                                            PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                 ________________

              Nos. 11-4200, 11-4201, 11-4315
                    ________________

                        No. 11-4200
                     ________________

AMBER BLUNT, on behalf of herself and all others similarly
 situated; CRYSTAL BLUNT; MICHAEL BLUNT, on their
   own behalf and on behalf of all others similarly situated;
   S.H.; W.W.; ERIC ALLSTON, on his own behalf and on
behalf of all others similarly situated; LYDIA JOHNSON, on
 her own behalf and on behalf of all others similarly situated;
 LINDA JOHNSON; CAROL DURRELL, on her own behalf
and on behalf of her minor daughter S.H.; CHANTAE HALL,
      and on behalf of all others similarly situated; JUNE
  COLEMAN, on her own behalf and on behalf of her minor
    son, R.C., and on behalf of all others similarly situated;
   LYNDA MUSE, on her own behalf and on behalf of her
   minor daughter Q.G. and on behalf of all others similarly
 situated; CHRISTINE DUDLEY, on her own behalf and on
behalf of her minor daughter W.W. and on behalf of all others
 similarly situated; THE CONCERNED BLACK PARENTS
 OF MAINLINE INC; THE MAINLINE BRANCH OF THE
                            NAACP

                              v.
  LOWER MERION SCHOOL DISTRICT; THE LOWER
    MERION SCHOOL BOARD; PENNSYLVANIA
         DEPARTMENT OF EDUCATION

 Linda Johnson, Lydia Johnson, Carol Durell, Chantae Hall,
 S.H., Christine Dudley, W.W., Eric Allston, June Coleman,
                 R.C. Lynda Muse, and Q.G.,

                                Appellants in No. 11-4200
                     ________________

                        No. 11-4201
                     ________________

AMBER BLUNT, on behalf of herself and all others similarly
 situated; CRYSTAL BLUNT; MICHAEL BLUNT, on their
   own behalf and on behalf of all others similarly situated;
   S.H.; W.W.; ERIC ALLSTON, on his own behalf and on
behalf of all others similarly situated; LYDIA JOHNSON, on
 her own behalf and on behalf of all others similarly situated;
 LINDA JOHNSON; CAROL DURRELL, on her own behalf
and on behalf of her minor daughter S.H.; CHANTAE HALL,
      and on behalf of all others similarly situated; JUNE
  COLEMAN, on her own behalf and on behalf of her minor
    son, R.C., and on behalf of all others similarly situated;
   LYNDA MUSE, on her own behalf and on behalf of her
   minor daughter Q.G. and on behalf of all others similarly
 situated; CHRISTINE DUDLEY, on her own behalf and on
behalf of her minor daughter W.W. and on behalf of all others
 similarly situated; THE CONCERNED BLACK PARENTS
 OF MAINLINE INC; THE MAINLINE BRANCH OF THE

                              2
                           NAACP

                              v.

  LOWER MERION SCHOOL DISTRICT; THE LOWER
    MERION SCHOOL BOARD; PENNSYLVANIA
         DEPARTMENT OF EDUCATION

 Amber Blunt, Crystal Blunt, Michael Blunt and Concerned
             Black Parents of Mainline Inc.,

                                Appellants in No. 11-4201
                     ________________

                        No. 11-4315
                     ________________

AMBER BLUNT, on behalf of herself and all others similarly
 situated; CRYSTAL BLUNT; MICHAEL BLUNT, on their
   own behalf and on behalf of all others similarly situated;
   S.H.; W.W.; ERIC ALLSTON, on his own behalf and on
behalf of all others similarly situated; LYDIA JOHNSON, on
 her own behalf and on behalf of all others similarly situated;
 LINDA JOHNSON; CAROL DURRELL, on her own behalf
and on behalf of her minor daughter S.H.; CHANTAE HALL,
      and on behalf of all others similarly situated; JUNE
  COLEMAN, on her own behalf and on behalf of her minor
    son, R.C., and on behalf of all others similarly situated;
   LYNDA MUSE, on her own behalf and on behalf of her
   minor daughter Q.G. and on behalf of all others similarly
 situated; CHRISTINE DUDLEY, on her own behalf and on

                              3
behalf of her minor daughter W.W. and on behalf of all others
 similarly situated; THE CONCERNED BLACK PARENTS
 OF MAINLINE INC; THE MAINLINE BRANCH OF THE
                          NAACP

                             v.

  LOWER MERION SCHOOL DISTRICT; THE LOWER
    MERION SCHOOL BOARD; PENNSYLVANIA
         DEPARTMENT OF EDUCATION

               Lower Merion School District,

                                  Appellant in No. 11-4315
                    ________________
      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
                (D.C. Civ. No. 2-07-03100)
          District Judge: Hon. Harvey Bartle, III
                    ________________

                   Argued June 11, 2013

     BEFORE: MCKEE, Chief Judge, and AMBRO and
             GREENBERG, Circuit Judges

                (Filed: September 12, 2014)
                      ______________

Patrick Castaneda
Matthew A. Goldberg

                             4
Carl W. Hittinger (argued)
John D. Huh
Lesli C. Esposito
Nathan P. Heller
DLA Piper
1650 Market Street
One Liberty Place, Suite 4900
Philadelphia, PA 19103

   Attorneys for Appellants Linda Johnson, Lydia
   Johnson, Carol Durrell, Chantae Hall, S.H., Christine
    Dudley, W.W., Eric Allston, June Coleman, R.C., Lynda
    Muse, and Q.G.

Jennifer R. Clarke (argued)
Benjamin D. Geffen
Sonja D. Kerr
Barbara E. Ransom
Public Interest Law Center of Philadelphia
1709 Benjamin Franklin Parkway
United Way Building, 2nd Floor
Philadelphia, PA 19103

Judith A. Gran
Reisman, Carolla & Gran
19 Chestnut Street
Haddonfield, NJ 08033

   Attorneys for Appellants Amber Blunt, Crystal Blunt,
   Michael Blunt and the Concerned Black Parents of
    Mainline Inc.

                                5
Jenna B. Berman
Michael D. Kristofco (argued)
Wisler Pearlstine
460 Norristown Road
Suite 110
Blue Bell, PA 19422

   Attorneys for Appellees Lower Merion School District
   and Lower Merion School Board

Amy C. Foerster
Saul Ewing
Two North Second Street
Penn National Insurance Tower, 7th Floor
Harrisburg, PA 17101-0000

M. Abbegael Giunta
Howard G. Hopkirk (argued)
Office of Attorney General of Pennsylvania
Strawberry Square
15th Floor
Harrisburg, PA 17120-0000

   Attorneys for Appellee Pennsylvania Department of
   Education
                         ______________

                   OPINION OF THE COURT
                       ______________


                                6
GREENBERG, Circuit Judge.

                TABLE OF CONTENTS

I. INTRODUCTION                                    9

II. FACTS AND PROCEDURAL HISTORY                   15

III. STATEMENT OF JURISDICTION                     33

IV. STANDARD OF REVIEW                             34

V. ISSUES PRESENTED ON APPEAL                      37

VI. SUMMARY OF THE LAW                             40

     A. The Individuals with Disabilities Education
         Act                                         40
     B. Redress and the Statute of Limitations under
         the IDEA                                    44

     C. Title VI of the Civil Rights Act of 1964   50

     D. 42 U.S.C. § 1983                           53

     E. Section 504 of the Rehabilitation Act
        and Relevant Regulations of the
        Department of Education                    55

     F. Americans with Disabilities Act            58


                            7
     G. Establishing a Prima Facie Case of
        Racial Discrimination Through
        Circumstantial Evidence                   59

     H. Class Actions and Res Judicata
         (Claim Preclusion) Defenses              62

           1. Claim Preclusion                    62

            2. Application of Res Judicata
               (Claim Preclusion) in Class Actions 64
     I. Standing                                   65

VII. ANALYSIS                                     71

     A. The Effect of the Gaskin Settlement
        on the Claims Against the PDE             72

     B. Whether CBP Has Standing in this suit     77

     C. The Blunts and the 90-day Statute of
        Limitations under the IDEA, as Revised
        by the Individuals with Disabilities
        Improvement Act of 2004                   96

     D. Whether Appellants Established a Prima
        Facie Case of Racial Discrimination       102

           1. Rejection of Certain Evidence by
              the District Court and Alleged
              Impermissible Reliance on Other

                           8
                  Evidence Without a Daubert
                  Hearing                                104

                     a. The MAP Presentation             106

                     b. Daniel Reschley’s Report         107

              2. Whether the District Court Properly
                 Viewed the Evidence in the Light
                 Most Favorable to the Plaintiffs as
                 Non-Movants and Whether Plaintiffs
                 Established a Prima Facie Case of
                 Discrimination                      109

              3. Statistical Evidence                    116

VIII. CONCLUSION                                         121


                     I. INTRODUCTION

        In what may be an oversimplification, we introduce our
opinion on this appeal by setting forth that the central
controversy is a dispute over whether African American students
in the Lower Merion School District (“LMSD”) public schools
in Montgomery County, Pennsylvania, were deprived of
appropriate educational services due to racial discrimination and
segregation in violation of federal law. The plaintiffs
unsuccessfully brought this action pursuant to the Individuals
with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et
seq.; the Americans with Disabilities Act (“ADA”), 42 U.S.C.

                               9
§§ 12101, 12132; § 504 of the Rehabilitation Act of 1973 (the
“RA”), 29 U.S.C. § 794(a); Title VI of the Civil Rights Act of
1964 (“Title VI”), 42 U.S.C. § 2000d; 42 U.S.C. § 1983; and
state law, claiming that African American students in the LMSD
suffered from such discrimination.1 They now appeal from
portions of the District Court’s orders on federal issues entered

1
  During the course of the District Court proceedings, plaintiffs,
based on a then recent examination by a psychologist, asserted
that five or six of the student plaintiffs had been identified
incorrectly as being learning disabled. Tr. Oral Arg. June 11,
2013, at 12, 14, 19, 36. Therefore, at oral argument before us
the parties focused on the Title VI and § 1983 claims, as the
District Court had held that the IDEA, ADA and RA were
inapplicable to the claims of the plaintiffs who by then
contended that they wrongly had been identified. The plaintiffs’
arguments were further limited because the IDEA, ADA, and
RA claims of all individual plaintiffs except those of one family,
the Blunts, were dismissed as a result of their failure to exhaust
IDEA administrative remedies. Recently, however, in a related
case, S.H. v. Lower Merion School District, 729 F.3d 248 (3d
Cir. 2013), involving litigants who also are parties to this action,
we held that students incorrectly identified as learning disabled
may not bring claims under the IDEA, though they still may
have claims under the RA and the ADA. Id. at 257, 260-61.
But, as far as we can ascertain, Amber Blunt, a student plaintiff,
and her parents continue to press their original claims under the
IDEA. Consequently, we address a statute of limitations issue
relating to their IDEA claims even though Amber now claims
that she is not learning disabled.


                                10
at various times during the course of the litigation. We,
however, are not concerned with the substance of the state law
claims on this appeal as the District Court did not exercise
jurisdiction over those claims.

       This case encompasses a myriad of legal issues, including
standing to bring suit, application of a statute of limitations, res
judicata (claim preclusion), application of disability laws,
appropriateness of education provided to students, anti-
discrimination laws, and sections of the Code of Federal
Regulations implementing the applicable laws. The case on
appeal also includes a cross-appeal by the LMSD, but we will
dismiss the cross-appeal without deciding it on the merits as it is
moot. The District Court found that the plaintiffs did not
present sufficient evidence to survive LMSD’s motion for
summary judgment on the discrimination charges and the Court
dismissed plaintiffs’ other claims for other reasons. Thus, the
Court did not find that there had been any violations of federal
law.

       Plaintiffs, now appellants, appeal from the District
Court’s October 20, 2011 Memorandum and Judgment Order
granting a final summary judgment to defendant LMSD and
against all the plaintiffs in the case remaining at the time that the
Court granted summary judgment, the Court already having
dismissed several of the parties and claims from the case by
previous orders.2 Appellants also appeal from rulings in two

2
  Throughout the opinion we sometimes refer to the plaintiffs
and appellants collectively even though two different groups of
plaintiffs filed separate appeals which have been consolidated

                                 11
intermediate orders that became final at the time of the entry of
the October 20, 2011 Memorandum and Judgment Order,
namely: the dismissal of all claims of plaintiffs, now appellants,
Amber Blunt, a now former student at LMSD, and Crystal and
Michael Blunt, her parents, in the District Court’s memorandum
and order of February 15, 2008, the “February 15, 2008 Order”;
the dismissal of all plaintiffs’ claims against the Pennsylvania
Department of Education (“PDE”) in the District Court’s order
and memorandum of August 19, 2009, the “August 19, 2009
Order”; and the dismissal of plaintiff Concerned Black Parents
of Mainline Inc. (“CBP”) as a party in the District Court’s
August 19, 2009 Order for lack of standing. Appellants’ No.
11-4201 br. at 1.

        Plaintiffs, with the exception of the CBP and the
mainline branch of the NAACP (the “NAACP”), are present and
past African American students of the Lower Merion Township
public schools, who were placed in remedial classes after being
identified as learning “disabled” under the IDEA and/or those
students’ parents. The plaintiffs repeatedly used the term
“disabled” to describe the student plaintiffs throughout the
pleadings, a term consistent with the IDEA, a statute under
which they were making claims, as the IDEA safeguards the

along with the cross-appeal of the LMSD. Though LMSD is a
cross-appellant we do not include it when we refer to appellants.
 We usually refer to the parties who brought this action as
plaintiffs when describing proceedings in the District Court and
as appellants when describing proceedings in this Court.




                               12
rights of disabled students. Nevertheless, at this stage in the
litigation some appellants argue that the LMSD incorrectly
identified them as learning disabled,3 thereby causing them
injury.4 Appellants claim that their placement in remedial

3
 Even though by the time that the District Court considered the
motion for summary judgment most of the student plaintiffs
remaining in the case asserted that they had been misidentified
as learning disabled, the pleadings continued to identify the
students as learning disabled. In rendering its opinion on the
summary judgment motion, notwithstanding the pleadings, the
Court assumed with two exceptions that the student plaintiffs
were not disabled. We also note that Appellants’ No. 11-4201
br. at 1 n.2 recites that the correct name of Concerned Black
Parents of Mainline Inc. is simply Concerned Black Parents, Inc.
4
    The Code of Federal Regulations sets forth that:

         Child with a disability means a child evaluated in
         accordance with §§ 300.304 through 300.311 as having
         mental retardation, a hearing impairment (including
         deafness), a speech or language impairment, a visual
         impairment (including blindness), a serious emotional
         disturbance (referred to in this part as ‘emotional
         disturbance’), an orthopedic impairment, autism,
         traumatic brain injury, an other [sic] health impairment, a
         specific learning disability, deaf-blindness, or multiple
         disabilities, and who, by reason thereof, needs special
         education and related services.

34 C.F.R. § 300.8(a)(1).


                                 13
classes had a negative impact on their opportunity for
educational advancement, but by the time of the proceedings on
the motion for summary judgment they were seeking relief in
the District Court only pursuant to Title VI and the Equal
Protection Clause of the Fourteenth Amendment through 42
U.S.C. § 1983. Appellants’ case is largely based on their
contention that the disproportionate placement of African
American students in remedial classes had a discriminatory
purpose and was the result of racial bias.5

       Ultimately, the summary judgment question turns on
whether there is enough record evidence to establish that LMSD
intentionally discriminated against the plaintiffs, whether
through its own actions or by failing to correct a third party’s



5
  Initially, the individually named students sought to bring their
claims on their own behalf and on behalf of the students
similarly situated as a class action; however, the District Court
ruled that class certification was inappropriate due to the highly
individualized aspects of each student’s claims. (No. 2:07-cv-
3100, Doc. No. 124). At oral argument, one appellants’
attorney acknowledged that the District Court had been correct
in not certifying the case as a class action (Tr. Oral Arg. June
11, 2013, at 6:18-21, 14:4-7 (“You can’t remedy it as a class
action . . . because of the individual issues.”)), and thus
appellants no longer seek to proceed in this case on a class
action basis.




                               14
intentional discrimination. Looking at the whole record, which
includes statistical evidence showing that minorities are
overrepresented in low achievement classes, we conclude that
there is no genuine issue of material fact concerning LMSD’s
intent. There is no evidence showing that the District intended
to discriminate against plaintiffs, nor that LMSD had knowledge
of any intentional discrimination on the part of its employees,
including deliberate indifference to discriminatory practices
against African American students as a form of intentional
discrimination. Accordingly, we will affirm the District Court’s
grant of summary judgment.



        II. FACTS AND PROCEDURAL HISTORY

       This suit has had many plaintiffs and defendants, though
some have come and gone, and includes many related issues and
claims.6 We now are dealing with what is left of this litigation
6
  The District Court’s docket sheets lists numerous cases with
separate numbers as being related to this action. It is
particularly significant that in a related case, S.H. v. Lower
Merion School District, No. 2:10-cv-06070, in the Eastern
District of Pennsylvania involving two of the same litigants that
are parties in this case, Carol Durrell and her daughter,
identified in that case as “S.H.” and in this case as “Saleema
Hall,” that we have decided an appeal in a precedential opinion.
 See S.H. v. Lower Merion Sch. Dist., 729 F.3d 248 (3d Cir.
2013). Saleema Hall is identified as a litigant in the most recent
version of the complaint in this case in the caption as is her
sister, Chantae Hall and her mother, Carol Durrell.

                               15
by entertaining the present appeals which have been
consolidated with the cross-appeal in this Court under No. 11-
4200.7

       The plaintiffs filed the original complaint on July 30,
2007. At that time the plaintiffs were current or former students
in the LMSD, four parents, and the two organizations that we
have identified.8 The original defendants were the LMSD and

       We note that S.H. changed her theory of recovery in the
other action from her theory in this case, although she filed it
under the same statutes based on the same set of facts on which
she previously had relied in this case. Her theory in the other
action was that she is not and never has been learning disabled
and was placed improperly in special education classes. Id. at
255-56. Other student plaintiffs in this case have asserted the
same theory of liability (incorrect identification as learning
disabled), but inasmuch as Saleema Hall and Carroll Durell have
not withdrawn as plaintiffs in this litigation (they were named in
the third amended complaint) it appears that they press their
claims in the two cases on both theories though they are
inconsistent.
7
   DLA Piper, LLP and the Public Interest Law Center of
Philadelphia represent separate groups of appellants and have
filed separate briefs on their behalf. For the sake of clarity we
will distinguish between their briefs on the basis of the appeal
numbers.
8
 The original plaintiffs were Amber Blunt, on behalf of herself
and all others similarly situated; Crystal Blunt and Michael
Blunt, on their own behalf and on behalf of all others similarly

                               16
two of its officials in their official capacity.9 No. 2:07-cv-3100,
Doc. No. 1.10

      The plaintiffs filed a first amended complaint (“FAC”) on
September 26, 2007, adding three plaintiffs (two current or
former students in the LMSD and one parent)11 and several

situated; Linda Johnson, on her own behalf, on behalf of her
daughter, Lydia Johnson, and all others similarly situated; Carol
Durrell, on her own behalf, on behalf of her minor daughter,
Saleema Hall, and on behalf of all others similarly situated;
Christine Dudley, on her own behalf, and on behalf of her minor
son, Walter Whiteman, and on behalf of all others similarly
situated; Eric Allston on his own behalf and on behalf of all
others similarly situated; Concerned Black Parents, Inc.; and the
Mainline Branch of the NAACP. No. 2:07-cv-3100, Doc. No.
1.
9
 The officials were Jamie Savedoff, Superintendent, and
Michael Kelly, Director of Pupil Services. No. 2:07-cv-3100,
Doc. No. 1.


10
   Though the parties sometimes have used the term “the
District” to refer to the LMSD, because this usage may be
confusing inasmuch as we regularly refer to the District Court,
we have used the term “LMSD.”
11
  Chantae Hall, the daughter of Carroll Durrell and sister of
Saleema Hall, both of whom were parties in the original
complaint, was added as were June Coleman, on her own behalf

                                17
defendants, including the Lower Merion School Board, its
President, Vice President, and various members of the Board
(together, the “School Board”), the Pennsylvania Department of
Education (the “PDE”), and two of its officials. No. 2:07-cv-
3100, Doc. No. 10. Inasmuch as the LMSD and the School
Board have the same interest in this case and are represented by
the same attorneys, we sometimes refer to them together as the
LMSD. The plaintiffs named the PDE as a defendant because
they believed that it failed to meet the supervisory, monitoring
and compliance procedural obligations that federal law imposed
on it. The FAC concerned, inter alia, as appellants indicate in
one of their briefs, “a decision of the Pennsylvania Special
Education Due Process Appeals Review Panel (the ‘Appeals
Panel’) pursuant to the IDEA.” Appellants’ No. 11-4201 br. at
8-9;12 see also J.A. vol. 2, at 91-151. As stated above, the


and on behalf of her minor son, Richard “Ricky” Coleman, and
on behalf of all others similarly situated.
12
   The brief further explains that Crystal and Michael Blunt are
the parents of Amber Blunt, a 2005 graduate of Lower Merion
High School who “was identified as a student with a Specific
Learning Disability.” Appellants’ No. 11-4201 br. at 8-9. The
Blunts sought payment by LMSD for the tuition for a six-week
remedial program that West Chester University required Amber
to take as a condition of her admission. Id. The Blunts argued
that the LMSD “should pay for this program to compensate for
the fact that it failed to develop and implement transition
services for Amber as required by the IDEA.” Id. The Blunts
also were dissatisfied that Amber was not admitted into her first
choice college, Temple University, although two of the three

                               18
original complaint alleged that the defendants violated the
IDEA, 34 C.F.R. § 300.600 (regarding the monitoring
requirements imposed on states receiving federal funds for
education of students with disabilities), the ADA, § 504 of the
RA, Title VI, and 42 U.S.C. § 1983, all premised on the theory
that plaintiffs had learning disabilities for which LMSD had not
made adequate provisions. The FAC invoked the same legal
theories/statutes as the original complaint. J.A. vol. 2, at 91-
151.

       On October 8, 2007, LMSD and the School Board filed a
motion to dismiss the FAC, arguing that the plaintiffs had failed
to exhaust their administrative remedies, the CBP and NAACP
did not have standing, and the FAC failed to state a claim upon
which relief could be granted. They also contended that the
IDEA action was untimely. No. 2:07-cv-3100, Doc. No. 11.

        On November 19, 2007, the PDE filed a motion to
dismiss the FAC for lack of subject matter jurisdiction.13 No.
2:07-cv-3100, Doc. Nos. 21-22; J.A. vol. 2, at 284. PDE argued
that the Blunt plaintiffs’ claims fell outside the IDEA’s statute
of limitations and that the other individual student plaintiffs had
not exhausted their administrative remedies under the IDEA. Id.
 The PDE further argued that its sovereign immunity barred the

colleges to which she applied did admit her.
13
  Gerald Zohorchak and John Tommasini, who were named in
their official capacities as officers of PDE, joined in this motion
but they no longer are parties to this suit, and appellants do not
challenge their dismissal.


                                19
state law claims asserted against it, and that plaintiffs had failed
to state a claim upon which relief could be granted against it.
Id.

        On February 15, 2008, the District Court entered an order
dismissing various plaintiffs and claims from the FAC. The
Court methodically eliminated each federal law claim that the
Blunt plaintiffs made against each defendant. In particularly
significant holdings that we address at length below, the Court
held that a 90-day statute of limitations in the IDEA barred the
Blunts’ claims under the IDEA, RA, and ADA and that a
separate two-year statute of limitations barred their other claims.
 Consequently, the order dismissed the Blunts’ federal claims in
their entirety, although their state law claims remained. See No.
2:07-cv-3100, Doc. No. 9; see also J.A. vol. I, at 42.42-42.45.
The Court also determined that the individual plaintiffs, other
than the Blunts, had not sought an administrative remedy for
their IDEA claims, and therefore it dismissed the IDEA claims
of the remaining individual plaintiffs against the LMSD
defendants for lack of subject matter jurisdiction. J.A. vol. 1, at
42.16. However, the Court found that the individual plaintiffs
did not need to exhaust administrative remedies with respect to
their claims against the PDE because Pennsylvania regulations
provide for administrative resolution of disputes between
students, their parents, and their representatives and school
districts, but do not provide for administrative resolution of
similar disputes with the Commonwealth. Id. at 42.17.

      The District Court also dismissed plaintiffs’ ADA and
RA claims (other than the Blunts’ claims) against the LMSD and
the School Board for failure to exhaust their administrative


                                20
remedies, reasoning that the claims were based on the same
allegations as plaintiffs’ IDEA claims and that, if the plaintiffs
were entitled to relief, it would have been available through the
IDEA administrative dispute process. Id. at 42.18-42.19. The
Court noted that “[t]he parties agree[d]” regarding the
exhaustion requirement for those claims. Id. The Court found,
however, that the IDEA exhaustion requirement did not bar
plaintiffs’ claims under Title VI because, unlike the IDEA, Title
VI does not “focus on ‘the rights of children with disabilities.’”
Id. at 42.19. The Court also did not find that the plaintiffs
needed to exhaust their § 1983 claims administratively.

        In addition, as we indicated above, the District Court
concluded that the NAACP and CBP lacked standing as
plaintiffs.14 Id. at 42.33. The Court also found that the counts
against individual defendants in their official capacity (as
representatives of the other defendants, LMSD, the School
Board and PDE) were duplicative, and therefore it dismissed the
FAC against those individuals to “simplify[ ] the litigation in a
way that does not cause any prejudice to plaintiffs.”15 Id. at
42.35-42.36.

14
   Although the NAACP attempted in the next version of the
complaint to allege facts to support its standing, as we already
have indicated it does not appeal from the holding that it does
not have standing. On the other hand, CBP has appealed from
the order dismissing it from the case because of its lack of
standing.
15
   The appellants have not appealed from this ruling and we
therefore will not discuss it further.

                               21
       The plaintiffs filed a second amended complaint (“SAC”)
on July 8, 2008, adding two plaintiffs, one parent and one
student.16 No. 2:07-cv-3100, Doc. No. 49. The SAC, in accord
with the District Court’s February 15, 2008 Order, removed as
defendants the School Board members previously so-named in
their official capacities. But the SAC continued to name the
School Board in its caption though it did not make allegations
against the School Board in its body. The SAC, however,
included the PDE and two of its officials as defendants. The
SAC continued to name the Blunts as plaintiffs, despite the
circumstance that the Court had dismissed all of their federal
claims in its February 15, 2008 Order.17 The SAC also added
several paragraphs discussing the CBP’s alleged increase of
expenditures that it attributed to “the inferior quality of LMSD’s
dual system of education.” Moreover, the SAC named several
persons who the CBP claimed were members of that
organization in a clear attempt to demonstrate that the CBP had
standing. SAC at 34-36. In addition, the SAC added six
paragraphs regarding plaintiff NAACP’s expenditure of

16
  The added plaintiffs were Lynda Muse, on behalf of herself
and her minor son, Quiana Griffin, and on behalf of all others
similarly situated. No. 2:07-cv-3100, Doc. No. 49.
17
   In contending that the District Court had jurisdiction,
plaintiffs argued that “[t]he Blunt Plaintiffs have fully exhausted
their administrative remedies under the IDEA, 20 U.S.C. §
1415; the other individual Plaintiffs are excused from doing so
because such efforts would be futile.” No. 2:07-cv-3100, Doc.
Nos. 9, 55; J.A. vol. 2, at 95.


                                22
resources in addressing alleged issues with the LMSD. SAC at
37-38.18

        The plaintiffs filed a third and final amended complaint
(“TAC”) on August 5, 2008. No. 2:07-cv-3100, Doc. No. 55;
J.A. vol. 9, 3847-97. The plaintiffs remained the same in the
TAC as previously except that one parent was no longer a
plaintiff.19 The TAC, however, no longer named two officials
of the School Board as defendants, and it did not name the
officials of the PDE that the plaintiffs previously had named as
defendants. The TAC continued to list the School Board as a
named defendant in the caption, and the PDE and LMSD
remained named defendants in both the caption and the body of
the TAC.20 Despite the District Court’s dismissal of all of the

18
  Inasmuch as the NAACP is no longer a party in this litigation,
these paragraphs are now immaterial.


19
  Linda Johnson, the parent of Lydia Johnson, was dropped as a
plaintiff in the TAC. No. 2:07-cv-3100, Doc. No. 55; J.A. vol.
9, 3847-97. Nevertheless, she was listed as an appellant in the
notice of appeal.
20
     Specifically, in the introduction to the TAC:

         3. Plaintiffs assert that LMSD routinely misuses so-
         called below grade level programs and modified classes
         to remove African American students from the general
         education curriculum, in some instances to avoid
         evaluating a student’s eligibility for services under the

                                 23
Blunts’ federal claims in the complaint in its February 15, 2008
Order, the TAC included them again in Count VI against the
LMSD and the School Board pursuant to the Pennsylvania
Public School Code, 22 Pa. Code §14.102 et. seq.21 Plaintiffs

       IDEA. Plaintiffs further assert that LMSD intentionally
       segregates these African American students in classes
       that are taught below grade level while depriving them of
       grade-level subject matter and materials that are provided
       to their Caucasian peers at all educational levels.

       4.     Plaintiffs also assert that the Pennsylvania
       Department of Education (PDE) failed to enforce the
       IDEA’s mandate that it ensure that children with
       disabilities receive an appropriate education in the least
       restrictive environment and that African American
       children in the LMSD are not inappropriately over-
       identified or disproportionately placed in special
       education classes. By their claims against PDE,
       Plaintiffs seek to remedy wide-spread violations of the
       Equal Protection and Due Process Clauses of the
       Fourteenth Amendment . . . the IDEA, the [ADA],
       [Section 504 of the RA], [Title VI] and Section 1983 of
       the Civil Rights Act of 18971 [sic].

TAC at 2-3; J.A. vol. 9, at 3848-49.
21
   Several pages of the alleged factual basis for the Blunts’
claims, appearing in the “Parties” section of the SAC, were
deleted in the TAC, and the identification of Amber and her
parents as “African American” was added to that section. No.
2:07-cv-3100 Doc. Nos. 36, 55.

                               24
sought widespread injunctive relief and “compensatory damages
each on their own behalf to offset the deprivations of an
appropriate education to which they are entitled.” TAC at 3,
para. 6; J.A. vol. 9, at 3849.

      The LMSD and the School Board filed an answer to the
TAC and a separate motion for judgment on the pleadings on
August 15, 2008. The PDE filed an answer to the TAC on
August 19, 2008. No. 2:07-cv-3100, Doc. No. 58.

        On August 15, 2008, the LMSD and the School Board
filed a motion for partial judgment on the pleadings addressed to
the Blunts’ remaining state law claims, which the Blunts
formally opposed on August 29, 2008. J.A. vol. 3, at 561-72,
575-89. The District Court issued a Memorandum and Order on
November 18, 2008, (the “November 18, 2008 Order”), in
which it noted that the motion incorrectly had been styled as a
motion for partial judgment on the pleadings, when it was really
a motion to dismiss for lack of subject matter jurisdiction. The
Court granted the motion,22 finding that it did not have
supplemental jurisdiction over the Blunts’ state law claims and
22
   The District Court noted that there was little overlap of the
operative facts of Amber Blunt’s claims with the claims of the
other plaintiffs, as the claims involved different time periods,
different treatment, and possibly different schools. J.A. vol. 3,
at 602. In this regard, the Court noted that “each of the student-
plaintiffs presents an entirely different factual predicate for his
or her claims.” Id. Accordingly, the Court concluded that it
could not exercise supplemental jurisdiction over the Blunts’
remaining claims, which were based on state law. Id. at 603.


                                25
that there was not a common nucleus of operative fact between
her claims and those of the other students.23 J.A. vol. 3, at 597.


       On December 22, 2008, the remaining plaintiffs moved
for class certification. No. 2:07-cv-3100, Doc. No. 64. After
the parties briefed the issues, the District Court held a hearing
on the motion on July 21, 2009. Id., Doc. No. 122.24 By an
order of August 19, 2009, (the “August 19, 2009 Order”), the
Court denied plaintiffs’ motion for class certification
(Appellants’ No. 11-4200 br. at 39),25 again dismissed the

23
  The Blunts have not appealed from the District Court’s ruling
that it lacked subject matter jurisdiction over their state law
claims.
24
   The District Court scheduled oral argument on the class
certification issue for June 26, 2009, but we are uncertain
whether the Court held an argument on that day in addition to
the July 21, 2009 argument, or whether argument took place on
the second date because the original argument had been
postponed. No. 2:07-cv-3100, Doc. No. 118.
25
   In doing so, the District Court explained that, among other
rationales for this denial, it had determined that the factual
circumstances of potential class members were too disparate to make
final injunctive or declaratory relief appropriate to the class as a
whole. J.A. vol. 1, at 42.60. The Court noted that the disparate
factual circumstances of individual students also likely would
overwhelm the litigation:

       Analysis of whether an African American student with a

                                26
claims brought by the CBP and the NAACP for lack of standing,
and found that a prior court-entered settlement agreement
reached in Gaskin v. Pennsylvania, 389 F. Supp. 2d 628 (E.D.
Pa. 2005), barred all claims against the PDE, which it therefore
dismissed from the case. J.A. vol. 1, at 42.46-42.69.

