Inside $2.2M Jury Award Over Special Needs Child Kept in "Restraint" Desk

This week, a U.S. District jury awarded $2.2 million in damages in the case of a special-needs child who attended Bessemer Academy in Pueblo as a kindergartner.

The complaint is based on the staff's decision to keep the child, then a kindergartner, in what's referred to in court papers as "restraint" desk that wrapped around her in a way that made escape difficult.

The child is identified in documents on view below as Ebonie S., while her mother is known as Mary S. And while the jury's decision is a benchmark in a controversial case that's been winding its way through the court system for six years, with the happenings at the heart of it dating back almost a decade, there's no guarantee that it's over.

Ebonie reportedly attended Bessemer Academy during the 2006-2007 school year for three hours per day, three days a week.

According to a 2012 filing in the United States Court of Appeals, on view below, "Ebonie was born addicted to cocaine. She has been diagnosed with multiple developmental and intellectual disabilities, including Down syndrome, as well as numerous physical ailments."

A 2008 report by the The Legal Center for People with Disabilities and Older People, described as "the Protection and Advocacy System for Colorado," that's also shared here offers additional background.
ES is a six-year old student with Down syndrome who was adopted by MS in January 2005. She went into foster care at around four months of age and was apparently in three placements between the age of four months and 3 ½ years of age. The Parent believes that at least the last placement was not a positive placement for ES. Since living with The Parent, ES’s home environment has appeared to be stable and supportive.

In addition to Down syndrome, ES has been diagnosed by her psychiatrist with mood disorder, impulse control disorder, attention deficit/hyperactivity disorder, Pervasive Developmental Disability (provisional), chronic insomnia, victim of neglect and abuse, and developmental articulation disorder. In March 2007, ES was also evaluated for possible fetal alcohol syndrome and autism, both of which were found to be negative, though additional diagnoses of possible reactive attachment disorder, probable cocaine exposure in utero, obsessive/compulsive disorder and sleep disorders were given at that time. For the last several years, ES has consistently taken numerous and varied medications.

As a result of ES’s disabilities, ES will often engage in impulsive and aggressive behavior, including frequent tantrums. She is hyperactive and very rigid. She likes things in a certain order or routine and gets upset if the routine is disturbed. She also picks at her skin until it bleeds, saying “owie.” Nonetheless, ES is a smiling, interactive child who enjoys time spent at school.

Her mother, however, was disturbed when she learned about the desk in which Ebonie was placed. Here's how it's described in the 2012 Court of Appeals filing, with additional references to the way the opposing sides in the case viewed it.
In Golden’s classroom, there were special desks for several children, including Ebonie. The surfaces of these desks are U-shaped, such that when a student’s chair is completely pulled in, the student is surrounded by the desk on three sides. The cutout portion of the desk is lined with rubber. A wooden bar, approximately one inch by two inches, runs the length of the back of the desk. When a student is sitting at the desk, the bar rests behind the student’s chair, thus preventing her from pushing her chair out. A barrel bolt, akin to the fastener on the door of a restroom stall, can be used to secure the bar.

Defendants maintain that Ebonie could unfasten and lift the restraining bar herself, and that Ebonie could also exit the desk by sliding under or crawling over the table. Plaintiff contends that Ebonie did not have the motor skills or range of motion required to unfasten the desk — an assertion supported by expert evidence. Plaintiff has not, however, refuted the claim that Ebonie could escape from the desk by climbing over or sliding under it. Plaintiff refers to the desk as a “restraint,” which is accurate insofar as the desk restricted Ebonie’s movement by preventing her from pushing out her chair. It is important to note, however, that the desk did not bind or hold Ebonie down in any way.
While at the school, Ebonie suffered a broken arm, according to the 2008 Legal Center document. While the organization didn't determine that this injury was caused by the desk, it concluded that "ES was subjected to the improper use of restraint" and argued that the circumstances surrounding the desk substantiate "a claim of abuse or neglect."

A year later, in 2009, Mary S. filed a lawsuit against the school district, and since then, the case has seen plenty of ups and downs. The 2012 document notes that the suit contended that the use of the desk "violated the Fourth Amendment, the Due Process Clause, and the Equal Protection Clause, as well as the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act." A previous court rejected the constitutional claims, and so did the U.S. Court of Appeals. But that left open a number of other questions, including whether "use of the desk was prohibited under Colorado law and was contrary to well-established educational standards."

The $2.2 million award was determined after a seven-day trial, the Pueblo Chieftain reports. But a school district spokesman tells the paper no decision about a response from the school board has been made to date, suggesting that a final resolution may still be a ways off for Ebonie, who is now a teenager.

Look below to see the aforementioned 2008 and 2012 documents.

Legal Center Report on Bessemer Academy, 2008

Ebonie S. v. Pueblo School District 60 Appeal

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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts