Toolbox Tuesday: Tool #4

My annual Back to School tour kicks off this morning behind the Pine Cone Curtain at Region 7 in Kilgore. Hello East Texas!!

Meanwhile, it’s Toolbox Tuesday.  The Toolbox is our firm’s one day training program regarding disciplinary options with students who are in your special education program.  To make this complex area of the law more understandable we have broken down the options that schools have to ten “tools.”  We give each of them a name and describe when and how it can be used.

Tool #4 is the tool that is used the least.  Tool #4 involves the school seeking an “expedited hearing” asking a hearing officer or judge to change a student’s placement due to fears of imminent injury.  It’s a pretty desperate move by the school when none of the other tools are available. 

Consider, for example, that if a student inflicts a “serious bodily injury” on someone else at school, the principal can order the immediate removal of that student to an “interim alternative educational setting.”  We call this Tool #5 and it does not require the approval of a hearing officer or judge. It’s a tool that the principal can use unilaterally.  Tool #5 is also available if the student possesses or uses a dangerous weapon or a controlled substance at school,

Furthermore, the school can always seek a change of placement that the parent agrees to.  When that happens, the school is using Tool #2—a Change of Placement with Parental Agreement. 

The school can seek a disciplinary change of placement without parental agreement if the student has violated the Code of Conduct and the ARD Committee concludes that the behavior was not a manifestation of disability. That’s Tool #6—and if that’s the situation, it’s the parent who must seek an “expedited hearing.”

So that leaves us with Tool #4.  It’s your go-to tool only when the others are not available.  You have serious student misconduct but 1) it is a manifestation of disability, so Tool #6 is unavailable; 2) the parent will not agree to a change of placement, so Tool #2 is not available; and 3) it does not involve drugs, weapons or a serious bodily injury—so Tool #5 is not available.  

A school in Ohio used Tool #4 with a second grade student. The court summarized the behavior like this:

The school documented C.L.’s incidences beginning in August 2018 that included: regularly leaving the school building; kicking and punching staff members, throwing objects in the classroom and at staff members; threatening a staff member with a large piece of wood and telling the staff member that he was going to hurt him and kill him; standing on desks, tables, and other furniture; and hitting his head against a window.

Based on all of that, the court held that the district had met its burden of proving that maintaining the current placement was substantially likely to result in injury. 

Interested in a Toolbox training?  Let me hear from you!

The case is N.L. v. Springboro Community City School District, decided by the federal district court for the Southern District of Ohio on May 26, 2019.  We found it at 74 IDELR 161 (S.D. Ohio 2019).


Tomorrow: Different professions, different vocabulary.