Amicus Curiae 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.
Supreme Court briefApr 7, 2025
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No. 24-249
IN THE
Supreme Court of the United States
A.J.T., BY AND THROUGH HER PARENTS, A.T. & G.T.,
Petitioner,
v.
OSSEO AREA SCHOOLS, INDEPENDENT
SCHOOL DISTRICT NO. 279, et al.,
Respondents.
On Writ of Certiorari to
the United States Court of Appeals
for the Eighth Circuit
BRIEF FOR AASA – THE SCHOOL
SUPERINTENDENTS ASSOCIATION
AND 8 OTHER EDUCATION
ASSOCIATIONS AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS
W. S TUART S TULLER
C APLAN AND E ARNEST , LLC
3701 IRIS A VENUE
S UITE 100
B OULDER, CO, 80301
(303) 443-8010
sstuller@celaw.com
S ONJA H. T RAINOR
Counsel of Record
N ATIONAL S CHOOL
A TTORNEYS A SSOCIATION
2801 N. L INCOLN B OULEVARD
S UITE 220
O KLAHOMA C ITY, OK 73105
(405) 528-3571
strainor@nsaa.legal
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii
INTEREST OF AMICI. . . . . . . . . . . . . . . . . . . . . . . 1
INTRODUCTION AND SUMMARY OF THE
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I.
THE MONAHAN STANDARD BRINGS
FAPE-RELATED D I S C RI MI N A T ION
CLAIMS WITHIN THE TEXT AND
STRUCTURE OF SECTION 504 AND THE
ADA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. FAPE-related Discrimination Claims
Are Unique to the Section 504 Context
and Untethered from its Text . . . . . . . . . . . 7
1. Federal statutes provide positive and
negative rights for students with
disabilities. . . . . . . . . . . . . . . . . . . . . . 10
2. FAPE-related discrimination claims
under Section 504 closely parallel
IDEA claims. . . . . . . . . . . . . . . . . . . . . 16
B. The Bad Faith/Gross Misjudgment
Standard
for
FAPE-Related
Discrimination Claims Reflects the
Discretionary Decision-making Educators
Are Legally Required to Undergo. . . . . . . 21
ii
II. IF THIS COURTS ADOPTS A DAMAGES
STANDARD FOR FAPE-RELATED CLAIMS
UNDER SECTION 504 THAT DOES NOT
RECOGNIZE THE EXPERTISE AND
DISCRETION OF SCHOOL PERSONNEL,
SCHOOLS WILL FACE POTENTIAL
LIABILITY UNFORESEEN BY CONGRESS . 28
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
iii
TABLE OF AUTHORITIES
CASES
PAGES
A.G. v. Paradise Valley Unif. Sch. Dist., 815 F.3d
1195 (9th Cir. 2016) . . . . . . . . . . . . . . . . . . . . . 28
A.L. v. Special Sch. Dist. of St. Louis, No.
4:24CV179 HEA, 2024 WL 4564210 (E.D. Mo.
2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
A.W. v. Marlborough Co., 25 F. Supp. 2d 27 (D.
Conn. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Adarand Constructors, Inc. v. Pena, 515 U.S. 200
(1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
B.D. v. Fairfax Co. Sch. Bd., 1:18-cv-1425 , 2019
WL 692804 (E.D. Va. 2019) . . . . . . . . . . . . . . 29
B.H. v. West Clermont Bd. of Educ., 788 F. Supp.
2d 682 (S.D. Ohio 2011). . . . . . . . . . . . . . . . . . 15
B.M. v. South Calllaway R-II Sch. Dist., 732 F.3d
882 (8th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . 19
Bd. of Educ. v. Rowley, 458 U.S. 176
(1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18, 23
Birmingham v. Omaha Sch. Dist., 220 F.3d 850
(8th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . 20
C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d
826 (2nd Cir. 2014) . . . . . . . . . . . . . . . . . . . . . 19
C.O. v. Portland Publ. Schs., 679 F.3d 1162 (9th
Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
iv
D.A. v. Houston Sch. Dist., 629 F.3d 450 (5th Cir.
2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20
D.E. v. Central Dauphin Sch. Dist., 765 F.3d 260
(3d Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . 21
D.H.H. v. Kirbyville Consolidated Indep. Sch.
Dist., No. 20-40315, 2021 WL 4948918 (5th
Cir. 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
D.R. ex rel. Courtney R. v. Antelope Valley Union
High Sch. Dist., 746 F. Supp. 2d 1132 (C.D.
Cal. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Ellenberg v. New Mexico Military Institute, 478
F.3d 1262 (10th Cir. 2007) . . . . . . . . . . . . . . . . 8
Endrew F. v. Douglas County Sch. Dist., 580 U.S.
386 (2017). . . . . . . . . . . . . . . . . 16, 17, 18, 23–25
Enquist v. Oregon Dep’t of Agric., 553 U.S. 591
(2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307
(1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Fry v. Napolean Comm. Schs., 580 U.S. 154
(2017). . . . . . . . . . . . . . . . . . . . . 9, 18, 23, 24, 29
G.C. v. Owensboro Publ. Schs., 711 F.3d 623 (6th
Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 27
Garcia v. Bd. of Educ., 520 F.3d 1116 (10th Cir.
2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Hall v. Vance County Bd. of Educ., 774 F.2d 629
(4th Cir.1985) . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Heidemann v. Rother, 84 F.3d 1021 (8th Cir.
1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
v
J.G. v. Los Angeles Unif. Sch. Dist., LACV
20-01593 JGB, 2023 WL 8125847 (C.D. Cal.
2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
J.S. III v. Houston Co. Bd. of Educ., 120 F.Supp.3d
1287 (M.D. Ala. 2015) . . . . . . . . . . . . . . . . . . . 29
Jefferson Cnty. Sch. Dist. v. Elizabeth E., 702 F.3d
1227 (10th Cir. 2012) . . . . . . . . . . . . . . . . . . . . 15
Lunceford v. District of Columbia, 745 F.2d 1577
(D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . 26
Mark H. v. Hamamoto, 620 F.3d 1090 (9th Cir.
2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Miller v. Bd. of Educ., 565 F.3d 1232 (10th Cir.
2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 25
Monahan v. State of Nebraska, 687 F.2d 1164 (8th
Cir. 1982) . . . . . . . . . . . . . . . . . . . 5, 7, 19, 25, 27
Ms. H. v. Montgomery Bd. of Educ., 784 F. Supp.
2d 1247 (M.D. Ala. 2011) . . . . . . . . . . . . . . . . . 26
P.W. v. Leander Indep. Sch. Dist., No.
1:21-CV-00722-DAE,
2022
WL
19003381 (W.D. Tex. 2023) . . . . . . . . . . . . . . . 29
Perez v. Sturgis Public Schools, 598 U.S. 142
(2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 28
Piotrowski v. Rocky Point Union Free Sch. Dist.,
18-CV-6262, 2023 WL 2710341 (E.D. N.Y.
