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New England Law Review

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


New England Law Review

Summer, 1993




James C. O’Leary [FNa1]

Copyright © 1993 by the New England School of Law; James C. O’Leary

   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 *1193as 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 *1201his 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.



[FN7]. Schrag & Divoky, supra note 1, at xiv-xv:

[There is] a spreading ideology of “early intervention” and “treatment” in which the language, and often, the techniques of medicine are used extensively to serve the purposes of social control. . . . [I]ncreasingly it pervades all the major institutions dealing with the young: schools, probation departments, clinical, the federal government and [the] growing scientific and corporate establishment conducting research in the proliferating “syndromes” and “diseases” of nonconformity.



[FN8]. Ross & Ross, supra note 1, at 181; Safer & Allen, supra note 1, at 47; Barkley, supra note 1, at 189.


[FN9]. As manufactured by the CIBA-Geigy Pharmaceutical Company, Summit, New Jersey. 46 Physicians’ Desk Reference 880 (1992).


[FN10]. Schrag & Divoky, supra note 1, at 89; Safer & Allen, supra note 1, at 52; Ross & Ross, supra note 1, at 181.


[FN11]. Barkley, supra note 1, at 189; Safer & Allen, supra note 1, at 47; Barbara Fish, Stimulant Drug Treatment of Hyperactive Children, in The Hyperactive Child 109, 111 (Dennis P. Cantwell ed., 1975).


[FN12]. See Barkley, supra note 1, at 190.


[FN13]. Barkley, supra note 1, at 197; see also Fish, supra note 11, at 115.


[FN14]. See Barkley, supra note 1, at 188-89 (chart listing twelve different studies finding Ritalin to have had no significant effect on academic performance); Ross & Ross, supra note 1, at 207.


[FN15]. Schrag & Divoky, supra note 1, at 80; Barkley, supra note 1, at 197.


[FN16]. Safer & Allen, supra note 1, at 50. “Those [children] who improve, improve in nearly all measurable categories of behavior, at school and at home . . . . Adults find that they can better tolerate the child on medication, and can help him more. The child becomes happier, more motivated, more successful, and better accepted.” Id.


[FN17]. Schrag & Divoky, supra note 1, at 84; Safer & Allen, supra note 1, at 58; Barkley, supra note 1, at 193. Such side effects include loss of appetite and weight, incoherent babbling, paranoia, lethargy, irritability, increased aggression, weakness, uncontrollable screaming, and visual and tactile hallucination. In addition, there is evidence indicating long-term exposure leads to psychological dependence. Schrag & Divoky, supra note 1, at 85-86.


[FN18]. Such alternatives include special education for both parents and child, behavior modification therapy and structured learning environments. See Schrag & Divoky, supra note 1, at 71; Ross & Ross, supra note 1, at 213; Plaintiff’s Trial Memorandum at 27, Valerie J. v. Derry Coop.Sch.Dist., 771 F.Supp. 483 (D.N.H. 1991).


[FN19]. Safer & Allen, supra note 1, at 56; Schrag & Divoky, supra note 1, at 74.


[FN20]. Schrag & Divoky, supra note 1, at 74; Valerie J. v. Derry Coop. Sch. Dist., 771 F.Supp. 483 (D.N.H. 1991); Randall Richard, Drugs for Children–Miracle or Nightmare?, Providence J., Feb. 8, 1972, at 1; see also Andrew Blum, Legal Fight Looms over Ritalin, Nat’l L.J., Nov. 16, 1987, at 3; Andrew Blum, Legal Attack on Ritalin Expands, Nat’l L.J., Nov. 23, 1987, at 16; Lisa Berg, Ritalin Under Fire, A.B.A. J., Nov. 1, 1988, at 19; Andrew Blum, Lawsuits over Ritalin Expand to Massachusetts, Nat’l L.J., Mar. 28, 1988, at 41.


[FN21]. See Schrag & Divoky, supra note 1, at 74; Safer & Allen, supra note 1, at 56.

School pressure on the physician to prescribe usually occurs in association with a suspension. Infrequently, some school officials may even indicate to parents that the child will only be readmitted to school if he is on medication. Others forcefully indicate the child must behave differently in school when (and if) he returns; otherwise he will be suspended quickly again and possibly expelled. This threat challenges the doctor and parents to think of a dramatic, rapid, relatively inexpensive solution. In this age of high drug use, pills come to mind quickly.

Safer & Allen, supra note 1, at 56.


[FN22]. See infra notes 71-113 and accompanying text for a discussion of these rights.


[FN23]. The legislation referred to is the Education of the Handicapped Act, 20 U.S.C. §§ 1400-1420 (1991). See infra notes 134-89 and accompanying test for an overview of the Act. See infra notes 259-87 and accompanying text for an analysis of how the Act applies in the case of students whose handicap causes them disciplinary problems.


[FN24]. See infra notes 33-70 and accompanying text.


[FN25]. See infra notes 71-133 and accompanying text.


[FN26]. Youngberg v. Romeo, 457 U.S. 307 (1982); see infra notes 120-26 and accompanying text.


[FN27]. Washington v. Harper, 494 U.S. 210 (1990); see infra notes 98-113 and accompanying text.


[FN28]. See infra notes 218-57 and accompanying text; see also Plaintiff’s Trial Memorandum at 24-28, Valerie J. v. Derry Coop. Sch. Dist., 771 F.Supp. 483 (D.N.H. 1991).


[FN29]. Education of the Handicapped Act, 20 U.S.C. §§ 1400-1420  (1991).


[FN30]. Valerie J. v. Derry Coop. Sch. Dist., 771 F.Supp. 483 (D.N.H. 1991); see infra notes 191-218 and accompanying text.


[FN31]. See infra notes 218-95 and accompanying text.


[FN32]. Lawyers’ Medical Cyclopedia Drugs in Litigation 419 (Richard M. Patterson ed., 1990) [hereinafter Drugs in Litigation]. There are, however, certain instances in which use of the drug is contraindicated, such as where the patient displays marked anxiety, tension, agitation or glaucoma. Id.


[FN33]. See Schrag & Divoky, supra note 1, at 43.


[FN34]. DSM-III-R, supra note 1, at 50; see also AMA Encyclopedia, supra note 1, at 552.


[FN35]. AMA Encyclopedia, supra note 1, at 552. The primary complications of the syndrome are academic and social difficulties, as the hyperactive child is unable to meaningfully interact with teachers or other students in a traditional classroom setting. DSM-III-R, supra note 1, at 51.


[FN36]. AMA Encyclopedia, supra note 1, at 552; see also Barkley, supra note 1, at 38; Ross & Ross, supra note 1, at 12.


[FN37]. AMA Encyclopedia, supra note 1, at 552.


[FN38]. See supra notes 36-37 and accompanying text.


[FN39]. AMA Encyclopedia, supra note 1, at 552.


[FN40]. See Schrag & Divoky, supra note 1, at 71.


[FN41]. See AMA Encyclopedia, supra note 1, at 552.


[FN42]. See Safer & Allen, supra note 1, at 52. Other popular drugs for this use are Cyclert and Dexedrine. Id.


[FN43]. Schrag & Divoky, supra note 1, at 89. Schrag and Divoky credit this success on an aggressive marketing campaign by Ritalin’s manufacturer, CIBA- Geigy, aimed at pediatric physicians, emphasizing not only the drug’s efficacy, but also its wide range of applications. Id. Certainly another reason, however, is the fact that Ritalin is far more effective than Dexedrine, while having fewer side effects. See Safer & Allen, supra note 1, at 52.


