The Law Center Honors Thomas K. Gilhool with Symposium on Equality and Celebration
On May 14 2008 the Law Center will honor Thomas K. Gilhool on the occasion of
his retirement with a Symposium and Dinner Celebration
Click here for the full Symposium Program
Click here for a Press Release for the Event
Click here to visit our upcoming events page for more info on how to attend
THE LAW CENTER'S MICHAEL CHURCHILL PRESENTS AT THE 20TH ANNUAL PBA
MINORITY ATTORNEY CONFERENCE
April 24, 2008 - Mr. Churchill participated in a panel discussion entitled "All
Children Left Behind" at the Philadelphia Bar Association's Minority Attorney
Conference.
Visit the Education Funding and Quality Page to learn more
DIRECTOR OF THE DISABILITIES RIGHTS PROJECT TO RECEIVE DIANE LIPTON AWARD FOR OUTSTANDING EDUCATIONAL ADVOCACY
March 8, 2008 - The Law Center proudly announces that Judith
A. Gran, Director of the Disabilities Rights Project, will receive the
prestigious Diane Lipton Award, given by the Council of Parent Attorneys and
Advocates.
Visit the Disabilities Rights in Education Page to learn more.
LAW CENTER ATTORNEY PRESENTS AT PEAK PARENT CENTER CONFERENCE IN COLORADO
Law Center attorney Barbara Ransom was a presenter at the annual PEAK Parent
Center Conference, held in Colorado from February 14-16, 2008. She offered two
training sessions for parents and advocates to improve their understanding of
the laws protecting the rights of individuals with disabilities.
Visit the Disabilities Rights in Education Page to learn more.
The Law Center Welcomes Two New Board Members
January 31, 2008 - The Law Center is pleased to announce the appointment of the
following new members of the Board of Directors - they are enthusiastically
welcomed as they bring new insight and expertise to the organization.
Melissa A. Wojtylak
Stacy L. Hawkins
Click here to learn more about the new Board Members.
MOMENTUM BUILDS AS STATEWIDE COALITION LAUNCHES PA SCHOOL FUNDING CAMPAIGN
January 23, 2007 - In an unprecedented display of unity, organizations around the Commonwealth of
Pennsylvania have joined to form a powerful and growing coalition calling for
legislation to increase and equalize state spending for public education.
Visit our Education Funding and Quality page to learn more.
THE LAW CENTER ANNOUNCES UPCOMING BOOK
RELEASE
Coming in February 2008 - Education in the 50 States: A Deskbook of the History
of State Constitutions and Laws About Education.
Visit our publications page for more information.
December 7th, 2007 - The Law Center's Judith Gran represented the organization at this year's TASH conference in Seattle, giving a presentation on Aversive Behavioral Interventions. Click here to learn more.
July 30, 2007 - The Law Center has filed a complaint alleging that the Lower Merion School District intentionally segregates African American students with disabilities into sub-grade-level "modified" classes where they fall even further behind their peers. Click here to learn more.
The Law Center is pleased to announce the appointment of the following new
members of the Board of Directors, who were elected in June- they are
enthusiastically welcomed as they bring new insight and expertise to the
organization.
Danielle Banks
Brian T. Feeney
George G. Gordon
THomas D. Paradise
Derek Redcross, CPA
Click here to learn more about the new Board Members.
On August 14, 2007, the Pennsylvania state
government announced that it will provide
free SEPTA transportation to all public and
private school students in Philadelphia who
live over 1.5 miles from their school. This
will remove a significant barrier to students
getting to school, and eliminate the effect
on students of SEPTA's decision to end
transfers and charge a full fare for the
second vehicle.
The Law Center intervened on behalf of
students and low income individuals a week
ago in the court case objecting to the
elimination of transfers by SEPTA on the
grounds that it imposes extreme hardships on
students attending school and a
disproportionate impact on low-income riders. The Law Center considers the state's
announcement to be an important, although
partial, victory - while it protects students
from an unfair increase in transportation
costs, thousands of low-income riders in
Philadelphia will still be severely affected
by the disproportionately burdensome fare
changes.
In late July, the city filed a complaint
against SEPTA over planned fare increases and
the elimination of transfers. The city claims
that SEPTA violated federal and state laws
that require SEPTA to analyze the impact its
fare changes would have on minorities and
low-income communities. Michael Churchill,
Chief Counsel at the Law Center, is
representing students, low-income families,
and advocacy organizations objecting to the
elimination of transfers. Court of Common
Pleas Judge Gary F. DiVito issued a temporary
restraining order to prevent the fare changes
from going into effect on August 1 as
planned, and heard further evidence in a
hearing on August 6. According to SEPTA, over
a third of the revenue from the fare increase
would come from only 8% of SEPTA riders, half
of whom are students. The City showed that
riders using paper transfers are
disproportionately minority and low
income.
The state's announcement was a success for
the Law Center's clients, who include high
school students, Philadelphia Citizens for
Children and Youth (PCCY), and the Philadelphia
Students Union. Shelly Yanoff, a Law Center
Board member and executive director of
PCCY,
has long advocated providing free
transportation for all students, noting that
Philadelphia was the only district in the
state which did not provide free
transportation for all students. One of the
principal reasons the Law Center became
involved in the SEPTA lawsuit was the impact
the elimination of transfers would have on
students.
This announcement places both
students and the Philadelphia school district
in a better position than they were before
SEPTA changed its rates. In the past, the
school district paid the base fare for
approximately 15,000 students, and partially
subsidized tokens and transfers for another
18,000 students. However, even with the
discounted rates those 18,000 families were
left with a cost of at least per year
for each student's transportation to and from
school - a cost that would have skyrocketed
even higher with the elimination of
transfers. The state's decision
to provide weekly SEPTA passes has not only
protected all students from the effects of
SEPTA's fare changes, but has also removed the
burden of covering the cost of subsidized
tokens from the school district. Churchill
attributes the state's decision in part to
the tireless efforts of Yanoff, the public
attention the litigation has brought to the
students' situation, and the desire of
Governor Rendell and state senator Vincent
Fumo to end this hardship for Philadelphia's
public and private school students.
While the state's decision to provide weekly
passes has averted a major crisis for
Philadelphia school children, at least
another 15,000 riders remain threatened with
serious financial hardship as a result of
SEPTA's actions. The Law Center last week
publicly criticized the Federal Transit
Administration for failing to investigate
allegations that SEPTA neglected to comply
with federal regulations protecting
minorities and low-income riders.
"The FTA has abdicated its responsibility to
protect the civil rights of riders in order
to provide what it calls 'excellent customer
service' to transportation companies,"
according to Churchill. 'The FTA has accepted
the assertions that SEPTA is complying with
federal law without even investigating to see
if they are true. Unfortunately this is
typical of what we have come to expect from
this Administration when civil rights are
involved," Churchill said. The Law Center
expects a decision from Judge DiVito later
this week.
Read the Law Center's Memo on the Merits here
Read the court's decision in the city's case against SEPTA here
A unanimous appellate court today ensured that Pennsylvanians seeking to rid
themselves of heroin addition will have access to methadone treatment which
treatment, according to the sources quoted in the court's opinion "has been used
for more than 30 years to effectively and safely treat opioid addiction." The
court struck down a Pennsylvania law that had effectively banned methadone
treatment centers.
Lawyers Barbara E. Ransom and chief-counsel Michael Churchill of the Public
Interest Law Center of Philadelphia brought the case on behalf of a methadone
treatment provider, New Directions Treatment Services (NDTS) which the court
described as "a reputable and longstanding provider of methadone treatment."
The Law Center also brought the case on behalf of a class of individuals
obtaining or seeking to obtain methadone treatment in and around Reading,
Pennsylvania.
NDTS sought to open a new facility on a busy commercial strip in the City of
Reading in a building that had previously housed a mental health and drug
treatment facility. However, NDTS was faced with the Pennsylvania law which
bans a methadone treatment facility within 500 feet of an existing school,
public playground, public park, residential housing area, child-care facility ,
church, meetinghouse, and other facilities unless the city governing body first
votes in favor of the facility.