        In concluding that CBP lacked standing, the District
Court found that it did not have a personal stake in the outcome
of the litigation, and did not suffer an injury giving it standing.
Rather, “[i]ts injuries [we]re more akin to an abstract,
ideological interest in the litigation as opposed to the necessary
‘personal stake in the outcome’ of the controversy necessary to
confer standing.” J.A. vol. 1, at 42.52. In addition, the Court
reasoned that CBP did not have standing to bring suit on behalf
of its members because, according to CBP’s bylaws, it did not
have any members. J.A. vol. 1, at 42.53-54; August 19, 2009
Order at 9 (“The corporation’s bylaws specifically state ‘the
Corporation shall have no members.’ In light of this express
statement in a formal document governing the conduct of the


        disability was deprived of an appropriate education will be
        highly individualized and dependent upon that particular
        student’s needs, capabilities, and the IEP in place for that
        child. These individual determinations, which must be made
        to determine whether a particular student falls within the class
        definition and whether such student has a cause of action,
        weigh against certifying this class.

J.A. vol. 1, at 42.61.




                                  27
corporation, we find that it does not have standing to bring suit
on behalf of its members because it has none.”). J.A. vol. 1, at
42.54.

        The District Court also dismissed the claims against the
PDE because the settlement agreement that the parties had
reached in Gaskin barred this action against the PDE. The
Court noted that Gaskin was similar to this action, as 12
students with disabilities and 11 disability advocacy groups
brought that case against the PDE, among others, pursuant to the
IDEA, § 504 of the RA, and Title II of the ADA. The Gaskin
plaintiffs made similar (although not identical) allegations as
those in this case, alleging that the defendants failed to provide
disabled students the opportunity to participate in regular
education classrooms, provided insufficient supplementary aids
and services, and generally failed to provide them with a free
appropriate public education (“FAPE”). J.A. vol. 1, at 42.63,
42.67. Though the Court acknowledged that the Gaskin
complaint had not alleged racial discrimination as “the basis for
the improper treatment of those with learning disabilities,” the
Court nonetheless held that the causes of action in Gaskin and
here arose from the same “common nucleus of operative facts.”
The Court therefore concluded that the release included in the
Gaskin settlement agreement, which by its terms was effective
for five years from September 19, 2005, to September 19, 2010,
barred the claims in this case because the plaintiffs brought this
action and individual plaintiffs in this action were evaluated and
identified as learning disabled during this period. J.A. vol. 1, at
42.67, 42.68; Tr. Oral Arg. June 11, 2013, at 19:9-22.
Significantly, the class of plaintiffs in the Gaskin litigation was
very broad and included “all present and future school age

                                28
students with disabilities       in   the   Commonwealth       of
Pennsylvania.”26

       On April 5, 2011, the District Court denied a motion by
LMSD to amend its answer to the plaintiffs’ TAC to include an
additional defense based on releases that certain plaintiffs
signed after the LMSD filed its answer in this case because the
Court believed that the LMSD unreasonably had delayed
making the motion. J.A. vol. 1, at 46-47. LMSD has filed a
cross-appeal from the order but, as will be seen, this appeal is
moot and thus we do not address it.

      The LMSD filed a motion for summary judgment on July
15, 2011, (No. 2:07-cv-3100, Doc. No. 159), and it is that
motion that has led to the order at the heart of this appeal. The
26
   We queried the attorneys for appellees at oral argument as to
whether the Gaskin settlement should apply given that the
plaintiffs in Gaskin brought their claims under the IDEA, ADA
and RA, and the appellants other than the Blunts were
advancing only § 1983 and Title VI claims. Tr. Oral Arg. June
13, 2013, at 27. However, as noted above, we recently
indicated in a related case, S.H. v. Lower Merion School
District, 729 F.3d 248 (3d Cir. 2013), that litigants who
incorrectly were identified as disabled might be able to bring
suit under the ADA and RA, but cannot bring suit under the
IDEA, as that statute extends only to disabled individuals, not to
individuals who incorrectly were identified as disabled. Id. at
257-58. But regardless of what claims could have been brought
against the PDE, as we explain below the Gaskin settlement bars
the claims in this case.


                               29
parties filed numerous documents in support of and in
opposition to the motion for summary judgment. On October 4,
2011, the District Court held a hearing on the motion, at which
time the Court afforded all parties the opportunity to present
their arguments. No. 2:07-cv-3100, Doc. Nos. 174, 183.

        On October 20, 2011, the District Court made three
docket entries, two of which were orders and a third which is
the memorandum explaining the basis for those orders
(collectively, the “October 20, 2011 Memorandum and
Judgment Order”). No. 2:07-cv-3100, Doc. Nos. 180-82. In the
October 20, 2011 Memorandum and Judgment Order, the Court
denied plaintiffs’ motion to partially exclude and/or limit the
report and testimony of Daniel J. Reschly, Ph.D., a witness for
the LMSD, as moot. No. 2:07-cv-3100, Doc. No. 181. The
Court’s principal order granted summary judgment to the LMSD
against all remaining plaintiffs in the action. J.A. vol. 1, at 1-39;
also available at No. 2:07-cv-3100, Doc. No. 182. The Court
held that the plaintiffs had failed to put forth any evidence from
which a reasonable inference could be drawn that the LMSD
intentionally segregated the students on the basis of race into
inferior educational programs in violation of Title VI. J.A. vol.
1, at 30-32. The Court also held that plaintiffs had failed to
establish a 42 U.S.C. § 1983 case for violation of the Equal
Protection Clause of the Fourteenth Amendment, as they had not
established that the LMSD had engaged in purposeful
discrimination and had not been deliberately indifferent to
plaintiffs’ rights. J.A. vol. 1, at 33-34.

       The District Court noted in particular that plaintiffs were
required to “raise at least some reasonable inference that they


                                 30
were placed into classes and offered services by the [LMSD]
due to intentional discrimination based on their race and not
simply due to errors in evaluation.” The Court concluded that
plaintiffs had failed to support this inference with sufficient
evidence, and had not put forth more than a scintilla of evidence
that the LMSD had acted with a racially discriminatory purpose
in identifying them as disabled and placing them in special
education courses (regardless of whether this identification was
correct or not). They also failed to identify an official policy or
custom that was deliberately indifferent to plaintiffs’ rights.
J.A. vol. 1, at 32-36;27 also available at No. 2:07-cv-3100, Doc.
No. 180.

        On November 18, 2011, the Blunt plaintiffs and the CBP
filed a notice of appeal from the District Court’s October 20,
2011 Memorandum and Judgment Order. J.A. vol. 1, at 40-42.
In an attempt to preserve their right to appeal from all of the
Court’s dispositive orders, their November 18, 2011 notice of
appeal stated that “[w]ithout limiting their right to appeal any
particular order rendered during District Court proceedings,
Plaintiffs listed herein specifically appeal the following orders.”
 The notice of appeal then went on to challenge the February 15,

27
   The District Court correctly observed that the LMSD’s
awareness (as evidenced by the formation of a committee to
address the concerns of African American parents) of an
achievement gap, between Caucasian and African American
students, and its failure to eliminate that gap were not evidence
of intentional discrimination or deliberate indifference toward
African American students. J.A. vol. 1, at 36.


                                31
2008 Order dismissing the Blunts’ claims under the IDEA and
the District Court’s orders of February 15, 2008, and August 19,
2009, as they pertained to CBP and its lack of standing. J.A.
vol. 1, at 40-42; see also No. 2:07-cv-3100, Doc. No. 186.

        Also on November 18, 2011, plaintiffs Linda Johnson,
Lydia Johnson, Durrell/Hall, Dudley/Whiteman, Allston,
Coleman, and Muse/Griffin filed an appeal generally from the
District Court’s October 20, 2011 Memorandum and Judgment
Order. Their notice of appeal specifically cited the District
Court’s order of August 19, 2009, in which the Court dismissed
the claims against defendant PDE, an order of October 20, 2011,
entering the summary judgment in favor of LMSD, and an order
of October 20, 2011, denying as moot plaintiffs’ motion to
preclude expert testimony. No. 2:07-cv-3100, Doc. No. 187.

       On December 1, 2011, LMSD filed a cross-appeal from
the portion of the District Court’s February 15, 2008 Order
which denied LMSD’s motion to dismiss plaintiffs’ Title VI
claims for failure to exhaust administrative remedies28 and, as
we have indicated, the District Court’s April 5, 2011 denial of
28
  As explained above, the District Court dismissed plaintiffs’
IDEA, RA and ADA claims against LMSD, other than those of
the Blunts, for failure to exhaust administrative remedies, but
had found that Title VI relief was not available through the
administrative process set up for resolving IDEA disputes, and
thus it did not dismiss the Title VI claims for failure to exhaust
administrative remedies. Of course, the Court similarly did not
dismiss the § 1983 claims because there were no administrative
remedies available under that section.


                               32
its motion to amend its answer to the TAC. J.A. vol. 1, at 43-
45; 2:07-cv-3100, Doc. Nos. 123-24.



           III. STATEMENT OF JURISDICTION

        The District Court had jurisdiction over the plaintiffs’
federal law claims pursuant to 20 U.S.C. § 1415(i)(3)(A),29 28
U.S.C. § 1331, and 28 U.S.C. § 1343(a)(3). In addition, the
plaintiffs claimed that the Court had supplemental jurisdiction
over their state law claims pursuant to 28 U.S.C. § 1367. We,
however, do not determine whether the District Court had
jurisdiction over the state law claims because no party contends
that the Court erred in not exercising jurisdiction over those
claims. We have appellate jurisdiction under 28 U.S.C. § 1291.



                     IV. STANDARD OF REVIEW

        It is well established that we employ a plenary standard
in reviewing orders entered on motions for summary judgment,
applying the same standard as the district court. Kelly v.
Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010) (citing

29
  “The district courts of the United States shall have jurisdiction
of actions brought under this section without regard to the
amount in controversy.” 20 U.S.C. § 1415(i)(3)(A).




                                33
Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009)); Albright
v. Virtue, 273 F.3d 564, 570 (3d Cir. 2001); see also Montone v.
City of Jersey City, 709 F.3d 181, 189 (3d Cir. 2013);
Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir.
1995) (citing Beazer E., Inc. v. United States Envtl. Protection
Agency, Region III, 963 F.2d 603, 606 (3d Cir. 1992)).
Inasmuch as our review is plenary, “[w]e may affirm the District
Court on any grounds supported by the record,” even if the court
did not rely on those grounds. Nicini v. Morra, 212 F.3d 798,
805 (3d Cir. 2000).30

        In considering an order entered on a motion for summary
judgment, “we view the underlying facts and all reasonable
inferences therefrom in the light most favorable to the party
opposing the motion.” Babbitt, 63 F.3d at 236. As we also
have explained, “[a] factual dispute is material if it bears on an
essential element of the plaintiff’s claim, and is genuine if a
reasonable jury could find in favor of the nonmoving party.”
Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 580 (3d
Cir. 2003) (citing Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d
Cir. 2002) (in turn quoting Cloverland-Green Spring Dairies,
Inc. v. Pa. Milk Mktg. Bd., 298 F.3d 201, 210 (3d Cir. 2002))).

       However, where a non-moving party fails sufficiently to

30
   We note that sometimes in our opinions we refer to the
standard of review on an appeal from an order for summary
judgment as “plenary” and sometimes as “de novo.” We discern
no difference between the plenary and de novo standards of
review. See 19-206 Pratt, Moore’s Federal Practice – Civil §
206.04 (2013).


                               34
establish the existence of an essential element of its case on
which it bears the burden of proof at trial, there is not a genuine
dispute with respect to a material fact and thus the moving party
is entitled to judgment as a matter of law. Lauren W. v.
Deflaminis, 480 F.3d 259, 266 (3d Cir. 2007). Further, mere
allegations are insufficient, and “[o]nly evidence sufficient to
convince a reasonable factfinder to find all of the elements of
[the] prima facie case merits consideration beyond the Rule 56
stage.” Id. (quoting and citing Celotex Corp. v. Catrett, 477
U.S. 317, 324, 106 S.Ct. 2548, 2553 (1986) (internal quotation
marks omitted)).

        We review a district court’s determinations concerning
the admissibility of evidence for an abuse of discretion. See
Martin v. Monumental Life Ins. Co., 240 F.3d 223, 232 (3d Cir.
2001) (“Where a party makes known the substance of the
evidence it desires to introduce, we review the District Court’s
decision to exclude the evidence for an abuse of discretion.”)
(citing Narin v. Lower Merion Sch. Dist., 206 F.3d 323, 334 (3d
Cir. 2000)). There is an abuse of discretion if the district court’s
decision “‘rests upon a clearly erroneous finding of fact, errant
conclusion of law or an improper application of law to fact.’”
Forrest v. Beloit Corp., 424 F.3d 344, 349 (3d Cir. 2005) (citing
In re Merritt Logan, Inc. v. Fleming Cos., Inc, 901 F.2d 349,
359 (3d Cir. 1990)) (quoting Oddi v. Ford Motor Co., 234 F.3d
136, 146 (3d Cir. 2000)). “An abuse of discretion can also
occur ‘when no reasonable person would adopt the district
court’s view.’ We will not interfere with the district court’s
exercise of discretion ‘unless there is a definite and firm
conviction that the court below committed a clear error of
judgment in the conclusion it reached upon a weighing of the

                                35
relevant factors.’” Oddi, 234 F.3d at 146 (internal citations
omitted).31

        It is also well established that we review de novo a
district court’s determination of a party’s standing to bring suit,
as a court makes a determination of whether a party has standing
on a legal basis, at least where, as here, the determination does
not depend on the court’s resolution of a factual dispute. See
National Collegiate Athletic Ass’n v. Governor of N. J., 730
F.3d 208, 218 (3d Cir. 2013); Common Cause of Pa. v.
Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009).32

        Judgments of a court applying the IDEA’s statute of
limitations but not resolving disputes of fact are subject to
plenary review as conclusions of law, but “whether [plaintiffs]
proved an exception to the [IDEA] statute of limitations, and
whether the [School] District fulfilled its FAPE obligations . . .
are subject to clear error review as questions of fact. Such
[f]actual findings from the administrative proceedings are to be
considered prima facie correct, and if [we] do[ ] not adhere to

31
  On the other hand, “[t]o the extent an evidentiary issue turns on the
interpretation of a Federal Rule of Evidence, rather than the mere
application of the rule, our review is plenary.” Forrest, 424 F.3d at
349 (emphasis added) (citing In re Paoli R.R. Yard PCB Litig., 35
F.3d 717, 749 (3d Cir. 1994)).
32
  Citing Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181,
188 (3d Cir. 2006); see also Public Interest Research Grp. of
N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 119 (3d
Cir. 1997).


                                  36
those findings, we must explain why.” D.K. v. Abington Sch.
Dist., 696 F.3d 233, 243 (3d Cir. 2012) (internal citations and
quotation marks omitted) (citing and quoting P.P. ex. rel.
Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 734 (3d
Cir. 2009); S.H. v. State-Operated Sch. Dist. of Newark, 336
F.3d 260, 269-70 (3d Cir. 2003)).

        When a district court reviews an administrative law
judge’s decision, a court of appeals exercises plenary review
over the court’s legal conclusions, and reviews its findings of
fact with a “modified de novo” standard of review (giving the
administrative factual findings “due weight” and considering
them to be prima facie correct) for clear error. Lauren W., 480
F.3d at 266. However, we do not make such an analysis here, as
the issue before us with respect to the Blunts, the only
appellants who exhausted their administrative remedies, is
whether the District Court correctly dismissed their case on the
grounds that they brought it beyond the period allowed by the
statute of limitations. The resolution of that issue would not be
aided by administrative expertise.



           V. ISSUES PRESENTED ON APPEAL

       Though the District Court made many rulings, the
appellants have appealed only from some of them. Accordingly,
we are able to summarize the issues on this appeal as follows:

       1. Did the District Court correctly dismiss the action
against the PDE on the basis of res judicata (claim preclusion)?


                               37
       2. Did the District Court correctly conclude that CBP did
not have standing as a plaintiff in this action?

        3. Does the IDEA’s 90-day statute of limitations, in
which a party adversely affected by an administrative
determination of an IDEA claim may bring a state or federal
suit, enacted on December 3, 2004, and effective July 1, 2005,
apply to bar the Blunts’ federal action, given that they first
began the administrative judicial process on April 8, 2005, when
the IDEA’s statute of limitations for bringing a claim in state or
federal court after receiving an adverse administrative
determination was two years, and they received their final
adverse administrative disposition on August 31, 2005, almost
two months after the new 90-day statute of limitations came into
effect, and almost nine months after Congress enacted it?33

       4. Did the District Court abuse its discretion in how it
33
  We note that although the statute of limitations issue was not
discussed at oral argument, the Blunts’ brief raises a challenge
to the District Court’s ruling on the issue as a prime point of
argument. Appellants’ br. No. 11-4201 at 31-37. Presumably,
however, in the case of student appellants who no longer are
claiming to be disabled, but rather are claiming to have been
misidentified as disabled, a statute of limitations issue would be
inapplicable. However, as far as we can tell from the record, at
least one or two of the student plaintiffs do not challenge their
identification as disabled, and counsel for the Blunts has not
withdrawn the argument regarding the statute of limitations
which thus has been preserved on appeal. Therefore, we
address the statute of limitations issue.


                               38
treated certain evidence that plaintiffs offered by not giving it
greater weight and not considering the evidence in the light most
favorable to the plaintiffs when the Court considered and
granted the motion for summary judgment made by the LMSD
and, on the other hand, in how it treated certain evidence that
LMSD offered for consideration on that motion?

       5. Did plaintiffs establish a prima facie case of
discrimination in violation of Title VI and § 1983 such that
summary judgment was inappropriate?34



               VI. SUMMARY OF THE LAW

       A. The Individuals with Disabilities Education Act

       Congress enacted the IDEA, 20 U.S.C. § 1400 et seq.,
with the goal of “improving educational results for children with
disabilities.” 20 U.S.C. § 1400(c)(1). The congressional
findings and purposes section of the IDEA is quite broad and
sets forth in great detail Congress’ intention in adopting the
IDEA.

       Each public school district in a state that accepts federal

34
   LMSD argues that the District Court improperly denied its
motion to amend its answer. We, however, do not reach that
issue because our determination that the Court properly granted
summary judgment in its favor and our affirmance of the other
orders on appeal are dispositive of the issue.


                               39
funds under IDEA35 has a continuing obligation, called the
“child find” requirement, to identify and evaluate all students
reasonably believed to have a disability, and each state receiving
funds must establish procedures to effectuate this requirement.
Ridley Sch. Dist. v. M.R., 680 F.3d 260, 271 (3d Cir. 2012). As
we pointed out in Ridley, Pennsylvania has set forth child find
procedures in 22 Pa. Code §§ 14.121 through 14.125. Id.

        States receiving federal funding for assistance in the
education of children with disabilities under the IDEA are
responsible for providing a FAPE to any students who are
identified as learning disabled until they reach 21 years of age.
See 20 U.S.C. § 1400(c)-(d)); see also 34 C.F.R. §§ 300.1-
300.2;36 Jonathan H. v. Souderton Area Sch. Dist., 562 F.3d
527, 528 (3d Cir. 2009); Lauren W., 480 F.3d at 272. As we
explained in Ridley:

35
    “The IDEA was enacted pursuant to the congressional
spending power. [Thus, a] state is not generally bound by the
IDEA unless it receives federal funding under the statute.”
A.W. v. Jersey City Pub. Schs., 341 F.3d 234, 247 (3d Cir.
2003) (internal citations omitted).
36
   “The purposes of this part are-- (a) To ensure that all children
with disabilities have available to them a free appropriate public
education that emphasizes special education and related services
designed to meet their unique needs and prepare them for further
education, employment, and independent living; . . .” 34 C.F.R.
§ 300.1(a). Further, “[t]his part applies to each State that
receives payments under Part B of the Act, as defined in §
300.4.” 34 C.F.R. § 300.2(a).

                                40
       A FAPE consists of educational instruction specially
       designed to meet the unique needs of the handicapped
       child, supported by such services as are necessary to
       permit the child to benefit from the instruction.
       Although a state is not required to maximize the potential
       of every handicapped child, it must supply an education
       that provides significant learning and meaningful benefit
       to the child. [T]he provision of merely more than a
       trivial educational benefit is insufficient.

680 F.3d at 268 (internal quotation marks omitted) (citing Bd. of
Educ. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 3050
(1982); Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d
Cir. 1999); L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 390 (3d
Cir. 2006)).

        In providing a FAPE to a disabled student, school
districts must work with the student’s parents to create an
individualized education plan (“IEP”), containing certain
elements that the Code of Federal Regulations specifies must be
made available to each disabled student. We have explained the
balance between reasonable goals for the IEP and a parent’s
fondest hopes for the parent’s child as follows:

       Under the IDEA, school districts must work with parents
       to design an IEP, which is a program of individualized
       instruction for each special education student. ‘Each IEP
       must include an assessment of the child’s current
       educational performance, must articulate measurable
       educational goals, and must specify the nature of the
       special services that the school will provide.’ Although
       the IEP must provide the student with a ‘basic floor of

                               41
       opportunity,’ it does not have to provide ‘the optimal
       level of services,’ or incorporate every program
       requested by the child’s parents. . . . [T]he IDEA
       guarantees to a disabled child ‘an education that is
       appropriate, not one that provides everything that might
       be thought desirable by loving parents’ . . . . ‘[A]t a
       minimum, the IEP must be reasonably calculated to
       enable the child to receive meaningful educational
       benefits in light of the student’s intellectual potential,’
       and ‘individual abilities.’

Ridley, 680 F.3d at 276 (internal citations omitted).

        Congress amended the IDEA through the Individuals
with Disabilities Improvement Act of 2004 to require that an
IEP include “a statement of the special education and related
services and supplementary aids and services, based on peer-
reviewed research to the extent practicable, to be provided to the
child.” Ridley, 680 F.3d at 276 (emphasis in original) (quoting
and citing 20 U.S.C. § 1414(d)(1)(A)(i)(IV)). Because neither
the text of the IDEA nor the regulations promulgated under it
provided guidance regarding the peer-review research provision,
we looked to the agency’s interpretation of its own regulations
for guidance, and determined (1) that although schools should
strive to base a student’s IEP on peer-reviewed research to the
maximum extent possible, the student’s IEP team must be
allowed to be flexible in devising an appropriate program for
any particular student in light of the available research; and (2)
courts must accord significant deference to the choices made by
school officials as to what constitutes an appropriate program



                               42
for each student.37 Ridley, 680 F.3d at 277 (citing 71 Fed. Reg.
at 46,665 (2006); D.S., 602 F.3d at 556-57; Ridgewood, 172
F.3d at 247).

           B. Redress and the Statute of Limitations
           under the IDEA

       “If parents believe that an IEP fails to provide their
child with a FAPE, they may request an administrative
37
  We explained that “[g]iven that the IDEA does not require an
IEP to provide the ‘optimal level of services,’ we likewise hold
that the IDEA does not require a school district to choose the
program supported by the optimal level of peer-reviewed
research. Rather, the peer-review specially designed instruction
in an IEP must be ‘reasonably calculated to enable the child to
receive meaningful educational benefits in light of the student’s
intellectual potential.’” Ridley, 680 F.3d at 277 (citing
Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176,
182 (3d Cir. 2009)). While we recognized that “there may be
cases in which the specially designed instruction proposed by a
school district is so at odds with current research that it
constitutes a denial of a FAPE,” and that “if it is practicable for
a school district to implement a program based upon peer-
reviewed research, and the school fails to do so, that will weigh
heavily against a finding that the school provided a FAPE,”
nonetheless we declined to set a bright-line rule as to what
constitutes an adequately peer-reviewed special education
program, and emphasized that the appropriateness of an IEP
must be considered on a case-by-case basis, taking into account
the available research. Id. at 279.


                                43
‘impartial due process hearing,’” as may a school district if it
wants to change an existing IEP or seeks an evaluation without
the parents’ consent. Ridley, 680 F.3d at 269-70 (citing 20
U.S.C. § 1415(f); Schaffer, 546 U.S. at 53, 126 S.Ct. at 532).

       The burden of persuasion in an administrative hearing
under the IDEA lies with the party seeking relief. See Schaffer,
546 U.S. at 62, 126 S.Ct. at 537. Similarly, the party judicially
challenging an administrative decision bears the burden of
persuasion with respect to the finding for each claim challenged.
 Ridley, 680 F.3d at 270.

        On December 3, 2004, Congress revised the IDEA with
the Individuals with Disabilities Improvement Act of 2004,
which included a two-year statute of limitations governing the
time during which an aggrieved party may file a request for an
administrative due process hearing under the IDEA. P.L. 108-
446, 118 Stat. 2647 (2004); 20 U.S.C. § 1415(f)(3)(c). The two-
year period runs from the date that the parent knew or should
have known about the alleged action that forms the basis for the
complaint. The same two-year statute of limitations for bringing
administrative claims also applies to other legal claims premised
on the IDEA, such as claims under § 504 of the RA, or claims
“invoking Child Find and FAPE duties.” D.K., 696 F.3d at 244
(quoting P.P. ex. rel. Michael P., 585 F.3d at 734). In the same
legislation, Congress shortened the statute of limitations to 90
days for a party dissatisfied with the result of the administrative
proceedings to bring a federal or state judicial action to
challenge that result. Though Congress mandated that these
new statutes of limitations were to be retroactive, it delayed
their effective dates until July 1, 2005.


                                44
        In 2010, we determined that the seven-month “grace
period” between the enactment of the two-year statute of
limitations and its effective date provided litigants with
reasonable notice and opportunity to bring claims, so that it was
not unfair to impose the new statute of limitations and thus the
period that the limitations period allowed was not impermissibly
short. Steven I. v. Cent. Bucks Sch. Dist., 618 F.3d 411, 415-16
(3d Cir. 2010).38 We further explained that “all persons are
charged with knowledge of the provisions of statutes and must
take note of the procedure adopted by them, [and] a legislature
need do nothing more than enact and publish the law, and afford
the citizenry a reasonable opportunity to familiarize itself with
its terms and to comply.” Id. at 416 (internal citations and
quotation marks omitted). Thus, we noted that the Supreme

38
     In so doing, we cited a Supreme Court decision reciting that

         [t]his court has often decided that statutes of limitation
         affecting existing rights are not unconstitutional, if a
         reasonable time is given for the commencement of an
         action before the bar takes effect.

         It is difficult to see why, if the legislature may prescribe
         a limitation where none existed before, it may not change
         one which has already been established. The parties to a
         contract have no more a vested interest in a particular
         limitation which has been fixed than they have in an
         unrestricted right to sue.

Wilson v. Iseminger, 185 U.S. 55, 63, 22 S.Ct. 573, 575 (1902)
(internal quotation marks omitted).


                                 45
Court

        has upheld retroactive adjustments to a limitations period
        only when the legislature has provided a grace period
        during which the potential plaintiff could reasonably be
        expected to learn of the change in the law and then
        initiate his action. In the context of a retrospective
        statute of limitations, a reasonable grace period provides
        an adequate guarantee of fairness. Having suffered the
        triggering event of an injury, a potential plaintiff is likely
        to possess a heightened alertness to the possibly
        changing requirements of the law bearing on his claim.

Id. at 417 (quoting Texaco, Inc. v. Short, 454 U.S. 516, 549, 102
S.Ct. 781, 802 (1982) (internal quotation marks omitted)).

        An IDEA claimant’s right to redress does not end with
the administrative review process, for any aggrieved party who
received an adverse administrative determination regarding his
or her complaints with respect to IDEA compliance may bring
an action in a “[s]tate court of competent jurisdiction or in a
district court of the United States, without regard to the amount
in controversy,” 20 U.S.C. § 1415(i)(2)(A), within 90 days of
the final administrative decision, 20 U.S.C. § 1415(i)(2)(B). 39
Prior to the amendment of the IDEA shortening the limitations
period, the time for bringing suit in a state or federal court after
receiving an adverse administrative determination had been two

39
  But an action may be brought in a state with “an explicit time
limitation for bringing such an action . . . in such time as the
State law allows.” 20 U.S.C. § 1415(i)(2)(B).


                                 46
years. The amendment adopting the 90-day statute of
limitations passed by Congress on December 3, 2004, became
effective July 1, 2005, seven months after its enactment. This
90-day statute of limitations period begins running on “the date
of the decision of the [administrative] hearing officer.” 20
U.S.C. § 1415(i)(2)(B); see also Jonathan H., 562 F.3d at 530
(“Section 1415(i)(2)(B) limits a party’s right to ‘bring an action’
to within 90 days after the final administrative decision.”).

       As with ADA claims, a party seeking redress under the
IDEA must exhaust administrative remedies before filing an
action seeking redress in a state or federal court. See Komninos
by Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775,
778 (3d Cir. 1994) (citing Smith v. Robinson, 468 U.S. 992,
1011-12, 104 S.Ct. 3457, 3468-69 (1984)); see also I.M. ex rel.
C.C. v. Northampton Pub. Schs., 869 F. Supp. 2d 174 (D. Mass.
2012) (“Plaintiffs’ conceded failure to exhaust their
administrative remedies with regard to the ADA-grounded claim
and/or appeal such a decision within 90 days is fatal to its
present viability.”).

       We have explained that the policy of requiring
exhaustion of administrative remedies is strong but it has some
very limited exceptions, namely:

            where exhaustion would be futile or inadequate
         (see Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592,
         606 (1988));
            where the issue presented is a purely legal
         question;



                                47
              where the administrative agency cannot grant
           relief (for example, due to lack of authority); and
              an emergency situation, such as where exhaustion
           of administrative remedies would cause ‘severe or
           irreparable harm’ to the litigant.

Komninos, 13 F.3d at 778-79.40

       Nonetheless, we have cautioned that “[t]he advantages of
awaiting completions of the administrative hearings are
particularly weighty in Disabilities Education Act cases. That
process offers an opportunity for state and local agencies to
exercise discretion and expertise in fields in which they have
substantial experience. . . . [Therefore], courts should be wary
of foregoing the benefits to be derived from a thorough
development of the issues in the administrative proceeding.” Id.
at 779-80. We have explained that “the IDEA provides a
comprehensive remedial scheme” and “includes a judicial
remedy for violations of any right ‘relating to the identification,
evaluation, or educational placement of [a] child, or the
provision of a free appropriate public education to such child.’”
 A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 803 (3d Cir.
2007) (citing 20 U.S.C. § 1415(b)(6)).41

40
     Citing, inter alia, Honig, 484 U.S. at 327, 108 S.Ct. at 606.
41
  In A.W. we further noted that “[b]y preserving rights and
remedies ‘under the Constitution,’ section 1415(l) does permit
plaintiffs to resort to section 1983 for constitutional violations,
notwithstanding the similarity of such claims to those stated
directly under IDEA. But section 1415(l) does not permit

                                 48
           C. Title VI of the Civil Rights Act of 1964

        Title VI of the Civil Rights Act provides that “[n]o
person in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program
or activity receiving Federal financial assistance.” 42 U.S.C. §
2000d. Title VI further provides, in relevant part, that the
guidelines and criteria established by Title VI “dealing with
conditions of segregation by race, whether de jure or de facto, in
the schools of the local educational agencies of any State shall
be applied uniformly in all regions of the United States . . .
whatever the origin or cause of such segregation.” 42 U.S.C. §
2000d-6(a).


plaintiffs to sue under section 1983 for an IDEA violation,
which is statutory in nature. Nothing in section 1415(l)
overrules the Court’s decision in Smith [v. Robinson, 468 U.S.
992, 104 S.Ct. 3457 (1984)], to the extent it held that Congress
intended IDEA to provide the sole remedies for violations of
that same statute. . . . Indeed . . . the Court has continued to
refer to the IDEA as an example of a statutory enforcement
scheme that precludes a § 1983 remedy.” A.W., 486 F.3d at
798-803 (emphasis added). Thus, we note that for the five or
six student plaintiffs who have changed their theory of liability
and now argue that the LMSD incorrectly identified them as
disabled, this part of the analysis presumably would not apply,
as they no longer make claims under the IDEA. However, as we
previously have noted, appellants did challenge the District
Court’s determination on this issue in the briefs in No. 11-4201.


                                49
       The application of Title VI to recipients of federal
assistance through the Department of Education, as explained in
the Code of Federal Regulations is especially germane to this
case:

      (a) General. No person in the United States shall, on the
      ground of race, color, or national origin be excluded
      from participation in, be denied the benefits of, or be
      otherwise subjected to discrimination under any program
      to which this part applies.

      (b) Specific discriminatory actions prohibited.

