Hate Crimes Prevention Act allows sickos to spy on your kids
Sunday, May 4th, 2014
Pauly Hart
So, after a handout from my local church and a recent story about a struggle with a man that they had to forcibly remove from the premises... I got to thinking.
This anti-hate crime bill that was signed in to law back in 2009 has some seemingly pretty odd loop-holes. Are pedophiles protected from hate crimes? Are voyeurs? If I found someone masturbating to my daughter using the restroom, would I shoot them?
All these things and more led me to find out some answers, and the answers that I found were quite shocking. Knowing that the United States Judicial branch relies heavily on counsel from outside professional sources I needed to find out what these sources were for the area of "Sexual Orientation". And I turned to the APA and their Bible-like Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition) and was taken aback.
According the the DSM, Sexual Orientation not only includes homosexuality and other gender-confusion issues, but also includes sex with corpses, feces, animals, amputees, obscene phone calls and yes, even children. So much for protection.
So, let me get back to the part where the man is looking thru the open restroom window at my daughter and touching himself. When I go out and shoot his legs off, is it a hate crime?
According to the new law: Yes.
I declare "Bullshit."
And yet, here is a quote from the new law, followed by the DSM finding on what sexual orientation means.
In general (Hate Crime) is motivated by prejudice based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim, or is a violation of the State, local, or tribal hate crime laws. - (S.909, 111th)
Paraphillias -
302.4 Exhibitionism,
302.82 Voyeurism -
(APA DSM-5 Sexual and Gender Identity Disorders)
Truly terrible I must say.
I need to do some research.
Attached at the bottom are the complete laws so that you may see for yourself.
Attached under that are the DSM definitions.
Attached under that is an article talking about how important the DSM is in making law.
May God have mercy on us all.
-Pauly Hart
=================
1st Session
S. 909
IN THE SENATE OF THE UNITED STATES
April 28, 2009
Mr. Reid (for Mr. Kennedy (for himself, Mr. Leahy, Ms. Snowe, Ms. Collins, Mr. Specter, Mr. Schumer, Mr. Durbin, Mrs. Feinstein, Mr. Levin, Ms. Mikulski, Mr. Whitehouse, Mr. Cardin, Ms. Klobuchar, Mr. Lieberman, Mrs. Gillibrand, Mr. Merkley, Mr. Reed, Mr. Nelson of Florida, Mr. Kerry, Mr. Bingaman, Mr. Dodd, Mr. Bayh, Mr. Udall of Colorado, Mrs. Shaheen, Mr. Harkin, Mr. Brown, Mrs. Murray, Mr. Casey, Mr. Johnson, Mr. Lautenberg, Mr. Nelson of Nebraska, Ms. Landrieu, Ms. Cantwell, and Mr. Akaka)) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
A BILL
To provide Federal assistance to States, local jurisdictions, and Indian tribes to prosecute hate crimes, and for other purposes.1.
Short title
This Act may be cited as the Matthew Shepard Hate Crimes Prevention Act.2.
Findings
Congress makes the following findings:(1)
The incidence of violence motivated by the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim poses a serious national problem.(2)
Such violence disrupts the tranquility and safety of communities and is deeply divisive.(3)
State and local authorities are now and will continue to be responsible for prosecuting the overwhelming majority of violent crimes in the United States, including violent crimes motivated by bias. These authorities can carry out their responsibilities more effectively with greater Federal assistance.(4)
Existing Federal law is inadequate to address this problem.(5)
A prominent characteristic of a violent crime motivated by bias is that it devastates not just the actual victim and the family and friends of the victim, but frequently savages the community sharing the traits that caused the victim to be selected.(6)
Such violence substantially affects interstate commerce in many ways, including the following:(A)
The movement of members of targeted groups is impeded, and members of such groups are forced to move across State lines to escape the incidence or risk of such violence.(B)
Members of targeted groups are prevented from purchasing goods and services, obtaining or sustaining employment, or participating in other commercial activity.(C)
Perpetrators cross State lines to commit such violence.(D)
Channels, facilities, and instrumentalities of interstate commerce are used to facilitate the commission of such violence.(E)
Such violence is committed using articles that have traveled in interstate commerce.(7)
For generations, the institutions of slavery and involuntary servitude were defined by the race, color, and ancestry of those held in bondage. Slavery and involuntary servitude were enforced, both prior to and after the adoption of the 13th amendment to the Constitution of the United States, through widespread public and private violence directed at persons because of their race, color, or ancestry, or perceived race, color, or ancestry. Accordingly, eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude.(8)
Both at the time when the 13th, 14th, and 15th amendments to the Constitution of the United States were adopted, and continuing to date, members of certain religious and national origin groups were and are perceived to be distinct races. Thus, in order to eliminate, to the extent possible, the badges, incidents, and relics of slavery, it is necessary to prohibit assaults on the basis of real or perceived religions or national origins, at least to the extent such religions or national origins were regarded as races at the time of the adoption of the 13th, 14th, and 15th amendments to the Constitution of the United States.(9)
Federal jurisdiction over certain violent crimes motivated by bias enables Federal, State, and local authorities to work together as partners in the investigation and prosecution of such crimes.(10)
The problem of crimes motivated by bias is sufficiently serious, widespread, and interstate in nature as to warrant Federal assistance to States, local jurisdictions, and Indian tribes.3.
Definition of hate crime
In this Act—(1)
the term crime of violence has the meaning given that term in section 16, title 18, United States Code;(2)
the term hate crime has the meaning given such term in section 280003(a) of the Violent Crime Control and Law Enforcement Act of 1994 (28 U.S.C. 994 note); and(3)
the term local means a county, city, town, township, parish, village, or other general purpose political subdivision of a State.4.
Support for criminal investigations and prosecutions by State, local, and tribal law enforcement officials(a)
Assistance other than financial assistance(1)
In general
At the request of State, local, or tribal law enforcement agency, the Attorney General may provide technical, forensic, prosecutorial, or any other form of assistance in the criminal investigation or prosecution of any crime that—(A)
constitutes a crime of violence;(B)
constitutes a felony under the State, local, or tribal laws; and(C)
is motivated by prejudice based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim, or is a violation of the State, local, or tribal hate crime laws.(2)
Priority
In providing assistance under paragraph (1), the Attorney General shall give priority to crimes committed by offenders who have committed crimes in more than one State and to rural jurisdictions that have difficulty covering the extraordinary expenses relating to the investigation or prosecution of the crime.(b)
Grants(1)
In general
The Attorney General may award grants to State, local, and tribal law enforcement agencies for extraordinary expenses associated with the investigation and prosecution of hate crimes.(2)
Office of Justice Programs
In implementing the grant program under this subsection, the Office of Justice Programs shall work closely with grantees to ensure that the concerns and needs of all affected parties, including community groups and schools, colleges, and universities, are addressed through the local infrastructure developed under the grants.(3)
Application(A)
In general
Each State, local, and tribal law enforcement agency that desires a grant under this subsection shall submit an application to the Attorney General at such time, in such manner, and accompanied by or containing such information as the Attorney General shall reasonably require.(B)
Date for submission
Applications submitted pursuant to subparagraph (A) shall be submitted during the 60-day period beginning on a date that the Attorney General shall prescribe.(C)
Requirements
A State, local, and tribal law enforcement agency applying for a grant under this subsection shall—(i)
describe the extraordinary purposes for which the grant is needed;(ii)
certify that the State, local government, or Indian tribe lacks the resources necessary to investigate or prosecute the hate crime;(iii)
demonstrate that, in developing a plan to implement the grant, the State, local, and tribal law enforcement agency has consulted and coordinated with nonprofit, nongovernmental victim services programs that have experience in providing services to victims of hate crimes; and(iv)
certify that any Federal funds received under this subsection will be used to supplement, not supplant, non-Federal funds that would otherwise be available for activities funded under this subsection.(4)
Deadline
An application for a grant under this subsection shall be approved or denied by the Attorney General not later than 180 business days after the date on which the Attorney General receives the application.(5)
Grant amount
A grant under this subsection shall not exceed $100,000 for any single jurisdiction in any 1-year period.(6)
Report
Not later than December 31, 2010, the Attorney General shall submit to Congress a report describing the applications submitted for grants under this subsection, the award of such grants, and the purposes for which the grant amounts were expended.(7)
Authorization of appropriations
There is authorized to be appropriated to carry out this subsection $5,000,000 for each of fiscal years 2010 and 2011.5.
Grant program(a)
Authority To award grants
The Office of Justice Programs of the Department of Justice may award grants, in accordance with such regulations as the Attorney General may prescribe, to State, local, or tribal programs designed to combat hate crimes committed by juveniles, including programs to train local law enforcement officers in identifying, investigating, prosecuting, and preventing hate crimes.(b)
Authorization of appropriations
There are authorized to be appropriated such sums as may be necessary to carry out this section.6.
Authorization for additional personnel to assist State, local, and tribal law enforcement
There are authorized to be appropriated to the Department of Justice, including the Community Relations Service, for fiscal years 2010, 2011, and 2012 such sums as are necessary to increase the number of personnel to prevent and respond to alleged violations of section 249 of title 18, United States Code, as added by section 7 of this Act.7.
Prohibition of certain hate crime acts(a)
In general
Chapter 13 of title 18, United States Code, is amended by adding at the end the following:
249.
Hate crime acts(a)
In general(1)
Offenses involving actual or perceived race, color, religion, or national origin
Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—(A)
shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and(B)
shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—(i)
death results from the offense; or(ii)
the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.(2)
Offenses involving actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability(A)
In general
Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person—(i)
shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and(ii)
shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—(I)
death results from the offense; or(II)
the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.(B)
Circumstances described
For purposes of subparagraph (A), the circumstances described in this subparagraph are that—(i)
the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim—(I)
across a State line or national border; or(II)
using a channel, facility, or instrumentality of interstate or foreign commerce;(ii)
the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);(iii)
in connection with the conduct described in subparagraph (A), the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or(iv)
the conduct described in subparagraph (A)—(I)
interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or(II)
otherwise affects interstate or foreign commerce.(3)
Offenses occurring in the special maritime or territorial jurisdiction of the United States
Whoever, within the special maritime or territorial jurisdiction of the United States, commits an offense described in paragraph (1) or (2) shall be subject to the same penalties as prescribed in those paragraphs.(b)
Certification requirement(1)
In general
No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or his designee, that—(A)
the State does not have jurisdiction;(B)
the State has requested that the Federal Government assume jurisdiction;(C)
the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or(D)
a prosecution by the United States is in the public interest and necessary to secure substantial justice.(2)
Rule of construction
Nothing in this subsection shall be construed to limit the authority of Federal officers, or a Federal grand jury, to investigate possible violations of this section.(c)
Definitions
In this section—(1)
the term ‘bodily injury’ has the meaning given such term in section 1365(h)(4) of this title, but does not include solely emotional or psychological harm to the victim;(2)
the term explosive or incendiary device has the meaning given such term in section 232 of this title;(3)
the term firearm has the meaning given such term in section 921(a) of this title; and(4)
the term gender identity for the purposes of this chapter means actual or perceived gender-related characteristics.
.(b)
Technical and conforming amendment
The analysis for chapter 13 of title 18, United States Code, is amended by adding at the end the following:
249. Hate crime acts.
.8.
Statistics(a)
In general
Subsection (b)(1) of the first section of the Hate Crime Statistics Act (28 U.S.C. 534 note) is amended by inserting gender and gender identity, after race,.(b)
Data
Subsection (b)(5) of the first section of the Hate Crime Statistics Act (28 U.S.C. 534 note) is amended by inserting , including data about crimes committed by, and crimes directed against, juveniles after data acquired under this section.9.
Severability
If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of the provisions of such to any person or circumstance shall not be affected thereby.10.
Rule of construction
For purposes of construing this Act and the amendments made by this Act the following shall apply:(1)
Relevant evidence
Courts may consider relevant evidence of speech, beliefs, or expressive conduct to the extent that such evidence is offered to prove an element of a charged offense or is otherwise admissible under the Federal Rules of Evidence. Nothing in this Act is intended to affect the existing rules of evidence.(2)
Violent acts
This Act applies to violent acts motivated by actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability of a victim.(3)
Constitutional protections
Nothing in this Act shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the First Amendment and peaceful picketing or demonstration. The Constitution does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.(4)
Free expression
Nothing in this Act shall be construed to allow prosecution based solely upon an individual's expression of racial, religious, political, or other beliefs or solely upon an individual's membership in a group advocating or espousing such beliefs.
=====================
111th CONGRESS
1st Session
H. R. 1913
IN THE SENATE OF THE UNITED STATES
April 30, 2009
Received; read twice and referred to the Committee on the Judiciary
AN ACT
To provide Federal assistance to States, local jurisdictions, and Indian tribes to prosecute hate crimes, and for other purposes.1.
Short title
This Act may be cited as the Local Law Enforcement Hate Crimes Prevention Act of 2009.2.
Definition of hate crime
In this Act—(1)
the term crime of violence has the meaning given that term in section 16, title 18, United States Code;(2)
the term hate crime has the meaning given such term in section 280003(a) of the Violent Crime Control and Law Enforcement Act of 1994 (28 U.S.C. 994 note); and(3)
the term local means a county, city, town, township, parish, village, or other general purpose political subdivision of a State.3.
