Opposition Brief — Arkansas Department of Education v. Jim C.

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No. 00-1488

IN THE

SUPREME COURT of the UNI

ARKANSAS DEPARTMENT OF EDUCATION,

Petitioner,

v.

JIM C. AND SUSAN C, INDIVIDUALLY AND AS PARENTS AND

NEXT FRIENDS OF J.C.., and

UNITED STATES OF AMERICA,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION

THOMAS K. GILHOOL

PUBLIC INTEREST LAW

CENTER OF PHILADELPHIA

125 S. 9" Street, Suite 700

Philadelphia, PA 19107

215-627-7100

Counsel for Respondents

May 25, 2001 Jim and Susan C. and J.C.

Wright Appellate Services 0516

(215) 733-9870 @ (800) 507-9020 @ Fax (215) 733-9872

TABLE OF CONTENTS

QUE AU PUTED oe vec eee cee

RGMME SI PUREED 6s oe ee ba ec aasadesas

oe, Ser hearer areas aa

PR oe I RO AAA

1. This Matter is Not Worthy of

Corttorati and ts Moot ..... ce kes c hace

2. Germaneness and Non-Coercion ...........

CE Ss seb eo eee oe ena

i

QUESTION PRESENTED

Whether the Arkansas Department of Education which

receives federal financial assistance must conduct itself in

accordance with the explicit conditions on the receipt of

federal financial assistance set forth in a federal spending

clause statute?

TABLE OF AUTHORITIES

FEDERAL CASES

f i muni l

v. Merzens, ee ee er ae 7

Bradley v. Arkansas Dept. of Educ.,189 F.3d 745 .... 1,3

Cannon v, Univ, of Chicago, 441 U.S. 677 (1979) ..... 7

Cedar Rapids Community School District,

wy Coemene SIG US. GRIGG). cc tcc eee cs 9

City of Boerne v. Flores, 521 U.S. 507 (1997) ........ 7

Davis v. Monroe County Bd. of Educ., 119 S. Ct.

SS a es ee ray erie beans 7

Electro-Voice, Inc. v. Nat’! Labor Relations

ee a I oe a a be hw ws 5

Enron v. Power Marketing, Inc. v. Northern

States Power Co., 528 U.S. 1182 (2000) ............ 5

Franklin v. Gwinett City Public Schools, 503 U.S. 60

i a ae ec cece a ob ad as 7

Grove City College v. Bell, 465 U.S. 555 (1984) ...... 6

Guardians Ass’n v. Civil Service Comm’n of the

Care aE EY, 463 US. SUS CIFES) ww os ccc eecs 7

Ivanhoe Irrigation Dist. v. McCracken,

Rr ee ee oo i ee vk ee 7,8

Jim C. v. United States, F.3d 1089(2000) .......... 1,3

Toney Pele SIS U.S. 167 CTDIG) 2... ws. cece ee 3

Lau v. Nicholas, 414 U.S. 563 (1974) .............. 7

Mass v. Mellon, 262 U.S. 447 (1923) ............... 7

Massachusetts v. United States, 435 U.S. 444 (1978) . 7,8

New York v. United States, 505 U.S. 144 (1992) .... 7,8

Oklahoma v. United States Civil Service Comm’n.,

ee ee i io hss ho es ee ees 7

South Dakota v. Dole, 483 U.S. 203 (1987) ..... 3,8,11

Steward Machine Co. v. Davis, 301 U.S. 548 (1937) . 7,11

U.S. Bancorp Mortgage v. Bonner Mall

Partners, 513 1.5. 10 (1GPS) ww. os ee ee es 5

United States v. Butler, 297 U.S. 1(1936) .......... 6

Velsicol Chemical Corp. v. United States,

CSS e. CREO vig ee 5

FEDERAL STATUTES

UEC Ce 5 a 2

20 U.S.C. SIAIMEMAN) 5. o.oo ikea 2,9

2133. 0. GOTT ik i ee 3

MUS COS ee ee l

MUSEO ORS ons 56 ive Ce ee 2

BULL. CGE cs oS 6

URE GM oo a 3

42 U.S.C. §46(d) and 8th CircuitR.47E ............ 2

BSUSC Ce ce 6

Higher Education Amendment of 1998,

Title VIII, Part B, 112 Stat. 1808,

20 U BA.. Giese ec eae 8

Fea. R. App. P., Rabe WH oe ies a 2

MISCELLANEOUS

Note, Collateral Estoppel and Supreme

Court Disposition of Moot Cases,

78 Mich. L. Rev. 946, 953-58 (1980) .............. 5

IN THE

SUPREME COURT of the UNITED STATES

NO. 00-1488

ARKANSAS DEPARTMENT OF EDUCATION,

Petitioner,

v.

