New Supreme Court Decision - Part III (Reasoning)

The recent decision by the supremes in Forest Grove Sch Dist v. TA 557 U.S. _____, 109 LRP 36046(6/22/2009) has been cited by both the parents bar and the school district bar as a major development. We will have to wait and see whether the number of unilateral placements grow as a result.

U.S. Supreme Court building.Image via Wikipedia


Before we get to the reasoning of the high court, we should review what the court did not decide. In the all important footnotes to the Court of Appeals decision, it was revealed that the school district had waived the key issues of eligibility and denial of FAPE. Many people had questioned how a student with serious cannabis abuse issues could be eligible. But that issue was not properly before the court. The only issue was whether the 1997 amendments provision {Section 612(a)(10)(C)(iii)} prohibited reimbursement for unilateral private school placements by parents whose child never received special education from a public school.

The court first reviewed its decisions in Burlington and Carter and renewed their holdings that where a school district denies FAPE and a parent's private placement is appropriate and the equities so permit, a court has broad equitable authority to award appropriate relief including reimbursement for private placements. It is interesting that both Burlington and Carter were unanimous decisions by the high court.

The issue then was whether the 1997 amendments required a different result in this case. the Supreme Court rejected the school district's reading of the statutory provision. The Court found that Section 612(a)(10)(C) did not prohibit reimbursement in other circumstances but rather just permits it in the common circumstance where a child is receiving special education in public school. The Court ruled that these statutory provisions were "elucidative rather than exhaustive." Slip Op at p. 11. (Justice Souter's dissent has some fun with this phrase noting that "When a mother tells a boy that he may go out and play after his homework is done, he knows what she means.")

The majority opinion goes on to note that the 1997 amendments do not impliedly repeal the Burlington and Carter decisions. The opinion notes that it would take more than Congress' failure to comment on previous decisions by the Supreme Court to effect a repeal by implication, which is a doctrine that is not highly favored in the law.

The court then notes that the school district position is inconsistent with the remedial purpose of IDEA and the 1997 amendments thereto. The strong purpose of providing children with a disability with a free and appropriate public education was paramount in the reasoning of the court in Burlington, Carter and this case.

In perhaps the strongest statement in the majority opinion, the Court states that immunizing a school district's refusal to find a child eligible "... no matter how compelling the child's need... would produce a rule bordering on the irrational." The court noted the anomalous result of the school district's position in that it would permit reimbursement where a district offered inadequate services but would leave parents without the remedy in the more egregious situation in which a district unreasonably denies a child access to such services altogether. In rejecting the availability of procedural safeguards provided by IDEA other than reimbursement as an alternative, the court once again noted that the "review process is ponderous."

Finally the majority rejected arguments concerning the spending clause and financial burden. The Court noted that school districts have been on notice concerning the remedy of reimbursement at least since the Burlington decision. The argument that the result would encourage less cooperation and more expense was rejected as unfounded because reimbursement is only permitted where the district violates IDEA, the parents' placement is appropriate and the equities do not favor denial or reduction of the reimbursement.


Idols Live ...(er IDEA Remedies) Tour



I'm very proud that I will be doing the IDEA Remedies Tour next month. Some of my colleagues have suggested that I now think that I'm a rock star. To that I can only say I that I prefer green M & Ms in my dressing room, and the T-shirts will soon be on sale. OK so I'm having some fun here.


I call it the IDEA Remedies Tour because I will be giving presentations in July on the two major remedies that a hearing officer or court may award if the parents/student prevail in an IDEA due process hearing. On July 8th, I'll be presenting on Compensatory Education at the Seattle University School of Law's Eighth Academy for IDEA Administrative Law Judges and Hearing Officers in Seattle, Washington. On July 22nd, I'll be speaking on the Remedy of Reimbursement for Unilateral Placements at the 16th Annual Education Law Conference in Portland, Maine, sponsored by the University of Southern Maine and the University of Maine School of Law. I'm also doing a CLE presentation on Special Ed Law and a session on the role of the federal government at the Portland, Maine conference.

Both conferences are fantastic and exceptional opportunities to network with others in the field, and I have placed links to the registration sites on the left-hand side of the blog. The Portland, Maine Annual Ed Law Conference provides presentations on every aspect on school law. Please come and enjoy the festivities in beautiful Maine. There is also a series of sessions and meetings for Wingspread, a group dedicated to encouraging more diversity in legal education and other higher education. You can support their good work by attending this great conference. For more about Wingspread, go to the link for the conference below and click on the Wingspread information button.

The Seattle University Academy is one of the few trainings dedicated exclusively to IDEA hearing officers and dispute resolution coordinators. All hearing officers should really attend an Academy.

