It’s Toolbox Tuesday, which means we want to talk about the disciplinary options you have when dealing with students who have disabilities.  The Toolbox is an all day training program, highlighting ten “tools” that you can use to maintain order and safety, while also serving each student appropriately.  Tool #5 addresses the three “special circumstances” that authorize a swift disciplinary removal of the student for up to 45 school days.  One of the three “special circumstances” involves drug offenses.

The specific language in the regulation authorizes school administrators to remove a student who:

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 under the jurisdiction of an SEA [State Educational Agency] or an LEA [Local Educational Agency].  34 CFR 300.530(g)(2).

We notice that there is no mention of alcohol there.  There are plenty of federal laws and regulations that refer to “drugs or alcohol” but this one does not. So if a student has a six-pack of Shiner Bock at the school sponsored baseball game, can the principal invoke “special circumstances”?  We don’t think so.  The principal can certainly impose a disciplinary penalty for this violation of the Code of Conduct.  But “special circumstances”?  Nope.

This is the type of thing we review in detail in the Toolbox training. If interested, send me an email at jwalsh@wabsa.com.

DAWG BONE: SHINER BOCK IS GOOD AT A BASEBALL GAME. BUT IT VIOLATES THE CODE OF CONDUCT.

On Tuesdays here at the Daily Dawg we like to highlight issues and cases that are relevant to The Toolbox. The Toolbox is a full day training program focusing on ten “tools” designed to empower you to serve the kids with the most challenging behaviors.  One behavior that educators encounter frequently is student substance abuse.  What should we be doing when we can see that student use of drugs or alcohol is adversely affecting educational progress?

Obviously there is no one-size fits all answer to that question, but a recent case from Oakland, California provides a good illustration. I’m not going to give a detailed accounting of the facts, Suffice it to say this was a student who was doing poorly in school, and nothing the school was doing seemed to be working very well.  Tardies, unexcused absences, unfinished work, a depressed, withdrawn and dis-engaged student.   On top of all that was the use of drugs and alcohol, which the school was aware of.

When the student was in 9^th grade, the district provided a behavior plan for the student.  Among other things, it called for the student to quit smoking pot.  “However,” the court noted, “again, no mental health services were provided.”  Attendance and engagement with school continued to decline.  Eventually, the parties reached a disagreement over placement for the student and the case went to a due process hearing.

From the court’s opinion, it sounds like the due process hearing focused a lot on the issue of substance abuse. An expert for the school testified that the drug use “must be treated first, outside the special education arena, before the district could assess and address mental health needs.” In other words—the parents have to get the substance abuse under control before we educators can do anything.  The hearing officer found this “unpersuasive” and indicative of an “outdated, compartmentalized approach to treatment.” Thus the hearing officer concluded that the district failed to provide FAPE by failing to assess the student’s need for mental health services, and its failure to provide them.

The court basically affirmed the hearing officer’s view. Key Quotes:

There is no dispute that the District has no legal obligation to provide substance abuse treatment to Student.

The administrative judge was persuaded that the “student’s substance abuse disorder is a function of his co-occurring mental health conditions and both must be treated for Student to be able to function in the school setting. The Court agrees with this conclusion…”

Those two quotes may appear contradictory.   Let’s unpack them a bit.  The court is saying that the district has no duty to fix the substance abuse problem. But neither should it ignore it or wait for it to be dealt with if it is adversely affecting the student in school.

What can be done with kids who abuse drugs or alcohol?  Certainly a BIP can address this.  BIPs are supposed to address behaviors that impede learning of the student or others.  Putting in the BIP that the goal is for the student to avoid drugs and alcohol is a good goal. In the Oakland case, the BIP established a goal that the student would refrain from the use of drugs. That’s a good start, but only a start.  What services will the school offer to help the student achieve that goal? What “positive behavioral interventions, supports and strategies” will the BIP provide?  Would counseling be a good service to provide?  A peer group?

