Spelling to Communicate Goes on Trial, Part V

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 three posts (starting here), I described and excerpted the examinations and cross-examinations of three 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.

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.

And 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.

This ethical loophole, as it turned out, would become a practical reality in the course of the examination and cross-examination that directly followed Mr. Foti’s—namely, the examination and cross-examination of A.L., the person at the center of the lawsuit.

My series on the Lower Merion S2C lawsuit has been alternating with Janyce’s series on the Telepathy Tapes, and as I mentioned in my first post, some of the courtroom drama, while not nearly as extraordinary as telepathy, was arguably as odd as Oz. As in the Land of Oz.

The examination and cross-examination that were about to occur, it’s important to note, were more precisely an examination and cross-examination of the Foti-A.L., facilitator-client dyad, with Foti holding the letterboard and A.L. pointing to letters. This raises the question of how such a dyad should be referred to in the hearing excerpts I present here. In the official transcript, whoever is on the stand is simply called “the witness”; for clarity, I’ve substituted “the witness” with names. In the case of the Foti-A.L. dyad, I’ve decided to use the name “Foti.” That’s because the authorship of the S2C-generated messages was very much in question, while the person doing the speaking was unequivocally Mr. Foti.

As for A.L., as has been the case throughout this hearing, he is referred to in these proceedings as “Alex.”

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 FacilitatedCommunication.org. These questions are, as before: what can we learn about the validity of the instances of S2C that have arisen in this case? Now, with A.L. taking the stand but with his answers generated through S2C, our main question is what we can learn about the validity of S2C from what unfolds during live, unedited, S2C message generation. As I noted in my last post, most videos of FC/S2C/RPM are controlled, edited, and curated by proponents, who make only the best ones public. Videos that aren’t edited and curated (e.g., those recorded during live interviews and aired by third-party organizations) are generally far less convincing, even to naïve observers. The same is generally true of live observations.

My observations, however, were skewed by the position from which I viewed the S2C. The “bar” that separates the main part of the courtroom—with the judge’s bench, the witness box, the counsels’ tables, and the jury box (which in the case of a civil trial is on the right-hand side of the room)—kept me at some distance. The school district lawyers had a somewhat better view, and I’ll include their observations in this post. All of us, however, had to observe the pointing at an angle. That’s because A.L. and Foti were positioned the same way they would be for the actual trial: right in front of the jury box with their backs to the jury, so that the jury members could observe the pointing head-on. At this hearing, there was no jury and the jury box remained empty. The only people with anything like a head-on view of A.L.’s typing, therefore, were his facilitators.

As A.L. was led up to the stand and the logistics were worked out as to who on the judge’s side of the bar was to sit or stand where, I negotiated my way past the elderly gentleman who was now sitting between me and the aisle and over to what seemed like the best available vantage point: as far to the right of the room as I could go, on my side of the bar, without being too far away from the letterboard to observe at least its movements, if not precisely which of its letters were being pointed to.

First on the agenda was the direct examination by Ms. Reimann, the same member of the parents’ legal team who had examined all the other witnesses in this hearing. She addressed A.L. directly:

Reimann: Hi, Alex. How are you feeling? You look like you are a little bit nervous. Are you nervous?

[Foti holds up the letterboard, and A.L. begins pointing to letters. A.L.’s pointing is slower than in some of the instances of S2C I’ve observed; perhaps somewhere between a half to a whole second per point, occasionally with longer pauses. Foti reads out each letter as it’s poked, pausing every so often to speak out the phrases that he judges the letters to have spelled. Sometimes Foti repeats these phrases, perhaps as a confirmation of some sort. The entire process is slow, with regular intervals of total silence between pokes. The board moves ever so slightly up, down, right, left—despite Foti’s assurances in his cross-examination that he avoids such movements. (Such movements are, in fact, impossible to avoid. And they tend to move the client’s extended index finger closer to the next letter it pokes—suggesting that the facilitator subconsciously knows what comes next.)]

Foti: I, a-m, I am, v-e-r-y n-e-r-v-o-u-s, I am very nervous. I am very nervous, period. I am very nervous.

[“Period” presumably means that A.L. has touched the “done” icon in the lower right-hand corner of the letterboard. But from my vantage point, I simply cannot see with any accuracy which letters/symbols are being pointed to.]

 

Picture of Katharine Beals’ letterboard.

Reimann: Okay. Well, you know me, right?

Foti: I do.

[“I do” is the first answer that isn’t first spelled out letter by letter. To give Foti the benefit of the doubt, it’s only three letters long, and “I” doesn’t really need spelling out.]

Reimann: I told you what this was going to be like today, it was going to be stressful. So I want to ask you a couple of questions. Can you tell us a little bit more about how you are feeling?

Foti: T-h-e-s-e m-o-m-e-n-t-s, these moments, a-r-e i-n-t-e-n-s-e, these moments are intense, t-o m-e, to me. These moments are intense to me.

[It takes a reader only a moment to read this response; at the rate of A.L.’s letter poking, it took Foti perhaps 30 seconds to say it.]

Reimann: Is there some kind of–is there a genre of music that you like?

[In Foti’s ensuing responses, we start to hear more than just letters read aloud and formulated into phrases; we start hearing verbal prompts directed at A.L. We also start to see Foti pulling away the letterboard from A.L., pausing, and then placing it back in front of A.L.’s finger: a facilitator behavior that was referred to during Foti’s cross-examination as a “reset.”

The sequence, as I recall it, went as follows (I rely on my memory here as I’d stopped taking notes in order to give this my undivided attention): first Foti pulled the board away; then he put his hand on A.L.’s thigh and gave him the verbal prompt, as if to calm or reassure him; then, after a pause, he brought the board back to A.L.’s finger. Throughout the process, Foti appeared to be genuinely focused on A.L.’s well-being.

But here’s the rub. When asked during his earlier cross-examination about the rules for resets, Foti had stated that he resets the board only when A.L. points to three letters that “don’t make sense.” As an example (see my last post), Foti had cited q-v-a and q-v-b, contrasting these with q-u-o, which he had suggested does make sense. But none of the three-letter sequences that Foti calls out during the current proceedings, as we’ll see below, are like q-v-a and q-v-b; indeed, none of them fail to “make sense”—anymore than q-u-o fails to make sense. Therefore Foti, according to the rule that he described earlier while under oath, shouldn’t ever be pulling away the letterboard during these proceedings.

As for the verbal prompts, I’ve put these in boldface. In fact, in what follows, I’ve boldfaced everything that isn’t either a calling out of letters or a reading out of what those letters spell.]

Foti: M-u-s-i-c i-s m-y, music is my, music is my haven–is my haven. And you are two [to? too?] up.

[“Haven,” curiously, isn’t spelled out. Neither is “you are two up,” which sounds more like a prompt. While “two” is what’s in the official transcript, it would make more sense either as “too” or as “to.” That is, either it’s part of “too up”, as in a directional cue to A.L. to point lower. Or it’s “to,” as in an anticipation by Foti of the “t-o” that A.L. is about to point to (see below). Of course, anticipating letters would indicate that Foti already knows what A.L. wants to communicate (a possibility that was raised in Foti’s cross-examination and discussed in my last post). If “to” is an anticipation of what’s next, then “up” perhaps serves as a directional cue for A.L. to point higher.

Both possibilities—“too up” and “to; up”— are, of course, concerning in terms of facilitator influence.]

Foti: [Continuing] T-o. Nice and direct as you can.

[I think this prompt coincided with one of the above-described “resets.”]

Foti: [Continuing] My haven, t-o m-o-r-e c-a-l-m-n-e-s-s, music is my haven to more calmness–to more calmness, period. Music is my haven to more calmness.

[This strikes me as a prototypical FC-generated utterance—abstract, emotional, and vaguely metaphorical. Nat at all how young men typically talk. But consistent, perhaps, with how facilitators typically imagine autistic non-speakers.]

Foti: [Continuing] And i, a-m, s–keep an eye on the target.

[Another reset? Generally A.L.’s eyes appear to be on the letterboard, though from my angle it’s hard to be sure.]

Foti: [Continuing] e-s-c-a-p-e. It is an escape. It is an escape, period.

[Somehow the “i, a-m, s” has turned into “it is an.” This raises a question about where Foti'’s eyes are, or at least where his attentional focus is: is it more on the target phrase he has in mind, and less on where A.L.’s finger is actually pointing?]

Foti: [Continuing] Right on top of it. I-t-h. All right. Let's stay with i-t.

[Is Foti questioning A.L.’s selection of “h” after “i-t”? But then he allows the “h.”]

