Amicus Requests COPAA welcomes requests for Amicus Briefs for cases that present an issue or issues consistent with our mission statement, have a precedent setting value and affect the educational welfare of school age children with disabilities.

Amicus and Related News

Johnson v. United States (Case Nos. CF3-24782-08 & CF1-18464-08):  COPAA assisted the National Disability Rights Network (NDRN), Professor Joseph Tulman of the University of DC Law School, the law firm of Morrison & Forster, and a number of other disability rights advocacy groups in drafting an amicus brief in the case of Johnson v. United States on a petition for rehearing in the District of Columbia Court of Appeals.  Marcel Johnson is an IDEA-eligible young man with substantial education-related disabilities. DC sentencing law obligates a judge at sentencing to ensure community safety and to ensure the educational needs of the defendant are met. It also requires the judge to designate the type of facility where the defendant should be placed. At sentencing hearings in two separate felony cases (one following a trial and the second following a plea), Johnson’s counsel argued the sentencing judges were obligated to ensure that he would be incarcerated in a facility where he could receive appropriate special education services. Under the 1997 D.C. Revitalization Act, D.C. inmates charged and convicted of felonies are uniformly sent into placements in the Federal Bureau of Prisons (BOP), which does not consider itself bound by the requirements of the IDEA.  The brief argued that the court should rehear the case to give meaning to the requirements of the DC sentencing law.  COPAA members, Catherine Merino Reisman and Judith Gran wrote the brief for amici.  Andrew Feinstein and Selene Almazan participated in reviewing drafts.

Ebonie S. v. Pueblo School District 60 (Case No. 09-cv-00858-WJM-MEH): COPAA filed an amicus brief in this case in the 10^th Circuit Court of Appeals on behalf of a student who was regularly restrained in a wrap-around desk.  COPAA argued the use of this restraint desk with Ebonie S. was unacceptable under all but emergency circumstances because it served no pedagogical purpose and failed to meet any accepted professional standards.  Further, Defendants’ frequent restraint of Ebonie S. using a wraparound desk with restraint bar deprived her of her fundamental right to liberty and freedom from physical restraint in violation of her Constitutional right to equal protection guaranteed by the Fourteenth Amendment.  Finally, the district court had erred in comparing Ebonie S. to other children with disabilities rather than all students for purposes of its equal protection analysis.  An entire legal team of Baker & McKenzie pro bono attorneys drafted the amicus brief.  Leslie Seid Margolis, Andrew Feinstein, Catherine Merino Reisman and Selene Almazan assisted in the review of drafts.

Dowler, et al. v. CloverPark School District:   Favorable opinion received from the Washington Supreme Court. In sum, the court held that state law tort claims are not subject to the IDEA’s exhaustion requirement based on the plain language of the statute, as well as the intent of the statute as to what is or is able to be remedied by the IDEA.  On that score, the court stated that “[n]othing in this opinion prevents Appellants from requesting an IDEA due-process hearing to address those matters that are appropriate for an IDEA hearing officer to review while simultaneously seeking relief in court for their claims of tort and unlawful discrimination.  An IDEA hearing officer will be able to address how Appellants will be treated in the future with respect to such issues as classroom discipline and the facilitation of movement.  Only the court, however, is able to remedy past actions that constitute torts or unlawful discrimination.”  (Emphasis added). The court also mentions that there is no federal preemption of state law claims.  Accordingly, the court overturned the summary judgment opinion finding that there are material questions of fact to be tried by a jury as to whether the torts and discrimination were committed. The issue of attorneys fees/prevailing party status was therefore tabled.  (See below for COPAA brief, filed April 15, 2011).

