On June 1, 2007, the Boston Globe published Atty. Rich's Letter to the Editor (with another) under the title above.
Here's the letter:
RE GEORGE Bachrach's May 25 op-ed, "Against odds, Spence transformed lives":
I take issue with Bachrach's implication that caseload problems at the Department of Social Services are entirely a function of underbudgeting.
In my 25 years as a lawyer representing children and parents involved with DSS, I have seen that a large part of the agency's caseload problem comes from ineffective triage, failure to use existing family and community supports, and creation of distrust in the families that come to its attention.
DSS tells parents, "We are here to help," but the only "help" it offers are multiple meetings with its workers, one-size-fits-all service plans that refer parents to therapy, and a threat of removing the children to foster care if there is insufficient cooperation or "progress."
DSS exacerbates the problem by insisting that outside professionals report the slightest suspicion of abuse or neglect.
If DSS wants to cut its caseload, it should screen these reports more effectively instead of pressuring professionals who may legitimately think that DSS involvement is the last thing that a slightly troubled family needs.
© Copyright 2007 Globe Newspaper Company.
It's in the Globe online at http://www.boston.com/news/globe/editorial_opinion/letters/articles/2007/06/01/assessing_impact_at_the_dss/
Friday, June 1, 2007
Thursday, May 31, 2007
School does not have to be effective in stopping peer-on-peer sexual harrassment
Yesterday, in Porto v. Town of Tewksbury, __ F. 2d __ (CA1, Nos. 06-1994, 06-2139) the First Circuit, U.S. Court of Appeals, overturned a jury verdict from the U.S. District Court for Massachusetts that had awarded the plaintiffs $250,000 plus attorneys fees for not effectively stopping (special ed) peer-on-(special ed) peer sexual activity.
The First Circuit agreed with the Town that the plaintiffs had not proven that Tewksbury’s Wynn Middle School’s failure to predict continuing acts on the plaintiffs’ child by the peer constituted "deliberate indifference" to the "sexual harrassment".
The court ruled:
Further citing Davis, the decision went on to say that the legal standard "does not require funding recipients to remedy peer harassment. Davis disapproved of a standard that would force funding recipients to suspend or expel every student accused of misconduct. All that Davis requires is that the school not act clearly unreasonably in response to known instances of harassment."
The whole opinion is available on the First Circuit’s website: www.ca1.uscourts.gov
The First Circuit agreed with the Town that the plaintiffs had not proven that Tewksbury’s Wynn Middle School’s failure to predict continuing acts on the plaintiffs’ child by the peer constituted "deliberate indifference" to the "sexual harrassment".
The court ruled:
Under Title IX of the Education Amendments of 1972, a recipient of
funding from the United States Department of Education may be liable for damages
if "its deliberate indifference [to peer-on-peer sexual harassment] 'subjects'
its students to harassment." Davis v. Monroe County Bd. of Educ., 526 U.S. 629,
644 (1999). A funding recipient is deliberately indifferent to
student-on-student harassment when "the recipient's response to the harassment
or lack thereof is clearly unreasonable in light of the known circumstances."
Id. at 648. [T]he deliberate indifference must, at a minimum, 'cause [students]
to undergo' harassment or 'make them liable or vulnerable' to it." Id. at 645
(alteration in original) (quoting Random House Dictionary of the English
Language 1415 (1966)). In addition, the acts of sexual harassment must be
"known" to the funding recipient. Id. at 647. Finally, the harassment must be
"so severe, pervasive, and objectively offensive that it can be said to deprive
the victims of access to the educational opportunities or benefits provided by
the school." Id. at 650.
Further citing Davis, the decision went on to say that the legal standard "does not require funding recipients to remedy peer harassment. Davis disapproved of a standard that would force funding recipients to suspend or expel every student accused of misconduct. All that Davis requires is that the school not act clearly unreasonably in response to known instances of harassment."
The whole opinion is available on the First Circuit’s website: www.ca1.uscourts.gov
Monday, May 28, 2007
A "Lite Brite" moment
On March 31, 2007, the enhanced punishment provisions of "An Act Further Regulating Driver Education and Junior Operator’s Licenses" (signed January 3, 2007) went into effect. (See http://www.mass.gov/legis/laws/seslaw06/sl060428.htm)
"State officials" said, "The new law is meant to create a zero-tolerance environment for speeding or other unsafe driving by teenagers." ("Young drivers face stiffer penalties starting today," Boston Globe, 3/31/07; http://www.boston.com/news/local/articles/2007/03/31/young_drivers_face_stiffer_penalties_starting_today/)
On Saturday night, while discussing the absurdity of a law that sends a polite, teen who was only going 7 miles an hour over the limit to "Road Rage" classes; WTTK's Michael Graham referred to it as "a Lite Brite moment".
Meanwhile, last night, Peter "Zebbler" Berdovsky and Sean Stevens were on Fox News Channel's "Geraldo at Large;" still apologetic for the inconvenience the ATHF Mooninites caused in the Boston area. Zebbler urged us to have open discussions about the causes of the fear that led to an L.E.D. cartoon causing roads, waterways and public transportation to be closed. Stevens suggested that we need to consider whether we want more love or more fear.
I have found that often the administration of zero tolerance policies result in actions with zero intelligence. I hope we can add some intelligence to the Junior Operator’s Licence policy and the justice system overall by looking to Restorative Justice principles (as the AG mentioned in her nolle prosequi documents in the Charlestown District Court and at her May 11, 2007 press conference). Restorative Justice and other diversion programs examine the specific needs of offenders like the teen whom Graham was discussing.
It would serve our society better if we were to explore opportunities for expanding justice, tolerance and education. We need to shift the emphasis from fear and punishment toward "a better way" of dealing with danger and harm. (See "Your View: Another way to handle hazing," Robert E. Heskett, New Bedford Standard-Times, May 22, 2007, http://www.southcoasttoday.com/apps/pbcs.dll/article?AID=2007705220314.)
"State officials" said, "The new law is meant to create a zero-tolerance environment for speeding or other unsafe driving by teenagers." ("Young drivers face stiffer penalties starting today," Boston Globe, 3/31/07; http://www.boston.com/news/local/articles/2007/03/31/young_drivers_face_stiffer_penalties_starting_today/)
On Saturday night, while discussing the absurdity of a law that sends a polite, teen who was only going 7 miles an hour over the limit to "Road Rage" classes; WTTK's Michael Graham referred to it as "a Lite Brite moment".
Meanwhile, last night, Peter "Zebbler" Berdovsky and Sean Stevens were on Fox News Channel's "Geraldo at Large;" still apologetic for the inconvenience the ATHF Mooninites caused in the Boston area. Zebbler urged us to have open discussions about the causes of the fear that led to an L.E.D. cartoon causing roads, waterways and public transportation to be closed. Stevens suggested that we need to consider whether we want more love or more fear.
I have found that often the administration of zero tolerance policies result in actions with zero intelligence. I hope we can add some intelligence to the Junior Operator’s Licence policy and the justice system overall by looking to Restorative Justice principles (as the AG mentioned in her nolle prosequi documents in the Charlestown District Court and at her May 11, 2007 press conference). Restorative Justice and other diversion programs examine the specific needs of offenders like the teen whom Graham was discussing.
It would serve our society better if we were to explore opportunities for expanding justice, tolerance and education. We need to shift the emphasis from fear and punishment toward "a better way" of dealing with danger and harm. (See "Your View: Another way to handle hazing," Robert E. Heskett, New Bedford Standard-Times, May 22, 2007, http://www.southcoasttoday.com/apps/pbcs.dll/article?AID=2007705220314.)