Support for criminal investigations and prosecutions by State, local, and Tribal law enforcement officials(a)
Assistance other than financial assistance(1)
In general
At the request of a State, local, or tribal law enforcement agency, the Attorney General may provide technical, forensic, prosecutorial, or any other form of assistance in the criminal investigation or prosecution of any crime that—(A)
constitutes a crime of violence;(B)
constitutes a felony under the State, local, or tribal laws; and(C)
is motivated by prejudice based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim, or is a violation of the State, local, or tribal hate crime laws.(2)
Priority
In providing assistance under paragraph (1), the Attorney General shall give priority to crimes committed by offenders who have committed crimes in more than one State and to rural jurisdictions that have difficulty covering the extraordinary expenses relating to the investigation or prosecution of the crime.(b)
Grants(1)
In general
The Attorney General may award grants to State, local, and Tribal law enforcement agencies for extraordinary expenses associated with the investigation and prosecution of hate crimes.(2)
Office of Justice Programs
In implementing the grant program under this subsection, the Office of Justice Programs shall work closely with grantees to ensure that the concerns and needs of all affected parties, including community groups and schools, colleges, and universities, are addressed through the local infrastructure developed under the grants.(3)
Application(A)
In general
Each State, local, or Tribal law enforcement agency that desires a grant under this subsection shall submit an application to the Attorney General at such time, in such manner, and accompanied by or containing such information as the Attorney General shall reasonably require.(B)
Date for submission
Applications submitted pursuant to subparagraph (A) shall be submitted during the 60-day period beginning on a date that the Attorney General shall prescribe.(C)
Requirements
A State, local, or Tribal law enforcement agency applying for a grant under this subsection shall—(i)
describe the extraordinary purposes for which the grant is needed;(ii)
certify that the State, local government, or Indian tribe lacks the resources necessary to investigate or prosecute the hate crime;(iii)
demonstrate that, in developing a plan to implement the grant, the State, local, or Tribal law enforcement agency has consulted and coordinated with nonprofit, nongovernmental violence recovery service programs that have experience in providing services to victims of hate crimes; and(iv)
certify that any Federal funds received under this subsection will be used to supplement, not supplant, non-Federal funds that would otherwise be available for activities funded under this subsection.(4)
Deadline
An application for a grant under this subsection shall be approved or denied by the Attorney General not later than 180 business days after the date on which the Attorney General receives the application.(5)
Grant amount
A grant under this subsection shall not exceed $100,000 for any single jurisdiction in any 1-year period.(6)
Report
Not later than December 31, 2011, the Attorney General shall submit to Congress a report describing the applications submitted for grants under this subsection, the award of such grants, and the purposes for which the grant amounts were expended.(7)
Authorization of appropriations
There is authorized to be appropriated to carry out this subsection $5,000,000 for each of fiscal years 2010 and 2011.4.
Grant program(a)
Authority To award grants
The Office of Justice Programs of the Department of Justice may award grants, in accordance with such regulations as the Attorney General may prescribe, to State, local, or tribal programs designed to combat hate crimes committed by juveniles, including programs to train local law enforcement officers in identifying, investigating, prosecuting, and preventing hate crimes.(b)
Authorization of appropriations
There are authorized to be appropriated such sums as may be necessary to carry out this section.5.
Authorization for additional personnel to assist State, local, and Tribal law enforcement
There are authorized to be appropriated to the Department of Justice, including the Community Relations Service, for fiscal years 2010, 2011, and 2012, such sums as are necessary to increase the number of personnel to prevent and respond to alleged violations of section 249 of title 18, United States Code, as added by section 7 of this Act.6.
Prohibition of certain hate crime acts(a)
In general
Chapter 13 of title 18, United States Code, is amended by adding at the end the following:
249.
Hate crime acts(a)
In general(1)
Offenses involving actual or perceived race, color, religion, or national origin
Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—(A)
shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and(B)
shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—(i)
death results from the offense; or(ii)
the offense includes kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.(2)
Offenses involving actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability(A)
In general
Whoever, whether or not acting under color of law, in any circumstance described insubparagraph (B), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerouse weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person—(i)
shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and(ii)
shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—(I)
death results from the offense; or(II)
the offense includes kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.(B)
Circumstances described
For purposes of subparagraph (A), the circumstances described in this subparagraph are that—(i)
the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim—(I)
across a State line or national border; or(II)
using a channel, facility, or instrumentality of interstate or foreign commerce;(ii)
the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);(iii)
in connection with the conduct described in subparagraph (A), the defendant employs a firearm, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or(iv)
the conduct described in subparagraph (A)—(I)
interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or(II)
otherwise affects interstate or foreign commerce.(3)
Additional Federal nexus for offense
Whoever, in the special maritime or territorial jurisdiction of the United States, or in Indian country, engages in conduct described in paragraph (1) or in paragraph (2)(A) (without regard to whether that conduct occurred in a circumstance described in paragraph (2)(B)) shall be subject to the same penalties as those provided for offenses under those paragraphs.(b)
Certification requirement
No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any Assistant Attorney General specially designated by the Attorney General that—(1)
such certifying individual has reasonable cause to believe that the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person was a motivating factor underlying the alleged conduct of the defendant; and(2)
such certifying individual has consulted with State or local law enforcement officials regarding the prosecution and determined that—(A)
the State does not have jurisdiction or does not intend to exercise jurisdiction;(B)
the State has requested that the Federal Government assume jurisdiction;(C)
the State does not object to the Federal Government assuming jurisdiction; or(D)
the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.(c)
Definitions(1)
In this section—(A)
the term explosive or incendiary device has the meaning given such term in section 232 of this title;(B)
the term firearm has the meaning given such term in section 921(a) of this title; and(C)
the term State includes the District of Columbia, Puerto Rico, and any other territory or possession of the United States.(2)
For the purposes of this chapter, the term gender identity means actual or perceived gender-related characteristics.(d)
Statute of limitations(1)
Offenses not resulting in death
Except as provided in paragraph (2), no person shall be prosecuted, tried, or punished for any offense under this section unless the indictment for such offense is found, or the information for such offense is instituted, not later than 7 years after the date on which the offense was committed.(2)
Death resulting offenses
An indictment or information alleging that an offense under this section resulted in death may be found or instituted at any time without limitation.(e)
Rule of evidence
In a prosecution for an offense under this section, evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing impeachment of a witness.
.(b)
Technical and conforming amendment
The table of sections at the beginning of chapter 13 of title 18, United States Code, is amended by adding at the end the following new item:
249. Hate crime acts.
.7.
Severability
If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of the provisions of such to any person or circumstance shall not be affected thereby.8.
Rule of construction
Nothing in this Act, or the amendments made by this Act, shall be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by, the Constitution.
Passed the House of Representatives April 29, 2009.
Lorraine C. Miller,
Clerk
===============================================
APA DSM-5 Sexual and Gender Identity Disorders
Please find below a list of disorders related to the diagnostic category, Sexual and Gender Identity Disorders. The Sexual and Gender Identity Disorders Work Group has been responsible for addressing these disorders. We appreciate your review and comment on these disorders.
