In a lawsuit involving a Texas school district the parents produced a private psychologist who declared that the student qualified for special education services because she had an emotional disturbance.  Two private counselors agreed with that.  Despite all of that professional input, the student’s ARD Committee decided that she did not qualify for special education services.   The dispute ended up in a due process hearing, and then an appeal to federal court.  Both the hearing officer and the federal judge agreed with the school district—the student was not eligible.

The definition of an “emotional disturbance” in our federal special education law requires that the student demonstrate at least one of five characteristics:

1. An inability to learn that cannot be explained by intellectual, sensory, or health factors;
2. An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
3. Inappropriate types of behavior or feelings under normal circumstances;
4. A general pervasive mood of unhappiness or depression;
5. A tendency to develop physical symptoms or fears associated with personal or school problems.

That’s pretty ambiguous.  What are “inappropriate types of behavior or feelings”?  What are “normal circumstances”? 

Fortunately, there is more to the definition.  The student must demonstrate at least one of these characteristics “over a long period of time and to a marked degree.”  OK—so a little mid-winter slump will not do it.   A short blue period after the breakup with the girlfriend is not sufficient.

On top of that is the part of the definition that ties this into school performance. The student must demonstrate one of the five characteristics, for a long time, to a marked degree “that adversely affects a child’s educational performance.”  34 CFR 300.8(c)(4)(i).

That was the sticking point in this case.  The court did not deny that the student had some emotional issues, but also noted that she:

consistently makes A’s and B’s, maintains friendships, and is liked by her teachers.  Accordingly, her educational performance has not been adversely affected by the characteristics of her emotional disturbance, even the ones allegedly only seen at home.  

This is one of the reasons that eligibility is determined by the entire ARDC—not just a psychologist.  If a student receives psychological help in a private setting, the diagnosis of the student as having an “emotional disturbance” would be done by the psychologist.  But for purposes of eligibility under IDEA, the input of teachers is critical.  If the student is doing well in school, the student does not meet eligibility criteria. 

The case is D.H.H. v. Kirbyville CISD, decided by the U.S. District Court for the Eastern District of Texas on August 27, 2019.  We found the court’s decision at 75 IDELR 4, and the recommendation of the magistrate at 119 LRP 33254.

DAWG BONE: ELIGIBILITY IS DETERMINED BY THE ENTIRE ARDC—NOT A SINGLE INDIVIDUAL.

Tomorrow: You know what tomorrow is, right?