                                                    NOT PRECEDENTIAL



            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                       ________

                           No.13-4624
                           _________

                   T.F., a minor by his parents;
             D.F. and T.S.F., and on their own behalf,

                                      Appellants

                                v.

           FOX CHAPEL AREA SCHOOL DISTRICT
                       ________

          On Appeal from the United States District Court
             for the Western District of Pennsylvania
                     (D.C. No. 2-12-cv-01666)
           District Judge: Honorable Arthur J. Schwab
                             _______

            Submitted Under Third Circuit LAR 34.1(a)
                       September 12, 2014

Before: RENDELL, GREENAWAY, JR. and SLOVITER Circuit Judges

              (Opinion Filed: September 22, 2014 )

                        _______________

                           OPINION
                        _______________
SLOVITER, Circuit Judge.


       This appeal was filed by T.F., a former student who resides in the Fox Chapel

Area School District (“Fox Chapel”), and his parents, T.S.F. (his mother) and D.F. (his

father). T.F. has a severe tree nut allergy that can cause anaphylaxis—a life-threatening

allergic reaction. T.F. and his parents (collectively “Appellants”) initiated this civil rights

action alleging disability discrimination against Fox Chapel. Specifically, Appellants

claim that Fox Chapel, a recipient of federal financial assistance, failed to provide a Free

Appropriate Public Education (“FAPE”) and discriminated against T.F. in violation of

Section 504 of the Rehabilitation Act of 1973, Chapter 15 of the Pennsylvania Code, and

the Pennsylvania Human Relations Act. Fox Chapel counters that, after approximately

four months of working to develop an appropriate service agreement known as a “504

Plan,” which was intended to outline the services and accommodations T.F. would

receive, T.F.’s parents unilaterally decided to remove T.F. from Fox Chapel.

       T.F.’s parents filed a request for an administrative Due Process Hearing on

February 2, 2011 with the Pennsylvania Department of Education (“Department”), Office

of Dispute Resolution. After four sessions, the Special Education Hearing Officer

determined on August 12, 2012 that Fox Chapel met its obligation to provide a FAPE to

T.F. On November 11, 2012, T.F. and his parents filed suit in the United States District

Court for the Western District of Pennsylvania seeking reversal of the Hearing Officer’s

decision. The parties cross-moved for summary judgment. The District Court denied




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T.F’s motion and granted Fox Chapel’s motion on all counts. Appellants filed a timely

appeal, which is before us for decision. For the following reasons, we affirm. 1

                                              I.

       In the fall of 2010, T.F. was five years old and scheduled to enroll at Fox Chapel’s

Elementary School. T.F.’s mother, T.S.F., had attended Fox Chapel’s kindergarten

orientation in the spring of 2010 and had discussed T.F.’s allergies with both the principal

and school nurse. Additionally, on May 10, 2010, Fox Chapel had adopted a

comprehensive district-wide food allergy policy. The food allergy policy encompassed

procedures for training staff in dealing with food allergies, including recognizing

symptoms and responding to possible emergencies. T.F.’s parents were not provided a

copy of the district’s food allergy policy until the first day of the administrative hearing

in this case.

       Prior to the start of the school year, T.F.’s parents requested a meeting with school

staff to develop a 504 Plan. At that meeting, which took place on June 7, 2010, T.S.F.

provided Fox Chapel with a letter from T.F.’s doctor outlining his medical needs. Based

on that information, Fox Chapel agreed that T.F. qualified for a 504 Plan because of his

food allergy.

       The original 504 Plan dated June 7, 2010 proposed by Fox Chapel included three

accommodations: (1) T.F. would not be provided food while in Fox Chapel’s care unless

1
  The District Court had federal question jurisdiction over alleged violations of Section
504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) pursuant to 28 U.S.C. § 1331.
The District Court had supplemental jurisdiction over the Pennsylvania state-law claims
pursuant to 29 U.S.C. § 1367. We have jurisdiction over this appeal from a final order of
the District Court under 28 U.S.C. § 1291.
                                              3
provided by his parents; (2) Fox Chapel would provide an emergency care plan to

teachers, cafeteria staff, and custodial staff; and (3) the school nurse or a parent would go

on T.F.’s field trips. On August 20, 2010, T.S.F. formally disapproved of the 504 Plan as

insufficiently detailed.

       A second 504 meeting was held on August 24, 2010. At the meeting, T.S.F.

provided Fox Chapel with a proposed 504 Plan that was nineteen pages long. Fox Chapel

rejected the Plan proposed by T.S.F. Fox Chapel’s Coordinator of Special Education, Dr.

