Voices of Reason?

Tricia & Calvin Luker

Last week West Virginia’s Kanawha County Schools [KCS] and the family of a 20-year old student with autism settled a federal court appeal over the student’s right to educational services under the Individuals with Disabilities Education Act [IDEA]. KCS officials agreed to pay the family $460,000, setting off a firestorm of controversy.

We have seen the Charleston newspaper reports (see http://pub60.ezboard.com/fourchildrenleftbehindfrm28.showMessage?topicID=54.topic )depicting public outrage at the decision. Clearly the perception is that the family used and abused the system. We expect school administrators and those who support gutting IDEA will use this case as their “Exhibit A” in support of their position. Today we are launching a preemptive strike.

The KCS case, which we are now calling “Logan’s case,” began in 2000. Logan, whose autism created significant behavior challenges, began striking out at others when frustrated. KCS teachers and administrators did not develop an effective behavior support program to help Logan change or reduce his behavior challenges. When Logan kicked a teacher KCS suspended him.

Naturally, the teacher’s injury raised public concern, but what happened next should appall us all. Logan’s classmates’ parents and other KCS parents petitioned the KCS school board for Logan’s expulsion from school. On November 16, 2000, a meeting was held at which both parents and students presented their demands that Logan be expelled from school “for good.” According to public reports, one school board member, John Luoni, characterized Logan’s behavior as “terrorizing” others, and said he was ashamed that Logan was still in school.

Logan’s school record in the years before this incident had been strong. He had not exhibited significant behavior challenges, and he had been participating fully in classroom and school activities. In fact, in 9th grade, Logan, who was a member of the Sissonville High School soccer team, scored a goal that represented a victory for his classmates and school as well as for himself. The behavior challenges that led to the November suspension were of recent origin.

In the days after the November meeting, KCS officials and Logan’s parents agreed to change Logan’s educational placement to an “out-of-school environment [OSE]” with specific programming requirements. The agreement, reached on December 7, 2000, was “negotiated in the context of the schools’ personnel being under political heat to get the student out of the schools,” according to the hearing officer who heard the case.

The efforts to implement that settlement agreement were unsuccessful, and his family asked for a due process hearing as permitted by IDEA. KCS, too, raised hearing issues. The hearing itself was held over a six day period in 2002. The hearing officer issued his decision on July 29, 2002, specifically finding that KCS violated its agreement with Logan’s family in the following ways:

• failed to permit Dr. “X” -- upon whom both KCS and Logan’s family previously had agreed – to chair Logan’s IEP team meetings;
• failed to permit Dr. “X” to draft Logan’s IEP;
• failed to permit Dr. “X” to determine Logan’s IEP when his IEP team could not reach a consensus;
• “blatantly violated” the agreement by having KCS personnel perform Dr. “X’s” duties rather than permitting Dr. “X” to perform those duties;
• “clearly intimidated” Dr. “X” from performing his responsibilities under the agreement;
• arbitrarily placed limits on Logan’s instructional hours;
• arbitrarily placed limits on the number of hours that educational services could be delivered to Logan;
• arbitrarily determined the location where Logan would receive his educational services;
• arbitrarily delivered Logan’s educational services in inappropriate locations; and
• failed to give due consideration to Logan’s need for interaction with same-aged peers.

The hearing officer also found that Logan’s family violated Logan’s programming agreement by failing to cooperate on a comprehensive medical evaluation.

The hearing officer found that “[t]he settlement agreement contains a number of provisions that might be above and beyond what would normally be considered a free and appropriate education for the student.” The hearing officer explained why he felt KCS entered into the educational agreement:

Quote:
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"A school board member made public statements to the effect that he was outraged that this student was still in school. A large group of angry parents filed a petition with the school board seeking to have the student kicked out of school for good. ... Although certain witnesses called by the schools testified that they were under no pressure to get the student out of school, their testimony as to this fact was not credible.”
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The hearing officer’s July 29, 2002, decision ordered KCS to implement the December 7, 2000, agreement as written. KCS chose to appeal the hearing officer’s decision to federal court, leading to the $460,000 settlement that was announced last week.

