Supplemental Brief — A. J. T., By and Through Her Parents, A. T. & G. T., Petitioner v. Osseo Area Schools, Independent School District No. 279, et al.

No. 24-249

In the

Supreme Court of the United States

A.J.T., BY AND THROUGH HER PARENTS,

A.T. AND G.T.,

Petitioner,

V.

OSSEO AREA SCHOOLS,

INDEPENDENT SCHOOL DISTRICT NO. 279;

OSSEO SCHOOL BOARD,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

SUPPLEMENTAL BRIEF FOR PETITIONER

NICHOLAS ROSELLINI

LATHAM & WATKINS LLP

505 Montgomery Street

Suite 2000

San Francisco, CA 94111

AMY J. GOETZ

SCHOOL LAW CENTER, LLC

520 Fifth Street South

Stillwater, MN 55082

ROMAN MARTINEZ

Counsel of Record

PETER A. PRINDIVILLE

LATHAM & WATKINS LLP

555 11th Street, NW

Suite 1000

Washington, DC 20004

(202) 637-3377

roman.martinez@lw.com

Counsel for Petitioner

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... ii

SUPPLEMENTAL BRIEF ..........................................1

ADDENDUM

Statement of Interest of the United States of

America, Robertson v. District of

Columbia, No. 24-0656 (PLF) (D.D.C. Sept.

30, 2024), ECF No. 62 .........................................1a

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Alexander v. Choate,

469 U.S. 287 (1985) ................................................6

C.L. v. Scarsdale Union Free School

District,

744 F.3d 826 (2d Cir. 2014) ...................................3

Clark v. Martinez,

543 U.S. 371 (2005) ................................................5

D.A. ex rel. Latasha A. v. Houston

Independent School District,

629 F.3d 450 (5th Cir. 2010)..................................3

D.E. v. Central Dauphin School

District,

765 F.3d 260 (3d Cir. 2014) ...................................3

G.C. v. Owensboro Public Schools,

711 F.3d 623 (6th Cir. 2013)..................................3

Knox County v. M.Q.,

62 F.4th 978 (6th Cir. 2023) ..................................6

Mark H. v. Hamamoto,

620 F.3d 1090 (9th Cir. 2010)................................3

Monahan v. Nebraska,

687 F.2d 1164 (8th Cir. 1982)............................2, 3

Parnes v. Orange County School Board,

2024 WL 4290383 (M.D. Fla. Sept.

25, 2024) .................................................................7

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Reid-Witt ex rel. C.W. v. District of

Columbia,

486 F. Supp. 3d 1 (D.D.C. 2020) ............................3

Sellers ex rel. Sellers v. School Board of

the City of Manassas,

141 F.3d 524 (4th Cir. 1998)..................................3

STATUTES

20 U.S.C. § 1415(l) ......................................................5

28 U.S.C. § 517 ............................................................2

1

SUPPLEMENTAL BRIEF

Petitioner A.J.T. (Ava) submits this supplemental

brief pursuant to Rule 15.8 to advise the Court of a

statement of interest filed by the United States in

Crystal Robertson, et al. v. District of Columbia

(“Robertson”), No. 24-0656 (D.D.C.), which directly

addresses the question presented in Ava’s pending

petition for certiorari. See Add.1a-19a. The United

States has now formally taken the position that

Title II of the Americans with Disabilities Act (ADA)

and Section 504 of the Rehabilitation Act

(Rehabilitation Act) do not require children with

disabilities to satisfy a uniquely stringent “bad faith

or gross misjudgment” standard when seeking relief

for discrimination relating to their education. Id. The

United States acknowledges the entrenched 5-2

circuit split on the question presented, agrees with

Ava (and the decision below) that a “bad faith or gross

misjudgment” test has no basis in statutory text, and

recognizes that the issue is vitally important to

children with disabilities and their families. Id. The

United States’ statement of interest in Robertson thus

confirms that Ava’s petition for certiorari in this case

should be granted.1

1. In Robertson, a nonprofit organization and

several children with disabilities sued the District of

Columbia under the ADA and Rehabilitation Act.

Add.3a-4a. They allege that the District’s failure to

provide adequate transportation to and from school

1 See Council of Parent Attorneys and Advocates Amici

Br. 7-8 (likewise highlighting the United States’ Robertson

submission endorsing Ava’s merits arguments and noting the

circuit split).

2

has significantly impeded their access to educational

services. Id. at 3a.

On September 4, 2024, the District of Columbia

moved to dismiss, arguing (as relevant here) that the

plaintiffs “have not plausibly alleged that the District

has acted in bad faith or with gross misjudgment.”

Robertson Mem. in Supp. Mot. Dismiss 24, Dkt. 58-1.

The District acknowledged that the D.C. Circuit has

never adopted that standard but asked the district

court to follow “most” other circuits in imposing it. Id.

at 22. The Robertson plaintiffs responded, as Ava has

argued throughout this litigation, that the “bad faith

or gross misjudgment” test first established in

Monahan v. Nebraska, 687 F.2d 1164 (8th Cir. 1982),

is fundamentally “atextual and unfounded.”

Robertson Opp. to Mot. Dismiss 23-26, Dkt. 60; see

Pet.32-33.

On September 30, 2024—nearly four weeks after

Ava filed her petition for certiorari—the United

States filed a statement of interest supporting the

Robertson plaintiffs’ position.

