Mommy told you tony you tiny worm.............. 105 years ago one of their relatives, one of their relatives was an heir? confession?

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NUMBER 13-02-00130-CV



COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS



CORPUS CHRISTI B EDINBURG



SISTER CARMEN DE LLANO, JOSEPHINE JOHNSON,

INDEPENDENT EXECUTRIX OF THE ESTATE OF

MANUEL DE LLANO, BLANCA A. DE LLANO DE AGUILAR,

MARTHA DE LLANO DE OLIVERA, FERNANDO

DE LLANO, JR., AS PERSONAL REPRESENTATIVE

OF THE ESTATE OF FERNANDO DE LLANO, AND

JOSEFINA DE LLANO, Appellants,



v.



PABLO SUESS AND FROST NATIONAL BANK,

TRUSTEES OF THE JOHN G. KENEDY, JR.

CHARITABLE TRUST, Appellees.



On appeal from the 206th District Court of Hidalgo County, Texas.



MEMORANDUM OPINION



Before Justices Hinojosa, Yañez, and Garza

Memorandum Opinion by Justice Hinojosa



Appellants, Sister Carmen De Llano, Josephine Johnson, independent executrix of the estate of Manuel De Llano, Blanca De Llano De Aguilar, Martha De Llano De Olivera, Fernando De Llano, Jr., as personal representative of the estate of Fernando De Llano, and Josefina De Llano, filed suit against appellees, Pablo Suess and Frost National Bank, Trustees of the John G. Kenedy, Jr. Charitable Trust, for the recovery of real property, asserting various tort claims. A jury returned a verdict in favor of appellees, finding against appellants on all liability theories and in favor of appellees= defenses. In six issues, appellants (1) question the finality of the judgment and the jurisdiction of the trial court, (2) contend the appearance of the Attorney General of the State of Texas violated the Texas and United States Constitutions, (3) contend appellees= appeal to race during closing argument was incurable, (4) contend the trial court erred in failing to disqualify attorney J. A. ATony@ Canales, and (5) contend the jury=s finding on adverse possession requires this Court to render judgment for appellants. We affirm.

A. Background

As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts here except as necessary to advise the parties of this Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

B. Finality of Judgment

In their sixth issue, appellants contend the trial court=s judgment is not final because: (1) it adjudicated the claims of Athe Unknown Heirs of Carmen Morell Kenedy;@ (2) it failed to adjudicate appellees= counterclaim for attorneys fees; and (3) it failed to identify, with sufficient particularity, the real property interests involved.[1]

Appellants assert the judgment improperly adjudicates the claims of the unknown heirs of Carmen Morell Kenedy. However, even though a trial court grants more relief than it ought to grant, the judgment is nevertheless final. See Jacobs v. Satterwhite, 65 S.W.2d 653, 655 (Tex. 2001). An order that expressly disposes of the entire case is not interlocutory merely because the record fails to show an adequate motion or other legal basis for the disposition. Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 206 (Tex. 2001). Language that the plaintiff take nothing by his claims in the case, or that the case is dismissed, shows finality if there are no other claims by other parties. Id. at 205.

Appellants further assert that because appellees requested an award of attorneys fees as a counterclaim, and no language in the judgment specifically states that they take nothing by their counterclaims, the judgment is not final. However, when a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, it will be presumed for appeal purposes that the court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties. Moritz v. Preiss, 121 S.W.3d 715, 719 (Tex. 2003). Furthermore, claims raised by pleadings not expressly disposed of by a judgment are denied by implication. Rackley v. Fowlkes, 89 Tex. 613, 36 S.W. 77, 78 (1896).

The judgment specifically says it is a AFinal Judgment,@ acknowledges appellees as counter-plaintiffs, and awards appellees the substantive relief requested in their counterclaims. Appellees admit that they did not produce any evidence in support of their claim for attorneys fees. Accordingly, we conclude that appellees= claim for attorneys fees was implicitly denied.

Finally, appellants argue that the judgment fails to identify with sufficient particularity the real property interests involved. However, because appellants fail to cite to any authority for their contention, this argument is waived. See Tex. R. App. P. 38.1(h). Appellants= sixth issue is overruled.

C. Participation of Attorney General

In their first issue, appellants contend the trial court violated the Texas and United States Constitutions by allowing the Attorney General of the State of Texas to appear before the jury on behalf of appellees. They assert that the attorney general=s participation in this suit constitutes excessive entanglement of the State and religious organizations. We note that appellants did not raise this contention before the trial court.

The attorney general intervened in this matter pursuant to section 123.002 of the property code, which provides:

For and on behalf of the interest of the general public of this state in charitable trusts, the attorney general is a proper party and may intervene in a proceeding involving a charitable trust. The attorney general may join and enter into a compromise, settlement agreement, contract, or judgment relating to a proceeding involving a charitable trust.



Tex. Prop. Code Ann. '123.002 (Vernon 1995).



Immediately before voir dire, when asked if there were any other Ahousekeeping matters@ to address, without challenging the constitutionality of the statutory basis for the attorney general=s intervention, counsel for appellants expressed concern regarding the attorney general=s participation at trial. When asked by the trial court if appellants were making a motion, appellants= counsel responded:

We are asking the Court to either limit her participation or at least set some ground rules, because if she is allowed unfettered access to this litigation, she will be essentially acting in violation of the constitutional restrictions that are set out in the Texas Constitution that prohibit the interference or the assistance of the state to any particular religious group. And we believe that=s improper and illegal.



When asked a second time by the trial court what relief appellants were requesting, counsel responded:

. . . . We want the Court to set some very specific ground rules that will limit the presentation to the jury of any inference or possibility in their minds that they will perceive the State as lending its weight and prestige to a secular religious organization, which we believe is improper under the constitution. We need some rules, some relief that will protect the jury from seeing the attorney general or hearing the attorney general arguing or representing religious entities.



The trial court then set forth the requested parameters and asked appellants if there was anything else needed from the plaintiff=s perspective. Counsel for appellants stated, AThat=s it, your Honor.@

The record reflects that appellants did not challenge the constitutionality of section 123.002 of the property code. Appellants only asked the trial court to set parameters for the attorney general=s participation at trial, and the trial court granted appellants= request. The trial court then inquired whether there was anything else, and appellants stated they had no further requests.

Accordingly, we conclude that a constitutional challenge was not properly raised in the trial court, and a constitutional challenge not raised properly in the trial court is waived on appeal. See Wood v. Wood, 320 S.W.2d 807, 813 (Tex. 1959); Walker v. Employees Ret. Sys., 753 S.W.2d 796, 798 (Tex. App.BAustin 1988, writ denied). Appellants= first issue is overruled.

