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(Cite as: 27 New Eng. L. Rev. 1173)

New England Law Review

Summer, 1993

Note

*1173 AN ANALYSIS OF THE LEGAL ISSUES SURROUNDING THE FORCED USE OF RITALIN:

PROTECTING A CHILD'S RIGHT TO "JUST SAY NO"

James C. O'Leary [FNa1]

I. Introduction

It is estimated that between four and ten percent of all school age children currently suffer from Attention Deficit-Hyperactivity Disorder, commonly referred to as hyperactivity. [FN1] Characteristics of this disorder are restlessness and continued over activity by the child, coupled with an extremely short attention span. [FN2] In the school environment, teachers quickly become frustrated with children who are unable to conform to the rigors of the classroom environment, [FN3] and therefore they label *1174 many of these children "learning disabled." [FN4] Such labeling can produce an almost automatic reaction by school administrators and parents for special educational services and medical treatment. [FN5] The impact of this reaction is twofold: first, once a determination of a child's possible hyperactivity is made, treatment of the child tends to be narrowly focused on curing their symptoms, rather than determining the underlying cause; [FN6] second, the criteria for the child's "cure" from the disorder thereafter becomes his ability to conform to the demands of the classroom environment. [FN7]

Stimulant drug therapy is one of the most popular and effective methods of treating a hyperactive child. [FN8] Methylphenidate hydrochloride, *1175 better known by its brand name Ritalin, [FN9] is the most widely prescribed stimulant drug for this purpose. [FN10] Stimulant drug treatment has the twin virtues of producing almost immediate results, [FN11] while at the same time being inexpensive. [FN12] However, the treatment has some drawbacks. The drug Ritalin, in essence, does little more than keep a child still. [FN13] Whether a child is learning anything, or simply staring off into space, has been the subject of controversy since the introduction of these drugs in the late 1960s. [FN14] Sitting still, following instructions, and not causing a disruption in routine are the qualities of a chemically cured hyperactive child. [FN15] For some children, the use of stimulant drugs is an appropriate treatment. These children show marked improvement in many behavioral aspects. [FN16]

There is, however, another side to the story. The side-effects of stimulant drugs on a growing child's brain are not completely known. [FN17] In response to their desire to rely on alternative forms of treatment, [FN18] some parents state that school administrators have pressured them to continue the administration of drugs such as Ritalin. [FN19] These parents claim these educational procedures have presented the threat of isolation and stigmatization of their children, and ultimately, exclusion from *1176 educational services altogether. [FN20] Forcing the use of drugs, such as Ritalin, solely to control disruptive students [FN21] is a violation of the constitutionally protected liberty interests in one's privacy and bodily integrity. [FN22] Furthermore, forcing a hyperactive child to take Ritalin violates his or her right to an education under current federal law by preconditioning that education. [FN23]

This Note will first provide background on the development and use of Ritalin as a tool in the treatment of hyperactivity. [FN24] It will then explore the existence of a child's right to receive public educational services unconditioned on the use of mind-altering medication. [FN25] Although the United States Supreme Court has yet to comment on this issue specifically, the Court has in recent years established a right for both incompetent and mentally ill patients to be free from unnecessary restraints absent special circumstances. [FN26] The United States Supreme Court has also recognized the right of involuntarily committed mental patients and imprisoned criminal offenders to be free from the arbitrary administration of antipsychotic drugs. [FN27] This Note will demonstrate that the issues addressed in these cases are analogous to those present in cases involving hyperactive children. Moreover, this Note will show *1177 that the state interests of protecting the public, that allow the state to require the restraint of both body and mind in the case of a violently insane inmate, are not present in the case of an annoying six-year-old. [FN28] Next, the issue of whether and when a state can mandate medication for hyperactive children will be addressed. A brief exploration of the federal law that entitles such special needs children to a public education, [FN29] followed by a discussion of the foremost case on the use of Ritalin as a precondition to education. [FN30] Finally, this background will be juxtaposed against several possible legal theories under which challenges to this practice may be brought. [FN31] This Note does not seek to undermine the recognized legitimate efforts made by physicians and parents in treating hyperactive children. The focus of this Note is to address the legal repercussions of allowing the school district, as the embodiment of state authority and control, to decide on whom it should and should not control with drugs. [FN32]

II. Ritalin

Children have been running, screaming and getting into every conceivable kind of trouble throughout time. This does not make them hyperactive. [FN33] Attention Deficit-Hyperactivity Disorder requires a behavior pattern of constant over activity and inability to concentrate on one activity. [FN34] It is also known as hyper kinetic syndrome, and is four to five times more common in boys than in girls. [FN35] Some suggest that hyperactivity, especially when combined with excess clumsiness by children, is the result of some minimal form of brain damage, though no conclusive proof has ever been presented. [FN36] While hyperactivity by itself is not necessarily indicative of the condition, minimal brain dysfunction is generally considered the most common diagnosis once *1178 factors such as in-home stress have been eliminated and any over activity and reckless behavior continue after the child's fourth year. [FN37] The leading theory on the cause of hyperactivity is that the condition is neurobiological in nature. [FN38] Experts now believe that, in truly hyperactive children, the midbrain is for some reason under aroused, leading to an absence of its damping effects on movement and sensation. [FN39] This has lead experts in the field to rely on chemical intervention, in the form of stimulant drugs, as the primary method of treatment [FN40] in trying to stimulate the midbrain into activity. [FN41] Ritalin is the most common amphetamine prescribed to hyperactive children for this purpose. [FN42] By 1974 Ritalin had beaten out the once popular and less expensive drug Dexedrine as the drug of choice in treating hyperactive children. [FN43] Ritalin is classified as a nerve stimulant, [FN44] along with other amphetamine drugs such as caffeine, dextroamphetamine, and methylphenidate. [FN45] Such stimulants produce an increase in neutral activity which, in most people, results in an actual increase in motor activity. [FN46] Nobody knows exactly why Ritalin produces the opposite result in hyperactive children. [FN47] Generally accepted theory presumes that it somehow activates the brain stem arousal system and cortex, stimulating the under aroused portions of the child's brain, thereby allowing it to better regulate the child's motor functions. [FN48] This lack of understanding has led to some controversy regarding Ritalin's safety, and the ethics of *1179 prescribing it to children. [FN49] The facts, however, clearly indicate that in most cases, Ritalin treatment works without any adverse affects. [FN50]

Ritalin comes equipped with two varieties of controversy. The first involves the issues of misdiagnosis of hyperactivity, and the overpresciption of stimulant drugs as a treatment. Lawsuits involving these issues began in 1987. [FN51] Parker v. American Psychiatric Ass'n, [FN52] an unreported case, was a class action against the Gwinnett County, Georgia school board for violating approximately 20,000 children's constitutional right to be free from Ritalin, and for misrepresenting the drug's effects to parents. [FN53] The plaintiffs in this suit charged that the school board coerced these children into taking Ritalin. [FN54] They also charged the American Psychiatric Association with fraud and misrepresentation for its overly broad definition of hyperactivity, [FN55] claiming it was legally void for vagueness--causing normal children to be misdiagnosed as having the syndrome. [FN56]

The second controversy, and one that is only ancillary for purposes of this Note, involves the potential for dangerous (and possibly psychotropic) side- effects allegedly produced by the drug. This issue was highlighted in Massachusetts in 1988, when attorneys for Rod Matthews argued that Ritalin, through its altering of brain chemistry, had exacerbated Matthews' mental illness, leading him to become obsessed with the idea of killing another child. [FN57] This argument has become widely known as the "Ritalin defense," and it exemplifies an extreme, but valid, concern regarding the adverse potential of widespread drugging. [FN58]

Issues regarding the dangerous side-effects of such treatment, [FN59] however, are best left for the medical profession to resolve. As a legal issue, it is the reliance on such drugs by school administrators that is *1180 the prime concern. [FN60] Prescribing stimulants to hyperactive children is often the first therapeutic step taken by physicians, [FN61] and the initial results are both positive and dramatic in terms of school discipline. [FN62] Some argue that some school administrators have come to regard it as essential to the education of hyperactive children, [FN63] at the expense of other, equally valid forms of therapy. [FN64]

Sometimes, parents' decisions to remove their children from Ritalin treatments result in increased pressure from school administrators to reinstate the treatment. [FN65] If the parents refuse, their child may be threatened with the stigmatization of placement in isolated environments [FN66] or even expelled. [FN67] The schools complain that, unless certain children receive the drug, education of the remainder of the class becomes impossible. [FN68] While this could be true in some cases, it should be the parent, not the school, who determines the appropriate program of treatment for the child. There also exists the possibility that school administrators, faced with increasingly difficult operations in these days of shrinking budgets and program downsizing, are overusing the drug in their effort to comply with the demands of federal special education legislation. [FN69] The school's authority to require, and the constitutional *1181 right to refuse, such mind-altering medication, are in direct conflict. [FN70]

III. The Constitutional Right to Refuse Mind-Altering Medication

The United States Supreme Court recognized that an individual has a privacy right to refuse unwanted medical treatment, ranging from such simple procedures as blood transfusions [FN71] to major surgery. [FN72] The basis for this right can be found in the penumbral right to privacy first recognized in Griswold v. Connecticut. [FN73] The privacy right recognized in Griswold can act as a bar to unwanted medical procedures unless there is a legitimate state interest in the procedure and there are no less intrusive methods available to accommodate this interest. [FN74] With *1182 regard to procedures involving an unwanted physical or chemical restraint of a resident of a state penal or psychiatric facility, state interests that have outweighed such privacy rights are driven by a desire to protect violent patients from harming themselves or others. [FN75] Furthermore, such situations also implicate a liberty interest under Fourteenth Amendment due process rights. [FN76]

A. Liberty Interests and Mental Patients

The legal theories surrounding the exercise of these privacy and due process rights by patients/inmates are best articulated in the areas of psychological treatments such as behavior modification treatment for dangerous criminals, [FN77] electroshock therapy, [FN78] and the use of antipsychotic drugs. [FN79] The issues surrounding the use of Ritalin on hyperactive children are most analogous to the use of antipyschotic drugs--in particular concerning the similar rationales used by both institutions of correction and education for the drugging of their populations. [FN80]

