Reply Brief — Morgan v. Chris L. ex rel. Mike L.

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Supreme Court, U.S.

La FILED

—— MAY 19 1997

LERK

In THE " OFFICE OF THE CLER |

Supreme Court of the United States

OCTOBER TERM, 1996

ALLEN MORGAN,

SUPERINTENDENT, KNOx COUNTY SCHOOLS,

- Petitioner,

Curis L., A MINOR BY NEXT FRIEND, MIKE L.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

REPLY BRIEF OF PETITIONER

CHARLES L. WEATHERLY CARTER G. PHILLIPS *

JULIE J. WEATHERLY SIDLEY & AUSTIN

THE WEATHERLY LAW FIRM 1722 Eye Street, N.W.

3700 Crestwood Parkway, N.W. Washington, D.C. 20006

Suite 140 (202) 736-8000

Duluth, Georgia 30136

(770) 564-9400

RICHARD T. BEELER

Law Director

KNOX COUNTY GOVERNMENT

Suite 612

City-County Building

400 Main Street

Knoxville, Tennessee 37902

(423) 215-2327

Counsel for Petitioner

May 19, 1997 * Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

a BEL meee

TABLE OF AUTHORITIES

CASES Page

Arizonans for Official English v. Arizona, 117

ie a O _ ; PNR Ba en ee 2,3

Church of Scientology v. United States, 506 U.S. 9

| RE OF ER a AOR a MEET SSA ARE 3

Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458

Pei emi I ecstatic d cccaced ects tan eastplocienion Snsiceapntnsids 1,4

Honig V. Doe, 484 U.S. 305 (1988) ...0000 1, 2,4

Lewis v. Casey, 116 S. Ct. 2174 (1996) .... 0... 6

In re McCann, 1990 WL 16883 (Tenn. Ct. App.

I a I itch aha citare Gee a

Michigan v. Long, 463 U.S. 1032 (1983) ...............

Missouri V. Jenkins, 115 S. Ct. 2038 (1995) ............

Moore v. Sims, 442 U.S. 415 (1979) ...........00000.000..

Virginia Dep’t of Educ. v. Riley, 106 F.3d 559 (4th

RE, NE Gace digits canbe cea Se eet oo 1, 5, 6

Younger V. Harris, 401 U.S. 837 (1971) ................... 6

OTHER AUTHORITIES

Robert L. Stern et al., Supreme Court Practice

gs ER, SAORI a ae ead cen Or. eet ih ela ane 2

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-1681

ALLEN MORGAN,

SUPERINTENDENT, KNOX COUNTY SCHOOLS,

- Petitioner,

Curis L., A MINOR BY NEXT FRIEND, MIKE L.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit -

REPLY BRIEF OF PETITIONER

In his petition, the Superintendent of the Knox County

Schools demonstrated that the extraordinary order of the

federal courts in this case purporting to divest the Ten-

nessee Juvenile Court of the opportunity to review the

juvenile complaint filed against respondent as mandated

by state law warranted review by this Court. In particu-

lar, petitioner argued that the decision below conflicts

with the logic and reasoning of the Fourth Circuit in

Virginia Department of Education v. Riley, 106 F.3d

559 (4th Cir. 1997), and this Court’s decisions in

Hendrick Hudson District Board of Education v. Rowley,

458 U.S. 176 (1982) and Honig v. Doe, 484 U.S. 305

~ (1988). Moreover, the question of whether the Individ-

uals with Disabilities Education Act (“IDEA”) authorizes

interference with a state’s juvenile justice system is a

question of profound importance both to the public

schools and the juvenile courts.

Respondent desperately opposes certiorari at all costs,

even taking the extreme, and ultimately self-defeating,

tack of arguing the case is moot. The reply to respond-

ent’s primary contention is simple: either the entire case

should be dismissed under Arizonans for Official English

v. Arizona, 117 S. Ct. 1055, 1072 (1997), or the case

should be granted so that the vital issue presented con-

cerning the scope of a federal court’s remedial authority

under the IDEA can be decided by this Court.

1. Respondent goes to great lengths (Opp. 4-6) to

establish that this case has become moot. It is true that

the juvenile petition has been dismissed (albeit solely

because respondent is no longer a juvenile—not because

of the decision below).’ It also is true that respondent

for now has dropped out of school. Still, it is not clear

that the lawsuit is moot. Cf. Honig v. Doe, 484 US. at

318-20 (former student’s claim is not moot because he

still is protected by the Act). Respondent remains subject

to the IDEA and can return to school in Knox County at

any time prior to his 21st birthday. Thus, the injunction

against reporting him to criminal authorities for school-

related activities will remain viable for three more years.

