The Salt Lake City School District uses a “hub” system to consolidate educational services for students with intellectual disabilities. The Tenth Circuit explained that the school district categorizes students with intellectual disabilities “based solely on their IQs,” “does not ‘consider the individual needs of students in assigning them’” to programs, and does not meaningfully “consider whether intellectually disabled students could be placed in the ‘general education environment,’” but rather predetermines their placements. 

Previously, the United States District Court for the District of Utah had dismissed this lawsuit, finding that the plaintiffs’ claims were “limited to seeking only to attend their neighborhood schools.” The Tenth Circuit disagreed and reversed that decision, finding that the plaintiffs could continue to press their claims under the IDEA, ADA, and Section 504, and remanded the case for further proceedings before the district court. Notably, the Tenth Circuit also found that the district court erred in dismissing the plaintiff’s 504 claim for failure to exhaust administrative remedies, noting that it would have been futile for the plaintiff students to have attempted to exhaust with respect to their 504 claims during their IDEA due process proceedings, as the hearing officers would have dismissed those claims for lack of jurisdiction. 

COPAA congratulates plaintiffs’ attorneys Laura Henrie, Michelle Marquis, Katie Cox, and Maya V. Anderson of the Disability Law Center, which is an organizational member of COPAA. COPAA, along with the National Disability Rights Network and the Arc of the United States, submitted an amicus brief to the Tenth Circuit on behalf of the plaintiffs in this case. The brief was authored by COPAA Legal Director Selene Almazan and Amicus Committee Co-Chair Ellen Saideman.

COPAA filed an amicus brief in the 4th circuit earlier this month in CD v. Arlington School Board. Longtime COPAA member, Melissa Waugh, represents the family. COPAA’s brief focused on the statute of limitations and child find, or evaluations in all areas of suspected disability. The plain language of the statute makes clear that IDEA's statute of limitations starts to run when the parents knew or should have known about the facts which give rise to their cause of action (discovery rule), not when the events occurred (occurrence rule). The Hearing Officer and the district court erred in faulting the parent for the delay in raising an objection to the District’s failure to conduct additional evaluation; parents do not have the same access to relevant information as school district personnel. In addition, the parent filed within two years of the date of the “knew or should have known” date, the filing was in fact timely, consistent with IDEA requirements.  

Application of the discovery rule fits within the larger context of IDEA's goal of ensuring appropriate education for all children with disabilities. School district personnel, with their expertise, are appropriately charged with knowing what it means to assess a child in all suspected areas of disability. When schools fail to comprehensively assess a student, the disturbing result is a delay in necessary interventions.  Parents, by contrast, do not have the background to determine what evaluations should be administered.  When parents rely upon a school to comprehensively assess their child, and the school fails, the parents cannot know what to do and the child suffers the loss of an appropriate education.

The text of the statute explicitly states that the timeline for requesting a hearing “is within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint.”  20 U.S.C. Section 1415(f)(3)(C).  This approach encourages school districts to vigorously pursue their obligation to assess all areas of disability and ensure children with disabilities have a full and meaningful remedy as Congress intended. The decision below fails to fulfill the Congressional mandate in IDEA to “enabl[e] each child with special needs to reach his or her full potential.”  G.L. v. Ligonier Valley Sch. Dist., 802 F. 3d 601, 626 (3d Cir. 2015).  The district court’s approach frustrates the Congressional mandate in IDEA to “enabl[e] each child with special needs to reach his or her full potential.”   Id. at 626.

Legal director, Selene Almazan, filed the brief with assistance from Catherine Reisman, Amicus co-chair. 

Last week, COPAA submitted an amicus brief to the U.S. Court of Appeals for the Sixth Circuit in Y.A. v. Hamtramck Public Schools  in support of the plaintiffs-appellants’ Petition for Rehearing En Banc, which is a request that all of the Sixth Circuit judges reconsider the case, vacate the decision of the smaller panel of Sixth Circuit judges that previously heard and decided the case, and affirm the decision of the U.S. District Court for the Eastern District of Michigan. 

You can read the amicus brief here.

