Education Week - October 5, 2016 - 23

CONTINUED FROM PAGE 1 tious issues until it has a full complement of justices." The Feb. 13 death of Scalia led the court to deadlock on several decisions last term, including a major case on whether teachers' 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. 15827), the justices last week agreed to take up a question that has divided the federal courts of appeals: What level of "educational benefit" must districts offer children with disabilities to provide the "free, appropriate public education" 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 "some educational benefit" 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 "meaningful benefit." President Barack Obama's administration urged the court to take up the case to resolve the circuit split. "The 10th Circuit's approach is not consistent with the text, structure, or purpose of the IDEA ... and it has the effect of depriving children with disabilities of the benefits Congress has granted them by law," the administration's 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 Schools (Case No. 15-497), parents Brent and Stacy Fry say their daughter, Ehlena, obtained a service dog (a goldendoodle named "Wonder") 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-onone aide, and that the aide satisfied the girl's needs. The districts also acknowledged to federal officials from the U.S. Department of Education's 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's 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. "Sometimes, constitutional cases come from strange places," said Paul D. Clement, a Washington lawyer who argues frequently before the Supreme Court and is not directly involved in the case. The state's denial of funds-even though the Lutheran church's application ranked high among the program's objective criteria-was 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's prohibition against providing any money, "directly or indirectly, in aid of any church, sect, or denomination of religion." The case presents the question of whether, under the court's church-state cases, the exclusion of a church from an otherwise neutral and secular aid program violates the First Amendment's 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's 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's constitution, and those of about three dozen other states, are referred to as "Blaine amendments." The Blaine-amendment issue is downplayed somewhat in the Trinity Lutheran case, but the Supreme Court's 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's prohibition on government establishment of religion but not required by the freeexercise clause, Clement said the Trinity Lutheran case "will really tell us how much 'play in the joints' is there." Also on the court's 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's education has a responsibility to police whether private providers are complying with disabilities laws. In Star Athletica LLC v. Varsity Brands Inc. (No. 15866), 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's tactics drive up the prices of uniforms for schools and cheer squads across the country. Getty Significant School-Related Cases On Tap in High Court's New Term EDUCATION AT THE U.S. SUPREME COURT 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's public school IEP had provided him with "some educational benefit," the Douglas County district had provided a "free, appropriate public education" under the IDEA. Another federal appeals court has said the IDEA requires that a district provide a "meaningful benefit." The appeal was granted on Sep. 29, so arguments are likely early next year. Fry v. Napoleon Community Schools (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's 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's prohibition against providing any money, "directly or indirectly, in aid of any church, sect, or denomination of religion." 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. 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' 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 "urgent need" to use the case to help resolve the nationwide debate over the Education Department's 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 "Dear Colleague" letter to educators from the Education Department and the U.S. Department of Justice. And Grimm's 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. DRIVER'S EDUCATION Ivy v. Morath (No. 15-486) The Texas Education Agency oversees driver's 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's 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's school that would accept deaf students and the TEA would not intervene. A federal appeals court held that driver's education was not a program of the TEA, and the Supreme Court agreed to hear the young adults' 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. EDUCATION WEEK | October 5, 2016 | www.edweek.org | 23 http://www.edweek.org

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