This residual effect of the underlying decree satisfies the

minimal injury in fact requirement for Article III and

ensures that the Court, by reversing, could grant relief

that would have “effect.” Jd. (“capable of repetition yet

1 Respondent implies (Opp. 4) that the mootness issue arose

solely because petitioner did not timely file a rehearing petition

or seek a stay. In fact, the mootness issue began to arise in Janu-

ary 1997, when respondent turned 18. Resp. App. 3a. Of course,

if respondent genuinely believed that his departure from school

mooted this dispute, his counsel had a duty to bring that to the

court’s attention immediately. Robert L. Stern et al., Supreme

Court Practice 721 (7th ed. 1993) (and cases cited therein). He

did not do so and the Sixth Circuit decided the case under precisely

the same circumstances that respondent now asserts mooted this

dispute. If the case is moot, it should be dismissed so that it has

no consequences. If it is not moot, it should be reviewed by this

Court.

Ten eRe ET Na mn Nn

evading review”). Cf. Church of Scientology v. United

States, 506 U.S. 9, 12 (1992).

If, however, petitioner is incorrect and the case is moot,

then it is absolutely clear that the proper course now is

not to deny the petition. The appropriate disposition of

the petition is to grant it, vacate the judgment of the court

of appeals and remand for dismissal of the underlying

cause of action. Given respondent’s voluntary action in

mooting the proceeding prior to final resolution of the

dispute, the case should have no collateral consequences.

This result is compelled by this Court’s recent decision in

Arizonans for Official English, supra.

In that case, the Court considered the proper course

to follow when the plaintiff obtained a favorable judg-

ment and then voluntarily withdrew from state employ-

ment. The Court held that it was not proper simply to

dismiss the proceeding before this Court or to deny the

petition, even though the petitioners before this Court

lacked standing to bring the case here. Instead, the entire

proceeding had to be dismissed. Quoting the State of

Arizona’s brief, the Court reasoned: “It would certainly

be a strange doctrine that would permit a plaintiff to

obtain a favorable judgment, take voluntary action [that]

moot[s] the dispute, and then retain the [benefit of the]

judgment.” 117 S. Ct. at 1072 (alterations in original).

Here, respondent voluntarily withdrew from school after

obtaining protection from juvenile proceedings by the

courts below. His voluntary act, like that taken by re-

spondent in Arizonans for Official English requires that

the proceedings below be treated as if they never occurred.

2. If the Court concludes that this case is not moot,

then the Court should grant the petition for the reasons

outlined therein and summarized above. Respondents offer

four responses, none of which remotely justifies denying

the petition.

a. First, petitioner concocts a state law basis for the

decision below. Any fair reading of the Sixth Circuit’s

opinion dispels this claim immediately. The opinion only

discusses the IDEA and its requirements. The decision

unquestionably is based solely on that court’s interpreta-

tion of federal law.

Respondent’s assertion to the contrary is based purely

on a throwaway citation in the opinion of the Sixth Cir-

cuit to a Tennessee appeals court decision, In re McCann,

1990 WL 16883 (Tenn. Ct. App. Feb. 27, 1990) (perm.

app. denied). Pet. App. lla. But even that discussion

reveals that the issue being decided by the court below

was the proper interpretation of the IDEA. The court of

appeals plainly did not view McCann as a decision in-

volving state law. To the contrary it explicitly cited

McCann for the proposition that “[p]ursuant to IDEA’s

procedural safeguards,” a school system must have a plan

and internal meetings before it can initiate a juvenile court

proceeding. Pet. App. lla (emphasis added). Moreover,

even if state law were coterminous with federal law, this

Court would review the federal law question, where, as

here, only federal authority is cited to support the decision

of the court below. See Michigan v. Long, 463 U.S. 1032

(1983). In sum, respondent’s reliance on state law to

defeat certiorari is misplaced.

b. Respondent next argues (Opp. 9-11) that the de-

cision in this case does not conflict with this Court’s

decisions in Hendrick Hudson District School Board of

Education v. Rowley, 458 U.S. 176 (1982) and Honig

v. Doe, 484 U.S. 305 (1988). But respondent does noth-

ing but quote platitudes from those decisions extolling

the virtues of the procedures embodied in the IDEA. In

the run-of-the-mill situation where a student’s individuai-

ized educational situation warrants reevaluation, these

procedures make sense. But when the process is inter-

posed to undermine the functioning of the State’s juvenile

justice system, then the value of those procedures becomes

suspect and Congress must speak clearly to allow the

IDEA to interfere with the state’s method of treating

juveniles. Respondent nowhere argues that the “change

in placement” language in the statute speaks clearly to

the question presented in this case, nor could he.