In this case, a group of parents of children with disabilities sued their public school district and the Michigan Department of Education for violations of the Individuals with Disabilities Education Act (IDEA), Title II of the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act. 

If the Sixth Circuit grants the families’ Petition for Rehearing En Banc, the full appellate court will reconsider the case and could change the court’s earlier decision that the Michigan Department of Education cannot be sued for alleged violations of Title II of the ADA.

The State of Michigan had moved to dismiss the parents’ claims against it before the federal district court, which denied the State’s motion. With respect to the parents’ ADA Title II claim, the district court held that the ADA abrogated states’ sovereign immunity under the Fourteenth Amendment, meaning that states can be sued under Title II of the ADA. Michigan filed an interlocutory appeal with the Sixth Circuit, where the panel reversed the district court’s decision.

COPAA and its fellow amici argue that the case should be reconsidered by the full Sixth Circuit because state education agencies do not have immunity from suits brought pursuant to Title II of the ADA, as a state’s obligations under the IDEA create a “service” or “program” under Title II, thereby triggering the state’s liability for ADA violations. As the amicus brief explained further, all other federal circuit courts of appeals that have considered this question have held that “Congress validly abrogated sovereign immunity for [ADA] Title II public education discrimination claims, consistently holding that the documented history of disability discrimination in educational settings provides sufficient constitutional foundation for congressional action under the Fourteenth Amendment.”

COPAA Legal Director Selene Almazan wrote the amicus brief. Amicus Cochairs Alexis Casillas, Ellen Saideman and Catherine Merino Reisman assisted. COPAA’s fellow amici are Disability Rights Michigan, Disability Rights Ohio, Disability Rights Tennessee, Erwin Chemerinsky, and Michigan Disability Rights Coalition.

An additional amicus brief in support of the families’ Petition for Rehearing En Banc was submitted by Abdnour Weiker, MI AECRES, Kentucky Protection & Advocacy, Law for Baby Boomers, and Autism Alliance of Michigan. You can read that amicus brief  here .

As the Court explained this morning, “…20 U. S. C. §1415(l), provides that nothing in the IDEA
‘shall be construed to restrict or limit the rights, procedures, and remedies available under’ the
ADA, Rehabilitation Act, or other federal laws protecting disabled children’s rights. This
provision makes clear that the IDEA does not restrict or limit rights or remedies that other
federal antidiscrimination statutes independently confer on children with disabilities. The bad
faith or gross misjudgment rule… is irreconcilable with the unambiguous directive of §1415(l).
In imposing a higher bar for discrimination claims based on educational services as compared to other sorts of disability discrimination claims, the Eighth Circuit effectively read the IDEA to
implicitly limit the ability of disabled schoolchildren to vindicate their independent ADA and
Rehabilitation Act rights, thereby making it more difficult to secure the statutory remedies
provided by Congress.”

As for what standard should apply going forward, the Court noted that per the “general
approach” of the federal circuit courts of appeals for disability discrimination claims in other
contexts, plaintiffs bringing ADA and Section 504 claims can obtain injunctive relief without
proving intent to discriminate. Meanwhile, plaintiffs seeking compensatory damages typically
must show “deliberate indifference,” requiring a plaintiff to prove that “the defendant
disregarded a ‘strong likelihood’ that the challenged action would ‘result in a violation of
federally protected rights.’”

COPAA congratulates our member Amy J. Goetz, founder of the School Law Center in
Minnesota, who represented the family in this case, as well as Roman Martinez of Latham & 
Watkins, LLP, who argued the case before the U.S. Supreme Court. As COPAA and its fellow amici established in an amicus brief submitted to the Court in support of the family’s argument, “under the appropriate standard—the standard applicable to everyone outside the K-12 school setting,” countless schoolchildren alleging disability discrimination “would have been compensated for the harms caused by the discrimination that Section 504 and the ADA seek to remedy.”

We applaud today’s decision, which marks a legal sea change for many children who have been subject to disability-based discrimination in school.

