I usually start my Toolbox presentations explaining the natural tension that is built into our federal special education law. The law requires schools to maintain safety. It requires schools to serve students who may be dangerous. Sometimes those two requirements are at odds with each other.
A recent federal court case involving a charter school in New York spells out the tension nicely. It’s a lengthy court decision including four appendices and 63 footnotes. The court noted that it reviewed over 1,000 student discipline cases. The court held that the plaintiffs properly alleged claims that the charter school failed to provide due process, abused the “special circumstances” provision of IDEA and failed to provide adequate services in the IAES (Interim Alternative Educational Setting). Thus those claims will proceed. The student was repeating first grade for the third time, largely due to repeated suspensions from school.
Footnote 57 is where I found the court’s explanation of the natural tension built into the law:
….the Court recognizes the tension between the protection of [the student's] rights under the IDEA and [the school’s] interests in protecting their students from harm and themselves from related liability.
The disconnect here is between the “serious bodily injury” exception of the IDEA and the “continuing danger” exception of the 14th Amendment. Under the IDEA, serious bodily injury is defined very narrowly…
By contrast…..the “continuing danger” exception…is clearly a more flexible standard than that for “serious bodily injury.”
Therefore, in some circumstances, schools could be required to allow a disabled student who did not inflict “serious bodily injury,” but is a “continuing danger” to return to school, or else risk being held liable under the IDEA for improperly keeping the student out of school. This potentially puts the school in the difficult position of weighing the safety of the student body against the monetary liability for violating the rights of a disabled student. However, the Supreme Court has held that this tension is an intentional feature of the IDEA.
Yep. That’s why our firm offers a full day training program that we call The Toolbox. It’s designed to empower educators to balance those two requirements properly. We offer ten “tools,” a book to keep, some nifty laminated cards and some interesting hypotheticals to play around with. If interested, let me hear from you.
The case is Patrick v. Success Academy Charter Schools, Inc. decided by the Eastern District of New York on December 14, 2018. We found it at 73 IDELR 146.
DAWG BONE: THE BUILT IN TENSION WAS NO MISTAKE. CONGRESS DID IT ON PURPOSE.
Tomorrow: Coaches acting badly. Not in Texas!!