Supreme Court Agrees To Decide Issue That Caused Kennedy Recusal

The Supreme Court today agreed to take up six new cases later this term, including one from Oregon that raises an issue that had previously deadlocked the Court because of the recusal of Justice Anthony Kennedy.

The same issue has divided lower courts for years: whether students with disabilities must first try a public school's special education program before they can obtain reimbursement for private school tuition under the federal Individuals with Disabilities Act. The current case is called Forest Grove School District v. T.A.

As we reported last year, two other cases raising the issue have gone before the Court, neither of which was resolved by a ruling. In one 2007 case, Kennedy suddenly recused after briefs were filed, but before oral arguments were heard. After arguments in that case, Board of Education v. Tom F., the Court announced the ruling below was affirmed by a 4-4 vote, leaving the issue open because Kennedy could not participate.

The Court then denied review in a second case raising the same issue. Kennedy, like most other justices, declined to state his reasons for recusal in the Tom F. case. But both cases were from New York, where some of Kennedy's children and grandchildren live -- leading to unconfirmed speculation that one of the justice's relatives could be affected by the outcome.

In granting the case today, the Court gave no indication that Kennedy was recused, suggesting that whatever had caused his earlier recusal has now been resolved, and a full court will be able to decide the issue.

In the Forest Grove case, the U.S. Court of Appeals for the 9th Circuit sided with the student, finding there was no "categorical bar" against tuition reimbursement for students who had not first enrolled in a public school's special education program.