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STEVEN GUGGENHEIM
(pro hac vice pending)
sguggenheim@wsgr.com
ZIWEI XIAO
(pro hac vice pending)
zxiao@wsgr.com
WILSON SONSINI
GOODRICH & ROSATI, P.C.
650 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 493-9300
Facsimile:
(650) 565-5100
RACHEL LANDY
(pro hac vice pending)
rlandy@wsgr.com
WILSON SONSINI
GOODRICH & ROSATI, P.C.
1301 Avenue of the Americas
New York, NY 10019
Telephone: (212) 999-5800
Facsimile:
(212) 999-5899
Attorneys for Amicus Curiae
Society of Indian Psychologists
LAUREN GALLO WHITE
(pro hac vice pending)
lwhite@wsgr.com
WILSON SONSINI
GOODRICH & ROSATI, P.C.
One Market Plaza
San Francisco, California 94105
Telephone: (415) 947-2000
Facsimile:
(415) 947-2099
TERRY GODDARD
(AZ SBN 004557)
terry@goddardlawplc.com
SPENCER SCHARFF
(AZ SBN 028946)
scharff@goddardlawplc.com
GODDARD LAW OFFICE PLC
502 Roosevelt Street
Phoenix, Arizona 85003
Telephone: (602) 258-5521
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Stephen C., a minor, by Frank C., guardian
ad litem, et al.,
Plaintiffs,
v.
Bureau of Indian Education, et al.,
Defendants.
Case NO. 3:17-cv-8004-SPL
BRIEF OF SOCIETY OF INDIAN
PSYCHOLOGISTS AS
AMICUS CURIAE IN SUPPORT OF
PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION TO
DISMISS
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SIP BRIEF AS AMICUS CURIAE ISO PLAINTIFFS
TABLE OF CONTENTS
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TABLE OF AUTHORITIES
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INTRODUCTION
The state of public education provided to Native children is dire. And this reality is
made all the more troubling because Native children “are living in a world far worse than
that of the typical non-[Native] child.” Ryan Seelau, Regaining Control Over the
Children, 37 AM. INDIAN L. REV. 63, 66, 72 (2012-2013).
As a group, Native children suffer one of the highest rates of psychological trauma
in the U.S. Id. This widespread and recurring trauma results in a greater prevalence of
emotional dysfunction and functional impairments, which in turn increases the need for
special accommodations in education. Yet despite this increased need, and despite the
Federal Government’s assumed responsibility for educating members of this historically
marginalized group, the Government has egregiously failed to meet the educational needs
of Native students, including the nine Havasupai children who are the Student Plaintiffs
in this action. The effects of the Government’s failure are independently devastating, and
often perpetuate the population’s preexisting trauma, resulting in troubling and persistent
injuries suffered by the Student Plaintiffs and others like them.
With this case, the Court has an opportunity to hold the Government accountable
for its longstanding failures. Native children embody the legacy and future of U.S. Native
nations. The Court should acknowledge both the unique needs of these children as well as
the very real and long-term effects of their having been deprived of a basic education.
Those who endure ongoing trauma suffer legitimate impairments, and a lack of education
leaves individuals ill-equipped to succeed in the workplace and in the world at large. For
Native children like the Student Plaintiffs to have any hope of overcoming adversity and
thriving, the government must be ordered to right these wrongs. Compensatory and
culturally responsive education, though imperfect, can remedy some of the educational
deprivations suffered by Native students, including the students of Havasupai Elementary
School.
The Society of Indian Psychologists (“SIP”) as amicus therefore urges the Court to
recognize two important facts. First, educational deficits have long-lasting, post-school-
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age consequences. Second, repeated exposure to severe trauma, absent resiliency, impairs
an individual’s ability learn, communicate, and participate in society. SIP therefore joins
Plaintiffs in opposing Defendants’ motion to dismiss the Second Amended Complaint.
INTEREST OF THE AMICUS
Society of Indian Psychologists (“SIP”) is a non-profit organization for Native
American indigenous people. SIP advocates for the mental well-being of Native peoples
by increasing the knowledge and awareness of issues impacting Native mental health.
