Two recent cases from the Sixth Circuit Court of Appeals (the federal circuit where we are) have proven to be sobering statements regarding the constitutional and other protections afforded to students with severe disabilities who are abused by a teacher in a public school. The first case, Domingo v. Kowalski, involved a teacher at the North Point Educational Service Center in Toledo. In that case, the teacher was alleged to have done the following: tied a nonverbal autistic child to a gurney and put a gag in his mouth to keep him from spitting; tied a nonverbal autistic child to a toilet seat with a man’s belt she brought from home; and placed a nonverbal autistic first grader on a potty chair in her classroom, including during mealtimes and once took the potty around to show the other students when this child produced a bowel movement into it. The aide was fired; the teacher remained.
The parents of these children, who were unaware that their children were being mistreated by this teacher, filed an action against her and the Service Center when one of the aides spoke up. They alleged that the students’ rights to substantive due process under the Fourteenth Amendment to the Constitution had been violated. The district court actually characterized this teacher’s behavior as abusive, but both the district court and the Court of Appeals found no constitutional violation. The Court said that because the teacher had a “pedagogical” purpose for her actions, in other words, she intended to teach something, there was no violation. This pedagogical purpose kept her actions from “shocking the conscience” of the Court which is part of the standard of the Court’s review. Because these students were not toilet trained, the Court said, her intention to keep them from soiling themselves was a legitimate teaching objective when she tied them to the toilet or kept them on a potty chair in full view of their classmates. By the same token, tying and gagging a student who spits was legitimate because this child was not complying with repeated teacher requests to stop self- injuring and spitting, and the teacher said she “needed to be firm.”
Equally disturbing was the Court’s decision that the Plaintiffs had not produced any evidence of “serious” injury and their claim must therefore fail. Again these students could not describe to anyone how they felt about the treatment they endured because they are all nonverbal. It certainly makes one wonder whether this Court would treat nondisabled students similarly, right? Is it ok to tie a nondisabled student to a toilet if he has a toileting accident?
In Gohl v. Livonia Public Schools, a three year old child with hydrocephalus, who was medically fragile and severely brain injured, knocked a toy off a table. His special education teacher, Ms. Turbiak, grabbed him by the top of his head, yanked his head back “aggressively” and screamed in his face. In a split decision, the Sixth Circuit once again found that this teacher had acted with intent to teach this severely disabled child to clean up after himself. “Requiring a child to clean up a mess he made not only fits with a common-sense understanding of what teachers typically do, but it also fits with the demands of J.G.’s Individualized Education Program—as provided under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400. Whatever one thinks about the timing or manner in which Turbiak used this technique here, no one can credibly deny that Turbiak had a pedagogical purpose in using it.” The evidence in the Gohl case established that Ms. Turbiak’s students were “being force-fed while crying and gagging, being screamed at in their faces, being violently grabbed and pushed to the ground, being put in restraints made of potato chip cans, having their chairs pulled out from under them, or being otherwise humiliated and treated like something less than human….” Again, the Court found that this teacher’s behavior did not violate this child’s constitutional right to substantive due process, and further found that there was insufficient evidence to show that the behavior was disability-based discrimination. Case dismissed. No reasonable jury, the Court concluded, could reach a decision other than the one it had reached. Judge Clay of the Sixth Circuit wrote a scathing dissent in Gohl which is worth reading.
What does this mean for your child? Well, for starters, nothing good. Obviously if a teacher abuses a student with a disability, and then declares that he or she had a teachable moment in mind, it largely protects the teacher from being sued for violation of the child’s constitutional or other federally protected rights. Where is the line when abuse becomes actionable? Though it is hard to say from reading these cases, any actionable case would probably require some physical injury that involves bleeding, and even then it might not pass muster. But that does not mean you cannot seek damages against a teacher who abuses your child. But you would have to file the case in state court, and would have to allege some sort of reckless misconduct or even assault. In such cases, though, you would have a more difficult time bringing the claim against the school district.
When the right case comes along though, the civil rights bar will ask the Court to revisit this issue because the incorrect standard was applied. The standard is not whether the teacher acted with malice, which is virtually impossible to prove particularly where the teacher claims she was trying to instill some discipline into the class or the child. Instead, the Supreme Court has distinguished cases where police officers, for example, have to make split second decisions in order to protect themselves and the public. But where an officer has the ability to deliberate about how to act, and then proceeds to engage in abusive or violent behavior, that conduct is no longer protected. Disabled children who cannot speak up to protect themselves, or tell their parents what has happened to them, require more, not fewer, protections than a suspected criminal, or even a nondisabled child. The right to bodily integrity, particularly for a severely impaired individual, needs to be determined under the proper standard. The standard applied in these cases is not the right one.