Saturday, May 26, 2007
It's not KidLaw but I couldn't resist
After seeing this post from my friend and colleague Atty. Marie Saccoccio on the MassPrivateCounsel yahoogroup (for criminal and other defenders), I couldn't resist posting it here. (Sorry I don't know Marie's original source, so I can't cite it right now.)
Los Angeles County, California v. Rettele, 550 U.S. ___ (#06-605 , decided May 21, 2007)
"When the Court gets jittery, it reaches for its equivalent of a nicotine patch to calm its nerves: a good old per curiam summary reversal of the Ninth Circuit. Everyone on First Street is a little calmer after Monday.
"The plaintiffs in this case, who are white, sued under § 1983 after officers mistakenly searched their home looking for 4 black suspects. Turns out the plaintiffs had bought the home from the suspects shortly before the police got their search warrant.
"Just as it only rains when you forget your umbrella, going to sleep naked more or less guarantees that the cops will arrive that night. And so it was here. The officers rousted the plaintiffs out of the bed and forced them to make like Greek statues for 3 minutes (but probably minus the placid expressions on their faces), while police searched the rest of the house.
"The CA9 found that this treatment unnecessarily denuded the plaintiffs of their dignity and therefore their Fourth Amendment rights. Proving that turnabout is fair play, the CA9 stripped the officers of their qualified immunity. The court of appeals reasoned that once the officers saw the white occupants of the house, they should have known they had the wrong house and stopped the search.
"It took the Court 7 pages to set the law aright. Police may reasonably detain a house’s occupants during a search, to protect officer safety and the integrity of the search. Here, they did not have to abandon their search simply because they encountered persons of a different race than the suspects—“the presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well.”
"This was the rare case in which the CA9 was not politically correct enough, for the Court had to instruct that “it is not uncommon in our society for people of different races to live and work together”, or for that matter, to commit crimes together.
"Finally, the plaintiffs’ brief au naturel detention was reasonable because the suspects were believed to be armed and could have been hiding a gun under the bed covers. There was no allegation that the police left plaintiffs unclothed any longer than necessary to secure the room.
"JPS (+RBG) penned a two-page concurrence in the judgment, blasting the CA9 for issuing a hotly contested 2-1 decision as an unpublished opinion (a well-known CA9 tactic for hiding summary reversal candidates). He also restated his long-held view that the Court should not decide the constitutional merits of a case when it can more easily be resolved on qualified immunity grounds, as this one could. "
Los Angeles County, California v. Rettele, 550 U.S. ___ (#06-605 , decided May 21, 2007)
"When the Court gets jittery, it reaches for its equivalent of a nicotine patch to calm its nerves: a good old per curiam summary reversal of the Ninth Circuit. Everyone on First Street is a little calmer after Monday.
"The plaintiffs in this case, who are white, sued under § 1983 after officers mistakenly searched their home looking for 4 black suspects. Turns out the plaintiffs had bought the home from the suspects shortly before the police got their search warrant.
"Just as it only rains when you forget your umbrella, going to sleep naked more or less guarantees that the cops will arrive that night. And so it was here. The officers rousted the plaintiffs out of the bed and forced them to make like Greek statues for 3 minutes (but probably minus the placid expressions on their faces), while police searched the rest of the house.
"The CA9 found that this treatment unnecessarily denuded the plaintiffs of their dignity and therefore their Fourth Amendment rights. Proving that turnabout is fair play, the CA9 stripped the officers of their qualified immunity. The court of appeals reasoned that once the officers saw the white occupants of the house, they should have known they had the wrong house and stopped the search.
"It took the Court 7 pages to set the law aright. Police may reasonably detain a house’s occupants during a search, to protect officer safety and the integrity of the search. Here, they did not have to abandon their search simply because they encountered persons of a different race than the suspects—“the presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well.”
"This was the rare case in which the CA9 was not politically correct enough, for the Court had to instruct that “it is not uncommon in our society for people of different races to live and work together”, or for that matter, to commit crimes together.