[FN44]. AMA Encyclopedia, supra note 1, at 942.


[FN45]. Id. These drugs “reduce drowsiness and increase alertness by their action on the reticular activating system in the brain stem. . . . [Possible adverse effects] include shaking, nervousness, sleeping, problems, hallucinations, paranoid delusions, and seizures. Long-term use may lead to tolerance . . . and drug dependence.” Id. It should be noted that clinical names for drugs are never capitalized (being nothing more than chemical designations), whereas brand names for such drugs, like Ritalin and Dexedrine, are always capitalized.


[FN46]. Drugs in Litigation, supra note 32, at 419.


[FN47]. Id.; Schrag & Divoky, supra note 1, at 84; L. Alan Stroufe & Mark A. Stewart, Treating Problem Children with Stimulant Drugs, 289 New Eng. J. Med. 407 (Aug. 1973). “Some researchers think that hyperactive children are over aroused and that amphetamines reduce arousal; others believe the opposite.” Id.


[FN48]. Drugs In Litigation, supra note 32, at 419.


[FN49]. Barkley, supra note 1, at 227-28.


[FN50]. Id. at 228; see also Safer & Allen, supra note 1, at 50; Wender, supra note 1, at 90.


[FN51]. See Andrew Blum, Legal Attack on Ritalin Expands, Nat’l L.J., Nov. 23, 1987, at 16.


[FN52]. Id.


[FN53]. See id.; see also Virginia S. Cowart, The Ritalin Controversy: What’s Made this Drug’s Opponents Hyperactive?, JAMA, May 6, 1988, at 259.


[FN54]. See Blum, supra note 51, at 16.


[FN55]. See id. See supra note 1 for the DSM-III-R definition of hyperactivity that is at issue in this case.


[FN56]. See Blum, supra note 51, at 16.


[FN57]. Commonwealth v. Matthews, 548 N.E.2d 843 (Mass. 1990). Rod Matthews was convicted as an adult of murdering his friend and classmate Shaun Ouillette with a baseball bat. Lawyers for Matthews argued diminished capacity brought on by the mind-altering affects of Ritalin. The jury was not convinced. Id.


[FN58]. See Cowart, supra note 53, at 259.


[FN59]. See supra note 17 for an illustrative listing of such side-effects.


[FN60]. See Safer & Allen, supra note 1, at 56; Schrag & Divoky, supra note 1, at 74-75.


[FN61]. See Barkley, supra note 1, at 189 (also noting a 400% increase in the number of children taking stimulant drugs between 1970 and 1981).


[FN62]. Fish, supra note 11, at 111-12. “The change is very rapid when it works, and one doesn’t have to keep children on medication for a long time to find out whether it is the right drug or not.” Id.


[FN63]. Schrag & Divoky, supra note 1, at 73; Safer & Allen, supra note 1, at 56 (noting that such reliance occurs only infrequently).


[FN64]. Schrag & Divoky, supra note 1, at 73. See supra note 18 for an illustrative listing of some alternative forms of therapy.


[FN65]. Schrag & Divoky, supra note 1, at 74; Richard, supra note 20, at 1.


[FN66]. Schrag & Divoky, supra note 1, at 74. One child was placed in a large cardboard box during school hours. Id.


[FN67]. Schrag & Divoky, supra note 1, at 75 (citations omitted).


[FN68]. Id. at 76.


[FN69]. Id. at 106.

The question of dependency on [drugs such as Ritalin] quickly turns from a medical into a political question whose very definition involves not merely the psychological state of the patient but also the social and political impositions of the society and its institutions . . . . [I]n all such cases of liberty, this one has implications for every member of the population, not merely those who are chemically incarcerated. . . .It is the ideology of drugging, the idea that people can and should be chemically managed, and that represents the most pervasive imposition on personal liberty and the most dangerous extension of authority. The . . . counterargument that a certain drug isn’t hurting a certain child . . . and that one should not sacrifice his well-being to some political abstraction, is itself a disguised political argument in defense of the standards that determine his . . . success. The argument seems to prove that while the child may not become dependent on the drug, those who recommend and defend it already are.



[FN70]. See infra notes 71-133 and accompanying text.


[FN71]. See Cruzan v. Director, Missouri Dep’t of Health, 110 S.Ct. 2841, 2866 n.6 (1990).

Under traditional tort law, exceptions have been found only to protect dependent children. See Cruzan v. Harmon, 760 S.W.2d 408, 422 n.17 (Mo. 1988) (citing cases where Missouri courts have ordered blood transfusions for children over the religious objection of parents); see also Winthrop University Hospital v. Hess, 490 N.Y.S.2d 996 (Sup.Ct. Nassau Co. 1985) (court ordered blood transfusion for religious objector because she was the mother of an infant and had explained that her objection was to the signing of the consent, not the transfusion itself); Application of President & Directors of Georgetown College, Inc., 331 F.2d 1000, 1008 (D.C.Cir.), cert. denied, 377 U.S. 978 (1964) (blood transfusion ordered for mother of infant). Cf. In re Estate of Brooks, 205 N.E.2d 435, 441-42 (1965) (finding that lower court erred in ordering a blood transfusion for a woman–whose children were grown–and concluding: ‘Even though we may consider appellant’s beliefs unwise, foolish or ridiculous, in the absence of an overriding danger to society we may not permit interference therewith in the form of a conservator ship established in the waning hours of her life for the sole purpose of compelling her to accept medical treatment forbidden by her religious principles, and previously refused by her with full knowledge of the probable consequences.’).

Id. at 2866 n.6; see also Tune v. Walter Reed Army Med. Hosp., 602 F.Supp. 1452, 1455 (D.D.C. 1985) (“[It is] a well-established rule of general law . . . that it is the patient, not the physician, who ultimately decides if treatment–any treatment–is to be given at all. . . . The rule has never been qualified in its application by either the nature or purpose of the treatment, or the gravity of the consequences of acceding to or foregoing it.”); Downer v. Veilleux, 322 A.2d 82, 91 (Me. 1974) (“The rationale of this rule lies in the fact that every competent adult has the right to forego treatment, or even cure, if it entails what for him are intolerable consequences or risks, however unwise his sense of values may be to others.”).


[FN72]. Winston v. Lee, 470 U.S. 753 (1985) (surgical operation to remove a bullet from a criminal suspect’s body implicated Fourth Amendment rights against unreasonable searches and seizures).


[FN73]. 381 U.S. 479 (1965).


[FN74]. Winston v. Lee, 470 U.S. 753 (1985); see also Washington v. Harper, 494 U.S. 210 (1990); Youngberg v. Romeo, 457 U.S. 307 (1982); Vitek v. Jones, 445 U.S. 480 (1980). This right may only be exercised by parents on behalf of their child if such refusal does not endanger the health and welfare of the child. See supra note 71.


[FN75]. Washington v. Harper, 494 U.S. 210 (1990); Youngberg v. Romeo, 457 U.S. 307 (1982). See infra notes 120-26 and accompanying text for a discussion of Youngberg and notes 98-113 and accompanying text for a discussion of Harper.


[FN76]. See Vitek v. Jones, 445 U.S. 480, 491-94 (1980); Youngberg v. Romeo, 457 U.S. 307, 316 (1982); Parham v. J.R., 442 U.S. 584, 600-01 (1979).


[FN77]. Vitek v. Jones, 445 U.S. 480 (1980).


[FN78]. Cf. In re Schuoler, 723 P.2d 1103 (Wash. 1986) (right to refuse electro convulsive therapy is a fundamental liberty).


