Toolbox Tuesday!! Let’s look at a Tool #3 case

The Toolbox is a full day program designed to help educators use ten “tools” that are designed to comply with the law, maintain safety, and serve every student in the least restrictive environment.  Today we are going to tell you about a recent federal court decision involving the district’s effort to use what we call Tool #3—an Educational Change of Placement Without Parent Consent.

In Toolbox training we focus on students with disabilities who present challenging behaviors.  But Tool #3 comes up in other cases as well. Anytime a school district seeks a non-disciplinary change of placement over parental objection it’s a Tool #3 situation. That’s what happened in the case of A.B. v. Clear Creek ISD.

The court describes A.B. as a 10-year old, identified as having an intellectual disability and speech impairment.  For the 2015-16 and 2016-17 school years the student was placed in a mainstream classroom with in-class and resource room support.  For the 2017-18 school year the district proposed a change of placement to the “Learning to Learn” classroom, which is a more restrictive setting.  The district proposed providing all of the core academics in this setting.

The parents disagreed and sought a due process hearing.  Besides challenging the proposed placement for 2017-18, the parents also argued that the district had denied the boy a FAPE (Free Appropriate Public Education) for the previous two years.

The hearing officer issued a split decision, holding that the district did provide FAPE from 2015-2017, but that the proposed placement for 2017-18 was overly restrictive.  Both sides sought federal court review. The parents claimed victory and, therefore, attorneys’ fees. The school sought to overturn the decision about 2017-18.

The federal court completely affirmed the hearing officer’s decision, and postponed a ruling on attorneys’ fees to another day. Why did the school lose on the LRE issue?  Primarily because the evidence showed that the student was doing pretty well in his mainstream setting.  Progress reports indicated that he was on track to achieve his IEP goals. The district was very precise in how it reported progress. The court pointed out that district records showed that as of the 18th week of school the student was already at or close to the goal for the 27th week in Social Studies, Math and Science.  Moreover, by all accounts his behavior had improved. Key Quote:

Despite CCISD’s claims to the contrary, there is no overwhelming evidence in the record establishing that A.B. is so limited in function, or so demanding as a student, as to entirely absorb a teacher’s time and create an undue burden, especially with a paraprofessional providing in-class and resource room support.  Also, in light of A.B.’s improved behavior, he is no longer disruptive in a disciplinary sense and has shown marked improvement such that he no longer exhibits task avoidance behavior.

Tool #3 comes into play only when the student’s current placement is not successful.  There is no reason to propose a change of placement, particularly not a change to a more restrictive setting, if the current placement is successful.  In this case it was the very success of the district that undercut its effort to make a change.  Some would point out that the student was not at grade level. Here is what the court said about that:

Although A.B.’s test scores and evaluations showed academic performance below his assigned grade level, with instruction at a slower pace and with more repetition, his progress remained consistent and markedly improved in a general educational setting.

The case of A.B. v. Clear Creek ISD was decided by the federal court for the Southern District of Texas on September 28, 2018. We found it at 2018 WL 4680564.


Tomorrow: another “teacher use of force” case. This time, the teacher loses.