Spelling to Communicate Goes on Trial: Part VII, The Conclusion

 This is the seventh and final installment in a series on a Spelling to Communicate (S2C) lawsuit against a school district. You can read more about the background in my first post, but, in brief, the lawsuit arose because the school district, the Lower Merion School District of Lower Merion PA, refused to hire an S2C “communication partner” for the parents’ non-speaking autistic son (A.L.).

This series focused primarily on a hearing that occurred on December 2nd of last year. The hearing was a 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.

In my previous six posts (starting here), I described and excerpted the examinations and cross-examinations of the five people in the voir dire hearing:

• Dr. Anne Robbins, the neuropsychologist whom A.L.’s parents hired to do an independent, neurocognitive assessment of A.L.: an assessment that was based, in part, on output that A.L. generated via S2C
• Dr. Wendy Ross, a highly celebrated figure in the Philadelphia autism and neurodiversity scene and A.L.’s former developmental pediatrician, who testified under oath that she believes that S2C works for A.L.
• Tom Foti, the founder of the local S2C clinic and the designated communication partner for A.L. for A.L.’s testimony at the upcoming trial that was scheduled for January 7th.
• The Foti-A.L. facilitator dyad, in which Foti held up the letterboard and prompted A.L., and A.L. poked at letters.
• The Binder Le-Pape-A.L. facilitator dyad, in which A.L.’s mother, Jennifer Binder-Le Pape, held up the letterboard and A.L. poked at letters.

Takeaways from the previous posts include, from Dr. Robbins (posts I and VI):

• That A.L. has average or above listening comprehension capabilities but (on certain nonverbal subtests) didn’t understand what she was asking him to do.
• That A.L. couldn’t point to a numbered choice on a stationary surface but could point to a number on a held-up letterboard.
• That A.L.’s scores, based on S2C-generated output, were much higher on verbal subtests than on nonverbal visual pattern subtests: a striking reversal of what’s generally found in autism.
• That A.L. is the only person Dr. Robbins has ever evaluated using S2C, but that she nonetheless judged S2C effective based, in part, on her of clinical experience with a “very, very diverse and complicated population of students.”
• That this clinical experience, combined with:
• her observations of A.L (see the “naïve realism” fallacy)
• her notion “there was no other way to test him” (untrue)
• “the consistency and reliability with which he performed across multiple sessions, across multiple tasks” (circular reasoning), and
• “I did what I was asked to do” (rings like a creepy evasion of responsibility)

provided sufficient justification for assessing A.L. through this method that she knew had been warned against by the American Speech-Language Hearing Association.

• That A.L.’s description of a picture of a tornado approaching a house as “Sweets with kids” indicated not necessarily that he couldn’t do what was asked, but rather that he wouldn’t do it.

From Dr. Ross (posts II and III):

• That apraxia is something that affects “any body part that moves” (not really), and that bodily apraxia is associated with autism (not really).
• That she’s witnessed evidence of facilitator control over messages in some of her patients: the first public admission of facilitator control that I’m aware of by someone who believes that S2C is valid.
• That clinical observation trumps formal testing and that holistic assessments trump scientific measurements, and that observations that “the board is not being moved and no one is touching him” establish that A.L.’s S2C-generated output must represent messages coming from A.L. rather than from his communication partner.
• That there’s more cause for concern about falsely accusing someone of not communicating than about the possibility that this person’s communication is being hijacked, and his personhood suppressed, however unwittingly, by someone else.

From Mr. Foti (post IV):

• The usual misrepresentations of the usual studies: “Penn State,” “Cambridge,” and “Virginia,” consistently (and inaccurately) cited as showing evidence either of the need for S2C, or of the validity of S2C.
• That placing the letterboard on a stationary surface is something that “has never been tried” in S2C. Instead, the steps towards what’s (inaccurately) called “independent typing” are a held-up letterboard followed by a held-up keyboard: a sequence that favors facilitator cueing over accommodations for alleged fine-motor challenges.
• That those subjected to S2C depend on their facilitators not just for linguistic expression, but also for comprehension, struggling to understand stuff that’s read out loud to them by someone other than their communication partners.
• That a written code of ethics prohibits S2C “practitioners” from participating in message-passing tests but does not rule out a non-practitioner “communication and regulation partners” participating in such tests.

From the Foti-A.L. facilitator dyad (post V)

• The sorts of messages you see only in FC—i.e., more reflective how facilitators may imagine autistic non-speakers than of how young men typically talk. For example: “Music is my haven to more calmness.”
• Several violations by Foti of the rules he says he’s trained to follow: not moving the letterboard while A.L. points; only resetting if A.L. types three letters in a row that don’t “make sense.”
• Foti’s frequent backtracking and retroactively altering his report of what letters were typed out in the course of the S2C message generation (such that, for example, “helped me to allow” becomes “has allowed me.”)

From the Binder Le-Pape-A.L. facilitator dyad (post V)

• A message that objects to a message-passing test as an insulting attempt to prevent A.L. from testifying a trial.
• A subsequent message that agrees to such a test after the judge made it clear she expected A.L. to cooperate if he, in fact, did want a trial.
• A second public message-passing failure (the first one was recounted in the court document I cited in my first post)
• A picture of a tornado approaching a house was described as “Sweets with kids.”
• After Binder Le-Pape was shown the picture, the Binder Le-Pape-A.L. facilitator dyad added that “That is before they arrive in Oz.”

The hearing having concluded, five weeks remained before the trial—five weeks and a flurry of proceedings.

Some of them had to do with the judge’s decisions following the Daubert hearing. Which, if any, of the plaintiff’s expert witnesses would she fully or partially exclude from testifying? This question was settled in a memorandum published on December 26^th (full text here).

Interestingly, there’s one expert whose name does not appear anywhere in this memorandum even though he was examined during the Daubert hearing: S2C practitioner Tom Foti. Foti had been designated as A.L.’s communication partner at trial, but had said during the voir dire hearing that his professional ethics code prevented him from participating in message-passing tests. Was he still going to facilitate A.L. when A.L. took the stand? That remained unclear.

On the other hand, several mostly non-local experts who weren’t present at the Daubert hearing, and whose credentials the Lower Merion lawyers had contested elsewhere, do appear. The first of these, also the first one the judge discusses, is a familiar name in the S2C world.

Dr. Barry Prizant

The plaintiff’s most famous, high-status witness, Barry Prizant, is known for his early work on echolalia, his neurodiversity-embracing book and podcast (both called “Uniquely Human”) and, most recently, his enthusiasm for S2C. Prizant has also posted critical comments on my blog posts (here and here). As an expert witness in this case, Prizant’s claims to expertise were:

·       viewing “approximately 185 minutes” of videos of A.L. using S2C;

·       interviewing A.L. on Zoom;

·       reviewing the “documented observations” of A.L. by Dr. Ross, Dr. Robbins, and others;

·       “years of experience at a clinical and research level in analyzing communication in non-disabled and disabled populations.”

In its discussion of Prizant, the judge’s memorandum acknowledges the lack of peer-reviewed, empirical research on S2C. But it also takes the contents of the report that Prizant wrote for this case, as compared with the report that Howard Shane wrote for this case, as evidence of a dispute “within the broader scientific community... as to the efficacy of empirical tests as a means of evaluating such techniques.” This makes me wonder whether Prizant, in questioning the efficacy of empirical tests, cited anyone other than himself—i.e., anyone who’s actually a member of the scientific community. In particular, the judge notes Prizant’s suggestion that the “significant social anxiety and social-communicative challenges definitive of autism” make such testing not as valid as observations of S2C purportedly are. Apparently autism-related challenges with social communication and anxiety, per Prizant, would explain why A.L. spelled “sweets with kids” when asked to describe a picture of a tornado approaching a house.

