The New York Times: Espera una complicada agenda al Tribuna Supremo

Justices Begin Work on a Polarizing New Docket

By LINDA GREENHOUSE

WASHINGTON, Sept. 30 — The Supreme Court has so many polarizing cases on the docket for its new term that the deep ideological divisions that characterized the last term are all but certain to remain on display after justices reconvene on Monday.

The conservative majority under Chief Justice John G. Roberts Jr. drove the court to the right in a series of high-profile rulings during the term that ended in June. That performance, as well as a series of books and articles by and about justices, has placed the court in an unusually bright spotlight as the new term opens.

The conservative bloc will not necessarily prevail in every important case. For example, the Bush administration is clearly on the defensive as the court prepares to hear a third-round challenge to policies governing those held as enemy combatants at Guantánamo Bay, Cuba.
But the conservative justices clearly have the upper hand in the all-important task of shaping the court’s docket, a process that in effect shapes the country’s immediate legal agenda. They demonstrated their power last week in accepting 19 new cases, an unusually large number, including an employer’s appeal in a racial discrimination case that could provide a vehicle for limiting remedies available under one of the country’s oldest civil rights laws.

At issue in the latest Guantánamo case is whether Congress properly stripped the federal courts of jurisdiction to hear challenges brought by detainees. The justices had seemed willing to steer clear of the issue in April, when they declined to hear appeals from two groups of detainees.
But the day after the term ended, they reversed course and agreed to hear the cases, an action without modern precedent. Because the reconsideration required the votes of five justices, instead of the four ordinarily needed to grant a case, the development strongly suggested that a majority of the court retains concerns about the current regime for determining and challenging the detainees’ designation as enemy combatants. The Bush administration lost two earlier rounds at the court, in 2004 and 2006.

Among the new cases the justices granted last week was a challenge to a state law requiring voters to provide photo identification in order to cast a ballot, an issue that has divided legislators and judges along party lines throughout the country. Republicans generally stress the importance of preventing voter fraud, while Democrats view these increasingly popular measures as creating unwarranted barriers to voter access. Although the justices granted the case at the request of the Indiana Democratic Party and the American Civil Liberties Union, the action could well prove to be an example of “watch out what you wish for” if the result is to uphold the statute at issue and to encourage other states to follow Indiana’s lead.

The justices also took up a highly visible death penalty case, a challenge to the particular lethal injection method that is used in most states. While the validity of capital punishment, or even of lethal injection, is not at stake, the case will require the justices to take a position on the current meaning of the Eighth Amendment prohibition on cruel and unusual punishment. It is far from clear whether a majority of the justices will read the Constitution as mandating one chemical formulation versus another.

The discrimination case the justices granted on Tuesday, which has attracted almost no notice, could nonetheless produce an important shift in the court’s approach to interpreting statutes. The question is whether a law that bars racial discrimination in business dealings, including employment, also prohibits retaliation against those who complain about discrimination.
Ordinarily, the court grants cases only to resolve conflicting interpretations in the lower courts. But in this instance, every federal appeals court to consider the issue has agreed that the statute does apply to retaliation. For the court to grant a case in the absence of a lower-court conflict — as it did in the case decided in June that invalidated voluntary integration plans in two public school systems — is often an indication that the case has been added to the docket as a vehicle for advancing a particular agenda.

The federal law at issue in the new case was originally part of the Reconstruction-era Civil Rights Act of 1866. Known now as Section 1981, it does not mention “retaliation.” Neither do most other anti-discrimination laws. In the past, that has been no barrier to the court in finding that protection against retaliation is inherently part of protection against discrimination.
But support on the court for an approach that goes beyond the margins of the constitutional text has been shrinking. Two years ago, the court ruled 5 to 4 that Title IX, a law that bars sex discrimination in schools, also covers retaliation. Justice Sandra Day O’Connor wrote the majority opinion. It is likely that her successor, Justice Samuel A. Alito Jr., would have been among the dissenters.

Given that the new case, CBOCS West Inc. v. Humphries, No. 06-1431, does not meet the court’s most important criterion for review, it is likely that a new majority granted it in order to cut off the retaliation claim and perhaps also to issue a broader ruling against finding rights that are not spelled out in statutes.

Here are details of other important cases for the new term.

Detainees
A year ago, in response to the court’s most recent ruling in favor of a Guantánamo detainee, the Republican-controlled Congress passed the Military Commissions Act, providing that “no court, justice, or judge shall have jurisdiction” to consider a detainee’s petition for a writ of habeas corpus. Senator Arlen Specter, the Pennsylvania Republican who was then chairman of the Judiciary Committee, voted for the measure, but has filed a brief telling the justices he believes it is unconstitutional.

The Constitution authorizes Congress to suspend the “privilege” of habeas corpus only at times of “rebellion or invasion.” Under Supreme Court precedents, a suspension at other times may nonetheless be permissible as long as adequate alternate procedures exist for challenging a conviction or sentence. So the question in these cases, Boumediene v. Bush, No. 06-1195, and Al Odah v. United States, No. 06-1196, is whether the justices will deem the limited procedures available to the detainees to be adequate.

Voting Rights
Challengers to Indiana’s two-year-old voter identification law, which requires current government-issued photo ID, call it the “most onerous” such law in the country. Voters lacking the proper identification have 10 days to obtain it in order for their provisional ballots to be counted.

A federal appeals court upheld the law, finding that it would prevent fraud while not keeping many people from the polls. The plaintiffs maintain that the poor and elderly would face a disproportionate burden.

The underlying question is how the justices will evaluate the competing interests of preventing fraud and protecting access. The cases are Crawford v. Marion County Election Board, No. 07-21, and Indiana Democratic Party v. Rokita, No. 07-25.

Criminal Law
The lethal injection case, Baze v. Rees, No. 07-5439, challenges the use of the most common three-drug lethal injection “cocktail,” which is conceded to place some inmates at risk of severe pain. The Kentucky Supreme Court concluded that the risk was not substantial enough to make the particular combination unconstitutional.

The question for the justices is what standard courts should use in evaluating the evidence from which to draw a conclusion on constitutionality, especially in light of evidence that pain can be avoided through a different combination of drugs and attention to a reliable level of anesthesia.

The court will also hear two more cases that address the question of judicial discretion in federal criminal sentencing.

The question in Gall v. United States, No. 06-7949, is the justification a judge must provide in issuing a sentence that differs substantially from the one called for by the federal sentencing guidelines. Kimbrough v. United States, No. 06-6330, addresses judicial discretion to mitigate the sentences required for offenses involving crack cocaine.

Federalism
The Texas courts have refused to accept a directive from President Bush to bypass procedural obstacles and grant a new hearing to a Mexican death-row inmate, after a 2004 World Court decision that the inmate’s rights under an international treaty were violated when he was not given the chance to meet with Mexican officials. The case, Medellín v. Texas, No. 06-984, presents unusual issues of state-federal relations.

Washington Post: Nuevo año para el Tribunal Supremo

Supreme Court to Take On Contentious Cases in New Term

By Robert Barnes

After a bruising term that featured more close decisions and ideological splits than in its recent history, the Supreme Court begins its new term today with more of the same: emotional, complex and sometimes partisan issues that divide the justices as well as the nation.

The court's high-profile agenda features a fourth examination of how the Bush administration and Congress deal with terrorism detainees, a separation-of-powers case that tests the limits of a president's power, and a host of discrimination and employment law cases. Last week, justices added the constitutionality of lethal injection to the list and said they would, in the midst of the 2008 presidential election, decide a fiercely partisan battle on voting rights.

Comments that include profanity or personal attacks or other inappropriate comments or material will be removed from the site. Additionally, entries that are unsigned or contain "signatures" by someone other than the actual author will be removed. Finally, we will take steps to block users who violate any of our posting standards, terms of use or privacy policies or any other policies governing this site. Please review the full rules governing commentaries and discussions. You are fully responsible for the content that you post.

Waiting in the wings from the District of Columbia is a potential showdown on the meaning of the Second Amendment and gun rights.

"The court is showing a willingness to keep on taking these kinds of issues even though they are going to be divisive," said Richard W. Garnett, a law professor at the University of Notre Dame and former clerk to the late chief justice William H. Rehnquist.
But if there is a difference this year, it could be that the court -- balanced with four reliable conservatives, four reliable liberals and one man in the middle with an outsized influence -- might teeter occasionally more to the left.

