Petition PE1197

iain@absolvitor.com (Iain Nisbet) — Thu, 20 Nov 2008 23:50:05 GMT

Petition by Bill Alexander calling on the Scottish Parliament to urge the Scottish Government to reform the legal system to adopt the Scandinavian system of allowing unrestricted access to legal representation before the court for example by allowing non-lawyers to appear in court on behalf of other parties.

Coach Led Pre-Game Prayer Violates Establishment Clause

fdugas@bmdlaw.com (Floyd J. Dugas) — Thu, 20 Nov 2008 13:52:43 GMT

In the case of Borden v. School District of the Township of East Brunswick, the 3^rd Circuit Court of Appeals recently ruled that a coach’s participation in a pre-game prayer with his football team violated the establishment clause under the endorsement test.

The case involved prayer activities that had continued for a number of years. The coach would join his players by bowing his head and taking a knee with the team while they prayed. The coach’s participation was in violation of school policy prohibiting teachers and coaches from engaging in such activity. When the School District sought to force the coach from participating in the activity, he filed an injunctive action claiming violation of his First Amendment rights and that the policy was void as unconstitutionally vague. Ultimately the court ruled for the School District and that the coach was in violation of the Establishment Clause of the First Amendment when he bowed his head and took a knee as the team prayed.

This case is the latest in a line of cases that collectively hold that while student initiated and led prayer activities are permissible under the First Amendment, when teachers or coaches participate, depending on the specific facts involved, it can lead to an impression of endorsement of religion, therefore, should not occur. The court noted that students may continue to voluntarily pray together provided it is not done with school participation or supervision.

Stunning Pensioner

iain@absolvitor.com (Iain Nisbet) — Mon, 03 Nov 2008 23:14:49 GMT

The Best Stun Gun blog (no, really) reports that a man has been fined in Edinburgh Sheriff Court for importing an illegal stun gun.

South African Vernon White (73), by all accounts was visiting some friends in the Veldt. They decided that returning to Leith would be too risky for him without some kind of protection and gave him the weapon for his own self-defence. However, it was discovered by officials on his return to the UK when ... he told them he had it.

Sheriff Reith issued a modest fine.

Sturgeon "not persuaded" on euthanasia

iain@absolvitor.com (Iain Nisbet) — Mon, 03 Nov 2008 23:06:23 GMT

Nicola Sturgeon MSP, the Health Secretary, has been reported as saying she was "not persuaded" that assisted suicide should be made legal, after independent MSP Margo MacDonald said she hoped to bring legislation on the subject before Holyrood next year.

Ms. Sturgeon (with whom I once worked) said that she was not sure safeguards could be put in place to prevent the system from being abused. However, she is quite comfortable (as I understand it) to see organs harvested from those who haven't got round to "opting out" (i.e. declaring officially that you'd like to hang onto your organs after you're dead).

Rape law concerns

iain@absolvitor.com (Iain Nisbet) — Wed, 29 Oct 2008 23:29:25 GMT

Campaign groups have expressed concern over the "limitations" of new legislation which aims to strengthen the law on rape.

The groups, including Rape Crisis Scotland, Scottish Women's Aid and Victim Support Scotland, presented their worries about the Sexual Offences (Scotland) Bill to MSPs on the Scottish Parliament's Justice Committee.

The MSPs heard that although the groups generally welcome the new legislation, they had a number of concerns that provisions in the bill could, in certain circumstances, make it more difficult to prove rape.

They also called for action to stop a complainer's personal history being brought up in trials. Sandy Brindlay, national co-ordinator of Rape Crisis Scotland reported that medical records, including mental health problems and use of anti-depressants, are increasingly used in court by the defence counsel.

She said: "We need to be clear about its limitations. It doesn't look at evidence at all. The particular area we are concerned about is sexual history and character evidence."

Although the bill defines "consent" for the first time in law, Brindlay also highlighted concerns over "advance consent". The bill indicates that, even if the complainer is subsequently unable to with withhold consent because they are asleep or under the influence of drink or drugs, there may still be consent if it was agreed at an earlier stage.

