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1 01 OFFICE FOR DISPUTE RESOLUTION 02 DUE-PROCESS HEARING FOR 03 Tom Cruise 04 05 Friday, November 12, 2004 06 07 FILE 08 09 10 Transcript of Proceedings held 11 before DR. DAVID BATEMAN, Special 12 Education Hearing Officer, at 13 14 15 Pennsylvania, commencing at 11:00 a.m. 16 on the day and date above set forth. 17 18 19 20 REPORTER: 21 22 23 24 25 2 01 02 A P P E A R A N C E S 03 04 Perry Mason, ESQUIRE 05 06 07 08 COUNSEL FOR SCHOOL DISTRICT 09 10 DAVID B. Gates, ESQUIRE 11 12 13 14 15 16 COUNSEL FOR PARENTS 17 18 19 20 21 22 23 24 25 3 01 I N D E X 02 03 WITNESS: 04 DIRECT EXAMINATION 05 06 PHILLIP Northern By Attorney Perry Mason CROSS EXAMINATION 07 By Attorney Gates 08 REDIRECT EXAMINATION 09 10 11 By Attorney Perry Mason By Attorney Gates WITNESS: 13 DIRECT EXAMINATION 15 By Attorney Perry Mason 17 REDIRECT EXAMINATION 20 By Attorney Perry Mason By Attorney Gates WITNESS: 22 DIRECT EXAMINATION 24 25 86 - 95 95 - 107 107 - 110 RECROSS EXAMINATION 21 23 84 - 86 CROSS EXAMINATION By Attorney Gates 19 78 - 84 CAROL Dell 16 18 25 - 78 RECROSS EXAMINATION 12 14 17 - 25 110 - 114 LISA ANN Jeffers By Attorney Gates 114 - 128 CROSS EXAMINATION By Attorney Perry Mason 128 - 133 4 01 REDIRECT EXAMINATION 02 By Attorney Gates 133 - 137 03 WITNESS: 04 DIRECT EXAMINATION 05 06 07 GLORIA Estefan By Attorney Perry Mason 137 - 150 CROSS EXAMINATION By Attorney Gates 08 DISCUSSION AMONG PARTIES 09 CERTIFICATE 150 - 177 177 - 200 201 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 01 EXHIBIT PAGE 02 03 PAGE 04 NUMBER DESCRIPTION IDENTIFIED 05 06 NONE ATTACHED 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 01 P R O C E E D I N G S 02 -------------------------------------- 03 HEARING OFFICER BATEMAN: 04 Good morning. My name 05 is David Bateman. I am the 06 Hearing Officer assigned by the 07 Office for Dispute Resolution 08 to conduct this hearing. 09 my understanding that the 10 purpose of this hearing is to 11 make a determination whether 12 the manifestation determination 13 as conducted by the District is 14 appropriate. 15 understanding of the issue? It is Is that your 16 ATTORNEY Gates: 17 Yes. 18 HEARING OFFICER BATEMAN: 19 Is that your 20 understanding of the issue? 21 ATTORNEY Perry Mason: 22 Yes. 23 HEARING OFFICER BATEMAN: 24 In an administrative 25 hearing such as this it's 7 01 important to keep in mind that 02 following the decision, that 03 both parties will need to work 04 together to implement the 05 decision. 06 I would hope the 07 atmosphere this morning and 08 this afternoon will be 09 conducive to subsequent 10 cooperation. 11 relevancy of testimony might be 12 questioned. 13 Hearing Officer allows the 14 testimony or evidence to be 15 presented but may disregard it 16 when writing the decision 17 because it becomes clear at 18 that time that the testimony or 19 evidence is, in fact, 20 irrelevant. 21 understanding that the parents 22 have requested a closed 23 hearing; is that correct? At times Sometimes the It is my 24 MS. Jeffers: 25 Correct. 8 01 HEARING OFFICER BATEMAN: 02 In this hearing the 03 School District will present 04 its case first. 05 are called by the District, the 06 District will first ask As witnesses 07 questions. 08 parents will have an 09 opportunity to question the 10 witnesses. 11 should be asked of the witness 12 when the witness is first 13 called, as the witnesses will 14 only be called once in this 15 proceeding. 16 Following this, the All questions Questions should be 17 asked in a manner so the 18 witness can clearly understand 19 what is asked and can answer 20 the questions. 21 Examination the parties may ask 22 any question they believe will 23 aid the Hearing Officer in 24 understanding the testimony of 25 the witnesses. On Cross When the 9 01 District has completed calling 02 its witnesses, the parents have 03 a right to call witnesses for 04 Direct testimony. 05 has the right to cross examine 06 the witness. 07 testimony from both sides, both The District Following the 08 parties will have an 09 opportunity to make a closing 10 statement. 11 should summarize the 12 information each party has 13 presented, addressing the 14 issues in this case. 15 Such statement A court reporter at this 16 hearing will take a verbatim 17 transcript of anything that is 18 said in this proceeding. 19 will also swear in any 20 witnesses. 21 all parties to speak clearly 22 and distinctly so that he can 23 hear and record all comments. 24 This proceeding differs 25 significantly from those many He It is important for 10 01 educational hearings. 02 an exchange of information but 03 a presentation of facts so the 04 Hearing Officer can make a 05 determination. 06 It's not The parents are entitled 07 to a copy of the transcript. 08 Please provide the address and 09 form in which you want the 10 transcript. Mr. Gates? 11 ATTORNEY Gates: 12 Yes. 13 HEARING OFFICER BATEMAN: 14 Could you provide the 15 address to where you want the 16 transcript sent? 17 ATTORNEY Gates: 18 I apologize. You can 19 send it to the care of my 20 address, 21 , I'll 22 spell it, 23 , 24 Pennsylvania, . 25 HEARING OFFICER BATEMAN: 11 01 02 In what form do you want it? 03 ATTORNEY Gates: 04 The hard copy 05 transcript, the old-fashioned 06 version, not the minuscript. 07 HEARING OFFICER BATEMAN: 08 Thank you. 09 Perry Mason? Ms. 10 ATTORNEY Perry Mason: 11 Mine can be sent to me. 12 If I can have a minuscript with 13 an index. 14 HEARING OFFICER BATEMAN: 15 Thank you. At this 16 time, each party should present 17 an opening statement to specify 18 the issues. 19 state what areas of 20 disagreement exist, why the 21 School District's proposal is 22 not appropriate and may present 23 what they feel is appropriate. 24 The School District should 25 explain why it believes its The parent should 12 01 recommendations are 02 appropriate. 03 present their opening 04 statement. The parents may 05 ATTORNEY Gates: 06 First? 07 HEARING OFFICER BATEMAN: 08 Yes. 09 ATTORNEY Gates: 10 Good afternoon, and 11 thank you for being here. 12 Briefly, the parents believe 13 that the recommended placement 14 is inappropriate because the 15 manifestation determination 16 process and worksheet were done 17 inappropriately, 18 inappropriately in the sense 19 that they were incomplete, 20 inappropriately in the sense 21 that they failed to 22 substantively address the many 23 questions and issues that are 24 contained within the worksheet, 25 and inappropriate because the 13 01 source documents upon which the 02 worksheet relies, such as the 03 IEP and the most recent ER, are 04 themselves inappropriate. 05 And it would appear that 06 in a determination of this 07 type, that is a determination 08 that a child's behavior was not 09 a manifestation of his learning 10 disability, that each document 11 builds on itself and that each 12 document is essentially a 13 building block for others. 14 if the foundation is crumbling, 15 then the document upon which it 16 is based is crumbling. 17 believe the evidence will show 18 that the worksheet and the 19 documents that it's based on 20 are inappropriate, incomplete 21 and inaccurate, and therefore, 22 cannot properly form the basis 23 of a determination that the 24 manifestation was not of 25 Tom's disability but some And And we 14 01 independent behavioral act. 02 HEARING OFFICER BATEMAN: 03 Ms. Perry Mason? 04 ATTORNEY Perry Mason: 05 Thank you. 06 the issue is the 07 appropriateness or the 08 correctness of the 09 determination of whether or not 10 the behavior in question is a 11 manifestation of Tom's 12 disability. As you know, 13 Tom is currently a 14 14-year-old student who is in 15 ninth grade at 16 Junior/Senior High 17 School. 18 student with a specific 19 learning disability in the area 20 of reading, and his current 21 placement is in Learning 22 Support for his major subjects. 23 He is identified as a What you're going to 24 hear is that he was involved in 25 an incident on September 30th 15 01 in which he had a knife in 02 school, and he was referred for 03 expulsion before the board. 04 That expulsion hearing has been 05 held in abeyance, pending the 06 outcome of this hearing, so 07 that has not taken place at 08 this point. 09 You're going to see that 10 the District did conduct a 11 manifestation determination. 12 It was properly conducted. 13 was procedurally sound. And It 14 the team determined that 15 Tom's behavior was not a 16 manifestation of his 17 disability. 18 parents' position, but again, 19 what we're going to find is 20 that the team did consider the 21 appropriateness of his program 22 and placement, that the 23 behavior in question is 24 actually an isolated incident, 25 that even though Tom does We understand the 16 01 have some behavioral issues 02 which are addressed in the IEP, 03 this is not a behavior that the 04 team has seen before, would not 05 have been addressed in the IEP 06 at all. 07 will show that Tom's 08 behavior in question, bringing 09 a knife to school, is not a 10 manifestation of his 11 disability. We think that evidence 12 ATTORNEY Gates: 13 May I ask as a matter of 14 procedure, do you want case 15 citation and/or CFR authority 16 at the beginning of the hearing 17 or as part of a closing 18 argument? 19 HEARING OFFICER BATEMAN: 20 Part of the closing 21 would be good. 22 ATTORNEY Gates: 23 Good. 24 HEARING OFFICER BATEMAN: 25 At this time, I would 17 01 like the District to call its 02 first witness. 03 ATTORNEY Perry Mason: 04 The District calls 05 Phillip Northern. 06 -------------------------------------- 07 PHILLIP Northern, HAVING FIRST BEEN DULY 08 SWORN, TESTIFIED AS FOLLOWS: 09 -------------------------------------- 10 DIRECT EXAMINATION 11 BY ATTORNEY Perry Mason: 12 Q. Would you please state and 13 spell your name for the record? 14 A. Phillip R. Northern,, 15 . 16 Q. And by whom are you employed? 17 A. 18 District. 19 Q. And what's your position with 20 the District? 21 A. Principal, secondary school, 7 22 through 12. 23 Q. How long have you been 24 principal there? 25 A. Six years. School 18 01 Q. And what are the duties of your 02 position? 03 A. Safe, orderly operation of the 04 school, all facets of curriculum and 05 discipline matters, overall charge of 06 the school. 07 Q. And prior to being a principal 08 here at 09 describe other positions you've held 10 in your field? 11 A. I was a subject teacher in 12 science and chemistry for 26 years, 13 three of them served at 14 High School, administrative duties and 15 science teacher at 16 School for 24 of those years. , could you Area High 17 Q. And could you describe your 18 educational background? 19 A. Do you want my final degrees or 20 ---? 21 Secondary Education from Bloomsburg 22 University, a Master's degree from 23 Wilkes University in Computer 24 Technology in the Classroom. 25 certifications in Elementary/Secondary I have a Bachelor's degree in I hold 19 01 Principal Certificates, and a Letter 02 of Recommendation --- or a Certificate 03 for Superintendent from Scranton 04 University. 05 Q. And are you familiar with 06 Tom Cruise? 07 A. Yes. 08 Q. How are you familiar with him? 09 A. He's a student in high school. 10 Q. Now, just for the record, what 11 is his disability? 12 A. He has a specific learning 13 disability in the written area of 14 reading and writing. 15 Q. And what is his current 16 placement? 17 A. Learning Support, 18 , under the direction of Gloria 19 Estefan, but he is in several of the 20 classes. 21 with Ms. Cherry (phonetic) and 22 sometimes with Ms. Estefan. 23 Q. Ms. Cherry and Ms. Estefan 24 are ---? 25 A. Employed by the IU. I believe sometimes he's 20 01 Q. What are their positions? 02 A. One of them is --- they're both 03 special education teachers. 04 one of them is special education 05 classroom and one is learning support 06 classroom. 07 Q. Now, could you just briefly 08 describe the incident in which Tom 09 was involved that led to the 10 manifestation determination that's the 11 subject of this hearing? 12 A. All right. 13 involves Tom bringing a knife to 14 school. 15 describe that or not? 16 Q. Just when did that take place? 17 A. Well, over a period of time. 18 guess the incident occurred on the I believe The incident Do you want me to further I 19 30th, but it took the District several 20 days to do a thorough investigation. 21 Q. The 30th of which month? 22 A. September. 23 Q. I'm sorry I interrupted you. 24 A. The incident began as an 25 outside-of-school incident with boys 21 01 fighting. After investigating, it was 02 determined that a boy brought a knife 03 to school. 04 Tom admitted that he, in fact, did 05 have this knife, found it, brought the 06 knife to school and had it in school, 07 at which time we proceeded according 08 to the 09 weapons violation and proceeded for 10 disciplinary action. 11 Jeffers, and Tom was suspended for a 12 period of ten days and a due process 13 manifestation determination was 14 scheduled. 15 Q. Would you turn to School 16 District Exhibit 11? 17 A. Sure. 18 Q. The next one. 19 A. Yes. And finally, bringing --- Handbook on Notified Ms. 20 Q. And what is that? 21 A. That's part of the policy of 22 the Student Handbook at 23 . 24 Q. And is that the weapons policy? 25 A. Yeah. Uh-huh (yes). 22 01 Q. And what is the consequence for 02 having a weapon in school? 03 A. Any student who is in 04 possession or uses a weapon at school 05 or school property will have the 06 weapon confiscated, if possible, ten 07 days automatic out-of-school 08 suspension, referral to law 09 enforcement and psychiatric services. 10 A formal board hearing will be 11 scheduled to enforce consequences. 12 Q. And was a formal board hearing 13 scheduled? 14 A. Yes. 15 Q. Would you turn to School 16 District Exhibit Number Ten, please? 17 Would you identify that document? 18 A. Yes. 19 document. 20 I was copied on that HEARING OFFICER BATEMAN: 21 Which one again? 22 ATTORNEY Perry Mason: 23 Ten. 24 BY ATTORNEY Perry Mason: 25 Q. What is it? 23 01 A. It's a Notice of Hearing from 02 Doctor 03 indicating that the 04 School Board will hold a hearing 05 regarding your son at 6:00 p.m. on 06 Wednesday, October 27th, 2004. 07 goes on to say what it's in reference 08 to, unless you want me to read the 09 whole thing. 10 Q. What disciplinary action was 11 being proposed? 12 A. Could be up to and including 13 expulsion from the school. 14 Q. And was this memo sent to the 15 parents on or about October 12th? 16 A. I believe so. 17 Q. Now, you've mentioned that a 18 manifestation determination was held? 19 A. Uh-huh (yes). 20 Q. And do you recall when that was 21 held? to Ms. Jeffers, And it 22 A. I can check the date. 23 Q. Turn to School District Exhibit 24 Number Six. 25 A. Yes. The date indicated, 24 01 October 18th of '04. 02 Q. And were you a member of the 03 team that met on that date? 04 A. Yes. 05 Q. What I'd like you to do is just 06 briefly describe what the team found 07 at that point. 08 what was found? 09 A. We answered the questions 10 pursuant to the guidelines for 11 decision making, which are the 12 questions about following the 13 guidelines, and discussed among the 14 team --- the whole team that was 15 present is on the last page indicated, 16 the team members, and consulted with 17 all present at the meeting and 18 answered all board questions in the 19 affirmative and then asked for 20 signatures. 21 Q. And did the team conclude that 22 Tom's behavior was a manifestation What was discussed and 23 of his disability? 24 A. The team concluded that 25 Tom's behavior was not a 25 01 manifestation of his disability. 02 Q. And why was that? 03 A. Because of the questions and 04 the affirmative answers and the 05 questions and the procedure outlined 06 in the determination. 07 Q. And in your opinion, is that 08 determination appropriate? 09 A. I believe it is, yes. 10 Q. And why is that? 11 A. Because of the guidelines and 12 the questions that Tom's bringing 13 the weapon to school was not Jeffersed to 14 his identified disability. 15 ATTORNEY Perry Mason: 16 I have nothing further 17 at this time. 18 HEARING OFFICER BATEMAN: 19 Your opportunity. 20 CROSS EXAMINATION 21 BY ATTORNEY Gates: 22 Q. Good afternoon, sir. 23 A. Good afternoon. 24 Q. I apologize, is it Mr. Northern 25 or Doctor Northern? 26 01 A. Mr. Northern, sir. 02 Q. You're working for a doctorate? 03 A. It's right there. 04 Q. First, with regard to Tom's 05 learning disability, you said he has a 06 specific learning disability; correct? 07 A. Uh-huh (yes). 08 Q. Yes? 09 A. Yes. 10 Q. He has more than, however, just 11 a specific learning disability; 12 doesn't he? 13 A. Regarding his placement, I 14 don't know that that's correct. 15 mean, from an educational standpoint, 16 what we deal with in the IEP is his 17 disability in the written language and 18 reading. 19 Q. Let me reference a document, 20 which I don't know if Counsel has, 21 called Teacher's Report Form for Ages 22 6 to 18. 23 ATTORNEY Perry Mason: 24 Hold on. I 25 ATTORNEY Gates: 27 01 Sure. I'm not admitting 02 it into evidence. 03 for Cross. I'm using it 04 ATTORNEY Perry Mason: 05 I don't think I have a 06 copy of it. 07 HEARING OFFICER BATEMAN: 08 Why don't you provide a 09 copy for her to review? 10 ATTORNEY Gates: 11 Yes, I wish I did. But 12 as you know, I just got the 13 case yesterday. 14 HEAIRNG OFFICER BATEMAN: 15 Then let her review it 16 before you ask questions. 17 ATTORNEY Gates: 18 Sure. I'm going to ask 19 about the area that's 20 highlighted there. 21 ATTORNEY Perry Mason: 22 Can I ask what this 23 actually is? 24 ATTORNEY Gates: 25 I believe it's what it 28 01 says, a Teacher's Report Form 02 that is prepared to ---. 03 ATTORNEY Perry Mason: 04 This is a School 05 District document? 06 ATTORNEY Gates: 07 I think that it is. 08 ATTORNEY Perry Mason: 09 I don't know that it is. 10 HEARING OFFICER BATEMAN: 11 Let's go off the record. 12 OFF RECORD DISCUSSION 13 HEARING OFFICER BATEMAN: 14 Are you aware of any 15 other specific learning 16 disabilities that the student 17 has? 18 A. No, I'm not. 19 ATTORNEY Gates: 20 May I ask him about it? 21 HEARING OFFICER BATEMAN: 22 Well, he just said he's 23 not aware of any others. 24 ATTORNEY Gates: 25 Okay. Well, I'd like to 29 01 ask him then, --- 02 BY ATTORNEY Gates: 03 Q. --- so you're not aware that 04 his own teacher, Ms. Allison Cherry, 05 noted that he has oppositional 06 defiance disorder in a form that she 07 filled out? 08 ATTORNEY Perry Mason: 09 Objection. This is 10 facts not in evidence. 11 ATTORNEY Gates: 12 I think the report 13 speaks for itself. And again, 14 I'm not seeking to admit it 15 into evidence. 16 pointing out that ---. I'm just 17 HEARING OFFICER BATEMAN: 18 By questioning is one 19 way of getting into evidence. 20 Let's see. 21 other documents that state this 22 that were available at the time 23 that the District completed its 24 manifestation determination? 25 Do we have any ATTORNEY Gates: 30 01 Sure. 02 HEARING OFFICER BATEMAN: 03 I think we had a 04 discussion relating to this 05 prior to the hearing. 06 BY ATTORNEY Gates: 07 Q. Let me reference you then, Mr. 08 Northern, to some other documents that I 09 believe you are familiar with and have 10 produced. 11 12 With regard to the Unit ER dated January 13th, '03 ---. 13 ATTORNEY Perry Mason: 14 School District Exhibit 15 One. 16 BY ATTORNEY Gates: 17 Q. If we turn to --- bear with me 18 for a moment, page three of nine, it's 19 true, is it not, that Tom was 20 diagnosed as having oppositional 21 defiant disorder back in January of 22 '03? 23 A. I've read this report. 24 Q. So that's a correct diagnosis? 25 A. Yes. Uh-huh (yes). 31 01 Q. Yes? 02 A. Yes. It's in the report, yes. 03 Q. And he was also diagnosed with 04 adjustment disorder with mixed 05 emotional and behavior features? 06 A. That's correct, in the report. 07 Q. And that's in addition to the 08 learning disorder in math and language 09 arts that you testified about; 10 correct? 11 A. That's correct. 12 Q. So he has more than a 13 disability than just math and language 14 arts; does he not? 15 A. From an educational standpoint, 16 I'm looking at the specific learning 17 disability that would be in the 18 academic area. 19 Q. Nonetheless, these are 20 additional learning disabilities that 21 were evaluated by your intermediate 22 unit; correct? 23 A. Correct. 24 Q. And he also is diagnosed with 25 Axis II, Cluster B personality traits? 32 01 A. That's in the report, yes. 02 Q. So Tom had and has all of 03 these conditions, as well as a 04 specific LD; fair to say? 05 A. They're diagnosed, that's fair 06 to say, yes. 07 Q. Let me turn your attention to 08 the manifestation determination 09 worksheet, which is your Exhibit 10 Number S-6. 11 A. Yes, I do. 12 Q. Would you agree with me that 13 this is a very important document to 14 fill out properly and correctly and 15 completely? 16 A. Yes. 17 Q. And you would agree with me 18 that this document can have a profound 19 effect on the future placement of the 20 child? 21 A. Yes. 22 Q. And in this case, that 23 placement could mean expulsion for the 24 child? 25 A. Possibly, yes. Do you have it? 33 01 Q. And therefore, it's critical 02 that it be filled out properly and 03 completely? 04 A. Accurately, yes. 05 Q. And properly and completely? 06 A. Yes. 07 Q. And it is your signature at the 08 back page on five of five, as the 09 fourth signature? 10 A. Yes. 11 Q. So you were present at the 12 manifestation determination meeting on 13 October 18th, '04? 14 A. Yes. 15 Q. And is it fair to say you were, 16 in fact, the most senior person, so to 17 speak, that was there? 18 ATTORNEY Perry Mason: 19 Objection as to 20 relevance. 21 A. I don't know what senior is 22 referencing. 23 BY ATTORNEY Gates: 24 Q. Well, if there was something 25 that was wrong in the report, it would 34 01 certainly be within your power to say, 02 wait a minute, we've got to go back 03 and look at that because it's not 04 appropriate? 05 A. No. I saw myself as a member 06 of a team doing an evaluation. 07 Q. Nonetheless, if you saw 08 something that you thought was 09 inappropriate or incomplete or 10 inaccurate, would it be your practice 11 to say so as part of the team? 12 A. If I saw it, yes. 13 Q. Let me turn to your attention 14 to the very first page of this 15 exhibit. 16 HEARING OFFICER BATEMAN: 17 Hold on. 18 ATTORNEY Gates: 19 Sure. 20 HEARING OFFICER BATEMAN: 21 The very first page? 22 ATTORNEY Gates: 23 I don't know how the 24 copying works. I'm talking 25 about the first page after the 35 01 triangle that says 02 manifestation determination 03 worksheet. 04 manifestation determination 05 worksheet. 06 On my copy it says HEARING OFFICER BATEMAN: 07 It's entered in School 08 District Exhibit Six, page 09 three. 10 ATTORNEY Gates: 11 Okay. 12 On my copy it's page two. 13 HEARING OFFICER BATEMAN: 14 I just want to make sure 15 we're all referring to the same 16 page. 17 Go ahead. That's why I do that. 18 ATTORNEY Gates: 19 Absolutely. 20 BY ATTORNEY Gates: 21 Q. It says, student information 22 --- and please correct me if I read 23 this wrong. 24 a learning disability who was 25 suspended for bringing a knife to Tom is a student with 36 01 school. Did I read that correctly? 02 A. That's what it reads, yes. 03 Q. And does it say right below the 04 lines that allow one to write 05 information in that space, doesn't it 06 say that the team should include 07 behavioral characteristics? 08 A. Yes, it does. 09 Q. And isn't it true that there 10 are no behavioral characteristics 11 here? 12 A. There were discussions on all 13 of the questions. 14 they're not here. 15 Q. And it also says that this 16 section should not only include 17 behavioral characteristics, but also 18 specific severity, and you would agree 19 there's nothing about specific 20 severity; correct? 21 A. It's not indicated there, 22 that's correct. 23 Q. And then it says it's also to 24 include in this section or question, 25 how the disability affects academic So yes, it's true, 37 01 and/or social performance. You would 02 agree there's nothing here that talks 03 about how any of Tom's 04 disabilities affects his academic or 05 social performance in this section? 06 A. It's not included there, that's 07 correct. 08 Q. And then it says, include a 09 brief description of this student's 10 strengths and needs. 11 agree with me that there's nothing 12 whatsoever here about his strengths? 13 A. Not written, no. 14 Q. And there's nothing whatsoever 15 here about his needs? 16 A. No. 17 on that? 18 Q. Well, your attorney I'm sure 19 will ask you questions on Redirect. 20 A. Okay. And you would However, can I elaborate 21 HEARING OFFICER BATEMAN: 22 I'm sorry. The way you 23 asked that question and the way 24 he answered ---. 25 ATTORNEY Gates: 38 01 It was one of those 02 inconsistencies. Do you want 03 me to go back and clean that 04 up? 05 HEARING OFFICER BATEMAN: 06 Yes. Why don't you 07 rephrase that, please? 08 BY ATTORNEY Gates: 09 Q. Isn't it true that there's 10 nothing in this section that gives a 11 brief description of this student's 12 strengths? 13 A. It's not written in that 14 section, yes. 15 Q. So that's true? 16 A. That's true. 17 Q. And isn't it also true there's 18 nothing in this section that gives a 19 brief description of the student's 20 needs? 21 A. It's not written, yes, that's 22 true. 23 Q. So isn't it true that there's 24 nothing that complies with any of the 25 requirements that are signified by That's correct. 39 01 this bullet or block that starts with 02 the words, include behavioral 03 characteristics, within this section 04 of the worksheet? 05 A. There's nothing written in that 06 section, that's correct. 07 Q. And when it says include, you 08 would agree with me that this language 09 does not have any elective or optional 10 component? In other words, it is a 11 mandate that says include? 12 A. It doesn't say write it in 13 there. 14 ATTORNEY Perry Mason: 15 I'm going to object 16 because this is the worksheet. 17 This is not the federal 18 requirements as to what has to 19 be written down. 20 what needs to be considered. It's just 21 ATTORNEY Gates: 22 Right. We'll get to --- 23 I'm going to get to the rest of 24 the document. 25 HEARING OFFICER BATEMAN: 40 01 All right. Keep going. 02 A. Did I answer that 03 appropriately? 04 when I read that, it doesn't say to 05 write it there. 06 behavioral characteristics. 07 BY ATTORNEY Gates: 08 Q. Where do you think it means to 09 include them? 10 A. In the discussion. 11 where I feel it means to include them. I'm indicating that It says include the That's 12 Q. And where is the discussion? 13 A. The discussion was open among 14 the team to answer the questions and 15 read into the evidence on that day or 16 the discussion on that day were the 17 considerations from Tom's IEP, 18 which was the current placement. 19 Q. Just so I want to make sure I 20 understand your testimony, you're 21 saying that when it says here to 22 include these various things, I won't 23 repeat all of them, that you construed 24 that to mean that you should include 25 them in the nature of an open 41 01 discussion about them? 02 A. In consideration for answering 03 the questions, yes. 04 Q. But not that you should write 05 them down anywhere? 06 A. Well, it didn't say to write 07 them down. 08 that are not on this paper. 09 Q. You don't construe it as having 10 to write these things down on this 11 thing called a worksheet; correct? 12 A. Correct. They are written in places 13 Q. Description of behavior subject 14 to disciplinary action. 15 Tom brought a knife to school; 16 correct? 17 A. That's correct. 18 Q. It doesn't talk about why he 19 brought a knife to school? 20 A. I don't know why he brought a 21 knife to school. 22 Q. That's not my question, sir. 23 It doesn't talk in this block, in what 24 you filled out or what the team filled 25 out, it doesn't talk about why he It says 42 01 brought a knife to school, does it? 02 A. There's nothing else included 03 in that block. 04 Q. And it doesn't talk about the 05 size of the knife; correct? 06 A. No. 07 Q. And it doesn't talk about the 08 ---? 09 HEARING OFFICER BATEMAN: 10 I'm sorry. Does it talk 11 about the size of the knife? 12 A. There's nothing included in 13 that statement, sir. It doesn't 14 include anything that you're going to 15 ask me beyond bringing a knife to 16 school. 17 HEARING OFFICER BATEMAN: 18 Actually, the document 19 pretty much does speak for 20 itself about what it includes 21 or doesn't include. 22 on paper. 23 BY ATTORNEY Gates: 24 Q. You would agree with me --- 25 I'll summarize the following question. It's there 43 01 You would agree with me that it 02 doesn't include anything about the 03 background of the description of the 04 behavior leading up to the bringing of 05 the knife to school, it only says 06 Tom brought a knife to school? 07 A. That's exactly what it says. 08 Q. And is it fair to say that you 09 did not construe the bullet beneath 10 this which states, include setting 11 events, antecedents, details of the 12 behavioral incident and immediate 13 consequences as warranting putting 14 that information in this section? 15 A. If you're asking me in terms of 16 written, --- 17 Q. Yes. 18 A. --- yes. 19 Q. So just to be clear again, you 20 believe that this language doesn't 21 warrant you putting that in writing? 22 A. Not on this form. 23 Q. Okay. 24 proposed disciplinary action, which is 25 the very next block, where it states On the description of 44 01 Tom's action resulted in an 02 automatic suspension from school, you 03 would agree with me that nowhere in 04 there does it talk about his 05 cumulative record of disciplinary 06 action for the present school year; 07 correct? 08 A. Nothing more is written there. 09 Q. Let's turn to the next page, if 10 we can, Guiding Questions for the IEP 11 Team Decision Making, I believe four 12 of five. 13 A. Four? 14 Q. Page four of five, I think. 15 A. Yes. 16 Q. And guiding questions for IEP 17 decision making, does that mean that 18 these are things the IEP team should 19 think about carefully in making a 20 determination of whether to recommend 21 that a behavior was or wasn't a 22 manifestation? 23 A. Absolutely. 24 Q. These are very important 25 questions that pretty much will help 45 01 the team determine which way to go? 02 A. They are the questions that 03 determine the way to go. 04 Q. Let's look at the first 05 question. 06 everybody can read it. 07 under justification for team's 08 findings, Tom's IEP goals and 09 objectives are appropriate; correct? 10 A. Yes. 11 Q. Do you believe Tom's IEP 12 goals and objectives are appropriate? 13 A. Yes, I do. 14 Q. Bear with me for a moment, if 15 you would. 16 which is in Exhibit Number Five of the I won't read it because And it says I'm referencing the IEP, 17 School District's package, dated 18 2/12/04. 19 turn to that. I'll give you a moment to 20 ATTORNEY Perry Mason: 21 Mr. Gates has a 22 different exhibit book. 23 ATTORNEY Gates: 24 Okay. 25 under? Which one is it On yours it's S-2. I 46 01 apologize. 02 BY ATTORNEY Gates: 03 Q. And I'll ask you to turn to 04 what on your exhibit is the fourth 05 page. 06 of educational performance. 07 A. Yes. 08 Q. And I won't read this whole 09 document into the record, but I do 10 have a few questions for you about 11 some of it. 12 the second paragraph that starts with, 13 he has made appropriate progress, and 14 I'll ask you, doesn't the second 15 sentence say, he has not made progress 16 on his behavioral goals? 17 A. I was not at this meeting. It talks about present levels I'll ask you to look at 18 Q. I'm not questioning that, sir. 19 I'm just saying isn't it ---? 20 A. Yes, that's what it says. 21 Q. That's what it says. 22 is part of his IEP? 23 A. Yes. 24 Q. And it says he has not made 25 progress on his behavioral goals? And this 47 01 A. That's what it says. 02 Q. Okay. If we go down ---. 03 HEARING OFFICER BATEMAN: 04 You don't need to ask 05 him whether the document says 06 it or not. 07 document. I will read the 08 ATTORNEY Gates: 09 All right. 10 BY ATTORNEY Gates: 11 Q. Isn't it also true that Tom 12 has not once removed himself from a 13 volatile situation as directed in his 14 behavioral support plan? 15 A. I don't know if once --- I 16 don't know if he has or hasn't. 17 Q. If the document says that he 18 has not once removed himself, you 19 wouldn't disagree with what's in this 20 document prepared by the District, 21 would you? 22 A. I didn't write it, so I --- I 23 mean, I could --- the once or whether 24 it has ever occurred, I can't say. 25 Q. My question is, sir, do you 48 01 agree with what's written here, that 02 Tom has not once removed himself from 03 a volatile situation? 04 A. Once would be the caveat that I 05 might not disagree. 06 whether he has ever removed himself 07 from --- I know that on occasion he 08 has not. 09 Q. So you would disagree that Tom 10 has not once removed himself from a 11 volatile situation? 12 A. I can't answer that. 13 Q. So you don't know either way? 14 A. I don't know either way. 15 Q. If, in fact, it's correct that 16 Tom has not once removed himself from 17 a volatile situation, would you agree 18 with me that at least that component 19 of his IEP is not, in fact, I can't answer 20 appropriate? 21 A. I can't answer that. 22 believe I can answer that because I 23 don't know whether he ever has or 24 hasn't removed himself from one 25 volatile situation. I don't I can't answer 49 01 that. 02 Q. I understand. 03 that what is written here is correct, 04 that Tom has not once removed 05 himself, would you agree with me that 06 that component of his IEP is 07 inappropriate? If we assume 08 ATTORNEY Perry Mason: 09 I'm just going to object 10 because this, again, does not 11 relate to the behavior in 12 question, which was bringing a 13 knife to school. 14 ATTORNEY Gates: 15 I disagree. I think the 16 behavior in question goes 17 beyond just the issue of 18 bringing a knife to school and 19 goes to the root of all of the 20 behaviors that Tom has 21 exhibited that have not been 22 adequately addressed. 23 HEARING OFFICER BATEMAN: 24 Well, let's lay a 25 foundation for those behaviors 50 01 because, as you understand, 02 behaviors could take a rather 03 wide range. 04 foundation for some of these 05 behaviors that you are seeking 06 clarity on. So let's lay some 07 ATTORNEY Gates: 08 Okay. 09 BY ATTORNEY Gates: 10 Q. Were you part of the behavioral 11 support plan team? 12 A. I was part of the discussions 13 on behavioral support that were 14 presented in some of the meetings, the 15 IEP meetings, as presented. 16 that standpoint, I guess --- I mean, 17 I've been available to hear behavioral 18 support plans and was, as a team 19 member, included in them. 20 Q. I don't want to read his 21 behavioral support plan into the So from 22 record. Let me just ask you, do you 23 have any basis to disagree with the 24 findings in the behavioral support 25 plan with regard to Tom's lack of 51 01 compliance with, for example, removing 02 himself from volatile situations? 03 A. My recollection of it is that 04 on many occasions, when we would meet, 05 the behavioral support plan was 06 considered, and where inappropriate or 07 where Tom was not following or was 08 ineffective, it was changed to try and 09 make corrections to a more effective 10 behavioral support plan. 11 Q. Do you disagree with the 12 statement that the behavioral support 13 plan was proving to be unsuccessful to 14 date and that everything related to 15 his behavior was apparently proven 16 unsuccessful to date, as of January of 17 '03? 18 A. I'd have to look at the 19 specific document. 20 you is that on several occasions when 21 we would examine the behavioral 22 support plan, it was proving that What I can tell 23 Tom was not --- I guess what I'm 24 saying is, in my opinion, when you 25 write a plan, it's a plan of action. 52 01 When the plan of action isn't working, 02 you correct the plan of action. 03 am ---. 04 Q. Was the plan of action working 05 here? 06 A. Can I finish? 07 Q. Sure. 08 A. What I was going to say is I'm 09 aware of the fact that on different 10 meetings with Tom's IEPs, we've 11 discussed the plan of action and 12 modified them to try and make it more 13 effective. 14 What specific plan you're looking at, 15 Counselor, I don't know. 16 Q. Do you disagree with the 17 findings of the people in your 18 district with regard to their 19 assessment of Tom's lack of 20 behavioral goal progress? 21 A. I don't know what specifically 22 you're asking me. 23 a specific --- I mean, that's a very So I So to that extent, yes. If I disagree with 24 general question. 25 Q. Well, then I don't know any 53 01 other way to handle it other than read 02 specific incidents, if that's the 03 answer. 04 again to the present levels of 05 educational performance, page --- your 06 Exhibit Two, page four. 07 Two, page four. 08 A. Okay. 09 Q. Regarding the second paragraph, 10 do you disagree that --- and I'm 11 reading three sentences into the 12 second paragraph, that of all the 13 behavioral incidents this school year, 14 Tom has not once removed himself from 15 a volatile situation. 16 A. And what are you asking, 17 Counselor? 18 Q. Do you disagree with that? 19 A. I'm trying to see the date on 20 this. 21 this the one I'm reading? 22 Q. No. 23 ---. 24 I'm going to reference you Your Exhibit This was dated 12/1 of '89. This was dated January HEARING OFFICER BATEMAN: Is 25 February. 54 01 BY ATTORNEY Gates: 02 Q. --- I'm sorry, February 12th of 03 '04. 04 A. Okay. 05 that 13 of '04? 06 Q. 2/13 of '04. 07 A. I concur that --- I am aware of 08 the fact that Tom was not 09 following that plan. 10 answer that. 11 did or didn't once. 12 answer the fact that I know the 13 behavioral plan wasn't working as 14 intended. 15 Q. If it wasn't working as 16 intended, then isn't it true then that 17 his IEP and placement were not 18 appropriate because his behavioral 19 plan was admittedly not working? 20 A. I don't believe so because the 21 behavioral plan was considered and 22 modifications were always being made 23 to the plan to make it effective. 24 don't ever recall a meeting where we 25 would identify that a behavioral plan I'm seeing 2/13 --- is Once, I can't I don't know whether he I know --- I can I 55 01 or any part of it was ineffective that 02 alternatives were not discussed and 03 considered. 04 Q. In the same paragraph, where it 05 says in the --- two more sentences, of 06 the behavioral incidents --- I 07 apologize. 08 says in the last sentence, the school 09 has followed all recommendations in 10 the FBA and some ideas were already 11 tried before the FBA and the behavior 12 support plan, all proving to be 13 unsuccessful to date. 14 mean that everything that the school 15 tried behaviorally to improve or help 16 Tom's behavior was unsuccessful 17 through February 13th of this year? 18 A. I think that's consistent with 19 what I just said. 20 Q. I'm just asking you, doesn't it 21 say that? 22 A. It does say that. 23 Q. And do you still feel, having 24 read that, that his IEP goals and 25 objectives were appropriate and were We read that. Where it Doesn't that In every ---. 56 01 being met when you filled out question 02 one on the Guiding Questions for IEP 03 Team Decision Making? 04 A. I can't be more emphatic, 05 positively I do believe that the plan 06 and the attempt of the plan on the 07 behavioral support plan was an attempt 08 to make it successful. 09 Q. That's not my question. 10 plan was all proving to be 11 unsuccessful to date, is it your 12 testimony that you still feel despite 13 that your own team is stating that it 14 was all unsuccessful to date, that the 15 IEP goals and objectives were still 16 appropriate and were still being met 17 as of February --- as of October 18th, 18 '04, when you filled out this 19 worksheet? 20 A. I believe that if you look at 21 the behavioral support plan, you would 22 see modifications to it. 23 Q. So the answer is yes to that? 24 A. As of February 14th of 2000, 25 whatever the date is, yes. If the 57 01 Q. My question is, as of the date 02 that you completed, along with the 03 other members of the team, this IEP 04 decision making questionnaire ---. 05 HEARING OFFICER: 06 It is the manifestation 07 determination worksheet, what 08 was completed October 18th. 09 ATTORNEY Gates: 10 Correct. 11 A. Right. 12 BY ATTORNEY Gates: 13 Q. As of the time you filled out 14 that out, do you still feel that his 15 IEP goals and objectives were 16 appropriate and were being met? 17 A. I believe they were 18 appropriate, yes. 19 Q. And being met? 20 A. Attempted to be met, Counselor. 21 Q. On question two, where it 22 states the specially designed 23 instruction, and Im reading off the 24 guiding question portion of the 25 worksheet. 58 01 A. Hold on one second. 02 we at? Where are 03 HEARING OFFICER BATEMAN: 04 School District Six, 05 page four. 06 BY ATTORNEY Gates: 07 Q. School District Six, four. 08 not going to read the question. 09 want to ask you some questions about 10 the responses. 11 A. Sure. 12 Q. Where it states the specially 13 designed instruction were delivered 14 consistent with the IEP. 15 justification for team findings. 16 Would you read what you wrote for the 17 justification? 18 A. I didn't write anything. 19 ATTORNEY Perry Mason: 20 Objection. I'm I It says The document 21 speaks for itself. 22 BY ATTORNEY Gates: 23 Q. Would you tell me where --- 24 I'll withdraw that. 25 where in this answer there is Would you tell me 59 01 justification for repeating what was 02 in the question? 03 A. I'm not sure I understand your 04 question. 05 Q. All right. 06 foundation. 07 specially designed instruction-related 08 services and supplementary aids and 09 services were delivered consistent 10 with the IEP. 11 say true or false to that; correct? 12 A. We're supposed to answer in the 13 affirmative or negative, yes. 14 Q. True or false, there's a little 15 check box there; right? 16 A. Yes. 17 Q. And somebody on the team 18 circled the T? 19 A. Yes. 20 Q. And that means true? 21 A. That, in fact, does mean true. 22 Q. And then beneath that there's a 23 line that says justification for team 24 findings; right? 25 A. Yes. Let me lay a better The question is, the Now, you're supposed to Uh-huh (yes). 60 01 Q. So that means you're supposed 02 to justify why what you just said is 03 true is, in fact, true; right? 04 A. Yes. 05 Q. And your answer is, specially 06 designed instructions --- is that et 07 cetera after that? 08 A. It looks like that, yes. 09 Q. Specially designed 10 instructions, et cetera, were provided 11 consistent with the IEP. 12 that justify that specially designed 13 instructions were, in fact, provided 14 consistent with the IEP? 15 A. I don't know what your question 16 is, Counselor. 17 Q. My question is, how does what 18 your team wrote under justification 19 actually justify the very question 20 that you just answered as true? 21 A. Because the designed 22 instruction-related service 23 supplementary aids and services were 24 delivered in a consistent manner, as 25 stated with this IEP. How does And the team 61 01 ---. 02 Q. Would you agree with me there's 03 no justification for that, just a 04 repetition of the question? 05 A. No, I wouldn't disagree. 06 You're asking me what is written 07 there, or are you asking me was it 08 discussed? 09 Q. I'm asking you where is the 10 justification for that conclusion? 11 A. The justification for that 12 conclusion would be part of the team 13 meeting that was held at this 14 manifestation, the dialogue that was 15 presented at that meeting, ---. 16 Q. None of which, sir, would you 17 agree with me, appears here? 18 HEARING OFFICER BATEMAN: 19 Hold on. 20 ATTORNEY Gates: 21 He can finish. 22 Hold on. A. And the evidence ---. 23 HEARING OFFICER BATEMAN: 24 What I want to make sure 25 is that we're not talking over 62 01 each other. Please allow him 02 to finish the questions before 03 you start asking your next one, 04 and just give a gentle pause to 05 make sure that he is done 06 before you start answering. 07 ATTORNEY Gates: 08 My apologies. I tend to 09 ask questions quickly. 10 fault. My 11 HEARING OFFICER BATEMAN: 12 It's how we all do 13 normal, everyday conversation, 14 except that we have a court 15 reporter who, though very good, 16 I want to make sure the record 17 accurately reflects what we've 18 been trying to contain as part 19 of this hearing. 20 A. I guess the answer to every one 21 of these --- the two things that keep 22 coming up in the dialogue is what is 23 written on this paper and what was 24 presented at the manifestation 25 determination meeting. The questions 63 01 all were considered and dialogue 02 discussed, input from all parties that 03 were present. 04 in the block --- as a matter of fact, 05 I would indicate that there isn't even 06 possibly the space provided in the 07 paper. So whatever is written If the form is the succinct 08 document that has to be completed, you 09 couldn't even complete in these spaces 10 provided the dialogue for any or all 11 of the questions. 12 your question on question number two, 13 a lot of dialogue ensued about the 14 question and the conclusion drawn was 15 that it was answered in the 16 affirmative. 17 BY ATTORNEY Gates: 18 Q. Would you agree with me that 19 there's enough space under all of 20 these questions to write something 21 substantive, even if paraphrased, 22 based on the extensive open dialogue 23 that you had at these meetings? So in reference to 24 ATTORNEY Perry Mason: 25 I would just again 64 01 object to the question about 02 this worksheet. 03 so what's written here isn't 04 important. 05 what was discussed by the team. It's a guide, What's important is 06 ATTORNEY Gates: 07 I totally disagree. 08 What's important is if there 09 was compliance with the CFR in 10 documenting what was discussed, 11 since we don't know what was 12 discussed, since it was not 13 documented. 14 was inappropriately completed, 15 and therefore, the decision 16 based on it is inappropriate. And therefore, it 17 HEARING OFFICER BATEMAN: 18 That will come out 19 through the testimony of the 20 individuals who were attending 21 the meeting. 22 was discussed. 23 look on your face is that we 24 will hear part of the 25 discussion that ensued from the We can hear what The quizzical 65 01 individuals who were in 02 attendance at the meeting. 03 ATTORNEY Gates: 04 I understand. But I 05 believe it's important to 06 establish that whatever was 07 discussed is not reflected on 08 here as it is supposed to be by 09 virtue of the specific 10 questions. 11 ATTORNEY Perry Mason: 12 It doesn't need to be. 13 This again is a guide. 14 not a requirement. 15 ATTORNEY Gates: 16 I understand that. It's I 17 believe that it should be in 18 order to make a proper and 19 appropriate decision. 20 ATTORNEY Perry Mason: 21 Whether you believe it 22 should be doesn't mean the law 23 says it is. 24 ATTORNEY Gates: 25 I don't believe the law 66 01 says it isn't. I believe that 02 it's a factor to consider in 03 determining whether or not a 04 recommendation is or isn't 05 appropriate. 06 HEARING OFFICER BATEMAN: 07 Let's keep going. 08 BY ATTORNEY Gates: 09 Q. You would agree with me, sir, 10 on the next one, where it says 11 justification for team's findings, 12 that there's no written justification 13 there, merely the statement that 14 Tom understands his behavior was 15 inappropriate? 16 A. Do I have to answer that again? 17 I mean, I've stated it several times. 18 It indicates something is written and, 19 as the Counselor has said, will speak 20 for itself. 21 Q. Let me ask you this. 22 A. So I don't have to re-read 23 that. 24 occasions that there was quite a bit 25 of dialogue on every question, all And I have said on several 67 01 team members having ample time to 02 input, discuss dialogue or refute 03 anything that was being discussed, 04 which would never --- I mean, this 05 meeting lasted probably 45 minutes or 06 maybe an hour. 07 possible to put that dialogue here. 08 We didn't have a reporter. 09 question on this paper was dialogued 10 in the same manner, considered 11 appropriateness of it, information It's not physically So every 12 presented from various documents, 13 whether that be IEP, ER, discipline 14 reports, any and all of that 15 information was considered in looking 16 at the four questions. 17 made a consideration in the 18 affirmative or the negative and moved 19 to the next question. 20 for every question that's on there, 21 Counselor. 22 Q. On every one of these four 23 guiding questions there is the 24 statement justification for team 25 findings; correct? The team then That's the same 68 01 A. Yes. 02 Q. And there are four lines to put 03 that justification; correct? 04 A. Yes. 05 Q. And it's your testimony that 06 while you discussed the justification 07 for each and every one of these, for 08 various reasons none of the 09 justifications were recorded on this 10 document which would be the basis for 11 the recommendation of expulsion? 12 A. I believe the summary of the 13 document --- of the consideration is 14 complete. 15 not to satisfy your interpretation of 16 the question, I can't answer. 17 Q. You believe the summary is an 18 adequate reflection of the discussion 19 for each item? 20 A. I believe the summary at the 21 time for the answer of yes or no was 22 adequate. 23 the written word is adequate, I can't 24 answer. 25 --- it was consistent with my member, Whether that's adequate or Whether, in your opinion, But I can answer that I was 69 01 as a part of the team to say yes to 02 all of the questions, and it was 03 consistent as is recorded on the back 04 sheet, with the exception of Ms. Jeffers, 05 and everyone had the opportunity to 06 participate in the meeting. 07 don't know what else I can say on 08 this. 09 Q. Is there any other written 10 document that contains the rationale 11 or justification for the conclusions 12 that appear on this guiding question 13 document? So I 14 A. Some and all of the supporting 15 documents that I mentioned would be, 16 the IEP, the ER, discipline records, 17 all of the information that was 18 compiled and/or brought in and 19 discussed as relevant at that time. 20 Q. On the fourth question where 21 your justification is that Tom's 22 disability did not impair his ability 23 to control his behavior, what was the 24 discussion that led to that 25 conclusion? 70 01 A. One of them was the fact that 02 when I asked Tom if he understood 03 whether it was right or wrong to bring 04 a knife to school, he verbally told me 05 that he understood that it was part of 06 our policy, against the weapons 07 policy, and that he knew it was the 08 wrong thing to do. 09 beyond that. 10 discussion as, you know, the 11 abilities, whether he understood what 12 he was doing was right or wrong and 13 whether he proceeded anyway. 14 Q. Did anyone discuss the issue of I can't speculate I mean, there was 15 his Axis II personality disorders and 16 what that means relative to his 17 behavior of understanding in his mind 18 the wrongfulness of the conduct? 19 A. I don't know that we could ever 20 answer that question, Counselor. 21 was not discussed. 22 specific method was not discussed. 23 You're asking me to project what 24 Tom was thinking when he did this. 25 Q. No. It I mean, that I'm asking what else was 71 01 discussed with respect to the specific 02 behavioral diagnoses that have been 03 made for Tom and how those 04 diagnoses and conditions may have 05 affected what he thought he understood 06 school policy to be. 07 was that discussed? 08 A. I don't think that answer could 09 be brought up. 10 on whether the student's disability 11 would impair his ability to behave or 12 conduct that behavior was discussed. 13 Q. Is the sum total of the reason 14 for why the conclusion that his 15 disability did not impair his ability My question is, I mean, the discussion 16 to control his behavior because 17 Tom said that he understood that 18 he shouldn't bring a knife to school? 19 A. Not at all. 20 Q. What were the other 21 psychological aspects considered to 22 reach the conclusion that his 23 disability did not impair his ability 24 to control his behavior? 25 A. I don't think when any action 72 01 is done and you're trying to propose 02 why anyone would do something, that 03 you can determine why they would do 04 it, which is what I believe you're 05 asking me. 06 Q. But isn't that --- I'm sorry. 07 A. So when someone is behaving in 08 a given fashion or manner, I don't 09 think anyone can determine why they're 10 behaving that way. 11 question is whether his ability to 12 bring the weapon to school, which was 13 discussed, would have been or should 14 have been impaired by his disability. 15 Q. Isn't it important to try to 16 find out if the reason why he did what I mean, the 17 he did was or wasn't because of his 18 disability? 19 A. I believe --- yes, it is. 20 Q. Didn't you just say that you 21 didn't think anyone could really find 22 out why he did what he did or ---? 23 A. I said when someone's behavior 24 is whatever a behavior is, it's, in my 25 opinion, an opinion why someone would 73 01 do it. I don't think anyone can 02 justify or say why any one of us would 03 do any behavior. 04 was Tom's behavioral plan 05 discussed and the fact that, you know, 06 Tom had some behaviors, yes, it 07 was discussed. 08 Q. It was discussed that Tom 09 had oppositional defiance disorder? 10 A. It was discussed that Tom 11 --- Counselor, you asked me to talk 12 only on this particular reference. 13 Should I proceed or not proceed in 14 terms of what his behaviors were 15 around that, beyond that? 16 Q. Well, at this point I think 17 it's appropriate for you to answer the If you're saying, 18 question. 19 HEARING OFFICER BATEMAN: 20 Yes, answer the 21 question. 22 A. The appropriateness then for 23 question number four was the fact that 24 you were asking what was included in 25 the IEP? 74 01 BY ATTORNEY Gates: 02 Q. No. I just was asking you ---. 03 A. No. I'm saying that when we 04 talked about Tom's behaviors, his 05 behavioral plan, which was included in 06 the IEP, and you asked whether it was 07 working or was it working, those 08 behaviors in the IEP, many of those 09 things were discussed, in fact, at the 10 meeting. 11 Tom's defiant behavior was 12 considered, yes, we considered the 13 fact that Tom is often defiant. 14 Then the question was asked, should 15 that have impacted this particular 16 action, and no one could Jeffers the two, 17 that bringing the knife to school 18 simply because you act in a defiant So if you're asking whether 19 manner is an appropriate action or 20 Jeffers. 21 number four, did the student's 22 disability impair his ability for this 23 specific behavior, we could not make 24 the Jeffers, and so therefore we answered 25 that the disability did not impair. So the answer to question 75 01 Q. In order to make the 02 determination of whether his ODD 03 condition affected his bringing the 04 knife to school and affected whether 05 he did that because he wanted to do 06 the opposite of what he should do, did 07 you at any time consider referring 08 that question out to people who were 09 specifically qualified to make that 10 determination? 11 A. I guess my evidence --- my 12 opinion, and I'm again speaking on my 13 opinion, would be we have many 14 students that have oppositional 15 defiance or related, and that's not a 16 trump card to bring a weapon to 17 school. 18 correlation to say somebody has 19 oppositional defiance disorder and So I don't see the 20 that then impacts their ability to 21 think about a weapon, which I think I 22 would have weighted heavily --- more 23 heavily on the fact that the student 24 was aware that it was a weapon, that 25 it was against school policy. Then I 76 01 would start understanding, well, why 02 wouldn't the student know that. 03 you asked me whether when my question 04 as to Tom did he understand his 05 actions and he indicated that he did 06 understand that it was wrong and that 07 he was apologetic to do, that was part 08 of my decision. 09 privy to that conversation, although I 10 made it public. 11 defiant or hyperactivity or any other 12 label or any other disability would be 13 the Jeffers to say, does that say you can 14 do something against the school 15 policy, and I don't see a Jeffers there. 16 It was discussed, and the team had the 17 opportunity to consider that. 18 Q. So you personally don't see 19 that it could have been caused by or 20 accounted for by him having ODD? So Not everyone was So an oppositional 21 A. Absolutely not. 22 Q. And is that the same with 23 regard to him having adjustment 24 disorder with mixed emotional and 25 behavioral features? 77 01 A. If you're asking me whether the 02 fact that someone would bring a weapon 03 to school because of that condition, 04 --- 05 Q. Right. 06 A. --- then the answer would be 07 the same. 08 Q. That you don't see they 09 possibly could have? 10 A. I think they possibly could 11 have. 12 they did not in this particular case. 13 I mean, anything is possible. 14 Q. And the same thing with Axis 15 II, Cluster B personality traits? 16 A. I'm not even sure what that is, 17 Counselor. 18 Q. Wouldn't it be important to 19 know what that is if you're 20 determining whether or not his 21 behavior was a manifestation of having I don't see ---. I think it was considered that 22 that? 23 A. I think it's related to the 24 disabilities under the psychiatric. 25 So whether that ---. 78 01 Q. That was a no? 02 A. That was a no. 03 Q. So you don't think, just so I'm 04 clear, that it would be important to 05 know what that means in evaluating 06 whether or not his behavior was due to 07 that or just due to him making a bad 08 decision? 09 A. That specific behavior was not 10 --- or diagnosis was not discussed. 11 And if I had a question, I would 12 define it at that time. 13 Q. But it wasn't discussed at all 14 at this manifestation meeting; 15 correct? 16 A. Not that specific one, no. 17 ATTORNEY Gates: 18 I have nothing further. 19 ATTORNEY Perry Mason: 20 A couple follow-up 21 questions. 22 REDIRECT EXAMINATION 23 BY ATTORNEY Perry Mason: 24 Q. Just going back to the 25 diagnosis of ODD, first of all, do you 79 01 recall whether the District ever got a 02 copy of his psychiatric evaluation 03 that reported that diagnosis? 04 A. I don't recall that. 05 Q. How would Tom's ODD 06 manifest itself in the school setting? 