Affidavit of Barbara Powers in Support of Motion for Summary Judgment

I, Barbara Powers, being duly sworn, depose and state as follows.

1. I am, and at all relevant times hereto was, the principal of the Plummer-Motz School, which is a school operated by the Falmouth School Department in Falmouth, Maine.

2. I make this affidavit on the basis of my own personal knowledge and on the basis of books and records of the Falmouth School Department that are in my custody and control. It is the regular practice of the Falmouth School Department to keep such books and records and they are kept in the regular course of business of the Falmouth School Department.

3. The Plummer-Motz School is an elementary school serving grades three and four. During the 2003/2004 school year there were approximately 375 students enrolled at the school.

4. The Plummer-Motz School and the Lunt School (which is adjacent to Plummer-Motz and includes kindergarten, first and second grades) share a playground, which consists of two play structures, known as the "Maze Craze" and "Kid's World," which is a handicapped accessible structure added four years ago to accommodate all of our students, as well as a basket-ball court and several game fields. These facilities are very popular throughout the greater Portland community and are used frequently, not only by students at Plummer-Motz and Lunt, but also by members of the public.

5. Because of the popularity of the playground, over the years we have had to restrict its use during school hours to students at the two schools. We do not permit students from the Falmouth Middle School or the Falmouth High School to use the playground facilities during the school day and we generally do not permit members of the public on these facilities either. There are signs on the playground requesting that visitors check in with the office during the school day before entering, and there have been many occasions where I have had to ask people not to use the playgrounds while school is in session. Unknown adults and older children are never allowed access during school hours. Most requests come from parents of toddlers and other non-school aged children, and they are usually asked to play when our students are not on the playground so that I can be confident that their use of equipment is safely away from larger children.

6. I first became acquainted with Plaintiffs Gayle Fitzpatrick and Charles Rankowski and their minor son, Jan, while Jan was a student at the Lunt School. My involvement with the family began when his individualized education plan ("IEP"), transitioning Jan to my school for third grade for school year 2002-03, was being developed as part of his annual pupil evaluation team ("PET") process in the spring. Ms. Fitzpatrick expressed concern that Jan needed to be able to be away from his classmates for parts of his day if he found the classroom environment overwhelming. In response to her concerns, and as part of that PET process, I conducted a tour of the facilities for Ms. Fitzpatrick, pointing out the various instructional areas Jan would be able to access for academic support. I also introduced her to a third grade teacher and allowed Ms. Fitzpatrick to inspect the room so she would be satisfied that there was ample private space for 1:1 support during his day, as well as other instructional spaces immediately contiguous to the classroom. Ms. Fitzpatrick expressed interest in that particular teacher and her room, so during placement proceedings that spring, I encouraged Lunt staff to place Jan with that teacher, which they did.

7. Although I did not testify, I participated in preparation for the due process hearing requested by Plaintiffs concerning Jan's IEP.

8. On November 18, 2002, a decision, a copy of which is attached as Exhibit 1, was issued with regard to that hearing. In that decision, the hearing officer determined that the IEP proposed by the school was "reasonably calculated to provide meaningful educational benefit" to Jan. Exhibit 1 at p. 7.

9. After the due process proceeding was decided in favor of the Falmouth School Department, the Plaintiffs withdrew their son from school in the Falmouth school system. However, despite repeated encouragement from the School Department, they did not express their intent to home school him until the spring.

10. After a full year out of the Plummer-Motz School, Ms. Fitzpatrick requested that a service plan meeting (also sometimes referred to as a PET meeting) be convened to review requests she wanted to make of the school on behalf of Jan, as he was entering his fourth grade year.

11. I was at that meeting which was held on September 11, 2003.

12. One of the requests that Ms. Fitzpatrick made at the September 11th meeting was that Jan be permitted to use the Plummer-Motz playground during the same time that our students were out for recess.

13. We agreed that Jan would be permitted to be on the playground during lunch recess and almost immediately thereafter, Jan began coming to the playground during our recess time.

14. On September 22, 2003, I received complaints about Jan's behavior from some fourth grade boys. In particular, they complained that Jan had kneed one boy in the groin and had used threatening language.

15. On September 24, 2003 I received additional complaints from some fourth grade boys that Jan had been throwing rocks and making threats.

16. As a result of these complaints, I called Ms. Fitzpatrick and invited her to meet with me and with Mora Katz, who is the Falmouth School Department employee assigned as Jan Rankowski's case manager. (Note: Although it is more accurate to refer to a team providing support to a home-schooled student as a "service plan team" and a team providing support to an enrolled student as a "pupil evaluation team," the terms are sometimes used interchangeably.)

17. Ms. Katz and I met with Ms. Fitzpatrick on September 25, 2003. At that meeting, Ms. Fitzpatrick denied that Jan had engaged in the behavior reported to me by other students. She also told us that Jan's experiences on the playground had been unpleasant because he had been bullied and teased by other students.

