Having failed to convince a federal judge of their claims that Palm Beach County school officials violated their autistic son’s constitutional rights by physically restraining him nearly 90 times without their knowledge, a former Boynton Beach couple is now suing the school board in state court.
Their attorney, Leonel Plasencia, said Monday he will continue to argue that the school board should pay his clients millions for the damage that was done to their son when he was a student at Lantana Middle School nearly 10 years ago. But, he said, the federal court decision was heartbreaking to the couple who have fought to end the controversial practice of restraining special-needs children by holding them facedown on the floor.
With the lawsuit now in Palm Beach County Circuit Court, the school board is protected by a state law that limits how much people can receive for a finding of government wrongdoing. Caps that existed in the mid-2000s when the alleged abuse occurred mean Plasencia’s clients will be able to collect at most $200,000, even if a jury agrees that repeatedly restraining the youth sent him into a psychic tailspin from which he never recovered. The only way around the caps would be to persuade tightfisted state legislators that the parents deserve more to provide the kind of care the now 20-year-old young man will need throughout his life.
“This whole matter has been devastating to them,” Plasencia said of his clients, who are identified in court papers only by their initials. They are believed to be Phyllis and Rocco Musumeci. Now living in Brevard County near a residential school where the school board placed their son, they couldn’t be reached for comment Monday.
In a 23-page opinion in January, U.S. District Judge Kenneth Marra tossed out their suit before it went to trial. The couple, he ruled, failed to prove that their son’s constitutional rights were violated. The bar, he said, is a high one.
“It will not be enough to show that (their son) has a disability, the disability caused a problem that had to be addressed, and the School Board responded to the problem dissatisfactorily, or even harmfully,” he wrote. They would have to prove that the school board’s behavior “shocks the conscience.”
The couple argued that records that showed how many times their son was restrained were destroyed. They also argued that there were other less violent ways to restrain him other than grabbing him and locking his arm down or, at times, holding him facedown on the floor. But, Marra said, even if the allegations were ultimately proven at trial they do not “rise to the requisite conscience-shocking level.”
Marra also disputed some of the parents’ claims. He said there was no evidence their son was left out in the hallway alone when he had disruptive outbursts. Further, he said, while the parents complain that the restraints were used without their consent, school policy does not require it.
Allegations that Marra rejected were repeated in the lawsuit filed in circuit court last week. Plasencia said he “respectfully disagreed” with some of Marra’s conclusions. “The evidence is always subject to interpretation, whether by a judge or by a jury,” he said. “We feel that the evidence is there. Judge Marra did not.”
A doctor the parents hired after their son became aggressive, depressed and withdrawn said being restrained multiple times each day had a devastating impact on the youngster, Plasencia said in the new lawsuit. In addition to his considerable existing emotional ills, the doctor said the youth now suffers post-traumatic stress disorder.
Further, he claims, an investigation by the Florida Department of Children and Families found there was “some indicator of mental injury” that the young man suffered while a student at Lantana Middle School.
Blocked from claiming that their child’s constitutional rights were violated, the parents in their new suit say the repeated use of restraints to subdue their son constituted battery, negligence, false imprisonment and intentional infliction of emotional distress.
Through a spokesman, the school board declined comment on both Marra’s decision and the new lawsuit.
Restraining emotionally handicapped children has spurred debate nationwide. Prone restraints — when two or more teachers force a student to the floor and hold him facedown — has been blamed in federal studies for causing serious injuries and even death from asphyxia.
Two years ago, the school district stopped short of banning the practice. Now, prone restraints can be used only as a last resort. While saying they wanted to reduce the number of times prone restraints are used, the district said teachers need to be able to protect themselves and other students from a child who is out of control.