On Tuesdays at the Daily Dawg we like to tell you about cases that illustrate how the ten tools in the Toolbox play out in practice. The Toolbox is a full day training program focusing on students with disabilities who are disruptive, non-compliant and/or violent. How can you serve students who engage in dangerous behaviors and maintain safety and order at the same time?  In the Toolbox we offer ten “tools.” I recently came across a case where several of them could be employed.

Consider this scenario, as described in a hearing officer’s decision in Pennsylvania:

On March 1, 2017, J.H. assaulted another student. A different student agreed to film J.H. assault the victim and share the video online. When J.H. approached the victim during lunch to talk, the victim offered J.H. a box of raisins.  Without provocation, J.H. abruptly grabbed the victim’s head and smashed it into his lunch on the cafeteria tabletop.  The victim became upset and struck J.H’s chest.  J.H., “still standing over the [victim], then wound up like a softball pitcher and delivered a fist punch to the left eye socket on the [victim’s] face.”  As a result, the victim suffered a broken nose and eye socket, a collapsed nasal cavity, an air pocket behind the left ear, and a concussion.

Yikes.  What tools might be used in this case?  There are at least four, and they would probably play out in this order:

*Tool #10: Call the cops.  The court’s decision does not tell us if this happened or not, but it certainly could have.  Administrators can report potential criminal activity to law enforcement. 

*Tool #5: Remove the student to an Interim Alternative Educational Setting (IAES) due to the infliction of a serious bodily injury.  We call this one Tool #5—Special Circumstances Removal.  The principal can order such a removal, even if the behavior is a manifestation of disability.  An IEP Team meeting is necessary, and the Team (ARDC in Texas) needs to make a manifestation determination, but the removal can take place regardless of the outcome.  The combination of a broken nose, a concussion and assorted other damage ought to qualify as a “serious” bodily injury.

*Tool #6: Long term disciplinary removal.  This is what the district actually did in this case. The district held an IEP Team meeting, concluded that the behavior was not a manifestation of disability, and then “the School Board voted to permanently expel J.H.”  Keep in mind that there is no such thing as the “permanent expulsion” of a student with a disability. The district still has a legal obligation to serve the student appropriately. This case does not tell us how the district would do that, but the district has to figure out a way.  You cannot “permanently expel” a student with a disability. That issue was not addressed in the court’s opinion, so we don’t know what was done.

*Tool #1: Consider a Behavior Intervention Plan.  IEP Teams are supposed to consider the use of positive behavior strategies when a student’s behavior impedes the learning of the student or of others.  This violent assault certainly “impeded the learning” of the poor kid who got beat up after offering a box of raisins.  Punishing the student who committed the assault may be perfectly appropriate, but the district should also consider what it needs to do to make sure that this never happens again.  A BIP is not required, but consideration of “positive behavior strategies, supports and interventions” would be a very good idea.

The parents in this case challenged the manifestation determination, but the court agreed with the hearing officer that this pre-planned attack was not caused by J.H.’s ADHD or Learning Disability:

It is unapparent to the Court how J.H.’s disability, or its impulsive effects and associated stressors, caused or directly and substantially related to a planned assault on another student.

The case is J.H. v. Rose Tree Media School District, decided by the federal court for the Eastern District of Pennsylvania on September 17, 2018.  We found it at 72 IDELR 265.

DAWG BONE: MDRs ARE ABOUT CAUSATION, NOT SOME DISTANT CONNECTION.

Health Plan or IEP: does it make any difference?