See Add.1a-19a;

28 U.S.C. § 517 (authorizing “any officer of the

Department of Justice” to “attend to the interests of

the United States in a suit pending in a court of the

United States”). That submission notes the federal

government’s “substantial interest in supporting the

proper interpretation and application of Title II [of

the ADA] and Section 504 [of the Rehabilitation Act].”

Add.2a. And it accordingly urges the district court to

reject the “bad-faith-or-gross-misjudgment standard”

invented by the Eighth Circuit in Monahan and

reluctantly applied by the panel in Ava’s case. Id.

at 6a-19a; see Pet.App.3a-5a & n.2.

2. The United States’ statement of interest in

Robertson acknowledges that the circuits have long

3

been split 5-2 on the question presented—and that

Ava “recently filed a petition for a writ of certiorari”

on the issue. Add.8a & n.3, 12a n.4. Relying on the

same cases cited in Ava’s petition, the United States

observes that the bad-faith-or-gross-misjudgment

standard “originated more than forty years ago with

the Eighth Circuit in Monahan” and has since been

“reflexively adopted” by “[t]he Second, Fourth, Fifth,

and Sixth Circuits” as well. Id. at 8a & n.3 (citing

Monahan, 687 F.2d at 1170-71; C.L. v. Scarsdale

Union Free Sch. Dist., 744 F.3d 826, 841 (2d Cir.

2014); Sellers ex rel. Sellers v. Sch. Bd. of the City of

Manassas, 141 F.3d 524, 529 (4th Cir. 1998); D.A. ex

rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d

450, 454-55 (5th Cir. 2010); G.C. v. Owensboro Pub.

Schs., 711 F.3d 623, 635 (6th Cir. 2013)); see

Pet.15-17. And in direct conflict with those five

circuits, the United States continues, the Third and

Ninth Circuits “hold that children bringing

education-related claims under [the ADA and

Rehabilitation Act] need only show that they were

denied the benefits of a program or otherwise

discriminated against by reason of their disability” to

establish liability. Add.8a (citing D.E. v. Cent.

Dauphin Sch. Dist., 765 F.3d 260, 269 (3d Cir. 2014);

Mark H. v. Hamamoto, 620 F.3d 1090, 1097

(9th Cir. 2010)); see Pet.17-19.

The United States acknowledges that, while “the

D.C. Circuit has never addressed whether children

alleging educated-related discrimination under the

ADA and the Rehabilitation Act must satisfy a

heightened standard of bad faith or gross

misjudgment,” district courts within the D.C. Circuit

have consistently “required such a showing” in this

single factual context. Add.7a-8a; see Pet.17 (citing

4

Reid-Witt ex rel. C.W. v. District of Columbia, 486

F. Supp. 3d 1, 7 (D.D.C. 2020)). But the United States

urges the Robertson court to depart from those

decisions and “reject the atextual standard that

Monahan announced.” Add.8a. Instead, the United

States preaches fealty to the ADA and Rehabilitation

Act’s “plain text,” which requires treating children

with disabilities bringing education-related claims

just like everyone else. Id.

3. The United States’ statement of interest in

Robertson fully adopts the merits arguments

advanced in Ava’s petition for certiorari. Compare id.

at 7a-18a, with Pet.22-30. “Specifically, the United

States asserts that requiring children with

disabilities who face discrimination in the school

setting—unlike any other category of plaintiffs—to

show a defendant’s ‘bad faith or gross misjudgment’

to establish liability under [the ADA] and [the

Rehabilitation Act] is contrary to the text, structure,

and purpose of those statutes.” Add.2a.

First, the United States agrees with Ava (and the

decision below) that Monahan’s bad-faith-or-grossmisjudgment standard lacks any “basis” in statutory

text. Id. at 11a; see Pet.22-25; Pet.App.5a n.2. “The

words ‘bad faith’ and ‘gross misjudgment’ appear

nowhere within the text of either [the ADA] or

[Rehabilitation Act].” Add.7a. And neither statute

“sets aside education-related claims brought by

children with disabilities as claims that should be

treated differently—and more harshly—than any

other brought under either statute.”

Id.

“Consequently,” the United States explains, “where

courts

have

interpreted

[the

ADA]

and

[Rehabilitation Act] to require proof of certain

elements for claims outside of the school context, they

5

must do the same with claims in the school context.”

Id. at 11a. Any other rule would violate this “Court’s

instructions on how courts are to interpret statutes”

by improperly assigning “different meanings” to “the

same language” depending solely on the factual

context in which a particular claim arises. Id. (citing

Clark v. Martinez, 543 U.S. 371, 378 (2005)).

Second, the United States likewise agrees that

“[c]ongressional action after Monahan further dooms

[the decision’s] premise that a heightened standard

was necessary to ‘harmonize’” the precursor to the

Individuals with Disabilities Education Act (IDEA)

“with the Rehabilitation Act.”

Id. at 14a-15a.

In particular, the United States—like Ava and the

decision below—points to 20 U.S.C. § 1415(l), which

commands that “[n]othing in [the IDEA] shall be

construed to restrict or limit the rights, procedures,

and remedies available under” the ADA,

Rehabilitation Act, and other federal laws. See

Add.15a-16a (quoting 20 U.S.C. § 1415(l)); Pet.26;

Pet.App.5a n.2. Thus, imposing a “bad-faith-or-grossmisjudgment standard is unnecessary to harmonize

the IDEA with” the ADA or Rehabilitation Act—

because those statutes, “as they are written,” already

do that work. Add.18a. Construing the IDEA to

restrict or limit the relief available under the ADA

and Rehabilitation Act, as Monahan did, directly

“contradict[s]” the plain text of Section 1415(l). Id.