07 What types of behaviors have you seen 08 as a result? 09 A. Inappropriate behavior, 10 responses to a teacher, not following 11 assignments, school rules, that type 12 of behavior where there would be a 13 defiance shown. 14 Q. Had he ever brought a knife to 15 school before, or a weapon? 16 A. Not to my knowledge. 17 Q. So would the IEP address that 18 particular behavior? 19 ATTORNEY Gates: 20 Objection, leading. 21 A. What behavior? 22 HEARING OFFICER BATEMAN: 23 I'm sorry. Stop. There 24 was an objection. 25 A. Oh, I'm sorry. 80 01 HEARING OFFICER BATEMAN: 02 I'm sorry. I didn't 03 tell you that previously. 04 That's okay. 05 your question. Let's go back to 06 ATTORNEY Perry Mason: 07 The question was, does 08 the IEP or would the IEP 09 address that behavior that 10 hadn't been shown previously. 11 HEARING OFFICER BATEMAN: 12 Go ahead. 13 A. Are you asking specifically the 14 knife behavior or the oppositional 15 behavior? 16 BY ATTORNEY Perry Mason: 17 Q. The knife behavior. 18 A. Yes. 19 knife behavior. 20 Q. Does the IEP address the 21 oppositional behavior? 22 A. Does it address the 23 oppositional behavior? 24 included in the behavioral support It would not address the It's I think 25 plan, yes. 81 01 Q. You had talked about the 02 discussion of question four in the 03 manifestation determination. 04 would briefly describe what your 05 recollection is of the discussion 06 regarding the other four factors that 07 are required to be discussed? 08 A. I'm sorry, Counselor. 09 going to have to ask you to repeat 10 that question. 11 Q. Sure. 12 Examination, described your discussion 13 of factor number four. 14 A. Yes. 15 Q. Could you briefly describe your 16 recollection of the discussions of the 17 other three factors? 18 A. Meaning oppositional defiance 19 factor? 20 Q. The three factors of the 21 manifestation determination as such. 22 Could you describe what was discussed 23 by the team in determining those 24 factors? 25 A. In each one separately, is that If you I'm You had, on Cross 82 01 what you're asking? 02 Q. Yes. 03 factor four, so I won't have you go 04 back over that. 05 A. In terms of the current IEP 06 placement, my recollection is that Ms. 07 Dell indicated and read from selected 08 areas of the IEP on Tom's 09 strengths and weaknesses, et cetera. 10 It was discussed whether we were 11 meeting --- whether the IEP was 12 appropriate for Tom's disability 13 and then related to whether this IEP 14 --- well, excuse me. 15 discussed, in my opinion, related to 16 the incident. 17 simply whether the services that were 18 being rendered were appropriate. 19 You already described That wasn't even Question number one was Question number two, there was 20 some input on the specifically 21 designed instruction and related 22 services, and I believe that the 23 behavioral support plan or parts of it 24 were discussed, and that's my 25 recollection. 83 01 And question number three and 02 four related together, and you said 03 don't answer the question. 04 four got more specific to this 05 particular incident, whether the 06 student's disability impaired his or 07 her ability to understand the 08 consequences and the impact of the 09 knife incident in particular. 10 number four is also, they were 11 related. A discussion ensued what had 12 happened. I presented information on 13 my investigation, which was the 14 students indicating that they had seen 15 Tom with the knife, me bringing 16 Tom to class, asking him, him 17 testifying that he had found the 18 knife, had, in fact, had the knife at 19 home, then brought the knife to 20 school, and then brought the knife 21 back home, and that I asked him also 22 and presented at that time, somewhere 23 between the dialogue on question three 24 or four, whether Tom was aware of 25 the school rules and policies and the Three and And 84 01 fact that he had answered. That's my 02 recollection of that discussion. 03 then all of the questions of the team 04 were asked whether we agreed, whether 05 they were true or false, and then we 06 proceeded. 07 ATTORNEY Perry Mason: 08 That's all the questions 09 And I have. 10 HEARING OFFICER BATEMAN: 11 Mr. Gates. 12 RECROSS EXAMINATION 13 BY ATTORNEY Gates: 14 Q. Did anyone who was present at 15 this manifestation/IEP team meeting 16 have a copy of the DSM-IV? 17 A. The DSM is? 18 Q. Diagnostic Studies Manual for 19 Psychological Conditions. 20 ATTORNEY Perry Mason: 21 Object as being outside 22 the scope of Redirect. 23 ATTORNEY Gates: 24 I don't think it is. 25 I think it's generally considered 85 01 02 pretty liberal scope. HEARING OFFICER BATEMAN: 03 04 No. We pretty much go on what she just asked. 05 ATTORNEY Gates: 06 Well, I would like to 07 recall him to ask him this one 08 question. 09 HEARING OFFICER BATEMAN: 10 No. We're going to move 11 on. You're not going to get 12 multiple tries. 13 what we do. We build on 14 ATTORNEY Gates: 15 Okay. 16 witness. I can ask another Nothing further. 17 HEARING OFFICER BATEMAN: 18 All right. You're 19 excused. 20 A. Do I need --- am I going to be 21 around, or should I go ---? 22 HEARING OFFICER BATEMAN: 23 This is a discussion you 24 25 have with your Counselor. ATTORNEY Perry Mason: 86 01 02 03 Let's go off the record for a moment. HEARING OFFICER BATEMAN: 04 Yes. Let's go off the 05 record. 06 OFF RECORD DISCUSSION 07 HEARING OFFICER BATEMAN: 08 Let's go back on the 09 record. At this point, Ms. 10 Perry Mason, would you like to 11 call your next witness? 12 ATTORNEY Perry Mason: 13 The District calls Carol 14 Dell. 15 -------------------------------------- 16 CAROL Dell, HAVING FIRST BEEN DULY 17 SWORN, TESTIFIED AS FOLLOWS: 18 -------------------------------------- 19 DIRECT EXAMINATION 20 BY ATTORNEY Perry Mason: 21 Q. Please state and spell your 22 name for the record. 23 A. My name is Carol Dell, 24 C-A-R-O-L, D-E-L-L. 25 Q. And by whom are you employed? 87 01 A. I'm employed by the 03 Q. And what's your position with 04 the IU? . 05 A. My title is program supervisor. 06 Q. And what are your duties as the 07 program supervisor? 08 A. I supervise special education 09 teachers. 10 Q. How long have you been a 11 program supervisor with the IU? 12 A. For six years. 13 Q. And prior to being a program 14 supervisor with the IU, could you 15 describe the other positions you've 16 held in your field? 17 A. Initially, I taught regular 18 education, and then I moved into the 19 special education arena, taught there, 20 and then became a supervisor and 21 director of the special education 22 program. 23 Q. Could you describe your 24 educational background? 25 A. Yes. I have a Bachelor of 88 01 Science in Elementary Education from 02 Moravian College, a Master's in 03 Education from Indiana University of 04 Pennsylvania, and then subsequently to 05 that I have Special Education 06 Certification and Special Education 07 Supervisory Certification. 08 Q. And are you familiar with 09 Tom Cruise? 10 A. Yes. 11 Q. How are you familiar with him? 12 A. More through the meetings that 13 we've been holding and the IEP 14 reviews. 15 Q. And are you supervisor of his 16 program here? 17 A. Yes. 18 Q. When I say here, I mean here in 19 the district. 20 A. Yes. 21 Q. Were you a member of the team 22 that participated in the manifestation 23 determination? 24 A. Yes, I was. 25 Q. What I would like you to do is 89 01 turn to School District Exhibit Number 02 Six. 03 is --- let's start with the first 04 factor, which is the appropriateness 05 of the current IEP and placement. 06 Could you describe the discussions And what I would like you to do 07 that the team held regarding that 08 factor? 09 A. Yes. 10 current IEP and discussed the goals 11 and objectives that were in place. 12 Q. And would you turn to School 13 District Exhibit Number Two? 14 the current IEP that is in place? 15 A. Yes, that is the current IEP. 16 Q. Could you describe what his 17 program is under the IEP and how it is 18 appropriate for him? 19 A. All right. 20 difficulties lie in the language area, 21 we are looking at the written aspects 22 of language, writing complete 23 sentences, writing paragraphs based on 24 those complete sentences using correct 25 grammar, spelling, capitalization, We looked through his Is that Since Tom's 90 01 punctuation, preparation thereby for 02 the PSSA writing test. 03 Tom working on fluency and 04 comprehension in reading, reading 05 silently, focusing on comprehension. 06 In the math area we have him adding, 07 subtracting, multiplying, dividing and We also have 08 reducing fractions, adding and 09 subtracting, multiplying and dividing 10 decimals, successfully computing 11 percentages and other math problems, 12 including percentages. 13 the aspect of his social/emotional 14 arena. 15 responsible actions at an appropriate 16 age level as measured by observation, 17 self-report and just a decrease in 18 discipline notices. 19 for appropriate decision-making 20 abilities. 21 situation, Tom will demonstrate 22 appropriate ways of handling his 23 anger. 24 strategies for handling anger taken 25 from a self-generated risk. And we have Tom will improve in using And we're looking Given a typical school And we have him listing For 91 01 instance, time out, verbal expression 02 and ignoring. 03 The program modifications for 04 Tom would include small group, 05 one-on-one instruction in both 06 learning support and in the regular 07 classroom, receiving support from 08 teachers and school personnel to 09 assist him to adhere to the behavior 10 support plan, receiving positive 11 feedback when he successfully follows 12 the behavior support plan, having the 13 option of having tests read to him in 14 all classes, should be able to take 15 the test in a learning support 16 classroom in a small environment, if 17 he chooses to do so. 18 math charts made available for math 19 class and any classes that may involve 20 math. 21 general areas. 22 social work services. 23 Q. And what are social work 24 services? 25 A. I believe he was seen by a Calculator for Positive feedback in all Tom received 92 01 certified social worker. She comes to 02 meet with him. 03 a week. 04 Q. For what? 05 A. To help him think about how to 06 use the anger management controls. 07 Q. Is that once a week or twice a 08 month? 09 A. I'm sorry, I misread that. I believe that's once 10 Twice a month for 40 minutes. 11 Q. And what is his behavioral 12 management plan? 13 A. Essentially, it was for Tom 14 to remove himself from volatile 15 situations before things escalated to 16 the point where he would be the one 17 who would be reprimanded or in need of 18 some sort of consequence. 19 Q. And in your opinion, was the 20 IEP appropriate for Tom? 21 A. Yes, I believe it was. 22 Q. And why is that? 23 A. Because these were the aspects 24 of his program that needed the work, 25 needed continual, daily practice. 93 01 Q. Going to the second factor of 02 the manifestation determination. 03 A. Back to seven? 04 Q. Six, at page four. 05 describe what you recall was the 06 discussion of the second factor, which 07 is the SCI-related services and 08 supplementary and delivered consistent 09 with the IEP? 10 A. Yes. Could you We had talked about the 11 specially designed instruction and 12 that it was being provided for. 13 Q. And do you recall what was 14 discussed? 15 A. Yes. 16 what I had previously read as 17 specially designed instruction. 18 Q. How about the third factor, 19 that the student's disability did not 20 impair his ability to understand the 21 impact and consequences of his 22 behavior? 23 discussed in terms of that factor? 