SIP’s main goal is to come together as Native psychologists who work in support of
professionals, researchers, graduate students, and undergraduate students. As a
community, SIP shares ideas, and disseminates knowledge and new information relevant
to Native People. United by a common core of values, it seeks to be a resource for Native
communities by increasing the knowledge and awareness of issues impacting Native
mental health. As community psychologists, members of SIP look for root causes of
problems in a community and, in turn, for ways to rehabilitate the health of the
community as a whole from the ground up.
The issues in this case are of particular importance to SIP. SIP has a vested interest
in supporting Native American people and in ensuring that Native American people
receive resources that are responsive to their unique needs, and to which they are entitled
by law. SIP also has a vested commitment to improving the mental well-being of Native
people, including by educating the public about the needs of the population and by
identifying and implementing solutions and responses to those needs. Public elementary
schools are a critical community resource for addressing these issues and delivering
appropriate accommodations. The Court’s decision in this case has the potential to
dramatically improve not only the quality of education received by Native students, but
also their mental and emotional stability and, in turn, their ability to grow into thriving
and contributing members of their communities.
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ARGUMENT
I.
THE DEPRIVATION OF ADEQUATE EDUCATION IS DEVASTATING
BUT CAN BE IMPROVED OVER TIME
Defendants contend in their motion to dismiss that five of the Student Plaintiffs
cannot show an impending injury that can be remedied by the Court because they are no
longer students at Havasupai Elementary School. See ECF No. 67 at 4-7. As explained
below, this unfounded argument profoundly misunderstands the ongoing and self-
perpetuating nature of the injuries that result from an educational deficit and overlooks
compensatory education solutions that have been proven to successfully, if partially,
correct these injuries.
A.
Individuals Suffer Ongoing Injuries When Deprived Of An Adequate
Education
[Education] is the very foundation of good citizenship. Today it is a
principal instrument in awakening the child to cultural values, in preparing
him for later professional training, and in helping him to adjust normally to
his environment. In these days, it is doubtful that any child may reasonably
be expected to succeed in life if he is denied the opportunity of an
education.
Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954). Those words are as true today as they
were more than sixty years ago. Indeed, it is elemental that some “degree of education is
necessary to prepare citizens to participate effectively and intelligently in our open
political system if we are to preserve freedom and independence.” Wisconsin v. Yoder,
406 U.S. 205, 221 (1972). As a result, when individuals do not receive the education to
which they are entitled (see 25 U.S.C. § 2000 (promising Native Americans education
that meets their “unique educational and cultural needs”), they have no foundation upon
which to succeed in life.
The advantages of an adequate education are so fundamental that they almost
elude identification and quantification. However, psychologists and social scientists
understand that primary education serves two critical purposes: First, and most
immediately, it teaches academic fundamentals, such as how to read and how to solve
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basic mathematical problems. Second, perhaps less evidently, primary education
engenders an understanding of how one fits into society. It encourages civic participation
and “shape[s] life chances.” Catherine E. Ross & Marieke Van Willigen, Education and
the Subjective Quality of Life, 38 J. HEALTH & SOC. BEHAV. 275, 292 (1997). Students
who receive deficient primary instruction therefore suffer from an education deficit that
leaves them unprepared to contribute to society and compromises their subjective quality
of life.
See
Human Rights Watch,
The Education Deficit, June 2016,
https://tinyurl.com/ycqaj7lg. This deficit, in turn, has seemingly countless lifelong
consequences that persist and compound one another throughout an individual’s life.
Sociologists have identified a number of distinct injuries that are suffered by individuals
without an adequate education:
Low unemployment rates. See Bureau of Labor Statistics: Employment
Projections, https://tinyurl.com/ln9p4pk (last visited Aug. 22, 2017);
Low incomes. Id., see also Eduardo Porter, A Simple Equation: More
Education = More Income, N.Y. TIMES, Sept. 10, 2014, https://tinyurl.com/yc8g3zz4;
High incarceration rates. See, e.g., Caroline Wolf Harlow, U.S. Dep’t of
Justice, Bureau of Justice Statistics Special Report: Education and Correctional
Populations, (Jan. 2003), https://tinyurl.com/kpsgzx4. The majority of prison inmates do
not complete high school. Alliance for Excellent Education, Saving Futures, Saving
Dollars, https://tinyurl.com/kx5sw9k;
High rates of depression and other mental illnesses. Ross & Van Willigen,
supra p. 4, at 286; and
High risk for physical disease. See David M. Cutler & Adriana Lleras-
Muney, Nat’l Bureau of Econ. Research, Education and Health: Evaluating Theories and
Evidence, at 1 (2006), https://tinyurl.com/y8mezbcq (“in 1999, the age adjusted mortality
rate of high school dropouts ages 25 to 64 was more than twice as large as the mortality
rate of those with some college”).
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Of course, these consequences are interrelated. For example, the ability to get a
job depends on one’s education level. Those who fail to complete high school have little
employment opportunity long after they’re school enrollment ends. By 2020, it is
estimated that 86% of jobs will be out of reach to the majority of the Havasupai
population because they lack a high school degree. See SAC ¶ 185; Anthony P.
Carnevale, Nicole Smith & Jeff Strohl, Georgetown Pub. Policy Inst., Recovery: Job
Growth and Economic Requirements Through 2020, https://tinyurl.com/jdzfyx9.
In some cases, an education deficit has employment consequences wholly separate
and apart from employment mobility. For example, without a proper education, an
individual may not even be able to complete an employment application or use the
Internet to search for employment or training opportunities. Moreover, an individual who
has been neglected by his community and an adequate education is more likely to be
conditioned to give up at the first obstacle. Again, these outcomes take hold and endure
long after one has left school.
Lower educational success also correlates with higher rates of crime. See
generally Alliance for Excellent Education, supra p. 4. When a person lacks control or
agency over his life, he is led to riskier behaviors than others and higher risks of
incarceration and exposure to violence. Individuals who attain higher levels of education
are less likely to use crime to achieve a particular means, and each additional year of
school reduces the chance of ending up in jail. Id. This is because: (1) for steady income
earners, the opportunity cost of committing a crime increases, (2) incarceration removes
an individual from the labor market, and (3) education may positively affect an
individual’s patience or risk aversion. Id. Simply put, higher education can help an
individual appreciate the “costs” associated with engaging in criminal activity.
Beyond these disadvantages in education and incarceration, many more are not as
apparent or well understood. For example, educational attainment also is inversely
correlated to levels of distress. Ross & Van Willigen, supra, p. 4, at 290. “Education
correlates positively with [a] sense of control, and the sense of personal control mediates
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a large part of the negative association between education and distress.” Id. at 278.
Distress, or the effects of deprivation, manifests itself as “depression, anxiety, anger,
aches and pains, and malaise.” Id. at 276. These health problems are compounded by
other medical issues that plague low-income communities, where the life expectancy is
shorter than that of the general population and access to health care and health insurance
is limited. Emily B. Zimmerman, Steven H. Woolf, & Amber Haley, U.S. Dep’t of
Health & Human Servs., Understanding the Relationship between Education and Health
(Sept. 2015), https://tinyurl.com/kf8lyuw.
In sum, failing to provide a child with a primary education is like taking a backhoe
and digging a trench through a trees’ roots. The effects of being deprived of a basic
education persist throughout a child’s life. Without any foundation, children have no
hope to grow, much less to thrive.
B.
The Injuries And Effects Of An Education Deficit Are Widespread
Among Native American Children
Native American communities feel the effects of their education deficit
particularly acutely. Lauren Camera, Native American Students Left Behind, U.S. NEWS
& WORLD REPORT, Nov. 6, 2015, https://tinyurl.com/ybmdgwpo. As a group, Native
Americans “attain the lowest level of education of any racial or ethnic group in the
United States,” Center for Native American Youth at the Aspen Institute, Native
American Youth 101, at 6, and are more than twice as likely as Caucasian students to
score at the lowest levels on standardized tests. Angelina E. Castagno & Bryan McKinely
Jones Brayboy, Culturally Responsive Schooling for Indigenous Youth: A Review of the
Literature, Review of Educational Research, at 942 (2009), https://tinyurl.com/ycymvppr.