Re the lack of peer-reviewed, empirical research on S2C, the judge acknowledges one key exception:

Dr. Prizant does briefly reference one peer-reviewed study from 2020, entitled “Eyetracking reveals agency in assisted autistic communication,” which Dr. Prizant describes as “demonstrat[ing] efficacy and authenticity for individuals using a letterboard and CRP.”... [She’s referencing Vikram Jaswal’s highly problematic eye-tracking study.]

And this appears to be sufficient grounds for validating Prizant as an expert witness. Right after the above remarks, the judge writes:

The Court thus finds that Dr. Prizant's lack of empirical testing as a basis for his opinions does not warrant preclusion of Dr. Prizant's report and testimony. 

Noting that Prizant's methodology need not have “the best foundation or be correct,” but, rather, “only [be] reliable enough to warrant the admissibility of Dr. Prizant's opinions,” the judge allows Prizant to testify on the efficacy of S2C for A.L.

Earlier I remarked on how the Lower Merion case has shown us yet again just how powerful the pro-S2C influence of high-status, self-styled autism experts like Prizant has been. In the judge’s assessment of Prizant, we also see yet again just how powerful the pro-S2C influence of one other factor has been: namely, Jaswal’s oft-critiqued, methodologically-challenged eye-tracking study.

Dr. Wendy Ross

The memorandum then turns to Dr. Ross, A.L.’s former developmental pediatrician and the director of the Jefferson Center for Autism and Neurodiversity. Citing her lack of credentials as a speech-language pathologist and her merely incidental exposure to S2C, the judge finds that

Plaintiffs have not proven by a preponderance of the evidence that Dr. Ross is qualified to opine on the efficacy of S2C as a means of communication for Alex.

On the other hand, she finds Dr. Ross qualified

to opine on the psychological and neurological impacts that being prohibited from using a letter board and communication partner at school had on Alex during the course of her treatment of Alex.

The judge reaches this conclusion despite the Lower Merion lawyers’ objection that some of Dr. Ross’s information was generated via S2C. The judge notes that Dr. Ross formed her opinion

based on her observations of Alex and information provided by Alex's parents and other members of Alex's care team as part of her treatment of Alex as his developmental pediatrician, all of which is standard information that developmental pediatricians use to make clinical decisions.

Dr. Manely Ghaffari

Next up is Dr. Manely Ghaffari, a child and adolescent psychiatrist who “focuses on neurodiverse patients” and has been A.L.’s psychiatrist since September, 2017. Dr. Ghaffari testified in an earlier hearing that the letter board was “extremely effective in allowing [A.L.] to express his thoughts and feelings.”

Dr. Ghaffari was not at the Daubert hearing, but Lower Merion had made arguments against her qualifications that were similar to those they’d made against those of Dr. Ross. Accordingly, the judge finds Ghaffari not qualified to opine on the efficacy of S2C as a means of communication for A.L., but qualified to opine about “the cause of Alex's declining mental and physical health during the course of her treatment of Alex”—which happened to coincide with the aftermath of the refusal by A.L.’s school to hire an S2C communication partner for him.

Dr. Anne Robbins

For reasons similar to those she gave with respect to Drs. Ross and Ghaffari, the judge finds Dr. Robbins unqualified to testify that S2C is effective for A.L. She also finds her unqualified to testify about

the information that she gained through use of this methodology, i.e., the results of her neuropsychological evaluations of Alex and any conclusions she drew from those results.

Moreover:

because Dr. Robbins' other opinions regarding Alex's ability to equally access the District's programs, activities, and services and Alex's loss of educational benefit are premised on her preliminary opinion on the efficacy of Alex's use of S2C, Dr. Robbins is precluded from offering those opinions as well.

And since these were the only opinions she was asked to offer, Dr. Robbins is entirely precluded from testifying at trial.

Interestingly, the judge does not dispute that Dr. Robbins was qualified to conduct her neuropsychological exams of A.L., even though she did these via S2C:

The Court does not dispute that Dr. Robbins is qualified to conduct the two neuropsychological evaluations of Alex that she conducted in 2018 and 2021.

True, Robbins is a licensed psychologist and certified school psychologist and, so far as I know, there are no explicit professional guidelines against permitting S2Ced output during neuropsychological exams. I imagine that telepathy isn’t explicitly ruled out either. But this does make me wonder just how much latitude someone with a professional license has to deviate from professional norms, even if those norms aren’t explicitly spelled out, and still be considered a reputable professional and a potential expert witness.

As far as Robbins serving as an expert witness in this case, the problem, in the judge’s mind, is that:

Dr. Robbins does not offer any independent opinion on those neuropsychological evaluations. Rather, these evaluations-though seemingly conducted for the purpose of assessing Alex's “cognitive capabilities” ...-are solely tied to Dr. Robbins' opinions on the efficacy of Alex's use of a letterboard and communication partner to communicate as partial bases for those opinions.

So apparently an “independent opinion” on her “neuropsychological evaluations” of A.L. would not have been precluded. (I’m not clear on how this differs from the testifying about results of these evaluations, which the judge has precluded). But whatever is meant by an “independent opinion” on her “neuropsychological evaluations” of A.L., it was apparently not included in what Dr. Robbins was asked to testify about—for better or for worse.

Dr. Amy Laurent

Dr. Laurent is a co-author with Barry Prizant of a book about a model for educating individuals with autism (the SCERTS model, a methodology found to be possibly effective for improving social communication skills in autism). Laurent is also a developmental psychologist and registered occupational therapist whom court documents describe as focusing on “autism and neurodiversity and the creation of educational programs and environments that facilitate active engagement and learning.” This makes her, along with Prizant, Ross, and Ghaffari, one of four pro-S2C expert witnesses in this case to tout neurodiversity credentials. And this, in turn, is a reminder of the unfortunate overlap in the belief systems, advocacy agendas, and professional associations of the pro-neurodiversity and pro-FC worlds.

As the judge points out, however, the plaintiffs have called on Dr. Laurent to testify not about the validity of S2C, but only about “the significance of trusted communication partners to support autistic individuals in developing social communication and emotional regulation abilities.” For this, the judge deems her qualified.

Implications for testimony about the efficacy of S2C for A.L. and jury instructions

In short, the only one of the plaintiff’s witnesses allowed to testify about the efficacy of S2C for A.L. is Barry Prizant—and this, possibly, was only because of Prizant’s brief reference to that highly problematic eye-tracking study.

This allowance of pro-S2C testimony, limited though it was to one expert, meant that there was now one more thing for the judge to address in the memorandum: namely, Lower Merion’s request for an “evidentiary hearing”

to decide the preliminary question concerning whether S2C is sufficiently reliable to permit expert opinion concerning its use and allow testimony and evidence purportedly elicited through use of S2C.

The judge turns down this request. She does so based on the Third Circuit court decision that had sent the case back to the federal court for a jury trial in the first place. As part of that decision, she reminds her readers, the Third Circuit had held “the efficacy of the letter board compared to other forms of communication” as a “disputed issue of material fact for the jury to decide,” and, indeed, “the most material fact at issue.”

In other words, it was up to the jury to decide whether S2C, compared to other forms of communication, was effective communication for A.L.

