Yesterday, the United States Supreme Court heard oral argument in the Osseo Area School District case, transcript here. It was ostensibly about whether a higher standard for damages existed for IDEA claim than for the ADA/Rehabilitation Act claims. It turned out to be something different altogether after both sides agreed that the standard should be the same for all the laws involved. Also, the oral argument revealed that this case potentially has big implications for the world of disability rights writ large. As usual the blog entry is divided into categories, but they are not our usual ones. Instead, the categories are:  questions posed by the Justices to the plaintiff (petitioner in this case); questions posed by the Justices to the Solicitor General; questions posed by the Justices to the School District; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Questions Posed by the Justices to the Plaintiff

1. Justice Thomas wanted to know whether the oral argument was consistent with the question presented posed by the Court originally.
2. Justice Roberts wanted to know whether the oral argument was consistent with the question presented, and whether anyone was defending the position challenged by the plaintiff.
3. Justice Kavanaugh wondered whether regardless of whether the oral argument in the question presented specifically matched up, whether the Supreme Court could tell the lower court to decide what would be the appropriate standard, i.e. deliberate indifference v. bad faith or gross misjudgment.
4. Justice Kavanaugh wanted to know the difference between deliberate indifference as defined by the Solicitor Gen. and bad faith or gross misjudgment. For this line of questioning, the case we discussed here, specifically came up in the oral argument (Liese was clearly what Justice Kavanaugh was thinking of in his questions).
5. Justice Sotomayor wondered whether the disability discrimination statutes required bad faith, gross indifference, or even deliberate indifference given the language of those statutes and how disability discrimination works.
6. Justice Sotomayor and Justice Gorsuch both wondered whether intentional conduct might be needed for injunctive relief but not but damages.
7. Justice Sotomayor and Justice Gorsuch both wondered whether prohibiting someone from utilizing a program when they are qualified for that program isn’t by definition intentional conduct.
8. Justice Barrett wanted to know how the United States Court of Appeals deal with the question of intent, whether intent is necessary, and what the standard might be.
9. Justice Alito wanted to know the difference in costs between complying with the IDEA and the extra costs associated with what is a reasonable accommodation under the ADA.
10. Justice Kavanaugh wanted to know if deliberate indifference was the standard for damages claims.
11. Justice Kavanaugh wanted to know if the plaintiff agreed with the Solicitor Gen.’s formulation of what constituted deliberate indifference (essentially the Liese standard).
12. Justice Kavanaugh wanted to know how would a deliberate different standard be applied to the facts of the case.
13. Justice Jackson wanted to confirm that deliberate indifference was commonly used in many other contexts.

II

Question Posed by the Justices to the Solicitor Gen.

1. Justice Thomas wanted to know if the Solicitor Gen. believed that intent was required for damages but not for injunctive relief and why that might be the case.
2. Justice Gorsuch wanted to know how to reconcile the statutes at issue not drawing any distinction of the sort proposed by the school district, but yet the Court was being asked to draw a distinction between damages for injunctive relief by applying a higher standard when it comes to injunctive relief. Justice Gorsuch wondered if it shouldn’t be the other way around.
3. Justice Gorsuch wanted to know whether deliberate indifference should be the appropriate standard for injunctive relief.
4. Justice Jackson wanted to know how the question presented at all suggested whether the standard is deliberate indifference and whether the standard to be utilized was different between damages v. injunctive relief.
5. Justice Roberts wanted to know whether it was important that nobody is defending the position that a majority of United States Courts of Appeals seem to have taken on the issue of what standard to apply.
6. Justice Barrett wanted to know why the United States Courts of Appeals are all sticking with their majority rule despite the school district given up that position and jumped overboard on it.
7. Justice Barrett wanted to know the difference between the school district’s position and the plaintiff’s.
8. Justice Kavanaugh wanted to know the difference between deliberate indifference and bad faith.
9. Justice Kavanaugh wanted to know if there was a case out there that would fail under the bad faith standard that would succeed under the deliberate indifference standard (in response, Liese explicitly came up).
10. Justice Alito wanted to know what the lower courts were thinking in adopting a standard that the school district believed was completely unsupported.