*1183 The liberty interest of mental patients to be free from the forced administration of psychotropic medication [FN81] was first addressed in a federal court in Rogers v. Okin. [FN82] In Rogers, the United States Court of Appeals for the First Circuit delineated the exact nature, under the federal constitution, of the individual's right to be "left free by the state to decide for himself whether to submit to the serious and potentially harmful medical treatment that is represented by the administration of antipsychotic drugs." [FN83] Noting with some surprise that the precise textual source of this right was unclear, and that authoritative support for this finding was scant, the court nevertheless characterized the right as intuitively obvious. [FN84] The most likely source for such a liberty interest was the penumbral right to privacy, bodily integrity, or personal security. [FN85] The trial court decision referred to a First Amendment right to *1184 be free to generate ideas. [FN86] The Court of Appeals decided the case instead under the right to privacy, and therefore declined to address the First Amendment issue. [FN87] Once the right to be free from forced medication was recognized, the Court of Appeals turned its attention to circumstances under which the right could be overcome. [FN88] The court concluded that the individual's liberty interest to be free from unwanted medication could be overcome under two legal theories. Under the first theory, state police power would prevail in emergency situations, where failure to medicate might result in injury to the patient or others. [FN89] The second theory applies only in cases of incompetent patients. Under this theory, the state has a parens patriae power [FN90] to administer mind-altering drugs when there is a substantial possibility that such treatment could relieve the suffering of the incompetent patient. [FN91]

Although the United States Supreme Court granted certiorari in this *1185 case [FN92] and recognized the validity of the Court of Appeal's reasoning, [FN93] it declined to clearly define the substantive limits of the right to be free from forced medication under the United States Constitution. [FN94] It so declined because an intervening case decided by the Massachusetts Supreme Judicial Court [FN95] called into question the extent of state law protection of such a liberty interest. [FN96] Because the protection afforded to the patients in this case may have been greater under Massachusetts state law than under corresponding federal law, the Supreme Court decided that the rights of these patients might be better served by vacating the decision of the Court of Appeals, and remanding the case for further proceedings. [FN97]

B. Restraint of Dangerous Inmates: Institutional Safety

Institutional concerns for order and safety played an even greater role in the Supreme Court's decision in Washington v. Harper. [FN98] In Harper, the Court ruled that institutional considerations of order and, especially safety, outweighed the prisoner's liberty interest in refusing antipsychotic medication. [FN99] Harper suffered from schizophrenia, [FN100] and under a Washington state penal policy, prison authorities could *1186 medicate him with antipsychotic drugs if a psychiatrist determined that he was dangerous to himself or to others. [FN101] Harper brought a civil rights action under 42 U.S.C. § 1983 claiming that such forced medication was a violation of his liberty interest under the Due Process Clause. [FN102] Harper also claimed that procedural due process required a judicial hearing before any inmate could be placed against his will on such mind altering drugs. [FN103] Under SOC Policy 600.30, Harper was entitled to an administrative hearing prior to his being placed on the antipsychotic. [FN104] This review was supposedly comprised of disinterested parties, although there was evidence in the record that each member of the reviewing panel had some connection with, and perhaps a vested interest in keeping order within the institution. [FN105] Harper was *1187 also entitled to have his forced medication decision reviewed on a regular basis to determine both its continued efficacy and safety. [FN106]

The Supreme Court agreed that Harper possessed a liberty interest in being free from the arbitrary administration of such medication, [FN107] but found that the treatment here was not arbitrary. [FN108] Harper had in the past posed a serious danger to others, [FN109] and the Court reasoned *1188 that the legitimate institutional concern for the safety of other inmates and staff, along with a valid, but secondary concern for control of the prison population, outweighed his liberty interest. [FN110] Furthermore, the Court concluded that the administrative hearing process that the prison engaged in satisfied the requirements of procedural due process, negating the need for a judicial hearing. [FN111]

The Court was very careful to note that it based its decision on concerns for safety and treatment. [FN112] Even in the case of dangerous criminals, such forced medication could be used only when it was in the medical interest of the prisoner, and could never be used solely for punishment or institutional order. [FN113]

*1189 C. Physical Restraint of the Handicapped

There are also Supreme Court decisions dealing with the constitutional right of committed children and incompetent mental patients to be free of bodily restraints which are applicable through analogy to a child's right to be free of intellectual restraint. Although the Court in Parham v. J.R. [FN114] declined to allow a child a hearing before a tribunal before he could be committed to a mental institution, [FN115] the Court did recognize the child's liberty interest being free from bodily restraints and from the emotional harm that can result from such commitment. [FN116] *1190 In this case, an entire class of children brought a civil rights action under 42 U.S.C. § 1983, claiming that the procedure prescribed for such commitment under Georgia law violated their procedural due process rights under the United States Constitution. [FN117] The Court, while recognizing that children have such a liberty interest, [FN118] nevertheless held that the Georgia Code adequately protected these rights. [FN119]

Like a prisoner's right to be free from forced medication, a handicapped patient's right to be free from bodily restraint can be outweighed by institutional concerns for safety, though not for purposes of discipline or punishment. In Youngberg v. Romeo, [FN120] a mother filed a suit on behalf of her incompetent, committed son. [FN121] Romeo demonstrated a propensity for violence against himself and others.[FN122] Hospital staff confined Romeo with cloth restraints at certain times during the day--such as when he or other patients were receiving intravenous medication or tests. [FN123] The Court ruled that the test for determining whether an individual's substantive liberty interest to be free from bodily restraints had been violated was to "balance 'the liberty of the individual' and 'the demands of an organized society." [FN124] In this case, the Court found that the reasons for confining Romeo were "reasonably related to legitimate government objectives and not tantamount to punishment." [FN125] The court also suggested that the use of such a procedure as a disciplinary measure would be impermissible. [FN126]

