Blunt v. Lower Merion School District

Blunt, of the Amber behalf on of herself and judgment ingly, we will affirm similarly situated; Crystal all others District Court. Blunt; Blunt, Michael on their own behalf and on behalf of all others sim ilarly situated; S.H.; W.W.; All Eric ston, on his own behalf and on behalf similarly situated; Lydia of all others Johnson, on her own behalf and on similarly situated; behalf of all others Johnson; Durrell, Linda Carol on her BLUNT, and Amber on behalf herself own behalf and mi on behalf of her similarly situated; Crystal all others daughter S.H.; Hall, nor Chantae and Blunt; Blunt, Michael on their own similarly on behalf of all others situ and on of all sim behalf behalf others ated; Coleman, June on her own be situated; S.H.; W.W.; ilarly All Eric son, half and on behalf of her minor ston, on his own behalf and on behalf R.C., and on of all behalf others simi similarly situated; Lydia all others larly situated; Lynda Muse, on her Johnson, her on own behalf and on own behalf and on behalf of her mi similarly situated; behalf of all others Q.G. daughter nor and on behalf of all Johnson; Durrell, Linda Carol on her similarly situated; others Christine own behalf and on behalf of her mi Dudley, on her own behalf and on S.H.; daughter Hall, nor Chantae daughter behalf of her minor W.W. similarly on behalf of all others situ similarly and on behalf of all others ated; Coleman, June on her own be situated; The Concerned Black Par son, half and on behalf of her minor Inc; ents of Mainline The Mainline R.C., and on behalf of all others simi Branch of the NAACP larly Lynda situated; Muse, on her own behalf and on behalf of her mi v. Q.G. daughter nor and on behalf of all District; Lower Merion School similarly situated; others Christine Board; Lower Merion School Penn Dudley, on her own behalf and on sylvania Department of Education daughter behalf of her minor W.W. similarly and on behalf of all others Crystal Blunt, Blunt, Amber Michael situated; The Black Par Concerned Blunt and Black Parents Concerned Inc.; ents of Mainline The Mainline Inc., Appellants in 11- of Mainline No. Branch of The NAACP Blunt, Amber on behalf of herself and LOWER MERION SCHOOL DIS similarly situated; Crystal all others TRICT; The Lower Merion School Blunt, Blunt; Michael on their own Board; Pennsylvania Department of behalf and on behalf of all others sim Education situated; S.H.; W.W.; ilarly All Eric Johnson, Lydia ston, Johnson, Linda Carol on his own behalf and on behalf Durell, Hall, S.H., similarly situated; Lydia of all Chantae Christine others Dudley, W.W., Alisten, Johnson, Eric her June Cole own behalf on situated; man, Lynda Muse, Q.G., similarly Ap all R.C. behalf of others Johnson; Durrell, pellants in No. 11-4200. Linda Carol on her mi behalf and on behalf of her own daughter S.H.; Hall, and

nor Chantae similarly behalf of all others situ

ated; Coleman, on her own be June son,

half and on behalf of her minor

R.C., and on behalf of all simi others

larly situated; Muse, Lynda on her

own behalf and on behalf of her mi Q.G. daughter

nor and on behalf of all similarly situated;

others Christine

Dudley, on her own behalf and on daughter

behalf of her minor W.W. similarly

and on behalf of all others

situated; The Concerned Black Par Inc;

ents of Mainline The Mainline

Branch NAACP District;

Lower Merion School Board;

Lower Merion School Penn

sylvania Department of Education District,

Lower Merion School

Appellant Appellant

No. 11-4315. 11-4200, 11-4201,

Nos. 11-4315. Appeals,

United States Court of

Third Circuit.

Argued June 2013. Sept.

Filed: Castaneda,

Patrick Matthew A. Hittinger, Goldberg, (argued), Carl W. Huh, Esposito, D. John Lesli C. Nathan P. Heller, PA, Piper, Philadelphia, DLA At- Johnson, torneys Appellants Ly- for Linda Johnson, Durrell, Hall, dia Carol Chantae S.H., W.W., Dudley, Eric Ali- Christine sten, Coleman, R.C., Muse, Lynda June Q.G. Foerster, Clarke, Ewing, Benjamin Amy C. Saul Harris- (argued), R. Jennifer Kerr, PA, Giunta, D.Geffen, Sonja Abbegael D. Barbara E. Ran- M. G. burg, Howard som, Attorney Law Center of Phila- Hopkirk, (argued), Public Interest Office of Gen- Gran, PA, PA, A. delphia, Philadelphia, Pennsylvania, Harrisburg, Judith At- eral of Gran, Haddonfield, Reisman, & torneys Appellee Pennsylvania Depart- Carolla for NJ, Attorneys Appellants for Amber ment of Education.

Blunt, Blunt, Blunt Crystal Michael Black Parents of Mainline the Concerned McKEE, Judge, and BEFORE: Chief Inc. GREENBERG, AMBRO and Circuit Judges. Berman, Kristofco, B. Michael D.

Jenna Pearlstine, Bell, PA,

(argued), Blue Wisler Attorneys Appellees Lower Merion OPINION OF THE COURT School School District and Lower Merion GREENBERG, Judge. Board. Circuit TABLE OF CONTENTS I.INTRODUCTION......................................................255 II.FACTS AND PROCEDURAL HISTORY.................................257 III. STATEMENT OF JURISDICTION......................................264 IV. STANDARD OF REVIEW..............................................265 ON APPEAL.....................................266 V. ISSUES PRESENTED OF THE LAW..............................................267 VI. SUMMARY A. The Individuals with Disabilities Education Act.........................267 B. Redress and the Statute of Limitations under the IDEA.................269 Rights Title Act ................................271 C. VI the Civil of 1964 D. 42 U.S.C. 1983 ...................................................273 Regulations E. 504 of the Rehabilitation Act and Relevant Section Department Education..................(cid:127)........................274 F. Americans with Disabilities Act.......................................275 Establishing Through Racial G. a Prima Facie Case of Discrimination Circumstantial Evidence...........................................275 (Claim Preclusion) H. Class Actions and Res Judicata Defenses .............276 1. Claim Preclusion................................................276 (Claim Preclusion) Application 2. of Res Actions.....277 Judicata Class Standing I. ..........................................................278 VII. ANALYSIS............................................................280 Against A. The Effect of the on the Claims the PDE.....281 Gaskin Settlement Standing in B. Whether CBP Has this suit ...............................282 IDEA, 90-day C. The and the of Limitations under the Blunts Statute Improvement Act of Revised the Individuals with Disabilities 2004 ............................................................291 Appellants D. Established a Prima Facie Case of Racial Whether ...................................................293 Discrimination Rejection Alleged of Certain Evidence the District Court and Impermissible Reliance on Other Evidence Without a Daubert Hearing......................................................294 a. The MAP Presentation.......................................295 Reschley’s Report.....................................295

b. Daniel

255 Properly 2. Whether the District Court Viewed the Evidence in the Light Favorable to the Plaintiffs as Most Non-Movants and Whether Plaintiffs Established a Prima Facie Case of Discrimination................................................296 3. Evidence Statistical .............................................299 ................. VIII. CONCLUSION .....................................301 We, however, I. INTRODUCTION are not concerned with the substance of the state law claims on this may oversimplification, In what be an appeal as the District Court did not exer- opinion appeal by introduce our on this we jurisdiction cise over those claims. setting controversy forth that the central encompasses myriad This case legal dispute is a over African Ameri- whether issues, including suit, standing bring can students in the Lower Merion School limitations, (“LMSD”) application of a statute of res public District schools in Mont- (claim judicata preclusion), application of gomery County, Pennsylvania, were de- laws, disability appropriateness of edu- prived appropriate educational services students, provided cation anti-discrimi- segrega- due to racial discrimination laws, nation and sections of the Code plain- tion violation of federal law. The Regulations implementing ap- Federal unsuccessfully brought tiffs this action plicable appeal laws. The case on also pursuant to the Individuals Disabili- LMSD, by a cross-appeal includes but (“IDEA”), ties Education Act 20 U.S.C. we will dismiss the without cross-appeal § 1400 seq.; et the Americans with Dis- deciding on the merits as it is moot. (“ADA”), §§ Act abilities U.S.C. The District plaintiffs Court found that the 12132; § the Rehabilitation Act of present did not sufficient evidence to sur- (the “RA”), 794(a); § 29 U.S.C. Title summary judg- vive LMSD’s motion for (“Title Rights VI of the Civil Act of 1964 ment on the charges discrimination VI”), 2000d; 1983; § § 42 U.S.C. 42 U.S.C. plaintiffs’ the Court dismissed other claims law, claiming and state that African Ameri- Thus, for other reasons. the Court did not can students the LMSD suffered from find that there had been violations of They appeal such discrimination.1 now federal law. portions from of the District or- Court’s Plaintiffs, ders on federal issues entered at various appellants, appeal now from during litigation. times the course of the the District Court’s October During pro- 1. course of District Court their failure to exhaust IDEA administrative however, ceedings, plaintiffs, Recently, based on a then recent remedies. related case, District, psychologist, examination asserted that S.H. Lower Merion School (3d Cir.2013), plaintiffs involving litigants five or six of the student had been 729 F.3d 248 action, incorrectly being learning parties identified as dis- who also are to this we held 12, 14, Arg. incorrectly learning abled. Tr. Oral June that students identified as Therefore, argument may bring at oral before disabled under us claims IDEA, parties though they may focused on the Title VI and still have claims un- der the RA and the ADA. Id. claims, District Court had held that the 260-61. IDEA, But, ascertain, Blunt, inapplicable ADA and RA were we as far as can Amber plaintiff, parents claims who then contended a student and her continue they wrongly press original had been identified. The their claims under the IDEA. plaintiffs’ arguments Consequently, were further limited be- we address a statute of limita- IDEA, ADA, relating cause the and RA claims of all to their IDEA claims even tions issue plaintiffs except though individual those of one fami- now claims that she is not Amber Blunts, ly, learning were dismissed as a result of disabled. 256 Plaintiffs, exception the of the CBP grant- Judgment and Order

Memorandum and the mainline branch of the NAACP summary judgment to defen- ing a final (the “NAACP”), Afri- present past in and plaintiffs all the against LMSD and dant Mer- can American students of the Lower remaining at the time that the the case schools, Township public the ion who were summary judgment, granted Court being placed in remedial classes after iden- already having dismissed several of by learning “disabled” under the from the case tified as parties the and claims parents. IDEA those students’ Appellants appeal orders.2 also previous and/or repeatedly used the term plaintiffs intermediate orders The rulings from two plain- entry the time of the “disabled” to describe the student that became final at a throughout pleadings, and tiffs the term con- 2011 Memorandum of October IDEA, Order, namely: sistent with the a statute under Judgment the dismissal claims, they making Am- which were as the plaintiffs, appellants, all claims of now LMSD, Blunt, safeguards rights IDEA disabled a now former student ber Blunt, Nevertheless, stage her students. at this Crystal par- and and Michael ents, litigation appellants argue some in the District Court’s memorandum 15, 2008, February incorrectly the “Feb- the LMSD identified them as and order of disabled,3 Order”; learning thereby causing of all them ruary dismissal Pennsylvania injury.4 Appellants place- claim that their plaintiffs’ against claims (“PDE”) negative had a of Education in the ment remedial classes Department impact opportunity on their for educational District Court’s order and memorandum advancement, “August pro- but the time of the August Order”; ceedings summary judg- on the motion for plaintiff and the dismissal of Con- they seeking Black Inc. ment relief the Dis- cerned Parents Mainline (“CBP”) only pursuant to Title party as a in the District Court’s trict Court VI standing. Equal for lack of Protection Clause of the Four- August Order through at 1. teenth Amendment Appellants’ No. 11-4201 br. U.S.C. Appel- Throughout opinion We note that 2. we sometimes refer were not disabled. also appellants collectively lants' No. 11-4201 br. at 1 n.2 recites that the plaintiffs name of Concerned Black Parents of correct though groups plaintiffs even two different simply Concerned Black Par- Mainline Inc. is separate appeals con- filed which have been ents, Inc. along cross-appeal solidated with the Though cross-appellant we LMSD. LMSD is a Regulations 4.The Code of Federal sets forth appellants. when we refer do not include it that: brought usually parties We refer to the who plaintiffs describing pro- this action as when disability Child with a means a child evalu- ceedings appel- in the District Court and as §§ ated accordance with 300.304 describing proceedings lants when in this through having 300.311 as mental retarda- Court. tion, hearing (including impairment deaf- a ness), speech language impairment, or a though by 3. Even the time that the District blindness), (including impairment visual summary Court considered the motion for (referred serious emotional disturbance judgment plaintiffs most of the student re- disturbance'), part in this as 'emotional maining in the case asserted that had autism, orthopedic impairment, traumatic disabled, learning been misidentified as injury, impair- [sic] brain an other health pleadings identify ment, continued to the students as specific learning disability, deaf- blindness, disabilities, who, learning rendering opinion disabled. its multiple motion, thereof, summary judgment special on the notwith- needs education reason standing pleadings, the Court assumed and related services. 300.8(a)(1). § exceptions with two that the student 34 C.F.R. largely part employees, including case is based of its Appellants’ deliberate disproportion- that the on their contention discriminatory indifference practices of African American stu- placement ate against African American students as dents in remedial classes had discrimina- form of intentional discrimination. Ac- the result of racial tory purpose and was cordingly, we will affirm the District bias.5 grant summary judgment. Court’s of

Ultimately, summary judgment the II. FACTS AND enough there is PROCEDURAL question turns on whether record evidence to establish that LMSD HISTORY intentionally against discriminated many This suit has had plaintiffs plaintiffs, through whether its own actions defendants, though some have come and by failing party’s to correct a third gone, many and includes related issues and at Looking intentional discrimination. dealing claims.6 We now are with what is record, whole which includes statistical evi- litigation by left of this entertaining the showing dence that are overre- minorities present appeals which have been consoli- classes, presented in low achievement we dated in cross-appeal this Court genuine conclude that there is no issue under No. 11-4200.7 concerning material fact LMSD’s intent. plaintiffs The filed original complaint showing There is no evidence that July on At plain- 2007. time the against District intended to discriminate plaintiffs, nor that tiffs were current or former students in knowledge LMSD had LMSD, intentional discrimination on the four parents, and the two or- Initially, individually litigant named students in the most recent version of the com- sought bring their claims on their own plaint caption in this case in the as is her similarly sister, mother, behalf and on behalf of the students Chantae Hall and her Carol action; however, situated as a class the Dis- Durrell. trict Court ruled that class certification was changed theory We note that S.H. her inappropriate highly due to the individualized recovery theory in the other action from her (No. aspects of each student's claims. 2:07- case, although in this she filed it under the cv-3100, 124). argument, Doc. No. At oral same statutes based on the same set of facts appellants’ attorney acknowledged one previously which had relied in on she this the District Court had been correct in not theory in the action was that case. Her other (Tr. certifying the case a class action as Oral learning she not and been dis- never has 11, 2013, 6:18-21, ("You Arg. June 14:4—7 placed improperly special abled and was in remedy can’t it as a class action ... because education Id. at 255-56. Other stu- classes. issues.”)), appel- of the individual and thus plaintiffs dent in this case have asserted the longer proceed lants no seek to in this case on (incorrect theory liability same identifica- a class action basis. disabled), learning tion as but inasmuch as Saleema Hall and Carroll Durell have not 6. The District Court's docket sheets lists nu- litigation (they plaintiffs withdrawn in this as separate being merous cases with numbers as complaint) were named in the third amended particularly signif- related to It is this action. case, appears press their claims in the icant that in a related S.H. v. Lower District, 2:10-cv-06070, though they two cases on both theories Merion School No. in Pennsylvania involving inconsistent. the Eastern District of litigants parties two of the same that are Piper, 7.DLA LLP and the Public Interest Law case, daughter, Carol Durrell and her Philadelphia represent separate Center of identified that case as "S.H.” in this Hall,” groups appellants separate and have filed we case as "Saleema have decided clarity on their behalf. For the sake of appeal opinion. briefs precedential in a See S.H. Dist., (3d distinguish on the we will between their briefs v. Lower Merion Sch. 729 F.3d 248 Cir.2013). appeal numbers. Saleema Hall is identified as a basis of concerned, alia, ganizations that we have identified.8 The The inter appel- FAC original defendants were the LMSD and briefs, lants indicate one of their “a capacity.9 two of its officials their official Pennsylvania decision of the Special Edu- 2:07-cv-3100, No. Doc. No. I.10 cation Appeals Due Process Review Panel (the Panel’) ‘Appeals pursuant plaintiffs filed a first amended com- Appellants’ IDEA.” (“FAC”) No. 11-4201 br. at 8- plaint September 9;12 (two vol. adding three J.A. 91-151. As see also current or for- above, mer students the LMSD and one stated par- original complaint al- ent) defendants, including and several leged that the defendants violated the Board, the Lower Merion School its Presi- IDEA, (regarding C.F.R. 300.600 dent, President, Vice and various members monitoring requirements imposed on (together, the Board “School receiving states federal funds for education Board”), Pennsylvania Department of disabilities), ADA, of students with (the “PDE”), Education and two of its RA, VI, § 504 of the Title and U.S.C. 2:07-cv-3100, officials. No. Doc. No. 10. all premised theory on the Inasmuch the LMSD and the School plaintiffs learning had disabilities Board have the same interest in this case which had not adequate pro- LMSD made represented and are the same attor- visions. The FAC invoked the legal same neys, together we sometimes refer to them original complaint. as the theories/statutes as the The plaintiffs LMSD. named the vol. J.A. at 91-151. PDE as a defendant because believed that it On October LMSD and supervisory, failed to meet the mon- itoring compliance procedural and School Board filed a obli- motion to dismiss the gations FAC, federal imposed law on it. arguing plaintiffs that the had failed Blunt, Hall, original plaintiffs 8. The were daughter Amber on 11. Chantae of Carroll Dur- similarly Hall, behalf of herself and all others situ- rell and sister of Saleema both of whom ated; Blunt, Crystal Blunt and Michael parties original complaint, in the was their own behalf and on behalf of all others Coleman, added as were June on her own situated; Johnson, similarly Linda on her son, behalf and on behalf of her minor Rich- behalf, daughter, Lydia own on behalf of her Coleman, "Ricky” ard and on behalf of all Johnson, situated; similarly and all others . similarly others situated. Durrell, behalf, Carol on her own on behalf of Hall, daughter, her minor Saleema and on explains Crystal 12. The brief further and situated; similarly behalf of all others Chris- parents Michael Blunt are the of Amber behalf, Dudley, tine on her own and on behalf Blunt, graduate High a 2005 of Lower Merion son, Whiteman, of her minor Walter and on School who "was identified as a student with situated; similarly behalf of all others Eric Specific Learning Disability.” Appellants’ Allston on his own behalf and on behalf of all sought No. 11-4201 br. at 8-9. The Blunts situated; similarly others Concerned Black payment by LMSD for the tuition for a six- Parents, Inc.; and the Mainline Branch of the program week remedial that West Chester 2:07-cv-3100, NAACP. No. Doc. No. 1. University required Amber to take as a condi- tion argued of her admission. Id. The Blunts Savedoff, 9. The Superin- officials were Jamie pay program that the LMSD "should for this tendent, Kelly, Pupil Michael Director of compensate for the fact that it failed to 2:07-cv-3100, Services. No. Doc. No. 1. develop implement transition services for required by Though Amber as Id. The parties 10. IDEA.” sometimes have used LMSD, Blunts also were the term "the District” dissatisfied that Amber was to refer to the usage may confusing college, because this not admitted be into her first choice inas- regularly Temple University, although much as we refer to the District two of the three Court, colleges we have used the term applied “LMSD.” to which she did admit her. remedies, claims, administrative to exhaust their and therefore it dismissed the the CBP and NAACP did not stand- IDEA claims of the remaining individual ing, the FAC failed to state a claim plaintiffs against the LMSD defendants for granted. They relief could be upon which subject jurisdiction. lack of matter J.A. IDEA contended that the action was also However, vol. at 42.16. the Court found 2:07-cv-3100, untimely. No. Doc. No. 11. that the plaintiffs individual did not need to exhaust administrative remedies with PDE On November filed (cid:127)respect against their claims the PDE motion to dismiss the FAC for lack of Pennsylvania regulations because provide subject jurisdiction.13 matter No. 2:07-cv- for administrative resolution of disputes 21-22; 2, at Doc. Nos. J.A. vol. students, parents, between their and their argued plaintiffs’ PDE the Blunt representatives districts, and school but do claims fell outside the statute of IDEA’S provide for administrative resolution limitations and that the other individual disputes student had not exhausted their similar with the Commonwealth. administrative remedies under the IDEA. Id. at 42.17. PDE further argued Id. The that its sover- The District Court also plain- dismissed eign immunity barred the state law claims (other ADA tiffs’ and RA claims than the it, against asserted and that plaintiffs had claims) against Blunts’ the LMSD and the upon failed to state a claim which relief School Board for failure to their exhaust granted against could be it. Id. remedies, reasoning administrative that 15, 2008, February On the District the allega- claims were based on the same dismissing Court entered an order various that, tions plaintiffs’ as IDEA claims and if plaintiffs and claims from the FAC. The relief, plaintiffs the were entitled to it methodically Court eliminated each federal through would have been available the plaintiffs law claim that the Blunt made dispute process. IDEA administrative Id. against particularly each defendant. In at 42.18-42. 19. The Court noted that significant holdings that we address at parties agree[d]” regarding “[t]he the ex- below, length 90-day the held that a Court requirement haustion for those claims. Id. statute of limitations in the IDEA barred found, however, The Court that the IDEA IDEA, RA, the Blunts’ claims under the requirement plain- exhaustion did not bar and ADA separate two-year a because, tiffs’ claims under Title VI unlike statute of limitations barred their other IDEA, the Title VI does not “focus on ‘the Consequently, claims. the order dismissed ” rights of children with Id. at disabilities.’ entirety,

the Blunts’ federal claims in their 42. 19. The Court also did not find that although their state law claims remained. plaintiffs the needed to their exhaust 2:07-cv-3100, 9; See No. Doc. No. see also administratively. 1983 claims I, J.A. vol. at 42.42-42.45. The Court also addition, above, In as plaintiffs, determined that the individual we indicated the Blunts, other than the sought had not an District Court concluded that the NAACP remedy administrative for their IDEA and standing plaintiffs.14 CBP lacked as Tommasini, Although attempted 13. Gerald Zohorchak and John the NAACP in the next complaint allege version of the facts to capacities who were named in their official as support standing, already PDE, its as we have indi- joined officers of in this motion but appeal holding cated it does not from the suit, longer parties appel- no to this hand, standing. it does not have On the other challenge lants do not their dismissal. appealed dismissing CBP has the from order discussing alleged the paragraphs Id. at 42.33. The Court also found CBP’s expenditures defendants in increase of that it attributed against the counts individual (as capacity representatives quality official to “the inferior LMSD’s dual their defendants, LMSD, Moreover, system of education.” the other School SAC PDE) duplicative, persons and named several who the Board and CBP against organiza- claimed were of that therefore dismissed FAC members in “simplify!] litiga- attempt those individuals to tion a clear to demonstrate that way standing. in a not cause had tion does CBP SAC 34-36. addition, prejudice plaintiffs.”15 paragraphs Id. at 42.35- the SAC added six regarding plaintiff expenditure 42.36. NAACP’s addressing alleged in of resources issues plaintiffs The filed second amended with the LMSD. SAC 37-38.18 (“SAC”) July complaint adding on plaintiffs, parent plaintiffs two one and one stu- The filed a third and final (“TAC”) 2:07-cv-3100, complaint August dent.16 No. Doc. No. 49. amended SAC, 2:07-cv-3100, 55; in The accord with the District 2008. No. Doc. No. J.A. Order, February Court’s removed vol. 3847-97. The remained previously except as defendants the School Board members the same TAC previously parent so-named in their official that one capac- longer plaintiff.19 was no TAC, however, But the longer ities. SAC continued name the The no named two defendants, caption though School Board its it did officials of the School Board as allegations against not make and it did not name School the officials of the SAC, body. however, plaintiffs previously Board its PDE that had included the PDE and of its two officials as named as defendants. The TAC continued defendants. The SAC continued to name to list the School Board as named defen- plaintiffs, despite the Blunts as circum- caption, dant and the PDE and that the had all stance dismissed of LMSD remained named defendants 15, February their federal claims in its caption body both the and the of the 2008 Order.17 The also Despite SAC added several TAC.20 the District Court’s dis-

it longer from the case because of its lack of stand- 18. as the Inasmuch NAACP is no ing. party litigation, paragraphs in this these

now immaterial. appellants appealed 15. The have not from this Johnson, ruling parent Lydia and we therefore will not discuss it 19. Linda John- son, dropped plaintiff further. was aas in the TAC. 2:07-cv-3100, 55; 9, No. Doc. No. J.A. vol. Nevertheless, Muse, 3847-97. she was listed as an Lynda 16. The added on Quiana son, appellant appeal. in the notice of behalf of herself and her minor Griffin, similarly and on behalf of all others 2:07-cv-3100, Specifically, situated. No. Doc. No. 49. 20. in the introduction to the

TAC: contending 17. In that the District had routinely 3. Plaintiffs assert that LMSD jurisdiction, plaintiffs argued that Blunt ”[t]he grade pro- misuses so-called below level fully Plaintiffs have exhausted their adminis- grams and modified classes to remove Afri- IDEA, trative remedies under 20 U.S.C. general can American students from the 1415; § the other individual Plaintiffs are ex- curriculum, education in some instances to doing cused from so because such efforts evaluating eligibility avoid a student’s for 2:07-cv-3100, would be futile.” No. Doc. services under the IDEA. Plaintiffs further 9, 55; 2, Nos. J.A. vol. at 95. intentionally segregates assert that LMSD 29, 3, 561-72, gust all of the Blunts’ federal claims 2008. J.A. vol. 575- missal of 15, complaint February in its 2008 89. The District Court issued a Memoran- Order, again them 18, 2008, the TAC included dum and Order on November (the the LMSD and the against 18, Order”), Count VI “November in which Pennsylvania pursuant School Board it noted that the motion incorrectly had Code, 14.102 Public School Pa.Code styled partial been as a motion for judg- seq.21 sought widespread Plaintiffs in- et. pleadings, ment on the really when was junctive “compensatory damages relief and a motion to subject dismiss lack of each on their own behalf to offset jurisdiction. granted matter The Court appropriate of an education to deprivations motion,22 finding that it did not have 3, para. which are entitled.” TAC at jurisdiction supplemental over the Blunts’ 6; 9, J.A. vol. at 3849. state law claims and that there was not a operative common nucleus of fact between

The LMSD and the School Board filed her claims and those of the other stu- an a separate answer to the TAC and dents.23 J.A. vol. 597. judgment motion for on the pleadings on August 2008. The PDE filed an an- 22, 2008, On December the remaining August swer to the 2008. No. TAC plaintiffs moved for class certification. 2:07-cv-3100, Doc. No. 58. 2:07-cv-3100, No. Doc. No. 64. After the 15, 2008, issues, August parties On the LMSD and the briefed the the District partial hearing July School Board filed a motion for Court held a on the motion on Id., judgment pleadings By on the addressed to 2009. Doc. No. 122.24 an order 21. (the claims, remaining August the Blunts’ state law “August Order”), formally opposed which the Blunts on Au- plaintiffs’ the Court denied mo- these African American students in classes No. section. 2:07-cv-3100 Doc. Nos. taught grade that are below level while de- priving grade-level subject them of matter 22. The District Court noted that there was provided that are materials to their overlap operative little facts of Amber peers Caucasian at all educational levels. Blunt’s claims with the claims of the other Pennsylva- 4. Plaintiffs also assert that the plaintiffs, as the claims involved different time (PDE) Department nia of Education failed treatment, periods, possibly different dif- to enforce the mandate that it IDEA’S en- ferent schools. J.A. vol. at 602. In this sure that children with receive disabilities regard, the Court noted that "each appropriate an education in the least re- student-plaintiffs presents entirely different strictive environment and that African predicate factual for his or Id. her claims.” American children in the LMSD are not Accordingly, the Court concluded that it could inappropriately dispro- over-identified or supplemental jurisdiction not exercise over portionately placed special in education claims, remaining the Blunts’ which were PDE, By against classes. their claims based on state law. Id. at 603. remedy wide-spread Plaintiffs seek to viola- Equal tions of the Protection and Due Pro- appealed 23. The Blunts have not from the cess Clauses of the Fourteenth Amendment ruling subject District that it lacked Court’s IDEA, [ADA], ... the the 504 of [Section jurisdiction matter over their state law claims. RA], the and Section 1983 of the [Title VI] argu- 24. The District Court scheduled oral 18971[sic], Rights Civil Act of the ment on class certification issue for June 2-3; 9, TACat J.A. vol. at 3848-49. 26, 2009, but we are uncertain whether the pages alleged 21.Several of the factual basis argument day Court held an on that in addi- claims, 21, appearing for the Blunts' in the "Par- July argument, wheth- tion to the SAC, argument place ties” section of the were deleted in the er the date took second TAC, original argument post- and the identification of Amber and her the had been because 2:07-cv-3100, parents poned. Doc. No. as "African American” was added to No. 118. in (Appellants’ tion for class certification No. reached Gaskin barred this action 39),25again at the PD against 11-4200 br. dismissed the E. The Court noted that brought by action, the CBP and the claims was similar to this as 12 Gaskin standing, NAACP for lack of and found disability students with disabilities and 11 prior that court-entered settlement advocacy groups brought against that case agreement Pennsyl- reached in E, others, Gaskin among pursuant the PD to the vania, (E.D.Pa.2005), F.Supp.2d IDEA, RA, § 504 of the and Title II of the E, against all claims the PD which barred ADA. plaintiffs The Gaskin made similar it therefore dismissed from the case. identical) J.A. (although allegations as vol. at 42.46-42.69. case, alleging those in this that the defen- provide dants failed to disabled students In concluding standing, CBP lacked opportunity participate regular the to the District Court found that it did not classrooms, provided education insufficient personal have a stake the outcome of services, supplementary gen- aids and litigation, injury and did not suffer an erally provide failed to them with a free Rather, giving standing. injuries it “[i]ts (“FAPE”). appropriate public education abstract, akin to an ideological more [we]re 42.63, Though J.A. vol. at 42.67. litigation opposed interest acknowledged Court that the Gaskin com- necessary ‘personal stake in the outcome’ controversy plaint alleged had not racial discrimination necessary to confer standing.” vol. at In as “the improper J.A. 42.52. addi- basis treatment of tion, disabilities,” reasoned that learning CBP did not those with the Court standing bring have suit on behalf its nonetheless held that the causes of action because, according by- members CBP’s in Gaskin and here arose from the same laws, it did not have members. J.A. “common operative nucleus of facts.” The 42.53-54; August vol. 2009 Order Court therefore concluded that the release (“The corporation’s bylaws specifically at 9 included in the settlement agree- Gaskin Corporation state ‘the shall have no mem- ment, which its terms was effective for light express bers.’ In this statement 19, 2005, years September five from a formal governing document the conduct 19, 2010, September barred claims corporation, we find that it does not this case because plaintiffs brought standing bring suit on behalf of its plaintiffs this action and individual in this none.”). it members because has J.A. vol. action were evaluated and identified as 1, at 42.54. learning during period. disabled J.A. 42.67, 42.68; vol. Tr. Arg.

