A ruling in favor of Osseo Area Schools, located in suburban Minneapolis, would mean students who claim their rights were violated will have to prove their school systems acted in “bad faith or gross misjudgment” — a higher standard than “deliberate indifference,” which the law requires in other disability discrimination cases. 

An estimated 1.5 million public school students receive disability accommodations under the ADA, ranging from modified academic materials — such as simplifying a text or supplying curriculum via a specialized device — to making classrooms, bathrooms and other school spaces accessible to wheelchair users and others. The law governs accessibility, while disabled children’s educational rights are guaranteed by a different measure, the Individuals with Disabilities in Education Act.    

Teenager Ava Tharpe has a severe form of epilepsy that causes frequent seizures during the morning. While planning to move from Kentucky to Minnesota in 2015, when she was in fourth grade, a school district that would agree to start her classes at noon and extend them into the evening. After the family relocated, the district reneged, saying it was unwilling to provide services outside the normal school day. 

When the Supreme Court , the district’s position had consistently been that disability discrimination suits had to prove the school system acted out of ill intent. that the legal standard, which plaintiffs have been held to in some federal court circuits but not others, applied only to K-12 students.

But in the brief it submitted before the April 28 hearing, the district , saying that a showing of bad faith is required in all ADA cases, not just those involving schools. 

“The statutes do not impose liability for nondiscriminatory, good-faith denials of requested accommodations,” the document asserts, adding that the high court “should not subject America’s 100,000 public schools and countless other state and local entities and federal-funding recipients” to the deliberate indifference standard. 

The hearing erupted in verbal fireworks after the district’s attorney accused the lawyers representing the federal government, which has sided with the family, of “lying” in saying that the district had shifted its argument. Justice Neil Gorsuch snapped back, and several minutes of heated debate ensued. 

Later in the hearing, Justice Amy Coney Barrett characterized the district’s shift as “a pretty big sea change,” according to posted by SCOTUS Blog, which also reported Justice Ketanji Brown Jackson was “all but incredulous” that the district argued that the ADA does not necessarily require accommodations for people with disabilities. 

Osseo officials declined to comment on the case, citing Tharpe’s right to privacy. “The school district educates nearly 21,000 students, including 3,000 students with disabilities who have the right to education from birth through age 22,” it said in a comment to ĂŰĚŇÓ°ĘÓ. “We’re committed to the principles and the ideals expressed by the Individuals with Disabilities Education Act.”

The Tharpe family initially filed a complaint with state education officials under the IDEA, which guarantees disabled pupils a “free and appropriate public education.” Noting that the girl had a right to a full school day, even if it extended into the evening, a state administrative law judge found that Ava’s educational rights had been violated. 

When the district appealed that ruling in federal district court, the family filed a second suit under the ADA. In March 2024, the Eighth Circuit Court of Appeals agreed that the family’s IDEA rights had been violated. But the appellate court rejected the ADA discrimination claim, ruling the Tharpes had not proven the district acted in bad faith.

The Supreme Court’s eventual ruling should not impact IDEA, which governs whether children with disabilities are entitled to special education services enabling them to make adequate progress toward their goals.

By contrast, the ADA requires equal access to school and an equal opportunity to learn once they are there, explains Ellen Saideman, one of the authors of a submitted by the Council of Parent Advocates and Attorneys and several other disability advocacy groups. They argue that a ruling in the district’s favor would unfairly subject schoolchildren to a much higher legal bar than other people who need accommodations. 

To illustrate the difference, she cites a 2004 ADA case, , brought by someone who had to crawl up the stairs to get into a Tennessee courthouse that didn’t have an elevator. Under the “gross misjudgment” standard, there wouldn’t be a claim.

“The building was built before the ADA was passed, so it wasn’t built with any discriminatory intent,” says Saideman. “Under deliberate indifference, they know a person has a disability and there are other people who have disabilities who can’t go up the stairs. If they don’t fix it, then there could be a claim.”

One of the ADA’s original drafters, former Rep. Tony Coelho of California, also submitted a brief that Congress’ intent was that families of disabled children have “the same rights, no more, no less, that are provided all other groups … including the right to seek relief under Section 504 [and] the ADA.”

​​A decision is expected in June or July, near the end of the court’s current term.

Special education experts say there’s wide variation in how school districts accommodate students’ needs in the classroom and that parents are often in the dark about their children’s rights under 504.

“It’s time to … make the regulations current and responsive to the experiences of students and families in schools,” Assistant Secretary for Civil Rights Catherine Lhamon said Friday, after the update was announced. “We have, over these 45 years of experience, seen ways that sometimes schools don’t understand or don’t follow the law.”

The announcement follows the department’s with the Los Angeles Unified School District to make up for services that roughly 66,000 students with disabilities missed during remote learning. The district has to determine which students were denied services and make sure parents know their children are eligible for additional support. The update, according to the department, is also part of the Biden administration’s strategy to address among young people. 

Experts in the special education field said updating the law is long overdue.

“It’s about darned time,” said Julie Weatherly, a special education attorney in Alabama who advises districts and works to resolve disputes with families over special education services. At a minimum, she said, she hopes some language in the regulation will be updated.

“The best thing that could happen would be that the word ‘handicapped’ would be removed,” she said. 

It wasn’t until 2010, when President Barack Obama signed “,” that the terms “mental retardation” and “mentally retarded individual” were replaced with “intellectual disability” and “individual with an intellectual disability” in federal law. 

Typical accommodations under 504 include letting students sit in the front of the classroom, break up assignments into shorter sections and gain exemption from physical activities. The department, Weatherly said, could update the regulations to provide more specific examples of how a disability interferes with learning or “major life activities,” as the law states.

But she said she doesn’t want to see the department add extensive documentation requirements. For students who require an individualized education program under IDEA, she said, the process is already “parent unfriendly.”

But families and advocates want to see a more standardized process for ensuring that students receive services. 

Denise Stile Marshall, CEO of the Council of Parent Attorneys and Advocates, said Section 504 is “incredibly important in terms of protecting equity and student access,” but districts sometimes “treat it like a consolation prize” if a student doesn’t qualify for special education — and might not even let the parent know accommodations are available. 

Lisa Mosko Barros, a Los Angeles parent and advocate, added that currently, districts aren’t required to involve parents in designing accommodations and that schools don’t receive additional funding for a child served under the program, as they do for special education. 

“There does not seem to be as robust a framework for accountability” as with special ed, she said, “nor does there seem to be adequate mandates around family partnership in the process.”

Advocates for students with dyslexia said they welcome the opportunity to provide comments. 

“Far too often, individuals with dyslexia are denied access to the accommodations and educational services they are entitled to,” said Megan Potente, co-state director of Decoding Dyslexia California. “Strengthening rights is absolutely critical to addressing barriers and accessing opportunities for those with dyslexia.”

Lhamon said the length of the comment period has not yet been determined, but it could be 2023 before new regulations are released.