Here at the Daily Dawg we dedicate Tuesdays to the Toolbox--a one day training program for campus administrators and special education personnel. In the training, we review 10 "tools" that educators can use to maintain a safe and orderly campus while appropriately serving kids with challenging behaviors. Tool #5 involves the removal of the student to an alternative setting (usually DAEP) for up 45 school days. This Tool can be used if the student engages in one of the three "special circumstances" offenses set out in the law. Those three involve 1) drugs; 2) weapons; or 3) the infliction of "serious bodily injury. So today, let's review what amounts to a "serious bodily injury."
The key word there is "serious." If the statute had omitted that word, leaving just "bodily injury," principals would be using Tool #5 much more frequently than they do. We think that Congress deliberately limited the power of campus administrators by adding the word "serious." The term actually has a definition, which we will provide below. But if you don't want to plow through all of that verbiage, we can just tell you that minor cuts and scrapes, bumps and bruises don't qualify. In fact, we found two cases that held that a broken nose is not "serious" enough.
One case held that a kick and head butt to the teacher's chest resulted in "extreme physical pain" which was sufficient to make the injury "serious." That hearing officer seemed to rely on the teacher's subjective assessment of the pain as a 10 on the 10-point scale, and "the worst of her life." Really? Methinks she has not endured a root canal, much less, childbirth.
Suffice it to say that if you did not have to call for emergency medical help, you probably don't have a "serious" bodily injury. Here is the official definition:
Bodily injury which involves—
a) a substantial risk of death;
b) extreme physical pain;
c) protracted and obvious disfigurement; or
d) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
DAWG BONE: LET’S HOPE YOU NEVER HAVE TO USE TOOL #5 DUE TO A SERIOUS BODILY INJURY.
ONE MORE THING! The Gallegos of “Walsh Gallegos” is speaking at the LRP National Institute in NOLA today. Elena will elucidate the ins and outs of OSEP letters at 10:15 this morning, while covering student discipline at 1:15. Then the firm will host a client reception at 5:30 at Mulate’s—the Original Cajun Restaurant. Wish I could be there!