Sunday, April 25, 2010

The Irony Dept - JRC student charged with assault

The Judge Rotenberg Educational Center in Canton, Massachusets - the notorious School of Shock - was in the news again. On April 20, 2010, the Stoughton Journal reported:

A 16-year-old resident of the Judge Rotenberg Center on Kevin Clancy Way was issued a summons for multiple assault charges following an incident last week.

Staff at the center called police Tuesday, April 13, at 8:41 p.m. and reported one of their patients was out of control. The teenager allegedly assaulted staff members with his shod foot. None of the staff members were seriously injured, police said.

The teenager was held in a detention room at the center. He will be summonsed to court to face charges of three counts of assault and battery and two counts of assault and battery with a dangerous weapon.

The JRC is the special education school where they discipline disabled kids by tying them down to a board and shocking them with electricity, using a shocker device with the confusing name of "Graduated Electronic Decelerator." The JRC is currently under investigation by the US Department of Justice's Civil Rights Division after receiving a letter of complaint from 31 disability organizations. The letter, reproduced on the Left Brain/Right Brain blog here, details abusive practices by JRC far worse than a kid kicking out with a "shod foot." Isn't the wrong person being charged with assault and battery with a dangerous weapon?

Tuesday, April 13, 2010

Education or abuse? - Payne v. Peninsula School District

Here was neither education nor attempt at education. Here was a return to the bleak black days of Dickensian England.

-- Hon. John Thomas Noonan, Jr., Senior Circuit Judge, dissenting

If you repeatedly lock a seven year old child in a dark closet until he becomes emotionally traumatized, is that abuse or education? According to the US Court of Appeals for the Ninth Circuit, it's education - special education. The case is Payne v. Peninsula School Dist., 2010 U.S. App. LEXIS 5601 (9th Cir. 2010).

Windy Payne's six year old son D.P. attended Artondale Elementary School in Gig Harbor, Washington. He is an autistic child and had an Individualized Education Plan (IEP) under the Individuals with Disabilities Education Act (IDEA). D.P.'s IEP permitted the school to use what they euphemistically call a "safe room" to address D.P.'s educational issues. According to Windy Payne, her son was mistreated by his teacher's use of this "safe room," causing him anxiety, emotional trauma and academic setbacks. She sued the school, the school district, and the teacher in federal court for violating D.P.'s civil rights and for causing her emotional distress.

The federal trial court found that Windy didn't have the right to bring her claim in court because she had failed to exhaust her administrative remedies under the IDEA. When disputes arise about special education services provided to a student, the IDEA provides for an administrative claim procedure called "Due Process." Under the exhaustion of remedies doctrine, the parents of the student can't file a lawsuit in court unless they first go through the IDEA Due Process procedure.

No Due Process proceding is required in cases of physical abuse, though. In Witte v. Clark County School District, 197 F.3d 1271 (9th Cir. 1999), no exhaustion of remedies was required for a claim based on physical abuse such as strangulation, force feeding, "take downs" and food deprivation. Those actions, the Ninth Circuit said in Witte, served no legitimate educational purpose.

For Windy Payne's son, however, the majority opinion was that the use of the "safe room" did have an educational purpose, because proper conduct and education are inextricably intertwined in public education, the child's IEP contained aversive behavioral interventions, and state law allows the use of isolation rooms for disciplinary purposes.

Although Windy Payne lost her case, there was a dissenting opinion. Justice Noonan protested the abusive use of the "safe room," even though seclusion was permitted in the child's IEP. Justice Noonan wrote:

My colleagues, struggling to find a way between Robb and Witte find at least “an attempt at an educational program” in a teacher repeatedly locking D.P., a seven-year old autistic child, into an unventilated, dark space the size of a closet for indeterminate amounts of time, causing D.P. to become so fearful that he routinely urinated and defecated on himself. I disagree with the majority’s characterization of Coy’s conduct as part of an “educational strategy,” the resolution of which would require exhaustion under the IDEA. I respectfully dissent.

Viewing the facts as we must, in the light most favorable to the Paynes, it is clear that Ms. Coy’s misuse of the isolation room serves no legitimate educational purpose, is prohibited by state administrative regulations, and was imposed as punishment. ... As in Witte, D.P. was subjected to mistreatment that was part of no IEP and “served no legitimate educational purpose.” 197 F.3d at 1273. While D.P.’s proposed “behavior intervention plan” included “containment in [a] safe room,” it did not authorize the misuse at issue here.

Monday, April 12, 2010

Asperger's and criminal responsibility - Commonwealth v. Odgren

"He lost touch with the real world. He did not understand what he was doing and he could not control himself."

-- Jonathan Shapiro, defense attorney
Trial started today in Woburn, Massachusetts, in the case against John Odgren, a teenager who is accused of murdering 15 year old James Alenson three years ago. According to news reports of today's opening statements, Odgren's attorney is arguing an "insanity" defense based on Odgren's having Asperger's Disorder, a form of autism. Unlike some other defendants who have raised a defense based on Asperger's, Odgren had a diagnosis at the time the killing occurred and was a special education student.

Under Massachusetts law, a criminal defendant can be found not criminally responsible by reason of mental illness or mental defect if, at the time of the criminal conduct, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Commonwealth v. McHoul, 226 N.E.2d 556, 557-58 (1967).

This is exactly what Odgren's attorney is arguing when he says that Odgren didn't understand what he was doing and couldn't control himself.