Special Ed Abuse Doesn’t Support Civil Rights Suit

(CN) - A Wisconsin elementary school is not liable for its employment of a special-education teacher who abused disabled children, a federal judge ruled.

Parents of six special needs student had sued the Appleton Area School District, Janet Berry Elementary School Principal Richard Waters, Appleton Area Superintendent Lee Allinger and teacher Mary Bergland in February 2012. The parents, whose children's disabilities leave them either severely limited or completely unable to verbally communicate, claimed Bergland abused the children over a period of years.

The original complaint said Berglund squeezed one child so hard that his mouth bled; she dragged another by his leg across at least one yard of carpet; she lied on top of a student for eight minutes and choked him for several minutes as other disabled children watched; and shoved dirty facial tissues into one student's mouth.

Bergland was fired on March 20, 2012, after an investigation by the school district, area child protective services and local police. Bergland eventually pleaded no contest to five misdemeanor counts of battery related to the abuse allegations and received probation.

Parents of four of the children meanwhile have since mediated their civil suit, and U.S. District Judge William Griesbach granted the defendants summary judgment as to the remaining two children Wednesday.

This case is not about the abuse or whether Bergland's actions were proper, according to the ruling. Instead, it is about alleged violations of the children's constitutional rights.

"Neither B.B. nor M.H. suffered observable or medically determinable injuries as a result of Berglund's actions," Griesbach wrote. "There is no dispute that most of the actions cited by plaintiffs were taken in response to the children's failure to heed her directions. For instance, Berglund slapped M.H.'s hand to stop her from pinching B.B. Likewise, Berglund forced a fork into M.H.'s mouth in an attempt to get her to eat when she refused. Berglund is also accused of having grabbed B.B. by the back of the neck or arm and squeezed when he did not follow her directions. A former aide testified that Berglund would use such force that B.B. would cry and estimated that it occurred approximately once a month during the 2007-08 school year. While not an appropriate way to handle the behavior problems she confronted, these actions by Berglund, assuming they occurred as reported, can hardly be considered conscience-shocking. Other alleged episodes, such as forcefully pushing B.B. into a chair, suggest a loss of patience or frustration that can be experienced by those who constantly work with children that have significant cognitive and/or behavioral impairments. They may be signs that a teacher should consider retirement or a new line of work, but again, in the absence of evidence of even a bruise, they are not of a magnitude that could be reasonably found to violate a child's substantive due process rights. In this connection, it is notable that even the aide who claims to have personally witnessed Berglund's conduct as to B.B. and M.H. waited months, if not years, to report it. This suggests that even her own conscience was not shocked."

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