On Tuesdays here at the Daily Dawg we like to give you reminders of some of the principles and practices associated with The Toolbox—our firm’s all-day training program regarding discipline of students with disabilities. Today, the story of a district in Tennessee that sent a student to an alternative campus for 180 days based on possession of marijuana.  We can learn several things from this obscure decision by a special education hearing officer. 

First lesson: it’s usually a mistake for the parents to refuse to consent to an evaluation that the school offers to do.  The parents brought a doctor’s note to the meeting where the MDR (Manifestation Determination Review) would be done. The doc reported that the boy had anxiety.  In response, the school offered to conduct an evaluation to look into that more thoroughly.  Parents refused to consent. The hearing officer held that this removed “anxiety” from the category of conditions that the school should have known about.  When the school offers to evaluate, and the parent refuses to consent, the school is relieved of any “shouldaknown” liability.  Plus, it looks bad for the parents.

Second lesson: possession of marijuana is a “special circumstances” offense, which means that a removal of 45 school days is an option.  But if the school wants to order a longer removal, the MDR has to come out right.  In Toolbox terminology, possession of pot is a Tool #5 situation.  But if the school seeks to exceed the 45 days authorized by Tool #5, it has to use Tool #6—Disciplinary Change of Placement.  This school called for a removal of 180 days.  If the removal had been limited to 45 school days, the outcome of the MDR would not have been relevant.  Fortunately for the school, the hearing officer agreed that the boy’s possession of a controlled substance was not a manifestation of disability, so the removal for the full 180 was permissible.  However, it was not proper, which leads to our third lesson.

Third lesson:  If the behavior is not a manifestation of disability, the student can be removed to an Interim Alternative Educational Setting (IAES), but it has to be one where the student can continue to progress on the IEP goals.  The IAES need not perfectly replicate the way things were done under the IEP, but it has to continue to offer FAPE.  The hearing officer held that the district failed to satisfy this standard.  The IEP goals remained the same but some of the services were reduced and there was no good explanation for how the school would still be able to provide FAPE.

We cover all these issues in the Toolbox Training, which we HOPE to continue to provide in its typical in-person, all day format in the fall.  In the meantime, if you’d like to schedule your staff for an overview or update, just let me know. 

This case is from Knox County, Tennessee and can be found in Special Ed Connection at 120 LRP 15185.

DAWG BONE: EVEN AFTER REMOVAL, PROVIDE FAPE.

Tomorrow: Qualified immunity saves the police officer