DEAR DAWG:  I’m new as an assistant principal. Still learning the ropes.  One thing I don’t understand is why special ed kids who commit certain offenses always get 45 days in the DAEP. We don’t handle the general ed students that way. We take each case on its own merits, and may differentiate based on a number of factors. But I’ve been told that if it’s a special ed kid and the offense involves drugs or weapons, they get 45 days.  Period.  Doesn’t make sense to me.  What do you say?  NEW GUY.

DEAR NEW GUY: Doesn’t make sense to me either. Nor is it legal to handle it the way you’ve been told.  Let’s go over Tool #5 again.  There are ten “tools” in the Toolbox.  Tool #5 involves the “special circumstances” offenses—drugs, weapons and the infliction of serious bodily injury.  If a student with a disability commits one of these offenses, you can use Tool #5—assigning the student to an “interim alternative educational setting” for UP TO 45 school days.  Please note: “UP TO.”  You always have to treat each case on its own merits, just as you do for the general ed students.  Also, you have to be sure that you are not imposing a consequence more harsh than your Code of Conduct would permit.  So when using Tool #5, we always recommend that you start by looking at your Code. What would you do if this were a general education student?  Don’t come down any harder on the special education kid. To do so would be a simple case of discrimination. Best of luck, NEW GUY.

Let me know if you are interested in a Toolbox Training. This is an all day program aimed at campus administrators and special education staff. We go over ten “tools” in detail, with a book, some laminated charts, hypotheticals to practice with and plenty of time for Q and A.  It’s all about providing appropriate services to every student, maintaining safety, and complying with the law.

DAWG BONE: EQUAL TREATMENT IS THE LAW, EVEN WHEN THE CIRCUMSTANCES ARE “SPECIAL.”

 File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: can I secretly record my conversation with the principal?

The Toolbox is a full day training program designed to help school officials serve all kids appropriately and safely. The focus is on the students whose behavior is particularly challenging.

One issue we discuss in some detail is the definition of “change of placement.” If the principal wants to remove a student from the classroom in which a student is placed, we have to ask: would that removal be a “change of placement”? Or not?  If it’s a C.O.P., the principal cannot simply order it. We need an ARD meeting where we can conduct an MDR—Manifestation Determination Review.  Principals do not have the legal authority to order a change of placement. They can recommend it to the ARD Committee—but they cannot order it.

On the other hand, if the removal is not a C.O.P., the principal can make it happen.

If the removal is for more than ten consecutive days, it’s ALWAYS a C.O.P.  Thus a removal to the DAEP is almost always going to be a C.O.P.

If the removal is for less than ten consecutive days, it may or may not be a C.O.P. It depends.  Here is where you have to study 34 CFR 300.536 which defines “Change of Placement.”

That’s one of the things we do in the Toolbox Training. We also provide suggested language for your Code of Conduct that might make these decisions a little easier.

Interested in a Toolbox Training? Just let me know.

DAWG BONE:  YOU HAVE TO KNOW WHETHER IT’S A “CHANGE OF PLACEMENT” OR NOT!

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: We have a SCOTUS decision involving Wonder the Service Dog!

I’m off to Amarillo tonight for my annual legal update at Region 16. Get the donuts ready!  For those of you who have never been there, I can assure you that R16 provides outstanding donuts.  I’d rank them #1 among the ESCs in that important category.  Great pizza up there in the Panhandle also. So you can see, I’ll be eating very healthy.

That has nothing to do with the Toolbox, but it’s on my mind. So there.

As to the Toolbox, here’s a reminder: the Toolbox offers ten tools that are available for you to deal with disruptive students appropriately while serving them in the LRE and maintaining a safe campus.  Four of those tools involve a “change of placement.”

In the Toolbox training we divide changes of placement into the “educational” and the “disciplinary.”  You can propose an educational change of placement when the student’s behavior is a manifestation of disability.  There are two tools in the box that are educational changes of placement—Tool #2 is used when you have parent consent; Tool #3 is used when you don’t.

Tool #6 is a disciplinary change of placement. You use that one only when the behavior is not a manifestation of disability.

Then there is Tool #5—a removal due to “special circumstances.” That one should also be characterized as “disciplinary” although it can be used regardless of how the manifestation determination comes out.

