Tag Archives: Special Education Discipline

It’s Toolbox Tuesday! What tools can the principal use “unilaterally”?

We like to talk about The Toolbox on Tuesdays. The Toolbox is a one-day training program focused on serving students with disabilities in a safe and appropriate way. We provide ten tools that school officials can use to accomplish two objectives at once: serving each student in the least restrictive environment, while simultaneously maintaining a safe and appropriate climate for all students and staff.

In the Toolbox training we talk quite a bit about the word “unilateral.” The online dictionary tells us that this word can be defined as “done by or on behalf of one side, party or faction only.” The word comes up in Toolbox training because the Supreme Court told us in 1988 that our special education law was designed to “strip schools of the unilateral authority they had traditionally employed” with regard to the exclusion of students with disabilities.

This does not mean that there is nothing that a principal can do “unilaterally.” The “unilateral authority” that the law “stripped” away was the power to order a long term change in the placement called for in the student’s IEP. Principals cannot do that “unilaterally.” Neither can special education directors, your superintendent, your school board, President Obama or the Pope. Only the IEP Team (ARD Committee) can do that.

So what can a principal do “unilaterally”? In the Toolbox Training we identify three tools that can be used without the assistance of others. Tool #5 involves the removal of a student based on the commission of a “special circumstance” offense. These involve drugs, weapons and the infliction of serious bodily injury. The principal can unilaterally order a removal in those cases, although an ARDC meeting is still necessary to make sure that the student will continue to receive appropriate services. The ARDC also makes a manifestation determination in Tool #5 cases, but the outcome of the MDR does not alter the student’s placement.

The principal can also use Tool #7 unilaterally. This tool involves a short term removal from the IEP placement, as long as the total number of days of removal does not exceed the magic number of ten. We call these ten days “the FAPE-Free Zone.”

The third tool that can be used unilaterally is Tool #10—bringing in law enforcement. This is generally a decision that is made administratively and the primary guideline to keep in mind is to be even handed about it. We should call the police based on the nature of the offense, not the identity of the student.

“Unilateral” is just one of many fun words we discuss in the Toolbox training. If you are interested in a Toolbox training in your district or ESC, just give the Ol’ Law Dawg a shout. Have Tools. Will Travel.

DAWG BONE: THERE ARE STILL SOME THINGS YOU CAN DO UNILATERALLY.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: what comes to mind when you think of “Grease”?

For Toolbox Tuesday let’s look at a case involving physical restraint from a state that already has cameras in the classroom.

We like to highlight The Toolbox on Tuesdays around here. The Toolbox is a one day training program aimed at campus administrators and special education staff.  In the Toolbox, we learn how to use the ten “tools” that are available to school administrators in dealing with challenging student behaviors.  We don’t classify physical restraint as one of the ten tools, but it is something that we talk about in the training.  And with the advent of cameras in our special education classrooms this year, we found a recent case from Clark County, Nevada (Las Vegas) very interesting.

It started with a complaint from the parent of a non-verbal student with autism. The student was assigned to what sounds like a self-contained classroom.  This is the type of classroom which, in Texas, would be eligible for a camera next year.  The parent reported that the student had come home from school with multiple bruises.

In response to the parent complaint, the Clark County School District Police Department decided to install hidden surveillance cameras in the classroom. The plan was for a police officer to monitor a live feed from the classroom, beginning on March 5, 2012.  However, the assigned officer called in sick, so nobody watched the video feed that day.

But an officer watched the live feed the next day, and was shocked by what he saw.  A teacher’s aide “repeatedly dragged M.P. [a student] to the ground and pinned him to the floor with her knees and elbows.” At one point the boy crawled under a table “only to be dragged back to the center of the room by his wrist” by the aide.  The video also showed the same aide “without any apparent provocation, repeatedly shove a different student who also was not resisting or being combative.”

After other officers also viewed the video, they contacted the school’s assistant principal and special education facilitator.  The educators confirmed that what the aide was doing did not conform to district policy and procedures regarding restraint.  So the cops arrested the aide.

Now that the aide was removed from the classroom, the police watched additional footage from the classroom. They observed the aide committing three additional batteries of the student, including one that happened two hours after the officer first saw the live feed.  This timeframe became important in the subsequent litigation, as the parents alleged that the district was tardy in  responding to the situation.

