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.
...
Purchase answer to see full
attachment