By Brian Jason Ford, Esq., Legal Editor
This post origionally appeard as the May, 2009 issue of the DBYD Education Law Newsletter.
Obama Nominates Sotomayor to U.S. Supreme Court
How well do you know the nominee?
Take our quiz and find out!
WARNING – This edition of the newsletter a bit heavy with acronyms and legalese but, every now and then, those of you down in the weeds deserve a little “inside baseball.”
This week, President Obama nominated Federal appeals court judge Sonia Sotomayor to the United States Supreme Court. Writing for Education Week’s School Law Blog, Erik W. Robelen noted that Judge Sotomayor sat on appellate panels in Second Circuit education law decisions including Garcia v. Yonkers School District (awarding legal fees to students in a student protest case) and Somoza v. New York City Department of Education (regarding the interplay between the IDEA’s two-year statute of limitations and New York state law). You can read Mr. Robelen’s post at this link.
A cursory glance will reveal almost 60 education and disability law cases that Judge Sotomayor has either participated in or decided throughout her career. I will not attempt to use these cases to pigeonhole Judge Sotomayor. But, if prior decisions forecast future holdings, consider these additional highlights as we play…
Better Know A SCOTUS Nominee!
Olson v. State of New York
U.S. Court of Appeals, Second Circuit
Written by Sotomayor
A New York State Police investigator who was also a union official was hospitalized for depression. After getting out of the hospital, he returned to work but started fighting with and cursing at his supervisors and stopped following orders. Later when the investigator was fired, he brought an ADA action against the state police but lost in front of a jury. The investigator appealed to Judge Sotomayor, who affirmed because…
A) The trial judge properly placed the burden of proof on the investigator; OR
B) The trial judge properly placed the burden of proof on the state; OR
C) The trial judge’s jury instructions, although far from ideal in that they did not properly explain “mixed-motive” burden shifting, were harmless.
ANSWER: C – This is Judge Sotomayor saying, “no harm no foul.”
Cortese v. New Fairfield Board of Education
U.S. Court of Appeals, Second Circuit
Acting without a lawyer, Mother brought an IDEA action (denial of FAPE) against her school district. She brought the lawsuit on her own behalf and on behalf Son, a student with disabilities. Son was 17 years old when Mother filed the lawsuit, but turned 18 – the age of majority – eight days later. The trial judge dismissed Mother’s clams, reasoning that students have rights under the IDEA, not their parents. At this point, Mother asked the trial judge to let the case go forward under Son’s name (i.e. treat Son as a separate plaintiff pursuing his own case). The trial judge refused, dismissing the case in its entirety, because Son was an unrepresented minor when the claim was filed. Mom and Son appealed to a panel of judges including Judge Sotomayor. The panel concluded…
A) The trial judge got it wrong. Parents have rights under the IDEA so Mother’s claims should not have been dismissed. Also, no matter how old the student was when the case was filed, he is now 18 and can speak for himself in court; OR
B) The trial judge got it wrong. Parents are entitled to FAPE so Mother’s claims should have continued no matter what Son’s status was; OR
C) The trial judge got it right. Students, not parents, are entitled to FAPE and minors are not allowed to represent themselves.
ANSWER: A – This is Judge Sotomayor showing deference to a pro se litigant.
Bonus fact! After this case was decided, the Supreme Court ruled that lawyer-less parents can represent their minor children in court! See Winkelman ex rel. Winkelman v. Parma City School Dist., 550 U.S. 516 (2007).
Mr. and Mrs. B. ex rel. M.B. v. East Granby Board of Education
U.S. Court of Appeals, Second Circuit
Mr. B. sued his school district alleging a denial of FAPE and seeking tuition reimbursement. Mr. B. lost both at the Due Process Hearing and Federal District Court level. He could not obtain reimbursement because, according to both the Hearing Officer and the trial judge, M.B.’s evaluations and IEPs were appropriate. Nevertheless, the trial judge upheld the Hearing Officer’s award of 10% of Mr. B.’s attorney’s fees. When the case reached Judge Sotomayor’s panel, on the issue of fees…
A) Parents were awarded 100% of their attorney’s fees. Parents are entitled to “fee shifting” if they prevail in even the slightest part of their case; OR
B) Judge Sotomayor’s panel ordered the trial judge to reconsider his opinion because (1) the Hearing Officer did not actually award attorney’s fees, (2) the Hearing Officer would not be allowed to order attorney’s fees even if she did and (3) the trial judge has to determine how successful – or not – the parents are before he can determine if they are entitled to anything; OR
C) Lets keep this simple. In the words of Willie Wonka, the panel said to Mr. B., “You lose! You get nothing!”
ANSWER: B – it’s messy, but legally correct.
State of Connecticut Office for Protection and Advocacy for Persons with Disabilities v. Hartford Board of Education
U.S. Court of Appeals, Second Circuit
Written by Sotomayor
The Connecticut Office for Protection and Advocacy (OPA) is a state-created agency authorized to investigate suspected abuse or neglect of individuals with disabilities or mental illness in Connecticut and to advocate on their behalf. OPA wanted to (1) observe and interview students a district-operated therapeutic school for students who are seriously emotionally disturbed, in order to investigate complaints of abuse and neglect at the school, and (2) obtain a directory of students with contact information for their parents or guardians. The Hartford Board of Education refused. Judge Sotomayor ruled…
A) OPA gets in because the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI”), the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (“DD Act”), and the Protection and Advocacy of Individual Rights Act (“PAIR”) say they can; OR
B) Despite all of those laws, OPA stays out because students have privacy rights under both FERPA and the IDEA; OR
C) OPA gets in under all the laws listed in (A) and because neither FERPA nor the IDEA keeps them out.
ANSWER: C – Hartford was all by itself on this one.
Bonus fact! The U.S. Departments of Education and Health and Human Services filed amicus briefs in this case to say that the access that OPA sought was okay under both FERPA and the IDEA.
As the confirmation process moves forward (or drags on – depending on your point of view), we will let you know if Judge Sotomayor faces any education law question on her way to the bench.
This post is subject to a disclaimer.
Related posts:
