Reply 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 WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

REPLY 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

URIEL HINBERG

LATHAM & WATKINS LLP

555 11th Street, NW

Suite 1000

Washington, DC 20004

(202) 637-3377

roman.martinez@lw.com

GRAHAM AMBROSE

LATHAM & WATKINS LLP

200 Clarendon Street

Boston, MA 02116

Counsel for Petitioner

i

TABLE OF CONTENTS

Page

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

INTRODUCTION .......................................................1

ARGUMENT ...............................................................3

I.

The District Concedes The Question

Presented .............................................................3

II.

The District’s Radical New Argument Is

Procedurally Improper ........................................5

A. The District’s New Theory Would

Revolutionize

Anti-Discrimination

Law ..............................................................5

B. The District’s New Theory Is Not

Properly Presented ...................................11

III. The District’s Radical Theory Is Wrong ...........17

CONCLUSION ..........................................................25

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Alexander v. Choate,

469 U.S. 287 (1985) ...................... 6, 7, 9, 14, 17, 19

Babb v. Wilkie,

589 U.S. 399 (2020) ..............................................21

Barnes v. Gorman,

536 U.S. 181 (2002) ........................................21, 22

Bostock v. Clayton County,

590 U.S. 644 (2020) ................................................6

Byrd v. United States,

584 U.S. 395 (2018) ..............................................13

Cinnamon Hills Youth Crisis Center, Inc.

v. Saint George City,

685 F.3d 917 (10th Cir. 2012)......................6, 8, 19

Constantine v. Rectors & Visitors of

George Mason University,

411 F.3d 474 (4th Cir. 2005)................................24

Cummings v. Premier Rehab Keller,

P.L.L.C.,

596 U.S. 212 (2022) ..............................................21

Davis v. Monroe County Board of

Education,

526 U.S. 629 (1999) ..............................................11

Dean v. United States,

556 U.S. 568 (2009) ..............................................18

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Doe v. BlueCross BlueShield of Tennessee,

Inc.,

926 F.3d 235 (6th Cir. 2019)............................8, 19

In re Fobian,

951 F.2d 1149 (9th Cir. 1991)..............................15

Food & Drug Administration v. Wages &

White Lion Investments, LLC,

145 S. Ct. 898 (2025)............................................17

Franklin v. Gwinnett County Public

Schools,

503 U.S. 60 (1992) ................................................21

Fry v. Napoleon Community Schools,

580 U.S. 154 (2017) ............................................7, 9

Gebser v. Lago Vista Independent School

District,

524 U.S. 274 (1998) .................................. 11, 21, 22

Glover v. United States,

531 U.S. 198 (2001) ..............................................13

Granite Rock Co. v. International

Brotherhood of Teamsters,

561 U.S. 287 (2010) ..............................................13

Husted v. A. Philip Randolph Institute,

584 U.S. 756 (2018) ..............................................18

International Union, United Automobile,

Aerospace & Agricultural Implement

Workers v. Johnson Controls, Inc.,

499 U.S. 187 (1991) ..............................................10

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Jackson v. Birmingham Board of

Education,

544 U.S. 167 (2005) ..............................................23

Knox County v. M.Q.,

62 F.4th 978 (6th Cir. 2023) ................................10

Liese v. Indian River County Hospital

District,

701 F.3d 334 (11th Cir. 2012)................................9

Loeffler v. Staten Island University

Hospital,

582 F.3d 268 (2d Cir. 2009) ...................................9

Meagley v. City of Little Rock,

639 F.3d 384 (8th Cir. 2011)................................10

Miller v. Texas Tech University Health

Sciences Center,

421 F.3d 342 (5th Cir. 2005)................................24

Monahan v. Nebraska,

687 F.2d 1164 (8th Cir. 1982)............................1, 3

National Federation of the Blind v.

Lamone,

813 F.3d 494 (4th Cir. 2016)..................................9

New Hampshire v. Maine,

532 U.S. 742 (2001) ........................................11, 12

Norfolk Southern Railway Co. v. Sorrell,

549 U.S. 158 (2007) .................................. 15, 16, 17

OBB Personenverkehr AG v. Sachs,

577 U.S. 27 (2015) ................................................13

v

TABLE OF AUTHORITIES—Continued

Page(s)

Pennsylvania Department of Corrections

v. Yeskey,

524 U.S. 206 (1998) ..............................................23

South Central Bell Telephone Co. v.

Alabama,

526 U.S. 160 (1999) ..............................................16

School Board of Nassau County v. Arline,

480 U.S. 273 (1987) ................................................7

Southeastern Community College v.

Davis,

442 U.S. 397 (1979) ..........................................7, 19

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard

College,

600 U.S. 181 (2023) ..............................................10

Taylor v. Freeland & Kronz,

503 U.S. 638 (1992) ..............................................13

Tennessee v. Lane,

541 U.S. 509 (2004) ............................................7, 9

Toledo v. Sánchez,

454 F.3d 24 (1st Cir. 2006) ..................................24

Travelers Casualty & Surety Co. of

America v. Pacific Gas & Electric Co.,

549 U.S. 443 (2007) ........................................14, 15

United States v. Miller,

145 S. Ct. 839 (2025)......................................13, 16

vi

TABLE OF AUTHORITIES—Continued

Page(s)

