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Note: I will be updating these pages and adding new content.  - Dave Thompson, Sept. 25, 2005

Disabled children as persons
(with rights!)

 Posted August 1, 1999

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

"He was strapped to a chair because he was handicapped, he was strapped to a chair because they [the school] thought they could get away with it." [child's attorney]

"...[those] accused of playing a role in the alleged abuse and neglect were lifelong educators ...[child] had been harnessed to his desk, but that he liked it" [school's attorney]

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West Virginia Jury's verdict?

"A Kanawha Circuit Court jury has awarded nearly $350,000 in damages to the family of a retarded Mingo County child." Charleston Gazette, June 8, 1999

A $338,928 verdict was returned by jurors in the case of Ronnie Lee S. -- an 11-year-old mentally handicapped boy who was strapped to his desk by teachers. Charleston Daily Mail, June 8, 1999.
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Opening comments by one of child's attorneys

As we know from so many other legal cases of any consequence, the legal process can span years. In this case, more than five years. While the child was 11 when this verdict came down, consider some of the opening remarks of one of the child's attorneys as reported in the May 27, 1999, edition of the Charleston Daily Mail:

During opening arguments in the civil lawsuit Wednesday, Mary Downey, [child's] attorney, painted a heartbreaking picture for jurors.

She described how her client was bound to his chair in a special education classroom at Lenore Elementary School at the age of 5. She promised jurors that they would hear evidence of a boy coming home with bruises and in great distress.

She also told the story of a mother and father whose own lives were shaken to their foundations as they watched their mildly retarded son, who had been affectionate and loving, became increasingly hostile and difficult to manage. ["1995 abuse suit finally goes to trial", Charleston Daily Mail, May 27, 1999, emphasis supplied]

Why did it take six years (child at age 5 until verdict returned with child at age 11 in 1999) for this case to go before the community in a court of law? More on this later. But first.
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 The Big Lie

big lie a false statement of outrageous magnitude employed as a propaganda measure in the belief that a lesser falsehood would not be credible. (Random House Unabridged Dictionary, Second Edition, c 1993, 1987 by Random House, Inc.)

And how was this then five-year-old child restrained?

foam rubber and vinyl apparatus called the "Love Bug." It featured a cartoon insect and flowery lettering proclaiming its name. [newspaper reports and court documents, emphasis supplied]

The Love Bug ... the Love Bug, that's what the school called it.

The jury verdict speaks to what the community thinks of these abusive practices. Perhaps there is hope for our disabled children in American public schools. Perhaps. But first we must overcome the apathy and ignorance of politicians. And perhaps even that of our fellow citizens, who - given the chance - demonstrated in this one case anyway, that they care. So perhaps our community is not apathetic, perhaps these cases just get covered up or sidetracked as "procedural violations". Given the opportunity to judge, and with sufficient knowledge, one jury has sent a clear message.

But was it always clear that a jury would have the chance to judge the actions of this particular group of  lifelong educators? Not at all.
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The long and tortious road

When it comes to abuse of disabled children in public schools, the federal law, IDEA (Individuals with Disabilities Act), can - in my opinion - be best described as a toothless wonder. It provides no criminal penalties (has no teeth) and it's a wonder if the law accomplishes anything other than schools admitting disabled children at all. Of course, as we know from Garret F, the schools would like to avoid even that (admitting children with disabilities).

Once there (child is in school) the schools seem relatively free of constraints regarding their actions. Compliance? The state education agencies appoint the impartial due process hearing officers. Not that due process hearing officers don't from time to time find schools make procedural errors. I've always thought that the analogy to special education due process would be the EPA (Environmental Protection Agency) finding it OK for a company to pollute - so long as the company filled out the paperwork properly: "Last month we discharged 12,567.32 gallons of toxic waste into the local river." Oh, good. We were concerned that you were not accounting for each and every gallon.

