Sua Sponte: NSBA’s legal advocacy continues with the filing of two amicus briefs this week

The National School Boards Association (NSBA) has joined with the California School Boards Association (CSBA) in filing an amicus brief in Tustin Unified School District v. K.M., Docket Nos. 13-770/13-777, urging the U.S. Supreme Court to grant Tustin Unified School District (TUSD) and Poway Unified School District’s (PUSD) petitions for review of  the U.S. Court of Appeals for the Ninth Circuit’s panel decision in K.M. v. TUSD/D.H. v. PUSD.  In this consolidated decision, the Ninth Circuit held that compliance with the Individuals with Disabilities Education Act (IDEA) does not satisfy all claims under Section 504 of the Rehabilitation Act (Section 504) or the under the Americans with Disabilities Act (ADA).  The legal dispute in Tustin focuses on whether an ADA regulation promulgated by the U.S. Department of Justice, known as the “effective communication” regulation,  trumps the IDEA when a school district makes a decision regarding the education of a disabled student.

CSBA/NSBA’s brief argues that “courts have consistently held that educational decisions for students with disabilities are governed by the provisions of the IDEA and its IEP team process.”  It urges the Supreme Court review the Ninth Circuit panel’s ruling because the panel’s “interpretation of the ADA’s ‘effective communication’ regulation per se fundamentally alters the IDEA’s individualized education program (IEP) process.”

The brief also contends that the panel’s decision “is inconsistent with Ninth Circuit and other federal precedent regarding the exhaustion of IDEA administrative remedies.”  Lastly, it asserts that the panel’s deference to the DOJ’s interpretation of the ADA regulation regarding the regulation’s interaction with the IDEA “is improper because DOJ’s interpretation is the model for ‘unfair surprise’ to school districts everywhere, is inconsistent with DOJ‘s formerly stated understanding of [the regulation], constitutes a mere ‘litigating position’, and is otherwise beyond the scope of DOJ‘s authority.

The brief was written by Marcy L. Gutierrez and Michael E. Smith of Lozano Smith, Sacramento, California.  The brief was filed on January 27, 2014.

In addition, NSBA, along with a number of education groups, joined the Kentucky School Boards Association’s (KSBA) amicus brief in Boone County Board of Education v. N.W.,  Docket No. 13-6514, urging the U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY, TN) to overturned the decision in N.W. v. Poe.  In N.W. v. Poe, the U.S. District Court for the Eastern District of Kentucky held that a school district that had provided a disabled student with a free appropriate public education under the Individuals with Disabilities Education Act was nonetheless responsible for reimbursing the parents for tuition at a private school where the parents had unilaterally placed the student because the court determined that the private school was the proper “stay put” placement under IDEA.

The brief makes two arguments.  First, granting tuition reimbursement to parents who unilaterally place their child in a private school when the local public school has provided a free appropriate public education extends a school district’s obligation beyond the requirements of the IDEA.  Second, granting tuition reimbursement to parents under such circumstances subverts the purpose of IDEA’s “stay-put” provision, and provides parents with an unjustified windfall.

The brief was written by Mary Suzanne Cassidy of O’Hara, Ruberg, Taylor, Sloan & Sergent, Covington, Kentucky.  The brief was filed on January 28, 2014.

Tags: , , , , , , , , , , , , , , , , , , ,