Friday, January 13, 2017

US Supreme Court ready to hear the land mark case on supporting Education for Disabled Students

Pls refer to my earlier post on  20 October 2016 titled 'US Supreme Court to hear ground breaking case involving what is "appropriate education" for students with Autism in public schools' . The Justices are hearing the arguments in the case wherein a school district refused to pay for private school for a student with autism whether federal law (IDEA) requires public schools to provide anything more than minimal instruction to such children.

A law dating from 1975, now called the Individuals with Disabilities Education Act, subsidizes special education but also requires school districts to provide a “free appropriate public education” to disabled students. Congress didn’t specify what it meant by appropriate, and when parents have challenged public school programs as inadequate—often because they want the district to pay for a private institution instead—appellate courts have disagreed over the quality of education the law mandates.

The Supreme Court agreed to resolve the issue in a case from Douglas County, Colo., where the school district rejected a parental request to pay $40,000 tuition to send an autistic child to a private school offering specialized programs.

Neal Katyal, an attorney for the school district, told the court as long as the public school program was better than nothing, courts had little role beyond reviewing whether local officials followed procedures that the law, known as the IDEA Act, lays out for a disabled student’s educational plan.

“That’s what Congress had in mind, the idea that you’ve got to go through the checklist,” Mr. Katyal said.

“That’s wrong,” said Justice Elena Kagan. “This is not just a procedural guarantee. Yes, the IDEA has lots of procedures in it, but they’re all geared towards a particular substantive result.”

The justices likewise felt Jeffrey Fisher, a Stanford law professor representing the child, identified as Endrew F. in court papers, pushed too far in contending the law mandated that disabled students receive “equal educational opportunity” with other students.

Such a high standard could invite numerous claims forcing courts to evaluate whether a plan for a disabled child was legally equal to the opportunities provided other students, said Justice Stephen Breyer. “I foresee taking the money that ought to go to the children and spending it on lawsuits and lawyers and all kinds of things that are extraneous. That is what’s actually bothering me,” he said.

Much of the argument concerned the meaning of a 1982 Supreme Court precedent upholding a school district’s refusal to provide a sign-language interpreter for a deaf student because she was progressing well using a hearing aid. In that case, Board of Education v. Rowley, the court cited a congressional purpose “to confer some educational benefit upon the handicapped child.”

Responding to Mr. Katyal, Chief Justice John Roberts summarized the disagreement this way:

“You’re reading it as saying ‘SOME benefit,’ and the other side is reading it as saying ‘some BENEFIT,’” the chief justice said, prompting laughter across the courtroom.

The Obama administration has proposed a compromise position, and by the argument’s end it appeared likely to prevail.

The law should be read to require “significant progress towards grade-level standards, not as close as possible to grade-level standards,” Justice Department lawyer Irv Gornstein told the court. “And we think that this is just what most school boards are already doing.”

Justice Samuel Alito asked whether school officials could consider costs in determining an appropriate program.

Probably not, said Mr. Gornstein, who noted that the federal government provides about 15% of special-education costs.

“I think Congress took costs off the table in the usual case,” Mr. Gornstein said, except in extreme cases where extraordinary costs would yield little benefit to the student.

A decision in the case, Endrew F. v. Douglas County School District, is expected before July.


Sunday, January 8, 2017

Chattisgarh High Court | CG State & its HC fail candidates with disabilities; State Administrative Services exempted from purview of Section 33 of Disability Act 1995 [Judgement Included]

Dear Colleagues,

We are increasingly coming across cases where Court judgements are failing the persons with disabilities! Despite commenting  in the judgement that the State action defeats the objective of Persons with Disabilities Act 1995 and cornering the State for its inaction/ omission, the judgements fail to render effective justice in favour of persons with disabilities.

I can cite several such cases that I have come across recently. But here we are discussing a most recent judgement from Chhattisgarh High Court, where a 100% blind candidate, who cleared Public Service Commission (PSC) Exam and got appointment as a Tahsildar, approached the high court seeking a direction to the state to grant upper age relaxation up to 10 years and to reserve vacancies not less than 3% for persons or class of persons with disability as per Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 for the post of Dy. Collector. The State defended saying that the benefit of age relaxation of 10 years was only available to Class-III and Class-IV posts as per the circular dated 12-2-1981 and not in Gp I and II. 

Also the State had already taken a retrograde step by issuing a notification dated 7-9- 2006 in accordance with the proviso to Section 33 of the Act of 1995 exempting the cadre posts of State Administrative Services from the operation of Section 33 of the Act of 1995 meaning thereby that there will be no reservation in  the cadre of State Administrative Service under section 33 of the Disabilities Act of 1995 in favour of persons with blindness or low vision, hearing impairment, locomotor disability or cerebral palsy.

It would be pertinent to mention that while the cadre posts of administrative services have been identified as suitable to be held by persons with blindness and low vision among others by the Centre and several blind candidates are successfully working as IAS officers under the Union of India, while a state under Union of India called Chhatisgarh decides that disabled people can not function as administrative officers. 

Who gives the state (read bureaucrats) to pass judgement on the capability of blind administrative officers and decide to exempt the post from the purview of section 33. The action smacks of arbitrariness and discrimination on the grounds of disability and must have been quashed by the judiciary.

The Court instead of quashing the notification being in contravention of Article 14 of the Constitution of India and giving relief to the candidate, dismissed the writ petition itself, saying that in light of the notification it can not give the petitioner any relief.

The judgement though reminded the State that the very object and purpose of the Disability Act 1995 is defeated if no reservation is provided for persons with disabilities in the cadre of State Administrative Service. And it directed the Chhatisgarh government to "reconsider" its notification which exempts the State Administrative Service from the requirement of providing reservation to the persons with disabilities preferably before the next notification  for examination for the posts are issued.

This direction/ judgement  literally fails the petitioner and is a joke played on "Right to Equality" enshrined in the Constitution of India. State is a perpetrator of injustice in this classic case and guilty of defying the constitutional mandate and the international commitments made by India to the international comity of nations by signing and ratifying the UN Convention on the Rights of Persons with Disabilities.

Now mere direction to "reconsider" is no direction as the State could always defend its action saying it did consider as per the court direction but did not find it proper to give reservation in jobs to people with disabilities in State Administrative Services! Such an action or inaction of the State would never come under the meaning of "contempt of court"!

Road Ahead
The Chief Minister of Chhattisgarh Dr. Raman Singh, is a pro-development leader. The Prime Minister of India, Sh. Narendra Modi ji has been batting for the rights of persons with disabilities and has made his commitment public by ensuring that despite road blocks in the winter session, the Rights of Persons with Disabilities Act 2016 was passed by both houses of parliament & got assent of the President of India on 27th Dec 2016 to be eventually notified on 28th December 2016. Its the time to act swiftly and restore justice to the candidate in this session itself & providing enabling environment to promising candidate with disabilities so that the fabric of the state administrative services gets stronger & richer by contributions of this diversity.

We call upon the Hon'ble Chief Minister Sh. Raman Singh to act now and walk the talk - Sabka Saath Sabka Vikaas - by withdrawing the exemption notification & appointing the blind candidate on the post of Tehsildar forthwith.

Download Judgement Copy


  • Judgement dated 02 Jan 2017 of the Chhattisgarh High Court in Writ Petition (S) No. 640 of 2014 titled Sanjay Sondhi Vs. State of Chhattisgarh and Ors
  • Or read directly in the embedded order below:


Wednesday, January 4, 2017

Delhi University gets another rap from Delhi High Court - Fined for defying Section 39 of Disabilities Act 1995 [Judgement Included]

Dear colleagues,

Delhi University was caught on the wrong side of the law once again for defying the mandate of the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act 1995. The Hon'ble Delhi High Court in the instant case W.P.(C) 8232/2016 titled Medhavi Krishna v. University of Delhi and Ors., has directed the Delhi University to grant admission to the petitioner - a candidate with 77% disability, while declaring the admission criteria adopted by the University as "unsustainable".

In the instant case, the petitioner had sought a direction to the University to grant him admission under the PWD (Persons with disability) category in the Ph.D programme of Department of Buddhist Studies University of Delhi. The petitioner was one among the 47 students who had cleared the written examination and were called for the interview. He was the only student under the PWD category to have qualified for the same. Post interview, only twenty candidates were declared successful. However, arbitrarily no admission was granted under the PWD category. Aggrieved by the unreasonable & arbitrary denial of admission, the petitioner made representations before various authorities viz. the DU Vice-Chancellor, OSD (Admissions and Research Council) and also the Dean of the Faculty of Arts and Head of Department of Buddhist Studies, but it failed to yield any result.

The petitioner left with no option approached the High Court, alleging discrimination on the ground that other candidates who had secured similar marks in the interview were granted admission under other categories. He submitted that the University could not have frustrated the provisions of Section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which mandates all Government educational institutions and other educational institutions receiving aid from the Government to reserve not less than three per cent seats for persons with disabilities. He had further contended that the minimum cut off marks could not have been fixed after the selection process had begun, as was the situation in the case at hand. The question then to be considered by the Court was then whether the cut off marks of 70, as prescribed by the Selection Committee, was justified. Accepting the contentions put forth by the petitioner, it ruled that fixing of 70 marks as the cut off for the PWD category was “without any basis/logic.”

Noting that seats in the Ph.D course were still available, and that the selection process was still going on, the Hon'ble Judge directed the University to grant admission to the petitioner, and also awarded costs to the tune of Rs. 10,000. 

To read the Court Judgement dated 14 December 2016 click below: