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LPS at trial in federal court in autism case

LPS at trial in federal court in autism case

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A trial in U.S. District Court in Omaha  opened Thursday with a video of an autistic boy named Luke McNair.

Two Luke McNairs, really, his attorney says, and the contrast in the boy's behavior shown on the courtroom's computer screens goes to the heart of his parents' lawsuit against Lincoln Public Schools.

The first half of the video shows Luke in spring  2009, when he arrived at the Kennedy Kreiger Institute, a research facility for child and adolescent developmental disabilities associated with Johns Hopkins University in Baltimore.

It shows him crying, hitting and banging his head. The second half shows him five months later: calm, answering questions, doing his schoolwork.

Matt and Chrissy McNair, who were not identified in court but agreed to have their names used in this story, say LPS officials violated federal special education law by not relying on research and evidence from institute experts when implementing a plan for their son at Sheridan Elementary School.

By not doing so, their attorney Mark Laughlin argued in court, they did not offer Luke a "free and appropriate education plan" as required by law. As a result, the McNairs removed him from LPS and enrolled him at Prairie Hill School, a private school that implemented the plan. There, Laughlin said, he thrived.

"If they'd adopted the (Kennedy Krieger Institute) plan in full, what happened at Prairie Hill would have happened at LPS," Laughlin said.

The lawsuit seeks $37,000 from LPS for the cost of private schooling.

LPS attorney Greg Perry argued the district had concerns with a portion of the plan but intended to implement other parts. When they'd made changes in third grade, Luke's behavior improved and he was getting an appropriate education.

"No educators have given testimony contrary to that," he said. "And the educators wanted him back. From reading the transcript, I think you'll see the staff really loves Luke."

Laughlin said Luke, who is now 11, wasn't being aggressive because the school had quit putting demands on him and, therefore, was not meeting his educational needs.

The two attorneys made their arguments during a half-day trial before Judge Laurie Smith Camp, an appeal of a Department of Education ruling in favor of LPS.

Much of the discussion centered on a core dispute: LPS's practice of taking Luke to a "calm room" when he became aggressive.

By the end of third grade, Luke's behavior had deteriorated so much he was spending little time in the classroom, Laughlin said. The McNairs' lives were so disrupted by his behavior they considered making him a ward of the state.

Instead, they sent him to the Krieger Institute, where experts concluded Luke actually wanted to go to the calm room. He'd discovered he'd end up there if he acted out, Laughlin said.

"The whole 'aha moment' of Dr. (SungWoo) Kahng's five months of testing was that's what he wants," Laughlin said. By using other incentives, Luke's  behavior improved dramatically from 44 violent actions per hour to less than three, he said.

Laughlin argued that LPS officials had a responsibility to take the evaluation by Kahng, an internationally recognized expert, into account, especially when they had no research showing the "calm room" worked.

"LPS had absolutely no data whatsoever to contradict Kahng's findings and as such had no reason to include the 'calm room' in the plan," he said. "So they made a decision based on no data -- in violation of federal law."

Perry argued educators' opinions also carried weight and should be considered.

LPS was concerned about eliminating the "calm room" in part because the plan called for using a restraint called a "basket hold" when he became aggressive. The hold involves teachers or para-educators putting their arms around a child's arms and chest until he or she calms.

Perry said the hold was a punishment approach LPS did not like. Studies show such holds can be dangerous, and federal legislation likely will prohibit them in the near future, he said.

Laughlin called the "basket hold" issue a red herring because Kahng told LPS using a different approach they approved of worked just as well.

LPS had to consider not only Luke but other students' safety and whether his behavior would be disruptive, Perry said.

Perry questioned Kahng's ability to advise LPS, because he was not certified to teach in Nebraska and had not read Luke's plan. Laughlin said Kahng worked with schools across the country and was "kind of shocked" at LPS's rejection of the plan.

Camp took the case under advisement.

Reach Margaret Reist at 402-473-7226 or mreist@journalstar.com

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Education reporter

Margaret Reist is a Lincoln native, the mom of three high school graduates now navigating college and an education junkie who covers students, teachers and policymakers inside and outside the K-12 classroom.

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