What do Judges actually do?

iain@absolvitor.com (Iain Nisbet) — Wed, 29 Oct 2008 00:15:03 GMT

"You are to know, says he, that the Judges do not sit in court to do Business above three Hours in the day, that is from Eight in the Morning to Eleven. After they have taken some Refreshment, the Method is, to spend the rest of the Day in the Study of the Law, reading of the Holy Scriptures, or else it is taken up in some other innocent Amusements, at their Pleasure: So that it is rather a Life of Contemplation, than of Action, free from worldly Cares and Avocations."

from De Laudibus Legum Angliae, by Fortescue (1470) - as quoted in "How to be free" by Tom Hodgkinson (2006).

High Court in Club vs. Country row

iain@absolvitor.com (Iain Nisbet) — Mon, 27 Oct 2008 22:46:02 GMT

The Welsh Rugby Union claimed a major legal victory on Friday in the ongoing dispute with the country's professional clubs over player release for international games.

The four professional regional teams - Cardiff Blues, Ospreys, Newport Gwent Dragons and Scarlets - said players would not be released until five days before the first Test against South Africa, whereas head coach Warren Gatland wanted a further three days preparation.

On Friday, the High Court ruled that the regions should not "prevent, hinder or obstruct" the players from attending training on Monday, Tuesday and Wednesday of next week. Judge Havelock Allan's decision is binding on the regions by virtue of the express terms of the Participation Agreement and their membership of the WRU.

WRU chief executive Roger Lewis is quoted as saying "Welsh rugby has right on its side and common sense has prevailed."

As a result, Ospreys' winger Nikki Walker is set to join the Scottish Rugby training camp in Spain tomorrow - in preparation for autumn Tests against South Africa, New Zealand and Canada.

Second Circuit Formally Adopts LRE Standard

mlaubin@bmdlaw.com (Michelle C. Laubin) — Mon, 27 Oct 2008 15:55:39 GMT

In a recent decision, the United States Court of Appeals for the Second Circuit (NY, VT, CT) formally joined its sister circuit courts in adopting a standard for determining when a school district has fulfilled its responsibility to educate a student with disabilities in the least restrictive environment (LRE). In P. v. Newington Board of Education (10/9/08), the court adopted a "flexible, fact-specific analysis, considering whether, with the aid of appropriate supplemental aids and services, education in the regular classroom may be achieved, and, if not, whether the school has included the student in regular classes, programs, and activities to the maximum extent appropriate." Applying that analysis to the case before it, the court found that the school district had fulfilled that responsibility for P., a student with Down Syndrome, hearing impairment, and other significant health problems.

The case before the court involved a 2-year challenge in which the hearing officer found that the IEP developed for the student for the 2004-2005 school year did not provide an appropriate program in the LRE, but that the IEP developed for the 2005-2006 school year did meet this standard. The school district did not appeal the hearing officer's findings regarding the first year at issue, but the parent did appeal the finding as to the second year and the sufficiency of the relief awarded.

The Second Circuit concluded that the approach taken by the Third, Fifth, Ninth, Tenth, and Eleventh Circuits should be adopted in this circuit as well, and provides appropriate guidance to district courts without making too intrusive an inquiry into policy decisions left to local school officials. Known by some as the Daniel R.R. approach, this test requires that the court consider "whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child", and if not, "whether the school has mainstreamed the child to the maximum extent appropriate". The court also endorsed the further elucidation of the Daniel R.R. test set out in the Third Circuit Oberti case, which listed several factors to be considered in determining whether the child can be "satisfactorily educated" in regular education: (1) whether the school district has made reasonable efforts to accommodate the child in the regular classroom, (2) the educational benefits available to the child in a regular class, with appropriate aids and services, as compared to the benefits provided in a special education class, (3) the possible negative effects of the inclusion of the child on the education of other students in the class. The Second Circuit "left for another day" the question of whether it should be appropriate to consider the cost of the education of the child in regular education, since the defense of cost was not raised by the school district.

The court further noted that although it adopted the Oberti list of factors, it did not consider this list to be exhaustive, leaving courts and hearing officers to identify other factors relevant to particular cases to be considered in determining compliance with the LRE standard.