*Sexual and Gender Identity Disorders Not Currently Listed in DSM-IV
Hypersexual Disorder
Paraphilic Coercive Disorder
Sexual Interest/Arousal Disorder in Women
Sexual Interest/Arousal Disorder in Men
Genito-Pelvic Pain/Penetration Disorder
*Sexual and Gender Identity Disorders Proposed for Possible Removal from DSM (No DSM-5 Criteria Proposed)
302.79 Sexual Aversion Disorder
*Sexual and Gender Identity Disorders Proposed to be Subsumed Under Other Diagnoses (No DSM-5 Criteria Proposed)
302.71 Hypoactive Sexual Desire Disorder
302.72 Female Sexual Arousal Disorder
302.76 Dyspareunia (Not Due to a General Medical Condition)
306.51 Vaginismus (Not Due to a General Medical Condition)
*Sexual and Gender Identity Disorders with No Change from DSM-IV
625.8 Female Hypoactive Sexual Desire Disorder Due to a General Medical Condition
625.89 Male Hypoactive Sexual Desire Disorder Due to a General Medical Condition
607.74 Male Erectile Disorder Due to a General Medical Condition
625.0 Female Dyspareunia Due to a General Medical Condition
625.89 Male Dyspareunia Due to a General Medical Condition
625.8 Other Female Sexual Dysfunction Due to a General Medical Condition
625.89 Other Male Sexual Dysfunction Due to a General Medical Condition
302.70 Sexual Dysfunction Not Otherwise Specified
Substance-Induced Sexual Dysfunction
Gender Identity Disorders
302.6 Gender Identity Disorder in Children
302.85 Gender Identity Disorder in Adolescents or Adults
302.6 Gender Identity Disorder Not Otherwise Specified
Paraphillias
302.4 Exhibitionism
302.81 Fetishism
302.89 Frotteurism
302.2 Pedophilia
302.83 Sexual Masochism
302.84 Sexual Sadism
302.3 Transvestic Fetishism
302.82 Voyeurism
302.9 Paraphilia Not Otherwise Specified
Sexual Dysfunctions
302.72 Male Erectile Disorder
302.73 Female Orgasmic Disorder
302.74 Male Orgasmic Disorder
302.75 Premature Ejaculation
302.9 Sexual Disorder Not Otherwise Specified
===================
NASP Communiqué, Vol. 39, #5
January/February 2011
The Role of the DSM in IDEA Case Law
By Perry A. Zirkel
from http://www.nasponline.org/publications/cq/mocq395RoleofDSM.aspx
The school psychologist plays a central role in eligibility and other determinations under the Individuals with Disabilities Education Act (IDEA) not only at the school level but also, upon formal disputes, at the successive adjudicative levels of impartial hearing officers and courts (e.g., Havey, 1999; Stumme, 1995). One of the sources of professional confusion that requires school psychologists’ legal literacy is the role of the American Psychiatric Association’s (2000) Diagnostic and Statistical Manual of Mental Disorders, herein referred to generically as the DSM because the time span for this review of the relevant court decisions covers more than one of its successive editions. In a study limited to eligibility for only one IDEA disability classification, autism, Fogt, Miller, and Zirkel (2003) found that (a) approximately half of the 13 hearing/review officer and court decisions mentioned the DSM, and (b) the IDEA regulation, rather than the DSM, was the controlling source for these legal decisions. The only exception was a low level (i.e., hearing officer) decision based on state law.
Because they represent the higher of these successive levels of adjudicative authority, do court decisions for IDEA cases more generally similarly find the same secondary role for the DSM? This study provides a relatively comprehensive canvassing of court decisions under the IDEA that mentioned the DSM. The databases were Westlaw and LRP’s Special Ed Connection. The scope of the study does not extend to the treatment of the DSM in hearing/review officer (e.g., Lakeside Joint Elementary School District, 2008) or complaint resolution (e.g., North St. Paul/Maplewood Independent School District, 2010) decisions under the IDEA or court decisions under § 504 and ADA (e.g., Axelrod v. Phillips Academy, 1999; Cordeiro v. Driscoll, 2007). The various pertinent IDEA disputes include the successive central issues of (a) whether the child is eligible for special education services, and (b) whether the IEP constitutes free appropriate public education (FAPE).
Eligibility
For court decisions where the issue was eligibility either directly or via a “child find” claim, the use of the DSM was notably limited in both frequency and significance. In most of these relatively few cases, the use was ancillary to the IDEA regulation that defines the various disability classifications. For example, the IDEA regulations define autism but not Asperger’s disorder (§ 300.8[c][1]). In an eligibility case in Maine, the federal trial court cited the definition of Asperger’s disorder in the DSM, and the appellate court limited the use of the DSM to footnotes defining “adjustment disorder with depressed mood” and “adaptive skills” (Mr. I. v. Maine School Administrative District No. 55, 2006, 2007).
Similarly, the IDEA regulations define “other health impairment” (OHI), but not the diagnostic examples, such as attention deficit hyperactivity disorder (ADHD; § 300.8[c] [9]). In Strock v. Independent School District No. 281 (2008), the court mentioned that the pediatrician’s ADHD diagnosis was based on the DSM, although ultimately rejecting the parents’ child find and eligibility claims. Similarly, in Venus Independent School District v. Daniel S. (2005), the court mentioned the District psychologist’s determination that the child met the DSM criteria for ADHD as background for its successive child find rulings in favor of the district for the initial period of dispute and in the parents’ favor for the more recent period. As a variation, in J. S. v. Shoreline School District (2002), the court used the DSM definition of ADHD, along with the school evidence of the student’s classroom behavior and the concordant testimony of the student’s psychiatrist, to reject that parent’s child-find claim based on the district’s failure to evaluate the student, as a separate matter, for oppositionality (i.e., ODD).
In some cases, the court’s limited use of the DSM was for discounting purposes. For example, in Jaffess v. Council Rock School District (2006), the court first mentioned as background the district’s school psychologist’s testimony that the DSM does not include nonverbal learning disability. Second and more significantly, the court used the DSM as one of several factors undermining the credibility of the parents’ experts who testified that the student was eligible under the IDEA classification of specific learning disability (SLD). More specifically, the court concluded:
Both Dr. Moss [a developmental neuropsychologist] and Dr. Fessler [a nationally certified school psychologist] admitted that they did not compare extensive samples of [the student’s] written work before diagnosing him with a disorder of written expression, even though that appears to be required by the DSM-IV. (p. 1078)
Similarly, in another case that rejected the parents’ claim that their child was eligible as SLD, the court mentioned the parents’ expert’s use of the DSM to diagnose SLD but discredited this diagnosis because (a) it was for purposes of immigration under the ADA, rather than eligibility under the IDEA, and (b) the state special education law specified a different standard for severe discrepancy (E. M. v. Pajaro Valley Unified School District, 2009).
Finally, in an occasional case, the court clarified that the IDEA supersedes the DSM. For example, in Eric H. v. Judson Independent School District (2002), the court first footnoted the DSM to define Asperger’s disorder, but—in ultimately upholding the district’s determination that the student was no longer eligible under the IDEA—concluded that this decision did not depend on the DSM. Similarly, in Torrance Unified School District v. E. M. (2008), the court observed that the DSM diagnosis of dysthymia is relevant but not controlling as to whether the child qualifies for one of the five alternative criteria— general pervasive mood of unhappiness—for emotional disturbance (ED).
Free Appropriate Public Education
Similarly, for cases where the court decided whether the IEP for the eligible child was appropriate (i.e., provided a FAPE), the frequency and significance of the DSM was relatively limited. Serving as a bridge from the issue of eligibility to that of FAPE, due to their interaction, the court used the DSM in various cases merely, as a background matter, to define ADHD either alone (Eric J. v. Huntsville Board of Education, 1995; Forest Grove School District v. T. A., 2005) or in addition to ODD (Geffre v. Leola School District, 2009). Limiting the background role of the DSM even further, the court in another case provided a tandem citation for Merck’s Manual in its footnote for ADHD (Independent School District No. 283 v. S.D., 1995).
The other diagnostic category supplementary to the broader IDEA classifications that triggers judicial references to the DSM is Asperger’s disorder. As with ADHD, these references to Asperger’s disorder are typically in background footnotes (Bradley v. Arkansas Department of Education, 2006; D.B. v. Houston Independent School District, 2007). In a footnote in Corpus Christi Independent School District v. Chris N. (2006), the court relied on the DSM to distinguish Asperger’s disorder from autism as one of the student’s multiple diagnoses. Again, the role of the DSM was peripheral to the court’s decision, which was determining that the district’s proposed placement was appropriate and, thus, denying the parents’ requested remedy of tuition reimbursement.
The DSM played a similar ancillary role as the source for other such diagnoses, such as Rett’s syndrome (Board of Education v. Michael R., 2005). In N. J. v. Northwest R-1 School District (2005), the court footnoted the DSM merely to show that that “the term ‘autism’ is ambiguous” (p. 865 n.11).
In contrast, in FAPE cases where the medical diagnosis under the DSM and the legal classification under the IDEA conflicted, courts have clarified that the IDEA is controlling. For example, in School District of Wisconsin Dells v. Z. S. (2001), the court reversed the hearing officer’s decision that the child qualified for a diagnosis of autism—in addition to the district’s classification of emotional disturbance—because the basis of the hearing officer’s determination was the DSM, not the IDEA. Similarly, in K. S. v. Freemont Unified School District (2009), the court clarified:
The issue before … this Court, is not whether [the student] could properly be diagnosed with a cognitive disability under the DSM-IV. Rather, the issue this Court must decide is whether the District’s special education services adequately addressed plaintiff’s needs, including any cognitive impairment she may have displayed. (p. 1051)
The same superseding applies to the DSM in relation to state special education laws that correspond to the IDEA. In Laughlin v. Central Bucks School District (1994), the court referred to the DSM as “a ‘primary source’ of information about ADHD” (p. 897) as background for deciding a placement dispute based on whether the child was eligible as ED, SLD, or both. Yet, upon resolving the placement issue, the Laughlin court noted: “However, for the purposes of this court’s decision, the definition provided by the [state special education law] must prevail over that given in the psychological literature” (p. 913 n.21).
Other Issues
On occasion, the DSM appears in court decisions concerning other IDEA issues. For example, in Richland School District v. Thomas P. (2000), the court relied on a clinical psychologist’s use of the DSM in manifestation determination. In another case, the court, in upholding the appropriateness of the district’s evaluation, appeared to approve the school psychologist’s use of the DSM to determine that the child did not qualify in terms of autism, more specifically Asperger’s disorder; however, this conclusion was incidental to its multistep analysis of the issue of whether the parents were entitled to an independent educational evaluation at public expense (Blake B. v. Council Rock School District, 2008).
State Laws
Finally, in the notable minority of the state special education laws that add to the IDEA, the DSM is explicitly accorded an elevated role. In an occasional state law, the DSM is expressly incorporated to define broader boundaries for the autism classification. For example, as noted in J. K. v. Metropolitan School District Southwest Allen County (2005), Indiana’s special education regulations include “autism spectrum disorder” as an eligibility classification, defined as “a lifelong developmental disability that includes autistic disorder, Asperger’s syndrome, and other pervasive developmental disorders, as described in the current version of the American Psychiatric Association’s [DSM]” (511 Ind. Admin. Code 7-41-1[a)]).
As a related matter, a few state laws expressly incorporate the DSM in their requirement for special education evaluations. For example, as cited in K. E. v. Independent School District No. 15 (2010), Minnesota’s special education regulations contain this requirement for evaluation specific to ADHD diagnoses: “DSM-IV criteria documentation must be provided by either a licensed physician or a mental health or medical professional licensed to diagnose [ADHD]” (Minn. R. 3525.1335). Similarly but more extensively, Maine’s special education regulations require not only that ADHD diagnoses be based on the current DSM definition but also that for determinations of autism, ED, and intellectual disabilities “[d]iagnostic impressions … be based upon an evaluation undertaken by a licensed or certified professional who is qualified to make a diagnostic impression under the DSM codes” (05-071 Me. Code R. Ch. 101 - §§ V-4[C] & VII-2).
Finally, in an occasional state law, the reference to the DSM extends from eligibility to FAPE. For example, as noted inIndependent School District No. 15 v. S. D. (2010), Illinois’ special education statute requires specified special considerations for “a student who has a disability on the autism spectrum (autistic disorder, Asperger’s disorder, pervasive developmental disorder not otherwise specified, childhood disintegrative disorder, Rett’s syndrome, as defined in [DSM-IV]” (105 Ill. Comp. Stat. 5/14-8.02[b]). On the other hand, as the court recognized the Georgia law for homebound services, which incorporates the DSM for psychiatric/emotional disorders (Ga. Comp. R. & Regs. 160-4-2.31[h]), it played a negligible role in a FAPE case due to its nonmandatory nature and its limited overlap with the IDEA (B. F. v. Fulton School District, 2008).
Conclusion
In sum, a relatively comprehensive canvassing of the pertinent case law reveals for IDEA issues that the DSM only appears in less than 1% of the published court decisions (e.g., Zirkel & D’Angelo, 2002). Moreover, in the few court decisions where the DSM does appear, it plays only a secondary and supplementary role. Finally, where the IDEA’s legal standards cover the dispute, they are controlling over any conflicting DSM standards. In the relatively few states that expressly incorporate DSM criteria, there is no conflict and these higher standards apply; the IDEA scheme of “cooperative federalism” (e.g., Bay Shore Union Free School District v. Kain, 2007, pp. 733-34) permits states to broaden and heighten—not subtract from—the minimum requirements, or floor, of the IDEA.
