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Homeschoolers' setback in appeals court ruling
Lawyer Blog News | 2008/03/07 16:31
California parents without teaching credentials cannot legally home school their children, according to a recent state appellate court ruling.

The immediate impact of the ruling was not clear. Attorneys for the state Department of Education were reviewing the ruling, and home schooling organizations were lining up against it.

"Parents do not have a constitutional right to home school their children," Justice H. Walter Croskey wrote in a Feb. 28 opinion for the 2nd District Court of Appeal.

Noncompliance could lead to criminal complaints against the parents, Croskey said.

An estimated 166,000 students in California are home schooled, but it was not known how many of them are taught solely by an uncredentialed parent.

To earn a five-year preliminary teaching credential in California, a person must obtain a bachelor's degree and complete multiple examinations.

Until now, California allowed home schooling if parents filed paperwork to establish themselves as small, private schools; hired a credentialed tutor; or enrolled their child in an independent study program run by an established school while teaching the child at home.

The ruling stems from a case involving a Los Angeles-area couple whose eldest child reported "physical and emotional mistreatment" by the father, court papers said.

The father, Phillip Long, vowed to take the case to the state Supreme Court.

"I have sincerely held religious beliefs," he told the Los Angeles Times. "Public schools conflict with that. I have to go with what my conscience requires me."



Guantanamo Detainee Loses Court Case
Lawyer Blog News | 2008/03/07 13:32
A judge ruled Friday that claims by a former Guantanamo Bay inmate that he was tortured could not be fully believed because his testimony was inconsistent and may have been exaggerated to try to help him win a defamation lawsuit.

But Mamdouh Habib almost certainly was mistreated during his three years of detention without trial in four countries after being arrested in Pakistan in late 2001, during which he suffered extreme stress and trauma, the judge found.

The findings came in a judgment in Habib's case against Sydney's The Daily Telegraph newspaper in which he claimed that the paper defamed him by implying he lied about being tortured.

A jury in 2006 found in Habib's favor, but the paper's publisher, Rupert Murdoch's Nationwide News Pty. Ltd., sought to knock down the case by proving that there was some truth to its article.

On Friday, Justice Peter McClellan of the New South Wales state Supreme Court upheld News' case, and ruled Habib would get no payout. Habib vowed to appeal.

Habib, an Egyptian-born Muslim immigrant, was arrested in late 2001 in Pakistan, where he says he was held for 28 days and interrogated by Americans before he was transferred to Egypt, then six months later to the U.S. military base at Bagram, Afghanistan and then to Guantanamo Bay, Cuba.

Habib told the court he had been beaten and electrocuted by his captors while he was in Pakistan and Egypt, kept drugged and shackled, had his fingers broken, and was sexually molested.

He claimed that Australian officials were present during parts of his ordeal.

Habib said that while at Guantanamo he was regularly beaten before interrogation sessions, kept shackled and often naked, and had his cell sprayed with pepper spray.

In his ruling, McClellan said he could not accept a lot of Habib's evidence because it was inconsistent with previous statements he had made. The judge also found Habib was "prone to exaggerate," and "evasive" when pressed on details.

"I have no difficulty in accepting that the experiences which Mr. Habib suffered were traumatic" and were an "extraordinarily stressful experience," McClellan said.

"I also have little doubt that from time to time he was mistreated," he said, citing electric shocks, kicks and the use of hot and cold water as included in the likely abuse.

"However, the evidence he gave was disjointed and on many occasions he failed to respond to a question," the judge said. "I have ultimately concluded that I cannot accept the allegations of mistreatment in the detail which he gave the evidence in this court."

"That does not mean that I have concluded that these events did not happen but merely that I cannot be satisfied that they did happen," he said.



Gay Marriage Gains Notice in State Court
Lawyer Blog News | 2008/03/06 13:33

On the way home from work in Rochester, Patricia Martinez stopped at a liquor store and bought a small bottle of Champagne to celebrate her marriage to another woman. The wedding took place in Canada nearly four years ago, but it wasn’t until Feb. 1 that a New York appellate court declared it valid in the state.

Last week in Manhattan, a State Supreme Court justice, ruling in a divorce proceeding, recognized the Canadian marriage of two New York City women, known publicly as Beth R. and Donna M. - or Mom and Mommy to the two young children they had been raising together.

Less than two years after New York’s highest court refused to legalize gay marriage, leaving it up to a divided Legislature, courts in Rochester and Manhattan, as well as state and local officials, have begun to carry out what some say is the de facto legalization of gay marriage - and gay divorce - in New York for the price of, say, a ticket to Toronto.

Advocates for same-sex marriage say the two court decisions last month granting reciprocity in New York to gay marriages in other jurisdictions simply underline what most people would consider common sense.



