On June 12th, the Supreme Court handed down a decision on A.J.T. v. Osseo Area Schools, which brought both epilepsy and disability rights before the country’s highest court.
The case was brought by the parents of Ava Tharpe, a Minnesota teenager who has a severe form of epilepsy known as Lennox-Gastaut Syndrome. She can’t attend school in the morning because her seizures are most frequent then, so her parents wanted their school district, Osseo Area Schools, to provide instruction into the evening, allowing Tharpe to have a full school day beginning at noon. The district declined the accommodation.
After months of litigation and appeals, the Supreme Court handed down a 9-0 decision in favor of Tharpe. While the decision is being celebrated by the epilepsy, disability rights, and civil liberties communities, this victory comes with disturbing caveats buried in Justice Clarence Thomas’s concurring opinion that could open the door to the unraveling of the Americans with Disabilities Act (ADA) and other disability rights regulations.
Prior to the Supreme Court hearing, the U.S. Court of Appeals for the Eighth Circuit heard the case and found that the Osseo Area Schools violated the Individuals with Disabilities Education Act by failing to provide Tharpe access to appropriate education. But that court dismissed discrimination claims brought under the ADA, and the Rehabilitation Act (aka Section 504). When the Osseo Area Schools claimed that in addition to showing failure to reasonably accommodate, the Tharpe family must also “prove that school officials acted with either bad faith or gross misjudgment,” the Eighth Circuit Court sided with Osseo Area Schools.
In March, the Tharpe family appealed this decision to the Supreme Court. Attorneys for Osseo Area Schools filed a brief that widened their claim’s scope, stating that this higher standard should be applied across the board, both in and out of school districts. Surprised by this expanded demand, in March the Supreme Court Justices made it clear that they weren’t interested in adopting a higher standard for disability discrimination, with Justice Amy Coney Barrett asking “[w]hy should we do it when … this didn’t come up until their reply brief [and w]e don’t have other circuits that have adopted” the school district’s view?”
Given this context, it’s unsurprising that the Supreme Court found in favor of the Tharpe family last week: “We hold today that ADA and Rehabilitation Act claims based on educational services should be subject to the same standards that apply in other disability discrimination contexts,” and not a “distinct, more demanding analysis,” Chief Justice John G. Roberts Jr. wrote.
The epilepsy, disability rights, education advocacy, and civil liberties communities are all singing the decision’s praises, issuing triumphant statements. “We’re glad the Supreme Court affirmed schoolchildren don’t have to meet a higher legal standard to vindicate their rights. This ruling is a critical step toward ensuring that all students with disabilities receive the support to which they are legally entitled,” said Zoe Brennan-Krohn, the ACLU’s Disability Rights Program Director.
Given the unanimous decision and the celebratory statements, it seems like we should be shouting from rooftops and partying about this. But this decision was not a solid victory. In the majority opinion, Chief Justice Roberts clarified that the Supreme Court didn’t consider the Osseo Area Schools’ claim requiring proof of bad faith “across the board” (i.e. outside school districts as well) because this position was not addressed by the lower court and presented in a last-minute fashion. So, had Osseo Area Schools dotted their i’s and crossed their t’s while making the case, the Supreme Court may have considered this higher standard.
Equally disturbing was Justices Thomas and Kavanaugh’s concurring opinion, which stated, “whether federal courts are applying the correct legal standard is an issue of national importance, and the district has raised serious arguments that the prevailing standards are incorrect. That these issues are consequential is all the more reason to wait for a case in which they are squarely before us…. Until then, I hope the lower courts will carefully consider whether the existing standards comport with the Constitution….” This opinion leaves the door wide open for another case to be brought to the Supreme Court challenging the constitutionality of the Rehabilitation Act and the ADA.
At the risk of being called Debbie Downer, as a disability rights advocate, I’d say the justice glass is half empty, despite the positive nature of the Supreme Court’s decision. Given the 2022 Dobbs decision, which rescinded abortion access, Clarence Thomas’s Supreme Court has shown that it has the appetite and capacity to roll back societal protections Americans take for granted. I don’t put it past this Court to go after the ADA in the future.
The concurring opinion from Justices Ketanji Brown and Sotomayer showed stark dissension among the justices, which was a little comforting. They stated that the “proposed improper-purpose requirement would … eviscerate the core of both the ADA and Rehabilitation Act, leaving millions of our fellow citizens without the protections Congress.
Despite the positive fanfare, A.J.T. v. Osseo Area Schools’ decision is far from reassuring. In the short term, the outcome is positive, but Thomas’s concurring opinion feels like a solid foundation to unravel existing protections for people with disabilities. July 26th marks the ADA’s 35th anniversary, an occasion to be celebrated, but Justice Thomas’s open invitation makes me edgy.
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