"Finally, the plaintiffs’ brief au naturel detention was reasonable because the suspects were believed to be armed and could have been hiding a gun under the bed covers. There was no allegation that the police left plaintiffs unclothed any longer than necessary to secure the room.
"JPS (+RBG) penned a two-page concurrence in the judgment, blasting the CA9 for issuing a hotly contested 2-1 decision as an unpublished opinion (a well-known CA9 tactic for hiding summary reversal candidates). He also restated his long-held view that the Court should not decide the constitutional merits of a case when it can more easily be resolved on qualified immunity grounds, as this one could. "
Thursday, May 24, 2007
What's in store for DSS?
Sean P. Murphy wrote in his article "New DSS chief emerged from his own troubled youth" in today's Boston Globe that Angelo McClain, the newly appointed Commissioner of the Massachusetts Department of Social Services, said in a telephone interview, "If we can build a system that allows the dedicated and talented people on the front lines to do their work, then children and families can reach their potential". (http://www.boston.com/news/local/massachusetts/articles/2007/05/24/new_dss_chief_emerged_from_his_own_troubled_youth/)
I agree that there are many "dedicated and talented people on the front lines," but; I wonder if "a system that allows [them] to do their work" implies further extensions of the laissez faire holdings of the 1995 Supreme Judicial Court cases of Care and Protection of Isaac and Care and Protection of Jeremy which essentially preclude judges from effective oversight of the care of children in the custody of DSS.
I agree that there are many "dedicated and talented people on the front lines," but; I wonder if "a system that allows [them] to do their work" implies further extensions of the laissez faire holdings of the 1995 Supreme Judicial Court cases of Care and Protection of Isaac and Care and Protection of Jeremy which essentially preclude judges from effective oversight of the care of children in the custody of DSS.
Wednesday, May 23, 2007
Shake up coming at DSS
According to today's Boston Globe, it is expected that Governor Patrick will replace Department of Social Services Commissioner Harry Spence. The article (linked below) says that Spence will be replaced by "Angelo McClain, executive director of Value Options New Jersey, the private entity that handles the state's behavioral health services for children.
"In the 1990s, McClain worked in Massachusetts as vice president of the Massachusetts Behavioral Health Partnership ... ."
Not to say that Spence has been good (or bad) for DSS, but my recollection is that it was in the 1990s, when the behavioral health partnership began, that services for children with behavioral health issues became harder to obtain and harder for advocates and juvenile court judges to effectively intervene to get effective treatment for them.
I don't remember McClain from when he was in Massachusetts before. We'll have to wait to see if the "shake up" is for the benefit of the children and families of the Commonwealth.
http://www.boston.com/news/local/articles/2007/05/23/patrick_is_poised_to_detail_shakeup/
"In the 1990s, McClain worked in Massachusetts as vice president of the Massachusetts Behavioral Health Partnership ... ."
Not to say that Spence has been good (or bad) for DSS, but my recollection is that it was in the 1990s, when the behavioral health partnership began, that services for children with behavioral health issues became harder to obtain and harder for advocates and juvenile court judges to effectively intervene to get effective treatment for them.
I don't remember McClain from when he was in Massachusetts before. We'll have to wait to see if the "shake up" is for the benefit of the children and families of the Commonwealth.
http://www.boston.com/news/local/articles/2007/05/23/patrick_is_poised_to_detail_shakeup/
Monday, May 21, 2007
Your opinions sought
Yesterday morning on Fox & Friends, Peter "Zebbler" Berdovsky and a legal analyst from NYC were asked if "the punishment fit the crime".
Since there was NO crime and NO punishment, I won't ask that question; but, rather whether, considering what happened (as summarized below), you think the resolution was fair:
- You remember the traffic delays and concern when the media called what was going on in and around Boston on January 31, 2007, a "bomb scare" or "terror alert".
