‘Catch Me If You Can,’ Part 1
If you’ve ever seen the movie Catch Me If You Can, you’ll remember the title character, portrayed by Leonardo DiCaprio.
Frank Abagnale was a bright, charming but conscienceless teen who’d discovered he had a talent for scamming people.
Eventually, with the help of his wife and a good FBI friend — plus multiple stints in prison — Abagnale abandoned the marauding life.
Today he teaches businesses how to protect themselves from people like his younger self.
As Americans regularly learn, however, significant national institutions nowadays think likethe young Abagnale.
Their M.O., also, when it comes down to it, is: Catch Me If You Can!
Many Southern Nevada special-needs families — as evidenced by their lawsuits in federal court — see the Clark County School District is such an institution. CCSD, however, is not a special case. All across the country, more often than not, large public school districts follow the same method of operation.
As Lydia Segal has documented and Nevada Journal reported last year, researchers have repeatedly found that fraud and corruption flourish disproportionately in the largest school districts.
Thus, when facing demanding federal laws that attempt to ensure real education for special-needs children, such districts regularly seek to circumvent the provisions of those statutes and their enabling regulations.
The reason? These laws — primarily the Individuals with Disabilities Education Act and Section 504 of the 1973 Rehabilitation Act — can, if actually obeyed, “interfere” with local administrators’ spending preferences.
It’s then that those districts shift, explicitly and consciously, into their Catch Me If You Can mode.
Thousands of parents and lawyers have witnessed this shift, which requires the parents — if they’re fortunate enough to have the financial means — to seek to legally compel the school districts to obey the law.
Even if successful, unfortunately, this path frequently take years. Additionally, if the parents lack the financial resources, they’re basically out of luck.
The highest-profile witness for big districts’ use of the Catch Me If You Can strategy is David Rostetter, the Independent Monitor for the Los Angeles Unified School District.
Rostetter has headed federal supervision over the special-education programs in America’s second-largest school district, Los Angeles United, since 2013. LAUSD had already been under U.S. courts’ supervision since the early 1990s.
Before appointment to that post, Rostetter had a lengthy, high-level career in the federal government’s administration and oversight of American special-education law.
Speaking to EducationWeek reporter John Tulenko in 2016, Rostetter acknowledged on the public record what many parents of special-needs children have long found — that systemic flouting of the federal Individuals with Disabilities Education Act (IDEA) is conscious school-district policy in many locales across the U.S.
“I’ve had a lot of superintendents around the country,” Rostetter began. “I’ll go to them and say, ‘This is really bad over here. You know, it’s a budding lawsuit and it’s patently illegal.’
“And their answer will actually be, literally be, ‘I’ll deal with it when we get sued about it. Thanks for your advice, Dave.’”
PBS aired the full report on February 23, 2016. An MP3 recording and a transcript are online here.
More than likely, when Rostetter made his “superintendents around the country” remark, some of the experience he was referencing was with the Clark County School District in the 1990s.
Nevada Journal reported on that episode too, earlier this year.
Today, 20-plus years later, plaintiffs litigating against the district still regularly suggest CCSD knowingly operates under policies and a business plan designed to conceal routine violations of federal special-education law.
A current case in point is the ongoing federal lawsuit, Hurd et al v Clark County School District et al, filed in 2016 by the six parents of three autistic children.
CCSD in 2014 had placed the children in the classroom of newly hired and untrained special-ed teacher James P. Doran, who then, according to several teacher-aide witnesses and police, subjected the children to multiple forms of physical and verbal abuse.
Over the course of the school year, the nonverbal children — a nine-year-old girl and boys aged nine and 10 — had, according to witnesses and the parents’ legal complaint, been pushed, pinched, kicked, stepped upon and grabbed forcefully enough to bruise and cause bone and tendon damage.
Doran — a 240-pound body builder — had thrown the nine-year-boy into classroom “bean bag” furniture and shoved him into the wall, said witnesses. The girl had allegedly been lifted off the floor by her hair. Repeatedly, Doran had slapped, hit and grabbed the children’s hands and forcefully thrown them downward. “Nice hands!” he reputedly said.
