But tht is the point you are missing: the rules didn’t put her on an equal playing field. No matter what the rules stated, she was an an uneven one, with some advantages no mainline student could match. She had an advantage from day one, since she could avoid the practical problems associated with getting that GPA over 4.00. The only party with a right to be aggrieved is the one who was denied the right to be valedictorian. He, after al, played by the rules, got superior scores, and was denied his due because an outside party got to play the different game.
Regardless, your petty legalisms do not make the case. She simply has no standing to sue, and the judge fouled up big time.
Pray tell, why is it that rules being applied to situations they were not designed to be applied to “irrelevant”?
Except for the class in question, gym, which is mandatory for all students who don’t have an exemption (like Hornstine) and is weighted less GPA-wise than any of the classes she took.
Mojo: So, essentially, she took another class in place of gym and that class was more academically difficult than gym; therefore, it should’ve had more bearing on her overall GPA. Isn’t that the plaintiff’s point?
But the other candidates could not opt to take a more difficult class. They were required to take gym. As a result, it was impossible for them to get a GPA as high as hers. That’s not exactly a level playing field.
Ok, so you are saying that there is harm in being denied something (the title of sole valedictorian) when one complies with and fulfills all that is necessary as dictated by the rules to recieve that something. I paraphrased that down to that there is harm in being denied something. So your hair-splitting is that the harm only results when there were rules in place beforehand?
Fine, whatever. You still, after all this, have not answered the simple question: What is the harm?
Here is a direct quote from what you said above: “the harm is being denied the title of sole valedictorian when she complied with and fulfilled all that is necessary as dictated by the rules to receive the title of sole valedictorian.” Sorry, but there is no harm there. Being denied something, whether or not there were rules in place, whether or not one complied fully with those rules, does not constitute harm. How was the girl harmed? How was she hurt? Again and again myself and others have asked this question and you fail over and over to answer it.
Harm does not come from “being denied the title of sole valedictorian when she complied with and fulfilled all that is necessary as dictated by the rules to receive the title of sole valedictorian.” Harm may or may not come as a result of that. Please tell is the harm that befalls this girls as a result of “being denied the title of sole valedictorian when she complied with and fulfilled all that is necessary as dictated by the rules to receive the title of sole valedictorian.”
Stating that you know what you’re talking about is worth the electrons it’s displayed on.
Again, none of this is “harm” by any definition of the word.
Why not?
Do you think you will ever understand the question “What is the harm that has been done to this girl?” Will you ever grasp the distinction between “being denied the title of sole valedictorian when she complied with and fulfilled all that is necessary as dictated by the rules to receive the title of sole valedictorian” and any harm that results from that?
How, exactly, does one “give any credible position” on anything? I am familiar with taking a position, but my poor non-legally-trained mind doesn’t quite understand what “give a position” could mean.
In any case, whatever you may have meant by that statement, I don’t believe that I have ever claimed particular knowledge of the law in this thread. I’ve had two main points. 1) that the girl is a self-centered, spoiled little brat, and 2) that the fair thing is to share the honor. I don’t give a rat’s ass what the rules said in the beginning about what it takes to be named valedictorian.
My view (which Jimmy1’s legal mind is unable to grasp) is that strict adherence to those rules, strict adherence to the edict that it’s unfair to change the rules in the middle of game is simply not the overriding principle that should govern here. So what if, strictly speaking, the school changed the rules in the middle (or at the end)? So what? That, in and of itself, does no harm to anyone, certainly not to Ms. Hornstine. And any “unfairness” to Ms. Hornstine as a result of changing the rules and being denied getting named sole valedictorian is dwarfed by the “unfairness” to Mr. Mirkin if those rules are adhered to and he is denied getting named a co-valedictorian when his school performance differed from hers by a noise factor.
This is my point about how lawyers see only the rules, not the fairness. What you see is that the rules were changed, and that that’s inherently unfair. What I see is that a greater fairness is served by changing the rules. You are clearly unable to see that greater fairness, because you get stopped at the fact that the rules were changed.
