Disabled Kids: The Next Civil Rights Movement

See this interesting article by that title in a BusinessWeek blog.

En Banc Third Circuit: Can't Enforce IDEA Through Section 1983

Yesterday, the en banc Third Circuit unanimously ruled, in A.W. v. Jersey City Public Schools, that the Individuals with Disabilities Education act cannot be enforced through 42 U.S.C. 1983. This is an important decision, because it means that kids and parents can't get money damages for violation of the IDEA, and it makes it nigh-impossible to maintain class-based claims for violation of the IDEA. The court's decision overrules its own prior precedent, and is inconsistent with decisions of a number of other circuits. (The court also took a bit of a leap in concluding that it had appellate jurisdiction to decide the issue in the first place.) Oh yeah, and the court concludes with a ruling, that also creates a circuit split, that Section 504 of the Rehabilitation Act cannot be enforced through Section 1983 either. All told, a significant and problematic decision.

Supreme Court: Parents Have Enforceable Rights Under IDEA

Today, the Supreme Court issued its opinion in Winkelman v. Parma City School District. The case presented the question whether parents can proceed in federal court pro se (that is, without a lawyer) to enforce provisions of the Individuals with Disabilities Education Act relating to their child's education. The Court, in a 7-2 decision, held that parents can proceed pro se in federal court. Justice Kennedy wrote the majority opinion, which concluded that the IDEA gives parents exactly the same rights relating to their children's education as it gives to their children. In an opinion concurring in the judgment in part and dissenting in part, Justice Scalia (joined by Justice Thomas) argued that parents have only two classes of enforceable rights under the IDEA: (1) a right to reimbursement if the school district denied a free appropriate public education and the parents sent the child to private school as a result; and (2) certain procedural rights.

It's nice to see the Court rule for the parents in an IDEA case, and the Court's holistic approach to reading the statute will be probably be helpful in future cases.

Tenth Circuit on IDEA Exhaustion, and IDEA's Relationship with the ADA and Rehabilitation Act

Yesterday, the Tenth Circuit issued its opinion in Ellenberg v. New Mexico Military Institute. The case involved a teenager who applied to the New Mexico Military Institute (a state secondary school) and was rejected because of a psychiatric disability. She brought suit under the IDEA, the ADA, and the Rehabilitation Act. The Tenth Circuit held that, because she had not challenged the NMMI's decision through the IEP process, her IDEA claim had to be dismissed on exhaustion grounds. Along the way, the court made the following tangential observation, which is sure to be quoted a lot by states and school districts:

The Ellenbergs misunderstand the IDEA. In their brief, which relies heavily on anti-discrimination hyperbole, they view the IDEA as a virtual treasure trove providing disabled children with a limitless number of substantive rights. The IDEA, however, is not so broad. It is a spending statute that imposes obligations on the states to provide certain benefits in exchange for federal funds. See Rowley, 458 U.S. at 204 n. 26. Although “Congress has broad power to set the terms on which it disburses federal money to the States, ... when Congress attaches conditions to a State's acceptance of federal funds, the conditions must be set out ‘unambiguously.’ “ Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S.Ct. 2455, 2459 (2006) (internal citation omitted). Courts engage in a two-step inquiry to determine if a state has satisfied its substantive IDEA obligations. “First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits?” Rowley, 458 U.S. at 206-07. If the answer to both is yes, “the State has complied with the obligations imposed by Congress and the courts can require no more.” Id. at 207.

Citing the IDEA's 30-year old requirement that states “establish[ ] a goal of providing full educational opportunity to all children with disabilities,” see 20 U.S.C. § 1412(a)(2), plaintiffs argue that the IDEA requires absolute educational equality. In support, they point to language contained in Congress' recent reauthorization of the IDEA, specifically Congress' finding that it is in the “national interest that the Federal Government have a supporting role in assisting State and local efforts to educate children with disabilities in order to improve results for such children and to ensure equal protection of the law.” 20 U.S.C. § 1400(c)(6) (2005). Plaintiffs, however, have not presented us with a single case from any court recognizing a legally cognizable anti-discrimination claim brought under the IDEA.^FN10 Moreover, the Supreme Court has explicitly rejected a similar attempt to transform the IDEA into an anti-discrimination vehicle in a 30-year old case, the very case cited by plaintiffs in support of their view. See Rowley, 458 U.S. at 198 (noting that in passing the IDEA Congress did not intend “to achieve strict equality of opportunity or services” and further holding “the requirement that a state provide specialized educational services to handicapped children generates no additional requirement that the services so provided be sufficient to maximize each child's potential ‘commensurate with the opportunity provided other children.’ ”); see also Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 623 n. 6 (1999) (Thomas, J., dissenting) (noting that the IDEA is not a general anti-discrimination statute).

