The Akron Legal News

Child abuse allegations against special education teacher dismissed

ANNIE YAMSON
Special to the Legal News
Published: January 20, 2016

A divided federal court of appeals recently ruled that the United States District Court for the Northern District of Ohio at Toledo properly granted summary judgment to a teacher who was accused of abusing her students.

The panel of three judges in the 6th U.S. Circuit Court of Appeals held that special-education teacher Marsha Kowalski’s teaching methods “may have been inappropriate, insensitive and even tortious” but they were not unconstitutional.

The action against Kowalski and her supervisors at the North Point Educational Service Center was brought by three special-education students and their parents who alleged that Kowalski and North Point violated the students’ 14th Amendment rights to substantive due process.

The appellants (the parents and children) alleged that Kowalski abused her students during the 2003-04 school year by, among other things, gagging one student to stop him from spitting on others, strapping a student to a toilet with a belt and forcing another to sit on a training toilet in front of class mates.

The appellants also alleged that supervisors at North Point were deliberately indifferent to the alleged abuse and created an environment “primed for abuse by its adoption of allegedly unconstitutional policies and practices.”

The district court granted summary judgment to Kowalski and North Point after ruling that the instructional techniques, “while inappropriate and even abusive,” “did not rise to the conscience-shocking level required of a substantive due process claim.”

The lower court also held that Kowalski’s supervisors had insufficient notice of her actions to be found deliberately indifferent and that the school’s policies and practices were not constitutionally inadequate.

“We affirm the district court’s judgment in Kowalski’s favor because, as a matter of law, Kowalski’s conduct did not violate the 14th Amendment,” wrote Judge Patrick Huck, who sat by designation from the Southern District of Florida and delivered the opinion on behalf of the majority.

The allegations against Kowalski were based almost entirely on the testimony of Suzanne Brant, who worked as a teaching aide on Kowalski’s special-education class of autistic and developmentally delayed students during the year in question.

Case summary states that, as the year progressed, Brant became increasingly concerned about Kowalski’s teaching methods.

However, it was not until Brant was discharged from her position at the school that she brought the issues to the attention of the school’s administrative staff.

In her testimony, Brant presented several examples of the abuses that she witnessed. She stated that one student, N.D., a 6-year-old autistic girl who was not toilet trained, often threw tantrums and would remove her clothes and smear feces on the wall.

In response to those behaviors, Kowalski would remove N.D.’s pants and place her on a training toilet for extended periods of time.

Another teaching aide, Laurie Fogg, claimed that N.D.’s toilet was separated from the other students by a partition, but admitted that they could easily see N.D. by walking around it.

Brant said that Kowalski would feed N.D. lunch while she was on the training toilet and once “proudly displayed” N.D.’s bowel movement to the rest of the class.

With regard to another student, R.G., a 9-year-old boy with autism and hyperactivity disorder, Brant said that Kowalski once strapped him to a gurney in the hallway and gagged his mouth with a bandana.

Kowalski, on the other hand, claimed that R.G. had a tendency to spit on others and throw violent tantrums and that the gag was a therapeutic “chewy” that R.G. kept on a bandana around his neck.

The third student was J.J., an 11-year-old girl with cerebral palsy, autism and developmental delays. Brant testified that she became concerned with Kowalski’s treatment of J.J. when she strapped the girl to a toilet with a belt and then left the bathroom for 20 to 30 minutes at a time.

Kowalski, on the other hand, explained that J.J. often soiled herself and, because of a lack of muscle tone, had trouble sitting without support. She explained that toilet training was an explicit goal in J.J.’s individual education plan.

Brant also alleged that Kowalski would treat other students harshly by grabbing their faces and directing their attention in a certain direction and forcing their heads down on their desks if they misbehaved.

Once her concerns were voiced, North Point’s regional director and the superintendent recommended that Brant file a complaint of child abuse with the proper state authorities.

An internal investigation was launched and the school’s administration contacted Erie County Children’s Services, the Norwalk Law Director, the police department and Ohio Department of Education, all of which investigated Brant’s allegations and found insufficient evidence to file criminal charges.

The ODE did conclude its investigation with a consent agreement in which Kowalski denied any wrongdoing but agreed to complete 20 to 30 hours of college-level, special-education coursework.

After its review of the evidence, the 6th Circuit court ruled that the district court properly found in favor of Kowalski and North Point.

The appellate panel ruled that Kowalski’s actions did not “shock the conscience” and that they were undertaken in pursuit of legitimate pedagogical purposes.

“The district court held that Kowalski’s legitimate education goal of toilet training and legitimate disciplinary goal of maintaining order and focus in her classroom provided a pedagogical justification for her actions,” Huck wrote. “Kowalski’s complained-of conduct involved attempts, albeit misguided ones, to address her special-education students’ undisputed educational or disciplinary needs.”

Additionally, the court of appeals held that Kowalski’s methods were not “severe in force” or otherwise a “brutal and inhumane abuse of power.”

Huck wrote that Kowalski’s actions were good-faith efforts to restore order and discipline and that there was no evidence that she acted maliciously or sadistically with the intention to cause harm.

In fact, the appellate panel ruled that none of the evidence proved that Kowalski caused serious physical or psychological injury to the students under her care.

“Therefore, the district court did not err in granting summary judgment to Kowalski on appellants’ substantive due process claims,” Huck concluded.

Due to its conclusion with regard to Kowalski, the majority also held that there was no basis for holding her supervisors or the school district liable.

In his dissent, Judge Danny Boggs held that there was a genuine issue of material fact as to the reasonableness of Kowalski’s treatment of R.G, the student who was gagged and restrained on a gurney.

“In this case, although R.G. was certainly disruptive and his spitting was troubling, the teacher’s action in binding him to a gurney and gagging him with a bandana could be found by a reasonable jury to shock the conscience,” Boggs wrote. “At this stage we are not empowered to decide either that the action was or was not shocking on these facts, but merely whether there is a genuine issue.”

Boggs wrote that “although this case is difficult,” the facts precluded summary judgment in the case of R.G. and he would allow the claim to go to a jury.

However, Judge Alice Batchelder joined Huck to form the majority, dismissing all of the claims against Kowalski and North Point.

The case is cited Domingo, et al. v. Kowalski, et al., case No. 14-3957.

[Back]