Thursday, April 22, 2010

Justice Stevens and Special Education Law - Part II

John Paul Stevens, U.S. Supreme Court justice.Image via Wikipedia

Justice John Paul Stevens has announced his retirement from the United States Supreme Court. Although originally considered a moderate by most, he has drifted to the liberal wing as the court added more and more very conservative justices. In addition to being a loyal fan of the Chicago Cubs, Justice Stevens left his mark on special education law.

Last week we reviewed his opinions in the big ten decisions by the Supremes in this area of the law. We also discussed in detail, the opinion he authored in Forest Grove v. TA. This week we will take a look at the other major opinion in this area authored by Justice Stevens.

In the case of Cedar Rapids Community School Dist v. Garret F 526U.S. 66, 119 S.Ct 992, 29 IDELR 966 (3/3/1999), Justice Stevens wrote the opinion for the seven justices who formed the majority. Near the beginning of the opinion, Justice Stevens notes that the student "... is a friendly, creative and intelligent young man." It was refreshing to see this emphasis upon the student whose education is being litigated.

The main issue in the case was whether the school district was required to provide urinary bladder catheterization, suctioning of a tracheotomy and various monitoring functions for the student. IDEA, the federal special education law requires a school district to provide as related services to students with a disability those related services that are necessary for the student to receive a free and appropriate education. There is an exception for "medical services" and the district argued that the exception applied. Justice Stevens reaffirmed the "bright line" test from the previous Tatro decision, holding that the medical services exception only applies to services that must be performed by a physician. Accordingly, the opinion requires the district to provide the related services at issue.

More important, in my opinion, is the manner in which Justice Stevens handled the school district's argument that the expense of the services should be a defense. The majority opinion squarely rejects the argument that the cost of providing services can be a defense in special education cases. This ruling has importance way beyond the facts of the particular case. I believe that this portion of the decision is Justice Stevens' true legacy concerning the body of law involving special education.

Note the President is a known fan of the dreaded Chicago White Sox. I fear that the chances of another Cubs fan being appointed to the Supreme Court are indeed very slim!


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