2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Reid-Witt ex rel. C.W. v. Dist. of Columbia., 486 F.
Supp. 3d 1 (D.D.C. 2020) . . . . . . . . . . . . . . . . . 27
vi
Ross v. Moffitt, 417 U.S. 600 (1974) . . . . . . . . . . . 10
San Antonio Indep., Sch. Dist. v. Rodriguez, 411
U.S. 1 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Sellers v. Sch. Bd., 141 F.3d 524
(4th Cir. 998) . . . . . . . . . . . . . . . . . . . . 19, 25–27
Smith v. Robinson, 468 U.S. 992 (1984) . . . . . . . . 18
Smith v. Special Sch. Dist. No. 1, 184 F.3d 764
(8th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . 26
Southeastern Community College v. Davis, 442
U.S. 397 (1979). . . . . . . . . . . . . . . . . . . . . . . . . 12
Toledo Area AFL-CIO Council v. Pizza, 154 F. 3d
307 (6th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . 12
Torrence v. District of Columbia, 669 F. Supp. 2d
68 (D.D.C. 2009). . . . . . . . . . . . . . . . . . . . . . . . 26
University of Texas v. Camenisch, 451 U.S. 390
(1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp.
147 (N.D.N.Y. 1997). . . . . . . . . . . . . . . . . . . . . 26
CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. XIV . . . . . . . . . . . . . . . . . . . . 10
STATUTES AND REGULATIONS
Education for All Handicapped Children Act, Pub.
L. No. 94-142, 89 Stat. 773 (1975) . . . . . . . . . . 4
Individuals with Disabilities Education
Improvement Act of 2004, Pub. L. No. 108-446,
tit. I, 118 Stat. 2647. . . . . . . . . . . . . . . . . . . . . . 4
vii
Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified
as amended at 42 U.S.C. §§ 12101–12213)
§§ 12101–12213) . . . . . . 5–10, 13–15, 18–27, 29–31
Rehabilitation Act of 1973, Pub. L. No. 93-112, §
504, 87 Stat. 355, 394 (codified as amended at
29 U.S.C. § 794) . . . . . . . . . . . . . . . . . 4–10, 12–30
20 U.S.C. § 1400 . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
20 U.S.C. § 1401(9). . . . . . . . . . . . . . . . . . . . . . . . . . 15
20 U.S.C. § 1412(a)(1) . . . . . . . . . . . . . . . . . . . . . . . 15
20 U.S.C. § 1412 (a)(1) & (3) . . . . . . . . . . . . . . . . . . 14
20 U.S.C. § 1414(b)(2) & (3) . . . . . . . . . . . . . . . . . . . 14
20 U.S.C. § 1414(b)(4) . . . . . . . . . . . . . . . . . . . . . . . 14
20 U.S.C. § 1414(d)(1)(A) & (B) . . . . . . . . . . . . . . . . 15
20 U.S.C. § 1415(b)(6)(7) . . . . . . . . . . . . . . . . . . 15, 19
29 U.S.C. § 794 . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7–8
42 U.S.C. §§ 12101–12213 . . . . . . . . . . . . . . . . . . . . . 5
42 U.S.C. § 12132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
42 U.S.C. § 2000d . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
34 C.F.R. § 104.33(b)(2) . . . . . . . . . . . . 17, 18, 22, 23
OTHER AUTHORITIES
James A. Rapp, Education Law, vol. 5, § 12.05[3]
(2023 Supp.) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Webster’s New Third International Dictionary 647
(1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 13
INTEREST OF AMICI1
AASA,
The
School
Superintendents
Association (“AASA”) represents 10,000 school
district leaders across the United States. AASA
advocates for equitable access for all students to the
highest quality public education and develops and
supports school system leaders. AASA members help
shape federal, state and local policy, oversee its
implementation and set the pace for academic
achievement in their districts.
The Consortium of State School Boards
Associations (“COSSBA”) is a non-partisan,
national alliance of 25 state school board associations
that serve over 6,700 school boards comprised of
42,000 members who work in service to nearly 24
million students. COSSBA is dedicated to sharing
resources and information to support, promote and
strengthen state school boards associations as they
serve their local school districts and board members.
The Council of Administrators of Special
Education (“CASE”) is an international nonprofit
professional organization providing leadership and
support to approximately 6,000 members who are
dedicated to enhancement of the worth, dignity,
potential, and uniqueness of students with disabilities.
Its mission is to provide leadership and support to
members by shaping policies and practices that impact
the quality of education.
The membership is
1
No counsel for a party authored this brief in whole or in
part, and no party or counsel for a party made a monetary
contribution intended to fund the preparation of or submission of
this brief. No one other than the amici curiae or their counsel
made a monetary contribution to the preparation or submission
of this brief.
2
comprised primarily of local school district
administrators of special education programs. CASE
is a division of the Council for Exceptional Children,
the largest professional organization representing
teachers, administrators, parents, and others
concerned with the education of children with
disabilities.
The Council of the Great City Schools,
founded in 1956 and incorporated in 1961, is a
coalition of 78 of the nation’s largest urban
public-school systems and is the only national
organization exclusively representing the needs of the
largest urban public-school districts in the United
States. The Council’s member districts have a
combined enrollment of over 7.8 million students.
Headquartered in Washington, D.C., the Council
promotes urban education through research,
instruction, management, technology, legislation,
communications, and other special projects.
The Minnesota Administrators for Special
Education (“MASE”) is a non-profit professional
organization providing leadership and supports to
approximately 600 members throughout Minnesota
who are dedicated to enhancement of the worth,
dignity, potential, and uniqueness of students with
disabilities. The mission of MASE is to build strong
leaders who work on behalf of students with
disabilities.
The Minnesota Association of School
Administrators (“MASA”) is a professional
organization representing more than 600 educational
leaders, primarily superintendents, across the state.
MASA is committed to supporting and developing
3
school system leaders, advocating for policies that
promote equitable access to high-quality public
education, and ensuring that Minnesota’s school
districts have the leadership and resources necessary
to serve all students effectively. MASA members play
a critical role in shaping education policy, overseeing
its implementation, and fostering innovative practices
that enhance student achievement and community
engagement.
The Minnesota School Boards Association
(“MSBA”) is a voluntary, nonprofit organization
which represents the school board members of all 331
school districts in Minnesota. MSBA’s mission is to
support, promote, and enhance the work of school
boards and school districts throughout Minnesota.
MSBA regularly represents the interests of school
districts in public forums including the federal and
state courts and the Minnesota Legislature.
The National School Attorneys Association
(“NSAA”) is a non-profit membership organization of
attorneys who advocate on behalf of elementary and
secondary public school districts across the United
States. NSAA provides support, networking, training,
and discussion opportunities to its members for the
ultimate benefit of our nation's public schools and the
students they serve. NSAA’s approximately 900
members regularly advise public school districts on
federal laws addressing how schools serve students
with disabilities.
