Of the ten “tools” in the Toolbox, Tool #4 is used the least.  It takes a rare set of circumstances to justify the use of Tool #4: An Expedited Hearing. You have to have 1) a perception that retaining the student in the current placement would be dangerous; 2) that perception being based on behavior that is a manifestation of disability; 3) no agreement with the parents as to a change of placement; and 4) no use or possession of drugs or weapons and no infliction of serious bodily injury.  When all of that comes together, the school can seek an “expedited hearing” before a special education hearing officer (note: not a district administrator), or an injunction from a local judge.  The school would be seeking an order to keep the student in some placement other than the one called for by the IEP, at least for a period of time.

The Hope Township in New Jersey did not seek such a hearing, and the court held that this was a denial of FAPE authorizing an award of compensatory services. Rather than seeking an expedited hearing, the school unilaterally removed the student from his current placement without parental agreement. For 17 school days, the student received no services at all.  The court held that this was a denial of FAPE.

In other words, the school district did not use Tool  #4 when it should have. 

There are a lot of extenuating circumstances in this case. The student was new to the school district and came in with behavioral issues far more serious than the school was told. The hearing officer and the court noted that the parent was less than candid about the student’s condition, and the previous school failed to forward some of the important records.  Moreover, Hope Township did not sit on its hands during those 17 days, it was “scrambling” to try to find a good placement for the student.  But meanwhile, the school provided no services. 

In the dry, cold record of the legal proceedings it looked like the exact type of thing that the Supreme Court emphatically said schools could no longer do: unilaterally removing a student with a disability from school. The case is Christine C. v. Hope Township Board of Education, decided by the federal district court in New Jersey on February 2, 2021.  We found it on Special Ed Connection at 121 LRP 4760. 

DAWG BONE: FAILURE TO USE TOOL #4 WHEN YOU CAN MAY BE A DENIAL OF FAPE.

Tomorrow: Immunity from suit; immunity from liability. Not the same thing.