Noting that the school district in this case had provided for the student's inclusion in regular education 74% of the time, and was working toward a goal of 80% with gradual increases, that it had employed several professionals to provide consultation, and that outside expert testimony supported the need for some instruction to be provided outside of the regular classroom, the court affirmed that the school district in this case had complied and that for some period of time, education in the regular classroom "could not be achieved satisfactorily" even with supplemental aids and services, and that he had been mainstreamed to the maximum extent appropriate.

The court rejected the parents' argument that the P.J. consent decree should cause the court to adopt a presumption that a student should be placed in regular education 80% of the time. While recognizing that while "Connecticut school authorities may have found this percentage useful, we conclude that mandating such a percentage in every case would be inconsistent with the IDEA's directive that schools take an individualized approach to each student....We do not think that 80% is presumptively adequate or that less than 80% is presumptively inadequate."

So, time for you to weigh in: Will this case resolve the issue of the LRE standard in Connecticut? Or does the non-exhaustive list of factors provide cover for consideration of any factor presented by either side in support of its argument that the LRE standard either has or has not been met? Is it time for Congress to provide clearer guidelines to schools to comply with the LRE mandate? Is this an area ripe for reinterpretation in the 2010 Reauthorization? Or could that do more harm than good? Post your comments...

Helow again

iain@absolvitor.com (Iain Nisbet) — Thu, 23 Oct 2008 01:21:23 GMT

The House of Lords has ruled, in the case of Helow v. Secretary of State for the Home Department, that the fair-mided and informed observer would not have considered there was a real possibility of bias in Lady Cosgrove's hearing of an asylum case involving a member of the Palestinian Liberation Organisation, notwithstanding her membership of the International Association of Jewish Lawyers and Jurists.

Aberdeen City set for further legal challenge over disability cuts

iain@absolvitor.com (Iain Nisbet) — Tue, 21 Oct 2008 23:49:19 GMT

The Equality and Human Rights Commission is to consider whether to use its statutory powers to bring a legal challenge against Aberdeen City Council on whether their recent budget cuts have been "equality impact assessed" as required by law.

The council cutbacks caused controversy in May when the authority closed the Choices disabled day centre. Choices offered respite care for 56 people and was closed as part of the council's programme of budget savings. Choices campaigner Kevin McCahery, the petitioner in the case of McCahery v. Aberdeen City Council was reported by BBC News as saying he was delighted at the news.

Scots lawyers in Gaza

iain@absolvitor.com (Iain Nisbet) — Mon, 20 Oct 2008 21:56:53 GMT

According to the International Middle East Media Centre, a group of international legal personalities from Ireland and Scotland visited eastern parts of the Gaza Strip on Sunday, mainly in the southern Khan Younis city, observing the damage caused by continuous Israeli army actions in such a border area.

The visit, according to local organizers, was aimed at observing the amount of suffering Palestinian residents face due to the frequent Israeli attacks. The Gaza Youth Development Society, the principal organizer, reported that the delegation talked directly to the local inhabitants.

Emad Asfour, the society's head, called on the delegation to convey what they witnessed in Gaza to their countries, so an international mobility can be maintained for the sake of ending the suffering of Gaza's population under the Israeli blockade and actions. For example, it is reported that the eastern border areas of Gaza adjacent to Israel have been frequently exposed to Israeli army actions such as shooting heavily and razing large areas of farm lands.

Board of Education Immune From Alleged Intentional Infliction Of Emotional Distress By School Principal Pursuant to General Statues § 52-557n(a)(2)

wholcomb@bmdlaw.com (Warren L. Holcomb, Esq.) — Wed, 15 Oct 2008 15:58:17 GMT

In Crosby v. Woodbridge Board of Education, the Superior Court confirmed that a public employer is immune from liability for intentional tort allegedly committed by an employee pursuant to General Statutes § 52-557n(a)(2) and therefore is entitled to judgment as a matter of law.

