neurodiversity.net | testimony of barbara powers, rankowski v. town of falmouth

(The following matter was heard before the Honorable Thomas E. Humphrey, at the York County Courthouse, Alfred, Maine, on August 27, 2004 at 10:07 a.m:)

MR. COLES: Your Honor, in anticipation of part of our closing argument we had discussion in chambers about two of the issues you wanted us to talk about. I prepared just a very short two page paper on mootness, and I have given a copy to Miss Hewey.

THE COURT: Thank you. Again I will apologize in advance for popping throat lozenges during this. I mean no disrespect to the proceedings. Otherwise I won't be able to talk. Attorney Coles, I think when we adjourned on Friday you were about to call your next witness.

BARBARA POWERS, after having been first duly sworn, testified as follows:

DIRECT EXAMINATION

Q. You are Barbara Powers?

Q. And you are the principal of the Plummer School in Falmouth?

Q. And the Plummer School is third and fourth grades, is that correct?

Q. Children ages 8, 9 and 10?

Q. You understood that Jan Rankowski's service plan included basically his use of library books, the use of library and the use of the playground, is that fair to say?

A. It's fair to say along with some other support materials for fourth grade.

Q. Was Jan ever a problem in the library?

Q. You are also familiar with so-called middle school in Falmouth?

Q. That's across the street from the superintendent's office?

Q. It does not have a playground similar to the Plummer School that has slides, swings, teeter totters, is that fair to say?

A. That's fair to say.

Q. In September, October, November of last year did you ever observe Jan Rankowski throwing rocks? A Not personally.

Q. Your answer is no?

Q. Did you ever observe Jan Rankowski hitting another child?

Q. Did you ever observe Jan Rankowski kicking another child?

Q. Has any adult in the employ of the Falmouth School District ever reported to you during that same period of time that they observed Jan throwing rocks?

A. No adult did, no.

Q. Did any adult in the employ of the Falmouth School Department same period of time report to you that they observed Jan hitting another child?

Q. Your answer is no?

Q. Did any adult in the employ of the Falmouth School Department say the period, same period of time report to you they observed Jan kicking a child?

Q. Do you ever receive any communications verbal or in writing or e-mail from Jan's parents that said that Jan threw rocks or kicked or hit other children?

A. From his parents, no.

Q. You would agree with me that rock throwing and hitting in a playground are serious events?

Q. And if you saw a child doing that you would have the child fill out a reflection sheet?

A. That would be the first step, yes.

Q. Reflection sheet is, it's a format that you create so that the child could account for his or her behavior in the playground?

Q. And you would have the parents sign off?

A. After the child completed their reflections on what happened there are three questions on a reflection form they are asked to describe what happened, how their behavior effected someone else, and what they would do another time.

Q. Good idea. It's a way to get the child responsible for their behavior?

A. Yes, then the parents sign after that.

Q. Because you want the parents to also see what the child has done, then you also make a little notation whatever punishment is involved, is that correct?

Q. As the principal of the Plummer School you are the chief disciplinarian, is that fair to say?

Q. You don't have a vice principal who assumes those duties, do you?

Q. Was there ever reflection sheet done in the fall of 2003 on Jan Rankowski?

A. No, there was not.

Q. In the fall of 2003 are there any incident reports, that is correspondence, forms that you would fill out to either the superintendent or the State of Maine wherein you inform them that Jan Rankowski threw rocks?

A. I don't complete incident reports by policy the only incidents we record are when we are required and use therapeutic hold.

Q. Are you aware of any written reports,

correspondence, your awareness, are you aware of any written reports or correspondence to any supervisory person at the Falmouth School Department or the parents of Jan or to the Woodfords Services involving Jan the fall of 2003, him throwing rocks?

A. Are you talking about formal reports, Mr. Coles?

A. The written reports that I work with in 90, 95 percent of my work with children are my logs, my informal notes I keep in my office.

Q. So you are not aware of any formal notes being sent to supervisory people?

A. That's correct, no formal reports.

Q. Okay. None involving Jan throwing rocks?

Q. None involving Jan hitting another child?

A. Not formally, no.

Q. None involving Jan kicking a child?

Q. I want to show you what's been marked as Plaintiff's Exhibit 17 which is also Powers Exhibit 4. Do you remember these were the so-called reflection sheets which you submitted at your deposition?

Q. For the time being just ignore the yellow tags. Those reflection sheets we talked briefly about are the behavior sheets which you discuss in terms of the three questions, the child writing it out, parent signing off, and then the punishment being meted out?

MR. COLES: It's part of the deposition transcript. It would be Exhibit Four to the deposition of Barbara Powers. I didn't copy it for you because it was extremely lengthy. I would move to introduce Exhibit 17 which is the same as Powers Exhibit 4 of the deposition.

MR. COLES: I would appreciate defense counsel not touching the yellow post-it notes on the side.

MS. HEWEY: Your Honor, I have no objection to admission of this exhibit. I do think that there are a couple of pages where the names of students and/or parents may inadvertently not have been redacted, and I would just ask that before this becomes a part of the record that we check to make sure that all redactions have been made.

THE COURT: Just so that I am clear these are reflection sheets by other students, that is students enrolled at the Plummer School?

MR. COLES: That's right, reflection sheets kept in the ordinary course of business by the school.

THE COURT: Hearing no objection I would admit subject to 17 caveat that must be redacted before it's accepted.

Q. Miss Powers, let's go real slow through reflection sheets. I put yellow post-it notes on the side of some 17 reflection sheets.

Q. Let's go to No. 1 reflection sheet dated May 20, 2003.

Q. It's a boy who wrote, got angry at two boys and punched one, did I read that correctly?

Q. Okay, and you signed off, and the parent signed off?

Q. What was the punishment for got angry two boys and punched one, would be the next page?

A. Let me look at it for a moment.

Q. Please. The very next page after tag No. 1.

A. I would like to take a moment to explain that the punishments are a result of a behavior rubric we have so-called level two behaviors.

Q. I understand that. I am just talking about the behaviors.

A. I understand punching calls for a three recess time out when that situation happens.

Q. That child, all of these reflection sheets are in-school students, is that correct?

Q. Tag No. 2 is October 11, 2003 reflection note from a child saying I was not being nice, talking rude?

Q. To an adult. Being rude to an adult was how many time-outs?

A. Consequence was reflection sleet and a recess time-out.

Q. What's the difference between a time-out and a suspension?

A. A recess time-out is a very short suspension. It means the child is not allowed to use the playground for the period of time specified.

Q. That's a time-out. How does that differ from a suspension?

A It doesn't really. They are not allowed access to the playground. Time-out happens through a seat time in my office.

4 Okay. So the time-out is the child sits in your office rather than going outside?

Q. And a suspension, how would that punishment be meted out?

A. A suspension is generally described it's a longer time frame than the one through three day recess time-out, and that would also involve seat time in my office or perhaps with a social worker or counselor talking about their reentry to that play area.

Q. I am a little confused. The time-out is one or three days sitting in your office, and suspension is one or two or three days sitting in your office maybe with a social worker?

A. It could be such longer than one or two or three days.

Q. Okay. Suspension could be ten days, two weeks, two months?

Q. Do you know of any in-school student in the academic year 2003-2004 who was suspended from playground use for seven months?

A. Not an in-school student suspended for seven months, no.

Q. Would you turn to tag No. 3 please. Tag No. 3 is an incident of a child bringing in a knife to school and lying about it?

Q. It would be about four pages after reflection sheet dated 1, 28, 03.

Q Let me ask a question first, okay. Tag No. 3 is a child bringing in a knife, you confiscating it, and the child lying about it, correct, yes or no?

A. It was not a knife.

A It was a tool that his father used around the house that happened to have a very, very, very small blade as part of the tool. The parents were not aware there was a knife in the tool.

Q. Would you take a look at tag No. 3. By the way is this your handwriting?

Q. Called mom and dad, dad picked her up, reflection sheet, slash, lying knife, consequence, apology and three days of no recess, is that correct?

Q. That was the punishment?

Q. Turn to tag No. 4 please. That's a child who threw another child down at the playground?

Q. It's an event this occurred on February 26, 2003?

Q. And the punishment meted out for that was one recess time-out, is that correct?

A. That's right, unwanted physical contact.

Q. Tag No. 5 this is a child hitting another child in the head on an event that occurred December 13, 2002, is that correct?

A. Unwanted physical contact, yes.

Q. And the punishment was lost one recess, is that correct?

Q. Tag No. 6 this is a child pushing another child during recess time occurring on March 12, 2003? A Tag No. 6 I am reading the apology that child wrote to the other child.

Q. Let me see if I am reading it correctly. One, this is what I did, I pushed so and so when we were playing a game, did I read that correctly? A

I'm sorry. I am reading tag 60, an apology note the child wrote.

Q. I may have mistagged it.

A. This was apology after the hitting situation. 3, 12 if moving through this that's not chronological.

Q. Let's move on. Let's move to No. 7, tag No. 7, it's an event that occurred September 20, 2002? A Yes, I have that one.

Q. It's a child kicking another child at recess? A Yes.

Q. And the punishment was three recess time-outs?

Q No. 8 please it's an event of November 25, 2002 where a child said he would kill another child, right?

A. Let me read the context briefly.

A. Interestingly enough in order to understand this I would like to explain briefly.

Q. No. I wonder if you could just answer my question. From your recollection of this sheet does this involve a child who says he was going to kill another child and the punishment being loss of two recesses?

A This was another child with Asperger's who was distraught and said he would do that, yes.

Q. And he lost two recesses, right?

A. The consequence was modified for the situation, yes.

Q. Is this your handwriting?

Q. Consequences reflection sheet loss of two recesses?

A. Yes, it was and informal risk assessment if you will notice please.

Q. Informal risk assessment with Leslie and Sue. Who are Leslie and Sue?

A. Leslie Fitzgerald is our behavior consultant works with this child. Sue, I am trying to think who I was referring to with Sue. Sue must have been the ed-tech that was working with this child at the time.

Q. But you are not sure?

A. I am not remembering Sue. I'm sorry.

Q. What's the difference between an informal risk assessment and a formal assessment?

A. Formal risk assessment involves our school psychologist and a lengthy interview with the child and his parents to determine whether or not there is enough risk presenting that they should not return to school for a period of time.

Q. Turn to tag No. 9 please. This appears to be a December 2002 events where a child hit someone on the head, is that correct?

A. Not sure if I am reading head or hand but, yes.

Q. This is what I did, in child's handwriting, I hit someone on the head or hand?

Q. Okay, and what was the punishment there?

A That situation happened on the 18th of December. He was on the playground until January 2nd, and the ed-tech Jane or Leslie Fitzgerald once again the behavioral specialist called home. Again this is a child with IEP. There is a modified response.

Q. Between December 18 and January 2nd most of that time is consumed by Christmas vacation, isn't it? A We were actually in school.

A. January, let's see, January 2nd was their return. We were in school until December 22nd or 23rd.

Q. So he was really out three or four days, is that correct?

Q. Turn to tag No. 10. This is an event that occurred on February 24, 2003 where a child said bad words?

A. Said bad things, yes.

Q. And his punishment was two recess time-outs? A Yes.

Q. That's your handwriting?

A. Yes. Let me just read again my comments that I wrote. This is another example of a modified situation.

Q. Yes, and in fact you put the term harassment in your handwriting on the bottom, did you not? A I did, and the reason that I did --

Q. The answer is yes or no that's your handwriting when you said harassment?

A. It is. It's a modified response, Mr. Coles.

Q. Harassment and bullying of a student are serious matters, are they not?

A. They absolutely are.

Q. Tag No. 11 an event that occurred on January 2003 where a child pushed other children during recess?

Q. What was the child's punishment for that event?

Q. Lower right-hand corner.

Q. When you say recess time-out that's one recess time-out, right?

Q. Tag No. 12 this is another child pushing and punching another child, events that occurred around January of 2004?

Q. Punishment on that was a recess time-out, right?

A. That's right. Our behavior plan --

Q. There is no question out there, Mrs. Powers, just stay with me. No. 13, are you with me?

Q. That's an event of September 24, 2003 where a child threw a rock at a kid, right?

Q. Threw rocks at a kid, multiple rocks, is that correct?

Q. That child was not Jan Rankowski, was it?

Q. Some other child, yes?

Q. And what was the punishment or recess time-out, did I read that correctly?

Q. So if you throw rocks, pea sized rocks at another child you get one recess time-out at least reflected by this sheet, is that correct?

A. In the context of the comments would make a little wort sense to you but, yes.

Q. Thank you. Tag No. 14.

A. That's a hard one to read.

Q. A little hard, a little dark. It's an event around February of 2004 where a child punched another child?

A. Right. This is not my writing.

Q. But it's someone's writing?

Q. This appeared in your records, right?

Q. Okay, and the punching incident reflected by this note February of 2004 what was the punishment there?

A. It's hard to read. Let me see if I can pick it up. I can't read it, Mr. Coles, I'm sorry.

Q. Let's move onto No. 15. No. 15 is an event that occurred around January 2004?

Q. Where a child hit another child?

Q. And what was the punishment there?

A Recess time-out, an agreement to move on a referral, that was something by our social worker.

Q. Recess time-out, right?

A. Yes, and a referral.

Q. That's one recess time-out?

A. And a referral, yes, thank you.

Q. It doesn't say anything, agreed to move on the referral, what does that mean?

A. It means this is a family where we were trying to wove to have a referral happen around these kind of incidents that apparently were becoming a pattern, and they had, they had not chosen to go with a referral, but with this other incident and our social worker calling it to dad's attention again they agreed to the referral.

Q. Okay. Again the hitting incident was one recess time-out, and then you took other steps, is that fair to say?

Q. Tag No. 16 this is a child who kicked another child, an event that occurred in February of 2004?

Q. And the punishment was three recess time-outs, that is sitting in your office for three days?

A. Yes, and an apology to the child she kicked.

Q. And finally is it your policy, Mrs. Powers, to exclude parents from the playground during recess time?

A. It's my policy to exclude parents during the recess time. If they checked in at the office occasionally they will go out and make a contact with their child. So it's not my policy to exclude parents of Plummer-Motz students, but it is my policy to exclude all other playground use during school, yes.

Q. Understood. You would not be excluding, at least before Jan was banned on November 7, you would not be excluding the mother or the child's adult caregiver from being in the playground?

Q. If a mother desired to come in and be with her child during recess time would you give this kind 24 of permission?

A. It happens from time to time.

Q. It's not unheard of?

A. It's not unheard of. It's unusual though.

Q. Last tag No. 17 this is where a child pulled someone else's, another child's neck?

Q. Pull on the child's neck?

A. Pulled someone's neck it says, yes.

Q. Happened March of 2004?

Q. And your handwriting on the right there was some recess ideas essentially to allow the mother to come and participate during recess during certain days of the week with her child?

A. This had again been a --

A. That's not a good answer to this one, Mr. Coles.

Q. Let me read your handwriting 3, 26, recess ideas, Tuesday, Wednesday, Friday, mom can come play with him, did I read that correctly?

A She thought that might be helpful to him as she was trying to work through with us score patterns of behavior, yes.

Q. It's your handwriting?

Q. Okay. Of the 17, 16 children we just talked about how many of these children were home schooled?

Q. I think you talked about one or two being autistic children, in-school students, is that correct?

A. I spoke about one who is on the autism spectrum, and others who have other kinds of IEPs that cause modified responses to behavior.

Q. Okay. You were here during the testimony of Mora Katz?

Q. And you heard Mora Katz testify as to a meeting which was held between her and you and Gayle Fitzpatrick on September 25 of last year?

Q. And that was a meeting where Gayle Fitzpatrick came in to discuss her son being harassed and being bullied by other students on the playground?

A. That was not what initiated the meeting.

Q. But that was part of the discussion, was it not? A Yes, it was, I initiated the meeting.

Q. Correct. And part of what Gayle Fitzpatrick told you was that her child was being harassed and bullied by other students on the playground, yes?

A. That was part of the conversation.

Q. Yes. And you also saw as part of an exhibit Mora Katz' notes of that meeting which has been put in evidence, do you recall her note?

A. Somewhat. Q If I can just have that exhibit.

Q. Thank you, Your Honor. Plaintiff's Exhibit, the notes of Mora Katz of November 25.

A. I have my own notes from that meeting if that would be helpful.

Q. No. Let me just get Mora Katz' notes. Thank you very much. Do you recall if on September 25, 2003 --

Q Plaintiff's Exhibit Ten, thank you, got it, Your Honor. I want to show you what's already in as Plaintiff's Exhibit 10 which is Mora Katz' notes which she says she records everything. Is there any discussion on September 25 about rock throwing on September 24 the day before?

A. They were in my notes, not hers.

A. They are not in Mora's notes.

Q. Was there any discussion on September 25 about rock throwing of Jan?

Q. That is information that you got from three children, right?

Q. That's hearsay, right? You yourself never saw Jan throw any rocks, correct?

Q. How many years have you been in education?

Q. Have you ever heard any eight, nine or ten-year-old children tell untruths?

A. Yes, I would say I have. I also have ways to discern when it's untruths or not.

Q. Your method of discerning untruths, is that a hundred percent accurate?

A. In my experience I can understand better the credibility of a child when I complete an investigation, yes.

Q. Well, the question is are you a hundred percent accurate in ferreting out children who lie?

A. I'm pretty close.

Q. 99 percent accurate, 98 percent accurate?

A. I'd like to think a hundred, but I am pretty close.

Q. Do you remember an incident when Gayle Fitzpatrick was returning library books at the Plummer School and you had three, your, three of your assistants follow her to the library, do you remember that?

A. I don't believe that to be true.

Q. That never happened?

Q. Do you remember her -- strike that. How many times did she come to return library books at the Plummer School library?

A. I have in record two library visits.

Q. And do you recall that any one of those library visits you instructing one or more of your aids to follow Gayle Fitzpatrick as she went to the library?

A. I will tell you exactly what happened.

Q. The answer is do you recall on either one of those occasions?

A. The answer is it was me, it was not anybody I assigned.

Q. So you followed Gayle Fitzpatrick as she was returning books to the library?

A. Simply to remind her that she had forgotten to check into-the building. This was the only reason I followed her to the library, wanted her to please check in when she entered the building.

Q. You had seen her before, had you not?

A. Yes. All visitors are asked to check in when they enter the building. It was nothing personal.

Q. I want to show you what's been marked as Plaintiff's Exhibit 27. It's a letter dated November 14, 2003 to you from Gayle Fitzpatrick. o you remember receiving that letter?

Q. Okay. I move to introduce Plaintiff's 27.

Q. Plaintiff's 27 made it quite clear to you that Gayle Fitzpatrick was concerned about her son being suspended from playground use unless there was a serious safety issue involved. Did you understand this to be the basis of the letter?

A. I read the basis is that she asked staff to not interfere with her son unless a very serious safety issue was involved.

Q. But you understood that?

A. That was her request. I didn't necessarily agree with it, but it was her request.

Q. And she also brought to your attention in her conclusion him being banned from playground was a violation of the unlawful public accommodations statute?

Q. She also makes reference to you sitting down with the child telling the child to leave when the child was crying, did that event actually occur?

Q. Do you have any specialized training in autism, Mrs. Powers?

A. No. I am just in charge of that playground.

Q. You're the authoritarian, you're the disciplinarian in charge of the playground, 31 right?

A. Among many roles, yes.

Q. And when you are there it is your playground, right?

A. I am responsible for all the children's safety, yes.

Q. You understand that the playground is owned by the town of Falmouth, not Barbara Powers?

A. I understand that they have charged me with keeping all children safe during school hours.

Q. Yeah, but you understand you haven't answered my question, that the playground is owned by the Town of Falmouth?

Q. You are there normally Monday through Friday?

Q. You are not there Saturdays or Sundays, are you?

A. Well, too often I am, but I an not on the playground.

Q. Okay. In fact Saturday or Sunday would not be a normal time for you to be at the playground?

Q. After Jan was banned from the playground on November 7 there was a period of time when Jan and his mom just never showed up at the playground, is that fair to stay?

A. After we asked to reconvene a service plan meeting and we asked that they not be there until we had a tighter plan they came back anyway at least once, I think twice.

Q. You are aware of the Debbie Johnson e-mail that says we got to keep an eye on this boy in reference to our kids, you have seen that e-mail?

Q. Did you have any conversations with Debbie Johnson on or about or before September 30, 2003 where you were alerting her about this boy?

A. No. The call she made to me was spontaneous report of concerns that some of her first grader teachers shared with her. She was checking in with me as she always would if there was a child older than her population with whom her teachers were having difficulty so --

Q. So your answer is you don't recall having a conversation with Debbie Johnson on or about that date involving Jan Rankowski?

THE WITNESS: I recall the circumstances in which I talked to Debbie. I can't tell you the exact date it was her calling me.

Q. Did you tell Debbie to send an e-mail to all her teachers alerting them to be aware of this boy versus our kids?

Q. She did that on her own?

A. She indicated to me that she would just do a communication out to her staff as she testified previously.

Q. You understand that in October and November of last year Gayle Fitzpatrick on at least four occasions either wrote you or e-mailed you and requested copies of the observation notes that your staff was making of Jan during recess time?

A. I believe those requests started around, uhm, October 30 I guess.

Q. And she asked you four times for any notes, records of observations being made by any Falmouth School Department personnel of her son during recess time, yes?

A. We had some e-mail back and forth, yes, she did.

Q. And finally on the fourth occasion you wrote back to her and said there are no assessments being made, do you remember that?

Q. That wasn't really answering the question, was it?

A. Well, the question was we didn't have permission to assess her son, and my answer was we weren't assessing her son. We were keeping record of the play area, and it involved notes about her son and a lot of other children

Q. Her request specifically said, Mrs. Powers, one of three questions: Are any notes being made of observations of our son, was that the request that was made by her?

A. Something like that, yes.

Q. Something like that. She was not asking for assessments, she was asking for notes of observations, is there a difference?

A. I think there is a serious difference.

Q. In fact you call observations, you call that journaling, don't you?

Q. And assessment is something very different, isn't it?

Q. So when you responded that there are no assessments being made you were really not answering her question as to the note taking of observations?

A There had been someone assigned to work in Jan's play area since September 29. It had been very clear that she had a clipboard and was journaling every single day there. That was no surprise to anyone.

Q. The question, and you still haven't given me an answer, Gayle Fitzpatrick asked you for copies of observation records, and your response was there are no assessments being made, is that correct?

A. That's correct, that's what I thought she was looking for.

Q. That's what you thought she was looking for. She was looking for records of observations, not assessments, and assessment is something entirely different, is it not?

