Case of the Month: M.M. v. Special School District No. 1, (8th Circuit, January 4, 2008, cert. denied October 20, 2008).
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This convoluted case from the 8th Circuit (not precedent in Oregon), better known for its burden of proof holding, addresses interesting discipline and placement issues. The US Supreme Court just declined to review it.
The student, identified as emotional disturbed with academic and speech-language needs, was in seventh and eighth grade during the relevant time period. In seventh grade she was suspended from School A for fighting with another student and attacking a staff person who attempted to intervene. After a ten day suspension, the district moved her to School B without conducting an IEP meeting. The student completed the school year at School B, made academic progress, but made "insufficient" progress on her behavioral goals. At the beginning of eighth grade, the parent enrolled the student in an out of district charter school, but after one month returned her to School B.
The 8th Circuit found that the parent could not now raise objections to the "failure to review the IEP" before moving the student because the parents did not not request any changes to the IEP, did not protest the transfer, and did not request a due process hearing. The district did not deny FAPE because the student did not make progress on her behavioral goals: "When a child's primary disability is a behavior disorder, the school district does not violate IDEA simply because the child failed to achieve the IEP's behavioral goals."
After the student returned to School B, the district then held an IEP meeting and increased her time in special education settings to work on academic and behavioral goals. She was suspended several times that fall, resulting in IEP team meetings, an increase in time in special education settings and a new functional behavior assessment and behavior intervention plan. The student continued to make progress on her academic and speech-language goals, and continued to work on her behavior goals.
In January of eighth grade, the student was suspended for five days for attaching a vulnerable student. The IEP team, including the parent, agreed that School B was no longer appropriate and the district proposed moving the student to a special class for at least 60% of the school day at School C. The parent objected to the proposal because there were too many boys in this class. The 8th Circuit, disagreeing with the ALJ and the district court, found the district's proposal appropriate because the student's previous aggressive behavior all involved altercations with girls and there were no immediate openings in the classroom with more girls.
The district and parent agreed to try mediation. In the meantime, the student returned to School B, where she was suspended several more times. The district again proposed the move to the class as School C. The parent again refused.
In mediation, the parties agreed to a less restrictive placement at School D, where the student was almost immediately suspended. Again disagreeing with the lower court, the 8th Circuit found the district did not violate the IDEA by agreeing to try this less restrictive placement. After the suspension, the student returned to school D, where she did well for the rest of the school year. At that point the parent requested a due process hearing. At the hearing, the parent argued that the district should have offered an out of district placement. The ALJ and reviewing courts all rejected this argument, finding that the ED classroom was appropriate. However, the 8th circuit also found no basis for the lower court's award of compensatory education services, finding the parent rejected the district's offer of home instruction during suspensions.
Lessons Learned:
1. The IDEA discipline rules are as convoluted as the facts in this case. Often tensions are high, timelines are short, and options are limited. It's a good time to seek legal advice.
2. Although the district ultimately prevailed, it could have avoided one of the claims in this case by holding an IEP meeting before transferring the student to School B. The purpose of such a review would be to look at the behavioral goals and services and review the behavior plan to determine whether the goals, services and interventions are still appropriate in light of this new behavior or whether changes need to be made. The team might have decided that a lateral transfer (or change in location) was not sufficient and the student needed a more restrictive "change in placement" at that time.
3. The court would not likely have been as sympathetic to the district's position if the student had not been making progress on her academic and speech-language goals. Schools must address lack of progress and not wait until the annual IEP meeting. Here, the district impressed the court by its continuous efforts to address the student's behavioral needs by making changes to the student's program, proposing alternative placements, etc.
4. The district was able to demonstrate that it offered services to the student at home during further suspensions after the first ten school days of suspension. Although the parent refused these services, the court found that compensatory education services were not warranted. Just a reminder -- students who are suspended for more than ten school days in a school year, services must be provided services - both general education and special education.
a. For suspensions of more than ten days that are not a "pattern" - school personnel decide (in consultation with the child's teacher) on the amount and location for the services to be provided.
b. For suspensions of more than ten days that are a "pattern" and the behavior is not a manifestation of the student's disability - the IEP team decides where the services will be provided.
c. For suspensions of more than ten days that are a "pattern" and the behavior IS a manifestation of the student's disability - the student must be returned to the placement from which the student was suspended unless the behavior is one of the "special circumstances" (drugs, weapons, serious bodily injury) that would justify a removal to an interim alternative educational setting, which must be determined by the IEP team.
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