© 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.

Special Education Discipline

Neal TakiffBrooke WhittedWHITTED CLEARY & TAKIFF LLC

© 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.

Special Education Discipline

• HONIG V. DOE• ONLY TWO WAYS TO EXCLUDE:

– PARENT PERMISSION– COURT ORDER

• ALONG COME THE 1997 CHANGES• AND THE 2004 CHANGES• RESULTING IN THE FOLLOWING:

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RULES GOVERNING CHANGES IN PLACEMENT

HONIG V. DOE

LIVES!!

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EXCEPT FOR:

WEAPONSDRUGSSERIOUS BODILY INJURY“SUBSTANTIALLY LIKELY” TO

CAUSE INJURY TO SELF OR OTHERS

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SOME DEFINITIONS

“WEAPON”WEAPON, DEVICE, INSTRUMENT, MATERIAL, OR SUBSTANCE,

ANIMATE OR INANIMATE, USED FOR, OR READILY CAPABLE OF, CAUSING DEATH OR SERIOUS BODILY INJURY, BUT DOES NOT INCLUDE A POCKET KNIFE WITH A BLADE UNDER 2.5”

“DRUGS”A CONTROLLED SUBSTANCE, UNLESS LEGALLY POSSESSED

AND UNDER THE SUPERVISION OF A LICENSED HEALTH CARE PROFESSIONAL

“SERIOUS BODILY INJURY”SUBSTANTIAL RISK OF DEATH, EXTREME PAIN, PROTRACTED

AND OBVIOUS DISFIGUREMENT, OR PROTRACTED LOSS OR IMPAIRMENT OF THE FUNCTION OF A BODILY MEMBER, ORGAN OR MENTAL FACULTY

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INTERIM ALTERNATIVE SETTING: SOME COMPLICATED CONSIDERATIONS

STUDENT IS PLACED IN IAES FOR 45 DAYS FOR WEAPONS / DRUGS / INJURY or (W/ EXPEDITED HEARING) RISK OF HARM TO SELF OR OTHERS

SCHOOL PROPOSES TO CHANGE PLACEMENT AFTER EXPIRATION OF 45 DAYS

PARENTS CHALLENGE SCHOOL’S PLAN STUDENT MUST BE RETURNED TO THE PRE-IAES

PLACEMENT DURING PENDENCY OF THE PARENT CHALLENGE (IN OTHER WORDS, HONIG v DOE APPLIES)

UNLESS

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SCHOOL DISTRICT REQUESTS AN EXPEDITED HEARING TO SHOW:

1. PRE-IAES PLACEMENT SUBSTANTIALLY LIKELY TO RESULT IN INJURY TO PUPIL OR OTHERS

2. THE IAES PLACEMENT IS APPROPRIATE

3. DISTRICT HAS MADE REASONABLE EFFORTS TO MINIMIZE THE RISK

4. THE IAES ALLOWS THE STUDENT TO

A. PARTICIPATE IN THE GENERAL CURRICULUM

B. CONTINUE TO RECEIVE ALL IEP SERVICES INCLUDING MODIFICATIONS TO ADDRESS THE BEHAVIOR IN QUESTION

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IN EXPEDITED HEARINGS, PER ILLINOIS REGS AT 23 IAC 226.655, THE HEARING OFFICER DETERMINES:

1. WHETHER THE CHILD SHALL BE PLACED IN THE PROPOSED ALTERNATIVE SETTING; -OR-

2. WHETHER THE LOCAL SCHOOL DISTRICT HAS DEMONSTRATED THAT A CHILD’S BEHAVIOR WAS NOT A MANIFESTATION OF THE CHILD’S DISABILITY (MORE ON THIS LATER)

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WHAT IF THE PARENTS CHALLENGE THE “AES” PLACEMENT PRIOR TO EXPIRATION OF THE 45 DAYS?

• IF A HEARING OFFICER HAS NOT YET MADE ANY SUBSTANTIVE RULINGS,

• THE “STAYPUT” PLACEMENT IS THE ALTERNATE SETTING DURING PENDENCY OF PARENT CHALLENGE TO THE ALTERNATIVE-SETTING PLACEMENT

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Special Education Discipline

• Does the offense involve drugs • or weapons• Did the student inflict serious bodily injury• Are there behaviors that are dangerous to

self or others.IF THE ANSWER TO ALL THESE QUESTIONS IS NO, AND SCHOOL IS SEEKING AN EXPULSION, THEN NEED TO HOLD MDR

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MDR – FBA – BIP REFRESHER

MDR REQUIRES:TEAM OF PEOPLEKNOWLEDGEABLE ABOUT STUDENTPLUS PARENTSMUST MEETTO DETERMINE “RELATEDNESS”

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REQUIREMENTS FOR “RELATEDNESS”

