IN THE SUPREME COURT OF THE STATE OF OKLAHOMA INDEPENDENT SCHOOL DISTRICT NO.

5 OF TULSA COUNTY, OKLAHOMA a/k/a JENKS PUBLIC SCHOOLS

et al.,

STSUPRriME C AT' OP OK/OURT 4 HOW

JUN 7 2012 MICH AEL. S. FlICHIE CLERK

Appellees,
VS.

Case No. 110694

RUSSELL SPRY, STEPHANIE SPRY,

et al.,

Appellants

Application to file an Amicus Brief: 12 O.S. Rule 1.12 Brief Statement of Amicus Curiae

Pursuant to 12 O.S. Rule 1.12(b)(1), I respectfully request all interested parties launch any objections within 10 days of the receipt of this brief explanation, so that I may participate in and file a full amicus curiae brief in the matters addressed below.

Nature and Extent of Applicant's Interest:

I am an attorney with a disability who has gone through public education, under the Individuals with Disabilities Education Act(hereinafter "IDEA"), 20 U.S.C. 1401 et seq., with an Individualized Education Plan (hereinafter "IEP"), as well as having an accommodation plan authorized by the Rehabilitation Act (hereinafter "504"), 29 U.S.C. 701 et seq., when I was mainstreamed after a year of testing from the Johnson School for the Mentally Retarded (sic) in Oklahoma. The nature of my interest is purely as an advocate for students with disabilities and their parents. The extent of my interest in this case is to assure that parents and students 1

with disabilities are not liable to suit by school districts when applying for a scholarship authorized by the Henry Scholarship Act for Students with Disabilities (hereinafter "Henry Act").

Facts and Question of Law Inadequately Presented by Litigants:

Is there a rational basis to treat students with disabilities who are protected under 504 versus IDEA differently? Yes, there is a rational basis to treat students covered under 504 and
IDEA differently because of the statutory distinctions, funding mechanisms, and

student/parental rights afforded under each of the respective Acts. The relevancy of this question informs the equal protection arguments advanced by both parties.

Appellees argue in their Opening Brief in Support of Plaintiff's Motion for Summary Judgment at pp. 19-20 that "The Act discriminates between similarly situated students. The Act authorizes 'students with disabilities' who are on an !EP under the IDEA to receive a scholarship, but it does not authorize 'students with disabilities' who are on accommodation plans under Section 504 of the Rehabilitation Act to receive a scholarship. There is no rational basis for discriminating between such similarly situated students."

Appellants offer in Defendant's Opposition to Plaintiffs' Motion for Summary Judgment at pp. 17-18 several hypothetical legislative intents for the bifurcation between students with disabilities under 504 and those covered under I.D.E.A.. Furthermore, Appellants argue that the "School Districts [ ] fail to meet jurisdictional requirements to raise such a claim because they have not identified any student on an accommodation plan who is an injured party."

Neither Appellees nor Appellants address the fundamental statutory distinctions of law between IDEA and 504, their respective funding mandates, and the student and parental rights under each Act.

Differences between 504 & IDEA:

Initially, while 504 is a Civil Rights Law, the IDEA is an Education Act. The offices responsible for enforcement of both Acts also differ, the former is enforced by the U.S. Department of Education, Office of Special Education, while the latter is enforced by the Office of Civil Rights. Much like the Americans with Disabilities Act (hereinafter "ADA"), 42 U.S.C. 12101 et seq., 504 was enacted to ensure that children with disabilities are not subject to discrimination by providing equal access to and participation in programs and services. Thus, students with disabilities under 504 should be entitled to the same education as their

nondisabled peers not their special education peers with an IEP. At the heart of this distinction
is that 504 merely provides children with disabilities access to classrooms and the same learning experiences as their nondisabled peers, whereas IDEA expressly confers an

individualized educational benefit. Thus, while all students with IEPs authorized under IDEA are
simultaneously covered under 504, the inverse is not true. Therefore, students covered by IDEA are not similarly situated as the Appellees suggest.

Next, both Acts define "disability" differently. Under 504 an individual is considered disabled if s/he "has a physical or mental impairment which substantially limits one or more of such person's major life activities; has a record of such impairment; or is regarded as having such an impairment." On the other hand, under IDEA a student is considered disabled if s/he

has "mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities and who, by reason thereof, needs special education and related services." Given the denotative distinctions between what is and is not considered a disability under their respective Acts, the students are not similarly situated. Examples of students who may be protected by 504 but who are not eligible for services under IDEA include, among others, students with communicable diseases, students with temporary disabilities, students with asthma, etc. Indeed, both Acts define what an "appropriate" education is for a student with a disability differently. While IDEA defines appropriate to include an individualized educational benefit to students with disabilities, 504 gives meaning to "appropriate" only in comparison to the education of nondisabled students.

A Matter of Public Funding:

Because the instant controversy turns on whether dollars invested in the education of students with disabilities may be redirected by parental choice into private schools, it is important to address the funding mandates of each Act. 504 does not offer federal financial assistance to public schools to meet the accommodation needs of students covered by a 504 Accommodation Plan, whereas IDEA relies on federal funding disbursed to state and local education agencies. Indeed, IDEA funds cannot be used to serve students eligible only under 504. These funding mandates are consistent with the Oklahoma State Legislature's express prohibition against the use of the scholarship for students only on a 504 Accommodation Plan.

Moreover, jurisprudence suggests that state and local education agencies do not have to create an individualized accommodation for a student covered only by a 504 Accommodation Plan.

Next, IDEA allocates that costs of accommodations, including evaluations leading to the determination of eligibility for an IEP, are the sole responsibility of state and local education agencies. It should be noted that the Henry Act mandates that any student who applies for the scholarship had to have been served by an IEP in the previous year of instruction, therefore, the state and local education agencies are not losing any funding for this evaluation because the costs would have borne the year previously. IDEA also requires state and local education agencies pay for an independent evaluation if the parents disagree with the first evaluation, 504 does not.

Student and Parental Rights

Finally, 504 and IDEA affords different rights, benefits, and responsibilities to both students with disabilities and their parents. IDEA requires that a student with a disability be comprehensively evaluated by a multidisciplinary team and requires written parental consent. 504 only requires the evaluation from knowledgeable individuals and does not require written consent of parents, merely notification. IDEA does not require reevaluation before a significant change in placement, whereas 504 does require a reevaluation before a significant change in placement of the student with a disability. Both of these factors are consistent with the Oklahoma State Legislature's bifurcation of eligible students covered under a 504 Accommodation Plan versus and IDEA IEP.

It is not contested that IDEA due process protections for students with disabilities and their parents do not apply at private schools. However, the Henry Act allows parents the choice to move their child with a disability to another private school and/or back to public school, if the initial private school fails to meet the parents' expectations for their child's education. Finally, while IDEA due process rights don't apply at private schools, the ADA does apply. Therefore, any private school seeking participation in the Henry Scholarship Act for Students with Disabilities must comply fully with all pertinent provisions of the ADA.

For the above reasons, I respectfully submit this brief explanation so that I may file an Amicus Curiae brief in favor of the Appellant parents and students with disabilities, insofar as the Henry Act does not violate equal protection between students covered under 504 and those under IDEA.

Respectfully Submitted,

Tai Chan Du, OBA #30784 3324 North Classen Boulevard Oklahoma City, OK 73118 (405) 602-0409 (405) 212-4464 (fax) taidulaw@gmail.com