And this, in turn, made the precise instructions that the judge would be giving the jury another key question for all parties. As the memorandum states:

[T]he Court intends to provide a limiting instruction to the jury regarding expert opinions that rely on Alex's communications through S2C, which will remind the jury that, to the extent any evidence is derived from communications with Alex through S2C, the jury ultimately must determine whether S2C is an effective means of communication for Alex and represents Alex's authentic voice.

It’s worth noting that explicitly telling the jury that they must determine whether S2C represents Alex’s authentic voice would naturally raise jurors’ awareness of an issue that might otherwise completely elude them as naïve observers of S2C and as non-experts in autism. For most observers, that is, the natural assumption (one we’ve seen repeatedly) appears to be that of course the S2Ced individual is controlling their letter selections and intentionally composing the messages: after all, why wouldn’t they be? But once told to consider whether the messages that A.L. appears to be typing are genuinely his, most jurors, selected as they surely would be for a lack of vested interest in S2C, would surely start scrutinizing A.L.’s letter selections more closely.

Even with this caveat, however, the Lower Merion team was justifiably concerned about what members of a jury would make of A.L.’s letter pointing and of how his school had allegedly treated someone they would likely see as both sympathetic and vulnerable. Indeed, this was precisely why Lower Merion had tried so hard to avoid a jury trial. It was also why they’d made various settlement offers to the parents—all of which the parents had rejected.

Would a message-passing test be allowed at trial?

But what if Lower Merion could do a message-passing test at trial, as they had during the voir dire hearing? What if they could spend their entire cross-examination time with A.L. asking A.L. as many questions as possible about pictures that his communication partner couldn’t see? Imagine the likes of “Sweets with kids” over and over again. This could be a game changer.

So it was hardly surprising that the plaintiffs would seek to exclude message-passing tests at trial. On January 3^rd, in response to what I believe to have been an oral objection to message-passing tests made by the plaintiffs during a phone meeting involving lawyers from both sides, Mike Kristofco, the lead lawyer on the Lower Merion side, filed a memorandum that included the following:

Plaintiff has objected, without citing any authority, to the District’s use of a message passing test at trial. The failure to cite any authority should be a sufficient basis in itself to deny the objection.

Additionally, the irony of the Plaintiff’s Objection is palpable. Prior to Alex LePape being permitted to testify using Spelling to Communicate (S2C) in front of the jury, the District asked for a hearing to “determine the preliminary question of whether the use of S2C is sufficiently reliable that by using it the Court is assured that Alex’s own thoughts are being communicated to the jury.” The District’s request was backed up by a peer reviewed statement issued by the American Speech-Language-Hearing Association (ASHA) that warned that information obtained through S2C “should not be assumed to be the communication of the person with a disability.”...

Plaintiff opposed this request, arguing that the efficacy of S2C was “the most material fact at issue” and that it should be decided by the jury. [And, as we see above, the judge agreed with the plaintiffs on this, citing the Third District decision.] Now, Plaintiff has asked the Court to preclude the District from cross examining Alex in the manner of its choice, which would show the jury that S2C does not represent Alex’s own voice...

In other words, the plaintiff wants the question of whether A.L. is communicating authentically by S2C to be decided by the jury... at the same time that it wants to prevent the opposing side from cross-examining A.L. in a manner that would present evidence to that jury that A.L. isn’t communicating authentically through S2C.

Kristofco adds that it was long known to the plaintiffs that the Lower Merion side wanted to do a message-passing test, as Howard Shane had proposed in his expert report, and that they had only objected to it after the “sweets with kids” episode.

The fact that Alex completely failed the test on December 2 is no doubt what is motivating the current objection. However, the fact that cross-examination will be very effective is not a proper basis to preclude it.

Of all of Kristofco’s lines, this is one of my favorites.

The night before the trial, all of us—the Lower Merion lawyers, Howard Shane, and myself—met one last time. The plaintiffs were hoping for jury selection to conclude in time for their first expert witness... who was none other than Barry Prizant. Perhaps, since Prizant was the only one allowed to testify that A.L.’s S2C-generated communications were authentic, the plaintiffs had decided it was a good idea to get that notion planted in the jurors’ heads at the very beginning of the trial, before A.L. took the stand and started pointing to letters. Kristofco’s cross-examination of Prizant was therefore crucial, and he had requested our feedback on a list of questions to include in that cross-examination. I was asked to arrive in court in time to observe both the examination and cross-examination of this longtime S2C supporter and promoter, something I was very much looking forward to. Amy Brooks, one of the other Lower Merion lawyers, would call me the next morning to confirm where and when to show up.

So, the night before the trial, here’s how things stood:

• A case that had been in the works for going on seven years was about to get the jury trial the parents had long been seeking. 
• The parents, apparently eager to set a precedent for the large number of S2C families waiting in the wings for a favorable decision, had turned down settlement offer(s) from the Lower Merion school district at point(s) in time after the case was scheduled to go to trial. 
• Jurors would be told that part of what they were deciding was whether S2C represented A.L.’s authentic voice. 
• A.L.’s facilitator would be required to read every letter out loud and a video camera would be set up to record the process (see my last post), which would perhaps make apparent to the jurors what was apparent to me during the hearing: not just the facilitator’s letterboard movements, but also the facilitator’s retroactive revisions, when calling out the letters, of which letters were purportedly selected. 
• Of all the plaintiff’s expert witnesses, only one would be allowed to testify that S2C was effective for A.L. 
• That one witness would then have to undergo one of those cross-examinations by Mike Kristofco. 
• Later on, Kristofco would be asking A.L. to describe pictures that his communication partner couldn’t see. The last time this happened, a picture of a tornado approaching a house was described as “Sweets with kids.”

If you were A.L.’s parents, what would you do at this point?

But I wasn’t thinking along those lines that night. I was instead thinking that, for all the people who’ve fallen for S2C over the years after watching carefully edited, carefully curated videos that disproportionately showcase the most convincing moments of the most convincing S2C sessions from the most convincing camera angles, and for all the people who’ve been so easily convinced, from mere words spoken on an audio-only podcast, that non-speaking autistic individuals are also telepathic, we were finally about to have the first-ever fair trial of S2C: with the clear-cut empirical testing that proponents have so successfully avoided everywhere else, and with a jury that would be able to see S2C for what it really is. All of which would make this nearly seven-year-long case a huge precedent-setter for every next S2C case going forward.

I still remember where I was when I got the call the next morning from Amy Brooks, which I should have realized was a bit earlier in the morning than she’d said she’d call. I assumed, nonetheless, that I was about to hear details about when and where I should show up for Barry Prizant’s examination. It took me a moment to process what I heard her say instead. And to realize that the actual game changer in this case was not the one I’d been expecting.

“They just settled.”

Standing outside in the snow in the middle of the neighborhood cemetery, I asked myself the same question I’d asked myself in Courtroom 15B on December 2^nd after A.L. typed out his first response to Mike Kristofco’s question about was happening in a picture (“What is happening is you don't want me to testify”). Why didn’t I see this coming?

The settlement, of course, was confidential. Which side conceded is something we can only guess.

And as for what precedent had just been set for future S2C cases—only time will tell.

Spelling to Communicate Goes on Trial: Part VI

This is the sixth installment in a series on a Spelling to Communicate (S2C) lawsuit against a school district. You can read more about the background in my first post, but, in brief, the lawsuit arose because the school district, the Lower Merion School District of Lower Merion PA, refused to hire an S2C “communication partner” for the parents’ non-speaking autistic son (A.L.).

This series focuses, specifically, on a hearing that occurred on December 3rd of last year that I now have permission to write about. The hearing was a 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.

In my previous five posts (starting here), I described and excerpted the examinations and cross-examinations of five people:

• Dr. Anne Robbins, the neuropsychologist whom A.L.’s parents hired to do an independent, neurocognitive assessment of A.L.: an assessment that was based, in part, on output that A.L. generated via S2C
• Dr. Wendy Ross, a highly celebrated figure in the Philadelphia autism and neurodiversity scene and A.L.’s former developmental pediatrician, who testified under oath that she believes that S2C works for A.L.
• Tom Foti, the founder of the local S2C clinic and the designated communication partner for A.L. for A.L.’s testimony at the upcoming trial that was scheduled for January 7th.
• The Foti-A.L. facilitator dyad, in which Foti held up the letterboard and prompted A.L., and A.L. poked at letters.
• The Binder Le-Pape-A.L. facilitator dyad, in which A.L.’s mother, Jennifer Binder-Le Pape, held up the letterboard and A.L. poked at letters.

Takeaways from the previous posts include, from Dr. Robbins:

• That A.L. has average or above listening comprehension capabilities but (on certain nonverbal subtests) didn’t understand what she was asking him to do.
• That A.L. couldn’t point to a numbered choice on a stationary surface but could point to a number on a held-up letterboard.
• A.L.’s scores, based on S2C-generated output, were much higher on verbal subtests than on nonverbal visual pattern subtests: a striking reversal of what’s generally found in autism.

From Dr. Ross:

• That apraxia is something that affects “any body part that moves” (not really), and that bodily apraxia is associated with autism (not really).
• That she’s witnessed evidence of facilitator control over messages in some of her patients: the first public admission of facilitator control that I’m aware of by someone who believes that S2C is valid.
• That clinical observation trumps formal testing and that holistic assessments trump scientific measurements, and that observations that “the board is not being moved and no one is touching him” establish that A.L.’s S2C-generated output must represent messages coming from A.L. rather than from his communication partner.
• That there’s more cause for concern about falsely accusing someone of not communicating than about the possibility that this person’s communication is being hijacked, and his personhood suppressed, however unwittingly, by someone else.

From Mr. Foti:

• The usual misrepresentations of the usual studies: “Penn State,” “Cambridge,” and “Virginia,” consistently (and inaccurately) cited as showing evidence either of the need for S2C, or of the validity of S2C.
• That placing the letterboard on a stationary surface is something that “has never been tried” in S2C. Instead, the steps towards what’s (inaccurately) called “independent typing” are a held-up letterboard followed by a held-up keyboard: a sequence that favors facilitator cueing over accommodations for alleged fine-motor challenges.
• That those subjected to S2C depend on their facilitators not just for linguistic expression, but also for comprehension, struggling to understand stuff that’s read out loud to them by someone other than their communication partners.
• That a written code of ethics prohibits S2C “practitioners” from participating in message-passing tests but does not rule out a non-practitioner “communication and regulation partners” participating in such tests.

From the Foti-A.L. facilitator dyad

• The sorts of messages you see only in FC—i.e., more reflective how facilitators may imagine autistic non-speakers than of how young men typically talk. For example: “Music is my haven to more calmness.”
• Several violations by Foti of the rules he says he’s trained to follow: not moving the letterboard while A.L. points; only resetting if A.L. types three letters in a row that don’t “make sense.”
• Foti’s frequent backtracking and retroactively altering his report of what letters were typed out in the course of the S2C message generation (such that, for example, “helped me to allow” becomes “has allowed me.”)

From the Binder Le-Pape-A.L. facilitator dyad

• A message that objects to a message-passing test as an insulting attempt to prevent A.L. from testifying a trial.
• A subsequent message that agrees to such a test after the judge made it clear she expected A.L. to cooperate if he, in fact, did want a trial.
• A second public message-passing failure (the first one was recounted in the court document I cited in my first post)
• A picture of a tornado approaching a house was described as “sweets with children.”
• After Binder Le-Pape was shown the picture, the Binder Le-Pape-A.L. facilitator dyad added that “That is before they arrive in Oz.”

We’ve now come full circle and returned to the examination of Dr. Robbins with which I opened my first post. This examination was interrupted by the arrival A.L., his mother, and Tom Foti; the examination and cross-examination of Foti (recounted in my fourth post); and the examination and cross-examination of the A.L.-facilitator dyads (recounted in my last post).

Once again, I’ve put my commentary in bracketed italics and elided the parts of the examination that are more procedural in nature and/or less relevant to the questions that concern us here at FacilitatedCommunicationthe questions. As before, these are: what can we learn about the validity of the instances of S2C that have arisen in this case? And, in the case of the examination and cross-examination of Dr. Robbins, what sorts of justifications does a neuropsychologist give, under oath, for why she decided it was OK to base an assessment of someone’s cognitive skills on output generated by a controversial methodology that (as it turns out she’s well aware) has been warned against by the American Speech-Language Hearing Association?

Before the examination resumes, there’s a brief discussion of how much more time Ms. Reimann, the plaintiff’s lawyer, needs to complete her examination. This is followed by a brief discussion of the basis of the Daubert Motion (a request to call into question the other side’s expert witnesses) that was filed by the school district and is the reason for this voir dire of Dr. Robbins. We begin with the Judge’s query to the school district’s lead counsel, Mike Kristofco.

The Judge: Maybe it will help if counsel states exactly what you are objecting to.

Kristofco: Certainly, Your Honor. The Daubert motion was filed because Dr. Robbins stated in her report that Spelling to Communicate is effective communication for Alex, and she relied upon that methodology to conduct her testing and assessments of him. So what we are looking to do is challenge her ability to offer expert opinion about whether Spelling to Communicate is, in fact, effective communication, and as a result, would preclude her from testifying about the information she gained utilizing that methodology.

The Judge: Okay. Thank you. Doctor, you may come back up.

[Dr. Anne Robbins retakes the stand and her examination resumes.]

Reimann: If we could go back to the information that is on page 36 and over to 37, which is the Appendix B and the summary of your scores. Looking at the Spelling subtest, what was Alex asked to do on that subtest?

Robbins: He was given a word to spell. The word was included in a sentence and then repeated. Typically students would write their answers. Because he was not writing, he spelled it on the—on his letter board.

[She doesn’t mention that the letterboard is held up by A.L.’s communication partner.

It’s unclear what Robbins is trying to accomplish here. Perhaps she thinks that showing that A.L. displayed intact spelling skills during her cognitive assessment shows that his S2C-generated communications, including “sweets with kids,” must be his. But there are two problems. First, Robbins doesn’t say what his spelling scores were. Second, and much more problematically, there’s that circular reasoning that we so often see in pro-S2C argumentation: A.L.’s spelling skills were generated by S2C.]

Reimann: Okay. And then on page 37, you have adaptive scores. And what—so first of all, who completed the rating scales there?

Robbins: Alex's father.

Reimann: What are adaptive behaviors?

Robbins: They are functional skills that people use to handle domestic responsibilities, interact with the community, socialize, et cetera.

[Presumably A.L.’s father, who is on record as an S2C believer, rated A.L.’s interactive and social skills in part based on his S2C-generated messages. This, of course, would make some of the adaptive skills ratings unreliable for the same reason that Robbins’ entire cognitive assessment is unreliable.]

