Family continues fighting for special-ed students’ rights despite investigations vindicating local schools
By By Erin Frustaci
efrustaci@fortcollinsnow.com
Daniel and Susan Swearingen were hopeful that months of frustration and ongoing discord with Poudre School District would finally end now that two investigation into their complaints that teachers improperly used seclusion and restraint techniques on their son have been completed.
But those investigations didn’t support their allegations.
They view it as just another hurdle to overcome; by now, the Swearingens have become accustomed to disappointment.
The couple submitted two complaints of discrimination on behalf of their 12-year-old son Ryan last spring: One to the federal Department of Education’s Office of Civil Rights (OCR) and another to Colorado’s Department of Regulatory Agencies’ Division of Civil Rights (DORA).
Among the allegations, the Swearingens said teachers at Johnson Elementary School improperly restrained and secluded Ryan, who displays symptoms of autism and was diagnosed this month with Pervasive Developmental Disorder.
OCR completed its investigation in November and concluded that there was not sufficient evidence to support the Swearingens’ claims of discrimination.
The family hoped DORA would report in their favor, but that agency also found no violations in the case. They were informed of the investigation’s result last week. Undaunted, they say they plan to file an appeal to the Colorado Civil Rights Commission. (See the related article, “PSD Vindicated by Oversight Agencies,” by typing the title into the search bar.)
Susan said the family is considering all of their options, which could include legal action.
“We do plan on finding ways to hold the district accountable and if that is through civil action, then that is our plan,” Daniel added.
Laura Richardson, PSD’s director for integrated services, said that DORA’s findings show that there was no wrongdoing on the district’s part.
These results mark the third time the family has failed to get oversight agencies to see things their way. They contacted The Legal Center for People With Disabilities and Older People after writing letters of complaint to state and federal politicians. The Legal Center told them there wasn’t enough evidence to launch an investigation into their claims. But as reported in Fort Collins Now on April 25, the Swearingens’ complaints led the watchdog group to investigate the claims of other families with similar complaints. It found that two PSD elementary schools violated strict rules governing how and when teachers can physically restrain and seclude children.
Among other findings, The Legal Center found that Werner and Linton elementary schools failed to properly document when children were restrained and secluded, and failed to inform their parents when such techniques were used.
Those same complaints are at the heart of the Swearingens’ allegations as well.
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The family of four moved to Fort Collins from Red Feather Lakes in August of 2003 and Ryan enrolled in Johnson Elementary school. His parents say the first year went pretty well overall, but as time went on things seemed to slide. Because Ryan has special needs, his parents worked with educators to develop what’s called an Individualized Education Program, or IEP. Meetings to discuss Ryan’s educational needs with special education teachers, the principal and other staff members became part of their normal routine. They kept abreast of his progress through the use of a communication notebook which was sent back and forth between the teacher or paraprofessional and the parents.
Susan says the comments in the notebook were often quite positive. However, Ryan was not without his bad days and the number of those bad days began to increase, a circumstance his parents said may have been exacerbated by turnover among the school’s specialized staff.
Soon, Ryan began trying to leave school—a new and worrisome behavior that eventually escalated to more serious incidents, including physical confrontations with teachers.
Susan said the documentation of incidents or outbursts did not always explain why they occurred or how the school handled them. She also said she was not always informed of the incidents. In fact, the Swearingens say they did not have a clear picture of what was really happening between Ryan and his teachers until they requested copies of their son’s file from the school last April. Though it was a long process, they began collecting bits and pieces of documentation on their son through the school and the district.
They were alarmed by what they learned.
“We realized something serious was going on,” Susan said. “You are realizing how much your child was going through. If we had known, at least we could have explained why these things were happening and there could have been a different outcome for him. It was quite disturbing.”
One incident that stood out to the Swearingens occurred on Dec. 8, 2004. According to the Swearingens, Ryan left school and Teresa Matzdorff, the moderate-needs teacher, followed him to where they lived just more than a block from the school and then restrained him in order to get him back to school. Documenting the incident, school staff wrote, “They were coming back—Ryan in a hold and resisting.” That documentation also says the parents were informed of what happened.
But the Swearingens say not only were they never told of this incident, but Ryan’s IEP plan did not include restraint as an option to dealing with his behaviors. They also say they were not informed that that school resource officer was notified and that Ryan was placed on in in-school suspension for a day for leaving school grounds.
Such discrepancies between the school’s accounts of incidences and the Swearingens’ have become a common theme, making it difficult to sort out the truth of many events involving Ryan. Adding to the complication are two very different pictures painted of the same child. Often, the school’s reports—copies of which were obtained by FC Now from the Swearingens, who got them from the school and the district—depict an aggressive, confrontational and belligerent child who kicked his teachers and threatened to bring a knife to school.
