neurodiversity.net | testimony of mora katz, rankowski v. town of falmouth

Q. And you are the special education teacher at the Lunt and Plummer schools in Falmouth, is that correct?

A. I am one of the special-ed teachers, yes.

Q. You have in fact been there for 17 years as one of the special-ed teachers?

Q. Be fair to say that as a special education teacher you are aware of your special education students needs, their expectations and their abilities?

Q. In fact you have also had some extensive training in autism, have you not?

A. Well, I am not sure I would call it extensive. I have had training in autism.

Q. You attended four monthly, January, February, March, April sessions on autism conducted by the Maine Autism Society either last year or the year before?

A. I went to three of those, three of those trainings, and there was one training on video I missed one. I believe that was in 2002.

Q. And in fact that was the same sessions that Gayle Fitzpatrick attended?

Q. I want to show you a card that is published by the Autism Society of America on autism and ask you if you agree or disagree with some definitions of autism. Autism, first page, is a disorder of brain function effecting 1 in 250 people. Do you agree or disagree with that?

Q. Yes. Autism is a disorder of brain function effecting 1 in 250 people. Do you agree or disagree with that?

A. I am not sure of specifically of that figure.

Q. Let's jump down to children and adults with autism may not understand what you say.

A. I see where you are reading it off the card. I understand what you are saying. I didn't know you were reading it off the card.

Q. That's why I gave you an extra copy.

Q. Would you like me to read the first part of the card again?

A. No. I can read it. Thank you.

Q. Let me rephrase it then. I will reread it. Autism is a disorder brain function effecting 1 in --

Q. Do you agree or disagree?

Q. Let's jump down. Children and adults with autism may not understand what you say. Do you agree or disagree?

Q. Children and adults with autism may appear deaf?

Q. Children and adults with autism may be unable to speak or speak with difficulty?

Q. Children and adults with autism may engage in repetitive behaviors?

Q. Children and adults with autism may act upset for

Q. Children and adults with autism may appear insensitive to pain?

A. All of these are possible.

Q. Let me just go down. Children and adults with autism may appear anxious or nervous?

Q. Children and adults with autism may dart away from you unexpectedly?

Q. Children and adults with autism may engage in self-stimulating behaviors, i.e., hand flapping or rocking?

A. That is possible.

Q. You're aware that when Jan Rankowski was at the Falmouth playground at the Plummer School he was always under the care of an adult?

A. I know that an adult was there.

Q. Either a parent or another adult, is that correct?

A. Sometimes the home care person was there, yes.

Q. But you never had to assign a staff member to care or be with Jan when he was there; in other words, it was someone else's responsibility?

A. Well, we were asked to provide more support because we were asked to provide more support.

Q. You had a meeting for about 15 minutes this morning with defense counsel and Miss Crowell, is that correct?

A. I am not sure -- I didn't consider that a meeting. I thought we were kind of exchanging pleasantries.

Q. Did you discuss your expected testimony?

A. I really don't recall.

Q. You would agree with me that home school handicapped children using a school playground ought to be treated the same as in-school nonhandicapped students?

A. Could you repeat that please.

Q. Sure. Would you agree with me that a home schooled handicapped child which uses the Plummer playground is to be treated the same way as an in-school nonhandicapped student?

A. A home schooled handicapped student should be treated the same as a --

Q. In-school nonhandicapped.

A. In-school nonhandicapped. I think we treat, I think we treat all children in away that's appropriate for each child.

Q. Well, I am not quite sure you answered my question.

A. I am not quite sure I understand your question.

Q. You would not treat a handicapped home school child any differently than a non-neurologically impaired in-school child in the playground, is that fair to say?

A. I think it kind of depends on where you are going with this. I mean --

Q. Do you understand my question?

Q. Have the reporter please read it back.

THE COURT: Rephrase it. You have asked the same question a few times. She still indicates she doesn't understand.

Q. All children -- I will make it real short. You would agree with me that all children in the playground at Plummer should be treated the same?

A. I think our goal for all children on the playground is exactly the same.

Q. If you treat one child differently from another that's inappropriate, is that fair to say?

A. Well, I want to treat children -- I mean I work with children from kindergarten to fourth grade. I treat the kindergartners slightly different than I treat the fourth graders. They understand differently.

Q. You would treat all ninth graders the same, would you not?

A. There is a huge range of disabilities in ninth grade, so, no, I mean there is some ninth graders who function on a first grade level. There is same ninth graders who function like adults. I can't treat than all the same. I mean, you know, I don't want to say no, I don't treat the kids the same, but, you know, I work with ninth graders who are wearing diapers and don't understand complete sentences. Would I treat that the same as your child who is going to U.S.M. who is in ninth grade? Probably I would go about that in a different way. I mean, yes, I an treating them all -- I respect them all as individuals, but would I do exactly the same thing for both of those kids? Probably not.

Q. I want to show you what's been marked as Plaintiff's Exhibit No. 8, have you tell me if that's your handwriting?

Q. You keep lots of notes, don't you, you keep lots of notes, right?

A. I'm a visual learner, yes.

Q. Yes, and these are in your handwriting, these are notes of a PET meeting June 10th, 2003 involving yourself, Gayle Fitzpatrick, who else?

A. Barbara was at that meeting. There was a home support person, there was a classroom teacher, there was, Andy was there from -- I don't have the typed notes. Obviously this isn't the typed notes, but I am giving you the best I can off the top of my head.

Q. Those are your handwritten notes, are they not?

A. Right, and I don't have the cast of characters who was at that meeting on these notes.

Q. Move to introduce exhibit 8.

Q. Getting to the first page. Hard for me to read your handwriting, but sort of just on top, Gayle brought Barbara packet yesterday, none of received information, did I read that correctly.

Q. Gayle Fitzpatrick brought in a whole bunch of assessments of information about her son that was given to Polly Crowell, but you did not get a copy, is that correct?

A. I don't know. It says, Gayle brought Barbara the packet yesterday.

Q. Your words, none of us received info, is that your handwriting also?

Q. So you did not receive the information from Polly Crowell, none of us received info. Was your handwriting whatever information, a packet yesterday, none of us received info. Your note indicates, whatever Barbara Powers got from Gayle you did not receive, is that correct?

A. If Barbara received it I don't know if Barbara received it. It may have just gone to the office. I don't know what happened to that information.

Q. Well, the information you had was Gayle brought Barbara a packet yesterday?

A. Right. It could have been left in the office is what I am saying.

Q. None of us received info, that's your handwriting?

A. It is indeed, but what I am saying, you understand the difference, sometimes people bring something.

Q. Move to strike as nonresponsive.

A. Did I say too such, Judge? I'm sorry.

Q. The notes also reflect about a third down, Erin in-home support communication behavior, interacting, play skills, did I read that correctly?

Q. Erin apparently is the in-home support person who was giving you information on Jan's communication, behavior and interactive play skills, is that fair to say?

Q. And one other notation you made in your handwriting, correct me if I am wrong, engage in interactive play, decrease solitary activity, did I read that correctly?

Q. One of the concerns that the home support person relates to you was this child should have more interactive play and the decrease his solitary activity, is that correct, you understood that?

Q. In fact solitary activity of a child, any child is not good for the child. It's important for a child to get out and play, would you agree with that?

A. Well, I think it depends on what we are looking at as a whole child, some children need to be taught to play by themselves, some children need to be taught to play in groups.

Q. Talking specifically at the PT meeting of June 10th, 2003 Jan Rankowski one of the concerns was to pull him away from solitary play and get him out playing with his peers, is that correct?

Q. Yes. Thank you. Below that one of the concerns was also tolerate community settings, did I read that correctly?

Q. That also part of getting him out into the community to interact with people?

Q. Would you turn to Page 2 of your June 10th, 2003 notes on that June 10th meeting with Gayle Fitzpatrick wanted a service plan involving her son, is that correct?

Q. And then there was a little note in your handwriting needs to be reassessed June 2004, did I read that correctly?

Q. And you have heard testimony from Miss Fitzpatrick this morning that in fact he has not been reassessed as of June 2004, has he?

A. You mean at our school?

A. No, but I can tell you why.

Q. No. Your answer is no, right?

A. He has not been at our school.

Q. But he has not been reassessed as of June 2004, right, yes or no?

A. Well, not by our staff.

Q. Because he's not a student at the Plummer School, right, he's home schooled?

A. He's home schooled.

Q. That's right. He's not a student at the Plummer School, correct?

A. He is home schooled.

Q. And he has at least as of last fall had very limited services. He could go to the library, take out library books and play in the playground. Was that your understanding of the service plan?

A. Other things had been offered that Gayle said she didn't want, so that service plan was written for playground and library.

Q. Okay. So the playground and the library were the two services that the Plummer School would be offering this child, is that correct?

A. I believe that was in the service plan. I would have to go back and look at that specifically.

Q. Is it correct from your recollection, is that correct?

A. From my recollection, yes, but I --

Q. Thank you. You again met on September 11th, 2003 to develop Jan's service plan. I want to show you what's been marked as plaintiff's exhibit 9, ask you if that's your handwriting notes of the seating of September 11, 2003?