You can learn more about the Seattle Academy through this link. You may register for the conference here and through the link on the left-hand side of this blog.

You can learn more about the Portland, Maine Education Law Conference through this link. You can register for the conference here and through the link on the left-hand side of this blog. (The Reimbursement Session will include analysis of the brand new supreme Court decision.)

If you decide to attend either conference, please let me know so that we can have a chance to visit.

New Supreme Court Decision - Part II (Literal Interpretation of the Law ???)

On Monday, the United States Supreme Court decided the case of Forest Grove Sch Dist v. TA 557 U.S. ____, 109 LRP 36046 (6/22/2009). The court ruled by a 6 to 3 margin in favor of the parents. One of my thoughts is who switched sides? Remember the same issue (whether a provision in the law limited reimbursement to only those parents whose children had received special ed in a public school) was before the court in the Tom F. case, and the high court deadlocked 4 to 4, with Justice Kennedy recusing himself. Based on the fact of the 4 to 4 vote, most observers thought that Kennedy would join one side and the decision would be 5 to 4. So who jumped ship?

I had observed the oral arguments in Tom F. and I felt that justices Alito, Scalia, Thomas and CJ Roberts formed one group. The other four, I surmised were Bryer, Ginsburg, Stevens and Souter. If that was right, then three justices changed their positions, Souter, Alito and CJ Roberts. Even if I am wrong (and the per curiam decision did not reveal who the two groups of four were), at least one of these justices changed sides since Tom F. Who do you think it was?

This raises serious doubts about the theory of static or literal interpretation of the law by judges. If three of the eight flipped in the matter of a few months, it would appear that judges really do make law, not just interpret it. Most fair observers of the court would say that ideology guides the decisions of a justice more than any "literal interpretation" theory. Sure that is what they all say in the confirmation process, but does anybody really believe that ideology does not affect court rulings? Fortunately special education is not a liberal or a conservative issue. In this field, the lines blur. I believe that special education has widespread support across the political spectrum, and I hope that remains true.

Now for some additional resources: Here is a news article discussing the case. Here is the take of the SCOTUS blog. Here is an article by a mental health law center encouraging a greater focus upon the least restrictive environment considerations concerning the appropriateness of the parent's private placement.

More on this important decision in the next post in this series.


New Supreme Court Decision - Part I



Well it finally happened. The U. S. Supreme Court decided by a 6 to 3 margin yesterday in favor of the parents in the case of
Forest Grove Sch Dist v. TA 557 U. S. _____ (2009). The opinion by Justice Stevens was joined by five other justices including Ginsburg and Alito. (Once again, I suggest a new motto for special education: special education - bringing people together.) Justice Souter wrote the dissenting opinion and was joined by Scalia and Thomas.

You can view both the majority opinion and the dissent at this link.

A few preliminary observations: first, the supremes essentially adopted the reasoning of the Ninth Circuit, including the argument that it would be absurd to prohibit the possibility of reimbursement where a district never finds a child to be eligible.


Second, the High Court at page 17 of the slip opinion for the first time explicitly recognizes the authority of hearing officers to award reimbursement. This is important given the school district's argument at oral argument that hearing officers lacked such authority.


There will be more about this decision in subsequent posts. Please stay tuned.



Supreme court rules...

Supreme court rules 6 to 3 for parents in special education case see blog tomorrow. listen

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Check Her For Fleas (er...Idea Remedies) Tour



OK so I'm having some fun here, but I'm very excited that I will be giving presentations next month on the two major remedies that a hearing officer may award after an IDEA due process hearing. On July 8th, I'll be presenting on Compensatory Education at the Seattle University School of Law's Eighth Academy for IDEA Administrative Law Judges and Hearing Officers in Seattle, Washington. On July 22nd, I'll be speaking on the Remedy of Reimbursement for Unilateral Placements at the 16th Annual Education Law Conference in Portland, Maine, sponsored by the University of Southern Maine and the University of Maine School of Law. In addition to the links below, I have added registration links on the left-hand side of the blog.

You can learn more about the Seattle Academy through this link. You may register for the conference here. It is designed primarily for due process hearing officers or those who administer IDEA dispute resolution systems.

You can learn more about the Portland, Maine Education Law Conference through this link. You can register for the conference here. This is a more general education law conference.

Both conferences are excellent. As many of you know, I love the networking opportunities that these types of conferences provide. I have made many friends at similar conferences, and they help me with my work all the time. Thanks guys. If you are planning on attending either conference, please let me know. I always enjoy meeting and talking with the many thoughtful and committed readers of this blog.