Petit v. U. S. Department of Education: On July 1, 2011 COPAA filed an amicus brief on this case in the United States Court of Appeals for the District of Columbia Circuit.  In its brief, COPAA asserts that the Secretary of Education’s regulation excluding “mapping” of cochlear implants from the scope of “related services” is contrary to the IDEA’s unambiguous definition of “related services.”  The text of the IDEA defines “related services” broadly. The statute provides that all services that are “developmental, corrective, or . . . supportive,” including audiology services, are “related,” so long as such services are required to assist a child with a disability to benefit from special education and are not performed by a physician (except when performed for diagnostic or evaluation purposes). Mapping supports a child’s ability to develop an understanding of language, and is required for the child to meaningfully learn, thus bringing mapping within the statutory scope of “related services.” Mapping’s status as a related service was not altered by Congress’s addition in 2004 of a new exception for surgically-implanted medical devices. The text of the Individuals with Disabilities Education Act (IDEA), expressly defines the term “related services,” and does so expansively. Many thanks to Seth Galanter and Mark Shawhan from Morrison & Foerster, LLP in Washington, D.C. for writing this brief for COPAA on a pro bono basis. Andrew Feinstein, Alice Nelson, Bob Berlow, Leslie Seid Margolis, Bruce Goldstein, and Selene Almazan assisted in the reviewing and drafting.

G.M. v. Drycreek Joint Elementary School District On June 15, 2011 COPAA signed onto an amicus brief written by Anna Levine from Disability Rights Advocates in the 9^th circuit  case, G.M. v. Drycreek Joint Elementary School District. COPAA joined Disability Rights Education Defense Fund (DREDF), Disability Rights Advocates (DRA) and Disability Rights California in the amicus brief which addressed whether the district court properly granted a school district’s motion for an order that allows the school district to evade the requirements of stay-put by discontinuing the use of a private provider.  The district court relied on two, narrow exceptions to enforcement of the terms of a stay-put, which the district court inflated to swallow the rule: (1) an exception regarding placements that are “temporary,” which the district court extended to define placements subject to review after one year, and (2) an exception on the basis that certain changes involving the provider do not change the educational placement, which the district court extended to hold that any change involving the provider does not fall within the meaning of changes to the “current educational placement” under section 1415(j). The law does not support either exception as defined and applied in this case.  It is the position of amici that the school district’s motion required the court to weigh the factors for issuance of a preliminary injunction, and to determine that discontinuing use of the private provider would not significantly change the setting, level of inclusion, methodology, or other essential aspects of the educational program G.M. receives as part of the stay-put placement. That the placement was subject to review after one year and that the service at issue concerns the use of a particular provider do not negate the rules concerning stay-put placement.   Because the district court’s misapprehension of the law governing section 1415(j) threatens the procedural and substantive rights and stability of students with disabilities, DRA, DREDF, COPAA, and Disability Rights CA filed this brief as amici curiae.  The brief written by Anna Levine was well reasoned and researched and COPAA was pleased to sign on.  Andrew Feinstein and Selene Almazan, Amicus Co-Chairs, assisted in reviewing drafts.

Dowler v. Clover Park School District On April 15, 2011 COPAA filed an amicus brief on this case pending in the Supreme Court for the State of Washington. In its brief  COPAA’s brief makes the following arguments: (1) abusive, neglectful and discriminatory acts do not become educationally related merely because they are imposed upon students who are eligible to receive special education services under state and federal law, (2) abuse, neglect and discrimination do not require exhaustion of IDEA processes as they are never related to the delivery of FAPE and are a complete departure from IDEA’s accepted professional standards,  (3) abuse, neglect, and discrimination are never educationally related under the IDEA because such egregious actions hinder a child’s ability to receive FAPE and have no pedagogical purpose. Many thanks to Alan K. Marson, Erin McCloskey Maus, Keith L. Wuster, Angela C. Vigil, Amanda T. Kotte and Melinda Laine of Baker & McKenzie, LLP for writing this brief for COPAA on a pro bono basis. Selene Almazan and Catherine Reisman assisted in the drafting.

Anchorage Sch. Dist. v. M.P. On March 24, 2011 COPAA filed an amicus brief on this case pending in the Ninth Circuit. COPAA member Sonja Kerr represented the student in the district court. COPAA’s brief makes the following arguments: (1) clear precedent holds that a failure to update an IEP for multiple years violates both the procedural and substantive requirements of the IDEA. The district court erred in holding that the school district did not violate either prong of this test because the parents’ “litigious approach” was “at fault” for the failure to update the IEP and (2) The district court’s opinion would undermine IDEA’s purpose, by deterring parents from advocacy. It puts parents in a catch-­-22 wherein, if they do not advocate, their children may not receive FAPE, but if they do advocate, the school is no longer required to provide FAPE. Many thanks to Dan Robinson, Sonya Winner and Simon Frankel at Covington & Burling in San Francisco for agreeing to write this brief for COPAA on a pro bono basis.  On November 1, 2011 the District Court ruled in favor of the parents.  Specifically, the court upheld the Hearing Officer’s determination that the school district did not satisfy the Rowley “meaningful benefit” standard when it used an outdated IEP. In addition, the district court made a legal error when it concluded that the parents’ vigorous advocacy for their child excused the district’s inappropriate IEP.

J.T. v. Dumont Pub. School.  On March 22, 2011 COPAA filed an amicus brief on least restrictive environment issues in a case pending in the United States District Court for the District of New Jersey. Larry Berger of Shephard, Finkelman, Miller & Shah, LLP drafted the brief on behalf of COPAA.  Selene Almazan and Catherine Reisman assisted in the drafting.

Ka.D. v. Solana Beach Sch. District. On February 25, 2011 COPAA filed amicus curiae brief in the Ninth Circuit Court of Appeals, where the student and her parents are represented by COPAA member Maureen Graves. Selene Almazan, who agreed to represent COPAA pro bono, authored an excellent brief outlining the legal and research basis for education in the least restrictive environment. Alice Nelson, Mark Martin, Andy Feinstein, Leslie Margolis, and Catherine Reisman assisted in the drafting.

M.H. v. New York City Dep’t of Education.  On February 11, 2011 COPAA filed amicus curiae in addressing the issue of deference due to the Impartial Hearing Officer and the second tier, State Review Officer, in New York.  COPAA member JesseCutler represented the students involved. Pro bono counsel from Greenberg Traurig, Caroline Heller, authored this brief for COPAA. Committee members Alice Nelson, Andy Feinstein, Selene Almazan, and Catherine Reisman assisted in the drafting.

M.S. v. New York City Dep’t of Education. On November 4, 2010 COPAA filed amicus brief in the Second Circuit Court of Appeals. COPAA member JesseCutler represented the students involved. The amicus brief discusses the appropriate standard of review in an appeal of a case brought under IDEA. Caroline Heller of Greenberg Traurig LLP authored this brief for COPAA. Selene Almazan, Andrew Feinstein, Alice Nelson and Catherine Reisman assisted in the drafting.

Jamie S. v. Milwaukee Bd. of Sch. Directors. On March 8, 2010 COPAA signed onto the brief authored by National Disability Rights Network in. The amicus brief focused on the need for an exception to the exhaustion requirement under IDEA in cases seeking to resolve systemic problems.