The District Court also Oral June dismissed the against claims the PDE because at 19:9-22. Significantly, the settle- agreement parties ment litigation had class of in the Gaskin so, doing explained appropriate highly the District Court education will be indi- that, denial, among other rationales for this dependent upon partic- vidualized and had determined the factual circum- needs, capabilities, ular student’s and the potential stances of class members were too place IEP in for that child. These individu- disparate injunctive to make final or declara- determinations, al which must be made to tory appropriate relief to the class as a whole. particular determine whether a student falls 1, J.A. vol. at 42.60. The Court noted that the within the class definition and whether disparate factual circumstances of individual action, weigh such student has a cause of likely students also would overwhelm the liti- against certifying this class. gation: 1, J.A. vol. at 42.61. Analysis of whether an African American disability deprived student with a was of an “all tiffs’ very present partially was broad and included motion to exclude and/or age students with dis- report and future school limit the testimony of Daniel J. Pennsyl- in the Ph.D., abilities Commonwealth Reschly, LMSD, for witness vania.” 2:07-cv-3100, as moot. No. Doc. No. 181. principal The Court’s order granted sum- 5, 2011, April the District Court de- On mary judgment against to the LMSD all nied a motion LMSD to amend its remaining plaintiffs in the action. J.A. vol. plaintiffs’ answer to the TAC to include 1, 1-39; at also available at No. 2:07-cv- on additional defense based releases 3100, Doc. No. 182. The Court held that plaintiffs signed certain after LMSD the plaintiffs put had failed to forth any filed its answer in this case because the evidence from which a reasonable infer- Court believed that the LMSD unreason- ence could be drawn that the LMSD inten- delayed ably making had the motion. J.A. tionally segregated the students on the 1, vol. at 46-47. LMSD has filed cross- basis of race into inferior educational pro- but, seen, appeal from the order as will be grams in violation of Title vol. VI. J.A. appeal this is moot and thus we do not at 30-32. The Court also that plain- held address it. tiffs had failed to establish a 42 U.S.C. summary The LMSD filed a motion for § 1983 case for violation of the Equal Pro- (No. 15, 2011, judgment July 2:07-cv- tection Clause of the Fourteenth Amend- 159), Doc. No. and it is that motion ment, they had not established that the that has led to the order at the heart of engaged had in purposeful LMSD discrim- appeal. parties filed numerous deliberately ination and had not been indif- in support opposition documents of and in plaintiffs’ rights. ferent to vol. at J.A. summary to the motion for judgment. On 33-34. 4, 2011, October the District Court held a motion, hearing on the at which time the in particular The District Court noted parties Court afforded all opportunity plaintiffs were at required to “raise present arguments. their No. 2:07-cv- least some inference that reasonable 174,183. Doc. Nos. placed were into classes and offered ser- 20, 2011, On October the District Court vices due to intentional [LMSD] entries, made three docket two of which discrimination based on their race and not were simply orders and third which is the mem- due to errors in evaluation.” The explaining orandum plaintiffs basis for those Court concluded that had failed (collectively, orders support the “October 2011 to this inference with sufficient Order”). evidence, Judgment Memorandum and put and had not forth more than 2:07-ev-3100, No. Doc. Nos. 180-82. a scintilla of evidence that the LMSD had the October racially discriminatory pur- Memorandum and acted with a Order, Judgment plain- pose identifying the Court denied them as disabled and 2013), queried attorneys appellees litigants incorrectly 26. We who were argument might bring oral as to whether the Gaskin settle- identified as disabled be able to RA, apply given bring ment should that the suit under the ADA and but cannot IDEA, IDEA, brought Gaskin their claims under the suit under the as that statute extends RA, individuals, appellants only ADA and and the other than to disabled not to individuals advancing only incorrectly Blunts who were identified as disabled. Arg. regardless Title VI claims. Tr. Oral June Id. at what 257-58. But claims However, above, E, recently brought against as noted we could have been the PD as case, explain indicated in a related we S.H. v. Lower below the Gaskin settlement bars District, (3d Merion School 729 F.3d 248 Cir. the claims in this case. appeal specifically courses der. Their notice of special education placing them August order of cited the District Court’s this identification (regardless whether not). 19, 2009, They also failed to in which the Court dismissed was correct E, PD an order against or custom that claims defendant identify policy an official 20, 2011, entering summary deliberately plaintiffs’ indifferent to of October was LMSD, 1, 32-36;27 and an order judgment at also avail- favor of rights. J.A. vol. 2:07-cv-3100, 20, 2011, denying plain- Doc. 180. as moot at No. No. of October able testimony. preclude expert tiffs’ motion to 2011, 18, plain- the Blunt On November 2:07-cv-3100, No. 187. No. Doc. appeal a notice of tiffs and the CBP filed 1, 2011, 20, LMSD filed a On December October from the District Court’s cross-appeal portion from the of the Dis- Judgment Order. J.A. Memorandum and 15, February 1, trict Court’s 2008 Order attempt preserve In an vol. 40-42. motion to which denied LMSD’s dismiss right appeal their from all of the Court’s 18, Title for failure to orders, plaintiffs’ VI claims dispositive their November and, exhaust administrative remedies28 as appeal 2011 notice of stated that “[w]ithout indicated, we have the District Court’s limiting right appeal any particular their 5, April 2011 denial of its motion to amend during pro- order rendered District Court 1, its answer to the TAC. J.A. vol. at 43- ceedings, specifical- Plaintiffs listed herein 2:07-cv-3100, 45; Doc. Nos. 123-24. ly appeal following orders.” The no- challenge appeal tice of then went on to 15, III. STATEMENT OF dismissing February 2008 Order JURISDICTION under the IDEA and the

the Blunts’ claims February District Court’s orders of jurisdiction The District Court had over 19, 2009, August they per- plaintiffs’ pursuant federal law claims standing. tained to and its lack of CBP 1415(i)(3)(A),29 § to 20 28 U.S.C. U.S.C. 40-42; J.A. vol. see also No. 2:07-cv- 1343(a)(3). § § and 28 U.S.C. 3100, Doc. No. 186. addition, plaintiffs claimed supplemental jurisdiction had over Also on November Court Johnson, Johnson, Lydia pursuant Linda Dur- their state law claims to 28 We, however, rell/Hall, Allston, § Dudley/Whiteman, Cole- U.S.C. do not de- man, appeal gen- filed an termine whether the District Court had Muse/Griffm erally jurisdiction from the District Court’s October over the state law claims be- Judgment party 2011 Memorandum and Or- cause no contends that the Court correctly 27. The observed that but had found that Title VI relief was not District (as the LMSD’s awareness evidenced through process the administrative available formation of a committee to address the con- up resolving disputes, set IDEA and thus it parents) cerns of African American of an VI failure did not dismiss Title claims for gap, Af- achievement between Caucasian and exhaust administrative remedies. Of students, American failure to rican its course, similarly the Court did not dismiss the gap eliminate that were not evidence of inten- § 1983 claims because there were no admin- tional discrimination or deliberate indiffer- available under istrative remedies sec- ence toward African American J.A. students. tion. vol. at 36. United 29."The district courts of the States above, explained 28. As the District Court dis- jurisdiction brought IDEA, shall have of actions un- plaintiffs’ RA missed and ADA claims LMSD, Blunts, regard to the der this section without amount against other than those of the remedies, 1415(i)(3)(A). controversy.” 20 U.S.C. for failure to exhaust administrative

265 However, exercising jurisdiction erred in not over where a non-moving party jurisdic- sufficiently fails appellate those claims. We have establish the existence of an essential element of § its case on which tion under 28 U.S.C. trial,

it proof bears burden of there IV. STANDARD OF REVIEW genuine is not a dispute respect with to a material fact and thus the moving party is It is well established that we em entitled to judgment as a matter of law. ploy plenary a standard in reviewing or DeFlaminis, Lauren v. 259, W. 480 F.3d ders entered on motions for summary (3d Cir.2007). Further, 266 mere allega- judgment, applying the same standard as insufficient, tions are “[o]nly evidence the district court. Kelly Borough of sufficient to convince reasonable factfin- Carlisle, (3d 248, Cir.2010) 622 F.3d 253 der to find all of the elements of [the] (citing 318, Kearney, Giles v. 571 F.3d 322 prima facie case merits consideration be- (3d Cir.2009)); Virtue, Albright v. 273 F.3d yond the Rule 56 stage.” Id. (quoting and (3d 564, Cir.2001); 570 see also Montone v. Catrett, citing Celotex Corp. v. 477 U.S. (3d 181, City Jersey City, 709 F.3d 189 317, 324, 106 S.Ct. 91 L.Ed.2d Cir.2013); Pennsylvania Coal Ass’n v. (1986) (internal 265 quotation marks omit- Babbitt, (3d Cir.1995) 231, 63 F.3d 236 ted)). E., (citing Beazer Inc. v. United States We review district court’s deter III, Envtl. Agency, Region Protection 963 concerning minations admissibility (3d 603, Cir.1992)). F.2d 606 Inasmuch as evidence for an abuse of discretion. See our plenary, review is may affirm the “[w]e Co., Martin v. Monumental Ins. 240 Life District Court on any grounds supported (3d Cir.2001) (“Where 223, F.3d 232 a par record,” by the even if the court did not ty makes known the substance of the evi rely Morra, grounds. on those Nicini v. introduce, dence it desires to we review (3d 798, Cir.2000).30 212 F.3d 805 the District Court’s decision to exclude the In considering an order entered on a discretion.”) (cit evidence an abuse of summary motion for judgment, “we view ing Dist., Narin v. Lower Merion Sch. 206 the underlying facts and all reasonable (3d 323, Cir.2000)). F.3d 334 There is an inferences therefrom in light most fa- abuse of if discretion the district court’s “ vorable to party opposing the motion.” upon decision ‘rests a clearly erroneous Babbitt, 63 F.3d at 236. As we also have fact, finding of errant conclusion of law ” explained, dispute “[a] factual if material an improper application of law to fact.’ it bears on essential element of the Forrest v. Corp., Beloit 424 F.3d 349 claim, genuine and is if a reason- (3d Cir.2005) (citing Logan, Merritt Inc. v. jury able could find in favor of the non- Cos., (3d Inc, Fleming 901 F.2d party.” moving Natale v. Cnty. Camden Cir.1990)) (quoting Oddi v. Ford Motor (3d Corr. Facility, 318 F.3d Cir. Co., (3d Cir.2000)). 234 F.3d “An 2003) Aetna, Inc., (citing Fakete v. 308 abuse of can discretion also occur no ‘when (3d Cir.2002) (in F.3d quot- turn person reasonable would adopt the district ing Dairies, Spring Cloverland-Green Inc. court’s view.’ We will not interfere with Bd., Mktg. v. Pa. Milk 298 F.3d 210 the district court’s exercise of discretion (3d Cir.2002))). ‘unless there is a definite firm eonvic- opinions 30. We note that sometimes in our We plenary discern no difference between the we refer to the standard review on an and de novo standards of review. See 19-206 Pratt, appeal summary judgment from an order for Moore’s Federal Practice—Civil "plenary” (2013). as and sometimes "de novo.” 206.04 a district court reviews an committed a clear that the court below tion When decision, a judge’s administrative law court in the conclusion judgment error of plenary review over appeals of the relevant exercises upon weighing reached ” (internal conclusions, Oddi, and reviews legal at 146 the court’s 234 F.3d factors.’ omitted).31 fact a “modified de findings its citations the ad (giving

novo” standard of review that we It also well established findings weight” ministrative factual “due determi novo a district court’s prima review de them to be facie considering and suit, standing bring correct) party’s W., of a nation for clear error. Lauren 480 a determination of as a court makes However, at 266. we do not make F.3d standing legal on a party whether a has here, analysis an as the issue before such here, basis, where, as the determi at least Blunts, only respect us with to the reso depend on the court’s nation does appellants who exhausted their administra dispute. lution of a factual See National remedies, is whether the District tive N. Collegiate Athletic Ass’n v. Governor correctly dismissed their case on Court of (3d 208, Cir.2013); J., F.3d 218 Com 730 they brought beyond grounds Pennsylvania, Pa. v. 558 mon Cause period by allowed the statute of limita of (3d Cir.2009).32 249, F.3d 257 would tions. The resolution of issue expertise.

not be aided administrative Judgments applying of a court IDEA’S statute of limitations but not re V. ISSUES PRESENTED subject ple fact are

solving disputes of ON APPEAL law, nary but review as conclusions [plaintiffs] proved exception “whether Though many the District made Court limitations, and statute of [IDEA] rulings, appellants appealed only District fulfilled its [School] whether Accordingly, of them. we are from some subject obligations FA PE ... are to clear ap- on able to summarize the issues fact. questions error review as Such peal as follows: [fjactual findings from the administrative correctly 1. Did the District dis-

proceedings prima are to be considered against miss the action the PDE on the correct, if facie and not adhere [we] do[ ] (claim judicata preclusion)? basis of res why.” findings, explain to those we must Dist., 233, Abington D.K. v. Sch. 696 F.3d correctly 2. Did the District Court con- (internal (3d Cir.2012) citations and 243 standing clude that CBP did not have as a omitted) quotation (citing quot marks plaintiff this action? P. ing P.P. ex. rel. Michael v. Chester W. (3d Dist., 727, 90-day Area 585 F.3d 734 3. Does the IDEA’S statute of Sch. limitations, Cir.2009); party adversely v. in which a af- State-Operated S.H. Sch. (3d Newark, 336 269-70 fected an administrative determination Dist. F.3d Cir.2003)). may bring of an IDEA claim a state or hand, Bd., Citing Darby Zoning Twp. other the extent an 32. v. "[t]o On the Taliaferro Cir.2006); evidentiary interpretation (3d issue turns on the F.3d see also Evidence, N.J., of a Federal Rule of rather than the Grp. Public Interest Research Inc. rule, application mere our review is Elektron, Inc., Magnesium 123 F.3d Forrest, plenary.” (emphasis 424 F.3d at 349 (3d Cir.1997). added) (citing Litig., In re Paoli R.R. Yard PCB (3d Cir.1994)). 35 F.3d suit, federal enacted on December VI. SUMMARY OF THE LAW 1, 2005, July apply and effective to bar the A. The Individuals with Disabilities action, given they Blunts’ federal first Education Act judicial began process the administrative IDEA, Congress enacted the 20 U.S.C. April on the IDEA’S when statute § 1400 seq., goal et with the “improving bringing of limitations for a claim state educational results for children with dis- receiving or federal court after an adverse 1400(c)(1). abilities.” 20 U.S.C. administrative determination was two congressional findings purposes sec- years, received their final ad- tion of quite the IDEA is broad and sets great forth in Congress’ detail disposition August verse administrative intention adopting the IDEA. 31, 2005, almost two months after the new 90-day statute of limitations came into ef- Each public school district in a state fect, accepts and almost that nine months after Con- federal funds under IDEA35 has a continuing obligation, called the gress enacted it?33 requirement, “child find” identify to 4. Did the District Court abuse its dis- evaluate all reasonably students believed cretion how it treated certain evidence disability, have a and each state receiv- plaintiffs by that giving offered ing funds must procedures establish greater weight and not considering the effectuate requirement. Ridley Sch. R., (3d light evidence most favorable to the Dist. v. M. 680 F.3d 271 Cir.2012). pointed As in Ridley, we out plaintiffs when the Court considered and Pennsylvania has set forth child find pro- granted the motion summary judgment for 22 §§ cedures in 14.121 through Pa.Code by and, made the LMSD on the other 14.125. Id. hand, in how it treated certain evidence receiving States federal funding for as- that LMSD offered for consideration on sistance in the education of children with that motion? disabilities under IDEA responsi- are 5. Did plaintiffs prima establish a facie providing ble for a FA PE to students case of discrimination in violation of Title who are identified as learning disabled un- § summary VI and 1983 such that judg- til 21 years age. reach 20 See inappropriate?34 1400(c)-(d); ment was U.S.C. see also 34 C.F.R. although 33.We note that argues the statute of limita- 34. LMSD that the District Court im- argu- tions issue was not discussed oral properly denied its motion to amend its an- ment, challenge the Blunts’ brief raises a We, however, swer. do not reach that issue ruling the District Court’s on the issue aas because our determination the Court prime point argument. Appellants’ br. properly granted summary judgment in its however, Presumably, No. 11-4201 at 31-37. favor and our affirmance of the other orders appellants long- in the case of student who no appeal dispositive on of the issue. disabled, claiming er are to be but rather are claiming to have been misidentified as dis- pursuant "The IDEA was enacted to the abled, a statute of limitations issue would be [Thus, congressional spending power. a] However, inapplicable. as far as we can tell generally state is not bound the IDEA record, from the at least one or two of the funding unless it receives federal under the challenge student do not their iden- Schs., Jersey City statute.” A.W. v. Pub. disabled, tification as and counsel (3d (internal Cir.2003) F.3d citations argument Blunts has not withdrawn the re- omitted). garding the statute of limitations which thus Therefore, preserved appeal. has been we address the statute of limitations issue. must articulate performance, cational 300.1-300.2;36 H. v. Souder- §§ Jonathan and must (3d goals, educational measurable Dist., 527, 528 562 F.3d Area Sch. ton ser- special nature of the specify the W., at 272. Cir.2009); F.3d Lauren Al- provide.’ will that the school vices Ridley: explained As we the stu- provide the IEP must though instruc- FAPE consists of educational A opportunity,’ floor of dent with ‘basic to meet designed specially tion provide optimal ‘the it does not have to child, handicapped needs of the unique services,’ incorporate every level as are neces- by such services supported par- the child’s requested program from the child to benefit sary permit IDEA to a guarantees .... [T]he ents is not Although state the instruction. ap- that is child ‘an education disabled potential of to maximize the required every- provides propriate, not one child, supply it must every handicapped might thought be desirable thing significant provides an education a mini- by loving parents’.... ‘[A]t meaningful benefit learning and mum, reasonably IEP cal- must be merely more provision [T]he child. child to receive culated to enable the benefit is insuf- than a trivial educational light meaningful educational benefits ficient. potential,’ of the student’s intellectual (internal quotation marks 680 F.3d at 268 and ‘individual abilities.’ omitted) (citing Rowley, Bd. Educ. v. (internal F.3d at 276 citations Ridley, 680 176, 206, 102 458 U.S. S.Ct. omitted). (1982); Ridgewood Bd. L.Ed.2d 690 through Congress amended the IDEA (3d N.E., 172 F.3d 247 Cir. Educ. v. Improve- with Disabilities the Individuals Educ., 1999); Ramsey L.E. v. Bd. 435 that an IEP require Act of 2004 to ment (3d Cir.2006)). F.3d 390 special “a statement of the edu- include FA PE to disabled providing supplemen- cation and related services and student, work with school districts must services, peer-re- tary aids and based on parents to create an individu- the student’s practicable, extent viewed research to the (“IEP”), plan containing alized education Ridley, provided to the child.” 680 to be that the Code of Federal certain elements (emphasis original) (quoting at 276 F.3d must be made avail- Regulations specifies citing U.S.C. able to each disabled student. We 1414(d)(l)(A)(i)(IV))- Because neither § reasonable explained the balance between regulations IDEA the text of the nor parent’s IEP and a fondest goals for the guidance promulgated provided under it parent’s child as follows: hopes for the provi- regarding peer-review research IDEA, sion, interpreta- school districts must agency’s Under the we looked to the IEP, an parents design regulations guidance, work with of its own for tion (1) in- although schools program which is a of individualized and determined IEP on special each education strive to base a student’s struction for should an research to the maximum peer-reviewed ‘Each IEP must include student. IEP team possible, the student’s of the child’s current edu- extent assessment education, are—(a) independent employment, and liv- purposes part en- 36. “The of this To Further, 300.1(a). § children with disabilities have ing; sure that all ...” 34 C.F.R. public appropriate available to them a free part applies each that receives State "[t]his emphasizes special education Act, education that payments under Part B of the as defined designed to meet their and related services 300.2(a). § § 34 C.F.R. 300.4.” unique prepare for further needs and them devising must be to be flexible in allowed On December Congress re appropriate program any particular an vised the IDEA with the Individuals with research; light student in of the available Improvement Disabilities Act of (2) significant courts must accord def which two-year included a statute of limi erence to the choices made school offi tations governing the time during which an cials as to what an appropriate constitutes aggrieved party may file a request for an program Ridley, for each student.37 680 administrative process due hearing under 46,665 (citing Fed.Reg. F.3d at 277 108-446, the IDEA. P.L. 118 Stat. 2647 (2006); Educ., Bayonne (2004); 1415(f)(3)(c). D.S. Bd. 60 § 20 U.S.C. (3d Cir.2010); Ridg F.3d 556-57 two-year period runs from the date that wood, 247). 172 F.3d at parent knew or should have known alleged about the action that forms the

B. Redress and the Statute basis for the complaint. The same two- of Limitations under year statute of limitations for bringing ad IDEA applies ministrative claims also to other legal IDEA, premised claims “If such parents believe IEP that an RA, § as claims under 504 of the FAPE, or claims provide fails to their child with a “invoking Child Find and FAPE may duties.” request an ‘im administrative ” D.K., 696 F.3d at 244 partial (quoting P.P. ex. rel. process hearing,’ due may P., 734). Michael 585 F.3d at In the same school district if it change wants to an legislation, Congress shortened the statute existing IEP or seeks evaluation with of limitations to days party for a out the dissat parents’ Ridley, consent. 680 F.3d isfied with the result of the 1415(f); administrative (citing 269-70 20 U.S.C. 532). proceedings bring a federal or state Schaffer, 546 U.S. at 126 S.Ct. at judicial action challenge result. persuasion The burden of in an Though Congress mandated that these hearing administrative under the IDEA new statutes of limitations were to ret be party lies with seeking relief. See roactive, delayed their effective dates Schaffer, 546 U.S. at 126 S.Ct. at 537. July until 2005. Similarly, party judicially the challenging an administrative decision bears the bur we determined that the seven- persuasion den of respect with to the “grace period” find month between the enact- ing challenged. for each claim Ridley, 680 two-year ment of the statute of limitations F.3d 270. provided and its effective litigants date explained "[gjiven proposed by We that the IDEA a school district is so at odds require provide does not ‘opti- an IEP to with current research constitutes a services,’ mal level of we likewise hold that FAPE,” practica- denial of a and that “if it is require the IDEA does not a school district to implement pro- ble for a school district to a program supported by optimal choose the research, gram upon peer-reviewed based Rather, peer-reviewed level of research. so, weigh the school fails to do that will peer-review specially designed instruction in heavily against finding pro- a that the school ‘reasonably an IEP must be calculated to en- FAPE,” vided a nonetheless we to declined set meaningful able child to receive edu- bright-line a rule as to what constitutes an light cational benefits in of the student’s intel- adequately peer-reviewed special education ” potential.’ Ridley, lectual 680 F.3d at 277 program, emphasized appropri- that the (citing Chambers v. Sch. Dist. Phila. Bd. ateness of an IEP must be considered on a Educ., (3d Cir.2009)). 587 F.3d basis, case-by-case taking into account recognized may While we that “there be cases available research. Id. at 279. specially designed in which the instruction (1982) (internal quotation to L.Ed.2d 738 opportunity reasonable notice and with omitted)). marks claims, that it was not unfair to bring so the new statute of limitations and impose right An IDEA claimant’s to re period period that the limitations thus dress does end with the administrative impermissibly short. Ste- allowed was not process, any aggrieved party review Dist., I. v. BucksSch. 618 F.Bd ven Cent. an de who received adverse administrative (3d Cir.2010).38 We further 415-16 regarding or her com termination his persons charged that “all explained respect compliance with IDEA plaints knowledge of stat- provisions of the may bring an in a court of action “[s]tate procedure jurisdiction utes and must take note of the in a competent district court States, them, by regard a of the without adopted legislature need United [and] controversy,” amount 20 U.S.C. nothing publish do more than enact and 1415(i)(2)(A), days § of the final within law, citizenry and afford the a reason- decision, administrative 20 U.S.C. to familiarize itself with opportunity able 1415(i)(2)(B).39 § Prior to the amendment (in- comply.” at 416 its terms and Id. shortening of the IDEA limitations quotation ternal citations and marks omit- period, bringing the time for suit in a state ted). Thus, Supreme we noted that receiving or federal court after an adverse administrative determination had been two upheld adjustments has retroactive to a years. The amendment the 90- adopting period only legisla- limitations when day passed statute limitations Con provided grace period during ture has a 3, 2004, gress on December became effec potential plaintiff which the could rea- 1, 2005, July tive seven months after its sonably expected be to learn 90-day enactment. This statute of limita change the law and then initiate his period begins running tions on “the date of action. In the context of a retrospective hearing the decision of the [administrative] limitations, grace statute of a reasonable 1415(i)(2)(B); officer.” 20 see U.S.C. period provides adequate guarantee an H., (“Sec also Jonathan at 530 F.3d Having trig- of fairness. suffered the 1415(i)(2)(B) party’s right tion limits a gering injury, potential event of an ‘bring days an action’ to within 90 after the likely heightened plaintiff possess decision.”). final administrative possibly changing alertness to the re- claims, party As with ADA seek quirements bearing of the law on his ing redress under the IDEA must exhaust claim. filing administrative remedies before Texaco, Short, at 417 (quoting seeking Id. Inc. v. action redress in a state or federal 781, 802, Up- 454 U.S. S.Ct. 70 court. See Komninos Komninos v. doing, particular Supreme 38. In so we cited a in a limitation which has been reciting decision that they right fixed than have in an unrestricted court has often decided to sue. [t]his that statutes affecting existing rights 55, 63, of limitation are not Iseminger, Wilson v. 185 U.S. 22 S.Ct. unconstitutional, giv- 573, 575, if a reasonable time is (1902) (internal quota- 46 L.Ed. 804 en commencement of an action be- omitted). tion marks fore the bar takes effect. why, legislature It is difficult to see if the may brought 39. But an action be in state may prescribe a limitation where none ex- explicit bringing with "an time limitation for before, change may isted not one which such an action ... in such time the State as already parties been has established. 1415(i)(2)(B). § law allows.” 20 U.S.C. to a contract have no more a vested interest

271 Educ., per Saddle River Bd. 13 F.3d of the hearings particu- administrative of (3d Cir.1994) Rob- (citing larly weighty 778 Smith v. in Disabilities Education Act inson, 992, 1011-12, process 468 104 cases. That opportunity U.S. S.Ct. offers an 3457, 3468-69, (1984)); for state and agencies 82 L.Ed.2d 746 see local to exercise discretion Northampton expertise also I.M. ex rel. C.C. v. Pub. fields which Schs., (D.Mass.2012) they F.Supp.2d 869 174 have experience.... substantial (“Plaintiffs’ [Therefore], conceded failure to courts should wary exhaust be of fore- going their administrative remedies with regard benefits be derived from a ADA-grounded thorough development claim appeal of the issues in the and/or days such a decision within administrative proceeding.” is fatal to its Id. at 779-80. present viability.”). explained We have that “the IDEA pro- vides a comprehensive remedial scheme” have explained policy We of judicial remedy “includes for viola- requiring exhaustion of administrative tions of any right ‘relating to the identifi- strong very remedies is but it has some cation, evaluation, or place- educational exceptions, namely: limited child, ment of provision or the of a [a] free (cid:127) where exhaustion would be futile or appropriate public education to such (see Doe, inadequate Honig v. 484 U.S. ” Schs., child.’ v. Jersey City A.W. Pub. 592, 606, 108 S.Ct. (3d Cir.2007) F.3d (citing 20 (1988)); L.Ed.2d 686 1415(b)(6)).41 § U.S.C. (cid:127) where the presented purely issue is a legal question; C. Title VI of the Civil (cid:127) agency where administrative can- Rights Act of 1964 (for grant example, relief due to Title Rights provides VI the Civil Act authority); lack of person “[n]o United States (cid:127) situation, emergency such as where shall, race, ground color, on the or exhaustion of administrative remedies origin, national partic- be excluded from would irreparable cause ‘severe or in, ipation of, be denied the benefits or be litigant. harm’ to the subjected any pro- to discrimination under Komninos, 13 F.3d 778-79.40 gram activity receiving Federal finan- Nonetheless, we have § cautioned that cial assistance.” 42 U.S.C. 2000d. Title advantages awaiting completions “[t]he provides, part, VI further relevant alia, Citing, Honig, inter 484 U.S. at for violations of that same statute.... Indeed 40. 108 S.Ct. at 606. ... the Court has continued to refer to the example statutory IDEA as an of a enforce- we "[b]y pre- In A.W. further noted that precludes ment scheme 1983 reme- serving rights and remedies 'under the Consti- A.W., dy.” (emphasis 486 F.3d at 798-803 tution,’ ) 1415(7 permit plaintiffs section does added). Thus, we note that for the five or six to resort to section 1983 for constitutional changed student who have their the- violations, notwithstanding similarity ory liability argue and now that the LMSD directly such claims to those stated under disabled, incorrectly identified them as 1415(7 ) permit IDEA. But section does not part analysis presumably would not plaintiffs to sue under section 1983 for an apply, longer no make claims under violation, statutory which IDEA in nature. However, previously the IDEA. as we 1415(1) Nothing in section overrules the noted, appellants challenge did the District Robinson, Court's [v. decision Smith 992, Court's 3457, determination on this issue in the U.S. 104 S.Ct. 82 L.Ed.2d 746 (1984)], briefs in No. 11-4201. Congress to the extent it held that provide intended IDEA to the sole remedies (v)Treat differently an individual criteria established guidelines segre- determining conditions of from others in whether “dealing with Title VI race, jure admission, de or de any whether enroll- gation he satisfies facto, of the local educational ment, in the schools quota, eligibility, membership any applied be uni- agencies of State shall requirement or other or condition formly regions in all United States in must meet or- which individuals origin or cause of such ... whatever service, fi- provided any to be der 2000d-6(a). § 42 U.S.C. segregation.” aid, provid- or other benefit nancial program; under the ed recipients of Title VI to application Depart- through assistance of federal Education, explained in the

ment of (b)(l)(i)-(b)(l)(v). 100.3(a), 34 C.F.R. especially Regulations of Federal Code germane to this case: bring Private individuals who (a) in person No the United General. may com suits under Title VI not recover shall, race, ground of col- on the States that the pensatory relief unless show or, origin be excluded from or national in engaged defendant intentional discrimi in, be denied the benefits participation nation. Assoc. v. Civil Serv. Guardians of, subjected or be otherwise to discrimi- N.Y., 597, 607, 582, 463 U.S. Comm’n of any this program nation under to which 3221, 3230, 3235, L.Ed.2d 866 103 S.Ct. part applies. Sandoval, (1983); see also Alexander v. (b) discriminatory Specific pro- actions 275, 282-83, 121 S.Ct. 1517- 532 U.S. hibited. (2001) (reaffirming 149 L.Ed.2d 517 (1) recipient any program A under to that individuals cannot recover private not, part applies may di- which Title compensatory damages under VI ex rectly through or contractual or other discrimination). cept in cases of intentional race, ground col- arrangements, Recently, bringing held that plaintiffs we or, origin: or national may ADA RA claims under the estab (i) service, Deny any an individual lish intentional discrimination with show aid, pro- financial or other benefit v. Low ing of deliberate indifference. S.H. program; vided under the (3d Dist., er Merion Sch. 729 F.3d

(ii) service, any financial Cir.2013). Provide Ti parallels between Given aid, other benefit to an individual or S.H., and the statutes at issue our tle VI different, provided which is or is adopting rationale for deliberate indiffer manner, pro- from that a different ence as a form of intentional discrimination program; under the vided others applies equal force in the Title S.H. (iii) Subject explained context. We that the delib segre- individual to VI any gation separate or treatment erate indifference standard was “better receipt any to his matter related goals to the remedial of the RA and suited service, aid, or financial other bene- ADA,” which is also true for id. the program; fit under given Title VI that the remedies available of Title are coextensive for violations VI (iv) in any Restrict an individual available under the ADA and with those way enjoyment advan- Gorman, RA, Barnes v. 536 U.S. tage privilege enjoyed by others service, aid, 153 L.Ed.2d 230 S.Ct. receiving any financial program; or other benefit under the (2002).

