State of Maine, Cumberland ss
Superior Court Civil Action Docket No. CV-04-98
Gayle A. Fitzpatrick & Charles Rankowski, individually and as parents of Jan Rankowski, a minor, Plaintiffs
vs.
Town of Falmouth, et al., Defendants
Appearances:
On Behalf of the Plaintiffs: Ronald R. Coles, Esq.
On Behalf ot the Defendants: Melissa A. Hewey, Esq.
Transcript of Hearing, 27 August 2004 before Thomas E. Humphrey, Justice
15. CLOSING STATEMENT OF PLAINTIFFS' ATTORNEY RONALD COLES, ESQ.
MR. COLES: I will just ask the court I realize there are tons of exhibits if Your Honor can put them in chronological order it will all make sense to you.
THE COURT: Well, what's going to happen I will require both attorneys to put them first in numerical order then I will work out the chronology.
MR. COLES: It's interesting that events that occurred ten months ago in writing are pretty clear as to what people said and thought at the time. What you have heard especially from the defense witnesses over the last couple of days is a different kind of spin as to what was actually happening. There are really four key documents that Your Honor should be concerned with. There is the September 30 e-mail of Debbie Johnson that immediately labels Jan Rankowski as this child versus our kids. There is that separation done very early on, and then of course she sends that e-mail to all her teachers. So the suggestion through the e-mail, not through testimony, is that let's keep an eye on this kid because this kid is different, and he's home schooled. She says that right in her e-mail. This child is home schooled is very different than the in-school children, so let's follow him around. The next interesting document done again contemporaneously are the instructions of Mora Katz, the special-ed teacher, who is the expert on autism in the Falmouth School Department to Virginia Gilbert that that is the four instructions, don't be lulled by two weeks of calmness, don't talk to the mom, record who he plays with, what he does. It's to set this child up. They are not so much concerned with behaviors of other kids in the playground, but they are really keeping an eye on this kid. Why are they keeping an eye on this kid? He's home schooled. They have very limited contact with the child. The only thing that exists in this case is a service plan, and the service plan is very limited. He can use library materials, school materials. He can use the library, and he can use the playground to play with his peers very early on. Before that there is again the notes of Mora Katz that isolation of the child as early as June was very important they were going to stop the isolation and make sure that the child played with his peers. So what the parents wanted was very limited services from the school department, costing the school department nothing, not one penny to use the playground during school hours, to use the library, never a problem at the library, all defense witnesses testified to that, and to use school materials.
The two issues that we talked about in chambers, Your Honor, that you wanted us to address very early on was mootness and exhaustion of administrative remedies. The mootness argument I think we can do away with very quickly. I have handed the court-a very quick two page memo on mootness. For the record the Supreme Court case of Hoenrick versus Doe, D O E, 484 US 305, 1988 is a handicapped child where the court exercised what we call the exceptions to the mootness doctrine which are mentioned in my August 26 memorandum. It's also the law in Maine the three particular categories one sufficient mootness does not apply where one sufficient collateral consequences will result from the determination of the questions presented so as to justify relief, or the issues contained questions of great public concern that in the interest of providing future guidance to the bar and public should be addressed, or the issues are capable of repetition but evade review because of their fleeting or determinative nature. These events happened last fall.
Testimony is quite clear that the plaintiffs waited and waited and waited for the so-called observation notes to come in. They came in shortly before Christmas time last year. They waited for the school system to set up another meeting on or before February 12, 2004 because they had rejected this new assessment. They call it a clean slate when there were nine inches of assessments already with the school department, tons of assessments from neuropsychologist Greg Yahr, Tufts Medical Center, I will leave it to the court to go through that.
Parenthetically he had been in second grade at the Lunt School. There is 180 days of observations of this child. There is no question whatsoever that he is Asperger's autism, but they want to, quote, a clean slate, but they did nothing, and so the day before they were supposed to advise the parents and start litigation that was in early February, and it's now the end of August. School starts next week. The only thing the parents have ever wanted was for their child to continue to play in the playground. He is nine-years-old.
