acted in
violation of the ADA when it failed to “honor the choice [of the
individual with a disability].” 28 C.F.R. Part 35, App. A. It
instead stated that this did not “change the analysis” and
adopted the District’s explanation that “using the spelling to
communicate was detrimental[,] but it was more detrimental
12 We note that it is strange that the Le Papes did not argue the
same for their Section 504 claim, when the claims were almost
legally indistinguishable and both sought compensatory
damages.

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33
for [Alex] not to be in school.” App. at 64. That issue is best
left for a jury.
* * * *
We clarify some muddled law in our Circuit. A denial-
of-FAPE claim under the IDEA can be resolved through an
administrative appeal, but ADA and Section 504
discrimination claims seeking compensatory damages, even if
on the same facts, should be resolved through summary
judgment and, possibly, trial. See Chisolm, 275 F.3d at 326-
32. We therefore reverse the District Court’s grant for the
School District of summary judgment on the Le Papes’ ADA
discrimination claim as well as judgment on the administrative
record for their discrimination claims under both that law and
Section 504,13 and we remand for further proceedings.
13 To repeat, the Le Papes do not appeal the District Court’s
treatment of their denial-of-FAPE claim under Section 504,
only their discrimination claim under that law.

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