The U.S. Supreme Court on Monday appeared likely to rule in favor of a Minnesota student with a severe form of epilepsy by tossing out a federal appeals court standard that makes it more difficult for families to prevail against school districts under two key federal disability-discrimination laws.
The main question after nearly 90 minutes of an often technical but sometimes fiery oral argument in A.J.T. v. Osseo Area Schools was whether the victory for the student would be narrow in scope or the justices would use the case to more clearly define the liability standard for families and schools nationwide under the two laws—the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990.
In the school context, those laws protect access to education for students with disabilities, including some students who are not receiving special education services under the Individuals with Disabilities Education Act.
The case before the court involves Ava Tharpe, a 19-year-old student in the Osseo district who has Lennox-Gastaut Syndrome, a severe form of epilepsy that causes near-daily seizures, especially in the mornings and evenings.
Because Tharpe cannot attend school before noon, her parents sought a school day that would extend beyond the traditional late afternoon and other accommodations. The 18,600-student Osseo district resisted those requests, but the Tharpes eventually won additional learning time and other remedies through an IDEA administrative proceeding. Now, they are seeking compensatory damages from the district under the Rehabilitation Act and the ADA.
“Think about Ava, who desperately needs every precious hour of school so she can learn to communicate with her parents,” Roman Martinez, the Tharpes’ lawyer, told the justices.
Arguing against a ‘breathtakingly broad rule’
Tharpe’s mother, Gina Tharpe, was in the courtroom, while the student and her father, Aaron Tharpe, listened from elsewhere in the building because the 10 a.m. argument was at a time when Tharpe was subject to her seizures.
Martinez asked the court to overturn a federal appeals court decision that the Osseo district had not acted with “bad faith or gross misjudgment” in its treatment of Tharpe.
The U.S. Court of Appeals for the 8th Circuit, in St. Louis, applied its own 1982 precedent, Monahan v. Nebraska, which set that standard for disability discrimination in the school context. It’s a significantly higher burden of liability than the negligence or deliberate indifference standards typically applied under the Rehabilitation Act and the ADA.
“It’s wrong to impose any sort of uniquely stringent test on children facing discrimination at school,” Martinez said during the argument.
He further argued that while the school district had defended a “two-tier” standard that made it harder for students to win damages under the two federal laws, it had shifted its viewpoint once the Supreme Court granted review and was now arguing to impose the higher liability standard on anyone suing under the Rehabilitation Act and ADA.
“Now, they say that the statutes apply a bad-faith or gross-misjudgment test to all plaintiffs, not just schoolchildren,” Martinez said. “The district’s new theory [would] revolutionize disability law, stripping protections from vulnerable victims and gutting the reasonable accommodations needed for equal opportunity.”
Nicole F. Reaves, an assistant to the U.S. solicitor general, argued in support of Tharpe and said the school district was asking the court to adopt a “breathtakingly broad rule” requiring every plaintiff in a Rehabilitation Act or ADA suit to prove an “intent to discriminate.”
The court should reject the school district’s theory and “merely hold that students are not required to satisfy heightened intent standards in the school context,” Reaves said.
School district’s lawyer says its efforts were in good faith
Lisa S. Blatt, the lawyer representing the district, said that reversing the 1982 Monahan standard—which four other federal appellate courts have adopted while others use a less stringent standard—“would expose 46,000 public schools to liability when, for 40 years, they have trained teachers, allocated budgets, and obtained insurance all in reliance on Monahan. Every good-faith disagreement would risk liability or even the nuclear option, the loss of federal funding.”
The district “cares deeply about Ava and gave her more [services] than any other student even before this litigation started,” Blatt said, alluding to Ava Tharpe’s IDEA individualized education program that provided more total hours than she had received in a previous school district.
“Such good-faith efforts should not support discrimination liability,” she said.
Blatt is an experienced Supreme Court specialist whose aggressive argument style is usually well received by the justices. But on Monday, she got into some trouble.
She said she had an “out-of-body experience” listening to Martinez and Reaves discuss the school district’s legal arguments and that some of their characterizations amounted to a “lie.”
Justice Neil M. Gorsuch questioned whether Blatt was accusing the other lawyers of lying, and when Blatt said yes, he said, “I think you should be more careful with your words, Ms. Blatt.”
He later said, “I confess I’m still troubled by your suggestion that your friends on the other side have lied. … I’d ask you to reconsider that phrase.”
He read from the school district’s earlier brief, which he suggested was clearly “arguing for a special rule [on the liability standard] in the educational context.”
Blatt continued to push back, but she withdrew her characterization of the other lawyers as “lying.”
No clear sense that court is ready to set a definitive standard
Other justices’ questions tended to focus on quite technical aspects of liability standards, but the overall tone seemed to favor some form of decision for Tharpe.
“I don’t know where the bad faith [standard] comes from,” Justice Sonia Sotomayor told Blatt.
Justice Amy Coney Barrett voiced a concern expressed by several justices that the case may not have fully teed up and briefed the broader question of precisely what liability standard should be adopted for the two federal laws. She suggested that if the court decided the case in the student’s favor, Tharpe’s case would return to a lower court for the application of a standard presumably less stringent than “bad faith or gross misjudgment.”
“Then it can follow our traditional way of letting it percolate up, and then we can address it when we have more information,” Barrett said.
Blatt later said, “If you’re going to rule against us, at least wipe the slate clean” and decide on a clear standard.
“You’re in charge, so you can say: Intent to discriminate is the standard,” Blatt said. The Monahan standard said simply that schools may have denied an educational accommodation based on “budgets” or a disagreement over whether it would be effective.
“And the [appellate] court in Monahan said, you need to show discriminatory intent,” she said.
Blatt said that if the court adopts the deliberate-indifference standard urged by Reaves, the assistant to the solicitor general, then it should be “as high as possible” because “what the school districts are worried about is … you have good-faith disagreements in all [these cases].”
“I mean, these are really tough cases,” she said.
A decision in this tough case is expected by late June or early July.
