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A number of recent Supreme Court decisions are likely to have significant implications for K-12 education.

By Julie Underwood

One thing about being a U.S. Supreme Court watcher is that it is never dull. Recently, for example, we’ve seen an unexpected vacancy caused by the death of the noted and highly visible Justice Antonin Scalia, a contentious stall in the Senate to block a nomination from President Barack Obama during his last year in office, and the comparatively quick nomination and confirmation of Justice Neil Gorsuch.

Even in the relatively quiet world of education law, it has been an interesting time on the bench, featuring cases that involve service dogs and playground equipment, not to mention a case that was accepted before it was dismissed.

Never a dull moment. Here’s a brief list of recent cases decided in the Court’s last session that bear on K-12 education.

Special education

Endrew F. v. Douglas County School District (2017) 

Endrew F. is a student with autism. He attended Douglas County schools in Colorado through the 4th grade. Then his parents placed him in a private school because they believed his progress had stalled, and they sought reimbursement for the private school tuition. The administrative law judge, district court judge, and the Tenth Circuit Court of Appeals all found that the school had provided Endrew F. with an appropriate education, and thus tuition reimbursement was not warranted under the Individuals with Disabilities Education Act (IDEA).

The U.S. Supreme Court took this case in order to examine the definition of an appropriate education under IDEA. The standard definition, devised in Board of Education of Hendrick Hudson Central School District v. Rowley (1982), has been interpreted in several conflicting ways by various circuit courts of appeals through the years. In a unanimous opinion, the Supreme Court rejected the notion that schools only need to provide “merely more than de minimus” education programming. Ruling for Endrew F., the court said IDEA requires an educational program that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” For a special education child being educated in a regular classroom, this means a program that can “enable the child to achieve passing marks and advance from grade to grade.”

Schools across the nation will need to review their individualized education plans (IEPs) to ensure that their services live up to this new standard.

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Fry v. Napoleon Community Schools (2017)

This case involves a student’s use of a service dog in a Michigan school — but it has nothing to do with the dog per se; in reality, the case is all about procedural issues. E.F., a child with cerebral palsy, uses a service dog to assist her in her everyday tasks. However, under the IEP proposed by her school, she was assigned a human aide to help her. Since she was given this human assistance, the school argued, she should not also be allowed to have her service dog with her at school. The Fry family sued, claiming disability discrimination under the Americans with Disabilities Act and the Rehabilitation Act, but the district court and the Sixth Circuit Court of Appeals dismissed the family’s claim, holding that they needed to go through the procedures set forth in IDEA rather than going directly to court with their disabilities discrimination claim.

The Supreme Court unanimously ruled in favor of the Frys, finding that the family’s claim focused on discrimination, not on the sorts of educational opportunities addressed by IDEA. In short, the suit raised the same kinds of questions that would be raised if, for example, the student were denied access to a public library. As such, the family did not have to go through the entire path of IDEA administrative remedies before going to court.

The bottom line: If the case has to do with a violation of other federal disabilities statutes (e.g., the Americans with Disabilities Act), rather than having to do with the educational guarantees under IDEA, then students and parents can go straight to court with their claim.

Funding to religious organizations

Trinity Lutheran Church of Columbia v. Comer (2017)

The Missouri Department of National Resources provided funds for organizations to buy recycled tires to resurface playgrounds. But the department denied a request from Trinity Lutheran Church, a licensed preschool and daycare, for these funds, citing a Missouri state constitutional provision that prohibits distributing public funds to religious organizations. Known generally as a Blaine Amendment, the provision reads: “No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.”

In a 7-2 decision (with Justices Sonia Sotomayor and Ruth Bader Ginsburg dissenting), the Court found that denying Trinity funds solely because of its religious affiliation violated the U.S. Constitution, specifically the Free Exercise Clause. The funding program was found to be a neutral program, which Justice Stephen Breyer, in a concurrence, likened to neutral government benefits such as police and fire services. When a state categorically denies religious organizations this general benefit, the majority found, it impedes the free exercise of religion. Such a burden is only justified when it is necessary to a compelling state interest, and no compelling state interest exists in this situation.

Thirty-eight other states have similar amendments and a number of them have restricted state spending for school vouchers and other support to religious schools. In light of the Trinity decision, however, the U.S. Supreme Court may not permit those restrictions to continue. Notably, it vacated and ordered the Colorado Supreme Court to reconsider decisions in three cases where they had denied state funding to religious schools. Further, it also vacated and remanded a case in which the New Mexico Supreme Court had denied state funds to religious schools to buy instructional materials.

Free speech

Packingham v. North Carolina (2017)

The Court held in a unanimous opinion that a North Carolina statute barring sex offenders from accessing most social networking sites was an unconstitutional infringement of free speech.  Justices Samuel Alito, John Roberts, and Clarence Thomas agreed with the outcome of the case but indicated they would have preferred a narrower ruling.

The North Carolina law prohibited registered sex offenders from accessing social networking web sites where minors were generally present, regardless of whether the sex offender actually interacted with a minor on the site. To be a valid content-neutral regulation of speech, the Court said, the regulation must be narrowly tailored to a significant governmental interest. Simply put, a law cannot limit speech more than is necessary to serve its interests. The Court found that the state did have an interest in protecting children from online predators, but the North Carolina statute went too far by restricting registered sex offenders from access to all sorts of web sites (in this case, the site used was a Facebook account). As such, the Court found the statute unconstitutional.

This case is important to schools first because of the question of how to protect minors from online sexual predators and because of the First Amendment protection the court provided to social networking sites.

Gender equity

Gloucester County School District v. G.G. (2017)

G.G., a student at Gloucester High School in Virginia diagnosed with gender dysphoria, obtained permission to use the boys’ restroom during the 2014-15 school year, but several community members contacted the school board to complain about this. The board then passed a policy mandating that transgender students use only single-stall unisex restrooms or restrooms that correspond with their sex assigned at birth.

On Jan. 7, 2015, the U.S. Department of Education issued a guidance document indicating that their interpretation of Title IX of the Education Amendments of 1972 required schools receiving federal funds to allow transgender students to use facilities consistent with their gender identity. Based on that interpretation, G.G. filed suit. The federal district court dismissed the action in favor of the school district. However the Fourth Circuit Court of Appeals reversed that ruling and held for G.G., granting deference to the Department of Education’s guidance document. The school district sought review by the U.S. Supreme Court, which was granted.

In February 2017, after the change in presidential administration, the U.S. Department of Education retracted its 2015 guidance document and told states and local school districts to be guided by state law and interpretation. The Court never heard arguments in the case and, on March 22, 2017, without opinion, vacated the Fourth Circuit Court of Appeals decision and remanded the case back to that court for further consideration in light of the more recent education department guidance.

This decision does not provide clear guidance to schools. Many other lawsuits on this issue are winding their way through the courts, and predicting their outcomes is impossible. However, in the meantime, schools are still obligated to protect transgender students from harassment and discrimination and to provide them equal opportunities in a safe environment.

JULIE UNDERWOOD (Julie.Underwood@wisc.edu) is the Susan Engeleiter Professor of Education Law, Policy, and Practice at the University of Wisconsin-Madison.

Originally published in September 2017 Phi Delta Kappan 99 (1),44-45.

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