Author: Maya

SCOTUS Rules Texas Can’t Use Junk Science to Justify Executing the Intellectually Disabled

By Mark Joseph Stern - writer for Slate. He covers the law and LGBTQ issues.

Supreme Court Justices Samuel Alito, Ruth Bader Ginsburg
Supreme Court Justices Ruth Bader Ginsburg, Stephen Breyer, and Samuel Alito at the inauguration on Jan. 20. Ginsburg authored the majority opinion in Moore v. Texas.

On Tuesday, the Supreme Court struck down Texas’ test for determining which inmates are intellectually disabled and therefore constitutionally protected from capital punishment. Texas’ use of outdated and unscientific “medical guidance” to gauge “intellectual functioning,” the majority held, violated the Eighth Amendment’s ban on “cruel and unusual punishments.” The 5–3 decision in Moore v. Texas marks the court’s latest attempt to prevent states from justifying the execution of disabled inmates using arbitrary or capricious standards.

Under 2002’s Atkins v. Virginia, states are forbidden from executing individuals with intellectual disabilities. But Atkins allowed states to create their own rules for determining when an inmate fit this category. In 2014’s Hall v. Florida, the court noted that states’ discretion here is not “unfettered”—it must be “informed by the medical community’s diagnostic framework.” If states had “complete autonomy to define intellectual disability as they wished,” the court explained, “Atkins could become a nullity, and the Eighth Amendment’s protection of human dignity would not become a reality.”

Texas, however, currently rejects the medical community’s current framework in favor of obsolete standards. To determine whether an inmate is disabled, the Texas Court of Criminal Appeals held that courts must use intellectual disability guides written in 1992. In addition, the CCA allowed courts to use pseudoscientific “evidentiary factors” drawn from stereotypes of disabled people and the character of Lennie from John Steinbeck’s Of Mice and Men. (Seriously.) For instance, the CCA fixated on the fact that the inmate in this case, Bobby James Moore, demonstrated “adaptive strengths,” such as the ability to mow lawns and play pool. The CCA seemed to believe that all intellectually disabled people are, as one amicus brief put it, “incapable of any but the most rudimentary tasks,” and that individuals with any “adaptive skill” cannot be disabled.

Current medical consensus rejects this misconception as little more than a “lay stereotype.” But that didn’t matter to Texas. In fact, the CCA actually barred lower courts from using more recent science in evaluating a death row inmate’s claim of intellectual disability.

In a decision written by Justice Ruth Bader Ginsburg, the Supreme Court found that these standards clearly violated Atkins and Hall. “As we instructed in Hall,” Ginsburg explained, “adjudications of intellectual disability should be ‘informed by the views of medical experts.’ That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus.” Moreover, Texas uses several alleged “indicators of intellectual disability” that “are an invention of the CCA untied to any acknowledged source.”

“Not aligned with the medical community’s information,” Ginsburg wrote, “and drawing no strength from our precedent,” these factors create “an unacceptable risk that persons with intellectual disability will be executed.” Accordingly, Texas must permit the use of “current medical standards” in determining whether an individual is intellectually disabled and may not use the “wholly nonclinical” factors concocted by the CCA.

In dissent, Chief Justice John Roberts, joined by Justices Clarence Thomas and Samuel Alito, complained that the court looked to “medical assessment[s] of clinical practice” rather than “societal standards of decency” to determine whether Texas’ guidelines violate the Eighth Amendment. According to Roberts, the court should’ve looked to see whether other states operated under similar rules; if a sufficient number of them did, then Texas could not, by definition, have breached “societal standards of decency.” But even Roberts admitted that the factors drawn from stereotypes and literature cannot possibly comport with the Eighth Amendment.

Tuesday’s decision is a significant contribution to the Supreme Court’s developing—and increasingly progressive—case law regarding capital punishment and intellectual disability. Justice Anthony Kennedy, Ginsburg, and the court’s three other liberals have made great strides in limiting states’ ability to execute inmates with mental impairments. The bad news is that the ruling split 5–3 on predictable ideological grounds. This line of cases is recent and controversial, making it a tempting target for reversal by a future conservative majority. As Moore makes clear, the lives of intellectually disabled inmates still depend upon the balance of the Supreme Court.