[FN79]. Washington v. Harper, 494 U.S. 210 (1990); Mills v. Rogers, 457 U.S. 291 (1982); In re Guardianship of Roe, 421 N.E.2d 40 (Mass. 1981); Large v. Superior Court, 714 P.2d 399 (Ariz. 1986) (en banc); Riese v. St. Mary’s Hosp. & Med.Ctr., 243 Cal.Rptr. 241 (Cal.Ct.App. 1988), review granted but dismissed, 774 P.2d 698 (1989); People v. Medina, 705 P.2d 961 (Colo. 1985) (en banc); Rogers v. Commissioner of Dep’t of Mental Health, 458 N.E.2d 308 (Mass. 1983); Rivers v. Katz, 495 N.E.2d 337 (N.Y. 1986); In re Mental Health of K.K.B., 609 P.2d 747 (Okla. 1980).


[FN80]. The decision to forcibly medicate involuntary patients or inmates is generally made by medical personnel who take into account the nature of the prisoner’s illness and the needs for institutional safety. In the majority of cases, the treatment does indeed provide the patient with genuine relief. However, arguments have been made that prisons and mental hospitals, facing budgetary problems, rely on such chemicals, without regard to medical consequences, primarily to mentally “hobble” patients. See Harper, 494 U.S. at 244-45 (Stevens, J., dissenting). “Use of psychotropic drugs, the State readily admits, serves to ease the institutional and administrative burdens of maintaining prison security and provides a means of managing an unruly prison population and preventing property damage.” Id.; Jami Floyd, Comment, The Administration ofPsychotropic Drugs to Prisoners: State of the Law and Beyond, 78 Calif.L.Rev. 1243, 1248 (1990).

The widespread use of psychotropic drugs in prisons presents a correspondingly high opportunity for abuse. The drugs themselves are highly dangerous, and they may be forced onto prisoners for behavior control or administrative convenience and not necessarily for medical treatment. . . . Prisons are institutions of discipline and control; psychotropic medication should be offered in an atmosphere of treatment and consent. The line between the treatment of mental illness and the chemical control of behavior is a fine one and the temptation to use psychotropic drugs improperly in prison is great: drugs are more efficient than physical restraints and require less commitment of staff and time. Furthermore, prisons are closed institutions to which the public and media have limited access, such that abuses can go unnoticed.

Id. Similarly, arguments that stimulant drugs such as Ritalin benefit the child academically seem unfounded. The chief reason for the drugs’ popularity appears to be the “chill out” effect on children. See Barkley, supra note 1, at 197- 201:

[N]either short-term nor long-term studies supports any utility of the stimulants in improving academic performance. . . . [S]tudies of teacher- child interactions bear out our original findings that the stimulantdrugs improve compliance to commands to hyperactive children and increase their responsiveness to interaction with others. . . . [B]behavioral approaches can produce remarkable improvements in academic achievement and productivity– something that remains to be demonstrated for the stimulant drugs.



[FN81]. Psychotropic medication refers to any drug prescribed to modify behavior, thinking, or feelings. Antipsychotic, mood stabilizers, antidepressants, and anti   anxiety/sedative agents are specific classes of psychotropic drugs. Robert Byck, Drugs and the Treatment of Psychiatric Disorders, The Pharmacological Basis of Therapeutics 152 (Louis S. Goodman & Alfred Gilman eds., 5th ed. 1975). Though anti psychotic drugs are a subclass of psychotropic drugs, these terms are often used interchangeably. Id.; Frederick Meyers et al., Review of Medical Pharmacology 251 (7th ed. 1980).


[FN82]. 634 F.2d 650 (1st Cir.1980).


[FN83]. Id. at 653.


[FN84]. Id.


[FN85]. Id. (citing Parham v. J.R., 442 U.S. 584, 626 (1979) (Brennan, J., dissenting on other grounds)); Rennie v. Klein, 462 F.Supp. 1131, 1144- 45 (D.N.J. 1978) (on motion for preliminary injunction); In re Mental Health of K.K.B., 609 P.2d 747 (Okla. 1980); Superintendent of Belchertown v. Saikewicz, 370 N.E.2d 417 (Mass. 1977); cf. Ingraham v. Wright, 430 U.S. 651, 673 (1977) (“Among the historic liberties [protected by the Due Process Clause] was a right to be free from . . . unjustified intrusions on personal security.”); Breithaupt v. Abram, 352 U.S. 432, 439 (1957) (right of an individual that his person be held inviolable). See generally Note, Developments in the Law: Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1194-96 (1974).


[FN86]. Rogers v. Okin, 478 F.Supp. 1342, 1367 (D.Mass. 1979), aff’d in part, rev’d in part, 634 F.2d 650 (1st Cir.1980), cert. granted, 451 U.S. 906 (1981), and vacated sub nom Mills v. Rogers, 457 U.S. 291 (1982). “[T]he power to produce ideas is fundamental to our cherished right to communicate and is entitled to constitutional protection.” Id.; see also Scott v. Plante, 532 F.2d 939, 946 (3d Cir.1976); Winters v. Miller, 446 F.2d 65 (2d Cir.), cert. denied, 404 U.S. 985 (1971); Bee v. Greaves, 744 F.2d 1387, 1392- 94 (10th Cir.1984), cert. denied, 469 U.S. 1214 (1985) (constitutional right to refuse medication grounded in right to be free from government interference with production and communication of ideas, right to privacy, right to be free from bodily restraints, right to make one’s own decisions, and right to personal dignity and bodily integrity). See generally Bruce J. Winick, The Right to Refuse Mental Health Treatment: A First Amendment Perspective, 44 U.Miami L.Rev. 1 (1989).


[FN87]. Rogers v. Okin, 634 F.2d 650, 654 n.2 (1980), cert. granted,  451 U.S. 906 (1981), and vacated sub nom Mills v. Rogers, 457 U.S. 291 (1982).


[FN88]. Id. at 654.


[FN89]. Id. at 654-656.


[FN90]. See id. at 654-57.


[FN91]. Id. at 657.

Today, however, due in large part to the development of numerous drugs for treating mental illness, the possibility of improvement as a result of forced treatment is relatively substantial. Given such a possibility, and confronted with the often severe suffering of individuals afflicted with mental illness, the state today finds its interest in being able to offer meaningful assistance to the individual even more substantial than it was in previous times. However, for the state to invoke this interest as a justification for the administration of treatment that could represent substantial intrusions upon the individual, the individual himself must be incapable of making a competent decision concerning treatment on his own. Otherwise, the very justification for the state’s purported exercise of its parens patriae power–its citizen’s inability to care for himself would be missing. Therefore, the sine qua non for the state’s use of its parens patriae power as justification for the forceful administration of mind-affecting drugs is a determination that the individual to whom the drugs are to be administered lacks the capacity to decide for himself whether he should take the drugs.

Id. (citations omitted).


[FN92]. Okins v. Rogers, 451 U.S. 906 (1981), vacated sub nom Mills v. Rogers, 457 U.S. 291 (1982).


[FN93]. Mills v. Rogers, 457 U.S. 291, 297-98 (1982).


[FN94]. Id. at 305.


[FN95]. In re Guardianship of Roe, 421 N.E.2d 40 (Mass. 1981). The Massachusetts Supreme Judicial Court determined that a non-institutionalized but mentally incompetent person had a protected liberty interest in refusing antipsychotic medication both under the common law of Massachusetts as well as under federal and state constitutional grounds. Id. at 42.


[FN96]. Mills v. Rogers, 457 U.S. 291, 300-01 (1982).


