Font Size: 
Will Justice Kennedy Recuse Again?
Legal Times
October 21, 2008
Supreme Court Justice Anthony Kennedy
Image: Diego M. Radzinschi/Legal Times
Correction: An earlier version of this article mischaracterized the 9th Circuit ruling in the Forest Grove case, which is now before the court.
One of the more confounding Supreme Court happenings of 2007 was Justice Anthony Kennedy's recusal in two cases involving an important issue arising under the Individuals with Disabilities Education Act. The question, returning to the Court soon, is whether parents can obtain tuition reimbursement for direct placement of their child in a private school special education program without first trying a public school program.
In Board of Education v. Tom F. last term, the issue was extensively briefed, with school boards stressing the financial impact of the issue. Two weeks before it was argued in October 2007, Kennedy announced he was recused in the case, offering no explanation -- standard practice for the justice. A week after arguments, the Court announced the ruling below was affirmed without an opinion by a Court that was evenly divided because of Kennedys recusal.
Soon after, Kennedy recused again in another case raising the same issue: Board of Education of Hyde Park v. Frank G. Perhaps realizing a 4-4 tie would again result, the Court denied review in the case in October 2007, before extensive briefing or argument.
Both cases were from the New York City area, where some of Kennedy's children and grandchildren live, but no family connection to the cases or to the underlying issue could be found. Still, groups with a stake in the issue hoped that the next case raising it would come from a different part of the country.
Such a case was filed in September: Forest Grove School District v. T.A. The student in the case actually was enrolled in public schools until his junior year of high school, but he never received special education services from the Oregon district. His parents took him out of the school and enrolled him in a private program for which they sought reimbursement. The district refused and sued.
The 9th U.S. Circuit Court of Appeals sided with the student, ruling that because the law is ambiguous, there is no "categorical bar" against tuition reimbursement for students who have never received public school special education services.
In seeking review from the high court, Gary Feinerman, the lawyer for the school district, told the justices that the circuit split over the issue has "persisted and deepened" since the Court's earlier cases. Feinerman, a partner at Sidley Austin in Chicago and a former law clerk to Kennedy, declined to make any predictions about the justice's participation in the case.
Francisco Negron Jr., general counsel of the National School Boards Association, who filed a brief supporting Forest Grove, said in a statement that the issue needs to be resolved. "Without a decision in the Tom F. case last year, the Court has left open the question of reimbursement for services to special education students that are placed in private schools unilaterally by their parents."
