Friday, May 29, 2009

Judge Sotomayor and Special Education

Nobody really knows how a justice being appointed to the U. S. Supreme Court will rule on cases before the court. Retiring Justice David Souter is perhaps the best example of that rule. Appointed by Republican President George H. W. Bush, he turned out to be quite moderate rather than the conservative many thought he would be. Special education cases do not really lend themselves to the liberal/conservative analysis. For example, Justice Scalia and Justice Ginsburg voted the same way on the Murphy decision. Suggested new slogan for us: "Special Education- bringing people together!"

President Obama has nominated Judge Sonia Sotomayor for the vacancy on the court. Here is a news article. The special education community is wondering how she will rule on special education cases. Although crystal ball gazing has is notoriously dangerous and hopelessly unreliable, it may be instructive to take a look at how Judge Sotomayor has ruled on special education cases in the past. I have found about fourteen decisions, and from them I have selected two interesting examples:

The first is the famous Frank G case, Bd of Educ, Hyde Park v. Frank G. 48 IDELR 239, 459 F.3rd 356 (2d Cir. 7/27/6), cert den 128 US (official reporter) 436 (U.S. 10/15/7). Judge Sotomayor ruled with the Second Circuit panel that the parents of a child with a disability may receive reimbursement after a denial of FAPE by the school district even if the child has never received special education in the public school system. The Supremes decided by a 4 to 4 vote not to accept this case for review. Here is a copy of the decision. This decision is seen as pro-parent.

The second decision is Mr L ex rel M v. Sloan 45 IDELR 207, 449 F3rd 405 (2d Cir (5/18/6). In this case Judge Sotomayor voted to deny attorney's fees to parents who had settled the case below. Applying Supreme Court precedent in the Buckhannon decision, Judge Sotomayor and the second circuit ruled that the parents were not prevailing parties under the law. Here is a description of the case on the SCOTUS blog. This decision is seen as pro-district.

It will be interesting to see how Justice Sotomayor rules on our cases on the Supreme Court. What do you think? How will she rule on special education cases?

Speaking of the Supremes, the pending case should be decided soon. Please take the opportunity to vote on our poll. The poll is not even close to being scientific, but it is still fun. "For the parents" still leads "for the district" by a margin of 25 to 20. Three readers have recused themselves for a conflict of interest. Time is running out. Cast your vote today.

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