I have posted before about labels and when they are or are not an important part of the eligibility and placement determination. And, I have written that labels are not supposed to matter; once your child is eligible, whatever the child needs in order to benefit from his education is supposed to be provided.
But special education is not always what it is supposed to be, is it.
Take for example, the March 8, 2013 decision in Parent v. Temecula Valley Unified School District.
This is one of those terrifying decisions that causes me, as a professional, to wonder who decided to set this child up for the actions that were intentionally inflicted upon him. In the TVUSD case, Student was a 12th grader placed at a district comprehensive educational campus. Because of a family move, he was at a new school for his senior year but well known in the district. He qualified for special education in first grade with a primary eligibility of autism and a secondary eligibility of speech and language impairment (SLI). Student also qualified for eligibility under the category of specific learning disability for processing. While other eligibilities were not identified on Student’s IEP, the district was well aware that Student also had bi-polar disorder, anxiety disorder, impulse control disorder, intermittent explosive disorder, Asperger’s disorder, and Tourette’s syndrome. District was also aware that Student took medication daily for bi-polar disorder, anxiety and mood stabilization. Student had a history of self-injurious behaviors secondary to his anxiety, including head banging and scratching himself. He had been in therapy for more than 10 years and had long standing difficulties with forming friendships.
In sophomore and Junior years, Student was placed in a special day class for English, Math and US History. He had 10 disciplinary referrals during those two years. Student had challenges with peer relationships and was trying to fit in. One disciplinary referral was related to Student drawing a bong and calling himself a nickname that implied drug use. The student told his parents that he drew the bong to try to fit in. In his sophomore year, Student began to develop an identity as a “bro”; student employed dress, mannerisms, music and language to develop this persona to overcome feelings of inferiority. The persona gave Student a feeling of power.
So, Student transfers to a new school for senior year. Student made a friend during the first week of school named Daniel. It turns out that Daniel was an undercover police officer posing as a student who placed Student in his sights for a drug sting operation. Daniel looked like a typical student. Parents were thrilled that Student had a new friend; Student and Daniel texted each other frequently. Almost immediately, however, Daniel asked to buy Student’s prescription drugs. Student refused. Daniel then asked Student to buy him some marijuana and gave him $20.00 Daniel told Student he desperately needed the pot and was having family problems. Within three days, Student’s anxiety was so high because of the pressure from Daniel that he reverted to previous self-injurious behavior and intentionally burned himself, resulting in a referral to the nurse. Mother asked for an IEP meeting. At this IEP meeting, Student’s counseling was increased to weekly sessions for a month in order to determine triggers or signs before things become too stressful.
After Daniel began preying on Student, his bad-boy persona re-emerged in a social skills group lesson. In response to a conversation starter presented by the speech therapist about what you would do about bullying, Student said he would “take them down” and “put the hurt on them”. Student maintained his bad boy persona in an effort to appear cool. While these statements raised a red flag in the mind of the speech therapist, and she actually contacted Student’s mother, when she was given permission to follow up with Student’s private therapist, she did not. Student also demonstrated significantly poor insight during this time in an English class where he was assigned to take the perspective of a purse-thief writing an apology letter to his victim years after the theft; instead, he defended the thief and came up with justifications for his thievery. The English teacher assumed this was part of Student’s bad-boy persona and while she spoke to him about it, she did not follow up further.
Daniel’s persistence continued. He was texting Student 5 or 6 times a day. At the same time, while Student’s counseling had been increased, the district failed to implement it. While student did get some of his speech sessions, they were not working on his social skills goals. Finally, almost a month after Daniel began his incessant pleas, Student bought some marijuana and gave it to Daniel. Student was arrested and suspended with the district recommending expulsion.
A school cannot expel a student with a disability without having a manifestation determination hearing. This is a meeting like an IEP meeting where the members present determine whether the behavior was a manifestation of student’s disability. If it was, they cannot expel the student. At the MD hearing in this case, the school did not invite all of the Student’s teachers. In fact, the special education teacher who knew student well was excluded. Nevertheless, he came on his own, knowing the meeting was taking place as he wanted to plead for the student and ask for leniency. He made his case to Student’s case manager who was going to lead the meeting. He explained that the conduct of the undercover police officer would have presented a difficult situation for any student but particularly for a student who had disabilities and a desperate desire for friends and to fit in. The case manager decided not to tell anyone else at the meeting what the teacher had told her. Okay, can you say Kangaroo court? When she led the meeting, she intentionally limited the inquiry to whether the behavior was a manifestation of the three disabilities for which student had been found eligible. While they knew Student had an anxiety disorder and was Bi-polar, and took medication for these conditions, the team was NOT allowed to consider whether the behavior was due to these conditions. The team limited their inquiry to the issue of the sale of marijuana and asked if Student knew right from wrong. They refused to consider the circumstances of Daniel’s targeting the Student for friendship; parents believed that the district failed to consider Student’s complete diagnosis and failed to take into consideration the totality of the relationship between Daniel and Student. They argued that Student was socially naïve and vulnerable and starved for friendship; his disabilities manifested in poor choices and inappropriate behavior.
The team concluded that the behavior was NOT due to Student’s listed areas of disability and recommended expulsion. The team also concluded that the Student’s conduct was not due to its failure to implement the IEP; in fact, they concluded the IEP had been fully implemented.
The Office of Administrative hearings reversed.
In reversing, the administrative law judge summarized the testimony of some of the witnesses presented by the Student, including other teachers and school staff that were NOT present at the manifestation determination. One witness was a school security officer who testified that she was familiar with Student and that it was immediately obvious to her that Student was a special needs student. She described him as slow to process and answer questions and only occasionally made eye contact. She could tell he had special needs by his mannerism. The court agreed that during the time of the drug incidents, Student was struggling socially, was anxious, and was demonstrating poor judgment during the transition to a new campus. The court relied upon the evidence of student’s self-injurious behavior, his adoption of the bad-boy persona, and his inability to resist poor choices. While the judge ultimately concluded that this behavior was consisted with Student’s eligibility as a student with Autism, the “eligibility lesson” here is to make sure that the IEP fully and carefully includes ALL diagnostic labels that might help explain how the student acts and to ensure that all needs are met. The judge ultimately also agreed that the Student’s conduct was also a manifestation of his anxiety and mood disorder.
What is troubling about this case is that the district apparently knew that student was being targeted in the undercover operation, knew that he had special needs, and knew that he was going to be arrested; Still the district did nothing. The judge recognized that the district “left Student to fend for himself, anxious and alone, against an undercover police officer”. It is a terrifying decision but does raise some important lessons that need to be learned.
1. Students with autism, Asperger’s and other disorders are particularly vulnerable to others who prey on the weak. Whether the school bully who is seeking power, the pedophile with the “cute little dog”, the “friend” who constantly forgets his lunch money, our kids are taken advantage of and need to be taught directly how to problem solve in these situations. It is a very difficult lesson because in order to teach the skills, you have to expose the children to the horrors of the real world. Our instinct as parents is to shield our kids from these truths but we must ask teachers to include lessons about this, at the level of our kids, so that they have some knowledge of how to respond.
2. IEPs must include medical diagnoses that may explain student conduct. Many districts find a primary eligibility and leave it at that. Not all students with Autism have ADHD but if your child does, adding that in the IEP under “health” and how that manifests (e.g. may engage in impulsive behavior) may protect your child if he does make a poor judgment as a result of his disability.
3. Counseling is a very significant part of an overall program. I do not believe that most school counselors are qualified to provide therapeutic counseling services to children with disabilities. When parents ask me what types of services are most important (e.g. what schools won’t provide). counseling should be at or near the top of the list. You want to have a counselor on board BEFORE trouble begins so that your child has a confidential, trusting relationship with someone other than you. They will not tell you they are being bullied but they might tell their counselor.
4. Watch and listen to your children. Typical or special needs there are signs. Look for tardies on their attendance records (check to see if attendance records are available on line as is now available in many schools). This may be a sign of anxiety. Keep a watch on grade postings to see if there are any changes; keep in touch with teachers if concerns are raised. Do not keep this in. If you see something and have no idea if you are in left field, email the teacher and ask if he/she is seeing anything. If nothing else, if months later something awful happens, you have a record of your early contact.
5. Most importantly, never pass up a teachable moment. If there is an episode on Glee (and yes, you should be watching television with your children), and the school bully is abusing the gay/fat/disabled/geeky kid, take that as an opportunity to open the discussion with your children, typical and special needs. Teach them how to self- advocate (“Stop that. I will report you if you do not stop). Make sure they understand the difference between tattling and reporting and how important reporting is. Teach them to be good bystanders and to stand up against hate when they see it and to support victims and report abuse that they see. Raise them to be open in their friendships, to welcome diversity, and to accept others for who they are.