Judiciary Watch

Senate confirms Kentucky lawyer to 6th Circuit Court of Appeals

The Senate, by a 51 to 47 vote, last week confirmed John K. Bush to the United States Court of Appeals for the Sixth Circuit.  Bush is a 1989 graduate of Harvard Law School and clerked for Hon. J. Smith Henley of the U.S. Court of Appeals for the 8th Circuit.  He has been in private practice with Bingham Greenebaum Doll LLP in Louisville, KY since 1996, focusing primarily on appellate law and representing clients before federal courts of appeals, state supreme courts, and the U.S. Supreme Court.

Senate confirms Nye to federal bench in Idaho

The senate last week, by a unanimous vote, confirmed Hon. David C. Nye to the district court in Idaho.  Nye has been a judge in Idaho’s Sixth District since 2007.  Prior to taking the bench, he was in private practice with Merrill & Merrill, with a focus on insurance defense work.  Nye is a graduate of Brigham Young Univ and the J. Reuben Clark School of Law.

4th Circuit upholds block on travel ban

The 4th Circuit Court of Appeals today ruled 10 to 3 to uphold a lower court ruling blocking the Trump Administration’s revised travel ban.  Writing for the majority, Hon. Roger Gregory said, “We find that the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs.” The case is likely to go to the Supreme Court. 

Trump set to announce 10 court nominees

This week President Trump is expected announce 10 nominees to fill more than 120 vacancies on the federal courts.  The list includes two judges serving on state supreme courts:  Hon. Joan L. Larsen, who clerked for Justice Scalia, to the Sixth Circuit; and Hon. David R. Stras, a former clerk to Justice Thomas, to the Eighth Circuit.  Hon. Amul R. Thapar, a U.S. District Judge in Kentucky, has been nominated to the Sixth Circuit Court of Appeals.

Also among the expected nominees:  Amy Coney Barrett, a Notre Dame law professor, to the Seventh Circuit; John K. Bush, a lawyer in Louisville, Ky, to the Sixth Circuit; Kevin C. Newsom, a lawyer in Birmingham, Ala. and former clerk to Justice Souter, to the 11th Circuit; Dabney L. Friedrich, U.S.D.C., D.C.; U.S. Magistrate Judge Terry F. Moorer, to the U.S.D.C., M.D. Ala.; David C. Nye, a state judge, to the U.S. district court in Idaho; and Scott L. Palk to the federal district court in Oklahoma City.

Judge block Trump's sanctuary city order

Hon. William H. Orrick, N.D. California, issued a temporary injunction on Tuesday blocking President Trump’s executive order seeking to hold back billions of dollars in federal funding from cities that limit their cooperation with immigration enforcement, or sanctuary cities.  The ruling applies nationwide, until a broader ruling on the underlying constitutional issues can be made.  Orrick found that only Congress has the power to place these conditions on spending.  Trump responded to the ruling by tweeting “See you in the Supreme Court!”  The ruling would first have to be appealed to the 9th Circuit Court of Appeals before it could be brought before the Supreme Court. 

Orrick was appointed to the bench in 2013 by President Obama.  He is a graduate of Yale Univ. and Boston College School of Law.  Prior to taking the bench, Orrick was in private practice in San Francisco and a Deputy Assistant Attorney General.  Lawyers interviewed for the Almanac of the Federal Judiciary said Orrick “has excellent legal ability” and that his political proclivities do not “affect his position on the bench.”

Gorsuch confirmed to Supreme Court

The Senate today confirmed Hon. Neil M. Gorsuch to the U.S. Supreme Court, to succeed Justice Antonin Scalia, who died over a year ago.  The vote was 54-45 in favor of confirmation, with three Democrats joining Republicans.

Senate Republicans deploy nuclear option, ending Gorsuch filibuster

Senate Republicans today changed Senate rules, clearing the way for the confirmation of Hon. Neil M. Gorsuch to the U.S. Supreme Court.  After a 55-45 vote failed to end a Democratic filibuster, Republicans used the “nuclear option,” allowing the nomination to move forward with a simple majority vote.  Parties on both sides of the aisle expressed concern that this rule change will lead to more partisan, ideological judges in the future.  In 2013 Democrats changed the rules as applied to lower courts and other government positions, but left the filibuster in place for Supreme Court nominees.  It is expected Gorsuch will be confirmed tomorrow.

Judiciary Committee advances Gorsuch nomination in party-line vote

The Senate Judiciary Committee yesterday advanced the nomination of Hon. Neil M. Gorsuch to the U.S. Supreme Court along party lines, with Republicans vowing to have him confirmed by week’s end.  Sen. Orrin G. Hatch (R. Utah) said that if they must change the rules to overcome a promised filibuster by Democrats it’s because there is “no alternative.”  Under current rules, Republicans need 60 votes to break a filibuster, which would require eight Democrats to join the Republicans.  Thus far, only four Democrats have announced support for an up and down vote.  Sen. Lindsay Graham (R. S.Car.) said, “This is going to haunt the Senate, it’s going to change the judiciary, and it’s so unnecessary.”

