FC and the Legal System

Since its inception, FC has generated concerns about authorship, scientific validity, and the legal system. Major health, education, and autism advocacy groups advise their members not to consider FC-generated messages as reliable sources of communication. However, facilitators using FC with their clients or loved ones continue to make false allegations of abuse against the family members, carers, educators, and others. In recent years, facilitators, using FC as a sole form of communication for their clients, have committed crimes against individuals with disabilities. These crimes include sexual assault and, in one documented case, manslaughter. Educators, however well meaning, open themselves to educational malpractice claims by using FC or other clinical fads in the classroom.

Recommended Reading

Gorman, B.J. (1999). Facilitated Communication: Rejected in Science, Accepted in Court—A Case Study and Analysis of the Use of FC Evidence under Frye. Behavioral Sciences and the Law. (17), 517-541. DOI: 10.4018/978-1-5225-7036-3

This article gives an historic account of FC and its use in court proceedings. Despite the rejection of FC by the scientific community, some courts have accepted it by evading their state’s test of scientific admissibility. The author argues that FC should not be admitted into court proceedings and analyzes the future of FC in those states that have adopted the Daubert standard for scientific evidence.

Gorman, B.J. (2011). Psychology and Law in the Classroom: How the Use of Clinical Fads in the Classroom may Awaken the Educational Malpractice Claim. Brigham Young University Education and Law Journal, 2011 (1), 29-50.

This article explores the concept of a reasonable duty of care for educators who use scientifically rejected practices in the classroom (i.e., practices that have been subjected to empirical testing within the relevant assessment community and subsequently rejected). When applied to FC, a scientifically discredited technique, this may leave educators vulnerable to educational malpractice claims.

Green, Gina; Shane, Howard C. (Fall, 1994). Science, Reason, and Facilitated Communication. Journal of the Association for Persons with Severe Handicaps, vol. 19(3), 151-72.

This article discusses the most effective evidence and methods used to derive the least ambiguous answer to the central question about FC: Does it enable people with disabilities to demonstrate unexpected skills? The article outlines potential harms, facilitator motivations and training, and the need for objective, controlled authorship testing. While proponents urge their facilitators to “presume competence” and avoid testing, the authors in this article argue that FC messages cannot be attributed solely to the individuals being subjected to its use unless measures are put into place to objectively rule in or rule out facilitator influence.

Note: This article was written in 1994, but it is still relevant. To date, there is no reliable evidence to prove claims that FC/S2C/RPM are free from facilitator control. (See Systematic Reviews)

Jones, David P.H. (1994). Autism, Facilitated Communication and Allegations of Child Abuse and Neglect. Child Abuse and Neglect. 18 (6), 491-493. DOI: 10.1016/0145-2134(94)90002-7

This article is an editorial discussing child protection professionals’ dilemma when faced with accounts of child abuse or neglect obtained through facilitated communication. FC was not (and still is not) a technique of established efficacy. Recommendations were made that child protection action should not be based on FC derived allegations alone.

Margolin, K. N. (1994). How shall facilitated communication be judged? Facilitated communication and the legal system. Facilitated Communication: The Clinical and Social Phenomenon. (pp. 227–257). San Diego, CA: Singular Publishing. ISBN-1-56593-341-9.

This chapter explores facilitated communication and the judicial system: does it work and how should courts make that determination?

Zirkel, Perry A. (1995, June). Facilitated Communication of Child Abuse? The Phi Delta Kappan. 76 (10), 815-817.

This article discusses the court’s decisions regarding an alleged abuse of a student made by a facilitator using FC. The case “represents the nexus between two highly legalized areas in the school context: special education and child abuse reporting.”

Rule 702. Testimony By Expert Witnesses. Source: Cornell Law School.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(d) the expert has reliably applied the principles and methods to the facts of the case.

Notes

(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1937; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011.)

Daubert factors in assessing the reliability of scientific expert testimony

(1) whether the expert's technique or theory can be or has been tested—that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability;

(2) whether the technique or theory has been subject to peer review and publication;

(3) the known or potential rate of error of the technique or theory when applied;

(4) the existence and maintenance of standards and controls; and

(5) whether the technique or theory has been generally accepted in the scientific community.

The Court in Kumho held that these factors might also be applicable in assessing the reliability of nonscientific expert testimony, depending upon “the particular circumstances of the particular case at issue.” 119 S.Ct. at 1175.

Recommended Reading:

Cappellino, Anjelica. (2023, February 2). The Daubert Standard: A Guide to Motions, Hearings, and Rulings. Expert Institute. (Includes a table of states that apply Daubert as their standard for admissibility of scientific evidence).

Court Cases

Note: These are brief summaries. For full details, please use the links provided. The cases are listed in alphabetical order by year. This section is a work in progress. If you know of cases not listed, please use our contact form and let us know.

2022

J.L., et al., Plaintiffs, v. Lower Merion School District, Defendant. Civil Action No. 20-1416-KSM. Source: Casetext.

A Pennsylvania court ruled in favor of the school system after parents sued to use a form of Facilitated Communication called Spelling to Communicate. The court found that the school system 1) did not deny the child a free and appropriate public education, 2) that the parents were not entitled to reimbursement for a private education program (S2C), 3) that the parents were not entitled to reimbursement for an outside evaluation of their child, 4)the school district did not discriminate against the student in violation of Section 504 and/or the American With Disabilities Act.

“In view of the substantive concerns regarding the lack of research and training issues involving Spelling to Communicate methodology, as well as the ethical issues involving the significant doubt that results are the authentic voice of the student, the school district made a reasonable and thoughtful decision, and it did not deny any free and appropriate public education to the student by refusing to use Spelling to Communicate methodology.” p. 23

References:

Beals, Katharine. (2022). Science prevails in another victory for a Pennsylvania school district

Gerl, James. (2019, December 15). Pennsylvania Special Education Hearing Officer: Final Decision and Order - Redacted. ODR File Number: 21855/18-18AS

Novella, Stephen. (2019, December 18). Decision Against Spelling to Communicate - A Small Victory for Science. Science-Based Medicine.

Vyse, Stuart. (2020, March/April). A Small Victory for Science in Suburban Philadelphia. Skeptical Inquirer.

2020

Cordero v. Fumero et al. Case number 1:2020cv20975. Florida 2020). Sources: Court Listener.

Jose Cordero was falsely accused of abuse based on facilitated messages. He was imprisoned during the investigation. The charges were dropped when it was determined his 7-year-old child was incapable of writing words independently. (See False Allegations of Abuse). In May 2020, Cordero filed a civil lawsuit against school officials, the City of Hialeah, Florida Department of Financial Services, and The School Board of Miami-Dade County, Florida. In November, 2020, the first notice of Settlement was filed. In February 2021, the Parties informed the Court they had settled the matter. The Court retained jurisdiction to enforce the terms of the settlement reached by the Parties. The case was dismissed with prejudice.

2019

Kahn v. Upper Grand District School Board (Ontario)

Charges were dismissed against an Ontario school system for the alleged discrimination of an individual with disabilities for not using a form of Facilitated Communication called Spelling to Communicate.

“The school board is opposed to using S2C, because they feel it isn’t a sustainable option because the person can’t use it independently, it’s hard to tell if the communicator of the student are the ones communicating, and it’s not evidence based.” (Heck, 2019).

References:

Bowlby, Brenda. (2019, September 25). Kahn v. Upper Grand District School Board. Human Rights Tribunal of Ontario. Citation: 2019 HRTO 1311. File Number: 2018-35148-I

Heck, Alexandra. (2019, November 4). ‘Without his voice, he has no rights’: Orangeville parents react to human rights case over school autism communication tool. The Midweek Banner, Orangeville, Ontario, Canada.

2018

Fairfield (CT) Board of Education 72 IDELR 165 - 118 LRP 23214

The parent in this case requested that a plastic letter board be used in the academic setting. With this letter board, an adult communication partner would hold the letter board mid-air, “resetting” it periodically (by taking it away briefly or reshaping the student’s hand). The school district’s concern was that using a letter board in this manner risked having the adult (inadvertently) move the board in the air and influencing the content of what was communicated. The school district accommodated the parent’s request to use the letter board, but declined to allow the communication partner to hold the board in the air. When the letter board was used, it was held, flat and stationary, on a table where the student could point to it independently. The school district also made available to the student other hi-and low-tech communication devices.

The case was reviewed by the Office of Civil Rights, Eastern Division, Boston (Connecticut). 72 IDELR 165 - 118 LRP 23214

The OCR ruled that the district provided sufficient support for its concern that having a partner holding the board in mid-air could be a fundamental alternation to the student’s educational program. OCR determined that there was insufficient evidence that the district failed to furnish appropriate auxiliary aids and services to the student.

2008

Greenwood v. Wissahickson Sch. Dist., 2008 WL 3559273 (E.D. Pa. Aug. 14, 2008)

The parent of a 17-year-old Wissahickon High School student with severe developmental delays, permanent brain injury, double vision, and other physical difficulties sought judicial review of the school system’s decision to deny facilitated communication as part of the student’s programming. A second hearing officer affirmed the decision that the school’s decision did not violate the Individual with Disabilities Education Act (IDEA). The case was reviewed by a district court, which affirmed the appeals panel and rejected the mother’s argument that FC was appropriate or necessary for the student. Other inclusion issues are also discussed in this case. The court ruled in favor of the school district on all counts.

In regard to FC, the court found:

”Facilitated communication is not an accepted communication methodology. Even if it were, it is not an appropriate component of [the student’s] education program in this case.”
”Parents do not have a right to compel a school district to provide a specific program or employ a specific methodology in educating a student.”

Reference:

(2008). Case law developments. Mental & Physical Disability Law Reporter. 32 (5), 698-851

2006

Dunion v. Thomas, 457 F. Supp. 2d 119 (D. Conn. 2006) Filed: October 16, 2006

In this case, the plaintiff sought injunctive relief against the individual Connecticut officials and the Bureau of Rehabilitation Services (BRS) for denying the use of facilitated communication and for failing to provide appropriate services. In the ruling, the court distinguished between the BRS refusal to provide FC and the failure to provide any services (including an individualized assessment). There appears to be more at issue in this case than FC. The complete opinion is available here.

Regarding facilitated communication, the court noted that “even if denial of facilitated communication constitutes a violation of Title II of the ADA, it is not apparent how there is a Fourteenth Amendment right to receive facilitated communication. In addition…providing for monetary damages under Title II would not appear to be a congruent and proportional response with respect to denial of facilitated communication.”

The court noted that “if this action concerned only the failure to provide facilitated communication, it appears that the defendants would be entitled to qualified immunity because it does not appear to be clearly established that there is a protected interest in being a recipient of services in the form of facilitated communication.”

Reference:

(2007). Mental & Physical Disability Law Reporter. 31 (1), 123-124

2002

Hahn v. Linn County Iowa. No. C99-19-MWB. United States District Court, N.D. Iowa, Cedar Rapids Division. 191 F. Supp. 2d 1051 (N.D. Iowa 2002). Decided March 11, 2002.

The court found that FC was not an effective means of communication for Mr. Hahn and that the output generated by him did not represent his thoughts. In addition, the court found that the facilitators authored the messages generated using facilitated communication. In addition, the court found that the defendants did not violate federal or state law by refusing to fund FC. Judgement was in favor of the defendants, Linn County and Discovery Living, a residential facility. Source: Casetext

Additional information:

(2001). Access issues. Mental & Physical Disability Law Reporter. 25 (2), 163-169.

1997

Zappala v. Albicelli, 954 F. Supp. 538 (N.D.N.Y 1997) US District Court for the Northern District of New York. Source: JustiaLaw

This case was a civil rights action brought against employees of the Liverpool School District, the Liverpool School District, and various employees of Onondaga County who were involved with the temporary removal of a child based on allegations of abuse obtained using Facilitated Communication. In the initial case, the parents challenged the legal admissibility of FC and were granted a motion to preclude the use of evidence derived from FC in the neglect proceeding. (September 16, 1992). The County withdrew the neglect petition (September 24, 1992). The matter was dismissed, without prejudice.

Among the claims in this case, the Plaintiffs alleged violation of their constitutional rights to privacy, as well as a failure of County officials to train their employees in FC. The court ruled in favor of the defendants based on the established law of the time. The court granted them qualified immunity for their role in reporting suspected abuse and temporarily removing the child from the home.

1995

State v. Warden, 257 Kan. 94 (1995). Source: Law.Justia.

1994

Callahan v. Lancaster Lebanon Unit 13, 880 F. Supp. 319 (E.D. Pa. 1994). Source: Justia US Law.

This case was brought against the Lancaster-Lebanon Intermediate Unit 13, its executive director, two teachers, a teaching assistant, the local social service agency and several of its employees by John and Linda Callahan individually and on behalf of their son, Michael. A physical examination of the son failed to support allegations of abuse. The Callahans’ position in the case was that they were temporarily and wrongfully deprived of custody because of unsubstantiated allegations of abuse made by school staff using FC. In order to rule, the court needed to decide 1) if there was a violation of federal civil rights (e.g., unreasonable search and seizure, invasion of privacy, denial of due process of law), and 2) if FC testimony was admissible. The court, in considering the case, weighed the “parents’ interest in the care and custody of their child” against “the state’s interest in the protection of the child from harm.” The court “took note” of the fact that FC had strong criticism from the scientific community, but did not consider that within the purview of the court. The question at hand was whether or not the defendants, by using FC to make their reports, knowingly violated the plaintiff’s Constitutional or statuary rights. The court made the following rulings:

The plaintiffs were not able to cite case law to support their assertion that any “clearly established” rights of theirs were violated.
FC presented a “seminal grey area” when employed by defendants because of its questionable validity when used in the context of child abuse allegations (e.g., was anyone leading the child to particular answers?). However, the parents had given permission for FC to be used and, at the time of their actions, the defendants (mandatory reporters) believed removal of the child was a “reasonable” legal remedy. The court held that the defendants were “entitled to qualified immunity” and the “Constitutional principles that govern the situation at hand are not clearly established.”
There were no due process violations in the case. Procedural safeguards were in place that allowed the parents an opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ In a hearing on the admissibility of allegations received through FC, the petition for custody was withdrawn by the Agency.
It is not the function of the court to express any scientific opinion as to the validity or invalidity of FC as a reliable means of communication.