Reimann: Okay. And based on your assessments in 2018 and 2021, does Alex have an intellectual disability?

Robbins: No.

[No surprise there. To my knowledge, not one S2C-ed individual has ever been deemed to be intellectually disabled by anyone who’s assessed them, whether formally or informally, based on S2C-generated output.]

Reimann: And what is the—what is required for a diagnosis of an intellectual disability?

Robbins: Well, typically a test of cognitive abilities is given and it needs a cutoff score of approximately 70 for intellectual ability and a global adaptive composite on an adaptive behavior scale, also at 70 or below.

[It’s interesting that we aren’t getting specific scores here. Perhaps that there’s an awkward discrepancy between high cognitive and low adaptive skills (many S2Ced individuals lack basic self-care and safety skills) that Reimann has decided is best not to expose.]

Reimann: Okay. Do you have an opinion to a reasonable degree of professional certainty as to whether Alex needed a letter board and communication partner to have equal access to the programs, activities and services offered by the Lower Merion School District?

Robbins: Yes.

Reimann: And what is your opinion?

Robbins: That his access to the letter board really was his access to communication, to interaction, to expressing himself, to making requests. It was really his ticket to having a voice.

[In other words, she thinks he needs S2C because she thinks S2C works and because nothing else works. And thus creeps in the fallacy, so often seen among FC believers, that if nothing else works, what remains (however implausible) must be the thing that works—an echo of that famous Sherlockian fallacy.

One thing that goes unconsidered here is the possibility (indeed, probability) that there’s simply no tool that will provide someone with profound, minimally-speaking autism (with the huge challenges that profound, minimally-speaking autism brings to language comprehension) with “equal access” to a school district’s programs, activities and services (where “equal access” means accessing the general education curriculum as fully as those with age-appropriate comprehension skills do).]

Reimann: Did you observe Alex at Lower Merion High School?

Robbins: Yes.

Reimann: When you observed Alex, was he able to effectively communicate?

Robbins: No.

[Since he didn’t use a letterboard at school, what she means is that he couldn’t effectively communicate without one.]

Reimann: And how long was that observation?

Robbins: Approximately an hour to an hour and a half. Probably an hour and a half.

Ms. Reimann: Okay. Thank you. Nothing else, Your Honor.

[Next begins the cross-examination by Mr. Kristofco.]

Kristofco: Good afternoon, Dr. Robbins. You also provided testimony at the due process hearing in this matter. Do you recall that?

Robbins: I do.

Kristofco: And that was—the testimony you provided there was true and correct, wasn't it?

Robbins: Was what?

Kristofco: True and correct?

Robbins: Yes.

Kristofco: Now, you do not have any educational degrees in speech-language pathology, do you?

Robbins: I do not.

Kristofco: You have not been trained as a speech-language pathologist, correct?

Robbins: Correct.

Kristofco: You do not hold any state or governmental licenses as a speech-language pathologist?

Robbins: Correct.

Kristofco: You don't practice as a speech-language pathologist?

Robbins: Correct.

Kristofco: Or hold yourself out as a speech-language pathologist?

Robbins: Correct.

Kristofco: And you don't have a certificate of clinical competence from the American Speech-Language-Hearing Association, correct?

Robbins: Correct.

Kristofco: You have not published any peer-reviewed research in the field of speech-language pathology?

Robbins: Correct.

Kristofco: And you have not taught any speech-language pathology course, have you?

Robbins: I have not.

Kristofco: Have you been trained in Spelling to Communicate?

Robbins: I have not.

[Having established Robbins’ complete lack of credentials in both speech-language pathology and S2C, Kristofco moves on to the report she prepared for this case. This report, he points out, claims that the A.L.’s school did not offer him an appropriate education, despite the fact that there had already been a prior legal determination that the school had, in fact, done so. Reimann objects to this line of questioning as irrelevant but is overruled; Robbins concedes the point. Kristofco’s questions then move to the circumstances under which Robbins assessed A.L.]

Kristofco: You agree with me that the presence of Alex's parents during the testing that you performed represents a deviation from the standardized procedure?

Robbins: Yes.

Kristofco: And you agree with me that allowing Alex's parents to praise him for his participation during your assessment also represents a deviation from the standardized procedure?

Robbins: It was a deviation that was used in specific situations and applied in this one.

[At no point in this hearing does she elaborate on which “specific situations” this “deviation” is “used.”]

Kristofco: And you agree with me that permitting Alex to take standardized assessments through the use of Spelling to Communicate also represents a deviation from the standardized procedure, correct?

Robbins: Yes.

Kristofco: And in preparing your report and coming to your conclusions about the effectiveness of Spelling to Communicate, what information did you gather?

Robbins: I think I covered that in the previous testimony. I spoke with the speech and language therapist who had been treating him for several years and who generated the idea of allowing him to use his effective communication to take some tests that she—that he had been given by standard administration. I spent time reviewing some videos so I could familiarize myself with Alex, with how he was responding to the method, what he was able to talk about, how he was able to talk about it. And I visited the training site where he was involved in a 45-minute to an hour lesson training him in the use of Spelling to Communicate.

[In other words, the information she gathered regarding the effectiveness of Spelling to Communicate came from statements made by the speech-language pathologist who was already a believer in Spelling to Communicate; watching videos of A.L. using S2C; and watching A.L. do an S2C lesson at the S2C clinic. Thus, the usual concerns about the reliability of the information sources and of the first-hand observations apply here—just as they did in the testimony of Dr. Wendy Ross.

There follows a discussion of the last time Robbins assessed A.L.—2021—with a reminder by Reimann she had requested that Robbins’ reports be updated but that the judge had denied that, and a request by Reimann that the jury should be instructed accordingly. Then Kristofco’s cross-examination resumes.]

Kristofco: And in preparing your report and rendering your opinions in the report, did you conduct any testing of Spelling to Communicate?

Robbins: Testing of Spelling to Communicate? Tell me what you mean, please.

[Is she genuinely baffled by what’s meant by a testing of Spelling to Communicate? Is the concept of testing out a novel testing methodology, as in a testing methodology in which S2C-generated responses serve as answers to test questions, really that alien to her? Even if Robbins views this as beyond her professional scope, shouldn’t she at least recognize the issue that Kristofco is raising?]

Kristofco: Did you conduct any testing of the efficacy of Spelling to Communicate?

[Somehow adding the word “efficacy” is enough for her to understand.]

Robbins: I did not, other than my observations with him.

Kristofco: Did you do any research into Spelling to Communicate to do your report or render your opinions?

Robbins: I read some of the materials that I think Dr. Vosseller had prepared. I don't remember specifics of that, but I did look through some of that.

Kristofco: And by Dr. Vosseller, you mean Elizabeth Vosseller?

Robbins: Yes.

[Vosseller is neither an MD nor a PhD; she holds an MA in speech-language pathology and a license, albeit one that lapsed between January 1st, 2005 and December 13th, 2017.]

Kristofco: Okay. In your report, you do not provide any scientific or medical opinion as to why Spelling to Communicate works for Alex, correct?

Robbins: Scientific or medical?

Kristofco: Yes.

Robbins: No, that's not really the purpose of my report.

Kristofco: In fact, you don't provide any opinion as to why it works for him at all in the report, correct?

Robbins: I was not asked to do that. That was not the purpose of the report. That was not what the referral request was. That really did not apply in this situation.

[If she’d been asked to do an assessment of A.L. in which his answers were generated not by S2C but by telepathy, would Robbins have felt the same way? In other words, would she have felt that so long as she was not asked to provide an opinion about whether telepathy works, such an opinion would be irrelevant to her report?]

Kristofco: On page 6 of your report

[Kristofco briefly clarifies which page he’s talking about.]

Kristofco: [Continuing] You say, based on my observations and assessments, use of the letter board is effective communication for Alex. That's in, I guess, the second full paragraph, the first sentence. Do you see that?

Robbins: Yes.

Kristofco: And when you say use of the letter board, you mean Spelling to Communicate?

Robbins: I mean his use of the letter board as he was trained and the method of Spelling to Communicate was effective for him to respond to what I was asking him to do.

Kristofco: Okay. And your use of the phrase, effective communication, do you know what the definition of that phrase is under the Americans with Disabilities Act?

Robbins: Not specifically.

Kristofco: Why did you use the phrase effective communication in the report?

Robbins: Because to me, it was the sole method that this young man had for communication, and he was able to communicate with me in response to multiple hours of testing, as well as some informal interaction as you all observed here today.

[In other words, it works because nothing else works and because it looks to her like it works. And I’m starting to wonder whether she was there for the message-passing failure.]

Kristofco: Are you aware that to be effective an aid or service must be provided in such a way to protect the privacy and independence of individuals with a disability?

[Kristofco raised this point earlier with Dr. Ross. Her response was “I was not specifically aware of that nuance, no.” As for Robbins, she is so baffled she asks him to repeat the question. He does. She’s still confused.]

Robbins: I don't really know what that phrase means, what you are asking.

Kristofco: Let me ask you this way: Using spelling, Spelling to Communicate, Alex cannot have a private conversation with you, correct?

Robbins: Correct, he will have a communication partner.

Kristofco: And so he is always relying upon the presence of a third person to communicate?

Robbins: A third person is present. I don't know that he is relying on them to communicate, but they are present.

[The phrase “rely on them to communicate” is ambiguous: it could mean “needs their help when he communicates,” or it could mean “relies on them to communicate for him.” Robbins presumably wants to disavow the latter.]

Kristofco: Now, isn't it true that your opinion is based exclusively on the fact that you have observed Alex use Spelling to Communicate, and you believe that it works?

Robbins: After doing my—after gathering whatever information I did to make the decision to gather information using standardized tools, I did I came to the conclusion that the information that I was gathering was meaningful and useful and reflected him and what he was able to do.

[This sounds hopelessly confused and circular. Robbins has gathered information and then used that information to determine that the information she was gathering was valid. Once again, and as with Dr. Ross as well, we hear echoes of the circular logic that pervades (and undermines) most pro-FC arguments: the notion that FC-generated output counts as evidence that FC is valid.]

Kristofco: All right. I’m not sure that directly has answered my question. So, let me rephrase my question. Is it true that your opinion that Spelling to Communicate is effective communication for Alex is based exclusively on the fact that you have seen it and based upon what you observed you believe that it works?

Robbins: So I am not weighing in on Spelling to Communicate as a method in general. I am weighing in on my interaction with this individual, this young man, knowing his history, knowing his personal life experience, my understanding of testing all kinds of individuals with various disabilities, having to adapt, get him to adapt in order to gather information about that person so that it could be helpful to him, to his parents, to the school, if they choose to use it. That is what I was hired to do, and that's what I did. I’m a neuropsychologist. I am not a speech therapist. I am not an expert in Spelling to Communicate. I did what I was asked to do, and I believe it is effective for him.

[More circularity: she’s using her interactions with A.L., his end of which were generated by S2C, together with his history, the more recent years of were refracted through the prism of S2C, as evidence that S2C is valid for him. But now she’s fortified this with some vague hand-waving towards her years of “testing all kinds of individuals” and of having to “adapt” in order to gather information about them.

“I did what I was asked to do.” There’s something creepy about Robbins’ repetition of this line as justification for using such a highly controversial tool in such a high-stakes assessment.]

Kristofco: Let me try one more shot at restating this, because I think the last time I restated it, I think I stated it too broadly. Is it true that your opinion that Spelling to Communicate is effective communication for Alex is based exclusively on the fact that you have seen it and based on what you saw you believe that it works?

[He’s being polite here. If anything was too broad, it was Robbins’ response; Kristofco is simply repeated his previous question—verbatim.]

Robbins: Based on what I saw over the course of about 15 hours of interacting with him on standardized test administration and informal conversations and seeing the alternative when it was not in use, that's the best answer I can give you.

[As with Ross, and as with so many others who have fallen for S2C, so, too, with Robbins: all these folks think that their own observations are enough to decide that this controversial therapy “works” for someone—especially, as Robbins keeps repeating, when there don’t seem to be any better alternatives.]

Kristofco: Okay. You would agree with me that there is—for something to be—strike that.

[I wonder if he decided that whatever he had planned to ask at this point was too tricky for Robbins—and unlikely to elicit a coherent response from her—given all the other times his questions had baffled her.]

Kristofco: [Continuing] What facts or data is that opinion that Spelling to Communicate is effective communication for Alex based upon?

Robbins: The facts are my interaction with him, my interaction with him administering standardized tests, which I have been doing for 30 years with a very, very diverse and complicated population of students. So I used my clinical judgment at a certain point to make my decision and make—and decide to agree to be involved in this process, to facilitate some information that might be helpful to this family and to this young man.

[As we’ll hear below, for all those 30 years, and for all that complicated diversity of clients, A.L. is the only person Robbins has assessed using S2C.]

Kristofco: So would you agree with me that your clinical judgment that Spelling to Communicate is effective communication for Alex is not something that is testable?

Robbins: Clinical judgment is almost never testable.

[Ross had a similar, if broader, reply to this question: “I think that might be true, but I think a lot of things are not testable.”]

Kristofco: Would you agree with me that there is no objective criteria or testing that you did to come to the conclusion that Spelling to Communicate is effective communication for Alex?

Robbins: Other than the results that I got and my interaction with him.

Kristofco: The results you got were the results of the assessments that you did using Spelling to Communicate?

Robbins: There was no other way to test him.

[That’s simply not true. Minimally-speaking individuals with autism are tested all the time without using S2C.

What may be true is that there was no other way to test A.L. that elicited much in the way of interpretable responses—as Robbins found out when she administered the Ravens Matrices test without S2C. Here, as she reported, his pointing was “very random.” But a failure to respond in a meaningful way is still a result—albeit a negative result.

If Robbins had instead said “There was no other way to test him that would result in meaningful responses,” she might have been more accurate.]

Kristofco: Okay. My question is not about the results of the assessments. My question is about the method of communication. So, would you agree with me that there are no objective facts or criteria that you relied upon in coming to the conclusion that the method of communication called Spelling to Communicate that Alex was using was effective for him?

Robbins: Objective facts? So what are you referring to? Research? What are you referring to?

[Her bafflement suggests a lack of familiarity with what other efficacy measures are out there besides clinical observation.]

Kristofco: I am referring to something that is testable, provable, can be recreated.

Robbins: So I don't know exactly. I know that there has been some research on this Spelling to Communicate. I am not an expert in Spelling to Communicate. I am an expert in neuropsychological testing with complicated diverse, multiple disability individuals. And that's what I brought to bear in this situation with my experience and my clinical judgment and the research that I did leading up to it, to make the decision to be a participant in this process, which I was asked, is there information that could be gleaned, and this was the information that could be gleaned. And that's what I reported.

