The U.S. Supreme Court opened its new term Oct. 3 still feeling the effects of the February death of Justice Antonin Scalia. With the nomination of Merrick B. Garland stuck in political limbo, the eight members of the court have adopted a cautious approach to their docket for the new term, many legal experts say.
But for K-12 education, the new term may be the most significant in years. For example, the justices have agreed to hear two cases involving students with disabilities and another that could be significant for government aid to religion, including private religious schools.
And the court could soon add to its docket a case that would plunge the justices into the national debate over the rights of transgender students.
鈥淭his is a very interesting time in the Supreme Court, to put it mildly,鈥� said John G. Malcolm, the director of the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation, a right-leaning think tank in Washington. 鈥淭he court appears to be reluctant to tackle too many contentious issues until it has a full complement of justices.鈥�
The Feb. 13 death of Scalia led the court to deadlock on several decisions last term, including a major case on whether teachers鈥� unions could continue to collect service fees from nonmembers.
Until that case, Friedrichs v. California Teachers Association, which included several school districts as nominal parties, the Supreme Court had gone five years without taking up any cases with public school districts or administrators as parties.
That is changing in earnest in the new term.
Special Education Services
In Endrew F. v. Douglas County School District (No. 15-827), the justices last week agreed to take up a question that has divided the federal courts of appeals: What level of 鈥渆ducational benefit鈥� must districts offer children with disabilities to provide the 鈥渇ree, appropriate public education鈥� guaranteed by the IDEA?
The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled last year that a Colorado student with autism had received 鈥渟ome educational benefit鈥� from his individualized education plan, or IEP, before his parents withdrew him from the Douglas County district in a dispute over his plan.
Thus, the appeals court held, the district had provided a so-called FAPE, or free, appropriate public education, under the federal special education law. At least one other federal appeals courts has adopted a standard requiring that an IEP provide a 鈥渕eaningful benefit.鈥�
The court opened its 2016-17 term on Oct. 3 with what may be its most significant docket for K-12 education in years. Here are the education-related cases the court has decided to review so far:
Special Education
Endrew F. v. Douglas County School District RE-1 (No. 15-827)
The court will review a question that has divided federal appeals courts: What level of educational benefit must a child receive under his or her individualized education program, or IEP, to satisfy the demands of the Individuals with Disabilities Education Act? The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled in the case of a Colorado child with autism that because the child鈥檚 public school IEP had provided him with 鈥渟ome educational benefit,鈥� the Douglas County district had provided a 鈥渇ree, appropriate public education鈥� under the IDEA. Another federal appeals court has said the IDEA requires that a district provide a 鈥渕eaningful benefit.鈥� The appeal was granted on Sept. 29, so arguments are likely early next year.
Fry v. Napoleon Community 69传媒 (Case No. 15-497)
The justices will take up a case that implicates four federal disability-rights laws, but is best summarized by its underlying dispute: whether a school must permit a child with a disability to bring her service dog to school. The legal question is whether the parents of a girl with cerebral palsy were required to exhaust procedures under the Individuals with Disabilities Education Act before they could pursue damages under the Americans with Disabilities Act and the Rehabilitation Act when a Michigan district refused to allow the dog to accompany the girl to school. (The fourth statute involved is the Handicapped Children鈥檚 Protection Act of 1986.) Arguments are Oct. 31.
Aid to Religion
Trinity Lutheran Church of Columbia v. Pauley (No. 15-577)
The justices will hear the appeal of a Lutheran church and preschool in Missouri that was denied a grant from a state program to use recycled tires to build safer playgrounds. State officials cited the Missouri constitution鈥檚 prohibition against providing any money, 鈥渄irectly or indirectly, in aid of any church, sect, or denomination of religion.鈥� Similar language is present in the constitutions of some three dozen states, and the question here is whether it interferes with the federal free-exercise-of-religion rights of the church program to participate in a neutral aid program. The case also has implications for cases pending at the court from Colorado and New Mexico, involving, respectively, voucher aid and the loan of textbooks to private religious schools. No arguments scheduled yet.
Driver鈥檚 Education
Ivy v. Morath (No. 15-486)
The Texas Education Agency oversees driver鈥檚 education in the state, and while minors may be taught to drive by their parents, those 18-25 must earn a certificate from a state-approved driver鈥檚 education course to be eligible for a license. A group of young adults with hearing impairments sued under the federal Americans with Disabilities Act after they could not find any driver鈥檚 school that would accept deaf students and the TEA would not intervene. A federal appeals court held that driver鈥檚 education was not a program of the TEA, and the Supreme Court agreed to hear the young adults鈥� appeal. Arguments are Nov. 7.
Cheerleader Uniforms
Star Athletica LLC v. Varsity Brands (No. 15-866)
This case involves an intellectual property battle between two companies that design cheerleader uniforms for the school and college market. The legal issue is a complicated one over whether the design of stripes, chevrons, and zigzags may be copyrighted. Upstart Star Athletica contends in its suit that industry leader Varsity Brands copyrights all manner of designs so it can sue competitors for infringement, thus driving up the price of uniforms for schools and families. Arguments are Oct. 31.
President Barack Obama鈥檚 administration urged the court to take up the case to resolve the circuit split.
鈥淭he 10th Circuit鈥檚 approach is not consistent with the text, structure, or purpose of the IDEA 鈥� and it has the effect of depriving children with disabilities of the benefits Congress has granted them by law,鈥� the administration鈥檚 brief said.