Third, the United States reiterates that

Monahan’s atextual standard violates the ADA and

Rehabilitation Act’s core purpose of “address[ing]

discrimination resulting not only from invidious

animus, but also from mere thoughtlessness.”

Add.13a; see Pet.26-29. Under Monahan’s heightened

standard, “much of the conduct that Congress sought

6

to alter in passing the Rehabilitation Act would be

difficult if not impossible to reach.” Add.13a (quoting

Alexander v. Choate, 469 U.S. 287, 296-97 (1985)).

“Congress did not provide for such a result,” which

senselessly disadvantages some of society’s most

vulnerable members. Id. at 14a.

4. The United States’ Robertson submission

powerfully confirms that Ava’s petition for certiorari

should be granted.

Besides acknowledging the

entrenched circuit split and glaring problems with the

majority rule, the United States agrees that the “legal

standard required to establish liability for

discrimination against students with disabilities”

under the ADA and Rehabilitation Act is a critically

“important question[].” Id. at 2a; see Pet.30-32. It

also recognizes that “[r]equiring bad faith or gross

misjudgment” would “unfairly close the courthouse

doors to many students seeking relief from

education-related discrimination.”

Add.14a; see

Pet.31-32. And it emphasizes that both the Sixth and

Eighth Circuits “have recently criticized Monahan’s

rule,” while continuing to apply that artificially

stringent standard nevertheless. Add.12a (citing

Knox County v. M.Q., 62 F.4th 978, 1002

(6th Cir. 2023); A.J.T. ex rel. A.T. v. Osseo Area Schs.,

Indep. Sch. Dist. No. 279, 96 F.4th 1058, 1061 n.2

(8th Cir. 2024) (Pet.App.5a n.2)); see Pet.21.

In addition, the very fact of the ongoing litigation

in Robertson underscores the importance of the

question presented. What legal standard governs

education-related claims affects every ADA or

Rehabilitation Act suit brought by children with

disabilities against school officials. Pet.31-32. Those

kinds of cases crop up all the time. Indeed, in the few

short weeks since Ava filed her petition for certiorari,

7

yet another district court has relied on Monahan’s

bad-faith-or-gross-misjudgment standard to reject

claims like hers. See Parnes v. Orange Cnty. Sch. Bd.,

2024 WL 4290383, at *4-6 (M.D. Fla. Sept. 25, 2024);

see Pet. 31 n.4 (collecting similar cases).

Given all this, there is no need to delay this case

any further by calling for the views of the Solicitor

General. The United States’ statement of interest in

Robertson has already recognized the obvious: The

question presented warrants review—now.

* * *

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

NICHOLAS ROSELLINI

LATHAM & WATKINS LLP

505 Montgomery Street

Suite 2000

San Francisco, CA 94111

AMY J. GOETZ

SCHOOL LAW CENTER, LLC

520 Fifth Street South

Stillwater, MN 55082

ROMAN MARTINEZ

Counsel of Record

PETER A. PRINDIVILLE

LATHAM & WATKINS LLP

555 11th Street, NW

Suite 1000

Washington, DC 20004

(202) 637-3377

roman.martinez@lw.com

Counsel for Petitioner

October 7, 2024

ADDENDUM

TABLE OF CONTENTS

Page

Statement of Interest of the United States of

America, Robertson v. District of

Columbia, No. 24-0656 (PLF) (D.D.C. Sept.

30, 2024), ECF No. 62 .........................................1a

1a

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

CRYSTAL

ROBERTSON, et al.,

Plaintiffs,

v.

DISTRICT OF

COLUMBIA,

Civil Action No. 24-0656

(PLF)

Defendant.

STATEMENT OF INTEREST OF THE UNITED

STATES OF AMERICA

***

The United States of America respectfully submits

this Statement of Interest in accordance with 28

U.S.C. § 5171 to provide its views regarding the

elements of a claim under Title II of the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

Specifically, the United States asserts that requiring

children with disabilities who face discrimination in

the school setting—unlike any other category of

plaintiffs—to show a defendant’s “bad faith or gross

misjudgment” to establish liability under Title II and

Section 504 is contrary to the text, structure, and

1

Congress has authorized the Attorney General to send

“any officer of the Department of Justice . . . to any . . . district

in the United States to attend to the interests of the United

States in a suit pending in a court of the United States.”

28 U.S.C. § 517.

2a

purpose of those statutes. The United States does not

take a position on any other disputed issue in this

litigation.

INTEREST OF THE UNITED STATES

This lawsuit raises important questions about the

legal standard required to establish liability for

discrimination against students with disabilities

under Title II of the ADA and Section 504 of the

Rehabilitation Act. Congress charged the United

States Department of Justice with issuing regulations

to implement Title II, see 42 U.S.C. § 12134(a), and

with enforcing the statute, see 42 U.S.C. § 12133

(incorporating 29 U.S.C. § 794a(a)(2), which in turn

incorporates 42 U.S.C. 2000d et seq.); 28 C.F.R.