          (1) A recipient under any program to which this part
          applies may not, directly or through contractual or
          other arrangements, on ground of race, color, or
          national origin:

             (i) Deny an individual any service, financial aid,
             or other benefit provided under the program;

             (ii) Provide any service, financial aid, or other
             benefit to an individual which is different, or is
             provided in a different manner, from that
             provided to others under the program;

             (iii) Subject an individual to segregation or
             separate treatment in any matter related to his
             receipt of any service, financial aid, or other
             benefit under the program;

              (iv) Restrict an individual in any way in the

                              50
               enjoyment of any advantage or privilege enjoyed
               by others receiving any service, financial aid, or
               other benefit under the program;

               (v) Treat an individual differently from others in
               determining whether he satisfies any admission,
               enrollment, quota, eligibility, membership or
               other requirement or condition which individuals
               must meet in order to be provided any service,
               financial aid, or other benefit provided under the
               program;

       ...

34 C.F.R. § 100.3(a), (b)(1)(i)-(b)(1)(v).

        Private individuals who bring suits under Title VI may
not recover compensatory relief unless they show that the
defendant engaged in intentional discrimination. Guardians
Assoc. v. Civil Serv. Comm’n of N.Y., 463 U.S. 582, 597, 607,
103 S.Ct. 3221, 3230, 3235 (1983); see also Alexander v.
Sandoval, 532 U.S. 275, 282-83, 121 S.Ct. 1511, 1517-18
(2001) (reaffirming that private individuals cannot recover
compensatory damages under Title VI except in cases of
intentional discrimination). Recently, we held that plaintiffs
bringing claims under the ADA and RA may establish
intentional discrimination with a showing of deliberate
indifference. S.H. v. Lower Merion Sch. Dist., 729 F.3d 248,
263 (3d Cir. 2013). Given the parallels between Title VI and
the statutes at issue in S.H., our rationale for adopting deliberate
indifference as a form of intentional discrimination in S.H.
applies with equal force in the Title VI context. We explained

                                51
that the deliberate indifference standard was “better suited to the
remedial goals of the RA and the ADA,” id. at 264, which is
also true for Title VI given that the remedies available for
violations of Title VI are coextensive with those available under
the ADA and the RA, Barnes v. Gorman, 536 U.S. 181, 185,
122 S.Ct. 2097, 2100 (2002).

        Other courts of appeals to have considered the issue
agree that deliberate indifference may, in certain circumstances,
establish intentional discrimination for the purposes of a Title
VI claim. See, e.g., Zeno v. Pine Plains Cent. Sch. Dist., 702
F.3d 655, 664-65 (2d Cir. 2012) (explaining that deliberate
indifference to teacher or peer harassment of individual may
create liability if a plaintiff establishes “(1) substantial control,
(2) severe and discriminatory harassment, (3) actual knowledge,
and (4) deliberate indifference”); Bryant v. Indep. Sch. Dist. No.
I-38 of Garvin Cnty., Ok., 334 F.3d 928, 934 (10th Cir. 2003)
(holding that “deliberate indifference to known instances of
student-on-student racial harassment is a viable theory in a Title
VI intentional discrimination suit”); Monteiro v. Tempe Union
High Sch. Dist., 158 F.3d 1022, 1033 (9th Cir. 1998) (finding
that school district may violate Title VI if there is a racially
hostile environment, the district had notice of the problem, and
it failed to respond adequately). The Supreme Court, addressing
claims under Title IX, explained that in order to establish
deliberate indifference, a plaintiff must show that the school
district had knowledge of the alleged misconduct and the power
to correct it but nonetheless failed to do so. See Davis v.
Monroe Cnty. Bd. of Educ., 526 U.S. 629, 645-49, 119 S.Ct.
1661, 1672-74; S.H., 729 F.3d at 265. Constructive knowledge
is not sufficient; “only actual knowledge is a predicate to

                                 52
liability.” Zeno, 702 F.3d at 666.

       D. 42 U.S.C. § 1983

       42 U.S.C. § 1983 states, in relevant part:

       Every person who, under color of any statute, ordinance,
       regulation, custom, or usage, of any State or Territory or
       the District of Columbia, subjects, or causes to be
       subjected, any citizen of the United States or other
       person within the jurisdiction thereof to the deprivation
       of any rights, privileges, or immunities secured by the
       Constitution and laws, shall be liable to the party injured
       in an action at law, suit in equity, or other proper
       proceeding for redress . . .

      To establish a § 1983 claim, a plaintiff must prove that a
defendant’s discriminatory action was purposeful:

       To bring a successful claim under 42 U.S.C. § 1983 for a
       denial of equal protection, plaintiffs must prove the
       existence of purposeful discrimination. They must
       demonstrate that they ‘receiv[ed] different treatment
       from that received by other individuals similarly
       situated.’

Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990)
(internal citations omitted). We further explained in Brown v.
City of Pittsburgh, 586 F.3d 263, 293 (3d Cir. 2009):

       Our analysis yields the following conclusion: in
       order to establish municipal liability for selective

                               53
       enforcement of a facially viewpoint- and content-
       neutral regulation, a plaintiff whose evidence
       consists solely of the incidents of enforcement
       themselves must establish a pattern of
       enforcement activity evincing a governmental
       policy or custom of intentional discrimination on
       the basis of viewpoint or content.

        We also have explained that “[a]n essential element of a
claim of selective treatment under the Equal Protection Clause is
that the comparable parties were ‘similarly situated.’ Persons
are similarly situated under the Equal Protection Clause when
they are alike ‘in all relevant aspects.’” Startzell v. City of
Phila., 533 F.3d 183, 203 (3d Cir. 2008) (citing Hill v. City of
Scranton, 411 F.3d 118, 125 (3d Cir. 2005)).

          E. Section 504 of the Rehabilitation Act and
          Relevant Regulations of the Department of
          Education

       Section 504 of the RA, 29 U.S.C. § 701 et seq., states, in
relevant part:

       No otherwise qualified individual with a disability
       in the United States, . . . shall, solely by reason of
       her or his disability, be excluded from the
       participation in, be denied the benefits of, or be
       subjected to discrimination under any program or
       activity receiving Federal financial assistance. . . .

29 U.S.C. § 794(a). Thus, § 504 of the RA requires school
districts receiving federal funding to provide a FAPE to each

                                54
qualified handicapped person within the recipient’s jurisdiction.
 See Lauren W., 480 F.3d at 274; see also Ridley, 680 F.3d at
280 (quoting W.B. v. Matula, 67 F.3d 484, 492 (3d Cir. 1995),
abrogated on other grounds by A.W., 486 F.3d 791); 34 C.F.R.
§ 104.33(a)-(b).42 We have explained that this means “a school

42
     34 C.F.R. § 104.33 provides:

      (a) General. A recipient that operates a public elementary or
      secondary education program or activity shall provide a free
      appropriate public education to each qualified handicapped
      person who is in the recipient’s jurisdiction, regardless of the
      nature or severity of the person’s handicap.

      (b) Appropriate education.

        (1) For the purpose of this subpart, the provision of an
        appropriate education is the provision of regular or special
        education and related aids and services that (i) are
        designed to meet individual educational needs of
        handicapped persons as adequately as the needs of
        nonhandicapped persons are met and (ii) are based upon
        adherence to procedures that satisfy the requirements of
        §§ 104.34, 104.35, and 104.36.

        (2) Implementation of an Individualized Education
        Program developed in accordance with the Education of
        the Handicapped Act is one means of meeting the
        standard established in paragraph (b)(1)(i) of this section.

        (3) A recipient may place a handicapped person or refer
        such a person for aid, benefits, or services other than

                                   55
district must reasonably accommodate the needs of the
handicapped child so as to ensure meaningful participation in
educational activities and meaningful access to educational
benefits. . . . However, § 504 does not mandate ‘substantial’
changes to the school’s programs, and courts ‘should be mindful
of the need to strike a balance between the rights of the student
and [his or her] parents and the legitimate financial and
administrative concerns of the [s]chool [d]istrict.’” Ridley, 680
F.3d at 280-81 (internal citation omitted); Ridgewood, 172 F.3d
at 247; Southeastern Cmty. Coll. v. Davis, 442 U.S. 397, 405,
99 S.Ct. 2361, 2366 (1979). On the other hand, mere
administrative or fiscal convenience does not constitute a
sufficient justification for providing separate or different
services to a handicapped child. Ridley, 680 F.3d at 281 (citing
Helen L. v. DiDario, 46 F.3d 325, 338 (3d Cir. 1995)).

       To establish that there has been a violation of § 504 of
the RA, a plaintiff must prove that: (1) the student was
disabled;43 (2) (s)he was “otherwise qualified” to participate in

      those that it operates or provides as its means of carrying
      out the requirements of this subpart. If so, the recipient
      remains responsible for ensuring that the requirements of
      this subpart are met with respect to any handicapped
      person so placed or referred.
43
   Again, as noted, a recent psychological evaluation of the
students in question, performed by plaintiffs’ psychologist at
their behest, has concluded that five or six of the students at
issue are not learning disabled, and thus a § 504 analysis
presumably is not relevant to those students’ claims.


                               56
school activities; (3) the school district received federal financial
assistance; and (4) the student was excluded from participation
in or denied the benefits of the educational program receiving
the funds, or was subject to discrimination under the program.
See id. at 280.

           F. Americans with Disabilities Act

       In a provision similar to the safeguards we have
outlined above, Title II of the ADA provides, in relevant
part:

       Subject to the provisions of this subchapter, no
       qualified individual with a disability shall, by
       reason of such disability, be excluded from
       participation in or be denied the benefits of the
       services, programs, or activities of a public entity,
       or be subjected to discrimination by any such
       entity.

42 U.S.C. § 12132.

       The Code of Federal Regulations has effectuated
the ADA by mandating that there be equal opportunity in
benefits and services for disabled individuals. It
provides, in relevant part,

       (b)(1) A public entity, in providing any aid,
       benefit, or service, may not, directly or through
       contractual, licensing, or other arrangements, on
       the basis of disability—


                                 57
               ...

               (ii) Afford a qualified individual with a
               disability an opportunity to participate in
               or benefit from the aid, benefit, or service
               that is not equal to that afforded others;

               (iii) Provide a qualified individual with a
               disability with an aid, benefit, or service
               that is not as effective in affording equal
               opportunity to obtain the same result, to
               gain the same benefit, or to reach the same
               level of achievement as that provided to
               others;

               ...

               (vii) Otherwise limit a qualified individual
               with a disability in the enjoyment of any
               right, privilege, advantage, or opportunity
               enjoyed by others receiving the aid,
               benefit, or service.

               ...

28 C.F.R. § 35.130(b)(1)(ii), (iii), (vii).

        We have explained that “the substantive standards for
determining liability under the Rehabilitation Act and the ADA
are the same.” Ridley, 680 F.3d at 282-83 (citing McDonald v.
Pa. Dep’t of Pub. Welfare, 62 F.3d 92, 94-95 (3d Cir. 1995)).


                                58
       G. Establishing a Prima Facie Case of Racial
       Discrimination Through Circumstantial Evidence

       Inasmuch as we have recognized that individuals who
violate the law based on discriminatory motives sometimes do
not leave a trail of direct evidence, but instead “cover their
tracks” by providing alternate explanations for their actions, we
have found that a plaintiff may establish a prima facie factual
foundation of discrimination by drawing reasonable inferences
from certain objective facts that are generally not in dispute.
See Barnes Found. v. Twp. of Lower Merion, 242 F.3d 151,
162-63 (3d Cir. 2001).44

        In International Brotherhood of Teamsters v. United
States, a Title VII employment discrimination case mentioned
44
   In Barnes, a case involving a museum with a primarily
African American board of directors, the plaintiffs’ evidence
consisted mainly of affidavits from attorneys expressing their
viewpoint that zoning enforcement had been unequal with
respect to the museum. In this regard, the plaintiffs claimed that
there had been unequal treatment of the museum as compared to
its neighbors in the enforcement of parking regulations.
Moreover, it was claimed that one resident of the municipality
in which the museum was located used “code words” at a public
meeting in a manner that the plaintiffs believed had racial
undertones. Nevertheless, we concluded that the evidence
provided “a totally inadequate foundation on which to predicate
an inference that racial animus motivated the appellants,” 242
F.3d at 164, except perhaps as to the one individual who had
used the “code words.”


                               59
several times during oral argument in this case,45 the Supreme
Court rejected defendants’ arguments that statistics never can
establish a prima facie case of discrimination. Rather, the Court
held that statistics, when bolstered by other evidence, may,
depending on the circumstances, establish a prima facie case of
racial discrimination. 431 U.S. 324, 338-40, 97 S.Ct. 1843,
1856-57 (1977). However, the Court cautioned that the
“usefulness [of statistics] depends on all of the surrounding facts
and circumstances.” Id. at 340, 97 S.Ct. at 1856-57.

        Importantly, the Supreme Court has explained that
neither the “courts or defendants [are] obliged to assume that
plaintiffs’ statistical evidence is reliable,” and has cited, for
example, the weaknesses inherent in small or incomplete data
sets and/or inadequate statistical techniques. Watson v. Fort

45
   Many of the cases that discuss statistical evidence as it relates
to establishment of a prima facie case of discrimination do so in
the context of employment litigation under Title VII. Though
we are not suggesting that a Title VI prima facie case
necessarily requires a plaintiff to meet the same burden of proof
that a plaintiff must meet in a Title VII case, as we have no need
to address that possibility, the general discussion of the
usefulness of statistics as prima facie evidence in Title VII cases
is instructive. Indeed, we have recognized that “[a]lthough the
Supreme Court has not yet spoken on the issue, the courts of
appeals have generally agreed that the parties’ respective
burdens in a Title VI disparate impact case should follow those
developed in Title VII cases.” Powell v. Ridge, 189 F.3d 387,
393 (3d Cir. 1999).


                                60
Worth Bank & Trust, 487 U.S. 977, 996, 108 S.Ct. 2777, 2790
(1988); see also Teamsters, 431 U.S. at 339 n.20, 97 S.Ct. at
1857 n.20 (“Considerations such as small sample size may, of
course, detract from the value of such evidence.”).

       The Supreme Court also has rejected the use of particular
standard deviations or “any alternative mathematical standard”
in establishing a prima facie case of employment discrimination,
and has stressed that the significance or substantiality of
numerical disparities must be judged on a case-by-case basis.
“[S]uch a case-by-case approach properly reflects our
recognition that statistics ‘come in infinite variety and . . . their
usefulness depends on all of the surrounding facts and
circumstances.’” Watson, 487 U.S. at 995 n.3, 108 S.Ct. at
2789 n.3 (internal citations omitted). Moreover, the Court has
noted that its “formulations, which have never been framed in
terms of any rigid mathematical formula, have consistently
stressed that statistical disparities must be sufficiently
substantial that they raise such an inference of causation.” Id. at
995, 108 S.Ct. at 2789.

           H. Class Actions and Res Judicata (Claim
           Preclusion) Defenses

                   1. Claim Preclusion

       We have explained that

       [c]laim preclusion, formerly referred to as res judicata,
       gives dispositive effect to a prior judgment if a particular
       issue, although not litigated, could have been raised in
       the earlier proceeding. Claim preclusion requires: (1) a

                                 61
       final judgment on the merits in a prior suit involving; (2)
       the same parties or their privities [sic]; and (3) a
       subsequent suit based on the same cause of action.

Bd. of Trs. of Trucking Emps. of N. Jersey Welfare Fund, Inc. -
Pension Fund v. Centra, 983 F.2d 495, 504 (3d Cir. 1992)
(citing United States v. Athlone Indus., Inc., 746 F.2d 977, 983
(3d Cir. 1984)).

       In analyzing whether these three elements have been met,
we “[do] not apply this conceptual test mechanically, but focus
on the central purpose of the doctrine, to require a plaintiff to
present all claims arising out [of] the same occurrence in a
single suit. In so doing, we avoid piecemeal litigation and
conserve judicial resources.” Sheridan v. NGK Metals Corp.,
609 F.3d 239, 260 (3d Cir. 2010) (quoting Churchill v. Star
Enters., 183 F.3d 184, 194 (3d Cir. 1999) (internal quotation
marks omitted)) (in turn quoting Athlone, 746 F.2d at 984).

        We further have explained that “[w]e take a ‘broad view’
of what constitutes the same cause of action” and that “res
judicata generally is thought to turn on the essential similarity of
the underlying events giving rise to the various legal claims.”
Sheridan, 609 F.3d at 261 (emphasis in original) (citing
Churchill, 183 F.3d at 194) (quoting Athlone, 746 F.2d at 983-
84). In analyzing essential similarity, we consider several
factors: “(1) whether the acts complained of and the demand for
relief are the same . . .; (2) whether the theory of recovery is the
same; (3) whether the witnesses and documents necessary at
trial are the same . . .; and (4) whether the material facts alleged
are the same. It is not dispositive that a plaintiff asserts a
different theory of recovery or seeks different relief in the two

                                62
actions.” Id. at 261 (internal quotation marks omitted) (quoting
Davis v. U.S. Steel Supply, 688 F.2d 166, 171 (3d Cir. 1982));
see also Elkadrawy v. Vanguard Grp., 584 F.3d 169, 173 (3d
Cir. 2009) (“This analysis does not depend on the specific legal
theory invoked, but rather [on] the essential similarity of the
underlying events giving rise to the various legal claims.)
(internal quotation marks omitted).

        Thus, res judicata bars a claim litigated between the same
parties or their privies in earlier litigation where the claim arises
from the same set of facts as a claim adjudicated on the merits in
the earlier litigation. “Moreover, ‘res judicata bars not only
claims that were brought in the previous action, but also claims
that could have been brought.’” Id. (internal citations omitted)
(quoting Davis v. U.S. Steel Supply, 688 F.2d at 171). Further,
“[t]he fact that several new and discrete discriminatory events
are alleged does not compel a different result. A claim
extinguished by res judicata ‘includes all rights of the plaintiff
to remedies against the defendant with respect to all or any part
of the transaction, or series of connected transactions, out of
which the action arose.’” Id. at 174 (emphasis in original)
(quoting Restatement (Second) of Judgments § 24(1) (1982)).

                   2. Application of Res Judicata (Claim
                      Preclusion) in Class Actions

       We have explained that “[i]t is now settled that a
judgment pursuant to a class settlement can bar later claims
based on the allegations underlying the claims in the settled
class action. This is true even though the precluded claim was
not presented, and could not have been presented, in the class
action itself.” In re Prudential Ins. Co. of Am. Sales Practice

                                 63
Litig., 261 F.3d 355, 366 (3d Cir. 2001). While “it may seem
anomalous at first glance . . . that courts without jurisdiction to
hear certain claims have the power to release those claims as
part of a judgment . . . we have endorsed the rule because it
serves the important policy interest of judicial economy by
permitting parties to enter into comprehensive settlements that
prevent relitigation of settled questions at the core of a class
action.” Id. at 366 (internal quotation marks omitted) (quoting
Grimes v. Vitalink Comm’ns Corp., 17 F.3d 1553, 1563 (3d
Cir.1994)).

       It is highly significant that adding parties to the class in a
subsequent class action does not necessarily preclude parties
from satisfying the second prong of the res judicata test, that the
parties are the same or privies of the parties in the first action.
See, e.g., Sheridan, 609 F.3d at 261 (“The fact that there are
additional parties in Sheridan II does not affect our
conclusion.”) (citing Gregory v. Chehi, 843 F.2d 111, 119 (3d
Cir. 1988) (“The essence of the cause of action asserted against
the defendants in the state proceeding is not altered by the
addition of more parties.”)).

           I. Standing

       Article III, § 1 of the Constitution confers judicial power
on the federal courts, but limits their jurisdiction to cases and
controversies “which are appropriately resolved through the
judicial process.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
560, 112 S.Ct. 2130, 2136 (1992) (quoting Whitmore v.
Arkansas, 495 U.S. 149, 155, 112 S.Ct. 1717, 1722 (1990)
(“[T]he core component of standing is an essential and
unchanging part of the case-or-controversy requirement of

                                 64
Article III.”) (internal quotation marks omitted)). It is well
established that plaintiffs bear the burden of demonstrating that
they have standing in the action that they have brought. See
Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 291 (3d
Cir. 2005) (citing Storino v. Borough of Point Pleasant Beach,
322 F.3d 293, 296 (3d Cir. 2003)).

       The Supreme Court has explained that “the irreducible
constitutional minimum of standing contains three elements”:
(1) the invasion of a concrete and particularized legally
protected interest and resulting injury in fact that is actual or
imminent, not conjectural or hypothetical; (2) a causal
connection between the injury and the conduct complained of,
meaning that the injury must be fairly traceable to the
challenged action of the defendant; and (3) it must be likely, as
opposed to merely speculative, that the injury will be redressed
by a favorable decision. Lujan, 504 U.S. at 560, 112 S.Ct. at
2136, 2147 (1992) (citing Sierra Club v. Morton, 405 U.S. 727,
740-41 n.16, 92 S.Ct. 1361, 1368-69 n.16 (1972)). See Nat’l
Collegiate Athletic Ass’n, 730 F.3d at 218.

       An injury is “concrete” if it is real, or distinct and
palpable, as opposed to merely abstract, and is sufficiently
particularized if “‘it affect[s] the plaintiff in a personal and
individual way.’” New Jersey Physicians, Inc. v. President of
the United States, 653 F.3d 234, 238 (3d Cir. 2011) (citing City
of L.A. v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665
(1983)) (citing and quoting Lujan, 504 U.S. at 560 n.1, 112
S.Ct. at 2136 n.1). A harm is “actual or imminent” rather than
“conjectural or hypothetical” where it is presently or actually
occurring, or is sufficiently imminent. The determination of


                               65
what is imminent is somewhat elastic, but it is fair to say that
plaintiffs relying on claims of imminent harm must demonstrate
that they face a realistic danger of sustaining a direct injury from
the conduct of which they complain. Id. (citing Babbitt v.
United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct.
2301, 2308 (1979)).

        In the context of a motion to dismiss, we have held that
the “[i]njury-in-fact element is not Mount Everest. The contours
of the injury-in-fact requirement, while not precisely defined,
are very generous, requiring only that claimant allege [ ] some
specific, identifiable trifle of injury.” Danvers Motor Co., 432
F.3d at 294 (quoting Bowman v. Wilson, 672 F.2d 1145, 1151
(3d Cir. 1982)).

       The Supreme Court explained the difference in the
burden placed on the plaintiff to satisfy the standing requirement
at the motion to dismiss stage as compared to the motion for
summary judgment stage, as follows:

       At the pleading stage, general factual allegations of
       injury resulting from the defendant’s conduct may
       suffice, for on a motion to dismiss we ‘presum[e] that
       general allegations embrace those specific facts that are
       necessary to support the claim.’ In response to a
       summary judgment motion, however, the plaintiff can no
       longer rest on such ‘mere allegations,’ but must ‘set
       forth’ by affidavit or other evidence ‘specific facts,’ Fed.
       Rule Civ. Proc. 56(e), which for purposes of the
       summary judgment motion will be taken to be true. And
       at the final stage, those facts (if controverted) must be
       ‘supported adequately by the evidence adduced at trial.’

                                66
Lujan, 504 U.S. at 561, 112 S.Ct. at 2137 (internal citations
omitted).

       The Court further has noted that:

       ‘Beyond the constitutional requirements, the federal
       judiciary has also adhered to a set of prudential
       principles that bear on the question of standing.’ One of
       these is the requirement that the plaintiff ‘establish that
       the injury he complains of (his aggrievement, or the
       adverse effect upon him) falls within the “zone of
       interests” sought to be protected by the statut[e] [or
       constitutional guarantee] whose violation forms the legal
       basis for his complaint.’ The ‘zone-of-interests’
       formulation first appeared in cases brought under § 10 of
       the Administrative Procedure Act, 5 U.S.C. § 702, but
       we have subsequently made clear that the same test
       similarly governs claims under the Constitution in
       general. Indeed, we have indicated that it is more strictly
       applied when a plaintiff is proceeding under a
       ‘constitutional . . . provision’ . . .

Wyoming v. Oklahoma, 502 U.S. 437, 468-69, 112 S.Ct. 789,
807-08 (1992) (internal citations omitted) (emphasis in original).

        An organization or association may have standing to
bring a claim where (1) the organization itself has suffered
injury to the rights and/or immunities it enjoys; or (2) where it is
asserting claims on behalf of its members and those individual
members have standing to bring those claims themselves. See
Common Cause of Pa., 558 F.3d at 261. Where an organization
asserts its standing to sue on its own behalf, “a mere ‘interest in

                                67
a problem,’ no matter how longstanding the interest and no
matter how qualified the organization is in evaluating the
problem, is not sufficient by itself to render the organization
‘adversely affected’ or ‘aggrieved.’” Sierra Club v. Morton, 405
U.S. at 739, 92 S.Ct. at 1368; see also Pennsylvania Prison Soc.
v. Cortes, 508 F.3d 156, 162 (3d Cir. 2007).

       Where an organization is asserting that it has standing on
behalf of its members, it is claiming that it has “representational
standing.” There are three requirements for this type of
standing:

        (1) the organization’s members must have standing to
       sue on their own; (2) the interests the organization seeks
       to protect are germane to its purpose, and (3) neither the
       claim asserted nor the relief requested requires individual
       participation by its members.

Pennsylvania Prison Soc., 508 F.3d at 163 n.10 (citing Hunt v.
Wash. State Apple Adver. Com’n, 432 U.S. 333, 343, 97 S.Ct.
2434, 2441 (1977)); see also Public Interest Research Grp. of
N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 119 (3d
Cir. 1997).

         Regarding the first prong, we have explained that “[t]he
Supreme Court has repeatedly held that generalized grievances
shared by the public at large do not provide individual plaintiffs
with standing,” and further that “the right to have the
government act in accordance with the law [is] insufficient, by
itself, to support standing.” Id. at 120. Rather, the plaintiff
organization must “make specific allegations establishing that at
least one identified member had suffered or would suffer harm.”

                                68
 Summers v. Earth Island Inst., 555 U.S. 488, 498, 129 S.Ct.
1142, 1151 (2009).

       We also have rejected the “formalistic argument” that an
organization necessarily lacks standing “because [its] charter
prohibits [it] from having members,” but rather in some cases
have relied upon “indicia of membership” in analyzing an
organization’s standing. See Public Interest Research Grp., 123
F.3d at 119 (citing Hunt, 432 U.S. at 334, 97 S.Ct. at 2436-
37).46 But we also have held that a plaintiff by making
expenditures to advance litigation does not suffer sufficient
damage to support standing. Fair Hous. Council of Suburban
Phila. v. Montgomery Newspapers, 141 F.3d 71, 79 (3d Cir.
1998).47

       Finally, “‘the jurisdictional issue of standing can be

46
   In Hunt, the Supreme Court held that “it would exalt form
over substance to differentiate” between the Washington State
Apple Advertising Commission, which represented the interests
of all apple growers and suppliers, whose membership in the
State of Washington was mandatory and who paid dues and
directly benefitted economically from the Commission’s
activities, and a traditional trade organization.
47
    Other courts of appeals “have, however, adopted different
views of whether the injury necessary to establish standing
flows automatically from the expenses associated with
litigation.” But we have aligned “ourselves with those courts
holding that litigation expenses alone do not constitute damage
sufficient to support standing.” Fair Hous., 141 F.3d at 78-79.


                              69
raised at any time,’” by either a party or by the court. See
Center For Biological Diversity v. Kempthorne, 588 F.3d 701,
707 (9th Cir. 2009) (quoting United States v. Viltrakis, 108 F.3d
1159, 1160 (9th Cir. 1997)) (citing Summers, 555 U.S. 488, 129
S.Ct. 1142); see also Steele v. Blackman, 236 F.3d 130, 134 n.4
(3d Cir. 2001) (“Although Appellees do not address standing,
we are required to raise issues of standing sua sponte if such
issues exist.”) (internal quotation marks omitted). It is hardly
surprising that we have this obligation inasmuch as “federal
appellate courts have a bedrock obligation to examine both their
own subject matter jurisdiction and that of the district courts
[,and] . . . standing is ‘perhaps the most important’ of
jurisdictional doctrines.” Public Interest Research Grp., 123
F.3d at 117 (citing FW/PBS Inc. v. City of Dallas, 493 U.S. 215,
230-31, 110 S.Ct. 596, 607 (1990); Chabal v. Reagan, 822 F.2d
349, 355 (3d Cir. 1987)).



                       VII. ANALYSIS

        Now that we have set forth the procedural history, facts,
and applicable law in this case we directly address the issues
raised in this appeal. We first will discuss whether the District
Court correctly determined that the Gaskin settlement and final
adjudication barred the claims against the PDE. Then we will
discuss whether CBP has standing as a litigant in this case. Our
third focus will be on the issue of whether the IDEA’s 90-day
statute of limitations bars the Blunt plaintiffs’ claims. Finally,
we will discuss whether any of the plaintiffs still in the action
when the LMSD moved for summary judgment established a
prima facie case of racial discrimination under Title VI and/or

                               70
presented sufficient evidence to demonstrate that the LMSD
violated the Equal Protection Clause of the Fourteenth
Amendment in violation of 42 U.S.C. § 1983 so that the District
Court erroneously entered its October 20, 2011 Memorandum
and Judgment Order granting summary judgment in favor of the
LMSD.48 As part of this last issue, we will review for abuse of
discretion the District Court’s determinations in using the
evidence submitted on the motion for summary judgment.

          A. The Effect of the Gaskin Settlement on the
          Claims Against the PDE

        We conclude that the District Court correctly held that
the Gaskin settlement barred the plaintiffs’ claims against the
PDE. Although the Gaskin plaintiffs were basing their claims
against the PDE on its alleged supervisory failure and did not
assert that it engaged in racial discrimination, the Gaskin class
consisted of “all school-age students with disabilities in
Pennsylvania who have been denied a free appropriate education
in regular classrooms with individualized supportive services,
individualized instruction, and accommodations they need to
succeed in the regular education classroom.” J.A. vol. 1, at
42.64. The allegations against PDE in this case are strikingly
similar to those made against it in Gaskin. As the District Court

48
  Although we do not reach this issue with respect to the Blunts
(as the brief in No. 11-4201 filed on their behalf did not and
could not challenge the summary judgment), it is difficult to see
how we would have come to a different result if we had done so.




                               71
summarized:

       As in Gaskin, the plaintiffs here claim that the PDE
       violated the IDEA by failing to identify children with
       disabilities and provide needed special education and
       related services and by failing to provide the plaintiffs
       and members of the putative class a free, appropriate
       public education. As in Gaskin, plaintiffs here bring a
       claim against the PDE under § 504 of the Rehabilitation
       Act.

J.A. vol. 1, at 42.67.

        We conclude that the claims plaintiffs asserted against
the PDE in this case overlap with the claims made in Gaskin.
Though plaintiffs here advance theories of racial motivation not
raised in Gaskin, the claims here arise from a “common nucleus
of operative facts” when compared to the claims in Gaskin:
namely LMSD’s failure to provide a FAPE to students by
mishandling identification and/or testing of students for learning
disabilities which resulted in incorrect placements. Thus, the
release entered into in Gaskin bars the claims here against the
PDE because the Gaskin release covered claims arising between
2005 and 2010 and included all present and future students with
disabilities within the Commonwealth of Pennsylvania. Indeed,
appellants acknowledge that most, though not all, of the plaintiff
students in this case were evaluated individually and their IEPs
formulated before the Gaskin settlement. Tr. Oral Arg. June 11,
2013, at 19:9-22.

       As explained above, we apply res judicata and claim
preclusion as a consequence of settlement agreements because

                               72
by doing so we encourage settlements and “serve[ ] the
important policy interest of judicial economy by permitting
parties to enter into comprehensive settlements that ‘prevent
relitigation of settled questions at the core of a class action.’”
Prudential, 261 F.3d at 366. We see no reason to depart from
that policy in this case.

        In considering the res judicata issue we recognize that,
although the Gaskin release was broad,49 there is no suggestion
in the record that the attorneys who represented the parties in
Gaskin did not negotiate the settlement at arms’ length.
Moreover, the district court in Gaskin reviewed and accepted the
settlement; and the settlement led the parties to forego additional
litigation in which they could have advanced their positions with
the hope of obtaining what they perceived would be a more
favorable outcome than the settlement agreement provided them.
 We agree with the PDE that the claims against it in this case,
like those in Gaskin, deal with its alleged failure to monitor
special education programs carried out by school districts in
Pennsylvania, including the procedures regarding testing of
students for special education services and other aspects of the
provision of special education services to students entitled to
them, and that the settlement covered the period from 2005-
2010. Tr. Oral Arg. June 11, 2013, at 26:12-25.

       We recognize that appellants argue that the District Court
here erred in its interpretation of the parties’ intent in entering
into the Gaskin settlement agreement. Tr. Oral Arg. June 11,
2013, at 21-23. There can be no doubt that, as other courts have
49
     See Tr. Oral Arg. June 11, 2013, at 28.1.