Similar constitutional protections apply to schoolchildren as well. *1191 The Court in Goss v. Lopez [FN127] ruled that constitutional protection of liberty interests reached into the classroom. [FN128] The plaintiffs in Goss were students who had been suspended, without notice, for participating in a protest on school grounds. [FN129] The Court held that the Due Process Clause of the Fourteenth Amendment required that these students receive some type of administrative hearing prior to their denial of educational services. [FN130] The Court reasoned that:

[t]he authority possessed by the State to prescribe and enforce standards of conduct in its schools, although concededly very broad, must be exercised consistently with constitutional safeguards. Among other things, the State is constrained to recognize a student's legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause. [FN131]

Whereas a routine suspension of a student for disciplinary reasons required only the most rudimentary form of such protection, [FN132] the Court *1192 did note that a more lasting, or even permanent exclusion from the regular classroom environment called for more careful, detailed procedures. [FN133]

The proposition that the implementation of radical behavioral controls, such as drugging or restraint, be used primarily for purposes of health and safety, and never purely as a means of maintaining order, is central to the Court's reasoning in the preceding cases. This, coupled with the impermissibility of depriving a student's educational entitlement in response to his exercise of a constitutional right, strongly suggests the illegality and impropriety of state mandated drugging of hyperactive children.

VI. State Mandated Drugging of Hyperactive Children

A. Background: The Right of Learning Impaired Children to a Special Education

A learning impaired child's entitlement to a special education, and the procedures used to formulate that education, are codified in the Education of the Handicapped Act (EHA). [FN134] Parallels can be drawn between the procedural rights of hyperactive children under this act, and the rights of patients/inmates who are subjected to behavioral control. [FN135] The EHA sets forth the procedural hurdles the state must clear *1193 as it formulates a particular child's special education. [FN136] Congressional intention in passing the EHA was to ensure that thousands of handicapped children who were receiving little or no education, and indeed, were being shut away in institutions without any chance of meaningful interaction with the outside world, would receive a "free appropriate public education" [FN137] that would provide them with some educational benefit. [FN138] To facilitate this goal, although not mentioning the term specifically, the EHA incorporates the concept of "mainstreaming" handicapped individuals to the greatest extent possible. [FN139] To maximize his or her integration into society, a mainstreamed child is placed in the same classroom with other, non-handicapped children. [FN140] Although mainstreaming has always been a controversial practice, and the subject of many parents' misunderstandings and fears, [FN141] proponents believe that it serves the important function of providing children, whose only "crime" is being different, with education and interaction among peers in the least restrictive environment possible. [FN142] Two landmark decisions of the United States' Federal Courts preceded the EHA. The first of these two cases, Pennsylvania Ass'n of *1194 Retarded Children v. Commonwealth of Pennsylvania (PARC), [FN143] dealt with provisions of Pennsylvania educational law that operated to exclude retarded individuals from access to public education. [FN144] Under Pennsylvania law, an exclusion could occur when a psychological evaluation had concluded that a child could not benefit from such access; [FN145] when a child had exceeded the maximum age requirement for public education (seventeen); [FN146] when a child "has not attained a mental age of five years"; [FN147] or when a child has been deemed "uneducable and untrainable" by a public school psychologist. [FN148] The court, in striking down these laws, [FN149] recognized the legal right of retarded children in Pennsylvania to a public education that addressed their individual needs. [FN150] The decision of and guidelines set out by the PARC court were to become the framework around which the EHA was to develop. [FN151]

The second of these two landmark cases was Mills v. Board of Education. [FN152] The plaintiffs in this case, a group of seven children with "behavioral problems," [FN153] claimed they had been wrongfully excluded from District of Columbia Public Schools. [FN154] The court held that the exclusion of children in need of special education was violative of the Equal Protection and Due Process Clauses of the United States Constitution. [FN155] The school district's defense was that it lacked sufficient funds to provide these children with an education. [FN156] The court rejected this argument, stating that such financial hardship did not allow the district to exclude an entire class of children from educational services. [FN157] The court then went even further. It issued a directive for the *1195 identification of all such special needs students and the implementation of procedural guidelines designed to safeguard their due process rights. [FN158] Cases such as PARC and Mills demonstrated to federal lawmakers the need for a uniform approach to the education of the handicapped. [FN159]

In response to this need, the United States Congress passed the EHA. [FN160] The purpose of the EHA was, and continues to be, to ensure that all handicapped children receive a "free appropriate public education" (FAPE). [FN161] The meaning of this term has been the subject of heated debate for some time, and the EHA has been criticized for its ambiguity in this regard. [FN162] Although at first glance the definition appears comprehensive, it becomes obvious upon closer examination that subsection (C) never defines the "appropriateness" of the learning disabled child's education. Such a definition was left to state and local educational authorities. [FN163] As will later be demonstrated, this has lead to less than satisfactory results. [FN164]