The National School Boards Association
(“NSBA”) is a non-profit organization founded in 1940
that represents state associations of school boards, and
the Board of Education of the U.S. Virgin Islands.
4
NSBA ensures that school boards have the resources
they need to make certain that each student
everywhere has access to excellent and equitable
education governed by high-performing school board
leaders and supported by the community. NSBA is
particularly concerned about the extreme liability
many districts that are struggling financially will face
if the Court lowers the standard for lawsuits filed by
students with disabilities under the ADA and Section
504 for acts that were not triggered by bad faith or
gross misjudgment, as such judgments will impact the
limited resources schools have with which to educate
students.
INTRODUCTION AND
SUMMARY OF THE ARGUMENT
More than fifty years ago, Congress prohibited
schools from discriminating against “otherwise
qualified” students with disabilities to ensure their full
participation in the life of the school. Section 504 of the
Rehabilitation Act of 1973, Pub. L. No. 93-112, § 504,
87 Stat. 355, 394 (codified as amended at 29 U.S.C. §
794). Two years later, Congress enshrined in federal
law an affirmative right of students with certain
disabilities to a “free appropriate public education”
(“FAPE”) through special education and related
services uniquely tailored to their individual needs.
Education for All Handicapped Children Act, Pub. L.
No. 94-142, 89 Stat. 773 (1975) (as amended by the
Individuals with Disabilities Education Improvement
Act of 2004, Pub. L. No. 108-446, tit. I, 118 Stat. 2647,
2647–99) (codified as amended at 20 U.S.C. §§
1400–1482) (“IDEA”). More than a decade later,
Congress prohibited disability discrimination in nearly
every sphere of American life, including public schools.
5
Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified as
amended at 42 U.S.C. §§ 12101–12213) (“ADA”).
Together, these statutes and their regulations provide
important, but different, protections for students with
disabilities.
Federal courts interpreting the anti-discrimination
rights provided in Section 504 and ADA have
attempted to distinguish between “FAPE-related
discrimination claims” and pure discrimination claims.
FAPE-related discrimination claims are those in which
the family contends that the individualized special
education services provided to their child are not
sufficient to meet the child’s needs and therefore fail to
provide a FAPE. Pure discrimination claims allege
that the child with a disability was excluded from an
activity for which the child was otherwise qualified.
Petitioner contends that the bad faith or gross
misjudgment standard first articulated in Monahan v.
State of Nebraska, 687 F.2d 1164 (8th Cir. 1982) to
address FAPE-related discrimination claims is
atextual and creates two different categories of Section
504 and ADA claimants: (1) school children with
disabilities and (2) all other claimants. That
contention overlooks the fact that only public school
children with disabilities can bring “FAPE-related
discrimination claims.” Thus, it is the claim, not the
standard, which creates two distinct groups.
Moreover, FAPE-related discrimination claims do not
fit neatly, or perhaps at all, within the language and
structure of Section 504 and the ADA.
This Court is asked to decide whether Section 504
and the ADA require plaintiffs alleging FAPE-related
discrimination claims to meet Monahan’s “bad faith or
6
gross misjudgment” standard, or the deliberate
indifference standard that is applied to
otherwise-qualified discrimination claims. Under the
deliberate indifference standard, a plaintiff must prove
that the covered entity was deliberately indifferent to
a substantial likelihood that the plaintiff would be
deprived of a “federally protected right.” The relevant
question then is what is the federally protected right?
In Section 504 and the ADA, Congress has
provided “otherwise qualified” students with
disabilities the right to participate in school free from
disparate treatment based on that disability when the
disability has no bearing on the student’s ability to
participate. The allegation underlying a FAPE-related
discrimination claim is much different–that a
uniquely-situated student has not been treated
uniquely enough—a claim that cannot be adjudicated
through the “otherwise qualified” rubric under Section
504 or the ADA. The bad faith or gross misjudgment
standard recognizes the distinction between
FAPE-related discrimination claims and the language
of Section 504 and the ADA and brings those claims
into alignment with the language of these
nondiscrimination statutes. Disparate treatment of
unique needs is discriminatory only when the
treatment is so ill-suited to the needs of the child that
it amounts to intentional mistreatment.
7
ARGUMENT
I.
THE MONAHAN STANDARD BRINGS
FAPE-RELATED DISCRIMINATION CLAIMS
WITHIN THE TEXT AND STRUCTURE OF
SECTION 504 AND THE ADA.
A. FAPE-related Discrimination Claims
Are Unique to the Section 504 Context
and Untethered from its Text.
Petitioner contends that the bad faith and gross
misjudgment standard is untethered from the text of
Section 504 and the ADA and creates two categories of
Section 504/ADA claimants: school children with
disabilities and all other persons with disabilities.
Therefore, Petitioner contends, school children
bringing “education-related discrimination claims”
(i.e., FAPE-related) should not be required to meet a
different standard of liability than persons asserting
otherwise qualified claims under Section 504 and the
ADA. But FAPE-related discrimination claims can
only be brought by public elementary and secondary
school children with disabilities. It is the claim, not
the standard, which creates two different categories of
Section 504 and ADA claimants. These FAPE-related
discrimination claims themselves are untethered from
the text of Section 504 and the ADA.
Section 504 and the ADA provide that an
otherwise qualified person with a disability shall not
be excluded from participation in, be denied the
benefits of, or be subjected to discrimination in the
programs and activities where the disability is
irrelevant to the person’s ability to participate. 29
8
U.S.C. § 794; 42 U.S.C. § 12132.2 Public schools are
subject to both Section 504 and the ADA.
Petitioner did not contend that she was denied
admission to a school for which she alleged she was
otherwise qualified; e.g., Ellenberg v. New Mexico
Military Institute, 478 F.3d 1262, 1270 (10th Cir. 2007)
(student brought Section 504 and ADA claims alleging
that she was denied admission to specialized school);
or that she was denied admission to a class for which
she was otherwise qualified. E.g., C.O. v. Portland
Publ. Schs., 679 F.3d 1162, 1169 (9th Cir. 2012)
(student not “otherwise qualified” to participate in
program that required students to read at grade level
above the student’s ability). Nor did Petitioner allege
that school officials refused her physical access to a
classroom. E.g., D.R. ex rel. Courtney R. v. Antelope
Valley Union High Sch. Dist., 746 F. Supp. 2d 1132,
1145 (C.D. Cal. 2010) (school refused to give elevator
key to mobility-impaired student). These claims fit
squarely within the statutory text of Section 504 and
2
Section 504 provides: “No otherwise qualified individual
with a disability . . . shall be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination under
any program receiving Federal financial assistance.” 29 U.S.C. §
794.