Media Contact: Selene Almazan, Esq., selene@copaa.org

_________

Today, the Council of Parent Attorneys and Advocates (COPAA) and 10 national disability legal advocacy partners have filed an amicus brief in the Supreme Court of the United States (Supreme Court) in AJT v. Osseo, to protect students with disabilities from having to satisfy a uniquely stringent bad faith or gross misjudgment standard when seeking relief for discrimination relating to their education.

Selene Almazan, Legal Director, COPAA explains, “It is imperative that we protect student civil rights under Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA), for students who have suffered compensable harms from disability discrimination. The legal rule whose demise is sought in this case—the bad-faith-or-gross-misjudgment standard—cannot be squared with the text or purposes of Section 504 and the ADA which undergird protections for millions of children with disabilities attending K-12 schools.”

Background: Filed in the Fall of 2024, the issue to be argued before the Supreme Court is whether the Americans with Disabilities Act of 1990 and Rehabilitation Act of 1973 require children with disabilities to satisfy a uniquely stringent “bad faith or gross misjudgment” standard when seeking relief for discrimination relating to their education. The Supreme Court will hear the case on April 28, 2025.

Amici curiae are Council of Parent Attorneys and Advocates, The Arc of the United States, Bazelon Center for Mental Health Law, Children’s Law Center, Disability Rights Education & Defense Fund, Education Law Center, Learning Rights Law Center, Minnesota Disability Law Center, part of Mid-Minnesota Legal Aid, National Center for Youth Law, National Disability Rights Network, National Health Law Project, and the Washington Lawyers Committee for Civil Rights and Urban Affairs.

On Friday, January 17, the U.S. Supreme Court granted the family’s petition for a writ of certiorari in the case A.J.T. v. Osseo Area Schools, agreeing to hear the case. The family in this case, which arose out of Minnesota, prevailed on its Individuals with Disabilities Education Act (“IDEA”) claim in the U.S. Court of Appeals for the Eighth Circuit, but lost on their claims of disability discrimination under Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act. 

At issue before the U.S. Supreme Court will be the Eighth Circuit standard requiring children with disabilities who claim disability discrimination “based on educational services” to prove that their public school officials acted with “bad faith or gross misjudgment.” This standard originated in the Eighth Circuit in 1982, and in the years since a circuit split has emerged among several courts of appeals. The “bad faith or gross misjudgment” standard is not required by the actual statutory texts of the ADA or Section 504, and neither the Eighth Circuit nor other circuit courts of appeals require such a showing for disability discrimination cases that arise in non-school settings. The standard is very high, making it difficult for students with disabilities to prevail on disability discrimination claims.

COPAA member Amy J. Goetz of the School Law Center, LLC, represents the family in this case; she is joined by Nicholas Rosellini of Latham & Watkins LLP and Counsel of Record Roman Martinez, who will argue the family’s case before the U.S. Supreme Court this term. 

COPAA submitted an amicus brief in October 2024 urging the Supreme Court to hear this case and was joined by fellow amici National Center for Youth Law, National Disability Rights Network, Learning Rights Law Center, and Education Law Center. The Amicus brief was written by COPAA board member Ellen Saideman and COPAA Legal Director Selene Almazan.

You can read the family’s petition for certiorari and COPAA’s amicus brief.

COPAA Files Amicus Brief in U.S. Supreme Court Urging the Reversal of Intent Standard in Disability Discrimination Claims Brought by Public School Students

Earlier this month, COPAA and several other advocacy groups filed an amicus brief in the U.S. Supreme Court in support of a family of child with disabilities, urging the Court to hear the case A.J.T. v. Osseo Area Schools. In this case, the family has petitioned the Court to take up their case and reverse the decision issued by the United States Court of Appeals for the Eighth Circuit earlier this year on their claims under Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act. 

At the heart of this case is the “bad faith or gross misjudgment” standard applied by several circuit courts of appeals to ADA and 504 claims brought by families of children who are also eligible under the Individuals with Disabilities Education Act (“IDEA”). Since 1982, the Eighth Circuit has required families to prove that school districts acted with intent—specifically, bad faith or gross misjudgment—in discriminating against IDEA-eligible students in order to prevail on ADA and 504 claims. This very high standard does not apply to claims brought by plaintiffs alleging disability discrimination in other contexts with respect to colleges, other public entities under Title II, or public accommodations under Title III of the ADA.