Sound interesting?  I hope so. Our firm provides a full day training on the Toolbox, complete with your very own Toolbox book, some nifty laminated charts and a generally informative and enjoyable day.  Let me hear from you if you’re interested.

DAWG BONE: TEN TOOLS. FOUR WAYS TO CHANGE PLACEMENT.

 File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: An ADA case…

The Toolbox is a full day training program that our firm provides focusing on serving students appropriately while maintaining discipline, order and safety.  One of the products that we provide along with the training is a laminated “Thinking Flow Chart.”

I tried to reduce the entire complicated Toolbox matrix to one of those nifty charts that educators love. You know the kind—it always has arrows and different shapes and colors, indicating that “if yes” go here; “if no go here.”  I love those things, and I know that you do too. So I spent about two hours in a conference room at the law firm, writing all over the big white board, trying to put all of this into a single chart.

I could not do it.  So my fallback position was to create a “Thinking Flow Chart.” It’s not as visually pleasing as those discipline charts that Region 4 put out many years ago. It’s all just words. But I do think it has a logical, easy to follow flow.

The Thinking Flow Chart (TFC?) starts out with Preliminary Questions. For example: did the student do something for which we would normally report to law enforcement?  If so, we use Tool #10.  Is this a case involving “Special Circumstances”?  If so, let’s pull Tool #5 out of the Toolbox.

So it’s like that.  Sound cool?  You can have your very own laminated TFC! Just sign up for a Toolbox Workshop!  Call the office to book one, or just send me an email.

DAWG BONE: THINK IN A LINEAR FASHION WITH THE DAWG’S LAMINATED THINKING FLOW CHART! BE THE FIRST ON YOUR BLOCK TO HAVE YOUR OWN!!

 File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: a praying football coach.

We like to highlight The Toolbox around here on Tuesdays. The Toolbox is a one-day training program accompanied by a book and some laminated charts, all focused on serving students appropriately while maintaining discipline and safety.

One of the more challenging situations you will encounter is when a student commits a serious violation of your Code of Conduct, but the behavior is a manifestation of the student’s disability.  What then?

Federal law is actually pretty specific and detailed about this and so we spend quite a bit of time on this in the Toolbox Training. But if you want the shorthand version of what to do, here it is:

DON’T PUNISH IT

DON’T IGNORE IT

That makes sense.  If a student’s behavior is directly attributable to the student’s disability, you would not want to punish it. That would the same as punishing the student for having a disability. We call that disability-based discrimination.

But you can’t ignore inappropriate behavior.  So the thing to do is to call for an ARD meeting and discuss what can be done to teach the student more appropriate behaviors.  That’s what BIPs are all about.

If you are interested in a Toolbox Training, just let me know.

DAWG BONE: THE BEHAVIOR IS A MANIFESTATION OF DISABILITY: DON’T PUNISH IT. DON’T IGNORE IT. 

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Protecting the women?  Or discriminating against transgender people?

The Toolbox is an all day training program highlighting ten “tools” available to school staff when addressing difficult, disruptive or even violent behavior from students with disabilities. One thing we talk about quite a bit is physical restraint.  A recent court case from the District of Columbia serves as a good reminder of how important it is to follow proper protocol when restraint is necessary.

In the case, the court held that the district’s use of physical restraint denied a FAPE (Free Appropriate Public Education) to the student.

Was that because restraint was used too often?  No.

Was it because restraint was used in non-emergency situations?  No.

Was it because the student was physically injured as a result of the restraint?  No.

Was it because of the instructional time the student missed out on when restrained?  No.

It was because the district did not comply with district policy.  The district did not call for an IEP Team meeting after each of the six incidents when restraint was used.  By not calling for that meeting, the district violated D.C. policy. The court held that this had the effect of preventing the parent from engaging in meaningful participation in the child’s education.

Let’s compare the D.C. protocol with ours in Texas.  They are virtually identical with respect to when restraint can be used and how long it is to last.  They are very similar, but not identical, with regard to parental notification:

Notice the key difference—D.C. requires a meeting after each incident, with all of the people who were involved to be present at the meeting.  Texas requires documentation of the incident to be placed in the child’s special education folder so that it can be discussed at the next ARD meeting. But Texas does not require a special meeting, nor does it require the attendance at the meeting of everyone involved in the restraint episode.