D. Improper Jury Argument

In their second issue, appellants contend that appellees= appeal to race and national origin during closing argument constituted improper jury argument that was incurable. Specifically, appellants challenge the reference to Carmen Morell Kenedy as a Agood old Mexican gal@ and Alittle Mexicanita@ and a reference to Ahalf-Mexicans.@

Incurable reversible error occurs when any attorney suggests, either openly or with subtlety and finesse, that a jury feel solidarity with or animus toward a litigant or a witness because of race or ethnicity. Tex. Employers Ins. Ass=n v. Guerrero, 800 S.W.2d 859, 866 (Tex. App.BSan Antonio 1990, writ denied); see Mission Res., Inc. v. Garza Energry Trust, 2005 Tex. App. LEXIS 3443, at *45-46 (Tex. App.BCorpus Christi May 5, 2005, no pet. h.) (Acourtroom strategies appealing to racial or ethnic biases are highly improper and unfairly prejudicial@). To prove incurable jury argument, the complaining party must show (1) improper argument was made; (2) that was not invited or provoked; (3) that was properly preserved at trial, such as by objection, motion to instruct or motion for mistrial; (4) error was not curable by instruction, prompt withdrawal of statement, or reprimand by judge; and (5) argument, by nature, degree, and extent, constituted reversible error based on examination of the entire record to determine the argument's probable effect on a material finding. See Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839‑40 (Tex. 1979); Tex. Employers Ins. Ass'n v. Puckett, 822 S.W.2d 133, 135 (Tex. App.BHouston [1st Dist.] 1991, writ denied).

Appellees argue that none of the statements made during closing argument constitute incurable jury argument and, moreover, any statements made by appellees were provoked by appellants= own appeal to racial prejudice that began during voir dire and continued throughout the trial. We agree.

During voir dire, appellants questioned jurors about Tejano history and referred to Dr. Andres Tijerina, a Tejano historian, who would testify at trial. During opening argument, appellants referred to Carmen as a poor Mexican girl who had her property stolen. During trial, appellants called Dr. Tijerina, who testified at length about the adverse treatment of people of Mexican descent by people of Anglo heritage and the unfair acquisition of land by Anglos from people of Mexican descent. Appellants also presented testimony regarding the use of the Texas Rangers by Captain King to murder people of Mexican descent, steal their land, and use lawyers to fix the documents. We conclude that such comments and evidence invited or provoked the challenged argument. Appellees= argument was nothing more than an appeal to the jury to disregard ethnicity, an issue first raised by appellants in this case.[2] Appellants second issue is overruled.



E. Disqualification of Defense Counsel

In their third issue, appellants contend the trial court erred by failing to disqualify attorney J. A. ATony@ Canales. Because appellants fail to (1) include any record references, (2) set forth the law regarding the disqualification of attorneys, and (3) provide any substantive analysis regarding this issue, we conclude this issue is waived. See Tex. R. App. P. 38.1(h) (AThe brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@). Appellants= third issue is overruled.

F. Jurisdiction

Despite their success in opposing appellees= plea to the jurisdiction, in their fourth issue, appellants request A[o]ut of an abundance of caution and to finally settle the parties= jurisdictional dispute . . . a ruling from this Court stating which court properly may exercise subject matter jurisdiction over this case. . . .@

In a plea to the jurisdiction, appellees argued that the trial court lacked jurisdiction because appellants= claims constituted an impermissible collateral attack on judgments issued by courts of competent jurisdiction. However, we conclude that appellants= petition was not an attack on these judgments. Appellants= petition did not contest the validity of Carmen=s or any other individual=s will, nor did it seek to set aside any orders. Rather, it sought to clarify what interest Carmen held in the capital stock of Kenedy Pasture Company. The admission of Carmen=s will to probate is irrelevant to appellants= right to recovery or to the issues presented by their petition.

Moreover, since appellants= petition did not seek to avoid the effect of the court=s order, the action is not a collateral attack. See Solomon, Lambert, Roth & Assoc. v. Kidd, 904 S.W.2d 896, 900 (Tex. App.BHouston [1st Dist.] 1995, no writ) (collateral attack is one that attempts to avoid effect of judgment in proceeding brought for some other purpose and seeks to show original judgment is void). Appellants= fourth issue is overruled.

G. Adverse Possession

In their fifth issue, appellants contend the jury=s favorable finding on appellees= affirmative defense of adverse possession establishes that appellants had a Apresent possessory interest in real property.@ Therefore, appellants argue, this Court should render judgment for appellants for no less than one-fourth of all property interests and proceeds claimed by appellees. Appellants make this argument even though the jury found unanimously in favor of appellees, answering Ano@ to all liability questions.

An affirmative defense is by its nature "one of confession and avoidance" which seeks to establish an independent reason why the plaintiff should not prevail. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex. 1996). However, establishing an affirmative defense in no way relieves the plaintiff from proving the elements of his claim. If we were to accept appellants= argument that a finding of an element of an affirmative defense avoiding liability implicitly establishes the liability the defense seeks to avoid, we believe it would nullify the function of affirmative defenses. Accordingly, appellants= fifth issue is overruled.

The judgment of the trial court is affirmed.



FEDERICO G. HINOJOSA

Justice



Memorandum Opinion delivered and filed this

the 16th day of June, 2005.

[1] At oral argument, appellants argued, for the first time, that the judgment does not adjudicate the rights of the Attorney General of the State of Texas. This argument was not briefed, and a new issue may not be presented for the first time at oral argument. See Tex. R. App. P. 38.1(e), 39.2; see also Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990); In the Interest of C.A.K., 155 S.W.3d 554, 562 n.5 (Tex. App.BSan Antonio 2004, pet. filed).



[2] During closing argument, appellees= counsel, J. A. ATony@ Canales, argued:



This is a classic lawsuit abuse case, let me tell you right now. I am telling you. It is B they are doing nothing else but trying to squeeze money out of us. Why? Because 105 years ago one of their relatives, one of their relatives was an heir? Because they came over from Mexico, all of a sudden, because the politics of South Texas has changed and we now have a majority of Hispanic jurors? Do you know, just because you happen to be of Mexican descent doesn=t mean you are going to rule for somebody just for that. We are Americans; right? You told me B you promised me when we started this case, you are going to call it the way it is. I said in the beginning, this is not a case about a bunch of Rangers coming and killing a bunch of Mexicans and taking their property away. Remember I said that? Is this what this case is about?



U suck tony the VENDIDO, you embarrass your self. Now how did Bryan smith afford you? Celis was charged the same? Momma knows all the secrets but she told many in http://www.blogger.com/post-create.g?blogID=32053574#

elements of justice in federal housing

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NUMBER 13-07-00277-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG CORPUS CHRISTI HOUSING AUTHORITY , Appellant, v. MARIA LARA, Appellee. On appeal from the County Court at Law No. 5 of Nueces County, Texas. O P I N I O N Before Chief Justice Valdez and Justices Garza and Benavides Opinion by Chief Justice Valdez Appellant, Corpus Christi Housing Authority, appeals from an order dismissing its forcible detainer action against appellee, Maria Lara, a housing authority tenant. (1) See Tex. Prop. Code Ann. § 24.002 (Vernon 2000). The housing authority terminated Lara's residential lease because she allegedly violated lease provisions, provided Lara with formal notice of the lease termination, and subsequently obtained an eviction judgment from a justice court. See id. § 24.004 (Vernon 2000). Lara appealed to a county court at law and moved to dismiss the housing authority's action because its notice was defective under controlling federal rules. The trial court granted Lara's dismissal motion. By two issues, the housing authority contends that the trial court erred by dismissing its suit because: (1) its notice was adequate; and (2) even if the notice was inadequate, Lara had actual notice of the lease termination. We reverse and remand. I. Background (2) Lara leased an apartment from the housing authority on November 27, 1995, and she has lived in a housing authority apartment ever since. The housing authority terminated Lara's lease on October 10, 2006 because Lara, her minor son, and her daughter allegedly engaged in criminal activity, which was a violation of the lease provisions and federal law. A. Alleged Criminal Activity The events underlying the lease termination occurred on the evenings of September 19 and October 2, 2006. On September 19, Officer J. Cantu received a call regarding a speeding motorcycle on the street in front of Lara's apartment. According to Officer Cantu's report, he witnessed a motorcycle traveling at a high rate of speed on a street where children were playing. Upon stopping the motorcycle, Officer Cantu questioned the driver, who identified himself as P.L., Lara's minor son. P.L. was not licensed to operate a motorcycle, and the motorcycle was not registered. Officer Cantu then made contact with Lara and her daughter, who "were in aggressive postures and were vulgar and vocal" to him according to his report. Officer Cantu's report noted that P.L. was "cited," but it did not specify what, if any infractions were included in the citation. Officer Cantu did not arrest anyone during his investigation. On October 2, Officer Casares was dispatched to investigate a reported disturbance at Lara's neighbor's apartment. Upon arriving, Officer Casares met with Rosario Navarro, Lara's neighbor. Navarro told Officer Casares that Lara threatened her because she would not provide false testimony about the incident that occurred on September 19. Navarro recounted to Officer Casares that one of Lara's male relatives approached her in an aggressive manner and pushed her away with his stomach. Navarro also advised Officer Casares that she had heard that Lara was making death threats against her. Navarro expressed to Officer Casares that she feared for her safety because of previous incidents and threats. B. Lease Termination and Eviction Proceedings The housing authority terminated Lara's lease when it received the reports from Officers Cantu and Casares. On October 10, 2006, the housing authority provided Lara with a "72-[H]our Notice to Terminate the Lease and Notice to Vacate," which claimed that Lara had violated lease provisions by engaging in prohibited conduct. The notice stated that Lara's lease would be terminated on October 13, 2006. It contained copies of the reports of Officers Cantu and Casares. The notice alleged that the following lease provisions were violated: To act and cause other person(s) who are on premises with Resident's consent to act in a manner which will not disturb residents' or neighbors' peaceful enjoyment of their accommodations and will be conducive to maintaining premises and the development in a decent, safe and sanitary condition. To refrain from illegal or other activity that impairs the physical or social environment of the development. To act in an orderly manner in dealings with [m]anagement and/or other residents and not to harass or retaliate against management and/or other residents in any way so long as management and/or other residents reasonably and peacefully exercise any right granted under the lease. To refrain from committing any act of physical violence to persons or property on or off premises. The notice warned Lara that she was not entitled to a grievance hearing, but it stated that: [T]his eviction procedure provides the opportunity for a hearing in [a] court that contains the basic elements of due process as defined by HUD [the United States Department of Housing and Urban Development] regulations. If you do not vacate on or before the expiration of 72 Hours from the date of this notice, October 13, 2006, legal action regarding eviction will be instituted for possession thereof. (emphasis in original). Lara refused to vacate the premises, and the housing authority filed suit for forcible detainer in a justice court. See Tex. Prop. Code Ann. §§ 24.002, 24.004. The justice court entered a judgment of eviction in favor of the housing authority. Lara appealed to a county court at law. The housing authority's petition in county court repeated the facts contained in the police reports. The housing authority alleged that Lara violated lease provisions because she: (1) did not abide by the admission and continued occupancy policy; (2) disturbed other residents' peaceful enjoyment of the premises; and (3) engaged in criminal activity that impaired the physical or social environment of the development. The housing authority prayed for possession of Lara's apartment, actual and exemplary damages, court costs, and reasonable attorney's fees. Lara answered the housing authority's petition with a general denial. She also filed special exceptions, a plea in abatement, and a motion to dismiss. In her dismissal motion, Lara posited that federal regulations mandated that the housing authority's lease termination notice "[s]pecify the judicial eviction procedure to be used," see 24 C.F.R. § 966.4(l)(3)(v)(B) (2008), and "[s]tate whether the eviction is for a criminal activity as described in § 966.51(a)(2)(i)(A) or for a drug-related criminal activity . . . ," see 24 C.F.R. § 966.4(l)(3)(v)(C) (West 2008). Lara argued that the notice she received did not contain either of the federally mandated statements. Lara asserted that the notice did not effectively terminate her right of possession because of its defects and that the eviction proceeding that the housing authority instituted in the justice court violated state law because it was instituted before an effective lease termination. See Tex. Prop. Code Ann. § 24.005(a)(1) (Vernon 2000) (providing that the landlord must give a tenant who defaults at least three days' written notice to vacate the premises before the landlord files a forcible detainer suit). The housing authority responded to Lara's dismissal motion by arguing that the notice sufficiently informed Lara of the alleged criminal activity and the judicial process. The housing authority further argued that even if the notice were defective, it did not deprive the trial court of subject-matter jurisdiction because the statute's purpose was informational rather than jurisdictional. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex. 2000); Helena Chem. Co. v. Wilkins, 47 S.W.3d 351, 358 (Tex. 2001). On February 22, 2007, the county court granted Lara's dismissal motion and issued findings of fact and conclusions of law. In its legal conclusions, the trial court found that the federal regulations at issue are subject to review for strict compliance and that failure to satisfy the notice requirements deprives the trial court of subject-matter jurisdiction. The housing authority filed a motion for new trial, which the trial court denied. This appeal ensued. II. Discussion By two issues, the housing authority complains that the trial court erred in dismissing its forcible detainer action. First, the housing authority claims that its notice complied with section 966.4(l)(3)(v)(B) of title 24 of the Code of Federal Regulations. See 24 C.F.R. § 966.4(l)(3)(v)(B). Second, the housing authority contends that even if the notice failed to comply with the applicable federal regulations, the trial court retained subject-matter jurisdiction because Lara had actual knowledge of the eviction proceeding; therefore, she was not harmed by any deficiency in the notice. A. Standard of Review In this case, the trial court concluded that it lacked subject-matter jurisdiction over the housing authority's eviction action. We review a trial court's ruling on subject-matter jurisdiction de novo. Tex. Natural Res. Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). We are also called upon to review how federal regulations affect this state's lease termination and eviction procedures. We construe the text of an administrative rule under the same principles we construe a statute. See, e.g., Phillips Petroleum Co. v. Texas Comm'n on Envtl. Quality, 121 S.W.3d 502, 507 (Tex. App.-Austin 2003, no pet.) (citing Tex. Gen. Indem. Co. v. Tex. Workers' Comp. Comm'n, 36 S.W.3d 635, 641 (Tex. App.-Austin 2000, no pet.)) (providing that state administrative rules and statutes are reviewed for intent). We will, therefore, ascertain and give effect to the rule drafter's intent for the provisions we are construing. See Tex. Gov't Code Ann. § 312.005 (Vernon 2005) (providing how a court should determine legislative intent). When a trial court issues findings of fact and conclusions of law, as the trial court did in this case, we may review the findings of fact for legal and factual sufficiency and review the conclusions of law de novo. Silbaugh v. Ramirez, 126 S.W.3d 88, 94 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002)). B. Notice By its first issue, the housing authority asserts that the trial court erred in concluding that the notice was insufficient. Lara moved for dismissal on the ground that the termination notice did not specify the judicial procedure to be used or specify the kind of criminal activity that Lara was alleged to have engaged in. The relevant federal regulation provides that when the public housing authority: is not required to afford the tenant the opportunity for a hearing under the PHA administrative grievance procedure for a grievance concerning the lease termination (see § 966.51(a)(2)), and the PHA has decided to exclude such grievance from the PHA grievance procedure, the notice of lease termination under paragraph (l)(3)(i) of this section shall: specify the judicial eviction procedure to be used by the PHA for eviction of the tenant, and state that HUD has determined that this eviction procedure provides the opportunity for a hearing in court that contains the basic elements of due process as defined in HUD regulations. 24 C.F.R. § 966.4(l)(3)(v)(B) (emphasis added). The housing authority contends that Texas has only one judicial eviction procedure, and, therefore, its generic notice was sufficient. We disagree. Under our rules of statutory construction, "shall" is generally construed to be mandatory, but may be directory when this interpretation is most consistent with the Legislature's intent. See Tex. Gov't Code Ann. § 311.016 (Vernon 1998); Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996). To determine whether the Legislature intended a provision to be mandatory or directory, we consider the plain meaning of the words used, as well as the entire act, its nature and object, and the consequences that would follow from each construction. Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999); Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (Tex. 1956). Even if a statutory requirement is mandatory, this does not mean that compliance is necessarily jurisdictional. Sinclair, 984 S.W.2d at 961; Hines v. Hash, 843 S.W.2d 464, 467 (Tex. 1992); Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex. 1983). When a statute is silent about the consequences of noncompliance, we look to the statute's purpose to determine the proper consequences. Sinclair, 984 S.W.2d at 961; Schepps, 652 S.W.2d at 937-38; Chisholm, 287 S.W.2d at 945. Title 24 of the Code of Federal Regulations regulates public housing authorities. The applicable section states that a notice of lease termination "shall specify the judicial eviction procedure to be used." See 24 C.F.R. § 966.4(l)(3)(v)(B) (emphasis added). We conclude that the plain meaning, nature, and object of this phrase is to mandate that a housing authority notify a tenant of the judicial eviction procedure to be used. Part of the purpose of Title 24 is to afford adequate due process to tenants. For example, tenants are entitled to a grievance hearing before judicial eviction unless certain exceptions apply. See 24 C.F.R. § 966.51(a)(1) (2008). (3) Even when an exception applies and a grievance hearing is not required, the regulations mandate that the judicial procedure used to evict a tenant must possess the basic elements of due process. 24 C.F.R. § 966.4(1)(3)(v)(B). In this case, reading "shall" as directory instead of mandatory would dilute the procedural safeguards promulgated by the Department of Housing and Urban Development. The notice in the instant case did not specify which court would hear the eviction action. In fact, it was so deficient that it did not even attempt to parrot the text of the regulation. See, e.g., Edgecomb v. Hous. Auth. of Vernon, 824 F.Supp. 312, 314 (D. Conn. 1993) (providing that a notice which merely parrots the broad language of the regulations is insufficient). Therefore, the housing authority's first issue is overruled. C. Subject-Matter Jurisdiction By its second issue, the housing authority argues that the trial court erred in dismissing its detainer action because Lara was not harmed by any alleged insufficiency in the notice. The housing authority argues that we should follow the First Court of Appeals, which has held that notice defects in housing authority cases are subject to a harm analysis because protections in the federal regulations exist "to insure that the tenant is adequately informed of the nature of the evidence against him so that he can effectively rebut that evidence" rather than to create jurisdiction. See Nealy v. Southlawn Palms Apartments, 196 S.W.3d 386, 392 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (citing Escalera v. N.Y. City Hous. Auth., 425 F.2d 853, 862 (2d Cir. 1970)). Lara counters by arguing that the notice requirements vest her with a fundamental due process right that is jurisdictional. She contends that this "jurisdictional right" is not subject to a harm analysis. In essence, Lara asks us to create a different rule than the one crafted by in Nealy, but her only rationale is that she does not agree with the rule that is already on the books. We are persuaded by neither the housing authority's nor Lara's arguments. Instead, we look to our own cases for guidance. In Hinojosa, this Court was confronted with a similar notice argument. See Hinojosa v. Hous. Auth. of Corpus Christi, 896 S.W.2d 833 (Tex. App.-Corpus Christi 1995, writ dism'd w.o.j.). The housing authority in Hinojosa issued a defective notice, which the tenant asserted in county court warranted a dismissal. Id. at 385. The housing authority, however, moved to abate its detainer action so that it could cure the defects. Id. The county court abated the proceeding, and the case was eventually reinstated and tried to a jury on the merits. Id. On appeal, the tenant argued that the trial court erred by not dismissing the action. Id. at 836. We found that the "[i]n many areas of the law, abatement is appropriate when prerequisites are missing," and we held that the trial court did not err in abating rather than dismissing the case. Id. at 836-37. Implicit in the Hinojosa case is the notion that the notice requirements contained in the applicable federal regulations are not jurisdictional. See id.; see also Torres v. Corpus Christi Hous. Auth., No. 13-04-591-CV, 2006 Tex. App. LEXIS 6872, *4-5 (Tex. App.-Corpus Christi 2006, no pet.) (mem. op.) (concluding that alleged deficiencies in a housing authority's notice to terminate lease must be raised before the trial court or the complaint is waived). The trial court in this case, therefore, erred in dismissing the housing authority's detainer action. Instead, the trial court should have abated the housing authority's action so that it could provide Lara with the federally mandated notice. See Hinojosa, 896 S.W.2d at 836. Therefore, the housing authority's second issue is sustained in part. III. Conclusion The trial court's dismissal order is reversed, and the case remanded back to the trial court with instructions to abate the underlying action until sufficient notice is provided. ________________________ ROGELIO VALDEZ Chief Justice Opinion delivered and filed this the 17th day of July, 2008. 1. The Corpus Christi Housing Authority is a federally subsidized agency, and it is regulated by title 42, Chapter 8 of the United States Code and title 24 of the Code of Federal Regulations. See 42 U.S.C. §§ 1401-1440; 24 C.F.R. §§ 0-4199. 2. The trial court granted Lara's dismissal motion on the pleadings. It, therefore, did not hear live testimony, and consequently, this case is submitted without a reporter's record. See Tex. R. App. P. 34.1 (providing that the appellate record consists of the clerk's record, and if necessary to the appeal, the reporter's record). We take note of the allegations of criminal activity from police reports that the housing authority subjoined to the termination notice. 3. Those exceptions include: (A) any criminal activity that threatens the health, safety or right to peaceful enjoyment of the premises of other residents or employees of the PHA; (B) any violent or drug-related criminal activity on or off such premises; or (c) any criminal activity that resulted in felony conviction of a household member. 24 C.F.R. § 966.51(a)(2)(i)(A)-(B) (2008).