273 any appeals rights, privileges, courts of to have or immunities se- Other agree considered the issue deliberate laws, cured the Constitution and shall circumstances, inmay, indifference certain be party injured liable in an ac- establish intentional discrimination for the law, equity, tion at suit in prop- or other See, of a Title claim. purposes e.g., VI er proceeding for redress ... Dist., Zeno v. Pine Plains Cent. Sch. 702 § To claim, establish a 1983 a (2d Cir.2012) 655, (explaining F.3d 664-65 plaintiff prove must that a defendant’s dis that deliberate indifference to teacher or criminatory action purposeful: was peer may harassment of individual create “(1) if liability plaintiff a establishes sub To bring a successful claim 42 under (2) control, stantial severe and discrimina § U.S.C. 1983 a equal pro- denial of (3) harassment, tory knowledge, actual tection, plaintiffs must prove the exis- (4) indifference”); deliberate Bryant v. In tence of discrimination. purposeful dep. No. Cnty., Sch. Dist. 1-38 Garvin of They must they demonstrate that ‘re- Ok., (10th Cir.2003) 334 F.3d 934 different ceived] treatment from that (holding that “deliberate indifference to received similarly other individuals known instances of student-on-student ra situated.’ cial harassment theory is viable in a Title suit”); VI intentional discrimination Mon Phila., Andrews v. City 895 F.2d of Dist., Tempe teiro v. High Union Sch. 158 (3d Cir.1990) (internal 1478 citations omit- (9th Cir.1998) F.3d 1033 (finding that ted). explained We further in Brown v. may school district violate Title ifVI there (3d City Pittsburgh, 586 F.3d 293 of environment, a racially hostile the dis Cir.2009): trict had notice of problem, and it analysis yields Our following conclu- respond adequately). failed to The Su sion: in order to municipal establish lia- Court, preme claims under Ti addressing bility for selective enforcement of a fa- IX, explained tle that in order to establish cially viewpoint- and content-neutral indifference, deliberate a plaintiff must regulation, plaintiff whose show that evidence school district had knowl edge the alleged solely of misconduct and consists of the incidents of en- power to correct it but nonetheless failed forcement themselves must establish to do Cnty. so. See Davis v. Monroe Bd. pattern activity evincing of enforcement Educ., 629, 645-49, 526 U.S. 119 S.Ct. a governmental policy or custom of in- 1661, 1672-74; S.H., 729 F.3d at 265. Con tentional discrimination on the basis of sufficient; knowledge structive is not “only viewpoint or content. knowledge predicate actual is a to liabili explained We also have “[a]n Zeno,

ty.” 702 F.3d at 666.

essential element of a claim of selective § D. 42 U.S.C. 1983 Equal treatment under Protection comparable parties Clause is that the states, 42 part: U.S.C. 1983 in relevant ‘similarly similarly situated.’ Persons are who, Every person any under color of Equal situated under Protection statute, ordinance, custom, regulation, ‘in Clause when are alike all relevant usage, Territory State or or the ” Phila., aspects.’ v. City Startzell Columbia, subjects, District of or causes (3d Cir.2008) (citing F.3d Hill v. subjected, any to be citizen of the Unit- (3d Scranton, City person ed States or other F.3d within the Cir.2005)). jurisdiction thereof to the deprivation meaningful access to edu Act tivities and the Rehabilitation E. 504 of Section However, § 504 does cational benefits.... Regulations of the Relevant changes to the not mandate ‘substantial’ of Education Department ‘should be programs, school’s and courts RA, of the 29 U.S.C. Section 504 to strike a balance mindful of the need states, in part:' § relevant seq., 701 et rights the of the student and [his between a qualified individual with No otherwise legitimate finan parents or and the her] States, shall, ... disability in the United concerns of the cial and administrative disability, of her or his solely reason ” at Ridley, 680 F.3d [s]chool [district.’ in, be participation from the be excluded (internal omitted); Ridge citation 280-81 of, subjected the benefits or be denied wood, 247; at 172 F.3d Southeastern or ac- program under discrimination Davis, 397, 405, 442 U.S. 99 Cmty. Coll. receiving Federal financial assis- tivity (1979). L.Ed.2d 980 60 S.Ct. .... tance hand, or the other mere administrative On 794(a). Thus, § the § 504 of 29 U.S.C. not constitute a fiscal convenience does receiving fed requires sepa RA school districts justification providing sufficient for handicapped a FAPE to each services to a funding provide eral rate or different Ridley, (citing 680 F.3d at 281 Hel handicapped person within the child. qualified (3d Dario, W., en L. v. Di 46 F.3d 338 jurisdiction. See Lauren recipient’s Cir.1995)). 274; Ridley, at see also 680 F.3d 480 F.3d Matula, (quoting W.B. v. 67 F.3d 280 that there has been a To establish (3d Cir.1995), abrogated on other RA, plaintiff § 504 of the a violation of A.W., 791); 486 F.3d grounds (1) that: the student was dis prove must 104.33(a)-(b).42 § have ex C.F.R. We (2)(s)he abled; qualified” “otherwise was (3) this means “a school district plained that activities; the participate school reasonably accommodate the needs must financial school district received federal (4) assistance; to ensure handicapped of the child so as the student was exclud in or denied the ben- participation participation in educational ac- ed from meaningful capped meeting provides: § Act is one means of 42. 34 C.F.R. 104.33 paragraph established (a) standard recipient operates A General. (b)(l)(i) secondary public elementary education of this section. or activity provide (3)A program handicapped a free recipient may place or shall quali- aid, appropriate public education to each person person or refer such person handicapped who is in the re- fied benefits, other than those that or services jurisdiction, regardless cipient's of the na- operates provides or as its means of handicap. severity person's ture or requirements carrying of this sub- out (b) Appropriate education. so, part. recipient respon- If remains (1)For purpose subpart, ensuring requirements that the sible for appropriate provision of an education is subpart respect of this are met with provision regular special edu- or placed any handicapped person so or re- and related aids and services that cation ferred. (1) designed edu- to meet individual persons handicapped as cational needs of noted, Again, psychological a recent adequately as the needs of nonhandi- per- question, evaluation of the students (ii) capped persons are met and are based by plaintiffs’ psychologist formed at their be- satisfy upon procedures that adherence to hest, concluded that five or six of the has 104.34, 104.35, requirements §§ disabled, learning are not students issue and 104.36. analysis presumably is not and thus a (2) Implementation of an Individualized relevant to those students' claims. Program developed Education in accor- dance with the Education of the Handi- benefit, program receiving gain efits of educational the same or to reach the funds, subject or was to discrimination same level of achievement pro- as that program. under the See id. at 280. others; vided to F. Americans with Act Disabilities (vii) qualified Otherwise limit a individu- provision

In a safeguards similar to the al with a disability in enjoyment above, we have outlined Title II of the any right, privilege, advantage, op- ADA provides, part: relevant portunity enjoyed by others receiving Subject provisions to the of this sub- aid, benefit, or service. chapter, qualified no individual with a shall, disability by reason of such dis-

ability, be excluded participation from (vii). 35.130(b)(1)(h),(iii), § 28 C.F.R. services, or be denied the benefits of the programs, public entity, or activities of a explained haveWe that “the sub subjected or be by any discrimination stantive standards for determining liability entity. such under the Rehabilitation Act and the ADA 42 U.S.C. 12132. Ridley, are the same.” 680 F.3d at 282-83 Regulations Code of Federal has (citing McDonald v. Pa. Dep’t Pub. Wel by effectuated the ADA mandating that (3d Cir.1995)). fare, 62 F.3d 94-95 equal opportunity there be in benefits and pro- services disabled individuals. It Establishing G. a Prima Facie Case of vides, in relevant part, Racial Discrimination Through (b) (1) A public entity, providing any Circumstantial Evidence aid, benefit, service, not, may or directly contractual, through or licensing, or oth- Inasmuch as we recognized have er arrangements, on the basis of disabili- that individuals who violate the law based ty— discriminatory on motives sometimes do evidence,

not leave a trail of direct but (ii) instead “cover by providing Afford a their tracks” qualified individual with a actions, disability opportunity explanations an alternate for their participate we aid, benefit, in or benefit from the have found that a plaintiff may establish a equal service that is not to that prima afforded facie factual foundation of discrimi others; nation drawing reasonable inferences (iii) from objective gener certain facts that are qualified Provide a individual with a disability aid, benefit, ally dispute. not in with or service See Barnes Found. v. Merion, affording equal Twp. is not as effective in Lower 242 F.3d 162- (3d Cir.2001).44 opportunity result, to obtain the same Barnes, involving In a case a municipality museum with claimed that one resident of the primarily a African American board of di- in which the museum was located used "code rectors, plaintiffs' public evidence meeting consisted words” at a in a manner that mainly attorneys expressing plaintiffs of affidavits from believed had racial undertones. Nevertheless, viewpoint zoning their enforcement had we concluded that the evidence unequal respect provided been totally inadequate museum. "a foundation on regard, this predicate claimed that there which to an inference that racial unequal had been appellants,” treatment of the museum as animus motivated the 242 F.3d compared neighbors except perhaps to its the enforcement as to the one individu- Moreover, parking regulations. it was al who had used the "code words.” disparities judged ical must be case-

In International Brotherhood States, case-by-case ap- by-case a Title basis. “[S]uch v. United VII Teamsters recognition proach properly case mentioned reflects our employment discrimination variety during argument oral that statistics ‘come in infinite several times case,45 rejected Supreme depends Court defen ... on all of the their usefulness ” never can arguments surrounding that statistics facts and circumstances.’ dants’ Watson, of discrimina prima establish a facie case at 995 n. 108 S.Ct. U.S. (internal omitted). Rather, the held that statis tion. 2789 n. 3 citations evidence, tics, Moreover, bolstered other its when the Court has noted circumstances, “formulations, may, depending on the es which have never been prima facie case of racial discrim rigid tablish framed terms of mathematical 324, 338-40, formula, 97 S.Ct. consistently ination. 431 U.S. stressed that (1977). 1843, 1856-57, L.Ed.2d disparities sufficiently statistical must be However, cautioned that the Court raise such an infer- substantial depends on all of [of statistics] “usefulness ence of causation.” Id. at 108 S.Ct. at surrounding facts and circumstances.” 2789. 340, at Id. at 97 S.Ct. 1856-57. H. Class Actions and Res Judicata Importantly, Supreme Court has ex- (Claim Preclusion) Defenses

plained that neither the “courts or defen- obliged plain- dants to assume that [are] 1. Claim Preclusion reliable,” and tiffs’ statistical evidence is explained We cited, example, the weaknesses in- has formerly preclusion, referred to incomplete [c]laim in small or data sets herent judicata, gives dispositive res effect to inadequate techniques. statistical and/or issue, Trust, if a prior judgment particular a v. Fort Bank & 487 Watson Worth 2777, 2790, although litigated, not could have been 101 U.S. 108 S.Ct. (1988); Teamsters, proceeding. raised the earlier Claim L.Ed.2d 827 see also (1) judgment a final preclusion requires: 431 U.S. at 339 n. 97 S.Ct. at 1857 n. 20 (“Considerations prior involving; on the in a suit merits sample such as small size (2) course, parties privities the same or their may, of detract from the value (3) [sic]; evidence.”). subsequent suit based on such the same cause of action. rejected The Supreme Court also has particular Trucking Emps. Jersey the use of standard or Bd. Trs. deviations of N. Fund, “any alternative mathematical standard” Inc.—Pension Fund v. Welfare Centra, (3d Cir.1992) establishing employ- facie 504 prima case of 983 F.2d Indus., discrimination, (citing ment and has stressed that United States v. Athlone (3d Cir.1984)). Inc., significance substantiality of numer- 746 F.2d 983 Many prima 45. of the cases that discuss statistical statistics as facie evidence in Title VII Indeed, evidence as relates to establishment of a recog- we have cases is instructive. prima facie case of discrimination do so in "[although Supreme nized that Court has employment litigation the context of under issue, yet spoken on the the courts of not Though suggesting Title VII. we are not that a generally agreed par- appeals have prima necessarily requires Title VI facie case respective disparate ties' burdens in a Title VI plaintiff proof the same burden of meet impact developed in case should follow those case, plaintiff that a must meet in a Title VII Ridge, VII Powell v. 189 F.3d Title cases.” possibility, as we have no need to address Cir.1999). (3d 393 general of the usefulness of discussion

277 analyzing privies In whether these three ele- litigation earlier where the claim met, apply ments have been we not “[do] arises from the same set of facts as a claim conceptual mechanically, test but focus adjudicated on the merits in the earlier doctrine, purpose on the central of the “Moreover, litigation. judicata ‘res bars require a all plaintiff present claims only claims that brought in the arising out the same occurrence in a [of] action, previous but also claims that could ” single doing, piece- suit. so we avoid (internal have been brought.’ Id. citations litigation judicial meal omitted) conserve re- (quoting Davis v. Sup- U.S. Steel Corp., sources.” Sheridan v. Metals NGK 171). ply, Further, 688 F.2d fact “[t]he (3d Cir.2010) (quoting F.3d that several new and discrete discriminato- Enters., Churchill Star 183 F.3d ry events alleged does not compel a (3d Cir.1999) (internal quotation marks different result. A claim extinguished by omitted)) (in Athlone, quoting turn judicata res all rights ‘includes of the 984). F.2d plaintiff to against remedies the defendant respect to all or part of the explained We further have transaction, or series connected transac- take a ‘broad view’ of “[w]e what consti ” tions, out of which the action arose.’ Id. tutes the same cause of action” and that at 174 (emphasis original) (quoting Re- judicata generally thought “res to turn (Second) 24(1) statement Judgments on the similarity underly essential (1982)). ing giving events rise to legal the various (em Sheridan, claims.” 609 F.3d at 261 (Claim Application of Res Judicata Churchill,

phasis in original) (citing Preclusion) in 194) Class Actions Athlone, (quoting F.3d at 746 F.2d at 983-84). In analyzing similarity, essential explained We have that is “[i]t “(1) we consider several factors: whether judgment now settled that a pursuant to a complained the acts of and the demand class settlement can bar later claims based (2) ...; relief are the same whether the on allegations underlying the the claims (3) theory recovery same; of is the wheth the settled class action. This is true even er the witnesses and necessary documents though precluded the claim pre was not (4) ...; at trial are the same and whether sented, and could not have been presented, the material facts alleged are the same. It in the class action itself.” In re Pruden dispositive plaintiff is not that a asserts a tial Ins. Co. Am. Litig., Sales Practice of theory recovery different of or seeks dif (3d Cir.2001). 355, 261 F.3d 366 While “it ferent relief in the two actions.” Id. at 261 may seem at glance anomalous first ... (internal omitted) quotation marks (quot that jurisdiction courts without to hear ing Supply, Davis v. U.S. Steel 688 F.2d certain power claims have the to release (3d 166, Cir.1982)); 171 see also Elka part those ... judgment claims as of we drawy 169, v. Vanguard Grp., 584 F.3d the endorsed rule because it serves (3d Cir.2009) (“This 173 analysis does not important judicial policy interest of depend on specific legal theory in economy by permitting parties to enter voked, but rather [on] essential simi comprehensive pre into settlements that larity of the underlying giving events rise relitigation questions vent of settled claims.) (internal legal to the various quo (internal core of a class action.” Id. at 366 omitted).” tation marks omitted) quotation (quoting marks Grimes

Thus, judicata 1553, res bars a claim Corp., v. Vitalink Comm’ns 17 F.3d (3d Cir.1994)). litigated parties between the same or their 1563 278 injury fairly must be traceable to highly significant adding

It is defendant; challenged action of the subsequent to the class in a class parties (3) likely, opposed it must be as necessarily preclude par action does not merely speculative, injury that the will be satisfying prong from the second of ties Lujan, redressed a favorable decision. test, judicata parties that the the res 2136, 560, 504 U.S. at 112 S.Ct. at 2147 parties in the privies the same or (1992) Morton, (citing v. 405 Sheridan, Sierra Club See, e.g., 609 F.3d first action. 727, 16, 1361, 740-41 n. 92 (“The U.S. S.Ct. there are additional at 261 fact that (1972)). 1368-69n. 31 L.Ed.2d 636 See Nat'l II does not affect our parties Sheridan Ass’n, Collegiate Athletic 730 at 218. F.3d conclusion.”) (citing Gregory v. 843 Chehi (3d Cir.1988) (“The essence F.2d 119 injury An if it is “concrete” is against action of the cause of asserted real, palpable, opposed or distinct and proceeding in the state is not defendants abstract, merely sufficiently par and is “ parties.”)). of more altered the addition if ‘it in a plaintiff ticularized affeet[s] ” personal way.’ Jersey and individual New Standing I. Physicians, Inc. v. President the United III, § Article 1 of the Constitution States, (3d Cir.2011) 653 F.3d 238 judicial federal power confers on the (citing City L.A. Lyons, v. 461 U.S. courts, jurisdiction but their to cases limits 1660, 1665, 103 S.Ct. 75 L.Ed.2d 675 appropriately and controversies “which are (1983)) (citing quoting Lujan, 504 U.S. through judicial process.” resolved 1). at 560 n. 112 n. A S.Ct. 2136 Wildlife, Lujan v. 504 U.S. harm is “actual or imminent” rather than Defenders of 555, 560, 2130, 2136, 112 S.Ct. 119 L.Ed.2d “conjectural hypothetical” or it where is (1992) Arkansas, (quoting Whitmore presently actually occurring, or is suffi 1717, 1722, U.S. S.Ct. ciently imminent. The determination of (1990) (“[T]he L.Ed.2d component core elastic, is imminent what is somewhat but unchanging an essential standing is fair say plaintiffs relying part case-or-controversy require claims of harm imminent must demon III.”) (internal quotation ment of Article danger strate that face a realistic omitted)). marks It is well established sustaining injury a direct from the conduct bear the burden of demon they complain. (citing of which Id. Babbitt strating they standing in the Union, have v. 442 United Farm Workers Nat’l brought. 289, 298, action that have Dan See U.S. 99 60 S.Ct. Co., (1979)). vers Motor Co. v. Ford Motor 432 L.Ed.2d 895 (3d Cir.2005) 286, (citing F.3d 291 Storino dismiss, In the context of a motion to Beach, Borough v. Point Pleasant 322 “[i]njury-in-faet we have held that the ele- (3d Cir.2003)). 293, F.3d 296 ment is not Mount The Everest. contours injury-in-fact requirement, while not Supreme The explained Court has defined, precisely very generous, are re- that “the irreducible mini constitutional quiring only allege that claimant some [ ] standing mum of contains three elements”: specific, injury.” identifiable trifle of Dan- (1) particu- the invasion of a concrete and Co., (quoting vers Motor 432 F.3d at 294 legally protected larized interest and re- Wilson, Bowman v. 672 F.2d 1151 sulting injury in fact that is actual or (3d Cir.1982)). imminent, conjectural hypothetical; or (2) injury a Supreme explained causal connection between the The Court the differ- of, complained meaning and the conduct ence in the placed plaintiff burden on the

279 Oklahoma, satisfy standing requirement to the at Wyoming the v. 502 U.S. 468- stage compared 807-08, motion to dismiss as to the 112 S.Ct. 117 L.Ed.2d 1 (1992) (internal omitted) summary judgment stage, motion for (empha- citations follows: sis in original). pleading stage, general At the factual An organization or association allegations injury resulting from the may standing bring have a claim where suffice, may defendant’s conduct on a (1) organization itself has in suffered ‘presum[e] motion to dismiss we jury rights immunities and/or general allegations spe- embrace those (2) enjoys; asserting where it is claims necessary cific facts that are to support on behalf of its members and those individ claim.’ In response summary ual members have standing bring those motion, however,

judgment plaintiff claims themselves. See Common Cause of longer can no allega- rest on such ‘mere Pa., at organiza 558 F.3d 261. Where an tions,’ but must forth’ by ‘set affidavit or tion asserts standing its to sue on its own facts,’ ‘specific other evidence Fed. Rule behalf, “a mere ‘interest in problem,’ no 56(e), Civ. Proc. which for purposes of matter how longstanding the interest and summary judgment motion will be no matter qualified organization how taken to be true. And at final stage, in evaluating the problem, is not sufficient (if controverted) those facts must be by itself to organization render the ‘ad ” ‘supported adequately by the evidence versely ‘aggrieved.’ affected’ or Sierra Lujan, adduced at trial.’ at U.S. Morton, Club v. U.S. 92 S.Ct. (internal 561, 112 S.Ct. at 2137 citations 1368; Pennsylvania see also Prison omitted). Cortes, (3d Soc. 508 F.3d Cir. 2007). further has noted that: ‘Beyond the constitutional requirements, organization Where is assert judiciary the federal has also adhered to ing standing that it has on behalf of its prudential principles set of that bear members, claiming it is that it “repre has question on the of standing.’ One of sentational standing.” There are three re requirement plain- these is the that the quirements type standing: for this tiff injury ‘establish that he com- (1) organization’s members must (his plains aggrievement, or the ad- (2) own; standing to sue their him) upon verse effect falls within the organization interests the seeks to sought protect- “zone of interests” to be protect germane purpose, its ed constitutional statut[e] [or (3) neither the claim asserted nor the guarantee] whose violation forms the le- requested requires relief par- individual gal basis for complaint.’ his The ‘zone- ticipation by its members. of-interests’ formulation appeared first Soc., Pennsylvania Prison F.3d at brought in cases under 10 of the Ad- (citing n. 10 v. Apple Hunt Wash. State Act, ministrative Procedure 5 U.S.C. 333, 343, Adver. 432 U.S. 97 S.Ct. Com'n 702, subsequently but we have made 2434, 2441, (1977)); 53 L.Ed.2d 383 see clear that similarly gov- the same test Grp. of N.J., also Public Interest Research erns claims under the Constitution in Elektron, Inc., Inc. Magnesium v. 123 Indeed, general. we have indicated that Cir.1997). (3d 111, F.3d 119 strictly it is more applied plain- when a tiff proceeding is under a Regarding prong, ‘constitutional the first we have ex- provision’ ... ... plained Supreme that re- “[t]he Court has 280 Cir.2001) do (“Although Appellees not ad- generalized grievances that

peatedly held to large pro- standing, required at do not dress we are raise by public the shared standing,” plaintiffs with if such standing sponte issues of sua issues vide individual exist.”) (internal omitted). right “the to have that marks quotation and further the law in accordance with government act have surprising It is that we this hardly itself, insufficient, stand- support appellate [is] obligation as “federal inasmuch Rather, plaintiff at 120. ing.” Id. obligation to exam- courts have a bedrock allega- specific “make must organization jurisdic- subject matter ine both their own at identi- establishing that least one tions [, courts tion and of the district and] that had suffered would suffer member fied the most standing ‘perhaps impor- ... Inst., v. Earth Island harm.” Summers jurisdictional tant’ of doctrines.” Public In- 1151, 1142, 129 S.Ct. 173 555 U.S. (cit- at 117 Grp., 123 F.3d terest Research (2009). 1 L.Ed.2d Dallas, ing City Inc. v. 493 FW/PBS 596, rejected 215, 230-31, 607, the “formalistic also 110 107 We U.S. S.Ct. necessarily organization an argument” (1990); Reagan, v. L.Ed.2d 603 Chabal 822 standing pro- charter (3d Cir.1987)). [its] lacks “because F.2d 355 members,” having but rath- hibits from [it] upon have relied “indicia er in some cases ANALYSIS VII. analyzing membership” organiza- standing. See Public Interest Re- tion’s proce- Now that we have set forth Hunt, (citing F.3d at 119 Grp., search 123 facts, history, applicable dural law 2436-37).46 at 97 S.Ct. at 432 U.S. directly case address the this we issues plaintiff also have held But we appeal. raised first will discuss We litigation making expenditures advance correctly whether the District Court deter- sup- damage not suffer sufficient does and final mined the Gaskin settlement port standing. Fair Hous. Council of adjudication against claims barred the Montgomery Newspa- Phila. v. Suburban PD E. discuss whether Then we will CBP (3d Cir.1998).47

pers, 79 141 F.3d litigant has in this case. standing as Our “ third focus on the issue of will be whether Finally, jurisdictional ‘the issue ” 90-day statute of limitations IDEA’S time,’ by standing can be raised claims. plaintiffs’ Finally, bars the Blunt byor the court. party either a See Center any of the plain- we will whether discuss Diversity v. Biological Kempthorne, For (9th Cir.2009) tiffs still in the action when LMSD (quoting 588 F.3d Viltrakis, summary judgment moved for established v. 108 F.3d United States Cir.1997)) (9th Summers, racial prima facie case of discrimination (citing 488, 129 1142); presented under sufficient see Title VI S.Ct. also Steele U.S. and/or (3d Blackman, that the n. 4 evidence to demonstrate LMSD 236 F.3d "have, however, Hunt, appeals Supreme "it 47. Other Court held that courts injury over substance differenti- adopted would exalt form of whether the different views Washington Apple Ad- ate” between the State standing necessary flows to establish automat- Commission, vertising represented which ically expenses associated with liti- from apple growers suppliers, of all interests gation.” aligned But we have "ourselves Washing- membership in the State of whose litigation holding ex- those courts mandatory who paid dues and ton was damage penses alone do not constitute suffi- economically directly benefitted from Hous., standing.” Fair support cient to activities, and a traditional Commission's F.3d 78-79. organization. trade Equal violated the Protection bring Clause tiffs here a claim against the PDE in § Fourteenth Amendment violation of 42 under 504 of the Rehabilitation Act. that the U.S.C. 1983 so District Court J.A. vol. at 42.67. erroneously entered its October We conclude that the plaintiffs claims Judgment grant- Memorandum and Order against asserted the PDE in this case ov- ing summary in judgment favor of the erlap with the claims made in Gaskin. issue, part LMSD.48As of this last we will Though plaintiffs here advance theories of review abuse of discretion the District Gaskin, racial motivation not raised in the using Court’s determinations in the evi- claims “common here arise from a nucleus dence submitted on the motion for sum- operative facts” when compared to the mary judgment. in namely claims Gaskin: LMSD’s failure to provide a FAPE to by students mishan- A. The Effect of the Gaskin Settlement dling identification testing of stu- and/or Against on the PDE Claims dents for learning disabilities which re- in Thus, sulted incorrect placements. We conclude that the District release entered into in Gaskin bars the correctly held that the Gaskin set claims against here the PDE because the plaintiffs’ tlement barred claims Gaskin release covered arising claims be- against Although the PDE. the Gaskin tween 2005 and 2010 and included all plaintiffs basing their against claims present and students with disabili- future alleged supervisory the PDE on its failure ties within Pennsyl- the Commonwealth of and did not engaged assert that it in racial Indeed, vania. appellants acknowledge discrimination, the Gaskin class consisted most, all, though not of the plaintiff of “all school-age students with disabilities students in this case were evaluated indi- Pennsylvania who have been denied vidually and their IEPs formulated before appropriate free in regular education the Gaskin Arg. settlement. Tr. Oral classrooms with supportive individualized 11, 2013, June at 19:9-22. services, instruction, individualized and ac commodations need to succeed above, explained judica- As apply we res regular education classroom.” J.A. vol. ta preclusion and claim as a consequence at 42.64. allegations against PDE in agreements by settlement because doing this case strikingly similar to those so encourage we settlements and “serve[ ] against made it in Gaskin. As the District important policy judicial interest of Court summarized: economy by permitting parties to enter comprehensive into ‘pre- settlements that Gaskin, plaintiffs

As here claim relitigation vent questions settled at the the PDE violated the IDEA ” Prudential, core of a class action.’ failing identify children with disabili- F.3d at 366. We see no reason to depart provide ties and special needed edu- policy from that in this case. cation and related services and failing provide and members of In considering judicata the res issue we putative free, that, appropriate class a recognize although the Gaskin re- Gaskin, public broad,49 education. As in plain- lease suggestion was there is no Although we do not reach this issue with difficult to see we how would have come to a (as respect to the Blunts different result if we had brief No. 11- done so. 4201 filed on their behalf did not and could challenge judgment), summary Arg. it is 49. See Tr. Oral June at 28.1. 282 (11th Cir.2004) added); (emphasis see also attorneys repre- who that the

the record nego- Huskipower Equip. in not v. Outdoor the Gaskin did Davis parties sented (5th Cir.1991) length. Corp., at arms’ 936 F.2d 196 tiate the settlement (“[A] Moreover, in re- agreement district court Gaskin is an enforce- the settlement settlement; give the and a must accepted and contract to which court viewed able forego parties led the intent legal according parties’ the settlement effect they document.”); in could litigation which v. expressed additional in the Miller as (Pa.Su- positions with the advanced their A.2d 99 Ginsberg, 874 obtaining they perceived what hope of Corp. Lubrizol v. Exxon per.Ct.2005);50 (5th Cir.1989) than a more favorable outcome would be Corp., 871 F.2d them. agreement provided (where the settlement in lan- parties express their intent PDE that the claims agree with the We agreement in and were guage settlement Gaskin, case, in like those against it attorneys, skilled court represented alleged its failure to monitor deal with beyond language should not look programs carried out special education Moreover, agreement). as the understand Pennsylvania, including districts in school Appeals for the Ninth Circuit Court regarding testing of stu- procedures the Facebook, Inc. v. explained Pacific and special education services dents Inc., Software, 640 F.3d Northwest provision special aspects other (9th Cir.2011), agree- settlement entitled to education services students arising claims out of may ment release all them, and that the settlement covered the transaction with which the release was Arg. Tr. period from 2005-2010. Oral known; yet if are not concerned even 11, 2013, at 26:12-25. June and broad releases are valid least when negotiated sophisticated parties. between appellants recognize We Overall, from the terms of we are satisfied that the District Court here erred argue that it included the the Gaskin settlement parties’ intent in interpretation its here, the PDE and against claims made agree settlement entering into Gaskin barred them.51 thus the settlement Arg. Tr. at 21- ment. Oral June that, no as other 23. There can be doubt Standing Has B. Whether CBP held, evidence of “[t]he courts have best in this Suit52 is, course, ... the settlement intent The District dismissed CBP as Corp. S. agreement itself.” Norfolk Inc., Chevron, U.S.A., February in its plaintiff on its own behalf 371 F.3d appellants’ argu- agreements regarded We have not overlooked as 50."Settlement pursuant be considered Gaskin settlement could not bar contracts and must ment that the general interpretation. rules of contract after its effective date. claims that arose Rather, construing fundamental rule in a contract is reject argument we because give effect to the intention of to ascertain "future” settlement included claims of stu- Thus, adopt interpre- parties. we will necessarily it dents and therefore included which, circumstances, as- tation under all claims that arose after its effective date. reasonable, probable, the most and nat- cribes this subsection 52. As matter of convenience parties, bearing in mind ural conduct of Court, though largely for the but is written as accomplished. objects manifestly to be entirety represents in its fact this section language appearing Additionally, if the in the Greenberg, only Judge Chief the views of as agreement unambiguous, written is clear and Judge agree Judge Ambro McKee solely parties' intent must be discerned but, they explain of the section meaning plain of the words used.” from the aspects Miller, (internal opinions, separate their its conclusion A.2d at 99 citations omitted). standing. Although CBP not have quotation does marks 15, 2008 Order because the Court conclud- to its against claims the PDE inasmuch as “allege any ed that CBP had failed to Gaskin settlement may have foreclos- injury beyond whatsoever” to itself ad- claims, ed those its claim to have standing vancing insufficiently evidence that at best raises an addressed, issue that must be support could an inference that “the defen- it continues to assert claims against may dants’ conduct have caused ... [CBP] LMSD.53 organization^] to ‘suffer a setback to the CBP has not demonstrated that it suf- ” 1, social abstract interests.’ J.A. vol. at injury fered an conferring to itself stand- 42.33. The Court also determined in its and, ing, even if its claim is true it has 15, February 2008 Order that CBP had not members notwithstanding bylaws, its CBP test that Hunt v. Wash- met the three-part does not have standing to sue on their ington Apple Advertising State Commis- behalf. purpose CBP has a stated pro- sion indicated needed to be met for an “equity mote and excellence in the re- organization to sue on behalf of its mem- sponse of school districts to the needs of bers. The CBP failed in respect be- populations; diverse student to address it “providfe] cause did not the court with issues related to education for populations identity any alleged member or identified minority as African and/or Complaint the Amended that any of [its] American; monitor, identify, and to and members has an injury[, suffered and that inform parents about educational issues information,

w]ithout the court ha[d] impacting students, disadvantaged their no basis to organiza- conclude families community and the large.” standing to bring tion[] ha[s] claims on 1, J.A. vol. at 42.50. 1, behalf of [its] members.” J.A. vol. 42.33-42.34. Though complaint, CBP’s lack of stand- its CBP identified itself as ing may make no difference with respect having been “operating organization as an Ambro, Judge concurring opinion, ing, in his entering con- and in the second order the standing cludes that "CBP has to sue on its testimony. Court considered See note infra behalf,” own he also observes that “CBP has Indeed, great 57. there was a deal of discov- how, explained permitted were it to con- ery originally in this case after the Court case, plaintiff prevail tinue as a in the it could party February dismissed CBP as a where the individual Plaintiffs have failed.” opinion Judge and both this and Chief Judge Chief McKee writes that "CBP's likeli- opinion discovery. McKee’s refer to this bearing hood success on the merits has no Judge Judge Greenberg Ambro and see no Ambro, however, standing.” Judge on its did why participation reason CBP’s in the discov- support not make Judge his observation to ery process would have made difference Greenberg’s conclusion that CBP does not litigation the outcome of this somehow Rather, standing. Judge point Ambro's having enabled it to survive the motion for that, standing, even if CBP has it could not summary judgment if it had been directed save its case as it could not survive LMSD’s against regard, they point it. In this out that summary judgment. Judge motion for Green- groups plaintiffs goal both had the of estab- that, berg agrees standing, even if CBP had it lishing violating that LMSD had been anti- would lose on the merits. See note 62. infra anti-segregation discrimination and laws and Judge We note that Chief McKee sets forth regulations and so would have had the same "early stage” that CBP was dismissed at an objective discovery process. in the litigation opportunity and did not have the engage discovery.

to below, explain But as we "May have” is used because CBP was not the District Court considered the plaintiff a member of the class in Gaskin twice, standing proceedings issue once in though might regarded be so to the extent leading February to the 2008 Order dis- representational standing. that it asserts it has missing standing, again CBP for lack of point explored This need not be further. proceedings leading August again dismissing Order CBP for lack of stand- It, above. howev- purpose quoted and as ment of years,” about 13 in the LMSD for name, Pennsylvania corporation er, identify 11 of its members non-profit “a did ia, is, promote inter al purpose individually plain- whose named five of whom are response in the excellence equity and case, in this and it also identified itself tiffs of diverse to the needs school districts several more class mem- “supporting]” as issues re- populations; to address student individually named bers and populations identi- to education for lated meetings at school-related this case American; minority African fied and/or TAC, No. 2:07-cv- proceedings. court monitor, par- identify, and inform pp. Doc. No. 25-26. CBP also impacting educational issues ents about rise in great pains explain went to students, their families and disadvantaged years” in expenditures its “over the five large.” No. 2:07-cv- community at the because, relation to this case as discussed 2, 1, 23-24; J.A. vol. Doc. No. pp. above, or- expenditure by of funds bring the action “on claimed to CBP cause, ganization though on behalf of a not of its members.” its behalf and on behalf determinative, may factor that be is one its members at 25. CBP identified Id. resolving standing considered in issue. of generally as follows: members “[t]he alleged expenditures The on behalf CBP’s organization are residents of the Low- embodied in this case in- of the interests District and current and er Merion School cluded: parents or students of the Dis- former trict.” Id. at 510. The District Court (cid:127) of its resources to ‘host education- Use that, notwithstanding allega- noted these experts’ al and with the consultants tions, supplied documents stated CBP providing of information to purpose August that it had no members. See Plaintiffs, members, commu- class 2:07-cv-3100, Doc. 2009 Order at No. LMSD; nity and (“The bylaws specif- organization’s No. 123 (cid:127) in ‘sharp’ expenditures A rise over the ically Corporation shall have no state ‘[t]he years last five due to its efforts to ”). Nevertheless, prohi- CBP’s members.’ the adverse ‘protect its members from against having mem- bylaws bition in its impact’ quality of ‘the inferior of necessarily bers does not mean that education’; system dual LMSD’s standing plaintiff could not have as a on If behalf of its members. such a determi- (cid:127) as a result of Expenditure resources solely predicated nation were basis attending meetings its related strictly bylaws, it would advance the IEPs, ‘disciplinary Section 504 and rejected approach formalistic that we have meetings, hearings parent- court and in other cases. See Public Interest Re- teacher conferences with on be- and/or Grp., search 123 F.3d at 119. Nonethe- plaintiffs, half of various CBP mem- less, bylaws provide context to the do members; and class bers in analysis, particularly considering overall (cid:127) attempted has to create whether CBP facilitating Its efforts ‘Conciliation by standing changing for itself its struc- Agreement between LMSD and the expendi- membership ture and and its Pennsylvania Human Relations Com- response to the Dis- ture of resources promised, mission in which the District concerning trict Court’s observations its ia, dispropor- al inter to eradicate the standing. tionate of African Ameri- suspension compared to TAC, can students as White complaint

In the the last revised students’; case, change not its state- in this CBP did (cid:127) ‘high- Production of a 45-minute video ed because it had to significant devote

lighting inequality1; the issue racial identify resources to and counteract (cid:127) defendants’ racial steering. The Making public Supreme of ‘racial aware Court held that allegations, these if

graffiti symbols’ pro- prov which “were en, injury fact, would constitute an mulgated high at both LMSD school thus HOME had buildings’;54 standing and middle school to sue on its (cid:127) own behalf because the defendants’ prac community Publication of a newsletter tices impaired ability had its to provide

and ‘News Notes ... to disseminate services. Id. at 102 S.Ct. at 1124. the compilations alleged of data on’ However, organizations may satisfy racial disparities application of disci- injury requirement by fact measures, making plinary segregation by race expenditures solely for purpose of liti and ‘under achievement of African Hous., gation, Fair F.3d at nor American students in the Mer- [Lower District’; simply choosing to spend money fixing a ion] problem (cid:127) that otherwise would not affect educational, ‘organization’ ca- organization at all. La Asociacion de reer, test, aid, standardized financial Trabajadores de City Lake Forest v. college preparatory seminars. Forest, (9th Lake 624 F.3d Cir. 25-26; TAC at vol. at J.A. 3871-72. 2010). “It must instead show that it would if expenditures Even all of these were have suffered injury some other if it had legitimate, organ- CBP has not established not diverted counteracting resources to standing. izational An organization may problem.” Id. establish a “concrete and demonstrable in- jury” standing sufficient to confer if a de- CBP has failed to show how LMSD’s fendant’s “perceptibly impair” actions “perceptibly actions have impaired” its organization’s ability provide to services. very purpose mission.56 CBP’s relates to Coleman, Realty Havens Corp. directly LMSD, 455 U.S. actions involving and its 363, 378-79, 102 expenditures S.Ct. 71 were devoted to protecting (1982).55 Havens, 214 L.Ed.2d In the Su- students’ interests in their interactions preme Havens, Court nonprofit determined that a with In purpose LMSD. HOME’S organization promote equal formed to promote equality was to in the Richmond housing through counseling and referral area overall and its interests thus far went standing services had bring beyond to an action monitoring specific actions at charging operators of rental housing contrast, issue in the By Havens case. potential units had “steered” targeted LMSD, tenants to CBP is at only very so its certain properties based on race. purpose expend HOME was to resources to edu- alleged that its mission public had been frustrat- cate the regarding the LMSD’s be- were, however, symbols 54. appeal, It is not clear what these Judge of this inasmuch as them, promulgated why who the LMSD Judge Greenberg point Ambro and out that responsible should be held for them. No. explained CBP has not how it could win on 55, p. 2:07-cv-3100 Doc. No. 26. Thus, assuming the merits. even CBP does organizational standing, our ultimate agree supplies 55. We all that Havens holding would be the same. determining correct standard for whether an organization alleged injury has in fact emphasize 56.We that much of what we write standing. disagree, sufficient to confer We respect standing to reflects the views however, allegations about whether CBP’s only Judge Greenberg. are sufficient to meet that standard. This disagreement is irrelevant to the resolution 286 dis- Supreme issue because the (defining at 510 CBP’s

havior. J.A. vol. membership a means cussed indicia of membership as residents of LMSD students). establishing organization that an has Because it parents and LMSD at LMSD, at 97 S.Ct. all of CBP’s re- members. U.S. targeted at necessarily spent have been sources would has projects. CBP on LMSD-related Hunt, Supreme Court determined why particular litigation this failed to show by the that a commission created State mission, its or caused has frustrated represent promote Washington injury to its “concrete and demonstrable” apple advertising interests of that State’s appears alleged It that the ad- activities. constitut- growers, whose collective efforts consistent with expenditures ditional enterprise ed “a multimillion dollar which activities, it is thus un- typical CBP’s Washington’s plays significant role effect, any, litigation if clear the challenge a economy,” standing had expenditures. See Fair had on their dis- prohibiting North Carolina statute

Hous., (refusing at to con- F.3d 77-78 play apple grading codes on boxes standing summary judgment at where fer at apples shipped to North Carolina. Id. present evidence that it plaintiff failed Washington at 2438. The S.Ct. operations altered its or diverted resources system been in apple grading State had Havens, litigation); at based on U.S. place years, stamp for over 60 and the (explaining at 1124 S.Ct. reflecting apple grading selling was a interests” do not con- mere “abstract social point Washington apples because State Club, standing (citing fer Sierra 405 U.S. good reputation apple of that State’s 1368)). has simply 92 S.Ct. CBP growing regulations. But due to the struc- not established that the LMSD’s actions industry, ture of the it would have been its efforts to fulfill its mis- have frustrated pack apples unstamped difficult to some Thus, standing sion. has not established boxes and ensure that were sent on its own behalf.57 sue Carolina, ensuring North while stamped separated it and not CBP also has not established that has boxes were members, 337, if at standing shipped to sue on behalf of its to North Carolina. Id. any. at Washington Supreme it has Hunt v. State S.Ct. 2438-39. The in of that Apple Advertising Commission is a useful found that the circumstances Washington Apple in of this case58 the State Adver- starting point the consideration above, supra summaiy judgment. 'Simply put, summary 57. As we state see note standing judgment procedural a chance District Court considered the issue is not second ” twice, inadequate pleadings.’ proceedings leading to flesh out 624 F.3d once in to the Feb- (internal omitted) (quoting ruary dismissing at 1089 citations CBP for lack 2008 Order Techs., Inc., Prods., Wasco Inc. v. Southwall standing, again proceedings leading in (9th Cir.2006)). not 435 F.3d This is August again dismissing 2009 Order say plead- plaintiff that a never can cure a standing. CBP for lack of This latter consid- ing respect standing re- to a issue in testimony. pars- eration included The dissent detail, sponse summary judgment to a motion for testimony Judge es this Green- Rather, challenging standing. the court of its berg analysis. likewise considers it in his However, appeals’ appropriate comments are in the cir- may simply plaintiff a not make cumstances of this case. repeated complaint to "fix” amendments to a standing regard, issue. In this the court’s here, reasoning Trabajadores presented in La de is 58. “Under the circumstances Asociación plaintiff] may effectively to differenti- instructive: not would exalt form over substance "[A Washington [c]omplaint by raising theory ate between the Commission [as amend its a new standing response government-mandated organization] and a in its to a motion for a had tising standing bring suggest Commission able to organiza- such an challenging the action the North Carolina tion standing lacked to assert the claims 344-45, at 2442. statute. Id. 97 S.Ct. of its constituents. explained apple

The Court “while Id., 97 S.Ct. at 2442. growers and are not dealers ‘members’ Further, the Court noted that the Com- in the traditional trade Commission mission strong had a direct interest sense,” association because their member- litigation, because its depended existence ship voluntary, not but rather was was on the economic health of Washington statute, required by “they possessed] all apple-growing industry. Moreover, State membership organi- the indicia of an assessments based on the apples zation.” Id. at at 2442. volume of S.Ct. grown packaged provided the Com- determination, making the Court funding mission’s and the North Carolina only noted that Washington apple State regulation expected great was growers and dealers could elect the mem- economic impact on the Washington State Commission, bers of the and that Id., apple industry. 97 S.Ct. at 2442. growers and dealers alone financed its ac- tivities, costs, including litigation through Though Hunt, appellants rely heavily on mandatory assessments levied on them. Judge Greenberg believes that it clearly is 344-45, Id. at S.Ct. 2442. The Court distinguishable. CBP is not funded very sense, found that real there- “[i]n through mandatory assessments of African fore, represents Commission the American parents students or their resid- growers State’s provides and dealers and Further, ing the LMSD. funding CBP’s the means which express their directly is tied to a clear economic protect collective views and their collective interest which will be affected the out- interests.” Id. at 97 S.Ct. at 2442. litigation. come of this analogy The of a statutorily- Court reasoned that organization traditional trade discussed in participation apple mandated growers simply Hunt is not relevant to the CBP’s through and dealers assessments did not position Moreover, in this case. in an bar having the Commission from standing, entirely setting, different the Court based analogizing that its decision in Hunt on the circumstances union, [mjembership in a equiva- or its case, of that including analysis of how lent, Likewise, is often required. mem- organiza- Commission functioned as an association, bership a bar may which tion.59 State, an agency also be often

prerequisite practice Although appellants to the of law. Yet amended their com- in neither instance it plaint would be reason- after the District Court’s dismissal representing traditional trade quired party association in- have to be to this suit in order growers collectively dividual and dealers who requested to benefit from the relief than the Hunt, constituency.” form its 432 U.S. at required par- constituents in Hunt were be to 345, added). (emphasis 97 S.Ct. at 2442 ties to benefit receive the benefits there.” that, problem with this statement support In of his contention that CBP has though non-parties may it indicates that bene- standing, Judge Chief McKee indicates that if any declaratory injunctive fit from or relief discriminatory CBP “can establish both the obtains, standing inquiry that CBP address- practices alleged, any and resultant harm in- party es different matter of whether a can junctive declaratory surely or relief would in- Judge Greenberg seek that relief. believes ure to the benefit of African American stu- that CBP cannot do so. parents dents and in the school district. parents These students and are no more re- 288 injury necessary ture to maintain a alleged to several indi- the CBP name

(cid:127)of on expenditure suit from its of resources plaintiffs, CBP’s CBP members vidual otherwise, that very suit. Were the rule it state that does organizational documents any injury by in fact litigant could create Moreover, even have members. not case, and Article III would bringing a also added statements though appellants Hous., present no real limitation.” Fair complaint asserting the CBP to the (quoting Spann 141 at 79 v. Colonial F.3d this making expenditures related to was Vill., (D.C.Cir.1990) Inc., 24, F.2d 27 899 lack after the District Court noted the suit (internal omitted)); quotation marks see litigation of the impact of economic Kennedy Ferguson, also v. 679 F.3d CBP, supply this does not amendment Cir.2012) (8th 1003 for (citing Spann It is clear that a non- standing. for basis costs proposition litigation-related are in a entity standing cannot create profit injuries assessing for the of purposes no direct in which it has economic lawsuit standing bring an to suit on organization’s by representatives at- having interest its behalf); Dev., AHF Cmty. its own LLC v. meetings regarding the issue that the tend Dallas, City 633 F.Supp.2d 294 of suit, entity by intends raise in the to (N.D.Tex.2009) (“The Fifth Circuit has making expenditures pub- to “educate” the organization ‘bootstrap held that an cannot regards it as the factual or lic on what claiming on its standing’ by a drain re As legal agenda. for its the court basis result of incurred sources as a costs for v. said Center Law Education for particular lawsuit in which asserts Education, Department States United of City Philadelphia standing.”). of (D.D.C.2004): F.Supp.2d 24-25 U.S.A., Corp., F.Supp.2d Beretta inju- Without concrete and demonstrable (E.D.Pa.2000), the court district made activities, however, ry groups’ evi- following convincing statement organizations’ dence of drain on the respect standing: to artificial injury- to resources does not amount disturbing organiza- It is also standing purposes.... in-fact for [A]n argue they may tional sue pursuit in the organization’s expenses of the costs educational sessions and agenda self-effectuating its ran to programs other which coun- [claiming injury-in-fact] them as would gun By logic, any teract violence. any to advocacy group allow manufac- organization may social action confer standing choosing to by expend ture re- standing upon by voluntarily itself against policy sources advocate deci- money spending problem on the social government. sions made the federal its the environ- Analogously, choice. Otherwise, the implication would be that group Lujan mentalist [v. Defenders organization wishing individual or Wildlife, 504 U.S. 112 S.Ct. involved a lawsuit could create a be (1992)] would L.Ed.2d corporation purpose conferring for the standing protest endangerment standing, bylaws or could so that the adopt Lanka simply running wildlife Sri expressed corporation an interest in the programs preserve foreign fauna. case, matter subject spend then expan- be a and vast This would novel way standing. into having its liability for sion of associational which the Housing plaintiffs precedential Fair discussed artificial no have advanced standing, quoted pruden- creation of and cited and also the support. It contradicts standing tial approval with case that noted that concern behind the doctrine “[a]n cannot, course, that courts not become for the organization of manufac- vehicles ideological of academic of advancement and determination whether this case should agendas. be certified as a class longer action is no case, an in this issue the District Court’s overcoming In addition to not the fore- explanation highly of the na- individualized its stand- going problems respect to ture of claims these is instructive on this ing, satisfy does not the third re- CBP point. last It readily should be apparent for an to quirement organization have anyone that, to reviewing this case in view members, to standing sue on behalf of its of complex varying the and facts asserted namely organi- that neither the claim the myriad for the individual students and the asserting request- nor zation is “the relief legal presented theories in the District requires participation ed the of individual Court, Court finding the was correct Hunt, members the lawsuit.” 432 U.S. that it would have been inappropriate to 97 S.Ct. at 2441. if Even the certify case as a this class For action. analysis regarding District Court’s CBP’s reasons, many same the this facts of lack of members and its attenuated claims organizational representation case make of injury of did not that CBP demonstrate plaintiffs the individual insufficient without standing, considering did have after personal participation litiga- their in this this third criterion it that the is clear all, particular tion. After of aspects District Court reached result. the correct each needs, student’s educational indeed accepted It is an principle “[b]ecause that very individualized character of the monetary usually require claims for relief IEP application of and FAPE indi- to an participation, individual courts have held needs, vidual necessarily student’s means cannot generally associations raise these addressing the diverse factual asser- claims behalf of their members.” require tions this case would individual Pennsylvania Psychiatric Soc’y Green from each in- participation litigant student Servs., Inc., Spring Health F.3d volved. (3d Cir.2002).60 Here, plaintiffs individual student are Significantly, prong the third monetary seeking prudential, reimbursement for re- Hunt test is not constitutional. they already medial courses either Food & See United Commercial Workers take, Inc., they taken or wish to have and Union 751 v. Brown Grp., Local 544, 555-56, 1535-36, necessary contend were because U.S. S.Ct. (1996). provide LMSD’s failure to with a them 134 L.Ed.2d 758 As the Supreme analysis FAPE LMSD’s incorrect explained, inquiry is designed they learning Although jus- disabled. ensure that sufficient reasons exist to injunctive prospective litigat- 60. Plaintiffs did seek capable affected are individuals TAC, including pro- injunction ing rights relief in their on their own behalf. More- hibiting over, placing Pennsylvania Psychiatric LMSD from Ameri- Society, African special programs compensatory injunc- can students in education distinction between and disability” justified by or not "whether have a tive was relief the need for assur- forcing identify remedy, the LMSD granted, and evaluate ance if inure that "the will may African American students who the benefit those members of the associ- improperly placed actually injured.” been lower-level ation 280 F.3d at 284 courses, Hunt, monitoring training as well (quoting 432 U.S. at 97 S.Ct. 2441). parents Although programs for staff. J.A. LMSD the relief would benefit below, members, actually 533-34. As we discussed in- because CBP's members suit, jured already parties parties individual are It to this suit. prudential conferring unnecessary concerns restrict thus for the CBP to have stand- standing representational ing rights. because on the CBP to vindicate their needs, those needs were whether unique pre “background the from tify departing Dis- met, the School the extent which may not assert litigants ... sumption with a that student provide trict failed to and parties,” third of absent rights the and free, public education appropriate of administrative on “matters thus focuses compensatory edu- amount proper at efficiency.” Id. and convenience any deficien- necessary to redress standing cation claim to CBP’s at 1536. 116 S.Ct. each analysis of The individualized mem cies. claims of its on the grounded is history and needs educational also student’s are students—who bers—individual be finding that a class would precludes a other lawsuit. Unlike in the plaintiffs by this court. efficiently managed standing organizations, on conferring cases case are not absent. this plaintiffs at No. 2:07-cv- 2009 Order August suing on behalf See, (organization e.g., id. 3100, Doc. No. 123. members); Hunt, 432 U.S. at of its findings regarding The District Court’s (same); Psy Pennsylvania at S.Ct. the factual ba- nature of the individualized (same).61 at 280 Soc’y, 280 F.3d chiatric directly go claim plaintiffs each sis for here—compensatory sought The remedies stand- organizational for prong the third individual injunctive—will benefit that, organiza- for an requires ing, which already parties to the that are plaintiffs standing behalf of its assert tion to litigate this Permitting the CBP suit. members, participation their individual members, when those of its case on behalf unnecessary. It is must be the lawsuit already parties to the lawsuit are members highly individualized very clear does not fulfill right, in their own claims, the plaintiffs’ components “ad to focus on guidance Court’s Supreme IEP and history plaintiffs of each complex efficiency” in ministrative convenience evaluations, changes in under- standing. United determining prudential status, disability led her standing of his or

Food, 1536. 517 U.S. S.Ct. correctly that to conclude the Court explained: the District Court participation As in this individual students’ Thus, the Court required. lawsuit was education compensatory amount of appropriate not an that CBP is plaintiff and believed necessary for each named litigant for individual stu- highly representational require class member would parents.62 their dents inquiry into that student’s individualized and/or schools, larger than the eleven a class far plaintiffs parties to that the are 61. The fact " joined By parents actually the suit. con- who distinguishes 'the this case from the suit trast, a much group at issue here affects organizations have long in which line of cases ” capable who are all set of students Judge smaller rights’ which civil sued to enforce that, a class. joining as individuals or as the suit It is dissent has referred. true McKee's circumstances, organizational many an (and Although dismissal of the District Court’s may only) mecha- plaintiff be the best standing lack of is be- large CBP’s claims due to against a which discrimination nism Judge Greenberg, if even lieved correct may be remedied. How- group of individuals standing ever, it would not be successful CBP had here—individual where—as behalf, light disposition of the of our brought courts in this case suit on their own We, however, appeal. will making exception other issues in justified deciding standing issue on may not avoid parties not assert general rule that third moot, necessity ground for the Ridge, that it is rights. Although, in Powell their standing jurisdictional and (3d Cir.1999), party to have for both indi- claims F.3d 387 always appeals must deter- per- a court of organizational plaintiffs were thus vidual and court from which the challenged mine if the district proceed, state the suit mitted to jurisdiction. appellant appeal had Philadelphia took the affecting policy all students in

291 90-day C. The Blunts and the Statute of concluded that claims the were time- IDEA, under the as Re- Limitations barred because Amber Blunt graduat- had by vised the Individuals Disabili- high 9, 2005, ed from school on June and Act of Improvement ties 2004 the original complaint in this case was filed 30, the July 2007, District Court on contrary Appellants argue, now to their years more than two after Amber suffered original contentions in the District Court alleged injuries. 1, her J.A. vol. at 42.28. amended, in their complaint even that The challenge Blunts do not disposi- this five plain- or six63 of the individual student tion. But the do challenge Blunts learning disability tiffs do not have a and holding Court’s 90-day that IDEA the LMSD identified them incorrectly and statute of placed them in limitations barred their IDEA special education classes. Nonetheless, the IDEA claims. we discuss statute limitations, 2004, as revised because determination, reviewing this we note it appears that the Blunts still seek a re- following timeline: the LMSD denied covery under the IDEA based on the con- request Blunts’ for “transitional ser- tention that Amber was identified as dis- 8, 2005, on April vices” request- Blunts abled but challenging accuracy without ed a process hearing due under the IDEA of the identification with respect to that 11, April 2005, on two-day hearing fol- Accordingly, contention. it is not clear lowed, Hearing and the Officer issued his litigation joined Amber in this has 25, decision July on 2005. Id. at 42.23. all respects other with the students now Both the Blunts and LMSD filed ex- identifying as having themselves been in- ceptions Hearing Officer’s decision correctly identified as disabled. with an Appeals Panel which issued its 15, February Order, In its 31, ruling August Therefore, on 2005. Id. the District Court found that the Blunts’ for purposes calculating the time al- ADA, RA, VI, § Title 1983 claims lowed the statute of limitations for the