That is because Justice Anthony M. Kennedy's starring role last term -- he was the only justice in the majority in each of the court's record number of 5 to 4 decisions -- seems likely for an encore but in a different direction.

While Kennedy's conservative views on abortion and campaign finance laws grabbed attention then, "the menu for this term is shaping up to be the other way around," said Garnett. For instance, Kennedy has voted against the government in each of the detainee cases the court has heard, and his past opinions signal the central role he is likely to play again in other areas.

"This current court is going to be about as conservative or about as liberal as Justice Kennedy," Solicitor General Paul D. Clement, who represents the federal government before the court, said in a speech this summer.

"The court [last term] had a number of cases -- important, high-profile cases -- where Justice Kennedy's jurisprudence" happened to match that of Chief Justice John G. Roberts Jr. and the other conservatives, Clement said. "But there are certain other areas that have been, and will be again, where Justice Kennedy's jurisprudence is like that of Justice [John Paul] Stevens" and the court's other liberals.

One thing is certain, the term will tell much about the still-evolving nature of the court -- Roberts has just passed his two-year anniversary on the bench, and the newest justice, Samuel A. Alito Jr., has served only 20 months. The still-new chief justice has established clear conservative credentials but has fallen short in his search for more unanimity on decisions.
Roberts is only two months away from a scary incident that made the chief justice the lead story in newspapers and network news shows, when he suffered a seizure at his vacation home in Maine on July 30.

Roberts continued his vacation after a night's stay at the hospital and has looked hale at recent public appearances, two speeches at universities and a judicial conference in Canada. He has not talked about the incident publicly, and a court spokeswoman said last week that he had no comment about what follow-up tests might have revealed or whether he is taking medication.

Roberts's role on the court and the justices' decisions this term will be seen through the prism of the 2008 elections.

The justices themselves hate being lumped into groups: Roberts, Alito and Justices Antonin Scalia and Clarence Thomas on the right, Stevens and Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer on the left. They frequently point to areas of the law, such as sentencing, or to many business cases, in which opinions are often lopsided, or at least the usual alignments are scrambled.

Comments that include profanity or personal attacks or other inappropriate comments or material will be removed from the site. Additionally, entries that are unsigned or contain "signatures" by someone other than the actual author will be removed. Finally, we will take steps to block users who violate any of our posting standards, terms of use or privacy policies or any other policies governing this site. Please review the full rules governing commentaries and discussions. You are fully responsible for the content that you post.

But the great majority of last term's 5 to 4 decisions broke along those patterns, with Kennedy voting twice as often with the conservatives as with the liberals. And the end of the term was particularly fractious, with the four liberals taking turns reading sharp dissents from the bench.
"I think last June they were pretty happy to get away from each other," said Carter G. Phillips, a top Supreme Court practitioner at the law firm Sidley Austin.

Many Democrats and liberal activist groups are anxious to make the court's more conservative stance last year a theme for 2008, saying it is important to have Democrats in charge of the White House and Senate when the next vacancy on the court occurs.

But Thomas C. Goldstein, who heads Akin Gump Strauss Hauer and Feld's Supreme Court practice, wrote a provocative post for ScotusBlog.com arguing that the controversial cases on the court's agenda this year might aid conservatives in making the court an issue.

"The leading cases will be ones in which the more liberal position is distinctly -- even profoundly -- unpopular with conservatives," Goldstein wrote. "Even if the left ultimately does not win all of the five most significant cases of this Supreme Court term, that wing of the court will carry the banner for accused terrorists, crack dealers, child pornographers, child rapists, and those who want to forbid gun possession."

And besides that, conservative activists -- wary of Kennedy's ability to side with either wing of the court, depending on the issue -- have never been as enamored of the court's work last year as liberals were outraged.

"It's a pretty good court," said John Choon Yoo, the former Justice Department official who was a leader in advocating the Bush administration's expansive view of presidential power in wartime. "But it's not everything promised."

Diponible en Washington Post

The Wall Street Journal: Nuevos asuntos para el Tribunal Supremo

New Issues, Familiar Battles
Supreme Court Begins TermWith Kennedy Again as Swing Vote

By JESS BRAVIN

WASHINGTON -- Two years ago, John Roberts became U.S. chief justice pledging to seek greater cohesion on a Supreme Court in which individual justices preferred to stake their own ground rather than join a single opinion. Judging by the court's last term, he succeeded -- but not among his fellow conservatives.

As the court reconvenes today for its annual term, the overarching question will be whether the chief justice has ushered in a conservative era solid in outcomes if not unified in reasoning, or whether the liberal bloc, led by Justice John Paul Stevens, can show Justice Anthony Kennedy a route he can comfortably follow to form a majority. So far, the major cases on this term's docket differ significantly from those last year, suggesting that the court's intellectual and ideological battles will move to new topics.

Last term, the court's four liberals, distressed at the way the new conservative majority swept aside precedents or skeptically treated individual rights, adopted unified dissents and sometimes read them from the bench, hoping to focus public attention on the points they considered essential. Meanwhile, the five conservatives, despite prevailing on the outcome of important cases, repeatedly failed to settle on a cohesive approach to the law.

Justices Antonin Scalia and Clarence Thomas, the most doctrinaire in their method of legal interpretation, sought to reverse outright precedents they disliked. Chief Justice Roberts and Justice Samuel Alito took a more nuanced approach, narrowing those precedents while leaving them on the books. Justice Kennedy, the maverick conservative, cast his tiebreaking votes rightward, while leaving liberals a glimmer of hope in such contentious issues as abortion rights, racial integration and student expression.

At its first sitting -- the two-week periods during which the justices hear arguments -- the court's usual divisions likely will be muted. Many of the cases deal with areas that scramble the court's conventional factions, such as federal sentencing laws, where Justice Scalia, citing the Sixth Amendment, has steadfastly sought to protect a defendant from punishment for offenses beyond what a jury found.

Justices of all stripes have backed congressional efforts to rein in shareholder suits against corporations, suggesting it will be an uphill battle for plaintiffs' attorneys in StoneRidge Investment Partners LLC v. Scientific-Atlanta Inc., set for argument on Oct. 9, over whether third parties such as accountants or brokers can be held liable for helping public companies defraud investors. (See a related article on a separate case the court is to hear.)

Later cases are likely to illustrate the court's ideological split and could raise the kind of social issues the presidential campaign can amplify. On Oct. 30, the court will hear the government's plea to reinstate the Protect Act, which made it illegal to distribute "virtual" child pornography such as computer-generated images that could fool purchasers into thinking that an actual child was being depicted. Congress passed the act in 2003 after the court, in an opinion by Justice Kennedy joined by the four liberals, struck down a prior effort to prohibit such materials as too broad and vague to comply with the First Amendment. An appeals court found the replacement statute still went too far into protected speech.
(U.S. v. Williams)

As the court enters its last full term before President Bush leaves office, the highest stakes on the docket may involve the defining legal issue of his administration: the extent of presidential power. Since the Sept. 11, 2001, terror attacks, the administration invariably has argued for the broadest conception of executive authority over military, law enforcement and diplomatic powers, with a diminished role for Congress and the judiciary.

The justices repeatedly have rejected the president's claims, finding in past years that Mr. Bush was bound to honor the Geneva Conventions, that courts held jurisdiction to review detentions at Guantanamo Bay, and that the president couldn't establish military commissions to try alleged war criminals without congressional authorization.

The justices are now considering whether to hear a challenge to the war-crimes tribunals established under the Military Commissions Act, which Congress passed last year.
Already, the court has agreed to review whether Congress could deny Guantanamo inmates the right to habeas corpus, the petition that asks a court to rule on the legality of their detention. And the way the justices took the case suggests the administration may have a difficult time winning five votes for its position.

The case was brought by Lakhdar Boumediene, an Algerian national who was arrested in Bosnia in October 2001 on suspicion of a plot to attack the U.S. Embassy. Bosnian courts ordered Mr. Boumediene released, but local police instead turned him and five Algerian-born Bosnian citizens over to U.S. forces in Bosnia, and he was sent to Guantanamo.

The U.S. Court of Appeals for the District of Columbia Circuit dismissed the case, finding that the Military Commissions Act had stripped habeas rights from Guantanamo prisoners. In April, the Supreme Court declined to hear Mr. Boumediene's appeal, over the objection of liberal justices David Souter, Ruth Bader Ginsburg and Stephen Breyer. But two other justices, Messrs. Stevens and Kennedy, issued an unusual statement saying that while they believed the case was premature, they might reconsider if new information came to light.

That information apparently was the affidavit of an Army lawyer who served on a Combatant Status Review Tribunal, an administrative panel that classifies Guantanamo prisoners and can recommend their release. The affidavit described an amateurish and unfair process, casting doubt on government claims that the panels could be trusted to ensure that only enemy combatants were held.

Such information apparently persuaded a justice to change his mind -- it takes four votes to hear a case -- because the court, without explanation, placed Mr. Boumediene's petition on the docket. Arguments will likely be heard this fall. (Boumediene v. Bush)

The term's first presidential authority case arises outside the war on terror. Instead, it deals with the untested relationships between state, federal and international law -- specifically, whether Mr. Bush holds the power to order a state court to comply with the ruling of an international tribunal. The case, to be argued on Oct. 10, puts the state of Texas in the position of arguing that its former governor, Mr. Bush, lacks the constitutional authority to tell it what to do.

Under the Vienna Convention on Consular Relations, foreign consulates must be notified when their nationals are arrested, and those nationals must be told that they can contact their consulates. But in many American jurisdictions, compliance with the treaty has been spotty, leading to occasional protests from foreign governments.

In 2004, the Mexican government filed suit against the U.S. at the International Court of Justice, the United Nations tribunal in The Hague that hears disputes between countries, charging that denial of consular rights had harmed the cases of 51 Mexicans who had been convicted of murder and sentenced to death. (Medellin v. Texas)

Write to Jess Bravin at jess.bravin@wsj.com

The Wall Street Journal: Crucial decisión de juez federal de California sobre política migratoria.

Firms Brace for Crackdown on Illegal Labor

By MIRIAM JORDAN
As a crucial hearing looms on a planned government crackdown on illegal immigrants in the workplace, many businesses are scrambling to figure out how they will cope with an expected loss of illegal labor.

A U.S. district court in San Francisco could decide as early as today whether the Social Security Administration can send out thousands of "no match" letters to employers whose workers' names don't jibe with their Social Security numbers. The notices would be accompanied by letters from the Department of Homeland Security outlining new penalties for hiring undocumented workers.

The program, if put into effect, is expected to pose tough choices for many business owners, particularly in industries such as agriculture, construction and food service, which rely heavily on illegal workers. Employers would be required to fire such workers once their status was exposed, or risk fines.

The Bush administration prepared the crackdown after Congress failed to pass an immigration bill that would have legalized the nation's estimated 12 million illegal immigrants. At least eight million illegal laborers are believed to work in U.S. jobs.

The work-site program was supposed to roll out in September with the mailing of 140,000 no-match letters to employers. But the AFL-CIO filed a lawsuit alleging the new policy could lead to discrimination against or firing of native-born U.S. workers and legal immigrant workers. The program was delayed when a federal judge in August blocked the new policy until questions about its legality had been addressed. The hearing that opens today is aimed at clarifying this.
The new program puts employers on notice that they can no longer look the other way regarding illegal workers. If an employer receives a no-match letter on a particular worker, the company has 90 days to certify that worker's legal status; otherwise, the worker's employment must be terminated. Companies that violate the policy would face what Secretary of Homeland Security Michael Chertoff has called "stiff penalties or sanctions" higher than the fines of up to $2,200 a worker in place today.

Already, many companies are bracing for a hit -- particularly small businesses that say their survival could be at stake. Those businesses say the new enforcement places a disproportionate burden on them, subjecting them to costly and time-consuming record keeping by reducing productivity even if only a handful of workers are affected. Some businesses in industries such as agriculture and construction are talking about shutting down or moving their operations abroad.

"The typical small company is not equipped to be the nation's immigration police," says Todd McCracken, president of the National Small Business Association, which represents about 65,000 small companies. "A small-business owner can't just give no-match letters to human resources to sort out."