§ 35.170 et seq. The Department of Justice also

enforces Section 504 of the Rehabilitation Act, 29

U.S.C. § 794a(a)(2), and coordinates federal agencies’

implementation of Section 504, 28 C.F.R. Part 41. In

the school context, the United States Department of

Education administratively enforces Title II and

Section 504. As a result, the federal government has

a substantial interest in supporting the proper

interpretation and application of Title II and Section

504.

Specifically, the United States submits this

Statement of Interest to assist the Court in its

analysis of the District of Columbia’s (the “District’s)

Partial Motion to Dismiss, see ECF No. 58.

PLAINTIFFS’ FACTUAL ALLEGATIONS

Plaintiffs are a non-profit organization (i.e., The

Arc of the United States) and five parents or

guardians of students with disabilities who are

enrolled in public schools operated by the District of

3a

Columbia. Compl. ¶¶ 26-31.2 Plaintiffs allege that

the District’s Office of the State Superintendent of

Education (“Superintendent’s Office”) is responsible

for providing each student with safe, reliable, and

appropriate transportation services to attend school.

See id. ¶¶ 1, 2, 6, 44-45, 57. Although Plaintiffs rely

on transportation provided by the Superintendent’s

Office, they assert that their transportation often

arrives late, if at all, causing “significant disruptions,

including missed school days and significantly late

arrivals to school.” Id. ¶ 57. Such “interruption[s] to

their daily routine can create a ripple effect,” which

results in students with disabilities being

“unavailable for learning because they need time to

regulate their emotions and behavior, and to catch up

on what they missed due to their late arrival.” Id.

Moreover, Plaintiffs allege that the Superintendent’s

Office “regularly strands” students with disabilities

at school or else picks them up “before the end of the

school day, requiring them to miss instructional time

in order to get a ride home.” Id. ¶¶ 6, 61.

The complaint asserts four causes of action. First,

Plaintiffs allege that the District is violating the

Individuals with Disabilities Education Act (“IDEA”)

by failing to ensure they receive transportation

services to school, thereby denying them a free

appropriate public education. Compl. ¶¶ 219-28.

Second, Plaintiffs allege that the District is

discriminating against them under Title II of the ADA

by denying them an educational opportunity equal to

that provided to other children and also by

2 Plaintiffs also seek to represent a class of similarly

situated students, see Compl. ¶¶ 211-18, but the Court has not

yet ruled on Plaintiffs’ class certification motion, see ECF No. 29.

4a

unnecessarily segregating them from students

without disabilities. Id. ¶¶ 229-41. Third, Plaintiffs

allege that the District’s unlawful discrimination and

segregation similarly violates Section 504 the

Rehabilitation Act. Id. ¶¶ 242-53. Fourth, and

finally, Plaintiffs allege that the District’s conduct

violates the D.C. Human Rights Act, D.C. Code

§ 2-1401.01, et seq. Id. ¶¶ 254-60. Plaintiffs seek

declaratory and injunctive relief as well as

reimbursement for certain transportation and

education-related expenditures under District of

Columbia law. Id. ¶¶ 262-72.

STATUTORY AND REGULATORY

BACKGROUND

I. Section 504 of the Rehabilitation Act.

Congress enacted Section 504 to “enlist[] all

programs receiving federal funds in an effort ‘to share

with handicapped Americans the opportunities for an

education, transportation, housing, health care, and

jobs that other Americans take for granted.’” Sch. Bd.

of Nassau Cnty. v. Arline, 480 U.S. 273, 277 (1987)

(quoting 123 Cong. Rec. 13515 (1977) (statement of

Sen. Humphrey)); see Alexander v. Choate, 469 U.S.

287, 295-96 (1985) (noting that Congress viewed the

resulting harm from discrimination against

individuals with disabilities to be the product of

“thoughtlessness and indifference”). Section 504

provides that “[n]o otherwise qualified individual

with a disability . . . shall, solely by reason of her or

his disability, be excluded from the participation in,

be denied the benefits of, or be subjected to

discrimination under any program or activity

receiving Federal financial assistance[.]” 29 U.S.C.

§ 794(a). Generally, to prove a violation of Section 504

5a

against a recipient of federal funds like the

Superintendent’s Office, see Compl. ¶ 32, a plaintiff

“must show that (1) they are disabled within the

meaning of the Rehabilitation Act, (2) they are

otherwise qualified, [and] (3) they were excluded

from, denied the benefit of, or subject to

discrimination under a program or activity[.]” Am.

Council of the Blind v. Paulson, 525 F.3d 1256, 1266

(D.C. Cir. 2008).

II. Title II of the ADA.

In 1990, Congress enacted the ADA “to provide a

clear and comprehensive national mandate for the

elimination of discrimination against individuals

with disabilities.” 42 U.S.C. § 12101(b)(1). In so

doing, Congress found that, “historically, society has

tended to isolate and segregate individuals

with disabilities” and that “individuals with

disabilities continually encounter various forms

of discrimination, including . . . segregation.” Id.

§§ 12101(a)(2), (5). For public entities’ services,

programs, and activities, like the public education

provided by the District, Title II provides that “no

qualified individual with a disability shall, by reason

of such disability, be excluded from participation in or

be denied the benefits of the services, programs, or

activities of a public entity, or be subjected to

discrimination by any such entity.” Id. § 12132.

Courts evaluate claims brought under Title II of the

ADA and Section 504 using the same framework. See

Paulson, 525 F.3d at 1260, n.2.

III. The IDEA.

The IDEA ensures that all eligible students with

disabilities receive a free appropriate public

education, sometimes referred to as a “FAPE.” See

6a

20 U.S.C. § 1412(a)(1)(A). That education includes

specially designed instruction, along with related

services to permit students to benefit from it.

20 U.S.C. § 1401(9), (26), (29); see also Bd. of Educ. of

Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S.

176, 203 (1982). The “related services” under the

IDEA include transportation services, such as

those provided by the District here.

20 U.S.C.

§ 1401(26)(A); see also Pierre-Noel v. Bridges Pub.

Charter Sch., Civ. A. No. 23-0070, 2024 WL 4018954,

at *1 (D.C. Cir. Sept. 3, 2024). Each student receives

an Individualized Education Program, which is the

“centerpiece of the [IDEA’s] education delivery

system.” Endrew F. v. Douglas Cnty. Sch. Dist. RE-1,

580 U.S. 386, 391 (2017) (cleaned up; quoting Honig

v. Doe, 484 U.S. 305, 311 (1988)). Individualized

Education Programs must tailor special education

supports to a student’s unique needs so that they may

“advance appropriately toward [achieving] the[ir]

annual goals” and be “reasonably calculated to enable

a child to make progress appropriate in light of the

child’s circumstances.” Id. at 391, 399; see also

20 U.S.C. § 1414(d)(1)(A)(i)(IV).

ARGUMENT

Students with disabilities seeking relief from

education-related discrimination should not be forced

to show defendants’ “bad faith or gross misjudgment”

to establish liability under Title II of the ADA or

Section 504 of the Rehabilitation Act, as the District

advocates, see Def.’s Partial Mot. to Dismiss (ECF No.

58-1, “Def.’s Br.”) at 21. Imposing such a requirement

is inconsistent with the text, structure, and purpose

of those statutes. Accordingly, the Court should reject

the District’s heightened standard and treat

7a

Plaintiffs’ Title II and Section 504 claims like any

other outside of the education context.

I. The Text of the ADA and Rehabilitation Act

Requires Proof That a Defendant Acted “By

Reason” of a Person’s Disability and Makes

No Mention of a “Bad Faith Or Gross

Misjudgment” Standard In Any Context, Let

Alone the School Context.

Section 504 states that “[n]o otherwise qualified

individual with a disability [shall] solely by reason of

her or his disability, be excluded from the

participation in, be denied the benefits of, or be

subjected to discrimination under any program or

activity receiving Federal financial assistance.” 29

U.S.C. § 794(a). Similarly, Title II states that “no

qualified individual with a disability shall, by reason

of such disability, be excluded from participation in or

be denied the benefits of services, programs, or

activities of a public entity, or be subjected to

discrimination by any such entity.”

42 U.S.C.

§ 12132.

The words “bad faith” and “gross

misjudgment” appear nowhere within the text of

either Title II or Section 504. Additionally, neither

Title II nor Section 504 sets aside education-related

claims brought by children with disabilities as claims

that should be treated differently—and more

harshly—than any other brought under either

statute.

As the District concedes, see Def.’s Br. at 23, the

D.C. Circuit has never addressed whether children

alleging educated-related discrimination under the

ADA and the Rehabilitation Act must satisfy a

heightened standard of bad faith or gross

misjudgment. Courts in this district have required

8a

such a showing for education-related ADA and

Rehabilitation Act claims. Id. (citing cases). That

requirement originated more than forty years ago

with the Eighth Circuit in Monahan v. Nebraska, 687

F.2d 1164, 1170-71 (8th Cir. 1982), a decision that

pre-dated the ADA. As discussed below, Monahan

was incorrectly decided, and it has in any event been

superseded by statute. This Court should therefore

reject the atextual standard that Monahan

announced and that certain other courts of appeals

have reflexively adopted.3 Rather, in accordance with

precedent of the Third and Ninth Circuits, this Court

should follow the plain text of Title II and Section 504

and hold that children bringing education-related

claims under those statutes need only show that they

were denied the benefits of a program or otherwise

discriminated against by reason of their disability to

prevail. See, e.g., D.E. v. Cent. Dauphin Sch. Dist.,

765 F.3d 260, 269 (3d Cir. 2014); Mark H. v.

Hamamoto, 620 F.3d 1090, 1097 (9th Cir. 2010).

In Monahan, the court affirmed the dismissal of

plaintiffs’ Rehabilitation Act claim alleging the

improper educational placement of plaintiffs’ children

with disabilities. Id. at 1169-70. In particular, the

Monahan court viewed the Rehabilitation Act claim

3

The Second, Fourth, Fifth, and Sixth Circuits have

adopted the Eighth Circuit’s interpretation of the Rehabilitation

Act and require school-age children claiming discrimination

related to their education to establish bad faith or gross

misjudgment to show a Section 504 violation. See, e.g., Sellers

ex rel. Sellers v. Sch. Bd. of the City of Manassas, 141 F.3d 524,

529 (4th Cir. 1998); D.A. ex rel. Latasha A. v. Houston Ind. Sch.

Dist., 629 F.3d 450, 454-55 (5th Cir. 2010); G.C. v. Owensboro

Pub. Schs., 711 F.3d 623, 635 (6th Cir. 2013); C.L. v. Scarsdale

Union Free Sch. Dist., 744 F.3d 826, 841 (2d Cir. 2014).

