Education Law

More on Board of Education of the City of New York v. Tom F.: Oral Argument

By Justin Bathon

As promised, here is a little more on the Oral Argument at the Supreme Court in the case of Board of Education of the City of New York v. Tom F.

                                                                            

Jim Gerl's Analysis at the Special Education Law Blog:

When the oral argument began, Justice Kennedy left the Courtroom. Apparently he recused himself from the case and will not take part in the decision. The most active questioners were Justices Alito, Scalia and Chief Justice Roberts. Souter and Ginsburg asked a few questions, and Bryer, Stevens only asked about one area each. Thomas said nothing, although at one point he and Bryer had a very polite private conversation for few moments. I was more surprised by their civility than anything.

The thrust of the questions from Alito, Scalia and Roberts to the school district attorney concerned what purpose could be served by reading the statute to mean that Congress meant to require that a student with a disability be kept in an inappropriate placement for just a short period of time.

The questions that Alito, Scalia and Roberts asked of the parents' attorney and the Solicitor General (who argued in favor of the parents' position) centered on whether the language used by Congress was really ambiguous and whether the intent of Congress was to keep "well-healed" parents who have no real intention of putting their children in public school from obtaining reimbursement.

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Oral Argument Transcript: Here

Legal Podcast by Ruth Colker a Professor at Ohio State. Audio.

Debra Cassins Weiss at the ABA Journal thinks the court is leaning to denying parents the tuition reimbursement as many wealthy parents would send their child to private school anyway.

PBS Newshour Analysis by Marcia Coyle (Video & Audio Available).

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Also, Justice Kennedy recused himself from the oral arguments and the case. Combined with a court official's heads up to an artist, this is spurring rumors of an imminent departure from the bench. Here is the blurb in Legal Times.

Kennedy recused himself in the Tom F. arguments, quietly slipping out of his chair and out of the courtroom in the short lull between the two arguments. Justices very rarely give explanations for recusal and the reason behind Kennedy's decision to recuse in this case was not widely known. A Court official gave a friendly heads-up to an artist starting a courtroom sketch before the justices took the bench, telling her to be sure to draw Kennedy during the first hour of argument.

Full post as published by Edjurist on October 06, 2007 (boomark / email).