Drop-out rates among Native children are over 30%. Robert Stillwell & Jennifer Sable,
U.S. Dep’t of Educ., Public School Graduates and Dropouts from the Common Core of
Data: School Year 2009-10 (Jan. 2013), https://tinyurl.com/yb345jpc; see also Exec.
Office of the President, 2014 Native Youth Report, at 5, 15 (Dec. 2014),
https://tinyurl.com/m2v8l2p; Susan C. Faircloth et al., The Dropout/Graduation Crisis
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Among American Indian and Alaska Native Students, at 3 (Jan. 2010), https://tinyurl.com/
yblbvwpc. And their reading levels are well below grade level. Heather J. Chapman,
Factors Affecting Reading Outcomes Across Time in Bureau of Indian Education
Reading First School, Doctoral Dissertation – Utah State University, at 5-6 (2010),
https://tinyurl.com/ybkuvfkg. It is evident that this education deficit has long-lasting
effects on Native communities:
incomes are low, see, e.g., Nat’l Educ. Ass’n, Voices of Native Educators:
Strategies that Support Success of Native High School Students, at 15 (June 2011),
https://tinyurl.com/y9gntfmt; Faircloth et al., supra p. 6, at 4;
unemployment is close to 10%, Bureau of Labor Statistics, Labor Force
Characteristics by Race and Ethnicity, 2015 (Sept. 2016), https://tinyurl.com/jc9tjye;
incarceration rates are high, see, e.g., Lakota People’s Law Project, Natives
Live Matter, at 7 (Feb. 2015), https://tinyurl.com/ycel3zvc; Nat’l Educ. Ass’n, supra, at
15, including within the Havasupai community, see, e.g., Press Release, U.S. Dep’t of
Justice, Supai Man Sentenced to 5 Years in Prison for Robbery (Dec. 13, 2016),
https://tinyurl.com/y7nhcvba; Press Release, U.S. Dep’t of Justice, Supai Village Man
Sentenced to 37 Months for Assaulting Federal Officer (Apr. 14, 2017),
https://tinyurl.com/y82jyrg6; and
health is poor, with death rates nearly 40% more than the general
population, Michelle Sarche & Paul Spicer, Poverty and Health Disparities for American
Indian and Alaska Native Children: Current Knowledge and Future Prospects, 1136
ANNALS N.Y. ACAD. SCI. 126, 128 (2008), and high incidences of chronic diseases.
Indian Health Service: Disparities, https://tinyurl.com/hdxu54m (last visited Aug. 22,
2017). In addition, over 20% of the Native American population lacks health insurance.
U.S. Census Bureau, FFF: American Indian and Alaska Native Heritage Month:
November 2016, (Nov. 2, 2016), https://tinyurl.com/yckktc3f.
The Office of the President of the United States summed up the education deficit
crisis succinctly in 2014:
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Low rates of educational attainment perpetuate a cycle of limited
opportunity for higher education or economic success for American Indians
and Alaska Natives. This crisis has grave consequences for Native nations,
who need an educated citizenry to lead their governments, develop
reservation economies, contribute to the social well-being of Native
communities, and sustain Indian cultures.
Exec. Office of the President, supra p. 6, at 14, 19.
In sum, the effects of the education deficit in the Native community continue to
snowball, leaving tribes without a generation in the pipeline to take over leadership roles.
Thus, contrary to Defendants’ arguments, all of the Student Plaintiffs have shown they
are likely to suffer ongoing and impending injuries as a result of the deficiencies in
education received at the in Havasupai Elementary School.
C.
Compensatory Education Can Remedy The Ongoing Effects Of An
Education Deficient
Defendants are also incorrect in their assertion that compensatory education will
not assist those Student Plaintiffs who are no longer enrolled at Havasupai Elementary
School. See ECF No. 67 at 5-6. Education deficits are frequently remedied with culturally
responsive schooling (“CRS”) compensatory education programs. “Compensatory
education involves discretionary, prospective, injunctive relief crafted by a court to
remedy what might be termed an educational deficit . . . .” G. v. Fort Bragg Dependent
Schs., 343 F.3d 295, 309 (4th Cir. 2003)); see also Parents of Student W. v. Puyallup Sch.