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The Supreme Court Rules In Favor Of A Special Education Student

Supreme Court Chief Justice John Roberts
ANYA KAMENETZ, NPR March 22, 201712:04 PM ET

School districts must provide students with disabilities the chance to make meaningful, "appropriately ambitious" progress, the Supreme Court said today in an 8-0 ruling. Download the Endrew F v. Douglas County decision here

The decision in Endrew F. v. Douglas County School District could have far-reaching implications for the 6.5 million students with disabilities in the United States.

The case centered on a child with autism and attention deficit disorder whose parents removed him from public school in fifth grade. He went on to make better progress in a private school. His parents argued that the individualized education plan, or IEP, provided by the public school was inadequate, and they sued to compel the school district to pay his private school tuition.

The Supreme Court today sided with the family, overturning a lower court ruling in the school district's favor.

The federal Individuals With Disabilities Education Act, or IDEA, guarantees a "Free Appropriate Public Education," or FAPE, to all students with disabilities. Today's opinion held that "appropriate" goes farther than what the lower courts held.

"It cannot be right that the IDEA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not," read the opinion, signed by Chief Justice John Roberts.

The case drew a dozen friend-of-the-court briefs from advocates for students with disabilities who argued that it is time to increase rigor, expectations and accommodations for all.

"A standard more meaningful than just above trivial is the norm today," wrote the National Association of State Directors of Special Education.

The ruling seems likely to increase pressure from families and advocates in that direction.

Significantly, Judge Neil Gorsuch, currently in confirmation hearings for the Supreme Court's vacant ninth seat, has repeatedly ruled the other way on similar cases.

Gorsuch's opinions in eight out of ten cases involving students of disabilities all tended toward limiting the responsibilities of school districts — for example, if they leave school of their own accord out of frustration. IDEA's standard of a "free appropriate public education," reads Gorsuch's opinion in one of these cases, "is not an onerous one."

When questioned on his record, in light of this new ruling, during his hearing today by Texas Sen. John Cornyn, he said "I was wrong, Senator, because I was bound by circuit precedent, and I'm sorry."

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What’s at Stake for Americans with Disabilities in the Trump Era

President Donald Trump made his disregard for the 1 in 5 Americans with disabilities abundantly clear during the campaign when he mocked a disabled New York Times reporter. But that disregard is no longer just hateful words. Now Trump’s administration, as well as his Republican colleagues in Congress, are pursuing policies that would put the health, education, and economic security of people with disabilities and their families at grave risk.

The GOP plan for health insurance would make dramatic cuts to Medicaid, decimating services that enable people with disabilities to live independently and work. Meanwhile, Trump and his colleagues in Congress are poised to slash Supplemental Security Income, nutrition and housing assistance, early childhood education, funding for civil legal aid, and more, all while protecting tax cuts for the wealthy and corporations. Betsy Devos, recently confirmed as Trump’s secretary of education, was not even aware of the Individuals with Disabilities Education Act, the longstanding federal law that ensures that students with disabilities have access to a free and appropriate public education.

Join the Center for American Progress for a discussion of what is at stake for people with disabilities under the new administration and Congress and where the progressive movement must go from here to effectively champion a policy agenda that ensures that people with disabilities have a fair shot. CAP will also be releasing a video showcasing the voices of people with disabilities and how they and their families would be impacted by the Trump policy agenda.

Neera Tanden, President and CEO of the Center for American Progress

Keynote remarks:
Anastasia Somoza, disability activist and Democratic National Convention speaker

Featured panelists:
Marty Ford , Senior Executive Officer, The Arc of the United States
Valerie Williams, Director of Government Relations, ‎National Association of State Directors of Special Education
Ari Ne’eman, CEO,
Andraea Lavant, Inclusion Senior Specialist, Girl Scouts Nation’s Capital
Marta Conner, mother and advocate

Rebecca Vallas, Managing Director, Poverty to Prosperity Program, Center for American Progress

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What A Waste Of Money

Southbury Training School

Southbury Training School
The institution for the intellectually disabled is serving a dwindling population at the huge cost of $1,000 per client a day. (Carolyn Lumsden / Hartford Courant)

The Southbury Training School is an obsolete, rundown institution that hasn't admitted any new residents in 30 years. The state has to commit to closing it. Its wild overtime costs continue to suck taxpayer money that could be better spent serving many more people with intellectual disabilities at much more reasonable cost in smaller private facilities.

One state worker at Southbury, for example, pumped up her $60,000 base salary to a hard-to-believe $196,000 with overtime this past fiscal year, The Courant's Josh Kovner has reported. With fringe benefits, she earned $237,886 — more than Gov. Dannel P. Malloy makes.

Overtime Extravagance

Four of her colleagues earned an are-you-kidding-me $100,000 each in overtime. Another 50 earned $50,000 or more in OT.

Altogether, Southbury's 615 full- and part-time employees (serving just 229 clients) earned an average of $20,000 each in overtime.

This is an extravagant waste of public money. Moreover, it's inhumane to work people too many hours. Long hours lead to high injury rates and poor performance, and that could endanger the elderly, vulnerable residents of Southbury.

The state is paying too steep a price to keep open an outmoded institution serving a dwindling population at the huge average cost of $360,000 per client per year — nearly a thousand dollars a day. It costs half of that or or less to care for a client in a private facility.

But the state agency that runs Southbury Training School has yet to report to a legislative committee on how to close the exorbitant institution, as it was ordered to do back in late 2015. You'd think a state financial crisis would speed the agency up.

A spokeswoman for the agency, the state Department of Developmental Services, says that personnel spending is actually down at Southbury. What's driving costs up are such things as state pension debt, she says.

Well, no wonder. Overtime is part of state workers' pension calculation. Pension padding is helping to put Connecticut state government in a financial ditch, yet it continues.

Money For Some, Not Others

Southbury isn't alone among state-run institutions with out-of-control overtime costs. A worker at an institution in Newington was paid $150,000 in OT in the last fiscal year, on top of his $57,000 salary. For two years in a row, his total compensation was at least $262,000.

Yet there's no money in the governor's budget proposal for day programs for the intellectually disabled. Nor is there money for the 2,100 families on the waiting list for services or residences for their disabled relatives.

While state employees run up overtime to astronomical levels, the vast majority of intellectually disabled people are served by the private sector, where the cost is half or less, with no difference in quality — or they're not being served by the state at all, but are being cared for at home, often by aging parents.

Some of the families of those on the waiting list and others have called for Southbury to close by 2020 and for its clients to be moved to smaller private facilities, where they'll be cared for well but not so wastefully. The families have been unable to get a commitment from either the governor or the legislature.

So they wait for years, sometimes decades, for a place for their disabled loved ones to live, while workers at state institutions earn outrageous sums that eat up state funds. How is this fair?

Copyright © 2017, Hartford Courant

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AUCD, NDRN and NACDD Statement

Joint Statement – Concerns about the Proposed Changes to Medicaid in the House Republican Policy Brief

3 logos


As the three national Developmental Disabilities (DD) Network partners that represent the entities authorized in the DD Act whose members annually advocate for and provide hundreds of thousands of clinical services and home and community based supports to people with disabilities and their families, the Association of University Centers on Disabilities (AUCD), the National Disability Rights Network (NDRN), and National Association of Councils on Developmental Disabilities (NACDD) are concerned about the policy brief distributed by the House Republican leadership on Thursday, February 16th to its Members about repealing and replacing the Affordable Care Act (ACA).

The goals of the policy brief distributed last week are to "put Medicaid on a budget" and to "return the focus of the program back to helping those most in need."

While these two goals sound reasonable, they will likely result in constraints that will harm people with disabilities and those who support and serve them. We are concerned about three specific items in the policy brief: 1) proposed per capita caps with the option for block grants, 2) proposed Health Savings Accounts, and 3) "next generation high risk pools."

The proposed per capita allotment to be paid to states for each person eligible for Medicaid will threaten the long-standing guarantee to provide health care and support services to people with disabilities. Block grants would similarly cap the amount of money each state receives without allowing for adjustments when there are changes to health care costs, population growth, or in response to economic downturns, or natural disasters. In 2014, there were almost 600,000 people with disabilities waiting for home and community based services from Medicaid. With the introduction of per capita allotments to states, it is only likely this number will increase. We have only to look at the cuts to Medicaid Texas made last year to see the reduction in services for those with disabilities.

The proposed health savings accounts also are of great concern. While designed to increase consumer control over health care costs, this is often not possible for people with disabilities. Living in rural or frontier America, or even in medium size cities, people with disabilities often have no choice about their health care and durable medical equipment providers. In addition, the amount of money allotted in a health savings account is often only a fraction of the cost of annual care for a person with a disability.

