It’s Toolbox Tuesday!! Tell us about a case to illustrate Tool #3.

The Toolbox is a one-day training program that provides a framework, vocabulary and some common sense perspective to help you deal with students with disabilities who engage in challenging behaviors.  Tool #3 is an Educational Change of Placement Without Parental Agreement.  I recently came across a case from Illinois that illustrates how this tool works.

Tool #3 should be used when the school seeks to move a student to a more restrictive environment.  Often, this is the result of behavioral disruptions in the classroom.  Tool #3 is used when the student’s behavior is a manifestation of the student’s disability. If it were not a manifestation, the school might seek a Disciplinary Change of Placement (Tool #6). But if the behaviors are caused by the student’s disability, Tool #3 is the choice.  Of course schools always seek parental agreement when proposing a change of placement. If the parent agrees to a change of placement, then you are using Tool #2.  Tool #3 is for the tougher situation.  When the parents will not agree to the change, the school must be prepared to defend its decision in a due process hearing.

When districts propose moving a student to a more restrictive environment over parental objections, the district has to convince the hearing officer of three things: 1) the current placement is not working; 2) we have really tried; and 3) the student will do better in the more restrictive setting.  In the case from Illinois the district passed all three tests.

*IT’S NOT WORKING.  Jacob’s kindergarten teacher testified that he had regressed in reading. The school social worker noted that Jacob’s physical aggression and non-compliant behaviors were not decreasing as they should.

**WE HAVE REALLY TRIED.  Jacob had an aide, a behavior plan, social work support, and the mainstream placement had been in place for a full year.

***HE WILL DO BETTER IN THE MORE RESTRICTIVE SETTING.  The court relied heavily on the testimony of an independent educational expert who had observed Jacob in the classroom setting over a period of almost three months and written an 11-page report.  She made the case that Jacob needed the kind of services that could only be provided in a more restrictive setting, such as the SELF program (Social Emotional Learning Foundations). Her report noted that the boy should be served “in an environment that can support appropriate relationships, learn to display empathy for others, learn to alter his own behavior to conform to the standards in place, accept responsibility…value another’s point of view, and accept authority.”  In her testimony at the hearing, she stated that “he needed more support systems.  He needed trained staff to be able to address the teachable moments that were occurring throughout his day that could not be done in a GenEd setting.”   The expert said that the SELF program was good for kids with “similar characteristics, the disrespect, the unpredictable behavior, the impulsivity, the lack of remorse, the trouble with social skills.”

The court ruled in favor of the school district on the placement issue.  The case illustrates that it is alright for the school to fail with a student, as long as the school seeks to fix the problem in a timely fashion.  Proposing to move a student out of the mainstream is, in effect, an admission of failure by the school.  Fortunately, the law anticipates that some placements will not work out.  Mistakes will be made.  However, the law does expect school officials to be on top of the situation and to step in with a good Plan B when Plan A is not working.

That’s what is particularly noteworthy about this case.  The independent expert retained by the school did an excellent job of describing exactly what the student needed; why he could not get what he needed in the mainstream setting; and why the school’s proposed placement would be beneficial to the student.  Thus the school made the case that the proposed change of placement was not just about the other kids…it was about Jacob.

The case of Jason O. v. Manhattan School District No. 114 was decided by the U.S. District Court for the Northern District of Illinois on March 29, 2014.  We found it at 67 IDELR 142.

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