Foti: i-t-h. I-t-h, okay. Go ahead. It's helped me to in the sense.

[Foti has accepted the “h” but has inserted an “s” in between the “t” and an “h,” yielding “it’s.” He’s also once again stopped reading the letters out loud and has somehow formulated an additional phrase or two: “helped me to” and “in the sense.” Subsequently, “in the sense” disappears from the developing message, which makes me wonder whether it was actually just a prompt.]

Foti: [Continuing] a-l-l–it has helped me to allow–it has helped me to allow–to allow–t-i–it has allowed me

[“it’s” has become “it has;” a-l-l has somehow become “allow”; “helped me to allow,” in turn, has somehow become “has allowed me;” and it’s not clear where the t-i fits in.]

Foti: it has allowed me to out–Let's go back. Maybe “o”?

[No letters are read out loud for “to out,” but it seems that Foti has judged “out” to not “make sense” here.]

Foti: [Continuing] It has allowed me to talk without

[Or maybe “out” has become “talk without.” No letters are read out loud for “talk” or “with.”]

Foti: [Continuing] m-y, i-m-t-e-n–it has allowed me to talk about my intense and f-e-e-l-i-n-g-s. It allows me to talk about my intense feelings. My intense feelings. My intense feelings.

[“it has allowed“ has become “it allows;” “talk without” has become “talk about;” and i-m-t-e-n has become “intense.”]

Foti: [Continuing] And h-a–I am having a–I am having

[“h-a” somehow becomes “I am having,” with “i-a-m” added before it (or perhaps the “and” in the transcript was actually “I am”) and “v-i-n-g” added after it.]

Foti: [Continuing] l-i–let's be direct and slow down there. Having it is like–backtrack to that.

[Another “reset”? But also a “backtrack”?—This is a term I’ve never heard before, and a form of facilitator influence that Foti didn’t include in his earlier examination. Whatever a backtrack is, it seems to have involved the elimination of “I am” from before “having” and the addition of “it is” afterwards. The “like” that follows “is” also isn’t read out, at least at first.]

Foti: [Continuing] Having it is, l-i-k-e, having it is like breathing. Having it is like breathing. Tom p-e-t-t-y i-s m-y g-u-y. Tom Petty is my guy.

[No letters read out loud for two key words: “breathing” and “Tom.” When Foti neglects to read out the letters, which is occurring with increasing frequency, I start to wonder how many of those letters were actually pointed to—something I can’t see from my vantage point.]

The Judge: All right. Let's have counsel–can we have counsel ask some questions?

Ms. Reimann: Sure.

[And so begins the cross-examination of A.L. by the school district’s lawyer, Mike Kristofco.]

Mr. Kristofco: Sure. What I would like to do, Your Honor, is to show Alex a picture and ask him about the picture, but I'm not sure whether Mr. Foti is willing to do that.

[In a Zoom meeting the night before, we—the three school district lawyers, plus Howard Shane and myself as the two expert consultants—had discussed the possibility that Kristofco might be permitted to conduct a message passing test during this voir dire hearing. We had even gone through some pictures that Kristofco had downloaded from Clipart. The idea was to use unambiguous images with unusual details, such that to adequately describe them one would have to use some somewhat unusual words. Words, that is, that A.L. is unlikely to be able to come up with and spell out on his own—unless, of course, the literacy skills evinced by his S2C-generated messages were genuinely his.]

The Judge: You are going to show them both the picture, right?

Kristofco: That kind of defeats the purpose if I show them both the picture.

[Indeed it does.]

Kristofco: So I guess the question is, is Mr. Foti willing to act as the communication partner if I just show Alex the picture and he doesn't see it?

[At this point, A.L.’s mother, who as I recall is sitting with Foti and A.L., speaks up.]

Ms. Binder-Le Pape: Your Honor, I don't want to put Tom in a position where he has to choose between the court and his ethics code. If I may replace him as the communication partner?

[I couldn’t believe what I was hearing. Was A.L.’s mom actually offering to participate in a message-passing test? Was this the same person who had written a piece on the main S2C website back in 2021 listing four reasons why A.L. shouldn’t have to participate in such a test—the “most important” being that “he doesn’t want to, and we respect his choice”?]

The Judge: That's fine. Does that work?

Kristofco: Yes. We can do that.

[Mr. Foti stands down, leaving A.L. with just his mother.]

The Judge: All right.

Ms. Binder-Le Pape: [Addressing A.L.] Stay there a second. Mr. Kristofco is going to show you a picture and then he is going to ask you some questions.

[It’s interesting that she feels the need to explain to her son what Mr. Kristofco was planning to do even though Kristofco had already made that clear using more or less the same words.

Binder-Le Pape steps down, leaving A.L. alone in his seat with his back to the empty jury box. She turns away from him to face the gallery and the small number of spectators and tightly closes her eyes. She does this with so much confidence that I’m starting to wonder if she somehow knows that the message-passing test—which I can’t believe is about to happen—will validate all her claims about the legitimacy of S2C, the high levels of literacy it has unlocked in her son, and the Lower Merion School District’s violations of his rights.

In other words, I’m starting to wonder if A.L. will somehow identify whatever’s in the picture that Kristofco is about to show him.

Kristofco opens a folder and takes out a sheet of paper that is blank on one side. I have no idea which picture is on the other side; we may have gone through a half dozen last night.]

Kristofco: I have a copy I can give the court.

The Judge: That's fine.

Reimann: Can I have a copy?

The Judge: Well, yeah, let her have a copy.

Kristofco: I will give a copy to you.

Reimann: Can I have a copy now?

Kristofco: Right when I am done.

[She’s clearly not happy; she wants one now. So do I; I’m wracking my brain, trying to call to mind all the pictures we went through—rather quickly—the night before.]

Kristofco: [Turning to A.L., who is now sitting without his mother] Alex, I am showing you a picture. If you can take a look at that. Okay. I am going to ask you a question about the picture, okay?

[Kristofco shows the picture. I can’t see it, and Binder-Le Pape clearly can’t either. Kristofco puts the picture away; as promised, he’s given a copy to Reimann. Binder-Le Pape returns to sit next to A.L.]

Kristofco: [Continuing]. Alex, can you explain what is happening in the picture that I just showed you?

[Binder-Le Pape holds up the board. The letter pointing is much faster than it was with Foti—perhaps half a second or less, on average, between selections. From what I’ve heard, she is his main facilitator, facilitating him for much of the day, and it shows. Binder-Le Pape does not read out the letters as they are pointed to, however, but waits until she deems the message to have been fully constructed before speaking it out in full.

As when Foti facilitated, I’ll use the facilitator’s name, and not “A.L.,” as the name for the current witness. My rationale is the same as before: Binder-Le Pape is the one doing the talking and everything else is in doubt.

The silence that stretches out while A.L. points to letters finally ends and Binder-Le Pape speaks.]

Binder-Le Pape: What is happening is you don't want me to testify.

[Why didn’t I see this coming?]

Kristofco: I would request that the court ask the witness to answer my question.

[At this point, the judge walks over to A.L.]

The judge: Hi, Alex. How are you? I am Judge Marston.

[More letter pointing; more silence. As before, I can see the board but not which letters are selected. Then Binder-Le Pape speaks.]

Binder-Le Pape: Nervous as hell.

The Judge: Okay. Everybody who comes in here is as nervous as you are. And I know it does not make it any better. It's not that counsel does not want you to testify, we are just trying to figure out the best way for the jury to be able to hear you speak. So, he showed you a picture. Do you remember seeing the picture, Alex? Do you remember seeing the picture?

[Some brief letter pointing.]

Binder-Le Pape: Yes.

The Judge: Okay. What is in the picture?

[More letter pointing with a long stretch of silence.]

Binder-Le Pape: Not sure what you want me to describe. This is really insulting. Everyone else just allowed writing or speaking.

The Judge: Alex—

[More letting pointing; a shorter stretch.]

Binder-Le Pape: Why I am different?

The Judge: We know you talk to us with a letter board, so we want to hear you talk to us. Counsel is asking you a question, and he is not trying to insult you, he just wants you to tell him. What did you see in the picture?

[More letting pointing.]

Binder-Le Pape: I don't remember.

The Judge: We can show it to you again, okay?

[More letting pointing; a longer stretch. My notes indicate that Binder-Le Pape’s hand is shaking as she holds the letterboard. I’m not whether I only just noticed this, or whether it was shaking from the start of the examination.]

Binder-Le Pape: Stop. If you don't believe in me, is it worth having a trial?

The Judge: All right. I think now would be a good time to take a break. And, Alex, ultimately that is your decision with your lawyer and your parents about whether or not you want to have a trial. All right. That's a decision you have to make. I don't make that decision. All right. I think we should take a break.

