What a difference a day makes

What a difference a day makes.

It was only yesterday that I was flying high, rejoicing in the good news regarding an autistic young adult being accepted and honored in our department.

This morning, right before going to work, I log on and peruse a couple of blogs, and what do I see but this story, quoted by MommyGuilt .

...On Monday, February 26, a 6-year-old autistic boy was read his rights and charged with Assault II for jumping on his special education teacher. This arrest was made when he and his mother went to pick up some files at the Kailua-Kona, Hawaii Police Department ...

I think that the reason that this case struck me so hard was that many of the facts of this case seemed to parallel what had happened to our son a year and a half ago.

...Prior to jumping on his teacher, he was removed from his current classroom because the staff was worried he would hurt himself or others, and kept him in time- out from 10:55 a.m. until his mother picked him up at 2:00 p.m. ...

When Buddy Boy was in Kindergarten (last school year, as a 5 year old) he, like many kids on the autism spectrum, had issues with self control. Some of it was reacting to things in the environment, some of it may have been from delayed maturation, and I believe the majority of it probably stemmed from the system expecting a 5 year old with autism to be compliant at all times. All of their “interventions” were directed at getting him to be compliant. They didn’t care whether he learned anything at all. Indeed, any subject matter they presented was way below the types of worksheets that his mom, Liz, had him doing at home. And when they did do things in class, they insisted on repetition to the nth degree. This, of course, resulted in boredom and frustration on Buddy Boy’s part. Despite having all these things pointed out to them, his “teachers” persisted.

Due mostly to an idiotic curriculum not suited to him, and probably partially to lack of self control (in the face of being taught by idiots) Buddy Boy trashed the classroom one day. He first threatened to trash the classroom (“I’m going to throw things”) to which they responded with their direction of “Sit down, Buddy Boy” three times, dutifully recorded on their chart that he had refused to sit down, then stood back when he started pulling things off the shelf. No one acknowledged that he was angry and/or frustrated. No one tried to find out why he was upset. Just a command to sit down repeated three times. Mom was called to come and get him and take him home.

Buddy Boy was suspended for three days for that, and moved to a “resource room” where he was the only student. We were warned at that time that if he continued to be violent and a threat to others and himself that the police would be involved. Despite our convening another IEP (which they kept delaying) and attempting to get a much better behavioral intervention plan in place, the staff continued to do things to set him off (deliberately, I suspect, but have no way of knowing other than their e-mails obtained later which intimated that they had a plan for a solution in place, while during this time they were telling us that everything was fine). They had him “taught” by as many as 7-8 different “teachers” per day, on no consistent schedule. They would print up a schedule and show him on the clock when he would have a break, then another teacher would come in and cut the break short. Still, all they were teaching was compliance with rules, and repetition of busywork. He lashed out a couple of times at them (slapping and kicking), and each time he got “written up” without suspension. The disciplinary write ups had these check off boxes on the form for reasons they thought the behavior occurred. Almost all of the boxes had to do with the student (acting out, seeking attention, secondary gain, etc.). There maybe was one for the environment, and none at all for “provoked by idiot staff”, which was what I would have checked off.

Buddy Boy acted out again (in this stellar teaching environment) and threw a stapler across the room. This earned him another 4 days suspension. At this point he was one suspension away from a mandatory placement in another setting. We had already surmised that they were trying to build a case against Buddy Boy as an out of control kid that was a menace to himself and others, and had to be removed. The placement that they had in mind was in a separate school in a class of emotionally disturbed kids.

Meanwhile, just so one can understand how Buddy Boy was doing in general, this is what was happening outside of school. He had a weekly gymnastics class (that he grudgingly went to, didn’t look forward to) where he functioned within a group setting with individual assistance by a high school student with no special ed training. He also attended swimming class every Saturday morning (another non-preferred activity-he likes free swimming, but not swimming class). He also functioned just fine in this class being taught by high school kids for the most part. He attended church services without acting up, and though he argued with us a lot at home, we had gotten to the point where he was not aggressive with us.

...The school has been asked repeatedly to at the very least provide a one-on-one aide that is trained in the art of dealing with autistic children, or move him to a school for autistic children. ...

In our case we had asked several times (since before he was even admitted to Kindergarten) for a 1:1 aide. Each time we were refused.

By this time we had progressed from just having an advocate with us to having a lawyer involved. We short circuited their attempt to have him expelled by withdrawing him for a medical leave, and Liz home schooled him for six months (to complete the school year). He had someone from the school provide some instruction in the home, but again they were somewhat clueless (instruction below level, repetition, repetition, show me you are compliant).

Meanwhile we continued to convene an IEP for the following year (this year) with multiple meetings with staff and lawyers. I think one of their strategies was to try and bankrupt us by having more and more meetings. I think they also thought that if they had enough meetings then only my wife would show up, and not me. They thought wrong.

