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Supreme Court to Weigh Education Law, More in New Session

October 1, 2007 at 12:00 AM EST
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JIM LEHRER: Opening day of a new term of the U.S. Supreme Court. NewsHour regular Marcia Coyle of the National Law Journal was in the courtroom.

Marcia, welcome.

MARCIA COYLE, National Law Journal: Thank you, Jim.

JIM LEHRER: Let’s go through the two cases today that were argued. First there was a special education course. What are the facts?

MARCIA COYLE: OK. This involved the Individuals with Disabilities in Education Act, a federal law that guarantees children with disabilities a free and appropriate education. The question here is, must school districts reimburse parents of disabled children for the cost of a private education if the parents have not tried and the school is willing to provide the services that the child needs?

The law is somewhat ambiguous. The school district here — it’s New York City — is saying, no, you have to try the public school first. The parents of the child involved here is saying, no, the law guarantees this free and appropriate education, and we feel our child is best served in the private school.

JIM LEHRER: Now the arguments — what were the two sides saying before the court today?

MARCIA COYLE: Basically, as I said, it’s a statutory interpretation case, so they’re honing in on certain language in the statute as to what is required in order for parents to get reimbursed for private services.

JIM LEHRER: And in a nutshell, the plaintiffs in this case, the parents of the student, claim that they don’t have to go to this public school. They decided before going to the public school that the private school was the best for the child, right?

MARCIA COYLE: Exactly. And they also say that they really did try the public schools in one sense. The child was evaluated at one point and provided an IEP plan, an individualized education plan. But the child never actually was in the public school system.

JIM LEHRER: Just for factual reasons, what was the disability of the child in this particular case?

MARCIA COYLE: Multiple learning disabilities. And, apparently, the child is now out of the private school setting and has been mainstreamed into the public school system.

Reactions to the education case

Marcia Coyle
The National Law Journal
Private education in a city like New York can be very expensive, and you're talking about, I think in New York City, several thousand children who may qualify for reimbursement. So you're talking about a lot of money.

JIM LEHRER: What was the reaction of the justices to the arguments on both sides?

MARCIA COYLE: Well, they seemed to have difficulty with the parents' argument that they did not try the public school system. If the public school was willing to provide the service, maybe the best route was to go first, if the service didn't work, then the parents can appeal and go before a neutral hearing examiner to determine whether the setting was appropriate for the child.

And they also felt the language -- some of them felt the language in the statute also seemed to require that this public school get the first try. So it seems as though they were more sympathetic to the city of New York's argument.

And, you know, Jim, there is really a financial burden here in some ways, and that is really secondary to what the law is trying to guarantee parents. But private education in a city like New York can be very expensive, and you're talking about, I think in New York City, several thousand children who may qualify for reimbursement. So you're talking about a lot of money.

JIM LEHRER: I read in the story that it's more than $25,000 per student.

MARCIA COYLE: Yes, $25,000 to $30,000 per student, and I think somewhere over $5,000 a year qualifying for reimbursement.

JIM LEHRER: You characterized the reaction of the justices. Was there any particular breakdown among them on a conservative-liberal basis?

MARCIA COYLE: No, I wouldn't say that this was that way at all. And that's often the case on statutory interpretation. It's really how you view the language of the law.

JIM LEHRER: Rather than philosophy or any of that.

MARCIA COYLE: Yes.

The Washington election law case

Marcia Coyle
The National Law Journal
Washington is saying it's trying to open up voting and access to the ballot. The problem is, this particular system allows the candidate to state on the ballot his or her preference for a particular political party.

JIM LEHRER: All right, now the second case had to do with the state of Washington and the IDing political parties and primaries.

MARCIA COYLE: Right, this is actually one of three election law cases the court has taken this term. And the state of Washington is trying, it has not yet implemented a new election system that's called a top-two election system. Registered voters would be allowed to vote in a primary for any candidate for a particular office, regardless of party.

JIM LEHRER: You don't have to be registered as a Republican to vote in the Republican primary or a Democrat...

