Toolbox Tuesday: District uses Tool #4….unsuccessfully

Tool #4 in our firm’s Toolbox involves the school seeking an expedited hearing, asking a hearing officer or judge to approve the temporary removal (no more than 45 school days) of a student for fear that maintaining the status quo will result in someone getting hurt. That’s a pretty desperate situation, which is why Tool #4 is used only when nothing else is available. 

Consider a recent ruling in a case from California. The 8th grader was identified with autism and an intellectual disability and his behavior, as described in the decision, was way out of control.  Threats and attempts to commit suicide while at school. Elopement into heavy traffic.  Sexual assaults of others and attempts to do so.  All this was happening despite the best efforts of the district. Fearful that the student was likely to hurt someone, the district considered its options.  What were they?  Why did they end up with Tool #4?  Let’s consider.

Tool #2 can be used to change a student’s placement, but only if the parent agrees. The parent did not. 

Tool #3 can be used to change placement without parental agreement.  That would be available in  Texas, but not in California.  Its state law requires parental agreement for a change of placement, and puts the burden on the school district to seek a hearing if consent is not obtained.  That would take time, and the school was worried about someone getting hurt tomorrow. 

Tool #6 is a Disciplinary Change of Placement.  That was not available because the IEP Team determined that the student’s behaviors were a manifestation of his disability.

With none of the long term change of placement tools available, the district considered interim measures.  What about Tool #5? It allows schools to order a 45-day removal under “special circumstances.” This Tool can be used even if the behaviors are a manifestation of disability. So what about that?

The problem was that none of the student’s behaviors fit into the definitions of “special circumstances.”  Special circumstances encompasses drugs, weapons, and the infliction of serious bodily injury.  But there is no indication in the ruling that the student ever possessed or used drugs. Nor did he ever have a weapon. Those sexual assaults were of the touching variety, and thus, did not inflict “serious bodily injury.”

So the school then pulled Tool #4 from the Toolbox and asked a special education hearing officer to give it some breathing room by approving the placement of the student in an “interim alternative educational setting” for 45 school days. The school has to prove two things to get that order. It proved one. The hearing officer was persuaded that the student was dangerous and that his continued presence on the campus of a middle school was substantially likely to result in injury to the student or others.

However, the hearing officer denied the district’s request because the district did not identify a specific “interim alternative educational setting” that would be appropriate for the student.  The district said that the student should go to a residential treatment center for 24-hour supervision and care. It laid out the criteria that any such facility would have to meet to be appropriate. But it did not name a specific facility.  The hearing officer said “criteria is not a specific setting.” 

I suspect that decisions like this will produce strong reactions from educators, parents, and maybe even legislators.  Here we have a school district seeking to provide a safe school environment, while also recognizing its duty to serve students like this troubled 8th grade boy.  But it all got tangled up in the law.  I don’t know what happened afterwards. I just read the decisions and tell you what I think we can learn from them.

I hope no one got hurt. I hope the district and the parents can come together to find some workable solution.  Sheesh. 

It's Escondido Union School District, decided by the California special education hearing officer on January 10, 2023.  It’s published by LRP in the Individuals with Disabilities Education Law Reporter at 123 LRP 6987. 


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Tomorrow:5th Circuit….