Of the three school cases the U.S. Supreme Court is hearing this month, two have drawn widespread attention for their potential to significantly reshape public education.
One is about whether parents with religious objections may opt their children out of LGBTQ+ storybooks. Another is about whether public funding may be provided to a religious charter school.
The third case has received far less attention, but is being watched just as closely by educators. A.J.T. v. Osseo Area Schools, scheduled for arguments April 28, centers on whether students with disabilities must satisfy a particularly stringent legal standard to prove they faced discrimination from their schools under two federal disability-rights laws.
In essence, the Supreme Court could make it easier for students and their parents to sue for monetary damages when alleging discrimination in those cases—a potentially expensive proposition for schools that are already underfunded for special education.
“The issue in the case is really important to schools,” said Sonja H. Trainor, the executive director of the National School Attorneys Association.
The case involves Minnesota student Ava Tharpe, who has a rare and severe form of epilepsy known as Lennox-Gastaut Syndrome. The condition causes near-daily seizures, especially in the mornings and evenings. As a result, Tharpe could not safely attend school before noon. Her previous school district in Kentucky accommodated this need with a noon to 6 p.m. school day, sometimes supplemented with at-home instruction.
In 2015, when Tharpe was 10, she and her parents moved to the Minneapolis area, for her father Aaron Tharpe’s new job as a corporate attorney. The Tharpes chose the suburban Osseo Area school district after their initial discussions with officials led them to believe that the district would offer similar accommodations for their daughter. But after their daughter enrolled, the district told the family that it could not offer the same accommodations.
“Even though we shared her education plan before moving here and did it multiple times before her first day of school, we didn’t find out until 24 hours before that they were not going to adopt it, so it was frustrating,” Aaron Tharpe said in an interview.
During her first three years in the 18,600-student Osseo district, Tharpe received only 4.25 hours of instruction per day, about two-thirds of the time other students without disabilities received, according to court filings.
The district argued, at various times, that state law did not require a modified school schedule, that home instruction might be too restrictive, and that providing longer hours could set a precedent they were unwilling to establish. At one point, the district even proposed cutting her daily instruction to just three hours.
The district didn’t respond to a request for comment. But in its Supreme Court brief, it argues that Tharpe received more total instructional minutes per day than her Kentucky individualized education program (IEP) required, and that she benefited from “very individualized, intense services,” including the hiring of an additional paraprofessional to support her.
“The district has always been focused on a combination of Ava’s needs, staff availability, and effectively utilizing scarce resources shared among all students, including others with disabilities,” the district says in its brief.
The district also cited “concerns about the precedent granting Ava’s request would set” and pointed to a “lack of data demonstrating that extending the school day would be beneficial for Ava.”
Family has success in IDEA proceedings but a roadblock in separate lawsuit
The Tharpes filed a complaint with the Minnesota Department of Education under the Individuals with Disabilities Education Act (IDEA), the main federal special education law, and the basis for Tharpe’s IEP. An administrative law judge found that the district’s refusal to extend Tharpe’s school day was motivated in part by a desire to “to safeguard the ordinary end-of-the-workday departure times for its faculty and staff.”
The judge ordered the Osseo district to revise Tharpe’s IEP to 5.75 hours of instruction per day, including early evening hours. Though this was still less than other students received, it matched to what she had received in Kentucky. (The district appealed the state administrative ruling in federal court, but lost.)
While the decision resolved Tharpe’s IDEA complaint, the family believed the issue went deeper. They argued that their daughter had faced discrimination and sued under Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990— federal laws that, unlike IDEA, permit lawsuits for certain forms of money damages.
The Tharpes sought a permanent injunction guaranteeing their daughter a full school day, and damages to compensate her for years of alleged mistreatment, and the family’s costs of hiring specialists to assist her with routine tasks.
A federal district judge ruled against the Tharpes’ discrimination claims, citing Monahan v. Nebraska, a 1982 precedent of the U.S. Court of Appeals for the 8th Circuit, in St. Louis—which requires students to prove the school district had acted with “bad faith or gross misjudgment.” That’s a significantly higher burden of proof than the negligence or deliberate indifference standards typically applied under the two federal disability laws.
Four federal circuits have adopted the higher standard, for school settings, while two others require the easier liability standards in the educational context.