This is one of many issues we discuss in the Toolbox training. If interested in a Toolbox day, just send me an email and we will find a date.  jwalsh@wabsa.com.

DAWG BONE: IF SUBSTANCE ABUSE IS THE BEHAVIOR IMPEDING LEARNING, THE BIP SHOULD ADDRESS IT.

On Tuesdays around here we like to talk about issues relevant to The Toolbox—an all day training program focusing on the kids whose behavior is troublesome.  We talk about 10 tools that are available to schools. One of those—Tool #5—is about the “special circumstances” that authorize a principal to order a removal of the student for up to 45 school days.  There are three circumstances that the law treats as “special.” One of those involves possession of a “weapon.”

So how does the law define that term?  Our IDEA regulations tell us that it has the same meaning as the term “dangerous weapon” in other parts of federal law.  So, we have to look up the definition of “dangerous weapon.”  When we do, we find that a “dangerous weapon” is:

a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2.5 inches in length.

So if a student has possession of a knife with a 3-inch blade, the student has a “dangerous weapon” and is subject to removal for up to 45 school days, regardless of whether the behavior is a manifestation of disability or not.

But slow down.  The law authorizes a removal of up to 45 school days, but it does not require it.  You have to think about how you would treat a non-disabled student who committed the same offense. Many districts would not send that kid to DAEP for nine weeks (45 school days). In fact, my impression is that most districts would impose a penalty shorter than 45 school days.  If that’s how you would treat the non-disabled student, then that’s how you should treat the student with a disability.

This is the kind of thing we review in the Toolbox training. If interested, let me hear from you.  I’m at jwalsh@wabsa.com.

DAWG BONE: IF THE BLADE IS 2.5 INCHES OR LONGER, THEN IT’S A “DANGEROUS WEAPON.”

We can learn a lot from cases that school districts lose. And when that case is from someplace other than the great State of Texas, we don’t mind sharing it with you. So let’s talk about what we can learn about manifestation determination reviews (MDRs) from the mistakes made by Bristol Township School District in Pennsylvania.

Lesson one: Don’t fill out the MDR paperwork before the ARD meeting.  The school official leading the meeting filled out the forms ahead of time, checking the boxes indicating that the behavior was not a manifestation of the student’s ADHD.  She then asked the members of the team, “Does anyone have any concerns with that?  Does anyone have anything they’d like me to add or subtract at this point?”  The court took a dim view of that method:

But ultimately, Dr. Newsham convened the manifestation determination with a prefabricated document that encompassed solely her views and conclusions and then asked if anyone objected.

The court compared this with:

filling in background information gathered ahead of time in order to facilitate meaningful discussion about the appropriate answers to the two crucial questions at the heart of the manifestation determination.”

The court would have been OK with that. But not with boxes checked to answer the crucial questions before the meeting began.  So it you want to get a head start on the paperwork, just fill in name, grade level, date, people participating—but NOT the answers to the ultimate questions.

Lesson two: hold the general education due process hearing before the ARD meeting.  Now, the court did not flat out say that. But the court did fault the school district for conducting the MDR based on a sketchy investigation and a “global” rather than “specific” review of the facts.  The aforementioned Dr. Newsham confirmed that the team took this approach:

To be quite honest, we looked at it more from a global picture. We didn’t [dive] into the specifics. We weren’t looking at what occurred during that specific incident. We were looking at does [the student’s] disability have anything to do with aggressive behaviors?

The court held that the team “could not have meaningfully addressed whether the conduct in question was a manifestation of [the student’s] disability without more information about the incident in question.”

In the Toolbox Training, I recommend that ARD Committees do their MDR only AFTER the campus administrators have conducted a hearing, or held a conference with the student to hear the student’s side of the story and get a more fleshed out picture of the incident.  This case is an illustration of why I give this advice.