9a

as “rest[ing] on the same procedural theories that

plaintiffs ha[d] unsuccessfully argued under the”

Education for All Handicapped Children Act

(“Education for All Act”), the IDEA’s predecessor. Id.

at 1164. Those claims were about a state law that

arguably conflicted with the Education for All Act’s

mandates and, more generally, about hearings where

parents could challenge educational placements

allegedly in violation of the Education for All Act. Id.

at 1167, 1169. Because an amendment to the

offending state law had mooted the Education for All

Act claim, the court concluded that dismissal without

prejudice of the redundant Rehabilitation Act claim

was not in error. Id. at 1170. In so doing, the court

went on to “add a few words for the guidance of the

District Court and the parties” if plaintiffs chose to

pursue a similar Rehabilitation Act claim in the

future. Id. In this dictum, the court stated that

plaintiffs must show “bad faith or gross misjudgment”

before a “violation can be made out” in “the context of

education of handicapped children.” Id. at 1170-71.

To justify that heightened standard, the court found

it had a “duty to harmonize the Rehabilitation Act”

with the Education for All Act because the latter

specifically addressed the educational needs of

children with disabilities. Id. at 1171. Thus, the

court reasoned, the heightened standard was

necessary to “give each of these statutes the full play

intended by Congress” and achieve “what [the court]

believe[d] to be a proper balance between the rights of

handicapped children, the responsibilities of state

education officials, and the competence of courts to

make judgments in technical fields.” Id.

The D.C. Circuit has never adopted Monahan’s

holding, but it cited the decision in another pre-ADA

10a

ruling, Lunceford v. D.C. Board of Education, 745

F.2d 1577, 1580 (D.C. Cir. 1984), for a different

proposition—that the Rehabilitation Act requires

more than a mere showing that the school failed to

provide a free appropriate public education. Id.

(quoting Monahan, 687 F.2d at 1170). In Lunceford,

a District ward challenged his discharge from a

private residential treatment facility under the

Education for All Act and obtained a district court

injunction against the facility. Id. at 1578. The D.C.

Circuit reversed, holding that the facility—as a nongovernmental actor—was not subject to the

Education for All Act’s requirements. Id. The D.C.

Circuit also found that the Rehabilitation Act failed

to support the injunction because the record was

devoid of any discrimination based on Lunceford’s

disabilities because the parties agreed and stipulated

that the facility’s “decision to discharge [plaintiff]

rested on the staff’s determination that ‘he [was] no

longer medically appropriate for hospitalization[.]”

Id. at 1578-80 (finding that “the discharge of

[Lunceford] to permit the admission of another sorely

handicapped child rationally could not amount to

disadvantageous treatment”).

To establish disability-based discrimination under

Title II and Section 504, courts have held that a

plaintiff must prove that (1) she is a qualified

individual with a disability; (2) she is being excluded

from participation in, or is being denied benefits of,

services, programs, or activities for which a public

entity is responsible, or is otherwise being

discriminated against by the public entity; and

(3) such

exclusion,

denial

of

benefits,

or

discrimination is by reason of her disability. See

Pierce v. District of Columbia, 128 F. Supp. 3d 250,

11a

267 (D.D.C. 2015) (citing Cleveland v. Policy Mgmt.

Sys. Corp., 526 U.S. 795, 806 (1999)). Accepting the

District’s argument would add an element to a

discrimination claim—that the alleged discrimination

be due to defendants’ bad faith or gross misjudgment.

And it would do so in only one specific context—claims

concerning the education of children. See B.R. ex rel.

Rempson v. District of Columbia, 524 F. Supp. 2d 35,

41 (D.D.C. 2007) (applying this requirement

exclusively in the “context of children who receive

benefits pursuant to the IDEA”).

The District’s arguments not only find no basis in

the text of Title II and Section 504, they also ignore

the Supreme Court’s instructions on how courts are

to interpret statutes.

The Supreme Court has

specifically rejected an approach to statutory

interpretation that leads to different meanings for the

same language. See Clark v. Martinez, 543 U.S. 371,

378 (2005) (noting that “to give [the] same words a

different meaning for each [context] would be to

invent a statute rather than interpret one”).

Consequently, where courts have interpreted Title II

and Section 504 to require proof of certain elements

for claims outside of the school context, they must do

the same with claims in the school context. The

Supreme Court has further cautioned that courts “do

not—[and] cannot—add provisions to a federal

statute.” Alabama v. North Carolina, 560 U.S. 330,

352 (2010). So, again, courts are not empowered to

rewrite a statute to require an element of bad faith or

gross misjudgment that Congress did not impose.

Tellingly, the District does not attempt to explain how

the different treatment of students protected under

Title II or Section 504 can be squared with those

statutes, nor does it otherwise engage with the text of

12a

either statute. See generally Def.’s Br. Accordingly,

this Court should decline to read the words “bad faith

or gross misjudgment for education-related claims by

children” into Title II and Section 504.

