At our law firm, we frequently get very interesting phone calls on the first day of school.  One year, I got a call shortly after lunchtime.  It seems that a student, new to the district, had urinated on the playground.  He was promptly brought in to the office.  Questioning revealed that the student had just moved to Texas from somewhere in Central America.  He spoke not one bit of English and understood very little.  He was 12 years old, but had never been in a school of any kind.  The sad story was that he urinated on the playground because he did not know there was any other alternative.

So what began as a disciplinary incident quickly morphed into a “child find” matter.   It turns out that the boy’s mother had showed up at school with him that morning, right before classes began.  There was no time to get much information about the student, so the school just assigned him to an age appropriate classroom and figured they would find out more about him later.  The legal question that prompted a phone call to our office was about special programs. Should the boy be referred for a special education evaluation? Should we look into 504 eligibility?  The teachers could already ascertain that he was way behind his classmates.  What to do?

I did not recommend a special education referral.  There was no indication of a disability that would require specially designed instruction.  Did the student have special needs?  Of course. Was he performing well below grade level?  Yes.  But there was no indication that his educational needs were caused by a disability.

For that same reason, I did not recommend a 504 evaluation. Section 504 is not about students who are “at risk,” but rather, about the kids who have a physical or mental impairment that substantially limits them in a major life activity.  We had no evidence of that with this student, no reason to suspect it.

This student is a great example of the kids that I describe as WBFWR—Way Behind For Whatever Reason.  The school should identify the student as “at risk” and an English Language Learner, and should provide whatever special assistance the school can provide to increase the student’s rate of learning. But we have a lot of special assistance besides special education and 504.

I hope nothing that interesting happens on the first day of school in your district, but if it does…give us a call!

DAWG BONE: WBFWR: YOU WON’T FIND THAT TERM IN THE PROFESSIONAL LITERATURE.