On October 10, 2007 the U.S. Supreme Court issued a two sentence Slip Opinion in Board of Education of the City School District of the City of New York, Petitioner v. Tom. F., on Behalf of Gilbert F., A Minor Child. It read:

“The judgment is affirmed by an equally divided Court. JUSTICE KENNEDY took no part in the decision of this case.”

This remarkable opinion, particular in contrast to Shaeffer, Arlington, and Winkelman confirms the axiom…

MONEY TALKS AND -------- WALKS

As a result of a 4 to 4 vote of the Justices, Kennedy abstaining and therefore unable or refusing to break the tie, the decision of the Second Circuit stands. Mr. Freston will receive tuition reimbursement for his unilateral placement, never having tried the proposed placement within the public school. For now, then, parents continue to have the same rights they did concerning not having to place their child in a place they believe to be harmful in order to qualify for tuition reimbursement in for a school they unilaterally choose.

But stay tuned. If a parent without the money and without the power of Tom Freston seeks reimbursement on exactly the same set of facts, will Kennedy abstain? If one of the Justices dies before the end of the Bush term, will another Bush appointee get in? Will that be a good thing for special education?

Due Unto Others - A Tom F. Question