As COPAA and its fellow amici argue in the brief, this high intent standard does not appear in and conflicts with the text of the ADA and Section 504; and the standard conflicts with other U.S. Supreme Court precedent and with 20 U.S.C. § 1415(l) of the IDEA, which states that families’ rights under the IDEA do not restrict the rights available under the ADA, Section 504, or other federal laws. 

As COPAA noted in its brief, this month the United States filed a Statement of Interest in Robertson v. District of Columbia, also asserting that “courts are not empowered to rewrite a statute to require an element of bad faith or gross misjudgment that Congress did not impose.”

Joining COPAA on the brief are the National Center for Youth Law, National Disability Rights Network, Learning Rights Law Center, and Education Law Center.  COPAA Legal Director Selene Almazan and board member Ellen Saideman wrote the amicus brief. COPAA member Amy J. Goetz, founder of the School Law Center in Minnesota, represents the family in this case. 

Earlier this month, COPAA and several other advocacy groups filed an amicus brief with the Supreme Court of the United States urging it to grant certiorari in Spencer v. County of Harrison, Texas and to reverse the decision rendered by the United States Court of Appeals for the Fifth Circuit. COPAA, along with its fellow amici Texas Civil Rights Project, Disability Rights Texas, Intercultural Development Research Association, and Texas Appleseed, argued against the shackling of children involved in the juvenile justice system during court proceedings.

Many jurisdictions have prohibited the indiscriminate shackling juveniles in court proceedings, but many jurisdictions continue the practice, which includes the use of leg irons, belly chains, and/or handcuffs without first conducting an individualized assessment as to whether the child poses a flight or safety risk. 

Children with disabilities and children of color are disproportionately overrepresented in the juvenile justice system, often for conduct that is a manifestation of their disabilities or for minor infractions. These same children likewise disproportionately experience the harm of indiscriminate shackling, which causes significant harm to their physical and psychological health. 

The amicus brief was written by Leslie Salzman and Rebekah Diller of the Benjamin N. Cardozo School of Law, Amelia T.R. Starr and Henry G. Goldberg of Davis Polk & Wardwell LLP, COPAA Board member Ellen Saideman, and COPAA’s Legal Director Selene Almazan.  COPAA member, Marty Cirkiel, represented the family in earlier proceedings. 

On March 27, 2024 COPAA and Advocates for Justice and Education, Inc. filed an amicus brief with the Supreme Court of the United States urging it to grant certiorari in the case Davis v. District of Columbia following a decision by the United States Court of Appeals for the District of Columbia Circuit that significantly undermined the important “stay put” right for students with disabilities. The Individuals with Disabilities Education Act (IDEA) provides that students have the right to “stay put” in their current educational placement during the pendency of a dispute between parents and school districts regarding the provision of a free appropriate public education (FAPE).

In the brief, COPAA and its fellow amicus, Advocates for Justice and Education, Inc., argued
first that the D.C. Circuit’s ruling conflicts with Congress’s intent to provide broad protections to students with disabilities and to prevent disruption to their education during FAPE disputes. Second, Congress was clear that there is no exception for undue burden when it comes to school districts’ obligation to provide a FAPE to every student with a disability. The D.C. Circuit’s ruling would create an “impracticality exception” that conflicts with the rulings from other circuits.

Third, an erosion of the stay put right would have a disproportionately negative impact on
students with severe disabilities who are in need of specialized programs from private providers. The D.C. Circuit’s ruling could lead to school districts contracting out their FAPE responsibility to private providers that they know cannot meet students’ needs, leading to some students languishing without any educational program at all.

The amicus brief was authored by Craig E. Leen of K&L Gates LLP for Advocates for Justice
and Education, Inc., and by COPAA Legal Director Selene Almazan and board member Ellen
Saideman. 