Q. Is that your handwriting?

A. OH, yes, yes, I said it is.

Q. Develop service plan meeting of September 11, 2003?

Q. Move to offer Plaintiff's Exhibit 9.

Q. Let's deal with this is your handwriting. I apologize if I asked you that it's your handwriting of the meeting of September 11, 2003?

Q. One of the things that Gayle Fitzpatrick told you she would do is she'll, meaning the mother, she would send no copies of minutes of wrap meetings. Did I read that correctly about the middle of the page?

Q. And your understanding from wrap meetings this is a meeting of outside professional care providers of Jan who meet frequently and prepare minutes and she would send you copies, is that fair to say?

Q. Were you ever invited to the wrap meetings? A At this meeting I was asked if I would come. 4 Did you ever attend any wrap meetings in the last year?

A. I did not because --

Q. Your answer is no, you have not attended any wrap meetings, is that correct?

A. It's not in the service plan that I would attend those.

Q. Please move to strike as nonresponsive. There was no question.

Q. On the very bottom of these notes, I am going to have to hold this, you understood lower left-hand corner handwriting, correct no if I am wrong, adaptive skills, 6 year level communication, 4 year level, did I read that correctly?

Q. So you understood that Jan Rankowski had the adaptive skills of a six-year-old and the communication level of a four-year-old, is that correct?

Q. On September 25 you also not again with Barbara Powers and the mother Gayle Fitzpatrick, correct?

Q. I want to show you what's been marked as Plaintiff's Exhibit Ten and ask you if that's your notes of the September 25 meeting?

Q. That's your handwriting?

Q. Move to admit plaintiffs' ten.

Q. On that September 25, 2003 meeting Gayle Fitzpatrick was reporting to you that was having a difficult time at fourth grade recess, the playground, because of unkindness of other students, is that correct?

A. That's what it sounds like here.

Q. In fact you put down sounds like an unpleasant time?

Q. That's your handwriting?

A. Yes, it still is.

Q. Okay. Right in the middle of the page it says 1:15-1:30, what does that mean?

A. That's the fourth grade recess time.

Q. And that was also the fourth grade recess time where swearing, making fun of, these were other children who were swearing and making fun of Jan?

A. I believe that's what Gayle was reporting was happening to Jan.

Q. And your notes indicate that you wanted your assistant Virginia Gilbert on Monday to meet Jan Rankowski, the child, and kid's world tire swing, is that correct, Virginia can begin on Monday next at kid's world tire swing, did I read that correctly?

Q. And you wanted Virginia then to meet the child at the tire swing so she could introduce herself, right?

Q. But you also made a note he may not recognize her, is that your handwriting?

Q. He may not recognize her, doesn't say her voice? A I see where it says her voice on my copy, here, can I show him?

Q. Don't recognize face on the right it says don't recognize face, did I read that correctly?

A. Okay. It says doesn't, doesn't recognize, it may say face. I am looking at the bottom line.

Q. Well, it's the only part of the line there there is one word says voice. Let me see if I can read your handwriting.

THE COURT: It would be helpful for me to get a complete understanding if you can raise that up just a little bit please, Attorney Coles.

Q. It exactly the way it was given to me by defense counsel.

Q. Last line is just exactly the way I received it.

Q. He may not understand her, doesn't recognize face. What's the next line?

A. I'm Mrs. G. I'm here.

Q. Then something blank her voice?

A. Hear her voice. I can't read the first word from this.

Q. Was your understanding at the meeting that was going to be scheduled next Monday that Jan Rankowski possibly would not recognize her, wouldn't recognize her face and wouldn't possibly recognize her voice, was that what you meant to say?

A. Say that again please.

Q. I am looking at your notes.

Q. You are setting up some kind of meeting for your assistant Virginia on Monday. She is going to meet the child at kid's world. He may not recognize her, doesn't recognize faces. I am Mrs. G. I am here, something, something voice, did I read that correctly?

A. I'm Mrs. Gilbert. I think it might say let him hear her voice. I am not sure what the first word is.

Q. Okay. Let's move on. On September 29 you wrote some instructions to Virginia Gilbert to follow Jan around and observe his activities, do you remember that?

A. I don't remember it specifically, but you probably have it.

Q. Let me show you what's been marked as Plaintiff's Exhibit 11. Is that your handwriting?

Q. These were instructions that you gave September 29 to Virginia Gilbert as to what she should do when she follows Jan around the playground?

A. These are not written instructions that I gave Virginia Gilbert. These are notes from when -- I did not hand this to Virginia as written instructions. This is what I verbally told Virginia to do.

Q. Okay. So after you verbally told Virginia you reduced it to writing so you would remember what you told her, right, this is your handwriting?

Q. Move to offer Plaintiff's Exhibit 11.

Q. So you told Virginia Gilbert on September 29 in terms of following Jan around the playground and observing him Virginia document each day. Did I read that correctly?

Q. Did I read that correctly?

A. You read the words. The inflection is different, yes.

Q. Next line down, don't be lulled into couple of weeks of calm, did I read that correctly?

Q. Don't talk to mom, did I read that correctly?

Q. Just watch kids and journal, did I read that correctly?

Q. Note who he plays with and what they do, did I read that correctly?

Q. And then the bottom portion of that exhibit is that you told lots of other teachers in the playground to also keep an eye on Jan Rankowski?

A. The bottom part? No.

Q. Right in the middle.

A. Middle part I was asked in the previous meeting, I'd have to go back and look, but I believe it was I think it was September 11 it was resolved that I would talk to all the fourth grade classes. It might have been the September 25 that I would talk to all the fourth grade classes about autism and specifically how to be a good friend to Jan, so in the middle where it has people's names and the dates this part here that's when I went into the fourth grade classes. I didn't, no, I did not ask people to keep an eye on Jan on the playground, not at all.

THE WITNESS: Okay. This has nothing to do on the bottom with asking people to watch Jan on the playground.

Q. You waited until the end of September to talk to for instance Marla's class at 12:40 about autism and Jan Rankowski?

A. We met on September 11. I don't know what day of the week September 11 is. If we could go back and check that, then we would know what day of the week September 15 is. It doesn't manlike too such time has passed in scheduling.

Q. It was your understanding that Virginia Gilbert or yourself would be following this child around for a number of weeks making these notes, is that correct?

A. I don't consider it following around at all. I really, I consider it making --

Q. Let me rephrase it.

A. We were providing support so that if there was any bullying, if anything else was happening that shouldn't happen on the playground we would know about it. We weren't necessarily following. I mean she could be someplace to watch him, but the whole purpose of her being out there was because there had been reports of bullying, and we didn't want that to happen, so I wanted her total eyes, total ears, total attention on Jan on the playground, not talking to other adults, not interacting with other people, just watching the kids. I really wanted to make sure she understood her responsibility was totally total eyes, total ears on the kids and the situation, Jan being one of the kids of course, because the report had come down there was bullying, so I'm not sure, you know, you can't say did they follow him. We are in a playground here, and I don't know if any of you are familiar with playgrounds, kids come and go, and if we are out there to monitor one kid we don't necessarily follow him, behind him. I may walk this way. I may walk that way, you know. I am monitoring the kid, so when you say follow I mean that makes it sound very different than monitoring the kids and hearing everything that's going on and seeing everything that's going on. To me that's very different.

Q. Let me interrupt you for one second, so it's your testimony that you weren't really observing Jan Rankowski, but you were observing all the children in and around Jan, is that correct?

A. The object was --

A. It's Jan and the people around him that we were looking at. He was the focus because the reports had come down about bullying, so what we wanted to do is look at what kids, the kids who play with him, if there is anything happening that they shouldn't be doing, if there is anything happening in his treatment of other people, so it really it's a two-way street when we monitor the playground.

Q. Don't be lulled into couple of weeks of calm, what does that mean?

A. Well, it means if I ask an ed-tech to do something and they sort of don't see, they may not realize that when things are going okay that's behavior too, that's what we want to notice. She may have thought that if things are going okay then she doesn't need to really keep track, but I really wanted her to make sure that if things are going okay we still keep track, because okay behavior is still behavior we want to be aware of. I don't want to just look at negative behavior. I want to look at all behavior, so ed-techs don't have the experience I 60 have. They would have a tendency if things are going well after a certain period of time, oh, well, everything is fine, and I wanted her to continue to get a complete picture.

Q. Also you instructed Virginia Gilbert don't talk to mom, mom being Gayle Fitzpatrick, correct?

Q. Okay. You understand that probably the mother and the professionals who take care of this child outside of school know this child better than anyone at the Plummer School?

Q. So it would make sense to want to talk to mom who is there at the playground with her son, is that correct?

A. Not while we are trying to watch the kids who are reportedly bullying him. I mean we welcome talking to Gayle if she is -- if there aren't other kids we need to be watching. I mean there were times certainly if that's an opportunity, but if we have our eyes and ears on the kids, and you have many kids. We are not talking Jan and one or two kids. Playgrounds are full. There are 180 kids out at a given recess. There is a lot of activity. I really can't engage with someone else if I really want my eyes and ears on that particular child because new ones come and go. Jan may be with child X. Child X may run away. Child Y and Z may come in. Those may run away. You have three new ones, and it takes a lot of concentration and a lot of work to really keep your full attention on everything that's happening.