were barred on a different basis than their IDEA, Blunts to file their action under the 1, IDEA claims. J.A. vol. at 42.21-42.29.64 31, their August cause of action accrued on conclusion, In reaching its ap Court 2005. plied Pennsylvania’s two-year statute of The argue 90-day Blunts that the injury limitations for stat- personal actions to ADA, ute of an RA, VI, the Blunts’ limitations for IDEA claimant Title adversely claims affected applicable because the federal stat administrative de- bring utes did not cision to suit in governing include statutes of state federal court case, limitations with does not respect apply though these claims. to their even Phila., City See Sameric this Corp. v. statute of limitations became effective (3d Cir.1998). 582, 1, F.3d July 2005, 598-99 on and the decision in their indicated, already analysis 63. As we depend figure new being does not on the theory prepared by rests on an evaluation five or six. psychologist plaintiffs engaged plaintiffs. Arg. 15, Order, evaluate the student Tr. Oral February 64. In its the District 11, 2013, During June argu- at 36-38. oral Court noted that the Blunts conceded that ments, IDEA, appellants’ attorneys put one of against their claims ADA and RA PDE appellants number of students who untimely, claimed were but contended their IDEA, incorrectly were classified at five but against the oth- ADA and RA claims the LMSD attorney put er at timely. the number six. Tr. Oral the School Board J.A. vol. 12, 11, 2013, 14, 19, Arg. June 36. Our 42.29. until August final Au- case became on December administrative revisions, with the and an They argue we should become familiar gust their days this result because filed after August reach additional 90 hearing April request process for due action. which file their 2005, 8, change in limita- before the the propo- The cites Steven I. for the LMSD Therefore, the be- period. Blunts tions limita- two-year sition the statute of that an version of the IDEA lieve that earlier process hearings due is governing tions their IDEA claims would under which applies extent it to retroactive to the that apply in their timely have been should effec- proceedings pending when it became view, 90-day their apply case. In to the tive. It further contends that the seven 1, July of limitations effective on statute the enactment of this new months between 2005, their be an impermis- case “would limitations its effective date statute of and IDEA application retroactive of sible gave notice potential claimants sufficient 1, They at 42. amendments.” J.A. vol. 20. so did not application that its retroactive unique their case is because assert contend, violate The Blunts process. due applying there has been no other case the however, I. applicable not Steven is in of limitations a situation in which statute two-year that case dealt with the because process hearing the administrative due re- an ad- bringing statute of limitations for the 2004 IDEA quest was made before IDEA, claim under rather ministrative the effective, fi- amendments but the became than at specific the statute of limitations was nal administrative decision rendered issue, i.e., 90-day for statute of limitations the amendments had become effec- after bringing a state or federal suit after re- Thus, they 90-day contend that the tive. ceipt of an adverse administrative determi- of not their statute limitations should bar convincing- Blunts nation. But the cannot claims. IDEA ly explain why analysis an the regarding We, however, the agree with District limitations, in 90-day of statute embodied Court, persuaded” which “[was] 1415(i)(2)(B) § applicable U.S.C. and “[t]he their contention because date that judicial filing challenge the of a in a state hearing requested the was irrelevant.” or federal to an administrative deci- court 1, Rather, J.A. vol. 42.23. we look at sion, analysis should be different from an of in the statute limitations effect on the validity of the of the time changing decision, of the final administrative date period bring in which an administrative 31, Indeed, it August might be IDEA, claim in 20 under the embodied why apply- we would asked even consider 1415(f)(3)(C). considering In U.S.C. period other limitations as the ing out point matter we that the amendment brought could IDEA Blunts not have their 3, 2004, of the IDEA on December which August action before 2005. Conse- 1, 2005, July took effect on dealt with both when Blunts’ federal quently, the cause periods. limitations arose, 90-day action statute limita- reasoning employed We that the find we effect, they brought was in tions when applicable I. is In that Steven here. July their case in District Court on Texaco, analysis case on the we relied it untimely. was Inasmuch as Short, Inc. v. 454 U.S. at 102 S.Ct. setting period law forth the limitations Short, spoke 793. In Texaco the Court changed on December and became fairness, balances the July change issue of which effective a hardly grace period shortening need when applied abrupt to them was for months, in- from with the need for period, left the Blunts with nine limitations vigilant effect, be jured parties protecting statute of limitations was rights: their their court action federal cause of did not adjust- accrue under the IDEA until upheld retroactive final Court has when administrative period only ments to a limitations decision their case. We provided pe- has legislature grace reiterate the Blunts cannot adequate- during potential plaintiff riod ly explain why reasoning which in Steven I. reasonably expected be could to learn be applied should not in a consideration of change in the law and initiate then 90-day the effectiveness of the statute of retro- his action. context of a limitations was enacted at the same limitations, spective reason- statute two-year time as the statute limitations grace provides adequate able an period bringing administrative action ad- guarantee Having of fairness. suffered in Steven I. dressed The fact is that the a triggering injury, po- the event of an simply Blunts a convincing not made tential is a plaintiff likely possess to argument applying for the two statutes of heightened to possibly alertness the limitations the same amendment to the bear- changing requirements of the law completely ways. IDEA in different ing on his claim. Because redress nec- essarily depends on recourse the to Appellants D. Whether Established judicial system, State’s is free State a Prima Facie of Racial Case to intervention condition its on rules Discrimination further, procedure, on the impose to potential moni- plaintiff obligation to deal now with appellants’ We chal Plaintiffs, tor those changes in rules. lenge summary to the judgment rendered attorneys, their so aware. against § them their 1983 and Title VI 549,102 Id. at at 802. S.Ct claims, allege which that LMSD inten tionally against discriminated them be We therefore concluded in Steven I. that explain cause of their race.65 Appellants in that case had been afford- that case ultimately upon rests ample “[t]his ed time make aware themselves simple question: quantum What evi two-year the new statute of limitations plaintiff injury produce support measured from date of seek- dence must for ing an racial administrative review under the IDEA. inference intentional discrimi similarly plain- We order a summary conclude the Blunt nation in to overcome tiffs ample opportunity judgment Appellants’ had to familiarize motion?” No. 11- addressing limi- 21. In 90-day themselves with the statute of 4200 br. at the discrimi claims, that, judicial responds tations with nation respect actions. LMSD fact, contentions, contrary plaintiffs’ we even whether to the question applica- they (1) tion 90-day “presented of the statute of limitations no evidence to establish: regarded this case should ‘lower lev be retroactive the classes took were (2) grade-level’ inasmuch Blunts ‘below as the did not receive el’ LMSD and/or any discriminatory until specific administrative decision after the new maintained cus- § plaint 65. The the CBP are extent the Blunts and not involved under 1983 to the com- summary judgment IDEA, ADA, with the as the District plaint was based on the or RA Court dismissed their claims before it consid- plaintiffs' because dismissed summary judgment. ered the motion We for Blunts, claims, than those of the under other appeal respect also note that the for those laws failure to exhaust administra- summary judgment on the does 1983 claim tive remedies. aspect plaintiffs’ not include the com- (3) students that African American evidence “that simi- tom, policy; or practice or in a statistical sense overrepresented were were students larly Caucasian situated classes, given the rec- special education Indeed, is the record differently. treated finding that way to avoid a we see no ord placement class evidence that replete with needs educational each individual student’s students the decisions of ... driven is through a and satisfied were assessed Thus, at 36. LMSD’s br. parents.” process. There thorough and individualized ... no argues “[t]here the LMSD that the evidence to show is not sufficient evi- have no direct that Plaintiffs dispute responsible educators and administrators Id. at 37. discrimination.” dence of to discrimi- students intended placing any that “if there is argue Appellants their race. them because of against nate from which a rea- in the record evidence Moreover, that LMSD in order to show favor [appellants’] in the sonable inference indifference, appel- deliberate acted with drawn, simply moving party may be knowledge of that it had lants must show summary judgment.” Ap- cannot obtain violations, but there is no evidence rights reply br. at 5-6 No. 11-4200 pellants’ or that suggest record to did in the Rental v. Cort Furniture (quoting Aman engaged party under its control third Cir.1996) (3d 1074, 1081 Corp., 85 F.3d Davis, discrimination. See in intentional omitted)). (internal Ap- quotation marks 646-47, (finding 119 S.Ct. 1661 526 U.S. at (and that “[LMSD] then conclude pellants may be met where indifference deliberate Court) accept required the District but knows of intentional harassment school any legiti- testimony of record and the [all] act.) the argue that Appellants fails to it, from Appellants draw mate inference wit- improperly assessed District Court they agreed with of whether regardless its sta- credibility, and discounted nesses’ not,” that the or those inferences argu- discuss these tistical evidence. We not have been LMSD therefore should below, the ultimately agree but ments at 5-6 summary judgment. Id. granted record is insuffi- District Court that the removed). As stated emphasis (appellants’ a issue of mate- genuine cient to establish above, summary ruling on a motion intent. regarding rial fact LMSD’s court must view judgment a district infer- underlying facts and all reasonable by the Rejection of Certain Evidence most favor- light therefrom ences Alleged Impermis- District Court the motion. party opposing able Evidence sible Reliance on Other disputes— factual and material Genuine Hearing. a Daubert Without that bear on an essential meaning those above, review a dis As stated we of the claim-where element admissibility of trict court’s decisions in favor of the of fact could find trier stan under an abuse discretion evidence nonmoving party must be considered made known to the party dard where a favorable to the non-mov- light most court of the evidence district the substance ant. Thus, in consider it desires to introduce. judg- summary to ing application LMSD was entitled a district court’s Evidence, sug- to reverse there is no evidence Rules of we will ment because Federal “ a firm acted with is a definite and only either that LMSD itself where ‘there gest intent, committed that it knew of— that the court below discriminatory or conviction judgment in the conclusion party’s inten- a clear error of failed to correct—a third but S.H., of the relevant upon weighing it reached 729 F.3d discrimination. See tional ” Here, we 234 F.3d at 146. factors.’ present some Although appellants at 264. Oddi other personnel specific that Court did not conclude the District refer bullet points or, indeed, presentation. from the MAP judgment, a clear Id. at make error of 1414. Dr. responded Moore-Williams that at all in any error its consideration she had heard teachers or personnel other that, trial, evidence, proffered refer to some of the bullet points. Id. evidence could not have been excluded however, Crucially, Dr. Moore-Williams up- admissible. therefore will made We did testify the MAP presentation about rulings all of its regarding disput- hold explains she that she had heard itself— ed evidence.66 personnel LMSD general discuss in concepts in the presentation, a. The MAP Presentation raised but that does not who establish prepared the District Appellants contend presentation, or whether LMSD ever used improperly powerpoint discounted Indeed, or for what purpose. even when presentation discussing “Minority Moore-Williams indicated she had (MAP). Program” Achievement J.A. vol. heard of certain points, bullet she noted 1836-39. The presentation included a they were not related to African list of bulleted characteristics African (ex- American students. See id. at 1414 American students and how teach them classes, plaining, with respect “active” effectively. We assume contention that she had not “heard about it in refer- LMSD, presentation, that this if used students”). ence to African-American At provide of discriminatory would evidence most, testimony her relevant to the ex- intent, or deliberate indifference to a third tent that she from personnel heard LMSD party’s discriminatory intent. Yet we do teaching used different strate- any not see record from which evidence we gies for particular students. But although could conclude that the LMSD ever used purposeful may use of such strategies implemented presentation. or show racial repugnant, bias and would be presentation does not contain indica- not, it is suggests, as the dissent sufficient or tion who authored it how it is con- created, used, to show that im- LMSD Instead, appellants nected the LMSD.67 plemented presentation. the MAP Final- rely testimony on the of Dr. Barbara ly, the MAP presentation does not show Moore-Williams, an consultant education that appellants suffered intentional dis- by help it develop retained LMSD to “cul- crimination; placement it does discuss 4, proficiency among tural staff.” J.A. vol. and, discussed, in lower-level classes as Appellants attempt at 1411. to use her there is no that these concepts evidence testimony for to purposes: two show that applied to LMSD’s individualized used implemented LMSD and the MAP special placement education decisions. and to intent. presentation show Reschly’s Report b. Daniel deposition, In Dr. ap- Moore-Williams’ pellants’ questioned counsel her about Appellants argue “[t]he District she had LMSD Court failed a whether heard teachers or erred when it to conduct hearsay We provided have not such cases overlooked as Lex that the evidence could be Here, however, ington Pennsylvania made Insurance Co. v. Western admissible at trial. we (3d Hospital, see no bases which the in 423 F.3d 329 n. 6 on deficiencies the Cir. 2005), been cured Borough, evidence could have at the trial. and Williams v. West Ches of ter, (3d 1989), 891 F.2d Cir. 465 n. in assessing which we indicated court points that a 67. The out that the MAP dissent was opposition summary judgment produced during by discovery, to motion for but LMSD we might anything consider cannot from this unauthenticated documents or assume fact. 13; on 2:07-cv-3100 Doc. No. 180 J.A. hearing but still relied the No. Daubert Reschly’s defini expert Daniel at 16. District’s vol. Appel principles to undercut tions and Reschly’s wording this use find of We of discrimination lants’ statistical evidence disproportionality define to be immaterial further con Appellants District.” the litigation. of to the outcome this Dis- Reschly’s report portions of tend that “the trict did not draw inferences fa- Court by the form upon District Court relied definition, of either side from this vor paragraphs two of the basis the part observe, which, very straightfor- we seems in appel specifically that are referred Further, of risk concepts ward. and order,” of and thus District lants’ form commonly relative ratio are used risk/risk hear holding in not a Daubert Court erred terms, and the Court described statistical motion in limine directed ing on a definitions in the October these Reschly report. No. 11-4200 Appellants’ give Judgment Memorandum Order at 34-38. Daubert v. Merrell reply br. See understanding the reader basic Pharm., Inc., 579, 113 S.Ct.

Dow 509 U.S. plaintiffs presented data that the statistical (1993). Appellants 125 L.Ed.2d 469 opinion goes the District which Court’s “Reschly’s opinions should contend “adoption” no to discuss. We find other place appeal, have no as should Reschly’s principles, views notwith- place have had no in the District Court’s appellants’ objection to the use standing grant summary judgment with decision to above, As report. his stated the Court provides yet This hearing. out a Daubert plaintiffs’ another basis to and remand denied motion to exclude Resch- reverse moot, ruling.” Appellants’ District Court’s No. ly’s expert report as Court However, reply appel 11-4200 br. at 38. regard- to make a was able determination specify do not lants the “definitions” pri- ing presented whether had “principles” District Court judgment summary ma facie case its adopted Reschly’s report. from analysis report. the use of the without objec- may appellants’ specific

It be that regard Reschly’s report tion with lies the District Properly 2. Whether paragraph one of the October Light Evidence Viewed Order which Judgment Memorandum Most Favorable to the Plaintiffs as Reschly’s consisting refers to report, Non-movants and Whether Plaintiffs commonly phrases studying used those Established a Prima Facie Case of implementation disability education Discrimination. para- and services under the IDEA. The that, Appellants argue when the graph reads: in light facts are viewed the most favorable Disproportionality ‘signifi- is defined them as in the to non-movants District cantly greater participation in lower Court, they prima established a facie case groups more special by education one or applying § under Title VI the compared to the rates for participation Thus, Equal appellants Protection Clause. groups.’ preferred other The methods that the in granting contend Court erred analyzing disproportionality risk summary judgment them on against their and relative risk or risk ratio. Risk is bases, as it predicated claims on these by dividing calculated the number of light “to view evidence in the refused most particular students with a disabilities No. Appellants’ favorable to 11- group by [them].” the total number of students in out, at reply point br. howev- group. that We er, lants—opposing summary to view the a motion for obligation that a court’s judgment produce favorable to a has the burden to evi- light in the most evidence does not supporting the court to dence its case require respect with non-movant that not be material facts of the case on which it has account evidence will take into Thus, in of proof. Appellants at the trial. consider- burden contend admissible argument respect they they with to that met this burden because did ing appellants’ evidence, we take into offer more than a scintilla of evidence in adequacy support of their case and that a holdings respect account our with reasonable District fact uphold in which we finder could have found that the evi- evidence they of the issues. dence of discrimination offered was disposition Court’s support finding sufficient to a fa- their grant In of sum- its October We, course, recognize vor. that some Court found mary judgment, District race discrimination situations actors do not forth plaintiffs “put that the had failed “smoking gun” evidencing leave a their their conten- any supports evidence that intent, plaintiffs and in such cases can they ‘segregated’ tion that were intention- prove only their cases with circumstantial ally programs into inferior education case, however, evidence. In this piece- VI,” “plaintiffs violation of Title and that appellants point meal anecdotes to which genuine a issue of material raised were insufficient to survive LMSD’s sum- regarding fact their 1983 cause of ac- mary judgment motion. Equal tion” based on the Protection Court, appellants attempt Clause. J.A. vol. 31-35. The meet by in considering summary judgment pointing mo- standard to an email a tion, Board, plaintiffs noted that were re- member of the LMSD School which quired they supported prima to “raise at least some reasonable believe their facie they placed light inference that into case of discrimination when read a classes and offered services the School most favorable to them and considered as part to intentional as a whole. District due discrimination case discuss- simply ing redistricting based on their race and not due to school to increase minori- schools, ty representation errors in evaluation.” The Court conclud- in certain one apparently Board plaintiffs ed failed to offer evidence member School expressing sufficient to an that the wrote an email his concern that support inference intentionally had of the low income and African “moving LMSD discriminated Moreover, against [High African Americans. American students to Harriton plaintiffs than can put School] [Lower had not forth more when walk High simply School] scintilla of evidence that the LMSD acted Merion creates racially discriminatory purpose in additional stressor that doesn’t need to be reply No. 11-4200 br. identifying placing Appellants’ them as disabled and there.” special regard- them in education courses at 26.

less of whether this identification was cor- Appellants believe that “[f]rom Furthermore, rect. did not comment, jury a reasonable could conclude identify policy an official or custom that cul- fostered an institutional [LMSD] deliberately suggested the LMSD was Board (expressed by ture least one rights. indifferent to their J.A. vol. at member) insensitivity that tolerated racial 32-36. stu- [sic] and viewed African Americans that, unnecessary explained creating as we dents as ‘stress.’” emphasize

We above, reply 11-4200 br. at 27. nonmoving party—here, appel- Appellants’ No. wrong against

But do not need to decide how a rea- an intentional African we jury schools, sonable could construe this email be- only American students in its not though even it was available when cause pres- because it did not consider the MAP other depositions were taken and witness entation, wrongly but because it also dis- deposi- than author referred to it on a its testimony counted Moore-Williams’ as tion, properly it was not submitted to the hearsay. 11, 2013, Arg. Tr. Oral June as it was not introduced into District Court 51-52. While the MAP issue seems to deposed. evidence and its author was not admissibility, concern it is clear from the appellants rely cannot on Consequently, 20, 2011 Judg- October Memorandum and the email to defeat the motion sum- ment Order that the Court did consider 56(c).68 mary judgment. See Fed.R.Civ.P. deposition testimony, Moore-Williams’ Thus, not the email did contribute to the appellants testimony referred this in appellants admissible evidence needed to arguments their oral October summary judgment. have survived summary judg- the District Court on the Appellants argue also that the District ment motion.69 No. 2:07-cv-3100 Doc. No. wrongly deposition Court discounted the 180 at 25. testimony Moore-Williams, of Dr. an inde- The District Court’s October pendent consultant the LMSD had Judgment Memorandum and Order found engaged prior litigation to this to address references Moore-Williams’ testi- LMSD, minority being issues mony by during the October personal

based on her beliefs and on hear- argument 2011 oral was “selective and say. considering testimony, misleading,” and that she had “admitted] found that her opinions were not that her statements about the School Dis- anything based on that she had observed trict anything not based on she [we]re firsthand, but rather concerned attitudes observed firsthand but rather on her own country about race in the and the edu- personal hearsay belief and the statements system general. cation Appellants seem Accordingly, of others. her statements to conflate admissibility the issue of genuine cannot create a issue of material requirement taking evidence with the fact regarding the School District’s intent light evidence most favorable to the regard, to discriminate.” Id. In this we do considering summary when non-movant not Thus, see how the deficiencies her testimo- judgment during argu- motion. oral ment, ny could have been cured so that appellants’ argued counsel that the the evi- District Court should have found that dence could have become admissible there Clearly, say was evidence that LMSD committed trial. we cannot that the Dis- tell, original Although appellants objected 68. As far as we can email to the limited against was submitted in an unrelated case weight gave the District Court Moore- LMSD, Doe v. Lower Merion School Dis- testimony Williams’ both in and at their briefs trict, (E.D.Pa.2010). F.Supp.2d argument, oral and made reference to her point scope We also out that when the of this deposition appendix, they in the do claim litigation easy is considered it is not to under- to have made a formal motion in limine re- stand how an email one school board garding testimony seeking Moore-Williams' expressing putting member concern about considered, they pointed to have it nor have by requiring they stress on students be denying to an order its admission or consider- away transferred from a school to which ation the District Court. supports allegations can walk of the com- plaint. predicate But we do not our result on this observation.

299 parents, her that the teachers erred in its treatment of and school dis- trict Court tricts, evidence.70 and administrative review boards hand, are closest to the issues at and Indeed, putting aside inadmissible evi- they persons therefore are the best or dence, in the com- allegations all of entities to address individual concerns and in and briefs are inconsistent their plaints course, complaints. recognition Of this logic. example, appellants For seem to be underlies the need for the exhaustion re- placement complaining both that LMSD’s quirements of the IDEA. in special students education individual away “regu- from courses has taken them courses, alleg-

lar” while the same time 3. Statistical Evidence they not ing adequate did receive Newark, City In Meditz v. 658 F.3d support.71 It is un- special education (3d 364, Cir.2011), 371 we cited several could have taken clear what actions LMSD Supreme to support Court cases our con- appropriate. deem In would gross clusion that disparities statistical order in full schedules of participate may plaintiff’s serve to establish a prima regular special both education and edu- in a Title if the facie case VII case statisti- classes, long- cation students would need a degree cal evidence is of kind and day taking only er school than students suffi- policy practice cient to show that the Further, regular if in- education classes. question caused the discrimination. require help par- dividual students extra considering the statistical evidence in this subjects, obviously ticular it is counterin- that, case, protest example, they monetary tuitive to we note first that for dam- VI, receiving foreign language ages are not instruc- to be under Title awarded during they partici- See, tion the time that are discrimination must be intentional. pating Pena, remedial courses. e.g., Lane v. 518 U.S. 116 (1996) 2092, 2096, 135 S.Ct. L.Ed.2d point points also out that at various We (“[DJamages are available under Title VI express the plaintiffs the SAC dissatis- (citing for intentional violations thereof.” low, grades faction with that are too and at Ass’n v. Civil Serv. Comm’n Guardians points complain grades other that are N.Y.C., U.S. S.Ct. high. too Plaintiffs seem to believe that (1983))). However, if L.Ed.2d 866 even divergence grades demonstrates simply this were not case we they placed in courses that ei- analysis we articulated in the applied difficult, easy depend- ther were too or too case, the not Meditz Title VTI statistics do ing discussing.72 which plaintiff gross disparities of the kind and indicate placement But is not an exact student infer- science, degree give sufficient to rise to an and different children have differ- repeatedly explained ent needs. ence that the non-uniform individualized We activities, including special do education and 70. We note that inasmuch as Blunts appeal 175(a); not from the October 2011 Memo- para. ...” TAC at J.A. related services Judgment granting added). randum and Order sum- (emphases at 3889 vol. mary judgment, we will not address their allegations. reasoning only acceptable 72.By give legal grade that to a claim would rise among example, many, found in the 71. One "C,” giving might and the other be following paragraph “Denying of the TAC: might grade be viewed as evidence that a opportunity these and the Plaintiffs class providing was at fault for not school district participate federally- in and benefit from appropriate education. services, regular program education assisted LMSD, in forth in IDEA analyses portionality of students utilized set the or fed- appropriate place- classroom determine regulations,” explained eral the Court that ment, a of pattern practice reflected guidelines the PDE has established where- discrimination. 3.0, disproportionality it considers a of one, i.e., three to to be an indication of in its October

The District Court Judgment race, 2011 Memorandum and Order that overrepresentation of while the discussed in detail the statistical data that Department States United of Education’s put forward. No. 2:07-ev- guidelines dispropor- indicate that a 1.5 Doc. No. 180 13-18. As tionality an overrepresentation ratio is of out, pointed “[disproportionality per is not that race. at 14-15. Id. and, se evidence of discrimination” as The District Court the data summarized acknowledged, plaintiffs’ experts own (collected presented by plaintiffs by the disproportionality can be either biased or PDE) for the for the years LMSD 2005- Noting Id. at 14. that “[t]here unbiased. dispro- no numerical criteria for as specific follows: body Participating special Total student at LMSD Students education courses %of % Total total of total % Number student % of of of body special number total students % special number that that education participated participated Total students in students education special special Number who were students who were students who were education education who were of students American Caucasian African African American Caucasian Year 7.7% 84.4% 18.1% 12.7% 82.6% '05-'06 6,945 1,255 7.9% 83.2% 17.0% 14.5% 80.2% '06-'07 6,981 1,187 8.1% 83.1% 16.7% 14.0% '07-'08 80.8% 6,914 1,158 1,101 8.0% 81.6% 16.2% 13.7% 80.5% '08-'09 6,788 15.5% 14.3% 80.0% '09—'10 81.1 7,072 1,094 Id. at 16-17. Though these numbers un- can American students than for Caucasian all, students. After if doubtedly that it the same evaluation likely show was more procedures are used for all students re- that an African American student than a gardless simply of their race there is no placed Caucasian student would be Moreover, opinion discrimination. course, special education numbers plaintiffs’ expert, psychologist, not so disproportionate suggest five or six of the students in question presence of discrimination in student incorrectly had been identified learning placement additional absent evidence that pro- disabled was not rendered until these justify drawing could this inference. ceedings pending in the District statistics, considering In is critical support Court and was insufficient to recognize there was no evidence facie case for the prima plaintiffs, particu- presented in the District Court that larly inasmuch as predicated opin- she her applied proce- LMSD different evaluation personal ion on her of the stu- evaluation determining placement dures for of Afri- dents. fact, anyone special could ex- school district should make a we doubt that edu- placement student, cation for a particular LMSD’s counsel did at

plain better than the school district should not decline to argument why divergence views oral merely placement make the because the placement should not be a basis on student application of the mandate leads to stu- support plaintiffs’ claims: a particular group being dents of statisti- place procedures has [LMSD] cally overrepresented special education for all students. And the are followed grouping. certainly going We are not disagree with psychologist fact a could require suggest or even that school dis- ‘No, say I psychologist and [LMSD’s] quota system tricts use a in assigning stu- person don’t think met these crite- this to special dents education classes so that evi- prove produce ria’ doesn’t percentages of students in such classes that that suggest dence to was as proportionate be to overall school ratios result of these students’ races. The A when measured on a racial basis. school [attempt] did not ... psychologist educating district has the function of its process ... that identification ascertain students, and should be concerned with if some perhaps ... to see there was pro- that critical matter rather than with pointed other indicia that could be to as ducing particular statistics. Instead, why that occurred. it was simply, T don’t believe these students Appellants’ evidence of discrimination that, [properly] identified.’ From were consists of statistical evidence that African plaintiffs leap had made the that overrepresented American students were therefore it must be because of their classes, in special testimony education indi- race. cating that certain LMSD educators had learning styles and an discussed different Arg. Tr. at 37-38. Oral June from ex- email a School Board member result, reaching our in addition to pressing putting concern about extra considering the statistics we cited However, stress on black students. claim that students plaintiffs’ expert’s record also reflects that each individual misidentified, we have considered student’s educational needs were assessed that a plaintiffs’ allegation small number through thorough and satisfied and indi- education special classes LMSD were no process, vidualized IEP and contains African comprised of 100% American stu- evidence that the educators and adminis- problem dents. But the with that evidence responsible placing trators for students in- is that it was not offered in a context from against to discriminate them be- tended meaningful which a correlation between Taking cause of their race. the record as placement race and class could be demon- drawing ap- a whole and all inferences in accompa- strated because did not favor, pellants’ genuine there is no issue of data, ny testing grading, it with and other material fact that LMSD itself—or a third might provide meaning factors that some in inten- party control—engaged under its offered. to the evidence Under tional discrimination. structure, IDEA school districts accept federal funds such as the LMSD CONCLUSION VIII. individual, every must treat student as evaluate, test, First, District and thus must and monitor we hold individually, provide correctly against the student as well as held that the action judi- principles an IEP for the student on an individual PDE was barred res (claim preclusion) as a result of the by following basis. If this mandate a cata reasoning regarding I. v. Our Steven action in Gaskin of the class settlement limitations for 628. We IDEA statute of F.Supp.2d shortened Pennsylvania, 389 plainly the Gaskin claim bringing that conclusion because an administrative reach school-age judicial students respect class included all applies here with were de- Pennsylvania who disabilities claim. FAPE, pleaded and the claims

nied a Greenberg concludes that CBP Judge brought case were the PDE against standing on its own not have to sue did within the Gaskin on behalf of students members, of its but or on behalf behalf Thus, against the claims asserted class. and McKee conclude Judges Ambro overlap with the PDE in this case dismissing erred in CBP the District Court against it in brought had claims that been had or- standing lack of because CBP Gaskin. Al- standing under Havens. ganizational Next, reviewing the District Court’s thus does though majority of the Court the IDEA’S statute regarding conclusions ruling that accept the District Court’s adversely affect- party limitations for a standing, not have this conclusion CBP did of by an administrative determination ed light in of a change not our outcome does a or federal bring IDEA claim to state majority’s independent conclusion different correctly suit, con- we hold that Court summary properly that the entered Court 90-day of limita- that the statute cluded judgment against plaintiffs, as CBP In Blunts’ IDEA claims. tions barred the why pre- it could have explained has not result, that it did not reaching this we hold plaintiffs where the individual did vailed ju- Blunts’ administrative matter that the not. 2005, 8, April on a process began dicial of limi- on which the IDEA’S statute date did also hold that the District Court We claim in or fed- bringing tations for state in how it dealt with not abuse its discretion ad- receiving court after an adverse eral was correct disputed evidence. Court years, determination was two ministrative MAP determining presentation that the Blunts’ final administrative because the authenticated, it not abuse was not and did 31, 2005, August on almost disposition was discounting Moore- its discretion 90-day statute of two months after testimony giving or in not Williams’ effect, and almost limitations came into Further, it did. weight more than Congress enacted it. nine months after Reschly’s not err in its use of Court did contention, Contrary Blunts’ report. not un- amended statute of limitations was Finally, pri- did not establish retroactively they for had fairly applied, facie case discrimination violation ma of the amend- regarding nine months notice 1983; thus, § entry of of Title VI ment of the statute of limitations before summary judgment against them on their barred; thus IDEA action was their appropriate. claims under those laws was case. In ample bring had time to their found to Evidence that the District Court fact, of action did inasmuch as their cause need not have been consid- be inadmissible the amendment of the not arise until after the non- light in a most favorable to ered limitations, say it is fair to statute of plaintiffs because the evidence movant simply applied the amendment was not at trial. Further, could not have become admissible retroactively in their case. as Further, did the evidence before above, responsi- noted the Blunts had the prima facie support not a circumstantial changes legis- bility vigilant to be about in violation of lation, of limitation. case of racial discrimination including statutes

303 laws, particular, guarantees equal § the sta- teenth Amendment Title VI or results.”). equal evidence was insufficient to estab- tistical facie case even when consid- prima lish In summary, we will affirm the District ered with other evidence. 20, 2011, Court’s orders of October Febru- 15, 2008, ary August is to ensure that edu goal The IDEA’S appeal 11—4201, at Nos. 11-4200 and parents necessary tools to cators cross-appeal will dismiss LMSD’s at No. improve educational results disabled 11—4315.73 (stat 1400(d)(3) students. See U.S.C. IDEA, ing purpose one “to en AMBRO, Judge, concurring. Circuit parents sure that educators and have the agree join Judge I with and Green- necessary improve educational re tools berg’s thorough excellent and opinion as to by sup sults for children with disabilities B, all but Part which VIL deals with activities”). system porting improvement Appellant whether Concerned Black Par past, As we have noted in the it is not (“CBP”) standing ents of Mainline Inc. has necessarily the case when students do Although standing jurisdic to sue. is a equal not achieve results from their edu waived, requirement tional that cannot be cation there is a constitutional violation. Grp. of N.J., Pub. Interest Research Inc. v. v. Coalition to Save Our Children State Elektron, Inc., Magensium 123 F.3d Del., Bd. Educ. State 90 F.3d (3d Cir.1997), 117 n. 5 presence “the of one (3d Cir.1996); see also Personnel plaintiff standing sufficient satis v. Feeney, Adm’r Mass. U.S. Forum Aca fy requirement.” 99 S.Ct. Rights Rumsfeld, demic & Institutional L.Ed.2d (1979) (It (3d Cir.2004) 219, is a (citing “settled rule that the Four- 390 F.3d 228 n. 7 19, Therefore, affirming August standing. 73. We are the order of did not have inasmuch 2009, though only Judge Greenberg Judge voting even August Ambro is to affirm the 19, agrees with the District Court that CBP does judgment, though 2009 on a basis other standing not have and the District Court dis- standing, judgment than its lack of the is ground. Appeals missed CBP on that being affirmed. judgments, opinions, taken from not see Chev- Judge brings play Ambro's vote into the ron, U.S.A., Council, Inc. v. Natural Res. [principle] “well established that we are free Def. Inc., 837, 842, 2778, 2781, 467 U.S. 104 S.Ct. judgment to affirm the of the district court on (1984), Judge 81 L.Ed.2d and 694 Ambro support basis which finds in the record.” joins disposition dismissing the in of the case States, 948, Bernitsky v. United 620 F.2d 950 how, explained CBP because it has not if it (3d Cir.1980). applied principle We have case, permitted had been to continue in the it affirming in the context of a district court’s prevailed, could have a conclusion with See, ruling e.g., aon motion to dismiss. Judge Greenberg agrees. which 236, McCullough, Tourscher v. 184 F.3d 240 (3d Cir.1999); Pa. Central Teamsters Pension recognize Judge We that Chief McKee be- Inc., Line, Dray Fund v. McCormick 85 F.3d 19, affirming August we lieves that are not the 1098, (3d Cir.1996) (acknowledging 1107 judgment judgment 2009 because the recites power to “affirm decision of the district court standing that the motion to lack dismiss for grounds upon on other than those relied granted Judge and is both he and Ambro declining the court” but to exercise district reject the District Court’s conclusion on the it). Supreme The Court also has noted that standing obviously judg- CBP But issue. the “that, “settled” rule if the decision below is simply ment dismisses the claim and the ref- correct, affirmed, although it standing merely must be erence to the lack of is upon wrong ground explanation lower court relied a operative order which is Gowran, gave wrong Helvering reason.” v. to dismiss CBP’s claim. The reference to a 158, 238, 245, 154, standing 302 S.Ct. 82 L.Ed. lack of is no different than a refer- U.S. 58 (1937). opinion finding ence CBP 224 to Court’s 304 assigning 106 African-American stu- Synar, 478 U.S. factor