A. Yes. We did comply, and the material was shared within the statutory requirements of sharing requested materials.

Q. That came the day before Christmas, some eight weeks later after the Maine Disability writes a letter, wrote to the Falmouth School Department, is that correct?

A. I can't tell you the date for sure off hand. I 36 know they were provided, yes.

Q. Shortly before Christmas they were included in a package with a letter already an exhibit of Miss Crowell, is that your understanding?

Q. In fact after November 7 you requested some of your staff to sit down and did a little recollections of what they may have observed, I'm sorry, what they may have observed of Jan Rankowski during that September 30, November 7 period of time, is that fair to say?

A. The staff that were responsible for supervising the play area with Jan when Gayle shared with me that this was bothering Jan to have someone with a clipboard in proximity I asked her to quit carrying a clipboard, yes, I did, I wanted to respond to her request.

Q. On or about December 1st after Jan had been suspended for some three weeks you understood Gayle Fitzpatrick and her husband would not agree to a further assessment of their son?

A. I understood that.

Q. Okay. Because there had been some nine inches of prior assessments of the child, you understood that?

A. There was reference to prior assessments. I never saw nine inches of it, and I still haven't seen nine inches of it, but, yes, there was reference to previous assessments.

Q. Prior to the November 24 meeting did you read any of those assessments on Jan yet?

A. Prior to the November 24 meeting I had, I had seen assessments through my participation in the PET process a couple of years earlier, and the material she shared at his June PET in 03.

Q. So you were aware that Jan Rankowski had the social skills of a four-year-old and the communication skills of a 6-year-old?

A. That was the conclusion of some of the assessments, yes.

Q. Do you disagree with that assessment?

A. I have no basis to disagree with that assessment.

Q. Okay. Anyway by December 1st you knew that the parents weren't going to go along with another assessment, and you called Polly Crowell letting them know that the parents --

A. That I had received the letter, yes.

Q. That they didn't want to go along with an assessment?

Q. Did you tell Polly Crowell to call the police?

Q. Did you tell Tim McCormack to call the police?

Q. You were here when Officer Soucie testified that on December 1st that very same day you received a phone call from Superintendent McCormack?

Q. You have nothing to do with that?

A. I have nothing to do with that other than my concern that in the period of time we asked for a meeting to reconvene that Gayle had brought Jan anyway, and I wasn't sure what was going to happen now that they had refused to do the functional behavior assessment and work out a new behavior plan with us.

Q. Was it your idea to get the police involved?

A. It was no one's choice to get the police involved. They weren't answering the telephone.

Q. Wait a second. You call Polly Crowell December 1st, and on that same day Superintendent McCormack calls the Falmouth Police Department, and it's your testimony that you don't know anything about that?

MS. HEWEY: Your Honor, can I just interrupt for a second. I am losing feeling in my hands and feet. Can we get a little less cold in here. Is there a way? Thank you.

THE COURT: The officers adjusted the thermostat. Hopefully that will work. If it continues to be a problem let me know.

Q. Mrs. Powers, you are familiar, you have seen Caroline Crowell's notes, the two-page notes of the November 24 PET meeting?

Q. And in one of the items on the second page it sets up two alternatives, either a February 12, 2004 meeting or 45 days after an assessment is made, do you recall that, yes or no?

A. Yes, I recall the statement.

Q. Okay. My question to you is has any meeting been set up from November 24, 2003 to the present to discuss with the parents their continued suspension of their son?

Q. Calls for a yes or no.

A My interpretation of the request was should we have reason to come back together would be to discuss the data, but, no, beyond that I am not aware of any other meeting attempts. We are in litigation. That seemed to preclude that.

4 Well, the litigation started February 11.

Q. So between December 1st and February 11 was there any further meetings set up by the Falmouth School Department to discuss with the parents why their son was suspended?

A. It was very clear to them that the service plan had been revoked.

Q. It calls for yes or no.

A. Suspended isn't the correct word, I'm sorry.

Q. There is a letter from Caroline Crowell, November 7.

Q. I want to show you Plaintiff's Exhibit 3, a letter of Polly Crowell dated November 7. Does that letter say Jan is being suspended?

Q. Does it use the word suspension?

Q. Let me see if I am reading this correctly. Regrettably as of today Jan may not use the Plummer-Motz Lunt School playground during school hours, did I read that correctly?

Q. I have also been apprised of several other incidents which have occurred during the past few weeks which makes this suspension necessary, did I read that correctly?

A. Pardon me. I missed that. I was reading the first sentence.

Q. Yeah. Did I read that correctly?

Q. So you understood as of November 7 last year Jan Rankowski was suspended from using the playground during school hours?

A. Pending a reconvening of the service team, yes.

Q. That was that November 24 meeting where you wanted an assessment done, right?

A. We were looking for further data and a plan.

Q. And you knew there were tons of assessments out there, correct?

A. The assessments that I had seen had nothing to do with the functional issue of his play on the playground. That's why the request was made that in addition to all the other assessments that were available to us there was nothing specific enough in our view.

Q. You were just looking for an assessment or some kind of answer as to whether his behavior was age appropriate?

A. No, that's not correct, that's not what a functional behavior assessment would do.

Q. You remember coming to my office and testifying under oath on June 1st of this year?

Q. You raised your right hand and swore to tell the truth?

Q. At the November 24 meeting where I was present do you remember handing us, that is I and Gayle Fitzpatrick, a Falmouth School Department form, form 9, identification and diagnostic plan with consent to conduct student evaluations?

A. I know it was prepared. I didn't prepare it.

Q. Who prepared this?

A. I would guess either I think in Polly's testimony it was either she or Chris Morin.

Q. You remember seeing this document at that meeting, is that correct?

A. I did not review it at the meeting, Mr. Coles, but I have seen it since.

Q. Move to introduce Plaintiff's Exhibit 28. I don't have a copy for defense counsel.

MS. HEWEY: I object until he sets a foundation that she reviewed it during the time period relevant to this lawsuit, not in preparation for this trial.

MR. COLES: Your Honor, the witness has testified that this document was introduced at the November 24, 2003 meeting with the parents.

THE COURT: The objection is overruled, it's admitted, and for the record can you describe for me again, characterize that exhibit for me.

MR. COLES: It's on the caption of Falmouth School Department form No. 9, it's called identification and diagnostic plan with consent to conduct student evaluations, and it's only, it is four pages, and it's only partly filled out.

Q. So going back to Plaintiff's Exhibit 28 it was your understanding that Miss Crowell filled this document out?

A. Miss Crowell or the person who was scribing the meeting, yes.

Q. See if I can read the handwriting correctly. This is Jan, item C on the first page, Jan has had some significant difficulty using the school playground safely and age appropriately, did I read that correctly?

A. Yes, you did. 4 So the issue was playground use and age appropriateness, right?

A. Age appropriate for the community with which he was interacting, yes.

Q. Community he was interacting was the children and playground?

Q. You knew at that meeting already that Jan had social skills of a four-year-old and communication skills of a six-year-old, yes?

A. That's what was presented.

Q. Last academic year Jan Rankowski was the only home school student who had any contact with the Plummer School?

Q. Did you tell Gayle Fitzpatrick that her son was going to be followed around the playground for a period of five weeks while someone was taking notes?

A. At our January, pardon me, September 25 meeting we talked about the various issues that I was bringing to the table, and then she added the issues that she was bringing to the table, and it was our conclusion that having someone available to supervise Jan's play area to check for respectful behavior on everyone's part was our agreement.

Q. You haven't answered my question. Let me do it again real slowly. Listen carefully.

A. That's how I characterize following around.

THE COURT: Excuse me. I need one person to talk at a time, and the reporter does too. Ask the question, but please don't interrupt the answer.

Q. Did you tell Gayle Fitzpatrick that her son would be followed around and note taking would occur, yes or no?

A. I am not gonna answer that yes to followed around, that has a negative connotation I an not comfortable with. Supervision does require proximity, yes. Note taking is a pretty normal act as you heard Mrs. Johnson testify an anecdotal record keeping when we are working with lots of children.

Q. Do you remember again being at my office under oath testifying at deposition?

Q. Page 33 lines 11 through 15 do you recall me asking you the following question and you giving the following answer, question, so your answer is you did not tell the plaintiffs that someone would be following Jan around making notes as to document who he plays with and who he talks to, is that correct? Answer, correct. Do you remember that question and that answer?

A. I do, and I still don't agree with following around.

Q. You received a copy of Caroline Crowell's November 7 suspension letter that she sent to Charles Rankowski and Gayle Fitzpatrick?

Q. Yes. You received a copy of that, didn't you?

Q. Are you cc'd on the bottom?

A. No, but I'm guessing I did.

Q. Page 58 lines 18 through 20 of your deposition at the deposition where you swore to tell the truth do you remember being asked the following question and giving the following answer, question, you received a copy of Polly Crowell's letter of November 7, is that correct? Answer, I did.

Q. You did get a copy?

A. I did get a copy.

Q. In spite of the fact there were many detailed assessments of Jan Rankowski in his file you wanted further assessments, is that fair to say?

A. That's fair to say.

Q. Now you understood that the federal judge in this case has said that the playground at the Plummer School is a place of public accomodation?

A. Yes, I do. Q But you are disagreeing with that conclusion, right?

(The following conference was held at sidebar:)

THE COURT: There isn't a lot of time for these proceedings. I thought I understood from the memos that I have read, I thought I understood from the memos that I have read that the issue of public accommodation is not an issue, and that it is admittedly a place of public accommodation even though you may or may not agree with the law of the case. Did I misunderstand?

(The conference held at sidebar was concluded.)

Q. To finish up, Mrs. Powers, you never spoke with Polly Crowell at any time about Jan Rankowski throwing rocks, is that fair to say?

A. No, that's not fair to say.

Q. Let's turn to page 74, 73 of your deposition. Page 73 lines 4 through 7 of your deposition. o you remember me asking you the following questions and you giving the following answer?

MS. HEWEY: Objection, Your Honor, the question he's asking in the deposition is completely different than the question he just asked her. To the extent he is trying to impeach her with the deposition it's just inappropriate.

Q. I will rephrase it. I will be happy to do that. Did you ever discuss with Polly Crowell whether you observed Jan throwing rocks?

A. Polly knows that I did not observe Jan throwing, Jan throwing rocks.

Q. Did you ever speak to Polly Crowell about whether you observed Jan throwing rocks or not?

A. Polly was aware I had a concerns.

A. I did not observe Jan throwing rocks, therefore I wouldn't have told her I saw Jan throwing rocks.

Q. So you never spoke with Polly Crowell About Jan and rock throwing, is that fair to say?

A. No, that's not fair to stay. I spoke with her about reports of rock throwing, not that I observed it.

Q. That's correct. You spoke to her about information that you got from other sources, is that correct?

Q. But you and any other adult in the Falmouth School Department or any teacher or teacher's aid never saw Jan Rankowski throw a rock?

CROSS EXAMINATION

A. Do you want the exhibits back, Mr. Coles?

Q. Barbara, how long have you been the principal approximately at Plummer-Motz?

Q. And before that how long had you been involved in, education?

A. Since 1980, 24 years.

Q. Can you just sort of walk us through what your background in education has been?

MR. COLES: Your Honor, we will concede she's been in education for 24 years. BY MS. HEWEY:

Q. Mr. Coles has made a big point about her ability to do investigations with students, and I think it's important for the court to understand.

