In many states teachers can gain what is known as qualified immunity from personal lawsuits. In many states teachers and other school employees are immune from personal liability for the actions they take within the "course of their employment." However, this immunity has limits. In M.S. by Soltys v. Seminole County Sch.Bd., 52 IDELR 286 (M.D. Fla 2009) a teacher who abused students in her special education classroom could not persuade the district court to dismiss the Section 1983 claim. The Court held after a review of the facts that the teachers behavior, which included slapping, yelling, and hitting students for disability related behaviors could be viewed as a violation of the student's constitutional rights.
The Court's conclusion here illustrates that when there are cases involving clear abuse of a child, not discipline, that the Court will not allow that teacher qualified immunity. In the Soltys case the teacher argued that her physical aggression towards the child was simply discipline, the Court said that her response was clearly disproportionate to the student's conduct. The court denied the teacher's request for qualified immunity, did not grant the summary judgment, and informed her counsel that a jury will need to decide whether she violated the child's rights.
Wednesday, March 17, 2010
Discipline and Restraint
There are a lot of cases in the news regarding abuse of special education students by teachers under the guise of discipline. Many of the aides in these cases say that they did not know what was in the student's IEP (Individual Education Plan) or BIP (Behavior Intervention Plan) so they waited before informing administration about abuse. The law requires that your child's aide and any school staff members authorized to discipline a student with a disability know what is the student's IEP or BIP with regard to discipline.
In Pontotoc County (MS) Sch. Dist., 51 IDELR 286 (OCRVI, Dallas (MS) 2008) the Court found that if a child's IEP specifies a certain method of discipline, staff members are not free to utilize different techniques. In that particular case the student's aides did follow her IEP and only used a therapeutic basket hold restraint to pacify the child. All staff members were trained in the technique and were aware that it was the only disciplinary option.
Parent need to be aware that this can cause problems. In an eariler blog we discussed "qualifed immunity" which makes teachers immune from personal lawsuits for action within the schope of employement. In the case of C.N. by J.N. v. Willmar Pub. Schs., 53 IDELR 251 (8th Cir. 2010) a 3rd grader's Behavior Intervention plan listed restraint and seclusion from other students as part of the plan. The Court then stated that the parent could not show that the teacher's use of those techniques violated the child's constituional rights. The 8th Court of Appeals affirmed this decision and held that the teacher was entitled to qualified immunity on the parents' Section 1983 claims.
In conclusion, parents need to be aware that there are ramifications to allowing restraints and/or seclusion to be used as part of the BIP.
In Pontotoc County (MS) Sch. Dist., 51 IDELR 286 (OCRVI, Dallas (MS) 2008) the Court found that if a child's IEP specifies a certain method of discipline, staff members are not free to utilize different techniques. In that particular case the student's aides did follow her IEP and only used a therapeutic basket hold restraint to pacify the child. All staff members were trained in the technique and were aware that it was the only disciplinary option.
Parent need to be aware that this can cause problems. In an eariler blog we discussed "qualifed immunity" which makes teachers immune from personal lawsuits for action within the schope of employement. In the case of C.N. by J.N. v. Willmar Pub. Schs., 53 IDELR 251 (8th Cir. 2010) a 3rd grader's Behavior Intervention plan listed restraint and seclusion from other students as part of the plan. The Court then stated that the parent could not show that the teacher's use of those techniques violated the child's constituional rights. The 8th Court of Appeals affirmed this decision and held that the teacher was entitled to qualified immunity on the parents' Section 1983 claims.
In conclusion, parents need to be aware that there are ramifications to allowing restraints and/or seclusion to be used as part of the BIP.
INDEPENDENT EVALUATIONS AND CLASSROOM OBSERVATION
An Independent Educational Evaluation is an evaluation that a parent can request when they disagree with the school district's evaluation of their child. The school district must bear the cost of the outside evaluator. Most parents are not aware of this option and rarely use it. What parents also seldom realize is that this evaluator, or their child's psychologist, can actually observe the child in class. This observation can give the evaluator an excellent view of how the child respond's to behavior modification techniques, teaching modalities, and the curriculum. The reason so few parents are aware of this is that IDEA (the federal law governing special education) is silent as to whether districts must permit evaluators hired by the child's parents to observe the child in the classroom. However, the law, both Article 7 of the Indiana Code and IDEA, require that individual educational evaluations follow the same criteria as the district's own evaluations. Most districts in the U.S. have the evaluators see the child's classroom experience prior to writing an educational evaluation.
A recent case out of Florida, further illustrates this legal principal. In the case of School Bd. of Manatee County, Fla v. L.H. by D.H. and B.H., 53 IDELR 149 (M.D. Fla. 2009), the Court found that a Florida district had to allow a private psychologist observations in school of an 11 year old student with Asperger's syndrome. The district fought this all the way to the District Court which affirmed the due process decision.
In conclusion, parents should exercise their rights for evaluations of their children both in testing and in classroom observation. Don't be afraid to ask for what you need.
A recent case out of Florida, further illustrates this legal principal. In the case of School Bd. of Manatee County, Fla v. L.H. by D.H. and B.H., 53 IDELR 149 (M.D. Fla. 2009), the Court found that a Florida district had to allow a private psychologist observations in school of an 11 year old student with Asperger's syndrome. The district fought this all the way to the District Court which affirmed the due process decision.
In conclusion, parents should exercise their rights for evaluations of their children both in testing and in classroom observation. Don't be afraid to ask for what you need.
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