Lonnie Carey (“Dr. Carey”) reasoned that some of the items in the 504 Plan proposed by

T.S.F. were standard procedures in the district, and, therefore, it was unnecessary to

reiterate such standard procedures in T.F.’s 504 Plan. A 504 Plan should be

understandable and not lengthy. The lengthy Plan proposed by T.S.F. would “make it

impossible for people to know what to do in an emergency because there would be too

much to read.” App. at 6. Instead, Fox Chapel proposed a second 504 Plan at this

August 24 meeting which included two new accommodations: (1) T.F. would sit at a tree-

nut-free table during lunch; and (2) T.F.’s parents would provide a “treat box” to T.F. to

celebrate special occasions. Additionally, the second proposed 504 Plan provided that, in

the event of an emergency, the school nurse should be called first, followed by 9-1-1,

T.F.’s doctor, and then T.F.’s parents. T.S.F. objected to this Plan as well because she

wanted T.F.’s teacher to carry and administer an EpiPen in case of an emergency, but

under the Plan, the nurse would be called to administer the EpiPen.

       Fox Chapel proposed a third 504 Plan on August 31, 2010, which included three

additional accommodations: (1) T.F. would be permitted to purchase a tree-nut-free lunch

                                              4
in the cafeteria as of September 13, 2010; (2) T.F.’s teacher would keep a tree-nut-free

snack to give to T.F. when other students were receiving snacks; and (3) Fox Chapel staff

were directed, in the event of an emergency, to follow the Food Allergy Action Plan for

T.F. The Food Allergy Action Plan detailed which of T.F.’s possible symptoms would

require administration of an EpiPen and which would require administration of an

antihistamine. T.F.’s parents did not agree to this third 504 Plan. Another meeting was

held on September 8, 2010, but no changes were made to the third 504 Plan at this

meeting. After this meeting, the third 504 Plan was faxed to T.F.’s physician, Dr.

MacGinnitie, who initialed it, indicating his approval.

       On September 17, 2010, T.F.’s parents contacted the Department’s Special

Education Advisor, Dr. Malcolm Conner (“Dr. Conner”) and alleged that no service

agreement had been developed by Fox Chapel for T.F.’s food allergy. Dr. Carey, Fox

Chapel’s Coordinator of Special Education, informed Dr. Conner about the meetings on

June 7, August 24, August 31, and September 8, 2010. Dr. Conner responded to T.F.’s

parents that the 504 team had met and that due process proceedings were available to

resolve disputes.

       On October 13, 2010, a fourth 504 Plan was proposed by Fox Chapel, which

added an additional accommodation requiring T.F.’s cafeteria table be cleaned with a

special cleaner that removes food allergens, but this Plan was never adopted.

       On October 18, 2010, T.F.’s parents filed a Due Process Complaint with the

Department’s Office for Dispute Resolution. On November 12, 2010, T.S.F. informed

the principal that T.F. would be withdrawing from the school. On November 15, 2010,

                                             5
the principal sent a letter to T.F.’s parents warning them that excessive absences could

lead to truancy proceedings, and on November 18, 2010, Fox Chapel filed a citation for

truancy. T.F.’s parents formally withdrew him from Fox Chapel on December 3, 2010

and enrolled him at Pennsylvania Cyber Charter School. On January 19, 2011, T.F.’s

counsel, at the request of T.F.’s parents, withdrew the Due Process Complaint, and in

April 2011, Fox Chapel withdrew the truancy citation. T.F. finished the rest of the 2010-

2011 school year at the charter school and has since been enrolled at Shady Side

Academy, a private school.

       Appellants filed a second Due Process Complaint on February 1, 2012. After four

hearings, the Hearing Officer found that Fox Chapel did not discriminate against T.F. or

deny him a FAPE. Appellants filed an appeal in the United States District Court for the

Western District of Pennsylvania on November 11, 2012. The parties submitted cross

motions for summary judgment. The District Court granted Fox Chapel’s motion for

summary judgment and denied Appellants’ motion. Appellants filed a timely Notice of

Appeal.

                                            II.

       We exercise plenary review of a district court’s grant of summary judgment,

applying the same standard as the district court. S.H. ex rel. Durrell v. Lower Merion

Sch. Dist., 729 F.3d 248, 256 (3d Cir. 2013). “A grant of summary judgment is

appropriate where the moving party has established ‘that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting

Fed. R. Civ. P. 56(a)). A material fact is one which “might affect the outcome of the suit

                                             6
under the governing law.” Id. We must “view the facts in the light most favorable to the

non-moving party and draw all reasonable inferences in that party’s favor.” Id.