[FN97]. Id. at 303, 306. The Court remanded the case in order to provide greater, not less, protection to the liberty interest of patients to refuse anti psychotic medication. The existence of such a right has never seriously been doubted by the courts. The issue, rather, has been the level of state interest necessary to overcome such a right, as well as the procedural due process an individual must receive before he may justly be deprived of it.


[FN98]. 494 U.S. 210 (1990).


[FN99]. Id. at 222. “The extent of a prisoner’s right under the [Due Process] Clause to avoid the unwanted administration of anti psychotic drugs must be defined in the context of the inmate’s confinement.” Id.

Prison administrators have not only an interest in ensuring the safety of prison staffs and administrative personnel, but the duty to take reasonable measures for the prisoners’ own safety. These concerns have added weight when a penal institution, like the [Special Offender Center], is restricted to inmates with mental illnesses. Where an inmate’s mental disability is the root cause of the threat he poses to the inmate population, the State’s interest in decreasing the danger to others necessarily encompasses an interest in providing him with medical treatment for his illness.

Id. at 225-26 (citations omitted).


[FN100]. Id. at 214 n.2.


[FN101]. Id. at 214-16.

[Special Offender Center Policy 600.30 (SOC Policy 600.30) has both] substantive and procedural components. First, if a psychiatrist determines that an inmate should be treated with anti psychotic drugs but the inmate does not consent, the inmate may be subjected to involuntary treatment with the drugs only if he (1) suffers from a “mental disorder” and (2) is “gravely disabled” or poses a “likelihood of serious harm” to himself, others, or their property. Only a psychiatrist may order or approve the medication. Second, an inmate who refuses to take the medication voluntarily is entitled to a hearing before a special committee consisting of a psychiatrist, psychologist, and the Associate Superintendent of the Center, none of whom may be, at the time of the hearing, involved in the inmate’s treatment or diagnosis. If the committee determines by a majority vote that the inmate suffers from a mental disorder and is gravely disabled or dangerous, the inmate may be medicated against his will, provided the psychiatrist is in the majority.

Id. at 215-16 (footnote omitted).


[FN102]. Harper, 494 U.S. at 217.


[FN103]. Id. at 217.


[FN104]. See supra note 101. The hearing was to determine the medical necessity of drugging the inmate. Harper contended that the rules of evidence should apply, and that a “clear, cogent and convincing” standard be used in making the decision to drug. Harper, 494 U.S. at 235. The Supreme Court rejected this analysis, stating that “[t]his standard is neither required nor helpful when medical personnel are making the judgment required by the regulations here.” Id. (citing Vitek v. Jones, 445 U.S. 480, 494-95 (1980); Youngberg v. Romeo, 457 U.S. 307, 321-23 (1982)).


[FN105]. See Harper, 494 U.S. at 251 (Stevens, J., dissenting).

These decision makers have two disqualifying conflicts of interest. First, the panel members must review the work of treating physicians who are their colleagues and who, in turn, regularly review their decisions. Such an in- house system pits the interests of an inmate who objects to forced medication against the judgment not only of his doctor, but often his doctor’s colleagues. Furthermore, the Court’s conclusion that “[n]one of the hearing committee members may be involved in the inmate’s current treatment or diagnosis,” overlooks the fact that Policy 600.30 allows a treating psychiatrist to participate in all but the initial 7-day medication approval. This revolving door operated in Harper’s case.

Id. at 251-52 (Stevens, J., dissenting) (quoting Harper, 494 U.S. at 233) (alterations in original); see also id. at 251-52 n.22.

As regular SOC staff, 600.30 committee members are: “susceptible to implicit or explicit pressure for cooperation (‘If you support my orders, I’ll support yours’). It is instructive that month after month, year after year, this ‘review’ panel always voted for more medication–despite the scientific literature showing that periodic respites from drugs are advisable and that prolonged use of anti psychotic drugs is proper only when the medical need is clear and compelling.”

Id. at 251-52 n.22 (quoting Brief for American Psychological Association as Amicus Curiae, at 26-27, Washington v. Harper, 494 U.S. 210 (1990) (No. 88- 599)).


[FN106]. Id. at 216.


[FN107]. Id. at 221-22. “We have no doubt that, in addition to the liberty interest created by the State’s Policy, respondent possesses a significant liberty interest in avoiding the unwanted administration of anti psychotic drugs under the Due Process Clause of the Fourteenth Amendment.” Id. (citing Vitek v. Jones, 445 U.S. 480, 491-94 (1980); see Youngberg v. Romeo, 457 U.S. 307, 316 (1982); Parham v. J.R., 442 U.S. 584, 600-01 (1979)); see also Floyd, supra note 80, at 1267-68.

Justice Kennedy recognized the prisoner’s privacy right in Harper, relying several times upon Vitek v. Jones, where the Court had earlier held that there was a protected liberty interest in avoiding transfer from a prison to a mental hospital. “[T]he stigmatizing consequences of a transfer to a mental hospital for involuntary psychiatric treatment, coupled with the subjection of the prisoner to mandatory behavior modification as a treatment for mental illness, constitutes the kind of deprivations of liberty that requires procedural protections.”

The Vitek Court did not address the possibility of forced treatment with psychotropic drugs. However, such treatment is a far greater intrusion on privacy than the behavior modification at issue in Vitek, because the latter does not touch the body and has no chemical effect on the brain. Discussing the ‘grievous loss’ incurred by an inmate transferred to a mental hospital and subjected to behavior modification, the Court noted that the due process clause would protect an ordinary citizen subjected to these consequences. The Court concluded that “a convicted felon also is entitled to the benefit of procedures appropriate in the circumstances before he is found to have a mental disease and transferred to a mental hospital. If the transfer to a mental hospital in Vitek was not ‘within the range of conditions of confinement to which a prison sentence subjects an individual,’ then nor should the more intrusive forced administration ofpsychotropic drugs be within that range. The liberty interest that protects prisoners and ordinary citizens alike provides a basis for the prisoner’s rejection of the unwanted administration of psychotropicmedication.”

Floyd, supra note 80, at 1267-68 (quoting Vitek v. Jones, 445 U.S. 480, 492  (1980)).


[FN108]. Harper, 494 U.S. at 222. The Court found that the policy comported with Harper’s due process rights to be free from such medication because it was reasonably related to the state’s legitimate interest in combating the danger posed by a violent, mentally ill inmate. Id. at 222- 23.


[FN109]. Id. at 217.


[FN110]. Id. at 236. The dissent criticized the Court’s decision, arguing that the valid state interest in restraining violent prisoners had been corrupted by institutional convenience:

The State, and arguably the Court, allows the SOC to blend the state interests in responding to emergencies and in convenient prison administration with the individual’s interest in receiving beneficial medical treatment. The result is a muddled rationale that allows the “exaggerated response” of forced psychotropic medication on the basis of purely institutional concerns. So serving institutional convenience eviscerates the inmate’s substantive liberty interest in the integrity of his body and mind.

Id. at 249-50 (Stevens, J., dissenting).


[FN111]. Id. at 231.

Notwithstanding the risks that are involved, we conclude that an inmate’s interests are adequately protected, and perhaps better served, by allowing the decision to medicate to be made by medical professionals rather than a judge. The Due Process Clause “has never been thought to require that the neutral and detached trier of fact be law trained or a judicial or administrative officer.” Parham, 442 U.S. at 607. Though it cannot be doubted that the decision to medicate has societal and legal implications, the Constitution does not prohibit the State from permitting medical personnel to make the decision under fair procedural mechanisms.

Id. (citing Parham, 442 U.S. at 607-09; Youngberg v. Romeo, 457 U.S. 307, 322-23 (1982)).


[FN112]. See id. at 225.

There are few cases in which the State’s interest in combating the danger posed by a person to both himself and others is greater than in a prison environment, which, “by definition,” is . . . made up of persons with “a demonstrated proclivity for antisocial criminal, and often violent, conduct.” We confront here the State’s obligations, not just its interests. . . . Prison administrators have not only an interest in ensuring the safety of prison staffs and administrative personnel, but the duty to take reasonable measures for the prisoners’ own safety. These concerns have added weight when a penal institution . . . is restricted to inmates with mental illnesses. Where an inmate’s mental disability is the root cause of the threat he poses to the inmate population, the State’s interest in decreasing the danger to others necessarily encompasses an interest in providing him with medical treatment for his illness.

Id. at 225-26 (quoting Hudson v. Palmer, 468 U.S. 517, 526 (1984))  (citations omitted).


[FN113]. Id. at 227.

We hold that, given the requirements of the prison environment, the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with anti psychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.

Id.; see also Vitek v. Jones, 445 U.S. 480 (1980), in which the Court, in dicta, stated:

None of our decisions holds that conviction for a crime entitles a State not only to confine the convicted person but also to determine that he has a mental illness and to subject him involuntarily to institutional care in a mental hospital. Such consequences visited on the prisoner are qualitatively different from the punishment characteristically suffered by a person convicted of crime. Our cases recognize as much and reflect an understanding that involuntary commitment to a mental hospital is not within the range of conditions of confinement to which a prison sentence subjects an individual. . . . A criminal conviction and sentence of imprisonment extinguish an individual’s right to freedom from confinement for the term of his sentence, but they do not authorize the State to classify him as mentally ill and to subject him to involuntary psychiatric treatment without affording him additional due process protections.

Vitek, 445 U.S. at 493-94 (citing Baxstrom v. Herold, 383 U.S. 107  (1966); Specht v. Patterson, 386 U.S. 605 (1967); Humphrey v. Cady, 405 U.S. 504 (1972); Jackson v. Indiana, 406 U.S. 715, 724-25 (1972)). The intrusiveness of forced drugging has been compared to both electroshock therapy and lobotomy:

The Washington Supreme Court properly equated the intrusiveness of this mind altering drug treatment with electro convulsive therapy or psychosurgery. It agreed with the Supreme Judicial Court of Massachusetts’ determination that the drugs have a “profound effect” on a person’s “thought processes” and a “well-established likelihood of severe and irreversible adverse side effects,” and that they therefore should be treated “in the same manner we would treat psychosurgery or electro convulsive therapy.” There is no doubt, as the State Supreme Court and other courts that have analyzed the issue have concluded, that a competent individual’s right to refuse such medication is a fundamental liberty interest deserving the highest order of protection.

Harper, 494 U.S. at 240-41 (Stevens, J., dissenting) (quoting Harper v. State, 759 P.2d 358, 362 (Wash. 1988) (quoting In re Guardianship of Roe, 421 N.E.2d 40, 53 (Mass. 1981))) (citations omitted) (footnote omitted).For a list of cases holding that an individual has a fundamental liberty interest in refusing medication, see Harper, 494 U.S. at 241 n.9 (Stevens, J., dissenting).


[FN114]. 442 U.S. 584 (1979).


[FN115]. Id. at 608.


[FN116]. Id.


[FN117]. Id. at 587-88. J.R. sought a “declaratory judgment that Georgia’s voluntary commitment procedures for children under the age of 18 violated the Due Process Clause of the Fourteenth Amendment, and requested an injunction against their future enforcement.” Id. at 588. Section 88- 503.1 of the Georgia Code provided that:

The superintendent of any facility may receive for observation and diagnosis . . . any individual under 18 years of age for whom such application is made by his parent or guardian . . . . If found to show evidence of mental illness and to be suitable for treatment, such person may be given care and treatment at such facility and such person may be detained by such facility for such period and under such conditions as may be authorized by law.

Ga. Code § 88-503.1 (1975). Section 88-503.2 provided that “[t]he superintendent of the facility shall discharge any voluntary patient who has recovered from his mental illness or who has sufficiently improved that the superintendent determines that hospitalization of the patient is no longer desirable.” Id. § 88-503.2.


[FN118]. Parham, 442 U.S. at 600.


[FN119]. Id. at 606-07.


[FN120]. 457 U.S. 307 (1982).


[FN121]. Id. at 309.


[FN122]. Id.


[FN123]. Id. at 310-11.


[FN124]. Id. at 320 (quoting Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting)).


[FN125]. Id.


[FN126]. Id. at 321.


[FN127]. 419 U.S. 565 (1975).


[FN128]. Id. at 574. “[These] young people do not ‘shed their constitutional rights’ at the school house door.” Id. (quoting Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969)).


[FN129]. Id. at 568-71.


[FN130]. Id. at 581.

[R]equiring effective notice and informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action. At least the disciplinarian will be alerted to the existence of disputes about facts and arguments about cause and effect. He may then determine himself to summon the accuser, permit cross-examination, and allow the student to present his own witnesses. In more difficult cases, he may permit counsel. In any event, his discretion will be more informed and we think the risk of error substantially reduced.

Id. at 583-84.


[FN131]. Id. at 574.


[FN132]. Goss, 419 U.S. at 579.

[S]tudents facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing . . . . [T]he timing and content of the notice and the nature of the hearing will depend on appropriate accommodation of the competing interests involved . . . . The student’s interest is to avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences. The Due Process Clause will not shield him from suspensions properly imposed, but it disserves both his interest and the interest of the State if his suspension is in fact unwarranted . . . . The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process . . . . Some modicum of discipline and order is essential if the educational function is to be performed. Events calling for discipline are frequent occurrences and sometimes require immediate, effective action . . . . The prospect of imposing elaborate hearing requirements in every suspension case is viewed with great concern, and many school authorities may well prefer the untrammeled power to act unilaterally, unhampered by rules about notice and hearing. But it would be a strange disciplinary system in an educational institution if no communication was sought by the disciplinarian with the student in an effort to inform him of his dereliction and to let him tell his side of the story in order to make sure that an injustice is not done . . . . Students facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. The Clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school.

Id. at 579-81 (citations omitted).


[FN133]. Id. at 584. “We should also make it clear that we have addressed ourselves solely to the short suspension, not exceeding 10 days. Longer suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures.” Id.


[FN134]. 20 U.S.C. §§ 1400-1485 (1988 & Supp. II 1990). The Act was amended in 1990 and renamed The Individuals with Disabilities Act, or IDEA. 20 U.S.C. § 1400(a) (Supp. II 1990). The 1990 Amendment changed all references to “Children with Handicaps” or “Handicapped Children” to “Children with Disabilities.” See Pub.L. 101-476 § 901(a)(3) (1990). Since the events which are the subject matter of this article occurred under EHA rather than IDEA, the analysis will deal primarily with EHA.


[FN135]. The right to a hearing and the right to periodic review of the program in question are examples of the procedural rights available to both classes. See supra notes 71-131 and accompanying text for a discussion of these rights.


[FN136]. 20 U.S.C. § 1401.


[FN137]. 20 U.S.C. § 1401(a)(18).

(18) The term “free appropriate public education” means special education and related services that

(A) have been provided at public expense, under public supervision and direction, and without charge,

(B) meet the standards of the State educational agency,

(C) include an appropriate preschool, elementary or secondary school education in the state involved, and

(D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title.

Id. For a discussion of the United States Supreme Court’s interpretation of this provision, see infra notes 172-89 and accompanying text.


[FN138]. 20 U.S.C § 1400(c).


[FN139]. Steven S. Goldberg, Special Education Law: A Guide for Parents, Advocates, and Educators 21 (1982) “[T]hat to the maximum extent appropriate, handicapped children, including children in public or private institutions or other care facilities, are educated with children who are not handicapped. . . .” Id. at 21-22 (citing 20 U.S.C. § 1412(5)(B) (1991)); see also 34 C.F.R. § 104.34 (1991). “A recipient . . . shall provide for the education of . . . each qualified handicapped person in its jurisdiction with persons who are not handicapped to the maximum extent appropriate to the needs of the handicapped person.” Id.


[FN140]. Goldberg, supra note 139, at 22. The use of Ritalin may indeed be helpful in making such integration possible in more cases. There is no dispute regarding the positive role Ritalin may play in such circumstances. The position of this note is that the choice of treatment belongs to the child, or at the very least to the parents. If such a decision is left to educational institutions, it is logical that economic considerations, rather than individual need, could unduly influence such a decision.


[FN141]. Goldberg, supra note 139, at 21-22. Such fears are usually the product of misunderstandings regarding the particular handicap at issue, and the discomfort most people feel in the presence of handicapped individuals. Id.


[FN142]. Id. at 38 (citing 34 C.F.R. § 300.550-556 (1991)).


[FN143]. 343 F.Supp. 279 (E.D.Pa. 1972).


[FN144]. Id. at 282.


[FN145]. Id.


[FN146]. Id. at 283.


[FN147]. Id.


[FN148]. Id.


[FN149]. Id. at 302.


[FN150]. Id.; see also Goldberg, supra note 139, at 2.


[FN151]. PARC, 343 F.Supp. at 302-16; see also Goldberg, supra note 139, at 4. Most, if not all, of the procedural requirements incorporated into the EHA are from PARC. Goldberg, supra note 139, at 23.


[FN152]. 348 F.Supp. 866 (D.D.C. 1972).


[FN153]. Id. at 868.


[FN154]. Id.


[FN155]. Id. at 874-75 (citing Vought v. Van Buren Pub. Sch., 306 F.Supp. 1388 (E.D.Mich. 1969); Williams v. Dade County Sch. Bd., 441 F.2d 299 (5th Cir.1971); cf. Soglin v. Kauffman, 295 F.Supp. 978 (W.D.Wis. 1968); aff’d 418 F.2d 163 (7th Cir.1969); Dixon v. Alabama State Bd. of Educ., 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930 (1961); Goldberg v. Kelly, 397 U.S. 254 (1970)).


[FN156]. Id. at 875-76.


[FN157]. Id. at 876:

[T]he District of Columbia’s interest in educating the excluded children clearly must outweigh its interest in preserving its financial resources. If sufficient funds are not available to finance all of the services and programs that are needed and desirable in the system then the available funds must be expended equitably in such a manner that no child is entirely excluded from a publicly supported education consistent with his needs and ability to benefit there from. The inadequacies of the District of Columbia Public School System whether occasioned by insufficient funding or administrative inefficiency, certainly cannot be permitted to bear more heavily on the ‘exceptional’ or handicapped child than on the normal child.



[FN158]. Id. at 877-83.


[FN159]. See Goldberg, supra note 139, at 19.


[FN160]. 20 U.S.C. §§ 1400-85 (1988 & Supp. II 1990); see Goldberg, supra note 139, at 19.


[FN161]. 20 U.S.C. § 1400(c) (Supp. II 1990).


[FN162]. See Board of Educ. v. Rowley, 458 U.S. 176 (1982); Goldberg, supra note 139, at 25-28.


[FN163]. See Goldberg, supra note 139, at 25-28.


[FN164]. See infra notes 172-217 and accompanying text.


[FN165]. Goldberg, supra note 139, at 29.


[FN166]. Id.


[FN167]. Id. at 30.


[FN168]. Id. at 31.


[FN169]. Id. at 30.


[FN170]. See 20 U.S.C. § 1415 (1988); Goldberg, supra note 139, at 32.


[FN171]. Goldberg, supra note 139, at 20. Educational authorities are also prohibited from placing these children on waiting lists for these services. Id.


[FN172]. 458 U.S. 176 (1982).


[FN173]. Id. at 185 (quoting Rowley v. Board of Educ., 483 F.Supp. 528, 532 (S.D.N.Y. 1980)).



The term “individualized education program” means a written statement for each child with a disability developed in any meeting by a representative of the local educational agency . . . the teacher, the parents or guardian of such child, and, whenever appropriate, such child, which statement shall include–(A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs . . . and (F) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.

20 U.S.C. § 1401(a)(20) (Supp. II 1990).


[FN175]. Rowley, 458 U.S. at 184.


[FN176]. Id. at 184-85.


[FN177]. Id. at 179.


[FN178]. Id. at 209.


[FN179]. Id. at 198-99 (quoting Brief for Respondents at 35, Rowley, (No. 80-1002)).

[C]ongress sought “to provide assistance to the States in carrying out their responsibilities under . . . the Constitution of the United States to provide equal protection of the laws.” But we do not think that such statements imply a congressional intent to achieve strict equality of opportunity or services. The educational opportunities provided by our public school systems undoubtedly differ from student to student, depending upon a myriad of factors that might affect a particular student’s ability to assimilate information presented in the classroom. The requirement that States provide “equal” educational opportunities would thus seem to present an entirely unworkable standard requiring impossible measurements and comparisons. Similarly, furnishing handicapped children with only such services as are available to non handicapped children would in all probability fall short of the statutory requirement of “free appropriate public education”; to require, on the other hand, the furnishing of every special service necessary to maximize each handicapped child’s potential is, we think, further than Congress intended to go.

Id. at 198-99 (quoting S.Rep. No. 142, 94th Cong., 1st Sess. 13 (1975), reprinted in 1975 U.S.C.C.A.N. 1437).


[FN180]. Id. at 208-09.

Congress sought to protect individual children by providing for parental involvement in the development of state plans and policies . . . and in the formulation of the child’s individual educational program. As the Senate Report states: “The Committee recognizes that in many instances the process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome. By changing the language [of the provision relating to individualized educational programs] to emphasize the process of parent and child involvement and to provide a written record of reasonable expectations, the Committee intends to clarify that such individualized planning conferences are a way to provide parent involvement and protection to assure that appropriate services are provided to a handicapped child.”

Id.(quoting S.Rep. No. 142, 94th Cong., 1st Sess. 11-12 (1975), reprinted in 1975 U.S.C.C.A.N. 1435).


[FN181]. Id. at 185.


[FN182]. See id. at 185-86, 209-10.


[FN183]. Rowley, 458 U.S. at 198-99.

[T]he educational opportunities provided by our public school systems undoubtedly differ from student to student, depending on a myriad of factors that might affect a particular student’s ability to assimilate information presented in the classroom. The requirement that States provide “equal” educational opportunities would thus seem to present an entirely unworkable standard requiring impossible measurements and comparisons. . . . [F]urnishing . . . every special service necessary to maximize each handicapped child’s potential is . . . further than congress intended to go.