Dist. No. 3, 31 F.3d 1489, 1497 (9th Cir. 1994) (it is a “rare case when compensatory
education is not appropriate”). Relatedly, students benefit from CRS that is responsive to
their communities’ needs and values. Castagno & Brayboy, supra p. 6, at 941, 949. It is
clear why this remedy is often awarded—students perform better when education is
delivered in a culturally tailored manner. Id. at 955.
In contrast, simply sending students to other public schools off the reservation is
unlikely to remedy their collective, historically low levels of success. This is in part
because public schools are unlikely to be staffed with instructors versed in Indigenous
culture and the issues commonly faced by Native American youth outside of the school.
If students understand academia in the context of their own culture, they are more likely
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to perform better. Angela A. A. Willeto, Navajo Culture and Family Influences on
Academic Success: Traditionalism is not a Significant Predictor of Achievement Among
Young Navajos, 38 J. AM.INDIAN EDUC. 1, 4 (1999).
CRS has proven successful in Native American communities. In Chickaloon
Village, elders have initiated a weekend program to teach tribal culture, which is now the
Ya Ne Dah Ah (“Ancient Teachings”) school with a full-time teacher and many
volunteers. At this school, where “culture practices have been revived,” test scores are
higher than state and national averages and students are no longer drop-out risks. Seelau,
supra p.1, at 100-01.
As another example, the Coeur d’Alene tribe is tracking at-risk youth to monitor
them for risk of “drop[ping]-out, suicide and substance abuse.” This program “is
community based, and various organizations come together to collaborate and focus on
tribal youth, sharing data and information. As a result, the tribe reports no drop-outs, no
gangs, and no suicides.” Eric Holder, Jr., Karol Mason & Robert L. Listenbee Jr., U.S.
Dep’t of Justice, Ending Violence so Children Can Thrive, at 102 (2014).
These examples may serve as useful models for designing an effective
compensatory education program for students who have been deprived of a deficient
education. “Education is a key component in improving the life trajectories in Native
youth and ultimately rebuilding strong tribal nations.” Exec. Office of the President,
supra p. 6, at 28. An education that speaks directly to students’ own, shared experiences,
and which understands and addresses students’ values and upbringing, can do much to
remedy the persistent consequences of a deficient education.
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II.
WITHOUT RESILIENCY, EXPOSURE TO TRAUMA RESULTS IN
DISABILITY
Defendants mistakenly argue that exposure to adversity and trauma does not result
in disability. This position disregards well-documented evidence that repeated exposure
to trauma impairs individuals’ ability to perform major life activities where, as here,
individuals have been deprived of adequate education and meaningful community
support, leaving them without the resiliency necessary to recover from severe and
recurring trauma.
A.
Native Children are at a Greater Risk of Exposure to Trauma
Not only do Native children collectively receive a primary education that is
exponentially worse than the education received by their non-Native peers, Native
children also are 2.5 times more likely to experience trauma. Janice L. Cooper, Nat’l Ctr.
for Children in Poverty, Facts About Trauma for Policymakers: Children’s Mental
Health (July 2007), https://tinyurl.com/yagd43t4. The definition of trauma is complex
and multilayered. Generally, trauma is defined as a single event, or a series of events, that
causes moderate to severe stress reaction, often involving injury, threat, death or other
loss. Nat’l Indian Child Welfare Ass’n, Trauma-Informed Care Fact Sheet, at 1 (Apr.
2014), https://tinyurl.com/ycrrey7n. Trauma can be experienced via a unique personal
event, but can also be collective, communal, and generational. Id. Multiple different
forms of trauma have been identified in Native communities through centuries of
exposure to racism, discrimination, violence, and poverty.
In particular, Native communities face higher rates of violence, poverty, and child
neglect. Violence alone accounts for 75 percent of deaths of Native American Indian and
Alaska Native (AI/AN) youth ages twelve to twenty. The prevalence of violence is so
high that service providers and policy makers are advised by the Department of Justice to
assume that all AI/AN children have been exposed to violence. Byron L. Dorgan et al.,
Ending Violence So Children Can Thrive, at
36
(Nov. 2014),
https://tinyurl.com/ya4dm5ur. Compounding this epidemic violence is a 27% poverty rate
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for Native families with children, a rate that doubles the national average, and a family
unemployment rate ranging from 14.4% overall to 35% in some reservation communities.
