The Toolbox is an all day training program for school administrators and special education staff to better serve students with disabilities who present challenging, sometime violent, behaviors. We offer ten “tools” that the law authorizes. Only one of those tools authorizes a campus principal to order a long term removal unilaterally: Tool #5—a removal due to “special circumstances.” Specifically, the law allows the immediate removal of a student to an “interim alternative educational setting” if the student violates the code of conduct through 1) the use or possession of drugs; 2) use or possession of a weapon; or 3) the infliction of “serious bodily injury.” Today we highlight a case from Washington, D.C. involving serious bodily injury.
The student, who had an emotional disturbance, repeatedly punched another student in the head, causing a concussion. Even though the IEP Team concluded that this violent outburst was a manifestation of the boy’s emotional disturbance, the principal ordered the student removed from the placement called for in his IEP. Because the incident involved a bodily injury that was “serious” the principal had the authority to do this. We refer to this as Tool #5. The principal can order the removal, but an IEP Team meeting (ARD) is necessary to select the “interim alternative educational setting” that will be used.
So far so good. But a Tool #5 removal is capped at 45 school days, and in this case, the school refused to allow the student to return after the 45 days. The school continued to believe that the student’s presence would be dangerous to others, and thus it would not re-admit the student.
That was a mistake. After a careful review of the regulations, the court noted that after the 45 days, “the School cannot unilaterally continue to exclude [the student].” Instead, the school would have to get approval from a judge or a hearing officer to extend the student’s exclusion due to safety concerns.
In Toolbox training we put a lot of emphasize on the word “unilateral.” In the only Supreme Court case involving special education discipline the High Court noted that Congress had deliberately stripped schools of the authority to “unilaterally” remove students from school due to misconduct. However, Congress has since restored that unilateral authority in the three “special circumstances.”
This case illustrates a principal using his unilateral authority to the max—the full 45 days. But when the principal tried to go beyond the 45 days the court stopped him, and reminded him that he would need the approval of a court or hearing officer to do that.
In Toolbox terminology, the principal successfully used Tool #5 and was stopped short from extending the student’s removal. There is another tool that authorizes that (Tool #4) but it requires judicial or hearing officer approval.
Sound interesting? Sound useful? If you want to know more about the Toolbox, let me hear from you! This case is Olu-Cole v. E.L. Haynes Public Charter School, 71 IDELR 194; 292 F.Supp.3d 413 (D.C.D.C. 2018).
DAWG BONE: TOOL #5 IS THE PRINCIPAL’S TOOL, TO BE USED WISELY, RARELY, AND CAREFULLY.
Tomorrow: Our first look at the proposed Title IX regulations.