Supreme Court Justice Anthony Kennedy has done it again. In an order released today, Kennedy indicated he has bowed out in the Court's denial of review in Board of Education of Hyde Park v. Frank G. -- the second case he has recused in that involves reimbursement of private school special ed tuition under the Individuals with Disabilities Education Act (IDEA.)
His earlier recusal in the case of Board of Education of the School District of the City of New York v. Tom F. resulted last week in the case being decided by a 4-4 tie. That was a big loss for public schools, at least in the Second Circuit where the case originated. Public schools had hoped to convince the Court that the law requires parents to at least try the educational plan devised to help their students in public school before they can opt for private school and demand tuition reimbursement. When the New York City case fizzled, hopes were high that the Court would take the Hyde Park case raising the same issue.
For public schools and special ed advocates, it would be useful to know why Kennedy is recusing, and whether the issue can ever be resolved nationwide by a nine-member court. But adhering to his traditional practice, Kennedy is declining to state his reasons. Kennedy has children and grandchildren who live in the New York area, but no connection between his family and this issue has yet been determined -- nor any financial connection for that matter. (We'd welcome any information from readers that might shed light on the mystery.)
While we're on the subject, here's a link to our ongoing feature that seeks to explain justices' recusals when the justices decline to do so themselves. It's updated as of today's orders list, which also notes several recusals by Justice Stephen Breyer.
We filed a petition on a handicapped rights case involving our daughter where we cited Winkelman for Justice Kennedy's reasoning to extend rights of parents of autistic adult children to sue state agencies civilly for civil rights, wrongful imprisonment and personal injuries on their behalf, based on similar language in the ADA. The whole thing made perfect sense if you followed the Kennedy decision in Winkelman. Our petition (Golin v. Allenby 06-1562) was denied certiorari a few months ago. Now we are wondering why Kennedy would have recused himself, too. He's our justice and gave us two extensions of time to file. I am wondering if they Justices are having second thoughts about how their decisions could open the floodgates to lawsuits. Does anyone know whether Kennedy has an autistic child in his family?
Posted by: Jeff Golin | October 27, 2007 at 02:21 PM