Toolbox Tuesday!! A Tool #4 case involving a charter school.

The Toolbox is our firm’s full day training program regarding disciplinary options with students in your special education program. In the Toolbox we offer ten “tools” that are available under various circumstances. Sometimes administrators may want to use more than one tool.

Such is the case of Olu-Cole v. E.L. Haynes  Public Charter School.  The student (plaintiff) in this case inflicted serious bodily injury on another student.  As a result of that, the school used Tool #5, removing the student from the IEP placement for 45 school days.  The school also made a manifestation determination, and concluded that this attack, though violent, was a manifestation of the student’s emotional disturbance. 

As a result of that MDR finding, the removal was capped at 45 school days.  But when the mother sought the boy’s return to his IEP placement after the 45 days the school turned her down.  School officials believed the boy was dangerous, and they feared further injuries. So they refused to allow him back to school. 

If the folks from the charter school had been through the Toolbox training they would have had a better understanding of how this works.  They used Tool #5 to order the 45-day removal.  Fine.  But when the 45 days had run their course, the student was entitled under the law to return to his previous placement.  The school could seek to override that by asking for an “expedited hearing” and showing that the student’s return to that placement was “substantially likely” to result in injury to the student or others.  That would be the use of Tool #4.  But they didn’t do that. They thought they could unilaterally bar the student from school, citing safety concerns. That is exactly what San Francisco school officials did many years ago which led to the SCOTUS decision of Honig v. Doe (1988).  In that case the Supreme Court told us that schools had been “stripped” of this unilateral power.  Instead, they could seek out help, but would have to carry a heavy burden of proof.  That’s what Tool #4 is about.  Thus the school should have attempted to carry the burden of proof, rather than just ordering another removal.

The case was decided by the Circuit Court for the D.C. Circuit on July 19, 2019.  We found it at 74 IDELR 215.


Tomorrow: Our broken special education dispute system.