Judge Alito’s Record on Special Education and Disability Issues is Mixed

Judge Alito was nominated to the Supreme Court for his very conservative stance on issues such as abortion, business interests, and civil liberties.  My focus is narrower in this post to look at the handful of cases that he has participated in regarding special education law and the ADA.  His record on special education cases is surprisingly positive for parents but not very favorable in most of his ADA cases.

In Ridgewood Board of Education v. N.E., Judge Alito joined in a decision which held that FAPE had to be more than “trivial” and schools have to provide real educational benefit to the child.  While that may not seem like a high standard there are many school districts that are consistently seeking to lower the Rowley FAPE standard to the point where it is met if a licensed teacher is breathing in the room with a student with special needs.  I am only partially facetious.  This case has other language that is helpful to parents.

The Shore Regional High School v. P.S. [in pdf. format for download] case, the district court reversed the hearing officer’s finding in favor of the parents.  Judge Alito writing for the court reversed the district court [something that rarely happens in favor of parents in the 7th Circuit in Illinois] and found that the district court made a clear error when it ruled that the school district had provided FAPE.  This case showed real analysis and a motivation to examine the issues, and not just automatically rule in favor of the school.

Judge Alito ruled in T.R. v. Kingwood that the school provided a FAPE to a preschool child but reversed and sent the case back for more determinations as to whether the school properly considered placements that were less restrictive for the child.  A mixed decision but again one that showed analysis not just reflexive decision-making.

His ADA decisions show a clearer bias in favor of business interests and a narrow view of the needs of employees with disabilities.  However even in this area there are some decisions where he did rule in favor of the employee.

Intellectually there is no question that Judge Alito is qualified.  The concern that I have personally and professionally is that on balance he does not seem to have an appreciation for the realities of what individuals deal with when they come in conflict with large organizations, business and government.  His limited record on special education cases is certainly refreshing but I still have my reservations on his record as a whole.

His record is that he has primarily worked for government. Does he have a real appreciation and sensitivity for the plight of the every day citizen?  Clarence Darrow once said about himself, that he wanted people to remember that he: “defended the weak against the strong, the strong against the strong, but never the strong against the weak.” While I realize that is idealistic in today’s political environment, it would be nice to learn that Judge Alito at least has some of that sensibility. We will all have to tune in next week to see if that comes out in some form or fashion.

Comments

[George]

WHEW!

[Claire Hoffman]

Well at least we can count on him for something positive. Thanks for the research and sharing.

We are in the 3rd circuit and filed a law suit in 2001 that, thankfully, settled before trial. The issue was denial of FAPE