According to the Court, when NDTS inquired about sites not covered by the
statute, "a City zoning official referred them to three sites, including a
cemetery and a heavy industrial area" none of which were acceptable to NDTS.
When NDTS decided to proceed with its application at the original site, the
Reading City Counsel scheduled three public hearings after which Council
unanimously voted against NDTS's application.
NDTS filed suit against the City of Reading and individual city council members,
alleging that the Pennsylvania statute violated the federal Americans with
Disabilities Act and the Rehabilitation Act. Those statutes prohibit
discrimination against persons with disabilities and which define a "disability"
as including a person seeking drug treatment and who is not currently using
drugs. NDTS also alleged that the defendants violated the federal
anti-discrimination laws by the way in which they applied the Pennsylvania law.
The lower court had dismissed the case.
In today's ruling the court of appeals reversed the district court and struck
down the Pennsylvania statute as discriminatory. According to the court:
"[t]his case presents the familiar conflict between the legal principle of
non-discrimination and the political principle of not-in-my-backyard." The
court also explained that, while the City of Reading claimed that it had been
motivated by concerns of jaywalking, loitering, littering and traffic, "we
consider it inexplicable that the City failed to offer any evidence to support
these concerns." The court also observed that "[t]he records of the three City
Council hearings are replete with statements by participants illustrating the
atmosphere of prejudice and fear that permeated the proceedings."
In the appeal, the court relied heavily on information provided in an amicus
brief filed by the Pennsylvania Community Providers Association, represented by
Jon Romberg and Rachel D. Godsil of Seton Hall University School of Law, Center
for Social Justice.
Read the opinion here.
Read NDTS's appellate brief
Read NDTS's reply brief
Read brief for Amicus Pennsylvania Community Providers Association
On April 12, 2007, the Law Center's Director of Disability Projects, Judith A. Gran, testified
before the Pennsylvania State Board of Education in support of proposed new regulations in 22
Pa. Code Chapter 14 which make clear that a student cannot be removed from regular class
because he cannot achieve at the same level as typical classmates and that instead the relevant
inquiry is whether the student can, with supplementary aids and services, make progress in the
goals in his own Individual Education Plan (IEP). Although these regulations simply restate the
requirements of federal law, Ms. Gran testified that they will provide useful guidance for school
district personnel. "It is far better for school district personnel to be able to turn to the Chapter 14 regulations for guidance in making placement decisions, rather than learn that they have
applied the wrong standard only after the fact, when the school district has lost in [administrative
hearings]."
During her testimony, Ms. Gran explained the benefit of the proposed regulation to all children.
"Research has shown that children with the most severe disabilities gain tremendous educational
benefit when they are taught in regular class with needed supplementary aids, services and
supports. They benefit from the richness and challenge of the regular education curriculum and
from the opportunity to learn communication and behavioral skills from their peers. Research
has also shown that all children benefit when children with disabilities are educated in regular
class and benefit even more when the supplementary aids and services needed to teach students
with disabilities are brought into regular classroom."
Read a complete copy of Ms. Gran's testimony.
The Commonwealth Court of Pennsylvania yesterday held that state certifications of electronic voting machines used in 56 counties around the state are deficient because the Secretary of State did not adequately test the machines to ensure they were safe and reliable and provide a means of voter verification or independent audit.
In a ruling Thursday, the Court sharply criticized the Pennsylvania Secretary of State for certifying Direct Recording Electronic Voting systems (DREs) "that provide no way for Electors to know whether their votes will be recognized." The ruling came in an August 15, 2006 case filed by the Michael Churchill of the Public Interest Law Center of Philadelphia, Mary Kohart, a partner at Drinker Biddle LLP and Marian K. Schneider on behalf of 26 individual Pennsylvania voters who alleged that their votes were at risk of being lost or altered because of operational or security failures of the Pennsylvania-certified systems. The 4-3 court overruled the Secretary's sixteen preliminary objections which had claimed that the voters had no legal right to proceed with their case and no legal right to obtain the relief that they sought.
