When You're So Bad At Your Job, You Make the Supreme Court Look Good By Comparison

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:02 Thomas: You're arguing against the side that's advocating for a disabled kid, and you're like, well, he's f***s over here!

0:00:18 Jenessa: This takes forever to go through the courts.

0:00:19 Thomas: Yeah, of course, right, yeah. When it's not granting the president godlike immunity, then it does take a while, yeah Baseline compensation for going through a legal hell should be a billion dollars, and it should come directly from Elon Musk. That's my new system. Hello and welcome to Opening Arguments. This is episode 1171. I'm your host Thomas Smith, back from, crazily enough, a bit of a vacation thanks so much for folks being really nice about that appreciate it did get some nice time off and I feel a little refreshed today's episode is extra fun we get to talk about the Supreme Court and we get to talking about things going badly at the Supreme court but it's not because of them ruining our lives it's actually because of something really just crazy that happened someone put on an absolute clinic of how not to argue in front of the Supreme Courts and it was I don't even I'm just, you need to hear it yourselves. I'm not going to spoil anything. It was wow. It was just wow. It's also a case that has to do with disability rights. And as such, I've got my favorite disability rights activist and lawyer and PhD and all around awesome person, Dr. Jenessa Seymour, back on the show to break down what went wrong in the oral arguments of AJT versus Osseo area schools. Not sure if that's how you pronounce that, but that's, you know, that's what I'm going to say. And this is our opening argument. So of course, we'll also get a breakdown of the case and then we'll get to the fun and crazy stuff that happened at oral arguments I'm really excited for this one it's a lot of fun and I hope you enjoy so I'll take a break which you can avoid if you go to patreon.com slash law you don't have to hear the ads you have to be one of the brilliant folks that supports this show and makes it happen all right after this break we'll be on with Jenessa and

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0:02:10 Thomas: Joining me today is not matt is uh Jenessa who you were on somewhat recently right my okay my thought my impulse was that and I was like wait was that two months ago? I don't know.

0:02:18 Jenessa: A couple weeks ago? What is time, even?

0:02:25 Thomas: Yeah. But anyway, Jenessa, you may remember from relatively recently talking about, well, all kinds of stuff. It was a really fun episode. I hope everyone listened to it, but getting some more of your background and how you got to be where you are was really fun. So folks should check that out if they haven't. So happy to have you today. How are you doing? Yeah, sure. It's freezing? That's awesome. That's the best news I've ever heard. We're already approaching 100 degree weather here. It sucks.

0:02:46 Jenessa: Hanging in there, it's freezing and we're living under fascism, but you know, whatever. Oh, no,

0:02:59 Thomas: I hate it. Can't stand it. Oh, it's the worst. Oh that's the best. What is wrong? Okay, we need to trade. We need to trade.

0:03:01 Jenessa: I'm so depressed. It's been 50 for like a week. No, I mean, hell, we need to trade. I would take a hundred over this.

0:03:12 Thomas: Oh my god. You shut your mouth. You come over here. You came over here and say that to my shining sun. I was going to say to my sun but then that sounded like I was talking You come over here and tell that to my melted car dashboard that you want, that you like the 100 degree weather. It's the worst. 50 is, that's not even that cold. That's so nice. I get it if it was like rainy, sleet, something, garbage, snow, whatever, that is rough. But like, there is nothing better. The ideal temperature for me is literally like maybe 60 at most. At most. Because I want to be able to go outside, walk around, maybe even do some activity and not sweat my face off. And for that to happen, it's got to be like 60. It's the best.

0:03:29 Jenessa: I miss it. I miss it so much. No, I... Oh.

0:03:55 Jenessa: No, see, I spent years in the Great White North, and it would be freezing cold. Like, the water on your eyes would start to freeze over if you didn't blink fast enough. So now I am like, there's no. Yeah, pretty much. You got to just, you know, shut that shit down.

0:04:07 Thomas: Is that why you all got rid of your emotions up there? What are we talking about today?

0:04:18 Jenessa: Today, we have a disability rights case that was probably going to just be interesting to a very niche group of lawyers who handle damages in school discrimination cases. And then it turned out to be just some grade A drama at the Supreme Court. So I thought that might appeal to a broader audience.

0:04:42 Thomas: As always, once I know we're recording something, I saved it because I've heard this is quite the thing. So I haven't seen it. I'm excited. But you were, boy, you were lighting up our inbox with the stuff about this. I'm really excited to behold what in the world happened. So I guess we'd better talk a little bit about the case, maybe give us some more detail on that.

0:05:03 Thomas: And I think we're going to play some clips and get into it. But it's nice for the shit show to not be the court itself. The absolute horseshit is for once not the justices themselves.

0:05:13 Jenessa: Yeah yeah I am relatively confident that the outcome will be not a super big deal. We're not going to dismantle all of disability rights today. So that's, you know, pretty good.

0:05:26 Thomas: Not today, anyway. Well, what is this case? OK, let me I'll let you get into It

0:05:31 Jenessa: Yeah, yeah, yeah. So we've got AJT versus Osseo Schools. We have initials there because this is a minor child. You will hear them use her first name through the arguments. So I think she's not really 100% anonymous here. But in general, you do that with children who are plaintiffs or defendants, I guess. She moves to a new school district. They don't offer the same accommodations she was being granted at her past school district she has epilepsy.

0:05:50 Thomas: Doesn't It doesn't feel like something that you can just like not offer the things you need for. Yeah. It's not like ADHD where you and I suffered through it somehow and we're like, all right, well, I'll just suck at a lot of stuff.

0:06:02 Jenessa: Uh yeah you definitely qualify there so yeah just just muscle through and cry later.