Earlier this month, COPAA submitted an amicus brief to the United States Court of Appeals for the District of Columbia Circuit on behalf of a family seeking an award of attorney’s fees in a case in which the hearing officer had issued a consent order at both parties’ request.  In B.D. v. District of Columbia, the family appealed an adverse ruling from the United States District Court for the District of Columbia, which had dismissed the family’s claim for reimbursement of attorney’s fees and costs as the prevailing party under the IDEA.

As COPAA argued in its brief, the district court erred because the issuance of a consent order
granting relief to the parents confers prevailing party status. COPAA cited the United States Supreme Court’s 2001 decision in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, which stated that “court-ordered consent decrees create the ‘material alteration of the legal relationship of the parties’ necessary to permit an award of attorney’s fees.” As many courts, including district courts in the D.C. Circuit, have held, attorney’s fees are available in IDEA cases to families as prevailing parties who obtained consent orders after filing due process complaints. COPAA member Diana Savit represents the family.

COPAA underscored in its brief the importance of the IDEA provision enabling prevailing parents to be awarded attorney’s fees. Fee-shifting provisions in the IDEA and other civil rights laws are intended to support private litigants by attracting competent counsel to enforce these laws. COPAA Legal Director Selene Almazan and board member Ellen Saideman wrote the amicus brief.

In a win for students with disabilities and for the attorneys who represent their families, the United States Court of Appeals for the Seventh Circuit reversed the decision of the United States District Court for the Southern District of Indiana in A.B. v. Brownsburg Community School Corporation on the issue of parental recovery of attorney’s fees. In this case, the parents of a child with disabilities disputed their school district’s determination that their child was not eligible for special education.

The district court decided that although the parents received a favorable outcome after filing a petition for a due process hearing, they were not the “prevailing party” pursuant to the IDEA and that the court therefore did not have discretion to award the parents attorney’s fees. The Seventh Circuit disagreed and reversed. 

The parties in the case had engaged in settlement negotiations, and the school district offered to stipulate that the student was eligible for special education. Importantly, the Seventh Circuit found that it was not until the Independent Hearing Officer issued a Finding of Eligibility for special education that the legal relationship between the student’s parents and the school district was materially altered. It was at that time that the district incurred a legal obligation to provide the student with special education. His parents are therefore the prevailing party. The Seventh Circuit remanded the case back to the district court, which will then decide whether to exercise its discretion to award attorney’s fees to the parents.

In an important victory for children with disabilities who have reached adulthood, the United States Court of Appeals for the Second Circuit ruled that under the Individuals with Disabilities Education Act (IDEA), an adult “child with a disability” under the age of 22 who prevails in a due process claim for denial of FAPE, thereby vindicating his own rights, is entitled to receive attorneys’ fees. The Second Circuit handed down its decision in J.S. v. New York State Department of Corrections and Community Supervision (DOCCS) on August 3; COPAA had submitted an amicus brief to the court in this case.

J.S., as a 20-year-old incarcerated individual, prevailed in a due process hearing against DOCCS, which had denied him a FAPE during the three years that he was incarcerated. However, the United States District Court for the Western District of New York then dismissed J.S.’s claim for attorneys’ fees under the IDEA, which permits courts to award reasonable attorneys’ fees to “a prevailing party who is the parent of a child with a disability.” The district court read the statute very narrowly, reasoning that because J.S. was himself the “child with a disability,” he was not a “parent” and therefore was not entitled to recover attorneys’ fees.

The Second Circuit reversed the district court’s decision, noting that the IDEA defines parent broadly, to include “an individual who is legally responsible for the child’s welfare.” Because J.S., as a child with a disability under age 22, did not have a guardian, parent, or other appointed individual, he is covered by the IDEA’s broad definition, as he is an adult with legal authority to vindicate his own IDEA rights in court.

COPAA filed an amicus brief with the United States Court of Appeals for the Eighth Circuit in A.J.T. v. Osseo Area Schools, arguing that the court should reverse the decision of the United States District Court for the District of Minnesota. In this case, the school district discriminated against a student with a disability by failing to provide her with a full school day. COPAA member, Amy Goetz, represents the family.

The district court had applied a “bad faith” or “gross misjudgment” standard to A.J.T.’s claims under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA), thereby inappropriately imposing a higher intent standard than would be applied to complainants who are not students.

