It’s Toolbox Tuesday!! Here’s a case to consider…

The Toolbox is an all-day training program targeting campus administrators along with special education staff. The “tools” in the Toolbox are designed to enable you to serve students with disabilities appropriately and in the least restrictive environment, while simultaneously maintaining a safe campus.

The most important tool in the Toolbox is Tool #1—a Behavior Intervention Plan.  If the BIP works as intended, you can put the Toolbox away. You won’t need the other tools. But as we know, BIPs don’t always work as well as we would like. When the student’s behavior escalates toward violence, litigation is possible.

That’s the background for a case from Crowley ISD that ended up in federal court.  This is a student-on-student sexual harassment case involving 6th graders.  Let’s just call them the Boy and the Girl.

The Girl’s mother filed the suit alleging that the district was deliberately indifferent to clear signs of trouble.  The court’s opinion gives us this background:

At the time of the alleged harassment and assault, [the Boy] had well-known behavioral issues and a long disciplinary record.  He received special education services and had a Behavior Intervention Plan (“BIP”) that was developed by his Admission, Review, and Dismissal Committee (“ARD”). The main behaviors targeted by the BIP were physical and verbal aggression toward others and not staying in his seat or staying on task in the classroom.

Thus the argument was that all of this information put the district on notice that the Boy needed to be watched very carefully. On top of that, there were a few specific incidents that occurred during the 6th grade year when the Boy was disciplined.  Some of these involved his writing of sexually explicit notes.

The specific incident that led to litigation occurred after school one day when intramural volleyball games were going on.  While that was happening, the Boy and the Girl spent about 10 minutes together in the boys’ bathroom.  Video surveillance showed the Boy picking the Girl up and carrying her into that bathroom.  The court does not tell us exactly what happened in the bathroom.

The next day, another girl reported to school administrators that she had seen the Boy and the Girl together in the bathroom.  She also reported that she overheard the Boy claiming that the Girl had performed oral sex and that the Girl confirmed this.  Based on this, the assistant principal suspended the Boy pending an investigation. He also reported the incident to the police, and contacted both sets of parents.

The Girl denied the incident when questioned by the assistant principal, but not when she was questioned by her mother.  In fact, she told her mother that the Boy had forced her to perform oral sex.

The A.P. recommended a change of placement for the Boy to a different school, and the ARD Committee approved it.  He and the Girl were never again in the same school.  As for the Girl, she reported some discomfort at the middle school due to teasing by other students.  Ultimately, her mother requested a transfer to another school in the district, which was granted.

I’m going to write about the Title IX aspect of this case tomorrow. So as not to keep you in suspense, I can tell you that the court granted the school’s Motion for Summary Judgment. The court concluded that no reasonable jury could conclude that the school 1) had sufficient knowledge of the threat to the Girl; or 2) was deliberately indifferent to the situation.

For today, I only want to emphasize what this case tells us about special education and behavior plans.   Notice that the Boy’s BIP targeted “physical and verbal aggression toward others.”  That’s exactly what the lawsuit alleges occurred in that bathroom.  Thus you can see how the lawyer representing the family can argue that the school should have seen it coming.  Let me make just one key point about this.

Don’t ever shy away from accurately describing the targeted behavior based on fears of liability.  Some people might be nervous about openly acknowledging that a student is prone to “physical and verbal aggression toward others” for fear that such an acknowledgement opens the door to liability if the student is later physically aggressive toward others.  In fact, however, the exact opposite is true.  If your evaluation data tells you that the student is aggressive, you should acknowledge this as the targeted behavior.   If you don’t do that, you are much more likely to be seen as “deliberately indifferent.”

The case is Gray v. Crowley ISD, decided by the U.S. District Court for the Northern District of Texas on April 17, 2017.  Kudos to attorneys Bridget Robinson and Jennifer Childress of our firm for excellent work on behalf of the district.



Tomorrow: What the Crowley case tells us about Title IX.