Toolbox Training could be coming your way—just ask!  It’s a one-day program to teach the ten “tools” that empower you to serve students appropriately, in the LRE, and safely. Let me know if you are interested.  Reach me at jwalsh@wabsa.com.

The case is Bristol Township School District v. Z.B., decided by the federal court for the Eastern District of Pennsylvania on January 14, 2016.  We found it at 67 IDELR 9.

DAWG BONE: WHEN TESTIFYING UNDER OATH, NEVER BEGIN YOUR ANSWER WITH “TO BE QUITE HONEST….”

What starts in a middle school bathroom might end up in the 5^th Circuit Court of Appeals.  That’s what happened in C.C. v. Hurst-Euless-Bedford ISD.

There was a major disagreement between the parties as to the facts that led to the student being sent to the DAEP.  But in the litigation, the district filed a Motion to Dismiss the case.  Under those circumstances, the court is required to rule on the Motion while assuming that the facts alleged in the suit are true.  We confess that we are a bit reluctant to share those allegations with you, but you Daily Dawg readers are a stout group of educators, so we expect you can handle the next paragraph.

The suit alleges that C.C. took a picture of another kid at the middle school. But it wasn’t just at the middle school—it was in the bathroom. And it wasn’t just in the bathroom--it was while the other kid was in a stall with the door open.  And he wasn’t just in the stall—he was holding up toilet paper smeared with feces.  The other kid laughed and said “Look at this!”  C.C. is apparently the kind of kid who knows a photo op when he sees one.

The word got out about this incident, and the assistant principal conducted an investigation.  He concluded that the student in the stall did not pose for a picture, and in fact, that this was an invasion of privacy and a felony.  According to the suit, the A.P. encouraged the other kid’s father to file criminal charges over the incident, which he did. Those charges were later dismissed, but C.C.’s parents believed that the school was overplaying its hand. In fact, they alleged that this episode was just a part of a school conspiracy to remove their son from the school by blowing up minor incidents into felony charges.

The A.P. convened the ARD Committee to conduct a manifestation determination and to consider an assignment of the boy to DAEP for 60 days.   The ARDC concluded that the picture-taking episode was not a manifestation of the student’s severe ADHD, and thus the DAEP placement was approved.  The parents filed a complaint with The Office of Civil Rights, alleging that they were the victims of retaliation, but the OCR disagreed.

The parents then filed for a special education due process hearing, which was also decided in favor of the district.

Then this lawsuit. By the time it reached the 5^th Circuit there was only one issue left to be resolved: was the district guilty of disability-based discrimination?

The Court of Appeals held that the case should be tossed out.    The court’s brief opinion tells us that “The Plaintiffs did not sufficiently plead discrimination under Section 504.”  While the parents used the word “conspiracy,” they “did not sufficiently plead that this conspiracy was based on CC’s disability.”

We think those of you who are involved in making manifestation determinations involving students with ADHD will find this part of the court’s ruling particularly interesting:

The Plaintiffs’ complaint merely states that his ADHD resulted in CC having difficulty “Executing Functioning, which affects his ability to manage his social environment, make good decisions and communicate in an appropriate manner.” If that conclusory statement were enough to plead discrimination, any plaintiff with ADHD could attribute any misconduct, no matter how severe, to the disability.  In addition, the Plaintiffs’ allegations show that the Defendants did not transfer CC until after the MDR [Manifestation Determination Review] determination, which concluded that CC’s behavior was not a result of his disability.

This case is a good reminder about the basics of MDRs.  The MDR is a procedure designed to make sure that a student is not punished for having a disability.  If behavior of the student has a “direct” and “substantial” relationship to the disability, then that behavior is a manifestation. But the mere fact that a student has a condition that affects his ability to make good decisions doesn’t quite cut it.

We go over cases like this in connection with The Toolbox Training. The Toolbox is an all day program for campus administrators and special education staff.  We review ten “tools” that comply with the law and empower you to serve students appropriately and safely. If interested in a Toolbox program, send me an email at jwalsh@wabsa.com.

