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.