There is testimony from Mrs. Powers, the Plummer principal, that the students there are eight, nine and ten-years-old. So I think under whatever you wish to put your hat on in terms of exceptions to mootness this case is ripe for --it's ripe to be resolved by this case the whole issue of just disability.
Parenthetically I would mention, Your Honor, the only mootness will be the defendant's motion for summary judgment, which is still outstanding and part of this was to collect information, and we know -- I don't have to go to any great lengths on Rule 56, but if triable issues of facts summary judgment will be denied this whole case for the last ten hours has been fact driven. I believe whatever order Your Honor wants to issue the motion for summary judgment should be denied as moot. I mean this is one of those rare situations where a lot of discovery has taken place. We have had the trial of the action which is what this is. We don't want to come back and retry the case, and there is this outstanding motion for summary judgment out there. I think that is the real mootness to this case.
The other part which Your Honor wanted us to discuss was the so-called exhaustion of administrative remedies. Let me go through some of the facts. Very early on after the defendants had removed this case to Federal Court the defendants made a 12 B 6 motion, that's a catchall, the big saint, let's dismiss the case in Federal Court, and talked about exhaustion of administrative remedies but only in the context of the so-called federal claims. That was the 42 U.S. code 1983, 1965, 1986, ADA and never, never discussed the state claims.
As Your Honor knows the third amendment complaint has three key counts. The first two counts are the Maine Discrimination Statute. The third count is the Maine constitution violation of the equal protection, then the last two are the infliction, intentional infliction of emotional harm. The defendants only get one crack at the 12 B 6 motion. Having not raised it in Federal Court as to the state claims they waive that.
We also -- there is a memo early on last few months of the so-called law of the case. We briefed that in our supplemental memo dated June 29. Judge Hornby when he had it in Federal Court, his order of April 30 said quote, unlike the federal claims the state claims are not subject to an exhaustion requirement. Judge Hornby was very clear about that, and also Judge Hornby, which is not an issue that is contested but is an important issue in the case, is a school is a place of public accommodation. That's also in Judge Hornby's April 30 order.
This case is a case of violation by the Falmouth School Department to provide a public accommodation to a home schooled child. There are 4,500 home school students in Maine who are awaiting your decision. There is a million to two million in the United States who are awaiting this court's decision. What Judge Hornby talks about when he mentions public accommodation he only gives a few portions of the unlawful public accommodations statute. That's 5 M.R.S.A. 4592. It is mentioned by Miss Fitzpatrick in one of the exhibits that's in. It's also mentioned at great length on our submission to this court. It is called Plaintiff's Submission As To Relevant Statutes and Relevant Cases. It is dated August 10. It's important, but I want to just read this into the record, Your Honor, item four, this section does not require an entity to permit an individual to participate in or benefit from the good services, facilities, privileges, advantages and accommodations of that entity when the individual poses, here are the magic words, a direct threat to the health or safety of others. Then the M.R.S.A. gets even more explicit, for the purposes of the section the term direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures or by provisions of auxiliary eight.
There has been not one shred of evidence by any employee of the Falmouth School Department that Jan Rankowski was a direct threat, that's a significant risk to the health or safety of others that cannot be eliminated by modification of policies, practices or procedures.
THE COURT: Let me ask you this, is it not the defendant's argument back to you that that modification would have come in the form of the functional behavioral assessment and any resulting plan?
MR. COLES: Good question. However the school system had many, many prior assessments. Either they didn't read the assessments. Mora Katz said she hadn't read them. The principal, Mrs. Powers, who is the disciplinarian, not particularly concerned about autism because her responsibilities is obedience of children in the playground. They want to disregard two-and-a-half years of assessments done by outside staff, thorough neurological studies, and they want to start off with a clean slate. To me it sounds like a corporation who is not sure about what kind of decision to make and say let's form a committee, let's stall for time.
