Autism

School District Wins in Timeout Case in Court

by Kristina Chew

Published March 10, 2009 @ 10:39PM PT

Yesterday's Telegraph reported that 8-year-old Melanie-Rose Wichmann was discriminated against on the basis of her disability (she is on the autism spectum). School staff at John Fisher Roman Catholic Primary School in Perivale, West London have been ordered to apologize after shutting her in a 16ft by 7ft medical room "when she burst into tears and started waving her arms around because she feared she would be punished for not doing her homework." Kept in the room for up to ten minutes, Melanie-Rose has suffered from anxiety attacks since February of 2008.

For every case like Melanie-Rose's that gets reported, one suspects there's more than go unnoted and unnoticed. There's been calls for an end to the use of physical restraints and timeout rooms for special education students. Parent blogger Ange has started a grassroots campaign in Missouri to end the use of these inhumane practices and especially for students with disabilities. Another parent blogger, Club 166, wrote about why we really need to think outside the box and stop seeing restraints and seclusion as the "best alternative" and, indeed, an "acceptable" practice in an educational setting, and for special education students in particular.

One hears too many accounts of physical restraints and seclusion in the form of timeout rooms and/or padded rooms that some school district somewhere must be signing off on the use (the misuse....) of such practices. Having seen the effects of physical restraints---the infamous basket hold on my son----I find it baffling to think anyone could condone the use os such "methods." But the Spring 2009 Education Next (a publication of the Hoover Institute) describes how one New Mexico school district was charged with violating the Constitution when timeouts were used to "control a violent child."

In August of 2008, the Tenth Circuit Court of Appeals ruled that when the Individual with Disabilities Education Act (IDEA) is followed "to the letter," school officials may actually be protected from liability in regard to the use of timeout rooms:

M.C. in 2002 was six years old, profane, and violent. He hit furniture and threatened to kill students and teachers with hot oil. Having judged him “emotionally disturbed,” school officials had placed him in a special education program and prepared an Individualized Education Plan in consultation with his mother, who signed it. Teachers were obliged to follow the plan and report to his mother daily. Among the techniques of “behavioral intervention” prescribed were supervised timeouts in a timeout room.

After a visit, Ms. Couture objected to the characteristics of the room: “very small” with “carpeting, but no padding on the walls. Nothing in it.... It had a very dim light.” In an administrative appeal to a hearing officer, she also complained of “inappropriate reliance upon timeouts and physical restraints.” Defeated there, she complained to the district court under section 1983 of the U.S. Code, which individual litigants often use in an effort to show that state or local officials have deprived them of constitutional or federal statutory rights. The district court was troubled by the length of some of the timeouts and what seemed on occasion to be insufficient provocation on M.C.’s part, such as refusing to take his spelling test.

The circuit court, questioning the district court’s mode of analysis, found that the defendants were entitled to qualified immunity. Even if putting M.C. in the timeout room were considered a seizure—a question that the court declined to decide—it was not unreasonable. The court expressed sympathy both for Ms. Couture and the teachers, but ruled that “The Fourth Amendment...does not empower federal courts to displace educational authorities regarding the formulation and enforcement of pedagogical norms.... If we do not allow teachers to rely on a plan specifically approved by the student’s parents and which they are statutorily required to follow, we will put teachers in an impossible position—exposed to litigation no matter what they do.”

Nonetheless: The court acknowledged that the use of timeout rooms did not improve M.C.'s behavior. Whether or not using a timeout room was a "good or effective teaching method" was not considered "'relevant'"---puzzling; one would think that it is all too "relevant" that a school district use teaching methods that are "effective" if not "good" in teaching its students. The court ruled that the use of timeout rooms was "'primarily a pedagogical judgment for the educators on the spot to make.'"

Did the school officials in New Mexico not realize the severity of using a timeout room? Or the potential for traumatizing a child (and a 6-year-old child at that) using such a practice? Was the timeout room used too much, for any behavior issue, as is suggested by the court's noting that M.C. was placed in the timeout room for "refusing to take his spelling test"?

The fact that M.C.'s mother had signed the IEP is crucial to note. Was she adequately informed of other methods to help M.C. with difficult behaviors? Was she informed that she had 15 days to review the IEP and consider the methods to be used? Was there a clearly written Behavior Intervention Plan that carefully presented not only how the timeout room would be used, but how educators would teach M.C. alternate ways to communicate his frustrations and needs, so that the use of the timeout room might, gradually and eventually, be lessened?

Dora and I posted an action calling for the end of restraints and seclusion a while ago. Please join if you have not yet----we really need to get the word out on this one. No disciplinary action was taken against a a school board or an elementary school in Windsor, Nova Scotia, after an 8-year-old boy was placed in a windowless, padded closet for a timeout, as yesterday's Cape Breton Post reported.

Schools should be not about punishment, you'd think---but education.