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Last Updated: 11/20/2017
 

Ask the Attorney with John Brower, J.D.   [Back to Ask the Attorney]

Question: My non-disabled child's classroom has been evacuated nine times in three quarters due to violent outbursts of a special education student.  The special education student also uses profane language on a daily basis.  He has also injured students.  I am told that his IEP Team has determined he is not a threat and the disruption is acceptable.  The Administration, so far, is standing behind the IEP Team and IDEA.  My question is - do non-disabled students have any rights in this situation?
   

Answer:  In my opinion, the real question is – is the Administration standing behind IDEA or just using it to hide?

 

IDEA, at 20 USC 1414(d)(3)(B)(i), addresses this issue.  The Comments to the Regulations implementing IDEA state as follows:

 

39.       If a child's behavior in the regular classroom, even with appropriate interventions, would significantly impair the learning of others, can the group that makes the placement decision determine that placement in the regular classroom is inappropriate for that child?

The IEP team, in developing the IEP, is required to consider, when appropriate, strategies, including positive behavioral interventions, strategies, and supports to address the behavior of a child with a disability whose behavior impedes his or her learning or that of others.  If the IEP team determines that such supports, strategies or interventions are necessary to address the behavior of the child, those services must be included in the child=s IEP.  These provisions are designed to foster increased participation of children with disabilities in regular education environments or other less restrictive environments, not to serve as a basis for placing children with disabilities in more restrictive settings. 

The determination of appropriate placement for a child whose behavior is interfering with the education of others requires careful consideration of whether the child can appropriately function in the regular classroom if provided appropriate behavioral supports, strategies and interventions.  If the child can appropriately function in the regular classroom with appropriate behavioral supports, strategies or interventions, placement in a more restrictive environment would be inconsistent with the least restrictive environment provisions of the IDEA.  If the child=s behavior in the regular classroom, even with the provision of appropriate behavioral supports, strategies or interventions, would significantly impair the learning of others, that placement would not meet his or her needs and would not be appropriate for that child.

 

As you can see, when a disabled child's actions are preventing that child, or the other children in the classroom, from receiving their education then the student’s IEP Team must determine why the conduct is occurring (an functional analysis of behavior) and then design a plan that addresses that behavior (behavior modification plan). 

If this effort does not control the behavior and the child, and his or her classmates’ education continues to be interrupted, then it is the obligation of the child's IEP Team to meet and determine if the program and placement defined in the current IEP is appropriate.  In determining an appropriate placement, a school system must make available the full continuum of placements.  That continuum ranges from a regular education classroom with minimal direct and indirect support/services, all the way to a residential placement that could find the disabled child alone with a few other disabled students in a class with a 1:1 aide and a teacher.  

 

What the law requires is a preference for a placement in the least restrictive environment with exposure to non-disabled students, as long as both the disabled and non-disabled students education can continue.  If a school proposes something to restrictive, the child's parents have the right to dispute any proposed placement by bringing the matter before a hearing officer who will decide, after the presentation of witnesses and evidence, what is an appropriate program and placement for the child in the least restrictive setting possible.  Here, the school may be afraid they cannot prove to the satisfaction of an impartial hearing officer that they have first attempted to provide all the services (like a 1:1 aide) that would make the current placement appropriate before proposing a more restrictive placement.  

 

Sadly, in my experience some school personnel would rather just sit back and blame the IDEA law and the disabled child (and his or her parents) when in reality it is their inaction that is the true cause of the problem.  The reality is that each IEP Team (which is made up of school administrators, school teachers, other school professionals, and the parent) has (or should have) a full palette of placement and program choices available.  If the IEP Team, under the leadership of the special education administration, elects not to use all the options available, whose fault is that? 

In terms of the rights of the other students, that is a more difficult question, as Congress has never created a federal right to an education.  It is a right created in most states’ constitution.  Along with providing for a public education for its citizens, most states also have compulsory education laws that require all students below a certain age to attend school.  In my opinion, besides providing buildings, teachers, etc., inherent to requiring students to attend school is an obligation to provide a safe environment for all students.  When, over time, an environment is allowed to exist where children are not safe, that would appear to be evidence of the state or local unit of government not doing their job.  Unfortunately, few courts agree with me.  To date they have been universally unwilling to hold school administrators and elected school officials liable to provide a meaningful education to its students, much less “safe schools”.  Therefore, from my perspective the only realistically avenue left for accountability is via the locally elected school officials.

 

John Brower, JD
Education Law Center, PLLC
Education Law Center, PLLC · 810-227-9850 · www.michedlawcenter.com 

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