The Lawletter Vol 42 No 6

Jason Holder, Senior Attorney, National Legal Research Group

            The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., is designed "to ensure that all children with disabilities have available to them a free appropriate public education ["FAPE"]."  20 U.S.C. § 1400(d)(1)(A).  In Fry v. Napoleon Community School, 137 S. Ct. 743 (2017), the Supreme Court examined an IDEA provision which "addresses the Act's relationship with other laws protecting those children." Id. at 748. While the provision does not limit rights under other federal laws, it provides that "if a suit brought under such a law 'seek[s] relief that is also available under' the IDEA, the plaintiff must first exhaust the IDEA's administrative procedures." Id. (citing 20 U.S.C. § 1415(l)).

            Under the IDEA, an individualized education program ("IEP") serves as the primary vehicle for providing a child with a FAPE.  Id. at 749 (citing Honig v. Doe, 484 U.S. 305, 311 (1988)). If parents are unsatisfied with an IEP, they can file a complaint with the local or state educational agency (as provided by state law) or "may instead (or also) pursue a full-fledged mediation process." Id. Next, the parents may seek a due process hearing appealable to a state agency (if originally conducted at the local level).  Id.  Only after these steps are completed may a parent seek judicial review with a civil action in state or federal court.  Id.

The Lawletter Vol 42 No 1

Jason Holder, Senior Attorney, National Legal Research Group

     In United States v. Carey, 836 F.3d 1092, 1093 (9th Cir. 2016), federal agents secured a wiretap order under the Wiretap Act, 18 U.S.C. §§ 2510-2522. The order was based upon evidence that Ignacio Escamilla Estrada ("Escamilla") used the number to smuggle and distribute drugs. Carey, 836 F.3d at 1093. During the seven-day wiretap, the agents realized that Escamilla was not the one using the phone. Id. Nevertheless, believing that those on the phone may be connected to Escamilla, the agents continued listening. Id. Authorities ultimately identified Michael Carey as the unknown speaker. Id. The investigation revealed that Carey was not involved with Escamilla. Id. at 1094.

     Carey moved to suppress all of the evidence derived from the use of the wiretaps, arguing that the government had unlawfully relied on the Escamilla order to justify the independent and unrelated use of wiretap surveillance against Carey. Id. The district court denied Carey's motion, explaining that (1) the government had complied with the statute for the wiretap order against Escamilla, and (2) that there was no requirement for a separate showing of necessity once the agents concluded that T-14 was not used by Escamilla because the agents reasonably believed that the callers and calls might be affiliated with Escamilla or other offenses. Id. at 1095.

The Lawletter Vol 41 No 8

Jason Holder, Research Attorney, National Legal Research Group

     In State v. Loomis, 2016 WI 68, 881 N.W.2d 749, the Supreme Court of Wisconsin upheld the use of risk assessment tools at sentencing against a due process challenge. In doing so, however, the Loomis court noted that such tools are consistent with due process protections only if they are used properly and in accordance with certain limitations. Additionally, the court may have provided a possible road map for future challenges to the use of risk assessment tools at sentencing.

     Loomis had been charged with a number of offenses stemming from a drive-by shooting and ultimately pleaded guilty to two of the lesser offenses. A presentence investigation report was prepared and included a Correctional Offender Management Profiling for Alternative Sanctions ("COMPAS") risk assessment. In ruling out probation, the circuit court noted that it did so because "of the seriousness of the crime and because your history, your history on supervision, and the risk assessment tools that have been utilized, suggest that you're extremely high risk to re-offend." Id. ¶ 19, 881 N.W.2d at 755.