The interesting part of that, Your Honor, is that they gave the parents an alternative, either agree to a functional, a new functional assessment with our psychologist, or let's have another meeting on or before February 12th. They said, no, you got tons of assessments. What do we need another assessment for? They waited until February 12th. Nothing was done, and the interesting thing is to date, this is now the end of August, they have never set up another meeting to determine if this child who has social abilities of a four-year-old and the communicative skills of a six-year-old can play in the Plummer playground. So their argument is I'm sure that, well, he's now nine, he's going to be ten, so he's really, because he's so bright, he should really be in fifth grade, but we also know that his communication skills are of such a low level that he deserves to play with children that he can communicate with. I can't believe that the defendants would argue that they want to throw him in the middle school with 11, 12 and 13-year-olds. Perhaps that's their argument.
I think that's, from at least what Dr. Yahr mentioned that would not be in the best interest of the child. What's interesting is Dr. Yahr, the only skilled expert professional who testified in this case, said that he reviewed all these observation notes of Jan Rankowski last fall and concluded that either the behavior was very typical, or that it was typical of autism. The only so-called knowledgeable person in the school district, defendant's school district, Mora Katz, the autism expert testified, and that's that key document that I keep on making reference to, her notes of the November 24 meeting where she looks at the three areas that are issue orientated that present quote, a problem to her, which I cannot find at the moment, but they all talk about the child's behavior, and she says that that is typical autism behavior. So this child is home schooled. He's not one of our kids. So to get rid of the problem let's get rid of the victim. Let's send him home by suspending him; therefore if he's not there he's no longer the problem.
You know, it's really interesting this so-called incident of the four students involved, one of them being Jan, the only one written about is Jan Rankowski. The other three there were no reflection notes. That's really interesting they are treating this child differently. what is significant and I took, I wanted to go real slow today was the so-called reflection notes kept by the principal, Mrs. Powers. Bad behavior of students kicking, hitting, punching, bringing knives, what is the punishment of the school for an in-school student? One, two, three-day suspension for lesser behavior, that is autistic handicapped behavior of Jan Rankowski they suspend him for seven months. He's the only student they have ever done that to. That's the violation of equal protection. That's the discrimination.
Discrimination is end result driven. We look at what the results are of discrimination, not what the people thought about when they were doing the discriminating acts. The end result is that while they bespoke early on that they wanted to remove the child from isolation, that's exactly what they have done. They have isolated this child for seven months at home so he could not come on the playground. Yes, he could come on the playground after hours when there is nobody there. It's disgraceful.
I would also draw to the court's attention on the issue of administrative exhaustion of administrative remedies that the Maine Civil Rights Act, Human Rights Act has a proviso, and it's 5 M.R.S.A. 4622 which requires preliminarily a filing with the Maine Human Rights Commission as to factual allegations of discrimination. Like every state agency they are ill equipped to deal with constitutional issues.
That statute 4622 (1) says, this subsection does not apply or limit any remedies for civil actions filed under the Maine Human Rights Act if one or more additional causes of action are alleged in the same civil action there did not require exhaustion of administrative remedies. I submit that Judge Hornby had that in mind because we are looking at Count III which is the Maine constitutional count, that's when you add the Maine constitutional count violation of equal protection it then takes it out of Maine human rights and puts it exactly where we are right here.
THE COURT: How does that play into Title 20 A which requires, at least sets out administrative procedures for addressing disputes?
MR. COLES: What it does, title 20 A --
THE COURT: 206 is the section.
MR. COLES: First I look at what I call the home school statute which is 20 A, 20-A M.R.S.A. 50216, use of school facilities and equipment. It has no real provision for private cause of action other than on appeal to the commissioner of education which ties in with 5024, so-called local school unit policy statute, but then the Falmouth School Department says our responsibilities is Child Find. We find you, we identify you, we locate you, and you have no due process rights other than our failure to find you. So unfortunately in terms of a hoe school child, and this is an unusual situation, if Jan was an in-school student we would have a whole body of education law that applies, but he is home schooled, that's a different category altogether. He has no independent remedies because he's not receiving a free public education. He doesn't come within any of the education laws, and we really are limited to the discrimination laws.
