"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Saturday, February 25, 2017

The #GoldendoodleWonder, or political correctness as the new legal standard of review in disability cases

In the U.S., every person is guaranteed freedom from discrimination under the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

The U.S. Congress enacted multiple antidiscrimination statutes enforcing the Equal Protection Clause of the 14th Amendment.

Yet, in "deference" to the state governments in their ability to handle their responsibilities to enact and enforce laws protecting health and safety of its residents, the U.S. Supreme Court created various "levels of scrutiny" in review of discrimination cases.

Duties and rights of states in that relation are guaranteed by the 10th Amendment of the U.S. Constitution, which states are increasingly using in lawsuits against President Trump, for example, asserting their right "to be left alone" in such decisions - in all aspects but federal aid, then they use the 10th Amendment to force the federal government to "voluntarily" give money to states who defy federal laws claiming their exclusive authority to act for protection of health of safety of their residents under the 10th Amendment - great examples of that inconsistent invocation of the 10th Amendment by the state is:

  • claims of the states against President Trump asking the courts to recognize their 10th Amendment right to prevent the federal government from interfering with how states:

Yet, at the same time, the same state entities that can take care of health and safety of their residents so well,

  • sue the federal government (as the City of San Francisco did) for withholding voluntary federal aid for those same programs that the states assert is their exclusive right under the 10th Amendment to control and enforce - and, if so, to finance also;
  • condemn appointment of Betsy DeVos to the position of minister of the federal Department of Education that has no control whatsoever over schools - which are within the 10th Amendment right and duty for the states to control and finance; and
  • condemn President Trump for deferring to the states in deciding trangender bathroom issues for state schools - which is also within state 10th Amendment authority to do. 

Yet, at the same time as President Trump's enforcement of federal law in areas of his exclusive control (immigration policy), and his deference to the states in the states' area of exclusive control under the 10th Amendment (transgender bathroom policy in schools) meets with condemnation of the public - a condemnation not expressed with such vigor that similar or identical measures of President Obama or presidents before him - changes in the usual deference to the states by the U.S. Supreme Court and lower federal courts are not that prominent in the public's eye because court decisions are less discussed and less understood by the public.

Well, here enters the adorable Goldendoodle Wonder and the now 12-year-old girl #EhlenaFry whose parents sued her first school for refusal to allow her "service dog" upon the school premises because they already provided, as a reasonable accommodation to Ehlena Fry, a quadriplegic with cerebral palsy, a human aide. 

Wonder's appearance before the watchful eye of the U.S. Supreme Court, a court that only takes 70 cases out of 8,000 filed per year, so the cases the court takes must be really, really important
  • cancelled all previously existing precedents and legal standards of the U.S. Supreme Court on disability discrimination,
  • created a dangerous precedent for 
    • public safety in school,
    • rights of children other than those "served" by service dogs to be provided free and appropriate public education in a healthy environment,
    • school liability for injuries of disabled and non-disabled children and school employees;
    • a logistical nightmare for schools as to how now to accommodate not only disabled children, but also their "service animals", and
    • and an increase in taxpayer financing of schools
In return, the only "legal standards" that can be discerned through the forest of legalese in the "Goldendoodle Wonder" decision, heavy with block abbreviations and citations of mile-long statutes and administrative provisions which would prevent any average reader untrained in reading such cases from even trying to read this whole case, much less review it critically  - political correctness and the U.S. Supreme Court's sympathy - and those are not legal standards, of course.

So, let's look at the case which made the U.S. Supreme Court, the court that rejects the overwhelming majority of cases and usually uses its time more on trips and speeches than on actual work, pick this case for review while rejecting other cases, put the law on the back shelf and decide a case for a dog, a girl and her parents on the basis of sympathy and publicity alone.

I will start with the U.S. Supreme Court's usual standard of review in disability discrimination cases -  the so-called "rational basis" standard of review.

The rational basis of review was recently explained in a claimed immigration discrimination case - in the decision of federal judge Nathaniel Gorton, the only judge so far who was loyal to his oath of office and adhered to the U.S. Constitution, federal statutes and mandatory precedent among the PC galore over bashing Trump on any issue and sabotaging his actions at every turn.

Under the rational basis of review, if the court can find any "reasonably conceivable" justification for denial of a certain benefit, the claim of discrimination is dismissed.

Disability discrimination cases, once again, are reviewed, according the U.S. Supreme Court precedent, under rational basis scrutiny.