The ADA provides: “[N]o qualified individual with a
disability, shall by reason of such disability, be excluded from
participation in, be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by
any such entity.” 42 U.S.C. § 12132. A qualified individual with
a disability “means an individual with a disability who, with or
without reasonable modifications . . . meets the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public
entity.” 42 U.S.C. § 12131(2).
9
the ADA and are sometimes called “pure
discrimination” claims. Ellensberg, 478 F.3d at
1280-81.
Petitioner’s complaint is that an educational
program that was designed exclusively for her and her
disability-related needs – an “individualized education
program” – did not meet a certain standard of
educational care or appropriateness or, as Petitioner
might phrase it, educational equality. See Petitioner’s
Op. br., p. 35 (“The legislative history of both statutes
confirms Congress’s desire to promote equal treatment
of all Americans with disabilities, across the board.”);
p. 37 (“The ADA and Rehabilitation Act were meant to
ensure equality, and their guarantees apply equally.”)
Petitioner could not have asserted her claim against a
covered entity that was not an elementary or
secondary school such as a public library. Fry v.
Napolean Comm. Schs., 580 U.S. 154, 171 (2017). Nor
could an adult assert such a claim against a school.
Id. Congress’s prohibition on discrimination by public
schools in Section 504 and the ADA does not
distinguish FAPE-related from pure discrimination
claims. Congress did not modify the noun
“discrimination” with the adjective “education-related.”
The sort of discrimination that is prohibited by Section
504 and the ADA must be found in the language and
structure of those statutes.
10
1. Federal statutes provide positive
and negative rights for students
with disabilities.
In purely literal terms, the word “discriminate”
means “to mark or perceive the distinguishing or
peculiar features.” W EBSTER ’ S N EW T HIRD
INTERNATIONAL DICTIONARY 647 (1986). Marking the
difference between distinguishing features is an
integral part of decision-making. A grocery store
cashier discriminates among nickels, dimes, and
quarters to come up with the correct change. The law
does not prohibit literal “discrimination”; it forbids
discrimination – marking the difference – when the
feature being marked is irrelevant to the decision
being made. A customer is entitled to the correct
change regardless of the color of the customer’s jacket.
In contrast to Section 504 and the ADA, under IDEA,
the provision of FAPE requires marking the difference
and programming for it.
This Court has explained that the Equal
Protection Clause does not prevent state and local
government in every instance from making choices
based upon distinguishing features. U.S. CONST.
amend. XIV. The Clause is activated when similarly
situated persons are treated differently because of a
particular distinguishing feature. Ross v. Moffitt, 417
U.S. 600, 609 (1974). The government’s use of a
distinguishing feature to treat similarly situated
persons differently must satisfy a certain level of
scrutiny depending on the feature that is used to
differentiate. See Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 227 (1995) (race – strict scrutiny); F.C.C.
v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)
11
(non-suspect classes – rational basis review). This is
true even when the features being marked reflect
certain vulnerabilities, including relative wealth or
disability. City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 442-443 (1985) (disability); San Antonio
Indep., Sch. Dist. v. Rodriguez, 411 U.S. 1, 18-29
(1973).
This Court has recognized that some forms of state
action by their nature involve “discretionary
decision-making based on a vast array of subjective,
individualized assessments.” Enquist v. Oregon Dep’t
of Agric., 553 U.S. 591, 603 (2008). When the state is
providing individualized services involving significant
discretion, “treating like individuals differently is an
accepted consequence of the discretion granted. In
such situations, allowing a challenge based on the
arbitrary singling out of a particular person would
undermine the very discretion that such state officials
are entrusted to exercise.” Id. The government’s choice
based on subjective and individualized features does
not implicate the Equal Protection Clause when a
protected category such as race is not at issue, even
when the choice is irrational or arbitrary. Id. at 604.
Thus, if a Veterans Administration physician misreads
a patient’s symptoms and prescribes the wrong course
of treatment, the physician might be exposed to a
medical malpractice claim, but not an Equal Protection
claim, despite the fact that the physician’s medical
discrimination fell below the standard of care.
Public education is rife with “disparate treatment”,
or “discrimination” based on subjective, individualized
assessments. Teachers assign grades. Students are
separated into remedial, grade-level, and
12
advanced-placement classes. Students are seated
alphabetically. Some students make the volleyball
team. Others are cut.
When educators make decisions like these based
on subjective, individual assessments, the law usually
has little to say. But the law may prohibit
consideration of characteristics that have nothing to do
with the activity. In Title VI of the Civil Rights Act of
1964, Congress said: “No person . . . shall, on the
ground of race, color, or national origin, be excluded
from participation in, be denied the benefits of, or be
subjected to discrimination under any program or
activity receiving Federal financial assistance.” 42
U.S.C. § 2000d. The presumption underlying Title VI
is that race, color, and national origin are irrelevant to
a student’s ability to participate in an educational
program or activity. Thus, Title VI prohibits covered
entities from subjecting similarly situated persons to
disparate treatment on the basis of race, color, and
national origin, a so-called negative right forbidding
the government from taking proscribed actions, as
opposed to a positive right requiring the government
to take prescribed actions. Toledo Area AFL-CIO
Council v. Pizza, 154 F. 3d 307, 319 (6th Cir. 1998)
(discussing negative and positive rights).
The obvious difference between Congress’s words
in Section 504 and Title VI is that a person with a
disability is eligible for the protection of the Act only if
the person is “otherwise qualified” to participate in the
program or activity. An “otherwise qualified person is
one who is able to meet all of a program’s
requirements in spite of his [disability].” Southeastern
Community College v. Davis, 442 U.S. 397, 406 (1979).
13
The “otherwise qualified” limitation brings the
prohibition of Section 504 into alignment with the
similarly-situated rubric of Title VI; a person with a
disability who is otherwise qualified to participate in
a program or activity cannot be excluded from the
program or activity because of a feature that is
irrelevant to the person’s ability to participate. In
Davis, this Court held that a person who relied on
lip-reading to communicate was not otherwise
qualified to participate in a nurse training program
that included a mandatory rotation in the operating
room where everyone is wearing a surgical mask,
making lip-reading impossible. Davis, 442 U.S. at 413.
To be sure, Davis emphasized that an entity’s
unreasonable refusal to modify an insubstantial
program requirement might violate the Act. Davis, 442
U.S. at 414. Nonetheless, the Court explained that
“[t]he language and structure of the Rehabilitation Act
of 1973 reflect a recognition by Congress of the
distinction between the evenhanded treatment of
qualified handicapped persons and affirmative efforts
to overcome the disabilities caused by handicaps.”
Davis, 442 U.S. 410. When Congress sought to expand
legal protections for individuals with disabilities to
nearly every corner of American life, it adopted Section
504’s understanding of disability discrimination into
the text of Title II of the ADA.
