A new documentary is shining fresh attention on a major special education ruling the U.S. Supreme Court decided last term, spotlighting the lawyer who not only won that case but has played a role in several landmark victories for students with disabilities in recent years.
“Supreme Advocacy,” a 40-minute film from Bloomberg Law, pulls back the curtain on how a single case moves through the Supreme Court—from the time it is taken up by the justices through legal briefs, oral arguments, and then a decision. (Released Dec. 2, it is available for free on YouTube.)
The filmmakers chose as their subject Roman Martinez, a partner at the firm Latham & Watkins and a rising star of elite appellate specialists who primarily argue before the nation’s highest court.
“It’s kind of like a sporting event—there will be some adrenaline rushing. You know, it’s game time,” Martinez says in the film about gearing up to argue before the nation’s highest court.
Martinez clerked for Chief Justice John G. Roberts Jr. and was a career, meaning nonpolitical, assistant in the U.S. solicitor general’s office. He now takes on a wide range of high-profile matters, such as successfully helping persuade the court two years ago to overrule a major 1984 precedent requiring federal courts to defer to reasonable agency interpretations of federal statutes.
Just this month, he was tapped by the court to defend a lower-court judgment in a major campaign-finance case after the Trump administration decided it would not defend the federal restriction on national political party spending in coordination with candidates. (A decision is pending.)
In other words, Martinez does not specialize in special education cases, at least not in the way many lawyers work in the trenches of students’ individualized education program meetings, state administrative proceedings, and lawsuits in lower federal courts.
But he has been involved in four special education cases before the Supreme Court, each with broad implications for public schools and students’ rights.
While in the solicitor general’s office, Martinez worked on Fry v. Napoleon Community Schools, supporting a student with cerebral palsy whose school district denied her the use of a service dog. The court in 2017 ruled for the student on a somewhat technical question—that students did not have to exhaust administrative proceedings under the federal Individuals with Disabilities Education Act when the essence of their legal claim is based on another federal disability law.
That same year, Martinez helped support a student with autism in Endrew F. v. Douglas County School District, in which the court ruled that schools must provide more than a minimal education program to students in special education.
As a private lawyer, Martinez successfully argued in Luna Perez v. Sturgis Public Schools for a deaf student who alleged that his district failed to provide him adequate sign-language assistance, with the high court ruling that IDEA procedural requirements did not bar the student’s ADA damages suit.
And last spring, Martinez won again, in A.J.T. v. Osseo Area Schools, in which the court overturned a lower-court decision that had required students with disabilities to meet a more stringent standard of liability when suing their schools under the ADA or the Rehabilitation Act of 1973.
“All four of these cases involve children with disabilities who are having trouble in schools, not getting the services and accommodations that they were entitled to,” Martinez said at a Dec. 1 panel discussion after a screening of “Supreme Advocacy” in Washington.
Martinez said his work on the Fry and Endrew F. cases while in the solicitor general’s office “introduced me to these issues and also to a lot of the lawyers who are repeat players in this disability-law space. So when I … came back to Latham in 2017, this was an area that I wanted to kind of find opportunities to keep working in.”
A fight over accommodations for a severe disability
For the documentary, the filmmakers at Bloomberg Law were interested in highlighting the appellate process before the high court.
Andrew Satter, the director, revealed at the screening that they had approached other top Supreme Court advocates “and never heard back.” Martinez, with a smile, acted mildly hurt at not being their first choice.
Just about the time the filmmakers approached him, Martinez had the appeal pending in the A.J.T. case, which involved Minnesota student Ava Tharpe. She has a severe form of epilepsy that causes morning seizures. Her parents sought accommodations from her Minnesota school district that would include a later school day, but the district resisted, offering a shorter instructional day than what Ava had received in her IEP in another school district.
“As time went on, she began to lose skills,” her father, Aaron Tharpe, says in the film. (Education Week featured the Tharpes’ case last spring.)
A federal appeals court ruled for the school district after applying a particularly stringent standard of proof, requiring students to demonstrate that school officials acted with “bad faith or gross misjudgment” before they could prevail in a case for damages under the ADA or the Rehabilitation Act.
The filmmakers’ cameras were rolling this past January when Martinez learned, on his computer, that the Supreme Court had granted review of the family’s appeal and would decide whether that higher bar should become the law of the land.
