Wednesday, November 11, 2009


… but the judge knows best, doesn’t he?

by Larry Geller

So what do I think of the judge’s decision in the Friday Furloughs cases? You’ve read in the papers that 9th Circuit Judge Wallace Tashima did not grant any injunction to stop the DOE from closing schools for 17 days this year.

I think he’s wrong.

I was raised to respect certain authority figures and not others. Forget the mayor or anyone from the City Council. If New York had a corrupt government, then it was safe to just assume that anyone who could gain office had to be corrupt. But a judge was different. Presumably the judge worked (inevitably his) way through law school, rose to the top, and so was now a respected authority figure.

Flawed though that argument may have been, my peers, it has stuck with me even though I know now of many examples that would refute it. So although I never graduated from law school and it can be argued that I don’t know what I’m talking about, in an age where anyone can voice an opinion, I want to voice mine, for whatever it may be worth.

For one thing, the judge did not use much Latin. So what does he know. Ipso facto, his ruling is suspect.

Ok, let’s dig in.

The hearing was to consider whether a preliminary injunction should be granted to stop the DOE from closing the schools for Furlough Friday. It was not a hearing on the merits of the case. That is, whether the claims succeed or not will be hashed out later. Still, as we shall see, the judge has to say something about his opinion of the merits. I did notice that he scratched his head an awful lot, and assume therefore that he was pondering the merits. That was the first time I’ve ever seen a 9th Circuit judge on the bench, so I could be wrong about all the scratching.

The attorneys did no scratching. Each spoke confidently and passionately. Even Mark Bennett. It was easy to be swayed by their arguments, as they made them in turn. Even Mark Bennett. Then it was the judge’s turn to give his opinion. It’s called a ruling, but in reviewing my notes, I am surprised at his seeming reliance on material not raised (to my knowledge) in the arguments. For example, he stated (paraphrase) that the purpose of the IDEA is to give each handicapped child as close as possible to the education a non-handicapped student would receive. If the IEP is not being followed, parents are entitled to a due process hearing. Unfortunately, there is a collision of protecting the rights of handicapped students with the limitations of the budget. The argument is that something else should be cut.

Stop right there. The IDEA guarantees that the students it protects will receive a Free Appropriate Public Education, or FAPE. A school or school district cannot claim poverty as an excuse for not delivering FAPE. IMHO, the judge should not have weighed the budget argument at all, because it simply isn’t allowed under the IDEA. He was adequately briefed, so where did that come from?

Ok, he said that the purpose of a preliminary injunction is to preserve the status quo. That’s Latin, so he’s on the right track there. Then he went into the 4-prong test to see if a preliminary injunction may be granted. From my limited knowledge, the various circuits might apply slightly different tests according to the circumstances, but it went as follows: (1) Plaintiffs have to show that they will likely succeed on the merits, (2) that they will suffer irreparable harm, (3) something about equity, and (4) that the public interest would not be adversely affected by the stay.

He then said that he thinks the plaintiffs are suffering irreparable harm. Hmmm… this is hopeful and  it should be encouraging to parents contemplating filing due process to seek remedy for the harm….  He said, if my notes are correct, not that plaintiffs “will” suffer irreparable harm, but that the “are suffering” irreparable harm. That means that this Friday they will suffer even more harm, etc.

Then he said that a lot of equity is in favor of the handicapped child. I think this means “fairness,” if I understand how “equity” is applied here. Although it’s not Latin, it is something I don’t know how to evaluate. Also hopeful…

Then he said that there are no easy choices here. Oops, that’s a red-light phrase. It means get ready to stop.

From my notes again, the judge said that the public interest does not favor shutting down schools, but is firing teachers better? He said that he cannot say that depriving special education students is worse than depriving others (of jobs). He said that the plaintiffs are not likely to succeed on the merits. So motion denied. He said that administrative decisions on how to run the schools generally are not covered by the IDEA. He agreed with Bennett that the changes made are not changes in educational placement.

Well… let’s look at this. I’ve commented that I think he has an incorrect interpretation of the IDEA. If an IEP says that certain services will be delivered in a certain way, and the school doesn’t do that, it’s a gotcha. Multiply that by the fraction of IEPs affected (it won’t be all, but it will be hundreds, at least) and it is a gross denial of the protections under the IDEA. FAPE would not be delivered. The IDEA does not contain the budget tradeoffs that the judge appears to have taken into consideration. We’ll find out if the cases get a hearing whether the merits are sound or not.

As to the public policy aspect, it is not for a judge to say that keeping teachers in the classroom means others will lose their jobs. For one thing, the Governor could abandon her hard ideology in a compassionate moment and agree to raise some taxes. The Rainy Day fund could be tapped. Or get this (thanks to an email I received today):

teachers now have 36 paid days where kids are out of school.  If so, why not take 17 of those days as unpaid instead of school days?

I rest my case. For what it’s worth.

Quidquid latine dictum sit, altum sonatur.

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Taking those 17 days out of the 36 paid teachers days when kids are out of school. What a simple, common sense solution. Thanks, Larry.

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