It’s Toolbox Tuesday!! Let’s talk about a “shoulda known” kid!

Students who are identified as eligible for your special education program are entitled to some special protections when it comes to disciplinary action.  But there are also some kids who are not in your special education program but are also entitled to those protections. I call them the “shoulda known” kids.

D.D. is one of those kids.  In late September, 2014, D.D.’s guardian met with the principal to discuss some recent “behavioral incidents” involving the 7th grade girl.  In that meeting, the guardian “verbally requested an evaluation for D.D. to determine if he was eligible for special education services under the IDEA.”

That verbal request instantly moved D.D. from the “general education” category to “shoulda known” kid category.  It also triggered the district’s Child Find obligation.

The district did not begin the evaluation process. Instead, it held a “Teacher Assistance Team” meeting and developed a plan to address the girl’s behaviors.  The district did this to comply with the state’s RTI standards.  Apparently, the plan didn’t work very well.  Problems continued, culminating in the girl’s possession of a knife at school in early February. The district suspended her for the rest of the school year, with no educational services provided.

The federal district court made two important rulings based on this fact situation. First, the district violated Child Find requirements, and its reliance on RTI was no excuse:

…while the RTI process can occur before, or in conjunction with an initial evaluation under the IDEA, if a parent makes a request for an initial evaluation of her child for special education services, the RTI process cannot be used to delay, in any way, that evaluation.

Second, the district violated IDEA by suspending the student without providing the procedural protections that special education students are entitled to.  The district argued that it did not have any information indicating that the girl had a qualifying disability. All it had was the guardian’s request for an evaluation.  As the court pointed out, that was enough:

…actual knowledge of a disability is not required under [the relevant section of  IDEA]; the section is satisfied so long as an evaluation of the child has been requested.

D.D. should have been receiving the protections of the IDEA during her suspension.

Thus the district learns a costly lesson.

This is the type of thing we talk about in the Toolbox Training. Our goal is to help you avoid this kind of mistake when dealing with behavioral issues and students with disabilities. Or students who fall into the “shoulda known” category.

This case is Artichoker v. Todd County School District, decided by the federal court for South Dakota on December 29, 2016.   I found it at 69 IDELR 58.



Tomorrow: is discrimination against gays and lesbians a form of sex discrimination?