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Tuesday, May 26, 2009

Supreme Court nominee Sotomayor

President Obama has nominated Judge Sonia Sotomayor to replace Judge Souter on the Supreme Court. Not only would she be just the third female Supreme Court justice and the first Hispanic, she also appears to have a good track record on disability issues. As a sitting judge on the 2nd Circuit, she authored the 2002 Murphy v. Arlington decision(affirming the notion that SRO decision awarding reimbursement to parent establishes pendency and also excusing parent proceeding on behalf of child in federal court). She was also the author of the Bartlett v. NYS Bd. of Law Examiners case in which the court found that a learning disabled law student had been wrongfully deprived of accommodations on the bar exam. Notably, she has not been the author of any of the recent decisions, most of which are overly deferential to the State Review Officer.

She was on the panel of a number of 2nd Circuit disability related special education cases. Somoza is very important for the proposition that district’s volutary provision of services does not deprive a court or hearing officer of jurisdiction to “determine the nature of the entitlement at issue”. In State of Connecticut Office of Protection and Advocacy for Persons with Disabilities v. Hartford Bd. of Ed, the court allowed an agency access to student records to allow the agency to carry out an investigation of abuse claims. In Frank G., the court affirmed the right of a parent to seek reimbursement for a private placement when the child had not previously received special ed services. This case also has a very well reasoned prong 2 analyis. In A.R. v. NYC, the 2nd Circuit held that hearing officer decisions and consent decrees give rise to prevailing party status and thus, attorney fees are not barred by Buckhannon.

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