[It seems from Robbins’ refrain that this is all she has to offer: her years of experience testing diverse subjects with multiple disabilities, and “I did what I was asked.”]

Kristofco: So you didn't view it as your role at all to determine whether this truly was effective communication?

Robbins: For him, yes. I determined that through observation and through clinical judgment and through the process that I took him through. If at any point in this process I came—had come to the decision that this was not effective and that the information that I was gathering was not valid or not reliable, I would have stopped the process at that point.

[She leaves it unspecified what would cause her to reach the decision that S2C ineffective, invalid, and/or unreliable.]

Kristofco: Did you conduct any sort of a message-passing test with Alex?

Robbins: I did not.

Kristofco: Were you present in the courtroom when we were showing Alex the picture and asking him to describe it?

Robbins: I was.

[Ah hah!

And yet clearly that hasn’t changed her mind.

But perhaps this isn’t surprising. Perhaps she knows about the earlier instance of message-passing failure.]

Kristofco: Did you do anything like that with Alex?

Robbins: I did not.

Kristofco: The fact that Alex was unable to describe what was in the picture, did that cause you any pause at all as to whether this truly is Alex's voice using Spelling to Communicate?

Robbins: So, I am not convinced that he could not do that. I am convinced that he would not do that.

[Could vs. would. Unsurprising though her response is, it’s interesting that she doesn’t seem to view the post-hoc, tornado-to-Lollypop-Land connection as evidence that A.L. could describe the picture.]

Kristofco: Did you ask Alex any questions outside the presence of the communication partner and see if the [sic] Alex could answer them when the communication partner was not present?

Robbins: At school I did. I don't remember exactly what I did, but I attempted to communicate with him at school. And I was not able to communicate with him.

[This, recall, had been her argument for why the method was needed at school. But it’s also an argument that raises questions about A.L.’s true communicative abilities. And it’s striking me how strange it is that what should raise questions about whether the communications attributed to S2C users are actually theirs—namely, how minimal their communication skills appear to be without S2C—only further validates S2C for its true believers.]

Kristofco: Does the method that you used to reach your opinion that Spelling to Communicate is effective communication for Alex in this case, have—has it been peer reviewed or have any sort of known error rate?

Robbins: I am not up to speed on where they are with their peer review. I believe there is some things in process, but I am not up to speed on that.

[The usual hand waving about pending studies, but it’s even vaguer than Ross’s and Foti’s. No mention of “Cambridge,” “Virginia,” or “Penn State.”]

Kristofco: Is there any sort of scientific or psychological standard or methodology that you employed in reaching your conclusion that Spelling to Communicate is effective communication for Alex?

Robbins: I feel like I have answered that question.

Kristofco: It was the observation and your clinical judgment?

Robbins: Observation, clinical judgment and the consistency and reliability with which he performed across multiple sessions, across multiple tasks.

[Consistent reliability, of course, is also consistent with facilitator influence. Is Robbins really unaware of this possibility?]

Kristofco: So—

Robbins: And contrasting what they observed in the absence of a communication partner and a letter board.

[Yes, she does seem truly unaware. It works because of that amazing contrast. Again, what should be a red flag for bogusness is mistaken for an indication of efficacy.]

Kristofco: In doing your research, in preparing your opinion in this case that Spelling to Communicate is effective communication for Alex, did you run across the position statement issued by the American Speech-Language-Hearing Association?

Robbins: I was informed of it. I believe that came out after I did my initial testing with him.

[Is she suggesting here that she might have decided not to do an S2C-mediated assessment if ASHA’s position statement had come out earlier?

But that possibility is belied by the fact that Dr. Robbins did do a second S2C-mediated assessment several years afterwards, in 2021.]

Kristofco: Are you aware that that position statement warns against the use of Spelling to Communicate?

Robbins: That's what I have been told. I have been told, and I’ve also been—read information about the speech and language people are very much in disagreement with the ASHA statement.

[One thing that this case is really driving home is just how much benefit S2C proponents are deriving from the fact that a number of speech-language pathologists have come out against the ASHA statement. First and foremost is Barry Prizant, the best known of them all, who, as Dr. Ross reminded us during her cross-examination, once received what she called ASHA’s “highest honor” (he received it four years prior to going public in support of S2C). But see also our list of SLPs who have become S2C practioners.]

Kristofco: There is no published peer-reviewed research that you can point to to indicate that your methodology for determining whether Spelling to Communicate is effective communication for Alex is scientifically reliable, correct?

Robbins: There is nothing I can point to at this time.

Mr. Kristofco: I don't have any further questions.

The Judge: Any redirect?

Ms. Reimann: I just have one.

[Kristofco stands down, Reimann resumes.]

Reimann: You said that—and I didn't get it down exactly, but that when you observed Alex with the picture that you were not convinced that he could not do it but that he would not do it. Could you just elaborate on that?

Robbins: In my experience with Alex—I mean, I had a few different experiences with him. And there were times when he was very much invested and wanted to cooperate, and there were some times where he did not understand why he was being asked to do what he was being asked to do and would not cooperate, or he was not comfortable with what he was being asked to do and would not cooperate. So I have seen that behavior from him. And I also think he expressed it himself in here where he said, I feel like you don't want me to testify, I feel like—you know, I don't—trust me, et cetera, et cetera.

[Once again, she’s using A.L.’s S2C-generated words (“you don’t want me to testify”) in support of S2C (as evidence for why the apparent message-passing failure wasn’t, in her opinion, an actual one).

As for her conception of A.L.’s personality, you’d think that this high-stakes voir dire hearing would be highly motivating: that is, that the defiance expressed in “you don’t want me to testify” would make him want to prove that he can; and thereby show all his doubters how wrong they were.

As we’ve commented elsewhere, it’s telling that not a single S2Ced person, of which there are now many thousands, has publicly responded to their doubters in this way. Not a single one has ever (publicly at least) typed out anything like “Go ahead. Ask me any question while my communication partner is out of the room. I’ll show you.”]

Robbins: [Continuing] Those comments to me was his way of saying, I’m not comfortable in this situation, I’m not comfortable with what you are asking me to do. And I do not know to what extent or if that came to bear on how he responded to this test that was given to him in front of all of these people in this setting.

[“I’m not comfortable with what you’re asking me to do”? He was asked to describe a picture of a tornado approaching a house. “In front of all these people”? If memory serves, there were, if we include those on both sides of the bar, at most 20 people. And A.L. was purportedly on board with pursuing this lawsuit and taking the stand; if his parents thought he wasn’t, presumably they wouldn’t be putting him through all this.]

Robbins: [Continuing] But I would say there is a decent chance he very well could do that. He did things like that above and beyond more challenging than that. So I believe it's very possible he could do it and chose not to do it here. I don't know that for sure, but...

[To remind readers what “to do it” refers to here, it’s to say that a picture of a tornado approaching a house depicted a tornado approaching a house.]

Reimann: And when you say that he was asked to do things that were more complex, can you just give us an example or two of what part of your testing?

Robbins: So one thing, I guess, that comes to mind is that there is an element to the reading comprehension test where he has to read a passage and then look at different statements from the passage and re-sequence everything in order the way he read it in the passage. I have been giving these tests for a long time. It's unusual for somebody to be able to handle all of the working memory aspects, the memory aspects, the comprehension aspects. And he demonstrated all of that when he performed that test. So I at that point was impressed at what he was capable of doing under these circumstances.

