- New Poll - What Would You Change About IDEA
Posted November 30, 2009, 12:56 am by Jim Gerl
As many of you know, I am collecting your ideas for changes to the Individuals with Disabilities Education Act when it comes up for reauthorization by the Congress. To further celebrate this quest we have launched a new poll as to this question. As always, our polls are not meant to be scientific in nature. But they are fun, and they give us an idea of what our readers are thinking, so please exercise your opportunity to vote! The poll appears on the lefthand side of the blog. Now you may...
- Mylan Files Second Lawsuit Against Pittsburgh Post-Gazette
Posted November 26, 2009, 1:14 pm
First of all, I hope that all of you have a happy and safe Thanksgiving with your families and loved ones, and take some time to think about who and what in your lives are important to you. (And in care you're wondering, Google's only connection to this post is that I liked its Thanksgiving logo.) By the way, yesterday was the last day of the Supreme Court of Appeals of West Virginia's September Term, and the court has issued most, but not all, of its opinions. One opinion that is eagerly...
- Happy Thanksgiving
Posted November 25, 2009, 1:06 pm by Jim Gerl
Please have a happy Thanksgiving. This is a time to count our blessings and to be thankful. It is one of my favorite holidays. As you may have noticed, I'm taking some time off from the blog this week to spend time with my family. In the meantime, please keep thinking of ideas for my upcoming interview with Alexa Posny. And enjoy the turkey. Sent from my BlackBerry wireless device from U.S. Cellular------- Thanks for subscribing! Jim Gerl
- Former WV Supreme Court Justice's Personal Emails Are Not Public Records
Posted November 23, 2009, 2:18 pm
Although the Supreme Court of Appeals of West Virginia's decision on November 12 in Caperton v. A. T. Massey Coal Co., Inc., 2009 WL 380607 (2009), has received most of the attention, the court issued another decision that day that was also a victory, at least indirectly, for Massey. In Associated Press v. Canterbury, 2009 WL 3805646 (2009), the Associated Press had appealed the Circuit Court of Kanawha County's ruling that it could have access to only five of 13 emails exchanged between Massey...
- Breaking News: I Get to Interview the Assistant Secretary of Education Dr. Alexa Posny
Posted November 23, 2009, 2:37 am by Jim Gerl
I am very pleased and honored to announce that I have been selected to interview the Assistant Secretary of Education for Special Education and Rehabilitative Services, Dr. Alexa Posny. My interview with the new OSERS Secretary in a couple weeks was made possible because of your support. The credibility of this blog is greatly enhanced by our large number of subscribers and the activity and participation by the members of the related special ed law groups on Facebook and the other social...
- More on Standards of Care for Disability Categories- a Responsible Opposing Viewpoint
Posted November 18, 2009, 5:53 am by Jim Gerl
We have some great readers. Hers is just one example: I ran a post a few days back on the recommendations for changes to IDEA by the National Association of Secondary School Principals. You can view that post here. They had some good ideas, I felt, but I took them to task on the idea of standards of care for each disability category. I still believe that I am correct, but I received an email suggesting that there is another side. The response was very thoughtful and well-reasoned, so I thought...
- Charter Schools & Special Education: Part II
Posted November 16, 2009, 6:23 am by Jim Gerl
This is the second in a series of posts on charter schools inspired by the excellent, recent law review article by my friend professor Mark Weber. You can read the first post in this series here. Professor Weber's article may be found here. The number of charter schools is clearly on the upswing. In fourteen communities mo Image by gothamschools via Flickr re than one-fifth of all public school students attend a charter school. In three major urban areas, more than 30% of all public school...
- WV Supreme Court Finds Forum-Selection Clause Requires Reversal of $50 Million Verdict
Posted November 14, 2009, 5:49 am
I want to discuss in more detail the Supreme Court of Appeals' decision in Caperton v, A. T. Massey Coal Co., Inc., which was issued on Thursday. I'll discuss in a separate post another decision issued on Thursday, Associated Press v. Canterbury, in which Massey was involved but not a party. Because this decision represents the third time the court reversed the plaintiffs' verdict and the third time that Justice Robin Davis has written the majority opinion, there is not a lot of new ground in...
- Service Dog Wins Lawsuit; Illinois Court Rules
Posted November 14, 2009, 3:40 am by Jim Gerl
A court in Douglas County, Illinois has ruled that Kaleb Drew, a first grader with autism can have his service dog attend classes with him. The final injunction was issued by the trial court last week. Here is the news story from radio station WGIL. Thanks to alert Facebook special education law group member Julie Kelley for the heads up. Image via Wikipedia This should not be confused with the case in the Illinois appellate court. There the circuit court of Monroe county, Illinois issued an...
- WV Supreme Court Reverses $50 Million Verdict Against Massey for Third Time
Posted November 12, 2009, 12:43 pm
The Supreme Court of Appeals of West Virginia has again reversed the $50 million verdict obtained in 2002 by Hugh Caperton and his companies against Massey and several of its subsidiaries. Caperton v. A. T. Massey Coal Co. was before the Court for the third time, following the United States Supreme Court's ruling in June that Chief Justice Brent Benjamin should have recused himself from earlier appeals. As in the two earlier appeals, Acting Chief Justice Robin Davis wrote the opinion, which...