But that observation wasn't all bad for the Ellenberg's: Because their ADA and Rehabilitation Act claims were purely antidiscrimination claims, the court concluded that those claims could proceed, notwithstanding the failure to exhaust the IDEA claim. The court's language on this point is sure to be quoted a lot by parents:

[E]xempting plaintiffs from exhaustion in this circumstance prevents inefficiency and waste of judicial resources. Limited obligations are imposed on states under the IDEA. Educational experts who develop IEPs must identify the students' LRE and select an educational placement, but they do not decide which schools a student is otherwise qualified to attend. Administrative officers reviewing plaintiffs' IDEA claims must consider the same limited questions that we ask: (1) Has the student been given a FAPE?; and (2) Was the student given a FAPE in the least restrictive environment? Rowley, 450 U.S. at 206-07. At no point would the administrative process offer insight into the merits of a discrimination claim. Requiring exhaustion before the Ellenbergs could pursue their claims under the ADA and RA would create an anomalous result: Plaintiffs who concede a students' IDEA rights have not been violated, or have settled the IDEA claims, would be required to craft an IDEA claim and proceed through the state administrative process to determine if the students' IDEA rights have been violated. See W.B. v. Matula, 67 F.3d 484, 496 (3d Cir.1995) (recognizing that plaintiffs would not be required to use the IDEA's administrative framework when they have settled their IDEA claims).

Turning to the merits of the RA and ADA claims, contrary to NMMI's suggestion, our precedent does not hold that a party's discrimination claims under the RA and the ADA must automatically be dismissed if an IDEA claim fails.^FN22 Any other interpretation of our caselaw would mean that a state educational institution that receives public funding could openly discriminate against applicants with disabilities so long as the state offered the student a FAPE in the least restrictive environment. Thus, even if plaintiffs conceded that New Mexico fully satisfied its IDEA obligations with respect to S.E., they could pursue claims under the ADA and the RA on the grounds that S.E. was precluded from receiving a state benefit-military-style education-provided to her non-disabled peers.

Wasserman on Reimbursement and the IDEA

New on Westlaw (sorry, no free link yet): Lewis M. Wasserman, Reimbursement to Parents of Tuition and Other Costs Under the Individuals with Disabilities Education Improvement Act of 2004, 21 St. John's J. Legal Comment. 171 (2006). The introduction:

A substantial number of judicial decisions involve parents of disabled children who are dissatisfied with the programs and/or services offered to their child by public agencies. These parents opt to enroll their child in programs and/or services they deem appropriate to meet their child's special needs and then seek reimbursement for the associated expenses under the Individuals with Disabilities Education Improvement Act of 2004 (hereinafter "IDEA/2004"). These programs and services typically include private school programs, tutoring, supplementary services and independent medical or other professional evaluations of their child for the purpose of ascertaining their special needs. At times, although satisfied with the Individualized Education Program (hereinafter "IEP") their school district created for their child, parents purchase special education or related services and then seek reimbursement for such expenses, contending that the school district did not implement the IEP as required. However, parents are not always successful in obtaining reimbursement.

This article examines the elements for reimbursement under IDEA/2004, namely denial of a free appropriate public education for the child and the appropriateness of the programs/services purchased by the parents, through judicial decisions rendered under IDEA/2004's predecessor statutes to reimbursement claims under IDEA/2004. The article will also examine complete and partial defenses to reimbursement claims under IDEA/2004 based on, among other things, parental conduct, program/services cost, and statutes of limitation. Finally, the article will synthesize the current statutory scheme with case law to render practical advice regarding the prosecution of complaints seeking reimbursement under IDEA/2004 and make suggestions for further amendment to IDEA which may be helpful in attaining the Congressional goal that all children with disabilities receive a free appropriate education which meets their special needs.

What a timely article (given the Supreme Court's recent cert. grant in Tom F.)!