- Berdovsky and Sean Stevens were arrested that night, charged with a felony and a misdemeanor, held overnight and released from Charlestown District Court on bail the following morning.
- Their families were required to tie up $5000 bail for 2 1/2 months while the defendants' charges were pending.
- The costs of the public safety operations were estimated at $1.2 million.
- Turner Broadcasting (parent company of the Cartoon Network, which hired Interference Inc., which in turn hired Berdovsky & Stevens) apologized and paid $2 million to the Cities of Boston, Cambridge, Somerville & Charlestown and to the MBTA Police.
- Since Berdovsky and Stevens did not have "intent to cause anxiety, unrest, fear or personal discomfort to any person or group of persons" (http://www.mass.gov/legis/laws/mgl/266-102a.5.htm) and since there was a recognized, legitimate purpose, protected by the First Amendment, in the actions they took, they should not have been able to be found guilty of the charges brought.
- Berdovsky performed 80 hours of community service and Stevens performed 60 hours at the Spaulding Rehabilitation Hospital (with excellent reports from SRH of their work and commitment there).
- They both apologized for the fear, confusion and inconvenience that the ad campaign caused here but that they did not foresee and could not have anticipated.
- On May 11, 2007, the Attorney General nolle prosequied the charges, ending the case.
- She asserted that the resolution was better for all involved than would have been the result if they had proceeded to trial rather than the "Restorative Justice" (see http://www.macucc.org/emj/restorative_justice.htm) disposition that was agreed upon.
So, was it a fair resolution?
Or, in Restorative Justice terms: Did it return the injured parties, the actors and the community to their positions before the harm and restore them to right relationship with each other?
[In future blog posts I will be relating the facts of children's and family law cases (mine and others) and seeking your opinions about the fairness of those resolutions.]
Since there was NO crime and NO punishment, I won't ask that question; but, rather whether, considering what happened (as summarized below), you think the resolution was fair:
- You remember the traffic delays and concern when the media called what was going on in and around Boston on January 31, 2007, a "bomb scare" or "terror alert".
- Berdovsky and Sean Stevens were arrested that night, charged with a felony and a misdemeanor, held overnight and released from Charlestown District Court on bail the following morning.
- Their families were required to tie up $5000 bail for 2 1/2 months while the defendants' charges were pending.
- The costs of the public safety operations were estimated at $1.2 million.
- Turner Broadcasting (parent company of the Cartoon Network, which hired Interference Inc., which in turn hired Berdovsky & Stevens) apologized and paid $2 million to the Cities of Boston, Cambridge, Somerville & Charlestown and to the MBTA Police.
- Since Berdovsky and Stevens did not have "intent to cause anxiety, unrest, fear or personal discomfort to any person or group of persons" (http://www.mass.gov/legis/laws/mgl/266-102a.5.htm) and since there was a recognized, legitimate purpose, protected by the First Amendment, in the actions they took, they should not have been able to be found guilty of the charges brought.
- Berdovsky performed 80 hours of community service and Stevens performed 60 hours at the Spaulding Rehabilitation Hospital (with excellent reports from SRH of their work and commitment there).
- They both apologized for the fear, confusion and inconvenience that the ad campaign caused here but that they did not foresee and could not have anticipated.
- On May 11, 2007, the Attorney General nolle prosequied the charges, ending the case.
- She asserted that the resolution was better for all involved than would have been the result if they had proceeded to trial rather than the "Restorative Justice" (see http://www.macucc.org/emj/restorative_justice.htm) disposition that was agreed upon.
So, was it a fair resolution?
Or, in Restorative Justice terms: Did it return the injured parties, the actors and the community to their positions before the harm and restore them to right relationship with each other?
[In future blog posts I will be relating the facts of children's and family law cases (mine and others) and seeking your opinions about the fairness of those resolutions.]
Subscribe to:
Posts (Atom)
