State: City schools violated student’s right to education
By Josh O’Gorman
STAFF WRITER | January 24,2014
Rutland City Public Schools violated a student’s right to a fair and adequate education when it overused physical restraints and repeatedly left her in a locked room for hours on end, according to a ruling from the Agency of Education.
The agency ruling — which was issued Dec. 3, 2013, but only posted to the agency web site this week — ordered the district to pay more than $88,500 in educational and tutoring costs incurred by the student’s family after the family removed her from the city’s school system in April 2013.
The ruling came from a system called due process, which is used to resolve disputes between parents and educators in the special education system.
In a written statement, city School Superintendent Mary Moran responded to the due process hearing order.
“The Rutland City Public School Board of Commissioners is evaluating its options regarding what next steps should be taken with respect to the order. The board strongly disagrees with the order and its findings,” Moran wrote.
She described the staff at Allen Street Campus, where the student attended, as “caring, compassionate and highly qualified.”
For about 2½ years, Jonathan Parie’s teenage daughter attended the district’s alternative program, first known as Success School and now known as Allen Street Campus.
The program is intended for students with an array of cognitive and behavioral issues. The state’s ruling said Parie’s daughter is on the autistic spectrum, suffers from post-traumatic stress syndrome from abuse she suffered prior to her father winning custody in 2010, and has the special education designation of being “emotionally disturbed.”
According to due process documents and other accounts, Parie’s daughter was a difficult student who would spit on staff, throw furniture and engage in other negative behavior. In January 2013, her behavior grew more difficult.
In response, she “was kept in a locked room, devoid of furniture,” the documents state. “The room had no desks, no chairs, and no writing materials.”
The student saw the room as a prison cell, according to the documents. “Removing all the furniture from the room, ostensibly for protecting student and staff, reinforced the perception of a jail cell.”
From January through April of 2013, the documents state, “no meaningful instruction occurred.”
More troubling, for Parie, were the physical restraints used on his daughter. Documents state he told school staff of his daughter’s physically traumatic background and asked that his daughter not be restrained, but she was routinely restrained by four or more staff members, and the restraints, as described in the documents, were inconsistent with the training allegedly provided to staff.
The district uses a training program called Crisis Prevention Intervention (CPI), which offers very specific guidelines for what is safe for the student and what is safe and professional for staff. Documents describe testimony from Parie in which he witnessed school staff wrestle his daughter to the floor and hold her down by the wrists and ankles.
This is not part of CPI training, which discourages staff from either taking a student to the floor or grabbing a student by wrists and ankles.
Last April, Parie removed his daughter from Allen Street Campus and hired a tutor for the summer. At that time, the district had started a due process effort to move his daughter to residential placement - in a facility equivalent to the Brattleboro Retreat. That effort was withdrawn after opposition from a state agency of education review team, according to hearing documents. In August, Parie enrolled her in a private, independent school in the area.
According to Parie, his daughter is thriving in the new location and has been restrained once in the past six months.
In September of 2013, he filed a due process claim, seeking tuition from the district.
“I’ve just been so appalled with they way they (Rutland City schools) have treated my daughter,” Parie said.
It was the second due process claim pursued by Parie. The first, which he initiated in February 2012, resulted in a ruling that he and his partner had “not supported their allegations of substantial or procedural failures to comply with IDEA, thus denying FAPE.” The 2004 Individuals with Disabilities Education Act sets a legal standard for a “Fair and Adequate Public Education” as the standard that public schools must meet for children with disabilities.
Due process is a quasi-judicial system that is a kind of last resort in resolving disputes over children in the special education system.
“It’s the final element in what usually has been an ongoing dispute between the parents and the school,” said Alice S. Farrell, special education director for the Agency of Education.
“Parents don’t usually jump right in and say ‘if he didn’t get his OT (occupational therapy) on Tuesday I’m taking you to due process,’” she said. “... there are intermediate steps leading up to that, that parents have somewhat of an obligation to participate in.”
Parie didn’t jump straight into due process, said Phelippa Hurley, executive director of Vermont Education Consultants, who acted as Parie’s advocate during his conflict with the district.
“We reached out in all the traditional ways,” Hurley said. “We appealed to (Superintendent) Mary Moran several times. We wrote letters to the School Board, and nothing would ever come of it.”
Farrell said she can’t comment on individual due process cases, but said about 20 cases enter due process each year in Vermont. Of those 20, about four or five get to an actual hearing, while a decision is issued in only one or two cases a year, she said.
That’s because the first step in due process is mediation, Farrell said, and in most hearings, the dispute is resolved without the need for a judgment. No hearings reached the judgment stage in 2010 and 2011, according to the Agency of Education, while three did in 2012, two in 2013 and one so far in 2014.
There are three hearing officers — all lawyers who have been vetted by the state — who handle the cases in Vermont, and are required to judge based on evidence presented.
“In some cases, there is a lot of emotional response, emotionality, and people on both sides just become blind to what the reality is,” Farrell said. “And it takes the impartial hearing officer — that’s what their title is, an impartial hearing officer — to just level that playing field, that emotional playing field.”
In a Dec. 3, 2013 decision, Hearing Officer Bruce Hesselbach ordered the district to pay $84,900 in tuition to the student’s private school, as well as $3,607 for the tutoring work performed during the summer. He cited the lack of learning that occurred during the first four months of 2013, and took issue with the district’s use of restraints.
“As noted previously, District has failed to learn the lesson that its excessive restraints were harmful to Student,” Hesselbach wrote.
Records state that throughout the due process hearing, people who testified on behalf of the district blamed Parie for his daughter’s troubles at school.
“What’s just so incredibly frustrating is how the district just refuses to take any sort of responsibility for anything,” Hurley said.
One person “testified that Student did not react badly to restraints and that instead Student’s problems stemmed from the fact that the family did not love her,” records state.
“The speculation by (Director of Support Services) Eloise McGarry that Father was somehow influencing student to hate school was completely unfounded,” Hesselbach said.
The district has 90 days from Dec. 3 to appeal the order.
Rob Mitchell contributed to this story.