Monday, February 16, 2009

Legal research

I've been discussing the case with a lawyer who is a civil litigator but has no expertise in Special Education law. That's not a problem, because our case doesn't call for deep knowledge of SE law, just enough to litigate damage claims and maybe the Due Process Hearing. So we've been going back and forth, and I referred him to Disability Rights California, formerly PAI, for their guidance.

For instance, he pointed out that Fitzgerald v Barnstable concerns Title IX and in fact contrasts it to the Supreme Court's opposite finding in Smith v Robinson (1984), in which it found IDEA to not even provide for recovery of attorney costs. So Congress overturned that decision in 1986 by adding the following language, now in IDEA 2004 as 20 USC Section 1415 (l):

(l) Rule of construction
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C. 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C. 790 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

Thus, the Smith decision cited in Fitzgerald applies to IDEA as it stood in 1984, but not to how it reads today, although the reasoning of Smith is still pertinent in general to statutes like what IDEA used to be, as opposed to Title IX and to IDEA as now explicitly amended. Now Fitzgerald confirms the view of the 9th Circuit that IDEA does permit 1983 actions ("other Federal laws protecting the rights of children with disabilities") once I have exhausted the administrative remedy of Due Process that I have now begun. That places the Superintendent firmly on the hook personally, along with Robert Morgan at the California Dept of Education, for their abuse of Stephen, if we can't come to a peaceful resolution before then.

It strikes me that I enjoy legal reasoning because it really is the kind of Talmudic reasoning one sees in Rabbi Jesus in the gospels as he debated the scriptures with the scribes and Pharisees, and indeed that's where I've been trained in it. It can be very useful indeed, properly done, in breaking the teeth of the oppressor. At the same time, it can be truly evil when done to turn aside justice - it's a dangerous tool - especially because it can easily be a seductive lust of the mind that has no concern with justice. In truth, it would be best if we can come to a peaceable resolution in which everyone finds mercy. It's good that I have been having to think more about these things lately.

1 Comments:

Blogger K said...

ha ha ha ha ha Ha!!!

2/18/2009 10:46 AM  

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