Constitutional Right to Privacy? (a follow-up)

Following up on yesterday's bit of news, I was asked why the case cited entitled the PSEA to a stay, reimposing the injunction against releasing home addresses.  Essentially, the PA Supreme Court gave that answer by the case they cited, although the meaning of the answer is a bit cryptic.

The Court cited Pa. Pub. Util. Comm'n v. Process Gas Consumers Group case to give that entitlement.  That case sets the standards for when a "stay" is granted (sometimes called a "supersedeas," it is when a court will put its decision on hold pending the outcome of the appeal).  In applying the first part of that case's standard to the present case, we learn that the PA Supreme Court believes that the PSEA has "ma[de] a strong showing that [it] is likely to prevail on the merits." Id., at 808.

However, remember that the Commonwealth Court "dismissed" or "threw out" the case on procedural grounds, saying that the PSEA sued the wrong party, and specifically should not have sued the OOR.  This is what makes the above reference cryptic.  The appeal before the Supreme Court now is on the question whether the case should have been thrown out on these procedural grounds.  The Court could be answering that limited question (procedurally, the case should not have been thrown out at that stage of the case), or the more fundamental and ultimate question (there is a constitutional right to privacy).

Whichever reason, the PA Supreme Court has telegraphed its initial feeling that the case had sufficient merit to at least go further in the process.  For all we know, it could rule on the constitutional right to privacy issue, too.


As the Senate determines whether Judge Sotomayor will become Justice Sotomayor, one issue that is likely to receive very little attention is her views on interpreting the Individuals with Disabilities Education Act (“IDEA”), a statute which provides various rights to students in public schools who have disabilities as well as to their parents. While there is always a risk in trying to guess what a judge will do when he or she becomes a justice and often times the facts of a particular case drive the result of their decisions, it appears, based on the limited information available, that a Justice Sotomayor would be a friend to school districts in this area. A few examples are helpful.


First, in the area of attorney’s fees, Judge Sotomayor has taken a strict interpretation of the portion of the statute which allows parents, when they are successful at a hearing to determine what special educations services are appropriate for a student, to obtain payment for counsel fees by the school district. In several opinions, Judge Sotomayor has taken the view that parents are only entitled to obtain attorney’s fees when that right is clearly established under the statute and refused to allow attorney’s fees in cases where the right was questionable or non-existent under the statute. Such a view is clearly one that is friendly to school districts and in many respects encourages parents and their counsel to be more reasonable in their efforts to resolve such cases prior to hearing.


Second, in reviewing the decisions of hearing officers and lower courts, in several cases she has deferred to state level hearing officers who have found in favor of school districts, especially in the area of tuition reimbursement. Judge Sotomayor has joined in several opinions that, when appropriate, overturn decisions of district court judges who have attempted to substitute their own opinion for that of the state level hearing officer to award parents tuition reimbursement. Such a role of ensuring that state level hearing officers decisions on the complex decision of tuition reimbursement, which many times results in the denial of the same to parents, is view that is helpful to school districts by limiting liability for tuition reimbursement only to those cases where it is clearly appropriate.


Finally, in the area of applying the statue of limitations under the IDEA, an issue which many courts have struggled to find a consensus, Judge Sotomayor has joined in at least one opinion that takes the stricter view on the statute of limitations finding that two years means two years. While other courts have found ways to try to expand the statute of limitations, a view that leaves open the possibility of more liability to school district, Judge Sotomayor joined in an opinion that would appear to limit potential liability to district.


Thus, although it is possible that a Justice Sotomayor would take a different view on cases as a Justice of the Supreme Court, based upon her record as an Appeal Court Judge, she may be a Justice that schools districts find to be district friendly in the area of special education. 


This blog posting appeared in The Legal Intelligencer on Monday, July 20, 2009.