Our compromise that we agreed to was half time in their emotionally disturbed classroom (though we had it in writing that they did not have permission to use their preferred methods of discipline-physically removing kids into a padded room or a wooden box). The other half time was to be spent in a special ed class located in a regular school (NOT the school he was in before). For agreeing to this we got them to agree to an outside evaluation of Buddy Boy’s behavior. We had to wait a few months into the school year to get the evaluation, but the outside group said Buddy Boy was doing fine, and indeed should be in the least restrictive environment, and that there was no reason to bus him back and forth between two schools every day.

So now Buddy Boy is in the special ed classroom in the regular school, and just this week he had his first inclusion in a “regular” class for art, which went just fine.

I thought I was getting past my anger at how my son was railroaded last year, and of how idiotic many of the “experts” at his previous school acted. And how malignant they were in plotting behind the scenes to get him thrown out, even if it meant having a police record. My reaction to this article today tells me I have a ways to go.

The mother in Hawaii further relates:
Many people have told me that I need take this to the media to finally get the help we need, and that is what I hope to do. I have done everything the school has asked and tried to work with them, to no avail. Now, here I am with a disabled 6-year-old with Assault II charges against him.

Getting the media involved might just work. It is my impression that Americans in general have become much more hardnosed and unforgiving of the acts of adolescents, and this has also led to prosecutors trying to prosecute younger children (some as young as 10 years old) as adults in violent crimes. But I still think that 6 year olds get somewhat of a pass in society, and media attention might help. Of course, being disabled lowers the age of what is considered acceptable to prosecute, as does being poor or a member of a minority.

Finally, the mom writes:
We are filing for a Fair Hearing. But I understand this will take months and my child is not being educated nor is the school providing any help with his education, even though they know neither he nor I are able to go on school grounds because of the temporary restraining order."

Finally, something they definitely can’t do. As I hope the mother is aware, she needs a lawyer. Maybe two. Definitely one for the educational case, and possibly a second one for the criminal case. If she's lucky the special ed/disability rights lawyer can do both for her.

IDEA 2004 spells out specifically how they can kick your kid out of school (suspensions, expulsions), and how they can place him in an alternative setting. It also spells out what they have to do in terms of providing education. They end up not having to do much, but they have to do something.

The mother needs to inform herself what IDEA 2004 actually says, and the first place to start is at the Wrightslaw website. If you scroll down the left hand side there is a section called "Law Library". In there you can see a button to click on for IDEA 2004. If click thru to the IDEA 2004 Statute and Regulation page, there is a link to download the whole law with commentary from the Federal Register.

Basically the law says that the school can suspend a child for up to 10 days without providing any instruction. After that the IEP must meet to decide what is appropriate to be provided (this, of course, is the same IEP team that got you into this mess to begin with). The school also must provide a functional behavioral assessment and behavioral intervention services and modifications, that are designed to address the behavioral violation so that it does not recur.

Once a change in placement is determined (and they can't kick you out without a change in placement), within 10 school days an IEP team meeting must take place to determine whether the behavior was a result of the child's disability or not (of course, I've never heard of a school in this situation admit that the behavior was a result of the disability, or a failure to follow the IEP).

Finally, they can remove a child to an "interim alternative educational setting" for not more than 45 days, even if the violation was secondary to the child's disability if one of the following special circumstances occurs: 1) carries or possesses a weapon at school, 2) uses or possesses illegal drugs at school, or 3) has inflicted serious bodily injury to another person while at school or a school function. Of note, "serious bodily injury" is defined in the US Code as follows:

Title 18 USC Sec. 1365
(3) the term "serious bodily injury" means bodily injury which
involves -
(A) a substantial risk of death;
(B) extreme physical pain;
(C) protracted and obvious disfigurement; or
(D) protracted loss or impairment of the function of a bodily
member, organ, or mental faculty; and

(4) the term "bodily injury" means -
(A) a cut, abrasion, bruise, burn, or disfigurement;
(B) physical pain;
(C) illness;
(D) impairment of the function of a bodily member, organ, or
mental faculty; or

(E) any other injury to the body, no matter how temporary.


My guess (and I am NOT a lawyer, and none of this is to be construed as legal advice)is that they would have a hard time proving "serious bodily injury". But unfortunately, this person needs a lawyer badly, to try and stop the steamroller that this school district has set in motion.

I really wanted to bask in the good feeling I had yesterday for a while. I'm a realist, and I know that not everyday is good. And part of me wishes I didn't see that blog posting this morning.

But part of me knows that being vigilant, and keeping our legal ducks in a row is an important part of advocating for Buddy Boy. Because one of my worst fears is that something like this will happen to us.

Joe is 209