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.