Parent Files Federal Lawsuit Against Warsaw Schools For Repeated Seclusion Of Disabled Child
Posted
Liz Shepherd-
CLAYPOOL — A mother of a 12-year-old special needs child has filed a federal lawsuit against several employees at Claypool Elementary School for allegedly secluding her child for extended periods of time as a form of punishment.
Suzanne Swinehart, Warsaw, is the plaintiff in this case. Swinehart and her child are being represented by Tom Blessing, Massillamany Jeter & Carson LLP, Fishers. According to court documents, Swinehart’s child has been diagnosed with autism spectrum disorder, sensory processing disorder, emotional dysregulation syndrome, Tourette syndrome and epilepsy.
The 47-page lawsuit was filed in the United States District Court Northern District of Indiana – Fort Wayne Division on Tuesday.
Defendants in the case are Warsaw Community Schools; North Central Indiana Special Education Cooperative; WCS Director of Special Services Amy Hobbs; Gateway Educational Center Principal Steven Ferber; Claypool Principal Melissa Rees; Kristin Trimble, a special education teacher at Claypool; Danielle Whitlock, a WCS employee; WCS Behavior Case Manager Rileigh Wolpert; Shelby Marshall, a WCS employee; WCS Behavior Support Liaison Zachary Hill; and two WCS employees listed in the suit only by their last names, Holland and Roberts.
The suit states Swinehart enrolled her child at WCS in August 2021 after relocating from Fort Wayne. Due to their conditions, the child has difficulty regulating their emotions and does not like loud environments or being touched. When the child becomes very agitated, they sometimes engage in aggressive and/or self-harming behaviors.
The suit alleges the defendants dealt with the child’s behavior by secluding them at school over a period of one year, beginning in February 2022.
Indiana has a detailed code regarding the use of seclusion and physical restraint of students in school. The law states seclusion “shall not be used … except … as a last resort … where the student’s behavior poses imminent risk of injury to self or others …” When a student is secluded, the code states seclusion “may only be used for a short period of time and shall be discontinued as soon as the imminent risk of injury … has dissipated.” WCS’s policy on seclusion also generally parallels state code.
From August 2021 to February 2022, Swinehart’s child was enrolled at Eisenhower Elementary School and was performing well until October/November 2021, when their teacher quit. WCS allegedly assigned an instructional assistant or paraprofessional to serve as the child’s teacher. Since that assignment, WCS staff called Swinehart between 20 to 25 times, asking her to pick her child up from school early. The child was also suspended multiple times during fall 2021.
The child was then moved from Eisenhower to Claypool by WCS staff to supposedly increase the child’s time in the classroom and reduce the number of suspensions they received. At Claypool, the child was placed in the district’s WIN program, which is for students with emotional disabilities. The suit states the child was placed in seclusion for various behaviors related to their disability shortly after being moved to Claypool.
The child’s behavior also typically became worse when they were being taken to or placed in a seclusion room. It is also alleged Claypool staff were not documenting all of the instances the child was secluded or not telling Swinehart about all of the instances, which is required by Indiana law and WCS’s policy.
The suit goes into great detail about the child’s behavior and the number of instances the child was secluded.
“(Swinehart) conservatively estimates that between February 2022 and February 2023, the defendants placed (the child) in some form of seclusion approximately 50 times for a total of around 40 hours — probably more,” reads the suit.
In several of the reports, staff state the “risk of injury” warranting seclusion periods was the child “attempting to leave the calming room while visibly escalated.”
The suit also states the defendants may claim that several of the instances where the child was in the calming room were not seclusion periods if the child was not physically prevented from leaving or if the room’s door was kept open or ajar. One tactic staff allegedly used was posting a staff person outside of the calming room to keep an eye on the child and verbally instruct them to stay in the room if they tried to leave.
The suit further alleges multiple incidents where Swinehart did not receive daily behavior sheets and/or seclusion incident reports from the school’s staff. It also states there were several instances where staff did not prevent the child from harming themselves.
Swinehart’s legal counsel says staff began using different tactics to conceal their seclusion practices in fall 2022 and also suddenly discontinued sending Swinehart copies of seclusion report forms.
Swinehart is suing WCS and the North Central Indiana Special Education Cooperative for disability discrimination against her child, as well as municipal liability.
“By denying (the child) equal access to educational programs or activities by numerous acts of restraint, seclusion, isolation, denial of participation and creating a hostile educational environment, the defendants discriminated against (them) because of (their) disability,” reads the suit.
She is also suing Ferber, Rees, Trimble, Whitlock, Hill, Marshall, Wolpert, Holland and Roberts for equal protection, alleging they were motivated by a discriminatory purpose because of the child’s disabilities. These aforementioned defendants are also being sued for unreasonable seizure and substantive due process because of the multiple seclusion instances.
Further, Ferber, Rees and Hobbs are being sued for supervisor liability for employees acting under their direction and/or being personally involved in the child’s seclusion.
Swinehart is requesting judgment in her favor, including compensatory and punitive damages, as well as coverage for court costs.
