Toolbox Tuesday: Another take on Child Find when behavior is an issue…
When does a school district have a legal duty to refer a student to determine eligibility for special education services? The legal standard involves two “suspicions:” a suspicion that the student needs specially designed instruction; and a suspicion that a disability is creating that need.
Compare that standard with a speed limit on the highway. There is no subjectivity in the speed limit. You are either within the MPH limit or not. But a “suspicion” that a student “needs” a form of “specially designed instruction” due to a disability, when none of those terms are clearly defined, is highly subjective. So it’s not surprising to see different Circuit Court lean in different directions.
In the 6th Circuit the courts ask if the school officials “overlooked clear signs of disability and were negligent in failing to order testing, or that there was no rational justification for not deciding to evaluate.” That standard leans in favor of the school district, deferring to the district’s judgment call even when it may have been wrong. The 5th Circuit where we live is a bit quicker to find a Child Find violation.
I bring this up on Toolbox Tuesday because the most recent 6th Circuit case involves a middle school student with behavior issues. Shortly after his family moved from Illinois to Tennessee he got into trouble at the school. Suspension and ISS and conferences with the parents. In late September his parents put him in the Vanderbilt University Medical Center for a week after a blow up in the home. In late October the boy was arrested at school, though the charges were later dropped. The district proposed a disciplinary removal of the student to an alternative program. That’s when the parents withdrew him and homeschooled him for the rest of the year. At that time the school was considering a 504 plan for the student, but nobody offered to test him for special education.
The parents requested a due process hearing, seeking reimbursement for the private schooling they eventually paid for, claiming that the district dropped the ball on Child Find. The hearing officer ruled for the school. The federal district court affirmed that decision and now the 6th Circuit has as well.
The court cited the many school employees who testified that an IDEA referral would have been premature. These included a teacher, an assistant principal, the Exceptional Education Supervisor, a board-certified behavior analyst, and a school psychologist supervisor. On top of that the school provided testimony from an expert on developmental trauma. The court summarized its ruling in favor of the school district by noting 1) there was no history of special education for the student before moving to Tennessee; 2) he was in the school for a very brief time; 3) the family move from Illinois likely contributed to his behavior; and 4) all those expert witnesses. Summing up:
It is true that WCS [the district] was neither as communicative, nor responsive, nor proactive as it could have been to meet [the student’s] needs and to respond to his parents’ concerns. Still, on this record, we cannot say that WCS officials “overlooked clear signs of disability and were negligent in failing to order testing, or [had] no rational justification for not deciding to evaluate.”
It's Ja B. v. Wilson County Board of Education, decided by the 6th Circuit on March 6, 2023. It’s a published decision, meaning that it can be cited as precedent, and it’s located at 61 F.4th 494.
DAWG BONE: LAWYERS FOR TEXAS DISTRICTS WILL WANT TO CITE THIS CASE.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: do you encourage reading with a “Million Words” program?