The Toolbox is a set of 10 “tools” available to school officials in dealing with students with disabilities who engage in challenging behaviors.  Most of the tools involve ARD Committee action.  But today’s focus is on Tool #5, which is a tool that can be wielded by the principal. Tool #5 deals with “special circumstances.”  When “special circumstances” arise, the principal can act unilaterally.

You may recall that we have a Toolbox because Congress intentionally curtailed the power of campus administrators in dealing with students with disabilities.  No more would the principal be empowered to “unilaterally” order the removal of a student with a disability based on a violation of the Code of Conduct.  But there are some exceptions to that general rule.

First, campus administrators do retain the power to “unilaterally” remove a student for disciplinary reasons for up to ten days, cumulatively, during the course of the school year. We call this “the FAPE Free Zone” and will discuss it two weeks from today when we address Tool #7.

In 1997, Congress restored “unilateral” power to campus administrators in two specific situations: possession of weapons, and possession or use of drugs at school.  In those instances, Congress gave principals the power to order the “unilateral” removal of a student for up to 45 days.  The school would still be obligated to serve the student, but it could be in an alternative environment.

In 2004, Congress extended the “45 days” to “45 school days” and added a third category of behavior: the student’s infliction of “serious bodily injury.”

Thus we now have three types of misconduct that authorize a principal to order the removal of the student for up to 45 school days.  We call these “Special Circumstances."

If the principal, or assistant, concludes that a student has engaged in one of these three types of misconduct, the student can be removed for up to 45 school days, regardless of whether the behavior is a manifestation of disability or not. That’s what makes them “special.”  However, the principal still needs to call for an ARDC meeting. The ARDC needs to make sure that the student will continue to receive appropriate services in what the federal law calls an “interim alternative educational setting.”  Moreover, the ARDC should conduct a manifestation determination as part of its effort to prevent a recurrence of this type of behavior.

In the Toolbox training we go into detail about exactly what type of conduct is covered by the “special circumstances” offenses. And we practice using these tools in conjunction with the specifics of your school’s Code of Conduct.  If you are interested in having the Toolbox training in your district or ESC, contact Haley Armitage at harmitage@wabsa.com.  We’d love to bring the Toolbox to your school!

DAWG BONE: TOOL #5 IS THE PRINCIPAL’S TOOL TO USE WHEN THERE ARE “SPECIAL CIRCUMSTANCES.”

The Toolbox consists of ten tools that school administrators can use to deal with disruptive and/or violent students who are eligible for special education.  Tool #4 is probably the tool that is used the least.  That’s a good thing.  Tool #4 is used when a student’s presence in the current placement is dangerous to the point that the school has decided to seek an order from a special education hearing officer or court to order the immediate removal of the student.

Here’s how this might happen. The school calls for an ARDC meeting to consider a change of placement because of the student’s disruptive and/or violent behavior.  The ARDC concludes that the behavior is a manifestation of the student’s disability—thus Tool #6 (Disciplinary Change of Placement) is not available.  The school members of the ARDC think a change of placement is called for, but the parents do not agree—thus Tool #2—an agreed-to change of placement—is not available.  And although the student is dangerous, he/she has not inflicted “serious bodily injury” or possessed drugs or a weapon at school—thus Tool #5 is not available.

Pursuant to the traditional “stay put” rule, the student is supposed to remain in the current placement. The principal and superintendent are genuinely worried that this will lead to an injury to someone in that classroom. We know that school administrators cannot “unilaterally” remove the student from the current placement—but they can seek an order from a special education hearing officer or a local district judge.  However, the burden of proof is demanding. The school must prove that if the student stays where he/she is, someone is “substantially likely” to get hurt.

Let’s hope that does not happen in your school this year. If it does, be sure to get your school’s attorney involved from the start. This tool is definitely one where the lawyer needs to be involved.

DAWG BONE: SCHOOLS CAN SEEK HELP FOR THE IMMEDIATE REMOVAL OF A STUDENT IF NECESSARY.

The Toolbox is a set of 10 “tools” available to school administrators in dealing with students with disabilities who engage in inappropriate and/or disruptive behavior.  Last week we looked at Tool #2—a change of placement with parental agreement. Tool #3 is the companion to that one—this is another educational change of placement, but this time, it is done without parental agreement.

Tool #3 is used when the student’s behavior is a manifestation of his or her disability. Consider, for example, a student with autism who is served in the general, mainstream classroom.  The teacher reports that the student’s behavior is impeding the learning of the student and of others in the class. The behaviors are directly caused by the student’s disability, but that does not make them any less disruptive.  What to do?

The first thing to do is to come up with ways to better support the teacher and the students in that class.  Are there supplementary aids and services that could be employed effectively?  Is the behavior plan working? If not, what can we do to improve it?  Should we consult with a new behavior specialist?  Are there evaluative steps we should take?  What do the parents suggest?

We should try all of that before thinking about a change of placement. After all, we are expected to serve the student in the least restrictive environment.

But sometimes schools try all of those things, and see little progress. There comes a time when you may find it appropriate to recommend a change of placement.  Tool #3 is an “educational” change of placement. That’s to distinguish it from Tool #6, which is a disciplinary change of placement. You would use Tool #6 to change placement based on behavior that is not a manifestation of disability. But if the behavior is a manifestation, a disciplinary removal would be inappropriate. You can, however, recommend a change to a more restrictive environment for educational reasons.

Tool #3 anticipates parental disagreement, and so the school officials should talk to the lawyers first.  Have we done all that we can do to serve the student appropriately in the LRE?  Are we unified in our view that a change is appropriate? Do we have a good alternative placement to propose?  All of those issues need to be addressed.

This Tool is the ARD Committee’s Tool, as changes in placement can only be proposed and effected at an ARD meeting. But the ARD that uses Tool #3 needs strong administrative leadership and sound legal advice.

If you are interested in a Toolbox training, contact me at jwalsh@wabsa.com or Haley Armitage at harmitage@wabsa.com.  The Toolbox training is a full day, aimed at campus administrators and special education staff, with a clear explanation of all 10 tools and some hypotheticals to practice on. We’d love to hear from you!

DAWG BONE: TOOL #3: AN EDUCATIONAL CHANGE OF PLACEMENT WITHOUT PARENTAL AGREEMENT.

The Toolbox is a framework for school administrators to use to comply with IDEA while serving students appropriately and safely.  Last Tuesday we focused on Tool #1—a BIP.  This week we turn our attention to Tool #2—an Educational Change of Placement with Parental Agreement.

The “placement” of the student basically refers to the instructional arrangement.  We hope to serve as many students as possible in the mainstream, general education classroom. But the law anticipates that some students will require a more restrictive placement.  Thus ARD Committees always have the authority to change a child’s placement.   A change of placement can be done the easy way, or the hard way. The easy way is with parental agreement.  If the teachers, administrators and parents are all in agreement that a student would be better served in a different type of classroom, the ARD Committee can make that change, fill out the paperwork and sing Kumbaya.  Easy.

But can this happen after the student has committed a violation of the Code of Conduct?  Can the student be assigned to a disciplinary setting, such as DAEP, that would normally be used as a punitive measure?  Federal law makes it clear that this is perfectly permissible—but the key to it is genuine, authentic, voluntary, knowing, fully informed parental agreement.

The Department of Education issued a set of FAQs about discipline and IDEA in 2009. The very first question addressed this issue:

Q. A-1: When the parent(s) of a child and the school personnel are in agreement about the child’s change of placement after the child has violated a code of student conduct, is it considered to be a removal under the discipline provisions?

A. No, if the parent(s) of a child and the school district agree to a change in the current educational placement of the child.

This scenario came up in an 8^th Circuit case: Doe v. Todd County School District, 55 IDELR 185 (8^th Cir. 2010).  The court held that the school did not violate the student’s constitutional rights to due process by failing to hold a school board hearing to consider the student’s long term disciplinary penalty. The court noted that the IEP Team (ARD) changed the placement of the student to an interim alternative educational setting, with parental agreement. When the parent later changed her mind about this, she should have requested an IEP Team meeting rather than a hearing before the school board.  The school board was powerless to override the IEP Team’s decision, and so a hearing before the board would have been pointless.  Key Quote:

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 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].

Tool #2 is usually employed when parents actively seek out a change to a more restrictive, or even a disciplinary placement. Absent that level of parental support, Tool #2 is risky, as questions can always arise as to whether or not the parent’s agreement was genuine, voluntary and fully informed.

We don’t think a simple check box (“I Agree”) at the end of an ARD meeting is sufficient to verify parental agreement with this kind of change of placement.  If you want to employ Tool #2, it’s best to run it by your school attorney. At Walsh Gallegos, we’d be happy to help you with that.

Next week, Toolbox Tuesday will look at the hard way to change a placement—when the parent disagrees.

DAWG BONE: YOU CAN CHANGE PLACEMENT THE EASY WAY OR THE HARD WAY.  THE EASY WAY IS WITH AGREEMENT.

Today we launch a new feature here at EdLawDaily—Toolbox Tuesday!  As many of you know, I have been conducting all day workshops for over a year now on legal and practical methods of dealing with students who are violent and/or seriously disruptive and in your special education program.  I call it “The Toolbox” because it features ten tools that are available to school administrators under IDEA—our special education law.  For today and the next 10 Tuesdays, we are going to provide a brief intro to each of the ten tools.   I’ll provide some contact information below for those of you who are interested in the Toolbox training.

Today, we offer a little background on why a set of tools is needed in the first place.  So let’s go back to 1975, when Congress first enacted the federal law that we now know as IDEA.

The first version of the law did not directly address student discipline. But it did create a dilemma for school administrators by requiring that schools do two things that are sometimes hard to do at the same time. On the one hand, the law required schools to provide a safe and orderly environment, conducive to learning for all students.  On the other hand, it requires schools to serve all students appropriately, including those with disabilities who commit serious or violent offenses at the school.  Not only does the law require schools to serve all such students, it also requires that services must be provided in the “Least Restrictive Environment” (LRE).

These two duties bump into each other.

This dilemma was squarely presented to the U.S. Supreme Court in Honig v. Doe, the only case involving special education discipline ever decided by the High Court.  In that case, California school officials argued that safety was the overriding concern. Therefore, the argument went, the “stay put” rule did not apply when school officials deemed a student to be dangerous.  Principals and superintendents should be allowed to order the removal, or expulsion of a student who is dangerous.

The Supreme Court flatly rejected that:

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. In so doing. Congress did not leave school administrators powerless to deal with dangerous students; it did, however, deny school officials their former right to “self-help,” and directed that in the future the removal of disabled students could be accomplished only with the permission of the parents, or, as a last resort, the courts. (Emphasis added).

That certainly put it clearly.  Congress “very much meant to strip schools” of the authority they historically enjoyed.  The Court did not think that its decision was leaving school officials powerless.  If the principal believed that a student was dangerous, she could suspend the student for up to 10 school days.  The “stay-put” rule did not apply to such short-term actions.  If a principal believed that a suspension of more than 10 days was called for, he could seek relief from a court.

That was 1988.  Much has happened since then, but the basic tension between two competing duties remains.  Schools must simultaneously maintain a safe and orderly school, while appropriately serving students who may present a risk of danger.

For the most part, this tension is resolved on a case-by-case basis by each student’s IEP Team (ARDC).  The law emphasizes individualized decision making by a group of educators working in collaboration with the parents—the ARD Committee.  The ARDC ultimately has the duty of determining, case-by-case, how to balance the duty to serve in the LRE with the duty to maintain safety.  If educators believe that a student is placed in the wrong setting, they should call for an ARDC meeting and seek a change.  If parents believe that a student is placed in the wrong setting, they should do likewise.

Thus most of the time, this tension will be addressed and resolved through ARDC action.  But in addition, there are things that an individual school administrator—usually the principal of the school—can do to address this tension.

That’s what the Toolbox is all about--ten tools educators can use to simultaneously provide a safe school and a proper placement for each student.

Next Tuesday’s Daily Dawg will be about Tool #1. And we will follow that with the other nine tools over the next nine Tuesdays.

If you are interested in bringing the Toolbox to your district, or your ESC, please contact Haley Armitage at harmitage@wabsa.com.

DAWG BONE:  WHEN DISCIPLINING SPECIAL EDUCATION STUDENTS, IT’S THE “UNILATERAL” POWER THAT IS CURTAILED.  

If a student has a serious emotional disturbance, along with ADHD, I’m guessing that any misconduct is going to be considered a manifestation of the student’s disability. Right?

Some educators have expressed the view that misconduct by a student with a serious emotional disturbance and/or ADHD is always going to be considered a manifestation of disability. A recent case proves that is not so. The case involved a student who was charged with creating a “shooting list” in his English journal.  The district treated this as a violation of the Code of Conduct and assigned DAEP for 35 days.

The ARDC met to make a manifestation determination on April 12, 2012.  The parents were present, along with an advocate and the boy’s pediatrician, who produced a diagnosis of PDD-NOS, and argued that the behavior was a manifestation.  The issue of autism came up, as it had before. The district offered to conduct an evaluation, but, according to the district, the parents declined to provide consent.  The parties did not complete the process on April 12^th, and so they recessed and came back on April 23^rd.  However, the parents did not participate in the second session. The ARDC concluded that the making of the shooting list was not a manifestation of the boy’s health impairment or emotional disturbance.

The parents requested a special education due process hearing.  The hearing officer ruled in favor of the school district on all issues except for the manifestation determination. The hearing officer concluded that the boy created the so-called “hit list” as a direct result of his disabilities.

Both sides appealed to federal court.

The hearing officer cited the doctor’s testimony in her ruling in favor of the parents.  But the federal court overturned that ruling, and concluded that the behavior was not a manifestation.  As the court pointed out, the school’s psychologist, “a member of the ARD Committee who actually observed Z.H. in a classroom setting,” rebutted the pediatrician’s view. (Emphasis added).   The parents failed to cite evidence in the record to overcome this.

There is no easy shortcut to a proper manifestation determination. Each one must be considered individually, taking into account all of the relevant information available. It is certainly not as simple as automatically attributing certain behaviors to disability; or automatically discounting a causal connection.

The case is Z.H. v. Lewisville ISD, decided by the U.S. District Court for the Eastern District of Texas on March 2, 2015.  We found it at 65 IDELR 106.

DAWG BONE: MANIFESTATION DETERMINATIONS REQUIRE CAREFUL AND INDIVIDUAL ANALYSIS.