In the Complaint, the voters alleged that the DREs failed during elections in Pennsylvania and in other states by losing votes, registering votes for one candidate when the voter was attempting to vote for another candidate; causing high "undervote" rates; failing to register votes when the ballot contained only one question; counting votes twice; failing to print "zero tapes" to demonstrate that no lawful votes were stored on the machine prior to the election; printing "zero tapes" after votes had been cases; reporting phantom votes. The suit seeks to have the Secretary of State decertify the DREs.
According to the Court, the voters have a constitutional right to have their votes honestly counted. Here, the Court allowed the voters to proceed with their constitutional claim because they have no way of knowing whether their votes will be honestly counted by the DREs which "are not reliable or secure and that provide no means for vote verification or vote audit." The Court later wrote that "because Electors have a right to vote and because Electors have no way of knowing whether using the DREs affords them that right" the voters had alleged a violation of a civil right. The Pennsylvania Constitution, according to the Court "does not permit the use of DREs that are not reliable or secure and provide no means for vote verification or vote audit."
The Commonwealth Court also held that the voters can proceed with their claim that the DREs violate Pennsylvania's Election Code reasoning that there would be no way for county board of elections to conduct the required independent statistical recount unless the original vote were conducted on a system that allows a voter-verified independent record of the vote.
Finally, the Court held that it had the power to order the Secretary to re-examine the DRE systems "because Electors have alleged sufficient facts to support their claim that the Secretary's DRE certifications were arbitrary or based on a mistaken view of the law.
To read the Opinion, Click here.
The Law Center's Thomas K. Gilhool, who is retiring this year after a
distinguished 41-year career as a public interest lawyer, received the coveted
Andrew Hamilton Award from the Public Interest Section of the Philadelphia Bar
Association. The award, was presented on December 5, 2006 at the Loews Hotel in
Philadelphia, Pennsylvania, gave an experienced public interest lawyer based on
such factors as personal vision and commitment; critical nature of the problems
addressed by the nominee's advocacy; innovative nature of the nominee's work;
outcomes and results achieved through effective advocacy; the difficulty of
achievement; and community commitment.
In the letter nominating Gilhool, board chairman Roosevelt Hairston, Jr. wrote: "Tom's extraordinary passion and commitment are reflected in the breadth and depth of work in his lifetime pursuit of social justice... Tom Gilhool's exceptional career has positively impacted the lives of literally millions of the most disadvantaged persons in our society- children and adults suffering from disabilities, children lacking adequate health care, and individuals on public assistance."
The Andrew Hamilton Award is given by the Public Interest Law Section of the Philadelphia Bar Association in honor of the 18th century Philadelphia lawyer best known for his 1735 legal victory on behalf of New York printer and newspaper publisher John Peter Zenger who was charged with "seditious libels" the crime of criticizing the King. In defending Zenger, the 60-year old Hamilton, working for free, travelled to New York to take up the defense when Zenger's New York lawyers were disqualified. In gratitude for Hamilton's service, a group of prominent residents contributed to a gold box engraved with the Latin motto translated as "Acquired not by money, but by character."
