Toolbox Tuesday!! Court case illustrates use of Tools #4 and #5.

A court case from the District of Columbia illustrates the interplay of two of the ten tools that we discuss in the full day “Toolbox Training.”  The Toolbox is designed to assist school personnel to deal with students in your special education program who present particularly challenging behaviors.  In the case from our nation’s capital, the district sent a student to an IAES (Interim Alternative Educational Setting) after he beat up another student, causing a concussion. This is the use of Tool #5—a Removal Due to Special Circumstances.  In this case the “special circumstance” was the infliction of “serious bodily injury.”  The removal was for the maximum authorized by Tool #5—45 school days.

However, the school did not want to re-admit the student after the 45 days.  What to do now?

Let’s back up for a moment.  The student’s IEP Team met after the assault and concluded that the student’s behavior was a manifestation of his emotional disability.  This meant that Tool #5 was available—the removal for 45 school days—but Tool #6 was not. Tool #6 is a traditional disciplinary removal, which does not have to be limited to 45 school days.  If the IEP Team had concluded that the assault was not a manifestation of disability, the school, as per Tool #6, could have ordered his removal to an IAES for more than 45 school days.

Since the school used Tool #5 it faced a dilemma after the 45 days.  Normally, they would admit the student back to the campus and placement he had been in before all this trouble.  However, the school was not willing to do that. School administrators continued to believe that the student was very likely to hurt someone again if they re-admitted him. What to do?

The school attempted to order another 45-day removal, but the court shot that down.  Tool #5 is “special” because it authorizes a removal of the student even though the behavior was determined to be a manifestation of disability.  The principal can order this removal without any approval from the hearing officer or court.  But the tradeoff is that Tool #5 cannot be renewed by the school.   You can’t unilaterally extend it.

That’s where Tool #4 comes into play.  Tool #4 authorizes the school to seek the student’s removal due to concerns that the student is “substantially likely” to injure someone if the student is simply returned to the original placement.  Tool #5 can be exercised unilaterally by the campus principal. Tool #4, however, requires approval by the hearing officer or a court.

That’s what happened here. The court concluded that there were significant safety concerns, and the continued removal of this student would be appropriate. Let’s put this in context: this removal was only for another ten days, which is when the pending due process hearing decision was expected to finally resolve the matter.

We call Tool #5 the principal’s tool, since principals are usually the ones who can order an IAES removal. Tool #4 is usually the superintendent’s tool, as it involves seeking legal services to obtain an order from the hearing officer or court.

I hope that doesn’t sound too complicated. In the Toolbox we sort all this out and practice using the tools with some hypothetical situations.  Interested?  Let me hear from you.

This case is Olu-Cole v. E.L. Haynes Public Charter School, decided by the federal court for the District of Columbia on February 23, 2018. We found it at 71 IDELR 194 and 292 F.Supp.3d 413.


 Tomorrow: Where does the Constitution say that I get to play first base?