Tuesday, October 16, 2007

Supreme Court Decides Not to Decide

Yesterday the U. S. Supreme Court denied certiorari in the case of BD. OF ED., HYDE PARK V. FRANK G., ET UX., Case No. 06-580. Denying cert means that the Court has declined to review the decision of the Circuit Court of Appeals. The Second Circuit decision involved was very similar to the Tom F. case which recently resulted in an anticlimactic 4 to 4 tie. The same issue was presented: whether the parents of a child with a disability who has never received special education from a public school district may receive reimbursement for a unilateral placement of the child in a private school after denial of FAPE by the public school district.

Interestingly, Justice Kennedy once again recused himself (ie, he took no part in the decision to deny cert.) I'm wondering whether he had done some legal work for the school districts involved. Maybe he has a grandchild with a disability? If anybody has another theory, please let me know. The mystery of the recusal of the swingman lives!

We may have to wait a while before we see another high court special ed law decision. Hopefully not too long.


  1. We have an adult autistic daughter who lived with us until 6 years ago, whom we selflessly dedicated our lives to, and who was then kidnapped by the state and put in institutional care against our wishes and against the law. We sued the state and state agencies here in California over this and have spent the last 6 years in court fighting for her civil rights. Our case has been denied review 4 times, most recently last August (06-1562, Golin v. Allenby). Kennedy is out circuit justice and he granted us two extensions of time. We cited his decision in Winkelman to extend rights of parents to their own enforceable rights under ADA, perfectly logical if you followed his reasoning in Winkelman. We are being denied standing to even represent her in court. Now with this we are also dying to know why Kennedy recused himself in those cases. Our petition was denied. Strangely we did not get the press coverage.

  2. P.S., If anyone figures this out we would appreciate an e-mail to jeffgolin@gmail.com, or view our site at freenancy.com. If Justice Kennedy does have an autistic child in his family that would potentially subject him to pressure by predatory state agencies threatening to deny services to his family in retaliation, as they have in so many cases here.

  3. Thanks for the information. I have heard no more news re Justice Kennedy.