Today we look at a Tool #6 case from California. Tool #6 in the Walsh Gallegos Toolbox is a Disciplinary Change of Placement. It involves removing the student from the placement called for by the IEP for more than ten consecutive days. Since it is a disciplinary removal, an MDR (Manifestation Determination Review) is needed.
C.D. (a/k/a “the Plaintiff”) was 16-years old and in the 9th grade. The court’s opinion tells us that C.D. had a number of mental health conditions that affected his behavior. He had difficulty managing his frustration or anger, along with communication difficulties, learning deficits and ADHD.
The starting point for a Tool #6 case is a violation of the Code of Conduct. C.D. did several things on May 3, 2022 that violated the Code. First, he refused to return to the campus after lunch. Instead, he was hanging out at a nearby construction site, watching the workers. Second, he refused to comply with directives to return to school from two teachers, an aide, the nurse, and the principal. His refusal was accompanied by vulgar insults such as “F you” to the teacher and “F off” to the principal. Third, he took a pen out of his teacher’s back pocket and patted her buttocks. Finally, as he walked back to the campus and entered the office he twice shoved his teacher into the wall.
The principal ordered a suspension, recommended an expulsion, and called for an IEP Team Meeting to conduct an MDR. That’s exactly what Tool #6 requires. The Team determined that C.D.’s behavior was not caused by his disability. Nor was it the result of any failure by the district to implement his IEP, including his BIP.
The parent took the matter to a hearing and produced two witnesses. The hearing officer found Dr. Randall Ball’s testimony “speculative and unreliable.” The hearing officer noted that Dr. Ball muddied up his opinion with qualifiers like “probably” “may” and “likely.” He never saw the scene of the incident, never questioned the student or his parents, never observed the student at the school and “had no personal knowledge” of the student’s functioning prior to this incident.
The other witness was the mother, who testified that she could not think of a single inappropriate behavior of her son that was not caused by his disability. The hearing officer discounted this view, noting that the mom “lacked objectivity and reliability.”
The witnesses from the school were united in their view that C.D. had time to think about his behavior before he shoved the teacher into the wall. The court cited in particular the testimony from the school psychologist and the speech therapist, both of whom agreed with the conclusions of the IEP Team.
The hearing officer conducted a seven-day hearing and ruled in favor of the school. The federal court affirmed that decision, largely based on the deference that courts give to hearing officers who have the benefit of eyeballing the witnesses and hearing it live. The court held that the hearing officer listened to all of the testimony, but gave more weight to the input from the educators who were on the scene when all this happened, and had considerable personal experience with the student.
The student was not really “expelled.” Expulsion, as that term is historically used, is not available with Tool #6 or any other tool in the Toolbox. Schools retain the duty to serve students, even after a serious violation of the Code of Conduct. The case does not make clear how this district served C.D., but simply noted that he was “out of placement” for 22 days. That’s a Disciplinary Change of Placement.
It's C.D. v. Atascadero USD, decided by the federal court for the Central District of California on June 5, 2023. It’s cited as 83 IDELR 80.
DAWG BONE: THE MDR REQUIRES CAREFUL REVIEW OF THE FACTS AND THE EVALUATION DATA PERTAINING TO THE STUDENT.
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