Sarche & Spicer, supra p. 7, at 127. Both violence and poverty contribute to a high rate
of child neglect and abuse. Native children are more likely to have a parent incarcerated
for violence or to be victims of family violence themselves. Approximately sixteen per
one thousand Native youth have experienced child abuse compared to less than eleven
per one thousand for Caucasian youth. Dorgan et al., supra p. 10, at 38.
Native children also are disproportionally exposed to the current risk factors of
trauma within the larger context of massive historical trauma. Studies have shown that
Native Americans suffer “pervasive and cataclysmic collective, intergenerational massive
group trauma and compounding discrimination, racism, and oppression.” See Maria
Yellow Horse Brave Heart et al., Historical Trauma Among Indigenous Peoples of the
Americas: Concepts, Research, and Clinical Considerations, 43 J. Psychoactive Drugs
282 (2011). The disparate treatment of Native populations by federal and state
governments lingers and harms the generations of Native people. As recognized in 2014
by the Executive Office of the President, “[t]he trauma of shame, fear and anger has
passed from one generation to the next.” Exec. Office of the President, supra p. 6, at 13
(quoting former Assistant-Secretary of Indian Affairs Kevin Gover (Pawnee)). The
unresolved group trauma poses greater risk for further complications and risk for
additional individual trauma, which further explains the dismal statistics relating to
AI/AN well-being. Indian Law & Order Comm’n, Chapter 6: Juvenile Justice: Failing
the Next Generation, A Roadmap for Making America Safer, at 153
(2015), https://tinyurl.com/yafwy2wj. Native children are juggling both traumatic events
on an individual and chronic, historical traumatic experience shared by the community.
Relatedly, because their families and communities often fail to provide the support
children need to develop resiliency and cope with trauma, Native children also are more
vulnerable to suffering the effects that trauma.
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B.
The Impairments That Result From Repeated Exposure to Trauma
Qualify As Disabilities.
Trauma can result in long- and short-term problems, including physical and
emotional health conditions, difficulties with learning, impair relationships, behavioral
and mood-related problems, and poor social and emotional competence. Nat’l Center for
Children in Poverty, Columbia University, Facts About Trauma for Policymakers:
Children’s Mental Health (July 2007), https://tinyurl.com/yagd43t4. Repeated exposure
to severe trauma in many cases will result in both mental impairments that limit life
activities such as “learning, reading, concentrating, thinking, communication, and
working,” as well as physical impairments that affects “major bodily functions,”
including but not limited to functions of the immune system, neurological system, or
brain. 42 U.S.C. §§ 12102(2)(A) & (2)(B). In turn, physiological and psychological
impairments induced by trauma often “substantially limits one or more major life
activities.” Id. § 12102(1)(A).
1.
Trauma Can Induce A Range Of Mental Disorders That Limits
Activities Including Learning, Reading, Communicating, And
Self-Regulating
The current psychiatric diagnostic system does not have an adequate category that
fully captures the possible psychological consequences of severe trauma. Some common
diagnoses in abused or traumatized children include Post-Traumatic Stress Disorder
(PTSD), Depression, Attention Deficit Hyperactivity Disorder (ADHD), Oppositional
Defiant Disorder (ODD), Generalized Anxiety Disorder, Separation Anxiety Disorder,
and Reactive Attachment Disorder. Alexandra Cook et al., Nat’l Child Traumatic Stress
Network Complex Trauma Task Force, Complex Trauma in Children and Adolescents, at
6 (2003), https://tinyurl.com/p2k3gry. Native youth experience Major Depression at a
rate of 14% and PTSD at a rate of 22%—the same rate as veterans served in the latest
wars in Iraq and Afghanistan. Dorgan et al., supra p. 10, at 38; see also Nat’l Indian
Child Welfare Ass’n, supra p. 10. Children with a prolonged trauma history often
struggle with self-regulation and impulse control, because they were unable to seek
security and develop a sense of agency through safe attachment. Claire Gregorowski &
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Soraya Seedat, Addressing Childhood Trauma in a Developmental Context, 25 J. CHILD
& ADOLESC. MENTAL HEALTH 105 (Oct, 2013). Chronically traumatized children lack
the ability to identify or modulate their feelings, and often fail to communicate their
emotional needs. Id. The resulting helplessness leads to excessive clinginess, excessive
anxiety, internally or externally directed aggression and dissociation. Id. Affect
dysregulation therefore renders traumatized children more likely to engage in excessive
risk-taking behavior and even illegal activities. See id. As a result, children who cannot
resolve intense anger or grief resort to alcoholism, substance abuse, violence towards
others and themselves. Brave Heart et al., supra p. 11, at 284. Suicide has become the
second leading cause of death among Native youth, who report a higher suicide rate than
other any population in the U.S. Nat’l Indian Child Welfare Ass’n, supra p. 10, at 2.
