Quote of the Day - I asked Mom if I was a gifted child... she said they certainly wouldn't have paid for me.
Do Gifted Students Have A Disability? Should 'No Child Left Behind' Be 'No Child Gets Ahead'?
"The California Department of Education is not required to pay for college education of highly gifted 13-year-old student." That quote is from today's slip opinion, right out of the Los Angeles Daily Journal Daily Appellate Report.
Go ahead. Reread that first sentence and see if it sinks in.
Now before you get up in arms, consider these laws: California has a Compulsory Education Law. Children under 16 must attend "common schools" (K-12) on a full-time basis, and the state must provide that education for free. The Federal No Child Left Behind Act "ensures that all children have a fair, equal and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging State academic achievement standards and state academic assessments." Makes sense.
Most of the time.
One more law for your consideration: California Education Code section 56000 provides that "all individuals with exceptional needs have a right to participate in free appropriate public education and special educational instruction and services for these persons are needed to ensure the right to an appropriate educational opportunity to meet their unique needs." That makes sense, too.
Most of the time.
As you proceed with your analysis, consider these facts: Plaintiff Levi Clancy started attending Santa Monica Community College when he was seven. Normally at that age, he'd be in second grade. Levi then passed the California High School GED at nine (how he didn't manage to do that before he went to Community College isn't explained in the Court's opinion). Then, he started attending the University of California at Los Angeles at age 13, right about the time you and I were in eighth grade.
Wow. That's a gifted kid.
Levi's Mom, Leila, is a single wage earner and can't afford the tuition at UCLA. What's a Mother to do? Sue.
She did, but she lost. The Court of Appeal ruled that California is not required to provide Levi with a free education in college. The Court opined that the laws do not require the schools to teach each individual to his or her skill level if that individual is gifted. They likewise said the No Child Left Behind Act does not require schools to offer individualized education. Finally, they declared that a gifted student does not qualify for the "disability" required under section 56000.
This case is likely to be appealed on the issue of whether being gifted qualifies as a disability. What's your opinion?
MIPTC Congratulates Its Judicial Picks
Well, you voted, and got that little sticker to wear around for the day. Congratulations. While I was in Washington, D.C., National Public Radio ran a piece from an Iraqi blogger that went something like this: "we get killed when we try to vote, but vote we do because we take democracy seriously. Americans, on the other hand, fail by the droves to show up at the polls. Why the complacency?"
Late last month, MIPTC offered our readers and clients several judicial suggestions for the local electorate. Thanks to you for going to the polls; you picked each of MIPTC's picks.
You also slogged through the local ballots and propositions, and congratulations as well for wading through that morass. Here are the 2006 local, Orange County election results and the 2006 State of California election results.
The flag is flying a bit straighter today because you took the time to participate in our democracy. You can stand a little taller yourself.
And for all the others that ran in the election, its time to take the signs down now...
Hearing The Supreme Court Is Much More Difficult Than Understanding The Issues
MIPTC went the United States Supreme Court today and had the opportunity to hear oral arguments in a bankruptcy matter, Robert Louis Marrama v. Citizens Bank of Massachusetts and Mark G. DeGiacomo, Chapter 7 Trustee. The case involved the issue of whether a debtor had the absolute right to convert from a Chapter 7 (liquidation) to a Chapter 13 (reorganization) proceeding, even if the debtor acted in bad faith. The debtor obviously claimed yes, arguing that the statute said that the conversion could occur "at any time," and had no other restrictions.
The Trustee, on the other hand, pointed to section 105 of the U.S. Bankruptcy Code, arguing that the Bankruptcy Court has always had the inherent authority to deny motions that are part of an abusive scheme. That point was Justice Bryer's hypothetical: "What if the conversion is part of a scheme to defraud millions of people in a foreign country because it will be viewed as a signal that they should mail their life savings into a particular account in Switzerland? Can he convert then? No matter what? Even if he’s dead, even if he’s insane?”
None of the Justices were sympathetic to the debtor's side, and MIPTC predicts the decision will favor the Trustee.
The most interesting part of the oral arguments for MIPTC, however, was how poor the sound system is inside the Supreme Court. Even sitting just behind the counsel table, it was very difficult to hear the attorneys and for the matter, the justices. Of all places where you'd expect to be able to hear….
Taking A Shot On The Highest Court In The Land
MIPTC is in Washington, D.C., and doing some business about town, including the Supreme Court. When you're visiting the Court, you can take a tour and participate in a lecture inside the main courtroom where oral arguments are heard. It's a great opportunity to learn more about the Court and learn how much Americans don't know about our court system by the questions that are asked during the lecture.
Bar members are entitled to preferred seating just behind the counsel tables, and the courtroom is much smaller than most federal courts. There is virtually no well between counsel tables and the bench, and the room is not overly intimidating. Bar members can also use the Supreme Court law library, a bit smaller than the law library at the Library of Congress, but much quieter, with no lines to wait in for help from the librarians.
But the best part about the tour is to actually take a shot on the highest court in the land. That's right, above the courtroom and the law library is a low-ceiling basketball court - a full court. You can take a few shots there if no one is using it and the Court is not in session - I did, and even made a few baskets. But when I asked the clerk who took me up there whether any of the justices played, he responded with a groaner.
The justices don't play basketball very much because they spend so much time on the bench.
Farmers Harvest Corn, Soybeans, Hogs and Now Wind
Farming is farming, I guess. It doesn't necessarily matter what you're farming. It could be corn, soybeans, oats, alfalfa, shrimp, salmon, pearls, or, for that matter, let's say wind.