24 A. I think we felt that this 25 particular behavior was not related to I believe we discussed Can you recall what was 94 01 anger management or any of the other 02 aspects of Tom's program, but that 03 he was able to distinguish between 04 right and wrong and that it was wrong 05 for him to have brought a knife to 06 school. 07 Q. And how about the fourth 08 factor? 09 A. Again, we felt that his 10 learning disability and the other 11 factors concerning anger management 12 did not enter into his ability to 13 control bringing the knife to school. 14 Q. And what was the team's 15 ultimate conclusion? 16 A. The conclusion was that the 17 behavioral incident was not a 18 manifestation of Tom's disability. 19 Q. And do you agree with that 20 conclusion? 21 A. Yes, I do. 22 Q. Why is that? 23 A. Because it was a separate --- 24 not related to the IEP goals and 25 objectives for his anger management. 95 01 ATTORNEY Perry Mason: 02 I have nothing further. 03 HEARING OFFICER BATEMAN: 04 Your opportunity. 05 CROSS EXAMINATION 06 BY ATTORNEY Gates: 07 Q. Good afternoon, ma'am. 08 A. Good afternoon. 09 Q. First, with regard to Tom's 10 IEP, and I'll reference you to what on 11 your list is number two. 12 HEARING OFFICER BATEMAN: 13 Which page? 14 BY ATTORNEY Gates: 15 Q. Reference you to page four. 16 talks about students' present level of 17 educational performance. 18 part of this IEP team; correct? 19 A. Yes, that's correct. 20 Q. And wouldn't you agree with the 21 statement in the second paragraph, 22 second sentence, that Tom or he, I 23 should say, has not made progress on 24 his behavioral goals? 25 A. I think there were some It You were a 96 01 circumstances where it was difficult 02 for him to remove himself before 03 things escalated, and I think that's 04 the reference they're making here. 05 Q. Well, let me ask my question 06 again. 07 statement that he has not made 08 progress on his behavioral goals? 09 A. Wait one second. 10 was something that was in progress. 11 He was learning to do these things. 12 Q. So you disagree? 13 A. I think there were instances in Do you disagree with the I think that 14 which he did not, but I think that's 15 part of the process. 16 Q. So my question is just, do you 17 agree or disagree with the statement 18 that he has not made progress on his 19 behavioral goals? 20 A. Probably not as much progress 21 as was hoped for. 22 Q. So you agree with it as 23 written? 24 agree with it or not? 25 A. I guess overall I would have to I'm just asking, do you 97 01 agree with that. 02 Q. And going down two more 03 sentences where the statement is, that 04 of the behavioral incidents this 05 school year, Tom has not once removed 06 himself from a volatile situation as 07 directed in his behavioral support 08 plan. 09 you. 10 disagree with that? 11 A. Within that classroom, I would 12 say that probably is a true statement. 13 Q. So you agree with that 14 statement as well? I have the same question for Do you agree with that or do you 15 A. Uh-huh (yes). 16 HEARING OFFICER BATEMAN: 17 Yes? 18 BY ATTORNEY Gates: 19 Q. You have to say yes or no. 20 A. Yes. 21 Q. And then with the last sentence 22 in that paragraph which says, the 23 school has followed all 24 recommendations in the FBA, 25 parentheses, some ideas were already 98 01 tried before the FBA, and the 02 behavioral support plan, all proving 03 to be unsuccessful to date. 04 agree with that or disagree with that? 05 A. I guess I would have to agree. 06 Q. So you agree with all three of 07 those statements; correct? 08 A. Uh-huh (yes). 09 Q. Is that a yes? 10 A. Yes. 11 Q. So if you agree with all three 12 of those statements under this part of 13 his IEP dated February 13th of 2004, 14 how could you find on the very first 15 guiding question for the Do you 16 manifestation/IEP team that Tom's 17 IEP goals and objectives are 18 appropriate? 19 A. We were looking at the total 20 IEP. 21 Q. Not the behavioral aspect. 22 A. The action described in the 23 manifestation was not related to these 24 particular goals. 25 Q. The behavior of bringing the 99 01 knife to school in your mind was not 02 related to the fact that Tom had 03 not met any of his behavioral support 04 plan goals? 05 A. No. 06 anger management. 07 Q. Isn't anger management part of 08 one's behavior? 09 A. Yes, in a classroom it 10 certainly is. 11 Q. Going to the same document, the 12 IEP from February of '04, looking at 13 the last paragraph, the first sentence 14 states Tom needs to start following a 15 new behavior support plan designed by 16 the IEP team at this meeting; correct? They were in the arena of 17 Did I read that correctly? 18 A. Yes. 19 Q. And do you agree or disagree 20 with that statement? 21 A. Yes. 22 Q. Was there a new PSP designed by 23 the IEP team at this meeting? 24 A. I believe there was. 25 Q. Do you know where that is? 100 01 A. On attachment page S-2, 22 of 02 23. 03 Q. Okay. 04 it, and it's dated 2/12/04. 05 was done in connection with this same 06 IEP meeting; correct? 07 A. Of 2/12 of '04, uh-huh (yes). 08 Q. Yes? 09 A. Yes. 10 Q. And am I correct that the first 11 sentence says that the team has 12 decided that Tom will continue to 13 follow the behavioral support plan 14 from his previous IEP? 15 A. Yes. 16 Q. So how does that constitute 17 following a new behavioral support S-2, 22 of 23. I have And that 18 plan that is to be designed by the IEP 19 team at this meeting? 20 A. I think we were providing a 21 location for him to cool off, to go to 22 another learning support classroom to 23 cool off. 24 Q. But you would agree with me 25 that this really isn't a new 101 01 behavioral support plan; correct? 02 A. It is giving him further 03 choices, yes. 04 Q. Well, look at the next 05 sentence. 06 aggravated, Tom will remove 07 himself from a volatile situation and 08 go to a learning support classroom to 09 cool off; correct? 10 A. Yes. 11 Q. And that was the 12 recommendation, even though, in this 13 very same meeting, it was already 14 determined that of all the behavioral 15 incidents this school year, by 16 February of '04 that Tom had not 17 once removed himself from a volatile 18 situation. It says when feeling Basically the same exact 19 thing was recommended here, with the 20 addition of where he could go if he 21 would choose to remove himself; isn't 22 that correct? 23 A. I believe that Tom attended 24 this meeting, and I do recall that he 25 was aware that this would be helpful 102 01 to him and he agreed that he would 02 pursue this avenue which he had not 03 pursued. 04 Q. I understand, and I don't 05 disagree with that. 06 however, is isn't it true that this 07 sentence, that when Tom is feeling 08 aggravated he is supposed to remove 09 himself from a volatile situation, is 10 the very thing that he hadn't done 11 even once for the entire school year 12 from September through February of 13 '04, and that's what's being 14 recommended for him now; is that not 15 the case? 16 A. Yes. 17 Q. That is the case; correct? 18 A. Yes. 19 Q. Now, you talked also about the My question, 20 various guiding questions in the IEP 21 team decision making questionnaire, 22 I'll call it. 23 name, worksheet. 24 me it would be very important to 25 understand Tom's diagnoses and Maybe it has another You would agree with 103 01 conditions before reaching a 02 conclusion about whether bringing a 03 knife to school could have been a 04 manifestation of that; correct? 05 A. Would you repeat your question, 06 please? 07 Q. Sure. 08 that it would be important and, in 09 fact, necessary for the team to 10 understand all of Tom's diagnoses 11 and conditions before reaching a 12 conclusion that his choice to bring a 13 knife to school was not a 14 manifestation of any of those 15 diagnoses or conditions? 16 A. I think I lost you again. 17 Q. I'll rephrase it. 18 need to know what his conditions and 19 diagnoses are before deciding if they 20 could account for why he brought a You would agree with me Wouldn't you 21 knife to school? 22 A. I believe that all of the 23 people involved with Tom knew 24 Tom fairly well and would know 25 that that was a separate issue for 104 01 him. 02 Q. You mean in other words, all 03 the people there had already concluded 04 that his bringing a knife to school 05 was just a separate issue from any of 06 the diagnoses or conditions that he'd 07 been diagnosed with? 08 A. I don't see that those 09 conditions are inherent in his 10 decision to bring a knife to school. 11 Q. Did the rest of the team also 12 feel that his conditions and 13 disabilities were irrelevant to his 14 decision to bring the knife to school? 15 A. I believe they felt it was a 16 separate issue. 17 Q. Therefore, irrelevant? 18 fair to say? 19 A. Yes. 20 Q. So the team, therefore, did not 21 discuss what an Axis II, Cluster B Is that 22 personality trait is; correct? 23 A. That is correct. 24 Q. And they didn't discuss whether 25 having such traits could be the reason 105 01 why Tom choose to do that which he 02 may have known was wrong; correct? 03 A. That's correct. 04 Q. And they didn't understand what 05 it means to even have an Axis II, 06 Cluster B personality trait; correct? 07 A. That's correct. 08 Q. Because the team had basically 09 already decided that this couldn't be 10 something that was a manifestation of 11 his disability since he knew that he 12 shouldn't bring a knife to school; 13 correct? 14 A. Again, repeat. 15 Q. The team had already decided, 16 without having to analyze his 17 diagnoses or his conditions or his 18 adjustment disorder or his 19 oppositional defiance disorder that 20 his bringing a knife to school just 21 couldn't have been related to his 22 disability? 23 A. We had already ascertained that 24 Tom knew that he shouldn't have 25 brought a knife to school. 106 01 Q. And that was the extent of it. 02 When you asked Tom that, not you 03 personally, but someone on the team, 04 and Tom said he knew he shouldn't 05 do it, is it fair to say that that was 06 the end of the inquiry into whether or 07 not his bringing a knife to school was 08 connected with any of his various 09 disabilities? 10 A. We did not go into the Axes. 11 Q. So my question again is, once 12 he admitted that, so to speak, that 13 was the end of the inquiry as to 14 whether his behavior in bringing it 15 could have been connected to the 16 multiple disorders that he has; 17 correct? 18 A. Correct. 19 Q. And you had this meeting --- I 20 think the principal said it took about 21 45 minutes; correct? 22 A. I do not recall how long it 23 took. 24 Q. You would agree with me that if 25 it needed to take longer to be able to 107 01 write down in the justification 02 section of the questionnaire what the 03 justification was, you guys would have 04 stayed there until you got that done; 05 correct? 06 A. If we would have felt it was 07 necessary. 08 Q. And nobody on the team felt it 09 was necessary to fill in any of the 10 lines other than as they are filled in 11 under justification for team findings; 12 correct? 13 A. That was more of a summary. 14 Q. Not a justification; correct? 15 A. Correct. 16 ATTORNEY Gates: 17 Nothing further. 18 HEARING OFFICER BATEMAN: 19 Ms. Perry Mason. 20 REDIRECT EXAMINATION 21 BY ATTORNEY Perry Mason: 22 Q. Does your agreement with the 23 statements in the present ed levels 24 change your opinion as to whether the 25 behavior in question was not a 108 01 manifestation of Tom's disability? 02 A. No. 03 a manifestation of his disability. 04 Q. And why is that? 05 A. Because I ---. I still believe it was not 06 ATTORNEY Gates: 07 Objection. It's beyond 08 the witness' qualifications. 09 ATTORNEY Perry Mason: 10 It's not beyond the 11 witness' qualifications because 12 she was a member of the team 13 that determined it wasn't. 14 ATTORNEY Gates: 15 You're asking her now 16 specifically to make a 17 psychomedical conclusion. 