Let's apply the rational basis scrutiny test to the case of Ehlena Fry (who is now 12, so this frivolous case has been litigated in courts for 7 years, while there was no case to begin with),

her parents' Goldendoodle Wonder that the parents tried to foist upon the school as a "service animal" for their  5-year-old daughter who has cerebral palsy.  By the way, I also wonder, why the girl's name had to be carefully protected and taken out of the caption of the case when her full name and face was paraded for the media anyway.

First of all, according to the U.S. Supreme Court's recitation of facts in the case, the school DID provide a reasonable accommodation to the girl - the same as the school provided to all other disabled children in her situation - a HUMAN aide.

Once again, this was the school's actual reasoning to deny Ehlena Fry's parents desire to have a large dog accompany their daughter in school: that "the human aide provided as part of E.F.'s individualized education program rendered the dog superfluous".

So, there was an IEP (individualized education plan) which included provision of a human aide at all times for the girl.

Such accommodation was a reasonable accommodation required by American with Disabilities Act and by the Individuals with Disabilities Education Act.

Provision of such reasonable accommodations should have, in and of itself, rendered this whole 7-year litigation frivolous and should have had the court impose sanctions and attorney fees upon the girl's parents and attorneys involved in litigation - as courts liberally do in civil rights cases that they find to be without basis.

There is, simply put, NO CASE.

A reasonable accommodation was provided for the girl, which withstood rational basis review, case closed.

That another school DID allow the use of the "service dog" on the school grounds is the decision made by that school's principal, who agreed to incur the additional liability, logistical and health problems for the school and the school's children and personnel - that was the personal decision of the principal and not the law.

The U.S. Supreme Court did not ask a lot of pertinent questions which, whether they were or were not actually provided as a reason for the school's decision denying permission to use the service dog on the school premises, could nevertheless be considered by the court and used to dismiss the case with sanctions, as frivolous:

  1. is the human aide the same accommodation as provided to other children?  If it is, and "service dog" accommodation was not usual for that school to provide - which is obvious in this case - the rational basis review once again would prevail: the school did what it usually did for all children with similar disabilities, and there is no actionable equal protection or discrimination claim at all;
  2. is the service dog provided in addition or instead of human aide accommodation (and especially in the case of a "spastic quadriplegic cerebral palsy" making the dog insufficient as a sole provider of care)? - apparently, that was the case claimed because the dog supposedly was to pick up items from the floor, open doors, and help the girl maintain balance, including the transfer on and off the toilet seat - replacement of the human aide with the dog in carrying out such tasks presented:
    1. a safety issue for the child who could nevertheless fall off the toilet seat and get hurt, and
    2. a liability issue for the school that would be sued for the child's injury;
  3. would the presence of a dog on the school grounds be prohibited by the school's insurance policy? - if it was, that is a rational basis, and the case is, once again, closed;
  4. who was going to provide and actually give to the dog food, water and take the dog out to go to the bathroom? - if it was an extra duty for the school personnel, it was reasonable for the school to deny such an accommodation; 
  5. a dog may suffer from dehydration and become antsy and/or aggressive if he does not get water or if the dog was not fed that day, or not walked that day, another safety concern passing the rational basis review;
  6. where was the dog supposed to go to the bathroom - where other children play, in the schoolyard?
  7. are dogs allowed into the school cafeteria by public health laws? - if not, the case is closed.
  8. What is the guarantee that the dog will not:
    1. scare;
    2. bite;
    3. slobber upon;
    4. knock down causing injuries - it is a large dog;
    5. trigger an allergic reaction;
    6. distract from studies
other children or members of the school personnel?
9. Were the parents simply expecting the school personnel to take care of their dog for free, as an alternative to a pet boarding service?
10.  Was the dog allowed to babysit a disabled child under existing state laws?  If not, the dog could not be allowed to assist the child in the bathroom or anywhere else in the school without human supervision, and with human supervision the dog was unnecessary - the human could do what the dog was supposed to be doing, and a human would be doing it better than a dog.

Ii had a case where a school denied a right to hire an additional human aide to protect the child's safety in a situation where the school refused to watch out for the child and protect the child from other children bullying him.  The basis of denial was that allowing a human being who is not a school employee increases the school's liability and will not be allowed by the insurance carrier.  Here, we are talking about a dog, not a human being, with a lot more and  different additional liability issues than an additional human aide would provide.

If any of that happens, the school will incur enhanced liability - and that alone may provide a rational basis to refuse the use of a service dog while a human aide was available and provided.

So, the case was frivolous based on recited facts alone, and the U.S. Supreme Court failed to apply the rational basis review and properly affirm dismissal of the case by the two courts below, based on the U.S. Supreme Court's own precedent.