Why Corpus Christi needs a Law School..........

Because without a lawyer, a person untrained in the law has no idea what his rights are or how to assert them.......


Thursday, April 17, 2008

Thursday, April 17, 2008
Does The JP Court Conclude, The Prosecution of Unrepresented 12 Year Olds Is In The interests of Justice or Will The Court Require Representation and Appoint Counsel.


Art. 1.051. RIGHT TO REPRESENTATION BY COUNSEL.


(c) An indigent defendant is entitled to have an attorney
appointed to represent him in any adversary judicial proceeding
that may result in punishment by confinement and in any other
criminal proceeding if the court concludes that the interests of
justice require representation. Except as otherwise provided by
this subsection, if an indigent defendant is entitled to and
requests appointed counsel and if adversarial judicial proceedings
have been initiated against the defendant, a court or the courts'
designee authorized under Article 26.04 to appoint counsel for
indigent defendants in the county shall appoint counsel as soon as
possible, but not later than the end of the third working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel. In a county with a
population of 250,000 or more, the court or the courts' designee
shall appoint counsel as required by this subsection as soon as
possible, but not later than the end of the first working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel.
Posted by The Advocate at 3:03 PM
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Jules: Wanna know what I'm buyin' Ringo?
Pumpkin: What?
Jules: Your life. I'm givin' you that money so I don't hafta kill your ass. You read the Bible?
Pumpkin: Not regularly.
Jules: There's a passage I got memorized. Ezekiel 25:17. The path of the righteous man is beset on all sides by the inequities of the selfish and the tyranny of evil men. Blessed is he who, in the name of charity and good will, shepherds the weak through the valley of the darkness. For he is truly his brother's keeper and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers. And you will know I am the Lord when I lay my vengeance upon you. I been sayin' that shit for years. And if you ever heard it, it meant your ass. I never really questioned what it meant. I thought it was just a cold-blooded thing to say to a motherfucker before you popped a cap in his ass. But I saw some shit this mornin' made me think twice. Now I'm thinkin': it could mean you're the evil man. And I'm the righteous man. And Mr. 9mm here, he's the shepherd protecting my righteous ass in the valley of darkness. Or it could be you're the righteous man and I'm the shepherd and it's the world that's evil and selfish. I'd like that. But that shit ain't the truth. The truth is you're the weak. And I'm the tyranny of evil men. But I'm tryin', Ringo. I'm tryin' real hard to be a shepherd.

What does "reasonable" mean? Should counsel's performance be judged by reference to a reasonable paid attorney or a reasonable appointed one?

Dissenting opinion

Justice Marshall dissented from the majority's holding. He objected that the Court's newly crafted test was unlikely to "improve the adjudication of Sixth Amendment claims." In his view, the performance standard was "so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts." What does "reasonable" mean? Should counsel's performance be judged by reference to a reasonable paid attorney or a reasonable appointed one? After all, Marshall pointed out, "a person of means, by selecting a lawyer and paying him enough to ensure he prepares thoroughly, usually can obtain better representation than that available to an indigent defendant, who must rely on appointed counsel, who, in turn, has limited time and resources to devote to a given case." Marshall also disputed that counsel's performance must be given especially wide latitude, since "much of the work involved in preparing for trial, applying for bail, conferring with one's client, making timely objections to significant, arguably erroneous rulings of the trial judge, and filing a notice of appeal if there are colorable grounds therefor could profitably be made the subject of uniform standards."

Marshall also disputed that it should be made the defendant's burden to show prejudice from an allegedly incompetent attorney's performance. Nor should prejudice be measured solely with respect to the fairness of the outcome of the trial; the fairness of the procedure matters just as much. "The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney. I cannot agree."

Marshall worried that the Court's admonition to future judges, presented with ineffective assistance claims should defer to counsel's strategic judgments, placed too heavy a burden on defendants making such claims.

Finally, Marshall took issue with the Court's conclusion that the same standard for ineffectiveness should apply in a capital sentencing proceeding that applies at an ordinary trial. The capital sentencing process is intended to be especially reliable, and "reliability in the imposition of the death sentence can be approximated only if the sentencer is fully informed of all possible relevant information about the individual defendant whose fate it must determine." The defendant's attorney is responsible for doing this. For this reason, and in light of the "severity and irrevocability of the sanction at stake," the standard for effective assistance in capital sentencing proceedings must be especially stringent. Accordingly, Marshall believed that a person on death row seeking relief from his death sentence on grounds of ineffective assistance should not have to show a reasonable probability that he would not have received a death sentence if counsel had presented more mitigating evidence. Because it was clear that Washington's attorney had failed to investigate and then present large amounts of information to the sentencing judge, Marshall concluded that Washington's lawyer was ineffective.

[edit] See also

AGIF News Bulletin~April 1955~ AN ARTICLE ENTITLED "EDGAR TAKEN TO FEDERAL COURT ON SEGREGATION CASES"

EDGAR TAKEN TO FEDERAL COURT ON SEGREGATION CASES

Commissioner of Education J. W. Edgar was made a defendant in two school segregation suits filed in Federal District Courts in Austin and Corpus Christi on April 19 and 23 respectively.

In both suits Edgar was made a defendant respectively in conjunction with the trustees of the Carrizo Springs Independent School District and those of the Kingsville Independent School District.

In both suits Edgar is charged with having been advised that segregation of children of Mexican descent existed and with failure to take any action. Consequently, by failing to discharge his duties under the law Edgar is charged with condoning, aiding, and abetting the two school districts in the violation of the law.

The petition also charged that Edgar participated in the customs, usages, and practices in Carrizo Springs and in Kingsville which resulted in segregation, and that Edgar did this "in utter disregard, violation and contempt of a permanent injunction granted against his predecessor in office, the State Superintendent of public Information, and equally applicable to Edgar."