In early September, the U.S. Chamber of Commerce and several trade groups representing small businesses that employ low-skilled immigrants joined the lawsuit. Among others, the United Fresh Produce Association, the National Roofing Contractors Association and the Association of Nursery and Landscapers allege the Department of Homeland Security failed to perform a financial-impact assessment, as required under the Regulatory Flexibility Act, to measure the impact of the new rule on small businesses.

"This is a hollow argument coming from businesses who want to avoid liability for employing unauthorized workers," said a Department of Homeland Security spokesman. "The rule does not impose an expense for employers."

In the $1.2 trillion construction industry, at least one-third of the work force is undocumented, according to an estimate by the Bureau of Labor Statistics. Industry experts believe the actual figure is much higher: Last year alone, nearly half of new construction workers were Hispanics who had arrived in the U.S. since 2000.

The impending crackdown generates everything "from concern to utter panic among roofing contractors," says Craig Silvertooth, director of federal affairs for the National Roofing Association, based in Chicago, representing 4,300 businesses. "There is no way to run your business if this goes forward."

In agriculture, about 70% of all workers are illegal immigrants, according to independent estimates, and an existing guest-worker program supplies less than 2% of the work force required each year.

Most illegal immigrants work for bona fide businesses and are hired and paid like other workers on the payroll. To get work, the immigrants normally obtain a fake Social Security card with a made-up nine-digit number. The fake cards are peddled in immigrant neighborhoods.
When the illegal immigrants are hired, their employers don't know whether the documents are authentic. A company thus hires workers, puts them on the payroll and withholds necessary taxes. The unauthorized workers, who receive a paycheck regularly, pay into Social Security but can't draw benefits.

Social Security has been mailing no-match letters for decades, but employers haven't been held accountable for workers who failed to address discrepancies. In fact, employers have been advised not to take any adverse action against an employee based exclusively on the letter. "There has been no definitive legal obligation to take action," says Angelo Paparelli, an immigration lawyer with offices in New York and Irvine, Calif., who is advising several concerned businesses.

"Employers have to be held accountable if they are given clear notice of the fact that they may be hiring illegal aliens," Mr. Chertoff said in announcing the new crackdown. Mr. Chertoff added that about 4% of the 250 million wage reports received by Social Security each year show no matches.

Maureen Torrey, former chairwoman of United Fresh Produce and a farmer in upstate New York, says she provides W-2 forms for all her employees and withholds taxes on their earnings. She has received no-match letters in the past: 375 of her 400 workers are Hispanics, and she figures some are in the U.S. illegally.

The new rule is pushing many farmers to consider extreme options. "You've got to comply," says Mrs. Torrey, who runs Torrey Farms in Elba, N.Y. "We move our farm operations to another country or just sell out." Some U.S. farmers have already been investing or subcontracting in other countries such as Mexico.

The owner of a small California manufacturer that has 120 employees and subcontracts for the U.S. government foresees having to fire about 15% of her work force. "Because of the role they play and the tight labor market, it is probable that we would go out of business," said the woman, who spoke on condition that neither her name nor that of her company be cited.

Some observers hope the legal challenge to the administration's latest enforcement efforts will revive congressional action on immigration. In the meantime, the policy could drive more immigrants to seek jobs in the off-the-books economy, where they have fewer legal protections from employment abuses.
Write to Miriam Jordan at miriam.jordan@wsj.com

Disponible en Wall Street Journal

The Wall Street Journal: Colegios privados y fondos públicos ante el Tribunal Supremo

Special Education:When Should TaxesPay Private Tuition?

By JOHN HECHINGER
A decade ago, Tom Freston, then a top Viacom Inc. executive, began a legal battle to force New York City to pay for his son's tuition at a Manhattan private school for children with learning disabilities.

Today, the U.S. Supreme Court is set to hear arguments to resolve the central question of the case: Must parents of special-education students give public schools a chance before having taxpayers reimburse them for private-school tuition? How the justices respond will have broad implications for school budgets and the movement toward "mainstreaming," or educating disabled children in regular classrooms. Mr. Freston, pledging to donate any proceeds, has said the fight is about principle, not money.

