By all accounts, student mental health problems are surging. More than ever teachers are reporting that students are depressed, anxious, sleep deprived, and adversely affected by trauma. That does not mean that all of those students have the kind of “serious emotional disturbance” that IDEA recognizes. A recent case from the 10th Circuit provides a good analysis of this issue.
The Colorado district offered to evaluate D.T. for special education in November 2017, his junior year of high school. Upon completion of that evaluation the IEP Team determined that the student qualified due to a serious emotional disturbance (SED). But the parents sued the district, alleging that all this came too late, that the district failed its Child Find duty by waiting too long before looking into special education
The Colorado hearing officer ruled in favor of the district. The federal district court did so also, and now the 10th Circuit has affirmed that ruling. The case is particularly helpful because it directly addresses the very common situation in which students are having major issues at home, but doing reasonably well at school.
Colorado’s state law addresses this. It requires that an SED label be based on “indicators of social/emotional dysfunction” that “are observable in at least two different settings within the child’s environment. For children who are attending school, one of the environments shall be school.” Moreover, those indicators must not be “isolated incidents or transient, situational responses to stressors in the child’s environment.”
The student had been stressed since his first year of high school after his family moved from Florida and enrolled him in the Colorado school that was much larger. He had trouble connecting with peers that first year, but earned a 3.36 GPA.
In sophomore year the grades dropped down below 3.00, but part of that was because the student refused to drop the Honors English course, as his counselor had recommended. He was still passing his courses, but the outside problems escalated. The mother reported suicidal ideation and the time he jumped in front of a car after a fight with the family. His mother suspected he was using drugs.
Junior year: in September the student was hospitalized for a week after leaving home late at night after another argument with the parents. In October the mother requested a 504 plan. More arguments at home. Drug use confirmed. Many meetings with the school psychologist and other staff members.
On November 10 another student reported that D.T. had threatened to “shoot up the school.” This led to a second brief hospitalization, disciplinary action, and an evaluation for an IEP that concluded that he did have an SED requiring special education. After the winter break the student transferred to another school district where he graduated a year later.
To recap: there were numerous indicators of a mental health problem, and the school was aware of them. Nevertheless, the school did not refer the student for an IDEA evaluation until he threatened to “shoot up the school.” The parents argued that this was too late, but the court did not see it that way. The court’s rationale was based on four factors. First, the absence of problems in the school setting:
Until D.T.’s shooting threat, in-school manifestation of his emotional dysfunction was scant. The incidents he uses to illustrate that the District violated its child find duty predominantly stem from at-home conduct.
Despite these difficulties at home, the District reported no substantial behavioral issues during school, and he continued to engage in his studies.
Second, the signs of trouble were not “pervasive”:
Although this court takes seriously the toll depression and anxiety take on students’ learning, we do not construe mere declining grades and social difficulty as the kind of pervasive disability IDEA contemplates for an SED determination.
Third, the district had reason to believe that its general education response was working:
The District went to great lengths to ensure D.T.’s access to FAPE upon becoming aware of his struggles with mental health. When faced with acute mental health concerns, the school conducted a risk assessment and a robust re-entry plan with individualized supports. The school also consistently offered D.T. additional counseling and customized academic help. For those additional academic supports in which he participated, the school observed progress.
…the school had no reason to suspect its general education supports were insufficient.
Fourth, there were other reasons that explained D.T.’s problems:
…his episodes of emotional distress were strongly connected with familial disputes outside the school environment. Further, the record demonstrates he struggled with moving from Florida to Colorado and settling into an unfamiliar learning environment. D.T. also took a rigorous course load against his counselor’s advice, and he performed better when it was pared back. Lastly, he began engaging in regular drug use during his sophomore and junior years. These circumstances illustrate repeated situational responses to negative occurrences in D.T.’s life.
We’ve been writing a lot in the Daily Dawg about Child Find. This case is important because it shows that the particular elements of the disability that is “suspected” should be analyzed when determining whether or not to make a referral. Those factors the court relied on are pulled directly from the very definition of an SED. Let’s keep that in mind.
It’s D.T. v. Cherry Creek School District No. 5, decided by the 10th Circuit on December 10, 2022. It can be found at 55 F.4th 1268.
DAWG BONE: WHAT DISABILITY DO WE SUSPECT? WHAT ARE THE ELEMENTS OF THAT DISABILITY?
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Tomorrow: a new vocabulary word….