Episode Sixteen: Weapons Drugs, and Serious Bodily Harm

In our last episode on discipline, Christina, Lisa, and Miriam talk about some unusual situations and what the law allows school boards to do in terms of imposing discipline when weapons, drugs, or serious bodily harm are involved.

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Miriam: Welcome to Class Act: Updates in Education Law. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We’re attorneys at Walter Haverfield in Cleveland. We practice school law. Every few weeks, we get together. We talk about the most recent legal developments in education relevant to school boards, administrators, teachers, just anybody who works in education.

Lisa: Today, we have Christina Peer here, again, with us to discuss some of these issues about special education students and discipline. If you listened to our last episode, we talked about some of the protections for these students, but also, let you know there’s some exceptions and some unusual circumstances. We’re going to try to dive into those today.

Christina: All right, sounds good.

Miriam: All right. Just a quick recap. Last time we talked about what happens in a manifestation determination review, if the behavior ends up being a manifestation of the child’s disability or a result of the team’s failure to implement the IEP. As we said last time, the district typically cannot change the child’s placement. The kid has to go back to school.

There are a few exceptions. One is if the parent agrees to a change. I don’t think that happens often, but sometimes, the parent will say, “All right. I agree. My kid should be suspended.” That doesn’t happen often, but definitely, that would an exception. Then, the more common exceptions are for weapons, drugs, and serious bodily injury. I think those are general phrases. Let’s talk a little bit more about what that means in detail.

Christina: I don’t know, Lisa. Do you want to talk to us about what a weapon is, maybe. It sounds like it’s pretty self-explanatory, but there’s really, actually, a legal definition here.

Lisa: Yes. Sometimes, districts get a little carried away here, with just about any object can be a weapon in some form or fashion, depending on how it’s being used. There are really some specific definitions, especially for an item such as a knife. If you look in the federal law, there are specifics as far as 2.5 inches of a blade will equate to a knife.

Christina: Right. I think the important thing here is, it’s not just anything that could be used as a weapon. I literally had somebody say to me once, “The kid picked up the stapler and threw it across the room, so that’s a weapon, right, because if I got hit in the head with it, it really would have hurt.” Well, A) you didn’t get hit in the head; and B) I’m not so sure why I would ever consider a stapler a weapon.

If that was the definition you were using, literally, anything that could become a projectile would be a weapon. We really are talking more about firearms, ordnance, things that are, by design, actually a weapon. Then, with the knife issue, you’re right. It is a blade that’s over 2.5 inches. A teeny-tiny little pocket knife or something like that is not going to equate to a knife for purposes of being a weapon.

Miriam: Toy– What about toy guns or BB guns?

Christina: Toy guns or BB guns usually are not going to count, because they’re not real weapons.

Lisa: Maybe, something that boils down to more, it’s readily capable of causing death or serious bodily injury in its normal use.

Christina: Right. I think that is actually part of the federal definition. I also had a parent-attorney, one time, say to me, “We are measuring the knife,” because there was a question as to whether or not it was a weapon or not. I will say this to districts, as a practical tip, “If you have a student who brings a knife to school, probably, what’s going to happen to the weapon is that it’s going to be turned over to the police. You need to make sure that you measure the knife blade and take a picture of it, before the weapon gets turned over to the police.”

Lisa: Pocket knives, generally, aren’t going to fall in to this category.

Christina: Right. Back in the old days, they would literally put the knife on the copy machine and put the ruler beside it. Now, we all have phones that take pictures. It’s not a hard thing to do. I had a parent-attorney tell me once– We were looking at the knife, and she was saying to me, “Christina, you shouldn’t count the point as part of the 2.5 inches.” Really, if you don’t count the point, then the blade is short enough that it’s not going to count.

I’m like, “Now, wait a minute. If I’m getting stabbed with a knife, it’s the point that’s really going to hurt. Why would I not count the point on this knife? That’s just ridiculous.” Yes, you get to count the whole blade, including the point.

Miriam: That’s a great story. I love that story.

Christina: People come up with the strangest things. There’s always a way to be like, “No, it’s not this kid’s fault that they brought a knife to school. They were really just– I don’t know. They went fishing this weekend and brought the knife with them, whatever.”

Miriam: I think it’s just common sense. Sometimes, you read about these stories on the news, “A child was expelled for bringing a plastic knife to school.”

Christina: A squirt gun, or whatever.

