Oral Arguments at the U. S. Supreme Court

I was able to attend the oral argument at the U. S. Supreme Court yesterday in the IDEA case of Board of Education of City of New York v. Tom F., Case No. 06-637. Despite my many years practicing law, I am always awestruck when I enter that Courtroom. The highest court in the land does an impressive job of creating a special atmosphere.

When the oral argument began, Justice Kennedy left the Courtroom. Apparently he recused himself from the case and will not take part in the decision. The most active questioners were Justices Alito, Scalia and Chief Justice Roberts. Souter and Ginsburg asked a few questions, and Bryer, Stevens only asked about one area each. Thomas said nothing, although at one point he and Bryer had a very polite private conversation for few moments. I was more surprised by their civility than anything.

The thrust of the questions from Alito, Scalia and Roberts to the school district attorney concerned what purpose could be served by reading the statute to mean that Congress meant to require that a student with a disability be kept in an inappropriate placement for just a short period of time.

The questions that Alito, Scalia and Roberts asked of the parents' attorney and the Solicitor General (who argued in favor of the parents' position) centered on whether the language used by Congress was really ambiguous and whether the intent of Congress was to keep "well-healed" parents who have no real intention of putting their children in public school from obtaining reimbursement.

I was shocked by one argument made by the attorney for the school district. He showed a high level of disrespect for his state's due process hearing system. He stated that at a reimbursement hearing, the parents present a pile of evidence showing all the progress that the student has made at the private school. He said that there is a "dynamic at these hearings" where the hearing officer finds denial of FAPE because the private school provides a better program. I'll admit that I'm a bit biased here because I am a hearing officer for a few states, because I train hearing officers and because I consult with states on hearing system issues (for the record, I do no work for New York), but this is ridicules. If the state hearing officers are not applying the law correctly, the state should provide better training to its hearing officers and better oversight of its hearing system. The strongest argument by the school district was that the new language must mean something, even if only one more temporary hurdle before reimbursement may be claimed.

I was surprised that the parents' attorney and solicitor general did not argue more strongly that denial of FAPE for a short time was very bad- sort of a civil rights based argument. They touched on this but only en route to more elaborate arguments concerning the use of language, most specifically "only if," used by Congress elsewhere in IDEA. Statutory construction arguments can be fairly tedious.

I never try to predict these because at least some justices ask hard questions of the side they intend to support. This helps with decision writing.

It was only one hour, but I had a lot of fun. I can't wait to see the decision, although I predict once again that the impact of the decision will be less tragic than predicted by either party to this proceeding. It would be nice to have the high court give us some guidance on a more general topic- like LRE for example, but we take the law as we get it!