The aide eventually pled guilty to two gross misdemeanor charges of child abuse, neglect, or endangerment.  She also was named as a defendant in the civil suit, along with the district and three district police officers.

The court dismissed all claims against the police officers.  The suit against them was based on the theory that they “failed to monitor the live feed on March 5, 2012, or take immediate action to intervene when they witnessed [the aide] aggressively dragging and pinning M.P. on March 6, 2012.”  The court pointed out that these allegations, even if proven true, were not sufficient to impose liability:

…the Officer Defendants cannot be said to have taken any affirmative action to place M.P. in harm’s way.

Instead, Plaintiffs’ evidence shows only a possibility that the Officer Defendants could have more quickly resolved a dangerous situation they played no part in creating.

However, the court did not dismiss the case against the school district.  In large part, this was based on the fact that the teacher’s aide testified that the district had trained her to use physical restraint, and that she completely complied with her training.  The district refuted that assertion, but the conflict in the testimony created a fact issue that precluded the court from issuing an early dismissal of the case:

Plaintiffs have submitted several pieces of evidence, which considered together in the most favorable light, demonstrate that CCSD had a policy of deliberate indifference which facilitated the unwarranted use of force upon students in Classroom 25, including M.P.

Will we see cases like this in Texas, once the cameras start to roll?   Who knows?  Our law prohibits anyone from continually or regularly monitoring the video.  So no police officer or assistant principal should be put in the awkward position of witnessing, live, an act of physical abuse in the classroom.  But how the law is written and how it works in real time are two different things. So we shall see. Meanwhile, our main hope is that there is no physical or emotional abuse taking place in our self-contained classrooms. If it doesn’t happen, it can’t show up on video.

 The case is Phipps v. Clark County School District, decided by the federal district court for Nevada on February 22, 2016.  We found it at 67 IDELR 91.

 DAWG BONE:  MAKE SURE WE ARE USING PHYSICAL RESTRAINT IN ACCORDANCE WITH LAW, REGULATION AND TRAINING.

 File this one under: SPECIAL EDUCATION DISCIPLINE

TOMORROW: THE COURT LABELS IT “STUPID, BUT CONSTITUTIONAL.”

Throwback Thursday! Let’s talk about IDEA and special education discipline

Early in my legal career I frequently told a lame joke:  (some of you may be thinking: nothing has changed!)  The joke goes like this:

How many educators does it take to change a light bulb? And the answer is: One—unless the light bulb has a disability. Then you need an entire Committee.

The point of the joke, of course, was to emphasize that decision making about students with disabilities is not to be made by a single individual, but rather, by the student’s ARD Committee.

This is true with regard to student discipline as well.  The Supreme Court has decided only one case involving the discipline of students with disabilities, so it’s pretty easy to identify our Golden Oldie with regard to special education and discipline: Honig v. Doe.   In that case, the school officials argued that their responsibility for safety was an overriding concern, and thus, when a student was deemed dangerous, they should have the authority to remove that student from school, no questions asked.  The Supreme Court emphatically rejected that argument:

We think it clear, however, that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school.

That’s a quote from the Supreme Court’s opinion, which goes back to 1988.  Notice the word “unilaterally.” The Court pointed out that its decision was not going to leave assistant principals powerless.  There were certain things that still could be done “unilaterally” such as a short term removal of the student. Thus a three-day suspension, for example, was still an option that could be done “unilaterally.”  In fact, later in the same opinion, the Court gave its approval to what we now call The FAPE-Free Zone, meaning the ten cumulative days during a school year when campus administrators can unilaterally remove students with disabilities from the placement called for in the IEP.  Beyond those ten days, “unilateral” action is restricted, even when the student is dangerous.

That was 1988. Since then, Congress has changed the law to add some situations in which you can order a student’s removal unilaterally. These situations are usually referred to as the “special circumstances” offenses of drugs, weapons and the infliction of serious bodily injury.  While the principal can order the immediate removal of a student under these circumstances, she still needs to convene an ARDC meeting as well. The ARDC is required to conduct a manifestation determination and make sure that the student continues to receive an appropriate education.

DAWG BONE: HONIG v. DOE—THE GOLDEN OLDIE FOR SPECIAL EDUCATION DISCIPLINE

File this one under: SPECIAL EDUCATION DISCIPLINE

It’s Toolbox Tuesday! Let’s take a look at a case involving cartoons. Yes—cartoons.

