We like to talk about special ed here on Tuesdays, specifically “The Toolbox.” But before we get into that, let me point out that the law firm is holding an audioconference next week that will be of particular interest to special education staff. On January 13, Nona Mathews and Gigi Maez from our Irving office will conduct an audioconference on “IEEs: What Criteria Can You Have?” This is an issue that Nona and Gigi are particularly experienced with, so I encourage you to sign up for this timely and informative session at www.walshgallegos.com.

The Toolbox is a set of ten tools designed for campus administrators and special education staff for those cases where student behavior is particularly challenging.   To kick off the first Toolbox Tuesday of the year, let’s look back at history, particularly with regard to Tool #10—bringing in law enforcement.

In the early days of our special education laws, some parents argued that schools could no longer contact the police to deal with disruptive behavior from a special education student. The argument was that the police would detain the student, effectively creating a “change of placement.” Thus some early cases asserted that schools could not do this without first holding an IEP Team meeting (ARD) and conducting a manifestation determination.

It might surprise you to know that this argument found favor with one high level court.  In Morgan v. Chris L., 106 F.3d 401 (6^th Cir. 1997), the 6^th Circuit held that the initiation of juvenile court proceedings was equivalent to seeking a “change of placement” and thus required compliance with the special education law’s procedures, such as an IEP Team meeting.

Congress apparently did not like that outcome, so it changed the law to make it clear that IDEA does not prohibit schools from contacting law enforcement, or initiating juvenile proceedings.  Despite the clarity of that language, some lawyers kept making arguments based on the Morgan case.  For example, consider Valentino v. School District of Philadelphia, 2003 WL 177210 (E.D. Pa. 2003).

What happened here is that the student was arrested at school after a confrontation with a teacher. The parents were not notified of the arrest until 5pm, and the student was detained for 21 hours. The student alleged that the school violated IDEA’s “stay put” provision.  The court ruled in favor of the school.  Key Quotes:

Plaintiff argues that this provision [stay put] prevents any “aversive techniques,” such as arrest, from being used to remove a special education student from his current educational setting. Such a strained conclusion would have the illogical effect of removing all special education students from the reach of law enforcement for any illegal actions taken at school.  This argument cannot be sustained under the language of the statute itself, and accordingly, Plaintiff can prove no set of facts to support this theory.

The court allowed the plaintiff to amend the complaint to spell out the alleged IDEA violations in more detail. The plaintiffs this time raised the issue of a manifestation determination, arguing that the school should have completed this process prior to calling the police.  In 2004, the court rejected this argument:

In light of the above, the Court now concludes that reporting a child with a disability to the appropriate authorities pursuant to [IDEA] does not constitute a change in educational placement and that the provision does not require an administrative hearing before reporting a disabled child to the police.

Note: the “administrative hearing” referred to is a manifestation determination. Thus the court held that calling the police does not trigger a manifestation determination, nor does it amount to a “change of placement” that would invoke the stay put rule.  The second decision is Valentino v. School District of Philadelphia, 2004 WL 225038 (E.D. Pa. 2004).

DAWG BONE: YOU CAN CALL THE COPS. BUT MAKE SURE YOU ARE EVEN-HANDED ABOUT IT.

The Toolbox is a training program designed to help campus administrators and special education staff to deal effectively with serious misconduct by students with disabilities. In the Toolbox, we offer a framework and a common vocabulary, focusing on 10 specific “tools” that are available under the law.

A manifestation determination review (MDR) is not one of the 10 tools. However, several of the tools involve the use of an MDR. The law requires ARD Committees to conduct an MDR when a disciplinary change of placement has been proposed.  The specific language in the regs calls for an MDR “Within 10 school days of any decision to CHANGE THE PLACEMENT of a child with a disability BECAUSE OF A VIOLATION OF A CODE OF STUDENT CONDUCT.”  34 CFR 300.530(e)(1), emphasis added. Notice that you are required to do an MDR when 1) the student has violated the Code of Conduct and 2) a change of placement is called for.

Tool #6 in our Toolbox is a disciplinary change of placement, and would definitely require an MDR. But as a recent case illustrates, not every change of placement that is prompted by behavioral issues is a “disciplinary” change of placement. In a special education hearing officer’s decision from Colorado, the hearing officer concluded that the district improperly changed a student’s placement by failing to hold an IEP Team meeting, and failing to provide the parents with “prior written notice.”  So this case comes under our “Don’t Try This at Home” category.

But the parents in the case also accused the district of violating the law by not conducting an MDR. On that issue, the hearing officer ruled in favor of the school.  The change in placement was not based on a violation of the student code of conduct, and was not a disciplinary removal.  It was based on safety concerns after three incidents in a short period of time that raised concerns about self harm, or harm to others. The district conducted a “building level threat assessment” and on that basis, moved the student to a different setting for about six weeks.  As mentioned above, this was a “change of placement” and should have been authorized by the IEP Team.  But the failure to conduct an MDR was not a legal violation.

The case is Jefferson County District R-1, decided by the Colorado Department of Education hearing officer on May 28, 2015.  We found it at 66 IDELR 148.

I will continue to do Toolbox trainings in 2016, several of which are already booked. If you are interested in bringing the Toolbox to your district or ESC, please contact at jwalsh@wabsa.com, or Haley Armitage at harmitage@wabsa.com.

DAWG BONE: WE DO A MANIFESATATION DETERMINATION WHEN A CHANGE OF PLACEMENT IS CALLED FOR DUE TO A VIOLATION OF THE CODE OF CONDUCT

The Toolbox is a day-long training session focusing on the disciplinary options schools have when  dealing with students with disabilities. We usually begin the training with an explanation of the one and only case about this issue that has reached the U. S. Supreme Court. The case is Honig v. Doe (1988).  In that case, the Supreme Court noted that Congress had intentionally “stripped” school officials of the “unilateral” authority they had historically employed to exclude students with disabilities from the school setting.  

It’s important to emphasize the word “unilateral.” While school principals no longer have “unilateral” power to remove students with disabilities from the school setting, they are not at all powerless.  In fact, that’s one of the main themes of the Toolbox—to emphasize what “tools” are available and how they can be used properly.

Long term removals of students with disabilities have to go through the ARD process, and are subject to review by a special education hearing officer. Thus no single school official can “unilaterally” remove a student from the school setting on a long term basis.  But campus administrators retain the “unilateral” power to order short term removals, as long as they don’t accumulate to more than 10 days in the school year.  A short term removal within that 10-day window is what we call “Tool #7” in the Toolbox vocabulary—the FAPE-Free Zone.

Principals can also use Tool #10 “unilaterally.” Tool #10 is a referral to law enforcement in those cases where a student may have committed a crime.

Tool #5 comes close to being a tool that can be used “unilaterally.” Tool #5 enables the principal to order a removal of the student to an “interim alternative educational setting” (IAES) for up to 45 school days in cases involving “special circumstances.”  Those circumstances involve either drugs, or a weapon, or the infliction of “serious bodily injury.”  The principal can order this removal regardless of the outcome of the manifestation determination.  So this is close to unilateral authority, but it still requires the ARDC to determine what “IAES” should be used.  So Tool #5 is not quite as simple (or “unilateral”) as Tool #7 or #10.

Does this sound interesting?  Helpful??  Maybe you should book a Toolbox workshop in your district or ESC.  If interested, contact me (jwalsh@wabsa.com) or Haley Armitage (harmitage@wabsa.com).

DAWG BONE: PRINCIPALS STILL HAVE SOME UNILATERAL POWER—JUST NOT AS MUCH AS IN DAYS OF YORE.

The Toolbox provides school administrators with ten practical “tools” they can use when dealing with students with disabilities who may be particularly disruptive or violent.  The law requires schools to serve all of the kids—including those whose behaviors are challenging.   Moreover, each student should be served in the environment that is “least restrictive” for that student.  At the same time, school officials must maintain safety for all students and staff. It’s tough to fulfill all of these responsibilities at the same time. That’s what the Toolbox is about.

Your Code of Conduct is not one of the ten tools, but it provides an important framework.  The Code of Conduct lays out the expectations that apply to ALL students. The Code of Conduct puts students, and their parents, on notice of the type of behavior that is prohibited, and the consequences that may follow from violating the Code.

All students are subject to the Code of Conduct, including those with disabilities.  There are still some educators, and parents, who seem to think that if a student has an individualized behavior intervention plan (BIP), the student is then no longer expected to comply with the Code. I hear this expressed sometimes: “Oh, he’s not under the Code of Conduct. He has a BIP.”

That’s faulty thinking. A BIP is not a personalized Code of Conduct. A BIP is a tool (Tool #1 in our Toolbox!) that identifies problematic behaviors and then provides for supports, interventions and strategies designed to address those behaviors. The goal of a BIP is to improve the student’s behavior.  So a BIP is about what the school will do FOR a student.  The Code of Conduct tells us what the school will do TO the student.

