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Appeals Court Rejects Suit Over Special Education Restraint Techniques

An Ohio special education teacher's alleged techniques of binding a student and gagging him with a bandana to stop him from spitting, strapping another student to a toilet to keep her from falling off, and forcing a third student to sit with her pants down on a training toilet in full view of her classmates were "inappropriate and abusive," but they did not violate the students' constitutional rights, a federal appeals court has ruled.

Teacher Marsha Kowalski's "educational and disciplinary methods ... may have been inappropriate, insensitive, and even tortious," said a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati. "This does not, however, render them unconstitutional."

The panel was unanimous in rejecting the constitutional claims of the two students involved in the classroom toilet training, but 2-1 against the student with allegedly gagged with a bandana. All three students had autism, and they ranged in age from 6 to 11 during the 2003-04 school year when the alleged behavior took place.

The allegations against Kowalski, a teacher at the North Point Educational Service Center in Sandusky, Ohio, were reported by Suzanne Brant, a teaching aide in Kowalski's classroom, after Brant had been told her contract was not being renewed for the next school year.

Brant reported a range of potentially questionable classroom techniques by Kowalski to school officials and state authorities. Kowalski was suspended with pay for a year while state authorities investigated. The Ohio Department of Education concluded its investigation with a consent agreement in which Kowalski denied any wrongdoing, but she agreed to complete 20 to 30 hours of college-level special-education coursework.

Court papers say Kowalski is still employed at North Point, a special education facility serving multiple Ohio school districts.

Parents of the three children sued Kowalski, North Point, and several administrators, primarily claiming violations of the student's 14th Amendment due-process rights.

A federal district court found that if Brant's allegations were true, Kowalski was "almost certainly engaged in child abuse." But the judge still ruled against the students' suit, saying the violations did not rise to the level of violating the Constitution.

The 6th Circuit court agreed. In its Jan. 7 decision in Domingo v. Kowalski, the court said the claims against the teacher were mitigated in part by the fact the she had a pedogogical justification for her techniques. 

"Kowalski's complained-of conduct involved attempts, albeit misguided ones, to address her special-education students' undisputed educational or disciplinary needs," Judge Paul C. Huck, a district judge from Florida sitting by special designation on the 6th Circuit panel, wrote for the court.

One student was not toilet-trained, struggled with balance, and would soil herself unless she had some assistance in using the bathroom, Huck noted.

Also, the teacher's one-time gagging of a student with a bandana was aimed at the student's frequent misbehavior of spitting at teachers and other students, the judge said.

"The evidence establishes that Kowalski attempted to toilet-train and control her special-education students in furtherance of valid pedagogical goals," Huck said. "The methods she employed to accomplish these goals do not shock the conscience."

U.S. Circuit Judge Danny J. Boggs dissented on dismissing the claims of the 9-year-old student, identified as R.G., who was bound and gagged for spitting, saying he would have let that claim go to trial.

"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.

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