Earlier this year, AJE filed our first Amicus Brief at the United States Supreme Court. It was for the case of Davis v. DC, a case about a DC student with Autism who did not have a school placement. This blog post is about that case and links to learn more are at the bottom of the post.
B.D. and his family
The student (we are calling him B.D. to protect his privacy) is a student with Multiple Disabilities, including Autism. He has complicated behaviors and requires a highly individualized setting. B.D.’s IEP (Individualized Education Plan) team agreed that his least restrictive environment (the school setting where the student can be with peers as much as possible) was a nonpublic residential placement. This was written into B.D.’s IEP. B.D. is a DCPS student and OSSE worked with DCPS and the family to find him an appropriate location of services capable of implementing his IEP, as is their responsibility as B.D. ‘s education provider. OSSE (Office of the State Superintendent of Education) placed B.D. in a nonpublic school capable of providing him with an appropriate residential setting and implementing his IEP. Many AJE families have gone through the same process B.D.’s family did.
B.D. attended the nonpublic residential school, but after just over a year, the staff at B.D.’s nonpublic school changed their minds, and decided that they were no longer able to serve him. On October 1, 2021 the nonpublic school told DCPS that they needed to find him a new placement, and on October 31. 2021 the nonpublic school discharged B.D. This is how B.D. came to be a student without a school. He had an IEP, but nowhere to implement his IEP.
Shortly before he was discharged, the family filed a Due Process Complaint against OSSE and DCPS and at the same time asked the Hearing Officer to issue a Stay Put order requiring that DCPS or OSSE approximate the environment required by B.D.’s IEP as closely as they could.
Unfortunately, OSSE struggled to find a new placement, and as a result B.D. was without a placement capable of implementing his IEP for several months as this case progressed.
The week before B.D. was discharged, DCPS provided written “Interim Service Authorizations” to the family that explained that services would be provided for B.D. at home while OSSE tried to locate a new placement. But the authorizations DCPS issued did not meet B.D.’s need for round-the-clock care, and provided far fewer hours of services than his IEP required. It was not enough to provide B.D. with a free appropriate public education (FAPE). In addition, those authorizations (the authorizations are like vouchers or coupons that a parent can use to contract with someone else to provide services) were also hard for the Davis family to actually use, something many AJE families know about. Like other families, B.D.’s family struggled to find providers who would accept DC’s rate and were qualified to work with their child. They also struggled because the authorization essentially shifted the obligation to provide FAPE onto the Davis family, and because the authorizations weren’t enough to provide the round the clock care that everyone agreed B.D. needed.
At Due Process
At the Due Process Hearing, DCPS said issuing missed services authorizations was enough to meet their obligations to B.D. while they were trying to find him a new placement.
The parents disagreed. The parents asserted that not only did DC need to find B.D. a new placement capable of implementing his IEP, it also needed to provide something comparable to what he was receiving before at his old school placement according to his IEP.
This is the “Stay Put” part of the case. Stay Put is the part of IDEA (Individuals with Disabilities Education Act) that makessure that students with disabilities continue to receive services while disputes about their education are resolved. The Davis family and their attorneys know that Stay Put doesn’t mean that he gets to stay at the nonpublic school he was at before. Instead, the parents argue that B.D. is still entitled to all the services on his IEP while DC figures out a new school for him – one capable of providing him with the residential placement his IEP requires.
The Hearing Officer did not agree with the family, and ruled that Stay Put did not apply, determining that B.D. was not entitled to the same level of services his IEP required while DCPS and OSSE were looking for a placement.
The appeal to the District Court, and then to the Court of Appeals
The family appealed the Hearing Officer Decision (HOD) to the US District Court for the District of Columbia. The District Court is the federal court where parents can appeal HODS in Administrative Due Process Complaints. This is how this case came to be in the District Court, and later, at the Court of Appeals, and now, at the US Supreme Court, asking for the Supreme Court to grant certiorari.
The District Court Judge agreed with the Hearing Officer and the family then appealed again, this time the US Court of Appeals for the DC Circuit.
This is when AJE became involved.