Students with disabilities have legal protection to ensure that they are not punished for having a disability.  A disciplinary change of placement cannot be based on behavior that is a manifestation of disability. And even with short term consequences, such as a few days in ISS, the campus behavior coordinator is required to consider the impact of a student’s disability on the student’s behavior. So the legal protection is already in place.

We should make sure that students with disabilities understand that they are expected to comply with the Code of Conduct. This is a high expectation, especially for kids whose disabilities directly impact behavior.  But the law requires schools to have high expectations for all kids in all areas--both academic achievement and behavioral progress.

DAWG BONE: THE CODE OF CONDUCT APPLIES TO ALL STUDENTS. NO EXCEPTIONS.

The Toolbox is a set of “tools” available to school officials in dealing with disruptive and/or violent students with disabilities.  On previous Tuesdays, we have reviewed each of the 10 tools. Today, we focus on “change of placement.”

It’s important for school officials to know when the removal of a student from the placement called for by the IEP counts as a “change of placement.” If the district seeks a change of placement, an ARD meeting is necessary.  School administrators can order the short term removal of a special education student, such as a day or two or three in ISS or out of school suspension.  But if a removal meets the definition of a “change of placement” then an ARD meeting is needed. Moreover, if the change is due to the student’s violation of a provision in the Code of Conduct, a manifestation determination must be conducted.

Federal regulations include a definition of the term “change of placement.”

[A change of placement occurs if]:

The removal is for more than 10 consecutive school days; or

The child has been subjected to a series of removals that constitute a pattern—

(1) because the series of removals total more than 10 school days in a school year;

(2) because the child’s behavior, is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and

(3) because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.  34 CFR 300.536.

Many people think that it is always a change of placement if the student is removed for more than ten cumulative days in a school year.  But notice the regulation does not say that.  If it was always a change of placement when you get past ten days, the regulations would simply say so, and there would be no reason to distinguish between ten consecutive days vs. ten cumulative days.  The regulations would simply say that a change of placement occurs whenever the student is removed for disciplinary reasons for more than 10 school days.

Notice that the regulations do not say that.  They say that it is a “change of placement” only if the series of removals “constitute a pattern.”  They then define “pattern.”  Exceeding ten days is only one-third of the definition of “pattern.”  You also have to have “substantially similar” behavior and some combination of length of each removal, total days and proximity.  Removal of the student for 15 days in a semester, for example, would be much more serious than removal for 15 days spread out over the entire school year.

It’s up to the school officials to decide whether or not a particular removal is a change of placement.   The regulations say: “(1) The public agency determines on a case-by-case basis whether a pattern of removals constitutes a change of placement.  (2) This determination is subject to review through due process and judicial proceedings.”  34 C.F.R. 300.536(b).

We take this to mean that a school official should apply the definition of “change of placement” on a case-by-case basis, and the parent who disagrees with the decision can request a hearing.

In the Toolbox training, we go into this issue in depth, including the opportunity to practice deciding what is and is not a “pattern.”  If you are interested in a Toolbox training, contact me at the law firm, or our excellent client services manager, Haley Armitage (aharmitage@wabsa.com).

DAWG BONE: IT’S UP TO SCHOOL OFFICIALS TO DECIDE IF THERE IS A “PATTERN” THAT CREATES A “CHANGE OF PLACEMENT.”

The Toolbox is a set of 10 “tools” available to school administrators in dealing with disruptive or violent students with disabilities.  We have discussed each of these tools over the past 10 Tuesdays. Today, our topic is “stay put.”

There are actually two “stay put” rules—the traditional one for non-disciplinary changes, and a special one for disciplinary changes.  The traditional “stay put” rule is at 34 CFR 300.518:

Except as provided in Section 300.533, during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under Section 300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.

So if the school proposes that a student should be moved from the regular, mainstream classroom into a life skills unit, and the parent challenges that decision, this traditional “stay put” rule would come into play.  During the due process hearing, the student would remain in the regular, mainstream classroom.

But notice that the traditional “stay put” rule begins with a reference to its exception, Section 300.533, which is the disciplinary removal “stay put” rule.  Here is what it says:

When an appeal under Section 300.532 has been made by either the parent or the LEA, the child must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period specified in Section 300.530(c) or (g), whichever occurs first, unless the parent and the SEA or LEA agree otherwise.

