Will schools be held accountable?

WASHINGTON — For more than a decade, Miguel Perez has seemed like a model student — taking home Aces and Bs on his report cards, regularly making the honor roll and leaning heavily on the assistant his school had assigned to him because he was deaf.

And so his parents were stunned when, months before graduation, they learned that their son would receive a “certificate of completion” rather than a diploma. It turned out that the assistant assigned by his small school district in Michigan did not know sign language. After 12 years in school, with no other disabilities, Perez was reading at the 3rd grade level.

Perez is now asking the Supreme Court to make it easier for families to sue schools for damages in one of the biggest special education cases in years. The decision, expected by the end of June, could help parents and schools clarify one piece of a Byzantine puzzle of laws that govern the country’s 7.2 million special education students.

It could also shift the balance of power between parents and schools as they lead what may be a contentious negotiation over the education of individual students with disabilities, experts say. A decision for Perez, in other words, could give parents more clout.

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“There was another deaf student, but we couldn’t communicate with each other. Nobody interpreted for me,” Perez, now 27, recalled in a statement provided by his lawyer with the help of by several performers. “I don’t have a job, but I want to have one. I want to make my own choices.”

The case, Perez v. Sturgis Public Schools, involves the interplay between two federal laws, the Individuals with Disabilities Education Act, or IDEA, and the Americans with Disabilities Act. At issue is whether a student can sue a school for damages under the ADA when he or she has not completed the administrative process required by IDEA.

Fixed but not solved

Perez’s journey through the school district of 3,000 Southern Michigan students highlights the challenges faced by many students with disabilities.

His family alleges that school officials misrepresented his assistant’s qualifications. They say the assistant, over the next few years, was assigned to other duties, leaving Perez unable to communicate with anyone for hours each day. And Perez was promoted at every grade level despite not understanding the curriculum, his lawyers say.

His difficulties were compounded by the fact that his family emigrated from Mexico when Perez was 9 years old. Her parents only spoke Spanish.

By the time parents of special education students like Perez go to court, they have already engaged with the district for years to develop what is called an Individualized Education Program, an individual plan for education of their student required by the IDEA. This process involves negotiation between parents, who try to get as much as they can for their children, and districts, which are required by law to provide “free appropriate education” but must also weigh the costs.

Schools and parents negotiate IEPs for a wide range of disabilities, including dyslexia, medical conditions, speech or language disorders, and autism.

Perez filed a lawsuit with Michigan officials in 2017 alleging his school violated state and federal laws, including the IDEA. Before that complaint was resolved, the district offered to settle, agreeing to pay for Perez to attend Michigan School for the Deaf.

Perez’s family took the settlement.

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Her family then sued the district under the Americans with Disability Act for discrimination, seeking unspecified damages. A federal district court dismissed the lawsuit, ruling that Perez had not exhausted the required IDEA process because he had agreed to the settlement. A divided panel of the United States Court of Appeals for the 6th Circuit agreed. Perez appealed to the Supreme Court in late 2021.

Art Ebert, the district superintendent, declined to address claims raised in the lawsuit — he was not running the district when Perez attended Sturgis — but he said in an email that due to experience, the district “would gain knowledge, insight, and understanding that will help us maximize the true potential of every student.”

The Supreme Court on January 10, 2023.

“Culture of litigation”

Although the legal issue is technical, advocates say the ruling could have significant consequences by giving parents more power to negotiate with schools.

A ruling for the district, disability advocates say, could discourage parents from moving into schools if it means giving up the right to sue for damages later.

“Students with disabilities and their families already face immense barriers to getting the education they need,” said Shira Wakschlag, senior director of legal advocacy at The Arc, a disability advocacy organization. A decision against Perez, she said, would add “to the burden of families who are already immensely burdened.”

But a ruling for Perez could change the way schools approach special education, said Malhar Shah, an attorney at the Disability Rights Education and Defense Fund. Districts would be warned, he said, that “they can no longer protect themselves as easily as they once could against this monetary damage.”

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Schools say that argument is backwards: If parents could more easily sue for damages, it would inject a legal battle for money into the IDEA process, which aims to respond quickly to students’ needs. School districts might be forced to approach this process differently if their actions could be used against them in an action for damages.

“The school district’s primary concern is working with parents,” said Francisco Negrón, legal director for the National School Boards Association. “It would be a shame if the court ruled in a way that would deter this process.”

Sasha Pudelski, advocacy director for the School Superintendents Association, said she feared such a move would lead parents “to prioritize district dollars over educational services” and create “a culture of dispute”.

Perry Zirkel, professor emeritus of law and education at Lehigh University, framed the dispute in terms of leverage. Lawyers representing a student, he said, might argue that they want “the possibility of a million-dollar judgment because that will spur the districts to do the right thing.”

But Zirkel cautioned against expecting too much change because of the court ruling. That’s because, he says, most families who sue a school for damages under the ADA lose.

“This is by far the exception to the rule that a family would earn money,” he said.

Pre-K students listen to their teacher read a story at Dawes Elementary in Chicago, Monday, Jan. 11, 2021.

Assistance Dog Leashes

The Supreme Court last considered these issues in 2017 in a case called Fry v. Napoleon Community Schools. A student with cerebral palsy has sued for damages after the school banned her service dog, Wonder, from entering the classroom. The school argued that the student had not exhausted the process required under IDEA before filing her complaint.

In a unanimous decision, the court ruled that students need not wait to sue under the ADA if the focus of their claim did not address IDEA’s guarantee of a free education. and appropriate. In other words, the dog had nothing to do with the education of the student. The dog’s ban instead denied him equal access to a public facility.

The student, Ehlena Fry, finally settled down.

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In Perez, the school district relies heavily on the Fry decision. After all, his lawyers say, Perez’s complaint is more directly about education. But during a 90-minute closing argument in January, a majority of the justices nonetheless signaled support for Perez.

As the judges debated, Perez sat quietly in the ornate courtroom. He later said he was impressed with the “lovely building” and grateful that all nine judges had been engaged.

“I felt like they listened to the lawyers really well. I appreciated that,” he said in a statement to USA TODAY. “I want to win and I hope others like me will have performers.”

USA Today

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