III

Question Posed by the Justices to the School District’s Attorney

1. Justice Alito wondered whether the way the lower courts have proceeded was related to the fact that the IDEA and the ADA proceed along very different lines.
2. Justice Alito wanted to know just how far reasonable accommodation obligations would go, such as under the fact pattern of this case.
3. Justice Kagan wanted to know what would happen if the Supreme Court said that a different approach to damages and injunctive relief among the laws was not in order but did not set forth a standard for other courts to follow.
4. Justice Kavanaugh wondered whether the ADA concept of reasonable accommodation played a role in trying to figure out what a Title II entity would have clear notice of with respect to what it had to do to comply with the law.
5. Justice Jackson wanted to know whether the interactive process plays a role in the deliberate indifference analysis. Same question for whether an accommodation was reasonable.
6. Justice Thomas wanted to know whether the attorney for the school district was making the same argument at the Supreme Court that was made at the United States Courts of Appeals.
7. Justice Jackson also wanted to know if the arguments Justice Jackson was hearing were consistent from what was made at the United States Courts of Appeals level and whether the nature of the IDEA allowed a certain precedent to have continuing value.
8. The attorney for the school district explicitly accused plaintiff’s attorney of lying and being inaccurate with respect to the school district’s views. When asked to back down she wouldn’t. Justice Gorsuch wondered if the attorney for the school district should not be more careful. Chief Justice Roberts specifically referenced prior positions taken by the school district in their brief. Much later on in the oral argument, Justice Gorsuch read extensively from the school district’s brief showing that the plaintiff’s attorney was being accurate in what it described as the school district’s position and was not lying at all. The school district’s attorney then backed down.
9. Justice Jackson wondered if the school district’s attorney’s assertion that not having a bad faith standard as the standard was uniquely stupid, why there were not lower court decisions applying that standard.
10. Justice Barrett wondered whether applying a bad faith standard everywhere would not be a sea change/big deal in the disability rights universe.
11. Justice Kavanaugh wondered whether the bad faith standard being advocated by the school district’s attorney required animus. He also wondered how cases might come out with the two different standards.
12. Justice Kavanaugh wanted to know why deliberate indifference had taken such a hold on the lower courts.
13. Justice Jackson wanted to know how the position taken by the school district’s attorney at oral arguments matched up with the question presented.
14. Justice Jackson wanted to know if the position taken by the school district’s attorney at oral argument was consistent with positions taken during their briefing.
15. Justice Jackson wanted to know whether the very nature of disability discrimination meant that disability discrimination could occur regardless of intent.
16. Justice Jackson wanted to confirm the school district’s attorney position that accommodations did not appear in the ADA and that the disability discrimination statutes did not contain an accommodation requirement.
17. Justice Sotomayor said that in other contexts, such as religious discrimination, the Supreme Court has said that neutral policies can still discriminate so why couldn’t you have intentional discrimination even in the absence of deliberate indifference or gross enough indifference.
18. Justice Sotomayor wondered where bad faith comes from. She couldn’t even figure out where deliberate indifference came from. She wondered whether figuring out how intentional discrimination should be defined for every disability discrimination statute shouldn’t have been fully aired in the lower courts first.
19. Justice Jackson struggled to understand how discrimination claims in the context of reasonable accommodations and disability aren’t something unique as discrimination in the disability context, is often an issue of accommodating a person with a disability so they can take part in programs and have full enjoyment of the services.
20. Justice Sotomayor said it would’ve been nice to know the full nature of the school district’s oral arguments before before the actual oral argument.
21. Justice Sotomayor wanted to know whether the question before the Supreme Court was whether there was an intent standard or a heightened standard in this case.
22. Chief Justice Roberts wanted to know whether the question before the Court was in fact whether a different standard existed in the educational context than for other standards.
23. Justice Sotomayor wanted to know if the school district’s attorney by her arguments (lying by the other side accusation), did not violate Supreme Court rule 15.2.
24. Justice Alito wanted to know where the plaintiff actually said that a violation of the IDEA necessarily is a violation of the ADA as the complaint doesn’t make that statement.
25. Justice Kavanaugh wondered whether intent is not satisfied by the deliberate indifference standard, Liese.
26. Justice Kavanaugh wanted to know whether it was necessary to have an idea of what the law provides in order for the deliberate indifference standard to apply. He also wondered if the deliberate indifference standard was not fairly protective of school districts.
27. Justice Jackson wanted to confirm the school district’s position that Title II of the ADA did not allow for discrimination outside of intentional discrimination, i.e. bad faith.

