On Wednesday, in its final hearing this month, the Supreme Court will try to sort out several interacting federal laws that seek to protect the rights of disabled children to education in public schools.

The Court will broadcast “live” the audio (no video) of the hearing on its homepage, supremecourt.gov  To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt

Wednesday’s case:  Perez v. Sturgis Public Schools  The hearing will begin at 10 a.m. and is scheduled for 70 minutes.

Background:  America has a long history of protecting people with disabilities; the tradition goes back to military pensions awarded to Revolutionary War veterans whose injuries in battle made them unable to work.  A significant focus of that history has been the education of disabled children; for example, the first school for the deaf was founded in 1817 in Hartford, Conn.

A robust disability rights movement has existed for decades.  From time to time, it has attempted to persuade the Supreme Court to recognize a constitutional ban on discrimination based on disability.  That ultimately failed in a 1985 decision involving intellectually disabled residents of a small Texas city.  Although children generally have a constitutional right to equal access to public education, that right has not been expanded on the basis of impaired intellectual or physical capacity.

Disability rights advocates, however, have had significant success, especially since the 196Os, in gaining new laws from Congress and state legislatures to provide for the care, and especially the education, of persons with disabilities.   This case focuses on the interplay of four of the federal laws:

• The Education of Handicapped Act, originally passed in 1970, created a wide-ranging federal program to aid states in providing public education for disabled children. At that time, there were more than 8 million children with special education needs because of disability.
• The Rehabilitation Act, enacted in 1973, provided a federal ban on discrimination based on disability, in programs that are financed with federal funds.
• After the Supreme Court in 1984 ruled that the 1970 law provided the only basis in federal law for disabled children or their parents to gain protection for their educational opportunities, thus barring similar attempts to rely on the Rehabilitation Act or civil rights law generally, Congress in 1990 passed the Individuals with Disabilities Education Act, reviving the approach taken in 1970 but allowing educational claims also under other federal laws, such as the Rehabilitation Act.
• Also, in 1990, Congress passed the Americans with Disabilities Act, a general anti-discrimination law that gave disabled persons equal access to public facilities – including schools – and to job opportunities in larger business companies.

That combination of federal laws carries out Congress’s sweeping policy that every disabled child in the nation is entitled to a “free appropriate public education,” with learning methods tailored to that child’s individual needs.  If public schools cannot provide that level of education, they must pay for the child to obtain it elsewhere – perhaps in a private school or a state facility.

Tomorrow, the Court will not focus on what qualifies as an appropriate educational program under those laws, but on a basic procedural requirement (similar to the one the Justices considered on Tuesday in the immigration case) spelling out the steps that must be taken before a lawsuit to enforce rights can be taken to federal court.

Here, the focus is on the procedural steps that a student with a disability or a parent must take when they are dissatisfied with the quality of the student’s education in public school.

The case involves a young man, Miguel Luna Perez, who attended public school in the small Michigan city of Sturgis, near the Indiana border.  He was in school there from age 9 to 20.  He is a native of Mexico who speaks only Spanish and is deaf, but the school district did not have an aide who could do sign language to help him learn.

As his lawyers told the Supreme Court in this appeal: “Sturgis failed to provide Miguel with a qualified sign language interpreter for twelve years – rendering him unable to learn or communicate with others and making him an academic and social outcast.”  When it came time for him to graduate, he was denied a high school diploma because he had not qualified for it educationally; he received only a “certificate of completion.”

Under the IDEA law, the 1990 measure that generally now governs educational rights for the disabled, a parent or a student may only file a lawsuit in federal court if they have completed a process of administrative review of their claim.  First, the claim must be filed with a local or state educational agency, which oversees a possible settlement.  As an alternative, both sides can agree to have the claim sent to arbitration.

If those initial steps fail, the claim goes to a hearing officer, who has power to decide whether that particular student had received the education guaranteed by IDEA.  Only then can the dissatisfied student or parent move on to sue in a federal trial court (U.S. District Court).

However, one part of the IDEA, as interpreted by the Supreme Court in several cases, is that this multi-step process of pre-court review can be avoided if it would be futile – legally or as a practical matter – to go through that process.  That limitation is a major factor in this case.

Miguel and his parents pursued that process, but only part of the way.  His claim was that the school district had failed him under federal law.   The school district offered, and Miguel and the parents accepted, a settlement of the claim based on IDEA, with the district agreeing to pay for further instruction for Miguel at the Michigan School for the Deaf and for sign-language training.  The deal also provided the Perez family the payment of their lawyers’ fees.  That led to dismissal of the IDEA claim.

In December 2018, Miguel sued the school district in federal trial court, seeking money damages to compensate for emotional distress that he claimed to have suffered and other potential harms from the educational deficiency.  That was based on the ADA, not on IDEA, which does not include money awards as a remedy, as ADA does.

The trial court and a federal appeals court ruled that, since he had not completed the pre-court review process under IDEA, he had no right to sue in federal court under ADA, either.  It found that there was no futility exception that would excuse Miguel’s failure to complete the IDEA process but, in any event, the proceeding was not futile because Miguel and his family benefitted from it and it clarified the issues.

Miguel appealed to the Supreme Court.  Before acting on his case, the Court asked the Justice Department for the federal government’s view on the issues.  In reply, Department lawyers said that the lower courts were wrong on both issues raised by Miguel, so the Court should step in.  It agreed to do so.

The questions before the Court:  Will the Court clarify when a student or parent can bypass some or all of the pre-court review process in a dispute about access to special education services for the disabled?  May a parent or student seek money damages under a different disability rights law without seeking a remedy under the IDEA review process?

Significance:  Over the years, the Court has paid close attention to issues involving the rights of persons with disabilities.  However, it probably has not faced a dispute in that field as complex as this one, on how to make the various congressional enactments fit into a workable whole.

The Court has generally been sympathetic to congressional mandates that important legal disputes be dealt with, first, through specialized agencies accustomed to dealing with complexity.  Those mandates are sparing of the federal courts’ time, and they can – as in Miguel Perez’s case – lead to sensible settlements, thus saving everyone’s time and expense.

Several of the legal briefs filed in this case make the point that the lower court decisions extending the reach of the pre-court review process will have the tendency to reduce the chances that the process will produce settlements.  If a settlement like the one worked out for Miguel and his parents was not enough to satisfy that review process, might that discourage settlement prospects in other cases?

At the same time, the complexity that is so apparent in this case raises the question of whether Congress, rather than the Supreme Court, should work out ways to make these disability laws work together in harmony.  It took a bit of legal sleight-of-hand for the appeals court in this case to make the pre-court review required under one of those laws control the right to sue under another of those laws.  If Congress had thought about it, would it have merged the laws in that way?  Would it have taken the opportunity to determine the best policy to get the desired outcomes on the rights of the disabled in the education system?

The current Court is not shy about taken on difficult issues, but there may be some of those tough cases – perhaps this is one of them – that could be addressed more creatively in the legislative process rather than in the judiciary.

After tomorrow’s hearing, the Court will return to the bench on February 21 to begin a new two-week sitting for public hearings.