Chalk One Up For Judge Sotomayor: Supreme Court’s Affirmance Today of 9th Circuit Decision Effectively Upholds Sotomayor Ruling

by Judith E. Schaeffer, Vice President of Constitutional Accountability Center

With the Supreme Court’s long-anticipated ruling today in the Voting Rights Act case (NAMUDNO), another decision issued today may not get as much immediate attention, but it’s a decision that nonetheless is worth noting because of its link to Supreme Court nominee Sonia Sotomayor. Specifically, in the Court’s 6-3 ruling today in Forest Grove v. T.A., the Court affirmed a decision by the U.S. Court of Appeals for the Ninth Circuit, and in so doing effectively upheld a Second Circuit decision that Judge Sonia Sotomayor joined in 2007, Frank G. v. Board of Education of Hyde Park, 459 F.3d 356 (2d Cir. 2006), <em>cert. denied</em>, 128 S. Ct. 436 (2007).


At issue in both cases was whether the 1997 amendments to the Individuals with Disabilities Education Act (IDEA) categorically bar parents with a disabled child from obtaining tuition reimbursement from their local school district for private school tuition if they have not first obtained special education services from a public school before placing their child in a private school.  The Second Circuit in Frank G. and the Ninth Circuit in Forest Grove both held that there is no such bar.


The Supreme Court considered this same statutory issue in a later case from the Second Circuit, Board of Education of the City of New York v. Tom F., 552 U.S. 1 (2007), but split 4-4, with Justice Kennedy having taken no part in the case. While that evenly divided ruling had the effect of leaving the Second Circuit’s decision in Tom F. in place, it had no precedential effect, and so today’s decision gave the Supreme Court another opportunity to have the final word on the matter. 


Judge Sotomayor was not on the Tom F. panel, but she was a member of the Second Circuit’s earlier unanimous panel decision in Frank G. holding that the IDEA as amended does permit private school tuition reimbursement under these circumstances. The Second Circuit in Tom F. issued a summary order relying on Frank G. When the issue came before the Ninth Circuit in Forest Grove, that court also relied on Frank G., stating “We agree with and adopt the analysis and conclusion of the Second Circuit [in Frank G.]” and “We see no reason to disagree with the Second Circuit’s well-reasoned analysis of this issue.”


And neither did the Supreme Court today, which effectively ruled that Judge Sotomayor and her colleagues got it right in Frank G. Court watchers of course will note that the dissent was written by Justice Souter — who Judge Sotomayor has been nominated to succeed — and joined by Justices Scalia and Thomas.