Two years after Section 504 was adopted, Congress
enacted the Education of All Handicapped Children
Act (EAHCA), now the Individuals with Disabilities
Education Act (IDEA). 20 U.S.C. § 1400 et seq. If
discrimination is “mark[ing] or perceive[ing] . . .
distinguishing or peculiar features,” WEBSTER’S NEW
THIRD INTERNATIONAL DICTIONARY 647 (1986), the
14
IDEA is, by design, highly and intentionally
discriminatory, requiring local educational agencies –
generally school districts – to locate, evaluate, and
identify children with disabilities. 20 U.S.C. §
1412(a)(1) & (3). A child with a disability is a child
with one or more disabilities who needs special
education and related services because of the
disability. 20 U.S.C. § 1401(3). Special education is
“specially designed instruction . . . to meet the unique
needs of [the] child.” 20 U.S.C. § 1401(29). Related
services are support services needed to assist the child
to benefit from the specially designed instruction. 20
U.S.C. § 1401(29).
Schools conducting IDEA evaluations use a variety
of assessment tools, strategies, and instruments
administered by trained personnel to gather relevant
functional, developmental, and academic data about a
child. 20 U.S.C. § 1414(b)(2) & (3). The child’s parents
receive a copy of the evaluation report and meet with
a team of qualified professionals to determine whether
the child has a disability and, if so, whether the child
needs specially designed instruction because of the
disability.3 20 U.S.C. § 1414(b)(4). If so, the parents
meet with another (often overlapping) team to develop
an “individualized education program” (IEP) for the
child. The child’s IEP is updated at least annually and
(1) describes the child’s present levels of academic
achievement and functional performance, including
how the child’s disability affects the child’s progress in
3
Thus, an academically gifted student with autism who
does not need special education services would be eligible for the
protections of Section 504 and the ADA, but not eligible for IDEA
services.
15
the general education curriculum, (2) sets annual
goals, and (3) describes how progress will be measured,
and the special education and related services to be
provided to the child. 20 U.S.C. § 1414(d)(1)(A) & (B).
The IEP is the bedrock of the central requirement
of the IDEA--a “free appropriate public education.” 20
U.S.C. § 1401(9); 20 U.S.C. § 1412(a)(1). Unlike Title
VI, Section 504, and the ADA, which confer a negative
right prohibiting schools from treating similarly
situated students differently because of irrelevant
criteria, the IDEA confers a positive right, requiring
schools to provide specialized instruction and services
to uniquely situated students. The IDEA thus
requires intentional, highly calibrated discrimination
and disparate treatment.
Parents who are dissatisfied with “any matter”
related to the provision of a FAPE may initiate a
contested hearing before an administrative hearing
officer. 20 U.S.C. § 1415(b)(6)(7); (f) & (i). Any party
aggrieved by the hearing officer’s findings can file an
action in state or federal court for review. 20 U.S.C. §
1415(i)(2)(A). In addition to injunctive relief ordering
schools to provide contested instruction and services,
IDEA remedies include requiring school districts to
reimburse parents for the cost of private schooling or
other services, Jefferson Cnty. Sch. Dist. v. Elizabeth
E., 702 F.3d 1227 (10th Cir. 2012), and requiring
school districts to provide compensatory education
services, Garcia v. Bd. of Educ., 520 F.3d 1116, 1124
(10th Cir. 2008), which can include multiple extra
years of specialized interventions. E.g., B.H. v. West
Clermont Bd. of Educ., 788 F. Supp. 2d 682, 700-02
(S.D. Ohio 2011) (affirming award of two years of
16
applied behavior analysis, remedial speech, and
occupational therapies). IDEA remedies, however, do
not include monetary damages.
2. FAPE-related
discrimination
claims under Section 504 closely
parallel IDEA claims.
Given the individualized nature of the IDEA
process, an IEP effectively makes each IDEA-eligible
child what Equal Protection jurisprudence would term
a “class of one.” As a result, this Court dismissed the
notion that IDEA disputes concerning the sufficiency
of services provided to a child can be resolved using an
“equal educational opportunity” standard. Bd. of
Educ. v. Rowley, 458 U.S. 176, 198 (1982).
The educational opportunities provided by our
public school systems undoubtedly differ from
student to student, depending upon a myriad
of factors that might affect a particular
student's ability to assimilate information
presented in the classroom. The requirement
that States provide “equal” educational
opportunities would thus seem to present an
entirely unworkable standard requiring
impossible measurements and comparisons.
Id. When the Court revisited Rowley thirty-five years
later, the Petitioner proposed an equality-based
standard. Brief for Petitioner, Endrew F. v. Douglas
County Sch. Dist., 478 U.S. 386 (2017) (No. 15-827),
2016 WL 6769009 at 40 (“substantially equal
opportunities to achieve academic success, attain
self-sufficiency, and contribute to society”). The Court
again declined to adopt one. Endrew F., 580 U.S. at
17
393 (free appropriate public education is too complex
to be captured by the word “equal”).
The adequacy of a child’s IEP cannot be measured
by comparing its effectiveness to the effectiveness of a
general education curriculum that produces high
academic achievers who pursue college, students who
focus on trades to enter the workforce, average
students, students who drop out, and everything in
between. Instead, the “[t]he adequacy of a given IEP
turns on the unique circumstances of the child for
whom it was created.” Endrew F. v. Douglas County
Sch. Dist., 580 U.S. 386, 404 (2017). An IEP must be
“reasonably calculated to enable a child to make
progress appropriate in light of the child’s
circumstances.” Id. at 403.
In 1977 and before EAHCA (now IDEA) became
effective in 1978,4 the Department of Health,
Education, and Welfare promulgated regulations
under Section 504 requiring elementary and secondary
schools to provide a “free appropriate public education”
to qualified handicapped children. 34 C.F.R. §
104.33(a). These regulations define an “appropriate
education” to be “regular or special education and
related aids and services that are designed to meet
individual educational needs of handicapped persons
as adequately as the needs of nonhandicapped persons
are met,”5 essentially the equal educational
4
See Christopher J. Walker, Adequate Access or Equal
Treatment: Looking Beyond the IDEA to Section 504 in a
Post-Schaffer Public School, 58 STAN L. REV. 1563,1588 (2006)
(discussing adoption of Section 504 regulations).
5
34 C.F.R. § 104.33(a) & (b) (emphasis added).
18
opportunities standard that Rowley, and, more
recently, Endrew F., dismissed as requiring impossible
measurements and comparisons. Endrew F., 580 U.S.
at 393; Rowley, 458 U.S. at 198.
The Section 504 FAPE regulations provide that
one way of meeting the “as adequately as the needs of
nonhandicapped persons are met” standard is to
implement an IDEA-compliant individualized
education program. 34 C.F.R. § 104.33(b)(2). As a
result, historically, many FAPE-related discrimination
claims brought under Section 504 and the ADA never
make it past the administrative hearing process
required by the IDEA to determine whether FAPE was
provided.6
6
This Court has cast doubt on the validity of the Section
504 FAPE regulations. The applicant in Davis contended that
regulations adopted under Section 504 required more substantial
changes to the nursing program that would have allowed the
applicant to qualify. Davis, 442 U.S. at 408-09. This Court rejected
the argument, expressing doubt that the regulations required the
sort of changes that would have been necessary to accommodate the
applicant, adding: “If these regulations were to require substantial
adjustments in existing programs beyond those necessary to
eliminate discrimination against otherwise qualified individuals,
they would do more than clarify the meaning of § 504. Instead,
they would constitute an unauthorized extension of the obligations
imposed by that statute.” Id. at 410; see also University of Texas v.
Camenisch, 451 U.S. 390, 399 (1981) (Burger, C.J., concurring)
(“The trial court must, among other things, decide whether the
federal regulations at issue, which go beyond the carefully
worded nondiscrimination provision of § 504, exceed the powers of
the Secretary under § 504.”) (emphasis in original). Across four
decades, this Court has held that “the IDEA guarantees
individually tailored educational services, while Title II [of the
ADA] and § 504 promise non-discriminatory access to public
institutions.” Fry, 580 U.S. at 170-71; see also Smith v. Robinson,
19
When FAPE-related discrimination claims under
Section 504 and the ADA do make it past the IDEA
adjudicative process, courts deciding such claims agree
that a violation of the IDEA is not necessarily a
violation of Section 504 and the ADA. Miller v. Bd. of
Educ., 565 F.3d 1232, 1238, 1245-46 (10th Cir. 2009)
(“The mere fact that complying with the IDEA is
sufficient to disprove educational discrimination does
not necessarily mean that every violation of the IDEA
necessarily proves a discrimination claim.”); Sellers v.
Sch. Bd., 141 F.3d 524, 529 (4th Cir. 998); D.A. v.
Houston Sch. Dist., 629 F.3d 450, 454 (5th Cir. 2010);
Monahan v. State of Nebraska, 687 F.2d 1164, 1170
(8th Cir. 1982).
When a public school student who has been served
under the IDEA through an IEP brings a case in
federal court asserting that the school district has not
provided FAPE under Section 504, this FAPE-related
discrimination claim closely parallels the claims that
are explicitly recognized under the IDEA--that is, “a
complaint with respect to any matter relating to the
identification, evaluation or placement of the child, or
the provision of a free appropriate public education to
such child.” 20 U.S.C. 1415(b)(6); see generally C.L.
v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 832
(2nd Cir. 2014) (Section 504 and ADA claims based on
failure to identify student as child with a disability);
B.M. v. South Calllaway R-II Sch. Dist., 732 F.3d 882
(8th Cir. 2013) (Section 504 and ADA claims based on
468 U.S. 992, 1016 (1984) (“Section 504 and the EHA are different
substantive statutes. While the EHA guarantees a right to a free
appropriate public education, § 504 simply prevents discrimination
on the basis of handicap.”)
20
alleged failure to address student’s behavioral issues);
G.C. v. Owensboro Publ. Schs., 711 F.3d 623, 634-35
(6th Cir. 2013) (section 504 and ADA claims based on
alleged failure to identify child per Section 504
regulations); D.A. v. Houston Indep. Sch. Dist., 629
F.3d 450, 451 (5th Cir. 2010) (Section 504 and ADA
claims based on alleged failure to evaluate student);
Mark H. v. Hamamoto, 620 F.3d 1090, 1096 (9th Cir.
2010) (Section 504 and ADA claims based on Section
504 FAPE regulations); Birmingham v. Omaha Sch.
Dist., 220 F.3d 850 (8th Cir. 2000) (Section 504 and
ADA claims based on claim school district graduated
student early); Heidemann v. Rother, 84 F.3d 1021,
1025-26 (8th Cir. 1996) (Section 504 and ADA claims
based on allegedly ill-advised behavioral strategy). In
IDEA, Congress explicitly recognizes the right of
students with disabilities to bring Section 504 and
ADA claims,7 but FAPE-related claims do not fit
neatly, or perhaps at all, within the nondiscrimination
language of Section 504 and the ADA.
7
20 U.S.C. §1415(l):
Nothing in this chapter shall be construed to
restrict or limit the rights, procedures, and
remedies available under the Constitution, the
Americans with Disabilities Act of 1990, title
V of the Rehabilitation Act of 1973, 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 procedures under subsections (f) and (g)
shall be exhausted to the same extent as
would be required had the action been brought
under this subchapter.
21
B. The Bad Faith/Gross Misjudgment
Standard for FAPE-Related
Discrimination Claims Reflects the
Discretionary Decision-making
Educators Are Legally Required to
Undergo.
Petitioner’s proposal to rely on the deliberate
indifference standard employed in “pure
discrimination” cases to assess liability in
FAPE-related cases avoids a crucial question that
Petitioner does not address: what is the federally
protected right at issue? Courts applying the
deliberate indifference standard require a plaintiff to
show both: (1) knowledge that a federally protected
right is substantially likely to be violated and (2)
failure to act despite that knowledge.” D.E. v. Central
Dauphin Sch. Dist., 765 F.3d 260, 269 (3d Cir. 2014)
(italicized emphases in original, bolded emphasis
added).
The right distilled from the language of Section
504 and the ADA is the right of a person with a
disability who, with or without reasonable
accommodation, is otherwise qualified to participate in
a program or activity but is excluded from, or denied
the benefits of, the program or activity because of a
disability. Thus, a deliberate indifference inquiry
would require a court to find that (1) the covered entity
knew the plaintiff was otherwise qualified to
participate in the program or activity with or without
a reasonable accommodation; (2) knew there was a
substantial likelihood the plaintiff would be excluded
from, or denied the benefits of, the program or activity;
and (3) failed to prevent the exclusion or denial.
22
A FAPE-related discrimination claim does not fit
within this rubric because the right asserted in such a
claim is the right to specialized instruction and
services designed to address the unique learning needs
created by the child’s disability. Even if Section 504
and the ADA are construed to require the provision of
specialized instruction and services to meet the unique
needs created by a child’s disability, this Court is
asked to articulate the federally protected right at
stake that, if not met, allows a plaintiff to recover
money damages. In other words, what level of services
satisfy Section 504 and the ADA’s antidiscrimination
provisions?
One possible source for determining what level of
specially designed services would be satisfactory under
Section 504 and the ADA could be Section 504’s FAPE
regulations,8 a source that implicitly admits that the
standard is not found in the statutory language of
Section 504 or the ADA. The relevant deliberate
indifference standard might then read: “School officials
knew that there was a substantial likelihood that the
specialized instruction and services provided to the
8
The Section 504 regulations require federal funding
recipients that operate an elementary or secondary school to
provide “free appropriate public education,” in order to meet the
requirements of Section 504. FAPE is defined as “[t]he provision
of regular or special education and related aids and services that
(i) are designed to meet individual educational needs of
handicapped persons as adequately as the needs of
nonhandicapped persons are met and (ii) are based upon
adherence to procedures that satisfy the requirements of §§
104.34, 104.35, and 104.36.