When the Tharpes appealed, a panel of the 8th Circuit acknowledged its hands were tied by the Monahan precedent, but also criticized the ruling, saying Monahan was not anchored in the text of the Rehabilitation Act or the ADA. A separate 8th Circuit panel in another special education case said Monahan set “an impossibly high bar” for students to prevail.
Roman Martinez, a Washington lawyer arguing for the Tharpes, said in an interview that the 8th Circuit has created a special rule under the Rehabilitation Act and the ADA for a subset of plaintiffs—children with disabilities in the educational context.
“Our basic pitch is that that can’t possibly be right,” he said. “Children with disabilities in the educational context are some of the most vulnerable victims of discrimination. And it makes no sense to interpret the law to apply a uniquely stringent standard to them that’s harder to satisfy than everyone else suing under the exact same laws.”
Martinez has won two other special education cases representing or arguing in support of students and their parents in the Supreme Court in recent years. In 2023, the court ruled in Luna Perez v. Sturgis Public Schools that students and parents can sue under the ADA without exhausting IDEA procedures if they seek remedies not available under IDEA, such as damages.
In 2017, the high court ruled in Fry v. Napoleon Community Schools, that a student or family suing a district don’t always need to exhaust IDEA procedures if the core issue is about access under the ADA, rather than education services.
Martinez also points to a 1984 amendment to IDEA clarifying that it does not limit remedies under other federal laws.
“In other words, Congress declared that the IDEA does not ‘restrict or limit’ the ability of children with disabilities to obtain relief under the ADA or Rehabilitation Act,” Martinez says in the Tharpes’ merits brief.
The district’s defense
Lisa S. Blatt, a Washington lawyer representing the Osseo school district, argues in her high court brief that the Rehabilitation Act and the ADA require proof of intentional discrimination, and the Monahan standard is a “straightforward interpretation of the statutory text, not a school-specific rule rooted in policy concerns.”
“The statutes do not impose liability for nondiscriminatory, good-faith denials of requested accommodations,” Blatt says in the brief.
The school district and its officials “take extremely seriously their role as educators in providing the best education possible to every student,” Blatt adds. “But Congress did not provide for federal discrimination liability, including for money damages, on countless good-faith decisions by every public school in America.”
Trainor, of the National School Attorneys Association, submitted a friend-of-the-court brief supporting the school district, on behalf of several education groups, including AASA, the School Superintendents’ Association, and the Council of Administrators of Special Education.
Those groups “urge the court to consider the education community as a whole—students, parents, teachers, school boards, administrators, community members, and taxpayers—all of whom desire to see educational resources devoted to education,” the brief says.
Trainor said in an interview that the court’s other recent special education decisions have made it easier for families to bring lawsuits against districts under the Rehabilitation Act and the ADA without having to exhaust all proceedings under the IDEA.
“Does it amount to discrimination because the school day looks slightly different for this child?” Trainor said. “I wouldn’t want to speculate as to whether that is or isn’t discrimination. The question is should educators be held responsible for money damages because they designed this program especially for her given the resources they have. And the parents disagree.”
The present and future of Ava Tharpe
Now 19, Ava Tharpe still attends high school in the Osseo district. She communicates using eye-gaze technology with a speech-generating feature, and a form of sign language.
Though her IDEA complaint led to additional learning time, her parents remain unsatisfied.
“She tries really hard to communicate and I think that’s part of our frustration,” said Gina Tharpe, her mother. “We feel like she could have been so much further along, if we had had the proper schooling for her.”
Aaron Tharpe said he found it frustrating to arrive to pick up Ava at the end of the school day and see students, staff members, and buses still around for a wide range of school activities.
“But when it comes to a child who has disabilities like Ava, the district would just refuse to have any conversation about any educational activities that would go beyond the ringing of the bell,” he said.
Despite the challenges, the Tharpes describe their daughter as eager to learn.
“She likes just about everything in school,” Gina Tharpe said, adding that her daughter “loves interacting with her two teachers and the other kids.”
Aides sometimes send photos of Tharpe in her math or gym class to her mother.
“I can tell when she’s had a good day and she’s just gotten a lot out of the day,” Gina Tharpe said. “Sometimes days look a little different for her, if it’s been a heavy seizure morning. We always have a motto that we shoot for the day, no matter what. Some days aren’t as good, and some days are fantastic.”
