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
16. CLOSING STATEMENT OF DEFENDANTS' ATTORNEY MELISSA HEWEY
THE COURT: Attorney Hewey.
MS. HEWEY: Thank you. As I know the court knows there are a number of laws that prohibit discrimination against the disabled in our state. There is the Maine Human Rights Act. There are also the federal laws, the ADA dealing with employment and public accommodations. There is the IDEA and the Rehabilitation Act dealing with disability, discrimination and education, and while the plaintiff's claim is not brought under the federal laws, I think they are important because the law court has said that we look to federal principles in construing our state law, and, Your Honor, the foundation of all of those laws is dialogue, communication, give and take. It's really I think set, as set forth in the laws and their implementing a three step process. First step if somebody claims they are disabled the employer or the school or the furnisher of the public accommodation has the right to a dialogue. Tell us what your challenge is so we can determine whether or not there is a disability. Step two, once there has been that determination of disability made is again dialogue. Tell us what you need to make your use of our school or your employment or your use of our public accommodation successful.
THE COURT: Well, isn't that what Miss Fitzpatrick was saying to you? She was telling you how with respect to all of the assessments that were provided, is that the reason why and that's the reason why she felt further assessment by the school was unnecessary?
MS. HEWEY: Well, I think that it's important to take a look at these supposed assessments. They say nine inches of assessments, and that's deceptive because you look at book one, school logs, Lunt School, these inches are a notebook that was sent from the Rankowski family to the Lunt School and back during Jan's second grade year. Those aren't assessments. Then there is book two 2001 if you look at this what it is is the Falmouth school department's brief and in the due process case and a whole bunch of exhibits from the due process case, not assessments, but due process pleadings, and then there is 2003 and 2004 and what this is is one section is the briefing in the due process hearing and the due process hearing officer's decision finding for the school department, and then we have a lot of correspondence back and forth between Mrs. Fitzpatrick and the school department and her wrap team, et cetera, et cetera. Now there are some assessments included in this. All the assessments that are included in this which were also included in Polly Crowell's file and which had been as Miss Crowell testified reviewed by the school department, but if you take a look at these what they point to is that something needed to be done here.
Dr. Yahr in his September 10, 2002 assessment says at a certain point and that point is highly variable regarding the amount, intensity and frequency of the external stimulation Jan is simply overloaded and behavioral disruptions that prompted his parents to be concerned occur. When and why such behavioral disruptions occur at least based on the material I reviewed and my test data is not clearly discernible without further on site behavioral analysis. Dr. Yahr, again because Jan's social interaction skills are limited, age level tasks involving social interactions with other people may be very difficult for him and again he demonstrates, and this is the person that Gayle Fitzpatrick testified knows her son better than she and her husband do, he demonstrates moderately serious externalized maladaptive behaviors, including disruptive behavior, destructiveness to property, hurting others. Further down, Jan needs frequent support. What these assessments were telling the school is that something needed to be done; that they needed to get to know the right behavior plan; that there is a huge difference between what happened here and what happened in the Toledo YMCA case I think is really important for the court to look at.
What the statutes -- the fundamental part of our discrimination laws talk about is working in partnership. You tell us what you need, we'll look at it, and when there is communication, when there is give and take, when there is education on both sides then you can have a partnership, and things work out. What was happening here was the school is saying we need information. Look, Dr. Yahr says we need information, and so does the Maine Pediatric Center and so does this Woodfords and all these people are saying this kid is an in a difficult situation. He needs structure. He needs something, and so the school is saying give us what we need to put into place a modification that makes sense, that works, and don't forget what we heard today is that they have plenty of experience dealing with autistic kids successfully. So they knew that if they could get the right information they could make this work. The problem is that every time they tried to work with this family the answer was no. You start at the beginning. There is the meeting where Gayle Fitzpatrick is saying there has been bullying, and other students are saying that Jan has been unkind to them, and so the school assigns Virginia Gilbert to monitor, and it works. The bullying stopped. You look at Defendant's Exhibit Two. what does Gayle Fitzpatrick say? When I met with you and Mora Katz in September you suggested a staff member be on the recess yard to enforce rules and to guard against the bullying of my son. This goal was accomplished quickly. Jan has been accepted by several groups of children, so it worked with respect to Jan, but the problems with Jan, particularly this defiance of adult authority continue. So what does Barbara Powers do? She meets with Gayle Fitzpatrick. She says, listen, Jan isn't following what adults are telling him. Gayle Fitzpatrick's response is Jan doesn't speak with strangers, and he doesn't know these people. Well, do you think you could introduce him to the teachers? I don't know them either. It's just no effort at all to work with the school to make this successful. So they go it alone. The teachers go out there and introduce themselves to Jan. The ed-techs introduce themselves to Jan, and the behavior persists. So Barbara Powers writes to Gayle Fitzpatrick, and that's Defendant Exhibit One. She says there have been more instances. She says, here's the way we deal with these behavioral incidents with our kids, and maybe we should get back together as a service team. Gayle Fitzpatrick's response, I appreciate your sharing information about consequences which Plummer-Motz students face. However Jan Rankowski is not a student at Plummer-Motz, and I do not have time to peruse interesting data. How could Principal Powers have even tried to use the reflection sheet tool with a child whose mother says that the behavioral consequences of people at Plummer-Motz is interesting data and she doesn't even have time to think about it? The fact of the matter here is that every time there was some effort to reach out and say what are we going to do the family says no.
So then you get to November 7 and Jan swinging this swing back and forth with the little fifth graders, I mean the little first graders, so Mora Katz tries to stop. There is swearing, and then he says, you know, I don't have to listen to you. He turns to the kids and says, you don't have to listen to her either. Then he tells Tammy Paul to piss off, and then there is more swearing of the principal before he leaves in tears. So this is a situation that wasn't working. It's not good for Jan to constantly get in these chaotic situations and have to leave in distress. I's not good for the other students, the ones with IEPs who have structured environments or even just any student on the playground, because what they are seeing here is one child who has no respect for adult authority and who doesn't have any consequences when he breaks the rules. That's not good for kids.
So the school as Barbara Powers today said hits the pause button, let's stop, let's reassess, give us the information we need to be able to make the modification in order to make this a successful situation, and the family again says no, no give and take, no communication, just no. Now I don't think that they explained in testimony why precisely they decided to refuse the behavioral assessment. Defendant's Exhibit 9 Mrs. Fitzpatrick does say that 80 percent compliance is good enough.
Now we talked about Dr. Yahr's e-mail where he says, well, actually, no, 20 percent noncompliant is not good enough, so we didn't hear a lot of testimony about that. That was the formal written document that said why they turned down the F B A, but what really was it, it's not certainly because the functional behavioral assessment is intrusive, because all this is is having people observe Jan while he is at play, so it's not intrusive, it's not expensive, school department is going to pay for it, and this notion that the child has been assessed enough already doesn't make sense. In the first place it doesn't make sense because they asked for a thousand dollars for more assessments, and it also doesn't make sense as we just went through because all these assessments say is the same thing, this kid needs a plan, that's what the school wanted to do.
I think that if you look at the record as a whole the reason that this family decided not to go forward with the FBA is pretty clear, and that is that they simply didn't want, had no intention of working with this school to put together a behavior plan that everyone could live with and everyone could work with. It is, it appears clear from the record Gayle Fitzpatrick's belief that because Jan Rankowski is home schooled she's the person who is going to be responsible for making the rules, and she's the person who is going to be responsible for determining the consequences, if any, if those rules are broken. Over and over again she is saying Jan Rankowski is home schooled. Even in the exhibit that was introduced just today
Plaintiff's Exhibit 27 she is telling the school not to interfere with her son unless a very serious safety issue is involved. What she is saying is he's home schooled, so I'm going to make the rules, but that can't be the way it works, because there are hundreds of kids on this playground, all of them have to come play with the rules and all of them have consequences when they don't.
Just because the Rankowski family has decided to home school their student does not mean that he is not bound to follow the rules when he's on the playground during school hours just like every other child out there. I think that it all comes down to a fundamental misconstruction by the plaintiffs as to what it means to be a public accommodation, and I think some of Your Honor's questions to Mr. Coles really highlighted that. Just because you are classified as a public accommodation under the law does not mean that your facility is open to the public 24, 7. I think it's obvious, and I don't think even Mr. Coles would contest that Mrs. Powers has the right, even the obligation to restrict public access to school facilities during school hours. Somebody from Iowa or the Falmouth community or anything doesn't have the right to stroll into a fourth grade science class or join the kick ball game in the gymnasium or play on the playground during school hours. Mrs. Powers has the right, has the obligation to make sure that members of the public are not at that school when the kids that she-(s responsible for are using her facilities.
Now it's true that Jan Rankowski is not just any old member of the public. He is school aged. He lives in Falmouth. It's just that he's home schooled, he's not enrolled, so his right to use that school facility is governed specifically by the state statute. Generally members of the public have no right to use the school facilities during school hours. He has a limited very specific right spelled out in the statute 20-A M.R.S.A. Section 5021 Subsection 6.
THE COURT: That's the right.
MS. HEWEY: And I think that the language of that statute which says that home schooled students may use school facilities and equipment on the same basis as regularly enrolled tudents if certain conditions are met is important to this case for two reasons: First, the mootness issue. The evidence in this case is undisputed that children in middle and high school, i.e., fifth grade and up have no right to use the playground at the Plummer-Motz school. So if Jan Rankowski is going to be permitted as he is under the home school statute to use school facilities on the same basis as regularly enrolled students now that he's a fifth grader he has no right whatsoever to use that playground during school hours. Mr. Coles says, well, he's nine, and there is no playground at the middle school, and it would be good for him, and that's all probably true. It's certainly true that he's nine, and it's certainly true that there is no playground at the middle school, but it misses the point because the point here is his right is to use the playground on the same basis as enrolled students. Fifth graders in Falmouth whether they are 9 or 12 or 2 have no right to go on that playground. Fifth graders in Falmouth even though they have no playground for their own cannot go on their playground, and that means that what the plaintiffs are requesting in this case is greater rights than those of enrolled students for Jan Rankowski, and that means that this issue is moot.
Now the case law Mr. Coles submitted to the court I think is not on point because putting aside the legal arguments as to why those exceptions don't apply, and we have discussed that in the briefing that applies to whether or not the court can issue an ultimate decision on the merits, not whether the court can issue an injunction. If Jan Rankowski has no right to go to that playground then I don't think that the court can issue an injunction ordering the school to let him go on the playground. So that's the first reason that this language in the home school statute is important. I think the second reason really is it goes to the likelihood of success on the merits of the plaintiff's public accommodation law. The evidence in this case I think has been clear that Jan Rankowski simply does not meet the conditions set forth in that statute. He did disrupt regular school activities. The testimony as to what was going on on that playground clearly established that his use of the playground was disruptive, so condition A is not met. He did create additional expense to the school unit. The evidence was Virginia Gilbert was there. Dr. Yahr in his e-mail to Gayle Fitzpatrick says a one-on-one aid is necessary in order to make this use of the playground successful. That's additional expense.
And finally I would just point to the final section of that statute, statute E, use of potentially-hazardous areas such as shops, laboratories and the gymnasium. I would argue to the court if a gymnasium is potentially a hazard certainly a playground is is supervised by a qualified employee of the school administrative unit. My point here, Your Honor, is that because of this family's view that school personnel have no right to oversee this child they effectively prevented the school from providing the type of supervision that the statute applies for. So in sum Jan Rankowski fails to meet three of the conditions that would permit him to use the playground, and therefore under the home school statute he has no right whatsoever to be on that playground once Mrs. Powers made the determination to revoke his permission.
What the plaintiffs seem to be arguing here is that the court should completely put aside the home school statute, and I don't understand on what basis they make that argument, but that's what they are saying, and analyze this as a straight public accommodations case. If the court were to do that I think that the evidence has been clear that the school has absolutely complied with what the public accommodations law required; that the need for a modification here became clear, and the first thing they did was try to engage in that dialogue that the law requires, get the information they need to put into place a modification that's successful.
Plaintiffs seem to put aside completely the whole modification concept, and in fact Mr. Coles' answer to the court's question concerning the Toledo YMCA case where in that case mother's asking for a modification whereas in our case we are asking for a modification say that doesn't matter. I think that their theory basically goes like this: Jan's disabled. He engages in conduct such as defiance of adults, misreading social cues and things like that that results from his disability. The school revokeshis permission for him to be on the playground because of that conduct; therefore the school discriminated. That's what they seem to be saying, but that's not I don't think what public accommodations law requires. It's really at the bottom, a terribly pessimistic give-up attitude about Jan Rankowski and disabled people to say you're disabled, no teaching, no modifications, no moving towards success, you just have to live with it and move on. That's not what the law requires. The law doesn't say if you have a public accommodation and a disabled person is having difficulty using it you just turn your back. The law says you reach out to that person and you say, what can we do to make your use of our accommodation successful? And that's exactly what these people did. So there is no question here that even if you were to put the home school statute aside, which I don't think you can do, that the school department has completely complied with the law on the public accommodations claim.
The other claim that I just want to discuss for a minute is the educational discrimination claim. In our briefing we have discussed why I don't think that that law applies to Jan Rankowski, and I won't repeat it here in any depth, but it is true that that statute 4602 of the Maine Human Rights Act applies to individuals in educational institutions, and I think that by being a home schooled student Jan Rankowski is specifically outside of that statute. The primary reason I mention it here is because it is under that statute that the two issues that the court has asked for further information on arises, the administrative exhaustion argument as well as the applicability of the special education rights.
Essentially the way the law works is this: The Legislature and Congress and the federal scheme have identified two sort of separate areas of law. There is special education law and the Maine law and then there is discrimination law which relates to non-special education issues. So if an issue relates to a special education issue it falls under special education law, and there is a requirement for exhaustion. The reason that this issue does fall under special education law if the Human Rights Act applies at all is because it deals with the service plan. The service plan is a special education notion. It was dealt with in the PET process, and what the law and the implementing regulations says essentially is if you go through this PET process, you don't like the result, then you need to go through the state created complaint procedure, so that we have people who understand about special education, who know what's an assessment and what isn't, and why an FBA, what it isn't. Deal with this in the first instance you don't like the result, then you can go to court, but you you need to exhaust. So if this is an education case then clearly there is an exhaustion requirement, and if this is an education case then I think clearly the regs apply because we are talking about a service that's provided under the umbrella of special education law. I have said and I believe that the reg. don't apply because I do not think that Jan Rankowski falls under the definition of an individual in an educational facility, whatever the word is.
The final thing at this point to say, I know it's getting late, is aside from the likelihood of success on the merits prong of the test I just want to say one word to the court about the balancing of harms. If this court were to enter an injunction as requested by the plaintiffs what would happen is that this child would go back on the playground at the time when the school has said and we know that they do not know how to address this child's behavior. At the same time the family has made it clear that they do not want this school involved in addressing this child's behavior. So this child will be one person on a playground with hundreds of other kids who are all living under the same rules, What will his rules be? That situation is untenable, and I think that that's an important part of the analysis. Questions?
THE COURT: Yes. With respect to the administrative remedies if I conclude that there is a sufficient basis to at least trigger the education discrimination laws by virtue of the supportive service of allowing Jan to use the playground, what administrative remedy or remedies ought to have been invoked that under 20-A or that under the special-ed regs or both?
MS. HEWEY: The way it would work is if the family was unhappy with the decision to revoke permission which is a part of the service plan then they have an objection to the service plan, and that would then trigger the complaint procedure set forth in 20-A Section 7205, and following and basically what that says is you make a complaint to the state. The state investigated. If you don't like it you can make an appeal and get a due process hearing. That's 7206, well, 20-A Section 7206, Subsection 1 regarding the complaint and Subsection 4 regarding the due process appeal. once that due process appeal is finished if either side doesn't like the result that's when there is a possibility or a right to go to court but not until that happens.
THE COURT: And do you agree with Attorney Coles' position that Judge Hornby's decision either in his April 30 or in his May 7 orders constitute the law of this case?
MS. HEWEY: I do not, and there are a couple of points I want to make on that. The first point is that a decision on a motion to dismiss, it does not create law of the case. A decision, a motion to dismiss, and there are numerous cases that address this issue, is a preliminary issue based solely on the pleadings. You do not waive something, an argument by not raising it in a motion to dismiss, and it does not create law of the case.
Secondly Judge Hornby is a Federal Court judge, and to the extent that he is he made sort of dicta type rulings on state law. I believe that this court is the court that can make the decisions about state law, not Judge Hornby. I do however agree with him that in certain respects the school is a place of a public accommodation.
THE COURT: Thank you.
MS. HEWEY: Thank you.
THE COURT: Attorney Coles.
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.)