Bowsher 3181, (1986)), on 92 L.Ed.2d 583 rev’d special dents to education classes. Howev- S.Ct. 547 126 S.Ct. grounds, er, other U.S. on this there sufficient evidence rec- (2006). standing The 164 L.Ed.2d ord to establish that a trial is warranted to here has never the individual Plaintiffs whether district determine this school did (nor it). challenged should Thus been I exactly separately that. therefore write standing and Plaintiffs confer individual my express strong disagreement with is irrel- standing organization as an CBP’s colleagues’ plain- these my conclusion that evant. judgment. summary tiffs cannot survive decide, necessary I it would Were I Despite strong disagreement, do that, Ha- Judge McKee under agree with agree that the bars Gaskin settlement Coleman, Realty Corp. v. 455 U.S. vens that have Title VI 1983 claims been (1982), 102 S.Ct. 71 L.Ed.2d Depart- brought against Pennsylvania standing to behalf. has sue on its own CBP (“PDE”) ment of Education as discussed in However, agree Judge I also Green- with Majority Opinion.1 VII.A of the Section of the individual berg claims District August Court’s properly Plaintiffs were dismissed at sum- ruling agreement that the settlement bars CBP, mary judgment. shared counsel who against the PDE forth claims sets Plaintiffs, has with some of the individual language agree- relevant of the settlement how, permitted explained not agreement ment. That identified the case, plaintiff it could continue as “representatives as: of a certified Plaintiffs have prevail where individual consisting of school-age class all students agree Thus I Judge failed. with Green- Pennsylvania disabilities in who have their berg’s disposition appeals these appropriate been denied free education reasons, these I merits. For concur. regular classrooms with individualized McKEE, concurring Chief Judge, services, supportive individualized instruc- dissenting part part. tion, need accommodations in the regular succeed education class- Today group we hold that a of African- room.” Blunt v. Lower Merion School parents American and students have (E.D.Pa. District, F.R.D. jury produced sufficient to have a evidence 2009). agreement The was in effect from if race is a in African- decide factor how 2005 September September to 2010. assigned special American students are as Although, Id. counsel for CBP noted at classes in district. education their school argument, very oral those claims are dif- My colleagues reach this result even here, ferent from the the language claims though the record numerous is- contains very settlement agreement of the is broad disputed support sues of fact that would scope provides in in part its as follows: jury claims if a those plaintiffs’ resolved plaintiffs’ in the disputes favor. consideration performance of the of [i]n obligations PDE’s the allegations pretty. are not No under Settlement here district, Agreement, the plaintiffs, individually one likes to think that a school remise, outstanding collectively hereby release, one with edu- especially reputation, cational race to be a and forever the discharge allows each of defen- join Majority Opin- 1. I Part also VII.C of the of limitations. my colleagues ion in which discuss the statute

305 (as in from all actions and causes 1983 discussed Section VTI.D of [...] dants action, suits, ... claims and demands Majority Opinion). of the ..., unknown, known or whatsoever unforeseen, particularly I. or CBP’S STANDING

foreseen been those which were or could have set Principles A. General Pennsylvania v. De- in Gaskin forth Judge Greenberg explains, As Article Education, partment No. 94-CV-4048 of requires plaintiff III to demonstrate a (E.D.Pa.), any plaintiffs the or which of in litiga- sufficient interest the outcome of have, has, ... may ever had or now or controversy” tion to establish a “case or cause, ... any ... reason of standing and thus have to sue on plain- arising whatsoever out or related tiffs behalf or a representative own plaintiffs brought the claims Supreme explained others.2 As the in the against the defendants Gaskin Seldin, U.S. Warth beginning from the of the world to case “[tjhere (1975), S.Ct. 45 L.Ed.2d 343 the effective date of the Settlement question may is no that an association have AgreementL] right judicial standing its own to seek (ellipses type Id. and bold and italics em- injury relief for to itself and to vindicate add- phasis original, emphasis underline rights whatever and immunities the associ- ed). suit, though quite The claims in this may enjoy.... ation itself in the [e]ven Gaskin, different from the claims itself, injury absence of an association clearly brought by “related to the claims may solely standing representa- as a ... in the case.” Gaskin tive of its members.” U.S. follow, However, I for the reasons that (internal omitted). S.Ct. 2197 citations agree cannot Black Par- Concerned (“CBP”) (as The District Court held CBP was ents, standing Inc. lacks dis- sufficiently to demonstrate a con- unable Majority cussed Section VII.B injury parents crete to itself Opinion) proper- or that the District Court represents standing bring to have ly summary granted judgment Blunt, reject- suit. 262 F.R.D. at 486. brought against claims that these Plaintiffs ing standing, the Lower District CBP’s claim of District Merion School (“LMSD”) the fact that is not under Title VI and U.S.C. Court focused on CBP Judge Greenberg properly appeals always notes that his and thus a court of must de- standing jurisdic- discussion of CBP’s is not the hold- termine if the district ... had court Court, However, ing Judge Majority Op. of this because Ambro tion.” at 290 n. 62. standing. agrees personal that CBP dispute has See there no whatsoever about Opinion Majority ("Majority Op.”) at 291-92 standing plaintiffs, of the individual nor could However, & n. 72. for reasons of convenience Accordingly, jurisdiction there be. clarity, exception Judge District Court and this Court is clear and Greenberg’s personal standing, I discussion undisputed. Accordingly, Judge Greenberg’s frequently opinion entirety refer to his in its standing is dicta. See Galli v. discussion "Majority Opinion,” opinion as the or the Comm’n, Jersey New Meadowlands 490 F.3d colleagues.” "my 265, (3d ("[W]e Cir.2007) 274 are not bound ”). prior dicta .... our Court’s Judge Greenberg engages very in a detailed Nevertheless, respond Judge in order to analysis explain why he that CBP believes Greenberg's very analysis, detailed and to standing. explains lacks He that such a de- impact any questions of our analysis appropriate avoid about is because "[w]e tailed by organizational deciding standing discussion on future suits ... will not avoid issue moot, standing plaintiffs, ground necessity that it I will discuss CBP's on the is standing party jurisdictional some detail. for a to have

306 Council, Inc., only 837, could demon- student and therefore ral Res. 467 U.S. Def. abstract, ideological 842, 104 2778, (1984)). “an interest strate S.Ct. 81 L.Ed.2d 694 litigation opposed necessary appealed August CBP the District Court’s ‘personal stake in the outcome’ of the con- 19, judgment. 2009 That judgment states: troversy necessary to standing.” confer defendants, “the motion of the Lower Mer- Morton, (citing v. 405 Id. Sierra Club U.S. ion School District and the Lower Merion 1361, 92 31 L.Ed.2d S.Ct. 636 Board, School to dismiss the claims of (1972)).3 Mainline, Concerned Black Parents Inc. and the Mainline Branch of the NAACP separate opinion, Judge In his Ambro standing lack is GRANTED.” Joint Judge “I agree states: would McKee for (“J.A.”) that, Realty Corp. Appendix (emphasis Havens at 42.69 under Cole- add man, 363, 1114, ed). 455 U.S. S.Ct. It beyond dispute is therefore (1982), standing L.Ed.2d 214 CBP has to CBP was dismissed from the case because sue on its own behalf.” Ambro at 1. How- of standing, only because of standing. ever, Judge Judge both Ambro and Green- majority Because a of this Court now holds berg standing believe that CBP’s is irrele- see, that CBP does standing, e.g., have vant because do not believe CBP can Majority Op. at the District Court’s prevail Majority on the merits. Opinion August judgment must re be (“Majority 72; Op.”) at 299 n. Ambro at 1. versed as to the dismissal of CBP. course, Of CBP’s likelihood of on success Thus, it is simply inaccurate to claim bearing

the merits has no standing. its that our holding regarding standing “does standing only The issue of CBP’s not “matter[s], change not light [the] outcome in of a importance it is of the utmost ...” precedential majority’s as our decision here is different conclusion that [the and can impact organizations other in the District properly summary Court] entered essence, future. “In the question of stand- judgment against plaintiffs.” Majority ing litigant is whether the is entitled to Op. at appeal 302. The from the District have the court decide the merits of the judgment Court’s granting summary judg- Warth, dispute particular or of issues.” against ment plaintiffs the individual must 422 U.S. at 2197. S.Ct. be separately decided because arises from a judgment. discrete See Chevron Moreover, standing disposi- issue is U.S.A., Inc., 467 U.S. at 104 S.Ct. tive for purposes of the merits of CBP’s Furthermore, any suggestion that appeal August judgment explain “why CBP must pre- it could have affirming because we are not that judg vailed where the individual did Majority Opinion correctly ment. As the not,” notes, Majority Op. see has no “[ajppeals judg are taken from basis ments, not in the opinions.” Majority Op. at 299 law. Because CBP was dismissed Chevron, U.S.A., (citing n. 72 dismiss, Inc. v. Natu from the litigation on a motion to 3. The District Court representational standing also held that CBP did because there is no representational standing have because its Judge agree need to. Ambro and I that CBP members, bylaws stated that CBP had no standing injuries. has to sue based on its own light express "in of this statement in a formal I do note that the District Court failed to governing corporation, document ... [the appreciate the extent or nature of CBP’s own n District Court concluded] that does not [CBP] injuries or the nature of CBP’s efforts to ad- standing bring suit on behalf of its parents vance the interests of of African- members because it has none.” Id. at 487. I American children in the LMSD. do not discuss issue of whether CBP has that it engage in the same dis- CBP has demonstrated is entitled to it was unable to summary judg- covery parties; personal standing Realty other no under Havens as it it against However, was filed and ment motion Corp. Judges Ambro at 1. unlike opportunity a full therefore did not have I Greenberg, Ambro and also believe there summary judgment. fairly oppose is sufficient evidence to survive dismissal on the merits of the relevant discrimina- District Court dismissed CBP When the below, tion claims. As I discuss in detail standing, any it did so without for lack of failed to properly District Court credit summary motion for motion to dismiss or evidence, improperly some and discredited being against filed CBP. The judgment ignored other evidence. When the evi- correct that the District Court Majority is properly dence here is viewed in its entire- standing considered CBP’s twice—once genuine ty, the record establishes issues of Complaint Third Amended and before the discovery pertaining material fact to Plaintiffs’ once after it—and was taken dismissal, Majority Op. after first at claims under Title and and the VI However, that resolve 283 n. 52. does not harm. III resulting See Section infra procedural issue here. Plaintiffs filed presented 30-60. CBP has also sufficient opposing certification. In that cer- for class genuine dispute evidence to raise a of ma- tification, argued that defendants CBP regarding terial fact harm it suffered as a representative, could not serve as a class result of the conduct. LMSD’s See infra but the defendants did not move to dismiss Section I.B at 7-19. CBP from the lawsuit. J.A. 918-19. reasons, For August these Rather, sponte the District Court sua dis- order, be as to dis- must reversed CBP’s standing.

missed for lack of J.A. at CBP majority standing; missal for lack of 42.69.4 this Court holds that CBP does have now Majority noting is correct While standing. judgment may that a affirmed for be record, by the supported reason that is Standing B. CBP’s Personal adequate is more than to sur- this record organization standing An has to assert summary on the judgment vive based injuries (“personal standing”) its own when standing of CBP as well as the individual (1) particular- I it can show: a concrete and plaintiffs. Judge agree Ambro and standing. Although the District Court notes that de- forward with evidence to establish appears fendants "move to dismiss the claims of Con- It that the District Court focused on standing cerned Black Parents ... for lack of stand- the defendants’ comment about 924-25, ing,” J.A. at defendants’ motion attacking transformed it into a motion stand- Instead, part of its makes no such claim. ing. J.A. at 928. The District Court then argument plaintiffs’ proposed repre- class membership, focused on CBP’s lack of formal adequately represent sentatives cannot not have that CBP "does concluded class, defendants' motion states: "Plaintiffs' standing bring its mem- suit on behalf of nothing evidence does to establish CBP's bers,” ostensibly addressing plaintiffs’ claims standing completely fails to address the may represent that CBP the class. J.A. at pro- fact that CBP is not a member of the District Court then concluded: 932. The posed and therefore cannot be a class class “[a]ccordingly, we will enter an order dis- representative.” J.A. at 919. missing parents Concerned Black from standing.” Id. lawsuit lack of The District required, expect- Plaintiffs were neither nor ed, granting it sum- Court does not state that present evidence to establish CBP’s mary judgment against stand- CBP for lack of standing certifica- in order to move for class Rather, ing. simply stated that it was "dis- surpris- tion. It is therefore not least bit missing” Id. ing attempt did then to come CBP. 308 (2) a causal connection African-American injury-in-fact, incorrectly

ized tester was injury and the conduct com- between the apartments told that certain were not (3) of, plained a likelihood of redressa- Simultaneously, available. Id. the Cauca- bility. Lujan Wildlife, See v. very sian tester was told that same Defenders of 555, 560-61, 504 U.S. S.Ct. 119 apartments were available. Id. (1992); Housing L.Ed.2d 351 see also Fair housing HOME sued Havens for dis- Philadelphia Suburban Council of crimination, that it alleging standing had Montgomery Newspapers, F.3d in right to sue its own and on behalf of its (3d Cir.1998) (“In order to defeat the sum- constituents. Id. claimed it HOME had mary judgment motion based on the issue injured itself been because Havens’ con- party] standing, opposing was re- [the organization’s duct “frustrated the counsel- quired to submit ‘affidavits or other evi- ing services, and referral with a conse- showing through specific dence ... facts quent drain on resources.” Id. ‘directly’ [by ... affected [was] discrimination]....’”) alleged in (emphasis Supreme agreed. The Court The Court original). organization’s reasoned that where an abil- fact, injury To show an in CBP must ity provide primary its services has operations show that its activities or were “perceptibly been impaired,” organiza- sufficiently disrupted by the disputed con- personal standing tion has attempt re- Realty Corp. duct. Havens v. Cole- injuries. cover for its Id. at 102 S.Ct. man, 363, 378-79, 455 U.S. 102 S.Ct. 1114. HOME asserted that it had “been (1982), Supreme 71 L.Ed.2d 214 Court frustrated steering defendants’ racial held that the district court had in erred practices in its equal efforts assist ac- dismissing nonprofit the claims of a or- housing through counseling cess to ganization on its alleged based lack of other referral services.” Id. That was suf- standing. nonprofit The organization ficient to an allege injury. Article III (“HOME”) there was committed “to explained: concrete and de- “[s]uch mak[ing] equal opportunity in housing a injury organization’s monstrable ac- reality in the Richmond Metropolitan tivities—with consequent drain on the (internal Area.” Id. at 102 S.Ct. 1114 organization’s resources—constitutes far omitted). quotation marks and citations simply more than organi- setback mission, In furtherance of its HOME zation’s abstract social Spe- interests.” Id. potential counseled renters and undertook cifically, complaint HOME’S included investigations to determine if landlords allegation signifi- that it to devote “[had] discriminating against were potential ten- identify cant resources to and counteract by “steering” particular ants them to racially discriminatory the defendant’s [sic] rental or neighborhoods units based on (brackets steering practices.” origi- Id. 368-69, race. Id. 102 S.Ct. 1114. nal). expense The additional and the need HOME sent “testers” of different races to counteract allegedly Havens’ discrimina- community into the they inquired where tory sufficiently conduct was a particular- about advertised rental units to determine injury standing ized and concrete to confer engaged if certain landlords ra- upon HOME. Id. cially discriminatory steering. Id. at part Realty 102 S.Ct. 1114. As of its We elaborated on Havens investiga- tion, There, inquire Montgomery Newspapers. HOME sent two testers to the de- properties about rental owned Havens fendants raised the same issues raised (“Havens”). Realty Corporation Realty, Id. The Havens but a on motion for sum- gation.” allegations at 73. The Id. at 78. mary judgment. “[B]are F.3d organization nonprofit injury there was a such as plaintiff those based on the investi- promote and fair that “to educate worked gation described not enough [there were] segregation based housing oppose and to (internal standing.” quota- to establish Id. found in the Fair protected on the classes omitted). Accordingly, tion marks we held Act of as amended.” Id. Housing organization that the had not established objective, to advance that an effort injury. an Article III defendants, in- organization multiple sued Thus, Montgomery Newspapers involved newspaper that had run adver- cluding proof. support a failure of It does not perpetuate to appeared tisements conclusion that has failed to intro- CBP of housing gen- discrimination on the basis injury of its own duce sufficient evidence familial status.5 Id. The der and summary judgment to survive here. motion response to the defendant’s for summary judgment heavily relied on Ha- below, pro- As discussed in detail CBP it Realty. plaintiff argued vens The sufficient evidence of its own con- duced sufficiently alleged injuries had its own injuries to particularized crete and create “accep- newspaper’s because the defendant controversy. III an Article case or While discriminatory publication tance and (as obviously majority it is true and housing advertisements frustrated the or- note) that the District Court CBP is not ganization’s [damaged] mission and the or- LMSD, itself a student within the ganization diverting] ... ... resources only minimally circumstance is relevant at fight the discrimination.” Id. best. granted summary judgment We 387, 391, Ridge, In Powell v. 189 F.3d defendants, only plaintiff but because the (3d Cir.1999), brought 404 a case also un- any support failed to offer evidence to its der Title VI and we stated that alleged injuries. “[S]omething more than organizational plaintiffs that “devote sub- allegations required ... naked at the overcoming stantial resources to what summary judgment stage.” Id. at 76. We allege disparate inadequate are the and explained nonprofit required that the “was by” the programs educational caused to submit affidavits or other evidence equally funding failure to contribute state’s ... showing through specific ... fads districts, minority school resources directly alleged affected [was] on their own behalf.6 standing had sue brackets, (italics, discrimination.” Id. standing that “the explained We added, ellipses original, emphasis bold plaintiff organizations bring this suit omitted). quotation marks internal long consistent with the line cases organization produced any had not evi- organizations have sued to enforce which operations dence that it had “altered its rights....” (citing civil Id. at 404 Walters any way allegedly as a result of the dis- Survivors, v. National Ass’n Radiation criminatory advertisements or diverted 305, 308, to a fide investi- 105 S.Ct. 87 of its resources bona 473 U.S. complaint copies ‘professional only' ‘quiet 5. included of six ad- male ... mature "The ” setting.’ Montgomery Newspapers, Montgomery 141 F.3d appeared in vertisements which November, at 73. newspapers between 1993 and March, advertisements 1994. Each of these following allegedly Disapproved grounds contained one of the ob- of on other in Fowler (3d jectionable phrases: person’, Shadyside, 203 Cir. 'mature 'ideal v. UPMC 578 F.3d 2009). quiet single couple’; and reserved and-or 310 (1985); Realty, purpose by addressing Havens 455 that “issues related

L.Ed.2d 220 (1985); Andrus populations 102 S.Ct. to education for identified as U.S. Club, & n. v. Sierra U.S. minority African-American.” and/or (1979); 8, 99 S.Ct. 60 L.Ed.2d 943 Appellants’ Blunt and Br. at 11. CBP Employment Greater Fair Council suggestion that this statement There is no Marketing Washington, Inc. v. BMC purpose pur- is inaccurate. Given that (D.C.Cir.1994); Corp., 28 F.3d pose, the record establishes that has CBP Center, Inc., v. The N.A.A.C.P Medical litigation, an interest in the outcome of the (3d Cir.1981)). Some of the F.2d 1322 alleged discriminatory and that con- organizational relevant defendants Pow- negatively duct of the or- LMSD affects for Public ell such as “Parents Union activities, ganization’s requiring central it Schools” and “Parents United for Better expenses provide to incur extra and re- an organizational purpose Schools” had mitigate to sources LMSD’s conduct. CBP’s, quite similar to and the actions Blunt, 486; F.R.D. at at see also J.A. purpose took to were advance 3169. to actions under- quite also similar CBP Judge Greenberg lists several of the in- at took here. Id. 391. juries alleges, ignores that CBP but Any focus on the fact that CBP is an inju- produced support evidence to those (rather than organization parents stu- Majority Op. ries. at. 277. The fol- See dents) particularly hard to understand lowing headings numbered recite some of allegations the context of the of racial bias lists, injuries Judge Greenberg and the that underlie this lawsuit. The interests of heading discussion that follows each ex- children in the quality of their education is plains supporting where evidence can be parents identical to the interests their found in this record:7 seeing have in them obtain such an edu- cation poisonous sting without the of racial Use of its resources to ‘host edu bias. The harm African-American stu- experts’ cational and consultants allegedly dents suffered here cannot readi- purpose providing with the infor ly amputated be from a concomitant harm Plaintiffs, mation to the class mem parents organization to their or to an bers, community LMSD; and remedying devoted scarce resources to it. nonprofit organization After al CBP hosted numerous educational Realty Havens had not been denied hous- featuring events educational consultants Yet, ing. Supreme Court ruled that experts. experts paid and These nonprofit standing had challenge speak parents about the effects of the discriminatory housing practices because it LMSD’s conduct and how to counteract had been forced to devote its own re- the consequences that conduct. CBP’s remedy sources to its efforts to racial dis- Carter, president, that, Loraine testified crimination in housing market. See “[sjince 2006, public [CBP has] coordinated Realty, Havens at U.S. S.Ct. parents community” by forums for in the 1114. bringing experts “to address the unde-

Here, rachievement of African-Americans in the purpose CBPs includes efforts to Moreover, “promote equity and at excellence” edu- School District.” J.A. 3167. cation for diverse students. It advances CBP’s newsletter references numerous 25-26; Majority Op. (citing TAC at have added bracketed numbers and bold em- 3871-72) (footnote omitted) (I reference). phasis J.A. vol. for ease of cognizable injury month with as a result events held each of LMSD’s speaking conduct. scholars and educational lead- prominent example, January For ers. Id. at 1495. Expenditure of resources as a re Dr. met with Donald Clark CBP attending meetings sult its relat law, history, regarding educational IEPs, ed to Section 504 and ‘disci pertains it to both African-Amer- policy as plinary meetings, hearings court Pennsylvania. Id. In ican students and parent-teacher conferences Freya Dr. February arranged on behalf of various and/or consultant, Rivers, speak an educational plaintiffs, CBP members and class meeting strategies she regarding at a CBP members; identify high achieving uses to children Like HOME’S board members in Ha- “closing gap.” achievement Id. Realty, vens CBP’s board members had to activities, following CBP also listed the attend LMSD’s educational and disciplin- others, among in its Fall of 2004 schedule: ary meetings, hearings, as well as court Roundtable; Action “Special Education behalf of African-American students. Meetings;

Youth Town Hall Education Metzger, special Barbara who worked as Sessions; Train- Empowerment Advocacy during education teacher at LMSD ing Id. Sessions.” period, relevant time in depo- testified her sition that on at least one occasion she ‘sharp’ expenditures in rise over A portion invited to and sat in on a of a “was years the last five due to its efforts Black Parents’ Concerned conversation ‘protect to its members from the with some of the school administrators” impact’ adverse ‘the inferior regarding concerns that “African-Ameri- system quality of LMSD’s dual students, whole, ... can as a were not education’; rate, performing experi- at the same There is evidence that CBP incurred other encing the same success as stu- expenses responding allegedly dis- that, at 1456. also noted dents.” Id. She criminatory conditions at LMSD and the issues, among other CBP raised concerns resulting need advocate on behalf of that “these students didn’t feel welcome in seeking change parents the educational dialogue in engaged the school.” Id. CBP circumstances of their children. Id. at part advocacy with as of their and LMSD 3169. From December 2005 to March counseling parents services for whose chil- approximately CBP had an income of discrimination, experiencing dren were in $1,090 $1,106. expenses and Id. Like in an effort to raise the concerns at issue in had to Realty, HOME Havens CBP this case. counseling divert scarce resources to its community supporting African-Ameri- Publication of a news otherwise letter and ‘News Notes ... to dis allegedly being can families who were dis- compilations seminate the of data LMSD, against by criminated in order to alleged disparities ap on’ racial in impact purported- minimize the of LMSD’s disciplinary measures, plication of ly discriminatory attitudes and actions to- segregation by race and ‘under ward African-American students. Evi- achievement of African-American expenses dence that CBP’s exceeded its [Lower Merion] in Dis students income constitutes far more than the bare trict’; allegations complaint Montgom- ery Newspapers; this evidence demon- and distributed numer- published CBP addressing claims of bias strates that CBP suffered a discrete and ous newsletters organizations and institutions that we’ve parents in order to inform LMSD’s bring together” identified to them example, conduct. For Volume Issue LMSD, newsletter, provide support to African- “Main 3 of its Line Voice” CBP Thus, American students. Id. at 3406. sought strategic plan “a district-wide provid- has demonstrated that it CBP has citing achievement statis- gap,” close the and college counseling ed career services indicating tics that the same academic ex- to the school’s African-American students that “characterizes the LMSD cellence (60%) up to make for services that it claims sixty percent eludes more than of its unfairly LMSD withheld from these stu- African-American students.” Id. at 1494. dents. newsletter also includes data demon- This

strating that African-Americans are statis- Judge Greenberg’s analysis suggests tically likely more than their Caucasian that these actions do not establish Article peers significantly to have IEPs and less injuries very purpose III because “CBP’s fact, likely gifted. to be classified as LMSD, directly involving relates to actions discuss, years I will for the that were expenditures and its to pro- devoted studied, probability that an African- tecting students’ interests their interac- American student would be classified as Majority Op. tions with LMSD.” at 285. “gifted” assigned to an Advance Place- He believes this is different from HOME’S zero, ment class was as none were. M8 injuries Realty Havens because purpose “HOME’S to promote equality was educational, ‘organization’ in the Richmond area overall and its inter- career, test, standardized financial beyond ests thus went far monitoring aid, college preparatory semi specific actions at issue the Havens nars. To I case.” Id. the extent that understand Finally, ample there is evidence that argument, appears to be the classic for, provided, college CBP advocated distinction without difference. CBP preparation that resources it believed Afri- would not have had to undertake can-American students needed because of expenses or actions detailed on this purported properly LMSD’s failure to ad- alleged record absent racial bias of dress their needs. In her deposition, Ms. LMSD toward African-American students. Metzger meeting mentioned a she attend- The fact that CBP’s actions are focused on ed with school administrators where she remedying the results of bias within raised numerous claims of discrimination school district rather than promoting on behalf of African-American students. equality throughout township of Lower times, guidance (or CBP “believed that at Montgomery County) Merion is abso- others, personnel, maybe counselors or lutely Majority Op. irrelevant. See at 277. didn’t afford [African-American students] organization Whether an discrim- monitors the same consideration when it came to city ination in a simply school district college planning process.” Id. at 1456. standing does not affect whether it has similarly Ms. Carter protect Majority testified that CBP its own interests.9 See community has “met with a Op. number of ... at 277.10 I contesting 8. will discuss such evidence in detail below similar to CBP discrimination in a explain in order to how the District Court personal standing local school district had concluding genuine erred in that there was no Powell, assert its claims. 189 F.3d at dispute supra of material fact. See 272-85. Thus, argue it is incorrect that an organizational plaintiff representing the inter- above, Ridge, 9. As noted in Powell v. this ests of students in the school district is unable organizational plaintiff Court held that an Moreover, American children in nothing sup- subject- this record LMSD were to, litigation that ed not from the that was Judge Greenberg’s suggestion ports brought Judge to address it. solely Greenberg’s to this expenditures relate CBP’s approach would result in a classic thereby trying to Catch22: litigation or that it is nonprofit organizations that had devoted through litigation. standing manufacture expenses resources and incurred to combat Majority Op. (“organizations at 277 See particular activity would somehow lose injury may satisfy require- not in fact standing their to sue if decided that it solely for by making expenditures ment necessary litigation. was to resort (internal cita- purpose litigation.”) Judge Greenberg’s observation that “CBP omitted). tions why particular has failed to show this liti- Judge Greenberg states: “CBP has mission, gation has frustrated its or caused litigation why particular failed to show injury a ‘concrete and demonstrable’ to its mission, has frustrated its or caused a activities,” Majority Op. at therefore injury to ‘concrete and demonstrable’ its point misses the of the standing inquiry. However, Maj. atOp. activities.” 277.11 The issue not litigation whether this has is not that is not the issue. issue resources, drained CBP’s but whether litigation has drained whether CBP’s perceived CBP’s efforts to combat bias resources, had but whether CBP has to within the LMSD has drained CBP’s combating devote its scarce resources to scarce I not resources. do doubt perceived bias of LMSD and the inferi- litigation negatively impacted has this non- opportunities or educational that CBP be- profit, beginning but is neither the lieves African-American students in that nor inquiry, the end of our nor should we school district are afforded. focus on that one factor.

