It’s rare to find a Toolbox case involving a five-year old in kindergarten, but that’s what we have today. The ALJ (Administrative Law Judge) who heard this case over eight days described the little guy as “a delightful and articulate young man who has a world of potential in front of him.” But then he added “He needs to learn how to control his ADHD and resulting behavior.”
He did not control it well on January 24, 2020 when he “assaulted staff members at his school in part by throwing objects, such as supplies, books, pieces of a broken thermometer, and the base of a phone, at them.” The school district pulled Tool #6 from the Toolbox and proposed a Disciplinary Change of Placement.
That didn’t work. The IEP Team concluded that the boy’s behavior was a manifestation of his disability. Tool #6 can only be used when the behavior is not a manifestation. So the district put Tool #6 back in the Toolbox and pulled out Tool #5—a removal due to “special circumstances.”
That didn’t work either. Tool #5 allows for the immediate removal of a student in cases involving drugs, a weapon, or the infliction of “serious bodily injury.” There were no drugs here, and no one was seriously injured. So it came down to “weapon.” Did the student possess a “weapon”? The ALJ said no, and now the federal district court has confirmed that ruling. The court quoted the ALJ’s ruling with approval:
It is difficult to imagine any instance where a Kindergarten student could cause death to anyone by throwing any of the objects at anyone at any range or velocity. Plastic phone receivers and thermometers, no matter how broken and jagged, are not readily capable of causing a substantial risk of death.
The ALJ also concluded that “serious bodily injury” was unlikely.
The district made a second mistake by calling for the student to go to an IAES (Interim Alternative Educational Setting) for just four hours a week. Both the ALJ and the court found “the instruction itself appropriate but the quantity of that instruction inappropriate.” Four hours a week is rarely going to do the job.
The district ultimately pulled Tool #3 from the Toolbox and proposed a Change of Placement Without Parental Agreement to the SEED Program, which the court described as “a classroom specifically designed and engineered for students with behavioral issues.” The ALJ and the court were good with that, despite parental disagreement.
It’s G.D. v. Utica Community Schools, decided by the federal court for the Eastern District of Michigan on March 30, 2023. It’s published in the Individuals with Disabilities Education Law Reporter at 123 LRP 11355.
DAWG BONE: CHOOSE THE RIGHT TOOL!
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: Pronoun litigation…