We are also concerned about the high risk pools described in the policy brief as State Innovation Grants. Without adequate funding, high risk pools will either deny coverage to some of those in need or the state pools will offer limited services. Either way, those with disabilities will suffer.

We urge the House Republican leadership to offer a plan that protects people with disabilities from the discrimination they experienced prior to the implementation of the Affordable Care Act and to ensure people with disabilities will have access to health care and support services. Health care coverage that does not include durable medical equipment; rehabilitative, habilitative, and mental health services; and preventative services will greatly harm the health and well-being of people with disabilities.

We look forward to working with the House leadership and all Members as Congress considers revisions to the ACA and Medicaid. For more information please contact: Kim Musheno (, Eric Buehlmann (, and Cindy Smith (

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Malloy Announces Plan To Expand Housing For People With Intellectual Disabilities

by David Owens, Contact Reporter

The governor on Friday formally announced his plan to expand housing opportunities and services for people with intellectual disabilities.

Gov. Dannel P. Malloy included $3.8 million in his proposed budget for what he termed the "intellectual disability partnership initiative." The goal is to reduce the waitlist for people with intellectual disabilities who need state-funded housing and to find new ways to address the need.

Malloy also proposed $1 million in bonding funds to convert group homes to supportive housing units, residential care homes or community care homes for people with intellectual disabilities.

"Although we have set aside $1 million on the capital side we will put as much money into this fund to make those conversions ... as can be used," Malloy said Monday morning at an Oak Hill facility on Coventry Street. Oak Hill is a large private provider of services to people with disabilities.

Of the $3.8 million allocated by Malloy, $1.8 million would go to for pay parity. Private service providers typically are paid less than state employees who do the same work.

"This will allow lower-rate providers to be increased without taking money away from those folks who are doing such a good job already," Malloy said. The state continues to move toward privatizing such services, Malloy said.

Malloy said $1 million of the $3.8 million is to find ways to more efficiently use the Department of Developmental Services' half billion dollar budget to serve more people.

"The [intellectually disabled] community would like to see more people served," Malloy said. "I would like to see more people served." And there are less expensive ways to provide services, Malloy said.

Of the 16,000 clients of the state Department of Developmental Services, only a little more than 800 live in state facilities — but those locations receive a disproportionate amount of funding for overtime and other expenses. State workers at the largest institutions routinely double their base salaries with overtime. Still, they have the support of the families of the clients they serve. That fervent support has helped to slow the pace of the planned privatization of as many as 40 state group homes. Malloy has pushed these conversions, a trend nationally, as a money saver for Connecticut. Two regional campuses in Meriden and Stratford have closed, but not all the residents have moved into private settings.

Malloy has also proposed shutting down the on-campus fire department at the Southbury Training School. The department has remained even as the school's population dwindled to fewer than 250 residents and the unused portions of the complex are being mothballed.

In 2014 the chief, assistant chief and 12 firefighters shared nearly $600,000 in overtime. Total costs for the fire department came in at just under $2 million that year.

"The time is coming that Southbury as we know it will not exist," Malloy said. He said he does not expect the training school to close within the next two years, but as the population at the school continues to shrink there will be more discussions about how to serve the people who live there.

Copyright © 2017, Hartford Courant

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Disability Advocates Applaud, Lament Malloy’s Budget Proposal

Governor Dannel P. MalloyCopyright © 2017, Hartford Courant

With Gov. Malloy’s budget proposal out in the open, here are a few things to know about what it entails.

Advocates for the more than 16,000 people with intellectual disabilities who are served by the state are reacting favorably to some aspects of Gov. Dannel P. Malloy's proposed budget, including an increase of about $4 million to, among things, help create more community settings for people now living in state facilities.

They also applauded the closing, at a savings of $1.6 million, of the on-campus fire department at the Southbury Training School — a unit that has hung on year after year as the population has dwindled to fewer than 250 residents and the unused portions of the complex are being mothballed.

But there was despair over the lack of funding for day programs and job training for high school graduates in 2017 and 2018 — as many as 600 young people who are turning 21 and will have completed their federally mandated schooling. For decades, these graduates went fairly seamlessly into the social, recreational, and skill-building programs for young adults. In the last few years, funding cuts have restricted these opportunities.