Under a landmark 1975 special-education law, now known as the Individuals with Disabilities Education Act, school systems must provide a "free appropriate" public education to disabled students. Congress, alarmed that schools were warehousing kids with special needs in poorly equipped classrooms, said that, wherever possible, the children should be placed in the "least restrictive environment" -- often the same classrooms as their nondisabled peers. In 2005, about 54% of special-education students spent 80% or more of the school day in a regular classroom, up from 33% in 1990.

Nonetheless, the act permits parents to seek public financing for private schools if they can establish that the public schools can't meet their children's needs. About 88,000 of the nation's more than six million special-education students are educated in private schools or in private residential facilities at public expense.

The events leading to today's case date to the 1990s, when Mr. Freston's son, who suffers from attention deficit hyperactivity disorder and other learning disabilities, began his education at the private Stephen Gaynor School. In 1997 and 1998, the family sought special-education evaluations from the New York City Department of Education, which came up with plans to educate him in a public school. Each time, the family rejected the plan as inadequate and sued for an administrative hearing. And both times the city settled, agreeing to pay the Gaynor School's tuition.

In 1999, after another evaluation, the city recommended that Mr. Freston's son be placed in the New York City Lower Lab School for Gifted Education. The boy was to be placed in a fourth-grade special-education class with 15 students and one teacher. For nonacademic subjects like gym and art, he would be with nondisabled peers. He was performing at grade level in math, and a teacher testified that another student with similar skills attended a mainstream class. But the family thought the math class wouldn't be appropriate, sent the boy to Gaynor and asked for an administrative hearing to get repaid for tuition, which was $21,819.

Mr. Freston won his first two legal rounds in an initial administrative hearing and before an appeals board. The board of education took the case to U.S. District Court in Manhattan, where a judge found that a family couldn't receive tuition reimbursement unless a child first attended public school. An appeals court reversed that decision, saying the boy shouldn't first have to be subjected to an inappropriate public placement before attending private school. The U.S. solicitor general, on behalf of the federal government, is backing Mr. Freston before the Supreme Court.

Mr. Freston declined to be interviewed about the case. In a statement, he said he contributed reimbursements he received from the city -- and will donate future ones -- to a special-education support center in a public school. He says he is pursuing the case so other children, "without jumping through hoops," can attend appropriate schools "regardless of their family's financial means." Mr. Freston left Viacom in 2006 after serving as chief executive officer.
In recent months, organizations, including the National School Boards Association and the U.S. Conference of Mayors, have urged the court to side with New York, saying the costs of increased private placements would drain school budgets. In the 2005-2006 school year, New York City spent about $300 million on private school placements. The city itself recommended that 8,000 of the most severely disabled be sent to private facilities. About 3,700 other parents asked the city to pay for private school over the system's objections; in about half the cases the children never enrolled in public schools before making the requests. The city couldn't provide data on the outcomes of these cases.

Mr. Freston and his supporters assert that private placements are still relatively rare and are hardly overwhelming to most school districts. The New York City school system, for example, has a $17 billion budget and 1.1 million school children, including 148,000 kids in special education. Mr. Freston's brief says the tuition at the Gaynor school was actually $4,678 less than it would have cost the average New York City school to educate his son.

Apart from the financial debate, New York and other school officials say that the Freston family's request flies in the face of the 1975 education law. Parents who seek private schools that teach kids with disabilities are depriving them of the social and academic benefits of being included in the general population, they say.

"There's a strong presumption in the law that what is best for children is the least restrictive environment -- mainstreaming as much as possible," says Tom Hutton, a senior staff attorney with the National School Boards Association in Alexandria, Va.

But Mr. Freston and disabilities advocates say the education law, first and foremost, ensures that students receive an "appropriate" education, even if it is in a separate school. In his statement, Mr. Freston says the education his son, now 18 years old, received years ago has meant he can now "successfully perform in a mainstream school, and I believe this is the opportunity every parent and child deserves." His son attended Gaynor for four years.

Gary Mayerson, director of the Autism Speaks federal legal appeals project, which also filed a brief supporting Mr. Freston, calls the schools' mainstreaming argument a "pretext" to cover up inadequate services.

Children with autism and other disabilities "cannot afford to waste six months" in an inappropriate placement, he says. "By that time, the damage has been done."
Write to John Hechinger at john.hechinger@wsj.com

Disponible en el Wall Street Journal