Honig v. Doe

484 U. S. 305

January 20, 1988

The Education of the Handicapped Act (EHA) required that disabled students receive competent eduction, and mandated that in a dispute over a student’s placement, he could never be removed from his current school without parental consent. The San Francisco public schools tried to expel, without parental consent, two disabled students because they were physically dangerous to their classmates. The main question was whether dangerousness was an exception to the general rule about removal.

With Brennan writing, the Court held 6-2 that it was not. It first addressed the issue of mootness. One student was 24, and thus too old to take advantage of the EHA any longer. The other student no longer lived in San Francisco, but Brennan said that the same thing could happen to him in another school district, so the case was one ‘capable of repetition, yet evading review.’ On the merits, Brennan saw no reason to deviate from the literal language of the EHA. Furthermore, he showed that Congress emphatically knew about the problem of dangerousness, so the absence of such an exception was not an oversight. On a final minor question of whether courts could order a state to take remedial action when local school districts failed to do so, the Court was tied.

Rehnquist wrote his first ever concurrence as Chief Justice, and in it he lamented how annoying mootness arguments were. He thought the Court had Article III jurisdiction to hear all moot cases, and thought it was especially important to do so when the case was live for the District and Appeals courts. Scalia, joined by O’Connor, dissented solely on mootness grounds. Because there was no evidence that the suing student would try to go to public school again, and because there was no reason to believe that another public school would also attempt to expel him, Scalia did not think the case was really ‘capable of repetion.’ And after doing his traditional digging through musty old 19th century rulings, he proclaimed that mootness was a genuine Article III bar against jurisdiction.

As ought to be apparent by now, I really hate justiciability doctrines like mootness. What I hate even more is the Court’s interminable schizophrenia on the ‘advisory’ vs. ‘cases and controversies’ debate. It’s brutally obvious that the Court decides to hear cases based on what important doctrinal questions it wants to address. In this sense, the Court is already a de facto advisory body. At the same time, it’s still a de jure cases-and-controversies body, and so it still adheres to all the dopey justiciability rules. Instead of this ‘worst of both worlds’ mixture, I would prefer the Court picking just one approach, and going all the way with it. Either become a full blown advisory court, and don’t even pretend to wait for the cases, or become a truly non-advisory court, and concentrate earnestly on reversing all lower court rulings which are in error, no matter how trivial they are doctrinally.


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