O.C. Judge Bars Disabled Child From Kindergarten

A Superior Court judge temporarily ordered a developmentally disabled child out of kindergarten Thursday at the request of a school district that had filed an unprecedented lawsuit contending that the boy created extraordinary problems in his classroom.

Ocean View Elementary School District officials said they had filed the suit against 6-year-old Jimmy Peters as a last resort, but their action sparked outrage among parents of special-needs students across Orange County.

The district’s suit accused Jimmy of biting teachers, throwing desks, and hitting and spitting at other students--behavior that prompted one teacher to take immediate medical leave. A county attorney described the suit as the first of its kind in the county.

The boy’s father, Jim Peters, filed a lawsuit of his own against the district in federal court Thursday, alleging that his son has been denied a free and proper education.

“Jimmy can study,” Peters said in an interview. “He can learn. But you just have to make some small adjustments in the class to allow that to happen.

“I’m disappointed because it has turned into a political issue instead of what is supposed to be best for the child,” said Peters, who volunteers and is occasionally paid for his work as a legal advocate for parents with disabled children.

The district’s superintendent, James R. Tarwater, did not return telephone calls seeking comment Thursday. Circle View Principal Dan Moss declined comment, saying the issue is governed by privacy considerations.

In a closed hearing on the school district’s lawsuit, Superior Court Judge Thomas N. Thrasher ruled that the boy could not attend classes at Circle View Elementary School in Huntington Beach for 10 days to two weeks, Peters said.

Parents of children with learning disabilities--such as attention deficit disorder, hyperactivity, dyslexia and Down’s syndrome--rallied to support Peters on Thursday, saying they were shocked that the school district would target the child in its landmark lawsuit.

“The vast majority of cases show that students with special needs in regular classrooms are doing just fine,” said Mary Stone, chairwoman of the Inclusion Network of Orange County. State law prohibits the removal of such students from regular classes without a court order or the parent’s consent. Peters, who had refused to withdraw his child, said he would go back to Superior Court on Tuesday in an attempt to reverse the restraining order granted the school district.

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 a regular classroom without permission from a parent or judge.

Peters contends that Jimmy suffers from “developmental delays” and is “communicatively handicapped,” disabilities that result in problems in playing with his peers. But, he asserted, the disabilities are not reason enough to exclude him from a mainstream classroom.

District officials claimed in their suit that they have tried to make adjustments for Jimmy. They have assigned a full-time aide to the boy and hired two experts from the Orange County Department of Education and Cal State Long Beach to act as consultants. Still, they claim, problems persisted.

A parent of one of the boy’s classmates said the boy’s disruptions ruined her son’s year in kindergarten. Though accounts differ over the number, parents of at least several children withdrew them from the class as a result of the disruptions, said the woman, who is also a volunteer teacher’s aide.

The aide, Janet Edwards, described herself as a proponent of the “full inclusion” mandated by law.

“But there are certain students who are being fully included in the classroom, who, to be honest, pose a danger,” said Edwards, 33.

Edwards said the problem with the law is that it’s tailored “to protect the children with special needs, but there are no laws written to protect the ‘regular’ students. And my experience in that classroom was, in a word, awful.”

Saying she could not elaborate for fear of endangering the lawsuit, Edwards called the student’s behavior “violent--there’s no other way to put it.” Peters denied that claim.

Such conflict is often the result when the needs of special students are not handled properly, said Dana Powell, 36, who claims to have had her own problems with the Ocean View district over the needs of her son, now a 13-year-old seventh-grader.

“Very often, the schools pit parents against parents and don’t take responsibility for doing their job,” Powell said.

Inclusion Network’s Stone said a growing conflict stems from the fact that neither parents nor schools really understand the law, which mandates that school districts design plans to address special needs as soon as students exhibit difficult behavior.

Too often, students, their needs and the most ideal approach are neglected in a swirl of bitterness, and sometimes litigation. The parents of such children say the schools are often incapable of analyzing a student’s glaring needs, or deciding what to do.

“As a result,” said Lorraine Behunin, the mother of 10 children, one of whom has special needs, “a lot of kids in the middle just fall through the cracks.”

Behunin, 46, says her problems with the Westminster School District became so acute that the battle escalated to an administrative hearing, which resulted in the district paying her son’s tuition in an elite private school as well as her legal costs, which totaled “tens of thousands of dollars.”

She said the district could have settled the complaint or provided more intelligent on-site training for her 11-year-old son, who suffers from acute dyslexia and who, at taxpayers’ expense, was transferred to the Prentice Day School in Tustin, which costs $9,900 a year.

“It became a very adversarial situation,” Behunin said, “and it never needed to be.”

In response to Behunin’s situation, the Westminster School District on Thursday issued the following statement:

“In our view, (the district) does offer an appropriate educational program for this student. We have many qualified teachers who we strongly believe can work with him successfully.”

Peters called the claims in the Ocean View district’s lawsuit “out-and-out lies,” contending that the incidents were exaggerated and that his son is not an aggressive child. He said teachers and administrators have come to view his son’s behavior “under a microscope.”

“The picture they paint isn’t true,” he said, adding, “for example, they say Jimmy was spitting. He has never spit. He doesn’t even have his two front teeth allowing him to spit--hasn’t had them for months.

“It’s not the kids who have the problem, it’s the parents.”

Doctors have told him that the worst thing for Jimmy would be a special education class, because his condition will improve only if he is around people who speak correctly, Peters said.

“If you put Jimmy in a class with kids who can’t talk, how’s he going to learn?” he asked.

This battle is not new. Peters said he has been fighting for educational equality ever since his son enrolled in Circle View.

“It’s going to be messy before it gets better,” he said.

Peters’ suit claims that the school retaliated against Jimmy “for seeking his statutory and constitutional right for (free appropriate public education), by suspending him when his father successfully filed four . . . complaints (on behalf of other students)--causing the district to be found out of compliance by the state Board of Education.”

A lot of the problem lies in the fact that the principal objects to “full inclusion,” which allows a disabled student to remain in a regular class while receiving the extra help he needs, Peters said.

“If teachers and parents were just educated about how to deal with a disabled child, maybe they wouldn’t be so uncomfortable,” he said.

The suit also claims district officials failed to provide Jimmy with a proper education by refusing to refer him for testing of his ability to understand what he hears, despite repeated requests by his father, and by failing to comply with recommendations from Jimmy’s behavioral specialist.

But Ronald Wenkart, general counsel for the Orange County Department of Education, said the county’s 27 school districts are increasingly concerned over the potential discipline problems that such children represent--and the fact that state and federal laws leave educators in something of a bind.

“It’s gotten to the point where if you want to expel a handicapped student whose conduct is not related to their handicap, a slightly disabled student who brings, let’s say, a knife to school,” that student is allowed to see a specialist one to two hours each day, Wenkart said. “That student is thus treated differently from regular students.”

Behunin and Powell--and thousands of others in their position--believe that is only fair.

“The parents of such children have a say in their child’s education,” Behunin said, “especially those not progressing in the proper manner. The school is charged with the responsibility to seek and serve and it ought to do it in the best way possible.”