JIM C. AND SUSAN C, INDIVIDUALLY AND AS PARENTS AND

NEXT FRIENDS OF J.C.., and

UNITED STATES OF AMERICA,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

BRIEF IN OPPOSITION

OPINIONS BELOW

The en banc opinion of the court of appeals (App. la-

15a) is reported at 235 F.3d 1089. The opinion of the panel

(App. 16a at 35a-37a), acting by two judges under 28 U.S.C.

§46(d), is reported at 189 F.3d 745 at 757-58. The

memorandum opinion and order of the district court (App.

39a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

December 22, 2000. The petition for writ of certiorari was

docketed on March 27, 2001. The jurisdiction of this Court

is invoked under 28 U.S.C. §1254(1).

COUNTER-STATEMENT

1.The district court held Section 504 enforcible,

notwithstanding the Eleventh Amendment. Arkansas

Department of Education’s opening brief to the court of

appeals nonetheless said, “It is not clear in the complaint that

plaintiffs seek to bring a §504 action against A.D.E.”

(Appellant’s Br.16) and did not brief the Spending Clause.

It’s Fed.R.App.P., Rule 10(b)(3) statement raised the Eleventh

Amendment only as to the Individuals with Disabilities

Education Act, 20 U.S.C. §1400 et seq.. It’s subsequent joint

motion to consolidate Jim C. with Bradley v. Arkansas

Department of Education, which raised only IDEA (and which

the Bradley appellees opposed), represented that “[t]}he issues

in the instant appeal and the Bradley appeal are identical.

Both appeals were taken by the Arkansas Department of

Education to determine whether the district court properly

ruled that the Individuals with Disabilities Act (IDEA) may be

enforced against a State employee sued in his official

capacity.” The Bradley brief, which the Jim C. parties

adopted, addressed only IDEA. The United States addressed

section 504 briefly. Arkansas Department of Education’s

reply addressed only IDEA.

2. Upon that confused and incomplete record, a two

judge panel’ misread Section 504's definition of program,

transmuting the statute’s singular—“program or activity

' After Judge Kelly died, the panel decide the case

under 42 U.S.C. §46(d) and 8" Circuit R. 47E.

3

means all of the operations of... a department, [an] agency,

or {an} other instrumentality,” 29 U.S.C. §794(b)—into the

panel’s plural: “Program or aciivity is defined broadly to

include all of the operations of state denartments, agencies, or

instrumentalities.” App. 37a; 189 F.3d at 787 (emphases

supplied). The panel thus erroneously found that “with these

provisions Section 504 mandates that Arkansas [as a whole,

all of it] waive its Eleventh Amendment immunity to all claims

arising under §504 if it receives any federal funding [any, for

any purpose]” and, also erroneously, that “Arkansas [the

whole, all of it] is forced to renounce all federal funding . . . if

it does not want to comply with §504.” Ibid.

Upon that predicate, the panel held that “Congress’

imposition of such conditions on a state violates the

Constitution because it amounts to impermissible coercion.

Congressional imposition of such a condition does not give

Arkansas, or another state, a meaningful choice regarding

whether to receive federal funding and waive its Eleventh

Amendment immunity to suits arising under §504 or reject

funding and retain its Eleventh Amendment immunity to such

suits.”

3. En bane, the Court of Appeals reversed. It found

that under the statutory definition, “the State itself as a whole

is not a program or activity,” “only the department or agency

which receives or distributes the aid is covered,” and “[t]he

acceptance of funds by one agency leaves unaffected both

other state agencies and the State as a whole.” 3a-4a; 235

F.3d at 1081. Upon this predicate, the court of appeals en

banc held the decision by the Arkansas Department of

Education to accept federal education funds to be uncoerced

and the Section 504 conditions germane to federal education

funding. Relying upon Lane v. Pefia, 518 U.S. 187, at 192

(1996), the court held Section 504's waiver provision (20

U.S.C. §2000-7(a)(1)) to be clear and unambiguous. The

author of the en banc opinion was a member of the panel

whose opinion was affirmed in South Dakota v. Dole, 483

4

U.S. 203 (1987). The minority of the court would have held

the 504 conditions to be non-germane and coercive.

