Tag Archives: Special Education Discipline

It’s Toolbox Tuesday!!

They will play the Midsummer Classic tonight—the baseball All Star game between the National League and the American. So it’s midsummer. What a great time to think about bringing the Toolbox to your district!

The Toolbox is an all day program focusing on serving appropriately and safely the kids who present particularly challenging behaviors.  (Wow….three adverbs in that sentence.  That’s almost Gingrichesque.  I have to cut back).   

I’ve recently done the Toolbox training at Region 16 and San Felipe Del Rio CISD. Coming up: Athens ISD and Region 6.  How bout getting on the calendar?  The Toolbox is practical, relevant and timely.  Let me know if you are interested.

As for the game tonight: I predict an AL victory, sparked by Carlos Correa’s home run.

DAWG BONE: THE DAWG MIGHT BE WRONG ABOUT THE BALLGAME, BUT HE’S RIGHT ABOUT THE TOOLBOX.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: SCOTUS rules on the controversial name of a rock band.

It’s Toolbox Tuesday!! What about that last-day-of-school prank? Can we bar kids from the graduation ceremony?

In the Toolbox Training we offer a full day on ten “tools” available to school administrators when dealing with students with disabilities who engage in disruptive or violent behavior.  Since we are near the end of another year, and graduation is just around the corner, let’s talk about the inevitable “last day of school” prank pulled off by the senior class.  What leverage, if any, do you have?

It’s customary for schools to warn the seniors that certain types of misconduct may result in losing the privilege of “walking”—participating in the graduation ceremony.  We often refer to  participation in extracurricular activities as a privilege; not a right.  Certainly that statement applies to the graduation ceremony as well. But that “privilege/right” dichotomy may be legally accurate, but it’s professionally naïve.  When grandma has bought a bus ticket to come all the way from Tallahassee to see Bubba “walk” you had better have a good reason for not letting Bubba walk.

Can your rules be applied to the students with disabilities?  Of course they can.  One of the things we emphasize in the Toolbox is that all students—ALL students—are expected to comply with the rules set out in your Code of Conduct.  Of course the law requires you to comply with some specific procedures when you impose the more serious consequences.  Some of the consequences set out in your Code of Conduct—such as a long term assignment to DAEP—would be a “change of placement.” If you seek to do that with a student with a disability, you will need to have an ARD Committee meeting to conduct a manifestation determination.

But barring a student from the graduation ceremony is not a “change of placement.” It’s a loss of a privilege.  Students with disabilities are subject to the loss of privileges under the same conditions as non-disabled students.

However, you need to keep two things in mind.  First, state law mandates that your Code of Conduct must require you to consider the impact of a student’s disability before imposing a suspension on that student.  Specifically, the law requires you to consider if the student’s disability “substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct.” That requirement applies to suspensions and other more serious disciplinary penalties, but we think you would be wise to keep that in mind before barring a student from the graduation ceremony.

Second, ask yourself: does the student have a behavior plan in place? If so, what does it say? Does it have any bearing on your decision?

Here’s hoping all goes well for you on graduation night!

DAWG BONE:  THE CODE OF CONDUCT APPLIES TO ALL, BUT WILL BE ENFORCED CONSISTENT WITH FEDERAL AND STATE LAWS THAT PERTAIN TO STUDENTS WITH DISABILITIES.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Beating up the principal might get a teacher fired!

It’s Toolbox Tuesday!! What’s this about providing “FAPE” after “expulsion”? How can that be?

We highlight The Toolbox on Tuesdays around here. The Toolbox is an all-day program for campus administrators and special education staff. It’s all about the ten “tools” that you can use to appropriately serve students with disabilities who may be seriously disruptive or even violent.

Some of those students will commit offenses that are listed in Chapter 37 as expellable. In fact, some of those offenses are “mandatory expellable” offenses. What does that mean for a student in your special education program?

Three key points:  First, there is no such thing as “expulsion” for such a student in the traditional sense of the word “expulsion.” That word typically denotes a cessation of services of any kind for a significant period of time.  Under federal law, states must make FAPE—Free Appropriate Public Education—available to all children from 3 to 21 “including children with disabilities who have been suspended or expelled from school, as provided for in Section 300.530(d).”  Since federal law overrides state law, this means that there is no “expulsion to the street.”  The student with a disability who commits a mandatory expellable offense must still be served. FAPE must be available.

Second, the ARD Committee is the group that decides exactly how that will happen.  Texas is fortunate in that we already have DAEPs and, in our larger counties, JJAEPs that can normally provide the services that “expelled” students need.  But decisions about exactly where and how a student will continue to receive services must be decided by the ARDC on a case-by-case basis.