[We all filed out of the courtroom. The Lower Merion special education coordinator came up to me and introduced herself. I had spoken to her by phone a couple of times but didn’t know what she looked like. From my initial spot in the back row, I had had an unobstructed view of her sitting on the far side of the gallery in the front row (the gallery being relatively empty). But from behind she had looked just like Dr. Wendy Ross, one of the plaintiff’s witnesses (see above). She reassured me that she wasn’t Ross, and we joined the Lower Merion legal team in a nook in one of the hallways. Or maybe we all went down one of the elevators first.

One of the most memorable things we shared during this approximately one-hour interlude was something that had occured to all of us, given the readiness with which A.L.’s mother had cooperated with the message-passing test. That is: that A.L. would somehow spell out what was in the picture—and that the whole case would blow up in our mortified faces. So much for the idea that skeptics are only selectively skeptical.

Nor were all of us that skeptical. One of the members of the school district’s legal team confessed that he found A.L.’s spelling pretty convincing. He was having trouble seeing how every letter could have been cued. This was a sobering revelation. The fact that someone as familiar as he was with the arguments against S2C still thought it looked convincing in practice underscored how easily a jury could decide for the plaintiffs.

Another member of the legal team—someone who’d been involved in the case from the beginning—had been able to transcribe some of the A.L.’s letter selections. She showed us what she had, which included strings of letters that neither made sense nor corresponded to anything that his facilitators had read out loud.

A.L., as we had seen, did not describe the picture. And so what should we make of what A.L. actually had spelled out: most especially, “Is it worth having a trial?” Was this a reflection of something stirring in his mother’s subconscious? Was it a face-saving excuse for the plaintiffs to drop the lawsuit? To drop the suit, that is, not because they didn’t have a strong case, but because A.L. had had enough of the indignities and/or didn’t think he’d get a fair trial?

Or, more likely, not to drop the lawsuit, but to settle it. The school district, I learned during this interlude, had already made a financial settlement offer to the plaintiffs: a private settlement that would avoid setting any precedents for future S2C cases. But the parents, perhaps eager to secure a precedent for their many S2C-using peers in the district, had thus far refused to accept it.

Suddenly it was time to return to the courtroom. A.L. and his mother were already back in their spots, their backs to the empty jury box.

Were we about to hear the plaintiffs drop their suit? This was, actually, hard to believe. The suit, by now, had been carrying on for over five years, traveling up and down the judicial hierarchy, from district to appellate, with appeals and denials and appeals and remands. And now, at long last, it was about to get the trial that the plaintiffs had so long been seeking. With a jury that, given how convincing A.L.’s letter pointing had looked to a member of the opposing side, and given how gullible the public has been about S2C stories and S2C videos, was very likely to side with A.L. and his parents.]

The Judge: Okay. Are we ready to proceed?

Kristofco: Yes.

The Judge: Okay. I don't know if Alex–can Alex hear me right now?

[Alex is wearing the headphones he wore when he first arrived in the courtroom. Possibly he had stopped wearing them during the earlier examinations.

Once again, his mother is facilitating him. Some silent pointing; no letters called out. Then his mother reads out a reply to the Judge’s question that appears to reference the headphones.]

Binder-Le Pape: Just makes things quieter.

The Judge. Okay. That's fine. I just want to make sure he can hear me. I understand what Alex was communicating to us earlier, and I certainly understand his frustration. But, Alex, this is a trial that you have brought with your parents. And the way a trial proceeds is the defense gets to ask questions. So they are not trying to insult you in any way, but we just want to figure out today how this is going to work when we spend time in here with actually the jury behind you. So I do need you to answer counsel's questions if you can, okay? You can just answer me yes or no.

[Some more silent letter pointing, and then his mother reads out a reply.]

Binder-Le Pape: I'm sorry for earlier. I was wrong. So let's do it.

[Do what? Is there really going to be another message-passing test?]

The Judge: Okay. Perfect. And you don't have to apologize. The only thing I will say is that I think it's going to be really helpful if your mom, who is acting as communication partner right now, says every letter.

[I’m glad she made this request, especially given how revealing the letter calling was when Foti did it.

There follows some discussion of whether Mr. Foti is still around—he isn’t—and about whether he’s still going to be A.L.’s communication partner at the upcoming trial, which Reimann suggests should be addressed in a “follow-up discussion.”]

The Judge: Okay. All right. Then let's just proceed. I guess I will move back.

 Binder-Le Pape: I have to move while he shows him the picture.

The Judge: You are right.

[Things proceed just as before. Binder-Le Pape steps down, faces the gallery, and closes her eyes, showing just as much confidence as earlier. Kristofco opens his folder and takes out another sheet of paper that is blank on one side. I wrack my brain and try to remember the half-dozen pictures that could be on the other side.]

Kristofco: Alex, I'm going to show you a picture, and I'm going to ask you to please to take a look at it and study it. In a minute, I'm going to ask you a question about it. Okay?

[As before, the picture is put away and Binder-Le Pape returns to A.L.’s side]

Kristofco: Okay, Alex, can you please explain for me what was happening in the picture that I just showed you?

[Binder-Le Pape holds up the board.]

Kristofco: Looks like he said “l”.

[Binder-Le Pape is clearly not used to reading letters out loud.

As I did with Foti’s facilitation, I’ve put in boldface the additional words Binder-Le Pape speaks that don’t seem to correspond to the letters she calls out. Some of that, at least initially, appears to be directed at the court—i.e., apologies for forgetting to read all the letters out loud.]

Binder-Le Pape: l-o, sorry, t-s, lots, o-f, lots of, p-e-o-p-l-e, people, s-t-a-r-i-n-g, staring

[At first I think he’s describing the picture.]

Binder-Le Pape: for wrong–for always–I'm not used to–w-a-n-t, want, t-o, want to, s-a-y, want to say, w-o-u-l-d, would, l-i-k-e, would like, s-o-m-e, some, t-h-i-n-g, would like something s-o-m-e, some, t-i-m-e, some time, t-o p-r-e-p-a-r-e, prepare, m-y, my, a-n-s-w-e-r. I would like some time to prepare my answer.

[What’s in the picture that warrants “preparing an answer”?

At this point Binder-Le Pape’s speech is directed at A.L.]

Binder-Le Pape: [Speaking to A.L.] Take a couple of deep breaths. I don't think Mr. Kristofco is looking for a lot.

[Then the pointing resumes. The board is definitely trembling. I have to wonder if Binder-Le Pape knows what’s coming next.]

Binder-Le Pape [Speaking as A.L.’s facilitator]: I-t, it is a, p-i-c-t-u-r-e, picture, o-f, of

[The regular pointing rhythm has stopped. I can see that A.L.’s hand is now hovering in the lower right-hand corner of the board where the “done” icon is.]

Binder-Le Pape: w-o-n-g, wrong, s-t-a-r-t. start begin.

[“Wrong start; begin”—it sounds as if A.L. has requested some sort of reset.]

Binder-Le Pape: [Continuing] I-t, i-s, it is a, p-i-c-t-u-r-e, picture, o-f, of,

[The pointing rhythm stops again. A.L.’s hand is once again hovering in the lower right-hand corner of the board. The board is trembling—I realize that A.L.’s mother’s hand is trembling only a little, but at the far end of the board, which is closest to me, that trembling is amplified. Does she know what’s coming next?

A.L.’s finger moves away from the “done” icon. Here it comes.]

Binder-Le Pape: s-w-e-e-t, s-w-e-e-t-s w-i-t-h, with, k-i-d-s, kids.

[Every time I tell this story, I wonder at the psychological wizardry. Of all the possible ways to retroactively connect the dots from sweets to tornadoes, this could easily be the most compelling one out there, on Earth and in Oz. And it occurred just moments after Kristofco, like Toto with the wizard, pulled back metaphorical curtain from the picture.

Can facilitators have sudden, subconscious epiphanies? Is there such a thing as a subconscious epiphany? How did all this square with the trembling letterboard and the uncertainty it suggested about which letters were coming next? Psychologically rich though the subconscious minds of facilitators are, and deeply revealing though all this could be about all of our minds and all they do to protect us against dreadful realities, those same protective instincts may prevent these and other questions from ever being answered.]

Kristofco: I don't have any more questions, Your Honor.

The Judge: Okay. Counsel, Do you want to ask anything?

Reimann: May I have a moment, please?

The Judge: Sure.

[There’s a brief pause. I don’t remember exactly what Reimann does, but as I recall she’s sitting all alone. She has only herself and her documents to consult with.]

Ms. Reimann: I don't have anything. Thank you.

The Judge: Okay. Thank you, Alex. Thank you.

Binder-Le Pape: t-h-a-n-k, y-o-u, thank you, f-o-r, for, l-e-t-t-i-n-g, letting, m-e, me, c-o-m-e, come, h-e-r-e, come here, t-o-d-a-y, today. I know, i, k-n-o-w, t-h-a-t, I know that, i, d-i-d-n-t, that I didn't, d-o, do, w-a-n-t-e-d. Start again. What–what you, w-a-n-t-e-d, wanted, b-u-t, but i, a-m, I am, g-l-a-d, glad, I g-o-t, I got, t-o, to, t-r-y, try.

The Judge: What was the last word?

 Binder-Le Pape: [Speaking now in her role as A.L.’s facilitator] “Try.”

The Judge: Alex, you did a great job, and it was very impressive to see you today. So thank you so much for coming, and you should not think that you didn't do what we wanted you to do. I just wanted to get a sense of how this would work in front of the jury before we did that to you, because all people that come into this courtroom before juries get nervous, even more nervous than they do today. So I sort of wanted to have a dry run, so to speak, just so you would understand how this works.

[She is gracious and kind, and it’s unclear what she makes of what just happened or, for that matter, who, exactly, she’s addressing now.]

Binder-Le Pape: t-h-a-t i-s, that is, v-e-r-y, very, k-i-n-d, kind, o-f, of, y-o-u, you.

The Judge: Thank you, Alex, but you don't have to thank me. I am just doing my job.

Binder-Le Pape: [Speaking as A.L.’s mother] Can I just explain to him that the jury is going to be right there?

The Judge: Yes, the jury would be behind you.

Binder-Le Pape: [Speaking to A.L.] The jury is going to be sitting, when we come back for the trial, okay, just so you know. So the setup will be mostly like this and the witnesses will be where you saw Dr. Ross. Well, you didn't see her. Dr. Ross was up there earlier. And you will be here, and you and Tom will be here, and the people will be behind you.

 Binder-Le Pape: [Facilitating A.L.’s response] w-h-a-t, what, d-a-y, what day, d-o w-e s-t-a-r-t?

 Binder-Le Pape: [Replying to A.L.] January 7th.

[If A.L. is as aware of what’s going on as she thinks, shouldn’t he already know what the court date is? I’ve known it for nearly two months now, since the day after the presidential election.

The whirlwind of emotions has slowly unwound. I can’t remember what I was feeling by this point. But now, as I revisit this transcript after all these months, I’m finding this part of it profoundly sad.]

The Judge: All right. But you are excused for today. We have a little bit more business to take care of related to some other matters, but thank you very, very much for coming today, Alex.

Next up is the cross-examination of the person whose examination began this series: Dr. Anne Robbins, A.L.’s neuropsychologist. What will she make of the results of the message-passing test?

 

A linguist's take on linguists' takes

If you want to critique a linguist's paper, you don't need a PhD in linguistics. You don't even need an undergraduate degree in linguistics. But you do need to read beyond the paper's abstract.

If you do that, you might find, say, that the well-known existence of unanalyzed phrases in early language acquisition--e.g., "lemme" (for "let me"); "wanna" (for "want to")--qualify neither as examples of what believers in "gestalt language processing" call "gestalts" (aka "soundtracks for emotional experience"), nor as evidence against the analytic basis for language acquisition.

And if you put your own analytic skills to good use, you might realize that the need to segment the often quite long holophrases that occur polysynthetic languages--i.e., the need to analyze these into their smaller units--is a need for analytic processing, not for gestalt processing.

So, no actual degree in linguistics is necessary to advance a compelling linguistic take on another person's linguistic take. But reading skills and analytic thinking are a must.

Just sayin'.

Spelling to Communicate Goes on Trial: Part IV

This is the fourth part 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. These include Tom Foti, the designated communication partner for A.L. for A.L.’s testimony at the upcoming trial on January 7th, and the focus of this post.

In my previous three posts (starting here), I described and excerpted the examinations and cross-examinations of two 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.

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.

And, 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.

Now to Tom Foti. Besides serving as A.L.’s communication partner, Mr. Foti is the founder of the Philadelphia area S2C clinic Inside Voice. He founded Inside Voice after his parents started doing S2C with his brother, making it a part of the nonprofit A.A.L.I.V.E. that his parents founded in 2007.

Unlike the examination and cross-examination of Dr. Ross, which took place earlier in the morning, I was present for Mr. Foti’s examination, just as I was for the examination Dr. Robbins—the examination with which I opened this series. The Robbins examination, readers of my first post might recall, was interrupted when Mr. Foti entered the courtroom. Foti’s availability, it seemed, was limited; his examination would now take precedence.

I recognized Mr. Foti—I’d seen images of him on the Inside Voice website and elsewhere in S2C promotional materials. A pleasant, soft-spoken man, he looked to be in his late 20s or early 30s. I also recognized the two people who accompanied him, A.L. and his mother. They, too, were familiar to me from S2C promotional materials. A.L., a full-grown man in his early 20s, wore headphones: a common device for addressing the sound sensitivities associated with profound autism. A.L. and his mother sat down in the front row, their backs to me (I was sitting in the far back of the courtroom). 

As has been the case throughout this hearing, A.L. is referred to in these proceedings as “Alex.” And as before, 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 FacilitatedCommunication.org. These questions are, as before: what can we learn about the validity of the instances of S2C that have arisen in this case? And, in the case of the cross-examination of Mr. Foti: what sorts of beliefs do we see in a long-term S2C practitioner whose close family member is an S2C client? And what sorts of justifications for these beliefs does someone who is probably a true believer in S2C provide while being cross-examined under oath?

The direct examination, by Nicole Reimann, the plaintiff’s lawyer, is brief. It’s established that Foti has worked with A.L. for about seven years but last serviced him on a regular basis three or four years ago, before COVID. During this examination (I quote here directly from my notes) “we hear Alex say ‘car’ and ‘truck’; mom keeps shushing him.” 

After Reimann concludes her examination, the Judge jumps in with a few remarks and questions for Foti, mostly concerning whether Foti will be reading the letters out loud as A.L. points to them when he takes the stand. I’ll begin with the conclusion of this exchange.

The Judge: You will then be saying the letters out loud.

Foti: Yes. If that would be most helpful for everyone, I can do that.

The Judge: All right. From the videos I have looked at, it does not—it looks like once all of the letters—whatever he is communicating—all of the letters are said, then you sort of take those letters and read the entire sentence? 

Foti: Correct. I stop every three to five words to write them down or say them out loud so I am not trying to remember an entire sentence in my head or multiple sentences in my head. That's the most effective way that I have been able to do it.

[At this point the cross-examination begins. Mike Kristofco, the school district’s lawyer, dives right in.]

Kristofco: Mr. Foti, just so we are clear, you don't have any licenses to do what you do, correct? No state or governmental licenses to do what you do?

Foti: The I-ASC does not have a licensed program in the state in the state of Pennsylvania, no.

[The I-ASC is the organization set up by Elizabeth Vosseller, the “inventor” of S2C, to train practitioners and to promote S2C. I don’t believe it has a licensed program in any state.]

Kristofco: And my understanding is you went through a six-month training program with Elizabeth Vosseller in order to be trained as communication partner?

Foti: Yes, the “I-ASC Cohort” is now what it is officially known as.

Kristofco: Is there a training manual that you used?

Foti: Yes.

Kristofco: And—

Foti: A manual or a syllabus.

Kristofco: Syllabus? 

Foti: Manual, syllabus. We were given materials ahead of time.

Kristofco: Did those written materials include rules for what you were and were not allowed to do as a communication partner?

Foti: From an ethical standpoint, yes.

Kristofco: What does that mean?

Foti: There are—without diving too deep into the history, there is other communication methods that have been controversial in the past. And what Spelling to Communicate has done is learn from the mistakes that were made and integrated structure, integrated ethics to make sure that things were structured and as replicable as possible.

[Foti is referring to classic, touch-based facilitated communication (FC), debunked by a dozen authorship (message-passing) studies in the 1990s, from which proponents of held-up letterboard variants of FC routinely attempt to distance themselves (as we see, for example, in some of the documents in this compilation of letters objecting to the American Speech-Language-Hearing Association’s position statement against RPM/S2C).]

Kristofco: Can you explain what those ethical rules are that you will be following as the communication partner for Alex here in court?

