January 20, 2008
Autism, WiFi, and Law
Some months ago, there were any number of reports that there was a correlation between increased use of Wi-Fi, and other communications technologies, and incidence of autism. An example of such a report can be found from Business Wire, entitled, “Research on Correlation Between Autism, Cell Phones, and Wireless Computers by Tamara Mariea.”
That’s correlation, not causation, by the way.
For a thorough debunking of the Wi-Fi and autism correlation, see the solid analysis at Ars Technica, entitled, “Autism and WiFi, a Detailed Debunking.”
This is one of the times that, concerns about the excessive creativity of the plaintiff’s bar notwithstanding, one can be sanguine about the legal value of work like Mariea’s. The cost of undertaking a case is high, in analysis and money, and is a barrier to crackpot theories. Could be, might be, perhaps, etc. are just not enough to justify a case against any number of tech companies with the means to mount a thorough, compelling defense.
The cost for a press release of a shoddy study is low, but fortunately, law sets the cost of a lawsuit far higher.
November 11, 2007
Lead in Toys
Over at AutismVox, there’s a justifiably skeptical post about a letter to the editor suggesting that lead in toys might be responsible for the supposed ‘autism epidemic.’
I know of no solid medicine supporting a lead-toy-to-autism hypothesis, but the plaintiff’s bar may find a reputed expert, somewhere. It’s likely that there will be lawsuits over these lead-containing toys, but I am not sure if they’ll implicate autism.
In any event, mere implication is neither evidence nor proof of causation.
June 17, 2007
Happy Father’s Day
Best wishes to dads everywhere for a great Father’s Day. Here’s a picture of my late father, when he was only three years old, from Wyoming.
May 31, 2007
Excursion: Joe Lindsey on ‘Which Way Out’ for Floyd
Great, serious post from the Boulder Report at Bicycling magazine entitled “Which Way Out?” for Floyd Landis.
May 29, 2007
Parents Have Independent, Substantive Rights Under IDEA: Winkleman v. Parma City School District (Part 3 of 3).
On May 21st, the U.S. Supreme Court handed down a decision in Winkelman v. Parma City School District. The court held that IDEA grants parents independent, enforceable rights (beyond mere procedural matters) regarding entitlement to a free appropriate public education for their children. (Readers may find the syllabus, opinion, and concurring opinion of the case at the website of my alma mater. The syllabus is not part of the opinion, but merely a summary for readers’ convenience.) In this post, I will analyze the minority (both concurring and dissenting) opinion.
The Court faces two issues in Winkelman:
1. Does IDEA grant parents independent, enforceable rights, which are not limited to procedural and reimbursement-related matters but encompass the entitlement to a free appropriate public education for their children?
2: Does IDEA entitle parents to litigate their child’s claims pro se?
The majority, in an opinion from Justice Kennedy, concludes that “Petitioners construe these various provisions to accord parents independent, enforceable rights under IDEA. We agree. The parents enjoy enforceable rights at the administrative stage, and it would be inconsistent with the statutory scheme to bar them from continuing to assert these rights in federal court.†Because the majority finds that parents have independent rights entitling them to proceed pro se, they do not address the second issue (can parents litigate their children’s claims pro se).
Justices Scalia and Thomas conclude that (1) IDEA grants parents only independent procedural rights at the administrative stage, (2) but that those independent procedural rights would enable parents to proceed pro se in federal court for reimbursement of private tuition and for violations of administrative rights. For this reason, Justice Scalia’s opinion is both a dissent and a concurrence: Scalia and Thomas reject the means by which the majority allows parents to recover, but would recognize some right of recovery on more limited means.
Justice Scalia sees in IDEA a clear limit on how parents may proceed on their own behalf, with procedural and administrative rights for parents, but substantive rights – that is, whether the child received a free appropriate public education – residing with the child only.
It’s hard not to read this opinion and see how out-of-touch Scalia has become. Most parents – far more than merely parents of autistic children – would be surprised that Scalia thinks that parents would not have a direct, substantive interest in a free, appropriate public education for a child. When Scalia writes that keeping pro se cases from clogging the federal docket is a positive consequence of his analysis, he ignores the kind of cases he would be keeping out: parents trying to assert rights regarding their disabled children’s education. Scalia contends that there is a difference between interests and rights, but here his argument will fall on deaf ears; a parental right so closely allied to a child’s is one the majority of this country will recognize. The majority’s interpretation of the statute is likely closer to that of most Americans from across the political s spectrum.
Although Scalia still has some rhetorical fire (“The Court’s spraying statutory sections about like buckshot cannot create a substantive parental right to education where none existsâ€), his opinion in Winkelman is narrow, unsympathetic, and unlikely to be remembered. Scalia, himself, will be remembered as a consequential associate justice, but not for this minority opinion.
May 28, 2007
Memorial Day 2007
Happy Memorial Day. My late father served with distinction with the Ninth Infantry Division in the Second World War, and he and countless others have earned the thanks of our nation.
May 27, 2007
Excursion: Floyd Landis Waits
Landis’s arbitration hearing is over, and he’ll have to wait about six weeks for the arbitrators’ decision (it’s a panel of three). Bicycling.com’s published a AFP wire story on the summations from both sides at the hearing.
It says much about the mistakes Landis made — and the wide scope that the US Anti-Doping Agency has at the hearing — that the summation included ample reference to Landis’s manager’s efforts to intimidate Greg LeMond. Consider the following remarks:
“In contrast [to the pride the testing lab's technicians take in their work] what we saw with Landis was a business manager who tried to tamper with a witness. And we heard Landis’ response to that and the actions he did or didn’t take,” said Young….”What we saw was Landis’ business manager who tried to tamper with a witness. And we heard Landis’ response to that and the actions he did or didn’t take,” Young said. Young said Landis’ integrity was also on trial here and reminded the panel of a previous threat by Landis to LeMond six months ago. “His response was to threaten LeMond in a web posting that he was going to tell the world his secret - that he had been sexually abused as a child,” Young said.
Landis could have precluded this line of attack if he had (1) hired a more principled business manager, (2) not threatened LeMond publicly in the past, and (3) controlled his manger more effectively before and during the hearing. Landis veiled threats against LeMond, however, suggest that he was not the sort of person to take steps (1) and (3).
May 24, 2007
Parents Have Independent, Substantive Rights Under IDEA: Winkelman v. Parma City School District. (Part 2 of 3).
On May 21st, the U.S. Supreme Court handed down a decision in Winkelman v. Parma City School District. The court held that IDEA grants parents independent, enforceable rights (beyond mere procedural matters) regarding entitlement to a free appropriate public education for their children. In this, the second of three posts, I will analyze the majority opinion. In a third post I will analyze the concurring opinion.
(Readers may find the syllabus, opinion, and concurring opinion of the case at the website of my alma mater. The syllabus is not part of the opinion, but merely a summary for readers’ convenience.)
Justice Kennedy, writing for the majority in Winkelman, summarizes the principal dispute:
The question is whether parents, either on their own behalf or as representatives of the child, may proceed in court unrepresented by counsel though they are not trained or licensed as attorneys. Resolution of this issue requires us to examine and explain the provisions of IDEA to determine if it accords to parents rights of their own that can be vindicated in court proceedings, or alternatively, whether the Act allows them, in their status as parents, to represent their child in court proceedings.
(Emphasis added.)
That’s why, yesterday, I listed two legal issues:
1. Does IDEA grant parents independent, enforceable rights, which are not limited to procedural and reimbursement-related matters but encompass the entitlement to a free appropriate public education for their children?
2: Does IDEA entitle parents to litigate their child’s claims pro se?
As we’ll see, the majority only answered the first issue; the second remains unresolved.
Sometimes, different federal circuit – appellate – courts reach conflicting opinions on a matter of law. That’s what the court in Winkelman confronted. Just Kennedy explains:
Relying on its recent decision in Cavanaugh v. Cardinal Local School Dist., 409
F. 3d 753 (2005), the [Sixth Circuit] Court of Appeals entered an order dismissing the Winkelmans’ appeal unless they obtained counsel to represent Jacob….In Cavanaugh the Court of Appeals had rejected the proposition that IDEA allows nonlawyer parents raising IDEA claims to proceed pro se in federal court. The court ruled that the right to a free appropriate public education belongs to the child alone…not to both the parents and the child. It followed, the court held, that any right on which the [parents] could proceed on their own behalf would be derivative of the child’s right…so that parents bringing IDEA claims were not appearing on their
own behalf…As the court in Cavanaugh acknowledged, its decision brought the Sixth Circuit in direct conflict with the First Circuit, which had concluded, under a theory of statutory joint rights, that the Act accords to parents the right to assert IDEA claims on their own behalf…
Kennedy and the majority conclude that
Petitioners construe these various provisions to accord parents independent, enforceable rights under IDEA. We agree. The parents enjoy enforceable rights at the administrative stage, and it would be inconsistent with the statutory scheme to bar them from continuing to assert these rights in federal court.
