Quick question: what’s the difference between stealing a cookie and stealing an ATV (All Terrain Vehicle)?  Perhaps the first distinction that comes to mind is the value of the stolen item.  Criminal law would treat the ATV theft more seriously, since it has greater monetary value.  But a federal court made note of another distinction in the process of upholding the Manifestation Determination made by an ARD Committee in Wimberley ISD.  The court pointed out that a student who is plagued by impulsivity might very well grab that cookie without much thought.  Riding off in someone else’s ATV, on the other hand, requires a bit of stealthy planning.  Therefore, it’s less likely to be a product of impulsivity. 

ARD Committees often discuss impulsivity, especially with students who carry a diagnosis of Attention Deficit Disorder.  The argument is that the student does not think things through, does not anticipate consequences, does not plan.  The ARDC in Wimberley concluded that the student’s theft of the ATV required a level of premeditation that was inconsistent with “impulsivity.”    Members also observed that the district served many students with ADHD, and yet most of them did not steal things.  The ARDC’s conclusion was that this was not a manifestation of disability, nor the result of the failure of the district to implement the IEP.  The parent disagreed, and thus, litigation ensued.

The special education hearing officer ruled in favor of the district and now the federal district court has affirmed that decision.  The district handled this situation well. They had the right people at the meeting, they listened patiently as the student’s advocate engaged in what the court described as a lengthy and hostile cross-examination, they had a solid basis for their conclusions, and they were able to demonstrate that the DAEP would be able to provide an appropriate education to the student for his 45-day assignment.

In Toolbox terminology, this is a Tool #6 case: a Disciplinary Change of Placement.  The student was charged with felony theft. Even though this happened in the summer when school was out, Chapter 37 authorizes DAEP if the district determines that the student’s presence in regular classrooms would be “detrimental to the educational process.”  The district made those findings, properly handled the MDR and successfully defended its decision in the court case. I’m pleased to let you know that Kelly Janes and Jamie Turner of our firm’s Austin office represented the district on this one.  It’s Gloria V. v. Wimberley ISD, decided by the federal court for the Western District of Texas on February 26, 2021. The court’s decision is on SpecialEd Connection at 78 IDELR 96 and the magistrate’s Report and Recommendation is at 121 LRP 8057. 

DAWG BONE: THE DAWG HAS SNATCHED A COOKIE OR TWO…..IT WAS IMPULSIVE.

Tomorrow: T.E.A. turns it around