The case of C.C. v. Hurst-Euless-Bedford ISD was decided by the 5^th Circuit on March 9, 2016.   We found it at 2016 WL 909418.

DAWG BONE: LET’S KEEP THE DOOR SHUT ON THAT BATHROOM STALL.

The Toolbox is a one day workshop focusing on special education discipline.  We like to highlight the Toolbox on Tuesdays, and today we’re doing it in an unusual way. Let’s talk about a personnel dispute.

Paul Green was a monitor on a special education bus for the Dallas County Schools.  After he was fired, he sued DCS, alleging disability discrimination. The jury agreed with him. When attorneys’ fees were added to the damages awarded by the jury, Mr. Green had a favorable judgment in excess of $500,000.  But all of that got taken away by the appellate court due to the manifestation determination.

Now I know that the readers of EdLawDaily are a particularly sharp bunch of people. Therefore, you have to wonder about the last sentence of the preceding paragraph.  Since when does a “manifestation determination” come up in an employment case?

Well….it doesn’t. But the way this case was decided is a good illustration of how a manifestation determination is supposed to work.

So let us review the embarrassing details of this case.  Mr. Green peed in his pants on the school bus.  He felt it coming on, and begged the driver to stop at a gas station. The driver did not do so, and Mr. Green could not hold it any longer.  No students were on the bus when this happened, but a wheelchair bound student boarded the bus shortly thereafter. Mr. Green assisted the student, securing the wheelchair with straps without touching the student.

The incident was reported to supervisors and both Mr. Green and the driver were disciplined. The driver was suspended without pay for one day. Mr. Green was fired.

Mr. Green had congestive heart failure, for which he took medication. He had informed his supervisors of this.  There were previous incidents when he had a sudden urge to urinate, and bus drivers had accommodated this by making unscheduled stops, without incident.  So Mr. Green’s legal theory was that he urinated on himself due to his disability and/or the meds that he took for it.   DCS argued that neither his disability, nor his meds had anything to do with it. DCS claimed it was all about his handling of the student after the incident without first washing up.

So: do you see that this is a manifestation determination case?  The jury was asked if the urination episode was caused by the disability. The jury said yes. The appellate court answered the same question with a “no.”  In fact, the court said that the evidence in the case was too weak to support the jury’s conclusion.

Three experts—medical doctors--testified in the trial.  Two of them were hired by DCS, and they both testified that neither congestive heart failure, nor the medication that Mr. Green was taking would have caused a sudden loss of bladder control.  Of course Mr. Green had his own medical doctor as an expert witness, but the court deemed that doctor’s testimony “speculative” and “conclusory.”  The court noted that the doctor “could not, and did not say that [the medication] caused or contributed to Green’s incontinence episode.”

In other words: this incident was not “caused by,” nor did it have a “direct and substantial relationship” to Mr. Green’s disability.  Therefore, he was not fired because of his disability. There goes the half a million.

The case of Dallas County Schools v. Green was decided by the Court of Appeals, 5^th District: Dallas, on January 19, 2016.

If you are interested in the Toolbox, let me hear from you at jwalsh@wabsa.com.

DAWG BONE: MANIFESTATION DETERMINATIONS LOOK AT DIRECT CAUSATION.  

The Toolbox is a full day workshop focusing on legally compliant and educationally effective “tools” designed to serve students with disabilities who engage in violent or seriously disruptive behavior.  Tool #3 involves an Educational Change of Placement Without Parental Agreement. This frequently involves moving a student to a more restrictive environment.  The federal court in Austin recently issued a decision in favor of a school district that illustrates the type of situation in which such a move—and Tool #3—are appropriate. Thus we are reminded again that the mainstream is not for every student.