In its brief, COPAA argued that the district court’s decision restricts students’ rights under Section 504 and the ADA in a way that is inconsistent with the statutes and with the United States Supreme Court’s recent decision in Perez v. Sturgis Public Schools, which makes clear that students who are eligible for services under the Individuals with Disabilities Education Act (IDEA) should not have their rights restricted under Section 504 and the ADA. Further, COPAA argued that the law is clear that public school students should face no greater burden in asserting reasonable accommodation claims than do individuals seeking relief against private actors. COPAA Legal Director Selene Almazan, member Catherine Merino Reisman, and board member Ellen Saideman wrote the amicus brief urging the Eighth Circuit to protect the right of
students to be free from discrimination on the basis of their disabilities.

Together, in support of the plaintiff Miguel Perez, the twelve national policy and legal advocacy organizations argue that:

• Students with disabilities are not required to exhaust their administrative remedies to bring non-IDEA civil rights claims. 
• The IDEA protects a student’s right and the use of alternative dispute resolution procedures as a preferred method for resolving IDEA claims.
• The decision of the Court of Appeals for the Sixth Circuit significantly undermines both the IDEA and the Americans with Disabilities Act (ADA) and places IDEA plaintiffs in an unnecessary and untenable position of having to litigate otherwise resolvable claims, potentially to their own financial harm. 
• If allowed to stand, the Sixth Circuit Court of Appeals decision will force parents who could otherwise achieve all available IDEA relief through settlement to litigate their claims. This decision must be overturned, lest parents be left foreclosed from pursuing non-IDEA civil rights claims as Miguel Perez (Miguel) was.

Signers of the Amicus Brief: The Arc of the United States, The Autistic Self-Advocacy Network (ASAN), Communication First, The Coelho Center for Disability Law, Policy and Innovation, Council of Parent Attorneys and Advocates (COPAA), Education Law Center, Innisfree Foundation(Innisfree), Learning Rights Law Center, National Center for Learning Disabilities (NCLD), National Center for Youth Law (NCYL), National Disability Rights Network (NDRN), National Federation of the Blind (NFB).

Facts of the Petition to the Court RE: Perez v. Sturgis Public Schools: 

1. Whether and under what circumstances a court should excuse the administrative exhaustion [as required by the IDEA] on the grounds that exhaustion would be futile. Specifically, Perez is challenging the 6^th U.S. Circuit Court of Appeals’ statement at 79 IDELR 1 that IDEA’s exhaustion provision at Sec. 1415(I) “does not come with a ‘futility’ exception.”
2. Whether the IDEA’s exhaustion requirement applies to non-IDEA claims that only seek money damages – a form of relief not available under the IDEA. The U.S. Supreme Court left this question unanswered in Fry v. Napoleon Community Schools, 69 IDELR 116 (2017), after determining that the IDEA’s exhaustion requirement applies to any non-IDEA claim seeking relief for a denial of a free appropriate public education (FAPE).

The U.S. Supreme Court is expected to hear arguments in Perez v. Sturgis Public Schools January 18, 2023. Miguel Perez is represented by Roman Martinez, Latham & Watkins. Also representing Perez are: Ellen Marjorie Saideman, Law Office of Ellen Saideman; Marc Charmatz and Leah Weiderhorn, National Association of the Deaf Law Advocacy Center; and, Mitchell Sickon, Disability Rights Michigan. 

URL to Amicus Brief: https://www.supremecourt.gov/DocketPDF/21/21-887/246668/20221116141113015_21-887%20Perez%20v%20Sturgis%20Brief%20for%20Amici%20Curiae%20The%20Arc%20of%20the%20US%20et%20a.pdf

Amicus brief of Senator Tom Harkin, Representative Tony Coelho, Representative George Miller Miguel Luna Perez, Petitioner v. Sturgis Public Schools, et al..

Amicus brief of Former U.S. Department of Education Officials Miguel Luna Perez, Petitioner v. Sturgis Public Schools, et al..

Amicus brief of Professors Miguel Luna Perez, Petitioner v. Sturgis Public Schools, et al..