Gilhool's work is as broad in its impact. He has significantly changed the law and the practice in the areas of education of children with disabilities. The encyclopedic work, The Disability Rights Movement by Fred Pelka, describes Tom's work as "pivotal in establishing the constitutional right of children with disabilities to a public education." Pelka's authoritative history also describes Tom Gilhool as "the attorney most responsible for the rise of community services for people with developmental disabilities, allowing for their deinstitutionalization beginning in the 1970s." The Disabilities Rights Movement, p. 137. His work on behalf of people with developmental disabilities led him further to initiatives to strengthen community services available for persons with disabilities. Most recently, he launched a new initiative, working with the service employees' unions, to obtain the passage of right to know laws which provide the public sufficient information about the quality of care so that persons with disabilities and their families can make informed choices about which services to use
Gilhool developed and refined his innovative approach to systemic change during his 27 years as counsel and chief counsel of the Public Interest Law Center (1975-1986; 1990-2006). Before he began to work at the Law Center, Tom was a member of the originating generation of legal service lawyers, writing the briefs in support of the establishment of Philadelphia's Community Legal Services and serving as Consumer Advocate and director of law reform at Community Legal Services, Inc. during the late 1960s. In that capacity, he argued and won the first legal services case which reached the United States Supreme Court, Smith v. Reynolds, 277 F. Supp. 65 (E.D. Pa. 1967) (three-judge court), aff'd sub nom. Shapiro v. Thompson, 394 U.S. 618 (1969), in which the Court struck down the durational residency requirement for public assistance. He helped to organize, train and then represented the Philadelphia Welfare Rights Organization and the Residents Advisory Board as well as other low-income neighborhood organizations. The recognition agreements which he created empowered those organizations to effectively represent welfare recipients and public housing tenants and served as models and were replicated throughout the country.
During these formative years for the legal services community, Tom played a significant role on a national level. He was Chair of the Law Reform committee of the National Project Advisory Group, a member of the National Advisory Committee on Legal Services to the Poor, U.S. Office of Economic Opportunity and a member of the working group which established the Legal Services Corporation. In 1971-72, Tom was a founding co-director of the National Legal Services Training Program a national program which trained legal services lawyers.
Throughout his life, Tom has shared the insights of his rich and varied career with others through education. During the years 1987-1989, Tom served as Secretary of Education for the Commonwealth of Pennsylvania under Governor Robert P. Casey (the only Philadelphian ever to hold that post). While Secretary, Tom's initiatives focused on quality and performance including the publication of school-by-school performance reports (Pennsylvania was the first large state to do so); establishing money awards for strong gains in performance (the first state to do so) and changing the funding formula for educating children with disabilities to encourage integration of such children. Tom also shared and learned through teaching: a year (1990) as an eighth grade teacher at the Roberts Vaux Middle School located in an inner-city, high-poverty section of the city of Philadelphia; three years as a tenured law professor at the University of Southern California Law Center (where he also founded in Los Angeles the Western Center of Law and Handicapped); and throughout the years in courses at LaSalle College, Temple University, University of Pennsylvania and St. Joseph's University on courses which included "Poverty, Distribution and the Law", "Reorganization of the City: Neighborhood, Decentralization and City Services"; and "Social Ethics: Distribution, Equality and Democracy."
In 2003 Tom received a Senior Fulbright Fellowship in Japan, followed by a meeting in New York in August 2004, for the purpose of bringing together Japanese and American advocates for disability rights to consider how each country can build on the successes of the other and how they could contribute to a United Nations meeting to draft a convention on rights of persons with disabilities. Subsequently, he participated in that drafting session.
As Hairston wrote in his letter of nomination: "Andrew Hamilton would see in Tom Gilhool a kindred soul, with the courage and the vision to take his Philadelphia solutions to the far reaches of the country and, indeed, the world."
For Nominating Letter, click here.
The Public Interest Law Center of Philadelphia has filed suit on behalf of 26
citizens from around the state to ensure electoral integrity by requiring
voting machines which have a paper ballot that can be verified by voters and
used in any recount or audit.
The Pennsylvania Secretary of State has certified 7 electronic voting systems
which do not have any independent permanent physical record of how a voter
voted. These machines have been purchased by 57 of the 65 counties in the
state. The suit asks the Commonwealth Court to order the State to decertify
the machines.
The Complaint details numerous breakdowns and loss of votes by voting machines
in both Pennsylvania and around the country. The machines are also subject to
tampering and can not be made secure. An independent paper record is
particularly important in light of those weaknesses of electronic machines.
The Law Center is co-counsel with Mary Kohart of Drinker Biddle & Reath LLP,
who will be lead counsel, and Marian K. Schneider. The suit is being
supported by a non-profit group, Voter Action directed by Lowell Finley and
Holly Jacobson, which has brought suit in several other states, including New
Mexico, Colorado, California, Arizona and New York.
Plaintiffs include Rev. James Moore, president of the Black Clergy of
Philadelphia and Vicinity, J. Whyatt Mondesire, president of the NAACP
Philadelphia Branch, and Rob McCord, chair of the Eastern Technology Council.
The plaintiffs come from 11 counties in Pennsylvania and from both political
parties.
"The General Assembly has specified that electronic voting machines must
have 'absolute' accuracy, they must 'preclude tampering' and must have
a 'permanent physical record'," according to Michael Churchill, who is
handling the case for the Law Center. "The electronic voting machines
certified by the state do not comply with these requirements."
Alternatives are available. Nine Pennsylvania counties are using paper
ballots with optical scanners for all voters and three for non-disabled
voters. Disabled voters can use a ballot marking device which is accessible,
and which also produces a permanent paper record.
The Law Center was assisted in its work by attorney Bela Walker and by
summer interns Myra Bayleson (law student) and Nat Olin (undergraduate).
To read a copy of the Complaint, click here.
New York Attorney General Eliot Spitzer has published a statement voicing
concerns about the reliability and even the potential for election fraud
with electronic voting after speaking with local activist groups around New
York state. In the statement Spitzer asks the state to implement "a vigorous
testing regime" or consider an alternative to electronic machines called
'Paper Ballot with Precinct Based Optical Scan', also known as PBOS.
"Albany's implementation of the Help America Vote Act has been a well-publicized
disaster," Spitzer said in the statement, "State government's failure of
leadership is especially disconcerting in light of widespread reports of the
unreliability and potential for fraud of electronic voting machines."
Optical Scan systems are popular in a number of other states. Within the past
year, the states of New Mexico and Connecticut have decided to use statewide
optical scan systems to comply with the Help America Vote Act(HAVA).The complete
Optical scan system includes ballot marking technology which allows a paper
ballot based system to provide accessible, private and independent voting for
voters with disabilities. HAVA requires new voting machines for New York by 2007.
"Eliot Spitzer has recognized that both public funds and the integrity of the
election process are better served by Precinct Based Optical Scanning of Paper
Ballots", said Alan Goldston of Democracy for Westchester, a local Democracy for
New York group. "Any election officials in New York who ignore his sober advice
had better be prepared to explain why they would choose to both waste public
money and jeopardize the election process."
The full text of Eliot Spitzer's statement follows:
"Albany's implementation of the Help America Vote Act has been a
well-publicized disaster. It was a mistake from the start for the State
Legislature to pass the buck to our counties rather than craft legislation that
would have specified a single technology for adoption statewide. As a result,
we're looking at the very real possibility of a patchwork of different voting
machines with different levels of accuracy and accessibility throughout the State.
State government's failure of leadership is especially disconcerting in light of
widespread reports of the unreliability and potential for fraud of electronic
voting machines. The State must address these concerns through a vigorous
testing regime or should consider certifying the proven and less expensive Paper
Ballot with Precinct Based Optical Scan technology."
Ralph Martinez was born in the United States, his parents were born in the United States and Ralph spoke no Spanish, his parents having made a conscious decision to speak to their children only in English. When the family moved from New York City to the Poconos, Ralph's parents completed a Home Language Study, which indicated that English was the dominant language spoken at home, and Ralph s native (and only) language. But when Ralph began to fail subjects in school, the district placed him in the English for Speakers of Other Languages (ESOL) program.
Ralph and his parents are the named plaintiffs in a class action filed on July 8, 2006 by the Law Center's Judith A. Gran against the Pocono Mountain School District and school officials in the Middle District of Pennsylvania. The Complaint alleges that the defendants discriminated against Ralph and others similarly situated by placing them in ESOL classes rather than evaluate their needs for special education. According to the Complaint: "The policies and practices of the Pocono Mountain School District systematically discriminate against students with Spanish surnames and Hispanic or Latino Ancestry by placing them in classes for English language learners even though they do not need such services and in fact are not even eligible for them." Read the Complaint here.