Supreme Court Ushers in New Age of Education for Students with Disabilities Unable to Achieve Grade Level in a Regular Classroom

By: Sarah J. Moore, Partner at Fisher & Phillips LLP

Since 1982, determining whether a federally funded school met its obligation to provide a “free appropriate public education” (FAPE) to a child protected under the Individuals with Disabilities Education Act (IDEA) rested on whether the student’s Individualized Education Plan (IEP) was “reasonably calculated to enable the child to receive educational benefits.”  Bd. of Edn. Of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176.  For students with disabilities (SWD) fully integrated in a regular classroom, passing grades and grade advancement serve as primary indicators of the school meeting its FAPE commitment.  These indicators have been more problematic for those SWD unable to access educational programming in a traditional learning environment.  In its recent Endrew F. v. Douglas County School Dist. decision, the U.S. Supreme Court unanimously resolved how FAPE compliance shall be determined for SWD unable to be integrated into the regular classroom and unable to achieve on grade level.

Understanding Who is Affected
As the Court noted, SWD fall on a spectrum from those able to learn in a regular classroom and achieve grade level advancement to children who are unable to participate in traditional educational programming and grade level progression because the disability impairs mental, social, and/or communicative skills, and/or results in impactful emotional states or behaviors.  In Endrew, the child was diagnosed with autism who had a “sweet disposition” but would “scream in class, climb over furniture and other students, and occasionally run away from school … and was afflicted by severe fears of common-place things like flies, spills, and public restrooms.”  By fourth grade, the child’s academic and functional progress stalled.  Endrew fell closer to the end of the spectrum where inclusion and grade level progression were not realistically achievable.

Achieving FAPE Moving Forward
Noting that IDEA does not “guarantee any particular level of education” or “any particular [educational] outcome”,  the Court in Endrew explained IDEA substantively requires an IEP to be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”  While the Court refused to create a bright-line rule on what constitutes appropriate progress, it strongly stated that “de minimus” or “merely more than de minimus” progress alone cannot satisfy the FAPE obligation for SWD not fully integrated in the regular classroom who cannot achieve at grade level.  Similarly, measuring compliance by comparing whether the FAPE is substantially equal to educational opportunity of non-disabled peers is not appropriate.  Instead, appropriate progress must be determined on a case-by-case basis by focusing on the “unique circumstances of the child for whom [the IEP] was created.”  The Court emphasized the judiciary’s role as one of deference to expertise of school officials, provided they are able to provide rational explanation for IEP decisions.

Practical Impact
Public schools are bracing for an anticipated increase in due process complaints as well as the potential for revisiting some matters previously litigated.  Proactively addressing the impact of Endrew on each school district’s SWD population is critical and should include:

• Creation of a core team to review the new and arguably heightened standard enunciated in Endrew.  We recommend this team includes the superintendent/CEO, special education director, and legal counsel in order to ensure the discussion falls under the protections of the attorney client privilege.  The core team should identify all SWD falling within the category of students impacted by the Endrew decision, with deliberate consideration of whether the current IEP is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” and does not merely achieve de minimus or merely more than de minimus progress.  What matters is whether a school can rationally explain appropriate progress for a SWD and why that constitutes compliance with FAPE when examined under the Endrew decision.

• The core team should develop customized training for all staff involved in IEP development for SWD falling within the category of students impacted by the Endrew decision.  Customized training is necessary to ensure the characteristics of the spectrum of SWD population served by the school is meaningfully considered and reviewed.  Training should focus on best practices for supporting IEP teams in decision-making so focus on a child’s circumstances is used to identify appropriate progress and inform reasonably calculated goals and benchmarks for measuring that progress.  Where the child’s circumstances create an obstacle to being on grade level and accessing the regular classroom, clear articulation of these limitations should be considered to ensure the unique needs of the SWD are properly captured.

• Given the importance of being well positioned to explain IEP decisions, we recommend the core team promptly review all IEPs developed for the upcoming 2017-2018 school year, for that portion of the school’s SWD population impacted by the Endrew decision.  Further, extended school year determinations should also be reviewed by the core team as promptly as possible. 

• Any pending litigation or due process case involving an SWD impacted by the Endrew decision should be promptly reviewed by legal counsel to evaluate options in addressing any negative implication of the decision.

Ongoing Monitoring Recommended
With the repositioned perspective on “appropriate progress” occasioned by the Endrew decision, a new age of education for the SWD population whose disability creates an insurmountable obstacle to the general educational curriculum has the potential to unfold.  Whether it does will be a function of how IEP teams across the country implement the new Endrew standard and whether public schools have flexibility in creating academic and functional programming more aligned to this population’s needs.  To the extent schools are unable to achieve the flexibility required, parents will more actively initiate legal challenges and seek private placement as an option.  The financial impact of this potential should cause public schools to explore programming solutions within their own four walls.  By monitoring implementation, school administrators will be positioned to identify opportunities to meet their own SWD population needs and remain competitive with competing private, charter, and neighboring public schools with open enrollment.

 

Senate committee wraps up Gorsuch confirmation hearing

The Senate Judiciary Committee wrapped up Hon. Neil Gorsuch’s confirmation hearing today with testimony from expert panelists.  Gorsuch completed his testimony yesterday after about 20 hours of questions from Senate committee members.  A vote by the full Senate is expected the first week of April.  Gorsuch needs 60 votes to be confirmed, but Senator Lindsay Graham (R. S. Car.) has vowed to use the “nuclear option” should Senate Democrats attempt a filibuster, which would allow Gorsuch to be confirmed with only a simple majority.