4. Petitioner sought no stay of the mandate pending its

request for certiorari here. In consequence the mandate was

returned, and on March 23, 2001 the district court granted

summary judgment against plaintiffs and dismissed the

complaint with prejudice. The district court subsequently -

denied plaintiffs’ motion for reconsideration. Plaintiffs do not

intend to file an appeal from the district court’s decision.

REASONS FOR DENYING THE WRIT

1. This Matter is Not Worthy

of Certiorari and Is Moot

The en banc decision below is not in conflict with any

decision of any other United States court of appeals. It is the

first and only court of appeals decision considering section

504 under the Spending Clause.

The absence of any factual record concerning federal

financial assistance received by the Arkansas Department of

Education, or concerning the Arkansas Department’s decision

to accept federal education funding makes this an

inappropriate case for deciding the issues presented for

decision here. Because Petitioner has been equivocal even

about whether 504 is in the case, no question concerning

section 504, the Eleventh Amendment, the Spending Clause,

federal education spending, or the Arkansas Department of

Education itself is adequately developed for resolution here.

Furthermore, this case and controversy is now over.

After decision below en banc, Petitioner sought no stay of

mandate pending application for certiorari. This case has gone

to judgment and been dismissed with prejudice in the district

court.

This is not a case which became moot before the court of

appeals rendered its judgment or after this Court has granted

5

certiorari. Rather this case became moot after judgment in the

court of appeals but before this Court has acted on any

petition for certiorari.

In this circumstance, the rationale for vacatur does not

apply and the Court should deny certiorari. A losing party has

no right to Supreme Court review; review here is discretionary

and exercised circumspectly. Sup.Ct.R. 10. If the Court

would have denied certiorari in any event, there is no

unfairness in leaving the lower court’s decision intact. See

Note, Collateral Estoppel and Supreme Court Disposition of

Moot Cases. 78 Mich.|.Rev. 946, 953-58 (1980).As a

general rule, where the judgment would not otherwise have

been reviewed by the Court, vacatur would disserve the public

interest by eliminating a judicial precedent that the judicial

system regards as “presumptively correct,” U.S. Bancorp

Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 26

(1994), and would give the Petitioner a windfall (of its own

~ making) that it would not have received if the controversy had

remained alive. —

The Court has denied certiorari in a number of such

cases. Velsicol Chemical Corp. v. United States, 435 U.S. 942

(1978); Electro-Voice, Inc. v. National Labor Relations

Board, 519 U.S. 1055 (1997); Enron v. Power Marketing,

Ine. v. Northern States Power Co., 528 U.S. 1182 (2000). See

Robert Stern, ef al., Supreme Court Practice 724 and n.29 (7"

ed. 1993) (Court has “seemingly accepted this suggestion of

the Solicitor General that it need not consider the often

difficult question of mootness at the certiorari stage when a

case is otherwise not worthy of review. In such cases the

Court will merely deny certiorari.”)

The certiorari petition here should be denied because

the decision below, in the end, would not have warranted

review by the Court.

6

2. Germaneness and Non-Coercion

Fetitioner does not challenge the unambiguous clarity

of Section 504’: statement of “the conditions upon which

moneys shall be expended,” United States v. Butler, 297 U.S.

1, 73 (1936), accompanying federal education funds which the

Arkansas Department of Education has chosen to accept:

“No otherwise qualified individual with a disability . .. shall,

solely by reason of his or her disability, be excluded from

participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal

financial assistance.” 29 U.S.C. §794(a) and (b).

and

“A state shall not be immune under the Eleventh Amendment

of the Constitution of the United States from suit in Federal

court for a violation of section 504.” 42 U.S.C. §2000d-7; see

1986 U.S.C.C.A.N. 3554.

There can be no doubt that the Arkansas Department of

Education is the program covered by section 504.”

? The cognate statutes, Section 504, Title IX, and Title

VI, do not bind solely federal expenditures which proceed from

the act in which each appears—section 504 is in Title V, —

entitled “Rights and Advocacy,” in the Rehabilitation Act of

1973, as amended; section 901, which contains counterpart

conditions as to gender is in Title IX of the Education Act of

1972, as amended; section 601, containing counterpart

conditions as to race, color or national origin, is in Title VI in

the Civil Rights Act of 1964, as amended. Each binds federal

financial assistance from whatever act such assistance arises.

