What starts in a middle school bathroom might end up in the 5th Circuit Court of Appeals. That’s what happened in C.C. v. Hurst-Euless-Bedford ISD.
There was a major disagreement between the parties as to the facts that led to the student being sent to the DAEP. But in the litigation, the district filed a Motion to Dismiss the case. Under those circumstances, the court is required to rule on the Motion while assuming that the facts alleged in the suit are true. We confess that we are a bit reluctant to share those allegations with you, but you Daily Dawg readers are a stout group of educators, so we expect you can handle the next paragraph.
The suit alleges that C.C. took a picture of another kid at the middle school. But it wasn’t just at the middle school—it was in the bathroom. And it wasn’t just in the bathroom--it was while the other kid was in a stall with the door open. And he wasn’t just in the stall—he was holding up toilet paper smeared with feces. The other kid laughed and said “Look at this!” C.C. is apparently the kind of kid who knows a photo op when he sees one.
The word got out about this incident, and the assistant principal conducted an investigation. He concluded that the student in the stall did not pose for a picture, and in fact, that this was an invasion of privacy and a felony. According to the suit, the A.P. encouraged the other kid’s father to file criminal charges over the incident, which he did. Those charges were later dismissed, but C.C.’s parents believed that the school was overplaying its hand. In fact, they alleged that this episode was just a part of a school conspiracy to remove their son from the school by blowing up minor incidents into felony charges.
The A.P. convened the ARD Committee to conduct a manifestation determination and to consider an assignment of the boy to DAEP for 60 days. The ARDC concluded that the picture-taking episode was not a manifestation of the student’s severe ADHD, and thus the DAEP placement was approved. The parents filed a complaint with The Office of Civil Rights, alleging that they were the victims of retaliation, but the OCR disagreed.
The parents then filed for a special education due process hearing, which was also decided in favor of the district.
Then this lawsuit. By the time it reached the 5th Circuit there was only one issue left to be resolved: was the district guilty of disability-based discrimination?
The Court of Appeals held that the case should be tossed out. The court’s brief opinion tells us that “The Plaintiffs did not sufficiently plead discrimination under Section 504.” While the parents used the word “conspiracy,” they “did not sufficiently plead that this conspiracy was based on CC’s disability.”
We think those of you who are involved in making manifestation determinations involving students with ADHD will find this part of the court’s ruling particularly interesting:
The Plaintiffs’ complaint merely states that his ADHD resulted in CC having difficulty “Executing Functioning, which affects his ability to manage his social environment, make good decisions and communicate in an appropriate manner.” If that conclusory statement were enough to plead discrimination, any plaintiff with ADHD could attribute any misconduct, no matter how severe, to the disability. In addition, the Plaintiffs’ allegations show that the Defendants did not transfer CC until after the MDR [Manifestation Determination Review] determination, which concluded that CC’s behavior was not a result of his disability.
This case is a good reminder about the basics of MDRs. The MDR is a procedure designed to make sure that a student is not punished for having a disability. If behavior of the student has a “direct” and “substantial” relationship to the disability, then that behavior is a manifestation. But the mere fact that a student has a condition that affects his ability to make good decisions doesn’t quite cut it.
We go over cases like this in connection with The Toolbox Training. The Toolbox is an all day program for campus administrators and special education staff. We review ten “tools” that comply with the law and empower you to serve students appropriately and safely. If interested in a Toolbox program, send me an email at jwalsh@wabsa.com.
The case of C.C. v. Hurst-Euless-Bedford ISD was decided by the 5th Circuit on March 9, 2016. We found it at 2016 WL 909418.
DAWG BONE: LET’S KEEP THE DOOR SHUT ON THAT BATHROOM STALL.