On Tuesdays around here we highlight the Toolbox—a full day training program focusing on disciplinary options in dealing with students with disabilities.  Today: a case from Massachusetts involving a very bright student who showed promise as a cartoonist. The problem in the eyes of the school administrators was that so many of the cartoons depicted violence aimed at the school.

The case ended up in litigation involving several issues.  The parents eventually put the student in a private, sectarian school that did not provide special education services at all.  The parents were quite happy with this placement, and even declared to the school that the student “did not need special education at all.”  This was surprising in light of the fact that the high school student had been receiving special education services since first grade.  Even more surprising, the parents sought tuition reimbursement.  Hmmm. They want to be reimbursed for special education services at a school that did not provide such services and for a student that no longer needed them. Sharp readers (recent surveys show this term applies to 97.1% of Daily Dawg subscribers) will quickly surmise that the parents are not going to succeed with that argument.   And they did not.  The court held that the public school did not have to pay for the private placement.

That part of the case is a routine tuition reimbursement case.  But the parents raised other arguments, and that’s’ what makes this case Dawg-worthy.  The parents alleged that by “seizing” the boy’s notebook against his will to inspect his drawings, the school officials violated the 4th Amendment.  They further alleged that by punishing the student for the content of some of the cartoons, the school officials violated the 1st Amendment guarantee of free speech.

Thus this case begins with a very routine incident in the school—i.e., an administrator tells the student to hand over that notebook that he’s been drawing in at school.  The student does so, reluctantly. The administrator is alarmed by what she sees.  Disciplinary action follows.  Sometime later a lawyer alleges that this was an unconstitutional “seizure” and the school officials should be held personally liable.

The court rejected that argument, applying the familiar notion that searches in the school setting are judged by overall reasonableness. Here, the court held that the school officials acted reasonably. They had a reason to want to see what the student was drawing; they handled the situation without an undue incursion into the student’s privacy.  As far as the 1st Amendment, the court said this:

In light of [the student’s] behavioral history and his essay, the drawings were, to say the least, concerning.  They portray an “epic” battle involving guns against teachers at [the school], where the “final battle” was “win or die.”  It was perfectly reasonable for [the principal] and [special education director] to conclude that [the student’s] drawings, whether they were explicitly shared with another student or not, would cause disruption in the school.

In the Toolbox training, we emphasize that the special protections that students with disabilities enjoy come on top of the due process and other constitutional protections enjoyed by all students. The first step toward taking disciplinary action that comports with the special education laws is to make sure you comply with the general laws, such as the Constitution.  In the case of E.T. v. Bureau of Special Education Appeals, the school officials did just that.  The case was decided by the federal court for Massachusetts on March 11, 2016. We found it at 67 IDELR 118.

If you are interested in Toolbox training, let me know!

DAWG BONE: A ROUTINE INCIDENT IN SCHOOL CAN END UP AS A BATTLE OVER THE CONSTITUTION.

 File this one under: SPECIAL EDUCATION DISCIPLINE

TOMORROW: CAN I GET A WHOLE YEAR OFF AS A “REASONABLE ACCOMMODATION”?

Toolbox Tuesday! I keep seeing the term IAES in the federal law. What is that?

On Tuesdays we like to highlight The Toolbox—a one-day training program focusing on students with disabilities.  In that training, we talk a lot about the term “IAES”—an Interim Alternative Educational Setting.  The feds have put out a Q and A that defines this term:

Question C-1: What constitutes an IAES?

Answer: What constitutes an appropriate IAES will depend on the circumstances of each individual case. An IAES must be selected so as to 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. 

Like most things involving special education the emphasis here is on a case-by-case determination.  Thus the feds tell us that the appropriate IAES “will depend on the circumstances.”  That’s why it’s important that the IAES for a student be selected by the ARDC.  Even when dealing with “special circumstances” where the principal can order a prompt removal to an alternative setting, the ARDC must be the group that selects the setting.

Of course most districts do not have a dozen settings to choose from.  But all districts have at least one setting that should qualify as an appropriate IAES:  the DAEP.  When you break down what an IAES is, it seems that our Texas DAEPs should be able to satisfy the requirements.

*Are they “interim”?  Yes.

*Are they “alternative”?  Yes.

*Are they “educational”?  Yes.

*Do they “enable the child to participate in the general education curriculum”?  Yes.