Title IX has been held to be a valid Spending Power

enactment, Grove City College v. Bell, 465 U.S. 555, 575-76

(1984); and the Court has repeatedly treated it as such. E.g.

7

Petitioners raise instead germaneness and non-

coercion.’ But the Court has been generous in its guidance on

these matters and has not suggested that unambiguous

conditions like those set forth here are beyond Congress’

power. New York v. U.S, 505 U.S. 144, 167, 171-173

(1992); South Dakota v. Dole 483 U.S. 203 (1987);

Massachusetts v. United States, 435 U.S. 444, 461 (1978);

Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 295

(1958);

Oklahoma __v. United States Civil Service

Commission, 330 U:S. 127, 143-144 (1947), Steward

Machine Company v, Davis, 301 U.S. 548, 589-590 (1937);

Massachusetts _v, Mellon, 262 U.S. 447, 482 (1923).

Compare Board. of Education of Westside Community

Schools v, Mergens, 496 U.S. 226, 241 (1990); with City of

Boerne v. Flores, 521 U.S. 507 (1997).

The test of germaneness, of course, is whether

unambiguous conditions accompanying the grant of federal

funds are related to the purposes for which the federal grants

are made. Petitioner inverts the test. It is not, as Petitioner

asserts ( at page 9 n.3. next to last sentence), that “the

Davis v. Monroe County Bd. of Educ,, 119 S.Ct. 1661, 1669-

70 (1999); Franklin v. Gwinett County Pubic Schools, $03 U.S.

60, 74-75 n.8 (1992). Title VI was held a valid Spending

Clause enactment in Lau v, Nicholas, 414 U.S. 563, 569 (1974).

And see Guardians Ass’n v. United States Civil Service

Comm’n, 463 U.S. 582, 598-99 (1983); Cannon v. Univ. of

Chicago, 441 U.S. 677, 708-09 (1979).

> They do so with no understatement: “ court of appeals

paid . . . only lip service”; “court of appeals . . . makes a

mockery”; “reasoning that would make the Spending Clause

virtually unlimited”; “case cries out,” “eviscerates.” Petition at

11& 6,8 & 14.

[spending] programs” must be “related to assisting or

preventing discrimination against the handicapped, the

objective of section 504.” Rather, such conditions must .

bear some relationship to the purpose of the federal spending,”

New York v. United States, 505 U.S. 144, 167 (1992) (citing

South Dakota v. Dole); “. . . condition grants under the

spending power only in ways reasonable related to the purpose

of the federal program,” Massachusetts v, United States, 435

U.S. 444, 461 (1978): “. .. reasonably conditions relevant to

federal interest in the project and to the overall objectives

thereof,” Ivanhoe Irrigation Dist. v. McCracken, 357 U.S.

275, 295 (1958) (all emphases supplied).

As ballast to Arkansas Department of Education’s

representation that “the vast majority of [its federal funding]

has nothing to do with section 504's goal” (Pet. at 3) and “the

vast bulk of federal funding of education serves entirely

distinct purposes” (Pet. at 9), it constructs, Pet. at 9 n.3, a list

of examples presumably chosen to demonstrate that the grant

condition here is not related to the purposes of the education

spending. Instead, they show the opposite.

The purpose of spending under the Higher Education

Amendment of 1998, Title VIII, Part B,‘ which Petitioner

uses for its first example, is “to increase participation of low-

income students in advanced placement courses.” The 504

condition upon this federal funding provides “no otherwise

qualified individual with a disability shall, solely by reason of

her or his disability . . . , be excluded from participation in

[advanced placement courses], be denied the benefits of

{advanced placement courses], or subjected to discrimination

under [the advance placement courses].” This condition

barring the exclusion of qualified students with a disability

thus directly relates to—and advances—the federai interest in

~

* Petitioner miscites the provision’s codification. It is

20 U.S.C. §1070a-11 note. See also 112 Stat. 1808.

9

and the purpose of this federal funding—namely, as Petitioner

itself identifies the purpose, to increase participation of low-

income students in advanced placement courses.”

