WASHINGTON − For years, Gina and Aaron Tharpe argued that a local school district hadn’t done enough to accommodate their daughter, who has a rare form of epilepsy and severe cognitive impairment. An administrative judge in 2021 agreed, saying the reasons the Minnesota school provided for not offering Ava a full day of class under the Individuals with Disabilities Education Act were “not credible.”
The Tharpes, however, also sought help under two other federal laws that protect people with disabilities from discrimination, hoping to get a stronger court order as well as compensation for having hired specialists to help with Ava’s needs.
This time, however, the courts sided with the Osseo Area School District, saying the district hadn’t demonstrated “bad faith or gross misjudgment” during the dispute.
That’s a tougher standard for suing under the Americans with Disabilities Act and under Section 504 of the Rehabilitation Act than the courts apply in cases that don’t involve a school’s alleged failure to meet its obligations under the IDEA.
The Supreme Court on Monday sounded likely to side with the Tharpes in overturning that decision.
That’s in part because lawyers for the school district agreed that that there’s not a two-tiered system.
But Lisa Blatt, who represented the school district, pushed the court to apply a tougher standard for all cases rather than lowering the bar for cases like Ava’s.
That generated pushback not just from the Tharpe’s attorney, but also from the justices who had not thought, when they agreed to take the case, that the school was making that consequential an argument.
“It strikes me as a pretty big deal,” Justice Amy Coney Barrett said of the standard the school district is asking for, which she said would be a “sea change” for disability discrimination cases.
Justice Sonia Sotomayor questioned whether the school district had violated the court’s procedural rules.
“It would’ve been nice to have known that we were biting off that big a chunk,” she said.
Roman Martinez, an attorney for the Tharpes, told the justices disability rights groups who would have “rung a five-alarm fire” if they had thought that’s what the school district was asking for.
The case was already being closely watched by disability rights groups who say the courts have created a “nearly insurmountable barrier” for help sought by schoolchildren and their families.
But school officials across the country worry that making lawsuits for damages easier to win will create a more adversarial relationship between parents and schools in the difficult negotiations needed to balance a student’s needs with a school’s limited resources.
Litigation will also shrink those resources, lawyers for a national association of school superintendents and other educational groups told the Supreme Court in urging the justices to “proceed with caution.”
The dispute started when the Tharpes moved in 2015 to a Twins City suburb from Tennessee where they said Ava’s needs had been accommodated.
Her seizures are so frequent in the morning that she can’t attend school before noon. Ava’s Tennessee school shifted her school day so it started in the afternoon and ended with evening instruction at home.
But the Tharpes say her Minnesota school refused to provide the same adjustment. As a result, she received only 4.25 hours of instruction a day, just 65% of what non-disabled students received.
And as Ava prepared to enter middle school, that time was going to shrink further.
The Tharpes then went to court.
An administrative law judge said the school district’s top concern hadn’t been Ava’s needs but a desire to keep employees from having to work past the traditional end of the school day. The district was required to provide more instruction under the IDEA.
But while a federal judge backed that decision, the judge said the Tharpes couldn’t also use the ADA or the Rehabilitation Act to seek compensatory damages and an injunction to permanently set the hours of instruction.
The St. Louis-based 8th U.S. Circuit Court of Appeals likewise said their hands were tied because of a 1982 decision from that circuit – Monahan v. Nebraska − that said school officials need to have acted with “bad faith or gross misjudgment” for suits involving educational services for children with disabilities.
The Tharpes “may have established a genuine dispute about whether the district was negligent or even deliberately indifferent, but under Monahan, that’s just not enough,” the appeals court said.
Hundreds of district court decisions across the country have been litigated under that standard, with most of them ending in a loss for the families, according to the Tharpes’ attorneys.
Those courts are unfairly using a tougher standard than “deliberate indifference,” which is the bar for damages in disability discrimination cases outside the school setting, their attorneys argue.
That position is backed by the Justice Department.
“There is no sound basis for applying different intent requirements,” Nicole Reaves, a Justice Department attorney, told the court.
Reaves said the school district is asking for a “breathtakingly broad rule” that no discrimination claims can be brought without an intent to discriminate.
Blatt, the attorney for the school district, said the courts can choose to “level down” or “level up.”
“This is a big deal,” Blatt said, agreeing with Barrett about what’s at stake. “I understand that you don’t want to take on this case but I didn’t bring this petition. This petition said, `decide the standard.'”
But Chief Justice John Roberts said the court wasn’t asked to decide what the uniform standard should be, just whether there should be a different standard for discrimination claims arising out of the IDEA.
A decision in A.J.T. v. Osseo Area Schools is expected by summer.