18. As a result of my concerns, as well as those voiced by Ms. Fitzpatrick, we decided that an adult should be assigned to supervise Jan's play area to make sure that students from Plummer-Motz and Lunt were acting appropriately to Jan and visa versa. Our hope was that simply by having an adult in close proximity, the children would be more respectful to each other. In addition, I thought it would be helpful, given the fact that there was a rather striking difference between what students had reported to me and what Ms. Fitzpatrick told me she had seen, to have a record of what was occurring on the playground in the event a factual dispute occurred.

19. Virginia Gilbert, as Educational Technician ("Ed Tech") employed by the Falmouth School Department, was assigned to be the supervisor and she was introduced to Ms. Fitzpatrick and to Jan on September 29, 2003.

20. It appeared from my own observations, as well as reports from Ms. Gilbert, that her presence on the playground in close proximity to Jan was successful in ensuring that the Plummer-Motz students acted appropriately to Jan. We saw no instances of bullying or teasing after Ms. Gilbert was assigned to supervise. Indeed, Ms. Fitzpatrick herself reported to me on October 31, 2003 that our "goals in having Ms. Gilbert present was accomplished quickly. Jan has been accepted by several groups of children." See e-mail from Ms. Fitzpatrick to me dated October 31, 2003, a copy of which is attached as Exhibit 2.

21. Ms. Gilbert's presence was also helpful in determining what had actually occurred on the playground when I received conflicting information. On one occasion (September 29, 2003), Charles Rankowski charged that Jan had been assaulted by a 4th grade student. The student assured me that no such contact had taken place. Because Jan was very clear about the timing and Ms. Gilbert was visually in contact with Jan during that time and she said it did not occur, I was able to know that Jan's report was inaccurate.

22. On September 30, 2003, I was informed by the principal of the Lunt School that one of the Lunt teachers had experienced difficulties with Jan during 1st grade recess. In particular, this teacher had reported that Jan was pushing some 1st graders too hard on the swing and he told the teacher that he didn't have to listen to her when she tried to intervene. He also encouraged the 1st grade student he was playing with to ignore his teacher.

23. An Ed Tech assigned to one of our special education students also reported concerns about disrespectful behavior toward her, as well as a friend of the student she was supervising. Most significantly, she reported concerns that Jan was interfering with her special education student's social play and his ability to interact successfully with classmates.

24. I considered these incidents to be potentially detrimental to Plummer-Motz and Lunt students for several reasons. In the instance described in the preceding paragraph, Jan was interfering with the IEP of another student. Because we are responsible for ensuring appropriate implementation of IEPs of all of our students, we cannot permit children to interfere with IEPs of other children. In regard to the incident involving 1st graders on the swings, in addition to the potential physical danger involved in misuse of equipment, Jan's reaction to the teacher's attempt to intervene could cause emotional damage to the other youngsters involved. This is because children — particularly elementary school aged children — need to know that the adults around them are in charge and will ensure that the rules of conduct in place will be followed. When another child refuses to follow adult instruction and encourages others to do so, young children often become confused and lose their sense of safety and security.

25. On October 6, 2003, the next day that Jan came to the playground I met with Ms. Fitzpatrick to share with her my concerns about Jan's behavior to adults and his encouragement of other students not to respond to their teacher. Ms. Fitzpatrick was not, however, receptive to my concerns.

26. For example, when I said that Jan needed to listen to any adult who was supervising on the playground, Ms. Fitzpatrick disagreed. She told me that Jan had been taught not to respond to strangers and isn't allowed to speak to adults. She said that the adults needed first to introduce themselves to him and then he would listen to them.

27. I accordingly asked that she intervene and handle the introductions when she saw another adult attempting to give supervisory directions. She refused. She said that she didn't know all the people at the playground and didn't know that she trusted all of the adults.

28. I responded that she would have to take charge of her son in these situations with other adults or we would need to reconvene the service plan group to develop a behavior plan that would permit the school to adequately supervise Jan. I also told her, however, that she should not take it upon herself to issue instructions to our students.

29. Following our meeting on October 6, 2003, Ms. Fitzpatrick and I exchanged a series of e-mails, true copies of which are attached as Exhibit 3.

30. In her initial e-mail to me, Ms. Fitzpatrick said that "the solution of adults introducing themselves to Jan and me is an excellent first step." I responded by thanking her for her assistance. I then went on: “If these introductions occur (with your help), and Jan responds appropriately, there will not be need for a further meeting at this time. If, however, the number of people and children with whom you are expecting Jan to interact with respect proves too much for him, we'll reconvene the service plan team and come up with a behavior plan to assist with his social skill acquisition. I'd also be happy to meeting with Jan (and you) at any time to go over our playground rules and also our expectations of how adults are to be treated when they have need to intervene. Please let me know if that would be helpful.”

31. During the period October 9 - 27 Jan visited the playground and I did not see any issues of concern, nor were any issues reported to me.

32. On October 28, 2003, I was summon' home support worker, a woman named Becky, was been swearing at a third grade student and had encoul and not listen to his teacher. When I arrived, Jan was his supervisor.