Notably, other courts have recently criticized

Monahan’s rule—even in Circuits that have

previously applied it. A panel of the Eighth Circuit

recently lamented Monahan’s addition of a “judicial

gloss” on Section 504 that lacked “any anchor

in statutory text.” A.J.T. ex rel. A.T. v. Osseo Area

Sch., Indep. Sch. Dist. No. 279, 96 F.4th 1058,

1061 n.2 (8th Cir. 2024) (concluding that it was

nonetheless “constrained” by Monahan’s bar).4 And

the Sixth Circuit likewise criticized precedent

adopting Monahan’s bad-faith-or-gross-misjudgment

standard, calling Monahan’s test “an impossibly high

bar” that is “hard to square” with “statutory

protection[s] that,” by their terms, “reach[] even the

unintentional denial of services.” Knox County v.

M.Q., 62 F.4th 978, 1002 (6th Cir. 2023). Moreover,

as noted above, the Third and Ninth Circuits apply

the same standards for violations of Title II and

Section 504 for all litigants—including students with

disabilities—and do not require bad faith or gross

misjudgment under either statute. Accordingly, this

Court

should

reject

the

bad-faith-or-grossmisjudgment requirement for discrimination claims.

4 Plaintiffs in A.J.T. recently filed a petition for a writ of

certiorari with the Supreme Court in September 2024, which

remains pending.

13a

II. Requiring Plaintiffs to Show Bad Faith or

Gross Misjudgment Undermines the Purpose

of the ADA and Rehabilitation Act

Adhering to the statutory text of Title II and

Section 504 is also consistent with the purpose of

these statutes to address discrimination resulting not

only from invidious animus, but also from mere

thoughtlessness. In Alexander, the Supreme Court

considered whether Section 504 reaches only

purposeful discrimination. Specifically, the Court

explained that “[d]iscrimination against the

handicapped was perceived by Congress to be most

often the product, not of invidious animus, but rather

of thoughtlessness and indifference—of benign

neglect.” 469 U.S. at 295. The Court further

explained that “much of the conduct that Congress

sought to alter in passing the Rehabilitation Act

would be difficult if not impossible to reach” if Section

504 were “construed to proscribe only conduct fueled

by a discriminatory intent.” Id. at 296-97; accord

Paulson, 525 F.3d at 1260. The same is true for the

ADA. See Helen L. v. DiDario, 46 F.3d 325, 335 (3d

Cir. 1995) (“Because the ADA evolved from an

attempt to remedy the effects of ‘benign neglect’

resulting from the ‘invisibility’ of the disabled,

Congress could not have intended to limit the Act’s

protections and prohibitions to circumstances

involving deliberate discrimination.”).

Here, the Court should hold Plaintiffs’ Title II and

Section 504 discrimination claims to the same

standard as any other claimants outside the

education context. That is, the Court must determine

whether Plaintiffs’ allegations plausibly show that

they were excluded from, denied the benefit of, or

subjected to discrimination based on their disabilities.

14a

Paulson, 525 F.3d at 1266; Pierce, 128 F. Supp. 3d at

267. An additional showing of intent (in the form of

mere deliberate indifference) would only be relevant

if Plaintiffs were claiming entitlement to

compensatory damages, which they are not. See

Silberman v. Miami Dade Transit, 927 F.3d 1123,

1134 (11th Cir. 2019) (“In the ordinary course, proof

of a Title II or § 504 violation entitles a plaintiff only

to injunctive relief. To get damages . . . a plaintiff

must clear an additional hurdle: he must prove that

the entity that he has sued engaged in intentional

discrimination, which requires a showing of

‘deliberate indifference.’” (internal citations omitted));

see Pierce, 128 F. Supp. 3d at 278 (noting that,

although the D.C. Circuit has yet to address the

question, most circuits require a showing of

“deliberate indifference” to establish intentional

discrimination under Title II and Section 504, as

required for compensatory damages).

Requiring bad faith or gross misjudgment to

obtain even injunctive relief would unfairly close the

courthouse doors to many students seeking relief from

education-related discrimination. See, e.g., Walker v.

District of Columbia, 157 F. Supp. 2d 11, 36 (D.D.C.

2001) (acknowledging the impact of the heightened

standard on plaintiffs). Indeed, the District admits

that Monahan’s rule imposes a “high bar” on

aggrieved school-age children. Def.’s Br. at 19. As

established above, Congress did not provide for such

a result, which enjoys no support in the text of either

the ADA or Rehabilitation Act.

III. Congress Rejected Monahan’s Premise

Years Ago.

Congressional action after Monahan further

dooms its premise that a heightened standard was

15a

necessary to “harmonize” the IDEA (then the

Education for All Act) with the Rehabilitation Act.

Two years after Monahan, the Supreme Court

ventured beyond Monahan and held that the

Education for All Act provided the “exclusive avenue”

for children with disabilities to bring discrimination

claims related to the adequacy of their education.

Smith v. Robinson, 468 U.S. 992, 1009 (1984); see Fry

v. Napoleon Comm. Schs., 580 U.S. 154, 160-61

(2017). Like Monahan, the Supreme Court in Smith

sought to reconcile the IDEA and Section 504 by

holding that a Section 504 claim could not proceed

unless it alleged something more than the denial of a

free appropriate public education.

Id. at 1021

(holding that “a plaintiff may not circumvent or

enlarge on the remedies available under the

[Education for All Act] by resort to § 504”).

Congress disagreed. It speedily abrogated Smith

in 1986 by amending the Education for All Act to

clarify that the statute should not be construed as the

only statute to provide a remedy for children with

disabilities. See Handicapped Children’s Protection

Act of 1986, Pub. L. No. 99-327, § 3, 100 Stat. 796, 797

(1986); Walker v. District of Columbia, 969 F. Supp.