The student in this case was described as having “severe intellectual disabilities and autism.”  One district reported that he would “repeatedly hit his head and bite his hand so severely he caused tissue damage.  He would charge at adults and throw objects at them, sometimes pursuing an individual for over an hour when agitated.”   This district placed the boy in a separate classroom with two adults and no access to his peers.

Then the student moved to Manor ISD, which also placed the student in a highly restrictive environment.  The court tells us that “on at least one occasion [the student] engaged in as many as twenty acts of aggression throughout the day. During this same time period, the staff reported implementing as many as seventeen hug restraints and six ground restraints in one day.”

The parent eventually filed for a due process hearing, alleging a denial of FAPE and a placement that was not in the least restrictive environment. The hearing officer ruled for the school district and now the federal court has upheld that decision.  With regard to the LRE issue, the court noted a psychiatric evaluation showing that the student “was not capable of academic work at any level.”  Moreover: “the record indicates that educating [the student] in a separate classroom removed from similarly situated peers was necessary because his aggressive behaviors threatened others and impeded his own learning.”

This case also addresses other issues that we may take up in future Dawg Bones. But for today, it stands as a good illustration of the propriety of highly restrictive environments for the few students who need this.  In Toolbox training we discuss the two ways to accomplish this: Tool #2 involves a change of placement with parental agreement. Tool #3 is the one to use when the parents do not agree.  This case is Reyes v. Manor ISD, decided by Judge Sam Sparks for the Western District of Texas on February 2, 2016.

If you are interested in Toolbox training, let me hear from you. I’m right here at jwalsh@wabsa.com.

DAWG BONE: LRE FOR MOST; MRE FOR THE FEW.

We like to address special education discipline issues here on Tuesday, thus highlighting The Toolbox. The Toolbox is a full day workshop that provides ten “tools” available to school administrators when dealing with disruptive and/or violent behavior from students with disabilities (SWD).  Today, we’re focusing on Tool #6: a disciplinary change of placement to the DAEP.

Texas law has required alternative education programs for the kids who commit serious offenses since 1995. That year our legislature mandated what were then called “AEPs”—Alternative Education Programs. With the proliferation of other “alternative” campuses it seemed logical to add the D to that designation. Thus we now have Disciplinary Alternative Education Programs—DAEPs.

We have raised the standards for these programs over the past 20 years.  A four-hour program supervised by a teacher’s aide will not suffice.  The Texas Administrative Code lays out detailed standards at 19 T.A.C. 103.1201.  That’s a fairly long regulation and we are not going to repeat the whole thing here. But we think those of you responsible for DAEPs should not only read the regulation. You should study it.

For today, we are just going to highlight one provision in that regulation.  It requires “written contracts between students, parents or guardians, and the DAEP that formalize expectations and establish the students’ individual plans for success.”

Are you doing that?  Notice that this contract for “individual” success is not limited to the students with disabilities.  This is required for each student at the DAEP.  But with the student with a disability, the ARDC should have some voice in the development of these individual plans.  Thus when using Tool #6, the student’s proposed change of placement will come to the ARDC. The ARDC must 1) conduct a manifestation determination; and 2) if the behavior of the student is not a manifestation of disability, make sure that the DAEP can provide appropriate services. Among other things, this should include making sure that the DAEP satisfied state standards.

That’s where the regulations come into play, and the written contract. So take a look at the regulations and be sure you are fully in compliance.  And if you are interested in Toolbox training, shoot me an email at jwalsh@wabsa.com.

DAWG BONE: DON’T SKIMP ON THE DAEP.  MAKE IT A STRONG PROGRAM.

The Toolbox is an all day workshop focusing on the legalities of serving students with disabilities who present challenging behaviors.  Of the ten tools, Tool #2 is one of the least likely to lead to litigation. That’s because Tool #2 is based on an agreement between the parent and the school.  Tool #2 is used when both the school and the parent agree that a change of scenery for the student would be a good thing. So how can there be litigation?