A.M. v. Monrovia Unified Sch. Dist. -  On December 15, 2010, the Ninth Circuit Court of Appeals issued its decision in the case. On the issue briefed by COPAA, the court agreed with our arguments, holding “Neither the IDEA claim nor the Section 504 claim was mooted by A.M.’s death because the parents sought reimbursement and damages.” The panel remanded to see if the issue of damages had been waived by failure to present it at the administrative level.  In his concurring and dissenting opinion, Judge Bennett disagreed that a remand was necessary but agreed with the conclusion on mootness. Judge Bennett specifically cited to COPAA’s brief, stating: “I also concur in the majority’s conclusion that neither the IDEA claim nor the Section 504 claim was mooted by A.M.’s death, because the parents sought reimbursement and damages, so that the district court’s award of attorney fees on the ground that the parents’ separate claims were mooted was improper. In reaching this conclusion, I am particularly persuaded by the reasoning presented in the brief of amicus curiae Council of Parent Attorney Advocates, Inc.” COPAA’s Amicus Brief was filed on October 7, 2009 with the Ninth Circuit. In the brief COPAA argued that the death of a child during the pendency of litigation does not render moot a parent’s claim for reimbursement of education‐related expenses. During the conference in March 2010, members of the Committee and the Board spent a day doing a “moot court” with COPAA members N. Jane DuBovy and Mandy L. Favaloro, A2Z Educational Advocates, the attorneys from the law firm handling the appeal.   Our sincere gratitude and thanks to the law firm Baker & McKenzie, specifically attorneys Erika L. Andersen, Erin McCloskey Maus, Angela C. Vigil, Stephanie R. Villasenor and Keith L. Wurster who wrote the brief on behalf of COPAA. COPAA Amicus Committee members Alice Nelson, Leslie Margolis, Selene Almazan and Catherine Reisman assisted in the drafting.

A.G. v. Wissahickon Sch. District COPAA Brief. On October 28, 2009 COPAA and the Education Law Center filed an amicus brief addressing the research basis for LRE requirements in. A.G. v. Wissahickon Sch. Dist. case in the Third Circuit. The brief addresses the particular importance of providing education to all children – including children with disabilities – in the least restrictive environment, so as to promote independence and self-sufficiency. In the Brief, COPAA and ELC provide to the Court some of the extensive empirical research which demonstrates the importance and efficacy of providing education to children with disabilities in the general education classroom. Special thanks to Larry Berger of Shepherd, Finkelman, Miller & Shah, LLP for drafting and filing the brief.

King v. Pioneer Regional Educational Service Agency COPAA Brief. On July 7, 2009, COPAA filed an amicus brief in support of the Parents in King v. Pioneer Regional Educational Service Agency, pending in the Georgia Court of Appeals. In that case, the trial court dismissed claims arising from a Jonathan King’s suicide by hanging in a barred seclusion cell at an isolated center for students with severe emotional disorders. During the fall of 2004 Jonathan was suspended from school and later hospitalized in a psychiatric facility. Jonathan’s death occurred while he was out of direct line of sight of school staff after he was permitted to retain the rope belt given him by Defendant. COPAA argued (1) Jonathan had a right as a student to a safe educational setting and the Defendants had a duty to keep him free from harm; (2) Georgia has not authorized the use of seclusion in public schools, making Defendants’ practice illegal; (3) Jonathan’s seclusion without safeguards was “confinement” and created a known danger for which the defendants should be liable under federal law; (4) Under IDEA and Georgia law, the State Defendants have clear legal responsibilities to Jonathan; and (5) The seclusion practices were below the minimal standards of the profession and shocking in disregard of basic safeguards. Our thanks to COPAA Members Jonathan Zimring and Dawn R. Smith who wrote the brief on behalf of COPAA. The Atlanta Legal Aid Society, National Disability Rights Network, and TASH signed onto the amicus brief.

T.W. v. Seminole County COPAA Brief. On July 7, 2009 COPAA filed an amicus brief in T.W. v. Seminole County in the United States Court of Appeals for the Eleventh Circuit. In T.W., the trial court dismissed the claims of a student with autism spectrum disorder and his mother. In that case, COPAA argued that the teacher’s abuse of restraint techniques on students with disabilities violated prevailing professional standards and created a substantial risk of harm. Our thanks to COPAA Member Craig Goodmark of Atlanta Legal Aid Society, who wrote the brief on behalf of COPAA. The Atlanta Legal Aid Society, the Georgia Advocacy Office, TASH, the Alabama Disabilities Advocacy Program, the Advocacy Center for Persons with Disabilities, and the National Disabilities Rights Network signed onto the amicus brief in support of T.W.