IV

Thoughts/Takeaways on the Oral Argument

1. The argument starts off in an unexpected way because it leads with the concession that everyone is on board with a single standard applying and not as how the question was presented, which was whether a different standard was required under the IDEA v. the ADA/Rehabilitation Act.
2. IDEA does not contain reasonable accommodation obligations. Instead, that law works through a process of goal setting and then layering in services for the student with a disability to meet those goals. It is interesting how several of the Justices viewed IDEA through the reasonable accommodation prism despite the fact that IDEA doesn’t work that way.
3. Justice Sotomayor not sure where deliberate indifference comes from. I actually researched the question of where deliberate indifference as a standard comes from, and I am not sure either. It is entirely judge made.
4. Deliberate indifference comes up all the time in Rehabilitation Act cases as well as in Title II cases.
5. The oral argument makes you wonder whether a failure to accommodate by itself is intentional discrimination.
6. This blog entry discusses a case that played a significant role in the oral argument and is a must read.
7. The oral argument in the questions asked by the Justices lead one to wonder whether you might explicitly see the Court say that Title II and Title III of the ADA require an interactive process. We already know that Title I does. We also know that in the educational context, Title II does as well. We do know per PGA Tour v. Martin, here, that Title III, as well as the other titles for that matter, require an individualized analysis, and it isn’t a big step from that to require an interactive process.
8. The school district’s attorney took very extreme positions during the oral argument that were not anticipated by either the Court or by the plaintiff’s attorney. In fact, plaintiff’s attorney said those positions would have been a five alarm fire to the disability rights community if known.
9. Several Justices were not thrilled with the accusation of lying made by the school district’s attorney.
10. There didn’t seem to be much support among the Justices for a bad faith standard beyond the deliberate indifference standard talked about in Liese,
11. Broad support among the Justices existed for the proposition that you could have intentional discrimination without animus.
12. In point of fact, as pointed out in plaintiff’s attorney rebuttal, the ADA contains numerous reasonable accommodation/modification provisions in the statute. More specifically: 1) 42 U.S.C. 12201(a) specifically references the Rehabilitation Act AND its regulations as something that the ADA statute and their regulations have to at least meet; 2) 42 U.S.C. §12101(a)(5) specifically references “reasonable modification;” 3) 42 U.S.C. §12132 specifically references the definition of qualified individual in 42 U.S.C. §12131(2), which contains a reasonable modification requirement; 42 U.S.C. §12201(h) makes clear that reasonable accommodation requirements apply to the ADA outside of the regarded as context.
13. I was surprised that the Solicitor Gen. and the Trump administration came down on the side of the plaintiff and not on the side of the school district.
14. Predicting what the Supreme Court will do based upon oral argument is a fool’s errand. That said, persons with disability are frequently successful at the Supreme Court level if employment issues are not involved, which is the case here. It does seem that judging from the oral arguments, that it looks like a win for persons with disabilities. The question will be what does that win look like.