                                73
held, “[t]he best evidence of . . . intent is, of course, the
settlement agreement itself.” Norfolk S. Corp. v. Chevron,
U.S.A., Inc., 371 F.3d 1285, 1289 (11th Cir. 2004) (emphasis
added); see also Davis v. Huskipower Outdoor Equip. Corp.,
936 F.2d 193, 196 (5th Cir. 1991) (“[A] settlement agreement is
an enforceable contract to which a court must give legal effect
according to the parties’ intent as expressed in the document.”);
Miller v. Ginsberg, 874 A.2d 93, 99 (Pa. Super. Ct. 2005);50
Lubrizol Corp. v. Exxon Corp., 871 F.2d 1279, 1283 (5th Cir.
1989) (where parties express their intent in language in
settlement agreement and were represented by skilled attorneys,
court should not look beyond that language to understand
agreement). Moreover, as the Court of Appeals for the Ninth
Circuit explained in Facebook, Inc. v. Pacific Northwest
Software, Inc., 640 F.3d 1034, 1040 (9th Cir. 2011), a
settlement agreement may release all claims arising out of the
transaction with which the release was concerned even if they
are not yet known; and broad releases are valid at least when

50
   “Settlement agreements are regarded as contracts and must be
considered pursuant to general rules of contract interpretation.
The fundamental rule in construing a contract is to ascertain and
give effect to the intention of the parties. Thus, we will adopt
an interpretation which, under all circumstances, ascribes the
most reasonable, probable, and natural conduct of the parties,
bearing in mind the objects manifestly to be accomplished.
Additionally, if the language appearing in the written agreement
is clear and unambiguous, the parties’ intent must be discerned
solely from the plain meaning of the words used.” Miller, 874
A.2d at 99 (internal citations and quotation marks omitted).


                               74
negotiated between sophisticated parties. Overall, we are
satisfied from the terms of the Gaskin settlement that it included
the claims made against the PDE here, and thus the settlement
barred them.51




51
  We have not overlooked appellants’ argument that the Gaskin
settlement could not bar claims that arose after its effective date.
 Rather, we reject that argument because the settlement included
claims of “future” students and therefore necessarily it included
the claims that arose after its effective date.




                                75
           B. Whether CBP Has Standing in this Suit52


52
   As a matter of convenience this subsection largely is written
as though for the Court, but in fact this section in its entirety
represents only the views of Judge Greenberg, as Chief Judge
McKee and Judge Ambro agree with aspects of the section but,
as they explain in their separate opinions, not its conclusion that
CBP does not have standing. Although Judge Ambro, in his
concurring opinion, concludes that “CBP has standing to sue on
its own behalf,” he also observes that “CBP has not explained
how, were it permitted to continue as a plaintiff in the case, it
could prevail where the individual Plaintiffs have failed.” Chief
Judge McKee writes that “CBP’s likelihood of success on the
merits has no bearing on its standing.” Judge Ambro, however,
did not make his observation to support Judge Greenberg’s
conclusion that CBP does not have standing. Rather, Judge
Ambro’s point is that, even if CBP has standing, it could not
save its case as it could not survive LMSD’s motion for
summary judgment. Judge Greenberg agrees that, even if CBP
had standing, it would lose on the merits. See infra note 62.

       We note that Chief Judge McKee sets forth that CBP was
dismissed at an “early stage” of the litigation and did not have
the opportunity to engage in discovery. But as we explain
below, the District Court considered the standing issue twice,
once in proceedings leading to the February 15, 2008 Order
dismissing CBP for lack of standing, and again in proceedings
leading to the August 19, 2009 Order again dismissing CBP for
lack of standing, and in entering the second order the Court
considered testimony. See infra note 57. Indeed, there was a

                                76
        The District Court dismissed CBP as a plaintiff on its
own behalf in its February 15, 2008 Order because the Court
concluded that CBP had failed to “allege any injury whatsoever”
to itself beyond advancing evidence that at best insufficiently
could support an inference that “the defendants’ conduct may
have caused [CBP] . . . to ‘suffer a setback to the
organization[’s] abstract social interests.’” J.A. vol. 1, at 42.33.
 The Court also determined in its February 15, 2008 Order that
CBP had not met the three-part test that Hunt v. Washington
State Apple Advertising Commission indicated needed to be met
for an organization to sue on behalf of its members. The CBP
failed in this respect because it did not “provid[e] the court with
the identity of any member or alleged in the Amended
Complaint that any of [its] members has suffered an injury[, and

great deal of discovery in this case after the Court originally
dismissed CBP as a party on February 15, 2008, and both this
opinion and Chief Judge McKee’s opinion refer to this
discovery.

        Judge Ambro and Judge Greenberg see no reason why
CBP’s participation in the discovery process would have made
any difference in the outcome of this litigation by somehow
having enabled it to survive the motion for summary judgment if
it had been directed against it. In this regard, they point out that
both groups of plaintiffs had the goal of establishing that LMSD
had been violating anti-discrimination and anti-segregation laws
and regulations and so would have had the same objective in the
discovery process.




                                77
that w]ithout that information, the court ha[d] no basis to
conclude that the organization[] ha[s] standing to bring claims
on behalf of [its] members.” J.A. vol. 1, at 42.33-42.34.
Though CBP’s lack of standing may make no difference with
respect to its claims against the PDE inasmuch as the Gaskin
settlement may have foreclosed those claims, its claim to have
standing raises an issue that must be addressed, for it continues
to assert claims against the LMSD.53

        CBP has not demonstrated that it suffered an injury to
itself conferring standing, and, even if its claim is true that it
has members notwithstanding its bylaws, CBP does not have
standing to sue on their behalf. CBP has a stated purpose to
promote “equity and excellence in the response of school
districts to the needs of diverse student populations; to address
issues related to education for populations identified as minority
and/or African American; and to identify, monitor, and inform
parents about educational issues impacting disadvantaged
students, their families and the community at large.” J.A. vol. 1,
at 42.50.

        In its complaint, CBP identified itself as having been
“operating as an organization in the LMSD for about 13 years,”
and as “a non-profit Pennsylvania corporation whose purpose is,
inter alia, to promote equity and excellence in the response of
school districts to the needs of diverse student populations; to

53
  “May have” is used because CBP was not a member of the
plaintiff class in Gaskin though it might be so regarded to the
extent that it asserts it has representational standing. This point
need not be explored further.


                                78
address issues related to education for populations identified as
minority and/or African American; and to identify, monitor, and
inform parents about educational issues impacting
disadvantaged students, their families and the community at
large.” No. 2:07-cv-3100, Doc. No. 1, pp. 23-24; J.A. vol. 2, at
509. CBP claimed to bring the action “on its behalf and on
behalf of its members.” Id. at 25. CBP identified its members
generally as follows: “[t]he members of the organization are
residents of the Lower Merion School District and current and
former parents or students of the District.” Id. at 510. The
District Court noted that, notwithstanding these allegations,
CBP supplied documents that stated that it had no members.
See August 19, 2009 Order at 5, No. 2:07-cv-3100, Doc. No.
123 (“The organization’s bylaws specifically state ‘[t]he
Corporation shall have no members.’”). Nevertheless, CBP’s
prohibition in its bylaws against having members does not
necessarily mean that it could not have standing as a plaintiff on
behalf of its members. If such a determination were predicated
solely on the basis of the bylaws, it would advance the strictly
formalistic approach that we have rejected in other cases. See
Public Interest Research Grp., 123 F.3d at 119. Nonetheless,
the bylaws do provide context to the overall analysis,
particularly in considering whether CBP has attempted to create
standing for itself by changing its structure and membership and
by its expenditure of resources in response to the District
Court’s observations concerning its standing.

      In the TAC, the last revised complaint in this case, CBP
did not change its statement of purpose quoted above. It,
however, did identify 11 of its members by name, five of whom
are individually named plaintiffs in this case, and it also

                               79
identified itself as “support[ing]” several more class members
and individually named plaintiffs in this case at school-related
meetings and court proceedings. TAC, No. 2:07-cv-3100, Doc.
No. 55, pp. 25-26. CBP also went to great pains to explain the
rise in its expenditures “over the five years” in relation to this
case because, as discussed above, the expenditure of funds by an
organization on behalf of a cause, though not determinative, is
one factor that may be considered in resolving a standing issue.
The CBP’s alleged expenditures on behalf of the interests
embodied in this case included:

           Use of its resources to ‘host educational
            consultants and experts’ with the purpose of
            providing information to the Plaintiffs, class
            members, community and LMSD;
           A ‘sharp’ rise in expenditures over the last five
            years due to its efforts to ‘protect its members
            from the adverse impact’ of ‘the inferior quality
            of LMSD’s dual system of education’;
           Expenditure of resources as a result of its
            attending meetings related to IEPs, Section 504
            and ‘disciplinary meetings, court hearings and
            parent-teacher conferences with and/or on behalf
            of’ various plaintiffs, CBP members and class
            members;
           Its efforts in facilitating a ‘Conciliation
            Agreement between LMSD and the Pennsylvania
            Human Relations Commission in which the
            District promised, inter alia, to eradicate the
            disproportionate suspension of African American
            students as compared to White students’;

                               80
           Production of a 45-minute video ‘highlighting the
            issue of racial inequality’;
           Making the public aware of ‘racial graffiti and
            symbols’ which ‘were promulgated at both LMSD
            high school and middle school buildings’;54
           Publication of a community newsletter and ‘News
            Notes . . . to disseminate the compilations of data
            on’ alleged racial disparities in application of
            disciplinary measures, segregation by race and
            ‘under achievement of African American students
            in the [Lower Merion] District’;
           The ‘organization’ of educational, career,
            standardized test, financial aid, and college
            preparatory seminars.

TAC at 25-26; J.A. vol. 9, at 3871-72.

       Even if all of these expenditures were legitimate, CBP
has not established organizational standing. An organization
may establish a “concrete and demonstrable injury” sufficient to
confer standing if a defendant’s actions “perceptibly impair” the
organization’s ability to provide services. Havens Realty Corp.



v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 1124
(1982). 55 In Havens, the Supreme Court determined that a
54
   It is not clear what these symbols were, who promulgated
them, or why the LMSD should be held responsible for them.
No. 2:07-cv-3100 Doc. No. 55, p. 26.


                               81
nonprofit organization formed to promote equal housing through
counseling and referral services had standing to bring an action
charging that operators of rental housing units had “steered”
potential tenants to certain properties based on race. HOME
alleged that its mission had been frustrated because it had to
devote significant resources to identify and counteract the
defendants’ racial steering. The Supreme Court held that these
allegations, if proven, would constitute an injury in fact, and
thus HOME had standing to sue on its own behalf because the
defendants’ practices had impaired its ability to provide
services. Id. at 379, 102 S.Ct. at 1124. However, organizations
may not satisfy the injury in fact requirement by making
expenditures solely for the purpose of litigation, Fair Hous., 141
F.3d at 75, nor by simply choosing to spend money fixing a
problem that otherwise would not affect the organization at all.
La Asociacion de Trabajadores de Lake Forest v. City of Lake
Forest, 624 F.3d 1083, 1088 (9th Cir. 2010). “It must instead
show that it would have suffered some other injury if it had not
diverted resources to counteracting the problem.” Id.
       CBP has failed to show how LMSD’s actions have

55
   We all agree that Havens supplies the correct standard for
determining whether an organization has alleged an injury in
fact sufficient to confer standing. We disagree, however, about
whether CBP’s allegations are sufficient to meet that standard.
This disagreement is irrelevant to the resolution of this appeal,
however, inasmuch as Judge Ambro and Judge Greenberg point
out that CBP has not explained how it could win on the merits.
Thus, even assuming CBP does have organizational standing,
our ultimate holding would be the same.


                               82
“perceptibly impaired” its mission.56 CBP’s very purpose
relates to actions directly involving LMSD, and its expenditures
were devoted to protecting students’ interests in their
interactions with LMSD. In Havens, HOME’s purpose was to
promote equality in the Richmond area overall and its interests
thus went far beyond monitoring the specific actions at issue in
the Havens case. By contrast, the CBP is targeted only at
LMSD, so its very purpose was to expend resources to educate
the public regarding the LMSD’s behavior. J.A. vol. 2, at 510
(defining CBP’s membership as residents of LMSD and LMSD
parents and students). Because it is targeted at LMSD, all of
CBP’s resources would necessarily have been spent on LMSD-
related projects. CBP has failed to show why this particular
litigation has frustrated its mission, or caused a “concrete and
demonstrable” injury to its activities. It appears that the alleged
additional expenditures were consistent with CBP’s typical
activities, and it is thus unclear the effect, if any, that this
litigation had on their expenditures. See Fair Hous., 141 F.3d at
77-78 (refusing to confer standing at summary judgment where
plaintiff failed to present evidence that it altered its operations
or diverted resources based on litigation); Havens, 455 U.S. at
379, 102 S.Ct. at 1124 (explaining that mere “abstract social
interests” do not confer standing (citing Sierra Club, 405 U.S. at
739, 92 S.Ct. at 1368)). CBP simply has not established that the
LMSD’s actions have frustrated its efforts to fulfill its mission.




56
   We emphasize that much of what we write with respect to
standing reflects the views only of Judge Greenberg.


                                83
Thus, it has not established standing to sue on its own behalf.57

       CBP also has not established that it has standing to sue
on behalf of its members, if it has any. Hunt v. Washington
State Apple Advertising Commission is a useful starting point in
the consideration of this issue because the Supreme Court
discussed indicia of membership as a means of establishing that

57
   As we state above, see supra note 52, the District Court
considered the standing issue twice, once in proceedings leading
to the February 15, 2008 Order dismissing CBP for lack of
standing, and again in proceedings leading to the August 19,
2009 Order again dismissing CBP for lack of standing. This
latter consideration included testimony. The dissent parses this
testimony in detail, and Judge Greenberg likewise considers it in
his analysis. However, a plaintiff may not simply make
repeated amendments to a complaint to “fix” the standing issue.
 In this regard, the court’s reasoning in La Asociacion de
Trabajadores is instructive: “[A plaintiff] may not effectively
amend its [c]omplaint by raising a new theory of standing in its
response to a motion for summary judgment. ‘Simply put,
summary judgment is not a procedural second chance to flesh
out inadequate pleadings.’” 624 F.3d at 1089 (internal citations
omitted) (quoting Wasco Prods., Inc. v. Southwall Techs., Inc.,
435 F.3d 989, 992 (9th Cir. 2006)). This is not to say that a
plaintiff never can cure a pleading with respect to a standing
issue in response to a motion for summary judgment challenging
its standing. Rather, the court of appeals’ comments are
appropriate in the circumstances of this case.



                               84
an organization has members. 432 U.S. at 344, 97 S.Ct. at
2442.

        In Hunt, the Supreme Court determined that a
commission created by the State of Washington to represent
and promote the advertising interests of that State’s apple
growers, whose collective efforts constituted “a multimillion
dollar enterprise which plays a significant role in Washington’s
economy,” had standing to challenge a North Carolina statute
prohibiting the display of apple grading codes on boxes of
apples shipped to North Carolina. Id. at 336, 97 S.Ct. at 2438.
The Washington State apple grading system had been in place
for over 60 years, and the stamp reflecting the apple grading was
a selling point for Washington State apples because of the good
reputation of that State’s apple growing regulations. But due to
the structure of the industry, it would have been difficult to pack
some apples in unstamped boxes and ensure that they were sent
to North Carolina, while ensuring that stamped boxes were
separated and not shipped to North Carolina. Id. at 337, 97
S.Ct. at 2438-39. The Supreme Court found that in the
circumstances of that case58 the Washington State Apple
Advertising Commission had standing to bring the action
challenging the North Carolina statute. Id. at 344-45, 97 S.Ct. at

58
   “Under the circumstances presented here, it would exalt form
over substance to differentiate between the Washington
Commission [as a government-mandated organization] and a
traditional trade association representing individual growers and
dealers who collectively form its constituency.” Hunt, 432 U.S.
at 345, 97 S.Ct. at 2442 (emphasis added).


                                85
2442. The Court explained that “while the apple growers and
dealers are not ‘members’ of the Commission in the traditional
trade association sense,” because their membership was not
voluntary, but rather was required by statute, “they possess[ed]
all of the indicia of membership in an organization.” Id. at 344,
97 S.Ct. at 2442.

       In making this determination, the Court noted that only
Washington State apple growers and dealers could elect the
members of the Commission, and that the growers and dealers
alone financed its activities, including litigation costs, through
mandatory assessments levied on them. Id. at 344-45, 97 S.Ct.
at 2442. The Court found that “[i]n a very real sense, therefore,
the Commission represents the State’s growers and dealers and
provides the means by which they express their collective views
and protect their collective interests.” Id. at 345, 97 S.Ct. at
2442. The Court reasoned that the statutorily-mandated
participation of apple growers and dealers through assessments
did not bar the Commission from having standing, analogizing
that

       [m]embership in a union, or its equivalent, is often
       required. Likewise, membership in a bar association,
       which may also be an agency of the State, is often a
       prerequisite to the practice of law. Yet in neither
       instance would it be reasonable to suggest that such an
       organization lacked standing to assert the claims of its
       constituents.

Id., 97 S.Ct. at 2442.

       Further, the Court noted that the Commission had a

                               86
strong direct interest in the litigation, because its existence
depended on the economic health of the Washington State
apple-growing industry. Moreover, assessments based on the
volume of apples grown and packaged provided the
Commission’s funding and the North Carolina regulation was
expected to have a great economic impact on the Washington
State apple industry. Id., 97 S.Ct. at 2442.

        Though appellants rely heavily on Hunt, Judge
Greenberg believes that it clearly is distinguishable. CBP is not
funded through mandatory assessments of African American
students or their parents residing in the LMSD. Further, CBP’s
funding is not tied directly to a clear economic interest which
will be affected by the outcome of this litigation. The analogy
of a traditional trade organization discussed in Hunt is simply
not relevant to the CBP’s position in this case. Moreover, in an
entirely different setting, the Court based its decision in Hunt on
the circumstances of that case, including an analysis of how the
Commission functioned as an organization.59


59
   In support of his contention that CBP has standing, Chief
Judge McKee indicates that if CBP “can establish both the
discriminatory practices and resultant harm alleged, any
injunctive or declaratory relief would surely inure to the benefit
of African American students and parents in the school district.
These students and parents are no more required have to be a
party to this suit in order to benefit from the requested relief
than the constituents in Hunt were required to be parties to
benefit receive the benefits there.” The problem with this
statement is that, though it indicates that non-parties may benefit

                                87
         Although appellants amended their complaint after the
District Court’s dismissal of the CBP to name several alleged
individual CBP members as plaintiffs, CBP’s organizational
documents state that it does not have members. Moreover, even
though appellants also added statements to the complaint
asserting that the CBP was making expenditures related to this
suit after the District Court noted the lack of economic impact of
the litigation on CBP, this amendment does not supply the basis
for standing. It is clear that a nonprofit entity cannot create
standing in a lawsuit in which it has no direct economic interest
by having its representatives attend meetings regarding the issue
that the entity intends to raise in the suit, or by making
expenditures to “educate” the public on what it regards as the
factual or legal basis for its agenda. As the court said in Center
for Law and Education v. United States Department of
Education, 315 F. Supp. 2d 15, 24-25 (D.D.C. 2004):

       Without concrete and demonstrable injury to the
       groups’ activities, however, evidence of a drain
       on the organizations’ resources does not amount
       to an injury-in-fact for standing purposes. . . .
       [A]n organization’s expenses in the pursuit of its
       agenda are self-effectuating and [claiming them as
       injury-in-fact] would allow any advocacy group
       to manufacture standing by choosing to expend


from any declaratory or injunctive relief that CBP obtains, a
standing inquiry addresses the different matter of whether a
party can seek that relief. Judge Greenberg believes that CBP
cannot do so.


                               88
       resources to advocate against policy decisions
       made by the federal government.

Otherwise, the implication would be that any individual or
organization wishing to be involved in a lawsuit could create a
corporation for the purpose of conferring standing, or could
adopt bylaws so that the corporation expressed an interest in the
subject matter of the case, and then spend its way into having
standing.

         Fair Housing discussed the artificial creation of standing,
and cited and quoted with approval a case that noted that “[a]n
organization cannot, of course, manufacture the injury necessary
to maintain a suit from its expenditure of resources on that very
suit. Were the rule otherwise, any litigant could create injury in
fact by bringing a case, and Article III would present no real
limitation.” Fair Hous., 141 F.3d at 79 (quoting Spann v.
Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990) (internal
quotation marks omitted)); see also Kennedy v. Ferguson, 679
F.3d 998, 1003 (8th Cir. 2012) (citing Spann for the proposition
that litigation-related costs are not injuries for the purposes of
assessing an organization’s standing to bring suit on its own
behalf); AHF Cmty. Dev., LLC v. City of Dallas, 633 F. Supp.
2d 287, 194 (N.D. Tex. 2009) (“The Fifth Circuit has held that
an organization cannot ‘bootstrap standing’ by claiming a drain
on its resources as a result of costs incurred for the particular
lawsuit in which it asserts standing.”). In City of Philadelphia v.
Beretta U.S.A., Corp., 126 F. Supp. 2d 882, 897 (E.D. Pa.
2000), the district court made the following convincing
statement with respect to artificial standing:

       It is also disturbing that the organizational

                                89
       plaintiffs argue that they may sue for the costs of
       educational sessions and other programs which
       they run to counteract gun violence. By this
       logic, any social action organization may confer
       standing upon itself by voluntarily spending
       money on the social problem of its choice.
       Analogously, the environmentalist group in Lujan
       [v. Defenders of Wildlife, 504 U.S. 555, 1112
       S.Ct. 2130 (1992)] would have standing to protest
       the endangerment of wildlife in Sri Lanka simply
       by running programs to preserve foreign fauna.
       This would be a novel and vast expansion of
       associational liability for which plaintiffs have
       advanced no precedential support. It also
       contradicts the prudential concern behind the
       standing doctrine that courts not become vehicles
       for the advancement of ideological and academic
       agendas.

       In addition to not overcoming the foregoing problems
with respect to its standing, CBP does not satisfy the third
requirement for an organization to have standing to sue on
behalf of its members, namely that neither the claim the
organization is asserting nor “the relief requested requires the
participation of individual members in the lawsuit.” Hunt, 432
U.S. at 343, 97 S.Ct. at 2441. Even if the District Court’s
analysis regarding CBP’s lack of members and its attenuated
claims of injury did not demonstrate that CBP did not have
standing, after considering this third criterion it is clear that the
District Court reached the correct result. It is an accepted
principle that “[b]ecause claims for monetary relief usually

                                 90
require individual participation, courts have held associations
cannot generally raise these claims on behalf of their members.”
 Pennsylvania Psychiatric Soc’y v. Green Spring Health Servs.,
Inc., 280 F.3d 278, 284 (3d Cir. 2002).60

       Here, individual student plaintiffs are seeking monetary
reimbursement for remedial courses that they either already
have taken or wish to take, and that they contend were necessary
because of LMSD’s failure to provide them with a FAPE or

60
   Plaintiffs did seek prospective injunctive relief in the TAC,
including an injunction prohibiting LMSD from placing African
American students in special education programs “whether or
not they have a disability” and forcing the LMSD to identify and
evaluate African American students who may have been
improperly placed in lower-level courses, as well as monitoring
and training programs for parents and LMSD staff. J.A. 533-34.
 As we discussed below, because the individual plaintiffs are
parties to the suit, prudential concerns restrict the conferring of
representational standing on the CBP because the individuals
affected are capable of litigating their rights on their own behalf.
 Moreover, in Pennsylvania Psychiatric Society, the distinction
between compensatory and injunctive relief was justified by the
need for assurance that “the the remedy, if granted, will inure to
the benefit of those members of the association actually
injured.” 280 F.3d at 284 (quoting Hunt, 432 U.S. at 343, 97
S.Ct. at 2441). Although the relief would benefit CBP’s
members, the members actually injured are already parties to
this suit. It is thus unnecessary for the CBP to have standing to
vindicate their rights.


                                91
LMSD’s incorrect analysis that they were learning disabled.
Although a determination of whether this case should be
certified as a class action is no longer an issue in this case, the
District Court’s explanation of the highly individualized nature
of these claims is instructive on this last point. It should be
readily apparent to anyone reviewing this case that, in view of
the complex and varying facts asserted for the individual
students and the myriad legal theories presented in the District
Court, the Court was correct in finding that it would have been
inappropriate to certify this case as a class action. For many of
the same reasons, the facts of this case make organizational
representation of the individual plaintiffs insufficient without
their personal participation in this litigation. After all, the
particular aspects of each student’s educational needs, indeed
the very individualized character of the application of IEP and
FAPE to an individual student’s needs, necessarily means that
addressing the diverse factual assertions in this case would
require individual participation from each student litigant
involved.

       Significantly, the third prong of the Hunt test is
prudential, not constitutional. See United Food & Commercial
Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544,
555-56, 116 S.Ct. 1529, 1535-36 (1996). As the Supreme Court
explained, this inquiry is designed to ensure that sufficient
reasons exist to justify departing from the “background
presumption . . . that litigants may not assert the rights of absent
third parties,” and thus focuses on “matters of administrative
convenience and efficiency.” Id. at 556, 116 S.Ct. at 1536.
CBP’s claim to standing is grounded on the claims of its
members—individual students—who are also plaintiffs in the

                                92
lawsuit.      Unlike other cases conferring standing on
organizations, the plaintiffs in this case are not absent. See, e.g.,
id. (organization suing on behalf of its members); Hunt, 432
U.S. at 343, 97 S.Ct. at 2441 (same); Pennsylvania Psychiatric
Soc’y, 280 F.3d at 280 (same).61 The remedies sought here—
compensatory and injunctive—will benefit individual plaintiffs
that are already parties to the suit. Permitting the CBP to litigate
this case on behalf of its members, when those members are
already parties to the lawsuit in their own right, does not fulfill
the Supreme Court’s guidance to focus on “administrative
convenience and efficiency” in determining prudential standing.
 United Food, 517 U.S. at 557, 116 S.Ct. at 1536.

61
  The fact that the plaintiffs are parties to the suit distinguishes
this case from “‘the long line of cases in which organizations
have sued to enforce civil rights’” to which Judge McKee’s
dissent has referred. It is true that, in many circumstances, an
organizational plaintiff may be the best (and only) mechanism
by which discrimination against a large group of individuals
may be remedied. However, where—as here—individual
plaintiffs have brought suit on their own behalf, courts are not
justified in making an exception to the general rule that third
parties may not assert their rights. Although, in Powell v.
Ridge, 189 F.3d 391 (3d Cir. 1999), claims for both individual
and organizational plaintiffs were permitted to proceed, the suit
challenged state policy affecting all students in Philadelphia
schools, a class far larger than the eleven parents who actually
joined the suit. By contrast, the group at issue here affects a
much smaller set of students who are all capable of joining the
suit as individuals or as a class.

                                 93
         As the District Court explained:

         the amount of compensatory education necessary for
         each named plaintiff and class member would require a
         highly individualized inquiry into that student’s unique
         needs, whether those needs were met, the extent to which
         the School District failed to provide that student with a
         free, appropriate public education and the proper amount
         of compensatory education necessary to redress any
         deficiencies. The individualized analysis of each
         student’s educational history and needs precludes a
         finding that a class would be efficiently managed by this
         court.

August 19, 2009 Order at 17, No. 2:07-cv-3100, Doc. No. 123.

        The District Court’s findings regarding the individualized
nature of the factual basis for each plaintiff’s claim go directly
to the third prong for organizational standing, which requires
that, for an organization to assert standing on behalf of its
members, their individual participation in the lawsuit must be
unnecessary. It is very clear that the highly individualized
components of the plaintiffs’ claims, the complex history of
each plaintiff’s IEP and evaluations, and the changes in
understanding of his or her disability status, led the Court to
conclude correctly that the students’ individual participation in
this lawsuit was required. Thus, the Court believed that CBP is
not an appropriate representational litigant for individual
students and/or their parents.62


62
     Although the District Court’s dismissal of CBP’s claims due

                                94
           C. The Blunts and the 90-day Statute of
           Limitations under the IDEA, as Revised by the
           Individuals with Disabilities Improvement Act
           of 2004

        Appellants now argue, contrary to their original
contentions in the District Court in their complaint even as
amended, that five or six63 of the individual student plaintiffs do
not have a learning disability and the LMSD incorrectly
identified them and placed them in special education classes.
Nonetheless, we discuss the IDEA statute of limitations, as
revised in 2004, because it appears that the Blunts still seek a
recovery under the IDEA based on the contention that Amber

to lack of standing is believed correct by Judge Greenberg, even
if CBP had standing it would not be successful in this case in
light of our disposition of the other issues in this appeal. We,
however, will not avoid deciding the standing issue on the
ground that it is moot, for the necessity for a party to have
standing is jurisdictional and thus a court of appeals always
must determine if the district court from which the appellant
took the appeal had jurisdiction.
63
   As we already have indicated, this new theory rests on an
evaluation prepared by a psychologist that the plaintiffs engaged
to evaluate the student plaintiffs. Tr. Oral Arg. June 11, 2013,
at 36-38. During oral arguments, one of appellants’ attorneys
put the number of students who appellants claimed were
classified incorrectly at five but the other attorney put the
number at six. Tr. Oral Arg. June 11, 2013, at 12, 14, 19, 36.
Our analysis does not depend on the figure being five or six.


                                95
was identified as disabled but without challenging the accuracy
of the identification with respect to that contention.
Accordingly, it is not clear that Amber in this litigation has
joined in all respects with the other students now identifying
themselves as having been incorrectly identified as disabled.

        In its February 15, 2008 Order, the District Court found
that the Blunts’ ADA, RA, Title VI, and § 1983 claims were
barred on a different basis than their IDEA claims. J.A. vol. 1,
at 42.21-42.29.64 In reaching its conclusion, the Court applied
Pennsylvania’s two-year statute of limitations for personal
injury actions to the Blunts’ ADA, RA, Title VI, and § 1983
claims because the applicable federal statutes did not include
governing statutes of limitations with respect to these claims.
See Sameric Corp v. City of Phila., 142 F.3d 582, 598-99 (3d
Cir. 1998). The Court concluded that the claims were time-
barred because Amber Blunt had graduated from high school on
June 9, 2005, and the original complaint in this case was filed in
the District Court on July 30, 2007, more than two years after
Amber suffered her alleged injuries. J.A. vol. 1, at 42.28. The
Blunts do not challenge this disposition. But the Blunts do
challenge the Court’s holding that the IDEA 90-day statute of
limitations barred their IDEA claims.

       In reviewing this determination, we note the following
64
  In its February 15, 2008 Order, the District Court noted that
the Blunts conceded that their IDEA, ADA and RA claims
against PDE were untimely, but contended that their IDEA,
ADA and RA claims against the LMSD and the School Board
were timely. J.A. vol. 1, at 42.29.


                               96
timeline: the LMSD denied the Blunts’ request for “transitional
services” on April 8, 2005, the Blunts requested a due process
hearing under the IDEA on April 11, 2005, a two-day hearing
followed, and the Hearing Officer issued his decision on July
25, 2005. Id. at 42.23. Both the Blunts and the LMSD filed
exceptions to the Hearing Officer’s decision with an Appeals
Panel which issued its ruling on August 31, 2005. Id.
Therefore, for purposes of calculating the time allowed by the
statute of limitations for the Blunts to file their action under the
IDEA, their cause of action accrued on August 31, 2005.

        The Blunts argue that the 90-day statute of limitations for
an IDEA claimant adversely affected by an administrative
decision to bring suit in state or federal court does not apply to
their case, even though this statute of limitations became
effective on July 1, 2005, and the decision in their
administrative case became final on August 31, 2005. They
argue that we should reach this result because they filed their
request for a due process hearing on April 8, 2005, before the
change in the limitations period. Therefore, the Blunts believe
that an earlier version of the IDEA under which their IDEA
claims would have been timely should apply in their case. In
their view, to apply the 90-day statute of limitations effective on
July 1, 2005, to their case “would be an impermissible
retroactive application of IDEA amendments.” J.A. vol. 1, at
42.20. They assert that their case is unique because there has
been no other case applying the statute of limitations in a
situation in which the administrative due process hearing request
was made before the 2004 IDEA amendments became effective,
but the final administrative decision was rendered after the
amendments had become effective. Thus, they contend that the

                                97
90-day statute of limitations should not bar their IDEA claims.

        We, however, agree with the District Court, which “[was]
not persuaded” by their contention because “[t]he date that the
hearing was requested is irrelevant.” J.A. vol. 1, at 42.23.
Rather, we look at the statute of limitations in effect on the date
of the final administrative decision, August 31, 2005. Indeed, it
might be asked why we even would consider applying any other
limitations period as the Blunts could not have brought their
IDEA action before August 31, 2005. Consequently, when the
Blunts’ federal cause of action arose, the 90-day statute of
limitations was in effect, and when they brought their case in the
District Court on July 30, 3007, it was untimely. Inasmuch as
the law setting forth the limitations period changed on
December 3, 2004, and became effective on July 1, 2005, the
change as applied to them was hardly abrupt and it left the
Blunts with nine months, from December 3, 2004, until August
31, 2005, to become familiar with the revisions, and an
additional 90 days after August 31, 2005, in which to file their
action.

