Is It Kindergarten or Reality Television?

By: Gerri L. Elder

A teacher at Morningside Elementary School in Port St. Lucie, Florida is feeling the heat after having her kindergarten class vote an often troublesome 5-year-old student out of her classroom on May 21, 2008.

After the child misbehaved for the second time of the day, teacher Wendy Portillo had the school's resource officer come in and remove him from the classroom. When it was time for the child to return to class, Portillo reportedly said that neither she nor the other students were ready for him to come back. However, the child was returned to class anyway.

When Alex Barton returned to his class, Portillo reportedly had him come to the front of the classroom. She then asked each of the other students in the class to say what they do not like about Alex. The child was then voted out of his kindergarten classroom by a vote of 14-2.

Alex's mother Melissa Barton was outraged when she was told about the class vote. The school had notified her earlier this year that they believed that her son suffers from Asperger's Syndrome, which is a form of autism. Mrs. Barton says that her son was discriminated against and punished due to his disabilities.

No one argues that Alex is an easy child to manage. His mother is aware of his humming and out of the ordinary behavior such as eating his schoolwork. However, many of these behaviors are symptoms of his disability. Alex was recently diagnosed by a private psychologist with a high-functioning form of autism and attention deficit disorder.

Mrs. Barton told Fox News that she spoke with Portillo after Alex told her about the incident and how sad it made him feel. Portillo reportedly blocked the doorway and refused to let Mrs. Barton leave with Alex for about five minutes after the complaint. Afterwards, Mrs. Barton filed a formal complaint with the school's resource officer.

The state attorney's office and Port St. Lucie Police Department conducted an investigation into the incident and found that the matter did not meet the criteria for emotional child abuse, so Portillo will not be charged with a crime. Alex Barton has not returned to Morningside Elementary School since the incident.

While it is often difficult to pursue personal injury claims against schools because of sovereign immunity, this case could be interesting if Mrs. Barton decides to file a personal injury lawsuit. Because of Alex's disabilities, it could be possible for the Barton family to pursue a personal injury claim against the school under the Americans with Disabilities Act of 1990. If the family can prove that Alex suffered discrimination due to his disabilities, the actions of his teacher may have violated this federal law. The Americans with Disabilities Act is a broad law that specifically prohibits discrimination on the basis of a person's disabilities.

Portillo defends her actions in the classroom and maintains that she did not discriminate against Alex. She says that the reality television inspired classroom vote was intended only to allow all of the students to voice their opinions and to let Alex know how his actions were impacting the other students.