The mechanism designed by the EHA to protect a handicapped child's right to a FAPE is the Individualized Educational Program. [FN165] Although special educators have utilized this concept for years, the term itself is unique to the statute. [FN166] Individualized Educational Programs (IEP) must be developed for every handicapped schoolchild prior to the beginning of the school year. [FN167] Furthermore, they must be reviewed and revised if necessary at the minimum of once a year. [FN168] A conference between educators, parents and, where appropriate, the child, is the preferred method of developing an IEP, so that the input and needs of all may be shared and accommodated to the greatest extent possible. [FN169] It is at these proceedings that parents, as well as *1196 others who possess a legitimate interest in the child's educational development, are to make requests concerning any specialized services they feel are necessary to enable the child to benefit from the IEP. [FN170] The law prohibits state and local educational authorities from refusing special educational services to children for the sole reason that they are not currently being provided to any other student or because doing so would require them to hire additional personnel. [FN171]

Problems soon arose, however, in part because courts generally were more likely to favor an analytical framework that stressed procedural compliance in the formulation of the IEP, rather than substantive merit of the educational program being offered to the child. In Board of Education v. Rowley, [FN172] the petitioner was a deaf girl who had been denied the use of a sign language interpreter in her academic studies, despite the fact that she understood "considerably less of what went on in class than she would if she were not deaf." [FN173] In accordance with the EHA, the school district of Hendrick Hudson, New York had provided Amy Rowley with an IEP. [FN174] While the IEP allowed Amy the continued use of a special hearing aid, which enabled her to attend classes with other children, [FN175] it failed to grant her parents' request that she be provided with a special sign language interpreter in her academic classes. [FN176] The United States Supreme Court, in an opinion by Justice Rehnquist, [FN177] upheld the IEP, [FN178] stating that the concept of a "free appropriate public education" does not require providing a handicapped child with an opportunity to maximize his or her potential "commensurate with the opportunity provided other children." [FN179] It was for *1197 the state and local educational authorities to establish the substantive level of education that must be achieved by an IEP. The purpose of the EHA was to insure that all necessary procedural mechanisms were employed, allowing students and parents to participate in the decision making process to ensure that no violation of due process rights would occur. [FN180] Although Amy had shown great promise as a student, [FN181] it was not the responsibility of the State to make the most of her potential. [FN182] The Court reasoned that states were under no obligation to provide exactly equal levels of opportunity for handicapped children and their non-handicapped peers. [FN183] The Court concluded that the *1198 EHA provided only a "basic floor of educational opportunity" for handicapped children, beneath which the states should not fall if they wish to retain federal educational funding. [FN184] This floor consists of "access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child." [FN185] The Court refused to define substantively how large a benefit the child must receive from this educational access, [FN186] but preferred to confine its analysis to children who, like Amy Rowley, could be successfully mainstreamed into normal classrooms. [FN187] In such circumstances, the Court reasoned, the educational system itself provides the proper measure of educational benefit the child receives. [FN188] When a child receives passing grades and advances from grade to grade along with his peers, as did Amy Rowley, then that child is receiving an educational "benefit" of sufficient nature as to comply with the EHA. [FN189]

The statutory directive for identifying and accommodating all handicapped children, the requirements of mainstreaming these children whenever possible, and the analysis of IEP development used by the courts, have all played a part in the problematic education of the hyperactive child. It is the position of this note that, given such a large task and limited resources, the school system has unwittingly become "addicted" to the use of Ritalin as an "easy" solution to the difficult problem of educating hyperactive children.

B. The Jesson Case

Casey Jesson was first diagnosed as suffering from Attention Deficit- *1199 Hyperactivity Disorder (ADHD) in July, 1985. [FN190] His parents voluntarily put him on Ritalin, even though a neurological examination turned up nothing unusual. [FN191] In September 1985, Casey started the first grade, and received his Ritalin doses from the school nurse. [FN192] When Casey's parents began noticing that he was engaging in new, disturbing patterns of behavior - behavior that involved lying, stealing and fighting - they enrolled him in counseling. [FN193] Ritalin had lowered Casey's activity level, however, so he continued to receive it. [FN194] When reading tests were administered to Casey's second grade class in 1986, he scored so low that it didn't even appear on the charts. [FN195] Although Ritalin appeared to be aiding his concentration, there was no improvement in his grades. [FN196] Furthermore, Casey's behavior problems at home continued to worsen. [FN197] His self-esteem began to suffer as he recognized his own destructive tendencies and his inability to control them. [FN198] In May 1987, a Derry School District psychologist, who had been aware of Casey's difficulties but had not attempted to develop an IEP for him, administered tests to Casey. [FN199] The results showed, surprisingly, that "Casey had average to high intelligence and good reasoning." [FN200] Boston's Children's Hospital then performed a full evaluation on Casey. The hospital report stated that, although Casey suffered symptoms characteristic of ADHD, no neurological basis for the disorder could be found. [FN201]

By now Casey was eight years old, and his parents had become opposed to treating him with Ritalin because of adverse side-effects. [FN202] The team at Children's Hospital issued sixteen separate recommendations for treatment, including "cooperative learning, structured rather *1200 than competitive education, and the trial use of the drug Cylert." [FN203] The Derry School District incorporated some of these suggestions into a preliminary IEP for Casey to be implemented that year. [FN204] Under the EHA, both parties asked the State of New Hampshire, in August, for a Due Process hearing. [FN205] The State granted the hearing and scheduled it for the following December. [FN206] The Jessons were pleased with the structured educational program in which Casey was enrolled and believed that it was benefiting Casey. [FN207] However, when the Jessons requested that the State postpone the Due Process hearing, the Derry School Superintendent ordered that Casey be removed from the special program and returned to mainstream classroom education. [FN208] Furthermore, at a January 1988 meeting, held to develop a more permanent IEP for Casey, the Superintendent informed the Jessons that, because of their refusal to accept an IEP that included the requirement that Casey take Ritalin, [FN209] he "would have no choice" but to suspend Casey for the remainder of the year. [FN210] At a hearing before the entire school board, the suspension was reduced to twenty days, commencing on April 12, 1988. [FN211] At the Due Process Hearing, held on April 26, 1988 at Mrs. Jesson's request, the Hearing Officer found that Casey's suspension violated his Due Process rights. [FN212] The officer also concluded that the imposition of forced days off was a violation, but found that the rest of the IEP, including the compulsory administration of medication, was appropriate. [FN213] The Jessons appealed. [FN214]

