Two years ago, when the Supreme Court decided Perez v. Sturgis Public Schools, which allows students to sue districts for money damages under Section 504 and the ADA without first exhausting the IDEA administrative procedures, we suggested that the decision might not open the floodgates to significant new liability, because the standard for students to prove discrimination under Section 504 and the ADA is higher than a simple denial of FAPE. The question of how much higher was before the Supreme Court in AJT v. Osseo Area Schools. 

The case involved a student with serious seizures that made her unavailable for learning in the morning. The school provided the student with an IEP that included 1:1 instruction and an alternative schedule, but the parents were not satisfied with the amount of instruction provided. The parents prevailed in an IDEA due process hearing and then sued in federal court, alleging violations of Section 504 and the ADA and seeking a permanent injunction as well as compensatory damages. The district court and the 8th Circuit found in favor of the district because the parents had not demonstrated that school officials acted in bad faith or with gross misjudgment, the standard for liability under Section 504 and the ADA in the 8th Circuit (as well as the 5th Circuit).  

The Supreme Court, however, found that this “uniquely high” standard was inappropriate. The Court noted that, outside of the education context, to obtain injunctive relief under Section 504 and the ADA, plaintiffs are not required to prove intentional discrimination. And to obtain compensatory damages, plaintiffs must show intentional discrimination, which is satisfied when officials act with “deliberate indifference.”  The deliberate indifference standard requires a plaintiff to prove that the “defendant disregarded a strong likelihood that the challenged action would violate federally protected rights.” The Supreme Court ruled that the same standards should apply to education cases, nothing in Section 504, the ADA, or the IDEA directs courts to apply a higher standard to education cases.  

What does this decision mean for schools? Are the floodgates open now? We don’t think so.  

Under the IDEA, if a school tries to provide FAPE, but a hearing officer or court later determines that the services were inadequate, the school may be subject to an injunction (order to provide certain services going forward) as well as compensatory services (services or reimbursement to make up for prior inadequate educational services). No finding of intentional discrimination or deliberate indifference is needed. The same is true for parents to obtain an injunction against a school district under Section 504 and the ADA.  

The change comes when parents seek compensatory damages under Section 504 and the ADA. In these cases, parents do not have to prove that school officials acted with malicious intent, but they do have to prove that school officials knew that their actions likely failed to provide FAPE but proceeded anyway.  Additionally, because emotional distress damages are not available under Section 504 and are questionable under the ADA, except in cases involving an injury and medical expenses, it is unclear what damages would be available to parents (beyond reimbursement for educational expenses, which parents can already get under the IDEA).  

What should districts do now? Continue providing FAPE to students. Train teachers and staff to develop and implement appropriate IEPs and 504 plans. And ensure adequate oversight to catch and correct any lapses. Reach out to our Team for additional guidance on specific cases.