794, 796 (D.D.C. 1997) (noting that the House Report

made clear that “since 1978, it has been Congress’

intent to permit parents or guardians to pursue the

rights of handicapped children through [the IDEA],

section 504 [of the Rehabilitation Act], and section

1983” (quoting H.R. Rep. No. 99-296, 99th Cong., 1st

Sess. 4 (1985))). That amendment, which later added

a reference to Title II of the ADA, states:

Nothing in this chapter shall be construed to

restrict or limit the rights, procedures, and

remedies available under the Constitution, the

16a

Americans with Disabilities Act of 1990 [42

U.S.C.A. § 12101 et seq.], title V of the

Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et

seq.], or other Federal laws protecting the

rights of children with disabilities, except that

before the filing of a civil action under such laws

seeking relief that is also available under this

subchapter, the same extent as would be

required had the action been brought under

this subchapter.

20 U.S.C. § 1415(l).

This provision is necessary to provide children

with disabilities the full protection that Congress

intended. See Massey v. District of Columbia, 437 F.

Supp. 2d 13, 16 (D.D.C. 2006) (noting that § 1415(l)

provided “no basis for construing the IDEA as an

exclusive remedy” for a student with special

education needs). Indeed, the Supreme Court has

acknowledged that “the IDEA does not prevent a

plaintiff from asserting claims under [the ADA or

Rehabilitation Act] under such laws even if . . . those

claims allege the denial of an appropriate public

education (much like an IDEA claim would).” Fry,

580 U.S. at 161 (holding that Section 1415(l)’s

exhaustion requirement does not apply unless the

plaintiff seeks relief for the denial of a free

appropriate public education). Just as Section 1415(l)

confirms the ability of children with disabilities to

seek relief under Title II and Section 504, it also

confirms that children with disabilities’ remedies are

not limited by those available only under the IDEA.

See Luna Perez v. Sturgis Pub. Schs., 598 U.S. 142,

149-50 (2023) (holding that a suit premised on the

past denial of a free and appropriate education may

nonetheless proceed without exhausting IDEA’s

17a

administrative processes if the remedy a plaintiff

seeks is not one IDEA provides, such as compensatory

damages under the ADA or Rehabilitation Act).

Further, when this Court previously considered

whether the IDEA precluded claims under the Equal

Protection Clause, it found that when Congress

enacted Section 1415(l)—then Section 1415(f)—it

“intended to preserve all alternative civil rights

remedies, including those available under Section

1983, to vindicate the rights created by the IDEA.”

Walker, 969 F. Supp. at 797 (emphasis added).

The District’s motion avoids any mention of

Section 1415(l) and instead argues that “neither Fry

nor Perez addressed the precise question” of whether

the bad-faith-or-gross-misjudgment standard applies

here. Def.’s Br. at 22. True enough—both cases

concerned the IDEA’s exhaustion requirements, not

the elements of a Title II or Section 504 claim. But

the District fails to grapple with the Supreme Court’s

acknowledgment in Fry that the IDEA, on one hand,

and Title II and Section 504, on the other, all protect

the rights of children with disabilities in overlapping

but different ways. The Court summarized it this

way:

[T]he IDEA guarantees individually tailored

educational services, while Title II and § 504

promise non-discriminatory access to public

institutions. That is not to deny some overlap

in coverage: The same conduct might violate all

three statutes—which is why, as in Smith, a

plaintiff might seek relief for the denial of a

[free appropriate public education] under Title

II and § 504 as well as the IDEA. But still, the

statutory differences [] mean that a complaint

brought under Title II and § 504 might instead

18a

seek relief for simple discrimination,

irrespective of the IDEA’s [free appropriate

public education] obligation.

Fry, 580 U.S. at 170-71. Thus, although Title II and

Section 504 prohibit the many forms of discrimination

in all areas of public life, including education, the

IDEA focuses more narrowly on the provision of

educational services to children with disabilities

based on each child’s particular disability and

individual educational needs. That is, under the

IDEA, “a school must offer an [Individualized

Education Program] reasonably calculated to enable

a child to make progress appropriate in light of the

child’s circumstances.” Endrew F., 580 U.S. at 399.

Based on the foregoing, the bad-faith-or-grossmisjudgment standard is unnecessary to harmonize

the IDEA with Title II and Section 504 and is

contradicted by 20 U.S.C. § 1415(l), which specifies

that the IDEA is not to be “construed to restrict or

limit” rights available under Title II and the Section

504. Rather, as the Supreme Court has recognized,

the statutes—as they are written—are inherently

distinct.

***

19a

CONCLUSION

For these reasons, the Court should decline to

apply a bad-faith-or-gross-misjudgment standard to

Plaintiffs’ discrimination claims under Title II of the

ADA and Section 504 of the Rehabilitation Act.

Dated: September 30, 2024

Respectfully submitted,

MATTHEW M. GRAVES,

D.C. Bar # 481052

United States Attorney

BRIAN P. HUDAK

Chief, Civil Division

By: /s/ Christopher C. Hair

CHRISTOPHER C. HAIR

Assistant United States

Attorney

601 D Street, NW

Washington, DC 20530

(202) 252-2543

christopher.hair@usdoj.gov

Attorneys for the United

States of America