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.
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