Legal Docket: Disability rights and government power

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NICK EICHER, HOST: Next up on The World and Everything in It: a bonus Legal Docket.

MARY REICHARD, HOST: That’s right. It’s June and the Supreme Court’s term is in the final weeks. We covered five recent decisions yesterday, but we’re back today to catch up on a few more oral arguments: three of them.

First, a case watched closely by disability rights groups, one family’s quest for equal school hours and the fight that took them all the way to the Supreme Court.

ROBERTS: We’ll hear argument today in the case of AJT v Osseo Area Schools.

EICHER: “AJT” is Ava Tharpe, a student with a seizure disorder. In Kentucky, she attended school from noon to 6 p.m. Her seizures were worse in the mornings, so that schedule best accommodated her needs.

But when the family moved to Minnesota, the Osseo school district refused that schedule, reducing her hours of instruction by two hours a day.

Her parents say that cost Ava critical skills.

REICHARD: So they sued. And they won in lower court under a law known by the acronym IDEA. It stands for Individuals with Disabilities Education Act. That law provides remedies like tuition reimbursement for private schooling.

But it has no provision for monetary damages, unlike two other disability laws: the Americans with Disabilities Act and the Rehabilitation Act. The family sued under those laws as well, but they lost. That’s because where they live in the Eighth Circuit a higher standard of proof is required than in other circuits.

EICHER: Minnesota requires proof of “bad faith” or “gross misjudgment” by the school in refusing the requested accommodation.

Ava’s lawyer Roman Martinez argued that’s not fair. Most Americans only need to show “deliberate indifference,” an easier standard of proof to meet.

MARTINEZ: The district’s new theory violates the text, history, and purpose of both statutes. It contradicts decades of regulations. It defies at least five precedents of this Court and decisions from virtually every circuit. It would also revolutionize disability law, stripping protections from vulnerable victims and gutting the reasonable accommodations needed for equal opportunity.

REICHARD: Martinez pointed out that grown-ups with disabilities don’t face such a high bar. So why should kids?

Justice Neil Gorsuch asked about the school’s intent to discriminate:

GORSUCH: The act of discrimination is to treat someone else differently because of their disability. Right? And I would have thought that that might have meant I intend to treat someone differently. It doesn't matter about my further motive. I agree, I --I take that point, bad faith. But why wouldn't that be the test?

MARTINEZ: So, Your Honor...

Martinez explaining intent doesn’t matter here.

MARTINEZ: .... the reason for that is that you can have people discriminated and excluded by reason of their disability even though there's no --there's no intent. And --and so, because you have a disability --

GORSUCH: I see.

MARTINEZ: --you're not able to take advantage of a program.

EICHER: Lawyer Lisa Blatt represented the school district, arguing that lowering the standard of proof would expose schools to massive liability. A decision from 1982 called Monahan set the higher bar for disability discrimination claims in education.

BLATT: And reversing Monahan would expose 46,000 public schools to liability when, for 40 years, they have trained teachers, allocated budgets, and obtained insurance, all in reliance on Monahan. Every good-faith disagreement would risk liability or even the nuclear option, the loss of federal funding, which is over a hundred billion dollars.

REICHARD: She went further, arguing the higher proof bar ought to apply to everyone under federal disability law, not just in education.

That didn’t go over well. Justice Sonia Sotomayor:

SOTOMAYOR: Counsel, it would have been nice to know that we were biting off that big a chunk.

EICHER: Bad as it was … it doesn’t even compare with the uncomfortable exchange between Blatt and Justice Neil Gorsuch. He didn’t care for the way she’d accused Martinez and the DOJ of lying.

GORSUCH: I confess I'm still troubled by your suggestion that your friends on the other side have lied.

BLATT: Okay. Let's pull it up.

GORSUCH: Yeah. I think we're going to have to here, and I'd ask you to reconsider that phrase.

BLATT: At oral argument --

GORSUCH: If I might.

BLATT: --it was incorrect.

GORSUCH: If I --if I –

BLATT: Sure.

GORSUCH: Incorrect is fine.

BLATT: Well, lying --

GORSUCH: People make mistakes.

BLATT: Okay.

GORSUCH: You can accuse people of being incorrect, but lying --

BLATT: That's fine.

GORSUCH: Ms. Blatt, if I might finish.

BLATT: Sure.

GORSUCH: Lying is another matter.