Moreover, this record establishes a dimi- Moreover, assuming even some of irrespective nution CBP’s resources in- expenses CBP’s activities and any subsequent litigation. It is abundant- summary litigation, curred as a result of ly organization’s goal clear that was judgment requires drawing review all rea- simply litigation against to advance sonable inferences favor the non mov- LMSD, but to counteract and monitor it. R. against Josey ant and not v. John See, (3d day-to-day e.g., LMSD’s conduct. Hollingsworth Corp., 996 F.2d (Carter Cir.1993) (“in testifying J.A. at 3169 appeal the context of an 2005-2006, expenses CBP’s exceeded its summary judgment from must evalu- [we] income). impact on CBP’s scarce re- to light ate evidence the most favorable organization’s sources resulted from the and draw all inferences in [the nonmovant] favor.”). response to the bias it believed African- his standing point. upon personal a under Ha- CBP’s activities were all focused to make claim Realty Corp., combating (citing Id. 455 the effects of the racial bias al- vens. to Havens 369, 1114); Majority Op. leged stu- U.S. at 102 S.Ct. at in LMSD toward African-American to make additional 277-78. dents. The fact that it had any particular expenditures action to combat mitigate impact alleged or to the bias is Therefore, Judge Greenberg’s observation 10. standing. irrelevant to its appears alleged additional "[i]t expenditures typi- were consistent with CBP’s addition, effect, frustrating cal and it thus unclear the 11. In far from CBP’s activities is mission, litigation absolutely any, litigation expen- consistent if that this had on their ditures,” Majority Op. at misses the with that mission. 314 (3) issue, operates proverbial on the “shoe and that suffered an adverse

CBP (4) action, clearly had to divert circum- string” budget, which occurred under already-scaree mitigating resources to giving its stances rise to an inference of dis- Blunt, impact alleged F.Supp.2d of the conduct here. crimination. 826 (E.D.Pa.2011) (internal Realty, Havens 455 U.S. at 102 758 citations omit- See (“[i]f, ted). broadly alleged, peti 1114 as S.Ct. steering practices perceptibly tioners’ claim prima order establish facie impaired ability provide HOME’S coun § under 42 needed U.S.C. seling referral services for low—and mod right to show that their to be free from homeseekers, can erate—income there be discrimination, guaranteed by racial question organization no that the has suf Equal Protection Clause of Fourteenth fact.”). injury in sup fered The evidence Amendment, violated, was porting assertions that in CBP’s was by person acting violation was committed

jured by discriminatory LMSD’s conduct Chainey under the color of state law. See distinguishes Montgomery this case from Street, (3d Cir.2008). 219 F.3d Newspapers, and suffices to meet the stan The District Court concluded that both personal standing summary dard for at the § claim and judgment stage. the Title VI claims Realty, See Havens 379, 102 failed Plaintiffs at 1114.12 because were unable to U.S. S.Ct. discriminatory

show a purpose. The court 11. THE APPLIED DISTRICT COURT determined that “put Plaintiffs failed to

THE APPEL- WRONG TEST TO forth ‘more than a scintilla’ of evidence TITLE LANTS’ CLAIMS UNDER that the School District acted with a racial- § AND 42 VI U.S.C. 1983 ly discriminatory purpose identifying when them offering special as disabled and them applied wrong The District Court services, education even if this identifica- granting test in LMSD’s motion for sum- Blunt, tion was somehow incorrect.” mary judgment on Plaintiffs’ claims under F.Supp.2d (quoting at 764 Williams v. § Majority Title VI and 1983. As the Chester, Borough West F.2d notes, correctly the appropriate standard (3d Cir.1989)). 460-61 determining liability under Title VI is deliberate indifference. I note the follow- Court, According to the District “there ing amplify Majority’s discussion of was no direct or circumstantial evidence of appropriate liability standard for un- intentional racial discrimination der Title 1983. VI District,” School and this was fatal notes,

As the However, District Court to establish Plaintiffs’ claims. Id. at 762. VI, prima plain- case under Title the test for “intentional discrimination” facie (1) they: tiffs must show that were mem- the District applied to reach (2) class, a protected qualified bers of that conclusion is inconsistent with deci- Court, for the educational program Supreme benefit or sions of the our sister Judge Greenberg standing. Majority Op. cites La Asociacion de der to demonstrate Trabajadores City However, de Lake Forest v. Lake imposed any 277. we have never of Forest, 1083, (9th Cir.2010) (an 624 F.3d 1088 impediment standing. such to Article III This obviously out of circuit case that is not bind simply contrary additional hurdle is ing) proposition organization for the that an See, injury required minimal under Article III. “must ... show that it would have suffered 377, e.g., Realty Corp., Havens 455 U.S. at 102 injury some other if it had not diverted re S.Ct. 1114. counteracting problem” sources to in or-

315 by Appeals, exemplified of and our own dence as Jackson v. Bir- Circuit Courts Educ., 167, 173, It inconsis- precedential opinions. mingham is also Bd. 544 U.S. Of (2005). majority 1497, of courts that tent with the vast 125 S.Ct. 161 L.Ed.2d 361 interpreted meaning of “discrimi- There, have Supreme “[recognized] Court that are inextrica- nation” under statutes that deliberate indifference ais form of to, from, applicable bly linked derived S.H., intentional discrimination.” 729 F.3d of Title This is no minor provisions added). VI. (Emphasis 264 n. 24.13 if concern because we cannot determine unequivocal pronouncement Given our there is sufficient evidence of Plaintiffs’ S.H. deliberate indifference “is a form summary judgment claims to withstand discrimination, intentional and not a of evaluating unless the correct test for this pseudonym disparate impact,” applied. record is first identified and clear that the here Plaintiffs do not have to Pryor Collegiate In v. Athletic Nat’l animus, prove discriminatory as the Dis- (3d Ass’n, Cir.2002), 288 F.3d 548 we em- my trict held as colleagues’ proof disparate impact phasized analysis implies. (emphasis Id. in origi- not, itself, was sufficient to establish nal). course, appreciate Of I fact that requisite intent to discriminate under the District not Court did have the benefit (“[a] at 562 mere awareness of Title VI. Id. of our it granted decision S.H. when neutral consequences of an otherwise summary in favor of the defendants. policy will not suffice” to establish inten- However, my colleagues and I do. discrimination) (internal tional citations Although it is true that claims in omitted). Rather, that, we held order “[in S.H. arose under the Americans with Dis- prove intentional discrimination to] (ADA) abilities Act and the Rehabilitation facially policy, plaintiff neutral must (RA), 1983, Act not Title VI or this is (e.g., that the relevant decisionmaker show immaterial as the statutes are interrelated. legislature) adopted policy a state of,’ merely spite issue ‘because ‘in of its Discriminatory Proper A. The Test for upon adverse effects an identifiable Intent group.” (quoting Id. Personnel Adminis- Rights 1. and the “Delib- Civil Statutes Feeney, v. 442 trator Massachusetts erate Indifference” Standard U.S. 99 S.Ct. 60 L.Ed.2d (1979)) (internal marks omit- quotation 870 confusion over the order avoid ted). large part holding Our rested indifference applicability the deliberate Sandoval, upon 532 Alexander U.S. standard, application its under Title VI (2001). 121 149 S.Ct. L.Ed.2d 517 here, or the relevance of cases decided However, statutes, explained recently helpful as in under certain other it is we District, majority’s expound explanation S.H. vs. Lower Merion School 729 on the (3d Cir.2013), relationship of Title to other “Pryor F.3d 264 n. VI civil it, including equated rights its because it de- related [reached result] statutes disparate liberate indifference with im- Rehabilitation Act of the Americans Act of and Title IX pact.” (citing Pryor, Id. at 264 n. Disabilities 568). upon F.3d at S.H. relied the Su- of the Educational Amendments IX”). (“Title Gorman, jurispru- Barnes v. preme post-Sandoval Court’s See below, Gebser, greater cited and both involved detail that is a distinction with- Jackson However, I claims filed under Title IX. out a difference. mentioned, already explain and as I 316 § dies available of the RA 122 S.Ct. 153 L.Ed.2d under 504

U.S. (2002). often look to the stan- Courts shall be the same remedies available under one of these stat- applies dard Rights under Title VI of the Civil Act of utes, brought under one of decide cases Court, Supreme

the others. Id. The this S.H., 729 F.3d at 260-61. Court, nearly all of our sister Courts ADA, both the RA and the “de- Under Appeals that have addressed the stan- liberate indifference is a intention- form of establishing dard for intentional discrimi- ” S.H., al discrimination.... 729 F.3d at rights nation under these interrelated civil (internal (emphasis original) 264 n. 24 (the IX) RA, ADA, statutes and Title omitted). RA citation Because the itself can held that deliberate indifference be rights states that Title Vi’s and remedies required sufficient to establish the discrim- apply, should the same deliberate indiffer- inatory discriminatory intent. Evidence of RA applies ence standard that under the required. animus is not apply should Title brought claims under VI, VI. Interrelationship

a. The of Title RA, and the ADA. “Supreme precedent construing Court note, my colleagues prohibits As the RA governs Title VI of the RA enforcement disability discrimination on the basis well,” and the ADA as because both laws federally programs, including funded em- S.H., were modeled on Title 729 F.3d VI. fi- ployment programs receiving federal (internal omitted). at 261 citations § nancial seq. assistance. U.S.C. et S.H., When we decided this was an issue (1998). The ADA prohibits discrimination (“We impression of first for us. Id. at 260 disability employment, on the basis of issue.”). yet have not spoken on this We accommodations, public public entities and pains therefore took explain inquiry our transportation, and telecommunications. apply—discrimi- into standard to “[w]hich (2009). § seq. 42 U.S.C. 12101 et As noted natory animus or deliberate indifference above, the RA and ADA are coextensive ”, provided ... and we thorough explana- Barnes, 185, 122 with Title VI. 536 U.S. at majority tion of our adopt decision to (2002); S.Ct. 2097 S.H. ex. rel. Durrell explained rule. We our discussion Dist., Lower Merion School 729 F.3d (at part) response was least in (3d Cir.2013). Barnes, In the Su- Eleventh Circuit’s observation that “de- preme explained: “the for remedies spite adoption of the deliberate indif- violations of ... the ADA and ... ference many standard of our sister with the [RA] coextensive remedies courts, explication ‘there has been little private available cause of action the conclusion that intentional discrimina- brought Rights under Title VI of the Civil may tion under the RA be established Act of which prohibits racial discrim- ” (quot- deliberate indifference.’ Id. at 263 federally ination in programs funded ing County Hosp. Liese v. Indian River 185, 122 activities.” 536 U.S. at S.Ct. 2097 (11th Cir.2012)). Dist., 701 F.3d (internal omitted). S.H., citation we explained that: b. Title VI and Title IX. Section 203 of the ADA that the states years Fewer than §

remedies 202 of ten after Title VI was available under passed, Congress ADA are enacted Title IX of the the same remedies available (“Title § Similarly, under 505 of the RA. 505 Education Amendments of 1972 IX”) clearly of the RA that the to protect against gender-based states reme- dis-

317 632-33, federally funded educational 119 S.Ct. 1661. The harassed stu- crimination (2014) (“No (LaShonda) family § 1681 dent programs. reported 20 U.S.C. and her shall, on the person harassing in the United States student’s conduct to various sex, participation officials, from including basis of be excluded school her teachers and in, of, subject- 634, denied the benefits or be at principal. be Id. 119 S.Ct. 1661. any under education harassing eventually ed to discrimination student was activity receiving with, to, Federal fi- program charged pled guilty or sexual assistance.”). Congress explicitly battery nancial for harassing LaShonda and oth- “Except followed, modeled Title IX on Title for In VI. ers. Id. the suit that that, of the word ‘sex’ in Title plaintiffs alleged despite substitution the fact that ‘race, color, replace IX to the words pled guilty, the student the school took no VI, origin’ national in Title the two stat- disciplinary response action in to LaShon- language to describe the repeated complaints, utes use identical da’s and it failed to by benefited class.” Cannon v. Univ. Chi- make effort to protect LaShonda 677, 694-95, 1946, cago, separating 441 U.S. 99 S.Ct. harassing her from the student. (1979). 635, 60 L.Ed.2d 560 Id. at 119 S.Ct. 1661. The defen- argued dants that needed the interrelated nature of the stat- Given demonstrate the defendants them- utes, explicitly drafters of Title IX “[t]he LaShonda, actually selves had harassed interpreted that it be assumed would simply ignored had her applied during as Title had been VI harassment at the hands another stu- 696, preceding eight years.” Id. at 99 636, dent. Id. at 119 S.Ct. 1661. The 1946; Gorman, S.Ct. see also Barnes v. Gebser, Supreme Court relied on and held 181, 185, 2097, 536 122 153 U.S. S.Ct. that the school board could itself be liable (2002) (“The L.Ed.2d 230 Court has inter- for sexual harassment under Title IX if it consistently IX preted Title with Title VI deliberately peer- was indifferent ”); Fitzgerald ... v. Barnstable Sch. 641-43, on-peer sexual harassment. Id. at Comm., 246, 254-58, 129 555 U.S. S.Ct. (“Gebser 119 S.Ct. 1661 thus established (2009) 788, 172 (“Congress L.Ed.2d 582 recipient intentionally that a violates Title IX modeled Title after Title VI of the Civil IX, subject private damages and is to a Rights passed Act of Title IX action, recipient deliberately is where the explicit understanding with the indifferent to known acts of teacher-stu- was.”) interpreted would be as Title VI discrimination.”) (internal dent citations (internal omitted). citations The standard added). omitted)(emphasis for intentional discrimination under Title clearly IX is deliberate indifference. in- allowing The rational for deliberate County v. Monroe Board Davis Edu- difference to intentional discrimi- establish cation, 629, 642, 526 119 U.S. S.Ct. nation under Title is further illustrated VI (1999); Lago 143 L.Ed.2d 839 Gebser by obligations arising limitations and from District, Independent School 524 Vista Sending authority that each of Clause U.S. 118 S.Ct. 141 L.Ed.2d analogous upon. statutes is based (1998). Spending c. The Relevance Davis, parent brought against suit Clause County the Monroe Board of Education VI, IX, ADA fifth-grade daughter her had been Title Title the RA and the because on the same exercise of con- repeatedly sexually harassed another are all based Davis, Spending gressional power student her class. 526 U.S. at under money only cl. 1. when it damages Const. art. Clause. U.S. Ass’n, 598-99, 463 U.S. notice Guardians statute it has violated (1983) J.)(Ti White, law.”). (opinion S.Ct. VI); Gebser, 118 S.Ct. tle 524 U.S. (internal omitted). 729 F.3d at 264 citations (Title (RA IX); S.H., 729 F.3d at 264 Spending analysis of Under Clause ADA). S.H., precedent animus is not a condition Gebser, Supreme explained In Court Rather, to a contractual breach. intent authority congressional how the source of can knowledge breach be assumed from of enacting Title IX and Title VI informed circumstances, set and a refusal to

interpretation of the statutes: remedy them. This is true whether the impli- Title IX’s contractual nature has in question prohibits gender-based law dis- scope cations for our construction of the IX, disability- crimination under Title Congress of available remedies. When based discrimination under the ADA or attaches conditions to the award of fed- RA, alleged or racial discrimination is under spending power, eral funds its here under Title VI. Const., I, 8, 1, § U.S. Art. cl. as it has VI, IX in Title and Title we examine Approach 2. The District In- Court’s closely propriety private actions consistent with the Decision of Ev- holding recipient monetary liable in ery Other Circuit Court That Has damages for noncompliance with the Decided This Issue condition. Our central concern in that regard ensuring is with that “the receiv- Every Appeals Circuit Court of that has ing entity of federal funds notice [has] addressed this issue has held that monetary will be liable for a heightened discriminatory animus stan- award.” dard not apply does to Title VI claims.14 Gebser, 287-88, U.S. 118 S.Ct. 1989 Bryant See v. Independent School District added) (internal (emphasis citations omit- Oklahoma, County, No. 1-38 Garvin ted). (10th 928, Cir.2003); 334 F.3d 933-34 Zeno District,

In explained: S.H. we v. Pine Plains Central School (2d Cir.2012) (“Al- F.3d 665 n. 10 RA and ADA were enacted under [t]he Davis, though the harassment and the Congress’s Spending power; leg- Clause ‘deliberate indifference’ standard outlined power islation that is enacted under this Court, Supreme arose under Title ‘is much in the nature of a contract’ IX, we have endorsed the Davis frame- government between the federal and re- work in cipients third-party of federal cases of harassment funds and Su- “[t]he IX.”) (internal preme outside the scope Court has thus reasoned that a of Title omitted); recipient funding, Tempe of federal such as the citations Monteiro v. Un- here, Dist., may High School District be held liable ion School 158 F.3d S.H., Ap In we identified two Courts of standard as a form of intentional discrimina peals appeared adopt minority posi Similarly, Delano-Pyle, tion. Court Nieves-Marquez tion. The First Circuit in v. Appeals for the Fifth Circuit did not affirma Rico, (1st Puerto 353 F.3d 126-27 Cir. tively require discriminatory animus to estab 2003) Delano-Pyle and the Fifth Circuit in lish intentional discrimination under the RA (5th Cnty., Victoria 302 F.3d Cir. Instead, and ADA. the court affirmed the 2002). However, actually neither decision jury’s verdict based on intentional discrimina adopts "minority Nieves-Marquez rule.” tion. rejected never the "deliberate indifference” (9th Cir.1998) (internal citations Id. at 934. should 1034-35 We remand and do the omitted); County Liese v. Indian River same here. District, 701 F.3d 347-49

Hospital may The Plaintiffs here not be able to (11th Cir.2012) indif (applying deliberate ultimately they convince a fact finder that disability to a discrimination case ference prevail should under Title VI or VI, RA on Title because the is based they clearly produced but sufficient where deliberate indifference would be summary evidence to survive judgment, intent). discriminatory sufficient to show they clearly entitled have the Bryant, Appeals for the legal correct standard of deliberate indif- adjudicat- Tenth Circuit relied on Davis applied proof. ference to their ing a Title VI hostile environment claim. Bryant, 334 F.3d at 934. Plaintiffs there III. AND THIS RECORD SUMMARY alleged were students who JUDGMENT subject racially to a hostile school environ- ment. Id. at 931. The school relevant My colleagues readily concede the diffi- slurs, officials were “aware of the racial culty of a proving discriminatory motive furniture, graffiti inscribed in school necessity allowing and the concomitant in placed indifference, dants’ deliberate Plaintiffs upon admit it based the court’s belief that day entitled to their in court on their are irregu- “there must be some evidence that Title and 1983 claims whether the VI plaintiffs’ larities were related to race.” deliberate indifference is borne of deliber- Thus, Id. denied the Plaintiffs were poison ate animus or the more insidious benefit of all reasonable inferences in de- Here, conditioning.15 plaintiffs’ social fending against summary judgment and proof is more than sufficient to establish a they expected prove nega- were also fact, genuine dispute especially of material by dispelling “proce- tive all causes for the ephemeral

if we consider the nature of the irregularities” dural other than race. racially they caused deliberate indifference prove. must demanding prove After that Plaintiffs irregularities here were tied to race— Summary Judgment A. The Standard irregularities my colleagues ignore, Ignored Has Been only the District not Court failed to afford the Plaintiffs the inference demanded may “weigh I reiterate that a court summary judgment, ignored the court evi- disputed evidence and decide which is very dence that was relevant to the racial probative,” deciding more when a motion proof nexus the court demanded of. summary for judgment. Lawrence Na- below, Jersey, tional Bank I explain Westminster New As will the Plaintiffs’ (3d Cir.1996) (internal expert F.3d citations Afri- examined the extent which omitted) (holding overrepresent- the district court can-American students are interesting Perception Every Waking 15. For an discussion of the neuro- Affect Our Mo- ment,” American, logical underlying the science subtleties of Scientific Dec. http://www.scientificamerican. bias that we discussed in Cort Furniture and available Coombs, Bargh, com/article/how-unconscious-thoughtand- John A. "Our see Uncon- Thought perception-affect-our-every-waking-moment/ scious Mind: How Unconscious record, special evidentiary education classes this even absent the ed LMSD’s being completely absent from of a equivalent “smoking gun.” while expectation” college prep or ad- “high complete I am thus at a loss to under- classes, concluded placement vanced stand how the District Court could have a matter of statistical science as both as looked at this record and concluded that common sense that those numbers well as put Plaintiffs had “not forth more than a something systematic indicate “there scintilla of evidence that the LMSD had Eth- practices about the LMSD related to racially discriminatory acted with a pur- added). nicity.” (emphasis J.A. at 1676 pose [i.e. deliberate identi- indifference] evidence, discuss, I There is other that will fying placing them as disabled and them in easily genuine that is sufficient to create a Majori- education courses....” special See of material fact if the record is dispute ty at 297. Op. properly totality. viewed its Although we are assured that Any inquiry, if appropriately flexible produce cases such as this need not guided by legal the correct test deliber- proverbial “smoking gun,” it certain- indifference, would ate have realized ly appears today, they that after will be for a potential fact finder to conclude that required to produce something akin to Plaintiffs have met their burden based on evidence of either a muzzle flash all of the circumstantial I evidence here. surveillance video in order to survive point, reiterate: this the burden is summary judgment. produce merely sufficient evidence that In affirming grant summary genuine dispute there is a of material fact. judgment, my colleagues note that there Plaintiffs do not have to their prove case presented “was no evidence in the District summary judgment, survive applied the LMSD different entitled to the benefit of all reasonable procedures determining evaluation inferences. placement of African-American students (which in- Circumstantial evidence all Majority than for Caucasian students.” only permissible volved concede is not but There not to Op. does have be.16 cases) necessary in such nothing is more than a fact from an an that expert’s inference There is conclusion derived proof underlying statistically from circum- of significant drawn there is evidence Dictionary being disproportionately stances. See Black’s Law 18c African American (9th ed.2009). exactly assigned special That is what we education classes while Although suggest placement have here. I do not that none are in enrolled advanced necessarily “high this record result in a or expectation would classes.” We know inferring reasonable fact finder a racial the African-American students who indifference, on in placed special motive based deliberate here were finding clearly though such a would their supported be education classes even tests highly respect- weighted heavily applicants.” 16. A relevant article from the so for the other (n.15) periodical Bargh supra ed mentioned above note I contains 16 at 34. As discuss below, helpful why my colleagues’ appears illustration of here that African-American approach misguided placed special may to claims of bias is both well have been in students college and naive: "A admissions officer education classes based on evaluations that might grade placement. zero in on a less than stellar did not warrant such a It is application an evaluations otherwise solid medical school therefore irrelevant same prospective minority place special from a student without were used to White students in realizing negative those same features are not education classes. Court, in the District placement mary judgment such a was war- did not indicate legal explanation that deficiencies were relied citation or ranted the absence and/or justify that did not placements on for such why this is the least bit relevant does placement.17 This is special education encourage strange comfort in such a not dismissed, though even evidence that was Indeed, why I have no idea one principle. of the difficulties of we should be mindful go expense would to the trouble and that bias is no proof in such cases and alleged obtaining expert opinion about longer on sleeves” or “carried on “worn improprieties before the evidence was re- signs.” proof judicial proceeding. in a quired as District expert opinion was before the Moreover, already explained, as I have when it ruled on the Defendants’ testing separate of different no evidence summary judgment.18 motion for Al- procedures required. is evaluation certainly though such evidence would Although the abuse of discretion stan- bias, advanced the Plaintiffs’ claim of racial governs dard that our review of the Dis- its is far from fatal to those claims absence evidentiary rulings quite trict Court’s on this record. given the other evidence deferential, it is not insurmountable and procedural irregulari- or not the Whether focusing properly on the deference afford- improper place- ties in the erroneous and evidentiary ruling ought ed an not to sub- African-American students ment of these objective analysis stitute for an of whether special education classes was the result ruling anwas abuse of discretion. (i.e. indifference), inepti- of bias deliberate tude, or coincidence should be decided Thus, if proper ignore even it was summary judgment given the Plaintiffs’ and all of Dr. MAP PowerPoint Moore- evidence. (and not), testimony Williams’ it was which below, remaining I discuss in detail My colleagues acknowledge “plain- precluded record should still have sum- expert, psychologist tiffs’ [concluded] mary totality judgment. “The of the evi- in question that five or six of the students guide analysis ... dence must our rather incorrectly learning had been identified as strength than the of each argu- individual ...” Majority Op. disabled at 300. Yet Hotels, Bray ment.” Marriott F.3d evidentiary significance attach no Cir.1997). (3d my colleagues Yet nearly every the fact that individual Afri- attempt “explain[ discrep- each of the ] can-American student in this suit was im- ancies record isolation and con- [the] properly placed special education none them creates a mate- clude[ ] classes, expert opinion because that “was (internal rial of fact.” citation issue Id. proceedings not rendered until these were omitted). analysis improper “[S]uch in pending Majori- the District Court....” Id; in a case.” also discrimination see ty Op. at I 300. do not understand how City Philadelphia, F.2d Andrews bears whether the Plaintiffs sub- of (“A (3d Cir.1990) play mitted sufficient evidence to survive sum- cannot be 17. And not even include evidence Court never even this does 18. The District mentioned the fact that the record contained evidence that should have been admitted was erro- but disproportionality that the level of was statis- neously "hearsay,” labeled or could not sur- tically significant, and that it showed "there is overly rigorous vive an authentication re- something systematic prac- about the LMSD quirement. Ethnicity.” tices related to J.A. at 1676. of of its B. Plaintiffs’ understood on the basis some Statistical Evidence was Credited, Properly Not only performance, scenes but on its entire analysis proof part Plaintiffs’ consists in of similarly, a discrimination strong statistical evidence. It is summa- in- must concentrate not on the individual rized in the following chart that is based scenario.”). cidents, but on the overall on data collected Pennsylvania De-

partment of Education: body Participating special Total student at LMSD Students education courses Total %of % Number total of total % student % body special number total students % of special number education participated participated Total students in students education of students special special Number who were who students who were education education who were of students American Caucasian African African American Caucasian Year courses courses 6,945 1,255 '05—'06 7.7% 84.4% 18.1% 12.7% 82.6% 6,981 1,187 '06-'07 7.9% 83.2% 17:0% 14.5% 80.2% n 6,914 1,158 '07-'08 83.1% 16.7% 14.0% 80.8% 8.1% 6,788 1,101 '08-'09 81.6% 16.2% 13.7% 80.5% 8.0% 7,072 1,094 '09-'10 81.1% 15.5 14.3% 80.0% 8.6% than, Majority Op. at 289-90. less percentage the total of Cauca- body. sian students in the LMSD student My colleagues ignore the force of these frame, For of that percent- most time by stating “[djisporportional- numbers age of African-American students enrolled ity discrimination, per is not se evidence of in special education classes in LMSD was disproportionality] can [...] [because be percentage twice the of the number of Majority Op. either biased or unbiased.” body. African-Americans the student (internal quotation at 300 marks and cita- percentages These do not exist a vacu- omitted). true, Although tions that is reci- um. general principle tation of that does not

justify adopting wholly dismissive atti- Conroy Expert 1. Plaintiffs’ Dr. Placed disproportion- tude toward the evidence of Evidence in Statistical Context LMSD, ally considering in the it in isolation from other evidence. testimony produced Plaintiffs of an witness, expert Conroy, Dr. James five-year span captured by

For the these W. Ph.D, numbers, percentage who studied enrollment and student Caucasian stu- special placement dents in education classes in the various courses at LMSD to, that, roughly equivalent though always He African- was LMSD.19 found while Although ing Sociology necessary it is to note Ph. D. in Medical from Con- his roy's qualifications stage, impor- Distinction,” at this it is Temple University, "With he has years tant to consider that it includes "39 of research, qualified expert disability as an in education, disability, research in and health disability policy, special education and statis- adults,” among and issues children and since analysis. tical J.A. at 1670. Laude, graduating Cum from Yale and earn- as a matter of greatly jected by overre- the District Court students were American classes, law, something system- was that: “there is presented expectation” in “low dramatically underrepresented practices atic about the LMSD related they were Ethnicity.” (emphasis origi- Id. at 1676 in demanding college preparatory in more nal). placement courses. J.A. and advanced is that these courses pattern 1671-74. “The Majority District “[t]he The states Black stu- highest proportions

with the ... discussed in detail the statistical Court I strongly to be courses that dents tend plaintiffs put data that the forward.” Ma- expectations’ courses.” would as ‘low label Yet, colleagues jority Op. my at 300. both added). (italics Id., at 1673-74 ignore the District Court that abso- lutely no African-American students compo- the racial Conroy also examined during in placed “high expectation” classes “high advanced or ex- sition of the twelve by Conroy, examined and the period found that in classes. He pectation” Majority fails to note that the District students only not were African-American classes; ignored expert conclusion in those underrepresented employed “practices LMSD these related of African-American students percentage However, Ethnicity.” if even the statis- “zero.” “high expectation” in classes was isolation, in properly tics could be viewed original). in In (emphasis Id. at 1674-75 the issue not whether those dis- words, remains single African-Ameri- other indifference, parities establish deliberate assigned can of the student was they an but whether create issue of fact classes in high expectation LMSD twelve place- about African-American students’ in Lest one think 2008 was a 2008.20 Id. in aberration, expectation during ment “low classes” Conroy fluke or a statistical frame, which a period this time was when pattern “for each exactly found the same African- 2005, 2006, 2007, place single LMSD did not years and 2008.” any “high American student into expecta- years of those not a Id. at 1675. For each college prep tion” or Advanced Placement African-American student was as- single test. college prep “high expecta- or signed to a in this school district.

tion” class Majority attempts to further mini- evidentiary mize the value of this testimo- Conroy that the extent of this testified “ ny by noting that: disparity ‘significant’ the statisti- was fact, Conroy rejected Supreme cal sense.” Id. at 1676. Court also has [t]he disproportionally particular the use of standard deviations concluded that ‘any so evident that one need not be alternative mathematical stan- LMSD was prima expert grasp signifi- estabhshing in statistics to its dard’ facie case Rather, discrimination, employment he believed that and has “[t]he cance. population may significance data be stressed that or sub- Lower Merion significant by stantiality disparities of numerical must judged practically simple judged case-by-case be on a ... large observation of differences basis they] sufficiently Black must [sic] [and kinds of courses students be substan- tial that raise an up Others students wind in.” Id. inference causa- conclusion, (emphasis original). His re- tion. 3H, H, Spanish Language, Physics AP C

20. Those classes included: Latin AP Cal- Art 2 AP BC, Project, Theory Electromagnetism, Organic Chemistry culus IB Senior IB H. H, History Knowledge, Economics IB J.A. at 1674. (Part 2), English Americas HL IB Al HL

325 flawed, (quoting analysis at 276 tical Majority Op. Watson is that the data set is Trust, Bank & 487 U.S. “incomplete inadequate,” Fort Worth or that and/or 101 827 108 S.Ct. L.Ed.2d their experts’ techniques statistical (1988)). flawed. The District Court made no such finding appears and it that LMSD did not problems are other with the Ma-

There argument make such to the district jority’s attempt ignore the force of the court. First, Watson, statistical evidence. deciding statistically Court was whether The issue in Watson was whether a dis- disparate analysis appli- impact based was parate impact analysis could be used to disparate to a claim of treatment in a cable disparate establish treatment in an em- “subjective discretionary promotion sys- ployment involving discrimination suit at

tem.” 487 U.S. 108 S.Ct. 2777. discretionary promotion system a bank at nothing said that assist The Court would having employees—far fewer than the determining propriety us in of a sam- There, numbers involved here. Afri- ple probative size or the force of the “devi- plaintiff attempted can-American had Indeed, only ation” here. the Court’s use statistical evidence of the paucity of following mention of “deviation” was the promot- African-Americans who had been reference a footnote: bank, ed in order to establish her Courts have also referred to the ‘stan- disparate treatment claim that the bank analysis dard deviation’ sometimes used in promote had failed to her because of her jury emphasized selection cases. We have Supreme race. The Court held that statis- role that the useful statistical methods can disparate impact tical evidence of could be cases, have in Title but we have VII prima used to establish a facie case of suggested any particular that number disparate rejected posi- treatment but ‘standard deviations’ can determine wheth- tion of some courts looked to EEOC plaintiff prima er a has made out a facie on Employment Uniform Guidelines Selec- complex employment case area of tion Procedures. Those courts had discrimination. “adopted an enforcement rule under which impact” ordinarily adverse (internal would “not be