As a more general matter, school psychologists and other district personnel should not underestimate their own legal weight in judicial proceedings concerning IDEA issues, such as FAPE, where educational expertise conflicts with medical expertise. As a previous case review that extended to hearing/review officer decisions found, this potent position of school psychologists applies to manifestation determinations (Zirkel, 2010). Even in eligibility cases, where the focus is on the educational elements for identification, such as adverse effect on educational performance and the need for special education, the educator may trump the physician in IDEA adjudications—in contrast to the common conception of the professional hierarchy. For example, in Marshall Joint School District No. 2 v. C. D. (2010), the Seventh Circuit Court of Appeals addressed such a conflict in relation to the parents’ challenge to the exiting of their child from special education eligibility and, thus, the team’s removal of the IEP:
It was the [IEP] team’s position throughout these proceedings that physicians cannot simply prescribe special education for a student. Rather, that designation lies within the team’s discretion, governed by the applicable rules and regulations. We agree. (p. 638)
Reinforcing its position in favor of the district’s determination in this case, this high court explained:
This brings us to a key point in this case: a physician’s diagnosis and input on a child’s medical condition is important and bears on the team’s informed decision on a student’s needs.… But a physician cannot simply prescribe special education; rather, the Act dictates a full review by an IEP team composed of parents, regular education teachers, special education teachers, and a representative of the local educational agency.… (pp. 640-641).
Thus, as a matter of judicial law, not professional lore, the role of the DSM under the IDEA should not be overestimated and the comparative position of the school psychologist and other school personnel more generally should not be underestimated. The “due weight” (e.g., Board of Education v. Rowley, 1982, p. 208) that courts accord in this IDEA context suggests that at least some school psychologists should reassess how they would rank the relative strength of the DSM, medical opinion, and their own judgment in adjudications in special education cases
Perry A. Zirkel is university professor of education and law at Lehigh University and a frequent contributor to Communiqué.
References
American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders (4th ed., Text rev.). Washington, DC: Author.
Axelrod v. Phillips Acad., 46 F. Supp. 2d 72 (D. Mass. 1999).
Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730 (2d Cir. 2007).
B. F. v. Fulton Sch. Dist., 51 IDELR ¶ 76 (N.D. Ga. 2008).
Blake B. v. Council Rock Sch. Dist., 51 IDELR ¶ 100 (E.D. Pa. 2008).
Bd. of Educ. v. Rowley, 458 U.S. 176 (1982).
Bd. of Educ. v. Michael R., 44 IDELR ¶ 36 (N.D. Ill. 2005).
Bradley v. Arkansas Dep’t of Educ., 443 F.3d 965 (8th Cir. 2006).
Cordeiro v. Driscoll, 47 IDELR ¶ 189 (D. Mass. 2007).
Corpus Christi Indep. Sch. Dist. v. Chris N., 45 IDELR ¶ 221 (S.D. Tex. 2006).
D. B. v. Houston Indep. Sch. Dist., 48 IDELR ¶ 246 (S.D. Tex. 2007).
E. M. v. Pajaro Valley Unified Sch. Dist., 53 IDELR ¶ 41 (N.D. Cal. 2009).
Eric H. v. Judson Indep. Sch. Dist., 37 IDELR ¶ 280 (W.D. Tex. 2002).
Eric J. v. Huntsville City Bd. of Educ., 22 IDELR 858 (N.D. Ala. 1995).
Fogt, J., Miller, D., & Zirkel, P. A. (2003). Defining autism: Professional best practices and published case law. Journal of School Psychology, 41, 201–216.
Forest Grove Sch. Dist. v. T. A., 640 F. Supp. 2d 1320 (D. Or. 2005), rev’d, 523 F,3d 1078 (9th Cir. 2008), aff’d, 129 S. Ct. 2484 (2009).
Geffre v. Leola Sch. Dist., 53 IDELR ¶ 156 (D.S.D. 2009).
Havey, J. M. (1999). School psychologists’ involvement in special education due process hearings. Psychology in the Schools, 36, 117–123.
Indep. Sch. Dist. No. 283 v. S. D., 948 F. Supp. 860 (D. Minn. 1995).
Individuals with Disabilities Education Act (IDEA) regulations, 34 C.F.R. §§ 300.1 et seq. (2009).
Jaffess v. Council Rock Sch. Dist., 46 IDELR ¶ 246 (E.D. Pa. 2006).
J. K. v. Metro. Sch. Dist. Sw. Allen County, 44 IDELR ¶ 122 (N.D. Ind. 2005).
J. S. v. Shoreline Sch. Dist., 220 F. Supp. 2d 1175 (W.D. Wash. 2002).
K. E. v. Indep. Sch. Dist. No. 15, 54 IDELR ¶ 215 (D. Minn. 2010).
K. S. v. Fremont Unified Sch. Dist., 679 F. Supp. 2d 1046 (N.D. Cal. 2009).
Lakeside Joint Elementary Sch. Dist., 52 IDELR ¶ 172 (Cal. SEA 2008).
Laughlin v. Central Bucks Sch. Dist., 20 IDELR 894 (E.D. Pa. 1994).
Marshall Joint Sch. Dist. No. 2 v. C. D., 616 F.3d 632 (7th Cir. 2010).
Mr. I v. Maine Sch. Admin. Dist. No. 55, 416 F. Supp. 2d 147 (D. Me. 2006), aff’d, 480 F.3d 1 (1st Cir. 2007).
N. J. v. Nw. R-1 Sch. Dist., 44 IDELR ¶ 157 (E.D. Mo. 2005).
N. St. Paul/Maplewood Indep. Sch. Dist., 55 IDELR ¶ 118 (Minn. SEA 2010).
Richland Sch. Dist. v. Thomas P., 32 IDELR ¶ 233 (W.D. Wis. 2000).
Sch. Dist. of Wisconsin Dells v. Z. S., 184 F. Supp. 2d 860 (W.D. Wis. 2001), aff’d, 295 F.3d 671 (7th Cir. 2002).
Strock v. Indep. Sch. Dist. No. 281, 49 IDELR ¶ 273 (D. Minn. 2008).
Stumme, J. M. (1995). Best practices in serving as an expert witness. In A. Thomas & J. Grimes (Eds.), Best practices in school psychology III (pp. 179–190). Bethesda, MD: National Association of School Psychologists.
Torrance Unified Sch. Dist. v. E. M., 51 IDELR ¶ 11 (C.D. Cal. 2009).
Venus Indep. Sch. Dist. v. Daniel S., 36 IDELR ¶ 185 (N.D. Tex. 2002).
Zirkel, P. A. (2010). Manifestation determinations under the new Individuals with Disabilities Education Act: An update.Remedial and Special Education, 31, 378–384.
Zirkel, P. A., & D’Angelo, A. (2002). Special education case law: An empirical trends analysis. West’s Education Law Reporter, 161, 731–754.
The school psychologist plays a central role in eligibility and other determinations under the Individuals with Disabilities Education Act (IDEA) not only at the school level but also, upon formal disputes, at the successive adjudicative levels of impartial hearing officers and courts (e.g., Havey, 1999; Stumme, 1995). One of the sources of professional confusion that requires school psychologists’ legal literacy is the role of the American Psychiatric Association’s (2000) Diagnostic and Statistical Manual of Mental Disorders, herein referred to generically as the DSM because the time span for this review of the relevant court decisions covers more than one of its successive editions. In a study limited to eligibility for only one IDEA disability classification, autism, Fogt, Miller, and Zirkel (2003) found that (a) approximately half of the 13 hearing/review officer and court decisions mentioned the DSM, and (b) the IDEA regulation, rather than the DSM, was the controlling source for these legal decisions. The only exception was a low level (i.e., hearing officer) decision based on state law.