Forest Grove Sch. Dist. v. T.A COPAA Brief. On 6/22/09 in Forest Grove School District v. T.A. a case in which COPAA filed an amicus brief supporting the Student and his Parents, the Supreme Court held (in a 6-3 decision written by Justice Stevens) that tuition reimbursement is an appropriate remedy when the child has not received special education services prior to the unilateral placement. School districts have argued for years that amendments in IDEA 1997 precluded tuition reimbursement under these circumstances. The Court rejected that argument, strongly re-affirming the Burlington-Carter decisions that first established the right to tuition reimbursement. In reaching its decision, the Court emphasized that, in passing IDEA 1997, Congress found “that substantial gains had been made in the area of special education but that more needed to be done to guarantee children with disabilities adequate access to appropriate services.” Therefore, absent an explicit expression of intent to override Burlington-Carter, the Court would not erode the rights created by those cases. In addition, the Court reiterated its statement in Burlington that the review process alone is “ponderous” and not sufficient to ensure that there is a meaningful remedy for a failure to provide FAPE. Our sincere thanks to Ankur Goel, Tamu K. Floyd and John Walker from McDermott, Will & Emery, who wrote COPAA’s Amicus brief in this case. Congratulations and thank you to the COPAA Amicus Committee (Co-Chaired by Selene Almazan and Catherine Merino Reisman) for their excellent work. Finally, congratulations to COPAA member Mary Broadhurst on the substantial victory. The full opinion can be read here.

Richardson Indep. Sch. Dist. v. Michael Z COPAA Brief. On November 24, 2008, COPAA filed an amicus curiae brief with the Fifth Circuit Court of Appeals in Richardson Indep. Sch. Dist. v. Michael Z., arguing that district court appropriately ordered reimbursement for a residential placement for a student.

BoBoard of Education of New York v. Tom F COPAA Brief. On July 18, 2007, COPAA submitted an amicus curiae brief to the U.S. Supreme Court in Board of Education of New York v. Tom F. COPAA argued that parents may seek tuition reimbursement under IDEA for a child who has been denied a FAPE but who did not previously receive special education services from the school district.

John M. v. Bd. of Educ. of Evanston Township COPAA Brief. On June 22, 2007, COPAA filed an amicus curiae brief in John M. v. Bd. of Educ. of Evanston Township. COPAA argued that a school district may not unilaterally reduce its stay-put obligation to the details expressly specified in the IEP, but must provide all services that are part of the child’s then-current placement.

Arlington Central School District Board of Education v. Murphy COPAA Brief. In March 2006, COPAA filed amicus curiae brief with the Supreme Court in this important case. COPAA explained that parents who prevail in IDEA cases should be reimbursed for expert witness fees. Without such reimbursement, there is no equal access to a public education that is both free and appropriate. Expert witness testimony is vital in IDEA cases, and few parents can afford the thousands of dollars it can cost. COPAA also argued that the legislative history shows that Congress intended parents to recover expert fees as part of their costs.  Read the Respondent Murphy family’s brief; amicus curiae NDRN brief; and the Second Circuit’s opinion holding that parents should be able to recover their expert witness costs.

Winkelman v. Parma City School District COPAA Brief. In December 2006, COPAA filed amicus curiae brief asking the Supreme Court to grant certiorari in this case. COPAA urged the Court to find that parents have the right to represent themselves in special education court cases.  Read the brief of the Petitioners, the Winkelman family (PDF, 85 pages, 384KB). The petitioners brief explains why parents are the real parties in interest and entitled to bring IDEA cases in court, and how IDEA 2004’s statutory language clearly supports that right. There were four amicus briefs in addition to COPAA’s amicus brief. Senators Kennedy, Harkin, Dodd, and Feingold and Representatives Miller, Markey, Owens, Woolsey, Davis, Holt, and Kucinich filed an amicus brief. The Congressional amicus (PDF, 38 pages, 1.9MB) cogently demonstrates that IDEA’s plain language and legislative history support the rights of parents to represent themselves. The Solicitor General of the United States also filed a brief (PDF, 37 pages, 148KB), arguing that the right of parents to support themselves is made clear by both the statutory language and the intertwining of procedural and substantive rights under the IDEA.  In addition, the Equal Justice Foundation and others (PDF, 20 pages, 172KB), the Ohio Coalition for Children with Disabilities and Autism Society of Ohio (PDF, 32 pages, 96KB), and the Autism Society of America and others filed briefs.

