State of Maine, Cumberland ss
Superior Court Civil Action Docket No. CV-04-98
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
17. REBUTTAL OF PLAINTIFFS' ATTORNEY RONALD COLES, ESQ.
THE COURT: Attorney Coles.
MR. COLES: Unfortunately Falmouth School Department wants you to ignore Plaintiff's Exhibit 25, that's the behavior plan prepared by the State of Maine. Goal one, Jan will increase safe behavior at home and in the community, and it talks about 80 percent. It's in great detail that's Plaintiff's Exhibit 25 the behavior plan prepared by the State of Maine talks about goals, what Jan can do, what he cannot do. They want you never to see this document. It is highly significant. It tells you and it tells the school department they have had that for a long time what his capabilities are, what he is capable of doing, and what his assessments are.
I also differ very strongly with defense counsel on whether I call the home schooling law 20 M.R.S.A. 50216 and I want to go through those parts also, and it says, Your Honor is very aware of this home school student can use school facilities en the same basis as a regular student with the following conditions, okay, l-A, does not disrupt regular school activities. Is his behavior as we have seen through three days of hearings so disruptive school behavior as to warrant him being isolated and suspended for seven months? The answer is no, because the same kind of behavior, if not worse behavior from an in-school student, gets minimal sanctions, one or two, three days time-outs.
THE COURT: Let me stop you there for a second, get your response to this. The defendants are not saying that Jan was suspended for seven months. The defendants are saying he was suspended until there could have been an assessment and a plan. It's taken seven months to this point in time, but they are saying that but for that it would have been a matter of weeks or a few months.
MR. COLES: Nonsense, that's nonsense, because they could have come to us at any time to set up another PET meeting to discuss this. They had until February 12, that was the alternative that was given to them November 24, and they sat on their hands. In fact we started suit. What do they do? Immediately they went to Federal Court to stall for more time. It's now taken nine months for us to be here, and school is starting next week. We are totally cooperative.
All we want is what the service plan originally said, let us play in the playground. The service plan is part B, use as approved by the school principal. The only evidence you have heard is that the child is disobedient and defiant, never heard a direct safety threat, that's I think the key part to denial of a public accommodation. Does not create additional expense to the school. It doesn't cost them anything. The child is there with an independent outside adult caregiver. They are somehow trying to spin that. Well, we had to have these people who are aids sort of, they are spending their own money to follow a nine-year-old autistic child around. Use related to the student's academic program. No question about that playground use with his peers is significant to this child's development. Then they sort of poo-poo use of potentially hazardous areas to shops, laboratories and gymnasiums. Been no testimony at the school there is a shop or laboratory or gymnasium. Supervised by qualified employee, we don't have to have a qualified employee of the school district supervise this child because Woodfords Services is supplying this adult person on the outside.
It's very interesting that defense counsel talks about discrimination, federal discrimination laws. You look at the big picture, it talks about cooperation. That's not what the federal discrimination law or the state discrimination laws talk about. There is no cooperation. It's no cooperation prior to 1954 for the bus driver to tell the black person to get in the back of the bus. That's not cooperation. That's intimidation. We know that changed in terms of Brown versus the Board of Education when it came to education. We know that changed in the Civil Rights Act of 1964. If they would only read all of Dr. Yahr's assessments they would come to one conclusion, he's autistic. He doesn't -- he has problems listening. He has problems understanding. He has problems digesting the information. So when they talk about a partnership, please, it's just the discrimination laws are designed to protect people from abuse of power, and that's what the basis of all the discrimination statute is is that people who have power are abusing that power to treat people differently, and that's exactly what they did to Jan.
Again I may sound like a broken record but there has never been any testimony that Jan is a direct threat to the safety or health of others. That is significant. The plaintiffs, I am just picking up with Miss Hewey said plaintiffs had no intention to work with the school. Yes, we would be delighted to work with the school, but why suspend him, why isolate him again for one, two, four, five, seven months? You want to work with us. Sure, we will work with you. We will work with you the same way you work with in-school students. Do a behavioral plan, do one of those performance sheets that you send out to all the parents where the child misbehaves. We will be happy to cooperate with you. We will sign off. We will add little notes. You never did that to us. All you did was throw our child off the playground. That's the discrimination. That's the treating the child differently.
