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Truth or Consequences: AS Kids, Schools and the Law

Students with Asperger’s Syndrome (AS) frequently have behaviors that cause problems in school and lead to extreme consequences. Parents need to know their rights to protect their children.

Florida CBS News affiliate WFOR reported in December 2010 that a boy diagnosed with AS was “kicked out of his kindergarten class after the teacher held a vote among fellow students about his disruptive behavior” (His kindergarten classmates voted 14 -2 for expulsion). The mother sued, settling for $350,000 from the school district.

Jason had a diagnosis of AS. His behavior deteriorated significantly in 7th grade. He had meltdowns, was rude and disruptive and walked out of class. Most episodes were triggered by a teacher demanding/asking for work he didn’t want to do. He became more threatening over time, knocking over furniture, using obscenities towards his teachers and threatening to kill himself when denied computer time. For eighth grade he was placed in a special behavior management school.

During a class in this new school, Jason audibly burped. The teacher confronted him, telling him to write a letter of apology as a behavioral consequence. Jason, embarrassed, refused and loudly justified his behavior. As a result, Jason was given the next level of consequence, placement in the time-out corner of the room behind a screen to write the letter. Increasingly upset, Jason again refused. He yelled at the teacher, called her an obscene name and threatened to throw something. He was escorted to the principal’s office, where he was told he had to write the letter immediately as well as serve a detention and forfeit earned computer time. Jason climbed on the couch and tried to pull a large framed picture off the wall. The police were called.

Children with Asperger’s Syndrome and other PDD spectrum disorders often overreact to situations, as Jason did. They may interpret the actions of others as unfair, deliberately embarrassing or threatening and become emotionally agitated over the triggering situation. At times, as in the case of Jason, their emotional dyscontrol escalates to the point of becoming unsafe to themselves and others, by hitting, kicking or knocking over furniture, or by walking out of a building. These children have poor social judgment as well as poor emotional control, so they use threatening language without appreciating the consequences. To formulate an appropriate response, the behavior needs to be understood in the context of the AS presentation, especially how the child is processing the situation. Behavioral plans focused on eliminating behavior through automatic application of increasingly negative consequences can have the impact of rigidity meeting rigidity, an ineffective way to teach cognitive flexibility and adaptive skills for self-control.

Bruce was in a 6th art class where several students frequently teased him. One day, the children were issued Exacto knives for an art project. When the teacher left the room, the teasing grew intense. Bruce gestured with the knife to a girl near him. The teacher learned of this gesture and told Bruce not to repeat it. A few days later, the same situation recurred. When some other students started talking, Jason assumed it was about him, held up the knife and said something that was taken as threatening. This second time resulted in a warning. Bruce’s mother was told that the school was calling in an expert to deal with the situation so that it would be handled appropriately. The next day, however, the teasing started again. This time, Bruce told the girl nearby, “You don’t have to worry. If I were going to kill anyone, it would be me.” The girl again felt threatened and reported the incident to her father, who pressed the school to file charges. Bruce was charged with the felony of Risk of Injury to a Minor, as well as two misdemeanors. The Juvenile Prosecutor agreed to a non-judicial disposition of the charges, taking into account Bruce’s disability, but stipulated that if Bruce faced charges again within the year, the original charges would be reinstated. This is exactly what happened when the school reported Bruce to the police for making threatening statements again, after a day of what he perceived as harassment from his teachers.

With both Jason and Bruce, the child’s inability to understand and navigate the social situation was met by the school’s inability to understand and manage a student with Asperger’s Syndrome. Teachers may know that a student is diagnosed with AS, but fail to understand that behavior in the classroom is not primarily attention seeking or oppositionality. A student can be very concrete in his questions or blunt with his comments, which can be seen as having an “attitude.” There may be a myriad of triggers: feeling shamed, being told to do a particular kind of task, such as writing, or the actions of another student, even those not intended to be provocative, such as tapping a pencil. A student can tolerate something one day and not the next because he’s tired, hungry, upset by some prior event, or simply having a bad day. This variability can be perceived as proof the behavior is intentional and provocative. Teachers may not understand the hypersensitivity of students with AS to treatment that they perceive as unfair and humiliating. They do not get the tendency of these students to perseverate on the idea that the teacher hates them. Many AS students face an academic Catch-22; they’re twice exceptional, very bright but also learning disabled. They find resource rooms beneath them, which they take as condescension, but feel humiliated when they cannot perform at their intellectual level in regular classes, especially if the teacher points this out in class.

These students usually perceive the behavior of others with concrete, “black and white thinking,” failing to appreciate the viewpoint of others. Once they believe someone is against them, they cannot let go. Teachers can become frustrated with these behaviors and at times respond critically in front of the class, fueling the fire of the student who feels unfairly singled out and humiliated. The AS student may have little understanding of the role his own behavior plays and of the applicable social norms.

Federal law guarantees children with disabilities a free appropriate public education in the least restrictive environment. For any child with a suspected disability, the school needs to evaluate, determine the child’s areas of need, draft measurable annual goals to address those areas of need, and provide educational programs and related services to meet those goals in a document called an Individualized Education Plan (IEP). Where the child has behavioral issues, the IEP should mandate a functional behavior analysis (FBA) leading to a behavior intervention plan that uses positive behavior interventions and supports.