Doreen the harm she alleges is more complicated than what I am speaking of here. She premised her claim on Equal Protection grounds. The harm is more than what I am talking about here since she is stating the harm in fact to be is an unequal treatment of herself. I don’t know exactly how she has framed her Equal Protection claim but I am betting she established it on the fact that due to her handicap she could not participate in gym and the school taking this into account, her handicap, treats her unequally. This is a very crude attempt and certainly needs refinement but I am saying only the “direction” she probably took.
More importantly Doreen you make some good points. I will address them as you present them.
Well I am using the term “game” loosely. Let me illustrate what exactly I mean by the term “game”. The rules for achieving valedictorian are established by the school, school board, or whatever governing body may exist. The rules then create an expectation on behalf of all the students enrolled at the time, especially the senior students. The expectation is created by the rules. The expectation is the award of sole valedictorian to the student with the highest GPA. Students then know what to expect since the rules establish how one may become a valedictorian. The rules create an “entitlement” or a “deserving award” for those who satisfy the rules.
A rough analogy is perhaps the way in which schools in the 1800’s graduated its students. The schools were at the time primarily independent of the state and set their own criteria as to how long students must attend, what classes students must take to complete their education and what GPA they must attain at a minimum. Hence, these rules created an expectation, the students, based on the rules, expected to graduate from the community school so long as they complied with all the requisites enumerated in the rules. Their expectation was graduation. This expectation was created by the rules.
Now lets suppose around graduation time, in fact a month away from graduation, in the month of May the school decides to change its rules and makes this rule applicable on the imminent graduating class but such a rule would prohibit them from graduating in June and require them to rather graduate in December because to satisfy the substance of the rule requires them to stay until December. Now in this instance the school is not acting fair or in a just manner. The graduating students have worked whatever number of years they have been present, inlcuding their senior year, complying with the rules and during their senior year taking whatever is necessary to finish by June expecting to graduate in June only to have the school move the goal posts on them.
This is exactly what happened here. The rules stipulated only what was necessary to achieve an award of sole valedictorian and focused only on highest GPA. This rule created an expectation among the students and the female student that to win sole valedictorian required only the student have the highest GPA and in the event of a tie more than one student will receive the honorary award. This female student then complied with the rules all the way to the end of the school year. She complied with all the necessary pre-requisites as enumerated in the rules. She complied with the rules and the pre-requisites and as a result of such compliance she expected to be awarded sole valedictorian. However, the school moved the goal posts on her. They revised the rules after she labored to satisfy them not only in her three previous years but also her senior year only to have the school change the rules in such a way as to deny her what she labored to achieve. The school should be bound to honor the expectation they created with the rules she performed under in her senior year.
Admittedly there is a loophole in the rules. The rules did not adequately address the type of factual situation contributing to the dispute. The factual situation I am of course talking about is the rules did not address what should be done when a student, due to a handicap, cannot take a gym class but instead chooses to take another honors course where she did particularly well thereby bolstering her overall GPA over another student who had to take a gym class but could not take an honors course to aid him in bolstering his GPA. This is of course an unfortunate consequence, a discrepancy in the rules. However, it is not “right” to seek to address this remedy and impose this remedy retroactively. Two wrongs do not make a right.
There doesn’t necessarily have to be “actual harm”. Some other posters here, thinking they knew what they were talking about regarding libel, were under the very false impression that “actual harm” is necessary for a legal remedy. This is not always true as common law Libel does not require actual harm to exist in order to prevail on a libel claim. But the harm here to her is the school breaching an expectation they created by their own rules. They breached their end of the bargain. They made promises and expectations by these rules and did not follow through although this student labored to fulfill and comply with the rules. She expended time, energy, money to purchase books, and mental exercise to satisfy the requirements of the rules only to have the school revise the rules and deny this girl an award she deserves under the rules. Is this a harm? Being denied something the rules state you deserve is a harm and this is basic contract principles here.
