“Thus, an IEP or BIP which does not authorize the recurrent use of time-outs effectively prohibits its use.”
Let that sink in. This is a Key Quote from the 5th Circuit in a case decided two weeks ago. The upshot: you can’t use “time out” on a “recurrent” basis unless the IEP or BIP says that you can.
The student in this case was frequently directed to a “take-desk.” Teachers would do this after redirection and warnings failed to deter the student from inappropriate behavior. The “take-desk” was in the classroom. The boy would be sent there for five or ten minutes, where he would have the opportunity to “pursue replacement behavior, such as drawing.”
The school district argued that this was not “time out.” The desk was in the same classroom—he was not sent elsewhere. Moreover, he could engage in “preferred activities.”
The court cited the very ambiguous definition of “time out” in our Administrative Code and concluded that the district was using “time out,” even though it didn’t call it that. Key Quote:
While the School District is correct the desk was in O.W.s classroom and that O.W. was allowed to partake in preferred activities, nothing in the administrative definition of “time out” suggests the definition is limited to placement in a separate room or is inapplicable when the student is allowed certain activities. Section 89.1052(b) only requires a “separation from other students for a limited period….”
So if the teacher sends the student to a desk, or a comfy beanbag chair that is in the same classroom but physically “separated” from the rest of the class, it’s a “time out.” If this is done “recurrently” it has to be authorized by the IEP or BIP. If it’s done recurrently and not authorized in the IEP or BIP, the district may be guilty of failing to implement the IEP.
That’s what happened according to the 5th Circuit in the case of Spring Branch ISD v. O.W.
This case has important implications. It would be a good idea for principals and special education directors to survey teachers and find out if they are using any techniques, regardless of what the teachers call them, that might be characterized as “time out.” It might also be a good idea to routinely authorize “time out” in IEPs or BIPs, particularly BIPs. If a student needs a behavior plan some short term “separation” from other students might be appropriate. I hear a lot of references to “cooling down” spaces. You might call it cooling down, but the 5th Circuit might call it “time out” and examine the IEP to see if it is authorized.
The case is Spring Branch ISD v. O.W., decided by the 5th Circuit on September 16, 2019. We found it at 2019 WL 4401142.
DAWG BONE: IT WOULD BE NICE TO HAVE A CLEARER DEFINITION OF “SEPARATION.”
Tomorrow: More on the Spring Branch case.