An appeal “under Section 300.532” is an appeal of a disciplinary decision. So when the school calls for a disciplinary change of placement, and the parent disagrees with the school’s decision, the student does not “stay put” in the “current educational placement.”  The student “stays put” in the IAES (interim alternative educational setting).  The IAES is selected by the ARDC.  If the parent disagrees with the selection of the IAES, the parent can obtain an “expedited” hearing, but in the meantime, the student “stays put” in the IAES.  In Texas, we usually spell “IAES” as D.A.E.P.

Congress created the second “stay put” rule, and did it on purpose.  No doubt, this was in response to concerns from school administrators that the traditional “stay put” rule, when applied to a disciplinary situation, created the appearance of a dual disciplinary system.  Thus, Congress added the second “stay put” rule—the one that applies in disciplinary situations.

DAWG BONE: YES, THERE ARE TWO—COUNT ‘EM—TWO “STAY PUT” RULES!

The Toolbox is designed to help school administrators comply with our special education laws, while maintaining a safe and orderly environment for all students.   This week we focus on Tool #8: a short term removal that goes beyond the FAPE Free Zone.

School administrators can unilaterally remove a student from the classroom in which the IEP places the student for disciplinary reasons, but only for a cumulative total of ten school days in the year. This is what we call the FAPE Free Zone (Tool #7, discussed last Tuesday).   Life gets complicated after that.  However, school administrators retain the authority to order short term removals of a student even after the FAPE Free Zone is exhausted, provided that they do it in the right way.

If a principal orders a disciplinary removal after 10 days of removal, she must consider whether or not the cumulative action amounts to a “change of placement”; and 2) provide any necessary services, after consultation with one of the child’s teachers.  Thus there is a change in the school’s legal duty once you get past the FFZ.

Here is a quote from the regulations that authorizes short term removals by a school administrator even after your 10 days have been exhausted:

School personnel under this section may remove a child with a disability who violates a code of student conduct from his or her current placement to an interim alternative educational setting, another setting, or suspension, for not more than 10 consecutive school days (to the extent those alternatives are applied to children without disabilities, AND FOR ADDITIONAL REMOVALS OF NOT MORE THAN 10 CONSECUTIVE SCHOOL DAYS IN THAT SAME SCHOOL YEAR FOR SEPARATE INCIDENTS OF MISCONDUCT (AS LONG AS THOSE REMOVALS DO NOT CONSTITUTE A CHANGE OF PLACEMENT UNDER 300.536).  34 CFR 300.530(b)(1).

Notice four things about this federal regulation:

1. It authorizes “school personnel” to do this—not the IEP Team (ARD).  The term “school personnel” refers to the campus administrator.

2. The first part of the regulation is describing the FAPE Free Zone, Tool #7.

3. The second part, which we put in BOLD CAPS, is where we find Tool #8.  Notice that it speaks of “additional” removals due to a “separate” incident of misconduct within the same school year.

4. Your use of this tool is contingent on it not being a change of placement.

Here’s where Tool #8 is most commonly used: a student commits an offense that calls for long term removal to the DAEP.  This would definitely be a change of placement, and thus an ARDC meeting is necessary.  The principal thinks it best that the student be removed from the student’s regular classroom pending the ARDC meeting, but the ten days have already been used up. What to do?

The principal can use Tool #8 to order a short term removal.  However, he has to consult with one of the student’s teachers about how services will be delivered to the student during this short period of time. Remember: these days are not FAPE Free—and thus the student must be served in some way.

Tool #8 is complicated, and we spend a considerable amount of time reviewing it to ensure understanding in our Toolbox workshops. We also practice with hypothetical cases so that participants can see how this tool works in practice.   I will be presenting the Toolbox in Region 3 tomorrow, Region 10 on Thursday, and Region 7 on October 29.

If you are interested in a Toolbox workshop, contact me at jwalsh@wabsa.com, or Haley Armitage at harmitage@wabsa.com.

DAWG BONE: TOOL #8 IS USED BY THE PRINCIPAL, IN CONSULTATION WITH A TEACHER, FOR A SHORT TERM REMOVAL AFTER THE FAPE FREE ZONE.

The Toolbox is a set of 10 “tools” that school officials can use to address discipline problems with students with disabilities.  The Toolbox provides a framework and a common vocabulary designed to assist you in serving each child appropriately while also providing a safe and orderly school environment.

Tool #7 is the FAPE Free Zone! You will not find that term in the law or the regulations.  But you will find a statement that schools are required to provide FAPE to “children with disabilities who have been suspended or expelled from school.”   34 CFR 300.101(a).  Thus the general rule is that kids are entitled to FAPE even when they are suspended or expelled.  However, another regulation carves out a small exception to that general rule.  34 CFR 300.530(d)(3) says that schools are required to provide services to kids who are removed from their current placement for 10 days or less in the school year only “if it provides services to a child without disabilities who is similarly removed.”

Thus a student with a disability may be suspended out of school, without the provision of services, for up to ten cumulative days during the school year, so long as the general education student would be treated the same.  FAPE is not required for those ten days: thus, a FAPE Free Zone.

Keep in mind that Texas limits out of school suspension to three days per offense. A student with a disability could be suspended out of school on three occasions for three days at a time. This would amount to nine days and the student would still be within the FAPE Free Zone. The law would not require you to provide services. We would suggest, however, that good practice would call for you to take a look at what’s going on.  It would probably be a good idea to craft a behavior plan or in some other proactive way address the student’s misconduct.

The FAPE Free Zone is there when you need it, but should not be used lightly.  The emphasis is on keeping students in school and using a removal from the IEP placement only when necessary. But Tool #7 is there for you when a short term removal from services is called for.

In the Toolbox training we spend a good bit of time going over what days count toward the 10-day limit.  If you are interested in the Toolbox training, contact me or Haley Armitage at the law firm. We’d love to spend a day with you going over all ten tools.

Be sure to check in next Tuesday for Tool #8.  Anytime we talk about the FAPE Free Zone we get the question: “OK, but what if we go past ten?” That’s what Tool #8 is about. Stay tuned.

DAWG BONE: TOOL #7 IS THE FAPE FREE ZONE, TO BE USED CAUTIOUSLY AND ONLY AS NEEDED.

The Toolbox provides a framework and a common vocabulary to help school administrators sort through the complex legal requirements that apply to the discipline of students with disabilities.  Today we discuss Tool #6—a disciplinary change of placement.

Districts can propose a disciplinary change of placement when 1) a student violates the code of conduct; 2) the disciplinary penalty called for by the code involves a long term removal to DAEP or JJAEP; and 3) the behavior is not a manifestation of the student’s disability.

For example, suppose that a student assaults another student or teacher.  If a general education student committed this offense, the student would normally be assigned to the DAEP for more than ten consecutive school days. For a student with a disability, an assignment of that length amounts to a “change of placement.”  Thus the ARDC must be involved.

Tool #6 involves a two-step process. First, campus administrators provide due process and make a determination as to whether or not the student violated the code of conduct.  If the administrator determines that the student did violate the code, the matter then goes to step two: an ARDC meeting.

The ARDC’s function is twofold. First, the ARDC makes the manifestation determination.  If the behavior is a manifestation of the student’s disability, Tool #6 cannot be used.  Tool #6 is a disciplinary change of placement.  It is the application of the penalty called for by the code of conduct. It is punitive. Therefore, it should not be used if the ARDC determines that the behavior is a manifestation.  The ARDC may consider the use of Tools 2 and 3, which we discussed earlier, but not Tool #6.

The second thing the ARDC does is to make sure that the student will continue to receive a Free Appropriate Public Education (FAPE).   Even if the offense is a so-called “mandatory DAEP” offense, the ARDC must examine the student’s IEP, review what is available in the DAEP, and make any necessary tweaks, adjustments and modifications.  We should not be saying things like: “we don’t offer that at the DAEP”—not when the student’s IEP requires it.

The law anticipates that students with disabilities are held accountable for misbehavior to the same extent as all students are.  But we still take into account how the disability affects the student’s behavior.  We do manifestation determinations to make sure that we are not punishing a student for having a disability.  The main purpose of a manifestation determination is to make sure we are not discriminating on the basis of disability.  We also want to make sure that disciplinary action does not have the effect of depriving the student of needed services.

Tool #6, properly used, enables educators to do all of that.    It enables you to enforce your code of conduct in a fair and evenhanded way, while assuring that no one is discriminated against, and no one is deprived of needed services.

Next Tuesday we will take a look at Tool #7: the FAPE Free Zone!

DAWG BONE:  A DISCIPLINARY CHANGE OF PLACEMENT CAN BE IMPLEMENTED WHEN THE BEHAVIOR IS NOT A MANIFESTATION OF DISABILITY AND THE SCHOOL CAN STILL PROVIDE APPROPRIATE SERVICES.