But, the U.S. .Supreme Court violated the rule of law and ruled in a way defying logic and common sense in two other areas.

The case hinged not only on issues going to the merit - a denial of what the parents claimed to be a reasonable accommodation, and what the school claimed to be "superfluous", and which was an unreasonable accommodation in view of provision of a human aide, and of health, safety, logistical and liability problems for the school created by presence of service dogs.

Once again, if the other school, the parents of other children, the school's liability carrier and the taxpayers financing the school's liability insurance and payouts in lawsuits against the school, and  voluntarily agreed to incur such problems and such liability, that does not mean that all schools, and all parents, and all insurance carriers, and all taxpayers must do it - it is not the requirement of the law.

The U.S. Supreme Court remanded the case for a factual determination and further development of the record - but, instead of remanding it to the district court for such purpose, remanded it to the lower appellate, Circuit court - which makes absolutely no sense, because the Circuit court does not have jurisdiction to develop the factual record of the case, it only has authority to rule on legal issues raised by the existing record.

The Circuit court is unable to decide through "legal analysis" of the record already in front of it, what was the "gravamen" of a case that was imperfectly pled - and the court below already decided it, by dismissing the case for failure to exhaust administrative remedies, thus implying that that "gravamen" of the claim was charging discrimination against the right for free and appropriate public education (FAPE).

If it was imperfectly pled, it should be dismissed with a leave to amend.

If the Circuit court is supposed to be able to decide that LEGAL issue upon EXISTING record, there was no need for a remand from the U.S. Supreme Court to decide that issue - the U.S. Supreme Court was equally authorized to do that.

Moreover, since the U.S. Supreme Court suggested that on remand the history of administrative proceedings should be delved into more deeply, that clearly means development of the factual record f the case - something that the Circuit court has no jurisdiction to do.

So, the U.S. Supreme Court, by its remand to the Circuit and the order as to what the Circuit court must do on that remand, created a conundrum for the Circuit court:
  • whether to disobey the order of what it must do on remand, because the U.S. Supreme Court usurped authority of the U.S. Congress to define jurisdiction of the Circuit court and ordered the Circuit Court to do what it cannot do within its jurisdiction; or
  • to follow the U.S. Supreme Court as a mandatory precedent, but then violate the statute enacted by the U.S. Congress under Article I of the U.S. Constitution defining jurisdiction of the Circuit Court.

The third issue is the procedural/substantive issue that the court remanded the case for.

First, the court could not even go into such details after having seen that a reasonable accommodation was already provided to the child in the form of a human aide, making the case meritless, no matter whether administrative remedies were or were not exhausted, or did or did not have to be exhausted.

Second, let's ask a no-brainer blunt question - however the complaint was "framed", pled, drafted, charged, written or whatever other words used to describe it:

  1. what is the purpose of parents sending their children to school other than getting the free and appropriate public education (FAPE); and
  2. if that is the only reason why children go to school, what else can a discrimination claim against the school be about in denial of "comfort accommodation" in educational process (where gender, sex or racial discrimination was not invoked) OTHER than tied in with educational process?

The parents actually DID charge that during educational process, the dog was not allowed to sit next to the girl, but was relegated to the back of the classroom during the brief time when the school allowed the dog in the school for a trial period (and it did not work).

If I would be a parent of a child who would go to school with Ehlena Fry, with all my lifetime love to dogs

(and I have never been without a dog in my household since early childhood to present time)

I would be concerned that my child (and 5-year-old are very distractable) is spending time at school hugging a dog and not learning, which is what the child is in school for.

If I would be a parent of a child who fears dogs, who has a life-threatening allergy triggered by dog hair - I would be concerned for my child's safety, mental and medical health and life. 

Once again - a human aide was provided by the school.

Under the rational basis review, that was enough under the current law and U.S. Supreme Court precedent.

And, sympathy to a disabled child, her dog, and their situation is not enough basis to cancel a whole body of precedents and to create a huge liability, public health and safety issue by creating such a dangerous precedent.

That said, I hope that the 6th Circuit, the court where the U.S. Supreme Court remanded the case, does the right thing and dismisses it again - as it did previously, as is proper to do in this case under the existing law.

We are talking the rule of law here, and, no matter how sympathetic to a disabled girl we may be, and how cute Wonder is, the law in this case is clear - the school provided all accommodations it could, and should not be subjected to a lawsuit, and especially one to force extra liability and public safety concerns upon it, as well as making taxpayers pony up money for non-existing damages in a case where reasonable accommodations were already provided.

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