REICHARD: Ay, yi, yi!!!! I learned in law school you simply do not address the court in such a flippant way.

Blatt later withdrew the accusation.

Lawyer Martinez for the family wrapped up with an emotional plea:

MARTINEZ: If you accept her arguments, think of all the people who are going to be affected. Think of five-year-old Ehlena Fry with cerebral palsy, who needs the help of her service dog, Wonder. Think about George Lane, the Tennessee man forced to crawl up two flights of stairs in order to have his day in court. Think about Ava, who desperately needs every precious hour of school so she can learn to communicate with her parents.

After nearly 10 years of litigation, Ava is now 19 years old, and still in high school.

The outcome here could reshape the rights of more than 8 million students with disabilities across the country.

EICHER: Next, a case that involves two men who are legally blind. Luke Davis and Julian Vargas tried to check in at a LabCorp clinic using a touchscreen kiosk.

Because of their blindness, they couldn’t manage it without help. They tried to create a class-action to sue LabCorp for violating state and federal disability laws.

Interesting facts. But the Supreme Court dismissed the case last Thursday with what the court calls a “DIG.” That’s an acronym for Dismissed as Improvidently Granted. No reason given, but Justice Jackson pointed in that direction during argument in this comment to LabCorp’s lawyer:

JACKSON: I guess I'm trying to understand…-your client's responsibility --for the confusion that we are in right now…-I understood that your client argued that the May class definition was too narrow. … And, today, you're saying it's improper or problematic because it's too broad. You know, it's too broad…

REICHARD: Flip-flopping your argument just isn’t a good look for lawyers before the Supreme Court.

Okay, on to our third and final oral argument: FCC v Consumers’ Research. It’s about phone bill fees, the Constitution, and who decides how public money is raised.

The Universal Service Fund is a $10 billion-a-year program created by Congress to ensure phone and internet access for rural hospitals, schools, and poor Americans. It’s funded by mandatory line-item fees on your phone bill.

Critics say those fees are an unconstitutional tax. You’ll hear the lawyers refer to them as USF charges.

MCCOTTER: At its heart, this case is about taxation without representation. Every year Americans pay billions for the universal service fund. The rate has increased ten-fold. The amount collected is now 20 times the size of the FCC's entire annual budget. The government and the FCC now agree, or at least do not dispute, that USF charges are, indeed, taxes;

EICHER: That’s Trent McCotter, attorney for Consumers’ Research advocacy group. Congress gave too much taxing power to the FCC, he argued. Then the FCC turned around and wrongly delegated it to a private company. He went on to list other points of agreement between the parties:

MCCOTTER: Tthat the USF statute sets no objective rule to limit the amount raised; and that Congress has set such rules for every other domestic tax in American history. Those concessions doom their case.The amount of public revenue to raise is a quintessential legislative determination, not some minor detail to be filled in later.

The Fifth Circuit agreed with him, citing the nondelegation doctrine. That restricts Congress’s ability to delegate its legislative power to other branches or entities.

At the Supreme Court, Acting Solicitor General Sarah Harris defended the program:

HARRIS: Congress dictated how much to charge—only what's sufficient to achieve universal service, so no more than needed to support specified programs.

Justice Samuel Alito pushed back on that, pointing to watchdog findings that are adverse:

ALITO: I mean, they say that the --the GAO couldn't verify the eligibility of 36 percent of those who receive USF benefits? Nearly 80 percent of the Lifeline Program users may -- may be legally ineligible for the benefits they're receiving?

Universal Service Administrative Company. He continued:

ALITO: Why shouldn’t we look at the record of what the FCC has actually done? And if you look at the record here, Isn't it really hard to say anything other than the fact that they just have rubber-stamped whatever the USAC has told them?

Lawyer Harris was ready:

HARRIS: There are four instances in which the FCC has, in fact, said USAC is not doing it right... So there are empirical examples of this not just being a rubber stamp.

Justice Ketanji Brown Jackson worried about broader consequences of a ruling limiting funding in this case:

JACKSON: …there are a number of different agencies that have similar revenue-generating fees.I know some people call them fees and not taxes. I’ve already established that in my view that doesn’t make a difference..But if we find that this one is unconstitutional, are all of these programs in jeopardy in your view?

HARRIS: Yes.

REICHARD: We’ll have a decision very soon. What’s at stake is not only a funding program, but a constitutional question of how much power Congress can delegate to federal agencies.

And that’s this week’s bonus Legal Docket!

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