There can be litigation if the parent does not understand the agreement.  That seems to be what happened in Doe v. Todd County School District, 55 IDELR 185 (8^th Cir. 2010).  In this case, the IEP Team changed the student’s placement after a disciplinary incident. The grandmother, acting as the “parent,” agreed to this.  As a result of this agreement, the school cancelled the disciplinary hearing that was pending before the school board.  Why have a disciplinary hearing when the change of placement was agreed to?

But the grandmother soon changed her mind.  At that point, she should have asked for another IEP Team meeting to undo the agreement.  But instead, she sought legal advice, and was told that the school had violated the child’s constitutional rights by cancelling the school board hearing.  Wrong.  There was no constitutional violation and the grandmother did not need to file a federal lawsuit. All she had to do was to ask for another IEP Team meeting.  The court pointed out that the school board had no power here:

Once the IEP team changed Doe’s placement with Dorothy Doe’s consent, the IEP team, not the school board, became the decision-maker authorized to change his placement again.  Given the IDEA’s stay-put mandate, even if the District had held a Goss [disciplinary] hearing at which Doe persuaded the school board that a long-term suspension was not warranted, the board could not have ordered Doe’s reinstatement at [the regular high school].

The district in this case was using what we call Tool #2, but the district failed to obtain the genuine, voluntary, authentic parental agreement that this tool requires.  Thus…litigation. The proper use of Tool #2 is limited to situations where the school has a genuine agreement with the parent. In the Toolbox training, we talk about what it means to have a genuine agreement, and how this should be documented.

If you are interested in Toolbox training, let me hear from you!  Have tools—will travel!

DAWG BONE:  IT’S UP TO THE SCHOOL TO MAKE SURE THAT PARENTS UNDERSTAND ANY AGREEMENTS WE MAKE AT AN ARDC MEETING.

The Toolbox is a one-day training program for campus administrators and special education staff. The Toolbox provides 10 “tools” that school officials can use to serve students with disabilities who present challenging behaviors.  The idea behind the Toolbox is to provide a framework and common vocabulary to help you serve all kids in the LRE while maintaining safety and an environment conducive to learning.

Tool #1 is a BIP—a Behavioral Intervention Plan.  In the Toolbox training we emphasize that Tool #1 is the most important tool.  If it works, you won’t need any of the other nine tools.  That’s because Tool #1 is the only tool designed to improve the student’s behavior.

There are many cases that illustrate the proper and the improper use of a BIP.

*Some courts have pointed out that the law provides no specifics about what a BIP is supposed to look like;

*Some courts have found that the absence of a BIP is no big deal if the school can demonstrate that it addressed the student’s behavior in other ways;

*On the other hand, there are cases that have held that the absence of a BIP is a denial of FAPE to the student.

One of the cases that I think is most illustrative is C.F. v. NYC DOE, 62 IDELR 281 (2^nd Cir. 2014).  As if often true, the case provides us a good “teachable moment” because the court ruled against the district.

The court held that the district denied FAPE due to several things, one of which was an inappropriate BIP.  The district did not conduct a FBA.  The court found that this, by itself, was not a violation of law.  However, the BIP that was developed was “vague” and “failed to match strategies with specific behaviors, instead simply listing behaviors and strategies.”

The 7^th Circuit would likely disagree with this analysis, since it has held that it is impossible to write a BIP that fails to meet substantive standards, since there are none.  Nevertheless, this is a good case for training on behavioral issues.  A list of behaviors and strategies, without matching them up, is common.  This court holds that a proper BIP would match them up—describing the specific strategy to be used for each behavior.

DAWG BONE: A BIP IS DESIGNED TO IMPROVE THE BEHAVIOR THAT IS IMPEDING LEARNING. SO A GOOD BIP SHOULD CALL FOR INTERVENTIONS THAT ARE DESIGNED TO DO THAT.  MATCH ‘EM UP!