THE WITNESS: I began my career in Maine in 1980 Cape Elizabeth High School where I was an assistant principal approximately for four years there. I then was appointed principal of the Pond Cove Elementary School. I was a principal, a teaching principal, a classroom teacher there in Cape Elizabeth for 18 years prior to coming to Falmouth in 1998 where I have been principal for six.

Q. Okay. Now I would like to talk a little bit about, first about rules of conduct for students at Plummer-Motz. I am going to show you Exhibit Eight and ask if you can identify that?

A. This was a handbook that's prepared jointly by Lunt and Plummer-Motz School staff. Debbie and I worked on this together, Debbie Johnson, and it's distributed to families at the start of every school year.

Q. Okay, and on exhibit, on pages 12 and 13 of that exhibit are the rules of conduct for students listed?

A. The student code of conduct, yes.

Q. Okay, Your Honor, I offer Exhibit Eight.

MR. COLES: Your Honor, I object to it. There has been already testimony that particular handbook was never given to Miss Fitzpatrick, and if she had no knowledge of it then it's irrelevant.

THE COURT: The objection is overruled. Defendant's Eight is admitted. BY MS. HEWEY:

Q. Miss Powers, did you ever give a copy of Exhibit Eight to Gayle Fitzpatrick?

A. Yes, I did on September 25.

Q. And what was happening on September 25 that caused you to give that to her?

A. We had met to talk about the first couple of weeks that Jan had been with us on the playground, some of the concerns that I brought to the table that spoke directly to the code of conduct as well as concerns she brought to the table, and I thought it would be helpful to her to have an 03, 04 copy of the handbook, so I asked my secretary to retrieve one for her.

Q. And you gave it to her?

Q. Now in terms of general conduct for students at Plummer-Motz there has been some discussion of Plaintiff's Exhibit 16 which is labeled level 2 behaviors. Can you tell us what is that Plaintiff's Exhibit 16 labeled level 2 behaviors?

A. Can I give just a tiny bit of background?

A. Level one and two behaviors have been very closely defined in our school for the past two years. The code of conduct had always guided our work with children, but we decided as a school we wanted to be very, very consistent with behavior responses all the way around, so that level one behaviors spoke more to classroom distracting behavior, off test behavior interfering with another child learning, and level two behaviors were defined to be the ones that were primarily be supported by me. Level two behaviors being more student-to-student interactions that might have some poor decision making on the playground, in the cafeteria and common areas. The rubric was designed pretty such because we were finding that the clearer children were about outcomes and understandings in their learning the clearer they could then respond to. The rubric was developed, a group of teachers through the students assistance team three years ago, then promulgated last year. This is shared with parents at open house,' It is taught to the children from day one at school, so it's very clear to them that as they make choices about their behaviors, and for some children it falls a little out of the realm of choice sometimes that this would be the anticipated response.

Q. Okay. Let's talk about some of the different behaviors that are reflected on that exhibit. Noncompliant behavior towards adults, why is that included as a level two behavior?

A. Noncompliant behavior towards adult is one of the most serious situations I supervise in school. The children greatly outnumber the adults, and we have to make assumption that always the adult is in charge. Children know that that's a really serious understanding that it speaks to respectful behavior which is a part of our overall school theme at all times.

Q. Okay, and so the first time that a student engages in noncompliant behavior towards adult what happens to them?

A. They complete one of the reflection sheets that I already discussed with Mr. Coles, and they meet with the adult with whom they were noncompliant or disrespectful in my office, and we have a conversation about what happened.

Q. Good. That happens, again what happens next?

A. Then they are still asked to meet with the adult involved to process, to apologize, reflection sheets prepared, I make a phone call home to discuss this need for a second intervention with the family, and there begins to have recess time-out.

Q. Okay, and usually in your experience if there has been noncompliant behavior with adults is there usually a first, second, third time and continuing on, or does that usually, your way of dealing with it usually address the problem?

MR. COLES: Object to the form of the question, seems to be three questions, Your Honor.

THE COURT: It was a little bit compound in nature. You may answer that if you were able.

THE WITNESS: What I am understanding your question to be is how far beyond, how far into the interventions I generally have to go, is that correct?

A. I would say that I am not sure I could recall a time I had to go more than one step.

Q. Okay. If there is a third time for noncompliant behavior with adults what's that third step?

A. Parent meeting to decide upon further consequences.

Q. And so the further consequences would depend upon the situation?

Q. Now let's talk about repeated teasing, harassing, punching or kicking.

Q What happens the first time that that occurs?

A. I call home, a reflection sheet is prepared in addition, and three recesses are instantly lost for the child.

Q. Okay. Second time that occurs?

A. It goes to a more serious level with a parents meeting to decide on further consequence. 4 Okay, and the third time?

Q. And how many times per year do you get all the way to suspension if you know?

THE WITNESS: Thank you. I believe I have only had to move to suspension with some of our most behaviorally impaired children.

Q. Okay. Now in terms of the rubric and the way you address different behaviors is that modified if a child has special needs?

Q. Is that modified for a child with special needs?

MR. COLES: There is no testimony, Your Honor, that the witness has any expertise on special needs. In fact she testified she knows nothing about autism.

THE COURT: I take the question to be directed to the rules and how they are geared, and the objection is overruled. You may answer that.

THE WITNESS: Thank you. There are examples as Mr. Coles and I went through where the rules never change, the rules aren't modified. Our reaction to the child's behavior choices might be modified based on the behavior plan that they have. I have children in school probably of the 40 or so that have special education plans this year I would guess that maybe five to eight additionally have behavior plans, and I would guess that another five to eight have some significant family issues happening, so this is a guideline for me, and as I know the children as well as I do depending on if there is a tight behavior plan in place, or whether or not I am working with a social worker I might modify the responses. This is set up I would like to add as a teaching tool with children around behavior. It's not set up as a punitive response to behavior. It's set up in a way that's supposed to be a natural consequence so the child when confronted with the situation again can make a more reflective choice about what they are going to do.

Q. Okay. Thank you. Now let's talk about the playground generally, and I am going to show you Exhibits 12, 13 and 14 and 15. First can you tell us what Exhibit 12 is?

A. Exhibit 12 is a picture of our mazecraze. It was built probably 15 years ago, and it is in one corner of our playground.

Q. I offer Exhibit 12.

Q. Can you tell me what Exhibit 13 is?

A. Exhibit 13 is a side view of the same play structure. Only this time you can see the tire swing that's available to children for play.

Q. I offer Exhibit 13.

A. Exhibit 14 is a play structure that we added four or five years ago. The mazecraze for all its charm is not accessible to children with motor impairments, and we felt as a school that it was inappropriate to have a structure that only served kids that didn't have motor deficiencies, so we raised a lot of money and built kid's world diagonally across the playground as an area where a child even in a wheelchair could come up and be in the middle of play, so this play structure exists diagonally across the playground.

Q. Okay. Can you just explain for the court what you mean by diagonally across the playground, mazecraze is one side?

Q. And then there are?

A. Soccer fields, football fields, sports that require nets, basketball court, so if you pictured the playground as a giant rectangle it would be on the two corners.

Q. Okay, and in between are the?

A. Playing fields, yes.

Q. I offer Exhibit 14.

Q. Now can you take a look at Exhibit 15 and tell us what that is?

A. 15 was where there was a sign posted about the hours the mazecraze is open for public use. Public playground, it's kind of odd, people, you know, public playground, why can't I use it all the time? Public schools, why can't you use that all the time? I added this sign because there was some I think understanding in people's minds because it's a public playground you can come and use it any time you chose, and I was starting to run into issues several years ago with people who would bring large groups of children. Adolescents would come down from middle school on an early release day or whatever, and it was uncomfortable feeling like the children I was responsible for while they were out that others unknown to me were sharing that space with them, and it's a large space, so in consultation with the Falmouth Police Department I said I really very much need to limit access to the playground when school, when the children are using it, and he said that's absolutely within your purview.

THE WITNESS: We added the sign so we would instruct people that we would like them to not use the playground when school's in session.

Q. Okay, and that sign is posted in close proximity to the mazecraze?

A. Right in the parking area, yes.

Q. I offer Exhibit 15.

REDIRECT EXAMINATION

Q. Miss Powers, this sign was posted after Jan was suspended on November 7?

Q. This sign existed before November 7, 2003?

A. Absolutely, it existed for at least two years, if not three.

Q. I have no objection.

RECROSS EXAMINATION

Q. So you were talking about your policy at the playground limiting the playgrounds use in school hours?

Q. Can you tell us what the policy is, specifically who is allowed to be on the playground while school is in session?

A. Students at Plummer-Motz school or through special arrangements the sign does say you must check in at one of the school offices for permission.

Q. Okay. So if somebody was to come and check in and ask for permission when do you give permission and when do you not?

A. If they come ask for permission what we have done is give permission at times when recess is not happening.

A. So I would lay out for them the hours that were not well advised for them to be on the playground.

Q. Okay. So when recess is in session do you not permit people who are not a part of the school community to be on the playground?

Q. What about students in the middle school, say, fifth grade on, what's your policy with respect to them?

MR. COLES: Objection, Your Honor, there is no testimony she has any knowledge of middle school policies. She's the principal --

THE COURT: The question is what is her to the use by middle school policy with respect students I believe.

THE WITNESS: Our playground is limited to Plummer-Motz and Lunt's students, not fifth through twelfth graders.

Q. Okay, okay. Let's now turn our attention and talk about Jan Rankowski. When did you first become involved with the Rankowski family?

A. My first involvement was through the PET process in the spring of 2002 when I attend PETs of outgoing second graders who are preparing to come down to Plurmer-Motz for third grade, that's generally my first meeting with the families, and my involvement in the PET has to do with designing the individual ed plan as they transition to Plummer-Motz, so that was the first time I met with them and attended I think about a four hour PET. It was a lengthy meeting time to talk about his individual ed plan.

Q. Then did you meet with either Jan or his mother or the whole family after that meeting?

A. I could sense at that meeting Gayle's concern about the transition. That's not an unusual concern for special education parents. They felt comfortable in the primary school, have some worries about coming down to the bigger intermediate school. So I offered Gayle an opportunity to come tour what third grade classrooms looked like, and I also wanted to assure her because she was concerned that there would be adequate small instructional space for her son in the third grade, so she came down, I can't remember exactly the date, and we looked at a particular third grade classroom I had in mind so that she could see that there were -- that it was a large area classroom, that there was also a small office in there for one-on-one instructional purposes, and I showed her some other areas where Jan could work with his staff one-on-one, introduced her to the teacher and so forth.

Q. And then did you stay involved with the family after that?

A. That was close to the end of school, and they notified the school that they were in fact not happy with the individual ed plan and were requesting due process.

Q. Okay, and so there was a due process hearing? A Right.

Q. And then the next year did Jan come back come to your school?

A. We, we anticipated his entry. He had been placed in that classroom, and we were prepared for him to arrive, but he didn't, so, no, I didn't have contact with the family then that following year.

Q. Okay. When was the next time you had contact with the family?

A. When it was time to reconvene the PET in June of 03 we invited them back, and we had another meeting at that point. That's when Gayle expressed some interest in having Jan start to rehook with his age cohorts and have sometime in school, and she had a few ideas about how that might happen.

Q. At that meeting in June of 03 did she give you some documentation, some documents?

A. I had a file folder that had report of how his home schooling educational plan had progressed. There was a one page positive discipline, positive behavior sheet for us. There was I believe a report from Mark Hammond perhaps in there with some of his communication goals, some things like that.

Q. I am going to show you Defendant's Exhibit 16 which Your Honor is not in the book. Can I hand you a copy, Your Honor?

Q. Is Exhibit 16 the package of documents that you were given on June 10, 03 at the PET meeting?

Q. Were you given anything other than the document contained in Exhibit Six at that meeting?

A. Can I just look for one minute?

A. This looks complete.

Q. Okay, and you kept that in the folder from that time up until now, is that right?

Q. And so the documents that are now Exhibit 16 are the documents that were in your folder of that meeting?

Q. I offer Exhibit 16.

Q. After the June 03 meeting when was the next time you got together with the Rankowski family?

A. At the June meeting one of Gayle's ideas for a way to have Jan come back and be part of school to a small extent was possibly through some gifted and talented pull out programing. So she and I made arrangements for some assessments to happen in the summer to see if he might qualify for identification for gifted and talented, so I think he came in perhaps twice, I'm sorry, he came in twice. He met once with the gifted and talented teacher to take the Torrence Test of creativity one-on-one with her. That would have been to try to qualify him. He came in and met with me. I agreed to administer the Tomags, which is the test of math achievement in gifted students. It's the screen we use for our math pull-out program, so those were the next two times that I saw them.

Q. After that was the next time you saw them in September?

A. Was the service plan meeting.

Q. You were at that meeting?

Q. And tell us what happened at that meeting.

A. Well, we talked about, as it turned out the testing that we had at that time would not qualify him for gifted and talented pull-out format. We had not received the results of the Torrence, and I had asked Gayle that in lieu of this if she could provide a complete WISC-R (phonetic) with an EQ, perhaps he could qualify that way, but that was not available to us. So we talked about other options, including him coming to fourth grade math. I'm sorry. I may be confusing that with a June PET we had talked about other options such as coming to school, being part of a fourth grade math program. She felt this classroom experience would be too large. We talked then when he didn't qualify for GT perhaps a resource setting, he could come in and work with two or three other children, and she Wasn't interested in that either. Her request as I have testified with Mr. Coles was that they have access to fourth grade instructional materials; that they be able to come in and check out books from the library, and that they be able to bring him to recess to play with the children.

Q. Okay. Now let me first ask you about the library. What was your response with respect to that request?

A. Absolutely, that was possible.

Q. And did you require though that she check in with the office before?

A. I said just let us know when you are in the building please, and then you are absolutely fine to use the library.

Q. Okay. In terms of the playground use what was your response there?

A. Well, I remember that sore of us shared sore concern that that was a highly stimulating environment, and all of the materials she had given us up to that point talked about his need for low stimulation environment, more one-on-one coaching for his improving social skills and so forth, so we shared a few concerns about the nature of the playground, but she felt that that could be a successful thing for him; that he had a friend there that he liked to reconnect with in a regular way. I was, I was personally very concerned that Jan start to have access to his age cohorts again, and so I agreed.

Q. Okay, and soon after that meeting did Jan start to come to the playground?

Q. And did issues start to arise?

A I think the meeting was the 11th, and I believe one of the surprises was the amount of time that they were choosing to be at the playground. I had thought there was a special friend he wanted to play with, ended up being more of a 45 minute period of tine she was, that she was bringing him during our lunch recess.

Q. Okay, and let me back up there. You say you have 45 minutes for lunch recess, and how, how does that organize for the school, does the whole school go out for 45 minutes?

A. What happens is that third graders had lunch at 12:30. They went out on the recess grounds at 12:45. The bell rings. They go in at one, and there were some first grade teachers at that time who were choosing to bring their first grade classes out during that 15 minute period while our fourth graders were having lunch, and then at 1:15 the fourth graders came out and had their 15 minutes of recess, so there were children using the recess grounds during about a 45 minute span in organized age cohorts.

Q. And Jan started coming for the entire 45 minutes period?

Q. Okay, and after he came did you get complaints from students about him?

THE COURT: Well, that calls for a yes or no answer. The objection is overruled. You may answer that.

Q. When did those start?

A. The first complaints came in around, well, it was late September, maybe around the 22nd of September or so when I had sore boys approach.

MR. COLES: Objection, Your Honor, there is now testimony coming in which is hearsay.

Q. Okay. I will do this in pieces. Can you tell us what the students reported to you? MR. COLES: Objection, Your Honor, that's hearsay, that is hearsay. To COURT: Attorney Hewey. MS. HEWEY: Your Honor, it's not submitted for the truth of the matter as of yet. It's submitted for why the principal did what she did following those reports. MR. COLES: When the witness is asked to testify what students told her on a particular day that is hearsay. You can't spin it any other way.

THE COURT: Well, you can spin it, you can spin it the state of mind which is to offer that's being made and not for the truth of the matter at this point. On that limited basis only the objection is overruled. It's not being accepted for the truth of the matter. Go ahead. THE WITNESS: Thank you. BY MS. HEWEY:

Q. What were the complaints?

A. The complaints from these were from fourth graders that were there during the 1:15 to 1:30 time period were that there were some interactions with Jan that involved offensive language, a boy being kneed in the groin, and later on added complaints of some rock throwing and further offensive language, swearing and so forth.

Q. Okay. When you got those complaints what did you do?

A. After the first round of complaints I consulted with Mrs. Katz, and she had been in the process of visiting fourth grade classrooms to teach them a little bit about autism and the kinds of behaviors they might expect from a child that was going to be playing with them on the playground. We work a lot trying to teach children about compassionate play and understanding some of the limitations of others. I was going at it in a proactive stance. The complaints continued on the 24th this was still going on, and I said to them that the boys mother was present, and, you know, wasn't she aware that this was happening, and their response was

MS. HEWEY: Okay, if that's the objection let me move on. BY MS. HEWEY: Q So you had complaints on the 22nd and the 24th? A That's right. Q You spoke with Mrs. Katz? A Yes.

Q. Did you also speak with the students who made the complaints?

A. what happened was this, I called Gayle to share with her my concerns that things weren't going entirely well with the fourth graders, and she said first all she denied that Jan had done anything wrong whatsoever, that she was right there, but that she said that the boys were teasing and being unkind to Jan, so I went back to them as part of this investigation and said, look, you know, you are complaining to me about some behavior. I am hearing that there is some inappropriate behavior from you as well, and the sort of spokesperson for the group agreed that there had been some unkindness, and to me his credibility raised because he was taking responsibility for the group, that they too hadn't been entirely appropriate in their play with Jan. So as often happens in playground incidents there were two sides to the story, and when one is willing to take responsibility for their part it adds to the credibility of the incident in my opinion.

Q. Okay, and did you then at that time make a determination as to whether the reports that you were getting from students about rock throwing and groin kick and threatening language were in fact true?

MR. COLES: Now I move to strike now the counsel is trying to get the witness not only for the basis of hearsay coming in, not for the truth. Now she is trying to get it in as truth, and for that basis I would move to strike.

MS. HEWEY: I are trying to get in the determination that the principal made. The plaintiff's claim here is that the school is discriminating, and this particular person, Mrs. Powers, individually is discriminating against this child. Her determination, the results of her investigation, her determination as to who is telling the truth and what's going on is completely relevant and not hearsay on that issue, on her motivation and her state of mind.

MR. COLES: That's incorrect, Your Honor. Your Honor allowed the comments about students bringing information to this witness on the basis that that was not being introduced for the truth of the matter. What the counsel is now doing with the witness as to that information after this witness has done quote, her investigation, is it's then truth and in that respect it is still hearsay.

THE COURT: I let it in on the basis of motive and state of mind. I think we are still in that same venue with respect to the question asked and the response sought. The objection is overruled. It's not a hearsay response. Go ahead. BY MS. HEWEY: Q Do you remember the question, or would you like me to reask?

A. Once more please.

Q. Okay. My question was after you did the investigation and spoke with the students a couple times did you come to a conclusion as to whether what they were telling you about what had happened with Jan was accurate?

THE COURT: Understood. It's asking her opinion. You may answer that. THE WITNESS: My conclusion at that time was there was credible information there was wrongdoing on both sides. BY MS. HEWEY: Q And so what did you do?

A. So Mrs. Katz and I decided that we would invite Gayle to come and meet with us because she had concerns, we had concerns, we needed to come to a better plan than where we were right then because we didn't want it to get worse.

Q. So did you in fact invite her to a meeting?

Q. And did she come?

A. She came on the 26th I believe, and we had a meeting and talked about our concerns which again she continued to state that she didn't believe Jan had done anything wrong. She was concerned about the boys treatment, and I gave credibility to her concerns as well, and it was our conclusion that we needed school staff assisting with the supervision of all -- we wanted to be sure our children were being appropriate toward Jan and vice versa.

Q. Okay, and so did you come to that conclusion during the meeting with Miss Fitzpatrick present?

A. We did, and Mora offered a woman named Virginia Gilbert who was one of the ed-techs that worked under Mora's supervision who could be that person and be available on the playground during fourth grade recess to assist with that supervision. She made arrangements for Gayle and Jan to meet Virginia the following Monday. Gayle had a continuing concern always that Jan, you know, knew the adults well who he was going to be working with, and so we agreed to have a special introduction happen.

Q. Okay, and did that introduction in fact happen on the following Monday which I think was September 29?

Q. After that introduction, well, were you on the playground that day?

Q. The 29th of September.

A. On the 29th of September, yes, I was on the playground.

Q. And did you see Jan Rankowski that day?

A. I did see Jan and Gayle.

Q. And what did you see?

A. I was on the playground toward the end of fourth grade recess standing near kid's world which is closest to the school. The boy that I had been dealing with quite a bit was running by to get in line to go in when the bell rang, and he stopped and shared with me that Jan had been swearing again. I saw Jan run to his mother, talk with Gayle for a minute, point at the boy. They discussed something briefly and left. That was -- I didn't have an interaction with Jan or his mother on the playground that day. Q Okay. After that occurred did you then have communication with anybody in the Rankowski family?

A. Charles called me later that day and said something like that he thought now that I was convinced that it was the other children who were at fault and not Jan, and I was confused by the call. I said, well, I actually had another report of swearing, Charles, so I hope we can keep working on that, and he said, well, this other boy elbowed Jan really hard because they were running across the playground, he assaulted him, and that Gayle had reported that to me, and that I had witnessed it.

Q. Had you witnessed anything like that?

A. Nothing like that.

Q. Had Gayle reported anything like that to you? A Not at all, and we were proximate, you know, we were here to the door away from each other. We made eye contact, but we didn't speak that day, so --

Q. So what did you do?

A. Well, that was close to the end, I think it was end of school after Virginia Gilbert had left and the children were loading on buses, so immediately the next morning I caught up with both Virginia and the boy and asked what had happened. Virginia said that she-had watched the entire time as she had been instructed to do.

MR. COLES: Objection, Your Honor, this is conversations between Virginia Gilbert, this is hearsay.

MS. HEWEY: It's not hearsay. This is, again goes to the motivation of the principal.

MR. COLES: Your Honor, she keeps on saying it's to show motivation, but it is hearsay.

MR. COLES: I understand, Your Honor, this witness can testify she spoke to any one of dozens of other people whether they are at the playground or not.

THE COURT: I think the short answer is, yes, she can. This is one of the individuals whom it is alleged engaged in discriminatory conduct. I think her motives and her state of mind are placed in issue by virtue of that claim, are they not?

THE COURT: You don't think there is not an issue as to whether she acted with discriminatory animus in this case. There is --

THE COURT: Let me finish please. You may put in whatever evidence you think is appropriate to prove your point. They may also put in evidence to address the same issue. The issue of motive and state of mind is relevant in my mind to the issue as to whether or not there was conduct motivated by discriminatory animus. I will repeat again the statements that she is about to report were made to her I am not accepting now as being truthful; in other words, she is saying someone said somebody did something. I am not taking it as the truth that somebody did something. I are only taking it that someone reported it to her, and that she had that kind of information and used that information with whatever else there is out there to make decisions that goes to her motive and so forth but it doesn't go to the truth of the statement.

THE COURT: We are all clear the objection is overruled. Would you please repeat your question. BY MS. HEWEY:

Q. Yes. I think we were talking about you said that you checked in with Virginia Gilbert in the morning, and what information did you learn from Miss Gilbert?

A. I again in an incident follow-up I talked both to Virginia Gilbert and to the boy who they -- who Charles said had hurt Jan, elbowed Jan. Virginia being the supervisor that I placed in that play area said that she saw absolutely nothing, and that she had her eyes on the situation the entire time, and the same with the boy that she said he never came near Jan whatsoever. The boy said the same. Of course in this situation I gave greater credit to the adult supervisor, but both said no such contact had happened.

Q. Okay. Did you also, after you had that contact with Virginia Gilbert and the boy, did you then have some contact with Debbie Johnson, the principal at the Lunt School, about concerns that she had about Jan?

A. I believe that --

MR. COLES: Objection, Your Honor, concerns that someone else had would be hearsay. That doesn't go to state of mind. That's trying to introduce someone else's, and we had Debbie Johnson testify. She didn't talk about concerns. We have a very clear e-mail where she gives a particular instruction. This is just a side door attempt to get in some hearsay conversation between two people.

THE COURT: Understand, but for the reasons previously recited the objection is overruled. You may answer that question. THE WITNESS: September 30th was the first I was aware, made aware by Debbie Johnson that first grade teachers were having some difficulty with Jan approaching their children and some unsafe play. So that day I also heard first from Lunt School that there was some concerns during that period of the recess time. BY MS. HEWEY:

Q. Okay. So what did you do, what did you decide to do to address those concerns that you were hearing about?

A. Well, Debbie and I talked about her work with her own staff up there, that was her decision about how she followed through there, but the concerns were because it involved unsafe play and being nonresponsive to adults who were giving directions to their children, him interfering with their ability to manage their children and coaxing children into some unsafe play I thought it was worth having a conversation with Gayle the next time she was on the playground so we can talk about that.

Q. And did you in fact try to find Miss Rankowski, I mean Miss Fitzpatrick and raise these concerns?

A. I did. My recollection is that that was one of the -- that Becky, one of his home health workers was with him instead.

Q. Okay. Who's Tammy Paul? A Tammy Paul is an autism specialist teacher who has been working with children in the autism spectrum in Plummer-Motz and Lunt.

Q. Okay. Around this time did she also approach you with some concerns?

A. She had a concern that she, she often is out on the playground with her students, and there was an incident where she was working with one of her students and I believe a tire swing or something and Jan was attempting to also have a turn, or perhaps he was already on the wheel. The point of the matter was whatever the interaction was Jan was very disrespectful to Mrs. Paul, said he didn't have to listen to her, engaged in some inappropriate language and so forth, and Mrs. Paul was, was, was very unhappy about that interaction occurring in front of her student and between her and without any support from his adult caregiver.

Q. Okay. So then did you ultimately have the opportunity to speak with Gayle Fitzpatrick about these concerns?

A. Yes. A few days later, I think a weekend passed, perhaps a few days later Gayle was back at the playground with Jan, and Tammy and I decided we needed to approach her and really talk about these rising concerns about interactions, inappropriate interactions with adults, undermining of authority, telling children they didn't have to listen and so forth, so we went over and engaged in a conversation with her in the mazecraze area where Jan was playing.

Q. And could you tell us about that conversation, what did you say to her and what did she say to you?

A. Well, it was, it was, it was a difficult conversation. I was really hoping that we could come to some terms about our understanding about his play, his need for very close supervision and interventions by either Gayle or his home health care provider so that when situations that involved other staff occurred there could be some assistance from the family or their care providers, so Tammy and I were talking with her, and I first made the point that Jan, that Jan really needed to be responsive to any adults that were supervising other children in proximity to his play. Her answer was that he's not allowed to speak to other adults. He was raised in Manhattan. He's not allowed to speak to strangers, and that was part of his upbringing not to respond to other adults. So I said, well, if that's the case I really need you to step up then and intervene when that happens, make the introductions as appropriate and help Jan understand the supervisory nature of these interactions, that he needs to listen to anyone who is speaking with him about the safety of Plummer-Motz students. Her response to that was that she didn't know all these adults on the playground, and that for all she knew it could be the adult who was responsible for plastering pornography all over the mazecraze, and that she didn't trust that she was dealing with school staff on the playground. I assured her that any adult she was seeing on the playground were members of our school staff, and she could trust it, and I really needed her to step up and intervene. At that point Tammy tried to share her personal concerns about the interaction that had occurred between her and Jan and this other student around the tire swing incident, and she was just describing for Gayle what had happened and how it would be helpful to have her or Becky or whoever was there step in to assist. Gayle was, Gayle was quite agitated at that point, and really unwilling to have a give and take conversation with us to the point where I was really concerned about how aggressively she was speaking to Tammy, and stepped between them and put my hands up and said please, please, we need to calm down and just try to come to terms with this and had to sort of physically get some personal space back for this conversation. We concluded with me just saying, Gayle, I just really need you to step up. I need you to cooperate better with our adult staff, and that would be helpful, and she made some negative comments and left at that point.

Q. Was there any discussion about her interaction with Plummer-Motz students during that conversation?

A. I believe that my -- that was also the time when I had been made aware that she was giving play directions to Lunt and Plummer-Motz students. I asked her to desist from that.

Q. So how did the conversation end?

A. She walked away angry, and I'm not exactly sure what she was saying.

Q. Okay. This was on October 6 or thereabouts, does that sound right?

Q. And then for a time, was the time there weren't any incidents reported to you?

A. There was a period of time that things seemed to settle into a better rhythm that I was not getting complaints. I didn't check in daily with everybody, but I did check in once with the fourth graders with whom there had been issue, and the boy said Jan's being nice now, he's playing with us, so that game of tag or whatever was happening was going okay. The only thing that I was made aware of about mid-month was some concerns about his playing out with the third grade student that was starting to be more and more of a concern for the ed-tech that was supervising the third grade student that Jan was very interested in playing with. That particular student is on an IEP himself, and there were, with a behavior plan, and there were a lot of attempts being made for that child to better assimilate with his town classmates. So there were several situations where he was with his classmates trying to do some interactive cooperative play. Jan very much wanted him to himself and didn't like having to share this child with his classmates, and that deteriorated in a couple of situations significantly enough to need to intervene. One incident I recall was when a little girl classmate had wanted to play with the other boy. Jan wanted the other boy to himself, which again is within the realm of Jan's preferences, he prefers one-on-one interaction. This was a little difficult for him to share this friendship, but he was very rude to the little girl and to the ed-tech that was involved with the other child to the point where Becky wanted, told him that he had to leave immediately because he had swore at this little girl, and he refused to cooperate, and he ran away from her. I was summoned out because she was having difficulty removing him. I recall my attempt to say to Jan I am Mrs. Powers, Jan, I need to speak with you for a moment. He approached, he was very angry at that point, but he approached, and I said, because of your inappropriate behavior you really need to leave with Becky now, and his response was to really yell at me, hasn't my mother told you I hate the word inappropriate, and he really yelled loudly about that. I realized my presence wasn't helping the situation at all. Becky attempted to phone Gayle to say that Jan was being noncompliant and wouldn't leave. I left. Mora and Tammy came out. Jan ran into the woods and hid for awhile. Eventually after about half-an-hour complied and left with Becky, but there were a series of incidents involving that third grader that were very much a concern to me.

Q. And if your notes indicate that the incident involving Becky and that little girl and third grader were on October 28, does that sound about right to you?

A. That sounds about right.

Q. Okay. Now let's go to October 30. Was there a concern that day with Jan jumping off a play structure the wrong way?

A. That, that particular situation had to do with safe use of equipment, and that part of it wasn't the big concern to me. He had been up on a structure that's too high to safely jump off of in our view, and it's one of the areas where children are advised not to jump. He was up there. The supervisor Virginia had asked him not to jump. Gayle then repeated and asked him not to jump. He jumped anyway. He didn't hurt himself. He didn't hurt anybody else, but he just ran away and played elsewhere, and the concern was once again noncompliant with adult, no intervention happening as a result of that behavior choice.

Q. Okay, and did you then communicate with Gayle Fitzpatrick about those concerns?

A. About that one in particular.

Q. Well, wait a minute let me back up for a minute. Let me show you Defendant's Exhibit No. 2, see if you can identify that, and, Your Honor, I will say that in the copies of exhibits that I gave to counsel and the court the second page of Exhibit Two was missing, so I have a second page.

A. The day after this intervention with Mrs. Gilbert when Jan was noncompliant with both our supervisor and with his mother I received this e-mail from Gayle that began asking me about the role and responsibility of Mrs. Gilbert, the question about recording observations and the question about the use of some visual prompts that Mora had provided to the family.

Q. Okay. That's an e-mail dated October 31, 2003 from Gayle Fitzpatrick to you, right?

A. Correct, the day after that incident.

Q. I offer Defendant's Exhibit Two.

Q. Now is this the first time, that October 31, was that the first time that Gayle Fitzpatrick raised any concerns about Mrs. Gilbert to you?

Q. And that was after Mrs. Gilbert had raised concerns to Gayle Fitzpatrick about Jan's behavior, is that right?

A. Well, I think it was, it was raising concerns more that both of them gave him a direct instruction and he ignored both of them. I'm not sure how much dialogue she got into with her.

Q. Okay. Turning to the second page of Defendant's Exhibit Two the second paragraph starts with consequently?

Q. Could you read that?

A. Gayle wrote to me consequently we request that you allow Jan Rankowski's family and providers to do their job without unnecessary interference. Please request that staff do not interfere with my son, his providers or family unless a very serious safety issue is involved. You risk undermining his program.

Q. What was your reaction to that?

A. My reaction was that it really needed to be while -- we were working very hard to support the family's effort to have Jan have a successful experience on our playground. It really was my call about whether or not some of his behavior was impacting the children at our school. So while I agreed that we wanted them to be able to do their job, I had a rising concern that the interventions were inadequate to assure safe, respectful play.

Q. So what happened next?

A. I responded to this e-mail. I said the role of Mrs. Gilbert was as we discussed on the 26th, 26th of September that she was going to be supervising the entire play area, that there were not assessment notes being taken, and furthermore I was most confused about question No. 3 that said Mora Katz gave us a laminated index card recently, what are we to do with this? That confused me because a few weeks before that one of Gayle's concerns in conversation with Mora was that Jan can't deal well with a lot of auditory input, so Mora had offered to make him a series of visual cues that could be reviewed with the family and him before arriving at the playground and would be available to his care providers and our supervisors. So Mora drafted a set of three statements earlier that had to do with respectful play, the days of the week he was going to be playing with a special friend, because it turned out we needed to limit that access to support that child's IEP and just in general respectful language. Gayle suggested to Mora that she had better ideas for the language that would be more understandable to Jan, so Mora spent time redoing all of these according to Gayle's suggested language, laminate them and printed them and had a meeting about their use. So question three just really confused me. It had been something that she had requested. Q Okay. At about this time were you thinking that there needed to be some changes in Jan's use of the playground?

MR. COLES: Was she thinking that there are some changes that needed to be addressed, I think perhaps counsel could rephrase that question as to what the witness was going to do. I mean we can explore lots of thoughts, Your Honor, but we want to talk about actions, what the parties did.

THE COURT: I understand. I will permit you to answer that question 3f you understand it. THE WITNESS: What was happening for me at that point is I had multiple sources of information of concern, one of them being the third graders ed-tech who was concerned about Jan's disrespectful behavior toward her, towards saying that's he didn't have to listen to her, encouraging Jan to run away from that child and not listen to her, so there was an undermining of authority happening there. There was interference with his IEP and his play with his classmates where trying to simulate better with his peers in school. I had the reports from first grade about concerns about rough play with first graders and some of the concerns that were going on there. Tammy Paul's situation of undermining authority. My own conversations with Gayle. Just this continued pattern of noncompliant behavior with adults, an in my view lack of intervention when those things were happening were leading me to really contemplate what might be the best way for Jan to be on the playground safely. The place that seemed to have the least problem which was frankly pleasing to me was during that fourth grade play period where he and the other students involved had seemed to come to sore sort of balance in terms of their play with each other. So I was starting to think and may have even made a note in my records of talking to some folks about perhaps the fourth grade play time is his most successful time to join us; that we could extend it to morning recess time as well so he could have a full 30 minutes a day with his age cohorts because that seemed to be the place that he was most involved as a peer.

Q. And did you and Polly Crowell and perhaps Mora Katz or someone else talk briefly about that on November 4th?

A. I believe it was sometime in this time period, yes.

Q. Okay. Now let's talk about November 7. When did you become involved and what occurred on November 7?

A. November 7 as I recall was the incident that Mora Katz testified to on Monday, is that correct?

A. I was in my office. I can't be on the playground all the time, but I was notified that there appeared to be a heated discussion going on out on the mazecraze between Gayle and Mora, and that my assistance might be needed. So when I came out, and that was Tammy Paul who notified me, so she came out and went back to work with the child she was supervising. I proceeded across the playground over to the mazecraze to see what was happening and how I could be of assistance. Mora had disengaged from Gayle at that point and approached me and very briefly at that point explained how there had been another situation with first graders with some unsafe play with Jan getting the tire swing going very, very rapidly. Gayle hadn't been there at the time Becky was there, the home school provider. She hadn't intervened. The swing was going in a tremendous rate. Mora stepped in and attempted to stop it safely. At that point a first grader had fallen off, and Jan was very angry that Mora was intervening in his play at that point. She testified to that interaction. I don't need to restate it, but it was highly disrespectful, involved swearing again, I don't have to listen to you and so forth. His home care provider had not intervened in that unsafe play, so Mora had to step in and do that. Gayle arrived shortly thereafter and wanted to know what was going on and engage More in a conversation I was not privy to.

Q. And what happens?

A. Mora, after Mora gave me that brief description I went to Gayle and I said, you need to exit Jan immediately, and she said, I know, okay, okay, something affirmative. We didn't have a long discussion at all, but she was looking around and trying to figure out where Jan had gone, and I said, I saw Jan run across the playground, I think he's over there, and I pointed across closer to kid's world where we could see he was speaking with Mrs. Paul. So then Gayle and Becky both, maybe not Becky, Gayle at least quickly went over to catch up with Jan who was involved in an interaction with Tammy Paul and another student. I followed behind, give her a little space to catch up and talk with Jan, and then I noted that interaction becoming fairly heated. I again wasn't privy to that whole conversation, but as I approached Tammy was clearly unhappy. The other child was our student, was I think a little concerned and befuddled, and I wasn't sure what had happened, but Tammy said again just briefly that Jan had come over and had tried to intervene with her student and had been very disrespectful to her once again. So he was --Gayle was trying to exit him, and he was very emotional and upset and didn't want to exit, so he was yelling loudly. He called us bastards at that point. She exited him as far as she could off the playground over to a bench area where he proceeded to sit or stand near her towards the edge of the woods carrying on very loudly crying, I don't want to leave, I don't have to leave, and she was trying to give him some space, but it was very loud, and we had some young children out on the playground.

Q. So what did you do? A Well, I approached Jan, and I said as calmly as I could, because he was obviously overwrought, and I didn't want to make things any worse than they were. I said, honey, you need to leave the playground now, and he leaped to his feet and swore at me and said he didn't have to listen to me. Gayle stepped in and said, you may not speak to my son. You may speak to me. You may not speak to my son, and I said, Gayle, you need to leave. I am giving him space. He needs to calm down. We will leave when we're ready. I respect, I decided to respect that. I disengage. I could see there wasn't any worth pushing that any further, so I retreated closer to kid's world. Mora joined me, and we simply monitored the situation until he could get himself under control to the point of being able to leave. That probably took another five to eight minutes, so at that point when Gayle had convinced Jan it was time to go he ran across the playground toward the parking lot and yelled ignorant bastards at Mora and me, and we were standing there just trying to make sure he didn't involve himself with the second graders again.

Q. And then he, they left?

A. At that point I called Mrs. Crowell and I said, you know, I have talked about reconvening the service plan multiple times with Gayle over these various incidents and in the past few weeks it needs to happen now. This is unacceptable. We need a tighter plan. I'd like us to push the pause button, have little breather, time-out, get back together a service plan as soon as possible and come up with a way that we can have a better more structured way to have him interacting with the children on the playground in a way that was acceptable to all of us.

Q. And why did you feel that way?

A. Because, well, it was, it was becoming clearer and clearer to me since the service plan of September 11 that my assumptions about Jan's play there and Gayle's were in pretty different places. I assumed that they would be respectful of all school rules and would understand the need for immediate intervention when those school rules were challenged. I certainly assumed that there would be reprimands of all adult supervisors out there while working with other children, and, and I was, I was befuddled. I wasn't sure where else to go other than to sit down and again and really formally talk about my concerns for safe and responsible play on the playground and what I needed in partnership with them in order for this to work. It wasn't feeling cooperative to me at that point at all.

Q. Okay. Before the meeting which we have heard occurred on November 24 did you have discussions with other people in the Falmouth School Department about the notion of having a functional behavioral assessment?

A. We tried to think of some ways in order to be able to get our arms around what was clearly a difficult and challenging play area for Jan. It was overstimulating. He was having trouble interacting with a variety of adults. Sometimes his play was wonderful. Sometimes his play and some of his decisions were explosive, and the interventions were inadequate. We felt that there could be a couple of purposes for functional behavior assessment. One of them is to really look closely at those triggering events that cause these explosions to occur, that caused the defiance of adults to occur. Were there precursors we could better plan for, or were there triggers that we should look to try to avoid in his play? So we really functionally wanted to know what was happening for him. Secondly I wanted us to have clean data so that any perceptions I might bring to the table or his mother or other caregivers might bring to the table would be leveled, would level the playing field and look at data together. It wouldn't be my feelings about this, my sense of that, her feelings or sense about this or that. We were looking at data as objectively as--possible in order to come up with a very tight behavior plan. The behavior plans I am familiar with the school writes are very, very, very logical and sequential on behalf of the child. If X happens Y happens. If Y doesn't happen Z happens, and it's all laid out so there is no surprises. The child can learn and progress, that's what our experience has been in the past with behavior plans. They are designed to learn and make progress. I wasn't seeing progress happening, and I was seeing situations evolve that were detrimental to the well-being of Plummer-Motz and Lunt students.

Q. So the point of the behavioral assessment then was to put together a behavioral plan?

THE COURT: I wonder would this be an appropriate break point for the lunch hour?

THE COURT: It's a little after noontime. I will suggest we take our lunch recess now and we will reconvene at one o'clock please.

(Court was recessed at 12:09 p.m. and resumed at 1:08 p.m.)

THE COURT: Counsel, please be seated, Miss Powers, thank you. We have staffing shortages in the court, so the clerk is gonna retire to the clerk's office to attend to some business, so I am gonna account for the exhibits as we go along. I will leave them on the clerk's bench for counsel as you need to access them. Please return them. We will attempt to account for them at the close of the proceedings, okay. Thank you all. Attorney Hewey, if you are ready please.

Q Thank you, Your Honor. I think when we broke we were talking about your, the events leading up to the 11, 24 service team meeting, you were at that meeting, is that right?

Q. And was the functional behavioral assessment described to Miss Fitzpatrick and her lawyer?

Q. And what was their response?

A. Well, there were a lot of questions about the nature of our concerns in general, the functional behavior assessment was proposed as a way we could really work on a new plan, and frankly one indication or another wasn't given at that time. It was they wanted a chance to think about it and get back to us, and I was very hopeful that this would let us move to that next step of figuring out something together.

Q. And then ultimately Miss Fitzpatrick notified you that she would not go forward, is that right?

Q. Did she at any time either in writing or orally provide an alternative plan?

Q. Okay. As a result of that, of the fact that they didn't want to go forward with the behavioral assessment and didn't provide an alternative plan did you decide to revoke Jan Rankowski's permission to attend, to attend the playground during school hours?

A. Yes, I did, and I think Mrs. Crowell was the one that communicated that formally.

Q. Okay, and could you tell the court why you made the decision you did?

A. Well, it was the same decision that brought us to the service plan to start with. I felt that the issues that had evolved primarily noncompliant with adults, underlying adult authority and language issues were pervasive enough that we really needed to start fresh in order for him and our children together to have a successful experience on the playground, and without more data and without a tighter plan I didn't feel that that could occur based on what I had seen for the past two months.

Q. Did you, in making that decision did you factor in what you considered to be the effect of this behavior on the other students in the playground?

A. Absolutely. In fact if I had a sort of final straw moment I mean I figure adults can work through issues with something they may find offensive, and I try to support them in the weeks preceding that, but when his behavior was significantly impacting other children and their own personal IEPs and their progress that's when I felt it really roved to the next level.

Q. And how was his behavior in your view impacting children with and without IEPs?

A. Well, the children with IEPs certainly had goals around their own socialization, their own social behavior. They didn't have presenting issues that unlike Jan's. We deal with-a wide range of disability on our playground. They all have their own plans, and they are all making great progress, and I felt that some of their attempts to their case manager attempts to assimilate these children with their own peers were being irreparably harmed by these interventions, and I felt that same children were being emotionally distraught by what was going on, and for all children when they see the adult authority who they trust to keep them safe being repeatedly challenged that that's an emotional risk that I wasn't willing to keep going on out there.

Q. Thank you. I have no further questions.

REDIRECT EXAMINATION

Q. I want to show you what's been marked as Plaintiff's Exhibit 29 and ask you to tell me what that is? MS. HEWEY: No you have a copy for me?

Q. I do not, but I will let you see it, counselor. Can you tell me what it is? Would the witness please tell me what it is then, I will show it to counsel.

A. It was an e-mail that Gayle wrote to me following that meeting on October 6. THE COURT: Please let counsel see it first.

Q. It's an e-mail that Miss Fitzpatrick sent to you?

Q. You remember receiving it, don't you?

Q. Move to offer Plaintiff's 29.

Q. That e-mail was sent to you on September 29, I'm sorry?

Q. I'm sorry, October 6, based on a meeting that you had with her that day, right?

Q. Now if I understand you correctly the issues that you had with Jan Rankowski were unacceptable language, unresponsiveness to adults and undermining adult supervision of others, is that correct?