Interestingly enough is that we have been able to prove discrimination, and I think they have treated this child very differently than other students. Falmouth's own supplemental statement of rights for home school students, that's in as an exhibit, that's June 18, 2001 which is the Child Find statute says parents have a right to due process hearing from the Maine Department of Education only on issues relating to the Falmouth School Department's duty to locate, identify and evaluate, very limited way that they can go to the Department of Education in Augusta so-called administrative remedies, it's the failure to locate, identify.
Also I would draw to the court's attention the Maine Department of Education regulations which is where Falmouth got its own internal regulations, 05-071 CMR 130, it's called Rules for Equivalent Instruction Programs, that's home schooling which only allows an appeal to the commissioner of education on a denial of an application seeking permission to home school and creates no private cause of action for any other reason. So you can only go under state regs which supersede local regs. You can only go to the commissioner of education on a denial of an application seeking permission to become home schooled, very limited grounds which are not applicable to this case.
I would also want to mention that the Maine Human Rights Act on public accommodation, and these are internal regulations of the Maine Human Rights Commission, 94-348 CMR 006, that it is against the law for a facility that has public accommodation, a school, a restaurant, a bus company to subject an individual or class of individuals on the basis of a disability or disabilities of the individual or class directly or through contractual, licensing or other arrangements on a denial of the opportunities of the, the opportunities of the individual to participate in that open facility.
So what they are doing is Falmouth School Department is in order to deny the child the opportunity of using a public accommodation they are doing another arrangement or testing situation which is against the law. They can't do that. That's just an attempt to circumvent unlawful public accommodation. They had the assessments. They had tons of information, and their spin they wanted a clean slate is literally just a spin. If the defendants were unhappy with Judge Hornby's order on public accommodation or the law of the case that there is no exhaustion of administrative remedies for the two state counts they could have appealed to the First Circuit. They chose not to, and that's significant because that is now the law of the case.
There is a lot of case law initially put in this case dealing with education law. We now understand that education law is not part of this case. Special education law is not part of the case that was in discussions last week, I'm sorry, early part of this week in chambers. What is the key case that Your Honor can look at? And that's the Toledo YMCA case. The Toledo YMCA case was submitted July 29 as part of our supplemental memorandum dealing with injunction. Case is called Burriola versus Greater Toledo YMCA, United States District Court Western Division, Western Division, Northern District of Ohio, January 2001, that is the closest case on point. It deals with a YMCA denying the opportunity of an autistic child to use its facilities. while its an ADA case the court at great length went into the four factors for the granting of an injunction, and the court granted an injunction, and this was a child in Toledo that was biting and kicking. I mean his behavior was really way out there. None of which has been shown in our case, and the court -- and that's the beauty of the Burriola case is that the court at great length goes through the factors of the granting of injunction, understands that this child was improperly denied access to a public facility and gave the plaintiffs their relief.
What's significant also in our case, Your Honor, is that we have been able to show some real injuries to Jan Rankowski. We had the mother testify as to what this last seven months has done to this child. That is for -- and I tie that in, it's for compensatory damages. Your Honor can issue compensatory damages whatever sum you feel to compensate this child for being isolated for seven months. That's under the Maine Human Rights Act.
You notice I asked the superintendent of schools how many employees worked at the Falmouth School Department, between 2- to 300. That ties in with again our submission of applicable law because Your Honor can then set compensatory damages up to $200,000 to compensate the child. The law is also quite clear, perhaps I am jumping the gun, if Your Honor sets some compensatory damages you can do one dollar, you can do $50,000, whatever Your Honor thinks is fair. I can then put in a petition for counsel fees, and it that's what it comes down to Falmouth School Department thinks they can get away with this, that they can treat this home school child very differently than an in-school child, and I think all the testimony has shown they treated this child very, very differently. That's discrimination.
