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"The present
case, while dealing with the simple issue of one handicapped
child's use of a public school playground during school hours
has much larger implications. The civil rights of all
handicapped people, children and adults alike, to fully enjoy
and participate in all of life's various experiences are at
issue" (Amended complaint)
The story is in my affidavit. All facts are true and
substantiated by evidence.
My son, JR, is 9,home schooled, HFA/Asperger's. He's bright,
interesting, very computer savvy, makes digital movies, and
loves animals, science and swimming. A team of professionals
have developed and constantly monitored his highly successful
program, which has been in effect for two years. Attending the
local playground at recess with his staff and myself was part
of his program -a great opportunity to get outdoors, play, and
meet friends - until November 7, 2003.
The playground, voted the "best " in the vicinity of Portland,
Maine, is a popular place for Falmouth children and children
from neighboring towns, whether they are home-schooled, public
schooled or privately educated.
In September 2004 unbeknown to us, public employees had been
told to follow my son and I on the playground, and:
· Document every day
· Don't be lulled into a couple of weeks of calm
· Don't talk to Mom
· Just watch kids and journal
· Note who he plays with/what they do
Falmouth, ME employees took eighteen pages of documentation of
my son's behavior and words during those six weeks. I wrote to
the elementary school Principal in October and asked about
people following my son with clipboards. I told her that I was
uncomfortable with this, and I requested that this behavior
cease.
She informed me, in writing, that this was not occurring,
because they did not have my permission to assess my son in
any way The clipboards disappeared, and then, we received a
call from Falmouth Director of Special Services, informing us
that we could no longer go to the playground, because she and
other administrators had decided so. A letter confirming this
followed.
Why? My son did not break playground rules, and the few times
he was in the library, he read a book quietly in a chair. He
is a self-contained child, a brown belt in karate, who prefers
solitude. He, is with his parents or trained staff at all
times. The Director gave no specifics for this decision. So, I
called for a meeting.
Three weeks later, Attorney Coles, and I met with school
Administrators. They stated that it didn't "feel right" having
my son on the playground. They felt that the "emotional safety
" of others was at risk. At this meeting, the town offered to
conduct a functional behavioral assessment of my son, to
discern and "document any behaviors that could become
problematic in the future." They stated that they were seeking
"preventative information." They felt that his behaviors were
not "age appropriate".
From one viewpoint, this is true. My son is autistic. His
behaviors are different. But he's never harmed anyone or
damaged property. His behavior is not criminal, yet he is
being treated as if his differences are.
At this meeting, we realized that pages of notes about my son
existed, and requested them. The Administrators would not let
us see the notes. They refused to give the notes to private
council. They permanently banned my son from the public
playground, and stated that he could only attend in the future
for scheduled documentation purposes.
A week later, the Police called our home. My son and I would
be arrested, "Put in cuffs", if we went to the playground in
the future. This directive did not come via normal police
channels, but through the Office of the Superintendent of
schools. The strangest part - we had not been at the playground
for three weeks! A letter confirming police involvement
followed.
In December, the Office of Disability Rights was able to get
the snooping notes and a summary. The summary of my son's
behavior - the cause of his expulsion from public includes:
not responding to hellos, not being interested in playing some
games, reporting that he was being spied upon (which he was),
and once, jumping off a bench the wrong way.
After the release of the snooping notes, administrators stated
that my son had threatened children and thrown rocks. No such
incidents are in the snooping notes. No such incidents were
reported at the meeting in November. And no incident reports
of any kind are on file. And, there are no rock at the
playground. Its surface is packed dirt and bark chips.
In January, the chairman of the School Board suggested that we
contact the Human Rights Commission. Since that process would
take several more months of my son's life, (during which time
he would still be discriminated against), we chose to file a
Civil Rights suit. The civil rights suit continues.
The Legal Story:
On February 12, we filed a suit (Superior Court docket #
CV-2004-98) against the Town of Falmouth, Maine, Superintendent
of Public Schools, Director of Special Education, School Board
President and principal of the Elementary School, both
individually and collectively for discrimination under the
1983 Civil Rights laws.
On February 27, 2004, the Defendants made a motion to move the
suit to Federal Court, (04-45-P-H) and simultaneously filed a
Motion to Dismiss. They did not answer the complaint.
For two more months, papers passed between the parties'
lawyers. A decision was handed down by the Court on April 30,
2004 stating that the Falmouth playground is a place of public
access, May 7 was set as a date to hear oral arguments
pertaining to the questions Judge Hornby raised: Could relief
be sought under IDEA? Why didn't the plaintiffs file sooner?
Why didn't the Plaintiffs follow Administrative procedures,
such as filing a complaint?
(We couldn't file our case sooner because the school district
refused to hand over their snooping notes. We had no
information. We couldn't file under IDEA, because my son is
home-schooled. We didn't file a complaint because a complaint
does not grant relief.)
On November 8, Judge Hornby ruled dismissal of Federal
Complaints, State complaints remaindered to State court, and
exhaustion of Administrative procedures are required. Three
months have passed since we filed in State court. The circular
route of Justice has taken three months to return us to our
starting place.
Now what?
We will continue through legal channels. Additional filings
will occur soon. The threat of arrest still exists.
I'm requesting that Amy Harmon, NY Times, be gracious enough
to read over the legal file and write an article about this.
Crystal Channey, WGME, Portland, Maine has been covering the
story for months. She's spent time with us, attended court,
and respects autistic individuals. Our attorney, Ron Coles,
has been amazing. He works so hard, and has come to believe in
the gift autistic individuals bring to society.
We are soliciting amicus curaie to file briefs on my son's
behalf, because it is a human rights issue, a discrimination
issue, a home-school issue and a disability issue. For amicus
curiae, an interested party, one that can be affected by the
outcome of a suit, files a brief which gives additional
information to the court, and informs that the decision will
not only affect the individual for whom the suit exists, but
will affect a larger group of the populace. If you have
contact in an organization that would like to file, let me
know.
Decision:
GAYLE FITZPATRICK AND CHARLES RANKOWSKI, (Individually and as
Parents of J.R.,) a Minor, vs. TOWN OF FALMOUTH, ET AL.
CIVIL NO. 04-45-P-H. MEMORANDUM DECISION AND ORDER ON
MOTIONS
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