My point is not to suggest that one set of regs is better than the others.  The point is to be sure that you comply with whatever your regulations are. As this case shows us, failure to comply with applicable regulations can have serious consequences.

The case is also an important reminder of how controversial physical restraint is.  In the Toolbox training, we discuss the pros and cons of addressing this issue in a student’s BIP, and the importance of being very clear with parents about how, when and why physical restraint might be used.

The case is Beckwith v. District of Columbia, decided by the federal court for the District of Columbia on June 27, 2016. We found it at 68 IDELR 155. The court’s decision is very short, affirming a magistrate’s recommendation that can be found at 116 LRP 40087.

DAWG BONE: IF YOU HAVE TO USE PHYSICAL RESTRAINT, BE SURE TO DOT YOUR I’s AND CROSS YOUR T’s. 

 File this one under: SPECIAL EDUCATION DISCIPLINE

We like to write about the Toolbox on Tuesdays.  The Toolbox is an all-day training program for campus administrators and special education staff, focusing on “tools” that are available to address serious behavior issues presented by students with disabilities.  We talk a lot in the Toolbox training about the importance of evaluation data to support the decisions the school makes.  This includes following up on suggestions in earlier evaluations.

Consider: the District of Columbia evaluated a six-year old boy who was getting into a lot of trouble at school.  The IEP Team meeting was held in January, 2014, and it concluded that the boy did not qualify for special education services.  This was largely based on the district’s evaluation.  However, that evaluation also included this:

If his behaviors increase in frequency and severity, a re-evaluation of his behavior and social-emotional functioning might be warranted.

His behaviors certainly did increase in frequency and severity.  From March to May the district suspended the boy six times and “expelled” him four times.  (We’re not sure what “expulsion” means in D.C.).  On top of that, in March the boy jumped out of a second floor window in an attempt to end his life.  It’s not like the school did not know about this—it happened at school.

But apparently, no one remembered the warning contained in the school’s evaluation. The person who conducted that evaluation later testified that she did not know about the subsequent behavioral issues.  It looks like the staff on the ground knew about the behavioral issues, but forgot about, or ignored, the caution in the boy’s evaluation. Bottom line: the district never followed up. The court held that the district violated its Child Find responsibility.  The district should have heeded the warning in its own evaluation, and taken a fresh look at the student’s eligibility.

The case is Horne v. Potomac Preparatory Public Charter School, decided by the U.S. District Court for the District of Columbia on July 20, 2016. We found it at 68 IDELR 38.

DAWG BONE: WHEN CIRCUMSTANCES CHANGE, IT MIGHT BE WISE TO DO A NEW EVALUATION.

File this one under: SPECIAL EDUCATION DISCIPLINE

In The Toolbox we provide a full day training program outlining ten “tools” available to school personnel when dealing with challenging, disruptive, maybe even violent student behavior. One of the tools—Tool #5—authorizes the principal to order the removal of a student for up to 45 school days to an “interim alternative educational setting” (IAES). But this tool can only be used in “special circumstances.” There are three circumstances the law considers “special.” They are 1) possession or use of a dangerous weapon; 2) possession, use, sale or solicitation of a controlled substance; and 3) the infliction of a serious bodily injury. So when you tell me that a student has brought drugs to school, I start thinking about Tool #5. After due process is provided and the facts have been established, the principal can use Tool #5 to order a removal from the placement called for by the IEP to an IAES. Of course the principal can call in law enforcement also—we call that Tool #10.

But in the Toolbox Training we recommend that the principal should not limit herself to those two tools. Let’s think about Tool #1—the development of a BIP—a Behavior Intervention Plan. Members of each student’s ARD Committee are required to ask themselves at each annual ARD meeting if the student has behaviors that impede learning of the student or others. If the answer is “yes,” then the ARD Committee should proceed to consider what interventions, strategies and supports might be useful in addressing those behaviors. Often this leads to the development of a BIP.

This question must be asked at least once a year at the annual ARD meeting. But we think it should be asked at other times as well. That kid who brought drugs to school…what’s going to happen next? Did you call in law enforcement? Is he going to now have a criminal record? Would you describe the behavior of bringing drugs to school as “impeding” the learning of the student or others? I would.

So why not pull three tools out of the toolbox—Tool #5 for an immediate removal, Tool #10 to bring in law enforcement, and Tool #1 for consideration of how we can prevent this type of behavior in the future.