In this case, a parent brought a claim on behalf of a minor student against a board of education that contended that the school principal knowingly tolerated an atmosphere of chaos, disruptiveness and violence against the student, as a result of which he was exposed on a daily basis to so much physical and verbal violence in the classroom and play areas that school became a place of fear and learning could not take place in any meaningful manner. In addition, the plaintiff contended that the principal’s acts and omissions were extreme and outrageous and were carried out with knowledge that the student would suffer, and in fact did suffer, emotional distress as a result. The school principal was not named as a defendant.

The court held that the board of education was entitled to summary judgment because the plaintiff’s complaint alleged a claim of intentional infliction of emotional distress, a claim for which the board of education is immune from pursuant to General Statutes § 52-557n(a)(2). This statute provides that except as otherwise provided by the law, a political subdivision of the state is not liable for damages to persons or property caused by acts or omissions of any employee, officer or agent that constitutes criminal conduct, fraud, actual malice or willful misconduct. Stating that the term “willful” is synonymous with “intentional,” the court dismissed the student’s claim against the board of education.

In addition, the court rejected the plaintiff’s contention that his pleadings blended claims of both intentional and negligent infliction of emotional distress. To prevail on a negligent infliction of emotional distress claim, a plaintiff must plead and prove that (1) a defendant’s conduct created an unreasonable risk of causing emotional distress; (2) the distress was foreseeable; (3) the distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the distress. See Carrol v. Allstate Ins. Co., 262 Conn. 433, 444 (2003). The court determined that plaintiff’s complaint alleged only in a claim for intentional infliction of emotional distress because it did not allege that it was foreseeable to the principal that the student would suffer emotional distress as a result of the toleration of the atmosphere described in the pleadings or that the emotional distress that the student suffered was severe enough that it might result in illness or bodily harm.

ADA Amendments Will Require Changes to 504 Forms and Procedures

mlaubin@bmdlaw.com (Michelle C. Laubin) — Wed, 15 Oct 2008 14:01:23 GMT

Since Congress has explicitly rejected the Supreme Court's decisions in Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturer v. Williams, some school districts may need to remove references to these cases from training materials and guidance for staff on defining "substantial limitation" and "major life activities".

In addition, a new list of major life activities explicitly contained in the statute now includes eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating. Although many districts have stretched the definition of "learning" to include impairments to "focus" and "concentration" associated with various health impairments including Attention Deficit Hyperactivity Disorder (ADHD), the inclusion of "concentration" as a major life activity makes this stretch unnecessary and expands the likelihood that students with ADHD and other focus-impairing conditions will qualify as disabled under Section 504. Districts may wish to provide training for staff about ways in which the ability of a student to concentrate may be compared to the average student in the general population, such as through use of checklists and behavior rating scales.

Also, since the ADA now requires that disability determinations be made without regard to mitigating measures such as medication, medical supplies, appliances, low-vision devices (except eyeglasses and contact lenses), prosthetics, hearing aids, and mobility devices, students will also need to be assessed for eligibility under Section 504 without regard to these mitigating measures as of January 1, 2009. For many districts, this may also require a change to Section 504 eligibility determination forms, many of which currently state or imply that if a student is functioning normally with mitigating measures, the student is not eligible under Section 504.

For my readers in the shool nursing profession, what do you think the implications of the new law will be on decisions to write an Individualized Health Care Plan (IHCP) for a student, versus a Section 504 plan? My guess is that we are going to start to see a reversal of the trend from the past 5-10 years that was moving away from Section 504 plans and toward IHCP's, sliding in the opposite direction.

Goodbye to 'The Gate'

Mon, 13 Oct 2008 05:26:01 GMT

Thank you for being a loyal reader of At the Schoolhouse Gate. Effective immediately, "The Gate" is being replaced by The Edjurist. Mosey on over and see why!

Congress Broadens Obligations Under The Americans With Disabilities Act

jmarquis@bmdlaw.com (Jennifer L. Marquis) — Fri, 10 Oct 2008 16:28:45 GMT

Through H.R. 3195, our 110th Congress has vastly expanded the reach of the Americans with Disabilities Act, by effectively bringing within its reach a large number of individuals previously excluded under the current jurisprudence interpreting the Act. The Act still maintains its primary definition as to who is included thereunder (those with “a physical or mental impairment that substantially limits one or more major life activities” or those “regarded as disabled”), but calls for an expansion of what it means to “substantially limit,” what constitutes a “major life activity,” and what it means to “be regarded as disabled.”

Moreover, the new legislation explicitly reverses the Supreme Court’s narrow interpretation of the Act, which previously foreclosed those who could control their conditions through the use of medication, physical or other aids. Now, even though such persons might function as well as a non-disabled individual, they will be covered by the Act.

The new legislation will take effect on January 1, 2009. Congress has called upon the Equal Employment Opportunity Commission (EEOC), the administrative agency tasked with interpreting the Act, to revise its regulations. Such revisions are expected to be forthcoming. This new legislation and its forthcoming regulations will have the effect of reversing nearly two decades of judicial decisions that moderated the impact of the Act upon employers. Accordingly, employers will likely encounter more demands for accommodation and will likely see a rise in the number of claims brought for violation of the Act, as the number of potential claimants grows exponentially.

SDE Issues New Guidance for Student Suspensions

mlaubin@bmdlaw.com (Michelle C. Laubin) — Thu, 09 Oct 2008 14:42:12 GMT

Commissioner of Education Mark McQuillan issued new guidance dated October 1, 2008 to all school districts to help implement the new requirements of Connecticut General Statutes Section 10-233c requiring all suspensions to be in-school rather than out-of-school (unless certain requirements are met) as of July 1, 2009. This guidance was required by the legislation passed last year, and is available on the State Department of Education website at http://www.sde.ct.gov/sde/pdf/pressroom/In_School_Suspension_Guidance.pdf. In his memorandum to school districts, Commissioner McQuillan invites districts to continue to review the guidance document and submit feedback to help create the most useful guidelines possible. The Department also promises to hold technical assistance seminars and workshops between now and March 2009 to help districts assess their readiness to implement the new law for the 2009-2010 school year.

As of July 1, 2009, Section 10-233c will require that "Suspensions pursuant to this section shall be in-school suspensions, unless during the hearing held pursuant to subsection (a) of this section, the administration determines that the pupil being suspended poses such a danger to persons or property or such a disruption of the educational process that the pupil shall be excluded from school during the period of suspension." The effective date of this legislation was delayed from July 1, 2008 to July 1, 2009 after school district officials across the state protested that the new law was going to require additional staff and supervision of students in in-school suspension programs in most districts.

The guidance issued by SDE contains an overview of the data collected from school districts during the 2006-2007 school year, showing that males are more likely to be disciplined than females, special education students are more likely to be disciplined than regular education students, minority students are more likely to be disciplined than white students, and lower achievement test scores are correlated with higher rates of discipline. State and local discipline data is available at http://www.csde.state.ct.us/public/cedar/cedar/discipline/index.htm.

Of the 177,360 disciplinary incidents reported to SDE during the 2006-2007 school year, the incidents most frequent policy violations resulting in out-of-school suspension were insubordination/disrespect, disorderly conduct, skipping class, obscene language/profanity, and failure to attend detention/in-school suspension. According to the SDE guidance, "most of the incidents in the school policy violation category will not meet the criteria for implementing an out-of-school suspension as defined in the amended CGS Section 10-233c." (Emphasis supplied.)

The guidance from SDE provides a list of "mitigating factors" to be taken into consideration by administration during the pre-suspension conference in determining whether the student poses a danger or disruptive influence on the educational process, including the age, grade level and developmental stage of the student; severity of the infraction or disruption, the student's disciplinary history and any patterns or identified behavioral antecedents; the student's intent and expressed reasons for engaging in the problem behavior; special learning, behavioral or emotional needs of the student and whether these needs have been addressed through referral to a CST or other appropriate group; the student's prior response to disciplinary interventions; the stuent's academic progress and relative risk of lost instruction, disengagement from school and dropping out; degree of involvement and level of parent support in efforts to improve the student's behavior in school; and interpretation of culture and communication factors. These factors are enumerated in a "Decision Guide" for school administrations attached to the new guidance.

It appears that this list includes all of the factors usually considered by school administrators in meting out appropriate disciplinary sanctions for students, so the main difference in implementation will still come as a result of the language of the statute, which states that unless after consideration of these factors there is a danger or disruption posed by the student in the event of an in-school suspension, the presumption must be that any suspension will be served in-school rather than out-of-school. Of the three example scenarios issued with the guidance for disorderly conduct, insubordination/disrespect, and obscene language, only the last one for obscene language meets the test for an out-of-school suspension. In that case, the student's behaviors are escalating, previous attempts at in-school suspension have had no impact on the student's behavior, and it is felt that the stduent's behavior cannot be managed in in-school suspension.

Additional appendixes issued with the guidance deal with application of the new law to students with disabilities, and suggestions for developing an effective in-school suspension program. The latter includes placement of pupils by age or grade in a positive learning environment, supervision and/or instruction as determined by the district using a qualified individual, prompt access to current school work supplied by the pupil's classroom teachers, and guidance on correcting behavior. The guidelines state that if a student is assigned to an in-school suspension location other than the student's usual school, "the pupil may be eligible to receive transportation services pursuant to and in accordance with the transportation policy of the school district", suggesting that districts should have (or develop) policies to address this issue.

And stay out!

iain@absolvitor.com (Iain Nisbet) — Thu, 09 Oct 2008 01:17:45 GMT

As reported in many different places in the Scottish media, a man accused of robbing a Post Office has been banned from Scotland.

The man in question lives in England (only just) and has been charged with assault and robbery. He appeared at Selkirk Sheriff Court and was granted bail with the condition that he does not enter Scotland (other than to stand trial, of course).

It is hoped that other potential criminals will be deterred by the Scots Border Guards established to enforce the bail conditions. If convicted, the man faces deportation to St. Kilda.

Journal Online Revamped

iain@absolvitor.com (Iain Nisbet) — Mon, 06 Oct 2008 22:07:59 GMT

Check it out! New look Journal Online - fancy.

Sheriff: "Chivalry's not dead"

iain@absolvitor.com (Iain Nisbet) — Mon, 06 Oct 2008 22:05:31 GMT

BBC News reports that Sheriff Hogg in Edinburgh Sheriff Court has fined a Polish man £100 for breach of the peace for taking a photo of an unwell (the report suggests possibly drunk) woman outside a pub.

The Sheriff is quoted as saying: "I'm going to impose a fine to remind him chivalry is not dead and when somebody is in distress you leave them to it."

Wait a moment, I'm not sure where the Sheriff gets his information on chivalry from, but I have it on good authority that the knight's approach to the damsal in distress is not to "leave her to it". In fact, the amateur photographer ought to have assisted the woman, then laid seige to the inn which had served her the offending food/drink instead.

For more on this peculiar judgement, see zero point nine.

It Does Matter

pparker@parkercounsel.com (Pamela Parker) — Mon, 06 Oct 2008 02:11:05 GMT

Humans - Americans - have coined a number of sayings to help us deal with the mundane, boring parts of life.
"Just put one foot in front of the other."
"Keep your head down and your mouth shut."
"Stay the course."
"Soldier on."

All of us ocassionally get lost while putting one foot in front of the other, because we forget to look up. I was suddenly reminded of this earlier today while reading an article on the author Anne Rice. One small comment in the story gto me thinking. Rice was talking about her college years at Texas Woman's University. The article says "In the memoir, she recalls that, while at TWU, her literary ambitions weren't exactly encouraged. One English teacher told the class that not much was expected beyond "decent sentences."
"I loathed the very thought of assuming mediocrity," Ms. Rice writes. "I barely got by." (You can see the full article here)

The teacher was obviously doing her best to get by, but had forgotten that not every day requires you to keep your head down while putting one foot in front of the other. And forty-some years later, Rice remembered.

Kids remember what their parents say to them. They also remember what their teachers say to them. We can't do anything to stop them rembering our words, and we don't get to choose which of our words make a lasting impression. The only thing we can choose, is whether our words are inspiring, or mundane.

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