The Carrizo Springs case involves segregation of children of Mexican descent in the first three grades. This case was filed in Austin by Attorney Chris Aldrete of Del Rio, former state chairman of the American GI Forum of Texas.

While Edgar has not held a hearing on the Carrizo case, he was advised last fall by Aldrete of the practice of segregation. subsequently a member of Edgar's own staff investigated the situation and reported to Edgar that he had found that segregation did exist.

The Kingsville case was appealed and heard by Edgar earlier this year. It involves gerrymandered school zones laid down for the purpose of getting a segregated junior high school in Kingsville.

Under the excuse that the stenographer who took the proceedings has not been able to transcribe the record, Edgar has ignored the pleas of Attorneys Gus C. Garcia and Homer M. Lopez of Kingsville for a ruling on the case.

The Kingsville case was filed in Federal Court in Corpus Christi by Attorneys Garcia and Lopez.

Both cases have the backing and sponsorship of the American GI Forum of Texas.

Plaintiffs in the Carrizo case include ten school children who are represented by their respective parents for purposes of the suit. Plaintiffs in the Kingsville case include five school children represented in the same fashion.

To be Continued.......

This researcher has acquired exclusive access to a private archive who wishes to remain anonymous, for teens then and especially now .........

Teenager's Lament
Originally published in April 1955 issue of the American GI Forum News Bulletin
Austin, Texas.

It was so short a time ago I was a young Lad. The world was a place of intrigue and adventure. I was going to do great things as a man. School held for me a library of knowledge and adventure and I was sure that behind each book case I would slowly step into another yardstick of manhood. My home was a place of love and understanding. A stronghold against the evils of the world. I was so ambitious. But alas! I was a dreamer. Today I am a youth, tomorrow a man. Yet I am so lost in a community of adults. I have lost sight of my goal. I have no place to go. School occupies so few of my hours. my community has failed me as a youth. I must wander in the streets as there is no recreation hall where I may meet my friends. there are no jobs for me. First because of my lack of experience; second because I am only a youth.

The recreation Hall for youth would teach me a trade. I am too big for playing in the park, I am too old for swimming in a park pool. What can I do? If I am caught wandering I am a vagrant;if I sleep, I am lazy. Can you help me? If I have no car, I am a square, yet I am a solid youth. Won't you give me a chance?

I am the one who will help you run your community. Won't you give me a back-log of knowledge so that I may do the job right? Won't you help me become a responsible citizen so that I too can be proud? Won't you give me a fulfilled dream to hand to my children?