Foti: So from an ethical standpoint, it is my duty, my obligation to Alex to say the letters and the words that he has—that he has pointed to on the letter board, not to change them or alter them in any sort of way. The words and the letters that Alex—the letters that Alex pokes are the letters that I say. And it's also my ethical duty that, in the event that from a body standpoint, if I am seeing that Alex is becoming dysregulated to a point where he might be injurious to himself or potentially injurious to others, it's my obligation and my duty to look out for that and make sure that he—that I can get him back into a more regulated state before any sort of continuation may happen.

Kristofco: That last piece you are talking about, that has nothing to do with him poking letters, that just has to do with you tending to him and you knowing how he reacts to certain situations, correct?

Foti: They walk hand in hand, I would say. I would compare it to if a coach sees that one of his players is very emotional for one reason or another, it's the coach's responsibility to bring that player back into a more regulated and more even-keeled sense so that the player can perform at his or her best ability. That's how—that’s the best layman way that I can explain. 

[Before he became an S2C practitioner, Foti, who graduated from the University of Scranton in 2014, was a sports writer and a hockey coach.]

[The judge now jumps in to clarify.]

The judge: So it might mean take a pause?

Foti: Right.

The Judge: Deep breath?

Foti: Yes, correct.

Kristofco: Can anyone who is trained as a communication partner in Spelling to Communicate work with Alex the same way that you can?

Foti: As a practitioner—it's a bit of a layered question. So anybody who is trained in Spelling to Communicate like I am is considered a practitioner. Anyone who has coached specifically to work with just Alex is considered a communication and regulation partner. And the primary difference as a practitioner, I am coached and I am taught and trained how to work with any non-speaker, limited speaker who walks through the doors at Inside Voice and to be able to coach their bodies and teach them this methodology within the structure of Spelling to Communicate. 

[I hadn’t been aware of this difference between “practitioner” and “communication and regulation partner.” It strikes me that this two-tiered system is a way for S2C clinics to:

1. maximize income, via a “professional” cadre that has to pay for six months of training and that, once “certified,” can charge for its services, and 

2. maximize its appeal to parents. S2C, after all, would be a lot less appealing—i.e., a lot less intimate, affordable, and convenient—if parents had to depend on practitioners to extract all their children’s messages.

]

Foti: I apologize, I forget your initial question.

Kristofco: The question was, can anyone who is trained as a communication partner in Spelling to Communicate work with Alex the same way that you can?

Foti: Yes.

Kristofco: When acting as a communication partner for Alex, do you influence in any way what he says?

Foti: I do not.

Kristofco: Is it necessary for you to understand a question in order for Alex to answer it?

Foti: It's helpful for the two of us to be on the same page.

Kristofco: That's not the question. The question is, is it necessary for you to understand the question in order for Alex to answer it?

Foti: It is important for me to understand the question.

Kristofco: Is it necessary for you to understand the question in order for Alex to answer it?

Foti: Yes.

[Wow. He finally comes right out and admits it. And in doing so, he’s implicitly acknowledging that any message-passing test in which he’s out of the room when A.L. is asked a question is likely to fail.]

Kristofco: And why is that?

Foti: Because Alex may interpret that question differently. If we are on different pages on how we interpret the question, then I can't be an effective communication partner for Alex. Because he might be answering the question one way, and I might be–I might have some confusion on what he might be trying to communicate at that point in time. 

[Why should there be any confusion? Aren’t A.L.’s letter selections enough to show what he’s trying to communicate? If the facilitated person’s letter selections aren’t, by themselves, sufficient for successful S2C-based facilitation, and if there’s something more the facilitator needs to know about what the intended message is, then:

1. There’s even more reason than there already was to suspect that the facilitator, not the facilitated person is controlling the communications.

2. Even in the best-case scenario—where there’s somehow no facilitator control—there are still major limitations on what the facilitated individuals can communicate. That is, they’re limited to stuff that their facilitator already knows they want to communicate.

Foti appears to be unaware that no other sorts of communication partners—whether they’re sign language interpreters, interpreters between two different spoken languages, or assistants in partner-assisted scanning—are constrained in this way. He doesn’t seem to realize, that is, that none of these other sorts of communication partners need to understand the questions or know what the person is trying to communicate, beyond their actual words, actual signs, or actual selections, in order to be effective communication partners.]

Foti: [Continuing] So for me to understand the question, it is necessary for me to be the best communication partner and be the best practitioner for Alex.

[Having first stated that to be an effective communication partner, he needs to understand the question, Foti is now stating that to understand the question, he needs to be an effective communication partner. Depending on whether or not being a communication partner and understanding the question are phenomena that inherently co-occur, this borders on either a tautology or an impossibility. Or maybe Foti, possibly nervous, simply misspoke.]

Kristofco: I think I am a little confused.

[So, apparently, is the judge, who jumps in here.]

The Judge: I don't understand. What do you mean by "understand the question?"

Kristofco: Sure.

The Judge: Maybe we don't understand the question we are supposed to understand.

Kristofco: Let me give you an example. If I were to ask Alex a question about a picture that you have not seen and the question is, “Describe what you see in the picture,” but you have not seen the picture, does that prevent you from being a communication partner for Alex?

Foti: I believe you are referencing something that was done a handful of years ago that didn't have an ethical place in validating this communication method.

[Assuming “something that was done a handful of years ago” refers to those message-passing tests that were done in the 1990s—many of which involved showing the facilitated person pictures that their facilitators didn’t see—it appears that Foti believes that message-passing tests have no “ethical place” in “validating” facilitated communication.

But Kristofco clarifies that that is not what he was actually referencing.]

Kristofco: Actually, it's a question that I just asked you. If I were to show Alex a picture that you didn't see and I said—the question is: “Alex, can you please describe what is happening in that picture.” The fact that you have not seen the picture, does that mean that you cannot act as a communication partner for him?

Foti: From an ethical standpoint, I would not be able to take part in that.

[Even the judge is apparently surprised by this.]

The Judge: Why?

Foti: It's written within the ethics that we—that a practitioner from an ethical standpoint, as a practitioner, I can't take part in those sorts of questions because of the history of what was done in the past. Because it was done in a way that was unethical to the—to the speller and to the communication partner.

[This was the first I’d heard of a written ethics code for S2C practitioners that rules out message-passing tests—“because of what was done in the past.” This suggests that anyone who breaks what once was just a tacit rule against testing now risks losing their S2C “license.”]

The Judge: I guess I am confused. What is unethical about it?

Foti: Because when I first begin with any sort of speller, I tell that speller–the first conversation that I have is that, “I believe you are smart and I believe that you don't have anything to prove to me.” And for me to take part in something like that would be unethical because it would undermine the conversation and the belief that I have in that speller right from the get-go. 

[Foti’s rationale here recalls Dr. Ross’s notion that testing communicates that “I am going to set you up and see if this is real” and “would have eroded the trust.” Indeed, this is yet another version of the “presume competence” mantra that goes back to the earliest days of FC. 

And, as with Dr. Ross, Foti’s rationale involves two other problematic lines of reasoning:

First, there’s the circular (or elliptical?) reasoning in Foti’s worry that a message-passing test would undermine his assurance to A.L. that “I believe you are smart and I believe that you don't have anything to prove to me.” This worry has no basis unless A.L. actually understands the words “believe,” “smart,” and “prove”. But “believe,” “smart,” and “prove“ are sophisticated, abstract words that A.L. is likely to understand only if he also understands the more basic, concrete words required to pass a message-passing test. In other words, conducting a message-passing test could only possibly undermine Foti’s assurance to A.L. if A.L.’s vocabulary is well beyond the level needed to type correct answers in a message-passing test. And yet, Foti has implicitly suggested (see above) that any message-passing test in which he’s out of the room when A.L. is asked a question is likely to fail.

And, second, there’s the implicit assumption that the possibility of falsely suggesting that .A.L. isn’t able to communicate is worse than the possibility that the A.L.’s communication is being hijacked, and his personhood suppressed, however unwittingly, by Foti himself.]

Foti: [Continuing] Now, as a practitioner, it's kind of similar. I can advise, I can recommend that certain things not be done, but I also can't be everywhere all the time and force that. So if a communication regulation partner decides to do that, that's out of my control.

[Foti appears to be elaborating on the distinction he drew earlier between “practitioners” (like himself) and “communication and regulation partners” (like his client’s parents). And he appears to be saying that he can’t force the latter (i.e., the communication and regulations partners) not to “do that” (i.e., to participate in message-passing tests).]

Kristofco: So a minute ago you told me that it's your ethical obligation to only say the letters that Alex points to, correct?

Foti: Yes.

Kristofco: And you don't influence in any way what letters he points to, correct?

Foti: I do not.