1993

In re Luz P., 189 A.D.2d 274, 595 N.Y.S.2d 541 (N.Y. App. Div. 1993). Source: Casetext.

This case involved an individual enrolled in a special education program where the teachers used FC. Purportedly, the student, via FC, understood English and Spanish, and an ability to read. When allegations of abuse against her family, social services removed the student from the home and the parents were charged with sexual abuse.

“A New York appeals court held that while a lower court erred in failing to appoint a facilitator for a nonverbal child in a child protective proceeding, the child’s autism and mental retardation did not preclude her from testifying”.

The court also held that a test proposed by the county attorney that included blinding the facilitator from the content being discussed “could adequately establish whether this was a reliable and accurate method of communication with Luz.

References:

Gorman, Brian J. (1999). Facilitated Communication: Rejected in Science, Accepted in Court—A Case Study and Analysis of the Use of FC Evidence under Frye and Daubert. Behavioral Sciences and the Law. 17: 517-541.

(1993). Mobility/access. Mental and Physical Disability Law Reporter. 17 (2). 159-164.

People [New York] v. Webb, 157 Misc. 2d 474, 597 N.Y.S.2d 565 (N.Y. Cnty. Ct. 1993). Source: Casetext.

A New York court held that a child with a disability could use facilitated communication when testifying before a grand jury and that the facilitator could accompany the witness into the grand jury room.

The court did indicate that “if this communication was to be used at trial it would be proper to have a hearing in limine to determine if the mode of communication relied upon a scientific conclusion.”

Resources:

The Ombudsman Victoria Report on The Investigation of a Complaint of Unjust Dismissal Because of Allegations Made by Facilitated Communication. Melbourne L.V. North Government Printer, 1993.

1992

Department of Social Services ex rel. Jenny S. v. Mark S., 156 Misc. 2d 393, 593 N.Y.S.2d 142 (N.Y. Misc. 1992). Source: Casetext.

This case was brought against parents Mark and Laura S. for alleged abuse of their 16-year old daughter obtained using FC. The court ruled the proponents of FC had “failed to conduct the necessary studies to ensure its reliability and validity sufficiently to accept the alleged statement into evidence. The following reasons were cited:

The “statement” was not admissible into evidence because the daughter’s communication was “assertively assisted” by a facilitator.
FC had not passed from the experimental stage and lacked the “hallmarks of the scientific method.”
The petitioners failed to provide the court with “sufficient evidence of testing to determine reliability and validity of FC.”
There was insufficient evidence to conclude that FC was “a simultaneous transmission from one common modality of English to another conducted by a qualified, reliable individual” (e.g., the facilitator was not performing the same functions as an interpreter for the deaf).
That FC did not fall within the category of techniques or devices “whose reliability and validity has been proven” and, therefore, did not meet the qualifications of the Americans with Disabilities Act (ADA) under “Auxiliary aids and services.”

In re M.Z. 590 N.Y.S.2d 390 (Fam. Ct. 1992). Source: Casetext.

This was a pretrial, fact-finding hearing for the removal of a child due to allegations of abuse obtained using FC. The question at hand was the admissibility of FC-generated evidence. The court rejected the evidence for the following reasons:

The petitioner had failed to present a prima facie case as to its admissibility.
Using the Frye standard, the petitioner had not met its burden of demonstrating acceptance and reliability of the technique.
None of the expert witnesses supporting FC “were able to refer to any empirical studies concerning the validity of communications or the degree to which they were subject to suggestion or intepretation.” Further, they admitted that there was “no research design they were aware of which might produce any empirical data.” Each testified that they knew of experts in the field of autism who either “disagreed with the assumptions on which facilitated communication is based and/or called for more research to test the reliability of the technique.”
The findings do not constitute any judgment on the utility or reliability of facilitated communication. The findings were limited to this specific case.

Reference:

1990

People v. Cheeseman, 149 Misc. 2d 276, 564 N.Y.S.2d 676 (N.Y. Misc. 1990). Source: Casetext.

FC and the Legal System

Facilitated Communication: a thoroughly discredited yet persistent technique