34 C.F.R. § 104.33
23
plaintiff were not sufficient to meet the educational
needs of the plaintiff as adequately as the needs of
students without disabilities are met but failed to
provide such services.” 34 C.F.R. § 104.33. This
proposal amounts to an effort to relitigate the “equal
educational opportunity standard” that was rejected in
Rowley and Endrew F. as “unworkable,” requiring
“impossible measurements and comparisons.” Endrew
F., 580 U.S. at 393; Rowley, 458 U.S. at 198.9
Setting aside the issue of whether the Section 504
FAPE regulations are a valid exercise of regulatory
authority, Fry, 580 U.S. at 170-71 (“[T]he IDEA
guarantees individually tailored educational services,
while Title II [of the ADA] and § 504 promise
non-discriminatory access to public institutions.”);
Camenisch, 451 U.S. at 399 (Burger, C.J., concurring)
(“The Secretary has no authority to rewrite the
statutory scheme by means of regulations.”), reciting
an unworkable standard in a regulation does not make
“impossible measurements and comparisons” possible.
The equal educational opportunity standard does not
present an evidence-based inquiry. For example, in
this case, the comparison was between six hours of
9
The regulations provide a list of prohibited
discriminatory actions, then explain “For purposes of this part,
aids, benefits, and services, to be equally effective, are not
required to produce the identical result or level of achievement for
handicapped and nonhandicapped persons, but must afford
handicapped persons equal opportunity to obtain the same result,
to gain the same benefit, or to reach the same level of
achievement, in the most integrated setting appropriate to the
person's needs.”
34 C.F.R. § 104.4(b)(2)
24
instruction provided to general education students
versus four and one-quarter hours of instruction
provided to Petitioner. Even on the surface, that is not
a straightforward comparison. But the question
becomes even less straightforward when further
fleshed out. The question is whether six hours of
one-size-fits-all classroom instruction is equivalent to
four and one-quarter hours of specialized instruction
and services that are designed to meet a particular
child’s unique learning needs and are delivered in a
small group, if not individualized, setting. All things
being equal, many, if not most, parents might prefer
that their child receive the four and one-quarter hours
of intensive specially designed instruction over six
hours of general classroom instruction.
If the right at stake turns on the adequacy of the
school’s response to the challenges faced by the child,
the only workable comparison is between the student’s
needs and the services provided to meet those needs.
A deliberate indifference standard reflecting that
reality might read: “School officials knew there was a
substantial likelihood the specialized instruction and
services provided to the plaintiff were not reasonably
calculated to enable the plaintiff to make progress
appropriate in light of the child’s circumstances but
failed to provide sufficient services.” This standard, of
course, reflects the dispositive question in IDEA
litigation. Endrew F. 580 U.S. at 403.
The Endrew F. standard is derived from the
language of the IDEA which “guarantees individually
tailored educational services,” not from Section 504
and the ADA which only “promise non-discriminatory
access to public institutions.” Fry, 580 U.S. at 170-71.
25
Thus, any standard that paraphrases the Endrew F.
standard would be based on the text of the IDEA, not
the text of Section 504 and the ADA. Moreover,
adopting such a standard would convert Section 504
and ADA claims into surrogates for IDEA claims,
surrogates that come with a damages remedy. Given
this Court’s recent decision in Perez v. Sturgis Public
Schools, 598 U.S. 142 (2023) that Section 504 and ADA
claims seeking damages need not be processed through
the IDEA’s administrative hearing system, Id. at 150,
the surrogate claims almost certainly would leave the
IDEA’s administrative hearing process, its
education-oriented remedies, and perhaps the IDEA
itself, as nothing more than off-ramps that a litigant
could bypass on the road to monetary damages, as well
as the compensatory remedies available under the
IDEA. And, as noted above, a violation of the IDEA is
not necessarily a violation of Section 504 and the ADA.
Miller, 565 F.3d at 1246 (10th Cir. 2009); Sellers, 141
F.3d at 529; D.A., 629 F.3d at 454; Monahan, 687 F.2d
at 1170.
Given the unique nature of an education-related
“discrimination” claim under Section 504, the
overlapping “FAPE” requirements set out in the
Section 504 regulations, and the parallel rights
provided in IDEA, it is not surprising that when the
Eighth Circuit was confronted with an
education-related discrimination claim, it held: “We do
not read § 504 as creating general tort liability for
educational malpractice, especially since the
Supreme Court, in interpreting the EAHCA itself, has
warned against a court’s substitution of its own
judgment for educational decisions made by state
officials.” Monahan, 687 F.2d at 1170-71. Other
26
circuits have come to the same conclusion. D.A., 629
F.3d at 454 (Section 504 and the ADA do not create
“general tort liability for educational malpractice”;
Smith v. Special Sch. Dist. No. 1, 184 F.3d 764, 769
(8th Cir. 1999) (Section 504 and the ADA do not create
“general tort liability for educational malpractice”);
Sellers, 141 F.3d at 529 (Section 504 “did ‘not create a
private cause of action for damages for educational
malpractice.’”) quoting Hall v. Vance County Bd. of
Educ., 774 F.2d 629, 633 n. 3 (4th Cir.1985); see also
Lunceford v. District of Columbia, 745 F.2d 1577, 1580
(D.C. Cir. 1984) (no Section 504 claim where student
allegedly was negligently discharged from educational
placement); see also Torrence v. District of Columbia,
669 F. Supp. 2d 68, 71-72 (D.D.C. 2009) (educational
malpractice not actionable under Section 504; Ms. H.
v. Montgomery Bd. of Educ., 784 F. Supp. 2d 1247,
1263 (M.D. Ala. 2011); Wenger v. Canastota Cent. Sch.
Dist., 979 F. Supp. 147, 152-53 (N.D.N.Y. 1997); A.W.
v. Marlborough Co., 25 F. Supp. 2d 27, 31-32 (D. Conn.
1998).
In addition, even outside the special education
setting, the majority of courts refuse to recognize a
common law claim for educational malpractice because
of a lack of a workable standard of care, difficulties
assigning causation, and the danger of embroiling
courts in overseeing instruction. James A. Rapp,
EDUCATION LAW, vol. 5, § 12.05[3] (2023 Supp.)
Nonetheless, there may be instances when more than
simple negligence is afoot and the failure to respond to
the unique challenges posed by a child’s disability was
so deficient as to violate both the IDEA’s positive right
to individualized instruction and Section 504 and the
ADA’s negative prohibition against discrimination.
