From The Los Angeles Times. In the picture, Compton
Unified student Kimberly Cervantes, center, photographed in May 2015, is part
of a lawsuit seeking disability protections for students suffering from the
effects of trauma. Behind her are attorney Annie Hudson-Price, left, and
attorney Kathryn Eidmann.
Students who have experienced trauma could be eligible for some of the same protections as students with disabilities based on the effects of that trauma, according to a ruling by a federal judge September 29.
But the degrees, types and effects of trauma that would trigger such protections have yet to be determined.
The procedural rulings from Judge Michael W. Fitzgerald came in response to a lawsuit filed on behalf of five students and three teachers in the Compton Unified School District that aimed to establish “complex trauma” as a type of disability under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
Representing the plaintiffs, Los Angeles-based pro bono firm Public Counsel presented the judge with research showing that exposure to trauma can hurt a student’s ability to learn, much in the same way as other impairments.
Public Counsel wanted the suit to be a class-action case on behalf of students whose learning opportunities suffered in response to trauma, the ruling said. The suit described the case of a boy who was separated from his siblings as he was shuffled through a series of foster homes and ultimately “spent two months of homelessness sleeping on the roof of his high school cafeteria.”
Fitzgerald rejected the plaintiffs’ request, saying that they did not satisfactorily prove that there were enough class members for such a suit. Kathryn Eidmann of Public Counsel said the group plans to file a new motion for class certification, and remains “open to working collaboratively with the district to get immediate relief.”
Public Counsel had sought a preliminary injunction asking the judge to require Compton to immediately require school staff to undergo training on the effects of trauma on learning. Previously, attorney David Huff has said the district already trains teachers in “trauma-sensitive practices.”
Fitzgerald rejected the plaintiffs' injunction request Tuesday, stating that such an action would “encroach” on Compton’s ability to set its own direction with regard to staff training, and that the evidence in the case “does not clearly support a claim of trauma-induced disability that would satisfy a reasonable expert in the field.”
Huff, an attorney at Orbach Huff Suarez & Henderson, confirmed in an interview that the district is conducting trauma training on Oct. 13, similar to the trainings it has already held.
Public Counsel attorney Mark Rosenbaum interpreted the injunction loss as a temporary setback — he said he is confident he will be able to satisfy the court’s burden of proof that there was sufficient trauma among the students he represents.
Rosenbaum, though, claims that Fitzgerald’s other ruling was a victory: Fitzgerald rejected Compton’s motion to dismiss the suit, stating that “The Court simply acknowledges the allegations that exposure to traumatic events might cause physical or mental impairments that could be cognizable as disabilities.”
Fitzgerald wrote that the suit survives on the grounds that trauma could be a disability, but “complex trauma" as defined by the original suit as “exposure to two or more traumatic events” is not endorsed by the court.
That ruling, Rosenbaum said, is precedent setting, because the court recognized that complex trauma "is a disability … under the law.”Fitzgerald wrote that “Plaintiffs have adequately alleged, at least, that complex trauma can result in neurobiological effects constituting a physical impairment for purposes” of disability law.
But Rosenbaum acknowledged that he needs to better define what constitutes such impairment.
Huff says Compton interprets the ruling differently. "The court says it is not making a final decision as to how it will be resolved and does not make a decision as to how any student actually suffers trauma," he said. "Just because a child growing up in Compton has suffered an adverse childhood experience ... does not mean he or she is disabled under federal law. There has to be more of a nexus there." Huff said the district plans to continue fighting the suit.
Eidmann says Public Counsel agrees that the exposure to two or more traumatic events is an insufficient bar for receiving some disability protections. "Young people may respond to traumatic experiences in many ways and not experience impairment in functioning as a result," she said in an email. "Exposure to trauma can create neurobiological effects in the brains and bodies of young people, and these effects meet the definition of disability under the ADA. In other words, it is the physiological effects that many people experience after enduring trauma, and not the adverse experiences themselves, that constitutes the disability."
Denise Marshall, executive director of the Council of Parent Attorneys and Advocates, a national disability group, thinks the procedural ruling represents a step forward for her constituency.
“We are thrilled that the court has recognized the need for schools to mitigate barriers to learning caused by trauma,” Marshall said. “Trauma inflicted on a child is debilitating. School professionals must be sensitive to the needs of students both to avoid re-traumatization and create supportive school climates.”
As Marshall noted, the rulings come as the issue of trauma training is already on her mind this week. On Wednesday, U.S. Secretary of Education Arne Duncan said he wanted to "put a new emphasis on schools rather than jails" by cutting in half the number of people incarcerated for nonviolent crimes, saving $15 billion a year, and increasing teachers' salaries with the money. To make that happen, COPAA called for increasing behavioral interventions and trauma-sensitivity trainings.
