The Toolbox offers ten “tools” that educators can use to comply with IDEA while serving students who may be disruptive or even violent.  Tool #4 is rarely used. That’s because it takes an unusual confluence of circumstances to make Tool #4 your best option.  A hearing officer’s decision from California illustrates. 

The student drew attention at first because he was “viewing and searching inappropriate content on his school computer during class. Student had a fascination with school shootings, terrorist beheadings and other forms of murder.” He was reading Mein Kampf, which was not part of the school curriculum.

Then there were a number of incidents, such as slamming a door close to the face of a teacher.  The hearing officer recounted what happened in the spring semester of 2022:

Student began targeting minority students online and in-person at school. Student held several online accounts with alias usernames, and frequently used these accounts to threaten and bully minority students. In particular, Student targeted peers who identified as members of the lesbian, gay, bisexual, transgender and queer, called LGBTQ community.

Eventually there were complaints from over 20 students, 12 of whom reported physical assaults. The student also “directed a misogynist, antisemitic slur toward [a teacher] and, multiple times, called [the A.P. an offensive name and made sexually explicit remarks.”

The kid ended up in juvie for 20 days and came back to school in the fall sporting an ankle bracelet.   School officials did not want the student to attend the regular high school, even though that was the placement called for in his IEP.  So they asked for an “expedited hearing” to get an order from a hearing officer to move the student out of his high school and into Point Quest, a private, nonsectarian school certified by the California DOE.  If they prevailed, they would get an order authorizing the removal of the student to Point Quest for 45 school days.

In Toolbox terms, the district was using Tool #4—seeking an expedited hearing to change the placement of a student.  Why would they do that? Why not pursue some other options?  Let’s consider.

One option offered by the Toolbox is Tool #2—an Educational Change of Placement with Parent Consent.  It’s clear from the hearing officer’s decision that the parent in this case would not consent to a move like that.

What about Tool #6—a Disciplinary Change of Placement?  There is no indication that the district attempted this. Perhaps that was because district officials believed that the student’s behavior, though disturbing, was a manifestation of his disability. Tool #6 can only be used when the behavior is not a manifestation of disability.

What about Tool #5—Special Circumstances?  This Tool authorizes the school to order the removal of a student unilaterally. You don’t need parent consent or a hearing officer’s permission, and it can be used even when the behavior is a manifestation of disability. But this Tool is only available when a student possesses or uses drugs, a weapon, or inflicts “serious bodily injury” on someone.  There was none of that here. There were threats. There were physical assaults of multiple students, but none of the students suffered “serious bodily injury.”

All that’s left is Tool #4—a request for an expedited hearing or a court injunction. The Sacramento City School District initiated the hearing process and proved its case after five days  of due process hearing. The hearing officer concluded that maintaining the current placement at the high school “causes a substantial risk of injury to Student or others.” So the student would be removed to Point Quest for 45 school days. The order was issued on September 22, 2022, which means that 45 school days would be up around the first of December. What then? Either the student returns to the high school, or the school asks for another expedited hearing to keep him out for another 45 school days. 

It's not easy. The burden of proof is high. The bill for attorneys’ fees is high.  Success in the hearing is by no means guaranteed, and even if it is successful, it’s a stopgap measure only.  All of which means that Tool #4 should be used sparingly.  It’s better by far to find a resolution that would be acceptable to both school and parent. 

It’s Sacramento City USD, decided by the California hearing officer on September 22, 2022 and reported in Special Ed Connection at 122 LRP 40101.

DAWG BONE: TOOL #4—TO BE USED SPARINGLY.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: one more example of how Massachusetts is not like Texas…