What they have not been able to do is to show a direct threat to the health or safety of others, that they haven't been able to do, and that's the key part of public accommodation, there is no showing at all. He was disrespectful to adults. He was disobedient. He didn't listen to adults. That is not a direct threat to the health or safety of others.
I want to quickly just quote to you from an excellent book on Asperger's syndrome out of Yale University, Omar and Clinther, directors of the Yale Child Study Center. Quote, individuals with Asperger's often exhibit different forms of challenging behavior. It is crucial that these behaviors should be viewed as connected to the individual's disability and not as willful behavior. That's really what we are talking about. This child has no control of his behavior. He is Asperger's handicapped, and the fact is they treat this home schooled handicapped child so very differently.
Another quote again, this is sort of four o'clock in the morning thoughts, Asperger's children are not crime scenes waiting to happen, they are victims of discrimination. You heard Dr. Yahr testify that handicapped children, the bulk of them, are victims of bullying and harassment. That's what brought Gayle Fitzpatrick on September 25 to talk to the principal and the special-ed teacher her child was being bullied and harassed. He was a handicapped child.
Just I want to reserve five minutes after Miss Hewey does her closing, but I do want to mention just one little quote which was very early on in this litigation when it was still in Federal Court. Your Honor can take it for what it's worth. I just happen to love it. It's the last speech of Hubert Humphrey in the U.S. Senate 1977. The moral test of government is how the government treats those who are on the dawn of life, the children, those who are on the twilight of life, the elderly, and those who are in the shadows of life, the sick, the needy and the handicapped. I will reserve five minutes, Your Honor.
THE COURT: I do have a couple questions if I may.
MR. COLES: Sure.
THE COURT: First with respect to the Burriola case, aside from the fact that it's distinguishable because that is an ADA case, is it significant at all that in the facts of that case the mother made a specific recommendation to the YMCA of a specialist who could provide a plan and suggestions for dealing with her child, and that as the court specifically found none of the suggested supports by the parents' experts were implemented, and none of their counselors were trained. Does that distinguish that at all from this case.
MR. COLES: I don't think it's particularly significant, Your Honor. The fact is the school in our situation had lots of assessments, you know, they're adding one more assessment to half a dozen other assessments is not going to change the fact that Jan Rankowski is Asperger's autism. What is significant about the Burriola case, four factors to the granting and the violation of public accommodation, that's the real key part of that case.
THE COURT: Also Principal Powers testified that policy at the Plummer School is that non-Plummer School students are not allowed to use the playground during school hours, and she talked about the community popularity and so on, and others are allowed by special arrangement, and I gather that in this case there may have been such a special arrangement made.
MR. COLES: That was a service plan, yes.
THE COURT: I guess my question is this, if it is the case that Jan has now advanced educationally to the fifth grade level, a grade which is no longer taught at the Plummer School, is that at all a significant factor as to the kind of remedy I can impose? In other words, can I even require the school to act contrary to a policy if in fact that is the case?
MR. COLES: I don't think so, Your Honor, I will tell you why, one, the only child playground is at the Plummer School. We have already had testimony the middle school which used to be the old high school doesn't have this kind of slide, swing, teeter totter playground. We are dealing with a chronological nine-year-old child but who's functioning at a very young level, and to not permit him to associate with other nine-year-olds, that's what the Plummer School has, they have eight, nine, ten-year-olds, is to tell this child you got a great IQ, you should be in maybe graduating from high school tomorrow, okay, but that's not good for the child. What he needs to do is play with his peers. He's nine-years-old. The Plummer School has eight, nine, ten-year-olds. Let him play with his peers. So the suggestion is that educationwise we haven't really developed the case because I don't think it's necessary he should be in fifth grade is to really put him in a situation where he can't play. That's all we want him to do. We want him to be able to play in a playground.