Lisa: We’ve definitely become a society sensitive to weapons in schools, with the incidents that have occurred over what, the last 10, 15 years. We see the spectrum of that of being overly cautious. Here, we’re talking about special circumstances for discipline. It’s not to say that if a child is trying to use a pocket knife in a fight, that they’re not going to be disciplined. They still are. We’re just talking about these special circumstances.

Christina: Let’s talk about, really quick, the definition of drugs and serious bodily injuries. Then, we can get into what exactly our special circumstances are. Lisa, do you have a good definition of drugs for us, or bad definition of drugs, whatever you like?

Lisa: [laughs] For the exception, it’s going to be knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance. I think that controlled substance is going to be a key component of that definition. Christina, have you had any experience with districts trying to include alcohol in this definition?

Christina: I have– alcohol doesn’t count. It really is just related to drugs. Even though alcohol, for someone who’s under 21, is a controlled substance, it’s not going to count as a drug.

Lisa: Right, so bringing a bottle of aspirin to school, also not likely, going to fall into these controlled substances?

Christina: Right, not going to count as a drug. It’s not a controlled substance. Now, bringing a student’s legally prescribed ADHD medication, and then that student tries to sell it to another student, for whom it is not prescribed, that’s going to count as drugs, because, even though the student had the prescription legally, you’re not allowed to sell your prescription medication to somebody else. That’s going to count.

Serious bodily injury, it’s strange. I say that because the standard is a really, really, really high standard. The definition is something like, the protracted loss of the use of a bodily organ or member or something like that. It’s kind of a ridiculous standard.

Lisa: If I punch you, Christina, and you get–

Christina: Please, don’t. [laughs]

Lisa: All right. Then, you get a black and blue arm. That’s not necessarily going to meet the standard of serious bodily injury?

Christina: Not even not necessarily. I would say that absolutely will not meet the definition of serious bodily injury. I tell people from a practical level, unless somebody went to the hospital-

Miriam: I was going to say hospital.

Christina: – and actually was truly injured, not just, “I got hit. I’m going to the hospital, because I feel the need to have a doctor look at me and tell me it’s not that bad.” If the doctor looks at you, and he’s like, “Yes, really– no. You got punched in the arm. It’s black and blue. You got a bruise. I’m sorry.” Still not serious bodily injury, just because a doctor diagnosed me with a bruise.

Lisa: How about cuts and scrapes?

Christina: Cuts and scrapes, same thing. Now, if somebody gets a concussion, for example– I had a case, one time, where a student took another student and literally rammed him headfirst into a locker, and the student had a pretty severe concussion as a result. That’s serious bodily injury.

Miram: Rape?

Christina: Yes, serious bodily injury, that would certainly count. I had another situation where a male teacher was trying to break up a girl fight. You guys know how girl fights are? We’re all girls here-

Lisa: Oh, my god.

Christina: – at least in the city. There’s hair pulling and kicking, and just the stupid things that girls do. This poor teacher tried to get in the middle of it, and this girl literally launched herself at him, and she landed on his back. Then, she took her hands, and she clawed his eyes– reached around the front and clawed him.

Miriam: Oh, my god. Wow.

Lisa: Did he have some vision damage here?

Christina: He had a serious eye injury as a result of this. That was serious bodily injury.

Miriam: These definitions and special circumstances are important, because they permit a district to impose some more severe discipline for a student?

Christina: The general rule is, if a student’s misconduct is a manifestation of their disability, so it is caused by or has a substantial relationship to their disability, or it was caused by the district’s failure to implement the IEP– If those are the circumstances, then, typically speaking, you’re not going to be able to discipline that student. But, if it involves weapons, drugs or serious bodily injury, even if it is a manifestation of the student’s disability, they can still be removed from school for up to 45 school days.

Miriam: Now, that doesn’t mean you don’t still conduct a manifestation determination review, right?

Christina: Correct. You still have to conduct the manifestation determination review. You still have to decide whether it is or is not a manifestation of their disability, because if it’s not a manifestation of their disability, then they could be expelled for up to the full 80 days. But if it is a manifestation of their disability, then there’s this limitation. They call still be expelled, they can still be put out of school, but there’s a limit of 45 days, because it related to the disability.

I think what Congress was really trying to do when they put this in place, was recognize that there are some misconduct that is so severe and so substantial, you have to be able to impose a disciplinary penalty on a student, and you also have to have time as a school district to figure out, what does this child’s programming need to look like when they come back, because we’ve said that this was related to their disability.