Smiling Bandit
I have addressed this point already. It is unfortunate this has happened and occurred and even more unfortunate the rules did not address this apparent loophole. However, under the rules both students played by during their senior year the student with the highest GPA was to be valedictorian. The principle or rule the school espoused and applied retroactively to make them both valedictorian did not exist when they began their senior year. They rule the school came up after the fact was not one either one of them ever played by. Perhaps if this rule existed at the beginning of the school year, and the handicapped girl still wanted sole valedictorian honors, she could have adequately planned and prepared to comply with this rule to be considered sole valedictorian. But this rule did not exist, neither student played under the rule, neither had an opporunity to adjust and play under the rule, and hence, it should not be applied in an ex post facto manner.
Two wrongs do not make a right. The rules at the beginning of the senior school year of these two students undoubtedly were not written clearly enough to resolve the type of factual situation that has arisen here. I will admit this is indeed unfortunate. However, it is unjust to articulate a rule at the end of the game that did not exist when it began, apply it retroactively, and the necessary consequence being an alteration of the outcome arrived to by the rules all played by.
Actually she just might since there are some U.S. Supreme Court cases where they have found the school owed a property interest in employment of professors as a result of the rules articulated in the handbook. Admittedly these cases were Due Process claims under the Fourteenth Amendment but they do stand for the proposition expectations, property interests, and entitlements can be created by rules located in handbooks distributed by schools and this situation is no different. The rules created an expectation, an entitlement in the award of valedictorian. So under cases such as these she plausibly has a basis to sue contrary to your assertion she as “no” basis at all.
Finally the award of Valedictorian is not as insignificant as some would think. It is an acknowledgment one has peformed better than the rest in the class. It is similar to differing types of diplomas awarded between students receiving an Academic Honors diploma as contrasted to College Prepatory diploma. Some schools, colleges, and universities may have perks for students who were Valedictorians of their class just as some colleges have perks for students who receive an Academic Honors diploma whereas students with College Prepatory diploma do not get these perks.
At the time of graduation, all the universities that she applied to already had made their decision and told her. Once you’re accepted, unless you flunk the last semester or commit some crime, you’re going to the university you choose. Many universities do have honors programs, but those require a minimum GPA that she probably already had along with perhaps information about academic honors and an essay or something else.
Being co-valedictorian with another guy would not affect her in the academic honors category. Why? Because if the guy goes to the same place, they’ll both be competing on the same foot, and since the university would realize that they’re co-valedictorians and that there’s no one with a higher honor, they’ll treat them equally in that aspect.
If the other guy doesn’t go to Harvard, and she explains to Harvard in simple terms that her school had co-valedictorians, not valedictorians, and that both are in the same playing field, and once the university realizes the other guy is not applying, then they’ll have no problem looking at her award as being the most important award she could have received.
Roadfood actually I just might be correct, especially from a contract law point of view. There are some Supreme Court cases where the rules articulated in handbooks created an expectation for continued employment and denying a professor already employed employment although the rules have been adhered to is not permissible. Although the one case I have in mind was Due Process claim, as opposed to Equal protection claim, it serves to illustrate my point that rules can create expectations and not fulfilling them is not permissible in some situations.
As I noted in my previous post the rules created an expectation among the students, especially the students of the senior class. There is a reciprocal relationship in this instance between the schools and the students. The school has essentially promised to the students the award of valedictorian or sole valedictorian so long as the requirements of the rules are satisfied. The school breached its promise to this female student and this first of all is wrong. Next the breach amounted to a denial to this girl of the award of sole valedictorian although the school was duty bound to give this girl the title of sole valedictorian as stipulated by their own rules. This together is the harm as the student is being denied what she deserves, what one is entitled to receive, as dictated by the rules, just as if she were denied the award of a diploma. The harm is the school not fully following through with its own rules to give to those what they are entitled to by the rules. This is the harm.
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The question is not “what harm” results from being denied the title of sole valedictorian because this assumes not getting the title of sole valedictorian is not in and of itself a “harm”. However, being denied the title of sole valedictorian under these circumstances is the “harm”. Focusing on the “harm” that results from this is not a correct analysis. The “harm” is being denied this title under the circumstances. Your own recognition of this distinction is great as it illuminates for me your assumption that the harm has to be something other than not getting the sole title of valedictorian.