On August 10, 2022, AJE’s pro bono counsel K&L Gates filed an Amici Curiae Brief at the Court of Appeals in Davis v. DC. Amicus is Latin for friend, and an Amicus Brief is something that a person or organization who is not involved in the case files when they think they have something helpful for the court to know about case. Amici is the plural of amicus. Our brief is an called an Amici because we filed it with another organization.
The family in Davis v. DC are not represented by AJE, but AJE, along with COPAA (Council of Parent Attorneys and Advocates) filed an Amici brief because we think there are important issues involved in the case that impact many families we work with. AJE and COPAA are represented by K&L Gates in this matter. We wanted to make sure the court knew that B.D. was not the only student this was happening to, and it is a potential problem for every student in a nonpublic placement, or for students who were hard to place because of the nature of their disability.
Supreme Court
Unfortunately, the Court of Appeals also did not agree with the family that B.D. was entitled to Stay Put, which is why the family ultimately asked the Supreme Court to review the case. AJE and COPAA filed an Amici in support of the parent’s request for the Court to review the case, explaining why we think it is an important case where the Supreme Court’s guidance is needed. If the Supreme Court takes the case (also called “granting certiorari”) we will file another Amici about why we think B.D.’s parents are correct and how B.D. is entitled to comparable services under Stay Put. This is called a brief on the merits.
FAQS
So, if AJE does not represent the family, why are you filing something in the case?
AJE talks to a lot of families, and what happened to B.D. isn’t as uncommon as people might think. AJE thinks that the Supreme Court needs to make sure that students who lose access to a school capable of implementing their IEP and providing FAPE, are still entitled to FAPE while waiting for a new school. In addition, schools and States need to do their very best to make sure the student receives FAPE while searching for a new placement. This is what Stay Put requires.
Who is COPAA and why are they involved?
The Council of Parent Attorneys and Advocates, Inc. (COPAA) is an independent, nonprofit, §501(c)(3) tax-exempt organization of attorneys, advocates, parents and related professionals. COPAA members work to protect the legal and civil rights of and secure excellence in education on behalf of tens of thousands of students with disabilities and their families each year at the national, state and local levels. They specifically work to empower marginalized groups to realize a quality education that will open doors and allow students and families to make active improvements in their lives. With an active community of over 3,100 members nationwide, each of whom represents families of eligible students and many of whom have lived experience, COPAA is at the forefront of special education advocacy. AJE has been a member of COPAA for many years, and has led trainings at COPAA’s annual conference.
Why isn’t this case against DCPS if B.D. is a DCPS student? Why isn’t OSSE named?
Once a case is in a federal court, the litigation is against the entire District of Columbia, unlike in a Due Process Complaint where you file against an agency of the District of Columbia, like DCPS or OSSE. This is why the case is Davis v. DC, not Davis v. DCPS, or Davis v. OSSE. DCPS and OSSE are agencies of the same DC government, so in that sense they are still involved.
I know that AJE says that they are “Small but Mighty” but how did you do this?
We had a lot of expert help. AJE is the client in our briefs. We are advised and represented by experienced federal court litigators at K&L Gates, who are working with the experts at COPAA to make sure that our concerns are heard and understood. We did this the same way we do much of our systemic work, in partnership with others in the legal community and other like-minded organizations.
What happens next?
We are waiting to see if the Supreme Court will take the case. In April of 2024 the Court asked DC to respond to the parent’s filing. DC then asked the Court for extra time to respond and wanted to have until July 1st to respond to the parent’s petition for certorari. The Supreme Court did not give them the extension of time they wanted, and told DC that their response is due May 28th, 2024.
Once DC responds, the Court will decide if they will hear the case. The Supreme Court does not have to hear every case that people ask them to review. If the Court does not decide to review the case, the decision of the lower courts remain in effect. We can not say for certain when they might make a decision.
Where can I learn more?
You can look at the Supreme Court’s docket here – this is where all the documents are posted
https://www.supremecourt.gov/search.aspx?filename=/docket/DocketFiles/html/Public/23-936.html
AJE & COPAA Amicus Brief – Court of Appeal (USCA-DC) https://www.aje-dc.org/wp-content/uploads/2024/04/Amicus-Brief-as-filed-1.pdf
AJE & COPAA Amicus Brief in Support of Parent’s Request for Supreme Court to Review Case (asking the Court to grant a writ of certiorari)
COPAA blog post on Amicus
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