Lisa: You still have got to keep all these other students safe?

Christina: Right. We need to keep other students safe, and we’ve got to, maybe, do something different for that student, upon their return. You need time to get that in place, because if they come back tomorrow, nothing is going to change, and now, you’re putting everybody at risk.

Lisa: Last episode, we talked about interim alternative education settings. Those come into play here, then, too, don’t they?

Christina: Sure, because when you have this time period, this 45 school days, that the student can be out, you still have to put them in an internal educational setting that the IEP team determines– We talked about that last time. It’s not the superintendent’s decision or the director of special education or the building principal, it’s the IEP team. Obviously, it needs to be in a place where their educational needs can be met.

Miriam: This is so interesting. In other words, I think what we’re hearing is school district IEP teams are sometimes placed in a position of deciding of whether weapons, drugs, or serious bodily injury was a manifestation of the student’s disability. Is that what you’re saying?

Christina: That’s exactly what I’m saying.

Miriam: Those are interesting conversations that take place at that manifestation determination. Do you have any stories, experiences, you want to share about how teams make this decision?

Lisa: I think the drug one kind of lends itself to some good stories.

Christina: I got a great drug story, if you guys are interested.

Miriam: Absolutely. Go ahead.

Christina: Usually, it’s going to be really hard to convince me that bringing drugs to school was a manifestation of a student’s disability, because I just don’t see how that’s possible. I’ll give you a really good argument that I heard one time – kind of a good argument – from a parent-attorney. This is a student who was busted for having marijuana at school. It’s a student with ADHD. The parent-attorney said to me, “Christina, he was self-medicating. It’s so hard for him to be at school. Because of his disability, he was self-medicating with the marijuana.”

Lisa: Now, that part, it’s not super unique. I’ve heard that before for sure.

Christina: Right, but the best part of this story is that this student had packaged for distribution enough drugs to probably medicate half the high school. He was busted with a really large quantity of marijuana. It was all in little individually sized-out portions.

Miriam: Chances are that wasn’t for self-medicating.

Christina: Unless, he thought that he was going to forget how much he should smoke. He had it all in little individually baggies. You know how some people have their little pills in containers? This is Monday morning. This is Monday afternoon. I really don’t think that was what he was doing. No, he ended up out for a period of time, yes. We couldn’t buy into that.

Lisa: Going back to the conversation of how you determine if it’s a manifestation or not, even if we take that end part out about selling it, even if they’re possessing it and you factor in the ADHD component, the team might say manifestation, but might still be able to impose the special circumstances, right?

Christina: Sure, could be still out for 45 days. Although, like I said, it’s going to be really hard to convince me, and probably most teams, that self-medication is appropriate.

Lisa: Absolutely.

Miriam: Can I just tell a story about ADHD right now?

Christina: Of course.

Miriam: It’s not weapons, drugs, or bodily injury, but I just love the story. There was a high school senior who, towards the end of the year, was caught several times giving out sexual favors under the stairs. The school district expelled her, just for the remaining days of the school year, and the parents objected. The parent objected to this, saying that my daughter has a disability, my daughter has ADHD, and this behavior was a manifestation of her ADHD. That was definitely an interesting meeting.

Lisa: Yes. You could see, maybe, some other mental health diagnosis leading to that conclusion a little more than maybe, that it was just an impulsive decision.

Miriam: Yes. I think what the team talked about was whether it was more than just impulsivity and ADHD.

Lisa: That goes back to our conversation last time about when you conduct these manifestation determination reviews, really considering all the relevant information, not just what’s in just the IEP, or just in the eligibility category, really looking at all the circumstances.

Christina: Yes. I think weapons lend itself to that as well. If you’re looking at, is it a manifestation or not, like drugs, it’s going to be hard to convince me that bringing a weapon to school was a manifestation of a student’s disability. On the other hand, I have seen situations where maybe students take advantage of other students who have more cognitive disabilities-

Lisa: That’s interesting.

Christina: – who aren’t really aware of what the possible consequences of the misconduct are. “Here’s a knife. Can you just take it to school for me, and then, maybe, I’ll get it from you later.” This is a student who really doesn’t know that they’re necessarily doing something wrong or, they don’t fully appreciate the consequences of their action. Of course, it’s always the student with the disability who gets caught with the knife.

Miriam: Let’s say, it’s a child with a cognitive delay, and somebody else says, “Here bring–” That’s what you’re talking about?