University of Texas Southwestern Medical

Center v. Nassar,

570 U.S. 338 (2013) ..............................................18

West v. Gibson,

527 U.S. 212 (1999) ..............................................13

Wilson v. Seiter,

501 U.S. 294 (1991) ..............................................23

STATUTES AND REGULATIONS

20 U.S.C. § 1681(a)....................................................10

29 U.S.C. § 794(a)......................................................18

29 U.S.C. § 794(c) ......................................................19

42 U.S.C. § 2000d ......................................................10

42 U.S.C. § 2000e-2 ...................................................10

42 U.S.C. § 12131(2) ..................................................19

42 U.S.C. § 12132 ................................................18, 19

42 U.S.C. § 12133 ................................................20, 21

42 U.S.C. § 12201 ......................................................20

42 U.S.C. § 12201(h) .................................................19

28 C.F.R. § 35.130(b)(7) ........................................7, 20

28 C.F.R. § 41.53 .........................................................7

28 C.F.R. § 41.56 .........................................................7

vii

TABLE OF AUTHORITIES—Continued

Page(s)

OTHER AUTHORITIES

118 Cong. Rec. 526 (Jan. 20, 1972) ...........................20

42 Fed. Reg. 22676 (May 4, 1977) ........................7, 20

56 Fed. Reg. 35694 (July 26, 1991).......................7, 20

H.R. Rep. No. 101-485, pt. 2 (1990) ..........................20

Stephen M. Shapiro et al., Supreme

Court Practice (11th ed. 2019) .............................11

Supreme Court Rule 15.2 .........................................12

Supreme Court Rule 24.1(a) .....................................13

Supreme Court Rule 24.2 .........................................13

1

INTRODUCTION

The District has a problem. For four years, it

defended the Eighth Circuit’s asymmetric Monahan

rule as correctly interpreting Title II of the Americans

with Disabilities Act (ADA) and Section 504 of the

Rehabilitation Act.

The District consistently

maintained that Monahan v. Nebraska, 687 F.2d 1164

(8th Cir. 1982), “appropriately developed” a special

rule applying only to a “unique subset” of claims

brought by children with disabilities against their

schools. BIO2. The District won on that theory at

every stage below and tried to avoid certiorari on that

basis here too.

The District’s problem is that this Court granted

review—and Monahan’s asymmetric rule is

indefensible. So now the game is up. The District

knows there is no way the Court will interpret the

same statutory provision to create a two-tier standard

of justice imposing a uniquely stringent bad-faith-orgross-misjudgment requirement only on vulnerable

children who face disability discrimination at school.

Desperate times call for desperate measures. And

so just four weeks before oral argument, the District

conceded the question presented, abandoned its prior

arguments, and undertook a massive flip-flop.

Before, the District defended imposing different

standards on different plaintiffs, BIO26-27—but now

it concedes that the same rules apply to everyone,

Resp.Br.2. Before, the District acknowledged that

both statutes “target[] unintentional discriminatory

acts” and thus require “reasonable accommodations,”

BIO7, 30—but now it says these laws demand a

discriminatory

“motive”

and

thus

foreclose

paradigmatic reasonable-accommodation claims.

2

Resp.Br.2.

Before, the District described Ava’s

“question presented” as “narrow” and impacting only

school-age children with disabilities, BIO23—but now

it asks this Court to embrace a new “across the board”

rule that would impair the rights of all victims of

disability discrimination, Resp.Br.2.

This Court should not bless the District’s tactics.

This case has always been about whether Monahan’s

“uniquely stringent” rule for school children with

disabilities is a valid exception to the baseline

standards that apply to all other plaintiffs. Pet.i. The

District now concedes no exception is warranted. The

Court should accept that concession and overturn the

decision below.

This Court should not entertain the District’s new

arguments for applying Monahan’s bad-faith-orgross-misjudgment test to everyone.

Judicial

estoppel and this Court’s rules bar the District from

overhauling its longstanding position and expanding

the question presented. Enforcing these procedural

doctrines is especially imperative given the

revolutionary—and uniformly harmful—impact of

the District’s new theory.

If the District’s new theory is considered, the

Court should reject it. The District’s approach would

gut the ADA and Rehabilitation Act in their most

paradigmatic applications. It would violate the text,

flout precedent, and upend settled law across the

country. This Court should answer Ava’s question

presented and vacate the Eighth Circuit’s judgment.

3

ARGUMENT

I. The District

Presented

Concedes

The

Question

This Court granted certiorari to decide whether

children with disabilities bringing education-related

claims under the ADA and Rehabilitation Act1 must

satisfy a heightened, context-specific test (as five

circuits have held), or meet the same standards as

everyone else suing under these statutes (as two

circuits have held). Pet.i. The District now concedes

that the former asymmetric regime cannot stand.

Resp.Br.2. That should end this case.

1. The Eighth Circuit denied Ava relief under

Monahan’s exception to the general rules governing

ADA and Rehabilitation Act claims. Pet.App.4a-5a &

n.2. “[W]hen the alleged ADA and [Rehabilitation

Act] violations are ‘based on educational services for

disabled children,’” the Eighth Circuit explained, “a

school district’s simple failure to provide a reasonable

accommodation is not enough to trigger liability.” Id.

at 3a. Instead, under Monahan, children with

disabilities “must prove that school officials acted

with ‘either bad faith or gross misjudgment,’” even

though “much less” is required “in other disabilitydiscrimination contexts. Id. at 3a & 5a n.2.2

Ava accordingly sought certiorari on whether

Monahan properly subjects education-related claims

1 Unless otherwise noted, “ADA” refers to Title II, and

“Rehabilitation Act” refers to Section 504.

2 Monahan itself unmistakably established a special rule

for “the context of handicapped children,” as courts have

recognized.

687 F.2d at 1170-71 (also noting desire to

“harmonize” the Rehabilitation Act and the IDEA’s predecessor

statute); Pet.15-17 (citing cases); contra Resp.Br.2, 24-25.

4

brought by children with disabilities to a “uniquely

stringent” standard. Pet.i, 2-3, 13, 15-16, 22, 24, 27.

Ava described the 5-2 circuit split as involving

whether “the ADA and Rehabilitation Act’s generally

applicable provisions” impose “a heightened standard

on children with disabilities and no one else.” Id. at

14-21. On the merits, Ava argued that applying this

“uniquely stringent” test in one factual context

“cannot be squared with statutory text, structure, or

purpose.” Id. at 22-30. Her supplemental and reply

briefs likewise took aim at Monahan’s asymmetric

regime. Suppl.Br.1, 3-5; Cert.Reply.1-8.

The District’s brief opposing certiorari understood

this framing and joined issue only on Ava’s narrow

question presented.

The District defended

Monahan’s asymmetry by arguing that primary and

secondary education is a “unique context” giving rise

to a “unique subset” of ADA and Rehabilitation Act

claims calling for a “different standard,” even as

compared to “college students.” BIO2-3, 31 n.3;

see, e.g., id. at 1, 7, 27-28. And the District justified

Monahan as an “appropriate[]” attempt to fashion “a

‘sensible remedial scheme’” for “the education

context.” Id. at 26-27.

Ava’s merits brief then comprehensively explained

why statutory text, structure, history, and purpose

demonstrate that the “same standards apply to

everyone.” Pet.Br.2; see id. at 23-47. That submission

emphasized that her question presented “does not ask

the Court to decide what standard should uniformly

govern all claims.” Id. at 30 n.7.

2. Unable to defend Monahan’s two-tiered

approach, the District now agrees with Ava that the

same standards apply “across the board.” Resp.Br.2.

It accepts “the usual rule that statutory provisions

5

should carry a consistent meaning,” no matter who a

plaintiff is or how her claims arose. Id. at 24. And it

does not contest Ava’s dozens of pages of argument

attacking Monahan’s asymmetric standard. See

Pet.Br.23-47.

The District’s eleventh-hour concession resolves

the question presented. As all parties now agree, the

same rules apply to everyone:

Children with

disabilities bringing education-related claims are not

subject to a “uniquely stringent” test for liability.

Pet.i.

The Court should accept the District’s

concession and issue a straightforward decision

rejecting Monahan’s two-tiered approach.

II. The District’s Radical New Argument Is

Procedurally Improper

Rather than defend Monahan’s asymmetry, the

District now advances a radical new interpretation of

the ADA and Rehabilitation Act. The District argues

that all plaintiffs—not just children with disabilities

bringing education-related claims—must satisfy

Monahan’s bad-faith-or-gross-misjudgment test.

Resp.Br.2. That reading would upend longstanding

precedent from this Court and every circuit, while

gutting core ADA and Rehabilitation Act protections.

It also directly contradicts the District’s position

below and at the certiorari stage. The Court should

refuse to consider the District’s new theory.

A. The District’s New Theory Would

Revolutionize Anti-Discrimination Law

Previously, the District called this a “narrow” case

affecting only a limited “universe of plaintiffs,”

namely school-age children with disabilities. BIO23.

Now, the District advances a sweeping argument

threatening to eviscerate protections for every

6

American who endures disability discrimination—

and quite possibly other kinds of discrimination too.

No court has ever embraced anything close to the

District’s new rule.

1. For decades, the ADA and Rehabilitation Act

have been understood to target not just “invidious

animus” against people with disabilities, but also

“thoughtlessness and indifference” toward their

unique needs. Alexander v. Choate, 469 U.S. 287, 295

(1985). With most forms of discrimination—such as

discrimination based on race, sex, or religion—the

protected characteristic is usually “not relevant” to a

defendant’s decisionmaking, and the statutory goal is

to eliminate that impermissible consideration.

Bostock v. Clayton County, 590 U.S. 644, 660 (2020).

But disability discrimination is different. A disability

often itself precludes “meaningful access” to programs

or services. Choate, 469 U.S. at 301. As a result,

“discrimination against the handicapped is primarily

the result of apathetic attitudes rather than

affirmative animus.”

Id. at 296. People with

disabilities are “shunted aside, hidden, and ignored”

more frequently than they are hated, threatened, or

harassed. Id. at 295-96.

Eradicating these “shameful oversights” requires

“reasonable accommodations,” even without evidence

of intentional discrimination. Id. at 295-96, 300 n.20.

Merely treating disability as an impermissible

consideration does not solve the problem. Rather, it

is “necessary to dispense with formal equality of

treatment” and instead “require changes in otherwise

neutral policies that preclude the disabled from

obtaining” equal access to “opportunities that those

without disabilities automatically enjoy.” Cinnamon

Hills Youth Crisis Ctr., Inc. v. Saint George City, 685

7

F.3d 917, 923 (10th Cir. 2012) (Gorsuch, J.) (emphasis

omitted); accord 42 Fed. Reg. 22676 (May 4, 1977).

Accordingly, the ADA and Rehabilitation Act have

always required “reasonable accommodations,”

regardless of a covered entity’s intent. Choate, 469

U.S. at 301. And a “refusal to accommodate the needs

of a disabled person amounts to discrimination

against the handicapped” whenever the denial is

“unreasonable.” Se. Cmty. Coll. v. Davis, 442 U.S.

397, 412-13 (1979); accord Sch. Bd. of Nassau Cnty. v.

Arline, 480 U.S. 273, 287-88 & n.17 (1987); Fry v.

Napoleon Cmty. Schs., 580 U.S. 154, 159-60 (2017).

Discriminatory intent or animus need not be

shown to establish an ADA or Rehabilitation Act

violation. On the contrary, “[r]ecognizing that failure

to accommodate persons with disabilities will often

have the same practical effect as outright exclusion,

Congress required the States to take reasonable

measures” to remove “barriers to accessibility.”

Tennessee v. Lane, 541 U.S. 509, 531 (2004). And the

paradigmatic application of these laws is mandating

the removal of “architectural barriers” that “were

clearly not erected with the aim or intent of excluding

the handicapped.” Choate, 469 U.S. at 297.

Consistent with these precedents, every circuit

has held, as a general rule, that a plaintiff can

establish a statutory violation without proving

discriminatory intent. Pet.Br.8-9 & n.1. And the

ADA and Rehabilitation Act’s regulations have

always required “reasonable modifications” when

“necessary to avoid discrimination on the basis of

disability.” 56 Fed. Reg. 35694, 35718-19 (July 26,

1991) (ADA) (now codified at 28 C.F.R. § 35.130(b)(7));

see 42 Fed. Reg. at 22680-81 (Rehabilitation Act) (now

codified at 28 C.F.R. §§ 41.53, .56).

8

The District once conceded these points. In

opposing certiorari, it acknowledged that by requiring

“reasonable accommodations,” the ADA and

Rehabilitation

Act

“target[]

unintentional

discriminatory acts.” BIO7, 30. And it defended

Monahan as applying only in the “unique context” of

claims against schools. Supra 4.

2. The District’s new argument throws all this out

the window. Now, the District says that all ADA and

Rehabilitation Act plaintiffs must show “bad faith or

gross misjudgment” to establish a violation and

obtain injunctive relief, such that the statutes do not

“create intent-free reasonable accommodation

claims.” Resp.Br.38.3 According to the District, the

statutes cover only actions based on “an improper

purpose”—i.e., a discriminatory “motive.” Id. at 2.

And the same conduct can be “lawful if taken for one

reason, but unlawful if taken for another.” Id. at 16.

What matters is whether the defendant acted “for

improper,

bad-faith

reasons”

demonstrating

“intentional discrimination” against people with

disabilities. Id. at 18.

The District’s “motive-focused” test, id. at 36,

would revolutionize the settled understandings of the

ADA and Rehabilitation Act. It would overturn the

unanimous circuit consensus that, outside the school

setting, reasonable-accommodation claims are viable

without intentional discrimination. Pet.Br.8-9. More

3 Contrary to the District (Resp.Br.2, 37-38), a “claim

based on a denial of a reasonable accommodation differs from a

disparate-impact claim.” Doe v. BlueCross BlueShield of Tenn.,

Inc., 926 F.3d 235, 243 (6th Cir. 2019) (Sutton, J.); accord

Cinnamon Hills, 685 F.3d at 922 (Gorsuch, J.). The former is

permitted, even in the one circuit holding that the latter is not.

Doe, 926 F.3d at 243-45.

9

importantly, the District’s theory would immunize

“much of the conduct that Congress sought to alter in

passing” those statutes, Choate, 469 U.S. at 296-97—

with shocking consequences.

Consider some examples.

People “who use

wheelchairs for mobility” could not establish a

statutory violation when a courthouse has “no

elevator” or other means of access—even if forced to

“crawl[] up two flight of steps”—unless they could

prove that the architectural design constituted

intentional discrimination. Lane, 541 U.S. at 513-14.

So too for someone with “cerebral palsy” if “a public

library or theater had refused admittance” to her

“service dog” based on a generally applicable rule

prohibiting animals. Fry, 580 U.S. at 161-62, 175.

Without proof of prejudice against blind people, a

visually impaired voter would have no recourse for

lacking “meaningful access to absentee voting.” Nat’l

Fed’n of the Blind v. Lamone, 813 F.3d 494, 498

(4th Cir. 2016). And “deaf individuals” would be out

of luck, even if a public hospital inexcusably “failed to

provide effective communication” necessary for safe

and effective medical treatment. Liese v. Indian River

Cnty. Hosp. Dist., 701 F.3d 334, 338 (11th Cir. 2012).

The District’s argument would also jack up the

standard—“across the board”—for obtaining damages

under the ADA and Rehabilitation Act. Resp.Br.2;

see id. at 30-34. Nine circuits currently hold that

“deliberate indifference” is enough to establish an

“intentional

violation[]”

of

the

ADA

and

Rehabilitation Act and thus trigger damages liability

outside the educational context. Loeffler v. Staten

Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009);

see Pet.7. This well-established intent standard “does

not require a showing of personal ill will or animosity

10

toward the disabled person.” Meagley v. City of Little

Rock, 639 F.3d 384, 389 (8th Cir. 2011). The District’s

new theory, by contrast, would extend Monahan’s

“impossibly high bar” to all ADA and Rehabilitation

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

1002 (6th Cir. 2023), even though no court has ever

applied that standard outside the education context.

3. Adopting the District’s motive-focused test

would also threaten settled interpretations of other

anti-discrimination statutes. The District insists that

Monahan’s standard flows from the ADA and

Rehabilitation Act’s requirement that a defendant’s

action was made “by reason of” the “statutorily

prohibited

consideration”—here

“disability.”

Resp.Br.16. But as the District itself emphasizes,

other anti-discrimination laws, including Title VI,

Title VII, and Title IX, use “materially identical”

language. Id. at 35, 41; see 42 U.S.C. §§ 2000d,

2000e-2; 20 U.S.C. § 1681(a). If the District is right

that the ADA and Rehabilitation Act’s “by reason of”

language requires bad faith, the District’s logic would

suggest that these other statutes demand the same.

See Resp.Br.31-32.

This Court has never embraced a bad faith

standard under these laws. It has rejected the

District’s position (Resp.Br.43) that a “good faith”

motive can excuse liability. See, e.g., Int’l Union,

United Auto., Aerospace & Agric. Implement Workers

v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991);

Students for Fair Admissions, Inc. v. President &

Fellows of Harvard Coll., 600 U.S. 181, 289 (2023)

(Gorsuch, J., concurring). And contrary to the

District’s claim that “deliberate indifference” cannot

“be the appropriate standard,” Resp.Br.31-32, this

Court has repeatedly embraced that test under

11

Title IX. See Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274, 289-91 (1998); Davis v. Monroe Cnty.