On one occasion during the presence of the 10-year-old in Doran’s classroom, says the complaint, the boy’s mother picked him up after school one day only to find that his hand and arm hurt so badly he wouldn’t allow his mom to touch them.
“His mother questioned Doran regarding the injury,” states the Hurd complaint, “and Doran denied having any idea of the cause. Upon examination at the emergency room that night, the physician informed the parents … that [the] arm was so swollen due to trauma that they were unable to determine from the x-rays whether there was a fracture to the bone. As a result of the injury, the arm …was in a cast for over a month.”
Since 1999, Nevada law has prohibited multiple forms of “aversive intervention” by school personnel against children with disabilities. Corporal punishment, verbal and mental abuse and any physical restraints outside of an emergency situation are among the multiple categories of actions considered aversive.
School districts under state law are required to train staff “in positive behavioral interventions and positive behavioral supports” that can serve as alternatives to the raw use of force.
Districts’ boards of trustees are also specifically directed by state law to “provide for appropriate training” for supervisory staff so that they will ensure teachers and others “are qualified to carry out the procedures in accordance with” the law.
On this front, CCSD appears to be already in trouble, as one of the parents can testify that Doran’s principal had stated that the teacher’s abuse had stemmed from inadequate training.
However, even if Doran was neither trained nor trainable, CCSD had nevertheless placed him, largely unsupervised, in charge of highly vulnerable nonverbal children who required expert, intelligent and sensitive management.
A key legal issue in liability cases is whether the defendant’s behavior reveals deliberate indifference. Thus, plaintiffs not only are seeking to convince the court that CCSD negligently failed to exercise its due responsibility for the children, but that such negligence is also part of a longstanding pattern of conscious indifference within the district.
As evidence for the latter, attorneys for the Hurd parents cite multiple on-the-record district policies which, they say, operate to keep the public — as well as special-needs parents — ignorant of certain toxic practices endangering children within the district.
Policies listed in the complaint include:
CCSD Regulation R-5152, which prohibits anonymous reporting of suspected child abuse. Because any reports to authorities are barred unless the reports also go to school administrators, potential whistleblowers must risk retaliation from administrators, as well as peer backlash, say the attorneys.
CCSD Policy 1213 and Regulation 1213.1, which require that complaints be submitted, investigated, and resolved at the lowest levels in the district “chain of command.” This means, the Hurd attorneys argue, that complaints of abuse by teachers are handled by their principals, even though the latter may well have an interest in minimizing or concealing misconduct. Because teacher misconduct can be seen to reflect badly upon the principals themselves, reporting it can expose the principals to poor performance evaluations and negative financial consequences.
CCSD Policy 1213 and Regulation 1213.1 alsostate that any district staff complaints sent to board members or the District’s superintendent will not be considered by them, but instead will be passed on to people lower in the command structure for handling. The result, say the Hurd attorneys, is that the individuals at the top of the district avoid hearing complaints, or even knowing whether complaints are properly addressed. Elected trustees and top management, therefore, can maintain “plausible deniability” as to the extent of problems within the district.
CCSD Policy 1213 and Regulation 1213.1 also require that any concerns or complaints or disciplinary actions regarding an employee must be kept confidential. The language warns employees that speaking out about their concerns could expose them to lawsuits. However, no parallel warnings are offered regarding the potential legal consequences of silence.
“On information and belief,” write the parents’ attorneys, “these policies, and the manner in which they are implemented discourage employees from reporting abusive conduct of fellow employees against students and explicitly make it the policy of CCSD to conceal from parents of students when their children’s teachers have engaged in abusive conduct toward students…(Emphasis added.)”
CCSD Policy 1120 states that CCSD has a responsibility to establish a positive image of the District. Such a policy and the manner in which it is implemented, says the complaint, discourages “employees of CCSD from providing truthful information to the public regarding matters of important public interest such as how CCSD handles allegations of abusive conduct by teachers.”
