We will continue to advocate against the misuse of Florida’s Baker Act laws. Handcuffing and transporting children in the back of a police car from school, as required by Palm Beach School District Police policy for every Baker Act, is a traumatic experience for a child. Parents should be informed immediately if their child is at risk of a Baker Act.  Children whose parents or caregivers are available to provide help should not be Baker Acted.  Elementary-aged children should not be Baker Acted.  Children with developmental disabilities, whose behavior is a manifestation of their disability, should not be Baker Acted. Our schools and law enforcement should be better trained.  Our children, especially our children with disabilities, deserve better.

An autistic child melts down. An officer makes a decision. A family suffers the consequences. A mental health law is being used more frequently across Florida on children who are not mentally ill.

Tampa Bay Times, by Leonora LaPeter and John Pendygraft, Published Dec. 8, 2019

Increasingly in Florida, students with autism or who are simply acting up in class are being involuntarily detained for mental health evaluation under the Baker Act, which is intended to be used by police officers and some mental health professionals for people who are having a mental health crisis. The number of children involuntarily committed has doubled in the past 15 years, to about 36,000 a year, and more than 4,000 are under the age of 10. “I’m seeing officers and administrators who use the Baker Act as a tool to get kids out of school,” said Shahar Pasch, an attorney from West Palm Beach. “It’s across the board, across the state, the whole Baker Act system is being abused.” Tampa Bay Times. Parents of students who were detained under the Baker Act share their stories.

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Outside his classroom, A.J. Plonsky dropped his backpack on the pavement and curled himself into a ball.

It was the 12-year-old’s first day at a new school. A kid from math had ignored him in the noisy cafeteria at lunch, so he sat alone and cried. By the time he got to science class, where he sat in the wrong seat, A.J. used his fingernails to dig a long, bloody scratch in his arm.

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In a meaningful success, we prevailed in a 504 Complaint which found that the Gifted Characteristic Checklist used by the Palm Beach County School District discriminate against children with disabilities. We will continue to advocate to make sure all students have access to appropriate educational programs.

Most children with disabilities do not fit neatly into any one category. They often have layers of complex and co-occurring strengths and challenges which can result in multiple, co-existing exceptionalities and ESE eligibilities.  It is possible, and in fact common, for a child to be both Gifted and have Autism Spectrum Disorder, or Gifted and Specific Learning Disabled, or Gifted, Language Impaired and Emotional/Behaviorally Disabled, and the list goes on. All children, regardless of their exceptionalities and challenges, deserve the same opportunity to access school enrichment programming.

In Florida, there are three criteria used to determine Gifted eligibility. Pursuant to Fla. Admin. Code R. 6A-6.03019, a student must demonstrate (1) the need for a special program, (2) a majority of characteristics of gifted student according to a standard score or checklist, and (3) superior intellectual development as measured by an IQ score two standard deviations or more above the mean on a standardized test of intelligence. All three areas (need for a special program, the minimum IQ score, and the gifted characteristics) must be met in order for a child to be eligible for Gifted.  In other words, a child can have an extraordinarily high IQ, but can be denied Gifted placement if the teachers do not mark a sufficient number of characteristics in a checklist.

There is no standard for the Gifted Characteristic Checklists, and so they vary widely across the State, and indeed the country.  There are, however, some checklists which are rooted in research, are more expansive, and are sensitive to the varying strengths and challenges experienced by children with disabilities. Palm Beach County’s checklists were limited and, furthermore, valued behaviors which specifically excluded children with certain disabilities.  For example, the Gifted Characteristic Checklist for grades 4 and 5 asked teachers to rank a child on skills such as “adapts easily to different situations” and “becomes impatient with drills and routine procedures.”  Children with Autism Spectrum Disorder would have difficulty gaining higher marks for these types of behaviors.  In fact, the diagnostic criteria for Autism Spectrum Disorder (ASD) specifically considers whether a child demonstrates, “Insistence on sameness, inflexible adherence to routines, or ritualized patterns or verbal nonverbal behavior (e.g., extreme distress at small changes, difficulties with transitions, rigid thinking patterns, greeting rituals, need to take same route or eat food every day).” Thus, the more a child exhibits traits of ASD, the lower the same child may score on the Gifted Characteristic Checklist. While there are many children with disabilities in the School District’s gifted programs, some children were certainly excluded due to their disability.

Ultimately, all children should be valued for their strengths, diversity of thoughts and abilities that they can contribute, and not just excluded because of their challenges. A more inclusive checklist will allow all children to be considered fairly and equitably for Gifted eligibility. We are very pleased to have successfully advocated on behalf of our client, and to have helped make a difference for all students with disabilities in Palm Beach County who will benefit from the revised Gifted Characteristic Checklists.

 

Relevant Portions of the Investigation Report: