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Kappan v88

No Med, No Ed?
BY PERRY A. ZIRKEL
IN APRIL 1997, a first-grade teacher in ing more to offer Michael and that a differ- In March 2000, the psychiatric evalua-
Millbrook, New York, a small town east ent placement was probably the best solu- tion report was issued, concluding that Pax-of Poughkeepsie, filled out an ADHD tion. However, the parents rejected the dis- il had induced the psychotic disorder. The rating form that reflected her suspicion that trict’s proposed special education placement report also concluded that Michael did notone of her students, Michael W., had atten- in a separate setting. The parties agreed to have ADHD and thus the physicians shouldtion deficit hyperactivity disorder. The school homebound placement.2 not have prescribed any of the psychotro- forwarded the report to Michael’s pediatri- On January 28, the director of pupil per- pic drugs.
cian, who rendered a diagnosis of ADHD sonnel services informed Michael’s family In June 2001, Michael’s parents request- that the district would no longer support ed a due process hearing to challenge the During the next two years, Michael be- the homebound placement because there appropriateness of the district’s placement gan to experience adverse effects from the was no medical basis for it. The parents still for him. In September 2001, at the conclu-medication, causing the doctor to change the rejected the idea of returning Michael to a sion of the hearing, the parents signed a set-prescription to Dexedrine. When Michael separate special education room at school, tlement agreement with the school district,continued to have adverse effects, the dis- and the district contacted Child Protective including a provision releasing the districttrict’s school psychologist suggested to Mi- Services, which charged the parents with edu- from liability.
chael’s parents that they send him to a psy- cational and medical neglect. Moreover, the In September 2002, the parents filed suit chiatrist. They did, and the psychiatrist di- administrator subsequently demanded that in federal court against the district and vari-agnosed Michael with social anxiety disor- Michael undergo an immediate psychiatric ous school officials, the pediatrician and theder, for which she prescribed Paxil in addi- evaluation.
psychiatrist, and the drug company that man- tion to Dexedrine. Paxil is not approved for ufactures Paxil. The claims against the dis- use with children. Soon thereafter, Michael trict defendants were 14th Amendment sub- experienced sleep problems, including in- stantive due process and negligence. The dis- somnia, and frenzied, anxious behavior. With- in a month, the psychiatrist discontinued the Paxil. Then Michael began complaining motion based on genuine issues of materi- al fact concerning the scope of the release.
chael’s school and the school psychologist recommended to the parents that they con- founded a website organization for “label tinue having the psychiatrist treat Michael and drug free education,”3 secured national to establish the proper medication or to have him hospitalized. The psychiatrist advised the parents that, while Michael’s medication was being adjusted, it would be appropri- ate to hospitalize him rather than have him decision, granting the motion to dismiss the continue to experience severe behavioral epi- parents’ case against the district and its offi- cials.5 For the civil rights claim based on vice, Michael’s parents took him off all med- the “remarkable similarity” to a suit brought by the same plaintiff ’s counsel in another In January 2000, the school officials in- federal district court, which had dismissed formed the parents that the district had noth- that case as “yet another unfortunate exam-ple of scattershot litigation.” The court sim- PERRY A. ZIRKEL is University Professor of ilarly rejected the attempted analogy to a Education and Law, Lehigh University, Beth-lehem, Pa. not have qualified as school officers, they tives, we need less legislation or litigationwere not providers of professional medical and more education.9treatment, which is a required element of a If legal solutions are needed, they are for negligence, or malpractice, claim predicated the more pressing problems of overmedi-on lack of informed consent.
cation and overdiagnosis of ADHD.10 For-tunately, separating lore from law, the courts THE parents have not appealed the are increasingly rejecting the perception that
decision, but their case against the re- a diagnosis of ADHD automatically equatesmaining, nonschool defendants con- to a student’s eligibility under either the tinues. As for the lesson of this decision, IDEA11 or other disability laws.12Attorney Joseph D’Ambrosio, who repre-sented the district defendants, takes a pre- 1. In light of the procedural posture of this case,ventive approach, suggesting that “educa- which is a decision on a motion to dismiss, all oftors avoid making any statements to par- the “facts” are merely allegations construed in the light most favorable to the plaintiff parents.
ents that might be construed as providing 2. At some previous point, the district had deter- medical and/or drug therapy advice.” At- mined that Michael was eligible for special educa-torney Alan Milstein, who represented the tion services under the category of specific learn- cerned the nonconsensual administration plaintiff parents, declined comment.