Please, won't you help? I am only a youth and the world is before me.

~~~~~~~This short article was submitted by Mrs. Ann Dominguez of Pueblo, Colorado, who is herself an ex-teenager. It is reprinted to show the value of the Junior GI Forums in giving young people the backlog of knowledge which will prepare them for adulthood.

An opportunity is thus a type of liberty or freedom for it involves the absence of prohibitions or obstacles limiting what agents may or can do.......

ISEC 2005

Inclusive and Supportive Education Congress
International Special Education Conference
Inclusion: Celebrating Diversity?

1st - 4th August 2005. Glasgow, Scotland
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Equality of Opportunity as a Rationale for Inclusive Education

Dr. Christian Liesen
Institute for Special Education – University of Zurich, Switzerland
Hirschengraben 48, CH-8001 Zurich
liesen@isp.unizh.ch


This paper seeks to discuss whether the principle of equality of opportunity could serve as a rationale for inclusive education. The first section aims at positioning the topic within the inclusive education discourse, narrowing down the scope. The second section presents a brief analysis of the notion of ‘equality of opportunity’ as well as some of its implications, while the third section addresses the question of how we are to know whether opportunities are equal. The last section seeks to draw some conclusions with respect to inclusive education. – It should be pointed out that the paper is solely meant for discussion.

1. The case for inclusive education: reasons and rationales

Many arguments have been brought forward to strengthen the case for inclusive education. Yet it is not always easy to follow the lines of reasoning, and little reflection is needed to notice certain contradictions and ambiguities and a good deal of eclecticism in the literature. The crux is, as Alan Dyson observed, that

(i)nclusion is different from many other fields of inquiry in that it is premised on an answer rather than a question. That ‘answer’, of course, is that inclusive education is superior in one or other way to non-inclusive education. The strength in this position is that it enables a relatively young field to define and advance itself in the face of considerable hostility. (…) The danger, however, is that it becomes all too easy for thinking on inclusion to descend from analysis to polemic, and for certain values and beliefs to become ossified, ultimately to the detriment of those marginalized groups on whose interests the inclusion movement claims to act. ( Dyson, 1999, p. 43f. )

Dyson has suggested to distinguish between two different but intersecting dimensions of the inclusive education movement: One is primarily concerned with providing a rationale for inclusion, whereas the other concentrates on the realisation of inclusion. Each dimension can again be subdivided into different discourses as follows. A rationale for inclusive education is either sought with reference to rights and social justice or by rigorously questioning the efficacy of special education (while claiming the superiority of inclusive education). The realisation of inclusion is frequently discussed either with respect to the political struggle for the implementation of inclusive education, or it is concerned with what inclusive education looks like inpractice (cf. Dyson, 1999, pp. 38-43 ). It is safe to say that these two dimensions / four discourses deliver a felicitous depiction of the inclusion debate’s crucial building blocks.

This paper is concerned with adumbrating the question whether equality of opportunity could serve as a rationale for inclusive education. It belongs, hence, in the context of the rights and social justice discourse. Concededly, the most important (and most interesting) question would actually be how the different building blocks interrelate, or ought to interact, in order to achieve progress in the field. Dyson does offer some very sensible and perspicacious suggestions on this (cf. ibid., pp. 44-48). The line of reasoning chosen here, by contrast, will allow only for a few rather cautious remarks in the final part of the paper. Proposed is the idea of merging, in a way, ethical considerations and empirical research in order to substantiate the case for inclusive education. As a consequence, some fundamental policy issues will emerge, alongside certain difficulties inherent to the rhetoric of inclusion.

2. Equality of opportunity

Let us shed, as a first step, some light on the principle of equality of opportunity. Peter Westen (1990) has presented an illuminating formal analysis. He states that opportunity

designates both a single concept and a multiplicity of conceptions. Each opportunity is like every other in that all opportunities reflect a certain formal relationship among agents, obstacles, and goals; but each opportunity also differs from other opportunities in that each is a relationship among particular agents, particular obstacles, and particular goals. ( Westen, 1990 , p. 171, italics added)

This may seem simple enough. Nevertheless, an important point with respect to the rhetoric of opportunity is already implied here: When opportunities are stated as a reason for, say, political action, speakers often do not specify the particular agents, obstacles, and/or goals they have in mind. Such a speech may still meet with approval although the underlying conceptions of speaker and listener may turn out to be radically different on closer examination. Rhetorical difficulties like these should be kept in mind.

Equal opportunities do not lead to equal outcomes. On the contrary, equal opportunities lead to inequality. There is sense in which a strong commitment to equality of opportunity is incompatible with equality of outcomes, and a society that aims at equalising opportunity is very different from a society that aims at equalising outcomes. The reason is that

(a)n ‘opportunity’ to attain a goal is a chance to attain a goal, not necessarily a guarantee of attaining it. Insofar as people have opportunities that are less than guarantees of what they wish, some of them will inevitably attain goals that others fail to attain. To create equal opportunity, therefore, is virtually always to allow people ‘to become unequal by competing against [their] fellows.’ (Westen, 1990, p. 176f.)

That equality of opportunity leads to inequality has some deeper implications. It can be argued that opportunities express and deliver a certain kind of liberty or freedom which is essential for society and which can not be achieved otherwise. Equality of opportunity is indispensable. T.D. Campbell enunciates the point as follows:

An opportunity may be said to occur when an agent is in a situation in which he may choose whether or not to perform some effortful act which is considered to be desirable in itself or as means to the attainment of some goal which is considered to be desirable. An opportunity is thus a type of liberty or freedom for it involves the absence of prohibitions or obstacles limiting what agents may or can do or acquire. […] (A)n opportunity is something which the agent may or may not take advantage of depending on whether or not he chooses to do so. One of the points about describing a situation as an opportunity is that this indicates that the outcome of the situation depends in part on the choices made by the person who has the opportunity. Opportunities can always be missed or passed up, neglected or rejected. Of course I may be forced to have an opportunity (as when I was compelled to go to school) but it is not an opportunity which I am forced to have if the attainment of the desired goal does not depend to some extent on my choices, that is, for instance, if whether or not I become educated as distinct from go to school, does not depend to some extent on my own volitions. If education as such could be compelled then we would not speak of educational opportunity, at least not in those cases where it is compelled. ( Campbell, 1975, p. 51/54, italics added )

It is true, of course, that not all opportunities are of particular concern to us. People do not care for all kinds of opportunities; they care first and foremost for educational and occupational opportunities. A ‘fair’ or ‘equal’ distribution of opportunities is relevant and vital especially in these domains. What comes into play here, then, is that equality of opportunity must be seen as a matter of distributive justice. A just society will usually seek to equalise opportunities in the sense of distributing them fair an equal. It is worth noticing, however, that opportunities can not be created or distributed at will. Westen notes that

creating one opportunity may mean denying another. Thus, whenever a society creates an opportunity by removing an obstacle that affects people differentially, it denies people the opportunity to benefit from the differential. And, whenever a society creates an opportunity by removing human obstacles, it denies people the opportunity to exploit those obstacles. This does not mean that societies should refrain from creating opportunities. It means, rather, that … the significant question for opportunity is not ‘Whether opportunity?’ but ‘Which opportunities?’ (Westen, 1990, p. 171)

Consequently and in most cases, with equality of opportunity as a rationale for inclusive education, apparently interests will have to be balanced. The interests of those who are excluded from participating effectively in society – of which the education system forms an essential part – will have to be weighed against the interests of those who are successful within such a framework and ‘benefit from the given differential’. A society will therefore have to deliberate about equalising opportunities, which is, ultimately, a democratic process (belonging to the realisation dimension).

It should be emphasized, however, that when a mismatch between a person’s situation and what may be called the dominant cooperative framework of society occurs, the results may be devastating. Being excluded from participating in the most basic interactions and cooperation of society strongly calls for compensation and adjustment. On this basic level, the interest in inclusion will by and large outweigh the interests of those who may be deprived of being as successful as they could be otherwise. If people are denied basic opportunities in this sense, they will normally be in the position of making strong claims in the cause of justice. But the question of particular interest is then, of course, ‘How do we know they are denied these opportunities?’, or more general, ‘How do we know whether opportunities are equal or not?’, e.g. in an education system.

3. How do we know when opportunities are equal?

We have seen so far that we should focus our attention on educational and occupational opportunities; that opportunities secure individual liberty and freedom and lead, consequently, to inequalities; and that equality of opportunity is a matter of distributive justice and may result in strong claims of justice in at least some cases. But on what grounds is it legitimate to judge whether opportunities are equal or not? How do we assess and evaluate equality of opportunity, especially with respect to inclusive education?

There is a substantive answer to this question. Any inquiry into whether opportunities in a given society are equal or not – or within parts of a society, such as the education system – will have to start from ascertainable inequalities under the prevailing circumstances. These inequalities will have to be sufficiently and adequately described in a way that most people would agree is accurate. (We will look at an example in a moment.)