ie sk Al 3 dah en a ae

hs)

Respondent argues (Opp. 11) that the clear statement

principle relied upon by petitioner does not apply because

the IDEA is not “Spending Clause” legislation. That

argument, by itself, justifies review by this Court because

the Fourth Circuit quite clearly concluded that the IDEA

involved an exercise of Congress’s spending power. Vir-

ginia Dep’t of Educ. v. Riley, 106 F.3d 559, 566 (4th

Cir. 1997).

c. Respondent argues that the decision below is cor-

rect on the merits. Of course, respondent does not deal

with the clear statement requirement, which completely

undermines any argument that the IDEA really justifies

the result in this case. But even on their own terms, none

of respondent’s arguments has merit.

First, respondent asserts (Opp. 11) that the ALJ made

a “finding of fact” that the filing of a Juvenile Court

petition was a proposed “change of placement.” This is

absurd. As explained in the petition (at 6-7), the ALJ,

district court and court of appeals all held that the ques-

tion of whether filing a juvenile petition triggers the pro-

tections of the IDEA was a pure question of law. Re-

spondent’s attempt to convert the clear holdings below

into factual findings cannot withstand even a cursory

reading of those opinions.

Second, respondent asserts (Opp. 12), without citation

to anything in any opinion below or anything in the

record, that the filing of a juvenile charge as required by

state law was a “disciplinary action.” The holdings below

all depended upon the interpretation of “change in place-

ment” and the “stay-put” injunction in the IDEA, and

that is the only question before this Court.

Third, respondent claims (Opp. 12-13) that the federal

court’s broad remedial authority under the IDEA supports

the decision to order the juvenile petition withdrawn.’

2 Respondent elevates form over substance by arguing that there

is no interference with the state’s juvenile proceedings because the

injunction merely operates against the school system. But as this

iia

This, of course, merely begs the question. Petitioner con-

cedes that federal courts have broad authority to remedy

violations of the IDEA, but the question remains whether

that authority extends to interfering with the State’s juven-

ile justice system. Absent clear statutory authority to

that effect, the decision of the Fourth Circuit in Virginia

Department of Education v. Riley, 106 F.3d 559 (4th

Cir. 1997), and this Court’s decisions in Rowley and

Honig plainly indicate that the answer is no. At a mini-

mum, the issue is of sufficient national importance to

warrant review by this Court.

d. Finally, respondent argues that this case is fact-

driven. The courts below described the question they

decided as a pure issue of law. Wishing the issue were

a fact question does not make it so. What the holding

below involves is nothing more nor less than an extraor-

dinary exercise of federal judicial power. No doubt con-

cerned about the sweeping nature of that decision in light

of this Court’s recent decisions viewing with suspicion

excessive use of federal judicial power, respondent shows

no restraint in opposing the petition. According to him,

the case is moot, the decision below is based on state

law, the issue was purely factual and, in any event, his

argument is correct.

case reveals, the mere filing of the IDEA lawsuit caused the juvenile

court to halt its proceedings. Resp. App. 3a. Moreover, the cases

involving federal court injunctions against state court proceedings

do not directly enjoin the state court; the federal courts enjoin the

litigants. Younger v. Harris, 401 U.S. 87, 39 (1971) (injunction

against prosecutor not court). Nevertheless, this Court long has

recognized the serious injury to federalism arising out of those

injunctions, which is the basic rationale for Younger abstention.

See, e.g., Moore Vv. Sims, 442 U.S. 415, 434 (1979).

3 See, e.g., Lewis v. Casey, 116 S. Ct. 2174, 2183 (1996) (setting

aside federal court regulation of prison libraries); id. at 2196

(Thomas, J., concurring) (pointing out “the danger of continuing

to afford federal judges ... virtually unbridled equitable power”) ;

Missouri v. Jenkins, 115 S. Ct. 20388 (1995) (striking down

interdistrict desegregation remedy for intradistrict violation as

excessive).

Missing from this litany is any suggestion that the

public schools will be better able to manage disciplinary

problems by reliance upon the procedures of the IDEA

when school officials are confronted by juvenile delin-

quency or criminal misconduct by students. Also missing

from this laundry list of considerations is the importance

of state law and the state’s juvenile justice system and the

importance of allowing that system to operate without

unwarranted interference from federal courts. It is this

“arrogation of federal power” that the Fourth Circuit

condemned in Riley and that ultimately warrants review

by this Court.

CONCLUSION

For the foregoing reasons and those stated in the peti-

tion, the petition for a writ of certiorari should be granted.

If the Court should conclude that the case has become

moot, then the judgment should be vacated and the

matter remanded to the district court for dismissal of

the complaint.

Respectfully submitted,