Bercovitch v. Baldwin School

• Decision Date: 11 April 1997
• Docket Number: Civil No. 97-1336(SEC).
• Citation: 964 F.Supp. 597
• Parties: Jason BERCOVITCH; et al., Plaintiffs, v. BALDWIN SCHOOL; et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

964 F.Supp. 597

Jason BERCOVITCH; et al., Plaintiffs, v. BALDWIN SCHOOL; et al., Defendants.

Civil No. 97-1336(SEC).

United States District Court, D. Puerto Rico.

April 11, 1997.

Nora Vargas-Acosta, Rio Piedras, for Plaintiffs.

Alfredo Fernández-Matínez, Santurce, PR, for Defendants.

OPINION AND ORDER

CASELLAS, District Judge.

In the landmark opinion of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the Supreme Court of the United States held that segregating children on the basis of race, even if under similar circumstances, deprived racial minorities of equal educational opportunities in contravention of the Fourteenth Amendment's Equal Protection Clause. In so ruling, the Court cogently pointed out that "[t]o separate [these children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." Id. at 494, 74 S.Ct. at 691. Although unlike the instant controversy, the Brown decision addressed the issue of racial segregation in public schools, we find the forgoing statement remarkably appropriate to the matter which is currently before the Court.

Plaintiff Jason Bercovitch was indefinitely suspended from Baldwin School two months ago as a result of repeated disciplinary problems. Represented by his parents, he has filed a request for preliminary injunction, declaratory judgment and attorney fees against the Baldwin School. its headmaster and its principal, for allegedly discriminating against him on the basis of his disability. Plaintiffs essentially contend that, in failing to accommodate Jason even after they learned that he had been diagnosed with Attention Deficit-Hyperactivity Disorder ("ADHD"), Oppositional Defiance Disorder ("ODD") and childhood depression, defendants violated the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 794, and local law. They thus request that Jason be immediately reinstated at Baldwin and provided with whichever reasonable accommodations are deemed necessary to treat his disability.

Beginning on March 25, 1997, the Court held a preliminary injunction hearing pursuant to Rule 65 of the Federal Rules of Civil Procedure, which lasted one full week. On Friday, April 4, 1997, and upon carefully examining the pertinent facts, the applicable law and the arguments advanced by both parties throughout the hearing, the Court made a ruling from the bench in which it granted plaintiffs' request for a preliminary injunction. It also stated that it would prepare and file a written order the following week. Pursuant to this ruling, and in accordance with Rules 52 and 65(d) of the Federal Rules of Civil Procedure, the Court hereby makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. Plaintiff Jason Bercovitch is an eleven year-old sixth grader at Baldwin School. He has attended Baldwin for the past seven years, since pre-kinder. But for his first semester of sixth grade, he has performed outstandingly at school, academically speaking. He has also participated in math and band-related extracurricular activities.

2. Defendant Baldwin School is an independent, non-profit, non-sectarian, English-language institution incorporated under the laws of the Commonwealth of Puerto Rico. It is also a private enterprise that affects interstate commerce, since it purchases products from the United States, it widely advertises in newspapers, the yellow pages and even the Internet, and actively solicits students. Furthermore, Baldwin participates in federally-funded programs, and is therefore subject to federal civil rights statutes such as the ones at issue in the instant proceedings.

3. Jason has had behavioral problems since he was an infant. His parents have had to seek therapy for the child since he was three years old. These behavioral problems have also led him to have disciplinary problems at Baldwin since pre-kinder. Throughout Jason's tenure at Baldwin. his parents have consistently made efforts to discuss their child's behavioral problems with the school's principals, teachers and staff. The school has always responded to these efforts with ad hoc accommodations which have been implemented to some degree of success. Examples of such accommodations range from sitting next to good role models, sitting Jason aside, and using charts and happy faces, to providing him with time-outs. Jason has usually responded positively to the strategies devised as a result of these parent-teacher conferences. Baldwin has not, however, ever devised a specific, consistent plan to deal with Jason's behavioral problems.

