Special Ed brings our fractured Supreme Court together….

We get a lot of 5-4 and 6-3 decisions from our Supreme Court these days, particularly on the so-called “hot button” issues. But special ed seems to bring them together. For the second time in a row, a case involving a student with a disability produced a unanimous decision.

The major takeaway from the case is that parents who seek a remedy that IDEA does not permit can go directly to court with their case. They are not required to pursue a special education due process hearing first. What remedy does IDEA not permit? Damages in the form of $$$.

So if the parent believes that the school has discriminated against the child by violating the Americans with Disabilities Act or Section 504, and they want to pursue the recovery of damages, they can bypass the administrative hearing process and go directly to court.

Many have predicted that this decision will produce an explosion of such suits. I’m not so sure. The lawyers advising parents about their options will need to think through this carefully. The pursuit of money damages always sounds attractive. Consider the hundreds of billboards we drive by every day touting the lawyers who sue over car wrecks and medical malpractice. But to recover damages under ADA or 504 requires a high burden of proof. The plaintiff has to show that the school intentionally discriminated, that it acted with “bad faith” or exercised “gross misjudgment.” That’s a tough sell.

It's a lot easier to prove that the school goofed by violating a provision in IDEA. If the parent can convince a hearing officer that the school failed to provide FAPE, they can recover what they have already paid in private school tuition. They can obtain an order for compensatory services. They can recover attorneys’ fees. And none of that requires proof that the school acted with bad faith or exercised “gross misjudgment.”

So we will see how this plays out. Will there be more suits filed in court without first pursuing a special education hearing? Certainly. But it may not be the explosion that some are predicting.

This one is Perez v. Sturgis Public Schools, decided by SCOTUS on March 21, 2023. For now it can be found in the IDELR at 123 LRP 10045.


Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Toolbox Tuesday!!