O.C. District Sues to Remove Child From Classroom

A 6-year-old kindergartner who allegedly bit teachers, threw a desk, hit and spit at students and sent a teacher and her aide out on medical leave was sued Wednesday by a Huntington Beach school district, apparently the first lawsuit of its kind in Orange County.

The suit by the Ocean View Elementary School District asks the court to remove Jimmy Peters, who is described in the suit as handicapped and developmentally disabled, from regular classes at Circle View Elementary School. State law prohibits a school district from doing that without the permission of the child’s parent or a court order, and Jimmy’s parent has refused to give that permission, the suit states.

Ronald Wenkart, a lawyer for the Orange County Department of Education, said the case is the first of its kind in the county, but probably won’t be the last.

“We’ve been waiting for this to happen,” Wenkart said. “It’s inevitable that this will happen given the way the law is written. . . . But it’s going to happen more and more.”

The law was established as a result of a landmark 1988 case in which the U.S. Supreme Court ruled that school administrators may not remove a student with special needs from regular classrooms without permission from a parent or judge.

Jimmy’s behavior has caused chaos at the elementary school during the last six months, according to the lawsuit and a parent and teacher in the class. After months of complaining to the principal and school administrators about the situation, several parents resorted to pulling their children out of the kindergarten class on Thursday, the day after Jimmy bit a teacher, according to parent Janet Edwards.

Edwards said she and other parents planned to keep their children home until the end of the year unless Jimmy was removed, but that Principal Dan Moss persuaded them to return their children to school this week, promising to resolve the situation.

“It’s been a nightmare,” Edwards said. “Basically, my son has missed out on kindergarten. There’s nothing I can do about it. Our hands are tied.”

The lawsuit accuses Jimmy of “spitting at other students; hitting students, teachers, and staff members; pulling a chair from underneath a student; throwing over a heavy desk; and throwing temper tantrums wherein Jimmy had to be restrained by one or more adults.”

On May 18, according to the suit, Jimmy bit Sandra Davila, his kindergarten teacher. The next day, Moss assigned two additional aides to the classroom, but “despite three adults exclusively devoted to assisting Jimmy, he hit, bit and kicked the staff members and was extremely disruptive,” the suit states.

Davila and an instructional aide were both placed on medical leave “due to the stress of the classroom situation,” according to the lawsuit.

Contacted at her home Wednesday night, Davila said her doctor told her “not to talk about it because I get too stressful.”

But Davila’s husband, James, said his wife has been teaching in the school district for about three decades and confirmed that she was recently placed on medical leave because of “mental problems stemming from this child and (this) whole controversy.”

“She has really been beat up a lot, she was physically hurt, and she’s not in good shape at all,” the husband said. “If she talks about it at all, she’ll break down crying. . . . I have to protect her.”

Regarding the lawsuit, James Davila said, “It’s about time.”

District officials said in their lawsuit that they have taken several steps to avoid legal action. Apart from assigning a full-time instructional aide to the boy, district officials hired two experts from the Orange County Department of Education and Cal State Long Beach to act as consultants on Jimmy’s problems.

Still, Jimmy appears “to be regressing in his emotional and educational development,” the lawsuit states.

James Peters, identified in the lawsuit as the boy’s parent, could not be reached for comment. According to the suit, he has refused to accept the experts’ recommendation to put Jimmy in a special day class away from the other students.

Larry Belkin, Orange County’s director of special schools, said that while it is rare for a school district to sue a student, the growing push for full inclusion of disabled students over the past few years has left administrators with few options.

If parents don’t agree to place their child in a special-education class, an impartial panel is assigned to review the case and decide whether the child belongs in regular education classes or special classes. The panel has the power to place the child in special classes. The Ocean View district is pursuing a court order to remove Jimmy until that panel has its hearing next month.

“It’s the only option a district has under current special-education law,” Belkin said. “When you have a student that poses a danger to self and others, if the parents don’t agree, the child by law stays put. To go beyond that, the district has to use the court system.

“It’s not that common, but it’s becoming more and more common as more students who have aggressive and assaultive behavior are being put into regular education programs.”

Courts have typically ruled to keep students in the least restrictive environment possible--and that means regular classes, Belkin said.

Wenkart, the department of education’s lawyer, said local schools have so far avoided court battles on this issue because “we’ve always managed to be able to convince the parents to move the child.”