THE COURT: Let me ask you this, this is a hypothetical, it's not Jan specifically because it's not consistent with the evidence here, but suppose there were a child, say an autistic child, who was at, being educated at say the junior or senior high school year level, but let's say his social skills were the same level as Jan's. Should the school be required by me or the courts generally to require that student to be allowed to play at the Plummer playground with the third and fourth graders?
MR. COLES: You know, I am reminded of the Robin Williams movie where he is aging very quickly, and he looks like an adult male, but he's playing with 11 and 12-year-olds. Maybe he's going to a really great advanced school system that is very tolerant, okay, that doesn't discriminate, and I realize that that's a very kind of unusual situation.
THE COURT: I understand.
MR. COLES: I can see, I can see a situation where a junior high school student who might be a 14 or 15-year-old who is perhaps mentally retarded or of such limited emotional capacity that he or she would be playing in an elementary school situation. I think the school should be tolerant of that. What we hear really in this case is intolerance.
THE COURT: Let me ask you a question, because sometimes extended hypotheticals such as the Robin Williams one are often good to sort of laser in on an issue that's going to be helpful for me. If that's true, if at least at a mental or a social functioning level the Robin Williams aged child or even the high school aged child are the same as the fourth, third or fourth graders in the Plummer School, should the school need to be concerned, and should they be allowed to effect policies that account for the radical difference in strength of the two, so that if a fourth grader pushes another fourth grader that's one result; if a Robin Williams pushes a fourth grader, that may be an altogether different result?
MR. COLES: You know what the key distinction is?
THE COURT: What is that?
MR. COLES: That a child with limited abilities as there is always like Jan is under the supervision of an adult. This is not a child who is just thrown into a playground who may be Robin Williams adult.
THE COURT: I understand.
MR. COLES: But there is an adult there to supervise and to manage this child, and I think it's that cooperation that perhaps really fell apart in this situation. I would just parenthetically mention if this was a Portland school case we wouldn't even be here. Portland has students that speak 40 different languages, and I would submit to you the lack of diversity breeds intolerance, and this is just a school system that can't handle diversity.
THE COURT: Let me ask you this, would it be appropriate for me to simply order, were I to accept all of your arguments, to order that the Falmouth school system stop prohibiting Jan from using the playground and let him start using it the very first day of school starting next week, period, end of case, or should there be a plan or some other implementation to protect Jan and to protect the other children as well?
MR. COLES: You could do both.
THE COURT: I guess if I can do it why couldn't the parties have done it?
MR. COLES: We tried.
THE COURT: I have another question. With respect to the special education regulations I believe during our informal discussion with counsel in chambers it was suggested that the Maine special-ed regs may not apply in this case, and that may be true. I am really looking for guidance from you and from Attorney Hewey. I do know that there are sections of the regs that seem to have at least facial relevance to this case. My concern is whether they have legal application. There is a section that describes functional behavioral assessment. There is a section that describes supportive services which includes recreation which seems to be most closely associated with the circumstances of this case. There is also Section 4 which goes into great length about the responsibilities of the school system for home schooled students, and why doesn't all of that apply to this case?
MR. COLES: It's a mish-mosh, Your Honor,. You know, I'm a firm believer that society is always way ahead of the law, and perfect example is the internet. I mean the law still is trying to catch up with everything that's happening with the internet I guess the laws going to be lagging behind. The special-ed rules which Your Honor refers to really specifically deal in most part with children getting a free public school education.
THE COURT: I agree.
MR. COLES: Okay. That's not Jan Rankowski. It's not costing -- he is not getting a free public school education. In fact the Falmouth School Department doesn't cost him a cent. Whatever he's getting the support services are way out, are outside of the school system. So I think perhaps the special-ed regs are good in a very general sense, okay.
THE COURT: Well, are you saying then that they are nothing more than a guide that the schools may and the parent may or may not look to, or are they in fact part of a body of law that must guide everybody in dealing with Jan and his educational program?