I do want to mention something that was very interesting, this is the defense argument, the principal has the unfettered right to restrict access to the playground to members of the public. Well, Jan is not a member of the public. He had a specific permission to use the playground and we say was arbitrarily and capriciously denied. The defense argument plaintiff has limited rights as home school students. That's not what the home school law says. Interesting argument Jan Rankowski has no right to use the playground. He has no rights whatsoever except those rights which are created by the principal. There was a slip of the tongue from defense counsel, but it was interesting. Did you catch it, Your Honor? only Principal Powers made a determination to suspend Jan. That's not the November 7 letter that came from Carol Crowell. So we know that the prime mover was to throw this child off the playground, it was the principal, and it was just rubber stamped by Miss Crowell who was up in her chambers three miles away following the recommendation of the principal. So it all comes from Principal Powers. She is one that doesn't want this child on her playground. It's not her playground. The playground belongs to the people of Falmouth.
Interesting question proposed by defense counsel, what can we do to make your use of the accommodation successful? work with us, give us the same notes you give to other people, but just throw him off for seven months, how is that helping? How is that making his experience as a nine-year-old playing with children successful by isolating him again? It's cynical. It truly is a cynical approach.
I'm a little distressed at this late juncture that counsel is now arguing special education law, federal law or IDEA, ADA or section -- when we sat in chambers and she clearly said special-ed laws do not apply, and they don't apply. It's that one very small home schooling statute, and takes this court, Your Honor, to interpret that as to the facts in this case. Jan does not have due process rights. Falmouth has said that in its own regulations we are gonna find you, that's it, you have no due process rights after that. I am rather concerned that Miss Hewey's argument about balance of harms, this child would go back to the playground, they do not know how to address his behavior. It's bad spin. Rather than dealing with the family and the child they did the worst thing they could possibly do is to suspend him, throw him off, get rid of the victim. It's called punishing the victim.
Finally in closing her argument, defense counsel's argument that the decision of a court, whether it be she says it's 12 B 6 motion, so decision on the 12 B 6 motion is not the law of the case. I have never seen a decision that said that you piecemeal how the court rendered its decision to make it the law of the case or not. Yes, it's a Federal Court judge, and we know the interaction between the Federal Court justices, judges in Maine and the judges of the Superior Court. There are occasions where there may be difference. In most occasions 99 percent of the time there is an agreement. Judge Hornby spoke very clearly when he said state law, discrimination law does not require exhaustion of administrative remedies. They did nothing about that other than come in here now, poo-poo it, but that's not good enough. They said it's contrary to law. Where is the memorandum of law? I would like to see that. I mean they had ample time to put this argument together before you, but they haven't done that. Finally in closing and I realize I have gone more than five minutes. I apologize.
THE COURT: That's okay.
MR. COLES: I really truly want to thank Gayle and Charles for entrusting their son to me. That's why I went to law school and thank you.
THE COURT: Thank you. Counsel before we take a recess, Attorney Hewey.
MS. HEWEY: There is just one housekeeping issue, and that is last time we were here I guess Defendant's Exhibit 11 was lost and so I was going to give the court another copy of that.
MR. COLES: We have a problem with Defense Exhibit 11 because it's what was testified to at the hearing was a two page letter from Miss Crowell, but there are numerous attachments which were not part of the exhibit when it was so marked. I know defense counsel wants to get in not only the letter but the eight or ten pages of attachments. I object to the attachments.
THE COURT: Was there also some testimony with respect to the attachment?
MS. HEWEY: Yes.
MR. COLES: There was testimony, but attachments are hearsay. The only thing that was testified to in terms of putting it in as an exhibit was the two page letter.