According to the Complaint, Ralph entered the Pocono Mountain School District when he was in the second grade. Upon entering sixth grade, he began to have difficulty in the Language Arts/English subject, and failed the course. The following year, he failed Language Arts/English a second time, as well as Reading, Math, and Music, and was forced to repeat seventh grade. Once placed in the ESOL program, Ralph was placed in the corner of the library with another student who spoke only Spanish. According to the Complaint, the teacher instructed Ralph in English and the other student in Spanish. Ralph described the classes as like baby work... like second grade. He was forced to miss science classes in order to attend ESOL, and failed the subject in subsequent years.
The Complaint alleges violations of the Individuals with Disabilities with Education Act (IDEA), 20 U.S.C. § 1400 et seq. as well as Title VI of the Civil Rights Act of 1964, 20 U.S.C. § 2000d. It alleges that the defendants failed to implement screening procedures in order to identify students in need of special education; as a result, Ralph was not tested for either learning disabilities or special education eligibility after failing seventh grade. Instead, according to the Complaint, school officials said they placed a child in ESOL if "there was Spanish in his background."
The Complaint seeks an award of compensatory education for each of the years since sixth grade in which the district denied Ralph an appropriate education. The plaintiffs filed their complaint after prevailing before a hearing officer in a due process hearing, but after the Pennsylvania Special Education Due Process Appeals Panel limited the award of compensatory education to two years based on a Pennsylvania Commonwealth Court decision, Montour School District v. S.T. which have been rejected by Pennsylvania federal courts.
On May 26, 2006, the Chief Executive of Allegheny County signed into
law a groundbreaking new ordinance into law designed to ensure that persons
with mental retardation have access to information that will allow them to
select high quality Home and Community Based Services providers. The Law
Center supported this work with its legal opinion last summer supporting the
right of persons with disabilities to obtain important information about these
providers through ordinances enacted by local municipalities. At the request
of the Pennsylvania TASH, the Law Center reviewed a proposed ordinance to
determine whether a county could impose such conditions on providers of
community based services without violating Title XIX of the Social Security
Act, including the Home and Community-Based Services Amendments of 1981. The
Law Center concluded: "It is our opinion that the proposed Right-to-Know
Ordinance is lawful and that it can and will withstand any legal challenge. It
applies to the benefit of people with disability the powerful principles of
knowledge, transparency, and public disclosure. It serves the purposes of
Title XIX of the Social Security Act and Pennsylvania's historic Act of 1966
and is consistent with their particular provisions."
The ordinance begins with a declaration of the County's public policy:
[Persons with mental retardation have the same rights and should be afforded
the same opportunities to live, work, and find recreation in the same
environments as other Allegheny County citizens. [] In keeping with the
principles of the Department of Human Services, all services will be high
quality, readily accessible, strengths-based, culturally competent,
individually tailored and empowering, and holistic. [] Assuring that
consumers, families, and workers within the County are afforded sufficient
information to make informed choices about where to seek services, to assess
the health of the community-based system, and to participate in ongoing
discussions about system transformation shall be a priority of the County.
The ordinance then requires all community providers to make information
available to consumers, their families and workers substantial information
that will allow them to make careful informed choices about community
services. The information that must be made public includes: departmental
Reviews and supporting documentation; noncompliance findings, corrective
action plans, incident management reports, and statistics on work placement.
This information will be available on the County's website beginning in
January 2007.
To read the entire Legal Opinion click here.
To read the enacted Ordinance click here.
Kevin Francis, Jr. is a four year old child who for two years lived with Susan
and Randy Borelly, along with her son, her daughter, and her niece. Kevin was
placed there as a foster child and had grown to love, accept, and rely on the
Borellys as his family. Despite this relationship, the Chester County Children
Youth and Families moved Kevin from the only home he remembers and placed him
with another family for adoption. Furthermore, in violation of a court order
and agency policy, they moved Kevin without warning. Before they arrived at
the Borelly's house, the agency had only said that Kevin was going for a
visit. When agency officials arrived, Kevin had not been prepared for the fact
that he would never return.
