Toolbox Tuesday!! The “shoulda known kids.”

It’s Toolbox Tuesday, folks!! More importantly, it’s ELECTION DAY!!  If you did not vote early, the Dawg encourages you to STOP READING RIGHT HERE  and GO VOTE!

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On Tuesdays we highlight the Toolbox—an all day presentation designed to help you better understand the complicated morass of regulations that govern special education discipline.  Today we have an excellent case to share with you. It’s a case that focuses on what I call “the shoulda known kids.”

The “shoulda known kids” are general education students who are entitled to the procedural protections of our special education laws.  How can that be?  How can a student not identified and eligible for special education be entitled to the protections that apply to the students who are identified and eligible?

The short answer is that 34 CFR 300.534 tells us that there are such kids.  The regulation extends protection to a student if the school “had knowledge….that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.”  In other words, you “shoulda known.”

The regulation then outlines three categories of students who meet the “shoulda known” criteria.  Then there is an exception: if the parent has not allowed the district to conduct an evaluation of the child, or has been offered and refused services, then the parent cannot claim “shoulda known” status for the child.

That’s what happened in a recent case from California.  Here is the critical sequence of events:

September 15: mom gives the school a written request for an evaluation for special education.  Note: this puts the student into the “shoulda known” category.  But keep reading.

September 22: district agrees to do the evaluation and provides mom with the consent form to sign.

November 18: the district expelled the student without providing a manifestation determination or any other of the procedural protections that special education students would have. The district treated the student as a general education student because the mother had not signed the consent.

January 5: mom signed the consent.

The September 15th request for an evaluation put the student into the “shoulda known” category, but mom’s failure to sign the consent for the evaluation that was offered pulled the boy out of that category.  Thus the court ruled that the district was not obligated to do a manifestation determination.

The court noted that the district made repeated efforts to obtain consent, going “the extra mile.”   The parent was evidently bilingual, as some communication came to the school in English and some in Spanish. The district communicated back to the mother in both languages, offering the consent form in both English and Spanish. Mother did not sign.  Key Quote:

To the extent that Plaintiff’s mother requested that he be evaluated for special education services by letter dated September 15, 2014, a basis for knowledge exists.   Nevertheless, the District is not deemed to have knowledge if the parent has not allowed an evaluation of the student. What the District must do is to make reasonable efforts to gain a parent’s informed consent for such evaluation.  As long as those reasonable efforts are made, a parent’s failure to consent to special education evaluation means that his or her child can be disciplined in the same manner as students without disabilities who engage in comparable behavior.

The case is A.V. v. Panama-Buena Vista Union School District, decided by the federal court for the Eastern District of California on January 8, 2018. We found it at 71 IDELR 107.


 Tomorrow: High level court weighs in on transgender students.