The priority that CCSD places on projecting a positive image is at the expense of truthfulness and accuracy, say the attorneys, and regularly lead spokespersons for CCSD to make “misleading or false statements to reporters, which are then communicated in the media to the parents of students in CCSD, leaving them with a false sense of security regarding the safety of their children.”
Two district programs contribute directly to CCSD’s many special-needs abuse lawsuits, according to the complaint. The Alternative Route to Certification and Alternative Route to Licensure programs are alleged to have been implemented in ways that allow inexperienced teachers to be put in charge of, and left alone with, especially vulnerable non-verbal special education students. The unproven teachers, it is alleged, are then allowed to “practice” without adequate supervision on those vulnerable children.
Chapter 388 of the Nevada Revised Statutes requires schools to report whenever any kind of physical restraint of a special-needs pupil occurs. Such reports are to go:
- Into the pupil’s cumulative record and confidential file not later than one working day after the physical restraint;
- To the “board of trustees of the school district or its designee,”
- To the pupil’s individualized education program team and
- To the pupil’s parent or guardian.
Moreover, if the school board or its designee “determines that a denial of the pupil’s rights has occurred” — that is, the situation was not an emergency — they must, under NRS 388.513, report it to the Nevada Department of Education.
Notwithstanding state law, says the Hurd complaint,
On information and belief, CCSD has a permanent and well-settled custom and practice of not documenting student accidents, injuries, and behavioral incidents and communicating such to the parents of students, thereby preventing the parents of students, especially non-verbal students from having adequate information regarding their children’s experiences during the school day.
When allegations in a legal complaint are offered “on information and belief,” as above, plaintiffs are asserting a belief that court-ordered discovery will produce evidence that backs up those allegations.
On that score, therefore, the concluding paragraphs of this section of the complaint — replete with the phrase — almost certainly got the attention of CCSD’s defense attorneys:
On information and belief, CCSD has a permanent and well-settled custom and practice of declining to make policy or procedural changes in response to confirmed cases of criminal abuse by its teachers.
On information and belief, there is a long history of CCSD teachers and other employees having been confirmed to have abused students, yet, on information and belief, CCSD has repeatedly failed to take steps to improve early detection of potentially abusive teachers, early reporting of abusive conduct, or to ensure that teachers who engaged in abusive conduct were removed from CCSD.
CCSD’s failures to act include, but are not limited to the following:
1) CCSD gave no training to staff that specifically addressed how to handle concerns about potentially serious misconduct on the part of other staff members;
2) CCSD provided no system to allow staff or the public to make anonymous reports, such as “hotlines” of the sort that are common in large businesses;
3) CCSD had in place no systems that recognized the particular vulnerability of non-verbal students by either passively surveilling teacher’s interactions with these students by cameras, or through the use of with one-way glass, nor of taking steps to ensure that teachers of these students, especially inexperienced teachers, were not left alone with the students. Even after CCSD confirmed that Doran had engaged in abusive conduct toward the students in his class, he was permitted to be alone with those students, in a room without surveillance cameras or windows facing the interior of the building.
These paragraphs signal that attorneys for Hurd parents and their autistic children intend a serious, comprehensive audit of how the Clark County School District actually, in reality, treats all categories of special-needs students placed in its care.
Moreover, because it is CCSD itself that’s charged under both federal and state law with keeping detailed records on the many facets of this complicated subject, it’s the district’s own records that must, necessarily, be the primary subject of discovery.
Thus, not surprisingly to long-time observers of the district, its defense attorneys have, for the last two years, fought fiercely on multiple fronts to block plaintiffs’ efforts to review CCSD’s relevant special-education records.
However, a serious question exists as to whether CCSD attorneys, in those efforts to prevent discovery, have gone well over the line and are attempting to prejudice the administration of justice.
That, of course, would be unethical and a violation of bar canons. It also would, once again, embody the “Catch Me If You Can” pattern long thought to characterize elements of CCSD special education.
In Part 2 of this series, Nevada Journal will explore CCSD defense attorney tactics in this case so far.