MR. COLES: I don't believe it's a body of law that's applicable to Jan because Jan is home schooled. If he were an in-school student, yes, I would absolutely agree with this court to say those special-ed regs would be applicable, but he's not. He's getting his education from outside providers. He's getting everything from outside providers. No cost, no responsibility to the Falmouth school system, except those three very limited services. He doesn't have an individual education plan. Miss Powers talked about an IEP, not applicable in this case, only a very simple service plan, library use, books, materials and playground, that's all. So I would suggest that the two women who have testified in terms of their children being autistic as part of the school program, yes, they are in-school students, and the bulk of the services are being supplied by the Falmouth School Department. That's the control that the school has over the child. That's the control the school has in terms of expenditures of funds. What I think is the problem here is that there is a feeling of lack of control by the school department over this child who is home schooled. This is not a special-ed case. This is a home school disabled child case, that's the real difference.
THE COURT: If there had not been the meeting on September 11th, 2003 at which Miss Fitzpatrick requested and the school approved, allowed use of the library and use of the playground, if that had never happened --
MR. COLES: We wouldn't be here.
THE COURT: Would Jan have been allowed to use the playground during school hours?
MR. COLES: I don't know. That's a very interesting question. I would think we go back to June of that year where Mora Katz in her first meeting with Gayle Fitzpatrick says they were concerned about the isolation of the child, and if we want to do the best for the child we don't isolate him.
THE COURT: I am not talking about its benefit to Jan. My concern is to pure legality.
MR. COLES: I understand.
THE COURT: Is it that Jan had that unfettered right to use the playground whether there was that September 11 meeting or not?
MR. COLES: I would think that if we followed the instructions on that board one of the photographs, if you want to use the playground come in and check in with the principal I would think.
THE COURT: And what if you did that, what if Miss Powers said what she said on the stand here, you are not a student enrolled at Plummer School, you can use it when the school day is done?
MR. COLES: Then we jump back to public accommodation. Can they unreasonably deny someone the use of a public facility?
THE COURT: Can they stop you and I during the school day next week from going on the playground and using the mazecraze with all of the other students?
MR. COLES: I think they can do that.
THE COURT: Why can they do that?
MR. COLES: We are an adult. This is for children, and Jan is a child.
THE COURT: Can they stop a student enrolled in the high school from doing that?
MR. COLES: It's interesting, you know, we talking a Robin Williams child-who is overly mature, I don't know. It would occur to me that if someone is a high school student let's say at the Falmouth high school, 17, 18-years-old, they would not be particularly interested in using a slide when they can be playing baseball in the high school field.
THE COURT: Understand I don't regard these questions as simply an exercise. It seems to me it's important to understand the source of rights and the existence of rights to know whether they have been violated and to know what remedies ought be imposed, so that's the only reason I am putting you through this question and answer. It's a puzzlement to me, that's why I am looking for guidance.
MR. COLES: It is, and this is not an easy case in that regard. Perhaps that's why we are here. I view this case very simply if we are talking about rights, the freedom from discrimination education, unlawful education discrimination, that's really strong statutes in Maine law. Maine law says you can't discriminate, and the Maine law dealing with discrimination is to be painted with a fairly broad brush if we are talking about discrimination we want everyone to be treated the same. The other statutes are very finite brush statutes. They go into very small corners, but if we look at the big picture I keep telling Gayle and Charles, you know, let's not get lost in trees. Let's look at the forest. The forest is very simply this child who had a service plan, who had permission from the school, was denied that opportunity and treated differently from other children who, quote, misbehave in the playground. That's the whole case. It's not a very complicated case because that's really what it is, they treated him differently, and because they treated him differently that's discrimination. It's the end product. It's the end result. Again I wanted to save five minutes.
THE COURT: This question and answer period we have gone through is my time, not yours. That time is preserved to you.
MR. COLES: Thank you very much.
THE COURT: Attorney Hewey.
Reported by: Diane L. McManus, Official Court Reporter
(This transcript was scanned from a certified copy of the original and converted to text using OmniPage Pro 14.)
