Legal Issues
School officials have decisions to make after they stigmatize children as "problem students" in the classroom. Students and their parents are recommended to see a specialist to give their children different tests to try to uncover whatever problem exists. More times than not, the test results show that the students has some sort of learning disability and recently this "disability" has been diagnosed as ADD.
It is at this stage where the controversy begins. The specialist and the school come together to find what they feel will be the best solution in helping the student with his/her problem. When the tests results come back, they typically show that the student suffers intellectually, but not due to their lack of intelligence. They suffer from lack of ability to pay attention. They are now students with ADD/ADHD. The specialist and the school administrators recommend to the parents that their child should given stimulants, specifically Ritalin, to help with their disorder. They do not only recommend the use of drugs, but in special cases, students are given IEPs, Independent Educational Programs, where a regimen of Ritalin is expected.
Does the school have the right to tell parents that there children should take drugs like Ritalin to improve their academic standings in the classroom? It seems that schools would rather give students drugs than search for other techniques to help the child. Educators take the easist and cheapest way to solve their problems, the problems of their students. For them, drugs are the answer. Not only do these schools recommend that these students take the drug as part of their education, but "many parents state that school administrators have pressured them to continue the administration of drugs like Ritalin," even if the parents prefered that their children stay drug free or that the drug is having negative effects on their children. "These parents claim these educational procedures have presented the threat of isolation and stigmatization of their children, and ultimately, exclusion from educational services altogether."
What are there legal repercussions of allowing the school district, as the embodiment of state authority and control, to decide on who it should and should not control with drugs? If these schools recommend that these students take these drugs, are they responsible for payment of the drug as well as administering the drug during the school day?
The United States Supreme Court recognized that an individual has a privacy right to refuse unwanted medical treatment, ranging anywhere from blood transfusions to major surgery. This includes a students right not to take Ritalin. The basis for this right is found in the penumbral right to privacy and bodily integrity first recognized in Griswold v. The State of Connecticut. This right was directly challenged by the State of New Hampshire and its treatment of Casey Jesson.
The Jesson Case
Casey Jesson was diagnosed as suffering from ADHD in 1985, while he was in kindergarten. Voluntarily, his parents put him on Ritalin, even though neurological examinations turned up nothing unusual. As he entered the first grade, Casey's parents began to notice disturbing patterns of beahvior. Casey continued the use of Ritalin because, even though it was not showing any improvement in academic achievement, it was lowering his actvity level. As he continued withn his Ritalin regimen, his behavior worsened tremendously. Boston's Children Hospital performed a full evaluation where even though Casey exhibited symptoms of ADHD, there was no neurological basis for the disorder to be found. After taking several suggestions for treatment, the Derry School District (Casey's school system) constructed a temporary IEP for Casey.
The IEP recommended special education classes, counseling for Casey and his parents, and Ritalin. Because of the drug, Casey's parents refused the IEP and appealed to the Board of Education. His parents felt that Ritalin had had terrible effects on their child and they no longer wanted him on it. CaseyÕs IEP called for Ritalin, and his parents were not going to give it to him. The State of New Hampshire backed the school's decision that Casey must take Ritalin in order to attend mainstream classes in his public education. Although the IEP required the drug, Casey's parents said no. (Divorsky, 1989, pg 600)
At a meeting to help develop a permanent IEP for Casey, the Jessons refused to accept an IEP that included the requirement for Casey to take Ritalin. School officials said that, "would have no choice" but to suspend Casey from school, (O'Leary, 1993, pg 1200) and he was suspended for twenty days. At a due process hearing, the hearing officer found that Casey's suspension violated his due process rights but that the rest of the IEP, including the administration of Ritalin was appropriate. The Jesson's appealed.
Judge Loughlin found that Casey's "right to a free appropriate education could not be premised on the condition that he be medicated without his parents' consent." In addition, the school district violated the federal Individuals with Disabilities Education Act by failing to notify the Jessons about changes in Casey's education, including a month of "isolation" with a teacher in a tiny room. The Jessons, acting in behalf of their child, had the right to be free from forced administration of psychotropic drugs, like Ritalin, because of their constitutional right to privacy and bodily integrity. This case had important implications. If the government could force a child to take drugs against his parents' and doctors' wishes, they could also force other sorts of medication upon children.
There are two other interesting cases that are related to the schools' authority to medicate its students. These concern payment for Ritalin and the administering of the drug during the school day. These cases raise the question of how much responsibility the school is willing to take, when it recommends Ritalin to their students.
In one recent case involving the Somerville Public Schools, Charles A., the parent of second grade student Frank A., sought reimbursement from the school district for the cost of the student's prescription medication, Ritalin. In the parents argument, "its [Ritalin] use, benefit and effectiveness in the educational setting is both noted in his IEP and acknowledged by his teachers."
The Somerville Public Schools agreed that Ritalin was educationally beneficial to the student, but that they were not responsible for the costs of the medication. The S.P.S. argued that, "prescription medication is not a 'related service' as defined by either federal or state statue/regulations, or case law interpreting the same; that is, it is neither a 'medical service' nor a 'school health service' within the meaning of the IDEA" [Individuals with Disabilities Education Act.]
Frank A. was only administered Ritalin mornings before school by his parents and not on weekends, evenings, school vacations or holidays. His IEP notes under Student Instructional Profile that "Frank takes Ritalin to help him attend and stay focused." Even though Frank's current special education teacher acknowledges that his ability to focus and stay on task in the classroom is significantly better when he is on Ritalin, the hearing officer found in favor of the Somerville Public School System. Reece Erlichman, the hearing officer, concluded, "that the supply or funding of Ritalin, a prescription medication is not a 'related service' legally required to be provided Frank A. by S.P.S., as it is neither a 'medical service' or a 'school health service' as defined by state or federal law." (23 IDELR 932)
This case clearly shows a paradox between what the school thinks should be done and what the school is willing to do. Ritalin is not a cheap drug, a drug which many families are unable to afford. Ritalin is also a solution schools recommend to many of its students to help in the classroom. It is apparent that there has to be some sort of compromise. If Ritalin proves to be a successful solution to both the school and the student, why is it not possible that they share the responsibility?
In another related case, the Eighth Circuit Court of Appeals said that a school district was not required to administer medication to the students through the school's nurse's office. In Davis v. Francis Howell School District the school nurse, who had been administering Ritalin to an elementary school student with ADHD for about two years, determined the dosage was higher than recommended and stopped giving it to the student. The school district and the district court both backed the nurse. (Socher, 1997, pg B24) In this case, the nurse may have been correct if the drug was being abused. Assuming that in most cases Ritalin is being taken in the correct dosage, would it not be the wise decision to have the school health official closely monitor its use? In situations where Ritalin has been encouraged, they should be equally responsible for its administering.
Schools are very quick to recommend to their problem students the use of Ritalin to help improve academic achievement, but they seem reluctant to take any other form of responsibility in this medication. It is possible that schools should have no role in medicating its students. However, it is clear that schools should do what they think is best for its students and their future. Where should the line be drawn? Right now, this argument over the school acting as doctor in the classroom is unsettled both in law and policy. This case law examines the different legal boundaries a school has in the medication of its students. There are still larger issues than whether or not a school is responsible for administering Ritalin during the school day.
"More fundamentally, the legal issues surrounding the uses and abuses of Ritalin itself may ultimately be of little significance. The underlying political and social causes of such practices - the idea that to be different is to be bad, and that the State is to be maker of such decisions - are potentially of more consequence for a free society. Such concepts are antiethical to the moral and ethical foundations of our legal system. It should disturb and alarm us that, whether intentionally or not, such lessons are now part of the curriculum in our schools." (O'Leary, 1993, pg 1209)
Government 375: Educational Reform and Ideology