- W.Va. Supreme Court finds in favor of A.T. Massey Coal Co. in closely-watched case
Posted November 12, 2009, 8:56 am by Brian M. Peterson
This time without the participation of Justice Brent Benjamin, the West Virginia Supreme Court of Appeals ruled again today that the Circuit Court of Boone County erred in denying A.T. Massey Coal Company's motion to dismiss, thereby nullifying the 50 million dollar jury verdict in favor of the plaintiffs. Hugh M. Caperton v. A.T. Massey Coal Company, Inc., No. 33350 (W.Va. Supreme Court, Nov. 12, 2009). I've created a merge document comparing the new opinion with the 2008 opinion. As you can...
- Changes to IDEA - Principals Weigh In; What Changes Would You Make?
Posted November 12, 2009, 6:54 am by Jim Gerl
It is time to begin thinking about what changes you would like to see in the special education laws. IDEA will be reauthorized soon. I know that Congress has been busy with a lot of other stuff, but it is eventually going to come up. In our great democracy, the laws should reflect the input of the people. Too often though, the special interests, who are organized and who have political action groups and paid lobbyists and big time financial contributions, are the only ones communicating with...
- Filing of Sealed Documents and Plea Agreements in Northern District of West Virginia
Posted November 9, 2009, 7:54 am by Brian M. Peterson
I received the below notice by e-mail today: The U.S. District Court for the Northern District of West Virginia has made some recent changes to sealed functionality. The outline below discusses these changes: 1. Sealing a Case or a Document Requires a Court Order Pursuant to LR Gen P 6.01, Clerks office employees will seal documents or cases only on order of the Court. Deputy Clerks will not seal a document or a case based only on the request of an attorney. 2. Consistency in Sealing Documents...
- The Price of Justice: Backdoor Effects of the Recession on Special Education
Posted November 9, 2009, 2:22 am by Jim Gerl
Maybe I wasn't looking in the right place. I was expecting that the severe downturn in the economy would cause a movement to permit school districts to argue that expense or cost should be a defense in special education cases. I even ran a poll in this blog to that effect. The result was a resounding no. But as many readers have suggested, perhaps the effects of the recession have been more subtle. Maybe they are silently creeping into the decision making process in ways that are difficult to...
- WV Supreme Court Addresses Substance, Procedure of Arbitration in Two New Decisions
Posted November 7, 2009, 10:37 am
Today I want to bring to your attention two new decision from the Supreme Court of Appeals of West Virginia, which deal with the substance and procedure of the arbitration process. In the first opinion, State ex rel. Clites v. Clawges, 2009 WL 3320488 (W.Va. 2009), Clites was hired as a customer service representative of TeleTech, and participated in a group employee orientation session that included the discussion and completion of employment-related paperwork. After nearly three years of...
- Poll Results In; We're Back in First Place
Posted November 7, 2009, 2:29 am by Jim Gerl
As a part of the fun component of the special education law blog, we run a poll on the lefthand side of the blog. These are not scientific endeavors, and we do not pretend that the results resemble science in any way. Nonetheless, we think that they are fun. The most recent poll just ended. The question was: Given the recession, should cost/money be a defense in special education cases? Here are the results: 43 (62%) No, money is no excuse 17 (25%) Yes, school districts don't have money 7 (10%)...
- Teach Your Teachers Well: New Hot Topic -Teacher Education
Posted November 5, 2009, 9:50 am by Jim Gerl
I know that a number of the readers of this blog are professors who teach future teachers. I know a bunch of them, and they are really good at what they do. They are enthusiastic and dedicated to their students and those children whom their students will be teaching. But the way we train teachers is suddenly in the news- big time. I suspect that the following comments don't pertain so much to the institutions where my friends work, but a national debate has begun and we need to discuss it here....
- USDC Decision Relies on WV's Rejection of Learned Intermediary Doctrine
Posted November 5, 2009, 7:03 am
A couple of years ago, I discussed State ex rel. Johnson & Johnson Corp. v. Karl, in which the Supreme Court of Appeals of West Virginia declined to adopt the learned intermediary doctrine. In case you've forgotten, the learned intermediary doctrine provides that a drug manufacturer does not have a duty to warn each patient who receives its prescription drug when the manufacturer appropriately warns the prescribing physician of the drug's dangers. Johnson & Johnson is once again a topic...
- Charter Schools & Special Education: A New Article by Professor Weber Part I
Posted November 3, 2009, 1:05 am by Jim Gerl
Have you ever wondered about how the special education laws apply to students in a charter school? We tend to think of charter schools as things existing outside of the educational system. Some tell me that they are a curse; others say that they are a panacea. I suspect that the jury is still out. Image via Wikipedia Back to the question of special education and the charter school, this is an area that gets people worked up sometimes. I'm going to cite an excellent law review article that might...
- Amendments to Federal Rules of Civil Procedure Take Effect Next Month
Posted November 2, 2009, 5:28 am
Regardless of your area of specialty, if you practice in federal court, you will be affected by amendments to the Federal Rules of Civil Procedure that take effect on December 1, 2009. Of particular importance are changes to calculating deadlines under Rule 6. My thanks to Mack Sperling at the North Carolina Business Litigation Report for his thorough discussion of the amendments in this post.