Nessel cites Loper Bright ruling in Civil Rights case

The office of Michigan Attorney General Dana Nessel cited a surprising precedent in a recent legal filing to the U.S. Department of Education: this year’s Supreme Court decision in the case Loper Bright Enterprises v. Raimondo, which struck down judicial deference to administrative agencies.

“Loper casts a long shadow on all of the precedents cited by [the U.S. Department of Education’s Office of Civil Rights] in its brief and removes any deference this Tribunal should afford to OCR’s interpretation of Section 504,” the attorney general’s Health, Education & Family Services Division wrote in an Aug. 30 reply brief.

The federal agency accuses Michigan’s Department of Education of denying specialized services to students with visual, audible, and other disabilities during the COVID lockdown, an action that caused “exacerbated and contributed to the harm of students with disabilities,” according to the feds. 

Michigan’s Department of Education is seeking dismissal of the federal claims from an administrative law judge. The Loper Bright citation by the attorney general’s office is notable as that ruling, which overturned a precedent requiring courts to defer to administrative agencies on a wide range of questions, provoked widespread condemnation from national Democrats. 

According to the Office of Civil Rights, the Michigan Department of Education violated Section 504 of the Rehabilitation Act of 1973, which protects individuals with disabilities from discrimination.

The federal agency said multiple parents of Michigan children with disabilities told the MDE that their students were being denied services they should have received under federal law.

One parent told the department by email that in spring 2020 the school district was “not able to provide any speech services other than emailed handouts.” The district “offer[ed] nothing over the summer so that kids with (individualized education programs)‚ will not obtain specialized help for about 6 months,” the parent said.

School officials were “saying they are unable to accommodate (my daughter’s individualized education program) if she is in virtual learning,” another parent told the state. “This is all against what she has in her IEP, and the school is saying they can’t accommodate the IEP,” the parent continued.

The federal complaint seeks compensatory services to repair educational deficits for about 207,000 children with disabilities, said Michigan special education advocate Marcie Lipsitt.

Lipsitt has three open complaints filed with federal officials against the state education department, filed on behalf of disabled children.

“Some of them have feeding tubes, are nonverbal, have vision and hearing impairments, have mobility impairments, and they couldn’t access a computer during that school closure,” Lipsitt said in a phone interview with Michigan Capitol Confidential.

Federal and state officials disagree on several claims. The state education department argued in its Aug. 30 motion that the federal civil rights agency lacks jurisdiction to enforce the Individuals with Disabilities Education Act. It cannot, the state continued, hold Michigan liable for actions taken by local school districts.

The state education agency denied any wrongdoing, claiming that federal officials engaged in “legal gymnastics” in the complaint.

The state education agency referred CapCon to its court filings when asked for a comment.

“Due to the ongoing proceeding, the Michigan Department of Education has nothing more to add to the detailed documents that we filed relative to OCR’s allegations,” said Bob Wheaton, who directs the department’s Office of Public and Governmental Affairs. “We remain strongly committed to providing equal access to educational opportunities to all students in Michigan – including students with disabilities.”

Advocacy groups have raised concerns with the state education department since 2020 and have received no further communication, Heather Eckner, director of statewide education for the Autism Alliance of Michigan, told CapCon in an email.

“The response of the Michigan Department of Education to the OCR investigation findings is very concerning. We've really not seen situations where a state education agency (SEA) has so willingly and so defiantly flouted the enforcement role of OCR in ensuring the rights of students with disabilities are protected,” Eckner wrote.

Michigan’s outcomes for students with disabilities are dismally poor and among the worst nationwide when accounting for on-time graduation rates and other factors, Eckner wrote.

“There is a pattern and practice of under-serving students with disabilities in Michigan in which the MDE is complicit” because of its role in supervising the enforcement of federal education law, Eckner wrote.