18 ATTORNEY Perry Mason: 19 No. 20 I'm asking her to --- 21 HEARING OFFICER BATEMAN: 22 I don't think she is. 23 Please continue. 24 ATTORNEY Perry Mason: 25 --- state her opinion 109 01 based on the manifestation ---. 02 HEARING OFFICER BATEMAN: 03 Continue on with your 04 question. 05 BY ATTORNEY Perry Mason: 06 Q. Why was it your opinion that 07 his behavior in question was not a 08 manifestation of his disability? 09 A. Because it was separate from 10 the types of things that he's been 11 working on in the school, anger 12 management and controlling his 13 classroom and school behaviors. 14 Q. Are you familiar with those 15 behaviors that he has been displaying? 16 A. Somewhat, yes. 17 Q. What's your understanding of 18 those behaviors? 19 A. More of a noncompliance within 20 the classroom, wanting to leave before 21 class is over, wanting to --- and for 22 his own reasons, not necessarily for 23 the volatile situation, without asking 24 to be excused, and wanting to talk to 25 somebody in the middle of something 110 01 else, therefore interrupting the 02 school program or the classroom. 03 ATTORNEY Perry Mason: 04 I have nothing further. 05 ATTORNEY Gates: 06 Just a couple of 07 follow-up questions, ma'am. 08 RECROSS EXAMINATION 09 BY ATTORNEY Gates: 10 Q. Are you familiar with what his 11 Axis I and Axis II diagnoses mean? 12 ATTORNEY Perry Mason: 13 Again, objection, as 14 beyond the scope. 15 ATTORNEY Gates: 16 It's not beyond the 17 scope. 18 testimony that she is confident 19 that none of the behaviors 20 exhibited were related to his 21 disabilities, and you 22 enumerated what she thought 23 those behaviors were. 24 order to know that ---. 25 You just elicited So in HEARING OFFICER BATEMAN: 111 01 Go ahead and ask your 02 questions. 03 ATTORNEY Gates: 04 I have to think of what 05 my question was. 06 BY ATTORNEY Gates: 07 Q. Are you familiar with what Axis 08 I or Axis II diagnoses were made by 09 the IU unit for Tom in terms of 10 what they mean? 11 A. Can I clarify something here? 12 HEARING OFFICER BATEMAN: 13 That's what we're 14 seeking. 15 A. Okay. 16 psychiatric was supplied by the parent 17 and it was done through Northwestern 18 Human Services, 19 Center. 20 the intermediate unit or the District. 21 It was a document brought in as an 22 accompaniment to information that the 23 parent supplied. 24 BY ATTORNEY Gates: 25 Q. So it was not done really by I believe that the Mountain So it was not generated by 112 01 the District? 02 A. No. 03 Q. And therefore, the District 04 didn't really know what Axis II, 05 Cluster B personality traits were, at 06 least when it had the manifestation 07 team meeting; correct? 08 A. I would say that Axis I is 09 fairly common. 10 pretty clearly, if it's oppositional 11 defiance disorder. 12 many people do have an idea of what 13 Axis II involves. 14 Q. And did the team that met on 15 October 18th, '04 have an idea, as you 16 understood it, of what Axis II, 17 Cluster b, personality traits were? 18 A. No, it was not discussed. 19 Q. So if it was not discussed and 20 if the team didn't know what it meant, 21 isn't it at least possible that had 22 they known what it was and had they 23 discussed it, that it could have 24 accounted for why he might have chosen 25 to bring a knife to school? People understand that I don't think too 113 01 A. I don't know. 02 Q. It's possible; isn't it? 03 ATTORNEY Perry Mason: 04 Objection. 05 BY ATTORNEY Gates: 06 Q. You don't know if it's 07 possible? 08 ATTORNEY Perry Mason: 09 Objection. 10 HEARING OFFICER BATEMAN: 11 She said she doesn't 12 know. 13 ATTORNEY Gates: 14 Nothing further. 15 ATTORNEY Perry Mason: 16 I have nothing. 17 HEARING OFFICER BATEMAN: 18 Thank you. I appreciate 19 your time and testimony today. 20 You're excused. 21 very short break and let you 22 obtain your next witness. 23 SHORT BREAK TAKEN Let's take a 24 HEARING OFFICER BATEMAN: 25 Let's go back on the 114 01 record. 02 -------------------------------------- 03 LISA ANN Jeffers, HAVING FIRST BEEN DULY 04 SWORN, TESTIFIED AS FOLLOWS: 05 -------------------------------------- 06 DIRECT EXAMINATION 07 BY ATTORNEY Gates: 08 Q. Would you please state your 09 full name and address? 10 A. Lisa Ann Jeffers, 11 , 12 . 13 Q. And how long have you lived at 14 that address? 15 A. Roughly about 12 years. 16 Q. And who lives at that address 17 with you? 18 A. Myself, my daughter Alyssa, my 19 son Tom, and Tom and Alyssa's 20 father just moved in, 21 Q. So the four of you? 22 A. The four of us. 23 Q. And how long have you lived 24 with your son, Tom? 25 A. It will be 15 years December . 115 01 1st. 02 Q. And what is his date of birth 03 again? 04 A. 12/1/89. 05 Q. So this December he turns 15? 06 A. Fifteen (15), correct. 07 Q. And what grade is he in now? 08 A. He's in ninth. 09 Q. And your daughter Alyssa, what 10 is her age? 11 A. Alyssa's age is 21. 12 Q. In the past, have you taken 13 Tom for various evaluations and 14 examinations with regard to any mental 15 disorders or mental illnesses or 16 conditions that you thought he might 17 have? 18 A. Yes, I have. 19 Q. And what is your understanding 20 of what he has been diagnosed as 21 having? 22 A. Attention deficit, 23 hyperactivity, ODD, conduct disorder, 24 Cluster B traits, behavior. 25 Q. That's fine. 116 01 A. Okay. 02 Q. Has Tom exhibited what you 03 would consider to be behavioral 04 problems in the home over the past, 05 let's just say two years? 06 A. Yes. 07 Q. Let's talk about some of those. 08 First of all, do you ask Tom to 09 routinely do chores like a lot of 10 parents will ask a teenager to take 11 out the trash or walk the dog, things 12 like that? 13 A. Yes. 14 Q. You do ask him to do chores? 15 A. Uh-huh (yes). 16 Q. Yes? 17 A. Yes. 18 Q. What, if anything, does Tom 19 do in response to your asking him to 20 do something ordinary, such as, I'll 21 just use the example taking out the 22 trash? 23 A. He states, oh, yes, I will. 24 Five minutes later I say, Tom, did 25 you take out the trash. No, I'll get 117 01 to it. And then an hour goes by and 02 he still didn't take it out. 03 forgets. 04 Q. And is that something that has 05 happened in other examples besides he 06 one I happened to pick? 07 A. Yes, numerous. He just 08 Q. Tell us a little bit more about 09 some of those examples. 10 A. There was --- he was playing 11 the stereo too loud and I said to him, 12 Tom, please turn down the stereo. 13 Why, it isn't up loud. 14 turn it down, there's a baby next 15 door. 16 Q. In the home that's --- 17 A. In the home next door to me. 18 Q. --- attached? 19 A. Attached. 20 after this song. 21 I said, Tom, please turn the 22 stereo down. 23 have to turn it down. 24 belligerent, very rude, and he just 25 kept it up. I said, please And he said, I will The song was over. Tom says, why do I He got very He just wouldn't listen. 118 01 Q. Has that been a pattern that 02 you've seen in his behavior over a 03 period of several years? 04 A. That's been a pattern since 05 third grade, yes. 06 Q. How, if at all, has it shown 07 itself with regard to him doing, for 08 example, homework from school? 09 A. He doesn't bring homework home. 10 He doesn't bring nothing home. 11 says, oh, I forgot it in school or we 12 didn't have none, or something to that 13 effect. 14 home. 15 Then I get a report and it says that 16 his homework is incomplete. 17 Q. Have you had any arrangements 18 with his teachers to have the homework 19 sent directly to you? 20 A. Not this year because Tom 21 refused. 22 home. 23 Q. Let me back you up a minute. 24 A. I'm sorry. 25 Q. You mean Tom refused, he He Like he never brings anything He says it's done in school. He said he will not bring it Last year, ---. 119 01 will not bring it home in the sense 02 that even if the teacher gives him an 03 envelope to give to you, he would not 04 bring it home? 05 A. He will not bring it home, no. 06 Q. And how long has he been 07 defiant in that way? 08 A. It goes back to third grade. 09 Roughly about third grade. 10 Q. Even with that level of 11 defiance? 12 A. Yes. 13 Q. Go ahead. 14 A. He's been hyper as a baby, all 15 the way up. 16 Q. Hyper? 17 A. Hyperactive, like ---. 18 Q. What, if any, medication is he 19 on as of, let's say, last month? 20 A. Risperdal, one and a half 21 milligrams. 22 have to break it in half to one and a 23 half, at bedtime. 24 He was on 30 milligrams, but the 25 doctor put him down to 15 milligrams He's been hyper ---. It's three milligrams. I And Adderall XR. 120 01 every morning before he comes to 02 school. 03 Q. That was my next question. 04 When is he supposed to take those 05 medicines? 06 A. The Adderall, one and a half 07 milligrams at bedtime. 08 I'm sorry. 09 half milligrams at bedtime. 10 Adderall XR, 15 milligrams, it is now, The Risperdal, The Risperdal, one and a And the 11 right before he goes to school. 12 Q. Have you had situations where 13 he either forgot or he refused to take 14 that medicine before school? 15 A. Yes. 16 Q. Tell us about what happens in 17 such a situation? 18 A. Well, the beginning of school, 19 he --- I said to him, Tom, take 20 your medicine. 21 it. 22 will help you concentrate and act 23 better. 24 don't have to take it. 25 addict, blah, blah, blah. I don't want to take I said, you have to take it. I don't want to take it. It I I'm no drug He kept on 121 01 going on about that. And so then he 02 took it after a big fight. 03 about a 50-minute fight with him to 04 take it. 05 school, and I got a call from the 06 nurse, which should be on file, that 07 he was hyperventilating because it was 08 30 milligrams, because he hasn't taken 09 it during the summer. 10 Q. Did he ultimately resume taking 11 it on a regular basis? He took it. It was He did come to 12 A. No, he --- every morning it's, 13 Tom, did you take your medicine. 14 He comes downstairs. 15 take your medicine? 16 warm up the truck. 17 truck. 18 take your medicine? 19 around the block, back in the house 20 and he takes it then. 21 Q. How often is that routine 22 played out? 23 A. Out of five days, say three, 24 three days, four days. 25 Three to four days. Tom, did you No. I go out, He gets out in the We start, did you remember to No. I got to go It depends. 122 01 Q. On average? 02 A. On average. 03 Q. So three to four days on 04 average he forgets to take it or he 05 won't take it, and you literally have 06 to drive back home to get him to take 07 it? 08 A. Correct. 09 The Risperdal, it's a fight every 10 night because it gets him tired. 11 Q. You mean the other way around? 12 A. The Risperdal at night gets --- That's the Adderall. 13 it's a fight every night with him, 14 every night to take the medication. 15 Tom, did you take your medication? 16 No, I don't want to. 17 it. 18 you to sleep. 19 So then he'll go upstairs, talk on the 20 phone or play a game, whatever, come 21 downstairs. 22 medicine. 23 to take it. 24 and he will start banging, cursing, 25 carrying ---. You have to take It will help you concentrate, put I don't want to sleep. Tom, take your I don't want to. You have Then he'll go upstairs 123 01 Q. Banging what? 02 A. Banging the walls. 03 a door going up to the attic. 04 punch holes in the door from him 05 punching it because he don't like to 06 take that. 07 like to take either. ...
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18 July 2017
Tom Cruise Manuscript Case
The manuscript presents as case in question in which the 14 year old Tom Cruise’s
behavior of bringing a knife to school seeks to be determined if the behavior is a manifestation of
his disability. Tom ...


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