The rest of the film then focuses on Martinez and his law firm colleagues as they write merits briefs, engage in moot court preparation sessions, and otherwise gear up for oral arguments. In one scene, Martinez’s own school-age children press their father on some of his arguments at the dinner table.
The film briefly highlights an explosive exchange when the lawyer for the school district, at oral argument last April, accused Martinez of misrepresenting her position. (Since there are no cameras in the courtroom, there is no video of that, just the oral argument audio.)
“There was a lot of heat at the argument,” Martinez says in the film. “The temperature was raised a bit more than usually is the case in the Supreme Court.”
Court rules unanimously against higher standard of proof for student-disability claims
On June 12, the cameras were again rolling as Martinez checked his computer on one of the Supreme Court’s late-term decision days.
“So, going to the Supreme Court website here, doing a little refreshing,” he says. The decision in A.J.T. was the last of six opinions announced by the court that day.
“I think we won,” Martinez says as he skims the opinion. “This is very exciting.”
The chief justice, writing for a unanimous court, said that ADA and Rehabilitation Act claims based on educational services “should be subject to the same standards that apply in other disability discrimination contexts” and not a “distinct, more demanding analysis.”
“That our decision is narrow does not diminish its import for A.J.T. and a great many children with disabilities and their parents,” Roberts added. “Together they face daunting challenges on a daily basis. We hold today that those challenges do not include having to satisfy a more stringent standard of proof than other plaintiffs to establish discrimination” under the two federal laws.
Martinez is soon on a Zoom call to celebrate the victory with his fellow lawyers and the Tharpes.
Major education groups had supported the Osseo school district in the case, arguing in a friend-of-the-court brief that the higher standard of proof for ADA and Rehabilitation Act claims related to the free, appropriate public education, of a student with a disability under the IDEA was a defensible reading of the text of those discrimination statutes.
Perry A. Zirkel, an emeritus professor of law and education at Lehigh University and a leading academic expert on special education law, observed soon after the decision that it would likely lead to more claims by special education students for damages under the ADA and the Rehabilitation Act. He also noted that the higher “bad faith or gross misjudgment” standard was now removed in the four other federal appeals court circuits that had recognized it, besides the 8th Circuit.
Sonja H. Trainor, the executive director of the National School Attorneys Association, said in an interview that it is a bit early still to see the effects of the A.J.T. decision, though schools are feeling the impact of some of the other recent high court decisions in favor of special education students.
“One thing we’re seeing for several years now, probably since Perez, is the savvy parent advocates know that now they can file Section 504 lawsuits at the same time they file an IDEA due-process claim” because “they can get into federal court earlier if they just do this separate 504 case,” said Trainor, who helped write the brief of her group along with AASA, the School Superintendents Association and other education groups.
The overall trend of decisions against school districts leads her to wonder whether “the situation is improving for schools or for families. I think this adversarial system is just deeply entrenched and painful for everyone,” she said. “And [the A.J.T. decision] didn’t do us any favors because it’s likely to encourage even more litigation.”
A settlement in Ava Tharpe’s case
But even under the easier-to-prove deliberate indifference standard, it can be difficult for students to win discrimination cases under the ADA or the Rehabilitation Act.
Since the A.J.T. decision, at least two federal district courts that were considering similar student-disability claims based on the higher standard ordered supplemental briefing based on the Supreme Court’s decision. In each of those cases, the courts ruled for school districts under a deliberate indifference standard.
In Ava Tharpe’s case, however, the lower courts will not be reviewing the record under the new standard. Martinez said at the documentary screening that the Osseo school district and the Tharpe family had settled the lawsuit this fall
The terms were not released, but Martinez said, “The school district has really come forward, and they’ve sort of gotten on board and gotten in the same side of the table with the family. And they’re giving Ava the services that she’s entitled to.”
The district has begun including Ava in school field trips and some limited extracurricular activities “that she was never getting access to before,” he added. “So the family was super upbeat about the sort of change in attitude and the change in her situation on the ground after this case.”
Kay Villella, a spokeswoman for the 21,000-student Osseo district, said via email that she could not discuss the specifics of the settlement due to privacy concerns, but that “Osseo Area Schools will continue to diligently focus on educating all of its students and providing needed services for every scholar’s learning needs.”
Martinez said, “I hope that people who see the film sort of see the judicial system working, especially people who are not lawyers, and they get an appreciation for how the system can work and how it can work right.”
