It’s Toolbox Tuesday here at Daily Dawg HQ. When I am looking for a case to tell you about on Toolbox Tuesday I look for passages in the court’s opinion like this:
E.C.’s disability manifests itself in aggressive, disruptive, disobedient, offensive, and sometimes violent behavior.
Yep. That’s a Toolbox case! The Toolbox is our firm’s one-day training program designed to help you serve students like E.C. There are three lessons we can learn from this Toolbox case from Kansas.
PHYSICAL RESTRAINT. First, you don’t have to do a manifestation determination prior to using physical restraint. Nor do you have to do one after you use physical restraint. In this case the parents alleged that the district used restraint to deal with behavior that was a manifestation of disability. The parent argued that this amounted to disability discrimination in violation of Section 504 and the ADA. The court refuted that argument, citing 10th Circuit precedent that permits certain types of “regulation” of conduct even when the behavior is a manifestation of disability:
Even though E.C. alleges that all of his actions were “manifestations of his disability,” the 10th Circuit has specifically held that “a student’s conduct may be regulated,” even if it is a “manifestation of his disability.”
This is a fundamental point that is often overlooked. The manifestation process is required only when the school proposes a disciplinary removal that amounts to a change of placement. That’s Tool #6 in the Toolbox. Other forms of regulation of conduct are permitted, even when behavior is a manifestation.
Of course that does not mean that physical restraint is an unimportant event. Every instance of physical restraint is an indication that the student’s behavior plan is not working as well as we would like. The parents should be promptly informed. A record of it should be kept in the student’s file, and the ARD Committee should discuss the situation at the next annual ARD if not before. Our state laws and regulations require all of these common sense steps.
THE LABEL. Another thing we learn from this case is that the disability label is less important than the services provided to the student. That’s hardly news. We have seen many court cases making the same point. But here we have another parent determined to have the autism label on the paperwork. The court held that the label was “immaterial.” The court affirmed the ruling of the hearing officer who heard multiple witnesses testify how the IEP addressed the special needs of the student appropriately. Thus the label attached to the IEP was not important:
E.C.’s IEP contained extensive provisions, including a detailed BIP, and the record shows that the behaviors it sought to address and improve were the same, or substantially the same, as those that witnesses testified are associated with autism.
PARENTAL ERROR. One more lesson, and it’s another familiar one: parents act unwisely when they refuse to allow the school to conduct an evaluation. The court held that the parents were “estopped” from complaining about the lack of an autism label on the IEP because they repeatedly refused to consent to an evaluation requested by the school.
This is the case of E.C. v. USD 385 Andover. There are two reported district court decisions for this case, at 74 IDELR 94 and the more recent at 76 IDELR 212. Both were decided by the federal court for Kansas, the second one on May 27, 2020.
DAWG BONE: “ESTOPPED” IS A GREAT LEGAL WORD, BUT ONE WE RARELY ENCOUNTER IN SPECIAL EDUCATION CASES.
Tomorrow: Ceiling jumps, squat thrusts and burpees at the 5th Circuit