PROMISING SOLUTIONS AND CREATIVE STRATEGIES THAT HELP TEACHERS FEEL IN CONTROL OF THE CLASSROOM…

PROMISING SOLUTIONS AND CREATIVE STRATEGIES THAT HELP TEACHERS FEEL IN CONTROL OF THE CLASSROOM, WITHOUT RELYING ON IN-SCHOOL AND OUT OF SCHOOL DISCIPLINE PRACTICES

While in-school discipline practices such as in-school suspensions, corporal punishment, and alternative school placements are a huge problem; constructive suspensions, shortened school days, suspensions, expulsions, and referrals to Youth Court remain an even greater problem for students with disabilities in the experience of Disability Rights Mississippi (DRMS). DRMS is one of two agencies in Mississippi that provides individual legal representation on behalf of students with disabilities who are receiving special education services or are in need of special education services.

Holding school districts accountable under the disciplinary mandates of the Individuals with Disabilities Education Act (IDEA) would largely resolve the problem of wrongful in-school and out of school discipline practices of students with disabilities. Disciplinary mandates under the IDEA include:

1. Related Services

• “The term ‘related services’ means transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.” 20 U.S.C. § 1401(26) (emphasis added); see also 34 C.F.R. §300.34, SBP 7219 § 300.34. The related services listed in the statute and in the regulations are illustrative, not exhaustive. See, e.g., C. v. Missouri State Bd. of Educ., 670 F. Supp.2d 972 (E.D. Mo. 2009).

• Key related services for students with disabilities that have behavioral manifestations stemming from their disabilities include counseling services, psychological services, social skills services, social work services and parent counseling and training services.

2. Functional Behavioral Assessments (FBAs)
• “The purpose of a functional behavioral assessment is to isolate a target behavior and to develop a hypothesis regarding the function of the target behavior. A target behavior is one that interferes with a student’s ability to progress in the curriculum and to achieve the student’s IEP goals. Once the target behavior is identified and the hypothesis developed, a positive behavior intervention plan can be prepared to address the target behavior with strategies and interventions . . .” Broward County Sch. Bd., 110 LRP 38160 (SEA FL 05/07/10) (emphasis added); See also Independent Sch. Dist. No. 2310, 29 IDELR 330 (SEA MN 1998).
• The United States Department of Education stated, in regards to conducting functional behavioral assessments, that 34 C.F.R. § 300.304(c)(4) “requires the public agency to ensure that the child is assessed in all areas related to the suspected disability. This could include, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. This is not an exhaustive list of areas that must be assessed. Decisions regarding the areas to be assessed are determined by the suspected needs of the child. If a child’s behavior or physical status is of concern, evaluations addressing these areas must be conducted.” 71 Fed. Reg. 46,643 (2006) (emphasis added).
3. Behavioral Intervention Plans (BIPs)

• Once the FBA is completed, the BIP can be developed.

• “The IEP Team must . . . In the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior . . .” 34 C.F.R. § 300.324(a)(2)(i) (emphasis added); see also SBP 7219 § 300.324(a)(2)(i).

• OSEP has provided guidance that IEP teams should consider the use of positive behavioral interventions tailored to the unique needs of a child. Letter to Anonymous, 50 IDELR 228 (OSEP 2008) (emphasis added).

• BIPs should be written with sufficient specificity to address the child’s behaviors taking into account the child’s individual needs. Kingsport City Sch. Sys. v. J.R., 2008 WL 4138109 (E.D. Tenn. 2008) (holding the BIP was not appropriate for addressing the child’s behaviors resulting in a denial of FAPE); In re Student with a Disability, 49 IDELR 147 (SEA IN 2008); New York City Dep’t of Educ., 49 IDELR 270 (SEA NY 2008) (finding the one page FBA form used to develop the BIP for a child with Autism did not address the frequency of the behaviors, the intensity or duration of the behaviors or describe events or conditions that triggered the child’s behaviors; finding the BIP developed from the FBA was vague and did not offer specific strategies for addressing the behaviors of the child resulting in the denial of a meaningful educational benefit).

4. Manifestation Determination Reviews (MDRs)

• “Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the . . . IEP Team . . . must review all relevant information in the student’s file . . . to determine . . . If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or . . . If the conduct in question was the direct result of the LEA’s failure to implement the IEP. . . The conduct must be determined to be a manifestation of the child’s disability if the . . . IEP Team determines that a condition in either paragraph . . . was met.” 34 C.F.R. § 300.530(e)(1)(2) (emphasis added); see also SBP 7219 § 300.530(e)(1)(2), 20 U.S.C. § 1415(k).

• “For purposes of removals of a child with a disability from the child’s current educational placement . . . a change of placement occurs if . . . The removal is for more than 10 consecutive school days; or . . . The child has been subjected to a series of removals that constitute a pattern . . .” 34 C.F.R. § 300.536(a) (emphasis added); see also SBP 7219 § 300.536(a), 20 U.S.C. § 1415(k).

• “If . . . the IEP Team make the determination that the conduct was a manifestation of the child’s disability, the IEP Team must . . . Either . . . Conduct a functional behavioral assessment, unless the LEA had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or . . . If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and . . . return the child to the placement from which the child was removed . . .” 34 C.F.R. § 300.530(f) (emphasis added); see also SBP 7219 § 300.530(f), 20 U.S.C. § 1415(k).

Thus, the question is how can school districts in Mississippi be held accountable under the IDEA, an act first passed by Congress 40 years ago. The Mississippi Department of Education (MDE) is responsible for holding school districts accountable under the IDEA through its monitoring and enforcement authority. 20 U.S.C. § 1412(a)(11)(A); 34 C.F.R. § 300.600(e). Despite this responsibility, in the experience of DRMS, the above referenced disciplinary violations by school districts in Mississippi persist year after year. Moreover, school districts commonly hire private law firms, at tax payer expense, to assist them in denying services sought by parents of children with disabilities under the IDEA. These services would generally only cost a fraction of the attorneys’ fees paid out by the school districts. Legislative funding to the two existing non-profits that currently provide individual legal services to students with disabilities would go a long way to level the playing field on behalf of parents of students with disabilities. Appropriate implementation of the disciplinary mandates under the IDEA would help teachers feel in control of the classroom, without relying on in-school and out of school discipline practices.

Submitted by:

Wendell Hutchinson
DRMS Managing Attorney