Q. But what you were doing, Mrs. Katz, correct me if I an wrong, you were really documenting potential issues that you would be discussing with the school's child psychologist a month or two later as to Jan's behavior, is that correct?

A. That was not the intent.

Q. But that's what happened, wasn't it?

A. Repeat that please.

Q. You and Virginia Gilbert were following this child around documenting him as you say with these instructions ultimately it led to you talking to the school's child psychologist about Jan's behavior being issues, that was after he was suspended from the schoolyard, is that correct?

MR. COLES: I wonder if the reporter could read that back real slow so the witness can understand it.

THE COURT: She doesn't understand the question yet. Did you understand the question?

THE WITNESS: Yes, but I am not really sure of the time line when all this happened like I really don't, I don't recall when he was asked not to be on the playground. I don't have that date.

Q. Let me suggest to you that he was suspended from the playground based on a letter that Mrs. Crowell sent to the parents effective November 7, 2003, that's about five, six weeks after?

Q. November 7, 2003, that was five weeks after you instructed Virginia to follow him around and keep notes, correct?

Q. At some point you were asked to put together a summary of all the information that you and Virginia gathered so that you could discuss it with the school's psychologist, you remember that?

A. That was in order to begin to develop a functional behavioral assessment.

Q. But you understand that the PET notes, the notes of November 24, 2003 the mother was given the option of either doing an assessment or having the school set a meeting no later than February 12, 2004, do you remember that?

A. I recall that there was discussion that Gayle was going to sign the form and was going to deliver it back to the office, and there was discussion of where Polly's office is and dropping it off, so we realized that was going to come in the afternoon there was a lot of discussion that that would happen in the afternoon, and our school psych provider only works once a week. For me to get on his docket, and it was difficult to get on his docket working once a week.

Q. Your Honor, move to strike as nonresponsive. This is just the witness is giving a speech.

THE COURT: Quite frankly I am not certain what the question was that launched that.

Q. I will move on. I think that's the easiest way.

Q. I want to show you what's been marked as Plaintiff's Exhibit Twelve. This is also your handwriting, is it not?

Q. And this is basically a summary of the times that Jan Rankowski was observed by you or your assistant Virginia Gilbert from September 29 and the last date is appears to be November 14, 2003, is that correct?

Q. Move to offer Plaintiff's Exhibit 12.

Q. Exhibit 12 is a chronology of the times that you and Virginia followed the child around, right?

A. I will call it supervised on the playground.

Q. Well, these are written observations that you were making of his behavior, correct?

Q. The first notation 9, 29 this is Virginia, J R said someone hit him, did not happen, she was watching carefully, is that your handwriting saying that?

A. That is Jan said someone hit him, yes.

Q. Also September 29, K's offer to play with J I guess is Jan walked away?

A. K is an initial of a child, and Jan walked away.

Q. Was that an issue to you?

Q. There are numbers on the left-hand side 444, they go in the page, those are numbers that you put down when you spoke to the school psychologist in early December 2003, is it not correct?

A. Yes, I wrote them.

Q. Those numbers were based upon issues that you were discussing with the school psychologist as to Jan's behavior?

A. Those numbers designate the grades.

A. Grade three, grade four, grade one, that's when something, see, next to where it says K's offer to play, the four, that four means that that little girl K, I can't say her name I guess, is a fourth grader. That's what that means.

Q. There is a No. 4 also?

A. Three means third grade, the ones mean first grade.

Q. 10, 28 next line above it 10, 20 No. 4 next to 10-20, G said okay for J to run when bell rings, that's an issue No. 4 that you put down?

A. It had been an issue because not particularly, but I was concerned about it because Jan had been bumped when the kids were all running. When the bell rings they run in mass towards the building, and he had been bumped, and Gayle reported that, so I was a little concerned that if it had been an issue before that it could potentially become an issue, and we should sort of keep an eye on when the bell rings and they all run like crazy back to the building.

Q. 10, 28, used disrespectful words at third grade recess before one p.m. did I read that correctly?

Q. Yeah, 10, 28 used disrespectful words at third grade recess about middle of the page.

A. Oh, okay, I was on the 10, 28 on the next page.

Q. That was an issue to you too that he used disrespectful words at the third grade recess?

A. Second part is the issue to as, Becky wanted him to leave, refused, ran, the bench to the woods, eventually left with her, that's what was more of an issue, unresponsive to adults.

Q. You understand that autistic children can be unresponsive to adults?

Q. He was exhibiting autistic behavior, right, yes or no?

Q. 11, 7, swear, annoying to first graders, referring to me, don't have to listen to her, attempted explanation, walk away strategy, he reengaged, mom wanted explanation repeatedly, that was also an issue 1-3-4?

A. It was definitely an issue with first grade.

Q. That's autistic behavior, isn't it?

A. Uhm, do you mean the language, is that what you said?

Q. I am saying when he was annoying to other children?

A. No. He said I was annoying.

Q. Annoying to first graders referring to me, don't have to listen to her, attempted explanation, that's autistic behavior, is it not?

Q. Toward the bottom which you say is an issue 3-4 of the date of November 13 standing on teeter totter, wouldn't get off when I --

Q. November 13 he said piss off, right?

Q. Okay. Autistic children have a tendency to use an occasional curse word, right, yes?

A. Uhm, many children do.

Q. That's right, even nonhandicapped children occasionally will use a curse word, is that correct?

A. Not on the playground.

Q. You mean you have never heard a child use a curse word on a playground in 17 years at the Falmouth school system?

A. I have heard them use it, and they have always had consequences. They have always learned from it.

Q. So your answer is you have heard normal, quote, normal children use curse words on a playground in 17 years at the Falmouth school?

A. I can't specifically say, but it's certainly within the realm of possibility.

Q. Okay. Same date November 13 standing on teeter totter, wouldn't get off when I asked, did I read that correctly?

Q. That's autistic behavior, isn't it?

A. It's possible. It's also possible it's just to be unresponsive behavior.

Q. Correct, but it's also part of autistic behavior too, yes?

Q. Turn to the next page please. October 27 Jan Rankowski wasn't there, right, that's your handwriting, Jan absent, mostly raining?

A. Jan absent, misty, raining.

Q. Misty, raining, then there is a date where you say is an issue dated October 28 Jan left at 1:24, I greeted him, he grumbled, refused to greet me, walked away, did I read that correctly?

Q. Autistic children sometimes refuse to greet adults, they grumble or they walk away, that's autistic behavior, isn't it?

A. It's possible. The next part was the issue, the unresponsiveness to.

Q. Move to strike. It's not responsive to the question.

Q. 10, 29 Jan absent, windy, rained earlier, did I read that correctly?

Q. 10, 30 which you put down as an issue is V I R G I guess that's Virginia slash Jan jumping off at? A Jan jumping off at mazecraze, that's the name of the playground.

Q. Did I read that correctly?

Q. Child jumping off mazecraze can be either autistic behavior or can be nonhandicapped behavior, is that fair to say?

A. It's unsafe behavior.

Q. But all children do that, right?

A. Children have done it. It's unsafe, Yes .

Q. That's right. Autistic children jump off mazecraze and nonhandicapped children jump off mazecraze, correct, in 17 years you have been there?

A. I'd have to think about that. I can't say absolutely yes or no. I have not come across a typical child jumping off, but I can't say it's out of the realm of possibility. Barbara would know that more than I would.

Q. Barbara Powers, principal, is the one that spends most of the time in the play yard, is that correct?

A. No, because she handles all the discipline.

Q. You don't handle the discipline issues, that's reserved to Barbara Powers?

A. Of the typical children.

Q. Of all children, wouldn't Barbara Powers be responsible disciplining all 300 some odd children at the Plummer School?

A. Not necessarily. The way it works is the person who is on duty speaks to the child, whoever sees something, sees an issue, speaks to the child. If it's a major issue Barbara would deal with them. If it's asking the child to stop something, no, she would not say that.

Q. For instance if an adult teacher or teacher aid saw a child doing something in a playground that needed correction or was disobedient the adult would tell the principal, is that fair to say?

A. No, no. If the child were disobedient the adult would speak to the child. If the child persisted and persisted and persisted, which I frankly have not seen in 17 years, I expect Barbara would be notified, but if I am the person on duty or if I am the person who is even walking across the playground I see something happening that looks unsafe to me I would speak to the child, the child would stop.

Q. The five weeks that you and Virginia Gilbert were following Jan Rankowski around did you tell the parents that you were taking notes and observing him?

A. Gayle had asked us to observe him.

Q. The answer is did you tell the parents, Gayle Fitzpatrick, that you were going to be following the child around the playground, taking notes of his observations?

A. Are you asking me if Gayle, wait a minute, may I clarify this?

Q. Would you like me to repeat the question?

THE COURT: Sounds like she is not certain of the question. You can either reask.

Q. Did you tell Gayle Fitzpatrick or her husband Charles Rankowski that you would be following, you or Virginia Gilbert would be following her son around taking notes of what he was doing when he showed up at the playground?