Actually yes altering the rules does do some harm. Once again your argument assumes this girl not getting what the rules entitle her receive is not a harm. This is a very false assumption. State laws, rules, or anything similar to these that create entitlements for the people to receive and once the people satisfy the requirements to receive whatever is being bestowed upon but are denied it anyway is a “harm”. The alteration of the rules drastically changed the outcome. This outcome was arrived at by different rules. This outcome was achieved by rules that existed at the beginning of the school year. These rules created expectations on behalf of the students and this female student. The school has a duty to honor the expectations it has created by these rules. This expectation is not being met by the school when it decides to throw in a rule that did not exist when the school year began especially when the rule drastically affects the outcome and in this instance the school has breached its end of the deal. The school must and should honor, just as all states are bound to honor to its citizens, those expectations created by rules or laws.
The unfairness of the rule does not make the outcome legitimate. Nor does the goal justify the means. While it is true the rule is unfair to Mirkin it is equally unfair to change them after the game has been played, apply them retroactively, and deny to the female student what she rightfully labored for, earned, and expected to receive as indicated by the rules. Perhaps as the rules were stated it resulted in a wrong outcome by denying Mirkin a share of valedictorian under the circumstances, but it is equally wrong to alter the outcome by creating a rule that did not exist from the beginning and applying it to a situation in which NOBODY played under and affect the outcome. From this perspective your layperson mind simply can’t graps the illogical characteristics of Two Wrongs Make a Right. Two Wrongs do not make a right, they never have, nor will they ever. Consequently, your focus on the unfairness to Mirkin does not make what the school did “right” or “just” and if this is of course your forcus or goal, the goal to achieve a “just” or “right” result then changing the rules and applying them retroactively can hardly be condoned as “just” or “right”.
She might be, and that claim might not require that she prove any actual harm, but I do believe it does require her to show that she was discriminated against because of her handicap, which would require that the school wouldn’t have treated a non-handicapped student the same way that they treated Hornstine. If she can show that the school would have given the sole valedictorian award to an non-handicapped , essentially home-schooled student who was able to take combinations of classes that the students actually atttending the school could not take, then she should be the sole valedictorian. Good luck proving that they would have acted differently in a situation that has apparently never come up before.
And what you fail to see is that an equally good or better argument could be made by that student that he was “harmed” by having to share the award or being denied it outright, based on the fact that Ms Hornstine did not follow the same rules that he was required to, including taking lower weighted classes and only one class in a case of schedule conflicts although she certainly could have followed the same rules had she chosen to. He certainly expected to be the valedictorian if he had the highest GPA of the students actually attending the school and following the required curriculum. And the school , unlike Hornstine’s parents, has to think of fairness to both studens. Perhaps the best solution would have been for the school to simply not name a valedictorian, but I’m certain Hornstine would have had a problem wth that, too. Barring that, Hornstines average could have been recalculated giving lower weight to the same number of credits that the other student had to take in lower weighted classes. But Hornstine doesn’t win that way.
By your logic, they would have had to change the rule before Hornstine started her freshman year, or at the latest immediately after she started home tutoring. Otherwise it’s changing the rules in the middle.
Seems to me actual harm, at least to the reputation, is indeed necessary to prevail on a libel claim. You don’t win just because you feel mistreated, or because someone said you were 55 when you’re only 48. Want to try to come up with another type of claim that doesn’t require showing any actual harm? Even discrimination claims require showing that you weren’t treated the same as a member of a different group would have been, not just that the rules were changed becasue the situation was different.
And perhaps you can provide the cites for these cases- because the only similar ones I know of were where specific statements were made in the employee handbooks that employees would not be fired without cause.It wasn’t the rules themselves that created the expectation, but rather the specific statements made. All that employers had to do to get out of that was avoid making statements such as “Follow the rules, and you’ll always have a job here”
That’s a very nice platitude, but it’s just an empty saying. Many on this thread, myself included, just don’t see it as simplisticly as whether two wrongs make a right. The situation was set up in an unfair way, the school saw that and rectified it in a way that many believe corrects an unjustice, rather than made “two wrongs”.
