Protection Against Unanticipated Lawsuits

On Monday, in Arlington Central School District v. Murphy, the Supreme Court limited the court costs recoverable under the Individuals with Disabilities Education Act (IDEA), holding such costs did not include the cost of expert witnesses hired by the plaintiffs. This is an important ruling because IDEA suits are the most common variety of student lawsuit in federal court. Suits under the IDEA dwarf the number of lawsuits brought by students under the Constitution. They also have far more effect on school discipline, since the IDEA makes it very difficult to suspend students with behavioral, emotional, or other disabilities from school for misconduct, even when their misconduct is severe and unrelated to their disability.

The Supreme Court reasoned that the IDEA is a spending clause statute, which only binds school districts that accept federal funds, and that lawsuits against recipients of federal funds should not be allowed unless they have “clear notice” in the statute of their potential liability when they accept federal funds.

This “clear notice” principle, if applied to other laws, could help stem a flood of unanticipated lawsuits and administrative charges against school districts and hospitals. For example, Title VI of the Civil Rights Act forbids racial discrimination by recipients of federal funds. In practice, the Education Department has turned this simple ban on discrimination into an affirmative mandate imposed on schools to provide “oral and written translation services” to non-English speakers in a host of foreign languages free of charge. It interprets the statute as requiring that any parents who do not speak English be given written or oral translations of school information, even if the parents’ language is obscure and spoken by few students at their child’s school.

This duty is not clearly expressed in the Title VI statute, which Alexander v. Sandoval, 532 U.S. 275 (2001) ruled only reaches intentional racial discrimination. Nor is the duty even clear from the Education Department’s codified Title VI regulations, which prohibit not only intentional discrimination but also unintentional, “disparate impact” discrimination. A “disparate impact” discrimination claim requires a lot of affected students or employees, with big gaps between different races, not just language groups, much less a failure to accommodate rarely spoken Third World languages. (Moreover, even banning “disparate impact” may be beyond the Department’s authority under the Supreme Court’s Alexander v. Sandoval decision.)

(Federal agencies’ bilingual education mandates are not easy to satisfy. While working in the Education Department’s Office for Civil Rights, I learned that school districts investigated over their accommodation of non-English speakers are uniformly and invariably found by OCR to be in violation of Title VI).

The Supreme Court’s decision should prompt federal civil rights agencies to revisit their expansive interpretations of federal spending clause statutes like Title VI, Title IX, and the Rehabilitation Act.