In addition, exposure to trauma also hampers reasoning and analytical abilities,
particularly the ability to process cause-and-effect relationships. Sheryl Kataoka et al.,
Violence Exposure and PTSD: The Role of English Language Fluency in Latino Youth,
18 J. CHILD. FAM. STUD. 334, 335 (2009). Traumatic events are often unpredictable and
disordered. Id. Children growing up in an unstable and disordered environment are
deprived of adequate opportunities to appreciate causal relationships, which are the
building blocks of scientific inquiry, narrative forms, and elementary logic. Id. Trauma
is therefore associated with impaired academic performance, decreased IQ and reading
ability, increased schoool absenteeism, and decreased graduation rates. Id.
2.
Traumatized Children Experience Palpable, Physiological Harm
To Their Developing Brain
Impairments that result from trauma can go beyond psychological or emotional
manifestations and become “hard-wired.” Bruce D. Perry & Ronnie Pollard,
Homeostasis, Stress, Trauma, and Adaptation: A Neurodevelopmental View of Childhood
Trauma, 7 CHILD ADOLESC. PSYCHIATRIC CLINICS N. AM. 33, 36 (1998). The human
brain is plastic and adaptable especially at the developing stage, allowing it to learn,
grow, and respond to various stimuli. Id. Traumatic stimuli can induce physiological
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changes to the developing brain and in some sense rewire the neural connections in the
brain. Id.
Trauma is, by definition, an event that “dramatically and negatively disrupts
homeostasis”—that is, the brain’s base equilibrium state. Id. An individual enters into a
“flight or fight” state by engaging a set of nervous system, neuroendocrine, and immune
responses in reaction to stresses or threats, and returns to the state of calm when the threat
passes. Bruce D. Perry, The Child Trauma Acad., Effects of Traumatic Events on
Children, at 3 (2003), https://tinyurl.com/y7a9ulao. Repeated exposure to trauma evokes
the “flight or fight” response over and over again, making the over-activated brain harder
to return to homeostasis. Bruce D. Perry et. al., Childhood Trauma, the Neurobiology of
Adaption, and “Use-Dependent” Development of the Brain: How “State” Becomes
“Traits,” 16 Infant Mental Health J. 271, 279-80 (1995). Such hyperarousal changes a
child’s physical and mental development. Id.; Perry & Pollard, supra p. 13, at 36.
Traumatized children may be overly fearful, vigilant, or tense. Or, by contrast, they may
be too fatigued to respond to stress and develop another extreme state, appearing numb,
detached, or avoidant. Id.
Brain imaging of traumatized brains reveals smaller or abnormal prefrontal cortex
and a less active hippocampus. Victor G. Carrion & Shane S. Wong, Can Traumatic
Stress Alter the Brain? Understanding the Implications of Early Trauma on Brain
Development and Learning, 51 J. ADOLESC. HEALTH S23-S28 (2012). These structures
regulate a range of basic cognitive functions including memory, attention, and decision
making. Id. Children with deficits in their prefrontal cortex may have difficulty
associating stimuli with rewards, which is reflected in a lack of ability to guide their
actions with clear goals. Id. They may also react abnormally to emotional cues and fail to
process trauma therapeutically. Id. Children with an abnormal hippocampus may
process memories abnormally, because hippocampus plays a key role in storing and
retrieving information. Id. Trauma can increase cortisol levels in the hippocampus and
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ultimately cause it to decrease in volume, leading to symptoms such as intrusive
thoughts, nightmares, or selective amnesia. Id.