I just finished a very intensive two day training for five very experienced IDEA hearing officers. As always, I learned a lot from my colleagues. The job of the hearing officer is a tough one, and I love that I get to do these trainings. Thanks to all who were involved. It was great.


Technology Update: Hear This Blog



Sometimes the technology just amazes me. Instead of reading this blog, how would you like to listen to the post headlines and the beginning of the posts. If you have a JOTT account, you can click on the button on the left hand side of the blog and add the special ed law blog to your JOTT feeds. This will enable to dial JOTT's toll-free number on your mobile phone wherever you are and get some special ed law news. There is a fee to have an account, but as I said the technology is really amazing.

Many people with disabilities and their families are familiar with the advances in voice recognition software. I'm just beginning to take advantage of this new stuff. Forgive me if I occasionally mess up!

Most readers will prefer to continue to read the blog. To be sure to receive all the posts, please take advantage of the free subscriptions on the left hand side of the blog. Numbers help in the blogosphere, so please subscribe. You have a choice of receiving the posts by email or in a reader through an RSS feed. If you have your own website or blog, you can also get a widget that will insert the headlines and posts form this blog right into your site. A big thanks to our many subscribers.

The Facebook Special Education Law group now has 359 members. Check out the action here. The Ning Special Education Law group is also growing. You can find it here.

For those of you who use LinkedIn, there is now a LinkedIn Special Education Law group. The group is new but growing quickly. Here is a link.

You can also check out my twitter mini-posts on the left hand side of the blog. I am still challenged by the small number of characters allowed. As you all know, soundbite are not my style. By the way, check out my new Twitter logo. I made it myself!


Parents Prevail Over District in our Poll about the Pending Supreme Court Case

Well our poll has closed and For the Parents won out over For the District by a margin of 27 (50%) to 23 (43%) with three readers recusing themselves. I know that this poll is not "scientific," and that one should not extrapolate from it. However, that being said, if the Supreme Court were made up of our readers instead of presidential appointees (and what a better world that would be!), one would expect the Forest Grove v. TA decision to be 5 to 4 in favor of the parents.

When the decision comes down, we will compare it to our polling results. The poll was designed as a fun exercise to measure the feelings of our readers. From those who felt strongly enough to vote, there was only a difference of four votes. This mirrors the disagreement in the country, I think, about this question, but we make no predictions as to the actual outcome.

The case is important, and we know that the Congressional Research Service staff has flagged the issue as one for Congress to review during IDEA reauthorization. For me and the other due process hearing officers, there is also the issue discussed during oral argument pertaining to hearing officer authority. We'll be watching any discussion in the opinion concerning that question.

Thanks for casting your votes.



Supreme Court Smacks Down Appearance of Bias



It's embarrassing. The U S Supreme Court just smacked down the high court of my state. In Caperton et al v. Massey Coal et al, the court found that a justice of the West Virginia Supreme Court of Appeals failed to properly recuse (or disqualify) himself. Please stop the emails with questions such as -are your judges still the finest that money can buy? Only funny for so long.


The facts of the case are that a large coal company was the loser in a civil case with a huge punitive damages award. The owner of the coal company allegedly formed one of those shadowy Section 527 organizations and spent nearly a gizillion dollars to elect his own candidate to the West Virginia high court. His guy narrowly won, and when the judgment against the coal owner was appealed, his guy was asked by the other side to recuse himself. He declined, and the matter was appealed to the highest court in the land.

Earlier this week, the supremes ruled by a typical 5 to 4 vote that the failure to recuse violates the due process clause of the U S Constitution. Some commentators see this as an expansion of the rule for disqualification to include cases where there is a distinct appearance of partiality as opposed to actual bias. Here is a news account regarding the case. Here is a summary of the decision by the SCOTUS blog. Here is the majority opinion by Justice Kennedy.

There is a connection to special ed law. Due process hearing officers and other administrative hearing examiners are generally held to a similar standard as judges with regard to disqualification. My fellow hearing officers will have to decide whether this opinion by the supreme court lowers the bar for disqualification as to the amount of apparent bias that will trigger disqualification. I've already had discussions about this decision with a number of hos, and they are evaluating the impact of this case. Stayed tuned for more.


Speaking of the supreme court, this is the last day to vote on our poll question. How would you vote on the special education law issue now before the high court? Exercise the "franchise."