Likewise, with the seven other examples of federal

funds for education which Petitioner arrays in its failed effort

to suggest that the section 504 condition is not germane to the

purposes federal education funding statutes are designed to

advance. It may be that “none of these programs is even

remotely related to assisting or preventing discrimination

against the handicapped,” Petitioner’s backward way of

5 Petitioner may have chosen this example for its facial

strangeness, its unlikeliness, to people who may not know

disabled students and would expect disabled children can’t

benefit from advanced placement courses. But some can , for

example, Garrett F., respondent in Cedar Rapids Community

School District, v. Garrett F., 526 U.S. 66, 69 (1999), had

severe orthopedic disabilities, but was very capable cognitively.

There are many such students, with physical disabilities, learning

disabilities, Asperger's syndrome, even Down syndrome,

sufficient that in 1998 Congress amended the Individuals with

Disabilities Education Act to require: “beginning at age 14...

a statement of the transition service needs . . . that focuses on

the child’s courses of study (such as participation in advanced-

placement courses or a vocational education program).” 20

U.S.C. §1414(d)(A)(vii)(T(parentheses in statute). See

generally, K.Kay (ed.), Uniquely Gifted: Identifying and

Meeting the Needs of the Twice Exceptional Student (Vocus

Pub. 2000); S. Baum Gifted and Learning Disabled: From

Definition to Practical Intervention (Creative Learning Pr.

1991); T. Ellston, “To Be Gifted and Learning Disabled: A

Paradox?” in Gifted Child Today v.16, nl, p.17 (Jan/Feb

1993). S. Baum, “Gifted But Learning Disabled: A Puzzling

Paradox” in Preventing School Failure, v. 34, no.1,

p.11(1989).

10

stating the test for germaneness and non-coercion (Pet. n.3),

but preventing discrimination in these education programs

against children with handicaps is related to the achievement

of the educational purposes of each.°

The other condition here, if a department chooses to

take education funds, it chooses also to abide by federal court

enforcement of the condition that qualified children with

disabilities can not be excluded therefrom, be denied the

benefits thereof or be subjected to discrimination thereunder,

is also plainly related to the achievement of those educational

purposes.

As with germaneness, so with non-coercion. With its

constantly repeated refrain throughout, “all federal

funding”’—“any federal funding’—‘“for any purpose,”

Petitioner obscures the difference between a condition that

extends only to the federally assisted department and one that

runs to all of Arkansas’ programs irrespective of whether they

receive funds, as if to clothe itself in the statutory mistake

which the panel made.’ Petitioner’s coercion argument seems

* Variously (Pet. n.3), “to foster bilingual education, ...

to encourage school attendance by homeless students; . . . to

provide for professional development of teachers; . . .to assist

schools with large immigrant populations; . . . to address the

special needs of migrant children [and those] of neglected or

delinquent children; . . . and to combat drugs and violence in

schools.” Not to exclude qualified children with disabilities, and

in one instance teachers with disabilities, is certainly related to

and in each instance serves the educational purpose of the

funding statutes.

” At its rhetorical height (Pet. at 12-13), the Petition

employs the ambiguity of the collective phrase ‘all state

agencies’: “ .. . as permitted under the court of appeal’s

decision, the Congress could secure a de facto abrogation by

really to be about germaneness, for each time it argues

coercion the argument resolves to ‘that has nothing to do with

disability.” If any issue of coercion, which Petitioner never

pressed below, is present here, it is, given the undeveloped

factual record, not well-presented.

Petitioner seeks to present to this Court a very

different case from that decided below. This tnuly is a case

where, as the Court has often cautioned, “the argument as to

coercion is shown to be more rhetoric than fact.” South

Dakota v. Dole, 483 U.S. at 211 (Rehnquist, J.), drawing

upon Steward Machine Co. v. Davis, 301 U.S. at 589-90

(Cardozo, J.).

imposing on all state agencies a Hobson’s choice between

forfeiture of every last nickel of federal funding, no matter how

unrelated to the federal interest asserted in defense of the

putative waiver.” Pet. at 12. “But under the court of appeals’

decision, Congress could compel the States to do all of these

things and more—by subjecting all of their agencies to non-

germane and coercive funding conditions.” Pet. at 13.

May 25, 2001

12

CONCLUSION

For the above stated reasons, the C. family respectfully

requests that the Court deny a writ of certiorari here.

Respectfully submitted,

Thomas K. Gilhool

PUBLIC INTEREST LAW

CENTER OF PHILADELPHIA

125 S. 9™ Street, Suite 700

Philadelphia, PA 19107

215-627-7100

Counsel for Respondents

Jim C., Susan C. and J.C.