MARCIA COYLE: No. In Washington, you just have to be a registered voter. Washington is saying it's trying to open up voting and access to the ballot. The problem is, this particular system allows the candidate to state on the ballot his or her preference for a particular political party.

The Republican Party in Washington is challenging this system, saying, what this system does is it violates the political party's right of association. What you're doing here is you're turning our right to nominate candidates into a right to endorse candidates. And you can't do that.

If somebody states a preference for a particular party, say, "I prefer Republicans," and wins, the Republican Party is saying, "Well, we didn't choose that person. We didn't nominate them."

JIM LEHRER: Anybody could have.

MARCIA COYLE: That's right. And whoever gets the top two number of votes go on into the general election.

JIM LEHRER: Whether they're a Republican or a Democrat?

MARCIA COYLE: That's correct.

The right to disassociate

Marcia Coyle
The National Law Journal
Some of them were sympathetic to the political parties. Justice Scalia in particular said, well, you know, there's a right to associate. There should also be a right to disassociate.

JIM LEHRER: I mean, in other words, they would be -- I got you. There would be a Republican nominee and a Democratic nominee, right? They'd be chosen by all the voters, right? Have I really screwed this up now?

MARCIA COYLE: Yes, it's top two regardless of party. They're trying to take party out of elections.

JIM LEHRER: I see. How did this go down with the justices?

MARCIA COYLE: I would say some of them were sympathetic to the political parties. Justice Scalia in particular said, well, you know, there's a right to associate. There should also be a right to disassociate, and this is taking away that right, this new election system.

Some justices were sympathetic to the state, which felt basically this is just giving the preference information. It's just additional information on the ballot, and there's lots of other information on the ballots. And voters know how to pick candidates. This is going to be a hard one to call.

JIM LEHRER: It is.

All right, now, you mentioned election law. There are other election law cases coming up. And there are also some war on terror cases. This is going to be a busy term, is it not?

MARCIA COYLE: I think the stakes in this term rose considerably about a week ago when the court added about 17 cases to the docket and added the lethal injection case involving how death penalties are carried out by the majority of states in this country. The justices are going to take a look at what standard you use to decide whether the drug cocktail used in a lethal injection is cruel and unusual punishment.

The term ahead

Marcia Coyle
The National Law Journal
Whether this particular term will be as divisive and ultimately as conservative as last term I think depends on the nature of the cases, as well as on Justice Anthony Kennedy, who is in the middle on so many of the closely divided cases.

JIM LEHRER: And they also have -- on the war on terror, they still have some combatant issues and Guantanamo issues...

MARCIA COYLE: Guantanamo is producing a lot of litigation. The case that the court has taken asks a very fundamental question. Congress, as you recall last year, enacted the Military Commissions Act of 2006, setting up a system for trying those at Guantanamo who are designated enemy combatants.

But Congress also took away the jurisdiction of the federal courts to consider challenges by these detainees to their detention in Guantanamo. And so the Supreme Court's being asked, did Congress violate the Constitution by stripping the courts of their so-called federal habeas jurisdiction?

JIM LEHRER: Looking at what they have on their plate, the session runs through June. Is the conventional wisdom going in that we now have a full-fledged conservative court, with Justice Kennedy being the likely swing if there is, in fact, a swing 5-4?

MARCIA COYLE: I think that's true. I think last term, when we had the first full term with Justice Samuel Alito, revealed that this court is a more conservative court now that he is there and Justice Sandra Day O'Connor is gone. And I think that is going to be the trend.

Now, whether this particular term will be as divisive and ultimately as conservative as last term I think depends on the nature of the cases, as well as on Justice Anthony Kennedy, who is in the middle on so many of the closely divided cases.

JIM LEHRER: And he's the least predictable of the nine, correct?

MARCIA COYLE: Right now he is, yes.

JIM LEHRER: All right, you expect that to continue?

MARCIA COYLE: I think it will, in certain cases like the terrorism cases, in the death penalty cases we'll see that, and even in some of the election cases we'll see that.

JIM LEHRER: All right. Marcia Coyle, thank you very much.

MARCIA COYLE: You're welcome.