Guitar Hero... (er, IDEA Remedies) Tour & Webinar Reflefction



OK so I'm taking some liberties with the name of the tour, but I'm very excited that I will be giving presentations next month on the two major remedies that a hearing officer may award if the parents/student prevail in an IDEA due process hearing. On July 8th, I'll be presenting on Compensatory Education at the Seattle University School of Law's Eighth Academy for IDEA Administrative Law Judges and Hearing Officers in Seattle, Washington. On July 22nd, I'll be speaking on the Remedy of Reimbursement for Unilateral Placements at the 16th Annual Education Law Conference in Portland, Maine, sponsored by the University of Southern Maine and the University of Maine School of Law. In addition to the links below, I have added registration links on the left-hand side of the blog.

You can learn more about the Seattle Academy through this link. You may register for the conference here. It is designed primarily for due process hearing officers or those who administer IDEA dispute resolution systems.

You can learn more about the Portland, Maine Education Law Conference through this link. You can register for the conference here. This is a more general education law conference.

Both conferences are excellent. As many of you know, I love the networking opportunities that these types of conferences provide. I have made many friends at similar conferences, and they help me with my work all the time. Thanks guys. If you are planning on attending either conference, please let me know. I always enjoy meeting and talking with the many thoughtful and committed readers of this blog.

I continue to reflect upon my first webinar experience last week. Giving a presentation with streaming video of me in one corner of the screen while I talk through a conference call and while participants can either talk or use the chat room to communicate was exhausting but a lot of fun. Watching my self on my computer screen was a bit odd. I had no idea that I touch my nose so often while I am speaking, I have to stop doing that. But the experience was great and I want to thank all the hearing officers who participated in the training as well as the state dispute resolution coordinators and the regional resource center lawyer who made it possible. Also the tech people really were patient with me and I appreciate that. I think that more webinars are on the horizon.

By the way, here are only two more days to vote in our poll on the left-hand side of the blog. The question in the current, not at all scientific, poll is how would you vote on the case now before the Supreme Court? For the Parents is leading For the School District by a margin of 26 to 21 with 3 recusals. If you haven't already done so, please vote.


Sotomayor Part II; Tech Update

Since I brought up the Sotomayor nomination, any new justice has some impact upon the supreme court. My question is how she will rule on special education cases.

Since the last post, I have found some more interesting information on Judge Sotomayor. For those of you who are very interested, you can read her entire 173 pages of answers on the questionnaire given to her by the Senate Judiciary Committee. Here is a link.

For those who would prefer a nice summary of what is likely to occur at the confirmation process, the SCOTUS blog has done just that. Here is a link to that summary.

How's this for cool? I conducted my first webinar yesterday. It was a training for approximately 45 special ed hearing officers from the northeastern portion of the United States. Thanks to all the help I had with my friend at the agency and the tech people holding my hand through the process, I believe that it was a very successful training. I still prefer the dynamic interaction of face-to-face trainings, but given the economy and the development of the technology, I'm sure that there will be more of these in the future.

If you would like to join the already large group of people who subscribe to this blog, you may subscribe on the left-hand side of the blog. You may choose among two types of free subscriptions: receive my posts by email or receive the posts in a reader or aggregator. If you have your own blog or website, you can also click on the orange button and create a special education law blog widget to include in your own website. I'm proud that a very diverse and thoughtful group of special education players already take advantage of the free subscriptions to this blog, but new folks are always welcome.

The Facebook special education law group continues to grow. It now boasts over 350 members. You can join the lively and informative discussions of the group by joining here.

The Ning special education law group is also growing and has some very interesting discussions. You can join the Ning group here.

My most recent twitter mini-posts appear on the left-hand side of the blog. You can also click on the link below them in order to follow my tweets on Twitter.

Do not forget about our poll. There are only four days left to vote on the (admittedly not even close to scientific) poll question: how would you vote on the case before the Supreme Court? For the Parents is leading For the District by a margin of 25 to 21, with 3 people "pulling a Justice Kennedy" as we say in the trade.


The Role of the Federal Government in Education - Common Standards

We have previously addressed the topic of the role of the federal government in education. Politicians have forever extolled the virtues of local school boards being responsible education policy. Still, since the founding fathers first planned our form of government, the federal role in education has been debated.

Recently 46 states plus the District of Columbia have announced a plan to draft common curriculum content standards across the nation. Only Alaska, Texas, South Carolina and Missouri have not joined the effort. This is not a project of the federal government; it has been originated by the states. It will, however, result in common national curriculum standards. Yet another area would be out of control of local and state school boards. Education Secretary Duncan has applauded the effort and hailed it as the "...beginning of a new day for education in our country..." Here is a news article concerning the content standards movement.

This has implications for the No Child Left Behind Act. It also has implications for children with disabilities; particularly as to the issue of how such children are tested, and especially as to how children with severe cognitive disabilities are tested.

So how do you feel about common content standards? Is this a positive development or a negative development?