THE COURT: My notes reflect that it was offered and admitted.
MR. COLES: That was the two page letter, that's correct. What counsel, defense counsel is trying to do right now is get the two page letter plus the ten pages of attachments in.
THE COURT: My recollection is what was looked at had the attachments, and that there wasn't a copy with the attachments on it for counsel to look at.
MR. COLES: If you recall correctly we had the defense counsel pulled it apart, all the additional parts to it that was stapled.
THE COURT: I don't recall.
MS. HEWEY: I don't believe that occurred, Your Honor.
THE COURT: Let me see 11 please. While I can look at that I will invite counsel up to the bench if you would please go through plaintiffs and defendants exhibits numerically to make sure they are fully accounted for since the clerk is not here I will take care of that housekeeping function. While counsel and I are doing that if the rest of you folks want to stand or stretch your legs please feel free to do so.
Plaintiffs 1 which are the photographs, do we have that? I will ask the court officer can you take custody of them as we produce them. I want to make sure they are all here. We haven't lost stuff. One is a bunch of photographs, if you give this to the officer please. Plaintiff's Two is e-mail from Deborah Johnson dated September 30, 04. Three is the letter from Miss Crowell regarding November 7. Four is two pages minutes of meeting on 11, 24. Five is a letter.
MR. COLES: 5, 6 and 7 we have.
THE COURT: 8, 9 and 10, 11, 12, 13, 14. 8 through 15 are notes I believe by Miss Katz.
MR. COLES: This is 11, 12, 13, 14.
THE COURT: 15 will be typewritten notes by Miss Katz. 16 is the level two behaviors. 17 is reflection sheets. 18 photos and of playground, I think there are 12 in all. 19 records given to the school by the parents of the 2002. 20 is the Falmouth police report. I don't think there is a 21. 22 is behavioral mandated July 29.
MR. COLES: 23 package of stuff.
THE COURT: 23 package of info. 24 is service plan of September 11. No 26. 27 letter dated November 4. 28 school form No. 9, and 29 is the e-mail.
MR. COLES: That's plaintiffs.
THE COURT: And defendants is one is Miss Powers' e-mail. Two is Miss Fitzpatrick's e-mail. Three, the Maine special-ed regs. Four, chart of Falmouth special-ed students. Five, PET meeting minutes of September 11. Next one should be I believe eight the Plummer-Motz handbook. Nine, letter by Ms. Fitzpatrick to Ms. Powers. Ten, level two behaviors, eleven the matter.
MS. HEWEY: we don't have ten.
THE COURT: Level two behaviors.
MS. HEWEY: That's the same thing as Plaintiff's One, I didn't offer it, did I?
THE COURT: I thought you had. My notes reflected you had. Let me just double-check the clerk's.
MS. HEWEY: Doesn't matter because it's the same thing.
THE COURT: No. The clerk's notes reflect it wasn't. Came in only under plaintiff. Then go to 11 which is the letter, and I am admitting 11 in toto which will include the attachments, that's how I understood it was offered and there was testimony about those attachments. The objection to that is stated for the record by plaintiff. This is --
MR. COLES: Caroline Crowell's letter.
THE COURT: 12 is the photo of the mazecraze. 13, 14 and 15 are the photos and 16 is the package of documents given to Ms. Powers at the June 2003 PET.
MS. HEWEY: Yes, that's it.
THE COURT: I think we have accounted for everything. Is there anything further from plaintiffs, Attorney Coles?
MR. COLES: I want to thank you for your patience, Judge, I realize 3 hours of hearing has now stretched into 10 or 12 hours.
THE COURT: No problem. I understand this is of-great importance to all of the parties, and I want to give full respect to that.
MR. COLES: Thank you very much, Your Honor.
THE COURT: Attorney Hewey.
MS. HEWEY: Thank you.
THE COURT: Thank you all, appreciate your patience with me. We are in recess. (Whereupon, the proceedings were concluded at 3:54 p.m.)
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.)