*Do they enable the child to “progress toward meeting the goals” in the IEP?  Yes.

As a general rule, then, a DAEP that meets state standards for a DAEP, should qualify as an IAES. But remember that this is never an automatic thing.  Members of the ARDC should review the student’s IEP, and particularly the goals and the services.  Will the student be able to make progress toward achieving these goals while in the DAEP?  Can we still deliver the services that the IEP calls for?  The ARDC may need to consider tweaking and/or adjusting DAEP practices. Remember to fit the DAEP to the student, not the other way around.

This is just one of the topics that we cover in depth in the Toolbox Training. If interested, let me hear from you!

DAWG BONE: I-A-E-S IS USUALLY SPELLED D-A-E-P HERE IN TEXAS.

File this one under: SPECIAL EDUCATION DISCIPLINE

TOMORROW: WE ENTER A NEW MONTH WITH FEAR AND TREMBLING

They handcuffed a seven-year old? How did that work out???

It’s Toolbox Tuesday here—the day when we highlight legal issues involving the discipline of students with disabilities.  The Toolbox is an all-day training program that provides ten “tools” designed to simultaneously serve each student appropriately, while maintaining safety and order in the school building. Today, we’re reviewing a case from New Mexico that ended up with a 50-pound, 49 inch 2nd grader handcuffed to a chair.

This episode began when the teacher’s aide contacted the school social worker, seeking help with C.V., a gifted 2nd grader who received special education services due to autism.

The social worker had trouble with the student also, and contacted the assistant principal, who asked that the boy be brought to her office.  On the way to the A.P.’s office, C.V. ran away.

They could not locate the student at first, and so the school reached out to the parents. The mother did not answer several calls. The dad was busy at work and could not come to the school.

The student ran to the nurse’s office and locked himself in the bathroom.  From there, he bolted for the cafeteria.  At this point, the school called in Office Sanchez, its security officer.

Seeing the officer on the way, C.V. ran again. Officer Sanchez called the parents.  Dad was at the airport and could not get to the school for a few hours. But they reached the mother this time, and she said she could be at the school in 30 minutes.  Officer Sanchez then asked the mother for permission to restrain the boy. She said “Yes” but later testified that she thought that this would be a hug or a hold—not steel handcuffs.

Officer Sanchez did not immediately cuff the child.  She led the child to a room and blocked the door.  The boy kicked his legs, swung his arms and pulled power cables out of the wall.  When the social worker approached the student to try to calm him down, he swung the power cord at her.  He kicked the social worker and then Officer Sanchez.  Still no handcuffs.

Then the boy began playing with a rubber band. When he was told to give it to Officer Sanchez, he shot her with it.  They then tussled over the rubber band, and the boy kicked the officer.  Officer Sanchez warned C.V. that this might lead to handcuffs.  The boy ignored this warning, continuing to kick and attempt to get out of his chair.  Officer Sanchez cuffed him to the chair.

This did not calm the boy down. The boy continued to cry, yell and struggle, at one point dragging the chair with him as he tried to kick the officer. Mom arrived and demanded that the cuffs come off. They did. Mom took pictures of the welts and scratches on the boy’s wrists.

The mother withdrew the boy from that school and enrolled him in another school in the same district.  Then the mother sued, claiming that the district violated the Americans with Disabilities Act by discriminating against C.V. based on his disability.

The federal court ruled for the district on this one, and the 10th Circuit affirmed that ruling. The court did not express any opinion about the propriety of using handcuffs on a small child. In fact, the court’s analysis begins with a disclaimer: “Our role is not to opine on whether it was wrong to handcuff C.V.”  Instead, the court focused on whether or not the district had discriminated on the basis of disability.

The court had little trouble concluding that this episode was based on the student’s conduct—not his disability.  After all, the student was out-of-control for almost two hours.  But the parents argued that the conduct was a manifestation of the boy’s disability. What about that?  The court:

Appellants fail to cite any evidence showing his conduct indeed was a manifestation of his disability. Indeed, they cite no authority suggesting a school may not regulate a student’s conduct if that conduct is a manifestation of a disability.

I expect some of you are wondering about that last statement. Can a school “regulate” a student’s conduct if the conduct is a manifestation of disability?  Yes.  The law prohibits a disciplinary change of placement that is based on behavior that is a manifestation. Other forms of “regulation” are not prohibited.  Available forms of “regulation” include short term suspension, short term ISS, and physical restraint.  Of course all of those forms of regulation must be done in compliance with state law. That was not at issue here.