On Oct. 31, the justices are expected to take up a disability-rights battle that began when a Michigan district resisted allowing a 5-year-old girl with cerebral palsy to bring her service dog to school.
In court papers in Fry v. Napoleon Public 69传媒 (Case No. 15-497), parents Brent and Stacy Fry say their daughter, Ehlena, obtained a service dog (a goldendoodle named 鈥淲onder鈥�) to help her with such things as balancing when she uses her walker and retrieving dropped items.
The Napoleon district and the Jackson County Intermediate school district, which provides special education support, contend in court papers that Ehlena had a special education plan that already called for a one-on-one aide, and that the aide satisfied the girl鈥檚 needs. The districts also acknowledged to federal officials from the U.S. Department of Education鈥檚 office for civil rights that there were concerns about student and staff allergies and phobias of service animals.
The Fry family sued under the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, arguing that the district illegally denied the girl an accommodation.
The districts argued that the family should have exhausted its remedies under the Individuals with Disabilities Education Act before filing any suit. Both a federal district court and a panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, agreed with the districts.
The parents, in seeking Supreme Court review, point to a 1986 act of Congress, the Handicapped Children鈥檚 Protection Act, which they say was designed to bar school districts from relying on the IDEA to excuse compliance with the ADA or the Rehabilitation Act.
The Constitution and Scrap Tires
Sometime later in the term, the justices are scheduled to hear arguments in a case that could hold major implications for government aid to religious schools.
In Trinity Lutheran Church of Columbia v. Pauley (No. 15-577), the court will hear the appeal of a Lutheran church and preschool in Missouri that was denied a grant from a state program that uses recycled tires to build safer playgrounds.
鈥淪ometimes, constitutional cases come from strange places,鈥� said Paul D. Clement, a Washington lawyer who argues frequently before the Supreme Court and is not directly involved in the case.
The state鈥檚 denial of funds鈥攅ven though the Lutheran church鈥檚 application ranked high among the program鈥檚 objective criteria鈥攚as upheld by a federal district court and the U.S. Court of Appeals for the 8th Circuit, in St. Louis, based on the Missouri constitution鈥檚 prohibition against providing any money, 鈥渄irectly or indirectly, in aid of any church, sect, or denomination of religion.鈥�
The case presents the question of whether, under the court鈥檚 church-state cases, the exclusion of a church from an otherwise neutral and secular aid program violates the First Amendment鈥檚 free exercise of religion clause.
Clement has more than a passing interest in the Trinity Lutheran case. He represents Douglas County, Colo., school district in a case in which the Colorado supreme court blocked a district program to provide private school vouchers to families that could be used at religious schools.
The appeal in Douglas County School District v. Taxpayers for Public Education (No. 15-557), which is pending review by the U.S. Supreme Court, asks whether language in Colorado鈥檚 constitution barring government aid to religion was born of 19th-century anti-Catholic bigotry and violates the U.S. Constitution. The language against government aid to religion in Colorado鈥檚 constitution, and those of about three dozen other states, are referred to as 鈥淏laine amendments.鈥�
The Blaine-amendment issue is downplayed somewhat in the Trinity Lutheran case, but the Supreme Court鈥檚 decision could still hold implications for such state constitutional provisions.
Referring to language in past Supreme Court opinions about the interplay between government actions permitted by the First Amendment鈥檚 prohibition on government establishment of religion but not required by the free-exercise clause, Clement said the Trinity Lutheran case 鈥渨ill really tell us how much 鈥榩lay in the joints鈥� is there.鈥�
Also on the court鈥檚 docket are a handful of quirky cases that some in education will be watching.
In Ivy v. Morath (No. 15-486), the justices will weigh whether a state education agency that oversees driver鈥檚 education has a responsibility to police whether private providers are complying with disabilities laws.
In Star Athletica LLC v. Varsity Brands Inc. (No. 15-866), the court will judge an intellectual-property contest between two providers of cheerleader uniforms, with the underlying lawsuit by upstart Star Athletica alleging that Varsity Brand鈥檚 tactics drive up the prices of uniforms for schools and cheer squads across the country.
Pending Review
The justices will continue to add to their docket for this term for several months. The possibilities include the high-profile fight over transgender restroom rights.
In Gloucester County School Board v. G.G. (No. 16-273), the court will decide whether to grant full review in a transgender-rights case from Virginia in which it has already intervened.
The justices on Aug. 3 voted 5-3 to stay lower-court orders that would have allowed Gavin Grimm, who was born female but now identifies as a male, to use the boys鈥� restroom at his high school in Gloucester County, Va.
Such a stay is often a sign that the justices will take up an appeal for full review. The Gloucester County district told the justices there is an 鈥渦rgent need鈥� to use the case to help resolve the nationwide debate over the Education Department鈥檚 policy guidance that schools must allow students to use the restrooms associated with their gender identity.
Lawyers for Grimm have urged the court not to take up the case and to dissolve the stay. They point out that the case was not based on the detailed May 13 鈥淒ear Colleague鈥� letter to educators from the Education Department and the U.S. Department of Justice.
And Grimm鈥檚 case does not implicate the issue of locker rooms, as some other pending cases do, since Grimm is seeking only to use the restroom of his gender identity.
A decision on whether the justices will take up the transgender case could come as early as mid-October.
