Section 504 Child Find Requires Reasonable Notice of an Identifiable Disability, Not Merely Uneven Academic or Behavioral Struggles

Introduction

In B. M. v. Upper Darby School District, the Third Circuit considered whether the Upper Darby School District violated its “Child Find” duty under Section 504 of the Rehabilitation Act by failing to identify student B.S.M. (“Brooklyn”) as disabled earlier than fourth grade.

Brooklyn had experienced academic, social, and emotional difficulties beginning in kindergarten. Her mother argued that these difficulties should have alerted the School District that Brooklyn qualified for protections and accommodations under Section 504 before the District eventually created a Section 504 plan in January 2021.

The central issue was whether the District had enough information, before fourth grade, to reasonably suspect that Brooklyn had a disability substantially limiting a major life activity.

Summary of the Opinion

The Third Circuit affirmed judgment for the Upper Darby School District. The Court held that Brooklyn did not prove, by a preponderance of the evidence, that the School District violated its Section 504 Child Find obligation.

The Court emphasized that Section 504 does not require schools to evaluate every struggling student or to identify a disability at the earliest possible moment. Rather, a school district’s duty is triggered when it reasonably suspects, based on what it knows at the time, that a student has a qualifying disability.

Here, Brooklyn’s academic performance was inconsistent rather than uniformly deficient, and her social and emotional struggles were not tied to any known disability before fourth grade. Her second-grade depression diagnosis was not shown to have been communicated to the School District. Once the District learned of her later diagnosis and needs, it conducted an evaluation and implemented a Section 504 plan.

Analysis

Precedents Cited

B.S.M. v. Upper Darby Sch. Dist., 103 F.4th 956

This prior Third Circuit decision in the same litigation shaped the remand issue. In that earlier appeal, the Court held that the District Court erred by treating Brooklyn’s Section 504 claim as effectively subsumed within her unsuccessful IDEA claim. The Third Circuit instructed the District Court to separately decide when the School District was put on notice of Brooklyn’s emotional struggles such that it should reasonably have suspected a Section 504 disability.

In the present appeal, the Court applied that instruction and reviewed the District Court’s factual finding that the School District lacked reasonable notice before fourth grade.

B.S.M. v. Upper Darby Sch. Dist., No. 21-5164, 2025 WL 1311909

This was the District Court’s post-remand decision. The District Court concluded that Upper Darby did not have reason to believe Brooklyn qualified as disabled under Section 504 before fourth grade. The Third Circuit affirmed that conclusion, finding no clear error in the District Court’s factual findings.

D.K. v. Abington Sch. Dist., 696 F.3d 233

The Third Circuit relied heavily on this case for the governing Child Find principles. D.K. v. Abington Sch. Dist. explains that schools do not violate Child Find simply because they fail to identify a student’s disability at the earliest possible moment. It also states that schools are not required to evaluate every student who shows below-average capabilities, especially young students who may develop at different rates.

This precedent supported the Court’s conclusion that Brooklyn’s mixed academic record and behavioral concerns did not automatically trigger a Section 504 evaluation.

P.P. ex rel. Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727

This case was cited for the core Section 504 Child Find standard: school districts must identify students who are “reasonably suspected” of having a disability. The present Court applied that standard and found the suspicion threshold was not met before fourth grade.

Ridley Sch. Dist. v. M.R., 680 F.3d 260

Ridley Sch. Dist. v. M.R. reinforces that reasonableness must be judged based on what the school knew at the time. The Court used this principle to reject hindsight-based reasoning. Brooklyn’s later diagnosis could not establish that the District should have known earlier, unless earlier facts reasonably pointed to a qualifying disability.

Legal Reasoning

The Court began with the definition of disability under Section 504. A student qualifies if she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment.

Brooklyn argued that the District Court improperly focused on whether she had a psychological disorder, instead of considering the broader Section 504 definition of disability. The Third Circuit accepted the general premise that Section 504 disabilities are not limited to psychological disorders. However, it found that Brooklyn failed to identify any qualifying disability, apart from her later DMDD diagnosis and the earlier depression diagnosis that was not shown to have been disclosed to the District.

The Court also rejected the argument that academic and behavioral struggles alone were enough. Brooklyn’s academic performance varied across subjects and assessments. She sometimes performed poorly but sometimes performed at or above expected levels. Likewise, her emotional struggles—such as becoming upset easily or struggling with self-control—did not necessarily indicate a disability.

Because the School District did not know of the second-grade depression diagnosis, and because the observed signs did not clearly point to a specific qualifying disability, the District had no legal obligation to conduct a Section 504 evaluation before fourth grade.

Impact

Although the opinion is marked “Not Precedential” and therefore does not bind future Third Circuit panels, it provides useful guidance for Section 504 Child Find disputes.

  • For parents: The decision underscores the importance of clearly communicating outside diagnoses and concerns to the school district, preferably in writing.
  • For school districts: The opinion confirms that districts are judged based on the information reasonably available to them at the time, not based on later diagnoses.
  • For future litigation: Claimants must connect observable academic, emotional, or behavioral struggles to a specific qualifying disability or substantial limitation. Generalized difficulties may not be enough.

Complex Concepts Simplified

Section 504

Section 504 is a federal civil rights law that prohibits disability discrimination by programs receiving federal funds, including public schools. In schools, it often requires accommodations for students whose disabilities substantially limit major life activities such as learning, concentrating, reading, or emotional regulation.

Child Find

“Child Find” is the duty of a school district to identify students who may have disabilities and may need services or accommodations. But the duty is not limitless. It is triggered when the school has enough information to reasonably suspect a qualifying disability.

IEP vs. Section 504 Plan

An IEP is provided under the IDEA and usually involves specialized instruction. A Section 504 plan provides accommodations or supports to prevent disability-based discrimination, even when the student does not qualify for special education under the IDEA.

Clear Error Review

The Third Circuit reviewed the District Court’s factual findings for “clear error.” This is a deferential standard. The appellate court will not overturn factual findings unless it has a firm conviction that a mistake was made.

Conclusion

The Third Circuit affirmed that a school district’s Section 504 Child Find duty depends on reasonable suspicion of a qualifying disability based on information known at the time. Uneven academic performance, emotional distress, and classroom behavioral concerns do not automatically require a Section 504 evaluation unless they reasonably indicate a disability that substantially limits a major life activity.

The key takeaway is practical and doctrinal: Section 504 is broad, but Child Find liability still requires notice. Schools must act reasonably when signs of disability are apparent, but they are not required to diagnose every struggling student in the absence of information pointing to a qualifying impairment.