These neurobiological deficits impinge on nearly all life activities and every aspect
of child development. For example, children living with chronic traumatic stress are less
efficient at processing verbal cues because they are constantly “consumed with a need to
monitor nonverbal cues for threat.” Child Welfare Info. Gateway, U.S. Dep’t of Health &
Human Servs., Children's Bureau, Understanding the Effects of Maltreatment on Brain
Development
8
(2015),
http://www.childwelfare.gov/pubs/issue-briefs/brain-
development. An alarmed, threatened student can rarely achieve “a state of attentive
calm,” and therefore fails to activate portions of her frontal and related cortical areas
necessary for verbal learning. Bruce D. Perry, The Child Trauma Acad., Memories of
Fear: How the Brain Stores and Retrieves Physiologic States, Feelings, Behaviors and
Thoughts from Traumatic Events (1999) [hereinafter Memories of Fear].
When a child’s facility to learn and use language is hampered, the child will be
less capable of understanding complex information or conveying abstract concepts.
Bruce D. Perry, Neurodevelopmental Impact of Violence in Childhood, in Principles and
Practice of Child and Adolescent Forensic Psychiatry 21 (D.H. Schetky and E.P. Benedek
eds., 2002). They will also encounter more barriers in building interpersonal relationships
as they cannot effectively express themselves. Id.; Memories of Fear.
These physiological effects of trauma are well documented and widely understood
among psychologists and social scientists. And they are all too familiar among those who
serve Native American communities in particular. See, e.g., Brave Heart et al., supra p.
11, at 282-90; see also Maria Yellow Horse Brave Heart, The Return to the Sacred Path,
68 SMITH COLLEGE STUDIES IN SOCIAL WORK 287 (1998); William G. Demmert,
Improving Academic Performance Among Native American Students, at 5-7, 42 (Dec.
2001).
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CONCLUSION
The plaintiffs in this case are experiencing a dire emergency that is tragically
familiar among similarly situated Native American communities. In bringing this case,
they have presented the Court with the opportunity and ability to partially remedy
centuries of neglect by the United States government of the children of Havasupai tribe.
SIP urges the Court to recognize both that children exposed to traumatic environments
are impaired in their ability to learn, and that Native children who have been deprived of
an adequate education suffer enduring injury and hardship. The government’s motion to
dismiss should be denied.
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Dated: September 1, 2017
Respectfully submitted,
/s/ Steven Guggeheim
STEVEN GUGGENHEIM (pro hac vice)
sguggenheim@wsgr.com
ZIWEI XIAO (pro hac vice)
zxiao@wsgr.com
WILSON SONSINI
GOODRICH & ROSATI, P.C.
650 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 493-9300
Facsimile:
(650) 565-5100
LAUREN GALLO WHITE (pro hac vice)
lwhite@wsgr.com
WILSON SONSINI
GOODRICH & ROSATI, P.C.
One Market Plaza
San Francisco, California 94105
Telephone: (415) 947-2000
Facsimile:
(415) 947-2099
RACHEL LANDY (pro hac vice)
rlandy@wsgr.com
WILSON SONSINI
GOODRICH & ROSATI, P.C.
1301 Avenue of the Americas
New York, NY 10019
Telephone: (212) 999-5800
Facsimile:
(212) 999-5899
TERRY GODDARD
terry@goddardlawplc.com
SPENCER SCHARFF
scharff@goddardlawplc.com
GODDARD LAW PLC
502 Roosevelt Street
Phoenix, Arizona 85003
Telephone: (602) 258-5521
Facsimile:
Attorneys for Amicus Curiae
Society of Indian Psychologists
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ATTORNEY ATTESTATION
CERTIFICATE OF SERVICE
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