If you have heard a special education presentation from us recently, you have probably heard us discuss a case in which a school was ordered to provide special education services in the evenings. In a related case, A.J.T. v. Osseo Area Schs., Indep. Sch. Dist. No. 279 U.S. (2025) the same student’s parents sued the district claiming that its failure to provide evening instruction also violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. In that second case, the United States Court of Appeals for the Eighth Circuit held that because the parents could not recover money damages from the district because school officials acted with “either bad faith or gross misjudgment,” the claim could not proceed. Enter the Supreme Court with more bad news for school districts.
The Supreme Court held that school districts are no longer protected by the “bad faith or gross misjudgment” standard. Instead the Court held that the parents must only prove “deliberate indifference.” In other words, the legal standard for a special ed family alleging disability discrimination is now the same as the legal standard for a family alleging sex discrimination under Title IX. 1) knowledge that harm to a federally protected right would likely occur and (2) a failure to act on that knowledge. Deliberate indifference is definitely a more plaintiff-friendly standard than the one that has been in place for schools in Nebraska, South Dakota and Wyoming. However, that doesn’t mean you should panic. Deliberate indifference is still a very high standard to prove. This feels to us a bit like the Endrew F. case from 2017. The legal standard has definitely changed in the favor of parents, but most schools will not need to make huge changes in their day-to-day operations. Schools only engage in deliberate indifference when staff have 1) knowledge that harm to a federally protected right would likely occur and (2) intentionally fail to respond reasonably. s Of course, we will continue to dive in deeper and explore how we can best support districts under this new standard over the next several months. In the meantime, if you have questions about this case or any other matter,please do not hesitate to reach out and contact us at ksb@ksbschoollaw.com.