The agency denied that its decision was racially-based, but instead claimed it
was enforcing agency policy which prohibited adopting more than one child a
year. The Borellys had just completed adopting their niece and, therefore, the
Borellys could not adopt Kevin. The agency refused to Kevin to stay with the
Borellys until the next year on the grounds that he "needs permanency."
Both the Guardian ad litem, Jean Speiser, and the attorney for the Borellys,
Sam Stretton, sought the assistance of the Law Center. The Law Center
consulted several child development experts, all of whom stated permanency for
Kevin meant staying with the Borellys. Representing the Guardian, the Law
Center petitioned the Chester County Court to re-open the issue of whether
Kevin should be moved, and also to examine why the agency had moved Kevin so
abruptly. At the same time, the Borellys and the Guardian, through the Law
Center, went to federal court, seeking Kevin's return through a federal court
injunction.
Neither judge agreed to return Kevin. The Chester County judge declined to
review the reasons for the agency's decisions. That hearing was behind closed
doors; even the Borellys were not permitted to attend, and the participants
are not permitted to discuss the testimony. The federal judge, who was only
permitted to decide the narrow question of whether the agency's decision was
based on race, held that there was insufficient evidence to show that the
single adoption policy was "generated or applied" because of race. On all
other matters of the child's best interest, he had to defer to the state court.
For over twenty years, the Law Center has represented foster families seeking
to preserve stability and continuity for foster children, whether in
interracial or same race families. One of the greatest problems facing foster
care, as Edmund Cahn once wrote, is the failure to look at the system from the
perspective of the intended beneficiary or consumer, in this case the child,
and the lack of any real knowledge about children's developmental needs. Our
goal is to hold child custody agencies accountable, or to open up the
proceedings of agencies sufficiently for the public to see what actually
transpires. Only then will children's needs begin to be met and Kevin's
tragedy avoided.
To read post trial memo to the Eastern District of Pennsylvania click here.
The Law Center filed a petition in Court of Common Pleas, Luzerne County to
confirm the power of attorney executed in 1990 by an individual, Grace B. Connors, who
became incapacitated after she executed the document. The petition was filed on behalf
of Mary Claire Connors, Mrs. Connors' first born and only surviving daughter, who
received the power of attorney. Ms. Connors asks the Court to revoke its February 21,
2006 decision to appoint a public agency as her mother's guardian on the grounds that
the appointment is contrary to her mother's wishes as she expressed them.
The petition alleges that the court's decision to appoint a guardian different from
that selected by Mrs. Connors violates Pennsylvania law. It cites In re Sylvester, 598
A.2d 76, 84 (Pa. Super. Ct. 1991): "A person has the right to choose who shall have
control over his finances in the event of incompetency without interference by the courts,
which should become involved only in circumstances indicating that the incompetent's
interest are not being served."
brief in support of petition
A graduate of the City College of New York and Rutgers Camden Law School, Mr. Balter was an engineer for over
thirty years before he joined the Law Center in 1978, where he concentrates his practice in environmental law.
Among his most notable legal achievements is the enactment of Right-to-Know legislation in Philadelphia which
spurred the passage of similar laws in numerous other states including New Jersey, as well as a federal law
modeled on those local initiatives.
In addition, Mr. Balter was lead counsel in Delaware Valley Clean Air Council v. State of Pennsylvania, a case
that forced the state to institute an automobile emissions inspection program. Mr. Balter has represented
countless communities against illegally operating polluting facilities, as well as in environmental justice
matters seeking an end to the disproportionate siting of facilities in low-income, predominantly minority
communities. In 2002, Mr. Balter was awarded the Martin Luther King, Jr. Award at Rutgers Law School for his
groundbreaking work on environmental justice in Chester, Pennsylvania and Camden, New Jersey. Currently, he
serves as a member of the Commonwealth of Pennsylvania's Advisory Committee on Environmental Justice.
Read more about Balter's extrodinary
work here