Because they represent the higher of these successive levels of adjudicative authority, do court decisions for IDEA cases more generally similarly find the same secondary role for the DSM? This study provides a relatively comprehensive canvassing of court decisions under the IDEA that mentioned the DSM. The databases were Westlaw and LRP’s Special Ed Connection. The scope of the study does not extend to the treatment of the DSM in hearing/review officer (e.g., Lakeside Joint Elementary School District, 2008) or complaint resolution (e.g., North St. Paul/Maplewood Independent School District, 2010) decisions under the IDEA or court decisions under § 504 and ADA (e.g., Axelrod v. Phillips Academy, 1999; Cordeiro v. Driscoll, 2007). The various pertinent IDEA disputes include the successive central issues of (a) whether the child is eligible for special education services, and (b) whether the IEP constitutes free appropriate public education (FAPE).
Eligibility
For court decisions where the issue was eligibility either directly or via a “child find” claim, the use of the DSM was notably limited in both frequency and significance. In most of these relatively few cases, the use was ancillary to the IDEA regulation that defines the various disability classifications. For example, the IDEA regulations define autism but not Asperger’s disorder (§ 300.8[c][1]). In an eligibility case in Maine, the federal trial court cited the definition of Asperger’s disorder in the DSM, and the appellate court limited the use of the DSM to footnotes defining “adjustment disorder with depressed mood” and “adaptive skills” (Mr. I. v. Maine School Administrative District No. 55, 2006, 2007).
Similarly, the IDEA regulations define “other health impairment” (OHI), but not the diagnostic examples, such as attention deficit hyperactivity disorder (ADHD; § 300.8[c] [9]). In Strock v. Independent School District No. 281 (2008), the court mentioned that the pediatrician’s ADHD diagnosis was based on the DSM, although ultimately rejecting the parents’ child find and eligibility claims. Similarly, in Venus Independent School District v. Daniel S. (2005), the court mentioned the District psychologist’s determination that the child met the DSM criteria for ADHD as background for its successive child find rulings in favor of the district for the initial period of dispute and in the parents’ favor for the more recent period. As a variation, in J. S. v. Shoreline School District (2002), the court used the DSM definition of ADHD, along with the school evidence of the student’s classroom behavior and the concordant testimony of the student’s psychiatrist, to reject that parent’s child-find claim based on the district’s failure to evaluate the student, as a separate matter, for oppositionality (i.e., ODD).
In some cases, the court’s limited use of the DSM was for discounting purposes. For example, in Jaffess v. Council Rock School District (2006), the court first mentioned as background the district’s school psychologist’s testimony that the DSM does not include nonverbal learning disability. Second and more significantly, the court used the DSM as one of several factors undermining the credibility of the parents’ experts who testified that the student was eligible under the IDEA classification of specific learning disability (SLD). More specifically, the court concluded:
Both Dr. Moss [a developmental neuropsychologist] and Dr. Fessler [a nationally certified school psychologist] admitted that they did not compare extensive samples of [the student’s] written work before diagnosing him with a disorder of written expression, even though that appears to be required by the DSM-IV. (p. 1078)
Similarly, in another case that rejected the parents’ claim that their child was eligible as SLD, the court mentioned the parents’ expert’s use of the DSM to diagnose SLD but discredited this diagnosis because (a) it was for purposes of immigration under the ADA, rather than eligibility under the IDEA, and (b) the state special education law specified a different standard for severe discrepancy (E. M. v. Pajaro Valley Unified School District, 2009).
Finally, in an occasional case, the court clarified that the IDEA supersedes the DSM. For example, in Eric H. v. Judson Independent School District (2002), the court first footnoted the DSM to define Asperger’s disorder, but—in ultimately upholding the district’s determination that the student was no longer eligible under the IDEA—concluded that this decision did not depend on the DSM. Similarly, in Torrance Unified School District v. E. M. (2008), the court observed that the DSM diagnosis of dysthymia is relevant but not controlling as to whether the child qualifies for one of the five alternative criteria— general pervasive mood of unhappiness—for emotional disturbance (ED).
Free Appropriate Public Education
Similarly, for cases where the court decided whether the IEP for the eligible child was appropriate (i.e., provided a FAPE), the frequency and significance of the DSM was relatively limited. Serving as a bridge from the issue of eligibility to that of FAPE, due to their interaction, the court used the DSM in various cases merely, as a background matter, to define ADHD either alone (Eric J. v. Huntsville Board of Education, 1995; Forest Grove School District v. T. A., 2005) or in addition to ODD (Geffre v. Leola School District, 2009). Limiting the background role of the DSM even further, the court in another case provided a tandem citation for Merck’s Manual in its footnote for ADHD (Independent School District No. 283 v. S.D., 1995).
The other diagnostic category supplementary to the broader IDEA classifications that triggers judicial references to the DSM is Asperger’s disorder. As with ADHD, these references to Asperger’s disorder are typically in background footnotes (Bradley v. Arkansas Department of Education, 2006; D.B. v. Houston Independent School District, 2007). In a footnote in Corpus Christi Independent School District v. Chris N. (2006), the court relied on the DSM to distinguish Asperger’s disorder from autism as one of the student’s multiple diagnoses. Again, the role of the DSM was peripheral to the court’s decision, which was determining that the district’s proposed placement was appropriate and, thus, denying the parents’ requested remedy of tuition reimbursement.
The DSM played a similar ancillary role as the source for other such diagnoses, such as Rett’s syndrome (Board of Education v. Michael R., 2005). In N. J. v. Northwest R-1 School District (2005), the court footnoted the DSM merely to show that that “the term ‘autism’ is ambiguous” (p. 865 n.11).
In contrast, in FAPE cases where the medical diagnosis under the DSM and the legal classification under the IDEA conflicted, courts have clarified that the IDEA is controlling. For example, in School District of Wisconsin Dells v. Z. S. (2001), the court reversed the hearing officer’s decision that the child qualified for a diagnosis of autism—in addition to the district’s classification of emotional disturbance—because the basis of the hearing officer’s determination was the DSM, not the IDEA. Similarly, in K. S. v. Freemont Unified School District (2009), the court clarified:
The issue before … this Court, is not whether [the student] could properly be diagnosed with a cognitive disability under the DSM-IV. Rather, the issue this Court must decide is whether the District’s special education services adequately addressed plaintiff’s needs, including any cognitive impairment she may have displayed. (p. 1051)
The same superseding applies to the DSM in relation to state special education laws that correspond to the IDEA. In Laughlin v. Central Bucks School District (1994), the court referred to the DSM as “a ‘primary source’ of information about ADHD” (p. 897) as background for deciding a placement dispute based on whether the child was eligible as ED, SLD, or both. Yet, upon resolving the placement issue, the Laughlin court noted: “However, for the purposes of this court’s decision, the definition provided by the [state special education law] must prevail over that given in the psychological literature” (p. 913 n.21).