0:06:18 Thomas: Yeah, I feel like muscle through your epilepsy is not really

0:06:22 Jenessa: No not generally. She will obviously qualify for the ADA and section 504 of the Rehabilitation Act because she has a physical or mental impairment affecting a major life activity. And that activity is going to affect her at school specifically. So she's going to get accommodations at school, but she'll also qualify for the Individuals with Disabilities Education Act or the IDEA. For the IDEA, they have a specific list of 13 disabilities. I don't think it literally says epilepsy, but it's some sort sort of like developmental thing that epilepsy

0:06:22 Thomas: How it should work. Yeah?

0:06:59 Jenessa: Fits under. ADA and 504, that'll get you things like, they call it a 504 plan. It'll get your like breaks or extra time on a test or something like that. The IDEA is how you're gonna get an IEP, your special education, that kind of thing.

0:07:14 Thomas: Very important.

0:07:16 Jenessa: Yeah, absolutely. So she qualifies for all of these, nobody's denying that, but it qualifies you for reasonable accommodations. What's reasonable?

0:07:26 Thomas: Hmm.

0:07:26 Jenessa: At her past school, because she has more seizures in the morning, they just shifted her later in the day.

0:07:33 Thomas: Oh, interesting.

0:07:34 Jenessa: And then at the new school, they were like, well, we can't do that. We can't have teachers stay late. So they fought this for a very long time and her parents had to hire extra tutors. She fell behind on a lot of like really basic skills I'm talking like going to the bathroom by yourself she was working on getting better at that and then regressed in those skills so she's pretty much like winning the case it's really just going to come down to the damages part of it so the injunction part where you say they're not giving me the accommodations I need need, give me the accommodations. All you need to show is you qualify under these statutes and the accommodation is reasonable. And she meets all of that. So, okay, great. Give her the accommodations in the meanwhile, it's been years. Yeah.

0:08:26 Jenessa: This takes forever to go through the courts.

0:08:27 Thomas: Yeah of course, right? Yeah. When it's not granting the president godlike immunity then it does take a while yeah

0:08:33 Jenessa: Yeah, yeah. There was just something the other day where Roberts was like, well, Well, you know, I mean, we take a long time, but, you know, sometimes we go fast.

0:08:34 Thomas: Yeah we go pretty fast yeah that was the god yeah that that was about that was that was the uh this the birthright citizenship where you know we're going to be dismantling this very injunction system thing but yeah so very briefly how did we get all the way here like what which direction did the lower courts go and and

0:08:45 Jenessa: Tick tock. Yeah, right. Yeah. So she gets her injunction. No problem. Everybody agrees what she's asking for is reasonable. That's like demonstrated by the fact that other schools were doing it for years and it fits all the other definitions of what's reasonable and yada yada. But the IDEA will not entitle you to compensatory damages. Images. The ADA and Section 504, you can. And what they're saying is, first of all, the price of things, we can put that on a piece of paper, you know, the tutor we hired and things like that. But also your classic pain and suffering, like she lost basic life skills that would not have happened if she had the accommodations you should have given her.

0:09:02 Thomas: When in baseline compensation for going through a legal hell should be a billion dollars and it should come directly from elon musk that's my new

0:09:48 Jenessa: This is a child, like, come on, it's hell. And these parents have been fighting this for so long and it's really difficult. So this is the problem we're going to run into. What is the standard for whether or not you qualify to get damages? The injunction is easy.

0:09:48 Thomas: System yeah it's hell absolute

0:10:06 Jenessa: There's a circuit split. Ta -da, Supreme Court. So if it were anything other than a school age child who got discriminated against in school, The rule would be you have to find for all of this intentional discrimination to get damages. And the standard would be deliberate indifference. So that's something to the effect of, and you'll hear the U .S. Solicitor General argue this, that you knew or had reason to know there was a substantial chance this person was entitled to this. And you acted with indifference towards that. You were like, yeah, there's a decent chance we're going to lose this case and we're gonna be obligated to give you these accommodations,

0:10:05 Thomas: Hell yeah okay okay yeah

0:10:52 Jenessa: But we'll, we'll wait four years through the court system. Yeah, and let you regress in all your life skills. Yeah.

0:10:54 Thomas: See you in court you know yeah exactly literal child who needs this right now yeah okay no that's good I mean this should that it seems like this is something that we all should should want the biggest protections on. I mean, but for the grace of God, as they say, could be any of us, could be our children. It is any of Us, and it is our children,

0:11:13 Jenessa: Yeah. So this would be the standard for employment discrimination. This would be the standard if you were a college student who didn't get accommodations. If you are a school age child, for some reason, some circuits have raised the standard to bad faith or gross misconduct, which there's a whole, yeah, you would think.

0:11:33 Thomas: Why would we want, wouldn't it, shouldn't this be the opposite? Like, shouldn't it be like, well, if you're gonna be shitty to a child, that's worse. You see how that's worst, right?

0:11:42 Jenessa: Yeah. And like you would think public schools of all people should be required you're the government you know the law you have lawyers like if you don't have one the state will provide you one because you're the state like figure it out yeah it's been the exact opposite where in many circuits school -aged children are being held to a higher standard than college adults with the exact same didn't get granted an accommodation

0:12:04 Thomas: Huh, that doesn't make sense. It strikes me that the accommodations are probably, you know, not to compete or rank or anything, but probably more important the younger you are, I would imagine, like just developmentally.

