I filed a brief in a special education case recently opposing a motion to dismiss the case. Want to share the Introduction as it spells out my view of how school districts (and their insurance companies) are treating kids with disabilities:
What is getting lost in the legal gymnastics of the pending motions to dismiss is that this case is about the education of a young disabled child, D.M., who was abused by the public school system and staff with whom he and his parents entrusted his education and safety. Yet, no Defendant in this case wants to accept responsibility or be held accountable for the tragic harm done to D.M., a little boy with Autism and other co-morbidities. Children with Autism are more susceptible to abuse and bullying, particularly in the public school environment.
Although not expressly stated in the Constitution, our highest Court has recognized that education is a fundamental right. See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954) (“In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”) Furthermore, through the Equal Protection Clause and other federal legislation, education of disabled children is also protected as a fundamental right and goal of our society. See, e.g., Board of Education v. Rowley, 458 U.S. 176, 179-84, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).
Apparently, the Defendants in this case must feel that physically restraining and abusing a disabled child; emotionally and psychologically abusing that same disabled child; and exposing that disabled child to an unsafe, hostile education environment through the efforts of purported ‘experts’ on the Child Study Team by placing D.M. in a classroom with unqualified and dangerous personnel is perfectly acceptable by the standards of 2011-12. One must reach this conclusion by the exhibition of the extensive and ultimately futile efforts of the Defendants to dismiss this action.