Other Issues
On occasion, the DSM appears in court decisions concerning other IDEA issues. For example, in Richland School District v. Thomas P. (2000), the court relied on a clinical psychologist’s use of the DSM in manifestation determination. In another case, the court, in upholding the appropriateness of the district’s evaluation, appeared to approve the school psychologist’s use of the DSM to determine that the child did not qualify in terms of autism, more specifically Asperger’s disorder; however, this conclusion was incidental to its multistep analysis of the issue of whether the parents were entitled to an independent educational evaluation at public expense (Blake B. v. Council Rock School District, 2008).
State Laws
Finally, in the notable minority of the state special education laws that add to the IDEA, the DSM is explicitly accorded an elevated role. In an occasional state law, the DSM is expressly incorporated to define broader boundaries for the autism classification. For example, as noted in J. K. v. Metropolitan School District Southwest Allen County (2005), Indiana’s special education regulations include “autism spectrum disorder” as an eligibility classification, defined as “a lifelong developmental disability that includes autistic disorder, Asperger’s syndrome, and other pervasive developmental disorders, as described in the current version of the American Psychiatric Association’s [DSM]” (511 Ind. Admin. Code 7-41-1[a)]).
As a related matter, a few state laws expressly incorporate the DSM in their requirement for special education evaluations. For example, as cited in K. E. v. Independent School District No. 15 (2010), Minnesota’s special education regulations contain this requirement for evaluation specific to ADHD diagnoses: “DSM-IV criteria documentation must be provided by either a licensed physician or a mental health or medical professional licensed to diagnose [ADHD]” (Minn. R. 3525.1335). Similarly but more extensively, Maine’s special education regulations require not only that ADHD diagnoses be based on the current DSM definition but also that for determinations of autism, ED, and intellectual disabilities “[d]iagnostic impressions … be based upon an evaluation undertaken by a licensed or certified professional who is qualified to make a diagnostic impression under the DSM codes” (05-071 Me. Code R. Ch. 101 - §§ V-4[C] & VII-2).
Finally, in an occasional state law, the reference to the DSM extends from eligibility to FAPE. For example, as noted inIndependent School District No. 15 v. S. D. (2010), Illinois’ special education statute requires specified special considerations for “a student who has a disability on the autism spectrum (autistic disorder, Asperger’s disorder, pervasive developmental disorder not otherwise specified, childhood disintegrative disorder, Rett’s syndrome, as defined in [DSM-IV]” (105 Ill. Comp. Stat. 5/14-8.02[b]). On the other hand, as the court recognized the Georgia law for homebound services, which incorporates the DSM for psychiatric/emotional disorders (Ga. Comp. R. & Regs. 160-4-2.31[h]), it played a negligible role in a FAPE case due to its nonmandatory nature and its limited overlap with the IDEA (B. F. v. Fulton School District, 2008).
Conclusion
In sum, a relatively comprehensive canvassing of the pertinent case law reveals for IDEA issues that the DSM only appears in less than 1% of the published court decisions (e.g., Zirkel & D’Angelo, 2002). Moreover, in the few court decisions where the DSM does appear, it plays only a secondary and supplementary role. Finally, where the IDEA’s legal standards cover the dispute, they are controlling over any conflicting DSM standards. In the relatively few states that expressly incorporate DSM criteria, there is no conflict and these higher standards apply; the IDEA scheme of “cooperative federalism” (e.g., Bay Shore Union Free School District v. Kain, 2007, pp. 733-34) permits states to broaden and heighten—not subtract from—the minimum requirements, or floor, of the IDEA.
As a more general matter, school psychologists and other district personnel should not underestimate their own legal weight in judicial proceedings concerning IDEA issues, such as FAPE, where educational expertise conflicts with medical expertise. As a previous case review that extended to hearing/review officer decisions found, this potent position of school psychologists applies to manifestation determinations (Zirkel, 2010). Even in eligibility cases, where the focus is on the educational elements for identification, such as adverse effect on educational performance and the need for special education, the educator may trump the physician in IDEA adjudications—in contrast to the common conception of the professional hierarchy. For example, in Marshall Joint School District No. 2 v. C. D. (2010), the Seventh Circuit Court of Appeals addressed such a conflict in relation to the parents’ challenge to the exiting of their child from special education eligibility and, thus, the team’s removal of the IEP:
It was the [IEP] team’s position throughout these proceedings that physicians cannot simply prescribe special education for a student. Rather, that designation lies within the team’s discretion, governed by the applicable rules and regulations. We agree. (p. 638)
Reinforcing its position in favor of the district’s determination in this case, this high court explained:
This brings us to a key point in this case: a physician’s diagnosis and input on a child’s medical condition is important and bears on the team’s informed decision on a student’s needs.… But a physician cannot simply prescribe special education; rather, the Act dictates a full review by an IEP team composed of parents, regular education teachers, special education teachers, and a representative of the local educational agency.… (pp. 640-641).
Thus, as a matter of judicial law, not professional lore, the role of the DSM under the IDEA should not be overestimated and the comparative position of the school psychologist and other school personnel more generally should not be underestimated. The “due weight” (e.g., Board of Education v. Rowley, 1982, p. 208) that courts accord in this IDEA context suggests that at least some school psychologists should reassess how they would rank the relative strength of the DSM, medical opinion, and their own judgment in adjudications in special education cases
Perry A. Zirkel is university professor of education and law at Lehigh University and a frequent contributor to Communiqué.
References
American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders (4th ed., Text rev.). Washington, DC: Author.
Axelrod v. Phillips Acad., 46 F. Supp. 2d 72 (D. Mass. 1999).
Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730 (2d Cir. 2007).
B. F. v. Fulton Sch. Dist., 51 IDELR ¶ 76 (N.D. Ga. 2008).
Blake B. v. Council Rock Sch. Dist., 51 IDELR ¶ 100 (E.D. Pa. 2008).
Bd. of Educ. v. Rowley, 458 U.S. 176 (1982).
Bd. of Educ. v. Michael R., 44 IDELR ¶ 36 (N.D. Ill. 2005).
Bradley v. Arkansas Dep’t of Educ., 443 F.3d 965 (8th Cir. 2006).
Cordeiro v. Driscoll, 47 IDELR ¶ 189 (D. Mass. 2007).
Corpus Christi Indep. Sch. Dist. v. Chris N., 45 IDELR ¶ 221 (S.D. Tex. 2006).
D. B. v. Houston Indep. Sch. Dist., 48 IDELR ¶ 246 (S.D. Tex. 2007).
E. M. v. Pajaro Valley Unified Sch. Dist., 53 IDELR ¶ 41 (N.D. Cal. 2009).
Eric H. v. Judson Indep. Sch. Dist., 37 IDELR ¶ 280 (W.D. Tex. 2002).
Eric J. v. Huntsville City Bd. of Educ., 22 IDELR 858 (N.D. Ala. 1995).
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