Kristofco: And you don't influence in any way the—what he is saying when he is using the letter board, correct?

Foti: I do not influence him in any way, shape or form.

Kristofco: So I don't understand the ethical problem as to, if he sees a picture that you don't see and the question is, can you explain what is happening in the picture, why, under Spelling to Communicate, you are unable to be the communication partner for him, for Alex, to point to the letters and explain what he sees in the picture?

Foti: Because it goes back to a study that was done a handful of years ago that didn't put either side in a position to succeed. It goes into—the speller was shown one photo, the communication partner was shown a different photo. And because of what you had just described there is similar, from an ethical standpoint, I cannot ethically take part in a question like that as a practitioner.

[Now it’s “a” study. In fact, there were dozens.

It strikes me that Foti has been so conditioned by his training and his milieu to think that facilitator-blinding tests are bad that he has no idea how strange this sounds to outsiders.]

Kristofco: Is it necessary for you to hear the question that Alex answers in order for you to function as a communication partner?

Foti: So if I were to leave the room, Alex would be asked a question; I would come back?

Kristofco: Yes.

Foti: I would consider that a message-passing test, and that is also not something I can take part in as a communication partner. As a practitioner.

[“As a practitioner”—he’s said it twice in this context. Foti seems to be evoking his distinction between a practitioner and a communication and regulation partner and his suggestion that the former is limited in ways that the latter may not be. Knowing what I know about what occurred after Foti’s cross-examination—stay tuned for next week’s post—I wonder whether Foti and other members of the plaintiff’s team were trying to keep certain possibilities open.]

Kristofco: It sounds to me like Spelling to Communicate has a set of ethics that prevents it from being tested.

[Indeed. That’s one of the hallmarks of a pseudoscience.]

Foti: Spelling to Communicate has taken part in tests. And it's taken part in studies with the Universities of Cambridge, also with the University of Virginia. 

[Here we go again (see Part III in this series): “Cambridge,” “Virginia”—the same institutions alluded to earlier. And, presumably, the same problematic studies: Jaswal et al.’s eye tracking study (critiqued here and here); Jaswal et al.’s subsequent literacy study (critiqued here); and “studies out Cambridge University,” which aren’t actually studies, but rather a research proposal that has yet to go anywhere.]

Foti: [Continuing]. And we are also very, very—we, as in Spelling to Communicate as a whole, we are very very—we are very cautious about what studies we take part in because there are people who have posed as researchers looking to validate this and then things have been turned around, the rules were changed, and things were changed.

[“Posed as researchers looking to validate this”—Foti appears to view researchers as people who set out to validate things, as opposed to people who set out to find out whether or not things are valid. 

Nor does he explain how “things have been turned around” or how “rules were changed” by these people who purportedly were posing as S2C-friendly researchers.]

Foti: [Continuing] And so we very much vet the researchers and the studies who are interested in doing this to make sure that it's done in a way that doesn't ask a speller to try and prove that they are understanding and that they are comprehending.

[Again, as in Dr. Ross’s testimony, there’s the assumption that it’s the speller, rather than the method, that’s being tested. But Kristofco moves on.]

Kristofco: When Alex uses Spelling to Communicate, are you permitted to move the board?

Foti: When the board is in front of him, no, I’m not permitted to move the board. However, if Alex touches two or three letters that might not make sense, for example, q and then d, q, v, a, that would be something where I might pull the board away from him and say—and give him some coaching to look directly at his letters, eyes on the targets, any sort of eye prompt to give him that reminder of here is what you need to do with your body, and I would put the board back in front of him. 

[We know from earlier testimony that A.L. is able to copy lists of words by typing them out independently on a blue-tooth keyboard, without any “coaching” about what to do with his eyes or body. I’m aware of no reports of A.L.’s independent typing generating letters that “might not make sense.” What’s so different about typing self-generated words (as opposed to copied words) on a held-up letterboard? We can only speculate.]

Foti: [Continuing] But once Alex begins to spell, that board stays as still as I can possibly hold it. But it does not—it does not move... left, right, up, center... [I’ve elided some minor interruptions here.]

[It’s a common fallacy among facilitators that they don’t move the board, but as researchers have found, it’s actually impossible not to. In nearly all the videos we’ve seen, the board moves (however slightly) left, right, up, and down, and consistently in the direction of whatever the next letter is that “makes sense.”]

[A couple more minor interruptions.]

Kristofco: Earlier you said it was one of your ethical obligations to say the letters that he touches and not change any of the letters. But now you are saying if he touches letters that don't make sense to you, you can then stop him and redirect him to touch different letters?

Foti: Well, letters that don't make sense when they are strung together.

Kristofco: Don't make sense to whom?

Foti: Well, if there is a string of letters that don't really go together, such as q, v and b or q, v, a. It's different if Alex pokes q, u, o. Those are strings of letters that make sense when they are put together. But q, v, a within the context of a sentence or so, that would not make—that would not make a ton of sense.

[Presumably he means that q-u-o could spell a word, but that q-v-a could not.]

Kristofco: Isn't it true that the entire idea behind Spelling to Communicate is that the disabled individual who is doing the spelling is pointing to the letters that they want to communicate?

Foti: I'm not sure I understand your question.

Kristofco: Sure. The whole premise of it is that when you hold the letter board in front of Alex, that he points to letters that he wants to communicate. That's the premise, isn't it?

Foti: The premise is to presume competence, that Alex is understanding and comprehending everything that is going on around him while also simultaneously understanding that Alex has a form of motor planning called “apraxia” and that he needs coaching to be able to move through that motor planning and that apraxia. When we start, we start with some of the basics [of] Spelling to Communicate and helping him poke to letters on the board reliably and accurately so when we get to open-ended communication, he has built up the skills to be able to get those letters. But every so often if a player makes a mistake in the field of play, that does not mean that player does not know what to do. They just sometimes need the coaching to remind them of here is what you need to do to be successful.

Kristofco: A couple of questions from that. One is: who diagnosed Alex with the apraxia?

Foti: Who diagnosed Alex with apraxia?

Kristofco: Yeah.

[This is a key question; it also came up in the examination of Dr. Ross (see above). Every explanation that I’ve ever encountered for:

1. why a non-to-minimal speaker with autism has sophisticated communication skills that are invisible until they are “unlocked” via S2C,

2. why they need a communication partner to hold up the letterboard for them, and

3. why some or all of the spoken language they produce is at odds with what they type, 

invokes apraxia.

That is, *every single person* whose alleged need for S2C I’ve ever heard discussed is said to have some sort of generalized apraxia/dyspraxia.]

Foti: There is a study out there that shows–from Penn State University that says 66 percent—at least 66 percent of people with autism have a form of apraxia. And we go in with that, that the people that we work with have apraxia. 

[The study, commonly cited by FC proponents, is Tierney et al. (2015), and their number is actually 64%. That 64%, moreover, represents speech and oral motor apraxia, specifically, and only included children with communication delays. Other studies (Shriberg et al., 2011 and Cabral & Fernandez, 2021) find little-to-no correlation between autism and speech apraxia. 

As for other types of apraxia, there is no evidence for significant co-occurrences in autism. And as for A.L. in particular, his ability to copy lists of words by typing them into a Bluetooth keyboard isn’t consistent with a diagnosis of any sort of non-speech, non-oral apraxia. To recap what I wrote earlier in this series, it isn’t consistent with:

• Limb-kinetic apraxia, which mostly pertains to finger movements, e.g., typing. 

• Constructional apraxia, which entails difficulty copying things, e.g., words. 

• Or oculomotor apraxia, which entails difficulty with voluntary eye movements, and which includes those required for transcribing a list of words via typing, particularly when one is typing with just a pointer finger (as is reportedly the case with A.L.) as opposed to touch typing. Transcribing a word with a pointer finger would require deliberately moving one’s eyes back and forth between a word on the list and the keyboard.

And yet, because of this study out of Penn State, “we go with that, that the people we work with have apraxia”.]

Foti: [Continuing] Now, Jen and Fred, Alex's parents, might be able to point out a doctor that had diagnosed Alex with apraxia. I don't have that information on hand.

[As we saw, Dr. Ross, who was A.L.’s developmental pediatrician, alluded to apraxia but never diagnosed Alex as having it.]

Kristofco: So earlier when you said Alex had apraxia, you don't actually know whether that's true?

Foti: I go in with the presumption that he is a non-speaker and he does have apraxia, because I have seen that myself.

[How can Foti be confident that he can “see” apraxia in A.L.? Does he think he’s somehow qualified to diagnose it himself?]

Kristofco: My question is: you don't actually know if that's true, Correct?