Q. Okay. You're aware of Plaintiff's Exhibit 15 which is Mora Katz' note to herself of the 11, 24 draft where she concludes that as to those three behaviors quote, these behaviors are not totally unheard of in children with autism or Asperger's?

Q. No you know more about autism than Mora Katz? A I don't.

Q. Would you disagree with Mora Katz' conclusions that those three behaviors which was the basis of your November 24 meeting were consistent with a child having Asperger's autism?

MS. HEWEY: He said consistent. She says in the note not, you know, I can't remember the word.

Q. Do you disagree with Mora Katz' conclusion that these behaviors are not totally unheard of in Asperger's autism children?

A. No. I have testified we respond to a variety of presenting behaviors on our playground.

Q. You would agree with me that there are no reflection sheets of any kind last fall on Jan's behavior in the playground?

A. Reflection sheets?

Q. Let's go to the September 22 date when three children came up to you and talked about, using your words, offensive action, hitting in the groin and rock throwing, do you remember testifying to that?

Q. And you said that there were two sides to the story, and your conclusion was that there was wrongdoing on both sides?

Q. Any reflection sheets done about the three other children involved in the altercation with Jan Rankowski on that date?

Q. You understand that the three children were bullying and harassing Jan Rankowski on that date?

A. That was Gayle's description.

Q. You weren't there, you didn't see it, did you?

Q. In terms of rock throwing the children tell you that the child, our child Jan was throwing rocks at another child or just throwing a rock?

A. Throwing rocks at them.

Q. But that's not what your note says, is it, your note just says throwing rocks?

A. Right. I doubt if I would worry if he was just throwing rocks at a fence.

Q. Move to strike. It's nonresponsive to the question. Your note that you kept to yourself says rock throwing, not rock throwing at another person?

Q. Now you conducted an investigation, and did you take any remedial action to punish the three children involved with the altercation with Jan?

A. My work with children --

A. That's, that's not a yes or no answer again, Mr. Coles.

Q. Well, you reported an incident on September 24 where there were four children involved, one of them Jan Rankowski?

Q. That's right. Did you take any action to punish the other three children?

A. I did not punish the other three children nor Jan.

Q. But what you did subsequently several months later was to get rid of the victim, that is to get rid of Jan from the playground, right?

A. I hardly would describe it that way.

Q. Well, if he is being harassed and teased and bullied by other children he's a victim of harassment, is he not?

A. It ended September 26 when Mrs. Gilbert was proximate to play.

Q. But it happened between November, I'm sorry, September 22 and September 24 when the mother came to complain to you and Miss Katz about harassment and bullying of her child?

A. She never came to me. I initiated the call.

Q. But part of that meeting on September 24 involved Gayle Fitzpatrick telling you and Mora Katz my child is being bullied and harassed by other students?

A. On the 25th when we sat and raised our mutual concerns, yes, that's when she brought it to my attention. She first mentioned it on the 24th when I called her.

Q. Now there is a record, it's in the reflection sheets that on September 24 you did have a reflection sheet of some child throwing rocks, do you remember that?

A. I believe you showed that to me. I can't quote it.

Q. Was that one of the children involved in the altercation with Jan Rankowski?

Q. That was a separate incident?

Q. On you have any independent records other than your note that Jan Rankowski was actually on the playground on September 24, 2003?

Q. Now the three areas that Mora Katz says are not totally unheard of in children with autism Asperger's, that's unacceptable language, unresponsiveness to adults, undermining adult supervision. As to those three items are they a direct threat to the health and safety of other children?

Q. Well, two of them is unresponsiveness to adults and undermining adult supervision?

Q. You would agree with me that that is not a direct threat to the health and safety of a child?

A. It can be if he is asking to desist in a behavior that's unsafe.

Q. But of course that's consistent with autism behavior, is it not?

A. The intervention would still need to be there, Mr. Coles.

Q. The intervention for other children that throw rocks, hit other children, push other children, lie is one or two, three days time-out. We went through that, didn't we?

Q. But your response was let's get rid of the victim for seven months?

Q. You talked about the tire swing incident where you felt the interaction was, between the child and Tammy Paul was disrespectful?

Q. And again I am just repeating what you said, you keep on talking about undermining authority, undermining authority, disrespectful behavior?

Q. And your suggestion to the court is that that may be a serious threat and safety issue to other children, is that correct?

Q. You would agree with me that the results of discrimination are end based, that is the results and not the thoughts or state of mind of the discriminator?

MR. COLES: I don't think so, Your Honor. I think, you know, let me just state briefly if there is a Jim Crow situation of a separate water fountain one does not have to get into the state of mind who created the water fountain says black only.

THE COURT: It's legal argument, isn't it? I mean that's something I will hear from you on, but whether she believes that's the law or not is not going to assist. She is not an attorney. What you or what Attorney Hewey have to tell me, information you give me on that may be of assistance.

Q. It's fair to say that whatever issues you really had was with Gayle Fitzpatrick, the mother?

A. My concerns around Jan's presenting behavior had much more to do with the lack of a behavior plan that was increasing his positive social interactions, whether it was supervised by Gayle or her home providers, yes.

Q. But you basically, be fair to say you didn't get along with Gayle Fitzpatrick?

A. I wouldn't characterize it that way. I think we have very different views on things.

Q. Her view as the parent is to protect her handicapped child, yes?

Q. And your view as the principal of the school is to have obedience and cooperation in the playground?

A. And protect everybody else.

Q. Was it your conclusion that to protect everybody else you would suspend Jan for seven months from playground use?

A. He was not suspended for seven months, and T am tired of that characterization frankly.

Q. Move to strike as to what her --

Q. There is a note that in one of the notes of the observations for five weeks that Jan jumped off a swing the wrong way or bench the wrong way, did you see that one?

Q. What's the right way jumping off a bench?

Q. Do handicapped and nonhandicapped children jump off benches?

A. We are trying to keep them safe.

Q. Do handicapped and nonhandicapped children jump off benches?

A. Handicapped and nonhandicapped children are taught how to use the playground safely, and it was an issue of that, and, yes, I'm sure it happens from time to time.

Q. You remember Lunt and Plummer-Motz student handbook 2003, 2004 Defendant's Exhibit 8?

Q. I am handing it back to you page twelve, page twelve has playground rules, is that correct?

Q. Is there anything in playground rules that talks about tire swings or jumping off the benches the wrong way?

Q Did you understand my question?

A No. Say it again please.

Q Is there anything in the playground rules page twelve item eight that talks about jumping off benches or tire swings?

A It talks about tire swings.- It doesn't specifically mention benches.

Q Let's go through playground rules. Tell me if I am reading it correctly. No. 8, playground rules, in order to have a safe and happy playground the following rules should be observed by all children: A, a personal space should be used while playing at recess time. Did I read that correctly?

Q Does personal space play any part in Jan's behavior?

A There were personal space encroachments if you wanted to go that far with it, but personal space has to do with respecting enough room around another child that you are not getting into an area that would feel unsafe to them.

Q. That's a situation of both handicapped?

Q. And nonhandicapped children?

Q. Whether they are home schooled or in-school students, right?

A. Anyone using that space.

Q. B, the same language expected of students inside the building is also expected on the playground. Did I read that correctly?

Q. You have heard children curse inside the school, haven't you?

Q. You have heard them curse outside the school? A Yes.

Q. You have heard handicapped children curse, you have heard nonhandicapped children curse?

Q. Number C, waste should be properly disposed of in the receptacles provided.

Q. Did I read that correctly?

Q. Is that an issue here?

Q. D, on top of page 13, toys should be left at home. Is that an issue involving Jan Rankowski?

Q. E, swings and other playground equipment or game areas should be shared with others in a timely way. Is that an issue here?

A. It was difficult for him, yes.

Q. Remember exhibit, Defendant's Exhibit No. 2 which was an e-mail that's been introduced, it's an e-mail from Gayle Fitzpatrick to you on October 31?

Q. Where she asks you the question No. 2, is Mrs. Gilbert or other staff recording notes, data of any kind or observations about Jan Rankowski while he is on the recess yard. Did I read that correctly?

Q. And your response was there are no assessments being taken?

Q. You never really answered that question, did you?

A. Not at clearly as she liked apparently.

Q. Now you have heard the testimony from Mora Katz that prior to, leading up to the November 24 meeting she had not read Jan's prior assessments. You heard that testimony?

A. No, I don't recall her saying that.

Q. Suggesting to you that she hadn't read Jan's assessments. Did you read any of Jan's assessments prior to the November 24 meeting with the parents and myself?

MS. HEWEY: I object to the form of the question. I don't object to the second part which is did you read them, but I object to the characterization of Miss Katz.

THE COURT: I will sustain that as to the first part. You may answer though the latter part of that question asked as to whether you read it.

Q. Okay. So you were aware that this was an Asperger's autism child?

Q. And that he had the social skills of a four-year-old, communication skills of a six-year-old?

A. That was what was proposed, yes.

Q. And some of these assessments were very lengthy by neuropsychologists, by Tufts Medical Center, am I correct?

Q. But you felt that you wanted some clean data on the child?

Q. And the way you wanted to do clean data was to tell the mother we want our school psychologist to look at this child?

A. We wanted our school psychologist and it's also in minutes that we were willing to bring in an autism specialist to help design the data collection and the whole assessment.

Q. You have seen the minutes of the November 24 meeting signed by Mrs. Crowell on the second page?

Q. Okay, and in it does it state specifically that you wanted your school psychologist to supervise a clean assessment to obtain clean data on the child?

A. I can't recall without seeing the minutes.

Q. Let's see if we can find the minutes. And I found it very quickly Plaintiff's Exhibit Four, show you the second page, let's read it together, the conclusions that the determination was one IDP written for functional behavior assessment, 2, schedule, schedule FBA after written consent is returned to the school department. Of course you never got that, right?

Q. No. 3, reconvene a PET on or before February 12, 2004 or within 45 school days of receipt permission to conduct FBA. Did I read that correctly?

Q. Four, suspension from playground during school hours remains in effect unless Jan is scheduled for an observation during fourth grade recess as predetermined by school psychologist F B A plans. Did I read that correctly?

Q. So you wanted to sort of clean the record being the school's psychologist's F B A plans?

A. As I said there was an offer to hire an autism expert to work with us on that plan.

Q. But that's not in the record, is that?

A. Well, is it in the minutes?

Q. It's not in the minutes, is it?

A. It's in my minutes.

Q. Well, you are looking at Caroline Crowell's records?

A. I have read in minutes somewhere that it was right here Mrs. Crowell proposed that the school psychologist Dr. Shakhart would oversee the functional behavior assessment, and the staff that would be collecting the behavioral data staff could include ed-techs, teachers, psychologist services staff or possibly behaviorist from Bancroft Neuro Health.

Q. Do you recall this kind of FBA of every child who you censure or say misbehaves in the schoolyard?

Q. No further questions.

(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, 27 August 2004 before Thomas E. Humphrey, Justice

9. TESTIMONY OF BARBARA POWERS

DIRECT EXAMINATION

CROSS EXAMINATION

REDIRECT EXAMINATION

RECROSS 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, 27 August 2004 before Thomas E. Humphrey, Justice

9. TESTIMONY OF BARBARA POWERS

DIRECT EXAMINATION

CROSS EXAMINATION

REDIRECT EXAMINATION

RECROSS 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.