Another day in our modern Supreme Court on Tuesday, as the argument in A.J.T. v. Osseo Area Schools was consumed less by discussion of substantive legal questions and more by debate about whether and to what extent the parties may have sandbagged the justices by changing their positions during the course of briefing.
A.J.T. involves the treatment of schoolchildren with disabilities, and in particular the statutory obligation not to discriminate on the basis of a disability. Several lower courts have adopted a rule obligating students who allege discrimination to satisfy a higher standard than courts require in other contexts. The student in this case, known as A.J.T. before the court, lost under that view in the lower courts and wants the justices to reject that dual standard.
Arguing on behalf of A.J.T., Roman Martinez contended that the case is over, pointing to the school district’s new-found agreement that the standard should be the same in all contexts. Martinez told the justices that the school district’s shift of position should lead them to validate the unitary standard and send the case back to the lower court to select the appropriate standard.
The justices seemed quite receptive to that idea. So, their main questions of Martinez were getting him to concede that (as Justice Brett Kavanaugh put it) “it’ll still be open to the court on remand to decide which standard is appropriate …, correct?” There were quite a few questions probing what seemed to be semantic differences between A.J.T.’s position and the position of the federal government, which filed a brief supporting her, but there was hardly a word by any of the justices suggesting that the standard should depend on whether unequal treatment occurred in school as opposed to somewhere else.
The argument heated up when Lisa Blatt, representing the school district, accused Martinez and Nicole Reaves, who appeared for the government, of “lying” when they said Blatt had changed her position; she insisted she had never called for a different standard in the two contexts.
Justice Neil Gorsuch was incensed by Blatt’s tone, and he immediately interrupted her to ask: “You believe that Mr. Martinez and the Solicitor General are lying? Is that your accusation?” When Blatt responded “Yes, absolutely.” Gorsuch replied: “I think you should be more careful with your words, Ms. Blatt.” Not backing down, Blatt replied “Well, they should be more careful …”
Gorsuch allowed the argument to continue for several minutes, but he soon returned to the topic to say that he was “still troubled by your suggestion that your friends on the other side have lied …, and I’d ask you to reconsider that phrase. … People make mistakes. You can accuse people of being incorrect, but lying is another matter.”
What followed was the most heated exchange between a justice and an advocate that I’ve heard in my decade of experience at the court. Feeling himself interrupted, Gorsuch admonished Blatt: “If I might finish.” He then proceeded for several minutes to read long quotations from her filings in the case, which he regarded as tending to “suggest you [were] arguing for a unique rule” in the education context, as Martinez and Reaves had stated. After a protracted sequence of those readings, he ended by asking Blatt: “Then would you withdraw your accusation?” When she said: “I’ll withdraw it,” Gorsuch concluded: “Thank you. That’s it.”
The justices seemed to have no interest in adopting the higher standard for disability discrimination that Blatt suggested. Justice Amy Coney Barrett, for example, described it as “a pretty big sea change,” and asked “[w]hy should we do it when … this didn’t come up until their reply brief [and w]e don’t have other circuits that have adopted” the school district’s view? Similarly, Justice Ketanji Brown Jackson was all but incredulous at Blatt’s insistence that disability statutes do not require accommodation for people with disabilities.
I think we can expect a succinct opinion, sometime next month, sending this back to the lower court to rule on the correct standard.
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