0:12:15 Jenessa: In many cases I would agree

0:12:19 Thomas: And the fact that, like, you're more vulnerable, it's more shitty if someone is not giving you what you need. I feel like every indication, just if you ask as a just reasonable person here, everything would go the other way to me. I would think it should be all more damages and easier to get damages if you are a child. This is not making sense to me, I'll thank God. Because if Alito agrees with me, then I'm worried, so I'm glad, that's a perfect, I'm

0:12:34 Jenessa: Yeah yeah yeah pretty much and everybody Everybody but Alito is going to agree with you. Yeah, yeah,

0:12:46 Thomas: A little worried that Thomas and, you know, some of the other justices agree with me. But that's okay, I will take it. It.

0:12:52 Jenessa: Yeah. I think at some point we, you know, save it for a later like SIO. There's some real Alito gems in here of terrible takes on disability that reveal attitudes a lot of people hold. But we'll kind of skip that for today because it's a lot.

0:13:10 Thomas: He is really off his leash these days. He's just like, doesn't, he was never great.

0:13:12 Jenessa: He's the worst. Oh, my God. He's so bad. No.

0:13:17 Thomas: He was never Great. Boy, does he not care now about offending anyone. Yeah. Wow.

0:13:21 Jenessa: I just think to myself, what's the worst, evilest thing he could do? And that's what he'll do. Like that just, he's terrible.

0:13:29 Thomas: All right. We got to stay on track. Okay.

0:13:31 Jenessa: Yes. Focus, focus. So basically everybody's going to pretty much agree on this, that this doesn't make sense. You're going to hear the justices saying that the attorney for the child and the child's parents is going to say, hey, whatever the standard is, you should throw it back to the lower courts. Primarily because not only does this not make sense as we're discussing, but also the attorney for the school seems to have mid -briefing changed their mind about what their argument's going to be.

0:14:04 Jenessa: And you kind of can't do that. We'll see the U .S. Solicitor General has intervened. There's three attorneys here. The U .F. Solicitor General is going to say, we specifically want to advocate for that deliberate indifference standard. That should be the standard for everybody, everywhere. Whereas the plaintiff's attorney is like, I don't care what standard it is, just not this heightened standard, send it back, let the lower court do their job. The school's attorney, they were originally saying, defending this discrepancy as like no it's fine because they would win they did win on the higher standard that they weren't total jerks to the kid that it wasn't like intentional malicious in that way but it seems or at least there is an impression that she's going to argue is not true that now they have switched to saying actually everyone in all contexts should be held to bad faith or gross misconduct. Even for the injunction, I think she says at one point.

0:15:08 Thomas: Wow. I don't get it.

0:15:09 Jenessa: Yeah, it's gonna get weird. That's what the whole thing will stop being an argument about disability or accommodations or damages. And it's just all about whether or not this woman changed her mind halfway through the briefing for like an hour. Yeah. Like pretty much the whole time.

0:15:27 Thomas: Goes really off the rails. OK, what

0:15:30 Jenessa: Kavanaugh will talk about it for for like a hot minute, the please define these terms for me. And Sotomayor is just, you can hear her writing her retirement letter right now. She's just like, where are you guys even getting these standards from? It's not in the law. This is all made up. She just going home. But otherwise, it's pretty much just all about what happened. Why are we here? I think it's worth listening to for any young attorneys in particular, because you'll get to hear what like, yeah, yeah. Snark you can get away with and the stuff you cannot get away with.

0:15:58 Thomas: Not to do? Yeah. And additionally, we already know that if you're conservative and it's a case where it lines up in the traditional 6 -3 fashion, you can get away with anything against the liberal justices. I mean, you Can be as disrespectful as you want. Pretty much. There is the double standard there. But but this seems like a less polarized case, would you say?

0:16:21 Jenessa: Yeah. Yes. Yeah, disability tends to cross party lines. It tends to have, again, set aside Alito because he's the worst. Everybody else tends to be the worst because he has have at least some understanding of, like, that could be me tomorrow. So, yeah, let's be a little reasonable about what accommodations look like. With that, if you want to start at 37 seconds, we'll hear the attorney for the parents and the child.

0:16:51 Clip: The district wants to preserve its victory under a new theory it invented after dropping the indefensible, two-tiered approach it defended below. Now, they say that the statutes apply a bad faith or gross misjudgment test to all plaintiffs, not just school children protected by the IDEA. That's exactly the opposite of what they told you at the search stage, where they said that no bad faith or intent is required outside the IDEa context. Context. The District's new theory violates the text, history, and purpose of both statutes. It contradicts decades of regulations. It defies at least five precedents of this Court and decisions from virtually every circuit. It would also revolutionize disability law, stripping protections from vulnerable victims and gutting the reasonable accommodations needed for equal opportunity. If you address this new argument, you should reject it out of hand but you shouldn't address it because it's so clearly procedurally barred many times over whether you look at this through the lens of judicial estoppel or waiver or rules 15 and 24 one thing is clear the district can't win this case based on a radical new theory that goes beyond ava's question presented and directly contradicts what they told the lower courts and this court at the search stage instead you should follow regular order and procedure you You should answer the limited question presented, and you should vacate the decision below.

0:18:18 Jenessa: So there's our opening and you can hear essentially, I don't know if I'd call it an accusation, but the statement about the argument has changed and the rules, the procedural rules about why you're not allowed to do that. Just bring up brand new arguments out of nowhere. In other places you'll hear him say flip -flopping so I don't know it's not like the nastiest thing in the world I would say also that um

0:18:44 Thomas: Yeah. Also, it's not like an election, so it's kind of a weird. So let me ask you, though, knowing nothing and knowing how just awful the court is these days, I don't necessarily know just listening to this who to trust. Is he right? Is he right that they did this?