A. Gayle had asked for us --

Q. Calls for a yes or no answer. Did you tell her that you would be following the child around?

MS. HEWEY: Your Honor, I think she is answering, she is trying to answer the question.

THE WITNESS: Okay, my answer is that Gayle asked us to provide support on the playground. That's why we were on the playground. Did I tell Gayle that I was writing down what I saw, is that part two of your question?

A. The answer to that is I did not specifically tell her, because to we it's common practice. I don't know if Debbie told you yesterday, but at Lunt School when a teacher is out at recess duty they all have clipboards. To me that was common practice. I was coming from the Lunt School head set of, you know, when you are out on the playground and you see 200 kids, and you have to make notes, you have to write it down, so that's where I was coming from with it. The notes keep accuracy. They really enable us to know exactly what happens. It separates reality to perception because we see a lot of kids. I mean third grade recess is only one recess. There are a number of recesses during the day, and if we write the information down we are able to keep track of what happens.

Q. Your answer is, no, you didn't specifically tell Gayle Fitzpatrick that you were going to be taking notes of her son for that five week period?

A. I did not specifically. I thought it was good practice. I thought that, you know, that that's what made sense, because we wanted to be accurate, and that's really the only way to be accurate is to write things down. Our memories can't hold every detail of every child.

Q. In fact if it's written down by you or another school official concurrently with when the event occurs that's an accurate recollection, is that fair to say?

MR. COLES: She testified everyone in the school system apparently walks around with clipboards making notes.

THE COURT: I will sustain the objection insofar as you are asking her about others, but you may answer that question insofar as it applies to you.

Q. When you take a note that's currently being done with when the event is taking place?

A. As close as I can, if I an talking to a child I can't be writing simultaneously.

Q. You may do it five, ten minutes, a half hour later?

A. Right. It's very close.

Q. October 31 Jan is standing on swing, mom spoke to him. Was standing on a swing an issue?

A. Yes, it's unsafe, and it's part of playground rules.

Q. In 17 years have you ever seen any other children standing on swings?

A. Uhm, rarely but, yes.

Q. It's unsafe to the child but to no one else, right?

A. Well, that's enough though if it's unsafe to the child.

Q. We talked about safety at your deposition, you remember that when you were sworn under oath at my office?

Q. And part of what you talked about safety was 200 children running like locusts at the end of recess, do you remember that testimony?

A. Yes, I do, when the bell rings.

Q. That's a safety issue 200 children running when the bell rings back to the school?

A. Uhm, it can be for some kids.

Q. Yeah, it can be a safety issue for a nonhandicapped child, can be a safety issue for a handicapped child, is that correct? There is a question out there. Do you have a answer?

A. I thought I answered it. I'm sorry. I thought -- you said something about is it a safety issue, and I said, I don't know. You want to back up on the whole thing.

Q. When 200 children run to the door at the end of the recess, be they handicapped or nonhandicapped children, it's a safety issue for everyone, right?

A. No, it isn't necessarily.

Q. Well, what if they bump into each other, is that the safety issue?

A. Most kids didn't have a problem with that. There are a few kids that do have a problem with that and they hang back. They go at their own pace.

Q. Handicapped children for instance that are in wheelchairs or on crutches or have cerebral palsy may have a difficult time?

A. No, no, no, no, no, we are not talking about kids with intense disabilities like that.

Q. You don't deal with those children?

A. I do, but I an talking about kids would hang back on the playground, kids with sensory issues don't like to get bumped. They would hang back, not run with the other kids, or they would go, they would know not go in the middle of the large crowd, go on the periphery where there is less action, less active. There is a huge variety, huge range in the world of disability, so kids who don't like to get bumped take care of their own needs.

Q. I want to show you what's been marked as Plaintiff's Exhibit, 13 have you tell me if that's your handwriting also?

Q. These were notes that you made on November 6, 2003, yes or no, November 6?

A. This is my handwriting, yes.

Q. November 6 upper left hand corner, is that correct?

Q. Move to offer Plaintiff's Exhibit 13.

Q. This was a meeting held at the Plummer School with Barbara Powers, yourself, Mrs. Crowell, a Tammy, a Lynn and Virginia, presumably Virginia Gilbert, is that correct?

Q. This meeting involved talking about Jan Rankowski, yes?

Q. And the very first part of the meeting was the day before he was banned from the schoolyard was your notes he is not allowed at third grade recess, was that your notes?

Q. And your notes also reflect that the meeting you had with these five people, we support you in your efforts to reduce Jan's noncompliant behavior?

A. No, this isn't meeting. Notes this is notes, my own personal notes that I was writing and drafting on, happens to be on the same piece of paper, but you saw there is a typed sheet that is another exhibit. I don't know the number that.

Q. We will get there. Let's talk about this exhibit.

A. These are not meeting notes is what I am saying.

Q. These are your own thoughts?

Q. It was your understanding that he was going to be denied recess play time because of his noncompliant behavior, we support you in your efforts to reduce J's noncompliant behavior?

A. I think of this more as notes to myself. I don't recall this as being the meeting notes. As I said I believe this is what were my own personal notes to myself in drafting that other exhibit. I don't recall these being meeting notes.

Q. Okay. Am I correct in assuming that these particulaar notes were in the bottom down where it starts we support you in your efforts all the way down are notes you made to yourself in anticipation of the November 24 meeting where you would be meeting with the mother to discuss the child's being banned from the playground?

Q. And I think part of your thoughts at the time was you want to provide a safe environment, is that correct?

Q. And you were also concerned that I guess Jan scares kids, when a student can be that defiant to an adult and nothing happens, so defiance, cooperation, that was one ct the issues you wanted to discuss?

A. Not necessarily. I think what we wanted, what I wanted to discuss on the 24th or the 23rd, I can't remember the date, was basically safety for everyone, safety for Jan and safety for the others.

Q. Okay, but I think your thoughts were when a student can be that defiant to an adult, you are talking about a child talking to an adult, that has nothing to do with safety, does it?

A. Oh, I think it does. I think it does. I think when a child -- can I keep going judge?

THE WITNESS: When kids are on the playground and if a child speaks really defiantly, rudely, however you want to call it, in a rather aggressive manner to an adult it's very frightening to the other kids on the playground.

Q. Well, you are assuming one that other children get frightened when another child is defiant, that's an assumption, correct?

A. I think it's pretty clear.

Q. Well, it's an assumption. Did you make any written notes of conversations that you had with any other children that played with Jan from the Playground where Jan was being defiant?

Q. In fact what you were concerned about was another child, defiance of an autistic child, is that fair to say?

A. No. I don't understand what you are saying.

Q. I want to show you what's been marked as Plaintiff's Exhibit 14.

THE COURT: Before we take up this particular topic area I an going to take a midafternoon break so the reporter can rest for a few moments. Take about a 10 to 15 minute recess, folks, thank you.

Q. Thank you, Your Honor. Just want to pick up some words you used when I was not taking notes, but correct me if I am wrong your note taking is important because it, quote, keeps accuracy, helps you keep reality from perception, do you remember saying that?

A. I think I probably said it differentiates reality from perception but that's close.

Q. But note taking is important when it's done concurrent here with the event?

A. As close as possible.

Q. Okay. Let me show you what's been marked as Plaintiff's Exhibit 14, a copy I do not have for defense counsel. I apologize.

Q. Start with upper left hand corner says Polly, is

that your handwriting, Miss Katz?

Q. This was a note that you made sometime after the child had been banned from the playground?

A. Well, unfortunately there is no date on it.

Q. But this is your handwriting, it involved Jan Rankowski?

A. It is my handwriting, and I would guess that it happened after our November 23 meeting.

Q. Move to admit plaintiffs' 14.

A. I an not sure of that, but I think that's the story.

Q. Move to admit plaintiffs' 14.

Q. Was there a meeting that you had with Polly Crowell, Caroline Crowell, these are just notes you made to yourself after talking with Polly Crowell?

A. I don't believe we had a specific meeting. I might have written this after we had spoken. I don't recall.

Q. The spoken might have been by telephone or in person, is that fair to stay?

A. It's possible. I don't recall.

Q. Were these your thoughts, or was this discussions that you had with Mrs. Crowell?

A. I think these, I think where it says I need a list of difficult behavior I think.

Q. Go ahead. I'm sorry.

A. I think that came from a conversation that I had with Polly.

Q. Okay. Let's go back to the top part of it where it says G needs to be available but not directly supervising him. I presume G is Gayle Fitzpatrick?

Q. Gayle needs to be available but not directly supervising him. Polly Crowell told you to somehow think or discuss with the mother that she should make herself available but not directly supervising her son?

A. No. I don't think this meant to talk to Gayle as I look at that, and I tend to think that that's something that Polly and I talked about as on the playground somebody would be available, but I am really not, I am not a hundred percent certain, sir, I really can't give you more specifics.

Q. Because the only G that I have seen in all your other notes refers to Gayle.

A. Yeah, the G does, but I am a little unsure of the specifics of the meaning despite the fact indeed it is in my handwriting.

Q. V would be Virginia?

A. G is Gayle, I am not denying that. I understand that.

Q. Gayle needs to be available but not directly supervising him. Was it your intention that Gayle Fitzpatrick be, let's say, in the parking lot, not directly watching or supervising her son?