       The parties dispute whether the District Court should have applied a de novo

standard of review or a modified de novo standard that gives deference to the factual

findings of the Hearing Officer. The District Court applied the de novo standard of

review which, from the Appellants’ view, is a more lenient standard as it gives no

deference to the Hearing Officer’s factual findings. We need not decide the issue of what

standard applies because the result is the same under either standard. The de novo

standard favors the Appellants, and therefore, we assume arguendo that the de novo

standard applies.

                                              III.

       Section 504 of the Rehabilitation Act of 1973 states, in relevant part, “[n]o

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). The statute defines “program or

activity” to include “local educational agenc[ies].” 29 U.S.C. § 794(b)(2)(B).

       Appellants argue that that Fox Chapel discriminated against T.F. on the basis of

his disability and failed to provide him with a FAPE. Appellants assert two principal

bases for their claim that T.F. was denied a FAPE: (1) that Fox Chapel failed to provide

T.F. with a 504 Plan that was substantively appropriate and individualized; and (2) that

Fox Chapel deprived Appellants of administrative enforcement procedures by failing to

                                               7
provide an adequate 504 Plan. Appellants contend that the District Court erred in

requiring them to prove intentional discrimination instead of merely a denial of a FAPE

in order to recover tuition reimbursement. They argue that even if they were required to

prove intentional discrimination, Fox Chapel’s actions rose to the level of deliberate

indifference, entitling them to compensatory damages. We find none of these arguments

persuasive.

                                             A.

       To establish a claim for denial of a FAPE, Appellants must demonstrate that T.F.:

“(1) has a disability; (2) was otherwise qualified to participate in a school program; and

(3) was denied the benefits of the program or was otherwise subject to discrimination

because of [his] disability.” S.H. ex rel. Durrell, 729 F.3d at 260 (quotation omitted).

The parties agree that the first two elements are satisfied, and the only element in dispute

is the third.

       To recover compensatory damages under Section 504, Appellants must establish

intentional discrimination. Id. at 262. Here, Appellants seek tuition reimbursement,

which the District Court viewed as a form of compensatory damages. Because the

District Court concluded that the higher, intentional-discrimination standard applied, it

did not evaluate whether T.F. was denied a FAPE without the requirement of proving

intentional discrimination.

       On appeal, in an effort to avoid the heightened burden of proof for compensatory

damages, Appellants contend that tuition reimbursement is an equitable remedy. We are

not persuaded by this argument. It is hard to imagine what would constitute

                                             8
compensatory damages in these circumstances if not tuition reimbursement. Appellants

have failed to identify any equitable relief sought by their complaint. As such, we agree

with the District Court’s application of the higher intentional-discrimination standard.

       We will nonetheless consider whether Appellants can prove a denial of a FAPE to

T.F. without requiring them to prove intentional discrimination. Appellants’ primary

arguments in support of their claims are that Fox Chapel failed to provide an

individualized 504 Plan for T.F. and that, by failing to include a number of

accommodations in the proposed 504 Plans, Fox Chapel deprived them of the benefit of

administrative enforcement procedures. We are not persuaded by these arguments.

       With regard to the alleged failure of Fox Chapel to provide an individualized 504

Plan, Appellants argue that Fox Chapel impermissibly relied upon a generic, district-wide

food allergy policy, which was insufficiently detailed to meet T.F.’s unique needs. The

record, viewed in the light most favorable to Appellants, does not support this contention.

The record reveals that Fox Chapel developed a 504 Plan prior to the start of school and

revised it on several occasions in response to T.S.F.’s objections. When faced with

T.S.F.’s assertions that multiple drafts of its proposed 504 Plans were inadequate, Fox

Chapel sent the third proposed 504 Plan to T.F.’s physician, who approved the

accommodations. Fox Chapel declined to reiterate the substance of the general food

allergy policy in its proposed 504 Plans for the simple reason that a 504 Plan related to

food allergies must be accessible and understandable in the event of an emergency.

Moreover, teachers and staff were trained to identify the symptoms of anaphylaxis and to

administer epinephrine. Against the backdrop of this training and the district-wide food

                                             9
allergy policy, the proposed 504 Plans, in an accessible manner, incorporated additional

accommodations specific to T.F. that were not already encompassed by the district-wide

policy and training. The failure of Fox Chapel to include each and every accommodation

and detail requested by T.S.F. does not amount to a denial of a FAPE. See Ridley Sch.

Dist. v. M.R., 680 F.3d 260, 282 (3d Cir. 2012) (stating that schools need only take

“reasonable steps to accommodate” and are “not required to grant the specific

accommodations requested by [p]arents”).

       Furthermore, Fox Chapel did not significantly impede parental participation in the

decision-making process. Fox Chapel began working with T.S.F. on developing a 504

Plan weeks before the school year started. And, it is undisputed that Fox Chapel

proposed four different 504 Plans and met with T.S.F. on multiple occasions to discuss

the proposed Plans and potential modifications.

       Appellants argue Fox Chapel’s failure to implement all of the accommodations

that they requested resulted in their inability to access procedural safeguards because, “in

the absence of a written agreement, parents cannot seek enforcement through either” the

Office of Civil Rights or the Department. Appellants’ Br. at 37-38 (citing 34 C.F.R. §

104 App. A; 22 Pa. Code §§ 15.7, 15.8). But Appellants overlook other procedural

safeguards that were available to them. The applicable Pennsylvania regulation states

that “[p]arents may file a written request for assistance with the Department if . . . [t]he

school district has failed to comply with the procedures in this chapter.” 22 Pa. Code §

15.8(a). If T.F.’s parents felt that they were improperly denied accommodations to which

T.F. was entitled, they had an administrative remedy. Notably, during the negotiations

                                              10
over T.F.’s 504 Plan, T.S.F. contacted Dr. Conner of the Department and claimed that no

service agreement had been adopted for T.F. Consistent with 22 Pa. Code § 15.8(b), Dr.

Conner investigated and contacted Fox Chapel about T.S.F.’s complaints. Dr. Carey

informed Dr. Conner in response that the 504 team had meet on four occasions, had

proposed multiple 504 Plans, and had provided T.F.’s parents with procedural safeguards

advising them of their due process rights. And, in accord with 22 Pa. Code § 15.8(b), Dr.

Conner responded to T.F.’s parents, detailing Fox Chapel’s efforts and offering an

informal hearing or mediation to resolve the dispute. In light of the background of this

case and the procedural remedies available to Appellants, we find no merit in Appellants’

contentions that Fox Chapel’s failure to adopt all of their requested accommodations

resulted in their inability to access procedural safeguards.

       Viewing the record in the light most favorable to Appellants, we conclude that

Appellants cannot show that T.F. was “denied the benefits of the program or was

otherwise subject to discrimination because of [his] disability.” See S.H. ex rel. Durrell,

729 F.3d at 260 (quotation omitted).

                                             B.

       While we find that Appellants cannot establish a denial of a FAPE even without

consideration of the intentional-discrimination standard, we agree with the District Court

that the higher standard of proof for intentional discrimination applies here because

Appellants seek compensatory damages in the form of tuition reimbursement. The

District Court correctly concluded that Appellants cannot, as a matter of law, carry their

burden of proving intentional discrimination by Fox Chapel. This court held in S.H. ex

                                             11
rel. Durrell that in order to prove intentional discrimination, a party need only establish

deliberate indifference. Id. at 262-65. To establish deliberate indifference, “Appellants

must present evidence that shows both: (1) knowledge that a federally protected right is

substantially likely to be violated . . . , and (2) failure to act despite that knowledge.” Id.

at 265.

          The undisputed evidence here establishes that Fox Chapel accepted T.F.’s food

allergy and worked diligently with his parents to ensure his meaningful participation in

educational activities and meaningful access to educational benefits. Fox Chapel met

with T.F.’s parents on multiple occasions and offered four proposed 504 Plans. Fox

Chapel made numerous revisions to its proposed 504 Plans in an attempt to address the

concerns of T.F.’s parents. Fox Chapel contacted T.F.’s treating physician to ensure that

their proposed 504 Plan would satisfy T.F.’s needs, and T.F.’s physician approved of the

Plan. The fact that Fox Chapel did not include every accommodation that T.F.’s parents

requested does not constitute a failure to act. And, as previously stated, many of the

accommodations sought by T.F.’s parents were covered by the district-wide food allergy

policy and by the training for teachers and staff related to identifying anaphylaxis and

administering epinephrine.

          In this context, our role is not to determine whether Fox Chapel could have done a

“better” job of accommodating T.F.’s food allergy. The issue before the court is whether

Fox Chapel was deliberately indifferent to T.F.’s rights, such that T.F. “was denied the

benefits of the program or was otherwise subject to discrimination because of [his]

disability.” Id. at 260. The undisputed facts before us, viewed in the light most favorable

                                              12
to Appellants, do not support a finding that Fox Chapel acted with deliberate indifference

toward T.F.

                                           IV.

      For the aforementioned reasons, we affirm the District Court’s grant of summary

judgment to Fox Chapel on all counts.




                                            13