of antipsychotic drugs to a prisoner, point- In any event, this case touches more than 4. See, for example, Kelly Hearn, “Some Parents ing out that there was no claim, much less one nerve in current public sensitivities. One Say ‘Whoa’ to School-Required Medications,” Chris- proof, here that the school officials forcibly is the prevailing perception that the drug tian Science Monitor, 14 June 2004, p. 12. On 2drugged Michael.
companies, physicians, parents, and schools September 2002, Michael’s mother testified about the case to Congress’ House Committee on Gov- As for the district, the court readily iden- have contributed to the overmedication of ernmental Reform.
tified the plaintiffs’ fatal failure to present students diagnosed with ADHD. It is dif- 5. Weathers v. Millbrook Cent. Sch. Dist., 428 F.
an official policy or custom supporting their ficult to dispute this perception.
Supp. 2d 186 (S.D.N.Y. 2006). I obtained supple- claim of nonconsensual medication. In any The second perception, which concerns mentary information via e-mail interviews in ear- ly November 2006 with Michael Dube and Joseph event, observing that the parents had failed the respective roles of the contributing par- D’Ambrosio, who were two of the attorneys who to allege that any of the school defendants ties, is that schools are pressuring parents represented the plaintiff parents and the district de-had ever administered drugs to Michael, into accepting such medication, either di- fendants respectively.
the court concluded that Michael’s mother rectly or indirectly making it a precondi- 6. See, for example, Conn. Gen. Stat. § 190212b (2006). For others, see www.ncsl.org/programs/ had filled the prescriptions from the pediatri- tion for attendance and an appropriate edu- health/ritalin.htm.
cian and psychiatrist and administered the cation. This perception has become so wide- 7. 20 U.S.C. § 1412(a)(25).
medications to him. The parents’ allegation spread that some states have passed laws pro- 8. See, for example, Valerie J. v. Derry Co-op. Sch.
was not that the district defendants had hibiting public school educators from rec- Dist., 771 F. Supp. 483 (D.N.H. 1991).
required Michael to take medication for ommending medication of children for con- 9. See, for example, Emily Bernsten, “The ChildADHD as a condition for attending school, ditions such as ADHD.6 The perceived as- Medication Safety Act: Special Treatment for the Parents of Children with ADHD?,” Washington but rather that the district official had “badg- sociation with special education became so University Law Quarterly, vol. 83, 2005 pp. 1567-ered and coerced [Michael’s mother] into strong that the 2004 amendments to the In- 88. The broad issue of parental consent and theconsenting to medicate [Michael], and keep- dividuals with Disabilities Education Act narrower issue of psychotropic medications for students are multifaceted. For our previous cover- ing him on medication after [she] had de- include a provision prohibiting public school age of these issues, see, for example, Perry A. Zirkel, cided the medication was inappropriate.” As- personnel from requiring a prescription med- “Caveat Surveyor,” Phi Delta Kappan, May 2002,suming for the sake of the dismissal motion ication as a condition for attending school, pp. 722-23; and idem, “Negligence Is a Two-Way Street,” Phi Delta Kappan, November 1995, pp.
that the allegation was true, the court con- receiving a special education eligibility eval- 259-60.
cluded that it fell short of the shocking con- uation, or obtaining special education serv- 10. See, for example, Marilyn Elias, “More Kidsduct that is required for a violation of sub- ices.7 Getting Multiple Psychiatric Drugs,” USA Today, Yet, as this case illustrates, the perception 2 August 2005, p. 6-D; and Douglas Olsen and Susan Froetschel, “Quick-Fix Solutions Aren’t in As an ancillary matter, the court also often exceeds the reality. In a case where a Students’ Best Interests,” Richmond Times Dispatch, dismissed the plaintiffs’ state law claims of district or its personnel coerced a parent in- 1 April 2005, p. A-13.
negligence for two overlapping reasons: 1) to giving a child prescription medication as 11. See, for example, P.R. v. Woodmore Local Sch.
the parents failed to provide the notice to a condition for regular or special education, Dist., 46 IDELR ¶ 134 (N.D. Ohio 2006)the defendant school officers that is required a cognizable claim will not only survive but 12. See, for example, Tesmer v. Colorado High Sch. Activities, 140 P.3d 249 (Colo. Ct. App. 2006) by New York law; and 2) to the extent that also succeed in court.8 For the other cases, (disability status under state law that correspondsthe principal and pupil services director may which are the many false, perceived posi- to § 504 and the ADA).
k0702zir.pdf
Perry A. Zirkel, COURTSIDE: No Med, No Ed?, Phi Delta Kappan, Vol.
88, No. 06, February 2007, pp. 477-478.

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