        The LMSD cites Steven I. for the proposition that the
two-year statute of limitations governing due process hearings is
retroactive to the extent that it applies to proceedings pending
when it became effective. It further contends that the seven
months between the enactment of this new statute of limitations
and its effective date gave potential claimants sufficient notice
so that its retroactive application did not violate due process.
The Blunts contend, however, that Steven I. is not applicable
because that case dealt with the two-year statute of limitations
for bringing an administrative claim under the IDEA, rather than


                                98
the specific statute of limitations at issue, i.e., 90-day statute of
limitations for bringing a state or federal suit after receipt of an
adverse administrative determination. But the Blunts cannot
convincingly explain why an analysis regarding the 90-day
statute of limitations, embodied in 20 U.S.C. § 1415(i)(2)(B)
and applicable to the filing of a judicial challenge in a state or
federal court to an administrative decision, should be different
from an analysis of the validity of the changing of the time
period in which to bring an administrative claim under the
IDEA, embodied in 20 U.S.C. § 1415(f)(3)(C). In considering
this matter we point out that the amendment of the IDEA on
December 3, 2004, which took effect on July 1, 2005, dealt with
both limitations periods.

        We find that the reasoning we employed in Steven I. is
applicable here. In that case we relied on the analysis in
Texaco, Inc. v. Short, 454 U.S. at 532, 102 S.Ct. at 793. In
Texaco v. Short, the Court spoke to the issue of fairness, which
balances the need for a grace period when shortening a
limitations period, with the need for injured parties to be vigilant
in protecting their rights:

               The Court has upheld retroactive
               adjustments to a limitations period only
               when the legislature has provided a grace
               period during which the potential plaintiff
               could reasonably be expected to learn of
               the change in the law and then initiate his
               action. In the context of a retrospective
               statute of limitations, a reasonable grace
               period provides an adequate guarantee of


                                 99
               fairness. Having suffered the triggering
               event of an injury, a potential plaintiff is
               likely to possess a heightened alertness to
               the possibly changing requirements of the
               law bearing on his claim. Because redress
               necessarily depends on recourse to the
               State’s judicial system, the State is free to
               condition its intervention on rules of
               procedure, and further, to impose on the
               potential plaintiff the obligation to monitor
               changes in those rules. Plaintiffs, and their
               attorneys, are so aware.

Id. at 549, 102 S.Ct at 802.

        We therefore concluded in Steven I. that the plaintiffs in
that case had been afforded ample time to make themselves
aware of the new two-year statute of limitations measured from
the date of injury for seeking administrative review under the
IDEA. We similarly conclude that the Blunt plaintiffs had
ample opportunity to familiarize themselves with the 90-day
statute of limitations with respect to judicial actions. In fact, we
even question whether the application of the 90-day statute of
limitations in this case should be regarded as retroactive
inasmuch as the Blunts did not receive an administrative
decision until after the new statute of limitations was in effect,
and their federal court cause of action did not accrue under the
IDEA until the final administrative decision in their case. We
reiterate that the Blunts cannot adequately explain why the
reasoning in Steven I. should not be applied in a consideration
of the effectiveness of the 90-day statute of limitations that was


                                100
enacted at the same time as the two-year statute of limitations
for bringing an administrative action addressed in Steven I. The
fact is that the Blunts simply have not made a convincing
argument for applying the two statutes of limitations in the same
amendment to the IDEA in completely different ways.

          D. Whether Appellants Established a Prima
          Facie Case of Racial Discrimination

        We deal now with appellants’ challenge to the summary
judgment rendered against them on their § 1983 and Title VI
claims, which allege that the LMSD intentionally discriminated
against them because of their race.65 Appellants explain that
“[t]his case ultimately rests upon a simple question: What
quantum of evidence must a plaintiff produce to support an
inference of intentional racial discrimination in order to
overcome a summary judgment motion?” Appellants’ No. 11-
4200 br. at 21. In addressing the discrimination claims, the
LMSD responds that, contrary to the plaintiffs’ contentions,
they “presented no evidence to establish: (1) that the classes
they took were ‘lower level’ and/or ‘below grade-level’”; (2)

65
  The Blunts and the CBP are not involved with the summary
judgment as the District Court dismissed their claims before it
considered the motion for summary judgment. We also note
that the appeal with respect to the summary judgment on the §
1983 claim does not include the aspect of the plaintiffs’
complaint under § 1983 to the extent the complaint was based
on the IDEA, ADA, or RA because the Court dismissed the
plaintiffs’ claims, other than those of the Blunts, under those
laws for failure to exhaust administrative remedies.


                              101
LMSD maintained any specific discriminatory custom, practice
or policy; or (3) “that similarly situated Caucasian students were
treated differently. Indeed, the record is replete with evidence
that class placement . . . is driven by the decisions of students
and parents.” LMSD’s br. at 36. Thus, the LMSD argues that
“[t]here is . . . no dispute that Plaintiffs have no direct evidence
of discrimination.” Id. at 37.

       Appellants argue that “if there is any evidence in the
record from which a reasonable inference in the [appellants’]
favor may be drawn, the moving party simply cannot obtain a
summary judgment.” Appellants’ No. 11-4200 reply br. at 5-6
(quoting Aman v. Cort Furniture Rental Corp., 85 F.3d 1074,
1081 (3d Cir. 1996) (internal quotation marks omitted)).
Appellants then conclude that “[LMSD] (and the District Court)
were required to accept [all] the testimony of record and any
legitimate inference Appellants draw from it, regardless of
whether they agreed with those inferences or not,” and that the
LMSD therefore should not have been granted summary
judgment. Id. at 5-6 (appellants’ emphasis removed). As stated
above, in ruling on a motion for summary judgment a district
court must view the underlying facts and all reasonable
inferences therefrom in the light most favorable to the party
opposing the motion. Genuine and material factual disputes—
meaning those that bear on an essential element of the plaintiff’s
claim—where the trier of fact could find in favor of the non-
moving party must be considered in the light most favorable to
the non-movant.

       LMSD was entitled to summary judgment because there
is no evidence to suggest either that LMSD itself acted with a


                                102
discriminatory intent, or that it knew of—but failed to correct—
a third party’s intentional discrimination. See S.H., 729 F.3d at
264. Although appellants present some evidence that African
American students were overrepresented in a statistical sense in
special education classes, given the record we see no way to
avoid a finding that each individual student’s educational needs
were assessed and satisfied through a thorough and
individualized process. There is not sufficient evidence to show
that the educators and administrators responsible for placing
students intended to discriminate against them because of their
race. Moreover, in order to show that LMSD acted with
deliberate indifference, appellants must show that it had
knowledge of rights violations, but there is no evidence in the
record to suggest that it did or that any third party under its
control engaged in intentional discrimination. See Davis, 526
U.S. at 646-47 (finding deliberate indifference may be met
where school knows of intentional harassment but fails to act.)
Appellants argue that the District Court improperly assessed
witnesses’ credibility, and discounted its statistical evidence.
We discuss these arguments below, but ultimately agree with the
District Court that the record is insufficient to establish a
genuine issue of material fact regarding LMSD’s intent.

                     1. Rejection of Certain Evidence
                     by the District Court and Alleged
                     Impermissible Reliance on Other
                     Evidence Without a Daubert
                     Hearing.

      As stated above, we review a district court’s decisions on
admissibility of evidence under an abuse of discretion standard


                              103
where a party made known to the district court the substance of
the evidence it desires to introduce. Thus, in considering a
district court’s application of the Federal Rules of Evidence, we
will reverse only where “‘there is a definite and firm conviction
that the court below committed a clear error of judgment in the
conclusion it reached upon a weighing of the relevant factors.’”
 Oddi, 234 F.3d at 146. Here, we conclude that the District
Court did not make a clear error of judgment, or, indeed, any
error at all in its consideration of the proffered evidence, and
that, at trial, the excluded evidence could not have been made
admissible. We therefore will uphold all of its rulings regarding
the disputed evidence.66

                          a. The MAP Presentation

       Appellants contend that the District Court improperly
discounted a powerpoint presentation discussing a “Minority
Achievement Program” (MAP). J.A. vol. 5, at 1836-39. The
presentation included a bulleted list of characteristics of African
American students and how to teach them effectively. We
assume the contention that this presentation, if used by LMSD,

66
  We have not overlooked such cases as Lexington Insurance
Co. v. Western Pennsylvania Hospital, 423 F.3d 318, 329 n.6
(3d Cir. 2005), and Williams v. Borough of West Chester, 891
F.2d 458, 465 n.12 (3d Cir. 1989), in which we indicated that a
court in assessing opposition to a motion for summary judgment
might consider unauthenticated documents or hearsay provided
that the evidence could be made admissible at trial. Here,
however, we see no bases on which the deficiencies in the
evidence could have been cured at the trial.


                               104
would provide evidence of discriminatory intent, or deliberate
indifference to a third party’s discriminatory intent. Yet we do
not see any record evidence from which we could conclude that
the LMSD ever used or implemented this presentation. The
presentation does not contain any indication of who authored it
or how it is connected to the LMSD.67 Instead, appellants rely
on the testimony of Dr. Barbara Moore-Williams, an education
consultant retained by LMSD to help it develop “cultural
proficiency among staff.” J.A. vol. 4, at 1411. Appellants
attempt to use her testimony for two purposes: to show that
LMSD used and implemented the MAP presentation and to
show intent.

        In Dr. Moore-Williams’ deposition, appellants’ counsel
questioned her about whether she had heard LMSD teachers or
other personnel refer to specific bullet points from the MAP
presentation. Id. at 1414. Dr. Moore-Williams responded that
she had heard teachers or other personnel refer to some of the
bullet points. Id. Crucially, however, Dr. Moore-Williams did
not testify about the MAP presentation itself—she explains that
she had heard LMSD personnel discuss in general the concepts
raised in the presentation, but that does not establish who
prepared the presentation, or whether LMSD ever used it or for
what purpose. Indeed, even when Moore-Williams indicated
that she had heard of certain bullet points, she noted that they
were not related to African American students. See id. at 1414

67
  The dissent points out that the MAP was produced by LMSD
during discovery, but we cannot assume anything from this fact.



                              105
(explaining, with respect to “active” classes, that she had not
“heard about it in reference to African-American students”). At
most, her testimony is relevant to the extent that she heard from
LMSD personnel that they used different teaching strategies for
particular students. But although purposeful use of such
strategies may show racial bias and would be repugnant, it is
not, as the dissent suggests, sufficient to show that LMSD
created, used, or implemented the MAP presentation. Finally,
the MAP presentation does not show that appellants suffered
intentional discrimination; it does not discuss placement in
lower-level classes and, as discussed, there is no evidence that
these concepts were applied to LMSD’s individualized special
education placement decisions.

                         b. Daniel Reschly’s Report

        Appellants argue that “[t]he District Court erred when it
failed to conduct a Daubert hearing but still relied on the
District’s expert Daniel Reschly’s definitions and principles to
undercut Appellants’ statistical evidence of discrimination by
the District.” Appellants further contend that “the portions of
Reschly’s report relied upon by the District Court form part of
the basis for the two paragraphs that are specifically referred to
in appellants’ form of order,” and thus the District Court erred
in not holding a Daubert hearing on a motion in limine directed
at the Reschly report. Appellants’ No. 11-4200 reply br. at 34-
38. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
113 S.Ct. 2786 (1993). Appellants contend that “Reschly’s
opinions should have no place in this appeal, as they should
have had no place in the District Court’s decision to grant
summary judgment without a Daubert hearing. This provides


                               106
yet another basis to reverse and remand the District Court’s
ruling.” Appellants’ No. 11-4200 reply br. at 38. However,
appellants do not specify the “definitions” and “principles” that
the District Court adopted from Reschly’s report.

       It may be that appellants’ specific objection with regard
to Reschly’s report lies with one paragraph of the October 20,
2011 Memorandum and Judgment Order which refers to
Reschly’s report, consisting of phrases commonly used by those
studying the implementation of disability education and services
under the IDEA. The paragraph reads:

        Disproportionality is defined as ‘significantly greater or
       lower participation in special education by one or more
       groups compared to the participation rates for other
       groups.’      The preferred methods of analyzing
       disproportionality are risk and relative risk or risk ratio.
       Risk is calculated by dividing the number of students
       with disabilities in a particular group by the total number
       of students in that group.

No. 2:07-cv-3100 Doc. No. 180 at 13; J.A. vol. 1, at 16.

        We find this use of Reschly’s wording to define
disproportionality to be immaterial to the outcome of this
litigation. The District Court did not draw inferences in favor of
either side from this definition, which, we observe, seems very
straightforward. Further, the concepts of risk and relative
risk/risk ratio are commonly used statistical terms, and the Court
described these definitions in the October 20, 2011
Memorandum and Judgment Order to give the reader a basic
understanding of the statistical data that the plaintiffs presented

                               107
which the District Court’s opinion goes on to discuss. We find
no other “adoption” of Reschly’s views or principles,
notwithstanding appellants’ objection to the use of his report.
As stated above, the Court denied plaintiffs’ motion to exclude
Reschly’s expert report as moot, as the Court was able to make a
determination regarding whether plaintiffs had presented a
prima facie case in its summary judgment analysis without the
use of the report.

                   2. Whether the District Court Properly
                   Viewed the Evidence in the Light Most
                   Favorable to the Plaintiffs as Non-movants
                   and Whether Plaintiffs Established a Prima
                   Facie Case of Discrimination.

        Appellants argue that, when the facts are viewed in the
light most favorable to them as non-movants in the District
Court, they established a prima facie case under Title VI and §
1983 applying the Equal Protection Clause. Thus, appellants
contend that the Court erred in granting summary judgment
against them on their claims predicated on these bases, as it
refused “to view evidence in the light most favorable to [them].”
 Appellants’ No. 11-4200 reply br. at 28. We point out,
however, that a court’s obligation to view the evidence in the
light most favorable to a non-movant does not require the court
to take into account evidence that will not be admissible at the
trial. Thus, in considering appellants’ argument with respect to
the adequacy of the evidence, we take into account our holdings
with respect to the evidence in which we uphold the District
Court’s disposition of the issues.

        In its October 20, 2011 grant of summary judgment, the

                              108
District Court found that the plaintiffs had failed to “put forth
any evidence that supports their contention that they were
‘segregated’ intentionally into inferior education programs in
violation of Title VI,” and that “plaintiffs have not raised a
genuine issue of material fact regarding their § 1983 cause of
action” based on the Equal Protection Clause. J.A. vol. 1, at 31-
35. The Court, in considering the summary judgment motion,
noted that the plaintiffs were required to “raise at least some
reasonable inference that they were placed into classes and
offered services by the School District due to intentional
discrimination based on their race and not simply due to errors
in evaluation.” The Court concluded that plaintiffs failed to
offer evidence sufficient to support an inference that the LMSD
had intentionally discriminated against African Americans.
Moreover, plaintiffs had not put forth more than a scintilla of
evidence that the LMSD acted with a racially discriminatory
purpose in identifying them as disabled and placing them in
special education courses regardless of whether this
identification was correct. Furthermore, the plaintiffs did not
identify an official policy or custom that suggested that the
LMSD was deliberately indifferent to their rights. J.A. vol. 1, at
32-36.

       We emphasize that, as we explained above, a non-
moving party—here, appellants—opposing a motion for
summary judgment has the burden to produce evidence
supporting its case with respect to material facts of the case on
which it has the burden of proof. Appellants contend that they
met this burden because they did offer more than a scintilla of
evidence in support of their case and that a reasonable fact
finder could have found that the evidence of discrimination they

                               109
offered was sufficient to support a finding in their favor. We, of
course, recognize that in some race discrimination situations
actors do not leave a “smoking gun” evidencing their intent, and
in such cases plaintiffs can prove their cases only with
circumstantial evidence. In this case, however, the piecemeal
anecdotes to which appellants point were insufficient to survive
LMSD’s summary judgment motion.

        The appellants attempt to meet this standard by pointing
to an email by a member of the LMSD School Board, which
they believe supported their prima facie case of discrimination
when read in a light most favorable to them and considered as a
part of the case as a whole. In discussing school redistricting to
increase minority representation in certain schools, one member
of the School Board apparently wrote an email expressing his
concern that “moving any of the low income and African
American students to Harriton [High School] when they can
walk to [Lower Merion High School] simply creates an
additional stressor that doesn’t need to be there.” Appellants’
No. 11-4200 reply br. at 26.

        Appellants believe that “[f]rom that comment, a
reasonable jury could conclude that [LMSD] fostered an
institutional culture (expressed by at least one Board member)
that tolerated racial insensitivity and viewed African Americans
[sic] students as creating unnecessary ‘stress.’” Appellants’ No.
11-4200 reply br. at 27. But we do not need to decide how a
reasonable jury could construe this email because even though it
was available when depositions were taken and a witness other
than its author referred to it on a deposition, it was not properly
submitted to the District Court as it was not introduced into


                               110
evidence and its author was not deposed. Consequently,
appellants cannot rely on the email to defeat the motion for
summary judgment. See Fed. R. Civ. P. 56(c).68 Thus, the
email did not contribute to the admissible evidence appellants
needed to have survived summary judgment.

          Appellants also argue that the District Court wrongly
discounted the deposition testimony of Dr. Moore-Williams, an
independent consultant that the LMSD had engaged prior to this
litigation to address minority issues in the LMSD, as being
based on her personal beliefs and on hearsay. In considering
this testimony, the Court found that her opinions were not based
on anything that she had observed firsthand, but rather
concerned attitudes about race in the country and the education
system in general. Appellants seem to conflate the issue of
admissibility of evidence with the requirement of taking
evidence in the light most favorable to the non-movant when
considering a summary judgment motion. Thus, during oral
argument, appellants’ counsel argued that the District Court

68
  As far as we can tell, the original email was submitted in an
unrelated case against the LMSD, Doe v. Lower Merion School
District, 689 F. Supp. 2d 742, 755 (E.D. Pa. 2010). We also
point out that when the scope of this litigation is considered it is
not easy to understand how an email by one school board
member expressing concern about putting stress on students by
requiring that they be transferred away from a school to which
they can walk supports the allegations of the complaint. But we
do not predicate our result on this observation.




                                111
should have found that there was evidence that LMSD
committed an intentional wrong against African American
students in its schools, not only because it did not consider the
MAP presentation, but because it also wrongly discounted
Moore-Williams’ testimony as hearsay. Tr. Oral Arg. June 11,
2013, at 51-52. While the MAP issue seems to concern
admissibility, it is clear from the October 20, 2011
Memorandum and Judgment Order that the Court did consider
Moore-Williams’ deposition testimony, and appellants referred
to this testimony in their oral arguments on October 4, 2011, in
the District Court on the summary judgment motion.69 No.
2:07-cv-3100 Doc. No. 180 at 25.

       The District Court’s October 20, 2011 Memorandum and
Judgment Order found that references to Moore-Williams’
testimony by the plaintiffs during the October 4, 2011 oral
argument was “selective and misleading,” and that she had
“admit[ted] that her statements about the School District [we]re
not based on anything she observed firsthand but rather on her
own personal belief and the hearsay statements of others.
Accordingly, her statements cannot create a genuine issue of
material fact regarding the School District’s intent to

69
  Although appellants objected to the limited weight the District
Court gave Moore-Williams’ testimony both in their briefs and
at oral argument, and made reference to her deposition in the
appendix, they do not claim to have made a formal motion in
limine regarding Moore-Williams’ testimony seeking to have it
considered, nor have they pointed to an order denying its
admission or consideration by the District Court.


                              112
discriminate.” Id. In this regard, we do not see how the
deficiencies in her testimony could have been cured so that the
evidence could have become admissible at trial. Clearly, we
cannot say that the District Court erred in its treatment of her
evidence.70

        Indeed, putting aside inadmissible evidence, the
allegations in all of the complaints and briefs are inconsistent in
their logic. For example, appellants seem to be complaining
both that LMSD’s placement of individual students in special
education courses has taken them away from “regular” courses,
while at the same time alleging that they did not receive
adequate special education and support.71 It is unclear what
actions LMSD could have taken that plaintiffs would deem
appropriate. In order to participate in full schedules of both
special education and regular education classes, students would
need a longer school day than students taking only regular
education classes. Further, if individual students require extra

70
  We note that inasmuch as the Blunts do not appeal from the
October 20, 2011 Memorandum and Judgment Order granting
summary judgment, we will not address their allegations.


71
   One example, among many, is found in the following
paragraph of the TAC: “Denying these Plaintiffs and the class
the opportunity to participate in and benefit from federally-
assisted regular education services, program and activities,
including special education and related services . . .” TAC at
para. 175(a); J.A. vol. 9, at 3889 (emphases added).


                               113
help in particular subjects, obviously it is counterintuitive to
protest that, for example, they are not receiving foreign language
instruction during the time that they are participating in remedial
courses.

        We also point out that at various points in the SAC the
plaintiffs express dissatisfaction with grades that are too low,
and at other points complain of grades that are too high.
Plaintiffs seem to believe that the divergence in grades
demonstrates that they were placed in courses that either were
too easy or too difficult, depending on which plaintiff they are
discussing.72 But student placement is not an exact science, and
different children have different needs. We repeatedly have
explained that the teachers and parents, school districts, and
administrative review boards are closest to the issues at hand,
and therefore they are the best persons or entities to address
individual concerns and complaints. Of course, this recognition
underlies the need for the exhaustion requirements of the IDEA.


                      3. Statistical Evidence

       In Meditz v. City of Newark, 658 F.3d 364, 371 (3d Cir.
2011), we cited several Supreme Court cases to support our
conclusion that gross statistical disparities may serve to establish
a plaintiff’s prima facie case in a Title VII case if the statistical

72
  By this reasoning the only acceptable grade that would not
give rise to a legal claim might be a “C,” and the giving of any
other grade might be viewed as evidence that a school district
was at fault for not providing an appropriate education.


                                114
evidence is of a kind and degree sufficient to show that the
policy or practice in question caused the discrimination. In
considering the statistical evidence in this case, we note first that
for monetary damages to be awarded under Title VI, the
discrimination must be intentional. See, e.g., Lane v. Pena, 518
U.S. 187, 191, 116 S.Ct. 2092, 2096 (1996) (“[D]amages are
available under Title VI for intentional violations thereof.”
(citing Guardians Ass’n v. Civil Serv. Comm’n of N.Y.C., 463
U.S. 582, 103 S.Ct. 3221 (1983))). However, even if this were
not the case and we simply applied the analysis we articulated in
the Meditz Title VII case, the statistics do not indicate gross
disparities of the kind and degree sufficient to give rise to an
inference that the non-uniform individualized analyses of
students in the LMSD, utilized to determine appropriate
classroom placement, reflected a pattern or practice of
discrimination.

        The District Court in its October 20, 2011 Memorandum
and Judgment Order discussed in detail the statistical data that
the plaintiffs put forward. No. 2:07-cv-3100, Doc. No. 180 at
13-18. As the Court pointed out, “[d]isproportionality is not per
se evidence of discrimination” and, as plaintiffs’ own experts
have acknowledged, disproportionality can be either biased or
unbiased. Id. at 14. Noting that “[t]here is no specific
numerical criteria for disproportionality set forth in the IDEA or
federal regulations,” the Court explained that the PDE has
established guidelines whereby it considers a disproportionality
of 3.0, i.e., three to one, to be an indication of over-
representation of that race, while the United States Department
of Education’s guidelines indicate that a 1.5 disproportionality
ratio is an overrepresentation of that race. Id. at 14-15.

                                115
                       The District Court summarized the data presented by
               plaintiffs (collected by the PDE) for the LMSD for the years
               2005-2010 as follows:

       Total student body at LMSD         Students Participating in special education courses

                   %      of
                   total
                   number                               % of total
                   of                     Total         student       %       of   %       of
                   students               Number of body that         special      special
                   who         % of total students that participate   education    education
     Total         were        number of participated d          in   students     students
     Number        African     students   in special special          who were     who were
     of            America     who were education       education     African      Caucasia
Year students      n           Caucasian courses        courses       American     n

’05-   6,945       7.7%        84.4%      1,255          18.1%        12.7%        82.6%
‘06

’06-   6,981       7.9%        83.2%      1,187          17.0%        14.5%        80.2%
‘07

’07-   6,914       8.1%        83.1%      1,158          16.7%        14.0%        80.8%
‘08

’08-   6,788       8.0%        81.6%      1,101          16.2%        13.7%        80.5%
‘09

’09-   7,072       8.6%        81.1%      1,094          15.5%        14.3%        80.0%
‘10


                                            116
Id. at 16-17. Though these numbers undoubtedly show that it
was more likely that an African American student than a
Caucasian student would be placed in a special education
course, the numbers are not so disproportionate that they suggest
the presence of discrimination in student placement absent
additional evidence that could justify drawing this inference.

        In considering the statistics, it is critical to recognize that
there was no evidence presented in the District Court that the
LMSD applied different evaluation procedures for determining
placement of African American students than for Caucasian
students. After all, if the same evaluation procedures are used
for all students regardless of their race there simply is no
discrimination. Moreover, the opinion of the plaintiffs’ expert,
a psychologist, that five or six of the students in question
incorrectly had been identified as learning disabled was not
rendered until these proceedings were pending in the District
Court and was insufficient to support a prima facie case for the
plaintiffs, particularly inasmuch as she predicated her opinion
on her personal evaluation of the students.

        In fact, we doubt that anyone could explain better than
LMSD’s counsel did at oral argument why the divergence of
views on student placement should not be a basis to support
plaintiffs’ claims:

       [LMSD] has procedures in place that are followed
       for all students. And the fact a psychologist could
       disagree with [LMSD’s] psychologist and say
       ‘No, I don’t think this person met these criteria’

                                 117
       doesn’t prove or produce any evidence to suggest
       that that was as a result of these students’ races.
       The psychologist did not [attempt] . . . to
       ascertain . . . that identification process . . . to see
       if there was perhaps some other indicia that could
       be pointed to as to why that occurred. Instead, it
       was simply, ‘I don’t believe these students were
       [properly] identified.’ From that, the plaintiffs
       had made the leap that therefore it must be
       because of their race.

Tr. Oral Arg. June 11, 2013, at 37-38.

        In reaching our result, in addition to considering the
statistics we have cited and plaintiffs’ expert’s claim that
students were misidentified, we have considered plaintiffs’
allegation that a small number of special education classes at
LMSD were comprised of 100% African American students.
But the problem with that evidence is that it was not offered in a
context from which a meaningful correlation between race and
class placement could be demonstrated because plaintiffs did not
accompany it with testing data, grading, and other factors that
might provide some meaning to the evidence that they offered.
Under the IDEA structure, school districts that accept federal
funds such as the LMSD must treat every student as an
individual, and thus must evaluate, test, and monitor the student
individually, as well as provide an IEP for the student on an
individual basis. If by following this mandate a school district
should make a special education placement for a particular
student, the school district should not decline to make the
placement merely because the application of the mandate leads


                                118
to students of a particular group being statistically
overrepresented in special education grouping. We certainly are
not going to require or even suggest that school districts use a
quota system in assigning students to special education classes
so that the percentages of students in such classes be
proportionate to overall school ratios when measured on a racial
basis. A school district has the function of educating its
students, and should be concerned with that critical matter rather
than with producing particular statistics.

        Appellants’ evidence of discrimination consists of
statistical evidence that African American students were
overrepresented in special education classes, testimony
indicating that certain LMSD educators had discussed different
learning styles and an email from a School Board member
expressing concern about putting extra stress on black students.
However, the record also reflects that each individual student’s
educational needs were assessed and satisfied through a
thorough and individualized IEP process, and contains no
evidence that the educators and administrators responsible for
placing students intended to discriminate against them because
of their race. Taking the record as a whole and drawing all
inferences in appellants’ favor, there is no genuine issue of
material fact that LMSD itself—or a third party under its
control—engaged in intentional discrimination.



                     VII. CONCLUSION

       First, we hold that the District Court correctly held that
the action against the PDE was barred by principles of res

                               119
judicata (claim preclusion) as a result of the settlement of the
class action in Gaskin v. Pennsylvania, 389 F. Supp. 2d 628.
We reach that conclusion because the Gaskin class included all
school-age students with disabilities in Pennsylvania who were
denied a FAPE, and the claims pleaded against the PDE in this
case were brought on behalf of students within the Gaskin class.
 Thus, the claims asserted against the PDE in this case overlap
with the claims that had been brought against it in Gaskin.

        Next, in reviewing the District Court’s conclusions
regarding the IDEA’s statute of limitations for a party adversely
affected by an administrative determination of an IDEA claim to
bring a state or federal suit, we hold that the Court correctly
concluded that the 90-day statute of limitations barred the
Blunts’ IDEA claims. In reaching this result, we hold that it did
not matter that the Blunts’ administrative judicial process began
on April 8, 2005, a date on which the IDEA’s statute of
limitations for bringing a claim in state or federal court after
receiving an adverse administrative determination was two
years, because the Blunts’ final administrative disposition was
on August 31, 2005, almost two months after the 90-day statute
of limitations came into effect, and almost nine months after
Congress enacted it. Contrary to the Blunts’ contention, the
amended statute of limitations was not unfairly retroactively
applied, for they had nine months notice regarding the
amendment of the statute of limitations before their IDEA action
was barred; thus they had ample time to bring their case. In
fact, inasmuch as their cause of action did not arise until after
the amendment of the statute of limitations, it is fair to say that
the amendment simply was not applied retroactively in their
case. Further, as noted above, the Blunts had the responsibility

                               120
to be vigilant about changes in legislation, including statutes of
limitation. Our reasoning in Steven I. regarding the shortened
IDEA statute of limitations for bringing an administrative claim
plainly applies here with respect to the judicial claim.

       Judge Greenberg concludes that CBP did not have
standing to sue on its own behalf or on behalf of its members,
but Judges Ambro and McKee conclude that the District Court
erred in dismissing CBP for lack of standing because CBP had
organizational standing under Havens. Although a majority of
the Court thus does not accept the District Court’s ruling that
CBP did not have standing, this conclusion does not change our
outcome in light of a different majority’s independent
conclusion that the Court properly entered summary judgment
against the plaintiffs, as CBP has not explained why it could
have prevailed where the individual plaintiffs did not.

        We also hold that the District Court did not abuse its
discretion in how it dealt with disputed evidence. The Court
was correct in determining that the MAP presentation was not
authenticated, and it did not abuse its discretion in discounting
Moore-Williams’ testimony or in not giving it more weight than
it did. Further, the Court did not err in its use of Reschly’s
report.

       Finally, plaintiffs did not establish a prima facie case of
discrimination in violation of Title VI or § 1983; thus, the entry
of summary judgment against them on their claims under those
laws was appropriate. Evidence that the District Court found to
be inadmissible need not have been considered in a light most
favorable to the non-movant plaintiffs because the evidence
could not have become admissible at trial. Further, the evidence

                               121
before the Court did not support a circumstantial prima facie
case of racial discrimination in violation of Title VI or § 1983.
In particular, the statistical evidence was insufficient to establish
a prima facie case even when considered with other evidence.

        The IDEA’s goal is to ensure that educators and parents
have necessary tools to improve educational results of disabled
students. See 20 U.S.C. § 1400(d)(3) (stating as one purpose of
the IDEA, “to ensure that educators and parents have the
necessary tools to improve educational results for children with
disabilities by supporting system improvement activities”). As
we have noted in the past, it is not necessarily the case that
when students do not achieve equal results from their education
there is a constitutional violation. Coalition to Save Our
Children v. State Bd. of Educ. of State of Del., 90 F.3d 752, 766
(3d Cir. 1996); see also Personnel Adm’r of Mass. v. Feeney,
442 U.S. 256, 273, 99 S.Ct. 2282, 2293 (1979) (It is a “settled
rule that the Fourteenth Amendment guarantees equal laws, not
equal results.”).

       In summary, we will affirm the District Court’s orders of
October 20, 2011, February 15, 2008, and August 19, 2009, on
appeal at Nos. 11-4200 and 11-4201, and will dismiss LMSD’s
cross-appeal at No. 11-4315.73

73
  We are affirming the order of August 19, 2009, even though
only Judge Greenberg agrees with the District Court that CBP
does not have standing and the District Court dismissed CBP on
that ground. Appeals are taken from judgments, not opinions,
see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842, 104 S.Ct. 2778, 2781 (1984), and Judge

                                122
Ambro joins in the disposition of the case dismissing CBP
because it has not explained how, if it had been permitted to
continue in the case, it could have prevailed, a conclusion with
which Judge Greenberg agrees.