Id. at 995 n. S.Ct. omitted). particu- inferred unless the members of a citations group lar ... selected at a rate that [were] Majority seems concerned with the less than four-fifths of the [was] rate sample significance size here as well as the group highest which the with the rate Watson, They of the deviation. cite to Watson, selected.” 487 U.S. at 995 [was] stating: Supreme “the has ex- n. 108 S.Ct. 2777. The Court restated plained that neither the ‘courts nor defen- the “useful role that statistical methods obliged plain- dants to assume that [are] cases,” can have in Title VII but cautioned reliable,’ tiffs’ statistical evidence is “not suggested any partic- had cited, example, has the weaknesses in- ular number of ‘standard deviations’ can incomplete herent small or data sets plaintiff determine whether a has made out inadequate statistical techniques.” and/or prima (emphasis facie case....” Id. add- (internal Majority Op. at omit- citation ed). ted). clearly general That is true as a proposition, remarkably I do not The situation but understand how here differ- general proposition advances our in- ent. In order to establish deliberate indif- here, quiry. nothing theory There is on this record to ference under the advanced Afri- suggest experts’ that the Plaintiffs’ statis- Plaintiffs had first establish that inquiry, a Daubert we port could withstand being placed students were can-American experts that a have a classic battle signifi- classes at a expectation” in “low If it is not admitted jury should resolve. rate to Caucasian cantly disproportionate Daubert, still contains a under the record to my colleagues seem students. Even that must be decided factual issue that, the record establishes concede jury- Any really deny that. and LMSD does not sampling, statistical stan-

dispute about my colleagues I do note that misstate scores,” deviations, “z is beside dard challenging Plaintiffs’ for basis point. request of their for District Court’s denial hearing. My colleagues suggest a Daubert Regarding Defen- 2. There are Issues objection Reschly’s that Plaintiffs’ to re- Methodology Expert’s dants’ port paragraph.” Majority “lies with one Op. at 296. That is the District Court’s his methodol- expert explained Plaintiffs’ Reschly’s of definition of “dis- acceptance only my ogy great detail and we have proportionality.” My colleagues explain mastery colleagues’ countervailing implied rejection their of this claim as follows: to dismiss the statistical validi- of statistics Reschly’s wording find this use of “[w]e ty expert’s My conclusions. Plaintiffs’ disproportionality define be immaterial colleagues’ concern about such statistical litigation.” to the outcome of this Id. of art as: “data sets” and “statistical terms size, techniques” sample is even more However, many there are more issues one that the De- puzzling when considers Reschly’s than report with the definition Reschly, Dr. Daniel expert, fendants’ “disproportonality,” and these are set forth contrary that was reached conclusion sup- of Law filed in the Memorandum a much expert Plaintiffs’ based on smaller port of Plaintiffs’ Daubert Motion to Par- Reschly only sample size. looked two tially Report Exclude Limit the and/or years placements opposed of student as to Testimony Reschly, of Daniel Ph.D. J. J.A. years Conroy the five used to reach a Arguably, at 2916. there are numerous conclusion about the role of race problems Reschly’s report, including Moreover, Reschly placements. LMSD’s the fact that that he did not he admitted inquiry admitted that his was hurried and enough time to conduct the kind of request that he did not additional informa- have, comparison he otherwise would analy- required perform tion kind of compared by agents files he were selected sis he would have conducted otherwise be- LMSD, years only compared and he two cause there was insufficient time. J.A. at assignments. of class 2979. Id. at 2590. not, course, which The issue us is

Although Majority’s expert only I not is correct. Rather we should do address rejection appeal disagree of Plaintiffs’ of the Dis- be concerned with whether this Reschly’s trict ment genuine dispute Court’s decision to consider raises material majority fact. it subjecting evidence without to a Daubert does not believe does decision, my simply reject hearing, agree colleagues I neither with that because why I the Plain supporting nor do understand the District statistical evidence improper. hear- tiffs’ claim of That is See requested Court denied the Daubert bias. ing. Barringer I not it in detail because Federal Laboratories v. Re do discuss (3d search, Ltd., ruling bearing has no on whether 696 F.2d Cir. 1982) (“A may ... enough Plaintiffs offered evidence to sur- court resolve ‘dis Reschly’s If factual issues on con- summary judgment. puted vive re- and relevant flicting qualified experts.’ disputed affidavits of factual my issues this case. As concede, liberty good colleagues readily Nor is it at to disbelieve the proof of intent experts rarely faith statements of contained in can be achieved direct evidence. depositions presented by Majority or affidavits and Op. Accordingly, See at 269. (internal “[cjourts earlier, non-moving party”) today citations noted must be in- omitted). creasingly vigilant in their efforts to en- prohibited sure that discrimination is not Although my colleagues cite to Team- approved auspices legitimate under the States, sters v. United 431 U.S. conduct, plaintiffs ability, and a to prove 1843, (1977), they 97 S.Ct. 52 L.Ed.2d 396 discrimination deliberate [i.e. indifference manage to overlook the thrust of the rising to the level of discriminatory intent] Teamsters, analysis Court’s there. the indirectly, circumstantially, must not be employer argued defendant that “statistics crippled ... because of crabbed notions of can never in and prove of themselves the juries.” relevance or excessive mistrust of existence a pattern practice of dis- Furniture, (internal Cort 85 F.3d 1082 crimination, prima or even establish a fa- omitted, quotation marks ellipsis origi- cie shifting employer case the bur- nal). rebutting den of the inference by raised 338, figures.” the 431 Moreover, U.S. 97 S.Ct. practical the problems of rejected 1843. The Court the defendant’s proof in such cases as this counsel favor attempt to minimize the importance of sta- practical of the same kind of assessment of analysis tistical by explaining: “our cases proof that adopted pursu- the courts have make it unmistakably clear that ‘[statisti- ant to the Supreme Court’s McDonnell cal analyses have served and will continue Douglas shifting analysis. burden See to serve an important role’ cases in Green, Douglas McDonnell Corp. v. which the existence of discrimination is a U.S. 802 & n. 93 S.Ct. disputed (1973). issue.” 431 U.S. at 97 S.Ct. L.Ed.2d 668 The District Court (brackets in original). This is such a acknowledged the flexible nature of the case. proof required prima to establish a facie explained: prima case. The court “the

Moreover, the invocation of the maxim case is flexible and must be tailored facie “by statistics cannot themselves” es- specific to fit the context in which it is intent, discriminatory tablish should not applied.” F.Supp.2d at 758 (quoting “more,” obscure the fact that there is on Serv., Sarullo v. U.S. Postal 352 F.3d Thus, this record. There is much more. (3d Cir.2003)) (internal citation and opinion even if the expert of the Plaintiffs’ omitted). Yet, quotation marks the court’s not, itself, by fact, could raise an issue of it inquiry was inconsistent with the flexible is fair proper neither nor to discuss Plain- approach the court it acknowledged must if proof only relying tiffs’ on adopt. that evidence to an establish issue of fact discriminatory about intent under the de- respect presentation With to the MAP liberate indifference standard. and the attendant testimony authentication Moore-Williams, from Dr. Barbara Program C. Evidence of a “MAP” was Majority District Court and the commit Improperly Excluded and Raises a different errors. The District Court Dispute of Fact. by failing abused its discretion to admit evidence, discussing Before the MAP it the MAP it presentation because held helpful is to reiterate the nature of improperly document was authenticat- 901(a). majority Id. The Rule of tion was ever used.” ed Federal Evidence under hand, District Court Majority ostensibly agrees with the On the other admitting admissibility problem fundamental does not contest testimony MAP the lack of evidence that simply that it is document and instead holds used, it noting it was “assume[s] is to demonstrate that insufficient if intentionally against presentation, contention that this used discriminated LMSD LMSD, by provide is evidence of dis- plaintiffs. position problematic would Such criminatory intent, improper or deliberate indiffer- places it burden because Plaintiffs, discriminatory to a in- again transgresses party’s into ence third Majority at 295. testimony Op. The MAP is ad- tent.” fact-finding. admissibility—not probative missible Moore-Williams, Ed. Dr. Barbara D. is summary judg- weight, is the focus of an educational consultant retained inquiry. ment in addressing LMSD assist LMSD is- matter, important disparity initial to sues racial educational As an presentation placements. the MAP is. She was retained LMSD’s understand what her discovery, Principal give LMSD a Pow- Assistant after he saw During disclosed “Minority presentation at a consortium area presentation erPoint entitled (MAP) Program” presentation LMSD schools. J.A. at 1410. Her Achievement on proficien- October that addressed the issue of “cultural letterhead dated inadmissible “as a cy” deemed be- and educational success national District Court According Id. properly it was not authenticated. issue.” at 1411. Moore- cause Williams, Principal ap- an abuse of discretion that had a the Assistant was That was very parently retaining on in significant impact litigation, interested her be- path thought one more obstacle in the cause he her work and information threw jury validity determine of would be to LMSD. Id. having helpful 1410. allegations against proficiency this school Her work focused on “cultural Plaintiffs’ among district. staff that teach children who are culture, race, their their their ethnici- alleged “document lists char- The MAP ty, and attention to pay the need to Afri- students, acteristics of African-American who are struggling can-American males learning’ including preference ‘tactile to get America an education....” Id. ‘[sjubdued lighting’ they ‘[r]ely that input rather audito- The District refused to heavily on visual than consider ‘[rjeact ry intensely that input,’ entirety of Dr. Moore-Williams’s testi- ” Blunt, mony or criticized.’ being praised against LMSD “discriminated (brackets F.Supp.2d original). at 761 African-Americans” because she also testi- in all District Court refused consider the fied “there is racism school Merion contents of the brochure because “the rec- districts and that Lower School problems ord no different does not reveal who created this docu- District’s from any other school ment or under what circumstances and suburban district.” Blunt, F.Supp.2d what the creator or occu- at 761.21 The position creators Dis- within Dr. pied thought the School There is trict Court Moore- District. more purported testimony no that the Williams’ was little than presenta- evidence whether, staff, “[bjased directly experi- [her] her she When asked based on stated ence, So, everybody. prejudice yes, experience and conversations with LMSD there's personnel prejudice regarding teaching prejudice there’s in the Lower Merion in the School staff, any prejudice teaching there was District.” J.A. at 1412. hearsay through belief and state- sel took “personal her Moore-Williams the Pow- Id. The District Court erPoint: ments of others.” reasons, concluded that for these “her Q. regard to [W]ith the fourth bullet genuine cannot create a issue statements point concerning highly cooperative learn- regarding fact of material School Dis- ing? My intent to discriminate.” Id. col-

trict’s A. Yes. leagues agree. Majority Op. at 288-89. Q. implemented? That has been testimony Regardless, parts her purpose nevertheless admissible for the A. Yes. shedding light on the MAP PowerPoint. Q. And has the fifth bullet point con- noted, just As I have that PowerPoint cerning simultaneous talk instead alternat- purported things to list several that were ing talk implemented been Lower Mer- way characteristic of the African-Ameri- ion School District? part: can students learn. It stated in A. Yes. “Many pre- African-American students Q. And what about the use of music fer: studying? conversation in the room while more learning, sub- kinesthetic/tactile A. I haven’t heard. lighting bright light, dued rather than rely heavily input on visual rather Q. point. And that was the sixth bullet auditory input, respond than to coop- Now, what about the seventh point bullet learning, erative talk in- simultaneous concerning the outer-directed rather than talk, alternating study stead of egocentric focus? or while music conversation occurs in A. No. the room ... outer-directed rather Q. eighth And what about the bullet focus, than egocentric more active en- said, point concerning, I you believe more sedentary vironments v. learning envi- sedentary active environments versus Schools, rely ronments of American learning environments.? more on information from their sur- roundings. A. Yes. During deposition,

J.A. 1838. her Q. And how have teachers described Moore-Williams was asked if she had ... sedentary active environments versus “ever heard a teacher or a staff member learning environments with African-Amer- from Lower Merion School District discuss ican students in the district? input auditory

the use of visual rather than along A. Kind of cooperative with input their classrooms.” Id. at 1414. learning, cooperative learning because is She affirmed she had. Id. She was with, conjunction active. So it’s in we then asked about each of the items listed things need to do more where the kids in the MAP PowerPoint. Id. re- Counsel up interacting and about and with each place ferred to them their on the list. other.22 Although Id. she had not heard teachers Id. at 1414. points, refer to each of the bullet she had Although heard teachers refer to some of them. Id. could not cor- Moore-Williams following exchange prés- occurred as coun- roborate that the MAP PowerPoint "Cooperative learning” cooperative 22. is the 14th bullet ter under conditions.” J.A. point on the MAP PowerPoint: "Function bet- entirety, strategies to African-American students. in its the entation had been used However, portion its discretion so of the MAP docu- District Court abused beliefs focusing generalities quoted begins of her ment above with the state- on public all schools “Many about the extent to which ment: African-American students of racism degree are infected with some ... ”. The fact that Moore- prefer testi- that it the fact that her overlooked did not hear mention Williams teachers very mony establishing relevant to was African-American students when discuss- lacking—that fact the District Court found styles ing unique learning suggested adopted had the MAP Power- teachers clearly is presentation the MAP fodder (at in part). Point least closing argument at trial. defense counsel’s ignore It not a reason to the existence of is My colleagues conclude that because disputed fact. While Moore-Williams’ testify about “Dr. Moore-Williams did testimony only place need relevant “dots” necessarily presentation itself,” it the MAP evidence, Plaintiffs into should be able testimony “does not estab- follows her rely resulting on the inferences to connect prepared presentation, lish who not, however, They them. should have to whether LMSD ever it or for what used dots, explicitly connect all of the color in purpose.” Majority Op. at 295. The con- resulting image, picture and frame the the detail with clusion fails consider summary judgment. to survive There is which Moore-Williams referred an enough support record infer- presentation. teaching approaches ence that the distinct importantly, More it does not refute the were aimed at African-American students admissibility testimony pres- of the or the given language presenta- of the MAP disput- entation. While the District Court specificity tion and the of Moore-Williams’ authenticity presentation, ed the testimony about what she heard certain identify Majority does not such failure discussing. teachers requirements meet of Federal Rule testimony, along taken 901(a). Moore-Williams’ this is be- Perhaps of Evidence itself, clearly supports the evidence cause authentication under Federal Rule inference that 901(a) reasonable LMSD both was incredibly “slight” of Evidence and, a proprietor through their teachers burden, may by simply which be satisfied personnel, and other used the MAP. The producing support “evidence sufficient to on in document is LMSD’s letterhead its finding proponent that the item is what the supplied discovery. it in 901(a). header and LMSD claims is.” Fed.R.Evid. suggestion There is no that it fabricat- was My colleagues concede that Moore- ed, Majority and neither the nor the Dis- Williams “indicated that she heard of cer- veracity trict contest the of Court the doc- points,” they argue tain bullet but Yet, ument. because Plaintiffs could not they “she noted that were not related to identify the author of this document it was most, African-American At her students. deemed inadmissible. testimony is relevant to the extent that she matter, Majority personnel heard from LMSD As final contends teaching strategies par- properly rejected used different that the District Court Majority testimony Op. ticular students.” at 295. Moore-Williams’ as inadmissible My colleagues probative hearsay. Majority Op. then dismiss the at 288-89. Howev- er, testimony testifying value of be- was Moore-Williams’ Moore-Williams about testify cause she did not that she heard statements teachers made to her about the specifically certainly ap- teachers connect the MAP conclusions in the MAP. It below, by that the statements were made cussed three of pears plaintiffs, Q.G, C.H., S.H., acting scope of their incorrectly placed teachers within were in LMSD, at and neither special duties as teachers education although they courses sug- nor District my colleagues placement did meet the criteria for contrary. According- gest anything to the those courses. Id. testimony Jones’s hearsay. ly, those statements were not supported by corroborated and the testi- They party opponent admissions. mony Shapiro, of Dr. Barbara Ph.D. the 801(d)(2)(D)(noting See Fed.R.Evid. that a Services, Assistant of Pupil Director who hearsay statement is not when state- supervised “[t]he psychologists school at LMSD. against party ment is offered an opposing opined that Q.G., Jones Plaintiff an Afri- by and ... party’s agent was made LMSD, can-American student at in- “was employee scope on a matter within the correctly by identified LMSD as a student existed.”). relationship and while it who met Learning the criteria for a Dis-

ability in Language the area of Arts.” Id. Testimony Psychologists D. 2318. She added: “[a]s initial mat- Arts is not Supports import, ter Language

Parents Plaintiffs’ Con- disability category.” (empha- tention that Race is a Factor Id. at 2318 Thus, Assigning Special original). sis in assuming Edu- even Students accuracy Q.G. cation of LMSD’s Classes conclusion Arts, was deficient in Language according produced expert Plaintiffs Rebuttal testimony undisputed Plaintiffs’ Jones, Report of Tawanna J. Ed. S. Certi- expert, that should not have resulted in Psychologist. fied School See id. 2306. Q.G. being placed special education Her Curriculum was her Vitae attached to Q.G.’s classes. academic skills then de- report, and her expertise appropri- being placed clined over time “after ate areas is not disputed.23 She was re- Special (emphasis Education.” Id. at 2319 by tained to rebut expert Plaintiffs in original). report Reschly, expert. LMSD’s Jones Q.G.’s placement The dubious nature of specifically give expert was asked to her a single deficiency based on is corroborat- (1) opinion about “whether: each of the testimony of Shapiro. Shapiro ed properly student Plaintiffs were identified began working in the in the fall of LMSD having learning disability; [LMSD] Pupil 2003 as Assistant Director of Ser- (2) placement based LMSD’s of each vices. J.A. at ten supervised 1387. She student Plaintiffs into low level [sic] and/or psychologists school in that until capacity classes, special education were the student 1, 2009, during March that time she “col- equality Plaintiffs denied the of education special supervisors laborated with the ed they should have otherwise received....” regarding special ed services district Id. at 2307-08. Jones found that the stu- wide.” Id. dents whose files she reviewed erro- were neously by evaluated Shapiro school district. testified that no student should Specifically, placed See J.A. at 2318-20. as dis- ever be special into education serving working proper placement, 23. Jones was then a Certified as to ensure student Psychologist services, School for the School District of provision adequate "development of Philadelphia. primary responsibilities Her appropriate of behavioral and academic evaluating determining included students goals, planning post-sec- and transition for eligibility Special for Education Services. ondary options.” J.A. at 2306. She was also a collaborative team member student, yet of another evaluation at 1393. Jones’ one score. Id. based on classes S.H., troubling. the most may look at be you would Plaintiff psychologist, “As a just and never measured child skills and abilities picture entire “All of S.H.’s piece one disability based on range point determine at the ‘Average’ in the Yet, that was not Id. of information.” lack Despite the initial assessment.... Q.G. special edu- place to process used eligibility, to determine required evidence need, and that she did not cation classes meeting as the evaluator labeled S.H. develop- her educational impeded which subsequently a SLD and criteria for ment. experience [in to an academic doomed S.H. that did not that expectation courses] also testified LMSD

Shapiro specialed—low Psychological American comply with the rather than development her impeded retention. for record protocol Association’s her academic or accelerated remediated testing pro- meant that This J.A. 1397. According to Dr. Id. at 2320. progress.” placement students’ tocols that determined Jones, provid- from the data is evident “[i]t destroyed be- in classes were sometimes for was never a candidate ed that S.H. (and thereby examine parents fore could auspices of a under the Special Education were Although parents challenge) them. view, apparent “[i]t Id. her SLD.” request they right had a informed that either were not subsequent that evaluators not believe Shapiro did protocols, these or inten- of the criteria for a SLD aware of this ever informed parents that ignore the criteria as tionally chose The result policy. shortened retention by the fact that S.H.’s not demonstrated ask to see would often parents was that for was initially meeting the criteria SLD learn testing protocols, only to their child’s by LMSD.” subsequently never addressed disposed of. Id.24 they already had been Id. initial evalua- that the opined Jones also that did not mother testified she S.H.’s student, another African-American tion for denied edu- daughter her was believe indication, C.H., a clear “provided Plaintiff se, but was troubled per cational services in the and needs that there were deficits in lower level placed because S.H. was Ba- Comprehension and Reading areas demanding. not S.H.’s courses that were (reading decoding).” reading skills sic object place- initially mother did not evidence, ... However, no was “[t]here letters from she received ment because [specific criteria for SLD that she met the receiv- informing her that S.H. was LMSD disability] the area Written learning mother reading support, which S.H.’s ing at 2319. or Mathematics.” Id. Expression daughter extra giving her interpreted data the absence of believed Jones “[Njobody in help. She said give sup- impossible made it C.H. it was a remedial school told [her] the one area needed to address port she course, an en- just thought no. I was deficient, al- and still appeared she where as an enrich- presented richment. It was areas normally in the progress low her to So, reading. help ment course to kids with support was the need such where me, at 1165. more is better.”25 Id. Id. at 2319-20. indicated. necessarily proves nefarious conduct merely to illustrate 24. I mention this evidence employees. LMSD genuine to which Plaintiffs raised the extent regarding those disputes facts of material Although Court held the District have been resolved claims and should testimony was inadmissible S.H.’s mother's suggesting that this a fact finder. I am not (third hand ac- respect to other issues 333 here, parents Transcript Argument Like most of the S.H.’s of Oral Blunt District, v. Lower initially object not because she Merion School mother did F.3d (Nos. 11-4315). 11-4200, 11-4201, At trusted the school officials and assumed repetition: the risk of totality “the in they acting were S.H.’s best interests. guide evidence ... must our analysis rath- finally mother testified that she ob- S.H.’s er than strength of each individual jected placement to S.H.’s after inde- argument.” Hotels, Bray v. Marriott psychologist evaluated S.H. pendent (3d Cir.1997). F.3d grade tenth and concluded that S.H. did learning disability. According not response glaring this evidence in mother, gave support they to the the school then her of Plaintiffs’ claims that 1167; placed into “pushback.” generally, special Id. at see education be- id. classes cause of their race rather than their rela- pushback at 1153-67. This demonstrates need, Majority tive academic simply the school was aware of the issues makes a blanket assertion that “if the placement, respond- involved S.H.’s procedures same evaluation are used for in a jury ed manner that a could conclude all students or their race [sic] there is deliberately was indifferent. simply Majority Op. no discrimination.” differing The ir- kinds omissions and deeply proble- 300. This statement is regularities evidenced Dr. Jones’ as- First, matic for two reasons. it assumes C.H., placements Q.G., sessment of the procedures that the themselves cannot be S.H., Shapiro’s testimony, as well as re- Second, discriminatory. and most impor- way flect some of the difficulties in the this here, tantly “procedures” assumes the litigated case has been as well as some of evaluation, comprise whole of the thus the conceptual difficulties and confusion ignoring subjectivity the discretion and af- inherent in litigation posture here. In- applying forded the examiner who is deed, counsel for CBP addressed this con- procedures interpreting the results of argument: cern at oral the evaluations. general above, confusion in case clearly procedures this As noted initially there were special-education applied appropriately were not with re- case; claims in the spect those claims were to Plaintiffs. LMSD’s own Assistant dismissed because of failure to exhaust. Director of Pupil Services testified that followed, There were also Title claims. procedures including VI What were not was, happened through the course of dictating those for which students should discovery though process placed special of be education classes. See evaluations, instance, supra children discovered that at 280-81. For as noted above, ... most of them Q.G. having had never had the LMSD evaluated they learning disability subject disabilities that the district said in the of lan- arts, had.26 guage disability which is not even a students), they counts of teachers’ statements on the basis of race. This assertion that testimony provide any does such are not disabled is in stark contrast to the problem. Blunt, Complaint Third Amended ...” Ftowever, F.Supp.2d purposes at 753. 26. The District Court commented on what it motion, deciding summary judgment “moving target” by must have seen as a not- plain- District assumed that the student ing: opposition “[i]n their brief tiffs were "in fact not disabled.” Id. at 754 n. summary judgment, plaintiffs motion for now assert are not disabled and were wrongly placed special programs education directly happen only at 2318. This be- mistakes seem to in one di- category. J.A. that as Majority’s lies the broad assertion rection. There were no African-American neutral, long procedures “high expectation,” college as the students in law, cannot, as a matter in consequences prep placement or advanced classes discriminatory. during years considered Similar school district experts be always tools can procedures Speculation diagnostic and evaluative studied. about er- discriminatory ways, in applied patently simply that—“speculation;” be ror is it should misapplication of their with play legal inquiry. and evidence no role in our certainly Plaintiffs is evi- respect and deliberate in-

dence discrimination Testimony F. There is that Teachers n.16 at 34. difference. See and School Administrators Had No- infra Allegations tice of These is, course, argue It that possible in placement the errors on this record are put Plaintiffs have also forward suffi- simply the result of the district’s less than cient evidence of deliberate indifference. selecting desirable and inartful method of They established LMSD was aware of special education classes. students problems arising the racial from the class- surely in happen, especially Mistakes can assignments room provision of re- such a subtle and intricate complicated, sources, ignored and it requests Plaintiffs’ process identifying as students who cannot remedy disparities. the racial As noted regular handle academic work in a class- above, standing the section on CBP’s However, every oppor- room. LMSD had Metzger, special Ms. a former education tunity to come forward with evidence that LMSD, teacher at testified that as a teach- numbers of students are also mis- White er she “was invited to and sat in on a takenly placed special education classes portion of a Concerned Black con- Parents negated could have the causal versation with some of the school adminis- placement nexus of the erroneous of these meeting, trators.” J.A. at 1456. At this plaintiffs. African-American It offered no parents and students raised concerns that such evidence. students, whole, “African-American as a as discussed, argued

Even if it could be performing we were not rate, production decision forego experiencing such the same the same students; political evidence results from consider- success as other that [African proof ations rather than absence of such American families believed District] (and nothing supports on this record such that [African students didn’t American] school; speculation), rank the fact remains that feel welcome in the that [African only this record contains evidence of Afri- American families believed District] times, erroneously being guidance can-American students that at counselors or oth- ers, “learning being personnel, maybe labeled as disabled” and didn’t afford denied full of a public benefits edu- same consideration when it came to the hap- college planning process.” cation. There is no evidence of this (emphasis Id. added). pening with students and the infer- Metzger’s testimony White As makes clear, ence that Plaintiffs are entitled to should the “school administrators” who at- getting from prevent meeting along LMSD eviden- tended this with her had Moreover, tiary bye. to the extent that notice that African American families had happen placement, complained receiving innocent mistakes were not that, and, should be noted where the more chal- peers, the same education as their concerned, lenging yet, curricula is all nothing changed. such addition, above, may I when and direct evidence of discussed intent as be F.Supp.2d of one of these ob- available.” 689 at 755. (empha- the mother jected daughter being original, quotation to her identified as sis internal marks omitted). learning disability, sorely the school That having lacking is here. rather than under- gave “pushback,” her I also note the laudable caution of Judge appropriateness into the taking inquiry Baylson in Doe in explaining: “[this] daughter’s placement special of her edu- particularly is grant Court reluctant cation. J.A. 1167. summary judgment deny and to Plaintiffs case, right to trial which in- IV. CONCLUSION public policy great volves issues of recognize difficulty We all of identi- community.” concern to the Id.

fying by students who are best served I respectfully therefore must disagree special kind of remediation that education my colleagues’ belief that the District' provide, classes are intended to and that Court did not err in concluding that no process perfect. no of evaluation is How- genuine dispute of material fact exists on ever, second-guess- this ease is not about this record. ing placement of students remedial It not hopes classes. about frustrated And,

parents despite or students. Quota

specter Boogey of the The man by Majority,27

raised it is not about many

how African-American students

should in a placed particular be academic

track.

This case is about whether will courts

allow plaintiffs produced who have proof

kind of that I have discussed above summary judgment to survive and have METROPOLITAN EDISON COM day their in court prove something PANY; Pennsylvania as Electric subjective and evasive as the deliberate Company, Appellants indifference that is tantamount to racial bias. produce

When can the kind of PENNSYLVANIA PUBLIC UTILITY here, COMMISSION; Powelson; produced evidence that has been Robert F. Witmer; Coleman, Jr.; requires law their ultimate claims of John F. Pamela A. l finder, adys Brown; a fact M. H. bias be determined not James *G Cawley, Capacities Judge Baylson a court. As stated in Doe 1 In their Official Pennsylvania v. Lower Merion Sch. Dist.: “The Su- Commissioners of The Utility Commission; preme has clarified that [d]etermin- Public Office of Advocate; ing discriminatory pur- whether invidious Small Business Met-Ed In Group; factor Penelec Indus pose motivating was demands dustrial Users inquiry sensitive into such circumstantial trial Customer Alliance. (“We Majority Op. certainly ing special [to See students to education classes going require suggest even proportionality].”). achieve quota system assign- school districts use a notes students’ lockers and note- plaintiffs rely solely to on circumstantial yet, principal books” and affirma- “[t]he (“indi- Majority evidence. atOp. See tively to take no action.” Id. at 932- chose viduals who violate the law based on dis- noting offending 33. that the con- While criminatory motives sometimes do not pass duct must be intentional to muster evidence, a leave trail of direct but instead VI, under Title the Tenth ex- Circuit by providing ‘cover their tracks’ alternate plained: implicates intent” “[c]hoiee lest actions.”). explanations for their We have ... in- idly, “school administrators sit or in discussed this some detail in the context tentionally, by while horrible acts of dis- job of claims of discrimination. In Aman grounds by crimination occurred on their (3d Furniture, v. Cort 85 F.3d charge.” and to students in their Id. at Cir.1996), we stated: “defendants of even court 933. The added: “when administra- minimal neither admit sophistication will duty provide tors who have a to a nondis- a discriminatory paper animus nor leave criminatory educational environment for demonstrating trail it.” This is especially charges egregious their are aware of made (as true since those who harbor conscious forms of intentional discrimination and subliminal) opposed may attempt bias to make the intentional choice to sit Majority Op. “cover tracks[.]” their nothing, they do can be held liable” under 275. Title VI. Id. Thus, bias will manifest itself sometimes The court court instructed district only ways in that the actor subtle him/her on remand: to the test from apply Davis In may cognizant self not even be of. Cort County v. Monroe Board Education Furniture, explained we that “Discrimina to a Title hostile school environment VI pollute tion continues to the social and claim IX Congress because based Title life, economic mainstream of American VI; therefore, on Title anal- the Court’s in simply is often masked more subtle ysis of what constitutes intentional sexu- forms.” 95 F.3d at 1082. Coombs v. directly al discrimination under Title IX (3d 255, 264 analysis Diguglielmo, our 616 F.3d Cir. informs of what constitutes 2010), discussing possible intentional racial under in uncon discrimination (and versa). striking prosecutor Title VI vice scious bias of “[ljike had failed explained, anyone ruling plaintiff erred jurors Black we else, summary human offer evidence to survive attorneys possess those trial judgment on its discrimination claim where far too frailties that make each of us sus- simply the district court had discounted ceptible conditioning to social and the sub- pro admissible evidence as less may Surely, result.” liminal bias that defendant’s.). Similarly, bative than courts schools, though even public teachers our may credibility not “make determinations they may acting not be out of racial ani- evidence; engage any weighing bias, human, no mus or conscious less instead, nonmoving party’s evidence ‘is and no more immune to the “frailties believed[,] justifiable and all to be infer susceptible far too make each of us ” ences are to be drawn his favor.’ Mari conditioning and the subliminal bias social Co., Crating no v. Indus. 358 F.3d result,” attorneys may than are. Cir.2004) (3d (quoting Liberty Anderson v. This does not eliminate the Plaintiffs’ Inc., Lobby, 477 U.S. 106 S.Ct. produce enough need to evidence sur- (1986)). 2505, 91 L.Ed.2d 202 summary judgment. vive a motion for acknowledge The District Court did However, nature of the fact to be “[ejvidence procedural irregu- Plaintiffs’ proven analysis must inform a court’s way larities” in the some of children If produced. the evidence that is Plaintiffs erroneously placed special into edu- produced enough evidence to raise Blunt, cation F.Supp.2d classes. genuine issue of material fact as to Defen- Yet, dismissively the court refused to

Case Details

Case Name: Blunt v. Lower Merion School District

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 12, 2014

Citation: 767 F.3d 247

Docket Number: 11-4200, 11-4201, 11-4315

Court Abbreviation: 3rd Cir.