"So they go from a relatively enriching school environment, with a focus on transitioning to adulthood, to nothing — no programming," said Shannon Jacovino, of The Arc Connecticut, which has mobilized thousands of families to press Malloy and the legislature for expanded and improved services within the existing budget of the Department of Developmental Services.

Jordan Scheff, the acting commissioner of the DDS, said making up for the lack of funding for new high school graduates is a challenge facing the department, one that requires "efficiencies … cooperation, collaboration and innovation" in other areas of the $525 million-a-year agency.

He said a portion of the nearly $4 million a year that Malloy added would help some of the families on a lengthening waiting list for residential placements and in-home supports. And for the first time in years, DDS would be able to raise the payment rate for a group of private providers. The private, non-profit agencies who have contracts with DDS serve the vast majority of the department's clients.

Tom Fiorentino of West Hartford, the father of a young man with an intellectual disability, said Malloy's budget proposal is a "mixed bag" that suggests he's heard the call of thousands of parents who have attended protests and public hearings at the capital, but that still falls short of reforming the system.

"We are gratified he has proposed positive steps to address the residential waiting-list crisis," said Fiorentino, a former assistant state attorney general who is president of the board at The Arc Connecticut. "At the same time, we are deeply concerned that his budget contains no funding for new graduates."

Of the 16,000 clients of DDS, only a little more than 800 live in state facilities — but those locations receive a disproportionate amount of funding for overtime and other expenses. State workers at the largest institutions routinely double their base salaries with overtime. Still, they have the support of the families of the clients they serve. That fervent support has helped to slow the pace of the planned privatization of as many as 40 state group homes. Malloy has pushed these conversions, a trend nationally, as a money saver for Connecticut. Two regional campuses in Meriden and Stratford have closed, but not all the residents have moved into private settings.

Scheff said the closing of the fire department at the Southbury Training School "has been under discussion for some time."

He said the responsibility of answering emergency calls at the campus will fall to the town of Southbury, which has volunteer fire and emergency-medical units.

"DDS will continue working with the town … to make sure the transition is a smooth one, and that all residents' emergency needs will continue to be met," Scheff said.

Jeff Manville, the Southbury first selectman, did not immediately return phone calls seeking comment. Former First Selectman Ed Edelson told The Courant in 2015 that the town expected that coverage of the state campus would eventually shift to the town.

Over the years, the state firefighters based at the Southbury campus have responded thousands of times to assist town crews or to handle calls when those crews were tied up. The town was never charged a fee.

The state firefighters also have inspection and fire-prevention duties. The Courant reported in 2015 that the chief, assistant chief and 12 firefighters shared nearly $600,000 in overtime in 2014. Total costs for the fire department came in at just under $2 million that year.

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Parents Of Special Needs Children Join Appeal Of Education Funding Decision

Parents Of Special Needs Children Join Appeal Of Education Funding Decision

Julie Swanson of Durham

Julie Swanson, of Durham, is the mother of a grown son with autism and a special education advocate. She is part of group that has joined with the state in its appeal of a Superior Court judge's ruling that would radically change the way public education is funded in Connecticut. Swanson and advocates across the state were stunned by Judge Thomas Moukawsher's suggestion that school districts could deny educational services to profoundly disabled students. (Cloe Poisson)

Parents and advocates have joined in the state's appeal of a judge's ruling striking down Connecticut's school-funding formula, seizing on language that described some children with profound developmental disabilities as possibly incapable of learning and unworthy of local education dollars.

"These were the arguments of the 1940s and 1950s, when they wanted to keep children in institutions," said Shira Wakschlag, the lead lawyer for The Arc in Washington, D.C.

"Not only does it violate federal law, it flies in the face research that says that even children who do not look like they are learning, are taking in information," Wakschlag said.

Her organization has joined the Connecticut chapter of The Arc, a constellation of national disability-rights groups, and a dozen Connecticut parents of students with developmental disabilities, in the filing of three amicus briefs. They serve to complement Attorney General George Jepsen's appeal of Superior Court Judge Thomas G. Moukawsher's decision in September.

In sworn affidavits collected by special-education lawyer Andrew Feinstein, the parents described battling school districts for educational programming for their children and the progress that many of the children made when they were given the chance. As the children grew, the parents said, in many cases they required less medication and less intense staff supervision, and became markedly more independent.

Julie Swanson Augeri's son, Alex, has autism, an intellectual disability, and doesn't speak. Beginning when he was 3 years old, Swanson Augeri, of Durham, had to battle for services far more extensive than school officials were prepared to offer.

"Had I accepted the minimal progress and outlook that many in the system expected for him, I feel his behaviors and lack of skill would have become barriers to a meaningful life," Swanson Augeri said in her affidavit.

In an interview, she said, "Alex would have been one of the children the judge was talking about, as not being worthy of an education."

Now 22, Alex, works at horse farm, volunteers at a hospital, has a host of friends, and is independent in most of his daily activities. Had he not had the opportunity to progress in school, he would require much more public funding for his support than he does now, Swanson Augeri said.

"He has a life full of meaning," she said.

The national groups said they felt compelled to join in the appeal because the implications of the judge's opinions on special education were too explosive to ignore. And the stakes are even higher now, they said, as Betsy DeVos, President Donald J. Trump's nominee for secretary of education, seeks confirmation from Congress. DeVos favors leaving special-education funding decisions up to the school districts in individual states, which often balk at the costs. Her opponents point out that federal law guarantees a free and appropriate education for all students, including those with disabilities.

"When she said special education should belong to the states -- that is just frightening and of course it violates federal law," said Nancy Alisberg, the top lawyer for Connecticut's Office of Protection and Advocacy for Persons With Disabilities.

Alisberg assisted the National Disability Rights Network, based in Washington, D.C., in filing its amicus brief with the Connecticut Supreme Court.

Moukawsher ruled in a longstanding lawsuit pitting an atypical coalition of teachers and school administrators, and cities and suburbs, against the administration of former Gov. M. Jodi Rell. He rightly pointed out inequities in a state with both impoverished schools and sublimely wealthy ones, but he ventured into areas that are the responsibility of elected lawmakers, not a single appointed judge, say critics of the ruling.

The judge found that the state's funding of education met the Constitutionally required minimums, which was a blow to the coalition's case and is where Jepsen wanted him to stop. But the judge went further, saying the system by which the state funds schools was "irrational" and often not linked to teaching children. Ruling in September 2016, he gave the legislature until March to propose a new system which he would assess.

And he went further. Referring to special education, the judge said, in part, "The call is not about whether certain profoundly disabled children are entitled to a 'free and appropriate education.' It is about whether schools can decide in an education plan ... that the child has a minimal or no chance for eduction, and therefore the school should not make the expensive, extensive, and ultimately proforma efforts."

That language, said Feinstein, one of the state's most seasoned education lawyers, "would give school boards license to provide substantially less services. As it stands now, many skimp anyway, and some just babysit."

Intentionally or not, Moukawsher's ruling "pits special education students against regular education students," said Shannon Jacovino of The Arc Connecticut. "If this happened with students' race or religion, there would be a massive outcry."

Wakschlag, of The Arc in Washington, D.C., said research shows that non-disabled students benefit on many levels from having disabled students in class.

Both the coalition and the state view Moukawsher's ruling as flawed and are appealing. Among the arguments of Jepsen and Associate Attorney General Joseph Rubin are that Moukawsher's ruling is overbroad, and that he ventured into policy areas that are the province of an elected legislature.

In an op-ed piece in The Courant a month after the ruling, Moukawsher revealed that he has struggled most of his life with attention-deficit/hyperactivity disorder.

"[W]e are entitled to be judged as individuals and, as we all should be, with reason and common sense," Moukawsher wrote of those with similar impairments. "After having said nothing about this to virtually anyone at any time, I think it may be worth it for someone in my position to share my story and assert my conviction that our group is everywhere, is of every stripe, and can do everything."

Moukawsher did not say why he chose to raise questions in his ruling about whether schools should pay to educate certain children with profound disabilities, a position that Feinstein described in his brief as nothing less than "utterly cruel."

Rhonda Stearley-Hebert, spokeswoman for the Judicial Branch, said Moukawsher can't comment on his ruling because the code of conduct bars judges from remarking about pending matters.

Jepsen said he welcomed the amicus briefs.

"We are in agreement," Jepsen said in an interview. "This decision violates federal law. Speaking personally, as a citizen, my heart goes out to these families."

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Justices Face ‘Blizzard of Words’ in Special Education Case

Justice Samuel A. Alito
WASHINGTON — In a case that could affect the education of 6.7 million children with disabilities, the Supreme Court on Wednesday struggled to decide whether it should require public schools to do more under a federal law that calls for them to provide a free education that addresses the children’s needs.

