The Toolbox is a framework for school administrators to use to comply with IDEA while serving students appropriately and safely.  Last Tuesday we focused on Tool #1—a BIP.  This week we turn our attention to Tool #2—an Educational Change of Placement with Parental Agreement.

The “placement” of the student basically refers to the instructional arrangement.  We hope to serve as many students as possible in the mainstream, general education classroom. But the law anticipates that some students will require a more restrictive placement.  Thus ARD Committees always have the authority to change a child’s placement.   A change of placement can be done the easy way, or the hard way. The easy way is with parental agreement.  If the teachers, administrators and parents are all in agreement that a student would be better served in a different type of classroom, the ARD Committee can make that change, fill out the paperwork and sing Kumbaya.  Easy.

But can this happen after the student has committed a violation of the Code of Conduct?  Can the student be assigned to a disciplinary setting, such as DAEP, that would normally be used as a punitive measure?  Federal law makes it clear that this is perfectly permissible—but the key to it is genuine, authentic, voluntary, knowing, fully informed parental agreement.

The Department of Education issued a set of FAQs about discipline and IDEA in 2009. The very first question addressed this issue:

Q. A-1: When the parent(s) of a child and the school personnel are in agreement about the child’s change of placement after the child has violated a code of student conduct, is it considered to be a removal under the discipline provisions?

A. No, if the parent(s) of a child and the school district agree to a change in the current educational placement of the child.

This scenario came up in an 8th Circuit case: Doe v. Todd County School District, 55 IDELR 185 (8th Cir. 2010).  The court held that the school did not violate the student’s constitutional rights to due process by failing to hold a school board hearing to consider the student’s long term disciplinary penalty. The court noted that the IEP Team (ARD) changed the placement of the student to an interim alternative educational setting, with parental agreement. When the parent later changed her mind about this, she should have requested an IEP Team meeting rather than a hearing before the school board.  The school board was powerless to override the IEP Team’s decision, and so a hearing before the board would have been pointless.  Key Quote:

Once the IEP team changed Doe’s placement with Dorothy Doe’s consent, the IEP team, not the school board, became the decision-maker authorized to change his placement again.  Given the IDEA’s stay-put mandate, even if the District had held a Goss hearing at which Doe persuaded the school board that a long-term suspension was not warranted, the board could not have ordered Doe’s reinstatement at [the regular high school].

Tool #2 is usually employed when parents actively seek out a change to a more restrictive, or even a disciplinary placement. Absent that level of parental support, Tool #2 is risky, as questions can always arise as to whether or not the parent’s agreement was genuine, voluntary and fully informed.

We don’t think a simple check box (“I Agree”) at the end of an ARD meeting is sufficient to verify parental agreement with this kind of change of placement.  If you want to employ Tool #2, it’s best to run it by your school attorney. At Walsh Gallegos, we’d be happy to help you with that.

Next week, Toolbox Tuesday will look at the hard way to change a placement—when the parent disagrees.