That’s the kind of thing we talk about in the Toolbox Training. I’m doing a Toolbox Training in Region 6 on December 6, and a few more scheduled in other ESCs for 2017 so far. If interested, let me hear from you.

DAWG BONE: MAYBE IT’S WISE TO CONSIDER A BIP MORE THAN ONCE A YEAR.

File this one under: SPECIAL EDUCATION DISCIPLINE

On Tuesdays we like to highlight the Toolbox—a full day training program focusing on students with disabilities and the options available to educators in addressing disruptive or violent misconduct.  We call it the Toolbox because we provide ten “tools” that administrators can employ. Two of those tools involve an educational “change of placement.”

This is the type of thing that might come up at about this time of year.  Suppose that Rebecca began the year in a general education, mainstream setting.  The ARD Committee was confident that Rebecca’s serious emotional disturbance would not lead to any serious problems in that setting.   There was a teacher’s aide in the classroom, and the inclusion teacher came in regularly to provide support.

But now that we are in mid-October we can see that things are not going as well as expected.  Rebecca has been sent to the office numerous times. The teacher has faithfully implemented the IEP and the BIP, but Rebecca’s behavior is not improving.  The teacher is frustrated and convinced that Rebecca’s behavior is problematic for the entire class.  If a general education student engaged in the same behavior the district would assign the student to the DAEP for a while as a disciplinary consequence. But everyone acknowledges that Rebecca’s behavior is a manifestation of her disability.  What to do?

The Toolbox provides two “tools” that might be appropriate in this situation. We call them both “educational” changes of placement. Tool #2 is an educational change of placement with parental agreement. So if Rebecca’s parents are in agreement with the other members of the ARD Committee that a change of placement is appropriate, the ARD Committee can make that change.  Tool #3 is an educational change of placement without parental agreement.

Would Tool #3 be appropriate in this case?  We don’t have enough information to answer that question. But we know that before the district uses either of these tools, it should first use Tool #1—reviewing and revising the student’s BIP.   The goal is to keep the student in the least restrictive environment—the general education classroom—if at all possible. Are there other supplementary aids and services we can use?  Should we update our evaluation information about Rebecca, possibly conducting a new Functional Behavioral Assessment?    We made Tool #1 the first tool in the Toolbox for a reason. It’s the most important and the most useful of the tools.

I hope that gives you a general idea of how the Toolbox training works.  If interested in this, let me hear from you!

DAWG BONE: DON’T BE TOO QUICK TO CALL FOR A CHANGE OF PLACEMENT.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Another “sex with student” lawsuit.

It’s Toolbox Tuesday!! We like to highlight the Toolbox on Tuesdays—a full day training program focused on the ten “tools” schools can employ to maintain safety and provide appropriate services to the students who sometimes present challenging behaviors.

The last of the ten tools is “calling the cops.”  We know that things happen at school that will sometimes require school administrators to reach out to law enforcement.   Still, we hope that this tool is the one that schools use the least.  Most school discipline problems can, and should, be addressed by teachers and school administrators.

That’s one of the main points made by the Department of Education’s “Dear Colleague” letter on this subject (September 8, 2016).  The letter encourages districts to “incorporate [SROs] responsibly into school learning environments and ensure that they have no role in administering school discipline.” The letter strongly suggests that schools should “eliminate overreliance on SROs in schools” by making sure that teachers and administrators are “well trained to address behavioral issues through a variety of corrective, non-punitive interventions, including restorative justice programs and mental health supports.”

DOE has creates a new resource to assist with this: the Safe School-based Enforcement Through Collaboration, Understanding and Respect (SECURe) Rubrics:    http://www2.ed.gov/policy/gen/guid/school-discipline/files/sro-state-and-local-policy-rubric.pdf

The Dear Colleague Letter can be found here:  http://www2.ed.gov/policy/gen/guid/school-discipline/files/ed-letter-on-sros-in-schools-sept-8-2016.pdf

If you are responsible for the discipline program in your school, it would be well worth your time to peruse these resources.

And if you are interested in Toolbox training, let me know.  I’ve got one coming up in Region 7 on October 11, and another in Region 6 on October 13.

DAWG BONE: LET’S CALL IN THE COPS ONLY WHEN NECESSARY.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: More on cameras in the classroom.