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Special Ed Teacher’s |Tactics Not Abuse

CINCINNATI - A teacher who allegedly strapped her students to potty training toilets and gagged one with a bandana did not violate their due process rights, the Sixth Circuit ruled on Thursday.

The decision by three-judge panel upheld at earlier ruling by U.S. District Judge Jack Zouhary, who found that the woman's actions "did not rise to the 'egregious' level of unjustified misbehavior" required to bring a suit.

In a complaint filed in Erie County, Ohio on Jan. 4, 2013, and later removed to the Toledo Federal Court, the parents of three special education students claimed Marsha Kowalski repeatedly abused their children during the 2003-04 school year.

Kowalski taught at the North Point Educational Service Center; specifically, in a church that was separated from the rest of the school and its administrators.

Suzanne Brant, one of Kowalski's aides, provided testimony that corroborated nearly all of the claims brought by the parents, including the mother and father of N.D., a six-year-old with autism.

According to court documents, Brant claimed that "'just about every day' Kowalski removed N.D.'s pants and placed N.D. on a training toilet in the classroom, and often left her on the training toilet for as long as a fourth of the school day."

Brant also detailed the methods used by Kowalski to control R.G., a nine-year-old boy with autism and hyperactivity disorder.

The court documents say that one day Brant "found R.G. strapped to a gurney in the hallway outside of the classroom, his mouth gagged with a bandana."

Kowalski disputed the claim, and told the court she "only briefly covered R.G.'s mouth with a therapeutic 'chewy' that R.G. kept around his neck on a bandana, for long enough to tell him to stop spitting, and that she did not restrain R.G. to a gurney."

The third child in the lawsuit, J.J., is an 11-year-old girl with cerebral palsy and autism.

Brant claimed "Kowalski frequently used a belt to strap J.J. to the toilet, and left her strapped to the toilet, alone in the bathroom, for twenty to thirty minutes at a time."

Again, Kowalski disputed the claim, and said J.J.'s difficulties with balancing on the toilet seat led her to employ the strap during toilet training sessions.

In his ruling, Judge Zouhary accepted Brant's allegations as fact, but proceeded to dismiss all claims against Kowalski, the school and its administrators.

Using the test established by the 2001 Third Circuit case Gottlieb v. Laurel Highlands Sch. Dist., Zouhary held that "Kowalski's legitimate educational goal of toilet-training and legitimate disciplinary goal of maintaining order and focus in her classroom provided a pedagogical justification for her actions."

The parents of the students argued that "child abuse" - a term used explicitly by the District Court - can never be considered pedagogical.

The Sixth Circuit panel disagreed.

"Kowalski's educational and disciplinary techniques, though certainly questionable, were utilized for a proper educational purpose," wrote U.S. District Judge Paul Huck, who was sitting on the panel by designation. "In fact, the record here establishes that Kowalski's conduct was, if anything, much more closely related to a legitimate pedagogical purpose than the obviously 'abusive behaviors' exhibited [in other cases.]"

Huck continued: "J.J., for example, was not toilet-trained, struggled with balance, and would soil herself unless she had some assistance in using the bathroom. In fact, J.J.'s individualized education plan included toilet-training as one of her educational goals. Kowalski attempted to assist J.J. in meeting her goal of safely and properly using the toilet by securing J.J. to the toilet with a belt. N.D., as J.J., also was not toilet-trained, and Kowalski attempted to meet N.D.'s needs by placing her on a training-toilet in the classroom. While this was certainly offensive to N.D.'s dignity, Kowalski's undisputed motivation was to assist N.D.-who would become highly agitated at the slightest change in routine-to relax and properly use the toilet, and not to humiliate or punish her."

Huck went on to address the gagging incident.

He wrote: "On the one occasion that Brant found R.G. 'bound and gagged' in the church hallway, R.G. had been spitting and scratching at himself, and refusing to stop despite Kowalski's multiple verbal requests. Kowalski testified that she 'needed to be firm' to help R.G. to correct this misbehavior. Taking Brant's claim that Kowalski strapped R.G. to a gurney and bound his mouth as true, the record establishes that Kowalski used this unorthodox method to stop R.G. from spitting, and to address his disruptive and defiant behavior in class. Indeed, Brant acknowledged that Kowalski had restrained R.G. to correct his behavior, rather than to harm or humiliate him."

The panel also concluded that the families failed to demonstrate that Kowalski's actions "shock the conscience," were particularly brutal and inhumane, or were done with malice or deliberate indifference.

The school and its administrators were also released of any liability.

U.S. Circuit Judge Danny Julian Boggs dissented from the opinion in part, specifically as regarded R.G.

He wrote: "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. 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."

"Although this case is difficult, I think the balance of factors should preclude granting summary judgment again R.G.'s claim and should rather allow that claim to go to a factfinder," Boggs concluded.

U.S. Circuit Judge Alice Batchelder rounded out the panel.

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