We can only imagine that school boards and administrators are going to jump on Logan’s case and trumpet it as an example of IDEA gone mad. In reality, it was the public and KCS school district officials who violated the letter and spirit of IDEA.

We have the vision of Logan as a 9th grader playing soccer, scoring a goal and reaping the praise of his teammates and the assembled spectators. Then we have to contrast that vision with the spectacle of a crowded auditorium filled with ADULTS all focused on what was wrong with Logan. Imagine that the issue before the crowd was not the disability-related behavior of a child, but the child’s race. Picture the school board member expressing shame that the child is a student at KCS.

Picture Logan, whose autism clearly has impeded his ability to integrate effective and successful social skills. What price has he paid for his skills deficit? Here are some of the things that happened to Logan in the months before or immediately after his parents and KCS reached their December 7, 2000, agreement.

• A teacher stood by while Logan’s classmates had him lick bird manure off of a car window. The school principal asked Logan’s mother what she expects when her son is attending general education classes.

• He was the victim of a “get tough” program, also called “aversion therapy,” in accordance with which a KCS staff member threw water on Logan and yet another ordered Logan’s classmates to surround Logan, kick at him and throw books and other objects at him.

• Logan was pinned down in the school office by four KCS staff for making repeated phone calls from the school office phone.

• Logan’s “classroom” at his high school was a windowless locker room underneath the school’s football stands.

This case is not about monetary damages. What amount of money could possibly compensate a child with autism for what Logan has had to endure? The fact is that the settlement announced last week is not intended to pay Logan or his family one penny in damages for the things we listed above. Instead, the money is intended to give him the education that KCS specifically agreed to provide him and then willfully refused to deliver.

Logan’s case is a study in bigotry and bias. For 29 years IDEA has existed to promise and ensure Logan and 6.5 million other students like him that they will receive a free appropriate public education. The hearing officer clearly was not fooled by what motivated KCS to enter into the educational agreement with Logan’s family. He saw the bigotry and bias that drove the school’s decision. We see the same bigotry and bias infecting KCS’ ability to implement the agreement once it was reached. We can only imagine what Logan’s education – his life – would look like without IDEA and without hearing officers who have their eyes open to the realities that still exist in America’s communities today.

We are fixated on that auditorium full of angry adults and the public leaders cowering in the face of their onslaught. Although both the audience and the school board knew Logan and knew that he had needs, neither the audience nor the board had the courage to do the right thing in the face of Logan’s behavior challenges. The audience lacked the courage to challenge the school’s refusal to address Logan’s challenges. The school board lacked the courage to reject the mob mentality and the bigotry displayed by the audience.

Politicians and public officials proudly tell us on a daily basis that America is a nation dedicated to the rule of law. For nearly 30 years IDEA has been the special education law of the land. The sordid history of how America abused and warehoused children with disabilities in the centuries before IDEA helps demonstrate why IDEA as a rule of law is so important even now.

If the auditorium of adults and the KCS system could have had their way, Logan would have no rights and the mob mentality would have enforced his isolation. IDEA was there to counter the mob mentality and to ensure that in America – a country existing under the rule of law – Logan would be protected and would receive his fundamental right to education. Logan’s case shows why we need IDEA now more than ever. We cannot let Congress take that away from Logan or from his 6.5 million school peers.

Tricia & Calvin Luker, today's parentvolunteer@ourchildrenleftbehind.com


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©2004 Our Children Left Behind.

Our Children Left Behind [OCLB] was created and is owned/operated by parent volunteers (Sandy Alperstein, Tricia & Calvin Luker, Shari Krishnan, and Debi Lewis). Permission to forward, copy, and/or post this article is granted provided that it is unedited and attributed to the author(s) and www.ourchildrenleftbehind.com. For more about OCLB or to share information, please contact parentvolunteer@ourchildrenleftbehind.com.