       We recognize that Chief Judge McKee believes that we
are not affirming the August 19, 2009 judgment because the
judgment recites that the motion to dismiss for lack of standing
is granted and both he and Judge Ambro reject the District
Court’s conclusion on the CBP standing issue. But obviously
the judgment simply dismisses the claim and the reference to the
lack of standing is merely an explanation for the operative order
which is to dismiss CBP’s claim. The reference to a lack of
standing is no different than a reference to the Court’s opinion
finding that CBP did not have standing. Therefore, inasmuch as
Judge Ambro is voting to affirm the August 19, 2009 judgment,
though on a basis other than its lack of standing, the judgment is
being affirmed.

       Judge Ambro’s vote brings into play the “well established
[principle] that we are free to affirm the judgment of the district
court on any basis which finds support in the record.” Bernitsky
v. United States, 620 F.2d 948, 950 (3d Cir. 1980). We have
applied this principle in the context of affirming a district
court’s ruling on a motion to dismiss. See, e.g., Tourscher v.
McCullough, 184 F.3d 236, 240 (3d Cir. 1999); Central Pa.
Teamsters Pension Fund v. McCormick Dray Line, Inc., 85 F.3d
1098, 1107 (3d Cir. 1996) (acknowledging power to “affirm
decision of the district court on grounds other than those relied

                               123
upon by the district court” but declining to exercise it). The
Supreme Court also has noted that “settled” rule “that, if the
decision below is correct, it must be affirmed, although the
lower court relied upon a wrong ground or gave a wrong
reason.” Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154,
158 (1937).


                             124
 Amber Blunt, et. al. v. Lower Merion School District, et. al.
           Nos. 11-4200, 11-4201 & 11-4315
_________________________________________________

AMBRO, Circuit Judge, concurring

        I agree with and join in Judge Greenberg’s excellent
and thorough opinion as to all but Part VII.B, which deals
with whether Appellant Concerned Black Parents of Mainline
Inc. (“CBP”) has standing to sue. Although standing is a
jurisdictional requirement that cannot be waived, Pub. Interest
Research Grp. of N.J., Inc. v. Magensium Elektron, Inc., 123
F.3d 111, 117 n.5 (3d Cir. 1997), “the presence of one
plaintiff with standing is sufficient to satisfy that
requirement.” Forum for Academic & Institutional Rights v.
Rumsfeld, 390 F.3d 219, 228 n.7 (3d Cir. 2004) (citing
Bowsher v. Synar, 478 U.S. 714, 721 (1986)), rev’d on other
grounds, 547 U.S. 47 (2006). The standing of the individual
Plaintiffs here has never been challenged (nor should it).
Thus the individual Plaintiffs confer standing and CBP’s
standing as an organization is irrelevant.

       Were it necessary to decide, I would agree with Judge
McKee that, under Havens Realty Corp. v. Coleman, 455
U.S. 363 (1982), CBP has standing to sue on its own behalf.
However, I also agree with Judge Greenberg that the claims
of the individual Plaintiffs were properly dismissed at
summary judgment. CBP, who shared counsel with some of
the individual Plaintiffs, has not explained how, were it
permitted to continue as a plaintiff in the case, it could prevail
where the individual Plaintiffs have failed. Thus I agree with
Judge Greenberg’s disposition of these appeals on their
merits. For these reasons, I concur.
Blunt v. Lower Merion Nos. 11-4200, 11-4201, 11-4315

McKee, Chief Judge, concurring in part and dissenting in

part.

       Today we hold that a group of African-American
parents and students have not produced sufficient evidence to
have a jury decide if race is a factor in how African-American
students are assigned to special education classes in their
school district. My colleagues reach this result even though
the record contains numerous issues of disputed fact that
would support plaintiffs’ claims if a jury resolved those
disputes in the plaintiffs’ favor.

       The allegations here are not pretty. No one likes to
think that a school district, especially one with an outstanding
educational reputation, allows race to be a factor in assigning
African-American students to special education classes.
However, there is sufficient evidence on this record to
establish that a trial is warranted to determine whether this
school district did exactly that. I therefore write separately to
express my strong disagreement with my colleagues’
conclusion that these plaintiffs cannot survive summary
judgment.

      Despite that strong disagreement, I do agree that the
Gaskin settlement bars the Title VI and § 1983 claims that
have been brought against the Pennsylvania Department of
Education (“PDE”) as discussed in Section VII.A of the
Majority Opinion.1

        The District Court’s August 19, 2009 ruling that the
settlement agreement bars claims against the PDE sets forth
the relevant language of the settlement agreement. That
agreement identified the plaintiffs as: “representatives of a
certified class consisting of all school-age students with
disabilities in Pennsylvania who have been denied a free
appropriate education in regular classrooms with
individualized supportive services, individualized instruction,

1
 I also join Part VII.C of the Majority Opinion in which my
colleagues discuss the statute of limitations.
and accommodations they need to succeed in the regular
education classroom.”      Blunt v. Lower Merion School
District, 262 F.R.D. 481, 491 (E.D. Pa. 2009). The
agreement was in effect from September 19, 2005 to
September 19, 2010. Id. Although, as counsel for CBP noted
at oral argument, those claims are very different from the
claims here, the language of the settlement agreement is very
broad in its scope and provides in part as follows:

 [i]n consideration of the performance of PDE’s obligations under
     the Settlement Agreement, the plaintiffs, individually and
 collectively hereby remise, release, and forever discharge each of
the defendants […] from all actions and causes of action, suits, . . .
claims and demands whatsoever . . . , known or unknown, foreseen
  or unforeseen, particularly those which were or could have been
set forth in Gaskin v. Pennsylvania Department of Education, No.
 94-CV-4048 (E.D. Pa.), or which any of the plaintiffs ever had or
   now has, . . . or may have, for . . . any reason of any cause, . . .
  whatsoever arising out of or related to the claims brought by the
    plaintiffs against the defendants in the Gaskin case from the
   beginning of the world to the effective date of the Settlement
                             Agreement[.]

Id. (ellipses and bold type and italics emphasis in original,
underline emphasis added). The claims in this suit, though
quite different from the claims in Gaskin, are clearly “related
to the claims brought by the plaintiffs . . . in the Gaskin case.”

        However, for the reasons that follow, I cannot agree
that Concerned Black Parents, Inc. (“CBP”) lacks standing
(as discussed in Section VII.B of the Majority Opinion) or
that the District Court properly granted summary judgment on
the claims that these Plaintiffs brought against the Lower
Merion School District (“LMSD”) under Title VI and 42
U.S.C. § 1983 (as discussed in Section VII.D of the Majority
Opinion).

                     I. CBP’S STANDING
                     A. General Principles

        As Judge Greenberg explains, Article III requires a
plaintiff to demonstrate a sufficient interest in the outcome of
litigation to establish a “case or controversy” and thus have
standing to sue on the plaintiff’s own behalf or as a


                                   2
representative of others.2 As the Supreme Court explained in
Warth v. Seldin, 422 U.S. 490 , 511 (1975), “[t]here is no
question that an association may have standing in its own
right to seek judicial relief for injury to itself and to vindicate
whatever rights and immunities the association itself may
enjoy. . . . [e]ven in the absence of injury to itself, an
association may have standing solely as a representative of its
members.” 422 U.S. at 511 (internal citations omitted).

       The District Court held that CBP was unable to
demonstrate a sufficiently concrete injury to itself or the
parents it represents to have standing to bring this suit. Blunt,
262 F.R.D. at 486. In rejecting CBP’s claim of standing, the
District Court focused on the fact that CBP is not a student
and therefore could only demonstrate “an abstract, ideological

2
   Judge Greenberg properly notes that his discussion of
CBP’s standing is not the holding of this Court, because
Judge Ambro agrees that CBP has personal standing. See
Majority Opinion (“Majority Op.”) at 97-98 & n.72.
However, for reasons of convenience and clarity, with the
exception of Judge Greenberg’s discussion of personal
standing, I frequently refer to his opinion in its entirety as the
“Majority Opinion,” or the opinion of “my colleagues.”
    Judge Greenberg engages in a very detailed analysis to
explain why he believes that CBP lacks standing. He
explains that such a detailed analysis is appropriate because
“[w]e . . . will not avoid deciding the standing issue on the
ground that it is moot, for the necessity for a party to have
standing is jurisdictional and thus a court of appeals always
must determine if the district court . . . had jurisdiction.”
Majority Op. at 73 n.62. However, there is no dispute
whatsoever about the standing of the individual plaintiffs, nor
could there be. Accordingly, the jurisdiction of the District
Court and this Court is clear and undisputed. Accordingly,
Judge Greenberg’s discussion of standing is dicta. See Galli
v. New Jersey Meadowlands Comm’n, 490 F.3d 265, 274 (3d
Cir. 2007) (“[W]e are not bound by our Court’s prior dicta . .
. .”).
    Nevertheless, in order to respond to Judge Greenberg’s
very detailed analysis, and to avoid any questions about the
impact of our discussion on future suits by organizational
plaintiffs, I will discuss CBP’s standing in some detail.

                                 3
interest in the litigation as opposed to the necessary ‘personal
stake in the outcome’ of the controversy necessary to confer
standing.” Id. (citing Sierra Club v. Morton, 405 U.S. 727,
735 (1972)).3

        In his separate opinion, Judge Ambro states: “ I would
 agree with Judge McKee that, under Havens Realty Corp. v.
 Coleman, 455 U.S. 363 (1982), CBP has standing to sue on
  its own behalf.” Ambro at 1. However, both Judge Ambro
and Judge Greenberg believe that CBP’s standing is irrelevant
  because they do not believe CBP can prevail on the merits.
 Majority Opinion (“Majority Op.”) at 98-99 n.72; Ambro at
 1. Of course, CBP’s likelihood of success on the merits has
 no bearing on its standing. The issue of CBP’s standing not
   only “matter[s], it is of the utmost importance . . .” as our
       decision here is precedential and can impact other
    organizations in the future. “In essence, the question of
  standing is whether the litigant is entitled to have the court
    decide the merits of the dispute or of particular issues.”
                     Warth, 422 U.S. at 498.

       Moreover, the standing issue is dispositive for
purposes of the merits of CBP’s appeal of the August 19,
2009 judgment because we are not affirming that judgment.
As the Majority Opinion correctly notes, “[a]ppeals are taken
from judgments, not opinions.” Majority Op. at 98 n.72
(citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842 (1984)). CBP appealed the District
Court’s August 19, 2009 judgment. That judgment states:

3
  The District Court also held that CBP did not have
representational standing because its bylaws stated that CBP
had no members, and “in light of this express statement in a
formal document governing . . . the corporation, [the District
Court concluded] that [CBP] does not have standing to bring
suit on behalf of its members because it has none.” Id. at 487.
I do not discuss the issue of whether CBP has representational
standing because there is no need to. Judge Ambro and I
agree that CBP has standing to sue based on its own injuries.
I do note that the District Court failed to appreciate the extent
or nature of CBP’s own injuries or the nature of CBP’s efforts
to advance the interests of parents of African-American
children in the LMSD.

                                4
“the motion of defendants, the Lower Merion School District
and the Lower Merion School Board, to dismiss the claims of
Concerned Black Parents of Mainline, Inc. and the Mainline
Branch of the NAACP for lack of standing is GRANTED.”
Joint Appendix (“J.A.”) at 42.69 (emphasis added). It is
therefore beyond dispute that CBP was dismissed from the
case because of standing, and only because of standing.
Because a majority of this Court now holds that CBP does
have standing, see, e.g., Majority Op. at 97, the District
Court’s August 19, 2009 judgment must be reversed as to the
dismissal of CBP.

        Thus, it is simply inaccurate to claim that our holding
regarding standing “does not change [the] outcome in light of
a different majority’s conclusion that [the District Court]
properly entered summary judgment against the plaintiffs.”
Majority Op. at 97. The appeal from the District Court’s
judgment granting summary judgment against the individual
plaintiffs must be decided separately because it arises from a
discrete judgment. See Chevron U.S.A., Inc., 467 U.S. at 842.
Furthermore, any suggestion that CBP must explain “why it
could have prevailed where the individual plaintiffs did not,”
see Majority Op. at 97, has no basis in the law. Because CBP
was dismissed from the litigation on a motion to dismiss, it
was unable to engage in the same discovery as other parties;
no summary judgment motion was filed against it and it
therefore did not have a full opportunity to fairly oppose
summary judgment.

        When the District Court dismissed CBP for lack of
standing, it did so without any motion to dismiss or motion
for summary judgment being filed against CBP. The
Majority is correct that the District Court considered CBP’s
standing twice—once before the Third Amended Complaint
and once after it—and discovery was taken after the first
dismissal, Majority Op. at 59 n.52. However, that does not
resolve the procedural issue here. Plaintiffs filed for class
certification. In opposing that certification, defendants
argued that CBP could not serve as a class representative, but
the defendants did not move to dismiss CBP from the lawsuit.




                               5
J.A. at 918-19. Rather, the District Court sua sponte
dismissed CBP for lack of standing. J.A. at 42.69.4

       While the Majority is correct in noting that a judgment
may be affirmed for any reason that is supported by the
record, this record is more than adequate to survive summary
judgment based on the standing of CBP as well as the
individual plaintiffs. Judge Ambro and I agree that CBP has
demonstrated that it is entitled to personal standing under
Havens Realty Corp. Ambro at 1. However, unlike Judges
Ambro and Greenberg, I also believe there is sufficient
evidence to survive dismissal on the merits of the relevant
discrimination claims. As I discuss in detail below, the
District Court failed to properly credit some evidence, and

4
  Although the District Court notes that defendants “move to
dismiss the claims of Concerned Black Parents . . . for lack of
standing,” J.A. at 924-25, defendants’ motion makes no such
claim. Instead, as part of its argument that plaintiffs’
proposed class representatives cannot adequately represent
the class, defendants’ motion states: “Plaintiffs’ evidence
does nothing to establish CBP’s standing and completely fails
to address the fact that CBP is not a member of the proposed
class and therefore cannot be a class representative.” J.A. at
919.

    Plaintiffs were neither required, nor expected, to present
evidence to establish CBP’s standing in order to move for
class certification. It is therefore not the least bit surprising
that they did not then attempt to come forward with evidence
to establish standing. It appears that the District Court
focused on the defendants’ comment about standing and
transformed it into a motion attacking standing. J.A. at 928.
The District Court then focused on CBP’s lack of formal
membership, and concluded that CBP “does not have
standing to bring suit on behalf of its members,” ostensibly
addressing plaintiffs’ claims that CBP may represent the
class. J.A. at 932. The District Court then concluded:
“[a]ccordingly, we will enter an order dismissing Concerned
Black parents from this lawsuit for lack of standing.” Id. The
District Court does not state that it is granting summary
judgment against CBP for lack of standing. Rather, it simply
stated that it was “dismissing” CBP. Id.

                                6
improperly discredited or ignored other evidence. When the
evidence here is properly viewed in its entirety, the record
establishes genuine issues of material fact pertaining to Plaintiffs’
claims under Title VI and § 1983, and the resulting harm. See
infra Section III at 30-60. CBP has also presented sufficient
evidence to raise a genuine dispute of material fact regarding harm
it suffered as a result of the LMSD’s conduct. See infra Section
I.B at 7-19.

       For these reasons, the August 19, 2009 order, must be
reversed as to CBP’s dismissal for lack of standing; a
majority of this Court now holds that CBP does have
standing.

B. CBP’s Personal Standing

        An organization has standing to assert its own injuries
(“personal standing”) when it can show: (1) a concrete and
particularized injury-in-fact, (2) a causal connection between
the injury and the conduct complained of, and (3) a likelihood
of redressability. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992); see also Fair Housing Council of
Suburban Philadelphia v. Montgomery Newspapers, 141 F.3d
71, 76 (3d Cir. 1998) (“In order to defeat the summary
judgment motion based on the issue of standing, [the
opposing party] was required to submit ‘affidavits or other
evidence showing through specific facts…that…it [was]
‘directly’ affected [by the alleged discrimination]. . . .’”)
(emphasis in original).

        To show an injury in fact, CBP must show that its
activities or operations were sufficiently disrupted by the
disputed conduct. In Havens Realty Corp. v. Coleman, 455
U.S. 363, 378-79 (1982), the Supreme Court held that the
district court had erred in dismissing the claims of a nonprofit
organization based on its alleged lack of standing. The
nonprofit organization there (“HOME”) was committed “to
mak[ing] equal opportunity in housing a reality in the
Richmond Metropolitan Area.” Id. at 368 (internal quotation
marks and citations omitted). In furtherance of its mission,
HOME counseled potential renters and undertook
investigations to determine if landlords were discriminating
against potential tenants by “steering” them to particular


                                  7
rental units or neighborhoods based on race. Id. at 368-69.
HOME sent “testers” of different races into the community
where they inquired about advertised rental units to determine
if certain landlords were engaged in racially discriminatory
steering. Id. at 368. As part of its investigation, HOME sent
two testers to inquire about rental properties owned by
Havens Realty Corporation (“Havens”). Id. The African-
American tester was incorrectly told that certain apartments
were not available. Id. Simultaneously, the Caucasian tester
was told that the very same apartments were available. Id.

       HOME sued Havens for housing discrimination,
alleging that it had standing to sue in its own right and on
behalf of its constituents. Id. HOME claimed it had itself
been injured because Havens’ conduct “frustrated the
organization’s counseling and referral services, with a
consequent drain on resources.” Id.

        The Supreme Court agreed. The Court reasoned that
where an organization’s ability to provide its primary services
has been “perceptibly impaired,” the organization has
personal standing to attempt recover for its injuries. Id. at
379. HOME asserted that it had “been frustrated by
defendants’ racial steering practices in its efforts to assist
equal access to housing through counseling and other referral
services.” Id. That was sufficient to allege an Article III
injury.     The Court explained: “[s]uch concrete and
demonstrable injury to the organization’s activities—with the
consequent drain on the organization’s resources—constitutes
far more than simply a setback in the organization’s abstract
social interests.” Id. Specifically, HOME’s complaint
included an allegation that it “[had] to devote significant
resources to identify and counteract the defendant’s [sic]
racially discriminatory steering practices.” Id. (brackets in
original). The additional expense and the need to counteract
Havens’ allegedly discriminatory conduct was a sufficiently
particularized and concrete injury to confer standing upon
HOME. Id.

       We elaborated on Havens Realty in Montgomery
Newspapers. There, the defendants raised the same issues
raised in Havens Realty, but on a motion for summary
judgment. 141 F.3d at 73. The plaintiff there was a nonprofit

                               8
organization that worked “to educate and promote fair
housing and to oppose segregation based on the protected
classes found in the Fair Housing Act of 1968, as amended.”
Id. In an effort to advance that objective, the organization
sued multiple defendants, including a newspaper that had run
advertisements that appeared to perpetuate housing
discrimination on the basis of gender and familial status. 5 Id.
The plaintiff’s response to the defendant’s motion for
summary judgment relied heavily on Havens Realty. The
plaintiff argued that it had sufficiently alleged its own injuries
because the defendant newspaper’s “acceptance and
publication of discriminatory housing advertisements
frustrated the organization’s mission and [damaged] the
organization . . . by . . . divert[ing] resources to fight the
discrimination.” Id.

        We granted summary judgment to the defendants, but
only because the plaintiff failed to offer any evidence to
support its alleged injuries. “[S]omething more than . . .
naked allegations were required at the summary judgment
stage.” Id. at 76. We explained that the nonprofit “was
required to submit affidavits or other evidence showing
through specific facts … that … it [was] directly affected by
the alleged discrimination.” Id. (italics, brackets, and ellipses
in original, bold emphasis added, internal quotation marks
omitted). The organization had not produced any evidence
that it had “altered its operations in any way as a result of the
allegedly discriminatory advertisements or diverted any of its
resources to a bona fide investigation.” Id. at 78. “[B]are
allegations of injury such as those based on the investigation
described [there were] not enough to establish standing.” Id.
(internal quotation marks omitted). Accordingly, we held that
the organization had not established an Article III injury.




  5
    “The complaint included copies of six advertisements which
  appeared in Montgomery newspapers between November, 1993
 and March, 1994. Each of these advertisements contained one of
  the following allegedly objectionable phrases: ‘mature person’,
 ‘ideal for quiet and reserved single and-or couple’; ‘professional
      male … only’ and ‘quiet mature setting.’” Montgomery
                    Newspapers, 141 F.3d at 73.

                                 9
       Thus, Montgomery Newspapers involved a failure of
proof. It does not support the conclusion that CBP has failed
to introduce sufficient evidence of its own injury to survive
summary judgment here.

       As discussed in detail below, CBP produced sufficient
evidence of its own concrete and particularized injuries to
create an Article III case or controversy. While it is
obviously true (as the majority and the District Court note)
that CBP is not itself a student within the LMSD, that
circumstance is only minimally relevant at best.

       In Powell v. Ridge, 189 F.3d 387, 391, 404 (3d Cir.
1999), a case also brought under Title VI and § 1983, we
stated that organizational plaintiffs that “devote substantial
resources to overcoming what they allege are the disparate
and inadequate educational programs caused by” the state’s
failure to equally contribute funding and resources to
minority school districts, had standing to sue on their own
behalf.6 We explained that “the standing of the plaintiff
organizations to bring this suit is consistent with the long line
of cases in which organizations have sued to enforce civil
rights . . . .” Id. at 404 (citing Walters v National Ass’n of
Radiation Survivors,442 U.S. 347, 352 & n. 8 (1979); Havens
Realty, 455 U.S. at 369 (1985); Andrus v. Sierra Club, 442
U.S. 347, 352, 353 & n.8 (1979); Fair Employment Council
of Greater Washington, Inc., v. BMC Marketing Corp., 28
F.3d 1268, 1276 (D.C. Cir. 1994); N.A.A.C.P v. The Medical
Center, Inc., 657 F.2d 1322 (3d Cir. 1981)). Some of the
relevant organizational defendants in Powell such as “Parents
Union for Public Schools” and “Parents United for Better
Schools” had an organizational purpose quite similar to
CBP’s, and the actions they took to advance that purpose
were also quite similar to actions CBP undertook here. Id. at
387, 391.

       Any focus on the fact that CBP is an organization of
parents (rather than students) is particularly hard to
understand in the context of the allegations of racial bias that
underlie this lawsuit. The interests of children in the quality

6
 Disapproved of on other grounds in Fowler v UPMC
Shadyside, 578 F.3d 203, 404 (3d Cir. 2009).

                                10
of their education is identical to the interests their parents
have in seeing them obtain such an education without the
poisonous sting of racial bias. The harm African-American
students allegedly suffered here cannot readily be amputated
from a concomitant harm to their parents or to an
organization that devoted scarce resources to remedying it.
After all, the nonprofit organization in Havens Realty had not
been denied housing. Yet, the Supreme Court ruled that the
nonprofit had standing to challenge discriminatory housing
practices because it had been forced to devote its own
resources to its efforts to remedy racial discrimination in the
housing market. See Havens Realty, 455 U.S. at 379.

       Here, CBPs purpose includes efforts to “promote
equity and excellence” in education for diverse students. It
advances that purpose by addressing “issues related to
education for populations identified as minority and/or
African-American.” Blunt and CBP Appellants’ Br. at 11.
There is no suggestion that this statement of purpose is
inaccurate. Given that purpose, the record establishes that
CBP has an interest in the outcome of the litigation, and that
the alleged discriminatory conduct of LMSD negatively
affects the organization’s central activities, requiring it to
incur extra expenses and provide resources to mitigate
LMSD’s conduct. Blunt, 262 F.R.D. at 486; see also J.A. at
3169.

       Judge Greenberg lists several of the injuries that CBP
alleges, but ignores the evidence produced to support those
injuries. See Majority Op. at. 62-63. The following
numbered headings recite some of the injuries Judge
Greenberg lists, and the discussion that follows each heading
explains where supporting evidence can be found in this
record:7
              [1] Use of its resources to ‘host educational
              consultants and experts’ with the purpose of
              providing information to the Plaintiffs, class
              members, community and LMSD;


7
 Majority Op. at 62-63(citing TAC at 25-26; J.A. vol. 9, at
3871-72) (footnote omitted) (I have added bracketed numbers
and bold emphasis for ease of reference).

                               11
       CBP hosted numerous educational events featuring
educational consultants and experts. These experts were paid
to speak to parents about the effects of the LMSD’s conduct
and how to counteract the consequences of that conduct.
CBP’s president, Loraine Carter, testified that, “[s]ince 2006,
[CBP has] coordinated public forums for parents in the
community” by bringing in experts “to address the
underachievement of African-Americans in the School
District.” J.A. at 3167. Moreover, CBP’s newsletter
references numerous speaking events held each month with
prominent scholars and educational leaders. Id. at 1495. For
example, in January 2004, CBP met with Dr. Donald Clark
regarding educational law, history, and policy as it pertains to
both African-American students and Pennsylvania. Id. In
February 2004, it arranged for Dr. Freya Rivers, an
educational consultant, to speak at a CBP meeting regarding
strategies she uses to identify high achieving children and
“closing the achievement gap.” Id. CBP also listed the
following activities, among others, in its Fall of 2004
schedule: “Special Education Action Roundtable; Youth
Town Hall Meetings; Education Empowerment Sessions;
Advocacy Training Sessions.” Id.

              [2] A ‘sharp’ rise in expenditures over the
              last five years due to its efforts to ‘protect its
              members from the adverse impact’ of ‘the
              inferior quality of LMSD’s dual system of
              education’;

       There is evidence that CBP incurred expenses
responding to the allegedly discriminatory conditions at
LMSD and the resulting need to advocate on behalf of parents
seeking to change the educational circumstances of their
children. Id. at 3169. From December 2005 to March 2006,
CBP had an income of approximately $1,090 and expenses of
$1,106. Id. Like HOME in Havens Realty, CBP had to divert
its scarce resources to counseling and otherwise supporting
African-American families who were allegedly being
discriminated against by LMSD, in order to minimize the
impact of LMSD’s purportedly discriminatory attitudes and
actions toward African-American students. Evidence that
CBP’s expenses exceeded its income constitutes far more
than the bare allegations of the complaint in Montgomery

                                12
Newspapers; this evidence demonstrates that CBP suffered a
discrete and cognizable injury as a result of LMSD’s conduct.

              [3] Expenditure of resources as a result of its
              attending meetings related to IEPs, Section
              504 and ‘disciplinary meetings, court
              hearings and parent-teacher conferences
              with and/or on behalf of’ various plaintiffs,
              CBP members and class members;

        Like HOME’s board members in Havens Realty,
CBP’s board members had to attend LMSD’s educational and
disciplinary meetings, as well as court hearings, on behalf of
African-American students. Barbara Metzger, who worked as
a special education teacher at LMSD during the relevant time
period, testified in her deposition that on at least one occasion
she “was invited to and sat in on a portion of a Concerned
Black Parents’ conversation with some of the school
administrators” regarding concerns that “African-American
students, as a whole, . . . were not performing at the same
rate, not experiencing the same success as other students.” Id.
at 1456. She also noted that, among other issues, CBP raised
concerns that “these students didn’t feel welcome in the
school.” Id. CBP engaged in dialogue with LMSD as part of
their advocacy and counseling services for parents whose
children were experiencing discrimination, in an effort to
raise the concerns at issue in this case.

              [4] Publication of a community newsletter
              and ‘News Notes . . . to disseminate the
              compilations of data on’ alleged racial
              disparities in application of disciplinary
              measures, segregation by race and ‘under
              achievement of African-American students
              in the [Lower Merion] District’;

       CBP published and distributed numerous newsletters
addressing claims of bias in order to inform parents of
LMSD’s conduct. For example, in Volume 1, Issue 3 of its
“Main Line Voice” newsletter, CBP sought “a district-wide
strategic plan to close the achievement gap,” citing statistics
indicating that the same academic excellence that
“characterizes the LMSD eludes more than sixty percent


                                13
(60%) of its African-American students.” Id. at 1494. This
newsletter also includes data demonstrating that African-
Americans are statistically more likely than their Caucasian
peers to have IEPs and significantly less likely to be classified
as gifted. In fact, as I will discuss, for the years that were
studied, the probability that an African-American student
would be classified as “gifted” or assigned to an Advance
Placement class was zero, as none were. Id.8

              [5] The ‘organization’ of educational, career,
              standardized test, financial aid, and college
              preparatory seminars.

        Finally, there is ample evidence that CBP advocated
for, and provided, college preparation resources that it
believed African-American students needed because of
LMSD’s purported failure to properly address their needs. In
her deposition, Ms. Metzger mentioned a meeting she
attended with school administrators where she raised
numerous claims of discrimination on behalf of African-
American students. CBP “believed that at times, guidance
counselors or others, personnel, maybe didn’t afford [African-
American students] the same consideration when it came to
the college planning process.”      Id. at 1456. Ms. Carter
similarly testified that CBP has “met with a number of . . .
community organizations and institutions that we’ve
identified to bring them together” with LMSD, to provide
support to African-American students. Id. at 3406. Thus,
CBP has demonstrated that it has provided career and college
counseling services to the school’s African-American
students to make up for services that it claims LMSD unfairly
withheld from these students.

       Judge Greenberg’s analysis suggests that these actions
do not establish Article III injuries because “CBP’s very
purpose relates to actions directly involving LMSD, and its
expenditures were devoted to protecting students’ interests in
their interactions with LMSD.” Majority Op. at 64. He
believes this is different from HOME’s injuries in Havens

8
 I will discuss such evidence in detail below in order to
explain how the District Court erred in concluding that there
was no genuine dispute of material fact. See infra 50-81.

                                14
Realty because “HOME’s purpose was to promote equality in
the Richmond area overall and its interests thus went far
beyond monitoring the specific actions at issue in the Havens
case.” Id. To the extent that I understand that argument, it
appears to be the classic distinction without a difference.
CBP would not have had to undertake any of the actions or
expenses detailed on this record absent the alleged racial bias
of LMSD toward African-American students. The fact that
CBP’s actions are focused on remedying the results of bias
within a school district rather than promoting equality
throughout the township of Lower Merion (or Montgomery
County) is absolutely irrelevant. See Majority Op. at 64.
Whether an organization monitors discrimination in a city or
simply a school district does not affect whether it has
standing to protect its own interests.9 See Majority Op. at 64-
65.10
       Moreover, nothing in this record supports Judge
Greenberg’s suggestion that CBP’s expenditures relate solely
to this litigation or that it is thereby trying to manufacture
standing through litigation. See Majority Op. at 64
(“organizations may not satisfy the injury in fact requirement
by making expenditures solely for the purpose of litigation.”)
(internal citations omitted).

9
  As noted above, in Powell v. Ridge, this Court held that an
organizational plaintiff similar to CBP contesting
discrimination in a local school district had personal standing
to assert its claims. Powell, 189 F.3d at 391, 404. Thus, it is
incorrect to argue that an organizational plaintiff representing
the interests of students in the school district is unable to
make a personal standing claim under Havens. Id. (citing to
Havens Realty Corp., 455 U.S. at 369); Majority Op. at 64-
65.
10
   Therefore, Judge Greenberg’s observation that “[i]t
appears that the alleged additional expenditures were
consistent with CBP’s typical activities and it is thus unclear
the effect, if any, that this litigation had on their
expenditures,” Majority Op. at 64, misses the point. CBP’s
activities were all focused upon combating the effects of the
racial bias alleged in LMSD toward African-American
students. The fact that it had to make additional expenditures
to combat any particular action or to mitigate the impact of
the alleged bias is irrelevant to its standing.

                                15
       Judge Greenberg states: “CBP has failed to show why
this particular litigation has frustrated its mission, or caused a
‘concrete and demonstrable’ injury to its activities.” Maj. Op.
at 64.11 However, that is not the issue. The issue is not
whether the litigation has drained CBP’s resources, but
whether CBP has had to devote its scarce resources to
combating the perceived bias of LMSD and the inferior
educational opportunities that CBP believes African-
American students in that school district are afforded.

        Moreover, this record establishes a diminution of
CBP’s resources irrespective of any subsequent litigation. It
is abundantly clear that the organization’s goal was not
simply to advance litigation against LMSD, but to counteract
and monitor LMSD’s day-to-day conduct. See, e.g., J.A. at
3169 (Carter testifying that in 2005-2006, CBP’s expenses
exceeded its income). The impact on CBP’s scarce resources
resulted from the organization’s response to the bias it
believed African-American children in LMSD were subjected
to, not from the litigation that was brought to address it.
Judge Greenberg’s approach would result in a classic Catch-
22: nonprofit organizations that had devoted resources and
incurred expenses to combat a particular activity would
somehow lose their standing to sue if they decided that it was
necessary to resort to litigation.          Judge Greenberg’s
observation that “CBP has failed to show why this particular
litigation has frustrated its mission, or caused a ‘concrete and
demonstrable’ injury to its activities,” Majority Op. at 64,
therefore misses the point of the standing inquiry. The issue
is not whether this litigation has drained CBP’s resources, but
whether CBP’s efforts to combat perceived bias within the
LMSD has drained CBP’s scarce resources. I do not doubt
that the litigation has negatively impacted this nonprofit, but
that is neither the beginning nor the end of our inquiry, nor
should we focus on that one factor.