Bd. of Educ., 526 U.S. 629, 642-43 (1999).

For all these reasons, the District’s position would

transform this narrow dispute about the rights of

school-age children with disabilities into a

revolutionary case that could redefine not just the

ADA and Rehabilitation Act, but also numerous other

civil-rights laws.

B. The District’s New Theory Is Not Properly

Presented

This Court should not address the District’s new

argument that Monahan’s bad-faith-or-grossmisjudgment standard applies to all ADA and

Rehabilitation Act plaintiffs. That radical contention

goes beyond the question presented and directly

contradicts the District’s position throughout this

case. Under this Court’s rules, it should not be

considered. See Stephen M. Shapiro et al., Supreme

Court Practice § 6.26(a)-(c) (11th ed. 2019).

1. Settled principles of judicial estoppel foreclose

the District’s about-face in this Court. That doctrine

“prevents a party from prevailing in one phase of a

case on an argument and then relying on a

contradictory argument to prevail in another phase.”

New Hampshire v. Maine, 532 U.S. 742, 749 (2001).

Judicial estoppel “protect[s] the integrity of the

judicial process” by “prohibiting parties from

deliberately changing positions according to the

exigencies of the moment.” Id. at 749-50. Such

tactics are an “improper use of judicial machinery.”

Id. at 750.

This is a textbook case for judicial estoppel. Below,

the District ducked en banc review by defending

12

Monahan’s asymmetry, without ever hinting that its

bad-faith-or-gross-misjudgment test should apply

across the board. The District argued that Monahan’s

standard

“correctly”

addresses

“unique

considerations” raised by education-related claims

under

the

ADA

and

Rehabilitation

Act.

CA8.Resp.Reh’g.Opp.2. And it conceded that both

statutes require “‘reasonable accommodations’”

outside the school setting—regardless of intent. Id.

at 15. On that basis, the District accused Ava of

seeking to overturn “40 years of precedent,” while

insisting that Monahan’s two-tiered approach “was

appropriate when it was adopted and remains

appropriate today.” Id. at 1.

That argument paid off. Over three dissents, the

Eighth Circuit denied en banc review and left

Monahan undisturbed. Pet.App.44a. But because the

District’s “interests have changed” after the grant of

certiorari, it has suddenly “assume[d]” a contrary

position at the merits stage. New Hampshire, 532

U.S. at 749.

The District concedes the same

standards govern “across the board,” while asserting

that “intent-free reasonable-accommodation claims”

do not exist. Resp.Br.2, 24.

Had the District straightforwardly told the Eighth

Circuit what it now says here—that Monahan’s

asymmetric regime is wrong—Ava’s rehearing

petition would surely have been granted. This Court

should not reward the District’s “intentional

self-contradiction.” New Hampshire, 532 U.S. at 751.

2. The Court’s rules and basic forfeiture principles

likewise bar the District’s sweeping new arguments.

Rule 15.2 requires respondents to address—“in the

brief in opposition, and not later”—“any perceived

misstatement of fact or law in the petition that bears

13

on what issues properly would be before the Court if

certiorari were granted.” A respondent’s merits brief,

like a petitioner’s, may “not raise additional questions

or change the substance of the questions already

presented.” Sup. Ct. R. 24.1(a), 24.2. And this Court

generally “will not entertain arguments not made

below,” even when asserted by respondents. OBB

Personenverkehr AG v. Sachs, 577 U.S. 27, 37-38

(2015).

These rules “reflect[] the fact that our adversarial

system assigns both sides responsibility for framing

the issues,” and they serve important purposes.

Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S.

287, 306 n.14 (2010). For one thing, they “help to

maintain the integrity of the process of certiorari.”

Taylor v. Freeland & Kronz, 503 U.S. 638, 646 (1992).

Letting parties “alter” the question presented or

“devise additional questions at the last minute” would

“thwart this system.” Id. The Court thus consistently

refuses to consider “alternative grounds to affirm”

that fall “outside the question[] presented.” Glover v.

United States, 531 U.S. 198, 205 (2001); see, e.g., West

v. Gibson, 527 U.S. 212, 223 (1999).

Furthermore, “[b]ecause this is ‘a court of review,

not of first view,’” the Court considers it “generally

unwise to consider arguments in the first instance.”

Byrd v. United States, 584 U.S. 395, 404 (2018). When

the lower courts “did not have occasion to address” an

issue or “what consequences might follow from”

deciding it, this Court’s decisionmaking lacks the

benefit of their analysis—and suffers as a result. Id.

This rule, too, applies with full force to respondents.

See, e.g., United States v. Miller, 145 S. Ct. 839, 856

(2025); OBB, 577 U.S. at 37-38.

14

Under these bedrock principles, the Court should

not countenance the District’s eleventh-hour assault

on the ADA and the Rehabilitation Act. Ava’s petition

noted that “[a]s a general matter,” plaintiffs suing

under those statutes can establish a violation and

“obtain injunctive relief without proving intentional

disability discrimination,” and can obtain damages

“by proving that the defendant was deliberately

indifferent to their federally protected rights.” Pet.2.

It repeatedly referenced these “baseline standards.”

Id. at 18-21, 23-24, 27, 31-32. It also attacked

Monahan as adopting an “asymmetric interpretation

disfavoring children with disabilities.” Id. at 3; see id.

at 13-14, 22-29.

Yet the District’s opposition to certiorari did not

challenge the baseline standards or contest Ava’s

account of Monahan. It did the opposite: The District

steadfastly defended Monahan’s two-tiered regime.