At trial, several experts testified about the dangers of indiscriminate Ritalin treatment, and voiced their opinion that the Derry School District had not adequately researched Casey's troubles before requiring *1201 his medication. [FN215] The court found that, whereas the recommendations made by the team at Children's Hospital called for the administration of chemical intervention by trained professionals, with concomitant observation and modification of treatment as circumstances demanded, it was inappropriate for the Derry School District to condition Casey's education on the use of a treatment that his parents opposed. [FN216] The court held that Casey Jesson's right to a "free appropriate public education" could not be premised on the condition that he be medicated in such manner. [FN217]

VII. Discussion

As the foregoing cases illustrate, absent a legitimate state interest, [FN218] an individual possesses the right to be free from forced administration of psychotropic drugs. [FN219] This right is recognized as an aspect of the constitutional right to privacy [FN220] and bodily integrity. [FN221] There *1202 have been to date only two legal theories under which the United States Supreme Court has found that state interest is sufficiently legitimate to justify forced drugging: the states' police power [FN222] and its parens patriae power. [FN223] In addition, the EHA requirement that the state provide an education to all handicapped children in the least restrictive environment possible [FN224] may provide the state with a legitimate economic interest in keeping victims of such a comparatively trivial handicap in mainstream classrooms. [FN225] These three rationales are all potentially at work in the involuntary use of Ritalin on hyperactive children.

A. The Police Power

The Supreme Court has approved the use of physical [FN226] or chemical [FN227] restraints in situations where the restrained individual poses a threat to himself or others. [FN228] However, the courts have flatly rejected the use of restraints solely for the purpose of institutional convenience. Purely economic considerations, such as the need to hire more guards or to provide additional training to existing staff fall under this prohibition. [FN229] The question with hyperactive children is whether their behavior reaches a level that is so disturbing that it constitutes the threat of violent behavior, either to themselves or others, sufficient to warrant these types of restraint.

Hyperactive children are by nature overtly physical. [FN230] They can find it difficult to deal with stressful situations, [FN231] and usually revert *1203 swiftly to crude, physical means of achieving their goals. [FN232] It is not inconceivable that such a propensity for physical violence could in extreme circumstances justify the use of some form of restraint on students wishing to participate in public education. [FN233] If this restraint takes the form of drug therapy, it should necessarily involve periodic reviews by qualified physicians to determine whether the drug is having the desired effect, or whether it is still necessary at all. [FN234] This was the same type of procedure used by the defendants in Harper. [FN235] The Harper Court found that such a procedure provided an adequate safeguard against the use of drugs solely as a means of administrative convenience. [FN236]

The Harper [FN237] and Romeo [FN238] decisions are particularly well suited to provide comparative analogies between the use of the police power to justify the forced use of drugging in a hospital or prison setting, and the same practice in an educational setting. The concerns for treatment and institutional control play a central role in all three settings. [FN239] Each institution is trying to use the most efficient means at its disposal to deal with the problem of an unruly denizen. In Romeo, the solution was physical restraint during critical times. [FN240] Harper received drugs that produced a dramatic change in his very consciousness. [FN241] Both practices had the desired effect of neutralizing the threat posed by the patient/inmate. [FN242] Hyperactive children fall somewhere in between these two scenarios, and in cases where a child poses a threat of extreme violence; it is difficult to argue against the state's police power to restrain him or her in some way. However, in the overwhelming majority of cases, the potential for violence is not nearly as immediate in the case of hyperactive children as in violent patients or prisoners. [FN243] This *1204 presents an entirely different situation from that of an adult with an established pattern of violent behavior. Harper was a full grown man with a history of violence. [FN244] Romeo had previously reacted violently to other patients and staff--punching and kicking--and had landed himself in a medical ward with a broken arm when the restraints were first applied. [FN245] The Court, in upholding the validity of each type of restraint, [FN246] used a rational basis test, [FN247] premised upon the state's legitimate interest in protecting other patients and staff. [FN248]

However, with most hyperactive children, the actual threat of violence is greatly reduced. [FN249] The fact that a hyperactive child may resort to a physical solution may make them bullies, but it should not put them in the same class as the violently insane. Annoying they may be, but "it is clear that the threat of harm to self or others does not include the mere potential for throwing pen caps or erasers." [FN250] While it may justify the forced use of Ritalin in extreme cases, the police power does not grant the state across the board authority to require restraint--chemical or otherwise--of hyperactive children.

