ASAN Submits Brief to US Supreme Court

The Autistic Self Advocacy Network, along with several other advocacy groups, has submitted an amicus brief to the United States Supreme Court in the case of Winkelman v. Parma City School District. The lawsuit was brought by the parents of an Autistic child who was not given the opportunity to continue receiving occupational therapy services in an Ohio school after the district had agreed that those services were necessary. The school district prepared an IEP stating only that a further assessment of the need for the services would be completed.

The Supreme Court is seeking to resolve a conflict among the Circuit Courts of Appeals, which have taken conflicting approaches to the question of whether a court's analysis of the content of an IEP should consider only the written IEP or whether the court has discretion to consider other evidence as well.

Parents play a major role in developing an IEP, which is analogous to a contract with the school district specifying the educational services to be provided to the child. Related services such as occupational therapy also must be specified in the IEP pursuant to federal law as set forth in 20 U.S.C. § 1414(d)(1)(A)(4). School districts are prohibited from making unilateral decisions about a child's IEP.

Consistent with the general rule that in contract law, evidence outside the written terms of the contract ordinarily is not admissible in court, three Courts of Appeals have ruled that only the written IEP should be considered in determining whether it is adequate. However, three other Courts of Appeals, including the court from which the Winkelman case was appealed, reached the opposite conclusion in deciding that an IEP lacking the required specific content could nevertheless be found valid based on consideration of other evidence.

The Autistic Self Advocacy Network is asking the Supreme Court to rule that when courts analyze the content of an IEP to determine its adequacy, only the written IEP should be considered. A school district should not be allowed to omit required content from a child's IEP and then to assert later that it intended to supplement the IEP. Allowing districts to postpone decisions on the content of an IEP can lead to considerable delay in providing occupational therapy and other necessary services. The educational well-being of Autistic children and other students with disabilities is best served when they receive therapy without interruption or delay.

Ending Restraint and Seclusion

The National Disability Rights Network presented a report to Congress earlier this week on the harm done to children with disabilities by the use of dangerous restraint and seclusion practices in the schools. ASAN was one of the organizations that signed as a supporter of its policy recommendations. The report described specific cases of children who had been injured or killed as a consequence of being restrained or isolated by their teachers and other school employees, and it recommended policy changes to prevent such practices.

Because the federal government does not keep data on such abuses and there are no national reporting or tracking requirements, it is likely that the number of children injured by restraint and seclusion may be significantly larger than the cases reported. Rep. George Miller, who chairs the House Education and Labor Committee, has promised to schedule a hearing on the restraint and seclusion issue.

Autistic children, because of their behavioral differences, are disproportionately victimized by restraint and seclusion practices in the schools. Evelyn Towry, an eight-year-old autistic girl in Idaho, recently was restrained by two teachers whose goal was to prevent her from going to the school Christmas party wearing a cow sweatshirt. As reported by KXLY.com, Evelyn said that she struggled with the teachers because "they were holding me down and I got thumb bruises on me." She was taken from school in handcuffs, briefly placed in a juvenile detention center, and charged with battery (a charge that was soon dropped)... all because of an argument over a cow sweatshirt.

Children in Ohio also are injured and sometimes killed as a result of school restraint and seclusion practices. The Cleveland Plain Dealer reported last week on the case of Faith Finley, a student who suffocated as a result of being held face down at her school. Cuyahoga County Coroner Frank Miller declared her death a homicide. The Ohio Department of Mental Retardation and Developmental Disabilities has banned this practice, known as "prone restraint," because of its danger, but it still occurs in some Ohio schools.

Ohio has no statewide requirement for reporting of incidents involving restraint and seclusion.