Toolbox Tuesday: Two Cases!!

We talk a lot in our Toolbox Training about the importance of behavior plans.  Tool #1 is the development and proper use of a BIP—a Behavior Intervention Plan.  If you create a BIP and it works, you may be able to put the rest of the Toolbox away. That’s why Tool #1 is the most important of the ten tools.

I came across two cases recently that deal with behavioral issues and their impact on the delivery of FAPE to a student.  The district prevails in one case, and loses in the other.  But the cases both send the same message. 

The first case comes from the 10th Circuit, and it focuses on that part of IDEA that requires IEP Teams (ARD Committees) to ask themselves each year: does the student have behaviors that impede the learning of the student or others.  The court held that this student’s IEP did not have to include a BIP, as long as behavioral interventions were considered. And even that requirement only applied if the student’s behavior impeded learning. The Team did consider behavioral interventions and deemed them unnecessary.  The court held that the district did what it was supposed to do under the law.  This was based on the testimony of seven district witnesses that the behaviors did not impede learning. Elizabeth B. v. El Paso County School District 11, 78 IDELR 5 (10th Cir. 2020). 

But then you have R.B. v. Downingtown Area School District, 78 IDELR 9 (E.D. Pa. 2020), where the court affirmed the hearing officer’s ruling that the district’s failure to effectively address behavior denied FAPE to the student. The record showed that the district was aware of behavioral problems, and that the district made no progress in addressing them during kindergarten and first grade. A new FBA was done in February of the first grade year, and changes to the BIP were put in place in May, but that came too late.

Lessons?  I count five:

  1.  If behavior impedes the learning of the student or others, the ARD Committee must consider how to address it.
  2. This does not mean that the ARDC is required to write a BIP. There are many ways to consider and address behavior.  ARDCs have discretion, but they must be able to show that they discussed the issue and considered ways to address it.
  3. If the ARDC decides to develop a BIP, it has to monitor how it is working. 
  4. And if it’s not working well, changes should be made.  Promptly.
  5. When seven district employees, all of whom have personal experience with the student, say the same thing, the court is likely to believe it!


Tomorrow: praying at the 50-yard line….