A. I am not sure exactly what this paper, what that line is related to. I really can't give you more specifics.

Q. All right. Let's jump down to the next, your words, I need a list of difficult behavior and then swearing, rudeness to adults, undermining adult authority to others, not respecting staff and parent requests, is that your handwriting?

A. Yes, it is my handwriting.

Q. Let me ask you in your mind is difficult behavior meaning a direct threat to the health and safety of others?

A. I think difficult behavior is related to safety.

Q. Let we -- I will do it slow again so the reporter can get this. Was your notation of difficult behavior a direct behavior which is a direct threat to the health or safety of others, direct threat to the health or safety of others?

A. Well, I think these, it's more complicated than yes or no. Can I give a little bit more? Am I confined to yeses or nos.

Q. I would like a yes or no.

Q. Let me read to you, let me strike that. Teachers like everybody else have to obey the law?

Q. Okay. Let me read to you part of what is called the Unlawful Public Accomodations law State of Maine. For the purposes of the section the term direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, so by the provision of auxiliary aids or services, do you understand what I just read?

A. I do, but I would feel better having it in front of on frankly.

Q. Sure. I would be happy to show it to you. Your Honor, for the record it's part of our list of plaintiffs submissions, relevant statutes and laws which we submitted on August 10th, it's on Page 2. Would you like on to read it again for you?

A. No. I can read it. Thank you.

Q. Okay. Let me know when you are finished reading.

Q. You finished reading it, and the question is does difficult behavior, difficult behavior equal that behavior which is a direct threat to the health or safety of others which cannot be eliminated through policies, procedures, et cetera?

MR. COLES: She knows how to read English, Your Honor, the law is very clear as to what a direct threat is, and all she talked about, never talked about direct threats, all she's ever said is difficult behavior, and I want her to testify if difficult behavior equates to direct threats to the health, safety of others.

THE COURT: It sounds to me like what you are asking her is whether difficult behavior as it appears in her handwritten note is the same as direct threat in the statute.

MR. COLES: No. It's direct threat as commonly written in English I understand it's in the statute, but the law is the law. Ignorance of the law is no excuse. I want to know if that's a direct threat. Is difficult behavior a direct threat under the law?

THE WITNESS: I am feeling a little behind the eight ball because I don't have three years of law school under my belt. I am feeling a little put on the spot with that. I'm sorry. Can that be my answer? I am feeling like people who have been to law school have a huge advantage over on in that kind of question. It just makes me really uneasy.

Q. The record reflect the witness is uneasy. I went to show you what's been marked as Plaintiff's Exhibit 15.

A. Do you want this back?

Q. Plaintiff's 15 and she is putting down 14 we are now at Plaintiff's 15. By the way you were deposed under oath in my office, is that correct?

Q. And Plaintiff's Exhibit 15 was also a document that we produced at your deposition in my office?

Q. This is a document that you prepared in anticipation of the November 24 meting that I attended with Miss Fitzpatrick?

Q. Move to admit Plaintiff's 15.

Q. These were notes that you made to yourself, you call it a draft of script, 11, 24 PET service plan, did I read that correctly?

Q. You realize the November 24 meeting was to discuss the fact that at that point Jan had been banned from the playground for a period of about two weeks, and it was a meeting with the parent and other people to discuss him being banned, is that correct?

A. Well, I thought it was to write a service plan.

Q. Well, wasn't it your testimony at the deposition that you had never seen a service plan for this child?

A. But then I didn't quite understand.

Q. Yes or no prior to November 24 you had not seen a service plan for the child?

A. We had developed a service plan in September. When I had said I hadn't seen one I -- didn't understand what you were talking about, then I realized what we were talking about was the minutes from the September 11th, that was a service plan, because the words PET and service plan are a little confusing in this case PET is for a special education student within the school department. A service plan is for a home school student. Where Jan is both there is a little bit of terminology crossover so to speak, so when I said to you I didn't understand service plan I was thinking in terms of the PET meeting. You had called it a service plan.

Q. Well, the service plan was he can come to the playground, he can use the library, he can use the library books, correct, that was your understanding?

Q. Okay. The draft with the script Exhibit 15 before you, as I have reflected on Jan's noncompliant behavior on the playground I see it falls into three areas; unacceptable language, unresponsiveness to adults, undermining adult supervision of others, the next sentence, stay right with me, Miss Katz, these behaviors are not totally unheard of in children with autism or Asperger's, did I read that correctly?

Q. Therefore you would agree with me that unacceptable language, unresponsive to adults, undermining adult supervision of others is autistic behavior?

A. I said it is not totally unheard of. That doesn't mean it's autistic behavior. That to me that's very different, sir.

Q. These behaviors are not totally unheard of in children, but you have heard it in children with autism or Asperger's, right, yes or no?

A. I think there is more to that than a simple yes or no.

Q. No. I would like you to have a yes or no. You wrote these behaviors are not totally unheard of in children with autism or Asperger's, you wrote that, didn't you?

Q. So what you are saying those three categories of behaviors are behaviors you have seen in other children with autism or Asperger's?

A. I say it is possible and it is not unheard of, not unheard of is very different to me than common behavior. It's not unheard of which means it happens. It can be rare. It can occur. It doesn't mean it's by a matter of course it happens. Normally typically with people with autism it does not, but it's not totally unheard of.

Q. Mrs. Katz, that spin you didn't put in the next sentence, this is just possible, maybe heard about it, it could be, it could be not, you wrote these behaviors are not totally unheard of in children with autism or Asperger's. You didn't add any other sentence to that, did you?

Q. The problem lies in the fact that when there are other kids around who are responsible for we need to provide for a safe environment where they know adults are working to help the child change his behavior. Is that paragraph present to suggest that this is a direct threat to the health or safety of others?

A. I think that paragraph says exactly what it says, that when there are kids on the playground for whom we are responsible we need to provide a safe environment where they know that adults are working to help a child change his behavior or where adults are working towards making the playground a safe environment.

Q. Next paragraph, it is not safe the 180 children when one child can be that defiant and nothing happens. For all children to be safe immediate and direct intervention is part of the learning process, need to happen. Did I read that correctly?

Q. So if a child talks back, if a child curses, if a child is defiant that effects 180 children who are also at the playground at the same time?

A. It effects however many children are privy to whatever is happening. It's a large playground out there.

Q. Well, you didn't say privy to children or large playground. It is not safe to 180 children, isn't that what you wrote?

Q. Did you write 180 children?

A. Yes, I wrote this. This is my writing. I think we are kind of splitting hairs there.

Q. Move to strike the splitting hairs comment.

Q. I made a motion to strike the splitting hairs comment.

Q. Thank you. You remember June 29 being in my office raising your right hand and swearing to tell the truth?

Q. Okay. Do your notes of that five week period of observing Jan and also Virginia's notes, do they say anything about Jan throwing rocks or kicking or hitting another child in the groin?

Q. In fact none of the reports you have ever seen show any adult reporting that Jan threw rocks or kicked or hit someone else in the groin, is that correct?

A. Not myself directly. I think Barbara can address that.

Q. Your answer is you have not seen any adult records of Jan throwing rocks, kicking or hitting a child?

A. That is true, I have not.

Q. And your testimony at deposition was you don't remember anyone giving you instructions which you then relate as the instructions to Virginia Gilbert to follow the child around, you did this all on your own?

A. Again I don't call it following around. I call it supervising.

Q. Yeah, but you don't remember anyone giving you instructions to take these notes, to journal, to supervise, to observe, whatever you want to call it, no one gave you instructions?

A. Not that I recall, no, sir.

Q. Did you tell Jan's parents that you were meeting with the school child psychologist to discuss Jan's behavior?

A. Uhm, I thought that was discussed at the November 23 meeting. I thought we had said that we would set something up with George, and my recollection, although I can't absolutely swear, my recollection is that we had said we would set something up with George as soon as possible, and that Gayle would sign that paper and bring it over to Polly's office in the afternoon.

Q. Did you tell Gayle that you would be meeting or talking to the child psychologist about the behavior of her son?

A. Not after that meeting, that's what happened in that meeting so, yes, she was there but not, did I outside of that meeting? No, I did not outside of that meeting.

Q. At any time did you ever tell Gayle, your answer is no?

A. Not outside of that meeting. In that meeting.

Q. I am not asking you. Please stay with me Mrs. Katz.

Q. Did you ever tell from November 24 on, tell Gayle or her husband that you were going to be talking to the child psychologist about Jan's behavior?

MS. HEWEY: Objection. I think she said she told her during the meeting, and now his question from November 24 on I think is deceptive.

THE COURT: I am not sure she yet got to say what she said during the meeting. The question is whether at any time and I would take that to mean in the meeting or outside the meeting.

THE WITNESS: In the meeting it was discussed that that I would talk to the psychologist and he and I would be creating that assessment, and that happened in the meeting.
Are you asking -- ask me the question.

Q. Jump to the early part of December when you actually spoke to the child psychologist did you tell the parents you were actually going to be talking to the child psychologist?

A. I'm sorry. I lost my train of thought. In the meeting it was discussed.

Q. Please listen to my question. Let on rephrase it. In early December, not November 24, when you met or talked to the child psychologist did you tell the parents that you were going to be meeting with the child psychologist to discuss?

