The 4th Circuit has provided us an excellent example of how Tool #4 works. There are ten “tools” in the Toolbox, which is a full day training program our firm offers with regard to the discipline of students served through special education. Of the ten, Tool #4 is probably used the least. It takes a rare set of circumstances to justify the use of Tool #4—which is a Request for Expedited Hearing.
Here’s what happened in the 4th Circuit case. The student had an emotional disability. He assaulted a classmate, causing a serious bodily injury. School officials pulled Tool #5 out of the Toolbox. This is the “Special Circumstances” tool. It empowers a principal to order the removal of a student to an IAES for up to 45 school days if the student commits an offense involving drugs, weapons or a serious bodily injury. This can be done even if the behavior is a manifestation of disability. In this case that was particularly important, because the boy’s IEP Team determined that his assault of the other student was a manifestation of his disability.
Citing what we call Tool #5, the school assigned the student to an IAES for the full 45 days. So far so good. No legal problems. However, when the 45 days were up, the school did not want to take the student back. That was a problem. Since the behavior was a manifestation of disability, the removal was capped at 45 school days. Mom sought his re-admission and was turned down. Mom immediately sought an injunction asking the court to order the school to re-admit the boy. The school’s response to this was that the boy continued to present a genuine danger. If he was let back in, he might hurt someone again.
In Toolbox terminology, the school was attempting to use Tool #4. That tool allows schools to seek an order from a judge or a special education hearing officer that would keep a student out of the placement called for in the IEP if the school presents evidence to show that the student is “substantially likely” to hurt someone if placed back in the IEP placement.
Consider: mother seeks an injunction, but the school seeks similar relief—a court order to keep the student out of his regular placement. Who has the burden of proof?
The federal district court held that the mother bore that burden and failed to carry it. The Circuit Court said that was wrong. The burden should have been placed on the school. When using Tool #4, the school carries the burden of proving that the student is “substantially likely” to hurt someone if re-admitted to the original placement called for by the IEP.
It’s rare to find a case about Tool #4 because that tool is used rarely. And that’s a good thing.
The case is Olu-Cole v. E.L. Haynes Public Charter School, decided by the Circuit Court for the District of Columbia on July 19, 2019. We found it at 119 LRP 26900.
DAWG BONE: TOOL #4 REQUIRES STRONG EVIDENCE OF A SUBSTANTIAL LIKELIHOOD THAT SOMEBODY IS ABOUT TO GET HURT.
Tomorrow: a cell phone search case.