Third, the student is entitled to services that “enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.”  Notice that this standard is not exactly the same as “FAPE.”

It’s close, but it’s not precisely the same standard.

These are things we talk about in the Toolbox training?  Interested?  Let me know!

DAWG BONE:  DON’T TAKE “MANDATORY EXPELLABLE” TOO SERIOUSLY.

 File this one under: SPECIAL EDUCATION DISCIPLINE

It’s Toolbox Tuesday! The student had drugs at school. Should we address that in a BIP?

In the Toolbox training, we provide a full day for campus administrators and special education staff, focusing on serving students with disabilities in conformity with the law.  One of the “tools” in the Toolbox involves “special circumstances.”  When you have a “special circumstances” case, the administrator is authorized to order a removal of the student from the IEP placement for up to 45 school days.  We call this Tool #5.  Possession of a controlled substance at school would, indeed, be a “special circumstance.”

But when the principal uses Tool #5 to order a removal, he or she has some other things to do as well. First, you need to have an ARD Committee meeting.  The ARDC will need to determine exactly where and how the student will be served. The law gives the principal the authority to order removal to an “interim alternative educational setting” (IAES) but it leaves to the ARDC the decision of exactly what that IAES will be.

Second, the principal should make sure that the ARDC considers what should be done to prevent a recurrence of this behavior.  The regulations tell us that when the principal orders a “special circumstances” removal, the student must:

Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications that are designed to address the behavior violation so that it does not recur.  34 CFR 300.530(d)(1)(ii).

So don’t use Tool #5 without also picking up Tool #1—the development of a behavior plan, or at least some kind of services designed to address the behavior. The last few words in that regulation are important: “so that it does not recur.”

DAWG BONE: TOOL #5 IS HANDY, BUT SHOULD LEAD TO USE OF OTHER TOOLS AS WELL

 File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Can a sub who was fired after one day on the job file suit? Yes!  America!!

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.

DAWG BONE: THE BIP SHOULD ACCURATELY REFLECT WHAT THE EVALUATION DATA TELLS US.  IF THE PROBLEMATIC BEHAVIOR IS AGGRESSION, MAKE THAT THE “TARGETED BEHAVIOR.”

 File this one under: SPECIAL EDUCATION DISCIPLINE

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

It’s Toolbox Tuesday!! We’ve got guidance from OCR about the use of restraint.

In the Toolbox Training we talk about the use of physical restraint, and how it should only be used in a genuine emergency.  Many of the readers of this blog have been trained on the use of restraint and are familiar with the protocols to be used.  To add to that, we now have a Dear Colleague Letter from the Office for Civil Rights about how the use of restraint may implicate  Section 504.

The DCL includes the usual admonitions to avoid any discriminatory treatment, but also makes the following key points:

1. The need to restrain a student not yet identified under IDEA or 504 may indicate a need to conduct an evaluation.   This is particularly true if restraint is done more than once.

2. Students who demonstrate behavioral challenges may have a disability even if they are performing well academically.

3. For students already identified under IDEA or 504, the use of restraints is an indicator that the current array of services are inadequate. Do something about it.

4. Section 504 does not prohibit the use of restraint. It prohibits the discriminatory use of restraint.

5. Use of restraint or seclusion may amount to a denial of FAPE. This is true even if it is just a single instance, if the event has a “traumatic impact on that student.”

6. Students who have experienced trauma in the past could be more impacted by restraint than others.

We discuss all of these issues in the Toolbox training.  The Toolbox is an all day program that covers a lot of ground, including 10 “tools” that administrators can use to comply with the law and serve students appropriately when they display challenging, disruptive or violent behavior.  Restraint is not one of the 10 tools, but it is something that has to be discussed in this context.

Whether you attend a Toolbox training or not, this DCL is worth your study.   The DCL was issued on December 28, 2016. We found it at 69 IDELR 80.

DAWG BONE: LET’S KEEP THOSE RESTRAINTS TO A MINIMUM.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Denton ISD hires a five-year old????

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.

DAWG BONE: WHEN THE PARENT REQUESTS AN EVALUATION, THE KID IS INSTANTLY A “SHOULDA KNOWN” KID.

File this one under: SPECIAL EDUCATION DISCIPLINE

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

Picky, Picky, Picky

It’s Toolbox Tuesday!!  What better time to talk about how to measure the blade of a knife!

This came up in a case from Pennsylvania after a charter school principal ordered the removal of a student to an alternative setting based on “special circumstances.”  Specifically, the kid had possession of a knife at school.

