Mother's lawsuit claims Fargo Public Schools improperly restrained, secluded autistic son

FARGO — The mother of an 8-year-old boy with autism is suing Fargo Public Schools in federal court alleging that the district violated the civil rights of her son who, according to the lawsuit, was restrained, secluded and consequently traumatized.

Katy Barnum, the mother and plaintiff in the suit filed Wednesday, Dec. 9, claims that the Fargo School Board, school district and Superintendent Rupak Gandhi are responsible for reneging on agreements and failing to provide her son with a “free and appropriate public education” as required by federal law.

Barnum is not seeking punitive damages and just wants her child back in the school that was agreed upon by her and Gandhi, according to court documents and one of her attorneys, Mac Schneider.

The lawsuit asserts that Fargo Public Schools failed to comprehensively evaluate her son in all areas of suspected disability; that her son’s annual goals were not being properly monitored or assessed; that instructional methods were not consistent with her son’s needs; and that the district failed to consistently maintain complete and current records of her son’s in-school behaviors.

“The heart of this case is really about having the district live up to its promises they made to this young child. There was a settlement agreement that was reached in mid July this year, and within weeks the promises made in that agreement we believe were walked back,” said Schneider of Schneider Law Firm in Fargo.

Attorney Laura Tubbs Booth of Minneapolis is representing Fargo Public Schools. When contacted, Tubbs Booth said the district does not normally speak publicly about legal matters, but that she would be contacting the district to find out if the case will be going to trial or settled out of court.

Tubbs Booth added that the school district will "make every effort to resolve concerns raised by parents."

In a Nov. 12, 2019, letter to the North Dakota Department of Public Instruction, Barnum’s attorneys stated that her son’s reading, communication and mathematical abilities were within average range that year. Issues that school administrators had with Barnum’s son stemmed from teachers not following the proper individualized education program her son was meant to have, according to the letter.

“The student’s educational program during the 2018-2019 and 2019-2020 school years were not and are not reasonably calculated to confer meaningful educational benefits,” the letter stated. “Consequently, the student has not made meaningful progress and is facing a change in placement, through no fault of his own.”

Barnum’s son, who is not named in court documents, was diagnosed with autism, attention deficit hyperactivity disorder and post-traumatic stress disorder, and is a special education student, according to court documents.

Federal law, specifically the Individuals with Disabilities Education Act, stipulates that children with disabilities have a right to a free and appropriate education with “related services designed to meet their unique needs.” Additionally, such children are to be in the least restrictive environment in the regular classroom to the maximum extent possible.

Barnum filed a complaint with Fargo Public Schools on Nov. 12, 2019, asserting that the district failed to provide a free and appropriate public education to her son, according to court documents.

The boy attended first grade at Kennedy Elementary School and was determined to be eligible for special education services, according to court documents. An original diagnosis of Barnum’s son was incorrect, court documents stated, and he was later diagnosed with autism spectrum disorder in December 2018. He was moved to Madison Elementary School during the current school year.

As a result of the initial incorrect diagnosis, Barnum’s son was “improperly subjected to a number of restraints and seclusion for behaviors, resulting in trauma … throughout the first half of first grade, school year 2018-2019,” court documents stated.

Despite the new diagnosis, Barnum's lawsuit alleges that Fargo Public Schools made no changes in their strategies or interactions with her son who “continued to be subjected to a number of restraints and seclusion for behaviors, resulting in bruising and trauma … throughout the second half of first grade, school year 2018-2019."

Barnum’s son was frequently removed from his general education classroom and ended up spending less than 40% of his time with his classmates without Barnum’s knowledge, court documents stated.

Barnum’s son has since been diagnosed with PTSD as a result of the “unauthorized restraints and seclusions to which he was subjected,” court documents stated.

Barnum and the district initially tried mediation to resolve her complaint, and began meeting in January 2020. The meetings continued until July 16, and an agreement to keep Barnum’s son at Madison Elementary was made, court documents stated.

On Aug. 19, however, Madison Elementary Principal Bob Olson contacted Barnum saying the school was closing the high-functioning autism program because of an inability to hire a special education teacher and that Barnum’s son would have to attend a different school, court documents stated.

Tubbs Booth, the district's attorney, said that because of the ongoing coronavirus pandemic, "one special education program at Madison Elementary School was closed due to an inability to hire special education licensed staff for the program despite significant effort to do so."

The lawsuit alleges the agreement to keep Barnum's son at Madison Elementary was violated because she was told her son had to be transferred to Lewis and Clark Elementary School, which did not have an appropriate autism program.

Barnum is seeking an immediate temporary restraining order requiring the district to implement appropriate transitional plans, supports and services for her son to attend Madison Elementary. She's also asking that the district ensure all teachers and paraprofessionals who work with her son undergo two weeks training on autism, trauma and other mental health issues.

No trial date has been set, but Barnum's attorney Schneider said he plans to seek a judge's order to force the district to keep the child at Madison Elementary this school year.