Toolbox Tuesday!! Let’s think about eligibility.

On Toolbox Tuesdays we usually look at a case dealing with the discipline of a student with a disability.  Today we take a slightly different tack.  Let’s think about that very bright student who does not show up for school.  Should we be thinking about referring the child for a Full Initial Individual Evaluation?  Might the student need special education?

We have two recent cases that touch on this issue.   In a Pennsylvania case, the court held that the school failed to adequately evaluate the student for an emotional disturbance.  The school found that the student did have an emotional disturbance, but was not eligible for services due to her strong academic record.  The court acknowledged the good academic record, but noted that the girl was having a lot of trouble with school attendance. Key Quote:

The District here seemingly made no effort to explore a causal relationship between M.J.’s emotional functioning and her attendance, which the District itself points out was adversely affecting her educational performance.

That case is Rose Tree Media School District v. M.J., 74 IDELR 15 (E.D. Pa. 2019). 

The second case, from Minnesota, is another instance of a gifted student who was never a discipline problem, but regularly failed to attend school. The school did not refer the child for testing despite years of excessive absences.  When the parents made a referral, the school conducted an evaluation but determined the student did not qualify due to lack of educational need. The court disagreed:

The Students’ mental health issues—her several diagnoses as of May 2017—appear to have directly impacted her attendance at school.  As the ALJ [Administrative Law Judge] noted, there is no evidence in the record that anything but her mental health issues caused her absenteeism.  The District contends that the Student’s mental health issues and absenteeism did not adversely impact her educational performance because she excelled academically when she attended school.  For the same reasons the ALJ provided, the Court also rejects this argument. 

That one is ISD No. 283 v. E.M.D.H., 74 IDELR 19 (D.C. Minn. 2019).

If we believe that regular attendance is important—and we do—it’s hard to argue that failure to attend is harmless.  Even when the student is smart, and breezes through school assignments when in attendance, it’s hard to argue that there is no educational need. 

In Toolbox terminology this kind of issue comes up when we think about Tool #1—does the student need a BIP?  Remember the standard for consideration of a BIP: does the student engage in behaviors that impede learning of the student or others?  If you are working with a general education student with possible mental health/emotional issues who is not attending school, a referral for testing would probably be a good idea.  If you have a student like that who is already in your special education program, consideration of positive behavior strategies and supports would be a good idea. Tool #1 is the most important tool.    


Tomorrow: Qualified immunity for educators.