Woods Family. The COPAA Amicus and Governmental Affairs Committees followed closely the Cleveland Bar Association’s unauthorized practice of law complaint filed against two parents, Brian and Susan Woods in May 2006. The Bar Association dismissed its complaint. The Woods had been pursuing their own IDEA and related civil rights claims in federal court without a lawyer. COPAA was preparing a letter to the Bar Association and considering filing an amicus in before the Ohio Supreme Court when the news arrived. This case also garnered a favorable editorial in the Cleveland Plain Dealer.

Schaffer v. Weast COPAA Brief. In March 2005, COPAA submitted an amicus curiae brief to the Supreme Court, explaining that the burden of proof in special education cases should appropriately be on the school district. Twelve other organizations signed on to COPAA’s brief (PDF, 39 pgs, 2.3MB). In response to the Supreme Court’s decision placing the burden on parents, COPAA explains that the decision is likely to cause school districts to undermine the rights of parents and deprive children of free appropriate public educations. School districts have an overwhelming advantage during the IEP process and at due process, and they have much greater resources at their disposal than parents.

Mr. and Mrs. I v. Maine School Administrative District No. 55. In August 2006, COPAA filed an amicus curiae brief in Mr. and Mrs. I v. Maine School Adminsitrative District No. 55, urging the First Circuit to uphold the District Court’s finding of eligibility under IDEA for a child with Asperger’s Syndrome. A child whose academic performance is adequate, but has substantial social and emotional problems that affect her educational performance, is eligible for services under the IDEA, including social and pragmatic skills training. The IDEA recognizes that the a child may need different kinds of special education services to access an education. These include functional, behavioral, social, and academic needs. COPAA’s amicus brief further urged the Court to reject the school district’s formulation that a student must demonstrate a “significant negative impairment” on educational performance to qualify under the IDEA. The statute includes no such requirement; nor is it narrowly limited to children who are having academic difficulties. COPAA has a deep commitment to all children with disabilities, including those who may be progressing academically but need special-education due to a wide-variety of non-academic needs. COPAA’s brief was written by Diane Smith of the Disabilities Rights Center of Maine. COPAA joined with co-amici National Disabilities Rights Network, Autism Society of Maine, and the Disability Rights Center of Maine. The First Circuit ruled in the parents’ favor in March 2007.

Board of Education of Montgomery County v. S.G. In September 2006, COPAA filed an amicus brief with the Fourth Circuit in this case involving the IDEA’s coverage of all children with disabilities, including those who are making academic progress. S.G. is a 13-year old girl who, due to schizophrenia, was unable to receive meaningful educational benefit in public school. COPAA’s brief supported the position of S.G., who was represented by member Mark Martin. The briefs argued that the IDEA requires all children with disabilities to receive a free appropriate public education. A child with a serious emotional disturbance that adversely affect her educational progress is eligible for special-education and related services regardless of her cognitive ability or grades. Hearing voices, hallucinating, and being unable to properly attend or participate in school and classes are hallmarks of an inappropriate education, the briefs noted. Moreover, skewing a child’s grades in order to pass her is inappropriate.  COPAA is grateful for the pro bono work of attorney Kristen Perry and the firm of Whiteford, Taylor and Preston, as well as the work of COPAA’s amicus committee. The National Disability Rights Network joined COPAA in its amicus brief.  Download the Fourth Circuit opinion here

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