[Indeed: the working memory and comprehension demands of re-sequencing a passage exceed those of stating that a picture of a tornado approaching a house depicted a tornado approaching a house. But, of course, Robbins is ignoring the key difference between the two testing scenarios: that is, whether or not the communication partner was aware of the correct answer.]

Ms. Reimann: That's all I have. Thank you.

The Judge: I have a couple of questions.

[They’re good ones.]

The Judge: Have you had any other patient that has used a letter board or the Spelling to Communicate? I know we are using them interchangeably. But have you had other patients?

Robbins: Not this method. I have had traumatic brain injury patients who have used spelling as an alternative to express communication.

[So much for all those years of experience testing people with all those diverse, complex disabilities. Before testing A.L., Robbins had never used S2C.]

The Judge: How do they do the spelling?

Robbins: It did not necessarily involve a communication partner, but it would be a board like this, a laminated board.

The Judge: Where they touch?

Robbins: Like a stroke patient might do.

[There follows two brief discussions. One concerns the difference between the tests that Robbins did of A.L. in 2018 and 2021 (we learn there weren’t many differences in terms of what was assessed). The other concerns a reference in Robbins’ report to the fact that a “TSS” or therapeutic aide sometimes attends tests. (The TSS’s responsibilities include helping a child stay on task; not holding up a letterboard and prompting them to point to letters). Following this there’s a brief recess, and then the judge asks about the home program that A.L.’s parents have implemented.]

The Judge: In your report I think you talk about the home program that Alex's parents implemented that was appropriate, and if not for his medical issues, his participation in the home program would have allowed him to make appropriate progress. How did you reach that conclusion?

[The main medical issue I’ve heard mention are frequent migraines.]

Robbins: Well, I saw the improvement in his math scores. I did not observe the program, so most of that was what was shared with me. But in terms of the level of instruction, the sophistication of the material that he was being presented with, it—from that I concluded that, you know, he was available for [?] learning at a high level.

[Home school S2C programs are, naturally, going to be pitched at a high academic level: one that reflects the highly sophisticated literary skills and academic knowledge that S2C purportedly unlocks.]

The Judge: And you also opined that Alex needs a letter board and communication partner to have equal access to the programs, activities, services that the Lower Merion School District, based on materials reviewed, observations interviews and your interactions with Alex's performance during the standardized testing administration. Specifically what materials did you review?

Robbins: I’m sorry, can you repeat some of that again?

The Judge: Sure. In your report you opined that Alex needs a letter board and communication partner to have equal access to the programs, activities and services that Lower Merion School District, based on materials reviewed, observations, interviews and your interactions with Alex and his performance during standardized test administration. I totally understand your 15 hours of observation—working with him, doing standardized testing. I just want to see what other materials did you review and who did you interview?

Robbins: So it was—I guess the primary thing would be when I was at school.

The Judge: Okay.

Robbins: So I observed him in the life skill class, in the autism classroom. But also observed him in a social studies classroom where there was a lot of discussion about the civil rights movement and the walk-out that happened that day. There was preparation for a quiz. And during that period of time, those materials were not [presented?] to Alex, but what was presented to Alex was some materials that his aide had written up, and he was copying them into a book. So it was very obvious to me at that point he was sitting in a classroom, but he was not being integrated into that classroom. He was not using a letter board or communication partner to maybe offer his opinion about the civil rights movement or the video that they had watched or even preparation for the quiz, or whatever. He was doing a completely separate activity than what the class was doing. Although he was allowed to be in there, he was not really accessing what was happening in there.

[Of course, none of this is an argument for a letterboard. It is, rather, a set of observations that indicate that teachers didn’t meaningfully include A.L. in grade-level classes. This, as I witnessed routinely with my own son, is a general problem even with moderate autism, aka Level 2 autism, aka Kanner’s syndrome.

Robbins’ observations do provide a window into what the inclusion of non-speakers into regular academic classes— which S2C-using parents believe they can handle based on their S2C-generated output—looks like. Without the S2C, that is. Materials written up by the aide; simple copying exercises; zero inclusion in class discussions or other activities. I know it well; my son experienced it also. But it’s an argument, not for better inclusion in regular ed classrooms, which simply isn’t feasible for those with the major comprehension problems that accompany moderate and profound autism. Rather, it’s an argument for autistic support classrooms that are tailored to students’ actual ability levels.]

The Judge: Okay. Are there any other specific materials that you reviewed?

Robbins: I looked at some of the syllabus that the family was using in terms of the different topics that they were—different tutors they were using and the math program that he was being instructed with. So I looked at some of those materials.

[Are these tutors also trained to use S2C with A.L.? In the only other homeschooling program I’ve heard described—confidentially, by a former tutor who became disillusioned with the entire process (S2C included; S2C-believing parents included)—that was the case. The same person who presents the algebra questions also facilitates out the algebra answers, and so forth.]

The Judge: And other than obviously your interactions with Alex, did you interview anybody else, any of his teachers, anyone like that?

Robbins: I spoke to the teacher in the autistic support classroom, and I spoke to his aide who was in the other classroom. Obviously I spoke to the speech and language therapist, the private speech and language therapist. I am trying to think if there was anybody else. I spoke to both Tom and Emily at Inside Voices. Those are the ones that come to mind. There might have been others.

[That would be the private speech-language pathologist who believes in S2C and the co-directors of Inside Voice: Tom Foti, whose cross-examination I covered earlier, and Emily Sloan, the person who facilitated A.L. during the earlier message-passing failure reported in the court documents.]

The Judge: Okay. Anything based on my questions?

Ms. Reimann: I have a couple.

[Her goal here seems to be to remind Robbins of two items that might make her report appear more robust.]

Reimann: Did you at some point after—I think it would have been the fall of 2018. Did you speak with anyone from the School District from their psychology department, the head clinical psychologist or anybody else as part of that?

Robbins: There was a phone call.

Reimann: Okay. And then also, did you also review the district's website as part of what you did for your report?

[This sounds like grasping at straws. All along, I’ve wondered what Reimann truly believes.]

Robbins: Yes, I did.

Reimann: That's all I have. Thank you.

The Judge: Okay. All right. Thank you very much for your time today.

[She asks that the two sides try to meet to resolve some of their outstanding differences, including the issues that came up earlier concerning (a) whether A.L. was provided with an appropriate education, (b) the lack of an updated evaluation after 2021, and (c) the question of jury instructions. The Judge also acknowledges what Dr. Ross had testified about stress and anxiety. And, finally, she references a request that the plaintiff’s side made about how they want to (1) have him on the stand but (2) reduce the daily stress.]

The Judge: I obviously hear what the doctor just said. I certainly observed what I observed here this afternoon in terms of the stress and anxiety. I think you all should—if you really intend to call Alex every single day for a month, then that's fine.

[The plaintiffs had requested that A.L.’s time on the stand, given his challenges with migraines, be limited to short intervals spread out over many days.]

The Judge: [Continuing] But it's going to be I think similar to what we saw here today in terms of—

[Here she interrupts to make a key stipulation about transparency.]

The Judge: We have to make sure that the communication partner says every letter out loud. I do think it would be worthwhile doing a camera, because obviously you are only—if the jury sitting is behind him, they aren't being able to see his face, and obviously, you know, normally we certainly see the face of witnesses.

[That’s true, but a camera aimed at A.L.’s face would not capture much of the letter selection process.

After some closing remarks, including references to upcoming meetings with the two sides, the judge adjourns the voir dire hearing].

The aftermath? Stay tuned for Part VII.