His parents, on the other hand, say he is the victim in the situation.
“It’s not just us that sees a different child” from the one depicted in the school’s accounts, Daniel said. He admits that Ryan gets frustrated and yells at times, but nothing more than any other child.
“Any provider or outside person who works with him sees the same child we see,” he said. “What district employees put on paper is that he is an out of control, disruptive behavioral and social problem. We definitely have dueling stories.”
Despite continuing to work with the school to fine-tune Ryan’s educational plan, the breaking point came in March 2007 when Ryan tried to leave the school again. His teacher and a paraprofessional grabbed him by the wrists, apparently afraid he was going to run into oncoming traffic. The school alleges that one of his arms broke free and he punched his teacher in the ribs. They brought Ryan back in and placed him in the time-out room. Ryan was ticketed for assaulting his teacher. After a few trips to court and a competency evaluation, the case was dismissed last June.
Based on past conflicting reports, Ryan’s parents aren’t convinced things happened the way the school described. They are also concerned that at the time of this restraint, not everyone who was involved was properly certified in how to apply the techniques safely.
“It was absolutely horrible,” Susan said of the incident. “He was terrified. ... The experience was unbelievable, to put thing nicely.”
Since then, Ryan has not attended Johnson. He’s now on the homebound program, where a teacher employed by the district comes to the home to work with him individually.
Although the Swearingens put the blame for Ryan’s situation squarely on the school district, the investigating agencies concluded that the school did nothing wrong and in fact took “extra steps” to try and accommodate Ryan.
Richardson, the district’s director for integrated services, agreed that there may be different perceptions at work. Richardson is relatively new to the position and wasn’t working for the district when many of the disputed incidents took place. She joined PSD in January; coming out of retirement after 18 years with the Windsor School District to replace Chris Schott, who retired after serving for three years.
“Coming in new to the district, I was impressed with the professionalism,” she said of the special-ed program. “The focus is always on what’s best for the students. That really impresses me.”
Gail Follett, Ryan’s homebound teacher, said although there were significant problems when Ryan attended Johnson, he hasn’t been a problem in the homebound setting.
“He’s very attentive,” she said. “He wants to learn a lot. He is extremely cooperative and willing. He is a joy to work with and never caused a moment of trouble or stress at all. He’s a teacher’s dream student, at least with me in homebound.”
She also said he is the type of child that really benefits from the one on one setting and given his developmental problems, could have difficulties functioning in a classroom with quite a few kids.
Though his parents are seeing improvement, they are still set on bringing about some kind of change within the school and the district.
“Parents need to be aware that they are not alone,” Susan said. “This is not an isolated incident. It’s widespread.”
That’s exactly what Jennifer Taylor, a mother of four discovered after hearing about the Swearingens’ story. Her 10-year-old daughter, Gracie, was diagnosed with epilepsy. The family moved from Utah when Gracie was in second grade. She attended Zach Core Knowledge school. Taylor said the staff restrained Gracie when she was having complex partial seizures even though she repeatedly told them her doctor said this is the worst thing to do.
Last year, the situation had gotten so bad that Taylor considered moving out of Fort Collins. She said she was watching her daughter deteriorate in front of her eyes. She said she just wanted the district to do the right thing.
“She’s a good kid and doesn’t deserve what’s happened to her,” Taylor said. “I’m not saying she’s 100 percent easy. That’s never been my claim, but I’ve also tried to give them ways to deal with things. All we want is for her to have an opportunity to be educated like every other kid—nothing special.”
Like Ryan, Gracie is on a homebound education program, and her placement will be reevaluated for the next school year. After hearing the stories of other families, Taylor also recently filed a complaint with The Legal Center.
“It’s a system that desperately needs some kind of check and balance in place,” Daniel Swearingen said. “One of the greatest motivators for us is seeing justice is righted for our son and other kids.”
The district defends its staff as highly qualified and constantly working collaboratively with parents in the best interest of the students.
“We all have different perceptions that can get in the way,” Richardson said. “We will continue to work with them in the best interest of their child and hope we can collaborate to have a great education for their child.”
Richardson said one thing that is being considered that could strengthen communication with parents is developing some trainings for parents. She said overall, there are good open lines of communication within the special education program.
Still, the Swearingens maintain that more needs to be done.
“Either we are a couple of crackpots, or we are telling the truth,” Daniel said.
Correction: In the first article in this series published April 25, “When Time-Out Goes Too Far,” FCN incorrectly reported that the investigation by the Office of Civil Rights was ongoing. In fact, it had been completed.
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