A. No, only on November 24.

Q. So when on December 4th two weeks later you spoke to the child psychologist you never told the parents, did you?

Q. You would agree with on that autistic children are difficult to deal with?

A. At times, some are, some are not, they are all very different.

Q. You remember testifying at deposition page 92 lines 9 to 11, question, do you +remember me asking you this following question, autistic children are on occasion difficult to deal with, is that true? Answer, sure. You remember giving that answer to that question?

A. Sounds like, yeah, sure.

Q. You would agree with me also the playground at the Plummer School shares with the Lunt School is mostly composed of wood chips and pea sized gravel?

A. I am not sure about the wood chips. I know there is a lot of gravel.

Q. Okay. Also you would agree with me that you and Tammy Paul the other special-ed teacher Virginia Gilbert never saw Jan Rankowski throw a rock?

MR. COLES: I did not mention those three individuals in that context this is the same question slightly different.

Q. Yes. Would you agree with me you, Tammy Paul and Virginia Gilbert in the five weeks that you were observing Jan never saw Jan throw a rook?

Q. You had discussions with Virginia Gilbert and Tammy Paul about their observations during that five week period?

A. I did not talk to Tammy.

Q. Virginia Gilbert tell you she never saw Jan throw a rock?

A. Virginia told me she did not see Jan throw a rock. You got me doing the Jan thing. I'm sorry. It's Jan.

Q. In fact you have never seen anything in writing in the fall of 2003 that Jan threw rocks, is that fair to say?

A. I personally did not see him throw a rock. I have no record of Virginia having seen him throw a rock.

Q. The question is do you agree with on that you had never seen anything in writing in the fall of 2003 that Jan threw rocks?

A. That's true, I did not.

Q. After the November 24, 2003 meeting was there any other meeting ever set up by the school district to address Jan being banned from the playground?

A. Uhm, at the November 24 meeting we had discussed having the form signed and then setting something up with Gayle to discuss the functional behavioral assessment, so the paper wasn't signed, nothing was set up to discuss the functional behavioral assessment, nothing happened, so we entered a holding pattern.

Q. Do you remember being asked the following question, giving the following answer at your deposition, page 104.

Q. Page 104 lines 1 through 4. Question, to your knowledge was another PET meeting convened on or before February 12th, 2004 to address Jan's suspension from the playground at the Plummer School? Answer, this November 24 one was the last one I'm aware of. Do you remember me asking that question and you giving that answer?

Q. Other than Jan Rankowski are you aware of any other child who has been suspended from the playground in excess of six months?

A. Well, that's not really my thing. I am not an administrator, as a teacher, no, but --

Q. Just calls for yes or no. So your answer you know no one other than Jan Rankowski has been suspended in excess of six months from playing on the playground, is that correct?

A. Can I say anything to you? Do I really have to do a yes --

Q. You would agree with me that as of November 12th that is five days after Jan was suspended you had never seen any specific playground rules in writing?

A. Uhm, I thought I had. They are certainly in the teacher handbook. I e-mailed the phys-ed teacher and I think I had seen playground rules.

Q. Page 114 lines 1 through 8, Miss Hewey, of your deposition, do you remember at your deposition me asking you the following question, you giving the following answers, question, as of November 12th, 2003 you did not have playground rules, and you were asking the physical education teacher to give you whatever information she had. Answer, I certainly had playground rules. I had not had them specifically in writing. Question, so you hadn't seen them in writing, and you wanted something in writing? Answer, right?

Q. Do you remember this series of questions and those answers?

A. Well, you are refreshing my memory.

Q. Did I read the question and answer correctly in terms of your deposition of June 29?

Q. I would be happy to show the witness page 114 lines 1 through 8. Read lines 1 through 8 which is what I have just read to you and in essence as of November 12 you had never seen any playground rules in writing and you were asking the physical education teacher to give you something in writing, is that correct?

A. Evidently that's what it says.

Q. That was your testimony, those were the questions and those were your answers, right?

Q. Yes, thank you. In terms of the Plummer School handbook you have no direct knowledge whether that handbook was actually given to Gayle or her husband, do you?

A. I thought it was given to her in June with a pile of textbooks.

Q. You thought but you are not sure, you are guessing, aren't you?

A. I can't do better than a very solid guess.

Q. Do you consider it an issue when a child doesn't get off a swing in a timely manner?

A. Uhm, it can lead to one.

Q. I am not sure I understand your answer. The question is is it an issue the way you use issues for a child not to get off a swing in a timely manner?

A. Well, it might create an issue if somebody else is waiting to get on the swing. It might not be an issue if nobody is waiting and nobody cares. You see what I mean. So it might be nothing, but then again it might be something if there are a bunch of kids who want to get on that swing and somebody is not getting off that may create an issue.

Q. Not getting off a swing in a timely manner is both an autism behavior and a nonhandicap behavior, is that fair to say?

Q. In terms of observations of misbehavior in the playground your understanding is that the principals of the schools use something called reflection sheets?

A. I know they happen. I don't know too such about them.

Q. Tell me what you know about playground reflection sheets.

A. I know Barbara's in charge of that.

Q. Tell me what you know about reflection sheets.

A. I know that if, if kids, uhm, have an issue on the playground that the teacher on duty feels is larger than they, uhm, if it's more than saying, you know, there are certain specific reasons why kids would have reflection sheets.

A. Physically harming another child.

A. Uhm, I would think defacing properties.

Q. Talking back to a teacher?

A. Uhm, I don't know actually.

Q. Bringing a knife to school?

A. I think bringing a knife to school gets you more than a reflection sheet.

Q. Have you seen reflection sheets?

A. I saw it at a faculty meeting when it was being introduced and it was passed around.

Q. How long ago was that?

A. I believe it was last fall, might have been the fall before as a matter of fact.

Q. It's only been in use for a short period of time, reflection sheets?

A. I think probably a couple of years. I don't directly use them, so I an feeling a little out of my league with this.

Q. That's something the principals would have the write up, is that correct?

A. No. I believe the principal writes it up. Some of them entail a phone call home after they have so many. Barbara can explain this whole procedure to you.

Q. No. I want you to explain it if you have ever seen reflection sheets?

A. It's a little out of my realm.

MS. HEWEY: Objection, Your Honor, she already said she is not involved with this. This is 3:30. This witness is going on. We have had no chance to put on our defense. I am a little concerned.

THE COURT: To respond you are going to get your chance to put on your case. It clearly isn't going to happen today at the rate we are going. I think to the extent you can answer the question you may, if you can't.

THE WITNESS: I think I got distracted with the question. What about reflection sheets did you want to know? I'm sorry.

Q. I will move on because we are running short of time. You would agree with me that when a child harasses or bullies another child that that's a serious problem?

A. It certainly needs to be addressed.

Q. No. Didn't ask you if it needed to be addressed. I an asking you if bullying or harassing of a child for instance in a playground situation is a serious problem?

A. Well, there is a range within that. I mean there are so many things that can happen on a playground, and there is such a wide range that some of it can be quite serious, and some of it may not be.

Q. You would agree with me that --

A. I think they need to be, if there is any degree of bullying it needs to be addressed. I am not sure every single degree is serious.

Q. Let me show you again page 131 deposition lines 12 through 14 let's go back to your deposition testimony line 12 question, would you agree with me that bullying in school is a serious problem? Answer, yes. o you remember me asking you that question and you giving that answer?

Q. Would you also agree with me, Mrs. Katz, that respect for other individuals, other students is something you would expect all students to comply with?

Q. And that students should be responsible for their personal actions in dealing with other students?

Q. They should be fair when dealing with other students?

Q. Are you aware of anything in writing given to the students at the Plummer or the Lunt School which involves ethical and responsible behavior of themselves?

A. I think that's stated in a handbook.

Q. Other than the handbook had there been any in-service lectures ever given to you or your staff on harassing and bullying?

A. Uhm, I believe, this was all stuff we talked about in the deposition.

Q. That's right. Let's talk about it again.

A. Okay. I believe there have been staff meetings where people have discussed it.

Q. In fact your testimony at the deposition was that about five years ago a guidance counselor gave you a lecture?

A. I said within the last five years. I didn't say five years.

Q. Within the last five years a guidance counselor gave a lecture about harassing and bullying, right?

A. I think there was a discussion in both buildings in the Lunt School and at Plummer about that.

Q. Did you ever give any lectures to your special-ed students in-school students about harassing and bullying?

A. They would have attended the faculty meetings.

Q. The children would have attended?

A. I thought you said the teacher assistants.

Q. No. You told we that within the last five years a guidance counselor had discussed with you bullying and harassing. My question to you is have you ever discussed it with your special-ed children the ramification of being bullied or harassed?

A. Frankly the students I work with are far too low functioning for this to be pertinent, except Jan.

Q. So you would not discuss being a victim of harassment with a child who could conceivably be a victim of harassment?

A. The other students I work with it really is, they are very low functioning students, and it's really not at all pertinent to them.

Q. But you have some students who are autistic or perhaps cerebral palsy or crippled who can understand what you say when you talk to them, isn't that correct?

A. Uhm, if you are talking about the students on my immediate caseload, is that what you are talking about?

Q. I am talking about the 40 some odd special-ed students at the Plummer, the Lunt School that you are the special-ed supervisor?

A. I am the special-ed case manager for six last year, not counting, I am not talking about Jan at all, considering him home schooled, so of the six, of the six children who I am the case manager for they are very, very low functioning. Some of them are nonverbal. Some of them are minimally verbal, so the whole concept of bullying to them is a totally alien concept. Basically the whole culture of Lunt and Plummer-Motz takes them on and befriends them and work with the typical population as special friends. It's just not relevant to this population.

Q. Okay. Nice speech, Miss Katz, but you supervise 40 approximately special-ed children at the Lunt and Plummer School, is that correct?

Q. You are only responsible for six children?

A. I case managed six children last year.

Q. Only six children, those were the only children that you took care of in the academic year 2003, 2004?

A. I case managed those six, yes.

Q. The other 34 children?

A. I don't know where you are getting the number 40 sir.

Q. There has been testimony by deposition that approximately 12 percent out of 2,400 students in the Falmouth school system are special-ed children.

Q. That would be approximately 280 children of which 40 of them are in the Plummer-Lunt School.

A. Okay. I understand where you are getting the numbers.

Q. Of the 40 special-ed children you take care of 6, who takes care of the other 34?

A. There are two teachers at Plummer-Motz who teach learning disabilities. There is a special-ed language therapist who works with kids with language disabilities. There is a behavior consultant works with students who are labeled behaviorly impaired. I think that would probably add up if you added their caseloads up.

Q. As the special-ed person between both schools you are the one who has been there 17 years and supervised the other special-ed teachers?

A. No, no, no, no, not at all.

Q. Who were they supervised by?

A. They are horizontal. All special-ed teachers on horizontal supervised by our building principals by the special-ed director, so we are on this layer. The teachers are on this layer, then we have time in two buildings. I am in Lunt and Plummer-Motz, so we have Debbie, we have Barbara, and Lunt and Plummer-Motz we have Polly also because she is that next horizontal, than the next step above Polly and Barbara and Debbie is Tim, so it's kind of this triangle. Tim's on the top, then you get the three administrators, then I am on the bottom of the other special-ed teachers.

Q. Let me ask a final question, you would agree with me that it's not an issue when a law abiding individual such as a child playing in a playground is bullied, is that an issue?

A. No. I think I told you it needed to be addressed.

Q. Don't you address those who are harassing and bullying rather than the victim?

A. Of course we would address the person who is harassing or bullying, this was the purpose of being on the playground.

Q. Was it Barbara Powers' decision to ban this child from the playground, it wasn't your decision, was it?

A. It was not my decision.

Q. Whose decision was it to ban this child from the playground?

A. I don't know, I don't know, sir.

Q. What it really comes down to is let's get rid of the victim so we don't have to deal with him, right?

CROSS EXAMINATION

Q. Thank you, Your Honor. Mora, you were on the playground on November 7 of last year, is that right?

Q. And let me, I am gonna hand you Defendant's Exhibit 11 and ask you to look 13 pages in.

Q. That's all right. Is that a copy of your notes of what occurred on the playground on November 7?

Q. When did you take those notes?

A. I would say within about five to ten minutes of leaving the playground.

Q. Okay. You carry paper with you, you just wrote them down?

A. I do carry paper with me because I'm between buildings and I have a lot of details.

Q. Okay. Could you tell the court what happened with respect to, what happened on November 7 regarding Jan Rankowski?

A. Okay, I was going across the playground, and I saw the tire swing at Plummer going very, very quickly, and I became concerned, so I went over and I saw that it was, as I approached I saw it was Jan and two first graders who were on this tire swing, so I told them that it was going way too fast, it was unsafe, and that it had to slow down or stop, and at that time basically simultaneously a lot of things were happening. The first grade teacher was standing at the top of the maze, and she saw this, and she started calling out that they should slow down and stop. Jan called me bastard, said I was annoying, da, dot, dot and told the kids that he didn't have to listen to me and put his fingers in his ears and went (indicating) I realized that, you know, there was a problem and --

Q. Where were you at that time? Where were you standing?

A. I was right near the tire swing, so I, I tried to stop the tire swing. One of the first graders fell off. I asked him to stay down.

Q. So just so we understand this now Jan is sitting on the tire swing?

A. I believe he was standing.

Q. He was standing next to the tire swing? A I think he was standing on the tire swing.

Q. He is standing on the tire swing, there is a first grader also on the tire swing?

Q. Okay. Two of them. You are standing about how far from the tire swing?

A. Like from me to her (indicating).

Q. From you to the court reporter?

Q. And then you reach out and try to stop it?

A. I asked the kids to slow it down, and Jan said, first he said, if my mom was here she would sue you. The first grade teacher called her kids, reprimanded the kids. He said, they don't have to listen. I started to have a discussion of speed and losing control, and Jan said something about talking over him. I walked away because I realized this just wasn't working, so I walked away, tried to disengage. Jan said that to the first graders that he didn't have to listen, and that I was annoying, then Gayle arrived. Becky was the supervising person. At this point Becky was standing over by the fence while this tire swing was kind of going so, so, so, so quickly. Gayle arrived and spoke privately with Jan. She wanted to know what happened. I told her that there was sort of two faults, the swearing and the kids indeed had to do what the teacher asked. So Gayle said, what's a swear? Then she gave me a list of three words. Is it asshole, craphead, bastard? She is saying, well, you know, some people think one's a swear, some people think the other is a swear. It's a swear, it's not a swear. It's different to different people. So Jan was saying you are talking over me, and Gayle was explaining that I should walk away, so I said, I had walked away and he reengaged. Becky concurred with, that, and Becky said, yes, she did, and then I realized that this was escalating a bit, and it was just not going to be resolved, so at that point I said that I had to go to the other school, so I left, then I was headed towards Plummer-Motz. I ran into Barbara as she was sort of coming up the little hill from Plummer, and she asked me to stay on the playground, so we were standing on the playground, and then I think Jan continued to have some difficulty, and eventually as he was leaving his parting words to me and Barbara were ignorant bastards.

Q. Okay. Now I want to change the subject for a minute. You testified with regard to Plaintiff's Exhibit Twelve let, me just find that in this pool of things here. You recall Plaintiff's Exhibit Twelve are your summary notes of the journaling by Virginia Gilbert and yourself?

Q. And you recall that W. Coles asked you a number of questions about some of the conduct on there, the swearing and the jumping off the mazecraze and some other examples that are on there, do you remember those questions?

Q. And you indicated that some of those behaviors are possible in autism, right?

Q. Now keeping in mind that, well, let me back up for a minute. You work with autistic kids, is that right?

Q. And keeping in mind that score of those behaviors that you talked about before are not uncommon or not unheard of in your experience, are there ways to address those behaviors so that an autistic child can interact successfully in a playground?

Q. Can you explain how those are addressed? A Okay. When an autistic child shows what we call negative behaviors the whole point is to decrease the negative behaviors, increase the positive behaviors, and the ways to do, there are a number of ways to do that. It's different for each child, but let me give you a few of those. Preteaching is absolutely crucial. We would go over with the child what the expectations are. Most autistic people are visual learners. We would write down for them perhaps some scripts of what they could say, what they could say if they ran into difficulty, maybe a smiley face on top so they know those are the list of positive things. I would also create a list of negative things, things we don't want the person to say, and put the big red universal X through the list of things you don't want the person to say, so preteaching with a visual is really important. There are social stories, this can be written, there could be multiple practices on the playground with perhaps one person setting up some role playing of positive behavior with expectations, negative behavior, what would happen, setting up the consequences. There could be some people may have a token system. For some people they don't.

Q. So when you are talking about this is it true that the plan you would work out for each child would be individually tailored to that child?

Q. And in your experience working with autistic children in your job have you had success using those plans?

Q. Okay. Now Jan had not been in the Falmouth school system for a year by the time you were seeing these things occur on the playground, is that right?

Q. And so did you have -- since you had not been working with him for a year did you have sufficient information to be able to put together the kind of plan that you had been talking about?

A. Well, we weren't working with him, and we didn't have that information, so that's really what was supposed to come out of this functional behavioral assessment, that's what the goal was was to create a plan so that the negative behaviors would decrease, the positive behaviors would increase, the playground would be safe and it would work for everybody, that's the plan.

Q. May I have one minute Your Honor?

REDIRECT EXAMINATION

Q. You talked at great length about an event that occurred on November 7th of last year, correct?

Q. But you secretly et on November 6, the evening, the afternoon before with Polly Crowell, Barbara Powers and you had already decided you were going to suspend Jan from third grade recess, had you not?

A. No, I am not sure where that's coming from.

Q. Part of your exhibit, let's take a look at.

A. This one, sir, it's right here, no, we had not decided that. He was not supposed to be at third grade recess because he was a fourth grader, that had been established earlier, then there was some discussion of the days that he would be able to come at third grade recess, but I don't think we established. I think we had talked about him as being a fourth grader. He had been in third grade recesses for some, yeah, I am not sure what he's not allowed at third grade recess, you know.