0:18:56 Jenessa: I would agree having listened to the whole thing and I think you will hear the the justices are going to make the argument for him by the end of this um yeah you'll Hear It by the End of It I

0:19:09 Thomas: Okay. Yeah, well, then, yeah, maybe that question doesn't matter. Sure. And

0:19:14 Jenessa: Think you'll also get it from the solicitor general General in their opening as well. It starts right around 2340.

0:19:21 Thomas: You're telling me this is not the Solicitor General that I hate. I don' t know. Who? Yeah. Okay. Okay. Yeah. Wow.

0:19:25 Jenessa: It is not, I don't know, an Assistant Solicitor General?

0:19:27 Clip: Al makes clear that Title II and Section 504 rights are not restricted or limited in the education context. Respondents no longer dispute these points. Instead, they ask this Court to adopt a breathtakingly broad rule and hold that a plaintiff cannot bring a Title II or Section 505 claim in any context without proving intent to discriminate. No Court of Appeals has ever adopted that rule, which would entirely eliminate all Title II and Section 504 reasonable accommodation claims. This Court should reject Respondent's attempt to belatedly insert such wide-ranging issues into this case and instead merely hold that students are not required to satisfy heightened intent standards in the school context. And Respondents' arguments are wrong on the merits in any event.

0:20:15 Thomas: So even the government, I know, you know, that explains why that asshole isn't the one doing this. This is like, sounds like they're doing a good thing. The government. So that guy's like, I'm out. I only argue the worst bullshit. What's that guy? His name again? I can't.

0:20:22 Jenessa: Yeah. Yeah. I don t know.

0:20:29 Thomas: Uh, okay. You should know you're, you're you're the expert. I don't know.

0:20:33 Jenessa: No, I d want to know. I want to forget these people.

0:20:38 Thomas: I had to look him up. John Sauer. God, I can'T stand that guy. But yeah, he was like, Oh, we're doing doing a good thing now I'm out vacation I called it I got COVID sick and then this person that's just my fan theory yeah

0:20:49 Jenessa: So that's the Soliciter General or Assistant Solicitor, somebody for for the US government, making the same point. So that's

0:20:53 Thomas: Assistant to the regional solicitors all right

0:21:01 Jenessa: Probably a very familiar tone to everybody that's the code speak for I am giving an opening statement. The opening statement for the school's attorney, it starts at 4520. If we want to listen to her opening statement, or we can just jump into to the defensiveness yeah

0:21:18 Thomas: Boy yeah this is let's listen I'm

0:21:24 Clip: Mr. Chief Justice, it may please the Court. This court should affirm Monaghan. Bare IDEA violations do not support liability under Section 504 or the ADA. Instead, the defendant must have acted with discriminatory intent. Monaghan correctly described that intent as bad faith, which is the longstanding term for actions done for an improper reason, here disability. 504 and Title II require discrimination by reason of disability. This Court has held that the nearly identical text in Title VI requires intent to discriminate. Petitioner acknowledges that because the law here expressly incorporates Title VI rights and remedies, discriminatory intent must be shown to get damages. But petitioner departs from that intent requirement for liability and injunctions. When Congress wanted intent-free liability, it said so expressly. In ADAs Title I and III, Congress spelled out reasonable accommodations and intent-free claims and barred damages without intent for employers and altogether for hotels and hot dog stands.

0:22:29 Clip: Congress did not plausibly disfavor states and localities in Title II. This Court should decide the correct standard. The petition ends with, quote, What standard should apply under the ADA and Rehab Act is a pure question of law. It should be resolved in this case. And reversing Monaghan would expose 46,000 public schools to liability when for 40 years they have trained teachers, allocated budgets, and obtained insurance all in reliance on Monaghand. Every good faith disagreement would risk liability or even the nuclear option, the loss of federal funding, which is over $100 billion. The district cares deeply about Ava and gave her more service than any other student, even before this litigation started. Started. Such good faith efforts should not support discrimination liability. I welcome questions. Is this the same argument that you made below? Yes. So let me take you through, again, I had an out-of-body experience listening to what we argued. Monaghan is required by the

0:22:28 Thomas: Curious what I like that Thomas just gets into

0:23:32 Jenessa: Yeah so you've got a pretty calm opening and then we're right into yes I'm having an out -of -body experience and this was right when everybody I knew who was listening was like what is happening today

0:23:46 Thomas: It yeah I do like that thomas you know is like, okay, so is this, basically everyone's been saying you came up with this, you know, on the spot the other day and it shouldn't count. And so I like that he's just that relative that's like, did you get a divorce? You know, like right, just at the dinner table. I do, you know, at least he's good for that.

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0:24:06 Jenessa: Yeah ja ja

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0:27:31 Ad: [Ad break 2 — ad music]

0:27:31 Jenessa: Ja so we'll hear jackson pull my favorite move ever she likes to do the I'm just kind of confused because and she's not confused you're an idiot so that starts at 49 10 is where things start to get really wild

0:27:45 Thomas: Oh, so we don't want to hear more of that answer or?

0:27:47 Jenessa: You can if you want to just say yeah yeah all

0:27:48 Thomas: Yeah, let's hear this out -of -body experience, I think.