*1205 B. The Parens Patriae Power

The requirement that a child take Ritalin also could be based on the states parens patriae power. [FN251] This authority requires the state to show that the incompetent patient would submit to the treatment were he able to make the choice himself. [FN252] There are, however, two fundamental flaws in this rationale when dealing with hyperactive schoolchildren. The first is that in order for it to be a valid exercise of parens patriae power, there must be a showing that the proposed treatment is in the best medical interest of the recipient. [FN253] In the case of hyperactive children, medical and educational findings do not support this requirement. [FN254] Studies show that while the child may sit still longer, he may not be absorbing information in any meaningful way. [FN255]

The second flaw is less abstract. In cases involving an exercise of the parens patriae power, the affected individual is usually a ward of the state, with no one to speak on their behalf. [FN256] The state is essentially acting as a guardian of the incompetent patient when it exercises this power. [FN257] With many hyperactive children, such guardianship is unnecessary given that a parent will usually be available to fulfill this role. State "protection" in such cases is redundant, and may in effect act only as an encumbrance to the will of both parent and student. For the forgoing two reasons, it is unlikely that the parens patriae power by itself could ever justify state drugging of a hyperactive child.

C. Educational Rights Under the EHA v. Economic Considerations

The narrow range of circumstances under which the state can forcibly require the use of behavior modifying drugs suggests that the number of hyperactive children involuntarily placed on Ritalin should be extremely small. The numbers, however, show skyrocketing Ritalin use, [FN258] and increased parental complaints of pressure by school administrators to keep their children on the drug. [FN259] Is such an occurrence the result of flagrant disregard for the protections afforded by the *1206 EHA? There does appear to be evidence suggesting this may indeed be happening in some circumstances. [FN260] But there may also be a deeper reason underlying this short- circuiting of the EHA. This effect may be a result of the sweeping design of the EHA itself, and will be addressed at the end of this section. [FN261]

The EHA, as currently interpreted, provides only that children be given equal access to educational training. [FN262] There is no requirement that this access be at all participatory. When a hyperactive child's parents decide that they would rather not medicate their child, they are generally afforded two alternatives. [FN263] Their child may either be suspended for the disciplinary problem he creates in the classroom, or he can be placed in a remedial class, which may or may not provide an educational program appropriate for his needs. [FN264] This choice, or lack thereof, constitutes a type of "constructive coercion" against the parents to maintain their child on the drug. Although the Supreme Court has yet to rule on this type of constructive coercion, case law to date indicates that neither of the two non-Ritalin alternatives is legal under the EHA. [FN265]

In Honig v. Doe, [FN266] the Court held that, prior to being suspended for disciplinary reasons, a student receiving an education under the EHA was entitled to prior notice and hearing. [FN267] Doe was an emotionally disturbed child who experienced extreme difficulty socializing with his peers. [FN268] His suspension was precipitated by two rather noteworthy violent attacks. The first attack occurred when Doe tried to strangle one of his classmates during an argument. [FN269] Doe was removed from class, and the second of these attacks occurred as a teacher was escorting him to the principal's office. Apparently deciding to make a break for it, Doe assaulted the teacher and broke one of the school's windows. [FN270] His attempt was unsuccessful. [FN271]

Doe was first suspended, and then expelled. [FN272] He filed suit claiming that his suspension and possible expulsion was in violation of the EHA, and that he was entitled to stay in school pending the outcome of these *1207 proceedings. [FN273] The Supreme Court agreed. [FN274] Procedural imperatives under the EHA are not satisfied with the mere design and implementation of an IEP. When a child's education deviates from the plan--for any reason--he is entitled to additional procedural protection under Honig. [FN275] Such protections include notice and a hearing which includes parties involved in the initial IEP development for the child, [FN276] not merely the perfunctory procedure mandated in Goss v. Lopez. [FN277] In the case of hyperactive children wishing to discontinue medication, constructive coercion in the form of automatic suspension or removal to any other educational setting is a violation of the procedural safeguards given by the EHA.

Furthermore, there are substantive considerations that can play a part. Even in cases where school districts do adhere to EHA procedural requirements, there is still an issue as to the appropriateness of such disciplinary action where the complained of behavior--here the constant activity and inattention of the hyperactive child--is a result or manifestation of the child's handicap itself. [FN278] Although the Honig Court did not engage in such an analysis, the lower court did. In Doe v. Maher, [FN279] the United States Court of Appeals for the Ninth Circuit held that the EHA prohibits a handicapped student from being expelled for behavior which was a manifestation of his handicap. [FN280] The court arrived at this conclusion through an analysis of the purpose, history and application of the EHA. [FN281] Like the plaintiffs in the Honig case, hyperactive *1208 children engage in disruptive behavior as a manifestation of their handicap. [FN282] They too face exclusion from education in the form of serial suspensions throughout the school year. [FN283] In Doe, the court noted that the plaintiff's guardians had not been informed of their right to challenge the school board's decision. [FN284] It is conceivable that this same problem could be occurring where parents decide to discontinue Ritalin treatment. [FN285] This possibility is enhanced by the novelty of drug treatments as a component of an IEP. [FN286] Proper procedure in such a situation could well be confusing, both to school administrators as well as parents, and could cause parents to unquestioningly accept the school's authority in such circumstances.