Here’s why the majority decides the way it does:
IDEA defines one of its purposes as seeking to ensure that the “rights of children with disabilities and parents of such children are protected.” §1400(d)(1)(B). The word “rights” in the quoted language refers to the rights of parents as well as the rights of the child; otherwise the grammatical structure would make no sense.
The holding means that, since parents have independent, substantive rights under IDEA, the second issue before the court – can parents represent their children’s claims under IDEA in federal court without counsel - was not decided.
May 22, 2007
Parents Have Independent, Substantive Rights Under IDEA: Winkelman v. Parma City School District. (Part 1 of 3).
On May 21st, the U.S. Supreme Court handed down a decision in Winkelman v. Parma City School District. The court held that IDEA grants parents independent, enforceable rights (beyond mere procedural matters) regarding entitlement to a free appropriate public education for their children. In this post, I will summarize the basic facts, legal issues, and procedural history of Winkelman. In a second post, I will analyze the majority opinion, and in a third post I will analyze the concurring opinion.
(Readers may find the syllabus, opinion, and concurring opinion of the case at the website of my alma mater. The syllabus is not part of the opinion, but merely a summary for readers’ convenience.)
Facts of Winkelman: The Parma City School District receives federal funds under the Individuals
with Disabilities Education Act (IDEA), so by law the district must provide children, such as Jacob Winkelman, free, appropriate public education, 20 U. S. C. §1400(d)(1)(A), in accordance with an individualized education program (IEP) that the parents, school officials, and others develop as members of the student’s IEP Team.
Legal Issues: 1. Does IDEA grant parents independent, enforceable rights, which are not limited to procedural and reimbursement-related matters but encompass the entitlement to a free appropriate public education for their children? 2: Does IDEA entitle parents to litigate their child’s claims pro se?
Procedural History: Regarding their son’s IEP as deficient, the Winkelmans unsuccessfully
appealed through the IDEA administrative review process. Without legal representatation, they then filed a federal-court complaint on their own behalf and on their son’s behalf. The District Court granted the Parma City School District judgment on the pleadings. Thereafter, the Sixth Circuit entered an order dismissing the Winkelmans’ subsequent appeal unless they obtained an attorney, citing Circuit precedent holding that since the right to a free, appropriate public education belongs only to the child, and IDEA does not abrogate the common-law rule prohibiting non-lawyer parents from representing minor children, IDEA does not allow non-lawyer parents to proceed pro se in federal court. The Winkelmans appealed to the U.S. Supreme Court, where the case was heard for oral argument on February 27th, and an opinion handed down on May 21st.
May 21, 2007
Condescension on School Board Membership
Over at AutismVox, Kristina Chew has a post entitled, “Who Sits on Your School Board?.” I’ll say, though, that it’s disappointing — the way former Senator Tom Daschle found almost everything disappointing — that the blog lapses into tired condescension about the ‘idiots’ who run for a public school board.
Dr. Chew quotes — approvingly — Pharyngula, who declares that
One of the big problems is that any idiot who may well lack any experience i education, or even any interest in education beyond destroying it, can run for school board and actually get elected. Case in point: Ken Willard, one of the Kansas rubes who tried to get Intelligent Design creationism into the curriculum, has just upped the ante and decided to run for the national presidency of the association of state boards of education. It’s incredible—he’s an insurance executive with no competence and no qualifications other than that he’s a fervent dogmatist who wants his religious beliefs taught, and that he has the backing of the Discovery Institute.
I don’t really care about Willard’s religious beliefs, but is there anyone on earth who really finds the idea that an insurance executive would serve on a school board incredible?
It’s a public school that Pharyngula describes, with a public school board. The district is a body representing the entire community, not merely those who are teachers. It’s an easy pose to decry the number of ‘idiots’ who might serve on a public body. It’s ignorant to doubt that public schools belong to all the community, including retirees, the childless, and those less educated. Even, by law and circumstances, supposed ‘idiots.’
If someone wants to run for public office, whether doctor, lawyer, butcher, baker, or candlestick maker — why not? Let the public decide who will hold office on a public board. If the public chooses poorly, someone else will be able to run at the next election, and explain why the public’s prior choice was misguided.
More directly, if a degree in education were a guarantee of insight, fairness, and help for those with autism, then there would be fewer violated rights, and less heartbreak, in the world.
