Concurrence (Alito)
Contents
SUPREME COURT OF THE UNITED STATES
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No. 15?497
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STACY FRY, et vir, as next friends of minor E. F., PETITIONERS v. NAPOLEON COMMUNITYSCHOOLS, et?al.
ON WRIT OF CERTIORI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[February 22, 2017]
Justice Alito, with whom Justice Thomas joins, concurring in part and concurring in the judgment.
I join all of the opinion of the Court with the exception of its discussion (in the text from the beginning of the first new paragraph on page 15 to the end of the opinion) in which the Court provides several misleading ?clue[s],? ante, at 15, for the lower courts.
The Court first instructs the lower courts to inquire whether the plaintiff could have brought ?essentially the same claim if the alleged conduct had occurred at a public facility that was not a school?say, a public theater or library.? Ibid. Next, the Court says, a court should ask whether ?an adult at the school?say, an employee or visitor?[could] have pressed essentially the same grievance.? Ibid. These clues make sense only if there is no overlap between the relief available under the following two sets of claims: (1) the relief provided by the Individuals with Disabilities Education Act (IDEA), and (2) the relief provided by other federal laws (including the Constitution, the Americans with Disabilities Act of 1990 (ADA), and the Rehabilitation Act of 1973). The Court does not show or even claim that there is no such overlap?to the contrary, it observes that ?[t]he same conduct might vio-
late? the ADA, the Rehabilitation Act and the IDEA. Ibid. And since these clues work only in the absence of overlap, I would not suggest them.
The Court provides another false clue by suggesting that lower courts take into account whether parents, before filing suit under the ADA or the Rehabilitation Act, began to pursue but then abandoned the IDEA?s formal procedures. Ante, at 17?18. This clue also seems to me to be ill-advised. It is easy to imagine circumstances under which parents might start down the IDEA road and then change course and file an action under the ADA or the Rehabilitation Act that seeks relief that the IDEA cannot provide. The parents might be advised by their attorney that the relief they were seeking under the IDEA is not available under that law but is available under another. Or the parents might change their minds about the relief that they want, give up on the relief that the IDEA can provide, and turn to another statute.
Although the Court provides these clues for the purpose of assisting the lower courts, I am afraid that they may have the opposite effect. They are likely to confuse and lead courts astray.