Justice Samuel A. Alito Jr. said the court was being asked to choose among several finely shaded formulations. “What is frustrating about this case and about this statute is that we have a blizzard of words,” he said.

The court appeared uneasy with a standard used by many appeals courts, which have said that providing a modest educational benefit was enough. But some of the justices indicated that they were concerned about the costs that any changes could impose.

Justice Stephen G. Breyer said that a new standard might also invite costly litigation. “If we suddenly adopt a new standard, all over the country we’ll have judges and lawyers and people interpreting it differently,” he said. “I foresee taking the money that ought to go to the children and spending it on lawsuits and lawyers and all kinds of things that are extraneous.”

The case concerns an autistic boy whose parents, unhappy with his progress at his public school in Colorado, enrolled him in a private school and sought reimbursement for the tuition, currently around $70,000 a year. Under the Individuals With Disabilities Education Act, children with disabilities are entitled to a free public education that addresses their needs.

The lower courts have disagreed about what kind of programs public schools must provide. In the Colorado case, a federal appeals court ruled that a modest benefit to the boy was enough and that no tuition reimbursement was warranted.

Neal K. Katyal, a lawyer for the school district, pointed out that in the first half-hour on Wednesday two lawyers proposed nine different standards. For his part, he said an educational program was sufficient if it provided benefits that were “more than de minimis,” the standard used by the appeals court in the case Endrew F. v. Douglas County School District, No. 15-827.

Several justices expressed concerns about the potential financial burdens on school districts. “Is there any place to discuss the cost that would be incurred for, say, severely disabled students?” Justice Anthony M. Kennedy asked.

Justice Alito also appeared wary. “No matter how expensive it would be and no matter what the impact in, let’s say, a poor school district would be on the general student population, cost can’t be considered?” he asked.

But lawyers for the boy’s parents and for the federal government, which largely supported their position, said that as a general matter the schools must pay whatever the programs cost.

Jeffrey L. Fisher, a lawyer for the parents, said most cases did not require schools to spend very much. “They involve things like providing Braille textbooks, providing an iPad, providing some specialized instruction by a staff member who’s already on staff,” he said.

But he added that “there are going to be some extreme cases.” In those situations, he said, referring to the federal law, “the act does not permit cost to trump what the act otherwise requires.”

Mr. Fisher said public schools should be required “to provide substantially equal educational opportunities” to disabled children, but that proposed standard met resistance.

Justice Ruth Bader Ginsburg said the court had tacitly rejected it in a 1982 decision, Board of Education v. Rowley. Justice Elena Kagan said she had “some feeling that the word ‘equality’ is a poor fit for this statute.”

Mr. Fisher proposed an alternative for justices uncomfortable with the word “equal.” He said the court could require “a level of educational services designed to allow the child to progress from grade to grade in the general curriculum.”

Several justices said that standard could not be achieved for students with severe disabilities.

In those cases, said Irv Gornstein, a lawyer for the federal government, the court should use a different standard, one where he said “we have a slight area of disagreement” with the boy’s parents.

“We would say significant progress toward grade-level standards, not as close as possible to grade-level standards,” Mr. Gornstein said.

Justice Sonia Sotomayor asked if the court could substitute “meaningful” for “significant.” Mr. Gornstein responded that the two were synonymous, adding that he would also be content with “appropriate.” But he asked the court to avoid “meaningful” because “it means different things to different courts.”

Justice Kagan responded that whatever standard the court announced might have the same problem. “So we should come up with our own that can then be applied in different ways in different courts?” she asked.

That was the challenge, Justice Alito said. “What everybody seems to be looking for is the word that has just the right nuance,” he said.

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HCD to Launch Program for Students with Exceptionalities

Prism Student
The Prism Project at the Hartt Community Division is a performing arts experience for students with execptionalities. Students ages 7-14 years will have the opportunity to practice important social skills while participating in rehearsals for a performance on April 30, 2017. Each student performer will be paired with a University student buddy who will be their one-on-one guide and support at every rehearsal and during the performance. The Prism Project is modeled after the program at Ball State University in Indiana. Rehearsals will take place on Sundays from 1-2:30 p.m. beginning on January 29 at the Hartt School. Students of all abilities are encouraged to participate. Please contact Jackie Smith, Prism Program Director. at for more information.

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