EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, November 18, 2012

Time Out New York: NY Changes To Schools' Time Out Policies Prompts Interesting Subsequent Remedial Measure Rulings

William ("Billy") Schafer, Jr. is a developmentally disabled child at the Rosemary Kennedy School (named for the developmentally disabled oldest sister of JFK). Based upon Billy repeatedly being placed in a time out room, Billy, by and through his parents, brought, inter alia, a federal Section 1983 Fourth Amendment claim and state law claims for false imprisonment, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress against several defendants, including the Board of Cooperative Educational Services of Nassau County (BOCES). Specifically, the plaintiffs alleged the following:

Classroom 506 of the Kennedy School was the designated "timeout area." According to Plaintiffs, the timeout room was a small, dark room, approximately four feet by five feet, with little or no lighting...and with blue gym matting on the walls and floor....It was one of two small rooms within a larger classroom-type area.... The classroom windows were covered with cardboard....The door to the timeout room where Mr. Schafer found Billy might have had a window--Mr. Schafer cannot recall--but if it did the window was blocked....Further, Plaintiffs infer that the timeout room was locked....It is undisputed that Defendant Paul Schaefer was assigned to monitor the timeout room during the time Billy was enrolled at the Kennedy School....

According to Plaintiffs, Defendants put Billy in the timeout room between twenty-seven and forty times between September 2004 and May 2005....There are twenty-seven reported confinement incidents in Billy's timeout log,...but Defendant Cohen told Mr. Schafer that she thought Billy had been sent to the timeout room forty times.... According to the log, Billy was sent to the timeout room for behavior such as "hitting" or "kicking" and also for infractions such as "refusing to work" and "cursing."...Defendants claim that they prepared a Behavioral Intervention Plan ("BIP") for Billy and discussed it with his Parents....Billy's Parents sharply dispute that they ever had any knowledge of the BIP or the strategies it described....In any event, the BIP appears to permit use of the timeout room only when "Billy is physically aggressive toward others." 

In this post, I will address the recent opinion of the United States District Court for the Eastern District of New York, in Schafer v. Board of Co-op. Educational Services of Nassau County, 2012 WL 5547319 (E.D.N.Y. 2012), which dealt with some interesting issues relating to subsequent remedial measures.

After (but not necessarily in response to) what happened to Billy, the New York State Department of Education (NYSDE) changed its regulations regarding the use of time out rooms. Specifically, it enacted 8 NYCRR §200.22(c), which provides, inter alia, that

•Except for unanticipated situations that pose an immediate concern for the physical safety of a student or others, the use of a time out room can only be used in conjunction with a behavioral intervention plan that is designed to teach and reinforce alternative appropriate behaviors;

•The room must provide a means for continuous visual and auditory monitoring of the student and be of adequate width, length and height to allow the student to move about and recline comfortably;

•The time out room must be unlocked and the door must be able to be opened from the inside. The use of locked rooms or spaces for purposes of time out or emergency interventions is prohibited; and

•Staff must be assigned to continuously monitor the student in a time out room.  The staff must be able to see and hear the student at all times.

These changes were part of a national trend, which was accelerated with the GAO's 2009 publication, Seclusions and Restraints, which reported on hundreds of allegations of harmful restraints and seclusion, almost all of which involved students with disabilities. 

In response to the NYSDE's new regulations, BOCES enacted new policies consistent with the regulations, and the plaintiffs wanted to introduce both of these changes to prove various parts of their case. The barrier that they faced was Federal Rule of Evidence 407, which provides that

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:  


•culpable conduct;

•a defect in a product or its design;

•or a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

First, the easy part. The Eastern District of New York deemed NYSDE's new regulations admissible because they were made by a non-party and "'[c]ourts have unanimously held that Rule 407 does not bar evidence of subsequent remedial measures by non-defendants.'"

Second, with regard to evidence of BOCES' new policies, the defendants cited Eagleston v. Guido, 41 F.3d 865 (2d Cir.1994), for the proposition that the Second Circuit "'has not ruled on the applicability of Rule 407 to a civil rights case....'" In response, however, the Eastern District of New York noted (1) that Rule 407 does not contain any limitation on the types of cases to which it applies; and (2) that many courts have applied the Rule in similar contexts such as cases involving changes to employer's promotion policies and schools' sexual harassment policies.

This left the court with the plaintiffs' argument that evidence of BOCES' new policies was admissible because they demonstrated that "'precautionary measures to protect students on whom time out rooms were used, such as Billy Schafer, were feasible and could have been implemented with ease by the defendants in this matter.'" But, as the language of Rule 407 makes clear, the feasibility exception only applies when the defendant has contested feasibility. And because the court found that BOCES never contested feasibility, it found the exception inapplicable.



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