0:27:52 Clip: Text. On page 26 of the brief in opposition, we said Monagham is required bei the text. We quoted the text and we said it requires discrimination intent. We cited Title VI because this statute expressly incorporates the rights and remedies of Title VI's intent was required. We cited Sandoval, which is your seminal case under Title VI, which holds the nearly identical language requires discriminatory intent. Now, to be sure, page 27's ongoing and the hearing petition and the red brief still argues, from the top of the mountain, that this standard makes particularly good sense in the school context because the other side in their complaint, this goes directly to Justice Alito's question on paragraphs 118 and 133, say just because you violate the IDA, that is ipso facto a violation of the ADA and Rehabilitation Act. So we've always said that you owe deference to schools, and this standard makes sense. And I can talk about how Monaghan arrived. Monaghan makes complete sense. It's a caricature and not an accurate description of that case. It starts with the language of the statute and said when you have a mere violation of the Requirement to provide a free and appropriate education. That is not necessarily Discrimination quote the statute solely by reason of discrimination Something else was required now the court chose bad faith for a reason bad faith by definition means an improper purpose The only purpose that is prohibited by this statute is is disability. No one, no case, no site has ever said that's animus. Again, that's made up, hence out-of-body experience. Ms. Flatt, I'm over here trying to really figure out what you argued

0:29:35 Clip: Below. Sure. And the many, many times that I understood you to be pegging your argument to to the unique elements of this particular environment. And so I think it might be a little unfair to suggest that what you were always just saying is that Monaghan is based on the text of the statute. It seems to me that you were very clearly saying, and you're right up into the opposition to rehearing and to the bio below, that there was something about the IDEA context and schools that gave Monaghan its value. Both of those statements are correct. It is not inconsistent to say Monaghen is required by the text, and this makes great policy sense in the school context, which is also what Judge Arnold said in the Eighth Circuit. The disconnect is there's this, I don't know, it's a lie to say that we never defended Monaghet by the texts.

0:30:41 Thomas: Got to pause. All right. Translate into normal person. What is the Monaghan? How is she saying? Like, and

0:30:47 Jenessa: Yeah monahan is basically the thing we're trying to overturn here is the decision in the eighth circuit that they keep coming back to that says bad faith or gross misconduct is the requirement for school

0:31:02 Thomas: That's the one that we want.

0:31:05 Jenessa: -aged children that's the one that the the school wants. And yeah.

0:31:07 Thomas: The school wants. Oh, bad fit. Yeah. Yeah, gross misconduct. Okay, yeah, yeah.

0:31:10 Jenessa: Yeah. So essentially what she's trying to thread a needle here of like, no, when I said we're defending Monaghan, what I said is that makes great policy sense. And that's not contradictory to a belief that it would make great policy cents for employment and for college students and for everybody. So I wasn't, I totally was making this argument the whole time. Yeah.

0:31:35 Thomas: Oh so she and and I don't know what it's hard because we're already hearing like distortions of a thing and I don t know the original thing. So what she actually did was what agree that the Monaghan standard should apply or something in the lower court or what?

0:31:50 Jenessa: So initially the plaintiff was saying the Monaghan standard, bad faith or gross misconduct, is obviously too high of a standard. It's not fair. Everywhere else in any other context and in other circuits, she would have been held to deliberate indifference. And the school was saying, no, it's fine. Monagham is good. Hold them to gross misconduct or bad faith. Faith and now all of a sudden it's, hey, actually in the employment context, you should hold people to bad faith. In getting an injunction, you Should Hold People to Bad Faith. And everybody's like, whoa, whoa, Whoa, whoa. That's not what you said. So she's trying to thread the needle and say, defending Monaghan that says bad faith is the requirement for school -aged children doesn't mean I thought it was only for school aged children. It means I thought bad faith was was a great standard and well you're not wrong jackson is also confused the critical part right before he stopped is when she said that they were lying when they said she did it wrong that's where it's gonna get heated

0:32:42 Thomas: But why would she be? What? I don don't, I don't understand. This is so confusing. Yeah. Yeah,

0:33:00 Clip: I don't think the argument is that you've never defended it by the text. If I could just get this out, please. What is a lying and accurate is that we ever said in any context that this court should take the same language and define it differently depending on context. They adding words to our mouth. We never said you should have a double regime. What the school district has said, which is what Monaghan said. You believe that Mr. Martinez and the Solicitor General are lying? In oral argument, yes, absolutely. I think they should be more careful with your words. Okay, well, they should more careful in mischaracterizing a position by an experienced advocate of the Supreme Court, with all due respect. Counsel, I'm quoting from their reply brief where they say that, with citations, But you said that the secondary education was a, quote, unique context, quote giving rise to a unique subset, quote calling for a, quote, different standard. Correct. Seems to me. Well, I'm sorry. Now, where does it say that quoting for a different standard? That part we never said. Are they quoting? Well, they've got quote marks around it. Where's the where's the page? It's page four of their yellow brief.

0:34:11 Clip: Oh, well, they're I mean, we never said that there should be different standards. What we've always said and what we've acknowledged in the brief in opposition, which is true, that outside the school context, the courts have said there's no intent, at least for liability, but for damages.

0:34:29 Thomas: This is like uncomfortable. Nobody talks to them like this, which if this were the good folks on a case where they blew it, like all of them, I would be maybe down for this, but this is weird.

0:34:38 Jenessa: It's really weird and like she has a reputation for this is not her first time at the Supreme Court.

0:34:48 Thomas: Yeah that's what what? She seemed to reference him. That's crazy. What?

0:34:51 Jenessa: Yeah, so she has a reputation for like some, I don't know if lack of decorum might be the right way to describe it, but like this is, like I was talking to some people and a friend of mine was like, I would have already emailed her to fire her right now. Like people interrupt sometimes, but when the justice is, you try to interrupt them and they continue to interrupt you and you say, if I could just get this out.

0:35:16 Thomas: Yeah, that doesn't happen. That doesn't happen. Yeah.

0:35:18 Jenessa: No, you cannot actually get get this out. And it's really the lying thing, accusing the other side of you can just do the Oh, they're mischaracterizing their mistake. You do the like, really, they always call each other my friend. You can be like my friend over there doesn't understand what I'm talking like you can get away with a lot. This was like so over the line.

0:35:27 Thomas: A mistake. And yeah, yeah, exactly.

0:35:40 Jenessa: And something that's not picked up on the recording that I did hear when I was listening live. As soon as they said, Are you saying they're they're lying. And she's like, yeah, when they said, blah, blah. You can hear them flipping pages, the justices on mic, because they're like, you definitely said this. They're going to kind of move on and start asking other questions. It keeps coming back. And I think really what was happening is Gorsuch was busy flipping pages because nobody gets to be sassy at the court but at him um correct so jackson will bring it up one more time and we'll get some more attitude it starts at uh 5904

0:36:13 Thomas: No one's going to out disrespect him. Wow.

0:36:24 Thomas: So that's eight minutes later. So you're saying they did go through a little bit of an interim of like, like, okay, let's settle down.

0:36:30 Jenessa: It's cavanaugh is just like can anyone define a word for me please I just don't want to get in a fight today

0:36:36 Clip: And it says solely by reason of discrimination. Ms. Splatt, I think we have to really be fair about what the question presented in this case actually is. It did not say decide the standard. The question presented is whether the ADA and Rehabilitation Act require children with disabilities to satisfy a uniquely stringent bad faith or gross misjudgment standard when seeking relief for discrimination relating to their education. One, you could put all the emphasis on uniquely stringient. Should this court adopt a uniquely infringed standard? Or it could mean what we think the end of the petition said it meant. Should a court adopt the bad faith standard, which is uniquely stringent. And the last line of their petition says you should decide what standard applies in this case.

0:37:21 Thomas: What?

0:37:27 Clip: Now, if you want to read it as the should courts adopt uniquely stringed standards, then you're right. The parties agree. And you're saying that's not the way you read it when I'm looking at page 27 of your bio, which says the bad-faith or gross misjudgment standard is an appropriate exercise of discretion. Most importantly, it accounts for the unique nature of claims like petitioners, that is, claims by students with disabilities regarding the appropriateness of their IEPs. And you go on at length in talking about the unique nature of this particular context and why it would justify having this standard as opposed to the standard that all the courts have applied in other contexts. Well, that's why page 26 precedes page 27, which I think you're reading from. And page 26 says the Court of Appeals decision below is correct. And it's correct because of the text. It's correct porque it incorporates Title VI.

0:38:21 Jenessa: That one just really struck me that after all this back and forth and all this tension you're really gonna say to a supreme court justice well that's why 26 comes before 27 it's like oh my god so the thing that finally brings it all together look I've never

0:38:36 Thomas: Someone woke up on the wrong side of the docket.

0:38:38 Jenessa: Yeah I've ever practiced in front of the supreme court you might be shocked to learn but I'll quote somebody who has been covering the supreme Court for a long time what followed was the most heated exchange between a justice and an advocate that I've heard in my decades of experience at the court. So, uh, yeah, this isn't normal.

0:38:57 Thomas: And I, look, I've been craving this, but only for a good thing, not a stupid thing where you're the bad person. Come on. Someone put them in their place, but for good.

0:39:08 Jenessa: Oh yeah. Well, get ready. Here's Gorsuch going full Gorsuch.

0:39:08 Thomas: Darn. Oh, great. I don't want to be on his side of anything. Fine.

0:39:16 Clip: And I understand it's easier for you, and you have a lot going on, not to set the law.

0:39:21 Thomas: Wait, wait, wait. Is that, we got to hear what what that was. What the was that?

0:39:25 Jenessa: Okay. Yeah. If you want to go, go back like 15. She does this a couple of times.

0:39:25 Thomas: Hold on. We got to go back.

0:39:29 Clip: For employers, Title III for country clubs and hot dog stands have not only reasonable accommodations provisions, Justice Jackson, but they don't make hot dog stans liable for damages.

0:39:37 Thomas: It's what the freaking hot dog stand talk.

0:39:40 Jenessa: I don't know.

0:39:41 Clip: And a made-up judicial damage remedy comes from thin air. Ms. Platt, the answer to this is probably clear since you called the two-tier test stupid. But I just want to clarify, you agree there's no two-tier test? Okay, so there is what Justice Gorsuch has sometimes called radical agreement on that point. What there's radical disagreement on is the question presented. And if you just say, and I know it's sometimes easier for you to say we don't have to do a lot, but you're causing real harm to the parties who don'thave Supreme Court counsel and lower courts who get confused when you just remand and say we just remanned. So if you could at least set the slate free, well, it is part of your job, Justice Kavanaugh, to set the law sometimes.

0:40:29 Clip: And I understand it's easier foryou, and you have a lot going on, not to setthe law. Ms. Blatt, I confess I'm still troubled by your suggestion that your friends on the other side have lied. Yeah, I think we're going to have to here.

0:40:31 Jenessa: I know

0:40:43 Thomas: Jesus.

0:40:45 Clip: And I'd ask you to reconsider that phrase.

0:40:55 Clip: You can accuse people of being incorrect, but lying, Ms. Platt, if I might finish. Page 1 of your brief in opposition. As applied to the provision of IDEA services, the overlap between these statutes leads to a conceptual particularity that exists only in this context.

0:41:08 Thomas: This is wild.

0:41:14 Clip: That seems to suggest you're arguing for a unique rule. For more than 40 years, courts of appeals considering this unique subset of ADA and rehabilitation claims, claims, directly challenging ideas educational services have widely recognized that plaintiffs must establish more. That scheme requires plaintiffs to show that school professionals acted with discriminatory intent by demonstrating that their decisions were premised on bad In this unique context, courts must balance the Rehabilitation Act and ADA's prohibition on disability discrimination with educators' responsibility for determining appropriate special education services. The bad faith or gross misjudgment standard. If I'm not finished, properly accounts for the need for deference.

0:42:03 Clip: Page 27, as courts have recognized discrimination claims based on an IEP's adequacy or a conceptual peculiarity that exists in the primary and secondary educational context. Further down, the bad faithful gross mis judgment standard permits the courts to adjudicate these novel claims without requiring judges to substitute their own notions of sound educational policy One can interpret those perhaps different ways, but surely a reasonable person could interpret them as arguing for a special rule in the educational context. No, only because of the text. Okay, well, you and I mean. A reasonable person. All of those emphasize the unique context of primary and secondary education and the need for a special rule, don't they? Fine, but what I'm objecting to – Then would you withdraw your accusation?

0:43:02 Jenessa: That was wild I couldn't believe when I was listening that like you know you're getting called out like it reminded me of when I was a kid and my dad is like trying to be like and then and you're like yeah yeah so like it was so okay so here's the thing it's like all she had to do was the I yeah okay yup people misunderstand and like he's trying to get her to incorrect is fine and I think it's like so obvious at that point his point is very clear like at a minimum a reasonable person could have understood you to mean this so like lie is so over the top but I think what it also did is completely ruined her argument because you just got a supreme court justice to read from the bench all the reasons you're wrong.

0:44:02 Jenessa: You could have gotten away with that not happening today and made it so much worse. The same with like, okay, that argument preceding that, you could so easily have said, hey, I know it's really tempting to just remand because let the lower courts decide it, right? But we spent a ton of time and resources to get here and it's just going to come back here anyway in a couple of years, I think it would be really good to decide, see how you can do that without being an asshole?

0:44:30 Thomas: It's like I know you guys have a lot to do with your lazy sacks of shit but uh can you yeah this is someone who's like it's her last day or something on earth maybe it just feels like she's like I'm done I'm done it's so weird give me this energy but for the good side

0:44:35 Jenessa: It felt like it. I quit.

0:44:49 Thomas: Come if this was dobbs if this was anything this is immunity decision this is any come on give me some get me the good side of this with justified rage. Put these assholes in their place, please. But this, you're arguing against the side that's advocating for a disabled kid. And you're like, well, he's over here. It's like, what is happening?

0:45:10 Jenessa: And that the anger is not even directed at the argument, but at the assertion that you changed your argument, making it a bet. It's never about you. That's the number one thing is a lawyer. It's like, it's about the clients and it's never about you. And somehow this became personal in the middle of an oral argument. I don't know what is happening. I think the whole thing, especially if you listen to it start to finish, is a great illustration of how to sink your ship. It just tanks the whole thing. I walked away from it and other people I talked to saying all of this attempt to try to get a heightened standard, Alito's still on board, he doesn't care, but everybody else I don't think is ever gonna go along with a single thing she said and she just like burned every bridge I don'T see it I am not worried yeah

0:46:01 Thomas: Yeah. To be fair to Satan, I don't know how much it should matter to the point of it's not about you. I do think kind of the argument should be the arguments and like the case should be The Case. So to a certain extent, it's like like okay well you know satan's gonna satan but yeah I see your point like this is

0:46:17 Jenessa: Yeah like it shouldn't matter it really shouldn't matter and I think this is a great example of how to accidentally make it matter like they are human beings they're not gods they have like egos of their own and like Like, if you think Gorsuch is voting for your side of this after that altercation, like, good lord. So, yeah, anyway, it's a very interesting disability case if you really care about arguing for damages for school-aged children who've been discriminated against. And for everybody else, uh, drama.

0:46:26 Thomas: Bad yeah yeah no way yeah how not to ever be hired again I guess god did anything have you checked up what did she get fired from

0:46:55 Jenessa: Yeah, for real. Oh my god. I don't know. I don't know if I would advertise that. I also don't fully understand how it works to argue in front of the Supreme Court. Like they have like a Supreme Court bar. Like you get admitted in New York and you get admitted in D.C. And then there's getting admitted like only a select few people can argue in front of Supreme Court so I don't think you necessarily like pick your lawyer the same way. There's some I don't fully understand it. Like I mean you definitely pick right.

0:47:11 Thomas: Anything yeah

0:47:28 Jenessa: Like you don't just get assigned a rando. But it' s not you couldn' t pick me.

0:47:24 Thomas: Oh really huh yeah oh

0:47:33 Jenessa: You shouldn' t but you also couldn' wouldn't.

0:47:33 Thomas: Well that's sad yeah Yeah. Huh.

0:47:38 Jenessa: I don't know, man. I don't know what's gonna happen. I mean, like, I don't, I would assume there won't be personal consequences, but if I wouldn't pick her, we'll find out.

0:47:47 Thomas: I don't know, man. I don't think there will be some sort of consequences. Like, I don't, I don' think people would want, you know?

0:47:53 Jenessa: I would never. After this, I wouldn't ever. Would you want her to be the face of your argument?

0:48:01 Thomas: Absolutely not.

0:48:02 Jenessa: No. Like, terrible. Oh my god, it was wild.

0:48:04 Thomas: So, why did they do this? Why, not the, not this, sorry, not that part. Why, why do they change their argument like that? I confess, I still, I do not get it. It is too complicated.

0:48:14 Jenessa: So, here's the real deal, is, I think the plaintiff's attorney made this argument pretty clearly. He was like, because they're going to lose. They knew they were going to loose if they tried to say that it's actually reasonable for a K through 12 student to be held to a higher standard than a freshman in college for the exact same discrimination.

0:48:36 Jenessa: How can that be? That makes no logical sense.

0:48:40 Thomas: So that is the argument they made in the beginning.

0:48:43 Jenessa: Yeah, essentially. And that is the standard that's been held for a while. And what Gorsuch is reading off there is examples of of them attempting to make that argument to say, well, why are K -12 public schools unique? Why should they have a different and heightened standard? You know, you hear her talking about loss of federal funding, for example, which is not necessarily something that a private college has to, they have like some federal funding but not in the same way, you know?

0:49:11 Thomas: Mm hmm.

0:49:12 Jenessa: Different things that like an employer is not going to have the same issues. But it is ultimately, I think, was gonna be a losing argument for the most part so like she was probably gonna lose anyway to be fair yeah yeah

0:49:23 Thomas: This is crazy. I'm sorry. I just Googled her. Here's an article about her from last year, from a year ago, nearing 50 Supreme Court arguments in lawyer Lisa Blatt keeps winning. What in the world? Did something happen? Did someone run over her dog that day or something?

0:49:33 Jenessa: I don't know I don't know she had like a bee in her shoe I have no idea

0:49:45 Thomas: What? Wow. That is because I would have thought I really did think just based on like the context of you kind of hinting at what happened. And I was like, oh, someone's first day on the job, huh? Like some, this is crazy. Wow.

0:49:53 Jenessa: No uh -huh and she has a reputation for like not being polite but this is way over yeah way beyond just there's definitely people who get to the supreme court and are notoriously more sassy than others And she's very far on that end. But yeah, everybody I've talked to was like, did you hear that?

0:50:01 Thomas: Yeah. That's, this has, wow. Way beyond that. Wow. It just feels like a crazy gambit where it's like, she knows she's going to lose and she knows she is guilty of the thing. So she has to like overreact and defensiveness to like, but that, I mean, that's just not going to play here.

0:50:18 Jenessa: Like it was, I heard a judge the other day, I have suspected this for a long time that like, cause I picked it up in hearings I've done that like, if the other side is freaking out and you keep your cool, it's definitely a good look. And a judge expressed that to me as when the facts aren't on your side, you pound on the law. And when the law's not on your side, you pound on the table.

0:50:53 Jenessa: It's blatantly obvious the person who is pounding their fist on the table and yelling like they're just performing for their client and they're going to lose like they know they don't have a good case. So that does fit with what you're talking about. But it's like, I don't know if you thought it was your last day and you wanted to piss off Gorsuch. I get it. He's been sassy to you for so long. Why are you coming after Jackson? She's so nice.

0:51:16 Thomas: Yeah. Well, I am the other side in the solicitor. It's just, it's just a good look. Wow.

0:51:19 Jenessa: It's really not. Yeah.

0:51:21 Thomas: Well, that was terrible. I don't think that went well, if you're asking my professional opinion.

0:51:23 Jenessa: No. Yeah, not great. So I figured you'd enjoy a little break and some drama.

0:51:28 Thomas: Yeah. Anything else we should know about this whole fiasco?

0:51:34 Jenessa: It'll probably be back there in four years and maybe she won't be arguing it. We'll see.

0:51:37 Thomas: Wow. Yeah, she'll be, I donno, on another planet, because she had just booked a flight on the, you know, like, I dont, you would only act like this if you were leaving the Earth. I dont. This is crazy. Crazy. Yeah. Wow.

0:51:43 Jenessa: I can't even imagine the balls. I'd be sweating. I could never. Oh my god. Oh, my god, to Gorsuch.

0:52:00 Thomas: Oh, yeah. Yeah. I was sweating just listening to this. I'm like, come on. Can't we all just be nice? Well, no, not yet. All right. Well, Dr. Jenessa Seymour, thank you so much for coming on. Like I said, people should definitely check out your previous episode. And that was so much fun. And tons of episodes of SIO. WTW. Did we get you on Gavel Gavel yet? I can't remember.

0:52:21 Thomas: I don't think so. Eventually, I'm sure. But yeah, thankyou so muchfor doing this. And hey, baby lawyers out there, don't do this.

0:52:33 Ad: [Ad break 3 — ad music]

0:52:33 Thomas: Alright. And it had been some time since we recorded that due to scheduling stuff. And so I want to come in and say that the decision is out. It hadn't been decided at the time Jenessa and I recorded, but it's out and it's a good decision. Jenessa was kind enough to send some words about it so I could read them to you. Jenessa says, general summary, the court held as predicted that the higher standard of bad faith or gross misjudgment for K-12 is inappropriate, especially considering no other type of ADA discrimination claim requires this. Clarence Thomas issued a terrifying concurrence saying that ADA and Section 504 and IDEA, all of the relevant disability statutes, should only apply to intentional discrimination, even for injunctions. So basically, accidental violations have no recourse. But he says, essentially, this wasn't the right case to decide that. So that sucks. But that only seems to be Clarence Thomas and Kavanaugh. So hopefully that's that. Hopefully that means it's relatively safe. But there you go. So a good decision as predicted by Jenessa and as predicted by everyone listening to the show Clarence Thomas still really sucks. Well, that's all for today. Thanks so much for listening. That was a ton of fun. Thank you most of all to Jenessa, and I'll see you for Thomas takes the bar exam on Wednesday. See you all then.

0:54:07 Thomas: Stay on mic. I hear a little like a distant like yeah.

0:54:09 Jenessa: Turned my head to look out at the very gray outdoors. Anyway, focus. I didn't take my Adderall today.

0:54:15 Thomas: Oh great. So I have to double my dose for both of us.

0:54:18 Jenessa: Yes. See how you can do that without being an asshole?

0:54:24 Thomas: I'm out. I only argue the worst bullshit. I did you get a divorce? Someone woke up on the wrong side of the docket.