The feds (Department of Education) are no-shows. Of course in the current political climate, the conservatives would do away with the entire DOE anyway.

And we hear a lot about "local control". Wow. Where would we be with local control and civil rights in the South? Based on the published results of Texas' due process hearings, parents of disabled children know something about compassionate conservatives and local control. Frankly what many parents of disabled children know about Texas and local control is the provision in Texas law for home schooling.

In any event, it would seem to benefit any school district facing allegations of "tortious acts of assault and battery, infliction of severe emotional distress, negligent supervision and training, false imprisonment and fraud, and retaliation" (897 F.Supp 284) to have the case treated as an IDEA case, not as a civil case as would be provided regular citizens.

That said, we find the case of Ronnie Lee S. in the Federal District Court   (897 F.Supp 284, United States District Court, S.D. West Virginia,  decided August 25, 1995). Basically the school district got a lower court order removing the case from West Virginia state courts in order to try the case in federal court as an IDEA case. The Federal District Court: "GRANTS Plaintiff's [Ronnie Lee S.] Motion to Remand the action in its entirety to the Circuit Court of Kanawha County, West Virginia, for all further proceedings."

While the Court did find merit in some of the school districts reasoning to move the case from state courts to federal courts, the Court noted, "Nevertheless where the crux of the action rests in the construction and application of state law, the court may remand the entire case, including putative federal claims."

So now we are into 1995 for actions that took place in 1992-94. And we are three years nine months from this case going before a jury of citizens.
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If at first you don't succeed

December 1997 finds this story now in the Supreme Court of Appeals of West Virginia. Turns out what certainly appears to be a school-friendly Circuit Court of Kanawha County has made a summary judgement for the school district. And once again a higher court (this time the state supreme court) reverses. (1997.WV.467, Ronnie Lee S. v. Mingo County Board of Education).

Still sticking to the IDEA claim, the school again claims that IDEA and its procedures should prevail; the school appears to be consistent in seeking the safe harbor of toothless IDEA.

The West Virginia Supreme Court noted in their published opinion:

... the Individuals with Disabilities Education Act was created to expand, rather than to restrict, the rights of disabled children. Such an intent is evident in the purpose of the Act set forth in 20 U.S.C. 1400(c) [1991]. In particular, any further attempt to exhaust administrative remedies, as in the circumstances herein, would be futile, where the relief sought in the civil action is not generally available under the Act. Accordingly, this Court holds that a civil action filed in a West Virginia circuit court, seeking monetary damages and injunctive relief from a county board of education and its personnel for the frequent and injurious use of a device employed to strap an autistic child to a chair while attending school, and which action includes allegations that the device was used upon the child in an intentional or reckless manner, is not precluded by the federal Individuals with Disabilities Education Act ...

...

The final order of the Circuit Court of Kanawha County, entered on June 25, 1996, is, therefore, reversed, and this action is remanded to that court for further proceedings.

In lay person's language: either the parties reach a settlement or this case should go to trial (in state court). And so it finally did on May 27, 1999 with the jury verdict announced on June 8, 1999.
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Does this story have any heroes?

Yes, it does. The attorneys who represented Ronnie Lee S. are heroes in my eyes. All I know is what I read in the newspaper accounts and what the two published court opinions say. I see two names as attorneys for Ronnie Lee: Mary Downey and Beverly Selby. And I am thankful that such persons would pursue the law with such diligence and skill for one child.

And as parents we should all be thankful that such persons are there. And we should indeed hope that this glimmer of hope is not extinguished, but picked up and carried by other attorneys who choose to represent not the powerful, monied interests of school districts, but choose instead to represent our children.

We should also be thankful that Ronnie Lee's parents somewhere found the energy and willingness to see this through. They stood up for their child, and your child, and my child.

Dave Thompson - August 1, 1999
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Special thanks to Jean Bowden for bringing this story to my attention. Jean is fighting the good fight. Her story is told elsewhere on this site: The Making of an Advocate