Volusia schools face class action lawsuit over treatment of autistic student

The Daytona Beach News-Journal | By Frank Fernandez | November 2, 2021

Just two months after reaching a settlement with the U.S. Department of Justice over the treatment of autistic children, the Volusia County School Board is now facing a $50 million class action lawsuit filed by an attorney for a mother who says her autistic son has been mistreated for years in the school system.

Attorney Jason Harr of Daytona Beach filed the lawsuit on Wednesday in federal court in Orlando on behalf of Kimberly Powell, whose son has been diagnosed with Asperger syndrome, a condition on the autism spectrum. No other parents or autistic children are part of the lawsuit as of now, but Harr said other parents have contacted him

“If you are autistic or you have Asperger’s, you shouldn’t be treated differently than anybody else,” Harr said. “You should have the same advantages in the Volusia County school system as anyone else.”

The two-count lawsuit accuses the Volusia County School Board of violating Title II of the Americans with Disabilities Act and violating the Rehabilitation Act of 1973. 

The lawsuit cites the settlement announced in August that the Volusia County School Board reached with the Department of Justice, which opened its investigation after receiving a complaint involving 11 students with disabilities, including nine with a diagnosis of autism. Powell’s son was not one of those students.

Volusia County Schools Director of Community Information Kelly Schulz wrote in an email Thursday that the district does not comment on pending litigation.

In 2019, The News-Journal interviewed parents, teachers, advocates, district officials and other experts regarding the system in place for educating students with autism in Volusia County. The newspaper’s findings were two-fold, and are supported by the conclusion of the DOJ’s investigation.

Autistic student’s mom: ‘He’s lived hell his entire school life’

Powell joined Harr in his office on Wednesday afternoon in Daytona Beach. She said her 17-year-old son is now a senior at Atlantic High School and she asserted school system staff have been mistreating him all the way back to kindergarten. 

“For no better term, he’s lived hell his entire school life,” Powell said. “He’s been bullied, he’s been mistreated. He’s been manhandled by teachers and parents and behavior specialists.”

She said her son would come home “with excessive marks all over him.”

If I’d sent him to school with those you can bet I wouldn’t have been his parent for a long time,”  Powell said.

She said that her son was bullied by 27 other students at Creekside Middle School. Powell added that her son was told to leave class five minutes early to avoid being bullied by other students.

“Instead of them doing something to those children, my son had to leave class five minutes early to make it to the next class so he wouldn’t get bullied,” Powell said. “So my son got treated like he was the one that was wrong, and it’s just not OK.” 

Powell added that she had to home school her son several times because of the way he was being treated at school.

She said her son was diagnosed with Asperger’s syndrome and has an IEP, an individualized education plan. But she said educators were not following it.

She described her son as “highly functional” but that things such as yelling, loud noises and chaotic situations will bother him or prompt him to run. 

‘We’re not here to punish the school board’

Harr said that Powell’s son was subjected to many of the same things cited in the settlement between Volusia County schools and the Department of Justice.

“We are not here to punish the school board no matter how much they may be deserving of that,” Harr said. “We are here to make sure that parents such as Mrs. Powell have the monetary resources to provide services to their autistic children.”

Harr said a judge will ultimately decide whether the lawsuit will be classified as a class action.  

Harr said on Thursday that he has been contacted by other families and he plans to add more plaintiffs to the lawsuit.

“We want to make sure those families are given the opportunity to join this class action so their kids that were subjected to this discriminatory practice have the monetary resources to get better and to be successful in life. That’s all we want for any child,” Harr said.

Asked how he came to the $50 million figure, Harr said that the issue goes back several years and that the settlement between the Department of Justice and Volusia Schools found Autistic children in more than half the schools. He said the money would pay for medical services, physical therapy, or whatever the children needed.

Harr added that the figure would be discussed when attorneys meet.

The U.S. Department of Justice reached the settlement with the Volusia County School District after it found the district’s “systemic and discriminatory practices” were punishing students with disabilities for behaviors the students couldn’t control.

Volusia schools have three years to change and officials have said change is already underway.   

The federal investigation into the district began in 2017, when an attorney filed a complaint on behalf of the 11 students with disabilities, nine of whom were diagnosed with autism spectrum disorder.

The DOJ found the students’ claims to be true. The district relied on overly punitive disciplinary tactics and law enforcement to address behaviors that are known, or should be known manifestations of the students’ disabilities.

The district also “routinely sought to exclude these students by removing them,” by asking parents to pick children up from school or asking them to keep the children home, by suspending the children, or by using Baker Act procedures to involuntarily hold children at hospitals. 

The settlement was not punitive and was not an admission of liability or wrongdoing on the district’s part.

The settlement gave the district three years to implement new policies and practices, hire new personnel dedicated to oversight, and implement new systems for data reporting and tracking, and checks and balances. During that time, Volusia County Schools are subject to federal oversight.

News-Journal investigation: Number of autistic students tripled

Autism is a developmental disorder that affects social skills, communication and behavior. It has become increasingly prevalent in the U.S. In the last school year, there were 1,233 students with autism spectrum disorder in Volusia County. Ten years ago, there were 387.

The News-Journal’s investigation found that as the number of students with autism more than tripled in Volusia County, the level of staffing, funding and training for general teachers had stagnated — creating a system where families had to fight to get their children the help they are legally entitled to receive. It also found that the number of children with autism in Volusia County who are Baker Acted was up 500% over four years, even though experts that step will almost never help children overcome whatever behaviors they are exhibiting. 

The News-Journal spoke to families whose children had been taken in police cars and involuntarily held at hospitals for behaviors related to their disability; to families who took their children out of the public school system for fear of retribution for their behaviors; and to families who had to retain professional advocates or lawyers to help them obtain the necessary support services for their children to go to school.