PORTLAND (AP) – A superior court judge on Tuesday ruled that Falmouth school officials did not discriminate against a disabled boy when they banned him from an elementary school playground when other pupils are there.

Justice Thomas Humphrey refused the request from Gayle Fitzpatrick and her husband, Charles Rankowski, to have the ban lifted. The couple said they will appeal the ruling.

The boy, Jan, has Asperger’s syndrome, a form of autism that involves delays in the development of basic skills, most notably the ability to socialize and to use imagination.

Although Jan is home-schooled, the school district last year allowed him to spend time at the Plummer-Motz School playground at recess and use the school library. School officials suspended him from the playground after he swore at a teacher and the principal and defied teachers’ orders on the playground.

Tuesday’s decision followed an 11-hour court hearing over three days that included about a dozen witnesses and was observed by about a half-dozen autism advocates.

School officials had said they would allow Jan back on the playground after a behavior assessment to devise a plan for handling his disruptions.

The parents refused to have Jan assessed, claiming previous assessments by a private educational team provided the information officials were seeking. The family filed a lawsuit last winter after they and school officials failed to come up with an agreement on how to allow Jan back on the playground.

In his decision, Humphrey wrote that the school department was not unreasonable in its demand for a behavior assessment.

Ronald Coles, a Kennebunk lawyer representing the family, argued that Jan’s behavior on the playground was a symptom of his autism and that the school district had discriminated against him.

Melissa Hewey, a Portland lawyer who represented Falmouth, said the suspension was temporary and that school officials were ready to allow Jan back on the playground after developing a plan to deal with his disruptive behavior.

He concluded that “Jan’s behavior did pose a significant risk to the health and safety of others on the playground, including students, some of whom were disabled with special educational needs, and the adults supervising them.”

Fitzpatrick called the ruling “appalling.” She has said that Jan had gained weight and grown depressed since he was suspended.

“Now he will sit at home all alone,” she said.

Hewey said if the family agrees to a behavior assessment, the school district would work to allow Jan back at a school playground for recess.

“It is our hope that the family will now reassess their position and begin to partner with the school,” she said.

AP-ES-09-01-04 0216EDT

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