ASAN Submits Amicus Brief to the US Supreme Court

2 Jun

I have a very high level of respect for the Autism Self Advocacy Network (ASAN). They one of the few autism groups (if not the only one) that actively works with other disability organizations.

Below is a statement from ASAN on the submission of an amicus (friend of the court) brief for a case before the U.S. Supreme Court.

The Autistic Self Advocacy Network, along with several other advocacy groups, has submitted an amicus brief to the United States Supreme Court in the case of Winkelman v. Parma City School District. The lawsuit was brought by the parents of an Autistic child who was not given the opportunity to continue receiving occupational therapy services in an Ohio school after the district had agreed that those services were necessary. The school district prepared an IEP stating only that a further assessment of the need for the services would be completed.

The Supreme Court is seeking to resolve a conflict among the Circuit Courts of Appeals, which have taken conflicting approaches to the question of whether a court’s analysis of the content of an IEP should consider only the written IEP or whether the court has discretion to consider other evidence as well.

Parents play a major role in developing an IEP, which is analogous to a contract with the school district specifying the educational services to be provided to the child. Related services such as occupational therapy also must be specified in the IEP pursuant to federal law as set forth in 20 U.S.C. § 1414(d)(1)(A)(4). School districts are prohibited from making unilateral decisions about a child’s IEP.

Consistent with the general rule that in contract law, evidence outside the written terms of the contract ordinarily is not admissible in court, three Courts of Appeals have ruled that only the written IEP should be considered in determining whether it is adequate. However, three other Courts of Appeals, including the court from which the Winkelman case was appealed, reached the opposite conclusion in deciding that an IEP lacking the required specific content could nevertheless be found valid based on consideration of other evidence.

The Autistic Self Advocacy Network is asking the Supreme Court to rule that when courts analyze the content of an IEP to determine its adequacy, only the written IEP should be considered. A school district should not be allowed to omit required content from a child’s IEP and then to assert later that it intended to supplement the IEP. Allowing districts to postpone decisions on the content of an IEP can lead to considerable delay in providing occupational therapy and other necessary services. The educational well-being of Autistic children and other students with disabilities is best served when they receive therapy without interruption or delay.

ASAN contact information:

Ari Ne’eman
The Autistic Self Advocacy Network
1660 L Street, NW, Suite 700
Washington, DC 20036

7 Responses to “ASAN Submits Amicus Brief to the US Supreme Court”

  1. Kev June 2, 2009 at 08:23 #

    Excellent work ASAN!

  2. autismjabberwocky June 2, 2009 at 18:44 #

    What case currently before the US Supreme Court are you referring to? The case that you cite “Winkelman v. Parma City School District” which I am assuming is this case:

    was decided in 2007. Was this brief filed over 2 years ago or has the case returned to the high court or are you talking about some other case?

  3. Sullivan June 2, 2009 at 19:02 #


    Yes, there was a decision. But this case is still ongoing in multiple dockets. There are entries in one docket allowing for amicus briefs to be filed. Those entries are from April, 2009.

    There is a petition for a writ of certiorari (judicial review) granted last December

  4. autismjabberwocky June 3, 2009 at 02:04 #

    Ah, now that makes sense – thanks.

  5. Judy Reed Lewicky June 4, 2009 at 15:55 #

    Excellent work, ASAN!

    My only question is – did the parents sign off on the IEP that didn’t include the OT services?

  6. AnneB June 4, 2009 at 22:04 #

    Yeah, the parents signed off. According to the district court’s decision, which you can read here (discussion of OT is on pages 10-14), that was one of the reasons that the court found that the failure to include OT goals was a technical or procedural violation of the IDEA, but not a substantive violation. The child had not yet been assessed by the OT to determine what his goals should be, and the court found that everyone had agreed to postpone the OT assessment for a month to give the child time to adjust to a new school environment. The judge said that, “given that Jacob was entering a completely new school setting and given the overall consensus that the one-month reassessment was in his best interest, the Court concludes that the lack of goals and objectives for occupational therapy only constitutes a procedural technical violation of the IDEA and not reversible error. As the Sixth Circuit stated, to say that such technical deviations render an IEP invalid ‘is to exalt form over substance.'”

    Re the multiple Supreme Court dockets for this case, the case is unusual procedurally. The trial level court found in favor of the school district in 2005. When the parents appealed, the appellate court held that they didn’t have standing to represent their child without an attorney, and that decision went up to the Supreme Court and was reversed (Supreme Court Docket No. 05-983). The case went back down to the Court of Appeals, which then upheld the 2005 judgment on its merits. The second appeals court decision, issued in October 2008, summarily affirms the trial court’s decision without discussion. The parents are seeking Supreme Court review (Supreme Court Docket Nos. 08-1089 and 08A563).


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