The crucial point to be addressed will be whether or not the portrayed inequalities indicate that the principle of equality of opportunity has been violated. Onora O’Neill (1977) has argued that two different positions suggest themselves. One may be called the ‘formal’ (or ‘liberal’) position. It stresses that inequalities are due to the fact that people may choose to or refrain from taking advantage of the opportunities at hand. The members of society may be extremely unequal in educational and occupational attainment, but if so, it must be the result of the varying capacities, volitions, and desires of those to whom the respective selection procedures are applied. Once the distributive and selective procedures are fair, there is nothing left to complain about. As O’Neill points out,

(s)uch an ‘equal-opportunity society’ would … not be characterized by equal incomes or equal property holdings or equal standards of living or of education. (…) Equal opportunity in the formal sense does not ensure equal success or equal health or equal status, but only the fair application of the rules governing the pursuit of such goods. This is the equality of opportunity of … a society in which there are winners and losers, and in which winning appears often as merited by the winners and losing as deserved by the losers – for did they not all have equal opportunity to win? ( O'Neill, 1977 , p. 180)

The other position may be called the ‘substantive’ (or ‘egalitarian’) position. It stresses that inequalities must not indicate a disproportionate success of certain social groups in a society. Instead, all major social groups – but not all individuals – must fare equally well.

An equal-opportunity society on the substantive view is one in which the success rates of all major social groups are the same. (…) A strong commitment to substantive equality of opportunity demands that any under-representation of some group in some line of employment / income group / educational group be due solely to the unmanipulated choice of members of that group. (…) Substantively equal opportunity is achieved when the success rates of certain major social groups – such as the two sexes, various ethnic groups and perhaps various age groups – are equalized. It is not breached when there are large differences between the most- and least-successful members of these groups, provided that there are equally large differences between the most- and least-successful members of other major social groups. It is not true in a society which aims at substantively equal opportunities that all individuals have the same chance of any given type of success. For individuals are all members of many differently defined groups, and substantive equality of opportunity seeks only to equalize their chances qua members of certain major social groups; it seeks to eliminate inter-group differences, but not to alter intra-group ones. ( O'Neill, 1977 , p. 181-83)

This position is ready to acknowledge that people’s perspectives in life are not exclusively ascribable to a person’s capacities, volitions, and desires. As a matter of fact, there are disadvantages which are undeserved and beyond individual control, such as being disabled or of old age. The ‘substantive’ position is concerned with identifying adequate characteristics of major social groups to enable sound comparisons and call for compensation where needed.

To illustrate, a good example are some results from the PISA study (cf. www.pisa.oecd.org). The OECD Programme for International Student Assessment (PISA) is an internationally standardised assessment that was jointly developed by the participating countries (30 OECD member states plus 13 associated countries in the first assessment in 2000; at least 58 countries will participate in the next assessment in 2006). PISA claims to assess “how far students near the end of compulsory education have acquired some of the knowledge and skills that are essential for full participation in society.” The idea is to give information about the capacities and the potential of education systems. Does an education system prepare students well?

It is only recently that OECD has published some findings concerning equity and quality in the light of the PISA 2000 results. The report states that

(i)n sum, PISA 2000 results show that students in integrated education systems perform, on average, better than those in selective education systems, and that their educational performance is less dependent on their background. Many factors may be at play here. A higher average performance suggests that the more heterogeneous student groups or classes in integrated education systems could have a beneficial effect for the lower-performing students. Also, the flexibility offered by an integrated system may allow students to improve their performance while keeping their academic options open. ( OECD, 2005 , p. 89)

In the main findings section, the report reads:

A striking result was the advantage that comprehensive education systems appear to have in terms of student performance (quality). PISA 2000 results suggest that the performance of students enrolled in comprehensive education systems is less dependent on their socio-economic background. ( ibid., p. 94)

From the perspective of equality of opportunity, it is not so much the aspect of performance (‘quality’) that is of interest here but rather the aspect of uncoupling socio-economic background and performance (‘equity’). There are some countries – Germany is a sad example – in which the social background of a student has a very strong impact (‘predictive power’) on student performance. This means, to put the matter bluntly, that it is not a student’s capacity to perform that determines what he or she will achieve, but first and foremost his or her socio-economic background. The result is that students with a low social background are manifestly underrepresented on the higher levels of the education system.

The ‘liberal’ position has no option but to ascribe this situation to individual factors, say, motivation or ability. This is highly implausible, at least in the case of countries that have had to experience a rude awakening by PISA, such as Germany or Switzerland. ‘Substantive’ equality of opportunity, on the other hand, is precisely concerned with cases like these: Members of a major social group – i.e., students with a lower socio-economic background – are disadvantaged due to factors that are undeserved and beyond individual control, while other groups display disproportionate success. This does call for an equalisation of opportunities.



4. Equality of opportunity and inclusive education: some considerations

In the final part of this paper, I would like to draw some conclusions concerning equality of opportunity and inclusive education.

First, I think that equality of opportunity can serve as a rationale for inclusive education if and only if inclusion is understood in the sense of equity. This would mean to adopt the substantive view of equal opportunity, and will require to provide empirical evidence to show that a major social group of society is indeed undeservedly disadvantaged. It would also mean to suggest that some form of inclusive education is the right course of action to take.

Second, to provide a rationale for inclusive education is obviously very different from the realisation of inclusive education. It should be kept in mind that other interests will have to be allowed for as well and that there might be considerable opposition, even if the claims could compellingly be shown to be legitimate ones. This should not belie the fact, however, that being in the position to provide a rationale for inclusive education is very different from simply claiming that it is right. It is precisely because different and mutually incompatible interests are involved that arguments have to be provided (and there are some highly interesting contributions in this kind of spirit, for example Booth & Ainscow, 1998; Pijl, Meijer & Hegarty, 1997; Vitello & Mithaug, 1998 ).

Third, if this idea bears any validity at all, it has to be pointed out that the rhetoric of inclusion tends to disguise some fundamental points here, especially in relation to policy. For example, the rhetoric of ‘celebrating diversity’ tends to downplay the fact that different legitimate interests are involved and have to be balanced. Cause for concern gives also the factor that any policy perspective will always have to operate along the lines of defining social groups. It may come as a surprise that this is not only due to administrative reasons (cf. Dever, 1990 ) but is also demanded from an ethically informed perspective. There are no claims of distributive justice – and hence no rationale for inclusive education – without the construction of social groups. The talk of heterogeneity isn’t much help in these matters, the more so as it quite often blurs who is thought to be the target group of inclusion within the inclusive education discourse.

Fourth, it will be as unavoidable as it is fruitful to strive to merge ethical considerations and empirical research in some respect. The idea behind this is that an empirical basis is indispensable in order to substantiate claims, while at the same time ethical considerations are indispensable to provide a sensible interpretative framework for empirical findings and to draw sound conclusions. One main feature of these arguments, reasons and rationales is that they must be eligible to convince others on grounds they can not reasonably reject – to convincingly argue the case.

Fifth, there seems to be a broad consensus that inclusive education has to be conceptualised as a general education topic, not as another issue of special education. Equality of opportunity might help us to engross the implications of what this actually means. It might help us to see the big picture.

Sixth, it has to be pointed out that there is not one choice in these matters, but many. There is no unequivocal course of action to take. Dyson’s proposal to talk not of inclusion, but of inclusions, and to seek not a single form but a wide range of inclusive practice and organisation (1999, p. 46), deserves a good deal more of attention. Moreover, I think the field of special education should be very serious about Seamus Hegarty’s remark that inclusive education has to be about changing and modifying system in a way that preserves all its strengths (cf. Hegarty, 1998 , p. 156).

References

BOOTH T. & AINSCOW M. (eds.) (1998) From Them to Us. An International Study of Inclusion in Education. London: Routledge.

CAMPBELL T.D. (1975) Equality of Opportunity. Proceedings of the Aristotelian Society 75, 51-68.

DEVER R.B. (1990) Defining Mental Retardation from an Instructional Perspective. Mental Retardation 28 (3), 147-53.

DYSON A. (1999) Inclusion and Inclusions: Theories and Discourses in Inclusive Education. IN Daniels H. & Garner P. (eds.) World Yearbook of Education 1999: Inclusive Education. London: Kogan, 36-53.

HEGARTY S. (1998) Challenges to Inclusive Education: A European Perspective. IN Vitello S. & Mithaug D.E. (eds.) Inclusive Schooling: National and International Perspectives. Mahwah, NJ: Erlbaum, 151-65.

O'NEILL O. (1977) How Do We Know When Opportunities Are Equal? IN Vetterling-Braggin M., Elliston F.A. & English J. (eds.) Feminism and Philosophy. Totowa, NJ: Rowman & Littlefield, 177-89.

OECD (2005) School Factors Related to Quality and Equity. Results from Pisa 2000. Paris: OECD.

PIJL S.J., MEIJER C. & HEGARTY S. (eds.) (1997) Inclusive Education: A Global Agenda. London: Routledge.

VITELLO S. & MITHAUG D.E. (eds.) (1998) Inclusive Schooling. National and International Perspectives. Mahwah, NJ: Erlbaum.

WESTEN P. (1990) Speaking of Equality. An Analysis of the Rhetorical Force of Equality in Moral and Legal Discourse. Princeton, N.J.: Princeton University Press.

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