Abuse of Public School Preschool Child

Think of a four-year old you have known. The gait and smile and size of such a child. And now, if you can, try to imagine someone beating that four-year old. A public school teacher recently did that, and more, to a youngster with disabilities. This happened in school and the authorities knew and delayed protecting the child from abuse, a lawsuit alleged.

The 9th Circuit Court of Appeals rejected the school's claims of immunity from suit under constitutional principles.

Claiming abuse including being beaten, slapped, body slammed, unexplained bruises and shoeless walks from the school bus to the classroom, a four year old child in a public school sued the school under the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the IDEA, and the Constitution. The child is non-verbal, autistic and has tuberous schlerosis, a neurological disease which causes tumors in various organs and skin lesions, among other things.

A particular teacher in a special education program admitted slapping the child's hands repeatedly and hitting his head and face. A detective witnessed the teacher "maliciously body slam..." the child into a chair. Four times, the teacher forced the child to walk without shoes across the asphalt from the school bus to the class room. The child began to show violent behavior. However, although the school knew of the abuse, the parent were not told of it for a long time. Months after the first abuse report, the teacher was placed on administrative leave.

The court held that the slapping, beating and slamming were unreasonable force against a student who, here, "was even more vulnerable than the average pre-school child." In doing so, the court rejected the school's "effort to candycoat" the claims by asserting that this was no more than a "failure to conform to best practices." The physical abuse violated the Fourth Amendment and the teacher has no qualified immunity from liability. On the other hand, forcing the child to walk shoeless was OK because "the teacher was simply attempting to teach Preschooler II not to remove his shoes on the bus," regardless of the pedagogical wisdom of this "lesson." The 9th Circuit held that unexplained bruising also do not rise to the level of constitutional violation.

As to the supervisory school officials (the superintendent, principal and others), there was sufficient basis to continue the suit on the grounds of the alleged "claimed knowledge or 'blind eye' acquiescence" in the abuse. Also, the supervisory officials' failure to remediate might trigger their liability, the court held because "a reasonable special education school official would know that [the teacher's] alleged abusive conduct, and the failure of other special education officials to address that conduct, are grounds for liability."

Preschooler II v. Clark County School Board of Trustees, --- F.3d ----, 2007 WL 840337 (9th Cir., Mar. 21, 2007).