Ok, you are “not denying schools may change the rules at any time,” but you are saying that to “apply them rectroactively after the game is completed” is unfair. I guess my non-legally trained mind isn’t up to the task of grasping the distinction you’re making. It’s ok to for schools to change the rules “at any time”, but when they do it’s unfair? Maybe you can explain what you actually meant.
No, it may or may not be unfair, depending on the specifics of the situation. You’re generalizing, and everyone else here is talking about this specific case. In this case, the rules were inherently unfair from the beginning, so changing them at the end results in correcting an unjustice, not making it more unfair.
Sure, the reason is that there are few cases where the rules are discovered to have been inherently unfair. But in such cases, I maintain that fairness is served by changing the rules to a more fair state, rather than leaving the unfairness in place out of some arbitrary adherence to a platitude.
You engage in exactly what you’ve taken me to task for. You have completely inaccurately re-articulated my position. I never maintained that justice and fairness cannot result from focusing on the rules and laws, but rather that focusing on rules and laws does not necessarily result in fairness and justice in all cases. What we’re talking about here is a perfect example. If, as you do, one focuses strictly on the rules, then the conclusion is that the girl is right. However, if one looks instead at what is fair and just to all parties, at whether there was in injustice in place at the start, at what might bring about a greater overall fairness, then it’s likely that one will reach the conclusion that most people on this thread have reached.
I have seen no evidence of any philosophical approach in anything you’ve written so far. You simply repeat that changing the rules as and when the school did is unfair to Hornstine. You support that with the empty platitude that “two wrongs don’t make a right”. The truly philosophical approach is to look at the whole picture. To ask questions such as “Was there unfairness in the way the rules were set up from the start?”; “Did Hornstine have an unfair advantage over Mirkin?”; “Is it the case that what the school did was to correct a great injustice suffered by Mirkin by commiting a small injustice against Hornstine?”
I asked myself all those questions, and I concluded that whatever “unfairness” or “injustice” Hornstine will suffer by having to share the valedictorian honor is dwarfed by the injustice that Mirkin would suffer by not receiving the honor at all.
This is the point I’m making here that you are blind to. Your rationale as to where the unfairness lies comes directly from the rules and that they were changed in what you consider an unfair manner. The question as to whether that rule change resulting in something that, in the larger picture, is in fact more fair to all parties is never asked by you, because your legally-trained mind sees only the rules, not any question of overall fairness or justice.
If, as you say, you are taking a philosophical approach, then it should be no problem for you to articulate your position without refering to the rules or the rule change. I claim you cannot, because your entire sense of “fairness” comes directly from the fact that rules were changed in what you consider an unfair manner. But please, prove me wrong.
First, you again engage in a complete and utter mischaracterization of what I said. Please learn to follow your own standards and see if you can accurately re-articulate my position. I said nothing about leaving rules and laws aside. I have said repeatedly that relying on nothing but strict adherence to rules and laws does not necessarily ensure a just and fair outcome.
You’re just toeing the legal system party line here. One of the growing serious flaws in our current legal system is this attitude that codifying everything into the laws is the “best” way to do it. Sometimes that’s good, somethings it’s very bad; sometimes it results in better laws, sometimes it results in poorer laws; sometimes it results in more fairness, sometimes it results in less fairness. See, you and the legal system keep seeing it as black and white, either or. Obviously, to put all laws aside and rely solely on individual judgement and discretion will result in massive injustice. But equally, to use the other extreme of removing all individual judgement will also result in injustice. You see the choice as one or the other. I see that we need a balance.
Let’s take the classic cliched example: At one time in this country, slavery was legal. The law said that an escaped slave who was captured must be returned to his owner. Were the people that followed that law and captured and returned slaves being just and fair? Certainly they were being fair to the slave owner. But who among us now doesn’t believe that a greater injustice was being perpetrated on the slave?