Id. Neither did the Court feel that Congress intended Constitutional Equal Protection to provide a basis for requiring federally mandated equal educational opportunities for the handicapped: “[A]t the time of enactment of this Act this Court had held at least twice that the Equal Protection Clause of the Fourteenth Amendment does not require States to expend equal financial resources on the education of each child.” Id. at 199-200 (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973); McInnis v. Shapiro, 293 F.Supp. 327 (N.D.Ill. 1968), aff’d sub nom McInnis v. Olgilvie, 394 U.S. 322 (1969)).


[FN184]. Id. at 201.


[FN185]. Id. (footnote omitted). “Insofar as a State is required to provide a handicapped child with a ‘free appropriate public education,’ we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from the instruction.” Id. at 203.


[FN186]. Id. at 202. But see id. at 201 n.23 (the Court indicates that benefit is something less than would render the handicapped child self- sufficient as an adult).


[FN187]. Id. at 202.


[FN188]. Id. at 202-03.


[FN189]. Id. at 203. The Court was, however, careful to note that by this decision it was not holding that every handicapped child who advances from grade to grade is automatically receiving a FAPE, but was relying in part upon the facts of the case at bar to help it reach its conclusion. See id. at 203 n.25.


[FN190]. Valerie J. v. Derry Coop. Sch. Dist., 771 F.Supp. 483, 484  (D.N.H. 1991).


[FN191]. Id.


[FN192]. Id.


[FN193]. Id.


[FN194]. Id. at 485. Casey was so inactive that he was described as spacey, drugged, and lethargic. Id.


[FN195]. Id.


[FN196]. Id. This is not an uncommon occurrence. As previously noted, Ritalin seems to have no significant effect on academic achievement. See supra note 14. Rather, it enhances the manageability of a child. The primary beneficiary of such drug therapy, therefore, would appear to be third parties. See Barkley, supra note 1, at 197-202; Wender, supra note 1, at 89-93; Whalen & Henker, supra note 1, at 11; Ross & Ross, supra note 1, at 207.


[FN197]. Valerie J., 771 F.Supp. at 485. At one point Casey became so destructive that he ruined $3,500 worth of furniture. According to the Jessons, his pre-Ritalin behavior never approached this level of aggression. See also Bob Hohler, Judge Says N.H. Can’t Order Ritalin Use, Boston Globe, August 8, 1991, at 23.


[FN198]. Valerie J., 771 F.Supp. at 485.


[FN199]. Id.


[FN200]. Id.


[FN201]. Id.


[FN202]. Id. Such side effects include extreme weight loss and destructive behavior.


[FN203]. Id. Cyclert can adversely affect the liver, requiring periodic monitoring by a qualified physician of anyone taking it. Id.


[FN204]. It was 1987, and Casey was entering the third grade. Id. The plan required the use of either Ritalin or Cylert, as well as placement in a temporary structured education program similar to the one mentioned in the Children’s Hospital recommendations. Id.


[FN205]. Id. at 485. The Due Process hearing is required when parents wish to challenge part of their child’s IEP. Under the EHA, when a portion of the child’s IEP is challenged, that portion is suspended pending the result of the Due Process Hearing. This does not affect the child’s continued participation in any unchallenged portion of the IEP. See 20 U.S.C. § 1415(e)(3) (1990).


[FN206]. Valerie J., 771 F.Supp. at 486.


[FN207]. Id.


[FN208]. Id.


[FN209]. The Superintendent’s IEP also included forced days off and suspensions for up to 20 days. Id. at 485.


[FN210]. Id. at 486.


[FN211]. Id.


[FN212]. Id. This portion of the ruling was not challenged by Derry School District on appeal. Id.


[FN213]. Id.


[FN214]. Id.


[FN215]. Id. at 486-87.


[FN216]. See id. at 490.


[FN217]. Id. The court also struck down the decision of the hearing officer which allowed the imposition of forced days off. Id.


[FN218]. Washington v. Harper, 494 U.S. 210 (1990); Mills v. Rogers, 457 U.S. 291 (1982); see also supra notes 73-113 and accompanying text.


[FN219]. Mills v. Rogers, 457 U.S. 291 (1982); see also Stanley v. Georgia, 394 U.S. 557, 565 (1969) (“Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds”); Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

 The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone–the most comprehensive of rights and the right most valued by civilized men.



[FN220]. See supra notes 71-113 and accompanying text. A supplementary argument may be that forced administration of Ritalin, with its related side effects, operates as an exclusionary measure prohibited by § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988), by disallowing full participation of hyperactive children in the educational process. By focusing on the needs of the educational institution itself to maintain order, over the needs of those it was established to serve, an entire class of chemically created minorities who receive a unfairly disproportionate benefit of the educational process may be in the process of being created, just as surely as they may be created through the socio-economic forces that lead to racial discrimination. Similarly, parents could also argue that the entire IEP process prescribed in the EHA operates to violate a child’s procedural due process rights. However, given the heavy emphasis on procedure evident EHA cases so far, success on such an argument alone would be atypical. The Jesson Court, much like the Harper Court, held that the hearing procedures set up by school policy sufficiently protected Casey’s procedural due process rights. Of all possible approaches, this is perhaps the weakest for combating forced drugging.


[FN221]. See supra notes 71-113 and accompanying text.


[FN222]. See supra note 89 and accompanying text.


[FN223]. See supra note 90 and accompanying text.


[FN224]. See supra notes 134-70 and accompanying text.


[FN225]. See supra notes 170-89 and accompanying text.


[FN226]. Youngberg v. Romeo, 457 U.S. 307, 320 (1982); see supra notes 120-26 and accompanying text.


[FN227]. Washington v. Harper, 494 U.S. 210, 223 (1990); see supra notes 98-119 and accompanying text.


[FN228]. Parham v. J.R., 442 U.S. 584, 603 (1979); Youngberg, 457 U.S. at 320; Harper, 494 U.S. at 223; see supra notes 71-125 and accompanying text.


[FN229]. Mills v. Rogers, 457 U.S. 291 (1982); see also Davis v. Hubbard, 506 F.Supp. 915, 926 (N.D. Ohio 1980) (court found use of drugs was counter therapeutic and that only justifications for use were convenience of staff or punishment); Rennie v. Klein, 476 F.Supp. 1294, 1299 (D.N.J. 1979) (director of psychiatric hospital admitted drugs were used “as a form of control and as a substitute for treatment”), modified, 653 F.2d 836 (3d Cir.1981), vacated and remanded, 458 U.S. 1119 (1982); Rogers v. Commissioner of Dep’t of Mental Health, 458 N.E.2d 308, 320-21 (Mass. 1983) (drugs used to foster obedience or passivity in patients).


[FN230]. See Barkley, supra note 1, at 20 (noting that, although related, there is no discernable correlation between severity of hyperactivity and level of aggression).


[FN231]. See id. at 22 for a discussion of the social immaturity observed in hyperactive children.


[FN232]. See id. at 20.


[FN233]. Compare Washington v. Harper, 494 U.S. 210, 210 (1990) and  Youngberg v. Romeo, 457 U.S. 307, 309 n.2 (1982) with Honig v. Doe, 484 U.S. 305, 325 (1988).


[FN234]. Louis Lasagna, Proper Prescribing Practices for Therapeutic Uses of Amphetamines, in Amphetamine Use, Misuse, and Abuse 109 (David E. Smith ed., 1979).


[FN235]. Washington v. Harper, 494 U.S. 210, 222 (1990).


[FN236]. Id. at 235.


[FN237]. See supra notes 98-113 and accompanying text.


[FN238]. See supra notes 120-25 and accompanying text.


[FN239]. See supra notes 98-113 and notes 190-213 and accompanying text for a discussion of these issues.


[FN240]. Romeo had broken his arm, and it was the doctor in charge of his recovery ward that instructed he be restrained. Youngberg v. Romeo, 457 U.S. 307, 310 (1982).


[FN241]. Washington v. Harper, 494 U.S. 210, 214 (1990).


[FN242]. See supra notes 98-113 and 120-25 and accompanying text.


[FN243]. Cantwell, supra note 1, at 6-7.

Careful clinical studies reveal that only a small–but significant– minority of hyperactive children present with antisocial behavior . . . . [I]t could be hypothesized that the antisocial behavior develops as a reaction to the primary symptoms [of the] syndrome. Children who are unable to develop satisfactory peer relationships, who find rejection at home and at school, are likely prospects to act out and rebel against the values of society.



[FN244]. See Harper, 494 U.S. at 213-14.


[FN245]. Youngberg v. Romeo, 457 U.S. 307, 310 (1982). In fact, between July, 1974 and November, 1976, Romeo had succeeded in hurting himself no fewer than sixty-three times. Id.


[FN246]. See supra notes 108-10, 125 and accompanying text.


[FN247]. Harper, 494 U.S. at 223.

[T]he proper standard for determining the validity of a prison regulation claimed to infringe on an inmate’s constitutional rights is to ask whether the regulation is “reasonably related to legitimate penological interests.” This is true even when the constitutional right claimed to have been infringed is fundamental, and the State under other circumstances would have been required to satisfy a more rigorous standard of review.

Id. (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)); Youngberg, 457 U.S. at 324:

In deciding this case, we have weighed those post commitment interests cognizable as liberty interests under the Due Process Clause of the Fourteenth Amendment against legitimate state interests and in light of the constraints under which most state institutions necessarily operate. . . . The State . . . has the unquestioned duty to provide reasonable safety for all residents and personnel within the institution. And it may not restrain residents except when and to the extent professional judgment deems this necessary to assure such safety or to provide needed training.



[FN248]. See supra notes 108-10, 125 and accompanying text. The Court also required that there be evidence that the drug treatment actually have some therapeutic value to Harper. Harper, 494 U.S. at 222-27. The use of forced drugging as purely an economic aid has never been recognized in and of itself.


[FN249]. See supra notes 98-113 and notes 120-25 and accompanying text.


[FN250]. Plaintiff’s Trial Memorandum at 26, Valerie J. v. Derry Coop. Sch. Dist., 771 F.Supp. 483 (D.N.H. 1991).


[FN251]. See supra note 90 and accompanying text.


[FN252]. See supra note 90 and accompanying text for a discussion of the state’s authority to drug an incompetent person under its parens patriae powers.


[FN253]. Id.


[FN254]. See supra notes 3-17 for studies indicating Ritalin’s lack of effectiveness at improving academic performance.


[FN255]. Id.


[FN256]. Parens patriae literally refers to the state’s power to act as “the general guardian of all infants, idiots, and lunatics.” Hawaii v. Standard Oil Co., 405 U.S. 251, 257 (1972) (citing 3 William Blackstone, Commentaries * 47).


[FN257]. See supra note 90 and accompanying text.


[FN258]. See Safer & Allen, supra note 1, at 47; Cowart, supra note 53; Philip Elmer-DeWitt, Why Junior Won’t Sit Still, Time, Nov. 26, 1990, at 59; Alfie Kohn, Suffer the Restless Children, Atlantic Monthly, Nov. 1989, at 90.


[FN259]. See supra notes 51-56 and accompanying text.


[FN260]. See infra notes 275-85 and accompanying text.


[FN261]. See infra notes 286-92 and accompanying text.


[FN262]. See Board of Educ. v. Rowley, 458 U.S. 176 (1982); see supra notes 170-88 and accompanying text.


[FN263]. See supra notes 65-68 and accompanying text.


[FN264]. Id.


[FN265]. See infra notes 262-83 and accompanying text.


[FN266]. 484 U.S. 305 (1988).


[FN267]. Id. at 323-24.


[FN268]. Id. at 312.


[FN269]. Id. at 313.


[FN270]. Id.


[FN271]. Id.


[FN272]. Id.


[FN273]. Id. at 314.


[FN274]. Id. at 323-34.

We think it clear . . . that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school. In so doing, Congress did not leave school administrators powerless to deal with dangerous students; it did, however, deny school officials their former right to “self-help,” and directed that in the future the removal of disabled students could be accomplished only with the permission of the parents or, as a last resort, the courts.



[FN275]. Id. at 328. “[EHA Section] 1415(e)(3) effectively creates a presumption in favor of the child’s current educational placement which school officials can overcome only by showing that maintaining the child in his or her current placement is substantially likely to result in injury either to himself or herself, or to others.” Id.


[FN276]. See id. at 326.


[FN277]. 419 U.S. 565 (1975); see also supra notes 126-32 and accompanying text.


[FN278]. See infra notes 279-85 and accompanying text.


[FN279]. 793 F.2d 1470 (9th Cir.1986).


[FN280]. Id. at 1481. Such behavior was defined by the court as “conduct that is caused by, or has a direct and substantial relationship to, the child’s handicap. Put another way, a handicapped child’s conduct is covered by this definition only if the handicap significantly impairs the child’s behavioral controls.” Id. at 1480 n.8.


[FN281]. Id. at 1481. “We agree that the EAHCA prohibits the expulsion of a student for misbehavior that is a manifestation of his handicap. This proscription, although nowhere directly stated in the EAHCA, may be inferred from the Act’s history, purpose, terms, and accompanying regulations.” Id. (citing Kaelin v. Grubbs, 682 F.2d 595, 602 (6th Cir.1982); S-1 v. Turlington, 635 F.2d 342, 348 (5th Cir.), cert. denied, 454 U.S. 1030 (1981); Doe v. Koger, 480 F.Supp. 225, 228 (N.D.Ind. 1979)).


[FN282]. See supra notes 2-7 and accompanying text.


[FN283]. See supra note 67 and accompanying text.


[FN284]. Doe v. Maher, 793 F.2d 1470, 1477 (9th Cir.1986).


[FN285]. The Jessons appear to have been well informed as to their rights under the EHA. See supra notes 203-10 and accompanying text.


[FN286]. An expert in the Jesson court knew of no other cases in which such treatment was actually an explicit requirement of an IEP. See Valerie J. v. Derry Coop.Sch.Dist., 771 F.Supp. 483, 485 (D.N.H. 1991).


[FN287]. See supra notes 262-83 and accompanying text.


[FN288]. See supra note 169 and accompanying text.


[FN289]. See supra notes 133-69 and accompanying text.


[FN290]. James H. Stark, Tragic Choices in Special Education: The Effect of Scarce Resources on the Implementation of Pub.L. No. 94-142, 14 Conn.L.Rev. 477 (1982).

[I]t is my conviction . . . that key goals of the [EHA] are not being fully realized. The expansive objectives of the Act are fundamentally at odds with the financial limitations that American public schools encounter in the 1980s. Resource scarcity is always a chronic problem, but the resources available today to states and localities for education and other social services seem especially limited. These fiscal pressures threaten continued progress toward the ambitious goal of providing quality education for all handicapped children.

Id. at 478.


[FN291]. See supra notes 157-60 and accompanying text.


[FN292]. See supra notes 157-60, 287 and accompanying text.


[FN293]. 458 U.S. 176 (1982); see supra notes 170-88 and accompanying text.


[FN294]. See supra notes 170-88 and accompanying text.


[FN295]. See Stark, supra note 291, at 478-79.


[FNa1]. For my father.