Wednesday, March 18, 2009

The New Case Before the Supreme Court - Part III



The U. S. Supreme Court has accepted Forrest Grove School District v. T.A. 523 F.3d 1078, 50 IDELR 1 (9th Cir. 4/28/08) for review. The first post in this series discussed the facts of the case. The second post looked at the ruling by the Ninth Circuit and the lower decision-makers.

In this post, we will offer some speculation as to how the Supremes will rule. Please note, courts often surprise me even after I have witnessed the oral argument. My crystal ball is cloudy at best.

The parents have a few things going for them. As my evidence professor used to say, "win your case at the lower level". In this case, the parents prevailed in the Circuit court of appeals. It is generally easier to be affirmed than reversed. (NOTE however, there have already been three reversals and a dissenting opinion in this very case!)

More importantly, the school district has not appealed the finding that the student is eligible (or in special ed talk is a "child with a disability") or that the school district has failed to provide FAPE. Why did the district concede these issues? If the parents prevail, the district lawyer has some serious explaining to do. The school district chose to hang its hat solely upon the issue of the statutory provision requiring some special education in public school. To me this seems like a very risky strategy. This is especially true given the timing of the students marijuana abuse.

On the other hand, the Supreme Court seems to be really Jonesing for a decision on this issue. The 4 to 4 non-decision on the Tom F case with the same issue must have been a bit embarrassing. Yet here we go again. The key for both sides will be Justice Kennedy who recused himself and did not participate in the previous decision. There were four votes for each side then and the rule in this court is five wins. Kinda gives "one man, one vote" new meaning doesn't it?

The Supreme Court will hear oral arguments on this case on Tuesday April 28, 2009. How do you think that the court will rule? Be a Justice for a day; vote as you would on the high court (black robe optional.) Register your opinion on our unscientific but fun poll on the left-hand side of the blog.
What we lack in scientific measurement skills, we make up in audacity.






9 comments:

  1. It is surprising that they only pursued the legal question without disputing the child's eligibility. But what really baffles me is the economics of the case. All the way to the Supreme Court for $5200 in tuition + the parent's attorney's fees? The average cost per general education student is $3500. I don't see any way the school has an economic victory here, even if they win the case and can safely refuse reimbursement in future similar cases.

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  2. Ah . . . I missed the word "monthly". That raises the stakes considerably.

    In any case, since the attorney did not pursue the eligibility issue (for whatever reason), the Court will almost certainly have to tackle the legal question head-on. So we are likely to be given a clear rule (as opposed to the situation after Tom F).

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  3. I'd love to go and hear oral arguments...how does one do that for the SC if you aren't a bar member?

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  4. Matt,

    Thanks for your insight and comments.

    Jim

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  5. Jeremy,

    I'd love to go again, but unfortunately I have a commitment to a conference on that date. Usually nonlawyers have to wait in line outside the court. There may be some exceptions though.

    Let us have a report if you do attend.

    Jim

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  6. Watching the courts faff around these kinds of cases is very frustrating. Unfortunately this child fits almost exactly the profile of the vast majority of the prison population. A life of crime and incarceration are likely for this child if they do not receive appropriate education now.

    Setting aside the obvious benefits to the individual when one examines the cost to the tax payer, a few years of special ed may seem expensive in isolation, but when compared to the policing and prison costs of a life of crime they are insignificant.

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  7. The briefs in this case are on line at the following site:
    http://www.abanet.org/publiced/preview/briefs/april09.shtml#forest

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  8. Thanks PB,

    I appreciate your comments.

    Jim

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  9. Thanks Greg,

    I didn't know that you read my blog. You are welcome to comment any time.

    I appreciate the site for the briefs.

    Jim

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