Disabled Maple Grove teen takes school district discrimination case to U.S. Supreme Court

A Maple Grove family’s nine-year fight for a later school day and other educational services for their daughter will head to the U.S Supreme Court next month in a case that could clear the way for more children with disabilities to prove discrimination.

At issue is whether families alleging discrimination against children with disabilities must prove that public school officials acted with “bad faith or gross misjudgment.” It’s a high standard that only courts in the federal Eighth Circuit — and four other of the nation’s 12 court circuits require.

The battle, Aaron Tharpe said, has become about much more than doing right by his daughter Ava, who has seizures more often in the morning and had requested a later school day schedule.

“We don’t want anyone else in Minnesota to have to go through what we’ve been through,” Tharpe said in the family’s first media interview. “And I don’t want any other families across the country to have to go through this.”

Kay Villella, a spokeswoman for Osseo Area Schools, said in an email she could not provide private data about a student without parents’ permission.

Generally, she said, “in the rare situation where a court or hearing officer has ordered the school district to do something, it has complied in good faith,” she wrote. “The district educates almost 2,900 students with special needs. ... The school district is in good standing with [the Minnesota Department of Education] and it takes its obligations to students with special needs very seriously.”

In 2015, Tharpe, his wife, Gina, and their 10-year-old daughter, Ava, moved to Minnesota from Kentucky for Aaron’s work. After exploring several suburban school districts, Aaron Tharpe said the family decided to enroll Ava in Osseo Area Schools after officials there said they would meet Ava’s educational needs.

Ava has a rare form of epilepsy called Lennox-Gastaut syndrome and has seizures throughout the day, although they’re much more frequent in the morning. In Kentucky, school officials agreed to give her a noon-6 p.m. school day.

In phone calls, emails and in-person meetings, Aaron Tharpe said Osseo officials repeatedly said they would also follow that plan. Aaron Tharpe said the family moved to Maple Grove based on those assurances.

On the day before Ava was to enroll in October 2015, “the district told us they would not adopt the Kentucky six-hour school day,” Aaron Tharpe said.

Instead, the Tharpes said, their daughter received a little more than four hours of instruction per day. Sometimes, they said, the district tried to do even less.

Years of meetings, conferences, complaints, litigation and appeals followed. Aaron and Gina Tharpe said their daughter fell further behind. The Tharpes sued the school district under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act seeking to secure her right to a full school day and compensatory damages.

While an administrative law judge and a District Court have ruled in favor of the Tharpes' efforts to secure educational accommodations for their daughter, the Eighth Circuit Court of Appeals in March 2024 affirmed the dismissal of their discrimination claims.

Since its 1982 ruling in Monahan v. Nebraska set the precedent, the Eighth Circuit and several other circuit courts have required children with disabilities who claim discrimination to prove schools intentionally discriminated against them. The appeals court said the Tharpes didn’t meet the bad faith and gross misjudgment standard.

Roman Martinez of Latham & Watkins is arguing the case before the Supreme Court on the Tharpes’ behalf in late April. In the most recent brief filed to the court, he argued the same standards to show discrimination should apply to everyone.

“It is inconceivable that when Congress enacted laws to combat disability discrimination, it silently singled out school-age children — perhaps the most vulnerable subset of people with disabilities — for disfavored treatment,“ Martinez wrote.

Dan Stewart, an adjunct law professor at the University of St. Thomas and an attorney with the National Disability Rights Network, wrote a brief in support of the Tharpes' case.

It makes no sense that the Eighth Circuit has made it harder for schoolchildren with disabilities to prove discrimination, he said. If the Supreme Court lowers the bar for special education discrimination claims, it will “fundamentally change how families seek remedies.”

Ever since schools have been required to provide services for students who need special education, there has been tension between parents and school districts.

“The drawback is there is insufficient [federal] funding, so the burden falls on teachers and schools,” said Peter Larsen, an assistant professor at Mitchell Hamline School of Law who is experienced with disability rights cases. Larsen has no connection with the Tharpe case.

If this case leads to families alleging discrimination being able to fight for more services, Larsen said, schools will need to do more for thousands of students.

Gina Tharpe has watched her daughter grow from a 10-year-old elementary student to a 19-year-old junior at Maple Grove High School — and lose ground. She blames years of lost instruction time for Ava’s regression, including in communication.

“It’s hard to see our daughter be so frustrated at not being able to communicate,” she said.

Aaron Tharpe said the fight has “been hard on Ava. It takes her a long time to gain skills, and she’s lost a lot of skills since we moved to Minnesota.”

While it would have been “much cheaper and easier for us” to find ways outside court to get his daughter the help she needs, he said the fight is to lower barriers for other families.

“If that’s Ava’s legacy, then we will be very proud,” Aaron Tharpe said. “And this hard journey will be worth it.”