We’re using Toolbox Tuesdays to review the updated Q and A from the Department of Education about the discipline of students with disabilities. Today: Section E about the Special Circumstances offenses.

In the Toolbox, Special Circumstances are covered by Tool #5. This Tool empowers campus administrators to order the immediate removal of a student if the student commits one of the three “special circumstances” offenses on school campus or at a school sponsored activity. The three are: 1) possession, use, sale, or the solicitation of the sale of drugs; 2) possession of a weapon; or 3) the infliction of serious bodily injury. 

The Q and A reminds us that even in a Tool #5 case, we must convene an ARD meeting to conduct a manifestation determination.  This may come as a surprise to some, seeing as how the outcome of the MDR does not determine the placement. If the student has committed a “special circumstances” offense, the student will remain in an IAES (Interim Alternative Educational Setting) for up to 45 school days. The administrator assigns the student to an IAES; the ARD determines what the IAES will be (usually it’s the DAEP), and the student remains in that placement regardless of the outcome of the MDR. That’s why these three offenses are “special.”

So why are we required to do an MDR at all?  The Q and A does not address that question, but my view has always been that the MDR will influence a number of things. Where will the student be served?  What changes, if any, are necessary at the IAES to make sure the student is served appropriately?  Moreover, Tool #5 requires “as appropriate” an FBA and a BIP.  The MDR will provide useful information to help the district develop a BIP or revise the existing one in an effort to make sure this particular kind of behavior does not recur. 

The Q and A also addresses how Tool #5 intersects with the duty to do a risk or threat assessment.  Key Quotes:

Under IDEA, the procedural safeguards and right to FAPE for a child with a disability must be protected throughout any threat or risk assessment process, including the provision of services during any removals beyond 10 cumulative school days in a school year. 

Where appropriate, the LEA can ensure that the school personnel conducting the threat or risk assessment have access to, and are coordinating with, the child’s IEP Team.

Texas law requires a threat assessment when a student uses or possesses a weapon at school.  So add that to your list of things to do when you use Tool #5 for weapons possession.

DAWG BONE: EVEN IF THE OFFENSE IS “SPECIAL” WE NEED AN ARD TO DO AN MDR. 

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: a common misconception….