Supra 4. It accepted that “less-demanding standards”

apply in other settings. BIO23. And it admitted that

both the ADA and Rehabilitation Act “require covered

entities to make reasonable accommodations” in other

contexts, even in the absence of “‘discriminatory

intent.’” Id. at 7, 30 (quoting Choate, 469 U.S. at 297).

All this mirrors what the District told the Eighth

Circuit.

See

CA8.Resp.Reh’g.Opp.1-2,

15;

CA8.Resp.Br.22, 25. And it directly contradicts the

District’s merits brief here. Supra 4-5, 8-10.

This Court has repeatedly rejected materially

identical maneuvers. For example, in Travelers

Casualty & Surety Co. of America v. Pacific Gas &

Electric Co., 549 U.S. 443 (2007), the Court granted

certiorari to review the so-called Fobian rule, “which

held that ‘where the litigated issues’” in bankruptcy

proceedings involve “issues peculiar to federal

15

bankruptcy law, attorney’s fees will not be awarded

absent bad faith or harassment.’” Id. at 447 (quoting

In re Fobian, 951 F.2d 1149, 1153 (9th Cir. 1991)). In

its merits brief, the respondent “ma[de] no effort to

defend the Fobian rule” and instead advanced a

broader argument “categorically disallow[ing]

unsecured claims for contractual attorney’s fees.” Id.

at 454. This Court declined “to affirm on that basis”

because the respondent “did not raise these

arguments below” or in its “brief in opposition.” Id.

at 454-55.

Likewise, in Norfolk Southern Railway Co. v.

Sorrell, 549 U.S. 158 (2007), the Court granted

certiorari to decide whether “the causation standard

for employee contributory negligence under [the

Federal Employer’s Liability Act] differs from the

causation standard for railroad negligence.” Id. at

162 (emphasis omitted). At the merits stage, the

petitioner “attempted to expand the question

presented to encompass what the standard of

causation under FELA should be, not simply whether

the standard should be the same for railroad

negligence and employee contributory negligence.”

Id. at 163 (emphasis omitted). This Court refused to

consider that argument. Id. at 164-65. The petitioner

was “not only enlarging the question presented, but

taking a position on that enlarged question that is

contrary to the position it litigated below.” Id. at 164.

Moreover, the Court emphasized, “the issue of the

substantive content of the causation standard [wa]s

significant enough” that the Court “prefer[red] not to

address it” because it had “not been fully presented.”

Id. at 164-65.

3. The District offers no “convincing reason to

depart” from these settled estoppel and forfeiture

16

principles. S. Cent. Bell Tel. Co. v. Alabama, 526 U.S.

160, 171 (1999). On the contrary, there are especially

good reasons not to let the District “switch gears” and

“smuggle additional questions” into this case “after

the grant of certiorari.” Norfolk, 549 U.S. at 164-65.

First, as explained, the District’s broadside attack

on intent-free reasonable-accommodation claims has

“far-reaching” implications. S. Cent. Bell, 526 U.S.

at 171; see supra 5-11. Even more so than in Norfolk,

“the issue of the substantive content of the causation

standard” required by the ADA and Rehabilitation

Act is “significant.” 549 U.S. at 164-65. It covers the

full universe of all victims of discrimination, not just

the subset of children with disabilities bringing

education-based claims. Supra 5-11.

Second, “no other court has ever considered” the

District’s revolutionary new theory. Miller, 145 S. Ct.

at 856. Nor has it “been adequately briefed” here. Id.

Because the District did not “make clear it intended

to make [its new] argument until it filed its brief on

the merits,” S. Cent. Bell., 526 U.S. at 171, Ava’s brief

did not address that theory. See Pet.Br.30 n.7. Nor

did her amici.

Third, it would be “unfair at this point to allow

[the District] to switch gears and seek a ruling from

[this Court] that the standard should be [bad faith or

gross misjudgment] across the board.” Norfolk, 549

U.S. at 165. For years, the District successfully

defended Monahan’s asymmetry, over Ava’s

persistent opposition. The District should not get a

do-over just because it finally sees the writing on the

wall. Blessing the District’s gambit would invite

similar gamesmanship in future cases.

17

The bottom line is that the Court “did not grant

certiorari” on the District’s radical new argument,

and “without adequate briefing, it would not be

prudent”—or fair—“to decide it here.” Food & Drug

Admin. v. Wages & White Lion Invs., LLC, 145 S. Ct.

898, 916 (2025). The Court should “stick to the

question on which certiorari was sought and granted.”

Norfolk, 549 U.S. at 164. As both parties now agree,

Ava’s answer to that question is correct.4

III. The District’s Radical Theory Is Wrong

The District’s revolutionary interpretation of the

ADA and Rehabilitation Act does not withstand

scrutiny. The settled interpretation of these statutes

embraced by this Court, every circuit, and the United

States should not be cast aside. Supra 6-8; see

U.S.Br.12-20.

Intentional discrimination is not

required to establish a reasonable-accommodation

claim, and damages are available based on a showing

of deliberate indifference.

1. As explained, it has long been understood that

the ADA and Rehabilitation Act prohibit

discrimination resulting from “benign neglect” of

people with disabilities, not just “conduct fueled by a

discriminatory intent.” Choate, 469 U.S. at 295-97;

supra 6-7. Statutory text and history fully support

that result.

The Rehabilitation Act provides that “[n]o

otherwise qualified individual with a disability” shall,

4 The District urges the Court to address the substantive

standards because merely overturning Monahan would “leave

nothing in its place.” Resp.Br.27. That’s wrong: Monahan

created a limited exception to the baseline rules otherwise

governing ADA and Rehabilitation Act claims; eliminating that

exception would leave those baseline rules intact. Pet.Br.8-10.

18

“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 funds. 29 U.S.C. § 794(a)

(emphasis added). The ADA’s similarly worded

prohibition uses the same “by reason of” language,

minus the “solely” modifier. 42 U.S.C. § 12132.

Neither statute requires improper motive or

intent. “The phrase ‘by reason of’ denotes some form

of causation,” not an intent or motive requirement.

Husted v. A. Philip Randolph Inst., 584 U.S. 756, 769

(2018); accord Univ. of Texas Sw. Med. Ctr. v. Nassar,

570 U.S. 338, 350 (2013). The use of the “passive

voice” reinforces that the by-reason-of-disability

element “does not require proof of intent.” Dean v.

United States, 556 U.S. 568, 572 (2009).

Instead, the text demands a causal link between a

person’s disability and the complained-of action. The

failure to provide a reasonable accommodation

readily satisfies this “causation requirement,” even

without proof of animus or intentional discrimination.

Husted, 584 U.S. at 769. In countless situations—

such as stairs preventing a physically impaired

person from accessing a courthouse, a no-animals

policy barring someone with a service dog from a

municipal library, or braille-free ballots precluding a

blind person from voting absentee—a person can lose

access to benefits and services “by reason of” his or

her disability, without any harmful intent. Supra 9.

As Justice Gorsuch has explained, victims are harmed

by the denial of reasonable accommodations “because

19

of conditions created by their disabilities.” Cinnamon

Hills, 685 F.3d at 923.5

Other textual features confirm that a “refusal to

accommodate the needs of a disabled person” may

itself “amount[] to discrimination against the

handicapped.” Davis, 442 U.S. at 413; accord Doe,

926 F.3d at 243 (Sutton, J.). For example, the ADA

expressly contemplates such claims by creating an

exception from the duty to “provide a reasonable

accommodation” in certain circumstances. 42 U.S.C.

§ 12201(h). Its definition of “qualified individual[s]”

extends to individuals with disabilities who, with

“reasonable modifications,” can meet the relevant

“essential eligibility requirements.”

42 U.S.C.

§ 12131(2); see id. § 12132. And the Rehabilitation

Act makes clear that it sometimes requires structural

alterations to buildings “for the purpose of assuring

program accessibility.” 29 U.S.C. § 794(c).

These statutory references reinforce that both the

ADA and Rehabilitation Act create affirmative duties

to provide reasonable accommodations in certain

circumstances. And as Choate makes clear, the

failure to provide such accommodations typically

stems from “thoughtlessness,” “indifference,” and

“benign neglect”—not “affirmative animus.” 469 U.S.

at 295-96. Requiring harmful intent would neuter

5 Under other anti-discrimination statutes, by contrast,

intentional discrimination is usually the only way to satisfy the

statutory causation requirement. It thus makes sense for the

ADA and Rehabilitation Act to prohibit discrimination

stemming from “apathetic attitudes,” even if Title VI and other

laws “reach only instances of intentional discrimination.”

Choate, 469 U.S. at 293, 295-96; see U.S.Br.26-29, CVS

Pharmacy, Inc. v. Doe, One, 142 S. Ct. 480 (2021) (No. 20-1374)

(distinguishing Title VI from disability statutes).

20

both statutes in a wide swath of their core

applications.

Relevant history confirms that intent is not

required. Congress enacted the Rehabilitation Act in

1973 to end the “glaring neglect” of people with

disabilities. 118 Cong. Rec. 526 (Jan. 20, 1972); see

Pet.Br.37-38. Soon after, the Department of Health,

Education, and Welfare promulgated longstanding

regulations requiring “reasonable accommodation[s],”

regardless of intent. 42 Fed. Reg. at 22680-81. In the

ensuing years, this Court repeatedly treated the

Rehabilitation Act as imposing liability for failure to

provide a reasonable accommodation—with no hint of

any intent requirement. Supra 7 (citing Davis,

Choate, and Arline).

In 1990, the ADA ratified this settled

interpretation by providing that “nothing in [Title II]

shall be construed to apply a lesser standard than the

standards applied under [the Rehabilitation Act]” or

its “regulations.” 42 U.S.C. § 12201; see id. § 12133

(incorporating Rehabilitation Act’s “rights”).6 The

House Judiciary Committee Report on the ADA also

expressly stated that the statute should be

“interpreted consistent with” Choate. H.R. Rep. No.

101-485, pt. 2, at 84 (1990). And, consistent with this

text and history, ADA regulations have also always

required “reasonable modifications,” regardless of

intent. 28 C.F.R. § 35.130(b)(7); see 56 Fed. Reg. at

35718.

6 Based on this incorporation, Congress “chose[] not to list

all the types of actions that are included within the term

‘discrimination,’ as was done in [T]itles I and III, because

[Title II] simply extends the anti-discrimination prohibition

embodied in [the Rehabilitation Act] to all actions of state and

local governments.” H.R. Rep. No. 101-485, pt. 2, at 84 (1990).

21

2. As for damages, common-law principles suggest

that an ADA or Rehabilitation Act plaintiff should be

able to recover whatever relief is necessary to put her

“in the position” she “would have occupied if the

[District’s] wrong had not occurred.” Babb v. Wilkie,

589 U.S. 399, 413-14 (2020). That would include

compensatory damages, without any additional proof

of wrongful intent.

But as the Solicitor General notes, different rules

often govern claims for damages under Spending

Clause legislation like the Rehabilitation Act.

U.S.Br.15-16. And because the ADA incorporates the

Rehabilitation Act’s “remedies, procedures, and

rights,” 42 U.S.C. § 12133, the same logic applies to

that statute as well. See Barnes v. Gorman, 536 U.S.

181, 189 n.3 (2002).

In the Spending Clause context, this Court

“regularly” relies on a “contract-law analogy” to define

“the scope of conduct for which funding recipients

may be held liable for money damages.” Cummings v.

Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 219

(2022). The “central concern” is to ensure that a

funding recipient has “notice that it will be liable for

a monetary award”—which cannot happen when a

recipient is “unaware of the discrimination” alleged.

Gebser, 524 U.S. at 287.

Applying these principles in the Title IX context,

this Court has allowed damages claims only when the

defendant had “actual notice of,” but remained

“deliberately indifferent to,” conduct violating the

statute. Id. at 277; see id. at 285-90. And it has

consistently held “monetary damages” unavailable for

“unintentional” violations. Franklin v. Gwinnett

Cnty. Pub. Schs., 503 U.S. 60, 74 (1992).

22

The ADA and Rehabilitation Act can likewise

sensibly be read to require “deliberate indifference.”

Gebser, 524 U.S. at 290. Here too, that standard

resolves Spending Clause concerns about “unaware”

defendants being held liable for damages. Id. at

287-88; see U.S.Br.16-18. This Court has previously

relied on its Title IX precedents to assess damages

remedies available under the ADA and Rehabilitation

Act. See Barnes, 536 U.S. at 185-89. Heeding these

instructions, nine circuits have adopted the

deliberate-indifference standard for damages claims

under the ADA and Rehabilitation Act. Supra 9.

3. The District offers no sound basis to reject the

long-settled understanding in favor of its new

interpretation that no court has ever embraced.

Limited space precludes a comprehensive rebuttal,

but a few points bear emphasis.

First, the District offers no serious textual case

that the ADA and Rehabilitation Act’s “by reason of”

language somehow limits liability to defendants who

act with “bad faith or gross misjudgment.” Contra

Resp.Br.15-19. That position defies plain meaning

and this Court’s decisions holding that “by reason of”

is a causation standard, not a motive requirement.

Supra 18-19 & n.5. It fails to grapple with the ADA

and Rehabilitation Act’s interlocking statutory and

regulatory history, which confirm that neither statute

requires intentional misconduct. And it is internally

inconsistent: The District previously acknowledged

that “gross misjudgment” under Monahan has always

encompassed “unintentional yet harmful conduct,”

BIO30—but now the District reverses course and

insists that “gross misjudgment” entails “improper,

bad faith reasons,” Resp.Br.18-19, 42 & n.7.

23

Second, the District disparages this Court’s

unanimous decision in Choate, which carefully

considered

unique

features

of

disability

discrimination that provide essential context for

interpreting the statutory text. Resp.Br.44. This

marks yet another flip-flop from its brief opposing

certiorari, which endorsed Choate’s “instruction” that

“conduct barred by the Rehabilitation Act need not be

‘fueled by a discriminatory intent.’”

BIO30

(describing this as Choate’s “h[o]ld[ing]”); see

Resp.Br.42 n.7.

Third, the District is wrong to argue

(Resp.Br.31-32) that “deliberate indifference c[annot]

be the appropriate standard” for damages claims

because it falls short of “intentional discrimination.”

See U.S.Br.16-20. This Court has made clear that

“deliberate indifference” is a species of “intentional”

conduct. Jackson v. Birmingham Bd. of Educ., 544

U.S. 167, 173 (2005). And while it’s true that Gebser

and Davis involved funding recipients being held

directly liable for their alleged deliberate indifference

to “someone else’s intentional discrimination,”

Resp.Br.32, this Court has applied that same test

when assessing a party’s own “failure to attend to

[someone’s] medical needs.” Wilson v. Seiter, 501 U.S.

294, 303 (1991) (Eighth Amendment). The deliberateindifference standard is equally appropriate for

assessing failures to accommodate disability-related

needs.

Fourth, the District’s grab-bag of new

constitutional arguments (Resp.Br.19-23) only

underscores why this Court should not entertain the

District’s current theory in the first instance. See

Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212-13

(1998) (refusing to address belatedly raised ADA

24

constitutional challenge). In any event, the courts of

appeals have consistently rejected Spending Clause

challenges to the Rehabilitation Act. See, e.g., Miller

v. Tex. Tech Univ. Health Scis. Ctr., 421 F.3d 342,

348-52 & n.19 (5th Cir. 2005) (collecting cases). And

they have upheld the ADA as valid enforcement

legislation in the educational context under Section 5

of the Fourteenth Amendment. See, e.g., Toledo v.

Sánchez, 454 F.3d 24, 36-40 (1st Cir. 2006);

Constantine v. Rectors & Visitors of George Mason

Univ., 411 F.3d 474, 486-90 (4th Cir. 2005). Those

decisions are correct for reasons the United States has

explained elsewhere. See, e.g., U.S.Br.6-35, Danny R.

v. Spring Branch Indep. Sch. Dist., 124 F. App’x 289

(5th Cir. 2005) (No. 02-20816); U.S.Br.9-45, Bowers v.

NCAA, 475 F.3d 524 (3d Cir. 2007) (No. 05-2426).

Finally, the District ignores the elephant in the

room.

Accepting the District’s across-the-board

bad-faith-or-gross-misjudgment test would cause a

sea change in disability law—and quite possibly

anti-discrimination law more generally. Supra 5-11.

Overnight, victims of discrimination would lose

protections they have enjoyed for decades. It is

shocking that the District does not acknowledge—let

alone justify—the radical consequences of its new

theory. One way or another, that theory should be

rejected.

25

CONCLUSION

The Eighth Circuit’s judgment should be vacated

and the case remanded for further proceedings.

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

URIEL HINBERG

LATHAM & WATKINS LLP

555 11th Street, NW

Suite 1000

Washington, DC 20004

(202) 637-3377

roman.martinez@lw.com

GRAHAM AMBROSE

LATHAM & WATKINS LLP

200 Clarendon Street

Boston, MA 02116

Counsel for Petitioner

April 18, 2025