I normally do not blog more than once a week as readers know. However, there have been some developments at the United States Supreme Court, and I wanted to take this opportunity to expand on that. Before moving on, CUBS WIN THE WORLD SERIES!!!!!!!!!! Game seven was an epic game that ended after the trophy ceremony at 1:30 AM Eastern time. I was certainly groggy the next day:-) I do want to congratulate an excellent Cleveland team for a great season and putting up a terrific fight. It quite literally wasn’t over until it was over. ESPN had an excellent, quite long actually, article on how the Cubs victory set off a chain of generational soul-searching across Chicago. If Theo Epstein gets bored of running baseball teams, no doubt he could win mayor of Chicago or be a Senator from Illinois if he wanted to. With respect to his legal background, he actually has a law degree from my J.D. alma mater, University of San Diego. Certainly, look for Theo to go into the Hall of Fame someday for having broken two curses. At any rate, back to business.


In this blog entry, I mentioned that the United States Supreme Court had three disability rights cases before it this term. Now, let us say that they have one and ½ . In the Texas drivers license case, the Supreme Court vacated the lower court judgment with instruction to dismiss it as moot. It also heard oral argument on October 31, 2016, in Fry v. Napoleon Community Schools. While I did not listen to the argument, I did read the transcript of the argument, and I thought the following would be worth noting.


  1. Reading between the lines, it seems that Chief Justice Roberts may be concerned, in my opinion justifiably, that IDEA by itself simply does not afford the parents enough leverage if things start to go south with implementation of an IEP. In many places in the oral argument, he seemed concerned about whether the parents had sufficient leverage under the current system, especially if a broad reading of the exhaustion requirement was upheld. He also made the statement that 105 days is a big part of the school year when it comes to how long IDEA takes to run its course, which is a valid concern considering a typical school year is only 180 days of instruction.
  2. Justice Kagan and Justice Ginsburg clearly seem to be in the corner of Fry.
  3. Justice Alito and Justice Thomas were completely silent (Justice Thomas usually is, but not necessarily Justice Alito), during the oral argument.
  4. Justice Sotomayor said that allowing a dual track with respect to IDEA in every case would bother several of the Justices.
  5. Three Justices (Breyer, Sotomayor, and Kennedy), were receptive to a standard that IDEA exhaustion would depend upon reviewing the complaint to ascertain as Breyer put it, “its heart and soul.”
  6. Counsel for the school district took things way too far when he said that exhaustion should be required for students with disabilities, 700,000, who did not have an IEP but where IDEA my cover the situation if they did. Fortunately, there does not seem to be support on the Supreme Court for that proposition nor does it seem legally correct to argue that someone should be subject to a law they had not consented to be subject to where consent is necessary in the first place. That is, the special education process cannot take place without parent consent.
  7. I could also see Fry winning on the narrow grounds that exhausting administrative remedies was futile in this case. However, a decision based on that grounds would not offer much clarity for future cases.
  8. If I am reading Chief Justice Roberts’ thoughts correctly, admittedly a dangerous game with respect to trying to ascertain that based on oral argument, he may be of the opinion with respect to a case to be heard later in the term, that a school to meet its IDEA obligations has to go beyond mere minimums.
  9. At its heart, this case is a procedural question, and so the ultimate resolution may not break down on strict ideological lines. From the oral argument, I will be surprised if Fry does not win, but the question will be on just what grounds will she prevail.