Appeals Court Weighs Teen's Web Speech
Lawyer Blog News | 2008/03/05 15:36
A teen who used vulgar slang in an Internet blog to complain about school administrators shouldn't have been punished by the school, her lawyer told a federal appeals court.

But a lawyer for the Burlington, Conn., school told the 2nd U.S. Circuit Court of Appeals on Tuesday that administrators should be allowed to act if such comments are made on the Web.

Avery Doninger, 17, claims officials at Lewis S. Mills High School violated her free speech rights when they barred her from serving on the student council because of what she wrote from her home computer.

In her Internet journal, Doninger said officials were canceling the school's annual Jamfest, which is similar to a battle of the bands contest. The event, which she helped coordinate, was rescheduled.

According to the lawsuit, she wrote: "`Jamfest' is canceled due to douchebags in central office," and also referred to an administrator who was "pissed off."

After discovering the blog entry, school officials refused to allow Doninger to run for re-election as class secretary. Doninger won anyway with write-in votes, but was not allowed to serve.

A lower federal court had supported the school. U.S. District Judge Mark Kravitz, denying Doninger's request for an injunction, said he believed she could be punished for writing in a blog because the blog addressed school issues and was likely to be read by other students.

Her lawyer, Jon L. Schoenhorn, told the appeals court Tuesday that what students write on the Internet should not give schools more cause to regulate off-campus speech.

"It's just a bigger soapbox," he said.

But Thomas R. Gerarde, an attorney for school officials, argued that the Internet has completely changed the way students communicate.

The three-judge panel of the appeals court did not issue a ruling after the arguments.

In 1969, the Supreme Court said schools could ban expression if they can show that not doing so would interfere with schoolwork or discipline. In a later ruling, it allowed officials to bar "vulgar and lewd" speech if it would undermine the school's educational mission. But both cases involved events that occurred on school property or during a school activity.



Pfizer Rezulin Case to Proceed; U.S. Court Deadlocks
Lawyer Blog News | 2008/03/04 18:29

A deadlocked U.S. Supreme Court upheld a lower court decision against Pfizer Inc's Warner-Lambert unit over withdrawn diabetes drug Rezulin in a ruling announced on Monday, allowing the case to go forward.

By a 4-to-4 vote, the court affirmed a federal appeals court ruling that reinstated the lawsuit against the world's biggest drugmaker by Michigan residents who said their injuries were caused by the diabetes drug.

The split occurred because the court's ninth member, Chief Justice John Roberts, took no part in the case because he owns Pfizer shares. The court's one-sentence ruling does not address the merits of the dispute.

Rezulin, first approved in 1996, was pulled from the market in 2000 after about 100 people who took the medicine needed liver transplants or died. Pfizer has fought thousands of lawsuits claiming the drugmaker failed to warn the public about the drug's toxic effects.

The high court's action clears the way for the case to proceed in federal court in New York.

At issue in the Supreme Court case was a Michigan state law that provides pharmaceutical companies immunity from such suits except when it can be proven that the manufacturer defrauded the U.S. Food and Drug Administration.



Gay Marriage Returns to Calif. Court
Lawyer Blog News | 2008/03/04 16:27
The national gay marriage debate shifted to California on Tuesday, as the state's highest court was hearing arguments on the constitutionality of a voter-approved law banning same-sex marriage.

Gay rights advocates sued to overturn the ban four years ago after the court halted a monthslong same-sex wedding spree that saw thousands of couples marry at City Hall.

The justices were scheduled to hear three hours of arguments in six cases.

"I think I speak for everybody when I say that this has been a long time coming and a day that has been eagerly anticipated," said City Attorney Dennis Herrera, who is representing the city in a lawsuit supporting gay marriage.

The cases were filed after the court stopped the same-sex marriages in the winter of 2004. More than 4,000 couples exchanged vows at the direction of Mayor Gavin Newsom months before gay marriage became legal in Massachusetts, although the high court ultimately voided the unions.

In briefs submitted to the court, same-sex marriage supporters argued that California's Constitution leaves no room for denying gays and lesbians the right to wed.

They say that while the state is one of a handful where gay couples are entitled to most of the same legal rights as married spouses, the institution of marriage is too important to allow for alternatives that are by definition inferior.

"We're very hopeful that California history will stay true today and we'll see the constitution vindicated for the thousands of families in California who depend on our equal place under law," said Jennifer Pizer, a lawyer with the Lambda Legal Defense and Education Fund who is representing gay couples.

The state and same-sex marriage opponents, however, maintain that limiting marriage to members of the opposite sex is reasonable — not only to uphold tradition but because California voters approved a ballot initiative eight years ago bolstering the gay-marriage ban that was in place at the time. To overturn that law, they say, would abrogate the rights of all Californians.



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