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Schools Accused of Criminalizing Disability: Discipline leading to lawsuits

Another story about blaming disabled kids for lack of teacher/aide training and understanding of disabilities. Really, if they are going to do this at least they can throw up their hands and admit they can't so that private companies can move in and the the job right.

[By Harvey Rice.]

Matthew Herzog hurled his book bag onto his desk during a ninth-grade class at Stratford High School on an October day in 2001.
The desk broke, setting off a chain of events that led to a federal lawsuit by Mark and Colette Herzog against the Spring Branch school district and nine school and police officials.
The Herzogs say their son's action was caused by Tourette's syndrome, a neurological disorder that causes involuntary, sudden movements or speech.
But Matthew's teacher accused him of willfully destroying school property and summoned the grade-level principal, who called school district police, the Herzogs say.
The teacher and principal helped a police officer pin the boy down, handcuff him and force him into a police car, the Herzogs allege. Their lawsuit accuses the officers of striking Matthew numerous times, bruising his face, spraining a knee and fracturing a foot.
The Herzogs and Spring Branch officials will not discuss the lawsuit, but advocacy groups say such incidents indicate a disturbing attitude by many school administrators toward behaviorally disabled children.
They say some administrators use school police to dodge the time-consuming processes dictated by the federal Individuals with Disabilities Education Act, which requires specially trained teachers and a separate program for each disabled child.
“This is a major problem,” said Richard Lavallo, attorney in the Austin office of Advocacy Inc., which Congress created to protect the legal rights of the disabled.
Although it is difficult to determine how many lawsuits like the Herzogs' have been filed in Texas, the use of police against disabled students has become common enough nationally that the Center for Law and Education in Washington, D.C., has developed strategies for suing school districts in such cases.

The center outlines the strategies in a report titled, “When Schools Criminalize Disability, Education Law Strategies for Legal Advocates.”
The report, which mentions Texas as a problem state, accuses some administrators of intentionally misinterpreting a 1997 change in the Disabilities Act that allows schools to report crimes by behaviorally disabled students.
School officials chafed at having to devote more effort to behaviorally disabled children and saw the 1997 change as a license to call police into the classroom, said Eileen L. Ordover, a Louisville, Ky., lawyer who wrote the Center for Law and Education report on legal strategies.
Ordover said many school districts are unwilling to treat disabled children's behavior differently from that of normal children.
After 1997, she said, “You saw schools starting to invoke the power of the justice system as a way of getting kids out of their school.”
Karen Snead, director of education for the Arc of Greater Houston, a group that advocates for the disabled, said school officials sometimes find it easier to call police than to follow specialized and sometimes expensive programs required by federal and state law for each disabled student.
The programs require special training for dealing with behaviorally disabled children, who often do not respond to traditional disciplinary methods as normal children do.
If handled improperly, a minor behavioral episode can quickly escalate into a major incident, Snead said.
“They call police, the situation escalates and the child freaks out,” Lavallo said. “The child starts hitting back and they end up in a juvenile facility.”
Parents sometimes file lawsuits, but more often the disabled child is charged with a crime and hauled into court, Ordover said.
Denise Pierle says Conroe school police have charged her two behaviorally disabled sons with crimes for actions caused by their disabilities.
Her son Andy, who has Tourette's syndrome and a learning disorder, was charged with making a terroristic threat when he was 15 for saying, “A bomb will go off and kill all life on the planet Earth,” Pierle said.
“The school district does not value kids with special needs,” she said. “They never have.”
Spokeswoman Kay Galindo said the Conroe district strongly supports disabled students, but cannot comment on individual cases.
Daniel McCall, a Houston lawyer who has represented disabled students in several lawsuits against area school districts, said many administrators are hostile toward disabled students.
“They think these kids are getting unnecessary protection and escaping their ability to have control over them,” McCall said.
He called this a cultural attitude that is more prevalent in more conservative suburban areas than in the inner city.
David Beinke, a special-education advocate based in Austin, said the the Klein, Spring Branch and Conroe school districts are among the worst offenders in the Houston area. All three districts dispute that.
“It's easier to call the police than follow federal guidelines,” Beinke said. “They're not cost-effective.”
Even police acknowledge that they occasionally are misused. The head of the Texas Association of School District Police says that school police often complain about being used improperly to enforce classroom discipline.
“It happens a bunch of times,” said association President Lt. Jeff Ward of the San Antonio school district police. “The police officer should not be a shortcut to classroom management.”
Autistic children, in particular, react in unexpected ways to police, and things can go very wrong if a police officer is unfamiliar with autism, said Dennis Debbaudt, a Florida private investigator who teaches officers around the nation on how to deal with autistic children.
Lisa Calvin believes that is what happened to her autistic son Adam, then 8, at the Klein district's Haude Elementary School in November 2002.
Calvin, whose $10 million federal lawsuit against the district was dismissed until she exhausts administrative appeals, said she found Adam writhing, handcuffed, face-down on the classroom floor with a school police officer holding him down.
School district spokeswoman Liz Johnson said teachers called police as a last resort after Adam got out of control.
Debbaudt said autistic children are more sensitive to touch than normal children and often will struggle when restrained. “They don't know the futility of struggling,” he said.
From school officials' point of view, dealing with behaviorally disabled students often involves decisions that can be second-guessed, said Cathryn White, the Spring Branch district's special-education administrator.
Once school police are called, she said, an incident becomes a police matter and school officials have no authority.
“It's complex when you get a student who breaks the law but, because of their disability, they truly do not understand,” White said.
In such situations, she said, school officials must ask: Has the student's condition been assessed, is his educational plan being followed, does he understand what he did and was he able to control his behavior? “It does come down to a judgment call,” she said.
Copyright 2003 Houston Chronicle