In the Toolbox training we talk about physical restraint, and when it is appropriate to use it under Texas law. If you are interested in Toolbox training, please give me a holler! Or an e-holler!

The case of J.V. v. Albuquerque Public Schools was decided by the 10th Circuit Court of Appeals on February 19, 2016.  We found it at 116 LRP 6184.

DAWG BONE: THERE ARE FORMS OF “REGULATION” OF BEHAVIOR THAT ARE AVAILABLE, EVEN WHEN THE BEHAVIOR IS A MANIFESTATION OF DISABILITY.  

File this one under: SPECIAL EDUCATION DISCIPLINE

TOMORROW: CHALLENGE TO THE SCIENCE CURRICULUM IN DOROTHY AND TOTO LAND.

It’s Toolbox Tuesday! Why is it a bad idea to put “suspension” or “ISS” in a student’s BIP?

We like to celebrate the Toolbox around here on Tuesdays. The Toolbox is an all day training program, outlining 10 “tools” available to school administrators when dealing with disruptive behavior from students with disabilities.

Tool #1—a.k.a. “The Most Important Tool”—is a Behavior Intervention Plan (BIP).  Schools have a lot of discretion as to how to write a BIP.  If you want to put things like ISS and out-of-school suspension in a student’s BIP there is no law to stop you.  So take this as just one Dawg’s opinion. But we think it’s a bad idea to do this. Why? Let’s enumerate.

First, a BIP is supposed to be about POSITIVE behavioral interventions, strategies and supports.  Kicking the kid out of the classroom for a while is not “positive.”  It’s a management tool. There are times when it may be necessary…but it’s still not “positive.”

Second, putting these options into a BIP is inviting an argument with the parent that you don’t need to have.  Remember that the BIP is developed by the ARD Committee. The parent, as a member of the ARDC, may object to the inclusion of these options. What then?  You could say, “Well, sir, we’re going to do it anyway. We just thought we’d ask for your permission.”

Third, putting these options into a BIP is redundant. Your Code of Conduct already includes these short term disciplinary consequences as an option.

Some might point out that it’s important for the parent to understand that ISS and suspensions are possible.  Agreed.  It’s important to be very clear with parents about this point.  But the document that makes that clear is the Code of Conduct—not an individual student’s BIP.  So reference to ISS and suspension should be in the Code of Conduct—not a BIP. What you list in a BIP are the positive behavioral interventions that you think will reduce the likelihood that you will have to enforce the Code of Conduct.

In other words, make sure the parents understand that the student with a BIP remains subject to the Code of Conduct. The BIP is intended to help the student comply with the Code of Conduct.

DAWG BONE: THE BIP IS ALL ABOUT POSITIVE INTERVENTIONS—NOT EXCLUSIONARY DISCIPLINE.

TOMORROW: THE LONG AWAITED SCHOOL FINANCE DECISION

It’s Toolbox Tuesday! Let’s go over the drug offense rules.

On Tuesdays, we like to highlight the Toolbox—a one-day training program designed to equip school administrators with the ten “tools” they can use to maintain a safe campus while serving each student appropriately.  Tool #5 involves “special circumstances.”  Congress has identified three types of offenses that are serious enough that principals are given the authority to order a removal of the student to an “interim alternative educational setting” (IAES) for up to 45 school days. The principal can order the removal, but the ARDC must choose the IAES.  Most of the time, a district’s DAEP will be able to provide appropriate services, and so, it can be designated as the IAES.

But let’s back up a step.  The principal cannot use Tool #5 until it is established that the student has committed one of the three offenses. The shorthand version of the three offenses is: drugs, weapons, and serious bodily injury. But let’s take a closer look at the one about drugs.

The law says that “school personnel” can order the removal of the student:

in cases where a child….(ii) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function….

Let’s focus for a moment on “KNOWINGLY possesses.”  So a student is brought to the assistant principal because a quantity of marijuana was found in the student’s backpack, or locker, or car.  Have you ever encountered the student who responded: “I had no idea! I don’t know how it could have gotten there!”

