Thursday, February 2, 2017

#Gorsuch on Disability Law: Forced Timeouts Are Ok!

This decision was NOT written by Gorsuch, but he did concur. It was written by Michael McConnell, a Bush (W.) appointee and an interesting guy.  When it comes to disability cases that Gorsuch heard, this finding stands out to me, as it plays into the broader patterns of the #CultOfCompliance that I study. Forced seclusion is one of the standard techniques that show up in school abuses cases, especially when used to force compliance, rather than as part of a planned, behavioral management strategy (due to violence, etc.).

So, in Couture vs Board of Ed. of Albuquerque, Jennifer Couture was suing about her son being placed in the "timeout room," a euphemism for forced seclusion, in order to coerce behavior.
In 2002, when he was six years old, he was placed in a special education program at the Governor Bent Elementary School.   School officials worked with his mother, Jennifer Couture, to develop an Individualized Education Plan (IEP).   The plan included a “behavior management system” designed to teach M.C. to control his dangerous outbursts.   In addition to implementing clear and strict rules, the system permitted teachers to place M.C. in supervised timeouts when his behavior became disruptive.
Despite the small class size and personal attention M.C. received, his behavior did not improve, and, at times, it deteriorated.   M.C. frequently interrupted class and often made it impossible for the teachers to instruct the other students.   When they could not control his behavior, the teachers placed him in timeout until he calmed down for a period of at least five minutes.   The appropriateness of these timeouts, and the characteristics of the timeout room, are the central issues in this suit.
This is a 4th amendment case, principally, as I read it. Seclusion is often used within behavior management plans, but they are also often abused to just force a child to behave in a given way. That's what the plaintiff was contending here. The judges overturned a ruling in her favor to argue that the school was fine. Here's the paragraph that bothers me the most:
There is some factual dispute over the factual basis for the timeout:  whether M.C.'s refusal to follow was the sole cause of the seizure that day.  
Was it an appropriate use of seclusion as according to the plan (not a plan I'd agree to in most contexts, but still), or were the teachers just mad he wasn't obeying their orders? The judge seems to say the latter, but then says it's still ok to seize the child and seclude him.
We resolve that dispute, as did the district court, in favor of the plaintiff.   Nonetheless, the seizure was still justified at its inception.   The Fourth Amendment does not hold that ensuring the safety of the class is the sole permissible reason for sending students to time out.   M.C.'s own IEP suggests that timeouts may be useful as a technique to obtain cooperation and participation and to teach M.C. to “do what is asked of him.”   App. 466.   If corporal punishment is a constitutionally acceptable form of discipline for a student's defiance, it is implausible that timeouts are not.   See Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977).  
Finally:
When M.C. refused to do his school work, it was not unreasonable for the teachers to send him to a five-minute timeout in the hope of obtaining his cooperation in the future.
This is the Cult of Compliance. Obey or be punished.

I've read too many cases of kids placed in seclusion because they wouldn't comply with directives. Also, corporal punishment may be constitutionally acceptable, but it's also wrong.

I'll continue this series as I have time.

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