33. On October 30, 2003, there was another incident in which Jan was using playground equipment inappropriately during the 1st grade recess. Jan ignored attempts by Ms. Gilbert to intervene and defied her instructions to him. Ms. Fitzpatrick also repeated these instructions and was similarly ignored. She chose, however, not to impose any consequences on Jan for refusing to follow directions.

34. On October 31, 2003, I wrote an e-mail to Ms. Fitzpatrick reviewing what had occurred that week. A copy of that email and Ms. Fitzpatrick's response are attached as Exhibit 4.

35. In my e-mail I noted that "the consequences for any student in this school for non-compliance with an adult is loss of recess privileges for a period of time and letters of apology."

36. Ms. Fitzpatrick's response indicated that she did not feel that she and her son were bound by the rules of our school: “I appreciate your sharing information about the consequences which Plummer Motz Students face for non-compliance w/staff. I would also be interested in hearing of the consequences Plummer Motz Students face for non-compliance with parents, caregivers, friends & family. However, Jan Rankowski is not a student at Plummer Motz School, and I do not have time to peruse interesting data.”

37. On November 7, 2003 the Lunt School autism teacher, Tammy Paul, notified my office that there was a problem on the playground involving Jan. A copy of Mora Katz's notes of that incident is attached as Exhibit 5.

38. I immediately went out to the playground where I met Ms. Katz who informed me of what had occurred. In brief, I understood that Jan had once again been pushing 1st graders too hard on the swing and that he had been defiant and encouraged defiance from other children when an adult intervened. I also understood that Jan swore at Ms. Katz.

39. After speaking with Ms. Katz I approached Ms. Fitzpatrick and Becky and asked that Ms. Fitzpatrick take Jan off the playground immediately because of his language toward an adult following an attempted intervention for unsafe play. Ms. Fitzpatrick told me that she was leaving but then made it clear that she did not know where her son was. I told her that I had seen him running to Kid's World.

40. At this point, Jan was involved in an altercation with Tammy Paul who is a teacher with the Falmouth School Department. A copy of Ms. Paul's account of what occurred is attached as Exhibit 6.

41. Jan began crying about not wanting to leave so Ms. Fitzpatrick took him to a bench where he continued to cry and yell.

42. After a few minutes, I approached the bench and very calmly said "Jan, honey, you need to leave now." Jan jumped to his feet yelling and screaming that he didn't have to listen to me.

43. Ms. Fitzpatrick then told me that I could speak only to her and that I was not allowed to address her son. I thus repeated my request that they leave to her. She responded that they would leave when Jan was ready to leave. After a few minutes, Jan ran to the parking lot yelling "ignorant bastards," directed towards Ms. Katz and me.

44. After this incident, I called the Falmouth School Department's Director of Special Services, Carolyn ("Polly") Crowell and asked that we convene the service plan team to develop a behavior plan for Jan based on the school's code of conduct. Ms. Crowell and I decided at that time that Jan's use of the playground should be suspended until after the team had the opportunity to meet.

45. We expected that this meeting could take place as early as November 12th (which was the first day back to school after a Veteran's Day holiday).

46. Because of scheduling issues encountered by people whom Ms. Fitzpatrick wanted to attend, the meeting did not occur until November 24, 2003.

47. At that meeting, Polly Crowell described for Ms. Fitzpatrick and her advisors our consensus that we needed additional information in order to be able to make Jan's experience on the playground a successful one. In particular, Ms. Crowell suggested that the school arrange to have a functional behavioral assessment ("FBA") performed so that we could develop a behavior plan tailored to meet Jan's needs.

48. The FBA would involve having experts observe Jan while at play on the playground to gather the data necessary to develop a plan that would effectively address behavior issues. Because Ms. Fitzpatrick had expressed a lack of confidence with our School psychologist in the past, Ms. Crowell offered to engage an autism specialist not associated with the school to assist in this effort.

49. At that meeting, the group made it clear that until we were able to gather the data needed to develop an effective behavior plan, we could not allow Jan to return to the playground.

50. After that meeting, Ms. Fitzpatrick communicated to us that she would not permit us to perform the assessment. She did not offer any alternative suggestions as to how to address the situation. As a result, I have not permitted Jan to use the playground during school hours.

51. Jan's use of the playground outside of school hours has never been restricted.

52. If Plaintiffs had permitted us to perform the FBA, I would immediately have permitted Jan to use the playground.

53. During the 2003-2004 school year, there were a total of at least five students with a diagnosis in the autism spectrum enrolled in either Plummer-Motz or Lunt. All of those students use the playground during school hours without restriction. All of those students are, however, expected to abide by the school's code of conduct and rules for the playground with the support of teachers and Ed Techs who assist with and guide their social interactions. Their IEP goals for improvement in social behavior are very clear, and progress is made with this careful supervision and, when needed, thoughtful and well-planned interventions. Our request for a functional behavior assessment was so that a similarly well-crafted plan would be in place for Jan so that his parents and the School could better partner in this effort.

Dated: 7/20/04
(Signed): Barbara Powers


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