Q. That's your handwriting, isn't it?

A. It is my handwriting.

Q. Now November 7 you testified that you were in the schoolyard which is a place you are rarely at, is that correct, you are not frequently at the schoolyard?

A. I walk back and forth across the schoolyard a number of times a day.

Q. Your testimony is you saw Jan standing on the tire swing with two first graders going fast and you asked him to slow down?

Q. That was an issue, right?

A. Yes, safety issue.

Q. It's the only time you saw Jan standing on a tire swing, is that correct?

Q. It's the only time you saw him interacting with first graders?

A. I'd have to think about that one.

A. I am not sure if I had personally seen him with 124 first graders. I had not noticed. I know there had been some other concerns with first grade classes.

Q. Now you testified that you saw him put his fingers in his ears?

Q. That's the behavior of a four-year-old or five-year-old child, right?

Q. The answer is yes, that's the behavior of a four or five-year-old child?

Q. The Plummer School has students who are 8, 9 and 10-years-old, is that fair to say?

Q. Has some, even some students that may even be eleven, some slower students who have been set back, are you aware of that?

A. I am not aware of that.

Q. Jan's sticking his fingers in his ears is that autistic behavior?

A. Uhm, it appears to me to be sensory overload. I am not sure what else you want to call it. Some people with autism might have it.

Q. Autistic children do it and nonautistic children do it, is that what you are saying?

A. I think people do it who don't want to be involved in the environment at that given moment.

Q. Didn't want to talk to you?

Q. That was the message he was telling you, right? A That was definitely the message.

Q. In fact when he was saying you are talking over him?

Q. It was his way of saying leave me alone?

Q. And you felt that his swearing was being disobedient toward you?

A. No. I think the disobedient when I asked them to decrease the speed of that tire swing. My concern was the safety and the tire swing, not so much being sweared at. I mean, you know, that's a playground offense, but the serious safety issue is this tire swing going back and forth like this, that's what concerned me.

Q. Had you ever seen the tire swinging back and forth like you just described?

A. Not with first graders on it.

Q. Had you seen it with second graders?

Q. Seen it with third graders?

A. Probably third and fourth, but with first graders on it, no, it's substantially different, they are little. There is a huge difference between a first grader and a fourth grade size. Jan is a fourth grade size.

Q. Now you testified that the way you as a trained special-ed teacher handle this kind of autism behavior you have to increase positive behaviors and decrease negative behaviors, did I say that correctly?

Q. Other than throwing Jan off the playground that same day what did you do with Jan after November 7 to increase his positive behaviors and decrease his negative behaviors?

A. First of all I did not throw Jan off the playground on this day.

Q. Let me rephrase the question. Suggesting to you that the same day November 7 Jan was then off the playground, what steps did you take after November 7 to increase positive behaviors and decrease negative behaviors of Jan?

MS. HEWEY: Objection, he wasn't thrown off the playground, so the suggestion is inaccurate.

Q. Suspended, banned, prohibited from coming to the playground, it's all the same thing, Your Honor, if you would like me to soften my words after November 7.

THE COURT: Let me just be clear on this the words that you use have certain characterizations she may not agree with. Perhaps a neutral word is not allowed on the playground. I am going to decide all of the issues of banishments, suspension, discrimination and the like.

Q. Thank you. I will rephrase the question.

Q. Suggesting to you as of November 7 Jan was suspended from using the Plummer playground, he can no longer show up and play during school hours at the playground. What steps did you take after November 7 regarding Jan to increase his positive behavior and decrease negative behavior?

A. The school made an attempt to start the functional behavioral assessment.

Q. Other than that, other than the school suggesting that he, Jan be again assessed, what steps did you take to improve his positive behavior or decrease negative behavior?

A. Well, I made -- with the psychologist we began an early draft, so we would be ready to be implementing, to be implementing the functional behavioral assessment which would give us the information to create a plan that would decrease the negatives, increase the positives.

Q. But you knew in early December 2003 that the parents were not going to approve another assessment of their child, you knew that, didn't you?

A. Well, actually --

Q. Yes or no you knew that?

A. I had been told Gayle did not sign the form.

Q. That's right. If she didn't sign the form authorizing an assessment she did not approve of further assessment, right?

A. We thought that might change because we really, we thought there was a reason that it was taking a longer time.

Q. You thought she might change her mind, so that in your mind gave you authority to talk to the child psychologist without informing the mother, right?

A. I didn't want too much time to go by. We had talked in November. The time was of the essence. We wanted it done quickly. When George only works one day a week we could get together on December 4th I jump at the opportunity frankly because then you figure the next week I didn't know if I could get in there. As it turned out he said he was busy, and then we are getting into vacation, then we are getting into January, so if things had changed I just wanted to be ready.

Q. But nothing had changed, the mother was quite clear she did not want another assessment other than the nine inches of assessments the school already had, is that correct?

A. We have no way of knowing that except historically looking at it. I mean at the time I didn't know that that would change.

Q. At any time prior to December 1st, 2002 had you read the nine inches of prior assessments done on this child?

A. I read some of them. I read the ones that I had. I don't know if I had nine inches. Whatever I had I read.

Q. In fact there were some that Polly Crowell had in her office that you might have not had, yes?

A. All I can tell you is I read whatever I had.

Q. You understand that this child was assessed every month at a wrap meeting?

A. I don't know what those wrap meetings were because Gayle opted for me not to be at them.

Q. Didn't she attend, you attend wrap meetings?

A. In the September 11 meeting she did invite me, and then Polly told her that my tie would come out of that thousand dollar payment, so Gayle opted for me not to be there and for me to receive the minutes instead.

Q. So you would only go to a wrap meeting if you would be paid from the thousand dollars that was reserved for Jan Rankowski?

Q. You would be paid in any case?

A. No. I mean I wouldn't personally get paid, but that would come out of the school money. It's not like she is gonna pay me individually.

Q. You would still get paid, wouldn't you, you would still get paid for attending a wrap meeting?

A. Wait a minute. Let's back, I need to back up on this, judge, this is getting a little confusing. Can I back up just for a second? At that September meeting there was discussion that Gayle wanted Greggus Yahr to do a evaluation or Julia Donald to do it. I don't know her. That would come out of the thousand dollars. There was discussion of e attending the wrap meetings. Polly said I too would come out of the thousand dollars. No, not into my pocket so I could go to Shaws and spend the money, but I assume back to the school department, yes, I do get paid no matter what by the school department, so the extra money that I would be getting would go straight to the school department. Gayle opted not to have that happen, and to just send me the minutes, and I got the minutes of October 20.

Q. Are you telling this court that you have never been invited to attend a wrap meeting?

A. There was the discussion to attend a wrap meeting, but then when Gayle found out in that September meeting that it would be costing part of the thousand dollars she opted for me not to go, that's what I am telling the court.

Q. Miss Katz, if I had cerebral palsy, I wanted to take a book out of the Falmouth Public Library, is it okay for the librarian to tell me you can only come back when you bring a written assessment from a psychologist that I pick?

MR. COLES: I would call Barbara Powers. Five minutes to four do you want to continue Your Honor? My direct examination of Miss Powers will take about 45 minutes.

THE COURT: Take a recess, let me see counsel in chambers, let's discuss the scheduling of this. Thank you.

(Whereupon, the proceedings were concluded at 3:57 p.m.)

(This transcript was scanned from a certified copy of the original and converted to text using OmniPage Pro 14.)

State of Maine, Cumberland ss
Superior Court Civil Action Docket No. CV-04-98

Gayle A. Fitzpatrick & Charles Rankowski, individually and as parents of Jan Rankowski, a minor, Plaintiffs
vs.
Town of Falmouth, et al., Defendants

Appearances:
On Behalf of the Plaintiffs: Ronald R. Coles, Esq.
On Behalf ot the Defendants: Melissa A. Hewey, Esq.

Transcript of Hearing, 23 August 2004 before Thomas E. Humphrey, Justice

8. TESTIMONY OF MORA KATZ

DIRECT EXAMINATION

CROSS EXAMINATION

REDIRECT EXAMINATION

State of Maine, Cumberland ss Superior Court Civil Action Docket No. CV-04-98

Gayle A. Fitzpatrick & Charles Rankowski, individually and as parents of Jan Rankowski, a minor, Plaintiffs vs. Town of Falmouth, et al., Defendants

Appearances: On Behalf of the Plaintiffs: Ronald R. Coles, Esq. On Behalf ot the Defendants: Melissa A. Hewey, Esq.

Transcript of Hearing, 23 August 2004 before Thomas E. Humphrey, Justice

8. TESTIMONY OF MORA KATZ

DIRECT EXAMINATION

CROSS EXAMINATION

REDIRECT EXAMINATION

State of Maine, Cumberland ss
Superior Court Civil Action Docket No. CV-04-98

Gayle A. Fitzpatrick & Charles Rankowski, individually and as parents of Jan Rankowski, a minor, Plaintiffs
vs.
Town of Falmouth, et al., Defendants

Appearances:
On Behalf of the Plaintiffs: Ronald R. Coles, Esq.
On Behalf ot the Defendants: Melissa A. Hewey, Esq.