1. J IM W ALSH AIDE V. TEACHER

2.  We don’t know what happened in the case that follows.  We only know what the plaintiff alleges.  So don’t make any judgments about the school or its personnel.  But the case has some important lessons for us, even at this early stage. WHAT HAPPENED

3.  The student was a kindergartener with seizure disorder and developmental delays.  School served her in Life Skills, a program for medically fragile students and those with severe and profound needs.  Ms. Michaels was the teacher. She had three aides. WHAT ALLEGEDLY HAPPENED

4.  A consultant/supervisor spent two days in the classroom working one-on-one with student.  She determined that the student’s acting out behaviors were designed to attract adult attention.  She came up with a three-step plan.  Court did not use the term “FBA” to describe this process. FUNCTIONAL BEHAVIORAL ASSESSMENT

5.  First, send student to a regular chair for time out.  If that did not work, use a modified basket hold, sitting behind student and loosely holding her.  If this does not work within five minutes, go to the “Restraint Chair.” THE BEHAVIOR PLAN

6. Wooden, high-backed chair similar to a high chair. Student to be strapped in. Timer set: NO MORE THAN FIVE MINUTES. Chair not to be used punitively—only for re- direction. THE RESTRAINT CHAIR

7.  The Plan, and its use of “Restraint Chair” was not incorporated into IEP.  Consultant explained use of chair to mother.  Mother wrote: “I give promission for teacher to use hight with strap.”  Mother originally from Laos. English is a second language. No translator at meeting. THE PLAN AND THE IEP

8.  From early September until October 10, the chair was used daily.  Student was allowed to go to art and P.E., but otherwise “was strapped into the Restraint Chair from shortly after she arrived until about five minutes before her mother returned to pick her up.”  Court notes: these allegations hotly contested. USE OF THE CHAIR

9.  From early October to mid-December, the child was put in the Chair four or five times, from five minutes to 40.  Arms were strapped to her side.  Chair put in the corner, with high barriers.  Child not allowed to use restroom. Child yelled and cried. LATER USE OF THE CHAIR

10.  There was rarely any reason to use the chair.  Teacher “just didn’t like the child.”  The straps sometimes restrained child’s arms.  Child frequently cried. Teacher told her to “shut up.”  Two to three times a week teacher turned chair around and erected barriers to isolate child. ACCORDING TO THE AIDES….

11.  All three aides were “troubled” by the use of the Chair.  On the second day the Chair was used, an aide told the principal.  Same aide said she had over a dozen conversations with principal about this.  All three aides spoke to the principal about this. THE AIDES SPEAK UP

12.  Principal Burke told all three aides she would investigate.  “Burke did not investigate the complaints in any manner. Burke did not personally confront Michaels about the use of the restraint chair or ask her to stop using it.”  Court cites Ms. Burke’s own deposition testimony for this. THE PRINCIPAL: MS. BURKE

13.  All three aides expressed concerns to Ms. Rice, one of them six or seven times. Another one put it in writing.  Rice said she would meet with the teacher.  But she didn’t. She assumed the Chair was being used as per the Plan. Did “nothing to confirm that this assumption was true.” Court cites Rice’s deposition testimony. CONSULTANT/SUPERVISOR MS. RICE

14.  In December, one of the aides contacted the Legal Center for People with Disabilities and Older People.  The Center launched an investigation.  This is the first that the superintendent knew anything about this. THE LEGAL CENTER

15.  When the principal learned of the investigation she ordered the staff not to use any kind of time-out chair that had a strap on it.  When she later learned that the staff was still using the Chair, principal personally removed the straps from the Chair. IMMEDIATE FOLLOW UP

16. 1.The district. 2.The superintendent. 3.The director of special services. 4.The consultant/supervisor: Ms. Rice. 5.The principal: Ms. Burke. 6.The teacher: Ms. Michaels. 7.Two of the three teacher aides. THE SUIT: EIGHT DEFENDANTS

17. 4 th Amendment. 14 th Amendment: substantive due process. 14 th Amendment: procedural due process. 14 th Amendment: Equal Protection. 504/ADA: Disability discrimination. Federal Bill of Rights for the Developmentally Disabled. State Law claims (Colorado). THE SUIT: LEGAL THEORIES

18.  No liability for the superintendent or special education director: no knowledge.  No liability for district: no policy that authorized unconstitutional conduct.  No liability for aides: they didn’t do it.  Possible liability for teacher, principal, consultant/supervisor. 4 TH AMENDMENT: UNLAWFUL SEIZURE

19.  The potential liability of the principal and the consultant/supervisor was based on a failure to train and/or supervise. Neither of them actually restrained the child.  There was some evidence of deliberate indifference. The law is clearly established and the employees are not entitled to immunity. FAILURE TO TRAIN/SUPERVISE

20.  No liability for any defendant under this theory.  None of the defendants, other than perhaps the teacher, deprived the student of substantive due process.  As to the teacher, the law on this was not “clearly established.” She gets immunity. 14 TH AMENDMENT: SUBSTANTIVE DUE PROCESS

21.  Use of restraint as alleged in this case requires notice and hearing, similar to with a short term suspension.  Teacher is potentially liable for this, but none of the other defendants. 14 TH AMENDMENT: PROCEDURAL DUE PROCESS

22.  No one liable under this theory. Plaintiff has failed to demonstrate that she was treated differently from those “similarly situated.”  There is no one “similarly situated.” No evidence that other children had similar behaviors, or a Plan like this student’s. Each student had his/her own IEP. 14 TH AMENDMENT: EQUAL PROTECTION

23.  There is no basis for liability under these laws for any individual—so all claims dismissed as to the individuals.  But the district is potentially liable for intentional discrimination, based on the allegations that two supervisory persons were informed and did not respond. 504/ADA

24.  This law does not authorize a private cause of action—all claims dismissed. FEDERAL BILL OF RIGHTS FOR THE DEVELOPMENTALLY DISABLED

25. If the Plan had been followed as it was written, there would be no liability, and probably no lawsuit. When aides speak up, LISTEN. Restraint is controversial and getting much attention from advocate groups and media. SUPERVISE and DOCUMENT. LESSONS

26.  A.B. v. Adams-Arapahoe 28J School District  U.S. District Court, Colorado, November 28, 2011.  58 IDELR 14. THE CASE

27. Jim Walsh Walsh, Anderson, Gallegos, Green and Treviño, P.C. P.O. Box 2156 Austin, Texas 78768 Phone: (512) 454-6864 Fax: (512) 467-9318 Email: jwalsh@wabsa.com Web: www.WalshAnderson.com Twitter: http://twitter.com/JWalshtxlawdawg CONTACT INFORMATION

28. The information in this handout was created by Walsh, Anderson, Gallegos, Green and Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.