CAUSED BY THE DISABILITY – or DIRECT & SUBSTANTIAL RELATIONSHIP TO

IT

-OR- CONDUCT WAS “DIRECT RESULT” OF THE

DISTRICT’S FAILURE TO IMPLEMENT THE IEP

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IF THE ANSWER TO EITHER QUESTION IS YES

STUDENT CANNOT BE EXPELLED;

FUNCTIONAL BEHAVIORAL ANALYSIS MUST BE GENERATED, or, if one exists,

THE BEHAVIORAL INTERVENTION PLAN MUST BE REVIEWED AND MODIFIED ACCORDINGLY

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ASSESSMENT

INCREASINGLY IMPORTANT “GATHERING OF ALL RELEVANT DATA”• BASED ON GOOD RESEARCH, NOT

VOODOO

NOT ADMINISTRATIVE CONVENIENCE RULE OF THUMB: SPEND THE TIME!

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WHAT IS AN FBA ANYWAY?

PROCESS OF GATHERING INFORMATION

ABOUT FACTORS THAT RELIABLY PREDICT PROBLEM BEHAVIOR

FOR THE PURPOSE OF DEVELOPING AN EFFECTIVE BIP

AN FBA IS NOT ITSELF AN ASSESSMENT TOOL OR EVALUATION (BUT SEE DDC 2008 Case)

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IN OTHER WORDS YOU ARE LOOKING FOR

BEHAVIOR AND ITS ANTECEDENTS THAT REPRESENT THE CHILD’S

UNSUCCESSFUL ATTEMPT TO RESPOND TO THE ENVIRONMENT, such as

“YELLING AND SCREAMING IS ONE WAY TO GET ATTENTION”

YOU ARE NOT LOOKING FOR “INVISIBLE FORCES” WITHIN THE STUDENT

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QUERY

DOES IT EVER MAKE SENSE TO DETERMINE IN A MDR THAT AN ASD OR ED STUDENT’S BEHAVIOR IS NOT RELATED TO HIS OR HER DISABILITY?

WHAT ABOUT AN LD STUDENT?

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REMEMBER:

NO INTERRUPTION OF IEP SERVICES FOR ANY REASON

(EXCEPT FOR THE 10 DAYS, OF COURSE)

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EXAMPLES FROM CASE LAW

FULLERTON JT. UNION H.S., 48 IDELR 147 (2007)

SUBSTANTIAL LIKELIHOOD INJURY WOULD RESULT TO EITHER STUDENT OR

TO ANOTHER BEHAVIORS INCLUDED: THREATENING ARSON, FREQUENT OUTBURSTS IN CLASS WHICH LED

TO TOILET CLOGGING, HITTING HIMSELF IN HEAD, THROWING TRASH CAN IN CLASS

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NEW YORK CITY DEPT. OF EDUC., 107 LRP 11702 (2007)

SUBSTANTIAL LIKELIHOOD INJURY WOULD RESULT TO EITHER STUDENT

OR TO ANOTHER (P181)

21 REPORTED INCIDENTS OVER SIX MONTHS OF EPISODES OF PUNCHING, BITING, KICKING, HEAD-BUTTING

AES JUSTIFIED??

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SCITUATE PUBLIC SCHOOLS, 47 IDELR 113 (2007)

PUSHING THE DEFINITION OF A WEAPON (179)

THE PRINCIPAL’S NECKTIE CASE

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Student v. District 214

School district failed to consider all aspects of student’s disability when expelling him for a Facebook posting threatening another student.

Inappropriate to focus on ADHD and not consider executive functioning and mood disorder diagnosis. (P175)

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DRUGS!!!(P172-173)

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Regular Education Discipline

• 105 ILCS 5/10-22.6(a) – The school board has the power to expel pupils guilty of gross disobedience or misconduct– Only after the parents have been requested to

appear at a board meeting or with a hearing officer to discuss their child’s behavior

– May expel for a definite period of time not to exceed 2 calendar years

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Regular Education Discipline

– A student who brings a weapon to school, a school sponsored event, or an activity or event that bears a reasonable relationship to school shall be expelled for a period of not less than one year

– A weapon can be a “look alike”

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Regular Education Discipline

The Tamika Robinson Case

In reviewing a Board’s decision to expel, the court must consider the:

1. egregiousness of the student’s conduct;

2. record of student’s past conduct;

3. likelihood that the conduct will affect delivery of educational services to other children;

4. severity of the punishment; and

5. the interests of the child.

© 2008 by Whitted, Cleary & Takiff, LLC. All rights reserved.

Regular Education Discipline

• 105 ILCS 5/10-22.6(b) – The school board has the power to suspend pupils guilty of gross disobedience or misconduct or to authorize the superintendent of the district or the principal, assistant principal, or dean of students– Not to exceed 10 days– Upon request from parents, suspension must be

reviewed