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October 4, 2016

Talking Points

Special ed, vouchers for religious schools on SCOTUS docket this year

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The Supreme Court returned Monday for its fall term, one justice down but with several potentially pivotal education-related cases on the docket.
Last year, the eyes of the education world were on the Supreme Court when the justices heard the blockbuster-that-wasn’t Friedrichs case, which would have decided whether states could force teachers who aren’t union members to pay dues. Justice Antonin Scalia died before the court could release its decision, resulting in a 4–4 tie that left intact a lower court ruling allowing states to impose mandatory dues if they so chose.
This year, the court will hear at least three education-related cases: two involving special education and one that could have an impact on vouchers granted to religious institutions.
Fry v. Napoleon Community Schools: What rights do disabled students have under various disability laws?
The case concerns E.F., a girl with cerebral palsy, whose Michigan school district refused to let her bring her service dog to class to assist with tasks such as using the bathroom, opening and closing doors and picking up dropped objects. The district cited concerns that the dog, a goldendoodle named Wonder, would cause allergies and distractions among other students and instead provided E.F. with an adult human aide. E.F.’s parents, Stacy and Brent Fry, homeschooled her for two years before moving her to another district.
Her parents claim that the district’s refusal to allow Wonder at school violated the Americans With Disabilities Act and the Rehabilitation Act, laws that guarantee appropriate accommodations — including the use of service animals — to people with disabilities. The school district countered that providing E.F. with a one-on-one human aide satisfied its obligations under the Individuals With Disabilities Education Act (IDEA), which requires schools to provide a free, appropriate public education to students with disabilities.
The Frys filed a complaint with the federal Education Department’s Office of Civil Rights, which ruled that even though the district didn’t cause E.F. any educational harm by banning Wonder from the school, it still violated her rights. OCR said failing to allow Wonder would be akin to requiring a student in a wheelchair to be carried, or mandating that a blind student be guided by a teacher instead of using a cane or service animal.
The Frys then sued the district under the Americans With Disabilities Act and the Rehabilitation Act, which, unlike IDEA, allow plaintiffs to collect monetary damages when their rights have been violated.
But a district court threw out the lawsuit because under the Handicapped Children’s Protection Act of 1986, students must exhaust their legal options under IDEA before they can bring a lawsuit under other disability rights laws.
The Frys say their case is different — that they never claimed the district didn’t provide a free, appropriate public education as required under IDEA, but rather that the district violated other federal laws. The Handicapped Children’s Protection Act, they argue, restricts only claims that could also be addressed under IDEA.
A panel of judges from the Sixth Circuit upheld the district court’s decision. In their view, simply asking for damages doesn’t excuse plaintiffs from having to exhaust their options under IDEA.
For the Frys’ appeal to the Supreme Court, the U.S. government has filed a brief siding with the family, as have the states of Illinois and MinnesotaA coalition of disability rights groups wrote in a brief supporting the Frys that requiring children with disabilities to exhaust IDEA requirements “contravenes national values” and can cause significant harm, potentially in the form of lost years of education benefits while families fight for particular therapies. The groups also pointed to a half-dozen cases around the country of children with various disabilities in similar circumstances.
The justices will hear arguments in the case on October 31.
Endrew F. v. Douglas County Schools: What level of education must schools provide for students with disabilities?
Endrew, a student with autism, attended public schools in Douglas County, Colo., from pre-K through fourth grade. In second and third grade, he began having behavioral problems, such as yelling and crying. By fourth grade, his behavioral problems got so bad that he regularly had to be removed from the classroom and could not make progress toward the goals in his individualized education plan, his parents, Joseph F. and Jennifer F., wrote in their brief urging the court to hear the case.
The family decided to place Endrew in a private school and sought reimbursement for tuition from the Douglas County schools.
An administrative judge denied the claim, saying that Endrew had received “some” educational benefit in the Douglas County schools. The U.S. District Court in Colorado upheld the administrative law judge’s ruling, saying the intent of IDEA was “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside,” and that since Endrew had shown some progress, his parents weren’t entitled to tuition reimbursement. A circuit court sided with the district.
The problem, the lawsuit says, is that courts of appeals around the country are “in disarray” over what constitutes an appropriate education for children with disabilities. The Supreme Court in a 1982 case specifically declined to set a standard, saying, “We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by [IDEA].”
Because of this, Endrew’s parents wrote, in two district court circuits, the level of educational benefit must be “meaningful”; in five, the standard is “just-above-trivial,” and in the other five, the standard is unclear.
“Resolving the conflict among the circuits will ensure that millions of children with disabilities receive a consistent level of education, while providing parents and educators much-needed guidance regarding their rights and obligations,” Endrew’s parents wrote.
The federal government filed a brief urging the court to take the case, arguing that “there is no justification for providing children with disabilities different degrees of protection under federal law depending on where they happen to live.” The government also said the court should set a higher standard for educational benefit.
The school district, in a brief urging justices not to take the case, argued that any split among circuits was, basically, semantics, and that any changes to the standard should come from Congress.
The justices agreed to hear the case but haven’t yet scheduled arguments.
Trinity Lutheran Church v. Pauley: Can states exclude religious institutions from aid programs, and what is the possible impact on vouchers?
Trinity Lutheran Church operates a preschool in Missouri. It had applied for a state program that provides refunds for nonprofits that replace playground surfaces using material made from recycled tires. The program is funded through a tax on sales of new tires.
The state collects applications annually and ranks them, then awards as many refunds as possible, depending on the amount of tax collected. In 2012, Trinity Lutheran’s application was ranked No. 5 out of 44, but Missouri did not provide a refund, arguing that doing so would violate a prohibition in the state constitution against public funding of religious activities. The church sued Sarah Parker Pauley, director of the state’s Department of Natural Resources, which administered the program.
The church argued that this action violates its rights under the U.S. Constitution — free exercise of religion and the right to equal application of the law. Missouri says its refusal to fund the new playground doesn’t prevent the church or its members from exercising their religious rights.
Lower courts sided with the state, primarily citing a 2004 Supreme Court decision that upheld Washington State’s decision not to give scholarships to students pursuing theology degrees.
Trinity Lutheran has the backing of a group of states, several religious liberty groups and a collection of conservative Republican members of Congress. Missouri is backed by the American Civil Liberties Union, groups arguing for the separation of church and state, and the National Education Association, the country’s largest teachers union.
Upholding the lower courts’ ruling would jeopardize state programs that provide medical services, gifted and special education, transportation, lab equipment, security upgrades and other benefits to religiously affiliated schools, the Association of Christian Schools International wrote in a brief. A change “could also prevent lower-income students from attending religiously affiliated primary schools” by barring tuition vouchers or scholarships, it said.
By the group’s count, 13 states offer vouchers or scholarships for private schools, and 14 offer tax credits to companies that donate to similar scholarship programs. All of them, the group claims, could be in jeopardy.
The justices have not yet scheduled arguments. The court agreed to hear the case before Scalia died, and since rulings involving religion are likely to be close, the justices may be waiting to see if a ninth member will be confirmed to avoid a probable tie.