Misbehavior is an inherent part of disability and particularly of children on the autism spectrum. Congress passed the predecessor to the Individuals with Disabilities Education Act (IDEA) in 1975 to ensure that states could not exclude children with disabilities from their neighborhood schools. In 1988, the Supreme Court made it plain that “Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school” (Honig v. Doe, 484 U.S. 305, 323 (1988) ). Simply put, disabled students are not supposed to be punished or expelled for their disability.

School response to misbehavior of an AS student should be proactive rather than reactive. An FBA looks at the antecedents to the behavior, both interpersonal and environmental, as well as the effectiveness of consequences imposed. A good FBA generates hypotheses as to the triggers or the function of the behavior to the child. The accuracy of the hypothesis is determined by measuring the success of the intervention by manipulating antecedents. The FBA should result in a behavior intervention plan that both minimizes triggers and equips the student with adaptive skills. The reality, sadly, is that few school districts are capable of administering an FBA, opting to fill out meaningless checklists instead. The statutory mandate for positive behavioral interventions and supports is frequently violated as school administrators think that increasingly severe sanctions, such as suspension, expulsion, or police referrals, are the way to extinguish maladaptive behavior.

Due to inadequate resources, schools often lack trained personnel to supervise situations where provocations are taking place, to design nuanced accommodations of classroom demands or to embed coaching in self-calming or social skills to help the student develop more appropriate behaviors. In Jason’s case, the behavioral consequences that were supposed to extinguish unwanted behavior exacerbated them. In Bruce’s case, the lack of appropriate supervision set him up for predictable failure. Both children suffered the trauma of being subjected to police intervention and the juvenile justice system.

Honig v. Doe held that a school could not expel or change the placement of a disabled student without parental agreement or a court order. In 1997 Congress added a manifestation determination process to the IDEA. If suspension for longer than 10 days or expulsion were to be considered as a consequence for misbehavior, the child’s IEP team needs to meet to determine whether the behavior was a manifestation of the child’s disability. Even for children not identified as eligible for special education, the school district has to hold such a meeting if it had reason to know that the child might have a disability. The IEP Team (including the parents) must review all relevant information to determine if the conduct was caused by or had a direct and substantial relationship to the child’s disability, or if the conduct was the direct result of the school’s failure to implement the child’s IEP. If so, the child should not be subject to discipline in the same manner as a non-disabled child. For children on the autism spectrum, the expert opinion of a psychologist or psychiatrist is needed to determine if the behavior was a manifestation of the child’s autism. This is critical for parents to understand: in a manifestation determination, parents need a strong and articulate expert.

In Bruce’s case, the police were called due to the “three strikes you’re out” rule concerning threatening behavior. Bruce should not have been subjected to the same disciplinary rules as a non-disabled child. The school should have identified triggers to his behavior and provided safe options when he was provoked.

By calling the police and referring a child to the juvenile justice system, schools circumvent the manifestation determination requirements. Generally, police, prosecutors and juvenile judges disapprove of these referrals except in the most serious cases of personal injury or property damage. Sometimes, juvenile probation officers are willing to work with the family to press the school to provide needed services for the child, because such services are unavailable to the court. Parents whose children are arrested need to stress their child’s disability and the obligation of the school to deal with it.

In dealing with schools, parents should be careful to communicate in written form so there is a clear record. Email works wonderfully because it is not as formal or off-putting as a letter, but still makes a permanent date stamped record of all correspondence. Parents need to rely on mental health professionals to make an explicit connection between the child’s behavior and the disability. Schools should have stronger educational programs for school staff so that these connections are better understood and behavior plans are better devised. Increasingly, the challenge is insufficient resources.

Parents should be aware that misbehavior is a predictable part of being on the autism spectrum. Children should not be punished for having a disability. None of us want children to be explosive, rude, and misinterpret the behavior of others. Yet, we have the right to demand that the school has sufficient understanding to reduce the triggers for misbehavior and to teach the student how to adapt. This is a long-term process and results depend on both the interventions and the child. With education and understanding, the risk can be reduced and positive development enhanced. However, even the best behavior plan will not guarantee good behavior, so it is important that parents know the systems that exist to protect their children.

 

Dr. Eckerd is a licensed psychologist working for over 25 years with children, teens and adults with Asperger’s Syndrome, Nonverbal Learning Disabilities and PDD NOS. She provides therapy, neuropsychological evaluations, social skills coaching, and consultations for parents, schools, advocates and attorneys. She is a licensed psychologist on the National Register of Health Service Providers in Psychology, a resource clinician on OASIS/MAAP (Aspergers.com) as well as NLDline.com, a professional board member of CT Association for Children with Learning Disabilities and Smart Kids with LD, a member of the Council of Parent Attorneys and Advocates (COPAA). Her blog, “People Skills” is found on PsychologyToday.com.

Andrew A. Feinstein has represented children with disabilities and their families pursuing appropriate educational programs for the past fifteen years, first in Hartford with David C. Shaw, and since 2008, as a solo practitioner in Mystic, Connecticut. He is co-chair of the Amicus Committee for the Council of Parent Attorneys and Advocates (COPAA), the preeminent national special education advocacy organization and an adjunct professor of special education law at Central Connecticut State University. Attorney Feinstein was graduated from Wesleyan University in 1972 and the New York University School of Law in 1975. He completed the Senior Manager in Government Program at the Kennedy School, Harvard University, in 1983. He has served as a professional staff member of the House Committee on Armed Services and Chief Counsel of the House Civil Service Subcommittee.

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