        Moreover, even assuming that some of CBP’s
activities and expenses were incurred as a result of litigation,
summary judgment review requires drawing all reasonable
inferences in favor of the nonmovant and not against it. Josey

11
   In addition, far from frustrating CBP’s mission, this
litigation is absolutely consistent with that mission.

                                 16
v. John R. Hollingsworth Corp., 996 F.2d 632, 642 (3d Cir.
1993) (“in the context of an appeal from summary judgment
[we] must evaluate evidence in the light most favorable to
[the nonmovant] and draw all inferences in his favor.”).

       CBP operates on the proverbial “shoe string” budget,
and clearly had to divert its already-scarce resources to
mitigating the impact of the conduct alleged here. See
Havens Realty, 455 U.S. at 379 (“[i]f, as broadly alleged,
petitioners’ steering practices have perceptibly impaired
HOME’s ability to provide counseling referral services for
low - and moderate - income homeseekers, there can be no
question that the organization has suffered injury in fact.”).
The evidence supporting CBP’s assertions that it was injured
by LMSD’s discriminatory conduct distinguishes this case
from Montgomery Newspapers, and suffices to meet the
standard for personal standing at the summary judgment
stage. See Havens Realty, 455 U.S.at 379.12


II. THE DISTRICT COURT APPLIED THE WRONG
    TEST TO APPELLANTS’ CLAIMS UNDER TITLE
    VI AND 42 U.S.C. § 1983

        The District Court applied the wrong test in granting
LMSD’s motion for summary judgment on Plaintiffs’ claims
under Title VI and § 1983. As the Majority correctly notes,
the appropriate standard for determining liability under Title
VI is deliberate indifference. I note the following to amplify
the Majority’s discussion of the appropriate standard for
liability under Title VI and § 1983.

12
   Judge Greenberg cites La Asociacion de Trabajadores de
Lake Forest v. City of Lake Forest, 624 F.2d 1083, 1088 (9th
Cir. 2010) (an out of circuit case that is obviously not
binding) for the proposition that an organization “must . . .
show that it would have suffered some other injury if it had
not diverted resources to counteracting the problem” in order
to demonstrate standing. Majority Op. at 64. However, we
have never imposed any such impediment to Article III
standing. This additional hurdle is simply contrary to the
minimal injury required under Article III. See, e.g., Havens
Realty Corp., 455 U.S. at 377.

                               17
        As the District Court notes, to establish a prima facie
case under Title VI, plaintiffs must show that they: (1) were
members of a protected class, (2) were qualified for the
educational benefit or program at issue, (3) and that they
suffered an adverse action, (4) which occurred under
circumstances giving rise to an inference of discrimination.
Blunt, 826 F.Supp.2d 749, 758 (E.D. Pa. 2011) (internal
citations omitted).

       In order to establish a prima facie claim under 42
U.S.C. § 1983, plaintiffs needed to show that their right to be
free from racial discrimination, as guaranteed by the Equal
Protection Clause of the Fourteenth Amendment, was
violated, and that the violation was committed by a person
acting under the color of state law. See Chainey v. Street, 523
F.3d 200, 219 (3d Cir. 2008).

        The District Court concluded that both the § 1983
claim and the Title VI claims failed because Plaintiffs were
unable to show a discriminatory purpose.           The court
determined that Plaintiffs failed to “put forth ‘more than a
scintilla’ of evidence that the School District acted with a
racially discriminatory purpose when identifying them as
disabled and offering them special education services, even if
this identification was somehow incorrect.” Blunt, 826 F.
Supp. at 764 (quoting Williams v. Borough of West Chester,
891 F.2d 458, 460-61 (3d Cir. 1989)).

        According to the District Court, “there was no direct or
circumstantial evidence of intentional racial discrimination by
the School District,” and this was fatal to Plaintiffs’ claims.
Id at 762. However, the test for “intentional discrimination”
that the District Court applied to reach that conclusion is
inconsistent with decisions of the Supreme Court, our sister
Circuit Courts of Appeals, and our own precedential opinions.
It is also inconsistent with the vast majority of courts that
have interpreted the meaning of “discrimination” under
statutes that are inextricably linked to, derived from, and
applicable to provisions of Title VI. This is no minor concern
because we cannot determine if there is sufficient evidence of
Plaintiffs’ claims to withstand summary judgment unless the
correct test for evaluating this record is first identified and
applied.

                                18
        In Pryor v. Nat’l Collegiate Athletics Ass’n, 288 F.3d
548 (3d Cir. 2002), we emphasized that proof of disparate
impact was not, by itself, sufficient to establish the requisite
intent to discriminate under Title VI. Id. at 562 (“[a] mere
awareness of the consequences of an otherwise neutral policy
will not suffice” to establish intentional discrimination)
(internal citations omitted). Rather, we held that, “[in order
to] prove intentional discrimination by a facially neutral
policy, a plaintiff must show that the relevant decisionmaker
(e.g., a state legislature) adopted the policy at issue ‘because
of,’ not merely ‘in spite of’ its adverse effects upon an
identifiable group.” Id. (quoting Personnel Administrator of
Massachusetts v. Feeney, 442 U.S. 256, 279 (1979)) (internal
quotation marks omitted). Our holding rested in large part
upon Alexander v. Sandoval, 532 U.S. 275 (2001).

        However, as we explained recently in S.H. vs. Lower
Merion School District, 729 F.3d 248, 264 n.24 (3d Cir.
2013), “Pryor [reached its result] because it equated
deliberate indifference with disparate impact.” Id. at 264 n.24
(citing Pryor, 288 F.3d at 568). S.H. relied upon the Supreme
Court’s post-Sandoval jurisprudence as exemplified by
Jackson v Birmingham Bd. Of Educ., 544 U.S. 167, 173
(2005).     There, the Supreme Court “[recognized] that
deliberate indifference is a form of intentional
discrimination.” S.H., 729 F.3d at 264 n.24.13 (Emphasis
added).

       Given our unequivocal pronouncement in S.H. that
deliberate indifference “is a form of intentional
discrimination, and not a pseudonym for disparate impact,” it
is clear that the Plaintiffs here do not have to prove
discriminatory animus, as the District Court held and as my
colleagues’ analysis implies. Id. (emphasis in original). Of
course, I appreciate the fact that the District Court did not
have the benefit of our decision in S.H. when it granted
summary in favor of the defendants. However, my colleagues
and I do.

13
  Jackson cited Gebser, and both involved claims filed under
Title IX. However, as I have already mentioned, and as I
explain in greater detail below, that is a distinction without a
difference.

                                19
      Although it is true that the claims in S.H. arose under
the Americans with Disabilities Act (ADA) and the
Rehabilitation Act (RA), not Title VI or § 1983, this is
immaterial as the statutes are interrelated.

A. The Proper Test for Discriminatory Intent

1. Civil Rights Statutes and the “Deliberate Indifference”
Standard

       In order to avoid any confusion over the applicability
of the deliberate indifference standard, its application under
Title VI here, or the relevance of cases decided under certain
other statutes, it is helpful to expound on the majority’s
explanation of the relationship of Title VI to other civil rights
statutes related to it, including the Rehabilitation Act of 1973,
the Americans with Disabilities Act of 1990, and Title IX of
the Educational Amendments of 1978 (“Title IX”). See
Barnes v. Gorman, 536 U.S. 181, 185 (2002). Courts often
look to the standard that applies under one of these statutes, to
decide cases brought under one of the others. Id. The
Supreme Court, this Court, and nearly all of our sister Courts
of Appeals that have addressed the standard for establishing
intentional discrimination under these interrelated civil rights
statutes (the RA, ADA, and Title IX) have held that deliberate
indifference can be sufficient to establish the required
discriminatory intent. Evidence of discriminatory animus is
not required.

   a. The Interrelationship of Title VI, The RA, and the
      ADA.

       As my colleagues note, the RA prohibits
discrimination on the basis of disability in federally funded
programs, including employment programs receiving federal
financial assistance. 29 U.S.C. § 701 et seq. (1998). The
ADA prohibits discrimination on the basis of disability in
employment, public accommodations, public entities and
transportation, and telecommunications. 42 U.S.C. § 12101
et seq. (2009). As noted above, the RA and ADA are
coextensive with Title VI. Barnes, 536 U.S. at 185 (2002);
S.H. ex. rel. Durrell v. Lower Merion School Dist., 729 F.3d
248, 261 (3d Cir. 2013). In Barnes, the Supreme Court


                                20
explained: “the remedies for violations of . . . the ADA and . .
. the [RA] are coextensive with the remedies available in a
private cause of action brought under Title VI of the Civil
Rights Act of 1964, which prohibits racial discrimination in
federally funded programs and activities.” 536 U.S. at 185
(internal citation omitted). In S.H., we explained that:
       Section 203 of the ADA states that the remedies
       available under § 202 of the ADA are the same
       remedies available under § 505 of the RA.
       Similarly, § 505 of the RA clearly states that the
       remedies available under § 504 of the RA shall
       be the same remedies available under Title VI
       of the Civil Rights Act of 1964.

  S.H., 729 F.3d at 260-61.

        Under both the RA and the ADA, “deliberate
indifference is a form of intentional discrimination . . . .”
S.H., 729 F.3d at 264 n.24 (emphasis in original) (internal
citation omitted). Because the RA itself states that Title VI’s
rights and remedies should apply, the same deliberate
indifference standard that applies under the RA should apply
to claims brought under Title VI.

       “Supreme Court precedent construing Title VI governs
enforcement of the RA and the ADA as well,” because both
laws were modeled on Title VI. S.H., 729 F.3d at 261
(internal citations omitted).

        When we decided S.H., this was an issue of first
impression for us. Id. at 260 (“We have not yet spoken on
this issue.”). We therefore took pains to explain our inquiry
into “[w]hich standard to apply – discriminatory animus or
deliberate indifference. . .”, and we provided a thorough
explanation of our decision to adopt the majority rule. We
explained that our discussion was (at least in part) in response
to the Eleventh Circuit’s observation that “despite the
adoption of the deliberate indifference standard by many of
our sister courts, ‘there has been little explication for the
conclusion that intentional discrimination under the RA may
be established by deliberate indifference.’” Id. at 263 (quoting
Liese v. Indian River County Hosp. Dist., 701 F.3d 334, 345
(11th Cir. 2012)).

                                21
b. Title VI and Title IX.

       Fewer than ten years after Title VI was passed,
Congress enacted Title IX of the Education Amendments of
1972 (“Title IX”) to protect against gender-based
discrimination in federally funded educational programs. 20
U.S.C. § 1681 (2014) (“No person in the United States shall,
on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under
any education program or activity receiving Federal financial
assistance.”). Congress explicitly modeled Title IX on Title
VI. “Except for the substitution of the word ‘sex’ in Title IX
to replace the words ‘race, color, or national origin’ in Title
VI, the two statutes use identical language to describe the
benefited class.” Cannon v. Univ. of Chicago, 441 U.S. 677,
694-95 (1979).

       Given the interrelated nature of the statutes, “[t]he
drafters of Title IX explicitly assumed that it would be
interpreted and applied as Title VI had been during the
preceding eight years.” Id. at 696; see also Barnes v.
Gorman, 536 U.S. 181, 185 (2002) (“The Court has
interpreted Title IX consistently with Title VI . . .”);
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 254-58
(2009) (“Congress modeled Title IX after Title VI of the Civil
Rights Act of 1964, and passed Title IX with the explicit
understanding that it would be interpreted as Title VI was.”)
(internal citations omitted). The standard for intentional
discrimination under Title IX is clearly deliberate
indifference. Davis v. Monroe County Board of Education,
526 U.S. 629, 642 (1999); Gebser v. Lago Vista Independent
School District, 524 U.S. 274, 290 (1998).

       In Davis, a parent brought suit against the Monroe
County Board of Education because her fifth-grade daughter
had been repeatedly sexually harassed by another student in
her class. Davis, 526 U.S. at 632-33. The harassed student
(LaShonda) and her family reported the harassing student’s
conduct to various school officials, including her teachers and
the principal. Id. at 634. The harassing student was
eventually charged with, and pled guilty to, sexual battery for
harassing LaShonda and others. Id. In the suit that followed,
the plaintiffs alleged that, despite the fact that the student pled

                                 22
guilty, the school took no disciplinary action in response to
LaShonda’s repeated complaints, and it failed to make any
effort to protect LaShonda by separating her from the
harassing student. Id. at 635. The defendants argued that
plaintiffs needed to demonstrate that the defendants
themselves had actually harassed LaShonda, not simply that
they had ignored her harassment at the hands of another
student. Id. at 636. The Supreme Court relied on Gebser,
and held that the school board could itself be liable for sexual
harassment under Title IX if it was deliberately indifferent to
the peer-on-peer sexual harassment. Id. at 641-43 (“Gebser
thus established that a recipient intentionally violates Title IX,
and is subject to a private damages action, where the recipient
is deliberately indifferent to known acts of teacher-student
discrimination.”) (internal citations omitted)(emphasis
added).

        The rational for allowing deliberate indifference to
establish intentional discrimination under Title VI is further
illustrated by limitations and obligations arising from the
Sending Clause authority that each of the analogous statutes
is based upon.

c. The Relevance of the Spending Clause

       Title VI, Title IX, the RA and the ADA are all based
on the same exercise of congressional power under the
Spending Clause. U.S. Const. art. 1, § 8, cl. 1. Guardians
Ass’n, 463 U.S. at 598-99 (1983) (opinion of White, J.)(Title
VI); Gebser, 524 U.S. at 287 (Title IX); S.H., 729 F.3d at 264
(RA and ADA).

       In Gebser, the Supreme Court explained how the
source of congressional authority in enacting Title IX and
Title VI informed interpretation of the statutes:

       Title IX's contractual nature has implications for our
       construction of the scope of available remedies. When
       Congress attaches conditions to the award of federal
       funds under its spending power, U.S. Const., Art. I, §
       8, cl. 1, as it has in Title IX and Title VI, we examine
       closely the propriety of private actions holding the
       recipient liable in monetary damages for

                                 23
       noncompliance with the condition. Our central concern
       in that regard is with ensuring that “the receiving entity
       of federal funds [has] notice that it will be liable for a
       monetary award.”

Gebser, 524 U.S. at 287-88 (emphasis added) (internal
citations omitted).

In S.H. we explained:

       [t]he RA and ADA were enacted under
       Congress’s Spending Clause power; legislation
       that is enacted under this power ‘is much in the
       nature of a contract’ between the federal
       government and recipients of federal funds” and
       “[t]he Supreme Court has thus reasoned that a
       recipient of federal funding, such as the School
       District here, may be held liable for money
       damages only when it is on notice by statute
       that it has violated the law.”).

729 F.3d at 264 (internal citations omitted).

        Under the Spending Clause analysis of S.H., animus is
not a condition precedent to a contractual breach. Rather,
intent to breach can be assumed from knowledge of a set of
circumstances, and a refusal to remedy them. This is true
whether the law in question prohibits gender-based
discrimination under Title IX, disability-based discrimination
under the ADA or RA, or racial discrimination as is alleged
here under Title VI.

2. The District Court’s Approach is Inconsistent with the
Decision of Every Other Circuit Court That Has Decided
This Issue

       Every Circuit Court of Appeals that has addressed this
issue has held that the heightened discriminatory animus
standard does not apply to Title VI claims. 14 See Bryant v.

14
   In S.H., we identified two Courts of Appeals that appeared
to adopt a minority position. The First Circuit in Nieves-
Marquez v. Puerto Rico, 353 F.3d 108, 126-27 (1st Cir. 2003)

                                24
Independent School District No. 1-38 of Garvin County,
Oklahoma, 334 F.3d 928, 933-34 (10th Cir. 2003); Zeno v.
Pine Plains Central School District, 702 F.3d 655, 665 n.10
(2d Cir. 2012) (“Although the harassment in Davis, and the
‘deliberate indifference’ standard outlined by the Supreme
Court, arose under Title IX, we have endorsed the Davis
framework in cases of third-party harassment outside the
scope of Title IX.”) (internal citations omitted); Monteiro v.
Tempe Union High School Dist., 158 F.3d 1022, 1034-35 (9th
Cir. 1998) (internal citations omitted); Liese v. Indian River
County Hospital District, 701 F.3d 334, 347-49 (11th Cir.
2012) (applying deliberate indifference to a disability
discrimination case because the RA is based on Title VI,
where deliberate indifference would be sufficient to show
discriminatory intent).

        In Bryant, the Court of Appeals for the Tenth Circuit
relied on Davis in adjudicating a Title VI hostile environment
claim. Bryant, 334 F.3d at 934. Plaintiffs there were students
who alleged that they were subject to a racially hostile school
environment. Id. at 931. The relevant school officials were
“aware of the racial slurs, graffiti inscribed in school
furniture, and notes placed in students’ lockers and
notebooks” and yet, “[t]he principal affirmatively chose to
take no action.” Id. at 932-33.         While noting that the
offending conduct must be intentional to pass muster under
Title VI, the Tenth Circuit explained: “[c]hoice implicates
intent” lest “school administrators . . . sit idly, or
intentionally, by while horrible acts of discrimination
occurred on their grounds by and to students in their charge.”
Id. at 933. The court added: “when administrators who have
a duty to provide a nondiscriminatory educational

and the Fifth Circuit in Delano-Pyle v. Victoria Cnty., 302
F.3d 567, 575 (5th Cir. 2002). However, neither decision
actually adopts a “minority rule.” Nieves-Marquez never
rejected the “deliberate indifference” standard as a form of
intentional discrimination. Similarly, in Delano-Pyle, the
Court of Appeals for the Fifth Circuit did not affirmatively
require discriminatory animus to establish intentional
discrimination under the RA and ADA. Instead, the court
affirmed the jury’s verdict based on intentional
discrimination.

                               25
environment for their charges are made aware of egregious
forms of intentional discrimination and make the intentional
choice to sit by and do nothing, they can be held liable” under
Title VI. Id.

       The court instructed the district court on remand:
       to apply the test from Davis v. Monroe County
       Board of Education” to a Title VI hostile
       school environment claim because “Congress
       based Title IX on Title VI; therefore, the
       Court’s analysis of what constitutes intentional
       sexual discrimination under Title IX directly
       informs our analysis of what constitutes
       intentional racial discrimination under Title VI
       (and vice versa).

 Id. at 934. We should remand and do the same here.

       The Plaintiffs here may not be able to ultimately
convince a fact finder that they should prevail under Title VI
or § 1983, but they have clearly produced sufficient evidence
to survive summary judgment, and they are clearly entitled to
have the correct legal standard of deliberate indifference
applied to their proof.

III. THIS RECORD AND SUMMARY JUDGMENT

       My colleagues readily concede the difficulty of
proving a discriminatory motive and the concomitant
necessity of allowing plaintiffs to rely solely on
circumstantial evidence. See Majority Op. at 45 (“individuals
who violate the law based on discriminatory motives
sometimes do not leave a trail of direct evidence, but instead
‘cover their tracks’ by providing alternate explanations for
their actions.”). We have discussed this in some detail in the
context of claims of job discrimination. In Aman v. Cort
Furniture, 85 F.3d 1074, 1082 (3d Cir. 1996), we stated:
“defendants of even minimal sophistication will neither admit
discriminatory animus nor leave a paper trail demonstrating
it.” This is especially true since those who harbor conscious
(as opposed to subliminal) bias may attempt to “cover their
tracks[.]” Majority Op. at 45.



                               26
       Thus, bias will sometimes manifest itself only in subtle
ways that the actor him/herself may not even be cognizant of.
In Cort Furniture, we explained that “Discrimination
continues to pollute the social and economic mainstream of
American life, and is often simply masked in more subtle
forms.” 95 F.3d at 1082. In Coombs v 616 F.3d, 264, in
discussing the possible unconscious bias of a prosecutor in
striking Black jurors we explained, “[l]ike anyone else, trial
attorneys possess those human frailties that make each of us
far too susceptible to social conditioning and the subliminal
bias that may result.” Surely, teachers in our public schools,
even though they may not be acting out of racial animus or
conscious bias, are no less human, and no more immune to
the “frailties that make each of us far too susceptible to social
conditioning and the subliminal bias that may result,” than
attorneys are.

        This does not eliminate the Plaintiffs’ need to produce
enough evidence to survive a motion for summary judgment.
However, the nature of the fact to be proven must inform a
court’s analysis of the evidence that is produced. If Plaintiffs
have produced enough evidence to raise a genuine issue of
material fact as to Defendants’ deliberate indifference,
Plaintiffs are entitled to their day in court on their Title VI
and § 1983 claims whether the deliberate indifference is
borne of deliberate animus or the more insidious poison of
social conditioning. 15 Here, plaintiffs’ proof is more than
sufficient to establish a genuine dispute of material fact,
especially if we consider the ephemeral nature of the racially
caused deliberate indifference they must prove.

A. The Summary Judgment Standard Has Been Ignored



15
  For an interesting discussion of the neurological science
underlying the subtleties of bias that we discussed in Cort
Furniture and Coombs, see John A. Bargh, “Our Unconscious
Mind: How Unconscious Thought and Perception Affect Our
Every Waking Moment,” Scientific American, Dec. 17, 2013,
available at http://www.scientificamerican.com/article/how-
unconscious-thought-and-perception-affect-our-every-
waking-moment/

                                27
        I reiterate that a court may not “weigh the disputed
evidence and decide which is more probative,” when deciding
a motion for summary judgment. Lawrence v. National
Westminster Bank New Jersey, 98 F.3d 61, 67 (3d Cir. 1996)
(internal citations omitted) (holding that the district court
erred in ruling that a plaintiff had failed to offer any evidence
to survive summary judgment on its discrimination claim
where the district court had simply discounted plaintiff’s
admissible evidence as less probative than defendant’s.).
Similarly, courts may not “make credibility determinations or
engage in any weighing of the evidence; instead, the non-
moving party’s evidence ‘is to be believed[,] and all
justifiable inferences are to be drawn in his favor.’” Marino v.
Indus. Crafting Co., 358 F.3d 241, 247 (3d Cir. 2004)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)).

       The District Court did acknowledge the Plaintiffs’
“[e]vidence of procedural irregularities” in the way some of
the children were erroneously placed into special education
classes. Blunt, 826 F.Supp.2d at 760. Yet, the court
dismissively refused to admit it based upon the court’s belief
that “there must be some evidence that irregularities were
related to plaintiffs’ race.” Id. Thus, the Plaintiffs were
denied the benefit of all reasonable inferences in defending
against summary judgment and they were also expected to
prove a negative by dispelling all causes for the “procedural
irregularities” other than race.

        After demanding that Plaintiffs prove the irregularities
here were tied to race - irregularities that my colleagues
ignore, the District Court not only failed to afford the
Plaintiffs the inference demanded by summary judgment, the
court ignored evidence that was relevant to the very racial
nexus the court demanded proof of.

       As I will explain below, the Plaintiffs’ expert
examined the extent to which African-American students are
overrepresented in LMSD’s special education classes while
being completely absent from any “high expectation” college
prep or advanced placement classes, and concluded both as a
matter of statistical science as well as common sense that
those numbers indicate “there is something systematic about

                                28
the LMSD practices related to Ethnicity.” J.A. at 1676
(emphasis added). There is other evidence, that I will discuss,
that is easily sufficient to create a genuine dispute of material
fact if the record is properly viewed in its totality.

        Any appropriately flexible inquiry, if guided by the
correct legal test of deliberate indifference, would have
realized the potential for a fact finder to conclude that
Plaintiffs have met their burden based on all of the
circumstantial evidence here. I reiterate: at this point, the
burden is merely to produce sufficient evidence that there is a
genuine dispute of material fact. Plaintiffs do not have to
prove their case to survive summary judgment, and they are
entitled to the benefit of all reasonable inferences.

       Circumstantial evidence (which all involved concede
is not only permissible but necessary in such cases) is
nothing more than a fact derived from an inference drawn
from proof of underlying circumstances. See Black’s Law
Dictionary 18c (9th ed. 2009). That is exactly what we have
here. Although I do not suggest that this record would
necessarily result in a reasonable fact finder inferring a racial
motive based on deliberate indifference, such a finding would
clearly be supported by this record, even absent the
evidentiary equivalent of a “smoking gun.”

       I am thus at a complete loss to understand how the
District Court could have looked at this record and concluded
that Plaintiffs had “not put forth more than a scintilla of
evidence that the LMSD had acted with a racially
discriminatory purpose [i.e. deliberate indifference] in
identifying them as disabled and placing them in special
education courses . . . .” See Majority Op. at 86.

        Although we are assured that plaintiffs in cases such
as this need not produce the proverbial “smoking gun,” it
certainly appears that after today, they will be required to
produce something akin to evidence of either a muzzle flash
or a surveillance video in order to survive summary
judgment.

       In affirming this grant of summary judgment, my
colleagues note that there “was no evidence presented in the

                                29
District Court that the LMSD applied different evaluation
procedures for determining placement of African-American
students than for Caucasian students.” Majority Op. at 93.
There does not have to be.16

        There is an expert’s conclusion that there is
statistically significant evidence of African American being
disproportionately assigned to special education classes while
none are enrolled in advanced placement or “high expectation
classes.” We know that the African-American students who
are plaintiffs here were placed in special education classes
even though their tests did not indicate such a placement was
warranted and/or that deficiencies were relied on for such
placements that did not justify a special education
placement.17 This is evidence that was dismissed, even
though we should be mindful of the difficulties of proof in
such cases and that bias is no longer “worn on sleeves” or
“carried on signs.”

        Moreover, as I have already explained, no evidence of
different testing or separate evaluation procedures is required.
Although such evidence would certainly have advanced the
Plaintiffs’ claim of racial bias, its absence is far from fatal to
those claims given the other evidence on this record.

16
   A relevant article from the highly respected periodical
mentioned above (n.15) contains a helpful illustration of why
my colleagues’ approach to claims of bias is both misguided
and naivè: “A college admissions officer might zero in on a
less than stellar grade in an otherwise solid medical school
application from a prospective minority student without
realizing those same negative features are not weighted so
heavily for the other applicants.” Bargh supra note 16 at 34.
As I discuss below, it appears here that African-American
students may well have been placed in special education
classes based on evaluations that did not warrant such a
placement. It is therefore irrelevant that the same evaluations
were used to place White students in special education
classes.
17
   And this does not even include evidence that should have
been admitted but was erroneously labeled “hearsay,” or
could not survive an overly rigorous authentication
requirement.

                                 30
Whether or not the procedural irregularities in the erroneous
and improper placement of these African-American students
in special education classes was the result of bias (i.e.
deliberate indifference), ineptitude, or coincidence should not
be decided on summary judgment given the Plaintiffs’
evidence.

        My colleagues acknowledge that “plaintiffs’ expert, a
psychologist [concluded] that five or six of the students in
question incorrectly had been identified as learning disabled. .
.” Majority Op. at 93. Yet they attach no evidentiary
significance to the fact that nearly every individual African-
American student in this suit was improperly placed in special
education classes, because that expert opinion “was not
rendered until these proceedings were pending in the District
Court . . . .” Majority Op. at 93. I do not understand how that
bears on whether the Plaintiffs submitted sufficient evidence
to survive summary judgment in the District Court, and the
absence of legal citation or explanation of why this is the least
bit relevant does not encourage comfort in such a strange
principle. Indeed, I have no idea why one would go to the
trouble and expense of obtaining an expert opinion about
alleged improprieties before the evidence was required as
proof in a judicial proceeding. The expert opinion was before
the District Court when it ruled on the Defendants’ motion for
summary judgment. 18

       Although the abuse of discretion standard that governs
our review of the District Court’s evidentiary rulings is quite
deferential, it is not insurmountable and focusing on the
deference properly afforded an evidentiary ruling ought not to
substitute for an objective analysis of whether the ruling was
an abuse of discretion.

     Thus, even if it was proper to ignore the MAP
PowerPoint and all of Dr. Moore-Williams’ testimony (and it
was not), which I discuss in detail below, the remaining

18
  The District Court never even mentioned the fact that the
record contained evidence that the level of disproportionality
was statistically significant, and that it showed “there is
something systematic about the LMSD practices related to
Ethnicity.” J.A. at 1676.

                                31
record should still have precluded summary judgment. “The
totality of the evidence . . . must guide our analysis rather
than the strength of each individual argument.” Bray v.
Marriott Hotels, 110 F.3d 986, 991 (3d Cir. 1997). Yet my
colleagues attempt to “explain[] each of the discrepancies in
[the] record in isolation and conclude[] that none of them
creates a material issue of fact.” Id. (internal citation omitted).
“[S]uch an analysis is improper in a discrimination case.” Id;
see also Andrews v. City of Philadelphia, 895 F.2d 1469,
1484 (3d Cir. 1990) (“A play cannot be understood on the
basis of some of its scenes but only on its entire performance,
and similarly, a discrimination analysis must concentrate not
on the individual incidents, but on the overall scenario.”).

B. Plaintiffs’ Statistical Evidence was Not Properly
Credited.

      Plaintiffs’ proof consists in part of strong statistical
evidence. It is summarized in the following chart that is
based on data collected by the Pennsylvania Department of
Education:
          Total student body at LMSD        Students Participating in special education courses
                                         Total          % of total%            of
                    % of total           Number of student bodyspecial
                    number of% of totalstudents that that             education % of special
                    students   number of participated participated students       education
          Total     who werestudents     in     special in    special who were students
          Number of African-   who were education       education     African-    who were
Year      students American Caucasian courses           courses       American Caucasian
’05-‘06   6,945     7.7%        84.4%       1,255         18.1%        12.7%        82.6%
’06-‘07   6,981     7.9%        83.2%       1,187         17.0%        14.5%        80.2%
’07-‘08   6,914     8.1%        83.1%       1,158         16.7%        14.0%        80.8%
’08-‘09   6,788     8.0%        81.6%       1,101         16.2%        13.7%        80.5%
’09-‘10   7,072     8.6%        81.1%       1,094         15.5%        14.3%        80.0%

Majority Op. at 92-93.

       My colleagues ignore the force of these numbers by
stating that “[d]isporportionality is not per se evidence of
discrimination, […] [because disproportionality] can be either
biased or unbiased.” Majority Op. at 92 (internal quotation


                                 32
marks and citations omitted). Although that is true, recitation
of that general principle does not justify adopting a wholly
dismissive attitude toward the evidence of disproportionally
in the LMSD, or considering it in isolation from other
evidence.

       For the five-year span captured by these numbers, the
percentage of Caucasian students in special education classes
in LMSD was roughly equivalent to, though always less than,
the total percentage of Caucasian students in the LMSD
student body. For most of that time frame, the percentage of
African-American students enrolled in special education
classes in LMSD was twice the percentage of the number of
African-Americans in the student body. These percentages
do not exist in a vacuum.

1. Plaintiffs’ Expert Dr. Conroy Placed the Statistical
Evidence in Context

        Plaintiffs produced the testimony of an expert witness,
Dr. James W. Conroy, Ph.D, who studied enrollment and
student placement in the various courses at LMSD.19 He
found that, while African-American students were greatly
overrepresented in “low expectation” classes, they were
dramatically underrepresented in more demanding college
preparatory and advanced placement courses. J.A. at 1671-
74. “The pattern is that these courses with the highest
proportions of Black students tend strongly to be courses that
I would label as ‘low expectations’ courses.” Id., at 1673-74
(italics added).

      Conroy also examined the racial composition of the
twelve advanced or “high expectation” classes. He found that

19
   Although it is not necessary to note Conroy’s
qualifications at this stage, it is important to consider that it
includes “39 years of research in disability, education, and
health issues among children and adults,” and since
graduating Cum Laude, from Yale and earning his Ph.D. in
Medical Sociology from Temple University, “With
Distinction,” he has qualified as an expert in disability
research, disability policy, special education and statistical
analysis. J.A. at 1670.

                                  33
in 2008, not only were African-American students
underrepresented in those classes; the percentage of African-
American students in “high expectation” classes was “zero.”
Id. at 1674-75 (emphasis in original). In other words, not a
single African-American student was assigned to any of the
twelve high expectation classes in LMSD in 2008.20 Id. Lest
one think 2008 was a fluke or a statistical aberration, Conroy
found exactly the same pattern “for each of the years 2005,
2006, 2007, and 2008.” Id. at 1675. For each of those years
not a single African-American student was assigned to a
college prep or “high expectation” class in this school district.

        Conroy testified that the extent of this disparity was
“‘significant’ in the statistical sense.” Id. at 1676. In fact,
Conroy concluded that the disproportionally in LMSD was so
evident that one need not be an expert in statistics to grasp its
significance. Rather, he believed that “[t]he Lower Merion
population data may be judged practically significant by
simple observation of large differences in the kinds of courses
students [sic] Black and Others students wind up in.” Id. at
1677 (emphasis in original). His conclusion, rejected by the
District Court as a matter of law, was that: “there is
something systematic about the LMSD practices related to
Ethnicity.” Id. at 1676 (emphasis in original).

