It’s Toolbox Tuesday. Can you tell us about a case that illustrates Tool #2?

The Toolbox is an all day workshop focusing on the legalities of serving students with disabilities who present challenging behaviors.  Of the ten tools, Tool #2 is one of the least likely to lead to litigation. That’s because Tool #2 is based on an agreement between the parent and the school.  Tool #2 is used when both the school and the parent agree that a change of scenery for the student would be a good thing. So how can there be litigation?

There can be litigation if the parent does not understand the agreement.  That seems to be what happened in Doe v. Todd County School District, 55 IDELR 185 (8th Cir. 2010).  In this case, the IEP Team changed the student’s placement after a disciplinary incident. The grandmother, acting as the “parent,” agreed to this.  As a result of this agreement, the school cancelled the disciplinary hearing that was pending before the school board.  Why have a disciplinary hearing when the change of placement was agreed to?

But the grandmother soon changed her mind.  At that point, she should have asked for another IEP Team meeting to undo the agreement.  But instead, she sought legal advice, and was told that the school had violated the child’s constitutional rights by cancelling the school board hearing.  Wrong.  There was no constitutional violation and the grandmother did not need to file a federal lawsuit. All she had to do was to ask for another IEP Team meeting.  The court pointed out that the school board had no power here:

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 [disciplinary] 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].

The district in this case was using what we call Tool #2, but the district failed to obtain the genuine, voluntary, authentic parental agreement that this tool requires.  Thus…litigation. The proper use of Tool #2 is limited to situations where the school has a genuine agreement with the parent. In the Toolbox training, we talk about what it means to have a genuine agreement, and how this should be documented.

If you are interested in Toolbox training, let me hear from you!  Have tools—will travel!