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

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.

Read More ...

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.