Although more problematic, the same analysis also applies to the hyperactive child who is allowed to remain in school, but is placed in a class that doesn't meet his needs. Placement in a class that fails to meet his needs would surely constitute a change in placement under the EHA, and should be impermissible if it is based on behavior that is a manifestation of the hyperactivity. [FN287] Determination of whether such a class fulfills or fails the needs of a hyperactive child are probably best made on a case by case basis, with the ideal being a class specifically designed for hyperactive children, structured to their needs. Economic burden alone is an insufficient excuse for school districts to refuse such accommodation. [FN288]

One problem may be that the EHA, a sweeping piece of legislation designed to completely revolutionize the education of handicapped youngsters, [FN289] may actually be too inclusive for its intended purpose. [FN290] The statute's mandate to identify and accommodate each and *1209 every learning impaired child [FN291] may be too broad, and produce an unanticipated strain on a system whose resources are notoriously limited. [FN292] As noted in Rowley, [FN293] our educational system cannot adequately cope with the burden that an idealistic reading of the EHA would impose. [FN294] Consequently, administrators have come to regard cost effectiveness as one of the more important criteria in evaluating a given educational plan. [FN295] This cost-benefit approach to educating our children is legitimate; given the sheer number of students the system must cope with, it is rational to attempt to provide the greatest number of them with the most adequate education feasible. However, such a practice ceases to be a solution when cost-cutting practices violate not only the laws under which they evolved, but also underlying Constitutional rights that in many ways form the basis for a free society.

VIII. Conclusion

The decision whether to drug a child is, and should be, a difficult one. Such a decision affects the child's present educational opportunity and, more importantly, his health. It may also affect the child's ability to come to grips with his own personal developmental challenges. Any state attempt to regulate a child's behavior through chemical means, absent exigent circumstances, is a violation of the United States Constitution and should not be allowed.

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 the maker of such decisions--are potentially of much more consequence for a free society. Such concepts are antithetical 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.

[FN1]. There is some controversy about the exact numbers. This is due in large part to disagreement among professionals as to the exact nature of the disorder, its symptoms, and even the possibility of there being several different disorders to which we currently apply the label hyperactivity. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 50 (3d ed. rev. 1987) [hereinafter DSM-III-R]; American Medical Association, Encyclopedia of Medicine 552 (Charles B. Clayman ed., 1989) [hereinafter AMA Encyclopedia]; Peter Schrag & Diane Divoky, The Myth of the Hyperactive Child 16 (1975); Dorothea M. Ross & Sheila A. Ross, Hyperactivity: Current Issues, Research and Theory 1 (2d ed. 1982); Daniel J. Safer & Richard P. Allen, Hyperactive Children: Diagnosis & Management 21 (1976); Dennis P. Cantwell, Epidemiology, Clinical Picture and Classification of the Hyperactive Child Syndrome, in The Hyperactive Child 4 (Dennis P. Cantwell ed., 1974); Carol K. Whalen & Barbara Henker, The Social Ecology of Psychostimulant Treatment: A Model of Conceptual and Empirical Analysis, in Hyperactive Children: The Social Ecology of Identification and Treatment 4 (Carol K. Whalen & Barbara Henker eds., 1980) [hereinafter Hyperactive Children]; Russell A. Barkley, Hyperactive Children: A Handbook for Diagnosis and Treatment 7 (1981); Paul H. Wender, M.D., Minimal Brain Dysfunction in Children 60 (1971).

[FN2]. DSM-III-R, supra note 1, at 50; see also AMA Encyclopedia, supra note 1, at 552. The condition seems to worsen when the child is forced to work in group conditions such as a classroom. Id.

[FN3]. See Barbara K. Keogh & Catherine J. Barkett, An Educational Analysis of Hyperactive Children's Achievement Problems, in Hyperactive Children, supra note 1, at 259. "[F]or some teachers the primary goal of intervention [with Ritalin or behavior modification] with hyperactive children is to gain behavioral control and to improve [the] child['s] classroom social behavior." Id. at 282.

[FN4]. Schrag & Divoky, supra note 1, at 65. Schrag and Divoky also trace this labeling of children to ad campaigns run by drug companies which manufacture the "cures" for such behavioral disorders. "In many respects, the cure preceded the ailment. . . . CIBA-Geigy promoted Ritalin--its league- leading drug for hyperactive children--for use with children who exhibited 'functional behavior problems,' a category so vague that no child need be excluded." Id. at 57. Since 1972, the federal government has prohibited such drug companies from promoting drugs like Ritalin directly to teachers and schools. Id. For a further history of the drug's development, promotion and regulation, see Barkley, supra note 1, at 190.

[FN5]. Schrag & Divoky, supra note 1, at 65; see also Valerie J. v. Derry Coop. Sch. Dist., 771 F.Supp. 483 (D.N.H. 1991).

[FN6]. See Ross & Ross, supra note 1, at 17. Ross and Ross argue that, although children generally share the same characteristic symptoms of hyperactivity, there are numerous and unique underlying causes. Psycho stimulant treatments like Ritalin produce a dramatic drop in these symptoms, satisfying the demands of an educational setting. However, such treatments do little, if anything, to actually cure a child. See also Arthur M. Bolter, The Therapeutic Use of Methylphenidate (Ritalin) in the Private Practice of Pediatrics, in Amphetamine Use, Misuse, and Abuse 153-54 (David E. Smith ed., 1979):

[H]yperkinesis is a symptom of an underlying disorder for which we still do not have a total understanding or management. . . .

. . . .

. . . [I]n Britain this syndrome is rarely diagnosed in children of normal intelligence . . . . The diagnosis is most often made in mentally retarded children, and it is felt that hyperkinesias may not constitute a distinct syndrome.