A Tale of Two Studies.
The following descriptions show what adults scoring at the lowest levels of NALS can do. Some people have taken levels 1 and 2 to indicate "functional illiteracy." This seems unfair, and, given what the people at levels 1 and 2 can do, it is little wonder that few of them report that literacy difficulties cause problems in their lives.
Level 1: Performed simple routine tasks involving brief and uncomplicated texts and documents. For example, they were able to locate the time or place of a meeting on a form and identify a piece of specific information in a brief news article.
Level 2: Located information in texts, made low-level inferences using printed material, and integrated easily identifiable pieces of information. Further, they demonstrated the ability to perform quantitative tasks that involve a single operation where the numbers are either stated or can be easily found in the text. For example, adults at that level were able to calculate the total cost of a purchase or determine the difference in price between two items. They could also locate a particular intersection on a street map and enter background information on a simple form.
Source: Adult Literacy in America (Washington, D.C.: National Center for Education Statistics, 1993), pp. xiv-xv.
GERALD W. BRACEY is a research psychologist and writer, living in the Washington, D.C., area. His newest book is Put to the Test: An Educator's and Consumer's Guide to Standardized Testing (Phi Delta Kappa Center for Professional Development & Services, 1998).
IN THE FALL semester of 1994, Philadelfio Armijo was a seventh-grade special education student in Wagon Mound, a small town in New Mexico. The school district had first diagnosed him as having a learning disability seven years earlier. He also had psychological and emotional problems, including impulsivity and depression. He was in regular classes for the majority of the school day, with pull-out services for one or two periods a day.
His 1994-95 IEP (individualized education program) provided him with counseling services to deal with school and self-esteem. Early in the year, he confided his frustration to school aide Pam Clouthier, adding, "I'm just going to shoot myself." Both she and school counselor Tom Herrera knew that Armijo had access to firearms.
On 1 December 1994, the school's principal orally reprimanded Armijo for harassing an elementary student. In response, and with Herrera present, Armijo threatened physical harm to the teacher who had reported the incident, to the teacher's son, and to the teacher's car. Considering Armijo to be at risk for committing violence, the principal instructed Herrera to drive Armijo home, which he did. She also contacted the police to inform them of the suspension and instructed them to detain him if they saw him returning to school. On the way to Armijo's home, Herrera observed him to be "very angry."
The suspension may have been a violation of school district policy. While the policy allows for "emergency removal" of one day or less when a student poses a danger to others, the policy also provides: "If a student is placed in out-of- school suspension, but his/her parents will not be home, that student will be placed instead on an in-school suspension without credit for work done." The principal did not inform Armijo's parents of the emergency removal and did not instruct Herrera to do so. She also did not tell Herrera to check whether Armijo's parents were home or to bring him back to school if they were not there.
Upon their arrival at his house, Armijo got out of the car and ran around to the back of the house as Herrera drove away. His parents returned home later that day and found their son in their bedroom, dead from a self-inflicted gunshot wound to the chest.
During the police investigation, Clouthier, the aide, wrote a statement upon learning of Armijo's death, noting that within the last few months, "[Armijo] was constantly depressed and nervous and not really knowing who or what he was." The statement added that, earlier on the day of his death, while discussing his misbehavior and inability to understand why he was in trouble, "Phil . . . told me that maybe he should just leave the school and go to Colorado. I replied, '[M]i hijo, relax, you're upset but everything will be okay.' He then said, 'I don't know, Pam, maybe I'd be better off dead.'"
In March 1996, his parents filed suit in federal court against the school district and various officials, including the principal, Clouthier, and Herrera. They claimed that the defendants violated the Individuals with Disabilities Education Act and that the violation resulted in their son's death. They also sued under Sec. 1983 of the federal civil rights act, claiming that 1) the school district failed to properly train staff members to handle situations involving potentially violent and suicidal students and 2) the defendants violated the substantive due process rights of their son under the 14th Amendment. Their substantive due process claim was based on two theories: that the defendants had a "special relationship" with Armijo, giving rise to a corresponding affirmative duty to protect him from injury, and that the defendants had created the danger by taking their suicide-prone son home without notifying them.
On 15 April 1997, the federal district court granted the defendants' motion for summary judgment on the IDEA claim and the Sec. 1983 failure-to-train claim. However, the court denied the motion for summary judgment based on qualified immunity from the Sec. 1983 substantive due process claim, finding that the plaintiff parents had presented a triable issue regarding their "special relationship" and "danger creation" theories. The defendants appealed the qualified-immunity ruling, and the family cross-appealed the IDEA and failure- to-train rulings.
On 28 October 1998, the 10th Circuit Court of Appeals partly overturned the trial court rulings with regard to qualified immunity.1 First, the court explained that the immunity from liability of public school officials in their personal capacity is qualified to the extent that it does not apply when they violate clearly established federal statutory or constitutional rights of which a reasonable person would have known at the time of the alleged violation. Typically, this knowledge is based on whether precedents are settled law.
Second, the appellate court reversed the district court's ruling that the "special relationship" theory applied, citing precedents establishing that school officials have no duty under the due process clause of the 14th Amendment to protect students from harm by third parties, except when they hold the student in coercive custody. Compulsory schooling does not qualify as coercive custody, and, the court reasoned, even if Herrera's driving Armijo home constituted such a custodial relationship, it ended once the student got out of the car. At that point, Armijo was free to do whatever he wanted except return to school, and "[b]anning a student from the school grounds does not rise to the same level of involuntary restraint as arresting, incarcerating, or institutionalizing an individual."
Third, the appellate court affirmed the trial court's denial of the defendants' motion for summary judgment on the "danger creation" theory with regard to the principal and counselor. In contrast with the "special relationship" theory, the 10th Circuit found it well established that, as a matter of 14th Amendment substantive due process, government officials may be liable for the acts of others when those officials intentionally or recklessly created the danger that caused the harm and the degree of their danger creation is "shocking to the conscience."
Moreover, the 10th Circuit found the following evidence, when viewed in the light most favorable to the plaintiff parents, to be sufficient for a trial on this legal theory: 1) Armijo was a member of a limited, specifically definable group - special education students who have expressed threats of suicide; 2) the principal's and counselor's conduct put him at a substantial, increased risk of serious, immediate, and foreseeable harm; 3) they may have known of the risk in terms of his fragile and suicidal state, his being home alone, and his access there to firearms; 4) they acted recklessly in their conscious disregard of the risk of suicide, and 5) such conduct, if true and viewed in total, could possibly be construed as shocking to the conscience. At the same time, the appeals court reversed the trial court's ruling with regard to Clouthier, finding nothing in the record to support a conclusion that she caused or created the danger that arguably led to Armijo's death.
In remanding the "danger creation" claim against the principal and counselor for trial, the 10th Circuit explained that it was obligated to view the evidence in the light most favorable to the party opposing the motion for summary judgment, adding that "we cannot help but observe that the facts presently before us are very thin to establish a number of the [enumerated] factors for liability."
Finally, the appeals court declined to exercise jurisdiction over the plaintiffs' cross-appeal, leaving the IDEA and failure-to-train rulings standing until the end of the trial court's proceedings. In light of precedents, these two claims are unlikely to survive, much less succeed.2
THE CASE is scheduled for trial in summer 1999, subject to the outcome of a settlement conference in the spring. The defendants' legal counsel, Kevin Brown, is optimistic about the outcome, contending that "the school officials' actions were proper in removing a student who made threats" and that, in any event, "to succeed at trial plaintiffs will have to show that the acts of the administrators would shock the conscience of the court." The parents' co- counsel, Arthur Vargas, counters: "We believe that we will prevail in obtaining justice for this family; any judge or jury would be aghast at the defendants' shocking acts in this case."
In any event, the 10th Circuit's decision is notable for public schools in at least two respects. First, the decision confirms the reluctance of the courts to extend to school situations the "special relationship" theory of civil rights liability, based on the 14th Amendment under Sec. 1983.3 The era of making constitutional issues out of public school affairs is largely in the past; plaintiffs will have to look to specific federal statutes or state laws for litigation relief.
Second, the 10th Circuit's decision points to a very narrow liability lane under the 14th Amendment, limited to carefully circumscribed situations that constitute danger creation. Pursuing liability under Sec. 1983, as an end run around obstacles to state common law claims,4 will require more than the terrible tragedy of student suicide.5 In this case, the court pointed to a constellation of narrow circumstances, such as a group of special education students prone to suicide and school officials' efforts that are so outrageous as to be truly shocking.
School administrators often find themselves between a rock and a hard place. In this case, the rock is society's "zero tolerance" exclusionary response to student threats, drugs, or violence.6 The hard place is the "special" solicitude for students with disabilities.7 In this case, where school officials appear to have erred on the side of exclusion by not connecting to parental or other oversight, they are nonetheless immune from federal civil rights liability for the resulting student suicide unless the parents can prove, by the preponderance of evidence, not just ordinary negligence but shocking outrageousness.
1. Armijo v. Wagon Mound Pub. Sch., 159 F.3d 1253 (10th Cir. 1998). I obtained supplementary information in telephone interviews on 25 February 1999 with Kevin Brown, the district's attorney, and on 1 March 1999 with Arthur Vargas, the parents' co-counsel.
2. For the IDEA liability issue, see, for example, Todd v. Elkins Sch. Dist., 28 IDELR 29 (8th Cir. 1998); Sellers v. School Bd., 114 F.3d 524 (4th Cir. 1998), cert. denied, 119 S. Ct. 168 (1998); and Charlie F. v. Board of Educ., 98 F.3d 989 (7th Cir. 1996). For the failure-to-train theory, see, for example, Wyke v. Polk County Sch. Bd., 129 F.3d 560 (11th Cir. 1997); D.R. v. Middle Bucks Area Vo-Tech. Sch., 972 F.2d 1364 (3rd Cir. 1992), cert. denied, 113 S. Ct. 1045 (1993); and Sanchez v. School Dist. No. 9-R, 902 P.2d 450 (Colo. Ct. App. 1995).
3. For the earlier evolution of this theory, see Perry A. Zirkel, "Wrong by Wright: Liability for Sexual Abuse," Phi Delta Kappan, February 1988, pp. 451- 52; and idem, "Poor Joshua," Phi Delta Kappan, June 1989, pp. 828-29. For later court decisions, see, for example, Stevens v. Umstead, 131 F.3d 697 (7th Cir. 1997); Walton v. Alexander, 44 F.3d 1297 (5th Cir. 1995); and Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729 (8th Cir. 1993).
4. In the Armijo case, the trial court dismissed the plaintiffs' negligence claim based on governmental immunity under New Mexico law. For two previous examples of the difficulty of establishing common law liability for student suicide, see Perry A. Zirkel, "Another Case of Student Suicide," Phi Delta Kappan, September 1995, pp. 91-92; and idem, "Confident About Confidences?," Phi Delta Kappan, May 1992, pp. 732-34.
5. Compare Wyke v. Polk County Sch. Bd., 129 F.3d 560 (11th Cir. 1997), with Carroll K. v. Fayette County Bd. of Educ., 19 F. Supp.2d 618 (S.D.W.Va. 1998).
6. See, for example, Perry A. Zirkel, "A Threat to Student Speech?," Phi Delta Kappan, January 1997, pp. 413-14; and idem, "Supporting Suspenders," Phi Delta Kappan, November 1994, pp. 256-57.
7. See, for example, Perry A. Zirkel, "Another Withering Decision," Phi Delta Kappan, October 1996, pp. 171-72.
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|Title Annotation:||functional illiteracy measured|
|Author:||Bracey, Gerald W.|
|Publication:||Phi Delta Kappan|
|Date:||Jun 1, 1999|
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