When the Emancipation Proclamation was passed, one could well argue that it was a case of changing the rules in the middle of the game. After all, slave owners had paid good money for their slaves, following the law, and with the expectation that they’d get a good return on their investment by having those slaves work for them. How terribly unfair and injust it was to suddenly change the law so that those poor slave owners had wasted their money, and were unable to get the return that they’d rightfully expected, under the law that was in place at the time. How dare the federal government deprive them of their legally obtained work force.
But again, who among us does not believe that a far, far greater injustice was being done by keeping the slaves as slaves? Who does not believe that the greater cause of good was served by inflicting that unfairness on the slave owners? Who would argue that “two wrongs don’t make a right”, and so the Emancipation Proclamation was unfair or unjust?
Quite the opposite. This is a perfect example of where an arbitrator needs to apply more than just “rules are rules” or “two wrongs don’t make a right” platitudes and look at the bigger picture, the overall sense of fairness and justice.
You can say that, but that doesn’t make it true in some absolute sense. Obviously, we disagree on what is “correct” here, and so trying to tell me that my way is “incorrect” really does nothing to advance your position.
As your repetition of this point ad nauseum illuminates that you have an incorrect definition of “harm” (see? I can call you “incorrect” too; doesn’t make you suddenly convert to my position, does it?)
If she wasn’t harmed in any real sense, her case is bogus and for her to prevail would be an injustice.
So what you’re actually saying here is that the legal system has a wildy different definition of the word “harm” than every normal English speaking person. And that you have been so emersed in that system that you clearly aren’t even aware of that difference, since if you had been, you could have pointed it out clearly many posts ago. Please enlighten us and give us the strict legal definition of the word “harm”.
Regardless, the right way to look at this case is not to use whatever the strict legal definition of “harm” may be. The important question is has Hornstine been “hurt” in the colloqial sense; has she suffered any, has she been denied a place in the school of her choice, will her future earning power suffer? The answer to all those questions is a resounding “no”, which is the way most normal people on this thread look at the issue. All you see are the rules and that the bizarre legal definition of “harm” applies. Whether she’s been actually hurt in any meaningful way is immaterial to you or to her.
I’d hardly call going from being sole valedictorian to being co-valedictorian with one other student “drastic”.
I disagree. I believe the school has a greater duty to see that what it does is fair and just in the larger sense.
No, it most certainly is not equally unfair. There is a far greater unfairness to Mirkin in adhering to the rules than there is to Hornstine in changing them.
I’ll ignore the silly insult here, and just point out that you are making an incorrect assumption. I can “graps(sic)” the illogical characteristics just fine, I just don’t agree that this is simplistically a case of two wrongs.
Nor will you repeating that platitude over and over make your case for you. It doesn’t apply here.
Sure it can. As I’ve said repeatedly, the greater fairness is achieved by sharing the valedictorian honor, and so what the school did is totally just, fair, and right.
Just one more thing that I have to say about this inanity: It is an incorrect statement. Sometimes two wrongs don’t make a right, but sometimes they do. I’m sure that any rational person on this planet could, with a moment’s thought, come up with any number of examples where two wrongs most certainly do make a right.
The easy cliched example: Killing another human being is wrong, everyone agrees on that. So there’s a man coming at me with a knife, clearly with the intent of killing me (and I have no way to escape, no other alternative, yadda yadda). I have a loaded gun. But, uh oh, killing him would be wrong. And just because he wants to kill me doesn’t mean that two wrongs will make a right. I guess I’d better do the fair thing and let him kill me.
Stupidity. Instead, I point the gun at him and shoot him dead. Two wrongs made a right. Even our legal system recognizes this.
In the realm of human experience and human interaction, there are few absolutes. Despite however much the lawyers would like to make it otherwise.
There was a great article in today’s Sunday Philadelphia Inquirer. She most likely won’t even attend graduation due to the public backlash. What is the public lashing out at?
She attends a local gym to lift weights and works out.
She was well enough to attend the class trip to Disney World.
Her father has tried to manipulate the system to give her an advantage. As a Judge, he has a bit more pull them most people.
Last, but certainly not least, the family refuses to say what her disability is.