27
Five circuits draw the line by asking whether the
affirmative efforts that were taken in response to the
challenges created by the disability were so deficient
as to be a product of bad faith or gross misjudgment.
C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826,
841 (2d Cir. 2014); G.C. v. Owensboro Publ. Schs., 711
F.3d 623, 635 (6th Cir. 2013); D.A., 629 F.3d at 454
(5th Cir.); Sellers, 141 F.3d at 529 (4th Cir.); see also
Reid-Witt ex rel. C.W. v. Dist. of Columbia., 486 F.
Supp. 3d 1, 7 (D.D.C. 2020) (district courts in the
circuit for the District of Columbia uniformly use the
bad faith or gross misjudgment standard).
Monahan’s bad faith or gross misjudgment
standard exists in harmony with Congress’s direction
that “Nothing in [the IDEA] shall be construed to
restrict or limit the rights, procedures, and remedies
available under the Constitution, the [ADA], [Section
504] or other Federal laws protecting the rights of
children with disabilities.” 20 U.S.C. § 1415(l). The
bad faith or gross misjudgment standard ensures that
FAPE-related discrimination claims go no farther than
the nondiscrimination prohibition of Section 504 and
the ADA, not because the IDEA requires
individualized instruction and services, but because
Section 504 and the ADA do not.
28
II. IF THIS COURTS ADOPTS A DAMAGES
STANDARD FOR FAPE-RELATED CLAIMS
UNDER SECTION 504 THAT DOES NOT
RECOGNIZE THE EXPERTISE AND
DISCRETION OF SCHOOL PERSONNEL,
SCHOOLS WILL FACE POTENTIAL
LIABILITY UNFORESEEN BY CONGRESS.
More than forty years ago, this Court noted the
confusion caused by FAPE-related claims under
Section 504: “[C]ourts construing § 504 as applied to
the educational needs of handicapped children have
expressed confusion about the extent to which § 504
requires special services necessary to make public
education accessible to handicapped children.” Davis,
468 U.S. at 1018. “We need not decide the extent of
the guarantee of a free appropriate public education
Congress intended to impose under § 504.” Id.
As this Court considers the extent of that
guarantee now, Amici urge the Court to consider the
effect of its decision on public schools. While
FAPE-related Section 504 suits existed long before
Perez, they are now more common and will surely
increase if something less than bad faith or gross
misjudgment is the standard for FAPE-related
liability. E.g., D.H.H. v. Kirbyville Consolidated Indep.
Sch. Dist., No. 20-40315, 2021 WL 4948918 (5th Cir.
2021) (unpublished) (failure to find student eligible
under IDEA); A.G. v. Paradise Valley Unif. Sch.
Dist., 815 F.3d 1195 (9th Cir. 2016) (failure to provide
BIP and full-time aide for student to stay in particular
placement desired by parents); A.L. v. Special Sch.
Dist. of St. Louis, No. 4:24CV179 HEA, 2024 WL
4564210 (E.D. Mo. 2024) (failure to timely evaluate a
29
student for special education services); P.W. v. Leander
Indep. Sch. Dist., No. 1:21-CV-00722-DAE, 2022 WL
19003381 (W.D. Tex. 2023) (failure to timely evaluate
for special education services); J.G. v. Los Angeles
Unif. Sch. Dist., LACV 20-01593 JGB, 2023 WL
8125847 (C.D. Cal. 2023) (failure to place student in
the least restrictive environment); Piotrowski v. Rocky
Point Union Free Sch. Dist., 18-CV-6262, 2023 WL
2710341 (E.D. N.Y. 2023) (failure to conduct a proper
manifestation determination review); B.D. v. Fairfax
Co. Sch. Bd., 1:18-cv-1425 , 2019 WL 692804 (E.D. Va.
2019) (failure to properly implement student's IEP);
J.S. III v. Houston Co. Bd. of Educ., 120 F.Supp.3d
1287(M.D. Ala. 2015) (removal from general education
setting). Litigation drains resources, creates
adversarial rather than collaborative relationships,
and draws educators and families away from the task
at hand: educating children with disabilities. With this
caveat in mind, Amici urge this Court to proceed with
caution in deciding this important case.
Amici urge the Court to clarify that Section 504
and the ADA confer only the right to be free from
disability discrimination, not an affirmative right to
specialized services to address the challenges created
by a child’s disability. The Court has invoked such a
distinction across four decades and should continue to
do so.
Fry, 580 U.S. at 170-71 (“[T]he IDEA
guarantees individually tailored educational services,
while Title II [of the ADA] and § 504 promise
non-discriminatory access to public institutions.”);
Davis, 442 U.S. at 410 (“[t]he language and structure
of the Rehabilitation Act of 1973 reflect a recognition
by Congress of the distinction between the evenhanded
treatment of qualified handicapped persons and
30
affirmative efforts to overcome the disabilities caused
by handicaps.”) Across those same decades, Congress
has not changed the language of Section 504 or the
ADA.
Confirming that Section 504 and the ADA provide
protection against the sort of actions giving rise to
pure discrimination claims will not diminish the
affirmative obligation of public school systems to
provide children with disabilities with specialized
instruction and services to meet the unique learning
needs arising from their disabilities, nor limit families’
access to the legal system when they believe school
districts are being unresponsive to the educational
needs of their children. These obligations and
opportunities are a product of the IDEA and will
continue to exist regardless of what the Court decides
in this case.
Confirming that Section 504 and the ADA embrace
only pure discrimination claims will not diminish the
ability of students with disabilities to invoke the
nondiscrimination protections of Section 504 and the
ADA to the same extent as all other persons who are
protected by the statutes. Public school systems will
be subject to the same restrictions imposed on all
entities covered by Section 504 and the ADA and will
remain subject to the affirmative obligations of the
IDEA. And public school staff will continue to apply
their considerable discretion and expertise to provide
appropriate educational programs for all students with
disabilities.
31
CONCLUSION
Consistent with all of the above, Amici urge the
Court to hold that the bad faith or gross misjudgment
standard should be used to determine when a school
district’s failure to provide FAPE is so egregious as to
violate both eh affirmative obligations of the IDEA and
the nondiscrimination limits of Section 504 and the
ADA. Significant pains could be inflicted on the
interested parties by a different decision. Amici 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. Litigation distorts the allocation of
educational resources. Uncertainty breeds litigation.
Amici urge the Court to strive for continuity and
certainty.
Respectfully submitted,
SONJA H. TRAINOR
Counsel of Record
NATIONAL SCHOOL
ATTORNEYS ASSOCIATION
2801 N. LINCOLN BOULEVARD
SUITE 220
OKLAHOMA CITY, OK 73105
(405) 528-3571
strainor@nsaa.legal
W. STUART STULLER
CAPLAN AND EARNEST, LLC
3701 IRIS AVENUE
SUITE 100
BOULDER, CO, 80301
(303) 443-8010
sstuller@celaw.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.