After three months of talking about telepathy, I’m changing the subject to courtroom drama. For the last few years I served as an expert witness in a lawsuit again a school district in suburban Philadelphia. The case, which dates back to 2019, came to an end in January. While not nearly as extraordinary as telepathy, some of the drama was as odd as Oz.
As in the Land of Oz.
First, some background
Regular readers might recall this case from some earlier posts (here, here, and here). The school district in question, the Lower Merion School District of Lower Merion County, Pennsylvania, made the fateful decision not to hire a trained Spelling to Communicate (S2C) “communication partner” for a non-speaking autistic student (A.L.). The plaintiffs, A.L.’s parents, claimed that this decision violated Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and the Americans with Disabilities Act.
The first ruling in the case occurred at the conclusion of a due process hearing back in December, 2019: the hearing officer ruled against the parents. The parents subsequently appealed to the United States District Court for the Eastern District of Pennsylvania, and in September, 2022, the judge, Judge Marston, denied their appeal. Weighing heavily in both rulings was the lack of evidence for S2C and the observations of S2C reported by School District staff. As Judge Marston wrote in her ruling:
The fact that S2C is not research based and ASHA’s position statement certainly support the District’s decision not to implement S2C, but the most compelling pieces of evidence are the District’s personnel’s first-hand observations of A.L. using S2C... Ms. Grimley, the District’s speech-language pathologist, observed A.L. using S2C in December 2017. (ODR0105.) She testified that A.L.’s communication partner “us[ed] prompts” and would say things like “closer, go get it, left, up, down, while he was poking the letters.” (Id.) Ms. Van Horn, A.L.’s reading teacher, had a similar experience when she observed A.L. using S2C. (ODR0090.) She noted that he was “flubbled” and unable to provide the correct answers. (Id.) Yet, when his communication partner received the answer key, A.L. started answering the questions correctly, which troubled Ms. Van Horn and suggested to her that A.L.’s communication partner was guiding him to the correct answer. (Id.).
The parents appealed next to the United States Court of Appeals for the Third Circuit, and in June, 2024, the tide started turning in their favor. The Circuit Court ruled that the District Court had wrongfully denied the appeal, sending the case back to the District Court for a summary judgment or a trial by jury. Judge Marston agreed to the latter. A jury trial, of course, shifts the powers of adjudication from hearing officers and judges to... members of the general public. Raising the stakes even further, the plaintiffs decided to put A.L. on the stand, with his testimony facilitated out by an S2C communication partner.
Given how convincing S2C in action appears to be to be to most people—at least judging from the large number of positive news stories about S2C and the positive comments that predominate in public videos of even the least convincing cases of FC/RPM/S2C—things were no longer looking so good for the School District. Especially since it was unclear whether they could convince Judge Marston to allow an examination, via well-controlled message-passing tests, of who was authoring the S2C-generated messages—A.L., or his communication partner.
So the School District offered the plaintiffs a settlement—which the plaintiffs turned down. The parents were, perhaps, not only confident of winning, but eager to set a legal precedent. A decision in their favor would enable all the other families in the district who wanted the Lower Merion schools to approve and fund S2C communication partners for their minimally speaking autistic children as well—and perhaps set a precedent for similar parents all around the country.
Down the rabbit hole—or over the rainbow
On November 6th, 2024, the trial was set: January 7th, 2025. A tornado of legal activities was set in motion.
The school district had two expert witnesses for this case: Dr. Howard Shane (who testified in the original hearing) and myself (brought on after the appeal). As the more local of the experts (Howard Shane is based in Massachusetts), I was asked to attend a special hearing at the federal courthouse of the Eastern District of Pennsylvania—a ten minute train ride from home. The hearing was Daubert hearing, aka a “voir dire” (an oral questioning/examination) of several of the plaintiff’s expert witnesses whom the School District sought to disqualify. The plaintiffs had lined up some impressive experts, first and foremost Barry Prizant, Ph.D., CCC-SLP, well-known for his early work on echolalia and for his recent support for S2C. Prizant, however, wasn’t among the School District’s voir dire targets; these instead included a neuropsychologist and an S2C communication partner. The neuropsychologist was Anne Robbins, whom the parents had hired to do an independent, neurocognitive assessment of A.L. that was based, in part, on output that A.L. generated via S2C. The S2C communication partner was Tom Foti, whom the plaintiffs had designated as A.L.’s communication partner for the upcoming trial. It was the voir dire of Tom Foti that the school district wanted me to attend.
But when I showed up at the designated time and place, the earlier voir dire, that of neuropsychologist Anne Robbins, was still underway. She was being asked questions by Nicole Reimann, one of the plaintiff’s lawyers (Ms. Reimann being the only of those attorneys in attendance at this hearing). Dr. Robbins would then be handed off to the School District lawyers (of which there were three, all in attendance, but only one of whom, Mike Kristofco, would be asking questions).
What follows here and in my next few posts is based on a publicly available document: publicly available but heftily pay-walled and requiring some dozen steps for access. This document is a transcript of what happened on Monday December 2nd, 2024, in courtroom 15b in the Federal Courthouse on 6th and Market Street in downtown Philadelphia. I’ve converted it to more user friendly format (it was originally in all caps), and annotated it here and there in bracketed italics with additional impressions based both on my notes (21 pages of hasty scrawls) and on some additional post hoc reflections. I’ve also omitted those parts of the transcript that are more procedural in nature and/or otherwise less relevant to the key question for us here at FacilitatedCommunication.org: What can we learn about the validity of the instances of Spelling to Communicate that have arisen in this case?
In this first installment, I present excerpts and impressions from the first half of the voir dire of Dr. Robbins, where she is being questioned (in a “direct examination”) by Ms. Reimann, the plaintiff’s lawyer. A.L., throughout these proceedings, is referred to as “Alex.”
Reimann: Good afternoon, Dr. Robbins. How do you know Alex le Pape?
Robbins: I completed two psychological evaluations with Alex.
Reimann: And was the first one in 2018; is that right?
Robbins: 2018 was the first one; 2021 was the second.
Reimann: And when you say evaluate, what kind of evaluation did you do; can you tell us a little bit more about that?
Robbins: I was assessing certain aspects of cognitive ability and some aspects of academic abilities. And the second evaluation there was a little bit of memory testing that was done, and an adaptive behavior skills was completed.
Reimann: And do you hold any professional licenses?
Robbins: I am licensed as a psychologist in Pennsylvania.
Reimann: And do you hold a certification in Pennsylvania, as well?
Robbins: I am certified as a school psychologist in Pennsylvania.
[What follows here is further discussion of Robbins’ professional qualifications, including her doctoral degree from Widner University and her post-doctoral training at Nemours AI Dupont Children’s Hospital; her work at the now-closed Child Study Institute and Bryn Mawr college; and her work in private practice doing neuropsychological evaluations and consulting with parents and schools, in which capacity, she reports, she has evaluated “somewhere between 750 and 800 students,” of which “close to 50 percent” have a diagnosis of autism. After this, the examination turns to A.L. and a cognitive assessment Robbins did of him in 2021 using the Wechsler Adult Intelligence Scales, 4th edition (WAIS-IV). Ms. Reimann begins by asking Dr. Robbins to read out one of the test’s guidelines.]
Reimann: If you could read the first three sentences of the block quote, and if you could just read those out loud, please.
Robbins: Quote, examinees with special needs, such as physical, language or sensory limitations, are frequently referred for psychological evaluation. With such examinees, it is important not to attribute low performance on a cognitive test to low intellectual ability when, in fact, it may be related to physical language or sensory difficulties.
Reimann: Okay. And have you seen -- you personally seen instances in your practice where scores underestimate the intellectual ability if the test is administered in a standard fashion?
Robbins: Yes.
[There is then a short discussion of modifications made during testing, including allowing the presence of a behavioral specialist and what roll they’re allowed to play. Then the questions turn to modifications made for A.L.]
Reimann: Can you tell us what modifications you made when you tested Alex?
Robbins: He used an alternative form of communication, the Spelling to Communicate method, because he is nonverbal, but he is essentially verbal with that methodology. And that methodology requires the presence of a communication partner. So there was a communication partner in the room at that time, which was his mother. So those were really the two adaptations.
Reimann: Did you give his mother instructions on what she could or could not do within -- during that -- in her role as communication partner?
Robbins: Yes.
Reimann: And what did -- what were those instructions?
Robbins: Just that she was not able to explain or, you know, encourage Alex in any way. She was repeating the letters that he was spelling. I told her she could praise him for working hard, but she was not to explain or give any real feedback to Alex while she was being a communication partner.
Reimann: And did Mrs. Binder-le Pape [Alex’s mother], did she comply with those directions?
Robbins: Yes.
Reimann: And so how -- let's just talk about how it is that you came to evaluate Alex. How were you -- how was that brought up as a possibility?
Robbins: So I was contacted by Alex's speech and language therapist who had worked with him for many, many, many years. Her name is Susan Chaplick. She was introduced to the Spelling to Communicate method that the parents and Alex showed that to her as part of her treatment. She made a decision to explore how he would perform given that mode of communication relative to how he performed in the absence of it, and the scores that were generated were significantly better. And so then I guess she had the thought that maybe we should -- maybe the parents should consider exploring what we could learn about his cognitive abilities if he was using this preferred mode of communication. And Susan Chaplick suggested they be in touch with me. And I got a call and a conversation started.
Reimann: Okay. And did you do anything to familiarize yourself with S2C and communication with the letter board and communication partner for Alex?
Robbins: Yes. Well, obviously I talked to Susan Chaplick and I got information from her based on her experience. I reviewed some videos that had been taken of him communicating using the method. And I went to observe him in one of his Spelling to Communicate training sessions at the practice in Springfield where he was undergoing training in the method.
[This clinic is called Inside Voice—it is the S2C provider closest to Philadelphia and Lower Merion County].
Reimann: Can you tell us about that observation in Springfield?
Robbins: So Tom -- Alex was working with a communication partner by the name of Tom Foti. I think that's how you pronounce it. And I was in the back of the room. And I think they were going through a pretty structured and prescribed sequence of tasks. It started with what they called a check-in where Tom asked Alex how he was doing and Alex used the spelling board to say he was happy and he was excited to do the work, et cetera. Then Tom read a passage to Alex, and then there was a prescribed set of questions that were asked of Alex following the passage. And the questions seemed to go from, you know, requiring the least amount of information or response from Alex to more information. So there was questions that had just a one-answer response. And he is spelling all of his responses. And some that requires sort of a sentence length and some interpretation of what happened in the video and what he saw, what it meant. And then at the end of that, I think Tom -- Tom asked him if he wanted to see a video of the -- the passage was about a country music singer. And he asked if he wanted to see a video of the guy. And Alex said, yes. And so they watched the video. And then after watching the video, Tom asked Alex about his impressions. And Alex communicated quite a bit of material about what he saw, what he thought, what his initial impression was, how his impression changed over the course of the video, and he spoke about his admiration for the performer. So that's what occurred in session, that's what I observed.
[Here’s where I entered the room and started taking notes.]
Reimann: And so after you did these things, spoke to Susan Chaplick, looked at the videos and then observed Alex, did you agree to do an evaluation of him with him using the letter board and communication partner?
Robbins: I did.
Reimann: And does Alex use speech to functionally communicate?
Robbins: I did not observe that.
[There follows a brief discussion of what’s meant by functional communication].
Reimann: Okay. And just generally tell the court, what did you learn from the testing you did of Alex? What you did learn about Alex?
Robbins: So his performance on the test certainly in terms of the verbal cognitive abilities were well above average compared to other students his age, obviously using the preferred and effective communication method, his sole method of communicating... His reading comprehension was also well above age and grade expectancy... There was a measure of listening comprehension where he demonstrated average or above capabilities... I attempted a few of the visual, nonverbal tests. And some he was able to complete; some I was not convinced that he understood what I was asking him to do, and I stopped him midway...
[In other words, A.L. has average or above listening comprehension capabilities but somehow didn’t understand what she was asking him to do.]
Reimann: And did you learn anything about his ability to think and communicate in abstract terms?
Robbins: Yes. Because, you know, one of the tests sort of requires some abstract and conceptual reasoning in order to see similarities amongst objects or concepts. The reading comprehension test has questions that require some informational reasoning where he had to put together information and generate what his understanding of what was being expressed in the text.
Reimann: Okay. And did you -- did Alex demonstrate a sense of humor in the time that he was with you?
Robbins: Yes, he did.
Reimann: And can you give us an example of that?
Robbins: I guess the first one that comes to mind is one of the words... on the definitions test... is “reluctant.” And his initial comment was, “Like me today.”
[More discussion of the details of the testing and how Robbins wasn’t able to calculate a full-scale IQ score because not enough subtests were completed.]
Reimann: And for the matrix reasoning, can you describe what that -- how that test is done?
Robbins: That's a visual, nonverbal test that sort of calls on pattern reasoning. So he would have visual stimuli. There would be four quadrants of information. There would be visual stimuli in three of them; there would be an empty quadrant. There would be five choices at the bottom of the manual... And the test taker is supposed to choose which of the options would complete -- would best fit with the pattern of information... They would typically point, or they do have the option to say the number. The options at the bottom have numbers.
Reimann: Okay. And did you start -- did you initially try to do the test with Alex pointing?
Robbins: Yes, I did.
Reimann: And was he successful with that?
Robbins: No, it was very random. I could not interpret what he was pointing at. He was moving his hands.
Reimann: After that, did you also try to have him use the letter board to point to--
Robbins: Right, the letter board --
Reimann: Tell us what that looked like.
Robbins: So the letter board had number options on it, I think it was on the flip side of the board. So, you know, I proposed, why don't you make your decision and show me by... pointing at the number on your letter board and we will use that as your response.
Reimann: And was he able to do that?
Robbins: Yeah, he was able to do that.
[No question is raised about why A.L. can’t point to a numbered choice on a stationary surface, but can point to a number on a held-up letterboard.]
Reimann: And so ... you administered that test both in 2018 and 2021; is that right?
Robbins: Yes.
Reimann: And so in 2018 when he was using the letter board, he was at the 16th percentile; is that right?
Robbins: Yes.
Reimann: And in 2021 with that same deviation from standardization, he was in the 5th percentile?
Robbins: Correct.
Reimann: Do you have any hypothesis about – I mean, is that statistically meaningful, that change, if you know, and do you have any hypothesis about why that might have occurred?
Robbins: It's difficult to know. We didn't really talk about this, but his overall presentation was different in the second set of testing. So I think he was more anxious around that testing. Obviously he still did well on the verbal. He was comfortable with the approach we were using.
[Robbins is seemingly unaware that this is a striking reversal of what’s generally found in autism: nonverbal visual pattern recognition scores are significantly higher, not significantly lower, than verbal scores (see, for example, Grondhuis et al., 2018). When it comes to matrix reasoning in particular, a study alluded to by S2C proponent Vikram Jaswal in a recent podcast on Barry Prizant’s Uniquely Human Podcast, Courchesne et al., 2015, finds relatively high performance on this kind of cognitive test as compared to others. Yet somehow, even with the letterboard, A.L. has scored much worse on matrix reasoning than on verbal ability.]
After a few more exchanges about the details of testing, the voir dire of Dr. Robbins is interrupted by the arrival of three people I recognize: A.L., his mother, and Tom Foti, the communication partner who is to assist him at the trial. Robbins steps down for now (she will later be cross-examined by the school district’s team) and Foti takes the stand. In my next post, I’ll discuss what happened next.
REFERENCES:
Grondhuis, S. N., Lecavalier, L. L., Arnold, E., Handen, B. L., Scahill, L., McDougle, C., L., and Aman, M. G. (2018). Differences in verbal and nonverbal IQ test scores in children with autism spectrum disorder. Research in Autism Spectrum Disorders, 49, 47-55.
Courchesne, V., Meilleur, A. A., Poulin-Lord, M. P., Dawson, M., & Soulières, I. (2015). Autistic children at risk of being underestimated: school-based pilot study of a strength-informed assessment. Molecular autism, 6, 12. https://doi.org/10.1186/s13229-015-0006-3