Foti: Not definitively, no. I don't have a note from a doctor; I don't have an official diagnosis. But I also see that that’s also medical information that Jen and Fred would need to share with me, but we always operated under that presumption, that Alex has apraxia as an autistic adult.

[It’s curious that Foti apparently has never asked for any information from A.L.’s parents to confirm the diagnosis, despite it being integral to the theory and practice of S2C. Apparently the ”at least 66 percent out of Penn State,” wrong though it is, together with what Foti thinks he can see when observing A.L., is enough not to bother.]

Kristofco: Based on what you said here today, it sounds like as the communication partner who would be with Alex at trial, you will be doing more than just holding the board, correct?

Foti: In terms of coaching his body and being a regulated communication partner for him, yes.

Kristofco: And there is also a reason why—an ethical reason why you need to hear the question, understand the question, and be able to answer the question yourself in order to function as Alex's communication partner, correct?

Foti: Well, that last part, I would not need to be able to answer the question myself because if the question is directed at Alex, then my answer does not have much of a bearing on it.

[So, even though Foti can’t participate in a message-passing test in which he doesn’t see the picture, he apparently doesn’t actually need to be able to answer the question—or so he apparently thinks.]

Kristofco: Do you recall when the school district came out to observe Alex in Inside Voice in January of 2018, Alex was not able to get the correct answers on his history exam until Emily, the communication partner, was provided with the correct answers and then he was able to get the correct answers?

[This de facto message-passing test failure, recounted in the Judge’s ruling that I excerpted in my first post in this series, is one of the most damning pieces of evidence against the validity of S2C as used with A.L. In advising the Lower Merion legal team, I’d recommended that they work a reference to that message-passing failure into Foti’s cross-examination. But at this point Nicole Reimann, the plaintiff’s attorney, jumps in.]

Reimann: I am going to object. This seems to go well beyond the scope.

The Judge: I'm going to allow it for the purpose of this. Go ahead.

Foti: I was not in the room at that time, so I cannot speak to what did or did not happen in that session.

[So it goes. Kristofco moves on.]

Kristofco: Can the letter board be placed on a sturdy easel and you just stand behind the easel or stand next to it, doing all of the other things that you do with respect to regulating his body and everything like that for this methodology to work?

[This was a question that Howard Shane, who also advised the legal team, suggested that Kristofco ask.]

Foti: There is independent typing that is done with a keyboard that is on an easel. However, Alex has not reached that level of skills.

[Here we see a conflation of graduating to a keyboard with graduating to an easel, as if only a keyboard can be put on an easel. Kristofco catches this.]

Kristofco: I'm not talking about a keyboard. I'm talking about the same letter board that he uses when you hold it up. Can it just be set up on a sturdy easel in front of him with you standing right beside it doing the other things that you do for him; can that be used instead of you holding the board?

Foti: It has not been done in Spelling to Communicate before, so for right now, no, I would not be able to do that.

[A stationary letterboard “has not been done before”: in other words, the transition to a keyboard, per S2C protocol, always occurs before the transition to a stationary surface. If the real issue is motor control/apraxia, you’d think that the bigger challenge would be moving from the large letters of letterboards to the much smaller letters of keyboards. But if the real issue is facilitator cueing, then the bigger challenge is moving from a letter array that is held up by the facilitator to one that isn’t. And, indeed, most of those who are subjected to S2C never seem to get to stationary letters.]

Kristofco: Does Alex actually have to touch a letter for it to count?

Foti: Yes.

Kristofco: And when Alex touches between two letters, how do you interpret that?

Foti: I do not interpret it at all. If he pokes between two letters, I say “I need you to definitively poke one of the letters that you mean.”

[I’ve rarely seen this; more often, in ambiguous cases, I’ve seen the facilitator deciding which letter was selected without checking in.]

Kristofco: Tell me about this reset. What are the rules for when you do a reset?

[In S2C land, a “reset” is a term of art for when the facilitator suddenly pulls the letterboard away and then places it back in front of the facilitated person’s index finger.]

Foti: So for a reset, if Alex gives three letters within the context of the question that do not make—that don't really make sense, coming back to that q, v and a, there is a couple of different ways that I could go about it. I could either bring his hand back to his lap. I sometimes call that home base for him. And I will keep that board in front of him, give him a few—give him a few coaching tips, such as “Eyes on that letter,” “Look at that letter until you poke,” things along that line. And then I will bring his hand back up. There is also another way that I describe where he hits q, v, a does not make sense—pardon me, did not make sense in the context of the question that he asked—or that he is answering. And I would pull that board back, back away from him, give him the same—give him the same coaching and then put that board back in front of him and see what happened from there.

[Note that Foti is now saying “does not make sense in the context of the question,” as opposed to “does not make sense in terms of English spelling,” as he suggested earlier. This looser definition of “does not make sense” opens up many more opportunities for facilitator influence.]

Kristofco: Can Alex type on a keyboard?

Foti: I believe he has reached that level of skill, although I have not—I have not used the keyboard with him in quite some time because he has advocated for the laminated board being his preferred method.

[Facilitators may, however subconsciously, not only control their client’s messages, but also sense when the client is able to respond to cues that don’t include board movements—e.g., the more subtle head, torso, and hand movement cues that we’ve discussed elsewhere (e.g., here). As a result, a facilitator who knows that his/her client isn’t ready for the elimination of board movement cues may unwitting facilitate messages out of the client that “advocate for” the held-up letterboard to continue as the client’s “preferred method.”]

Kristofco: So if he can type on a keyboard, then there would be no reason for somebody to have to hold the board other than him just not wanting to type on the keyboard. Is that what you are saying?

Foti: Well, when it comes to a keyboard, Alex is still isolating his pointer finger and touching one letter at a time there. And the keyboard is also designed for using two—for primarily using two hands. So if Alex is going to use a keyboard, he will be using just one hand there.

[So what? The fact the keyboard is designed for two hands doesn’t mean it can’t be used with one hand—and, indeed, A.L. routinely and successfully does just that. Furthermore, in all the videos I’ve seen of S2Ced individuals who’ve “graduated” to keyboards, they’re still typing with the pointer finger of just one hand.] 

Kristofco: So the letter board that Alex currently uses, it's clear, correct? 

[Clear as in transparent.]

Foti: Correct. 

Kristofco: And how is it that—is there a way by which when he is here in the courtroom and the jury is seated next to the witness box, how is it that we will be able to ensure that he is actually—or that the letters you are saying are the actual ones that he is touching? How can we arrange that to keep within the confines of Spelling to Communicate? 

Foti: I would say that when Alex touches a letter, it is obvious that--because you will see the board. When he makes contact with the board, it will move a little bit, but that's just contact has been made and he is bringing his finger right back. If—I mean, I would say in terms of—you will see that the board will move back, but it won't—it won't be very, very obvious. But if you are looking to the side, you will be able to see that.

[A great tip for observers, ironically. Too often we focus on the up-down and right-left movements and miss the less obvious movements forwards and backwards.]

Kristofco: Is it allowable under the Spelling to Communicate methodology for a camera to be placed on the board to see exactly what letters he is touching?

Foti: How do you mean by "on the board?"

Kristofco: Focused on the board. So that it can [be?] sitting behind him but just focused on the board so that we can see exactly what letters he is touching?

Foti: Yes, a camera could be set up.

[I was surprised by Foti’s readiness to make this concession. Most videos of FC/S2C/RPM are controlled, edited, and curated by proponents, who make only the best ones public. The videos that aren’t edited and curated (e.g., those recorded during live interviews and aired by other organizations) are generally far less convincing, even to naïve observers. On the other hand, Foti, as the brother of someone who uses S2C, has struck me throughout this examination as super sincere; a true believer. He may well think that a recording will be as convincing to others as the methodology is to him.]

Kristofco: And when you do training sessions for Alex, sometimes you read him a paragraph and ask questions about it, correct?

Foti: Correct.

Kristofco: That's a procedure he is very familiar with, correct?

Foti: That's correct.

Kristofco: So if I were to read something to him and then ask him questions about it, there is no reason why he should not be able to answer them, correct?

Foti: Answer them with you?

Kristofco: Yes.

Foti: It would depend on what level of skills that you have. If I am starting—

[Foti seems to think that Kristofco is proposing to hold up the letterboard and serve as Alex’s communication partner—an odd misunderstanding that suggests that, in Foti’s mind, holding up the letterboard and asking the questions usually go hand in hand.]

The Judge: No, no, no. You [she’s addressing Foti] would be the communication partner doing the answers; he [she’s referring to Kristofco] would read the paragraph.