4. Jason was placed on probation on December 8, 1995, for his misconduct during his fifth grade. As a result of this action, Jason's parents requested a meeting with his teachers and treating psychologist, Dr. Ana Colón. At the meeting, held in January of 1996, the teachers, the principal, the psychologist and the parents all discussed ideas for working with Jason. Jason's father suggested that the school stress positive reinforcement because he responded well to it. After that meeting, the parents and the school arranged for monthly meetings to follow up on Jason's behavior. Jason's behavior noticeably improved shortly thereafter, as evidenced in his report card.

5. In August of 1996, however, Ms. Carmen Gil, Jason's fifth grade principal, was replaced by co-defendant, Ms. Nancy Pagan, who became his principal during the sixth grade. Ms. Pagan was not informed of the monthly meetings Jason's teachers had had with his parents during the fifth grade until later that year. Jason received various disciplinary referrals during the Fall of 1996, and was suspended twice that semester. Mrs. Pagan met with Jason's parents twice during this time, and reported all of Jason's incidents to them. She also made several concessions in dealing with Jason. adapting the usual manner in which she dealt with disciplinary problems to fit Jason's needs.

6. Jason was suspended from Baldwin School on January 15, 1997 as a result of yet another disciplinary incident. This time, Jason apparently refused to follow his teacher's orders to be quiet, and when asked to step outside, he refused, using expletives to refer to his teacher. He denied ever having said anything wrong, but later accepted that he was disrespectful. He was immediately sent to the principal's office, where Ms. Pagan and Ms. Viola Casellas, the school counselor and psychologist, pled with him to calm down. He nevertheless refused to follow their instructions, insisted on remaining outside of the office, and kicked various objects. When asked to pick everything up, he complied, but remained visibly excited. Finally, Ms. Pagan called Dr. Austen, the school's headmaster, and when Jason saw him, he immediately calmed down and began to cry.

7. Jason's exact status at the school was not clearly established at the time he was suspended, but no return date was ever given. Dr. Austen, who had never communicated with Jason's parents prior to the child's suspension, gave Jason's mother the news. When Jason's mother pleaded with him to place him back in school because she suspected he might have ADHD and was to undergo an evaluation shortly, Austen reacted by telling her that he'd let her know about Jason's status in a few days. Five days later, Jason's parents met with Lawrence Duffy, Baldwin's compliance officer and general counsel, and reiterated their concern that Jason might have ADHD, and that a diagnosis would be forthcoming. Nevertheless, Mr. Duffy later confirmed Jason's status of indefinite suspension through a letter to Jason's parents. Jason's parents asked the school to reconsider their position, to no avail. Prior to the Court's April 4th bench ruling, Jason has not been either expelled or retained at Baldwin.

8. On February 3, 1997, Jason's psychologist diagnosed him with ADHD, ODD and childhood depression. ADHD is a treatable neurobiological disorder which affects approximately three to five percent of the school-age population in the United States. It manifests itself through the conduct or social interaction of the affected individual, and is characterized by inattention, hyperactivity and impulsiveness. Harvey C. Parker, The ADD Hyperactivity Handbook for Schools (2d ed.1996). A student with ADHD will openly manifest emotional problems such as anger, sadness, anxiety or disruptive behavior. Such problems will often lead these students to find themselves in trouble with authority figures, who assume that this conduct is intentional. ODD is a similar, yet more serious neurobiological disorder which is characterized by a tendency not to comply, to defy authority and to be negativistic, resentful and angry. It is not uncommon for children who have ADHD to also be diagnosed with ODD. Seventy to eighty percent of children who are subjected to pharmacological treatment to control these disorders respond positively to it. Results are usually evident after one to three weeks.

9. Jason was referred to psychiatrist Richard Camino shortly after being diagnosed for pharmacological treatment. Upon examining him, Dr. Camino classified Jason as a "classic case of ADHD", who should be subjected to medication as well as intensive family psychotherapy as soon as possible. He emphasized that multi-modal treatment was crucial for Jason's therapy to be effective, but was confident that Jason would experience positive behavioral changes once this treatment was under way. He also held that the longer Jason was kept out of school, the longer it would take for things to get back to normal for him. Thus, he specifically recommended that Jason return to Baldwin and made defendants aware of his findings through a letter requesting that Jason be at least placed in math class and band...