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
26th (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 3rd, 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 2nd 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.
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