Kristofco: Let me start that question over again. I think I might have confused you there. I will restate that. So if Alex were on the stand and you were acting as his communication partner and I asked—and I read him a paragraph and then asked him a question about the paragraph, there is no reason why he should not be able to answer those questions using Spelling to Communicate, correct?

Foti: It would be different for him, that's not a—because Alex is used to hearing the paragraph come from me and there are also key words that are read out loud. So it would be different for him to be able to do that. And I think that would put him in a bit of a difficult spot in doing something that is brand new to him in this sort of setting. If it was something that he was able to practice, then I think—then I have all the faith in the world that he could do it. But to do it right here on the spot would be—would be difficult for him, and I would be concerned that Alex's nervousness or whatever he may be going through at that time would make that a praxis element to him more difficult to work through.

[“Alex is used to hearing the paragraph come from me”; someone else reading to him is “brand new” and puts in him “a difficult spot”; doing it “on the spot” would be “difficult”; it may cause “nervousness”; it may raise “praxis” issues (i.e., apraxia)? This is a whole new dimension of facilitator dependence that I’ve never heard discussed before: a dependence on the facilitator to facilitate not just typed messages (productive language), but also reading comprehension (receptive language). And it raises several new questions:

• Is there any aspect of language that the facilitator *doesn’t* facilitate?

• Why are “key words that are read out loud” a problem? 

• Why would practicing first help? 

• What is really being practiced here?

• And what is Foti, however subconsciously, actually concerned about here?

]

Kristofco: So let me just follow up on that because this whole trial is going to be—his participation in it will be him sitting on the witness stand and being asked questions from his attorneys and from me or another attorney from my office. So is it your belief that Alex will not be able to answer the questions that we ask him at trial using Spelling to Communicate?

Foti: I believe Alex will be able to answer your questions.

Kristofco: Okay. But you are saying if I read him a paragraph and asked him a question about the paragraph, he could not answer that question?

Foti: I think we are talking about two separate things here, because answering a question is much different than—because he has done that before, he has–he has experience doing that. You reading a paragraph to him changes what he is used to.

[So somehow answering a question is different from responding to a paragraph read out loud? But a question might also contain the kinds of “key words” that Foti has suggested are problematic. What’s the difference between reading a key word out loud and saying it out loud when not reading?

The real issue here, perhaps, is that a paragraph in some document whose contents and context are unfamiliar to Foti might take A.L.’s examination to topics where Foti not only doesn’t know the answer, but can’t (however subconsciously) invent one that sounds plausible.]

Foti: [Continuing] And for a population that is very used to routine and repetitiveness, introducing something new in a high-stake setting is—it can be nerve-wracking. And I would not feel right putting Alex in a situation that he has never done before.

[It occurs to me that there’s a convenient overlap between autistic people’s needs and facilitators’ needs: both benefit from routine and repetitiveness. For autistic people, it’s a well-known preference that appears in the diagnostic criteria. For facilitators, it’s a boon for successful facilitation: routine, repetitive messages are ones that have been practiced over time and so are easier to facilitate than novel ones.

And for true believers who, like Foti, are intimately connected to autism, it’s most likely A.L.’s needs (as an autistic person) for routine and repetitiveness, and not his own overlapping needs (as a facilitator), that make Foti feel wrong about subjecting A.L. to anything novel.]

Kristofco: Just so you understand, I don't know if you have been in a trial or not, but it's very, very typical for a witness on the stand to be shown exhibits and to be asked questions about written documents and exhibits in front of them. It's very typical for an attorney to read part of an e-mail or a letter or a document and then ask the person a question about that. And what I'm trying to understand is, is what you are saying is that you don't think that Alex would be able to perform under those circumstances with Spelling to Communicate in a courtroom that's going to be full of jurors and everybody else?

Ms. Reimann: I'm going to object again. I guess we would have to put in that there was actually e-mails that Alex wrote. What Mr. Kristofco has just described as reading a paragraph–

[Are there emails written by A.L. in which he says he can only understand what’s read to him if it’s read to him by certain familiar people?]

The Judge: I'm going to overrule your objection. He is laying out what could very well be—what happens during trial, whether it's from you on direct examination or him on cross-examination. So we do need to know the answer to this question.

Foti: So to describe how an S2C communication—an S2C session unfolds. So—

The Judge: This is not going to be a session, you understand that.

Foti: Yes.

[Another key distinction that’s easily lost in the fuzzy world of the S2C practitioner: an S2C “session” vs. communicating via S2C in non-clinical settings—as in taking the stand in a courtroom.]

The Judge: So I mean the bottom line is are you going to be able to be his communication partner with whatever question is posed to him which may or may not be a question that you understand or know the answer to? And I understand you say you don't need to know the answer because it's going to be Alex's answer, and that's correct, but I don't know whether you are going to understand the question. It's ultimately up to Alex to understand the question.

Foti: And—

The Judge: And if he does not understand the question, I guess he can say, “I don't understand.”

Foti: Yes, he will say that.

[Hearing Foti so readily go along with this now makes me wonder why he didn’t suggest this easy and obvious solution to begin with. If Foti doesn’t know the answer, he can always (however subconsciously) attribute a lack of understanding of the question to A.L. and then facilitate “I don’t understand” out of A.L.]

The Judge: Maybe we should go to that part of this.

[Presumably the Judge is referring to the examination of A.L., which is the next on the agenda.]

Mr. Kristofco: Just one more follow-up, your honor, just a couple of brief questions.

The Judge: Okay.

Kristofco: Is Inside Voice the primary source of your income?

Foti: Yes, all Inside Voice is.

Kristofco: How much of Inside Voice's business is dependent upon Spelling to Communicate?

Foti: Inside Voice is a Spelling to Communicate program, so we are based on sessions and spellers coming in for sessions.

Kristofco: So that would be 100 percent?

Foti: Yes.

Kristofco: And if Spelling to Communicate were proven not to work, that would have a detrimental effect on your income, correct?

Foti: It would.

[Mr. Foti is a true believer in S2C: having watched him on the stand for all this time, I’m sure of it. But true belief isn’t his only investment in Spelling to Communicate.]

Kristofco: That's the last set of questions I have for Mr. Foti.

The Judge: Anything in response to his questions?

Reimann: No.

Thus concludes the cross-examination of Tom Foti. 

As for our key takeaways:

• We hear the usual misrepresentations of the usual studies: the “Cambridge” and “Virginia” studies are suggested to have found evidence for S2C (the former isn’t a study and the latter are fatally flawed); the “Penn State” study is claimed to show that most autistic people have some sort of generalized apraxia that explains why they require “coaching” of their bodies so that they don’t hit “letters that don’t make sense” (even when they’re able, as A.L. is, to type accurately on smaller keyboards when copying word lists).

• We learn that having the letterboard on a stationary surface is something that “has never been tried.” Instead, the steps towards what S2C practitioners call “independent typing” (typing on a stationary keyboard with the communication partner within auditory and visual cueing range) are a held-up letterboard followed by a held-up keyboard; NOT a held-up letterboard followed by a stationary letterboard. The former—a held-up letterboard followed by a held-up keyboard—favors facilitator cueing over alleged motor difficulties/apraxia.

• We learn about a novel sort of facilitator dependence: i.e., that a client will have trouble understanding something that is read out loud to him by someone other than one of his communication partners.

• We learn that there’s a written code of ethics prohibiting S2C “practitioners” from participating in message-passing tests. But this ethics code, apparently, does not rule out a non-practitioner “communication and regulation partners” participating in such tests. Nor does it rule out cameras pointed at the letterboard while a practitioner is facilitating someone who takes the stand in a courtroom.

The next person to take the stand is A.L., facilitated by Foti, but without a camera. Stay tuned for my next post.

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REFERENCES:

Cabral, C., & Fernandes, F. (2021). Correlations between autism spectrum disorders and childhood apraxia of speech. European Psychiatry, 64(Suppl 1), S209. https://doi.org/10.1192/j.eurpsy.2021.557

Shriberg, L. D., Paul, R., Black, L. M., & van Santen, J. P. (2011). The hypothesis of apraxia of speech in children with autism spectrum disorder. Journal of autism and developmental disorders, 41(4), 405–426. https://doi.org/10.1007/s10803-010-1117-5

Tierney, C., Mayes, S., Lohs, S. R., Black, A., Gisin, E., & Veglia, M. (2015). How Valid Is the Checklist for Autism Spectrum Disorder When a Child Has Apraxia of Speech?. Journal of developmental and behavioral pediatrics : JDBP, 36(8), 569–574. https://doi.org/10.1097/DBP.0000000000000189

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