You may be inclined to blow that off.  Many administrators have told me, “Kids always say that.” Maybe they do. But the statute puts the burden on the school to determine that the student’s possession of drugs was “knowing.” We think the best way to do that is to provide the student the same due process procedures that are afforded to the general education student. Hear the student out. Consider the evidence.  Make a finding based on the evidence that you heard that the student’s possession was “knowing.”  Your conclusion, after hearing both sides of the story and considered the evidence, will carry a lot of weight.

DAWG BONE: YOU HAVE TO READ EVERY WORD IN THE STATUTE.

TOMORROW: SHOULD THE LONGHORNS HAVE FIRED MAJOR APPLEWHITE?

It’s Toolbox Tuesday! Pennsylvania case shows how to use Tool #4.

On Tuesdays around here we like to highlight The Toolbox—a full day training program addressing your options when dealing with students with disabilities who present challenging behaviors.  Tool #4 involves a request for an expedited hearing to seek the removal of a student to an interim setting. We don’t see a lot of Tool #4 cases, but we found one from Pennsylvania that provides a textbook example of how and when this Tool should be used.

The student moved to the Upper Dublin School District in Pennsylvania at the start of this school year.  The student had been in a “neighboring state” in prior school years. The Upper Dublin district had the student’s latest IEP, but not a lot of other records. It implemented the existing IEP as the school year began, and things went just fine….for awhile.

The first major incident was on October 27th, when the student cursed, yelled and elbowed a teacher in the stomach.  Three day suspension.

November 17th--“another behavior incident, involving aggression toward students and staff, incendiary and threatening remarks, profanity, and toppling or attempting to topple furniture.  Six day suspension.

November 19th: the father filed for a due process hearing.

Early December: the district completes its evaluation of the student, rules out autism, but finds he has an emotional disturbance.

December 14: “another behavior incident….profanity, incendiary remarks, and threats to the school…destroyed property and threw objects…attempted to topple the conference room table.”  Five day suspension. That brings the cumulative total to 14 days of suspension—all within one semester of school.  Pennsylvania law requires an IEP Team meeting after 15 cumulative days.

December 22: IEP Team concludes that the student’s behaviors are a manifestation of his disability. No one disagrees.

There was one more incident on December 23rd, the last day before the break. The IEP Team conducted another MDR about this on January 7th and again concluded that the behavior was a manifestation of disability.  The district then began to explore private placements for the student.

January 13: the district recommends placement at its expense in a private school. But the father does not agree.

Let’s summarize: we have a student with a serious emotional disturbance whose behavior has escalated over the course of the year.  District staff report that the student does not de-escalate.  They are worried about someone getting hurt.  They have proposed a change of placement, but the father does not agree to it and thus under “stay put” the student remains where he is.  This fact situation is a prescription for the use of Tool #4—a request by the district for an expedited hearing to move the student to an interim setting for up to 45 school days.

The hearing officer held that the district carried its heavy burden of proof:

On this record, the District has carried its burden of proof that maintaining the student’s current placement is substantially likely to result in injury to the student or others.  This finding is based on the fact that each of the incidents of note (October 27th, November 17th, December 14th and December 23rd) involved contact with another individual, or non-contact aggression directed at another individual, and/or the throwing of objects or violent moving of furniture. The student also voiced threats to self and/or others over the course of these incidents. Finally, the testimony of District witnesses was credible and persuasive that the amplified intensity of the behaviors, and increasing difficulty in de-escalation, from incident to incident was a particularly grave concern.

The hearing officer ordered that the student be placed at the private program the school had recommended for 45 school days, during which time the parties would work toward a more permanent solution.

That’s how Tool #4 works. You want to change the student’s placement, but the parent will not agree. The behaviors of the student are a manifestation of the student’s disability. You are concerned that if things stay as they are, someone is going to get hurt.  There are no “special circumstances” present, so the law does not allow any school official to remove the student unilaterally. But you can seek an order from the hearing officer, as the Upper Dublin district did here.

The case is Upper Dublin School District, decided by a Pennsylvania special education due process hearing officer on February 10, 2016.  We found it at 116 LRP 8837.

DAWG BONE: TOOL #4 IS USED RARELY, BUT IT’S IMPORTANT TO HAVE IN YOUR TOOLBOX.

 

TOMORROW: HEY, IT’S ABOUT TIME TO DECLARE YOUR TOP TEN PERCENT, VALEDICTORIAN AND ALL THAT! CAN THAT LEAD TO LITIGATION???

It’s Toolbox Tuesday! What’s this about “serious bodily injury”?

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!