The district court in this case erroneously determined that the due process hearing had been “uncontested,” even though the school district had not agreed to settle with the parent prior to the hearing, requiring the parent to proceed through the hearing process—including a brief administrative hearing.

COPAA argued in its amicus brief that because the parent in this case had been required to obtain counsel in order to vindicate their IDEA rights and obtain relief, the parent as the prevailing party is entitled to full compensation of their attorneys’ reasonable hourly rates. COPAA emphasized that the IDEA—like other civil rights laws—relies on private litigants to ensure compliance with the law, making the enforcement of the IDEA’s attorneys’ fee-shifting provision crucial to the process of protecting the rights of students with disabilities and their families.

Read the Parents’ brief.

Read COPAA’s amicus brief.

In an unusual strategy, COPAA has filed a motion for leave to file an Amicus brief with the United States Court of Appeals for the Second Circuit in support of the defendant-appellee school district’s petition for a rehearing en banc in D.S. v. Trumbull Bd. of Educ. COPAA is currently awaiting the court’s order in response to its motion.

The school district in the case petitioned for a rehearing in response to the Second Circuit’s ruling on the statute of limitations for parents requesting publicly-funded individual educational evaluations (IEEs) pursuant to the IDEA.  COPAA’s interest in obtaining a rehearing relates both to the court’s ruling that the statute of limitations for IEE requests is not two years, but is instead “adjustable,” and to the court’s ruling that IEEs can be requested only in response to initial evaluations and triennial reevaluations. The Second Circuit’s nostre sponte ruling that a functional behavioral assessment (FBA) is merely an assessment “tool” and not an “evaluation” would do away, circuit-wide, with parents’ right to obtain publicly-funded IEEs for specific, targeted assessments of their children such as FBAs—and therefore prompted COPAA’s decision to support the school district’s petition for a rehearing before a full panel of the circuit court.

The child had been physically and verbally assaulted for two months leading up to the assault, during which time both the child and his mother reported the incidents to school administrators, who did not intervene. The child’s mother did not file an administrative complaint for gender and race discrimination against the school district until well after the 180-day statute of limitations had passed, and the district court found that it did not have jurisdiction due to her time-barred administrative complaint. Noting the PHRA’s goal of preventing and providing remedies for unlawful discriminatory conduct, the Supreme Court of Pennsylvania applied the equitable tolling provision of the Act (which does not expressly provide for minority tolling) to allow minors to bring complaints once they have reached the age of majority. The court reasoned that children should not forever lose their own claims due to their parents’ failure to timely file.

The Supreme Court’s decision in Endrew F. clarified two prevalent issues  in the post-Rowley special education arena: (1) the Court corrected those who had misread the Rowley educational benefit standard under IDEA to mean students were entitled to “merely more than de minimis” educational benefit; and (2) the Court reiterated the importance of complying with all aspects of IDEA’s procedures as critical for ensuring, and for evaluating whether a child has received “sufficient educational benefits.”  Endrew F., 137 S. Ct. 988, 998 (2017) (citing Rowley, 458 U.S. at 200 and 202).  These two principles are fundamental to evaluating FAPE claims for students under IDEA.  Unfortunately, the district court in this case failed to take these two Endrew F. principles into consideration and therefore committed legal error that the Court must rectify.  

In this case, Copperas Cove Independent School District (CCISD) denied T.P., a child who, with the appropriate accommodations and supports, is cognitively capable of grade level achievement in the general education curriculum, appropriate special education services, specifically for reading intervention, and failed to assess T.P. in all areas of need.  Had the district court applied the appropriate measure for progress under Endrew F. when examining T.P.’s IEP for substantive compliance, it would have clearly found that T.P. was denied FAPE because, although he was capable of grade-level achievement, the gap between his achievement in reading and that of his non-disabled peers had widened rather than narrowed. Clearly, such results do not meet IDEA’s appropriately ambitious standard for measuring progress in light of this child’s unique circumstances, and as such, the district court’s decision requires reversal.

Read COPAA’s amicus brief.

Read Parents’ brief.