That's right. Wind.
You've heard of wind farms. We have a couple here in California, out near Palm Springs and another one outside of Livermore. They're even proposing one in Nantucket Bay, just off the shores of Cape Cod. Everyone there is up in arms about it. For that matter, many people around Palm Springs and Livermore were up in arms about wind farms before the Bureau of Land Management installed them.
Hard to believe for California, land of fruits, nuts, twigs and berries. And environmentalists. Purists call them eyesores. Visual pollution. NIMBY - you know - Not In My Back Yard.
Whatever they are, with rising fuel prices, they are starting to make money. Not a lot of money, say $3-5,000 per acre over 25 years. That's not a huge return, but some estimates peg the rate of return at a fairly respectable 20%, which may drop down to 7%, if tax subsidies were lost.
In Missouri, however, farmers are adding wind to one of their crops. The small family farm is about to go by the wayside given the cost of just about everything, consolidation into corporate farms and lower prices from imports. Now they're going to try a new income stream.
The Missouri farmers are planting seeds that will grow into wind turbines. Right there next to their herds, and they can still farm other crops around the 15-foot bases of the 200-foot high wind turbines. Sounds like a win-win to this former gentleman farmer.
Home Invasion Alarm Vote Lands Fremont City Manager, Council In Hot Water
More and more houses have burglar alarms, and as a consequence, more and more false alarms result, and cause police to spend time answering those alarms. Te police are understandably frustrated when they respond to an alarm, only to find that the wind blew a door open that someone forgot to lock.
Police in the City of Fremont on the the Southeast side of San Francisco bay wanted to stop wasting time answering alarms, and spend more time catching real crooks (isn't that what we say when we get pulled over for a speeding ticket?). The Fremont police proposed to adopt a policy that required verification of the home invasion alarm from an independent third party before they would respond to an alarm.
Whether that's a good policy or not, the police allegedly got the City Manager to brief the Council Members on the policy and gain their support. Later, in a regular City Council meeting, the Council members voted to adopt this new policy.
Just one problem: the City Manager's meeting with the Council members was not public. Yes, the meeting where the policy was adopted was public, but one City resident, J. Dennis Wolfe, believed damage had already been done in the private meeting without public input. So he sued under California's Brown Act, which requires meetings with public officials to be open and public.
According to Wolfe's allegations, one Council member allegedly said that other Council members, after having been briefed on the new policy, had expressed their support for it in advance of the public meeting. The trial court initially granted the City's motion to dismiss Wolfe's Complaint. The appellate court in a case entitled Wolfe v. City of Fremont, however, disagreed, and reversed.
Wolfe now gets to try his case against the City and force a new meeting before the City Council to reconsider the police-proposed policy. The same vote may come again, but this time, the City will have to listen to Wolfe and other Fremont residents who think that it might be a good idea to respond to home invasion alarms, even without independent verification.
After all, if your house has been invaded, it's not too likely that the invaders are going to give you time to call the police and verify that your house has been invaded. I'm not a policeman, but it seems logical to me.
Coast to Coast Internet Radio Gets The Bits and Bytes On New E-discovery Rules in the Federal Courts
On December 1, 2006, new amendments to the Federal Rules of Civil Procedure will take effect and change how civil cases will be tried forever. In this edition of Coast to Coast, we discuss these e-discovery changes, what the impact will be for corporate America and how companies can prepare themselves before the new rules take effect.
Join me and my fellow Law.com blogger and co-host Robert Ambrogi as we get insight into the world of e-discovery from the experts, Michele C.S. Lange, Esq., staff attorney in the Electronic Evidence Services group at Kroll Ontrack Inc. and Dennis Kennedy, well-known lawyer and legal technology consultant based in St. Louis, Missouri. Don’t miss this program.
Vigilante Bounty-hunter Or ADA-Crusader? You Be The Judge.
Businesses who have fended off lawsuits over disability access can take heart in last week's decision in Gunther v. Lin from the Fourth District Court of Appeal here in California. Now don't start flame-out comments, here, there are bounty-hunter-style lawsuits out there filed by people who are more interested in recovering money than in ensuring people with disabilities have access to services. You can be the judge whether this lawsuit falls into the former or latter category.
A wheelchair-bound customer entered a restaurant bathroom, and then sued the restaurant because there was a lack of insulation under the sink and the mirror was set too high for compliance with Americans with Disabilities Act standards. The customer was able to access the toilet. The customer's lawsuit sought penalties under California Civil Code section 52.
Short, relevant legal lesson here: section 52 allows penalties with a showing that the business's actions in not complying with ADA standards was intentional (actual damages, punitive damages and a $25,000 penalty, plus attorneys fees). Another section, California Civil Code section 54.3 creates strict liability for a violation (a sure win upon a showing of noncompliance), but the penalties ($1,000) are much less than section 52. A plaintiff cannot pursue remedies under both statutes, she must choose one or the other.
In the case, the restaurant owner, John Lin, said he was in the process of remodeling the bathroom: the insulation hadn't yet been installed and an employee did not install the mirror correctly. In other words, the court believed that Mr. Lin's actions were unintentional. Because Mr. Lin's actions were not intentional, the wheelchair-bound plaintiff was unable to recover any damages for the noncompliance.
In other words, plaintiffs suing for ADA-style violations must first prove intent before the court will award substantial damages. Recovery under Civil Code section 52 will likely now take the form of preliminary requests for compliance with the ADA that repeatedly get ignored, causing an actual injury to someone, rather than just non-compliance with the technical aspects of the law.