What would you do in light of this track record? The 15-year old student had 52 disciplinary referrals over eight years in the school system. He’s a general education student, but he was served in a “behavioral program” while in elementary and middle school. Just last week he was suspended for a week for drug use, and in the first quarter of the school year he has three F’s and a D.
Then there was the riot. This involved 50 or more students with 10-15 school personnel trying to break it up. The student was arrested and then expelled. After the mother was informed of the expulsion hearing she obtained legal assistance from a “student advocacy group.” That’s when she, for the first time, requested a special education evaluation.
How do you think this is going to come out?
Our special education laws say that there are some students who are entitled to the legal protections of IDEA even though they have not been determined to be eligible for special ed. It’s covered by a specific regulation, 34 CFR 300.534, that spells out three categories of kids that are entitled to IDEA legal protections.
I’ve always referred to cases like this one as a “shouldaknown” case. That’s because the issue boils down to if the school should have referred the student for an evaluation. But I may need to re-think that terminology. This case points out that all three categories require that someone say something about a possible disability. Poor behavior, even to this extent, is not enough. The three categories are:
- “The parent…expressed concern in writing” to a supervisor or “a teacher of the child, that the child is in need of special education and related services;
- “The parent…requested an evaluation of the child” as per the federal regulations; or
- “The teacher of the child, or other personnel of the LEA, expressed specific concerns about a pattern of behavior…directly to the director of special education…or other supervisory personnel.” (Emphasis added).
Moreover, these expressions of concern must come before the incident that led to disciplinary action.
The court held that the district was not required to evaluate the student prior to his expulsion, and in doing so, specifically rejected the “shouldaknown” standard:
It may be tempting to conclude that the school district should have suspected that a disability might be causing such a bad behavioral record. But such a “should have known” test does not exist, and would be contrary to the governing law. If [the] mother could not prove that she ever asked for a disability evaluation or an exceptional student education plan, and not a single trained educator or school counselor over the years expressed any concern that a disability was causing [the student’s] behavior, the school board cannot be expected to leap to that conclusion on its own.
One more point is worth keeping in mind. Not all judges would have ruled for the school on these facts. Some would have concluded that even if 34 CFR 300.534 did not apply, the more general notion of Child Find did.
It’s D.N. v. School Board of Bay County, Florida, decided by the Florida Court of Appeals for the 1st District on May 31, 2023. The case is reported at 83 IDELR 86.
DAWG BONE: “SHOULDAKNOWN” CASES ARE GOOD REASONS TO CALL YOUR LAWYER. TREAD CAREFULLY.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
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