Two New Disability Pieces on SSRN

New on SSRN:

1. Kate Mueting, A Clear Path through the Labyrinth: A Case for Allowing Victims of Employment Retaliation and Coercion to Recover Legal Damages under the Americans with Disabilities Act. The abstract:

More than a decade after Congress passed the Americans with Disabilities Act of 1990 (ADA) and expanded the remedies available for disability discrimination in employment with the Civil Rights Act of 1991, the Seventh Circuit in Kramer v. Banc of America Securities, 355 F.3d 961 (7th Cir. 2004) became the first federal appellate court to determine that victims of ADA retaliation and coercion in employment are ineligible for legal damages and jury trials. After detailing the law and analysis implicated by this issue, this Note will assert that, based on the language, structure, and legislative histories of the ADA and the Civil Rights Act of 1991, the Seventh Circuit erred in its approach and conclusion. Furthermore, allowing victims of ADA retaliation and coercion in employment to recover punitive and compensatory damages is necessary to effectively further the ADA's anti-discrimination goals.

2. Christopher Walker, Adequate Access or Equal Treatment: Looking Beyond the Idea to Section 504 in a Post-Schaffer Public School. The abstract:

In light of the Supreme Court's decision this Term in Schaffer v. Weast, this Note analyzes the current state of special education law and argues that parents, attorneys, and advocates should look beyond the Individuals with Disabilities Education Act (IDEA) to Section 504 in the post-Schaffer public school. This Note shows how these two standards operate in the context of state special schools for the blind and deaf. A state-by-state survey of thirty states' special school admission policies and practices reveals the IDEA's limitations and Section 504's potentially complementary role. Although other works have briefly compared the IDEA and Section 504, this Note is the first post-Schaffer comparison and also the first to use a specific policy context to demonstrate how the two statutes interact and complement each other; it is also the first published study on the exclusion of multi-disabled students from state special schools. As the state special school context illustrates, Section 504 is a powerful, yet oft-neglected, complement to the IDEA. Whereas the IDEA focuses on adequate access to a free appropriate public education (FAPE), Section 504 emphasizes equal treatment within federally funded programs. This Note advocates that policymakers and special education attorneys understand how to utilize both Section 504 and the IDEA in order to make sure that no child is left behind or otherwise excluded from educational opportunities solely on the basis of a
disability. This understanding is particularly important in the post-Schaffer public school.

Good First Circuit IDEA Case

Yesterday, in Mr. I v. Maine School Administrative District No. 55, the First Circuit issued a very lengthy and interesting IDEA opinion. The case involved a child with Asperger's Syndrome, who was performing at an above-average level academically. The First Circuit affirmed the district court's determination that, because the child's condition led to isolation, inflexibility, and self-mutilation during schooltime, her condition "adversely affect[ed]" her educational performance and thus constituted a disability under the IDEA. The state had argued that the IDEA did not give it notice that "adversely affect" could be read so broadly, and that interpreting the statute to reach this case would therefore violate the Spending Clause. But the court rejected that argument and found the law unambiguous. I suspect this will be an important decision for children with Asperger's, who in many cases will perform at an above-average level academically but still need special education and related services under the IDEA.

NYT on Winkelman

Here's Linda Greenhouse's story on yesterday's Winkelman argument in the Supreme Court. The nose-counting, such as it is:

The justices were attentive to both sides’ arguments. While several justices tipped their hands, it was difficult to read the court as a whole. Justice Stephen G. Breyer said Mr. Bergeron would have an “uphill battle” to persuade him that despite the statute’s numerous references to parents, the phrase “party aggrieved” should be interpreted as applying only to children and not to parents.

And Justice David H. Souter told Mr. Bergeron that the statutory right to a “free appropriate public education” appeared to be “a right of the family group, the parents and the child together, rather than the right of the child alone.”

On the other hand, Justice Antonin Scalia told Mr. André, the Winkelmans’ lawyer, that lawyers “protect the court from frivolous suits.” When suits are brought without lawyers, “we make a lot more work for federal district judges,” he added.

Mr. André’s response that “a capable district judge can look at the case and decide whether the school should have complied with the statutory mandate” did not satisfy Justice Scalia.

“And do it right after reading pro se prisoner petitions, right?” the justice said, using the legal term for a case filed without a lawyer. “You’d have a nice evening’s work,” he added.

“We think that pro se parents are quite different from pro se prisoners,” Mr. André replied.

NY Sun on Tuition Reimbursement Case

The NY Sun has this very interesting article on the IDEA tuition-reimbursement case the Supreme Court took yesterday.

Winkelman Argument Coverage

Today, the Supreme Court hears arguments in Winkelman v. Parma School District, which presents the question whether parents can represent themselves and their children in IDEA cases. SCOTUSBlog has this preview. The AP has this article on the case.