The principal declared the knife to be a “dangerous weapon” under federal law, thus enabling him to pull Tool #5 out of the Toolbox.  Tool #5 allows for an immediate removal of up to 45 school days, regardless of whether the behavior is a manifestation of disability or not.

But was it a “dangerous” weapon? The parents argued that it was not. The statute tells us that a knife with a blade of less than 2.5 inches is not “dangerous.”   So this case turned on the length of the blade.

That should be pretty simple, right?  You get the knife and a ruler and you lay them side by side.  In this case, the blade measured exactly 2.5 inches.  But that’s if you measure the entire length of the blade, from tip to handle.  The parents argued that you should not include the part of the blade closest to the handle. That part (which I have now learned is called “the tang”) was not capable of cutting anything but soft butter.  If you measured it that way, the blade was 2.25 inches.

What’s a hearing officer to do?  Order both sides to file memos spelling out their positions and citing authority. And believe it or not, both sides found some legal precedent that arguably supported its position.  But the hearing officer thought that the school had the better argument.  The ruling was that a knife blade should be measured from tip to handle, including the parts that actually cut, and the parts that do not.

Interesting stuff, huh?  This is the type of thing we talk about in the all day Toolbox Training. Let me know if you are interested.

The case of Propel Charter Schools was decided by the hearing officer on November 4, 2016. We found it at Special Ed Connection, 116 LRP 48618.

DAWG BONE: YOU MEASURE A KNIFE BLADE FROM TIP TO HANDLE.  THIS MIGHT COME UP AT THANKSGIVING….YOU NEVER KNOW.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: more on SB 179—the bullying/cyberbullying/bullycide bill.

It’s Toolbox Tuesday!! Which “stay put” rule do we apply?

Here’s an interesting hypothetical that could be analyzed via the Toolbox.  A student is in the process of being evaluated for possible special education eligibility.   While that process is going on, the student brings a dangerous weapon to school.  An ARDC meeting is called, even though the student is not yet eligible for special education.  The ARDC concludes that the DAEP would be an appropriate placement for the student. But the parent disagrees with that and asks for a due process hearing. In the hearing request, the parent alleges that the DAEP placement is wrong, and that the behavior of the student is a manifestation of disability. But he also claims that the student should have been made eligible for special education at least one year ago. So you have a hearing that will address disciplinary issues, but also “child find” and the provision of FAPE.

Which “stay put” rule do we use?

In the Toolbox Training we emphasize that there are two “stay puts.”  One of them deals with disputes over placement, child find, the provision of services and other such things.  In those cases you use the traditional “stay put” and so the student stays in the current placement.  The other “stay put” deals with appeals of disciplinary decisions.  In those instances, the student stays in the IAES (Interim Alternative Educational Setting) chosen by the IEP Team (ARDC).  So what do you do when the due process hearing involves both types of issues?

I think Tool #5 provides the answer here.  The Toolbox involves ten “tools” that school officials can use to carry out their legal responsibilities. Tool #5 is a “special circumstance removal” and it’s sort of a trump card.  If the student brings a dangerous weapon to school, the principal can use Tool #5 to remove the student to an IAES for up to 45 school days.  This can be done even if the student’s behavior is a manifestation of disability, as long as the ARDC has concluded that the setting is appropriate for the student.  So I think your hearing officer would likely conclude that the student “stays put” in the IAES—in this case, that’s the DAEP.

Interested in learning more?  I do the Toolbox Training at school districts and ESCs and would love to come your way. So let me know.

DAWG BONE: YES, THERE ARE TWO STAY PUT RULES!

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: you win your lawsuit and recover $1.00?  Really???

It’s Toolbox Tuesday!! Who should attend?

The Toolbox is a full day training program focusing on the law regarding the discipline of students with disabilities.  The law on this subject is pretty complicated with a lot of very specific requirements. However, two main ideas come through loud and clear.  Idea number one is that every school should be safe—free of violence, drugs, weapons, bullying and disruption.  Idea number two is that every student should be served appropriately, continually, and in the least restrictive environment.

In the Toolbox, we offer a framework and a new vocabulary to empower school officials to supervise and guide students and staff so that both of those ideas can come to fruition.

Who should attend? Principals and assistant principals.  Special education directors.  Diagnosticians and LSSPs. Counselors. Behavioral specialists.  In short, the people who are responsible for making sure that your district complies with the law and serves each student properly.

If you are interested in a Toolbox training, send me an email.  We will get you on the calendar.

DAWG BONE: TOOLBOX TRAINING IS DESIGNED TO HELP THE PEOPLE WHO HELP THE KIDS

 File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Fake burping? This is a legal issue??