        The Majority states that “[t]he District Court . . .
discussed in detail the statistical data that the plaintiffs put
forward.” Majority Op. at 92. Yet, both my colleagues and
the District Court ignore that absolutely no African-American
students were placed in “high expectation” classes during the
period examined by Conroy, and the Majority fails to note
that the District Court ignored the expert conclusion that
LMSD employed these “practices related to Ethnicity.”
However, even if the statistics could properly be viewed in
isolation, the issue remains not whether those disparities
establish deliberate indifference, but whether they create an
issue of fact about African-American students’ placement in

20
  Those classes included: Latin 3H, AP Calculus BC, IB
Senior Project, IB Theory of Knowledge, Economics H, IB
History of Americas HL 2, IB English A1 HL (Part 2), Art 2
H, AP Spanish Language, AP Physics C Electromagnetism,
and Organic Chemistry H. J.A. at 1674.

                                34
“low expectation classes” during this time frame, which was a
period when LMSD did not place a single African-American
student into any “high expectation” college prep or Advanced
Placement test.

      The Majority attempts to further minimize the
evidentiary value of this testimony by noting that:

        [t]he Supreme Court also has rejected the use
       of particular standard deviations or ‘any
       alternative    mathematical     standard’   in
       establishing a prima facie case of employment
       discrimination, and has stressed that the
       significance or substantiality of numerical
       disparities must be judged on a case-by-case
       basis . . . [and they] must be sufficiently
       substantial that they raise an inference of
       causation.

Majority Op. at 47 (quoting Watson v. Fort Worth Bank &
Trust, 487 U.S. 977, 996 (1988).

       There are other problems with the Majority’s attempt
to ignore the force of the statistical evidence. First, in
Watson, the Court was deciding whether a statistically based
disparate impact analysis was applicable to a claim of
disparate treatment in a “subjective or discretionary
promotion system.” 487 U.S. at 999. The Court said nothing
that would assist us in determining the propriety of a sample
size or the probative force of the “deviation” here. Indeed,
the Court’s only mention of “deviation” was the following
reference in a footnote:

        Courts have also referred to the ‘standard deviation’
analysis sometimes used in jury selection cases. We have
emphasized the useful role that statistical methods can have in
Title VII cases, but we have not suggested that any particular
number of ‘standard deviations’ can determine whether a
plaintiff has made out a prima facie case in the complex area
of employment discrimination.

Id. at 995 n.3 (internal citations omitted).



                                 35
        The Majority seems concerned with the sample size
here as well as the significance of the deviation. They cite to
Watson, stating: “the Supreme Court has explained that
neither the ‘courts nor defendants [are] obliged to assume that
plaintiffs’ statistical evidence is reliable,’ and has cited, for
example, the weaknesses inherent in small or incomplete data
sets and/or inadequate statistical techniques.” Majority Op. at
46 (internal citation omitted). That is clearly true as a general
proposition, but I do not understand how that general
proposition advances our inquiry. There is nothing on this
record to suggest that the Plaintiffs’ experts’ statistical
analysis is flawed, that the data set is “incomplete and/or
inadequate,” or that their experts’ statistical techniques are
flawed. The District Court made no such finding and it
appears that LMSD did not make any such argument to the
district court.

       The issue in Watson was whether a disparate impact
analysis could be used to establish disparate treatment in an
employment discrimination suit involving a discretionary
promotion system at a bank having 80 employees – far fewer
than the numbers involved here.           There, the African-
American plaintiff had attempted to use statistical evidence of
the paucity of African-Americans who had been promoted at
the bank, in order to establish her disparate treatment claim
that the bank had failed to promote her because of her race.
The Supreme Court held that statistical evidence of disparate
impact could be used to establish a prima facie case of
disparate treatment but rejected the position of some courts
that looked to EEOC Uniform Guidelines on Employment
Selection Procedures.        Those courts had “adopted an
enforcement rule under which adverse impact” would “not
ordinarily be inferred unless the members of a particular . . .
group [were] selected at a rate that [was] less than four-fifths
of the rate at which the group with the highest rate [was]
selected.” Watson, 487 U.S. at 995 n.3. The Court restated
the “useful role that statistical methods can have in Title VII
cases,” but cautioned that it had “not suggested that any
particular number of ‘standard deviations’ can determine
whether a plaintiff has made out a prima facie case . . ..” Id.
(emphasis added).




                                36
        The situation here is remarkably different. In order to
establish deliberate indifference under the theory advanced
here, Plaintiffs had to first establish that African-American
students were being placed in “low expectation” classes at a
significantly disproportionate rate to Caucasian students.
Even my colleagues seem to concede that the record
establishes that, and LMSD does not really deny that. Any
dispute about statistical sampling, standard deviations, and “z
scores,” is beside the point.

2. There are Issues Regarding Defendants’ Expert’s
Methodology

        Plaintiffs’ expert explained his methodology in great
detail and we have only my colleagues’ countervailing
implied mastery of statistics to dismiss the statistical validity
of Plaintiffs’ expert’s conclusions. My colleagues’ concern
about such statistical terms of art as: “data sets” and
“statistical techniques” and sample size, is even more
puzzling when one considers that the Defendants’ expert, Dr.
Daniel Reschly, reached a conclusion that was contrary to
Plaintiffs’ expert based on a much smaller sample size.
Reschly only looked at two years of student placements as
opposed to the five years that Conroy used to reach a
conclusion about the role of race in LMSD’s placements.
Moreover, Reschly admitted that his inquiry was hurried and
that he did not request additional information required to
perform the kind of analysis he would otherwise have
conducted because there was insufficient time. J.A. at 2979.
Id. at 2590.

        Although I do not address the Majority’s rejection of
Plaintiffs’ appeal of the District Court’s decision to consider
Reschly’s evidence without subjecting it to a Daubert
hearing, I neither agree with that decision, nor do I
understand why the District Court denied the requested
Daubert hearing. I do not discuss it in detail because that
ruling has no bearing on whether Plaintiffs offered enough
evidence to survive summary judgment. If Reschly’s report
could withstand a Daubert inquiry, we have a classic battle of
the experts that a jury should resolve. If it is not admitted
under Daubert, the record still contains a factual issue that
must be decided by a jury.

                                37
        I do note that my colleagues misstate the Plaintiffs’
basis for challenging the District Court’s denial of their
request for a Daubert hearing. My colleagues suggest that
Plaintiffs’ objection to Reschly’s report “lies with one
paragraph.” Majority Op. at 84. That is the District Court’s
acceptance of Reschly’s definition of “disproportionality.”
My colleagues explain their rejection of this claim as follows:
“[w]e find this use of Reschly’s wording to define
disproportionality to be immaterial to the outcome of this
litigation.” Id.

        However, there are many more issues with Reschly’s
report than the definition of “disproportonality,” and these are
set forth in the Memorandum of Law filed in support of
Plaintiffs’ Daubert Motion to Partially Exclude and/or Limit
the Report and Testimony of Daniel J. Reschly, Ph.D. J.A. at
2916. Arguably, there are numerous problems with Reschly’s
report, including the fact that he admitted that he did not have
enough time to conduct the kind of comparison he otherwise
would have, the files he compared were selected by agents of
LMSD, and he only compared two years of class assignments.

       The issue for us is not, of course, which expert is
correct. Rather we should only be concerned with whether
this disagreement raises a genuine dispute of material fact.
The majority does not believe it does because my colleagues
simply reject the statistical evidence supporting the Plaintiffs’
claim of bias. That is improper. See Federal Laboratories v.
Barringer Research, Ltd., 696 F.2d 275, 274 (3d Cir. 1982)
(“A court may not . . . resolve ‘disputed and relevant factual
issues on conflicting affidavits of qualified experts.’ Nor is it
at liberty to disbelieve the good faith statements of experts
contained in depositions or affidavits and presented by the
non-moving party”) (internal citations omitted).

       Although my colleagues cite to Teamsters v. United
States, 431 U.S. 324, 340 (1977), they manage to overlook
the thrust of the Court’s analysis there. In Teamsters, the
defendant employer argued that “statistics can never in and of
themselves prove the existence of a pattern or practice of
discrimination, or even establish a prima facie case shifting to
the employer the burden of rebutting the inference raised by
the figures.” 431 U.S. at 338. The Court rejected the

                                38
defendant’s attempt to minimize the importance of statistical
analysis by explaining: “our cases make it unmistakably clear
that ‘[s]tatistical analyses have served and will continue to
serve an important role’ in cases in which the existence of
discrimination is a disputed issue.” 431 U.S. at 338, (brackets
in original). This is such a case.

        Moreover, the invocation of the maxim that statistics
cannot “by themselves” establish discriminatory intent,
should not obscure the fact that there is “more,” on this
record. There is much more. Thus, even if the opinion of the
Plaintiffs’ expert could not, by itself, raise an issue of fact, it
is neither proper nor fair to discuss Plaintiffs’ proof as if they
were only relying on that evidence to establish an issue of fact
about discriminatory intent under the deliberate indifference
standard.

C. Evidence of a “MAP” Program was Improperly
Excluded and Raises a Dispute of Fact.

        Before discussing the MAP evidence, it is helpful to
reiterate the nature of the disputed factual issues in this case.
As my colleagues readily concede, proof of intent can rarely
be achieved by direct evidence. See Majority Op. at 45.
Accordingly, as noted earlier, “[c]ourts today must be
increasingly vigilant in their efforts to ensure that prohibited
discrimination is not approved under the auspices of
legitimate conduct, and a plaintiff’s ability, to prove
discrimination [i.e. deliberate indifference rising to the level
of discriminatory intent] indirectly, circumstantially, must not
be crippled . . . because of crabbed notions of relevance or
excessive mistrust of juries.” Cort Furniture, 85 F.3d at 1082
(internal quotation marks omitted, ellipsis in original).

       Moreover, the practical problems of proof in cases
such as this counsel in favor of the same kind of practical
assessment of proof that the courts have adopted pursuant to
the Supreme Court’s McDonnell Douglas burden shifting
analysis. See McDonnell Douglas Corp. v. Green, at 411
U.S. 792, 802 & n.13 (1973). The District Court
acknowledged the flexible nature of the proof required to
establish a prima facie case. The court explained: “the prima
facie case is flexible and must be tailored to fit the specific

                                 39
context in which it is applied.” 826 F.3d at 758 (quoting
Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir.
2003)) (internal citation and quotation marks omitted). Yet,
the court’s inquiry was inconsistent with the flexible
approach the court acknowledged it must adopt.

        With respect to the MAP presentation and the
attendant authentication testimony from Dr. Barbara Moore-
Williams, the District Court and the Majority commit
different errors. The District Court abused its discretion by
failing to admit the MAP presentation because it held that the
document was improperly authenticated under Federal Rule
of Evidence 901(a). On the other hand, the Majority
ostensibly does not contest the admissibility of the document
and instead simply holds that it is insufficient to demonstrate
that the LMSD intentionally discriminated against plaintiffs.
Such a position is problematic because it places an improper
burden on the Plaintiffs, and again transgresses into fact-
finding.      The MAP testimony is admissible and
admissibility—not probative weight, is the focus of a
summary judgment inquiry.

       As an initial matter, it is important to understand what
the MAP presentation is. During discovery, LMSD disclosed
a PowerPoint presentation entitled “Minority Achievement
Program” (MAP) on LMSD letterhead dated October 2010
that the District Court deemed inadmissible because it was
not properly authenticated. That was an abuse of discretion
that had a very significant impact on this litigation, and threw
one more obstacle in the path of having a jury determine the
validity of Plaintiffs’ allegations against this school district.

       The MAP “document lists alleged characteristics of
African-American students, including a preference for ‘tactile
learning’ and ‘[s]ubdued lighting’ that they ‘[r]ely heavily on
visual input rather than auditory input,’ and that they ‘[r]eact
intensely to being praised or criticized.’” Blunt, 826
F.Supp.2d at 761 (brackets in original). The District Court
refused to consider the contents of the brochure because “the
record does not reveal who created this document or under
what circumstances and what position the creator or creators
occupied within the School District. There is no evidence
that the purported presentation was ever used.” Id. The

                                40
majority agrees with the District Court that the fundamental
problem with admitting the MAP testimony is the lack of
evidence that it was used, noting that it “assume[s] the
contention that this presentation, if used by LMSD, would
provide evidence of discriminatory intent, or deliberate
indifference to a third party’s discriminatory intent.”
Majority Op. at 82.

        Dr. Barbara Moore-Williams, Ed. D. is an educational
consultant retained by LMSD to assist LMSD in addressing
issues of racial disparity in educational placements. She was
retained by LMSD’s Assistant Principal after he saw her give
a presentation at a consortium of area schools. J.A. at 1410.
Her presentation addressed the issue of “cultural proficiency”
and educational success “as a national issue.” Id. at 1411.
According to Moore-Williams, the Assistant Principal was
apparently interested in retaining her because he thought her
work and information would be helpful to LMSD. Id. at
1410. Her work focused on “cultural proficiency among staff
that teach children who are not their culture, their race, their
ethnicity, and the need to pay attention to African-American
males who are struggling in America to get an education . . .
.” Id.

       The District Court refused to consider the entirety of
Dr. Moore-Williams’s testimony that LMSD “discriminated
against African-Americans” because she also testified that
“there is racism in all school districts and that Lower Merion
School District’s problems are no different from any other
suburban school district.” Blunt, 828 F.Supp.2d at 761.21
The District Court thought that Dr. Moore-Williams’
testimony was little more than her “personal belief and
hearsay statements of others.” Id. The District Court
concluded that for these reasons, “her statements cannot
create a genuine issue of material fact regarding the School
District’s intent to discriminate.” Id. My colleagues agree.

21
   When asked directly whether, based on her experience and
conversations with LMSD personnel regarding prejudice in
the teaching staff, there was any prejudice in the teaching
staff, she stated that “[b]ased on [her] experience, there’s
prejudice in everybody. So, yes, there’s prejudice in the
Lower Merion School District.” J.A. at 1412.

                               41
Majority Op. at 89-90. Regardless, parts of her testimony
were nevertheless admissible for the purpose of shedding
light on the MAP PowerPoint.

       As I have just noted, that PowerPoint purported to list
several things that were characteristic of the way African-
American students learn. It stated in part:

      “Many African-American students prefer:

                    more kinesthetic/tactile learning.
                    subdued lighting rather than bright light.
                    rely heavily on visual input rather than
                    auditory input.
                    respond to cooperative learning.
                    simultaneous talk instead of alternating
                    talk.
                    to study while music or conversation
                    occurs in the room..
                    outer-directed rather than egocentric
                    focus.
                    more active environments v. sedentary
                    learning environments of American
                    Schools.
                    rely more on information from their
                    surroundings.

J.A. at 1838. During her deposition, Moore-Williams was
asked if she had “ever heard a teacher or a staff member from
Lower Merion School District discuss the use of visual input
rather than auditory input in their classrooms.” Id. at 1414.
She affirmed that she had. Id. She was then asked about each
of the items listed in the MAP PowerPoint. Id. Counsel
referred to them by their place on the list. Id. Although she
had not heard teachers refer to each of the bullet points, she
had heard teachers refer to some of them. Id. The following
exchange occurred as counsel took Moore-Williams through
the PowerPoint:
       Q. [W]ith regard to the fourth bullet point concerning
highly cooperative learning?
       A.. Yes.
       Q. That has been implemented?
       A. Yes.

                               42
        Q. And has the fifth bullet point concerning
simultaneous talk instead alternating      talk           been
implemented in Lower Merion School District?
        A. Yes.
        Q. And what about the use of music of conversation in
the room while studying?
        A. I haven’t heard.
        Q. And that was the sixth bullet point. Now, what
about the seventh bullet point     concerning the        outer-
directed rather than egocentric focus?
        A. No.
        Q. And what about the eighth bullet point concerning,
I believe you said, more active        environments      versus
sedentary learning environments.?
        A. Yes.
        Q. And how have teachers described . . . active
environments versus sedentary      learning environments with
African-American students in the district?
        A. Kind of along with cooperative learning, because
cooperative learning is active.    So it’s in conjunction with,
we need to do more things where the kids are up and about
and interacting with each other.22
Id. at 1414.

        Although Moore-Williams could not corroborate that
the MAP PowerPoint presentation had been used in its
entirety, the District Court abused its discretion by so
focusing on the generalities of her beliefs about the extent to
which all public schools are infected with some degree of
racism that it overlooked the fact that her testimony was
relevant to establishing the very fact the District Court found
lacking - that teachers had adopted the MAP PowerPoint (at
least in part).

       My colleagues conclude that because “Dr. Moore-
Williams did not testify about the MAP presentation itself,” it
necessarily follows that her testimony “does not establish
who prepared the presentation, or whether LMSD ever used it
or for what purpose.” Majority Op. at 83. The conclusion

22
  “Cooperative learning” is the 14th bullet point on the MAP
PowerPoint: “Function better under cooperative conditions.”
J.A. at 1838.

                               43
fails to consider the detail with which Moore-Williams
referred to the presentation.

        More importantly, it does not refute the admissibility
of the testimony or the presentation. While the District Court
disputed the authenticity of the presentation, the Majority
does not identify any such failure to meet the requirements of
Federal Rule of Evidence 901(a). Perhaps this is because
authentication under Federal Rule of Evidence 901(a) is an
incredibly “slight” burden, which may be satisfied by simply
producing “evidence sufficient to support a finding that the
item is what the proponent claims it is.” Fed. R. Evid. 901(a).

       My colleagues concede that Moore-Williams
“indicated that she heard of certain bullet points,” but they
argue that “she noted that they were not related to African-
American students. At most, her testimony is relevant to the
extent that she heard from LMSD personnel that they used
different teaching strategies for particular students.” Majority
Op. at 83. My colleagues then dismiss the probative value of
Moore-Williams’ testimony because she did not testify that
she heard teachers specifically connect the MAP strategies to
African-American students. However, the portion of the
MAP document quoted above begins with the statement:
“Many African-American students prefer . . .”. The fact that
Moore-Williams did not hear teachers mention African-
American students when discussing the unique learning styles
suggested in the MAP presentation is clearly fodder for
defense counsel’s closing argument at trial. It is not a reason
to ignore the existence of a disputed fact. While Moore-
Williams’ testimony need only place relevant “dots” into
evidence, Plaintiffs should be able to rely on the resulting
inferences to connect them. They should not, however, have
to explicitly connect all of the dots, color in the resulting
image, and frame the picture to survive summary judgment.
There is enough on the record to support an inference that the
distinct teaching approaches were aimed at African-American
students given the language of the MAP presentation and the
specificity of Moore-Williams’ testimony about what she
heard certain teachers discussing.

      Moore-Williams’ testimony, taken along with the
evidence itself, clearly supports a reasonable inference that

                                44
LMSD both was a proprietor of and, through their teachers
and other personnel, used the MAP. The document is on
LMSD’s letterhead in its header and LMSD supplied it in
discovery. There is no suggestion that it was fabricated, and
neither the Majority nor the District Court contest the veracity
of the document. Yet, because Plaintiffs could not identify
the author of this document it was deemed inadmissible.

       As a final matter, the Majority contends that the
District Court properly rejected Moore-Williams’ testimony
as inadmissible hearsay. Majority Op. at 89-90. However,
Moore-Williams was testifying about statements teachers
made to her about the conclusions in the MAP. It certainly
appears that the statements were made by teachers acting
within the scope of their duties as teachers at LMSD, and
neither my colleagues nor the District Court suggest anything
to the contrary. Accordingly, those statements were not
hearsay. They were party opponent admissions. See Fed. R.
Evid. 801(d)(2)(D) (noting that a statement is not hearsay
when “[t]he statement is offered against an opposing party
and . . . was made by the party’s agent or employee on a
matter within the scope of that relationship and while it
existed.”).

D. Testimony of Psychologists and Parents Supports
Plaintiffs’ Contention that Race is a Factor in Assigning
Students to Special Education Classes

        Plaintiffs produced the expert Rebuttal Report of
Tawanna J. Jones, Ed. S. Certified School Psychologist. See
id. at 2306. Her Curriculum Vitae was attached to her report,
and her expertise in the appropriate areas is not disputed.23
She was retained by Plaintiffs to rebut the expert report of
Reschly, LMSD’s expert. Jones was specifically asked to

23
   Jones was then serving as a Certified School Psychologist
for the School District of Philadelphia. Her primary
responsibilities included evaluating students and determining
eligibility for Special Education Services. She was also a
collaborative team member working to ensure proper student
placement, provision of adequate services, “development of
appropriate behavioral and academic goals, and transition
planning for post-secondary options.” J.A. at 2306.

                                45
give her expert opinion about “whether: (1) each of the
student Plaintiffs were properly identified by [LMSD] as
having a learning disability; (2) based on LMSD’s placement
of each student Plaintiffs [sic] into low level and/or special
education classes, were the student Plaintiffs denied the
equality of education they should have otherwise received . . .
.” Id. at 2307-08. Jones found that the students whose files
she reviewed were erroneously evaluated by the school
district. See J.A. at 2318-20. Specifically, as discussed
below, three of the plaintiffs, Q.G, C.H., and S.H., were
incorrectly placed in special education courses although they
did not meet the criteria for placement in those courses. Id.
Jones’s testimony is corroborated and supported by the
testimony of Dr. Barbara Shapiro, Ph.D. the Assistant
Director of Pupil Services, who supervised school
psychologists at LMSD.

        Jones opined that Plaintiff Q.G., an African-American
student at LMSD, “was incorrectly identified by LMSD as a
student who met the criteria for a Learning Disability in the
area of Language Arts.” Id. at 2318. She added: “[a]s an
initial matter of import, Language Arts is not a disability
category.” Id. at 2318 (emphasis in original). Thus, even
assuming the accuracy of LMSD’s conclusion that Q.G. was
deficient in Language Arts, according to the undisputed
testimony of Plaintiffs’ expert, that should not have resulted
in Q.G. being placed in special education classes. Q.G.’s
academic skills then declined over time “after being placed in
Special Education.” Id. at 2319 (emphasis in original).

       The dubious nature of Q.G.’s placement based on a
single deficiency is corroborated by the testimony of Shapiro.
Shapiro began working in the LMSD in the fall of 2003 as
Assistant Director of Pupil Services. J.A. at 1387. She
supervised ten school psychologists in that capacity until
March 1, 2009, during that time she “collaborated with the
special ed supervisors regarding special ed services district
wide.” Id.

       Shapiro testified that no student should ever be placed
into special education classes based on one score. Id. at
1393. “As a psychologist, you would look at the entire
picture of a child and never just determine a disability based


                               46
on one piece of information.” Id. Yet, that was not the
process used to place Q.G. in special education classes that
she did not need, and which impeded her educational
development.

       Shapiro also testified that LMSD did not comply with
the American Psychological Association’s protocol for record
retention. J.A. at 1397. This meant that testing protocols that
determined students’ placement in classes were sometimes
destroyed before parents could examine (and thereby
challenge) them. Although parents were informed that they
had a right to request these protocols, Shapiro did not believe
that parents were ever informed of this shortened retention
policy. The result was that parents would often ask to see
their child’s testing protocols, only to learn they had already
been disposed of. Id.24

       Jones also opined that the initial evaluation for another
African-American student, Plaintiff C.H., “provided a clear
indication, that there were deficits and needs in the areas of
Reading Comprehension and Basic reading skills (reading
decoding).” However, “[t]here was no evidence, . . . that she
met the criteria for SLD [specific learning disability] in the
area of Written Expression or Mathematics.” Id. at 2319.
Jones believed that the absence of data made it impossible to
give C.H. the support she needed to address the one area
where she appeared deficient, and still allow her to progress
normally in the areas where the need for such support was not
indicated. Id. at 2319-20.

       Jones’ evaluation of yet another student, Plaintiff S.H.,
may be the most troubling. “All of S.H.’s skills and abilities
measured in the ‘Average’ range at the point of the initial
assessment . . . . Despite the lack of evidence required to
determine eligibility, the evaluator labeled S.H. as meeting
the criteria for a SLD and subsequently doomed S.H. to an
academic experience [in special ed – low expectation courses]

24
   I mention this evidence merely to illustrate the extent to
which Plaintiffs raised genuine disputes of material facts
regarding those claims and they should have been resolved by
a fact finder. I am not suggesting that this necessarily proves
nefarious conduct by LMSD employees.

                                47
that impeded her development rather than remediated or
accelerated her academic progress.” Id. at 2320. According
to Dr. Jones, “[i]t is evident from the data provided that S.H.
was never a candidate for Special Education under the
auspices of a SLD.” Id. In her view, “[i]t is apparent that
subsequent evaluators either were not aware of the criteria for
a SLD or intentionally chose to ignore the criteria as
demonstrated by the fact that S.H.’s not initially meeting the
criteria for SLD was never subsequently addressed by
LMSD.” Id.

       S.H.’s mother testified that she did not believe her
daughter was denied educational services per se, but was
troubled because S.H. was placed in lower level courses that
were not demanding. S.H.’s mother did not initially object to
the placement because she received letters from LMSD
informing her that S.H. was receiving reading support, which
S.H.’s mother interpreted as giving her daughter extra help.
She said that “[N]obody in the school told [her] that it was a
remedial course, no. I just thought it was an enrichment. It
was presented as an enrichment course to help kids with
reading. So, to me, more is better.” 25 Id. at 1165. Like most
of the parents here, S.H.’s mother did not initially object
because she trusted the school officials and assumed they
were acting in S.H.’s best interests. S.H.’s mother testified
that she finally objected to S.H.’s placement after an
independent psychologist evaluated S.H. in tenth grade and
concluded that S.H. did not have a learning disability.
According to the mother, the school then gave her
“pushback.” Id. at 1167; see generally, id. at 1153-67. This
pushback demonstrates that the school was aware of the
issues involved in S.H.’s placement, and responded in a
manner that a jury could conclude was deliberately
indifferent.

      The differing kinds of omissions and irregularities
evidenced by Dr. Jones’ assessment of the placements of
Q.G., C.H., S.H., as well as Shapiro’s testimony, reflect some

25
   Although the District Court held that S.H.’s mother’s
testimony was inadmissible with respect to other issues (third
hand accounts of teachers’ statements to students), this
testimony does not provide any such problem.

                               48
of the difficulties in the way this case has been litigated as
well as some of the conceptual difficulties and confusion
inherent in the litigation posture here. Indeed, counsel for
CBP addressed this concern at oral argument:

       The general confusion in this case is that
       initially there were special-education claims in
       the case; those claims were dismissed because
       of failure to exhaust. There were also Title VI
       claims. What happened was, through the course
       of discovery and though the process of
       evaluations, the children discovered that . . .
       most of them had never had the disabilities that
       the district said they had.26

Transcript of Oral Argument at 17, Blunt v. Lower Merion
School District, --F.3d-- (Nos. 11-4200, 11-4201, 11-4315).
At the risk of repetition: “the totality of the evidence . . . must
guide our analysis rather than the strength of each individual
argument.” Bray v. Marriott Hotels, 110 F.3d 986, 991 (3d
Cir. 1997).

        In response to this glaring evidence in support of
Plaintiffs’ claims that they were placed into special education
classes because of their race rather than their relative
academic need, the Majority simply makes a blanket assertion
that “if the same evaluation procedures are used for all
students or [sic] their race there is simply no discrimination.”
Majority Op. at 93. This statement is deeply problematic for
two reasons. First, it assumes that the procedures themselves
cannot be discriminatory. Second, and most importantly here, it
assumes the “procedures” comprise the whole of the evaluation,

26
   The District Court commented on what it must have seen as
a “moving target” by noting: “[i]n their brief in opposition to
the motion for summary judgment, plaintiffs now assert that
they are not disabled and were wrongly placed in special
education programs on the basis of race. This assertion that
they are not disabled is in stark contrast to the Third
Amended Complaint . . .” Blunt, 826 F.Supp.2d at 753.
However, for purposes of deciding the summary judgment
motion, the District Court assumed that the student plaintiffs
were “in fact not disabled.” Id. at 754 n.4.

                                 49
thus ignoring the discretion and subjectivity afforded the examiner
who is applying the procedures and interpreting the results of the
evaluations.

       As noted above, clearly the procedures were not
applied appropriately with respect to Plaintiffs. LMSD’s own
Assistant Director of Pupil Services testified that procedures
were not followed, including those for dictating which
students should be placed in special education classes. See
supra at 71-72. For instance, as noted above, LMSD
evaluated Q.G. as having a learning disability in the subject
of language arts, which is not even a disability category. J.A.
at 2318. This directly belies the Majority’s broad assertion
that as long as the procedures are neutral, the consequences
cannot, as a matter of law, be considered discriminatory.
Similar procedures and evaluative tools can always be applied
in patently discriminatory ways, and evidence of their
misapplication with respect to the Plaintiffs is certainly
evidence of discrimination and deliberate indifference. See
infra n. 16 at 34.

       It is, of course, possible to argue that the errors in
placement on this record are simply the result of the district’s
less than desirable and inartful method of selecting students
for special education classes. Mistakes can surely happen,
especially in such a complicated, subtle and intricate process
as identifying students who cannot handle regular academic
work in a classroom. However, LMSD had every opportunity
to come forward with evidence that numbers of White
students are also mistakenly placed in special education
classes and that could have negated the causal nexus of the
erroneous placement of these African-American plaintiffs. It
offered no such evidence.

       Even if it could be argued that the decision to forego
production of any such evidence results from political
considerations rather than absence of such proof (and nothing
on this record supports such rank speculation), the fact
remains that this record only contains evidence of African-
American students erroneously being labeled as “learning
disabled” and being denied the full benefits of a public
education. There is no evidence of this happening with White
students and the inference that Plaintiffs are entitled to should


                                 50
prevent the LMSD from getting an evidentiary bye.
Moreover, to the extent that innocent mistakes happen in
placement, it should be noted that, where the more
challenging curricula is concerned, all such mistakes seem to
happen in only one direction. There were no African-
American students in “high expectation,” college prep or
advanced placement classes in the school district during the
years the experts studied. Speculation about diagnostic error
is simply that—“speculation;” it should play no role in our
legal inquiry.

F.  There is Testimony that Teachers and School
Administrators Had Notice of These Allegations

        Plaintiffs have also put forward sufficient evidence of
deliberate indifference. They established that LMSD was
aware of the racial problems arising from the classroom
assignments and provision of resources, and it ignored
Plaintiffs’ requests to remedy the racial disparities. As noted
in the section on CBP’s standing above, Ms. Metzger, a
former special education teacher at LMSD, testified that as a
teacher she “was invited to and sat in on a portion of a
Concerned Black Parents conversation with some of the
school administrators.” J.A. at 1456. At this meeting, parents
and students raised concerns that “African-American
students, as a whole, as we have discussed, were not
performing at the same rate, not experiencing the same
success as other students; that [African American families in
the District] believed that [African American] students didn’t
feel welcome in the school; that [African American families
in the District] believed that at times, guidance counselors or
others, personnel, maybe didn’t afford the same consideration
when it came to the college planning process.” Id. (emphasis
added). As Metzger’s testimony makes clear, the “school
administrators” who attended this meeting along with her had
notice that African American families had complained that
they were not receiving the same education as their peers,
and, yet, nothing changed.

        In addition, as I discussed above, when the mother of
one of these plaintiffs objected to her daughter being
identified as having a learning disability, the school gave her
“pushback,” rather than undertaking an inquiry into the

                               51
appropriateness of her daughter’s placement in special
education. J.A. at 1167.

                    IV. CONCLUSION

We all recognize the difficulty of identifying students who are
best served by the kind of remediation that special education
classes are intended to provide. and that no process of
evaluation is perfect. However, this case is not about second-
guessing the placement of students in remedial classes. It is
not about frustrated hopes of parents or students. And,
despite the specter of the The Quota Boogeyman raised by the
Majority,27 it is not about how many African-American
students should be placed in a particular academic track.

       This case is about whether courts will allow plaintiffs
who have produced the kind of proof that I have discussed
above to survive summary judgment and have their day in
court to prove something as subjective and evasive as the
deliberate indifference that is tantamount to racial bias.

       When plaintiffs can produce the kind of evidence that
has been produced here, the law requires that their ultimate
claims of bias be determined by a fact finder, not by a court.
As Judge Baylson stated in Doe 1 v. Lower Merion Sch.
Dist.:“The Supreme Court has clarified that [d]etermining
whether invidious discriminatory purpose was a motivating
factor demands a sensitive inquiry into such circumstantial
and direct evidence of intent as may be available.” 689 F.
Supp. 2d at 755. (emphasis in original, internal quotation
marks omitted). That is sorely lacking here.

        I also note the laudable caution of Judge Baylson in
Doe 1, in explaining: “[this] Court is particularly reluctant to
grant summary judgment and to deny Plaintiffs the right to
trial in this case, which involves issues of public policy and
great concern to the community.” Id.


27
  See Majority Op. at 94 (“We certainly are not going to
require or even suggest that school districts use a quota
system in assigning students to special education classes [to
achieve proportionality].”).

                                52
        I therefore must respectfully disagree with my
colleagues’ belief that the District Court did not err in
concluding that no genuine dispute of material fact exists on
this record.




                              53
