December 2, 2016

The nation’s first federal special education law was signed into law on December 2, 1975.  As we celebrate the anniversary of this milestone, we would like to reflect upon the role that the Supreme Court of the United States (SCOTUS) will continue to play in the development of special education law.  SCOTUS recently has agreed to hear two special education cases: one that will decide the standard for education for students with disabilities, and another that will decide whether the IDEA requires exhaustion in a lawsuit which seeks money damages-a remedy that is not available under the IDEA.

In Endrew F. v. Douglas Cnty. Sch. Dist. Re-1, 798, F.3d 1329 (10th Cir., 2016), SCOTUS is being asked to revisit its decision in Board of Education v. Rowley, 458 U.S. 176 (1982).  It will consider the level of educational benefit that school districts must confer on students with disabilities under the IDEA.  In Endrew F., the 10th Circuit Court of Appeals determined that the school district has no duty to maximize the student’s educational progress and must only provide “some” educational benefit.  Other federal courts have applied a “meaningful educational” benefit standard, or, like our 7th Circuit Court of Appeals, a more than trivial educational benefit standard.  See Alex R. v. Forrestville Valley Cmty Unit. Sch. Dist., 375 F.3d 603, (7th Cir., 2004).

The Endrew F. case will be the centerpiece of the 2016-17 term, and SCOTUS’ determination as to the educational benefit required under the IDEA will have major implications for students, schools and parents.

SCOTUS has also agreed to hear the case of Fry v. Napoleon Cnty. Sch., 788 F.3d 622 (6th Cir., 2016).  This case addresses whether the IDEA’s exhaustion requirement applies to Section 504 and Title II claims for monetary damages.  This case involved a school district which excluded a special education student’s service animal, “Wonder.”  The Court heard oral arguments on Monday, October 31, 2016.  This case is important since a favorable decision for the parents would likely mean more cases proceeding directly to federal court under Section 504 without first being heard in an IDEA due process proceeding.

In addition to the two special education cases above, SCOTUS has also decided to hear a case concerning a transgender student’s access to restrooms at school.  Although not a special education case, it will be a significant decision and will directly impact Wisconsin schools and students.  In G.G. v. Gloucester, 822 F.3d 709 (4th Cir. 2016), the school district adopted a policy which required students to use the restrooms and locker rooms that correspond to their sex assigned at birth.  The policy provided that students with “sincere gender identity issues” would be provided with an alternative facility.   A transgender student filed a lawsuit under Title IX, which asked the court to declare that the policy violated Title IX and allow the student to use the restroom corresponding to the student’s gender identity.

The district court granted the defendant school board’s motion to dismiss the Title IX claim, declining to adhere to guidance documents issued by the Department of Education and Department of Justice. The Fourth Circuit reversed the dismissal and remanded it back to the district court, concluding that the district court did not give appropriate deference to the Department of Education’s interpretation of the Title IX regulations. On remand, the district court granted an injunction permitting the student to access the restrooms that correspond to his gender identity.  On October 28th, SCOTUS announced that it will review the decision from the Fourth Circuit.  Until SCOTUS issues a decision, the lower court rulings will remain on hold, and the student will not be permitted to access the restrooms which correspond to his gender identity.

We will continue to keep you advised of developments in these three significant cases.  If you have any questions about this Legal Update or would like assistance updating or developing policies and procedures relating to special education students or transgender students, please contact Alana Leffler at aleffler@buelowvetter.com or 262-364-0267, Gary Ruesch at gruesch@buelowvetter.com or 262-264-0263, or your Buelow Vetter attorney.