Christina:  Yes, exactly. Basically, somebody taking advantage of that student. Then, when the team looks at it– because ordinarily, you would be suspended and expelled for having a knife. The team really has to look at, “All right, was it this student who was bringing the knife in? No.” If it were two students who didn’t have disabilies, I think you would look at, all right, but student number two who got the knife knew that you shouldn’t have knives at school. When it is a student with a cognitive disability, did they really appreciate that they were doing something that was wrong?

Lisa: I think that just make sense, from just an educational best practice point of view.

Christina: Yes. It goes back to what you were saying, Lisa. You have to look at all of the different circumstances that are involved in this.

Lisa: Keep in mind, too, just because this rule is there, doesn’t mean it necessarily has to be imposed. For example, I had a young student in a situation who had an intellectual impairment as well, and brought just a bullet to school. Do you look at, is a bullet a weapon, in and of itself, without any way to use said bullet? Again, cognitive disability, so wouldn’t necessarily need to invoke this level of discipline.

Christina: I think that’s exactly right. When you have this situation, then, with weapons, drugs, serious bodily injury, obviously, there’s a lot of things that you have to try to consider. Then, at the end of the day, you’ve got to make a decision. Is it related to the student’s disability? Is it not related to the student’s disability? If you decide that it’s not, again, the student can be disciplined in the same manner as their non-disabled peers. If it is related to their disability, you can still invoke the exception.

They can be out for up to the 45 school days. Then, you have to determine, like we talked about, well, where are they going to go? What’s the interim alternative educational setting going to be? The team has to make that decision. Sometimes, those are also kind of challenging decisions to make. It’s got to be a placement that is going to actually meet all of their needs. It can’t simply be, “Okay, well, we’re going to give you home instruction.”

Lisa: It is important here, that you don’t need parent’s consent for this change of placement, at least for Ohio standards.

Christina: Correct.

Miriam: There’s two points about that that I liked to just highlight for our audience. Do not forget to send a prior written notice for any of this. Make sure you document every step of the way. Also, what I think is good, sometimes, is just to offer a compensatory education, if it’s a question that’s right on the line. If a hearing officer might go either way on this, if it’s a difficult decision for your team, offer compensatory education, because if it goes to hearing, then that’s what a district’s liability is going to be anyway.

If the district violated any piece of this, usually, compensatory education is a primary remedy. If you’ve already offered that, if that goes according to your board policy, if that’s okay with your team, if you’ve already offered that, you are in a better position.

Christina: I think that’s right. It’s another thing that we want to talk about, going to back to the prior written notice. You’re right, it’s really important to document every decision that gets made in a prior written notice. Also, really documenting why the team made the decision, the rational. That’s important because, whether we’re talking about these special circumstances, or whether we’re just talking about any circumstance where you have a manifestation determination and you make a decision.

Let’s say, you make a decision that it’s not a manifestation of the student’s disability. Then, the parent decides that they are unhappy with that as a result. They can request a due process hearing. So you might be in the position of being before a hearing officer to try to convince the hearing officer as to why it was not a manifestation of the student’s disability. The prior written notice that really lays out the reasoning and the rational is so important for two reasons.

First of all, it’s not something that you’re creating after the fact, after the parent complains. Hearing officers give a lot more credibility to it if it was done contemporaneously, like this is what the team decided before we ever knew that the parent was going to sue us. It’s not like we’re making it up later. Now, that we’ve been sued, now, we have really good reasons. No, this is what you decided at the time.

It also helps reminds people of those reasons, because let’s face it, all of you who are in school districts go to a ton of meetings. You all know how many meeting you go to. Sometimes, it gets really hard when it’s two, three, four, five months later to remember, “Oh, my gosh. What exactly was the reason that we came to this decision for this particular student?” If it’s in the prior written notice, it’s right there for you, and you can use it to refresh your memory later on. Just two points about why your prior written notice needs to be done and needs to be done really well.

Lisa: Yes. Often, we see that a district will send the prior written notice, but it might just say, the team determined it was not a manifestation. It gives no rational, so that rational is just super important to document.

Miriam: Just some bad news. It doesn’t end with that hearing officer and due process complaint. It can go to state level review in Ohio. That is the second tier that we have, and then, it can definitely go to court. It can go to federal or state court right after that.

Christina: There’s a lot that happens here. That goes back to why the team really needs to make sure there’s good support for whatever decision you make. If you decide that something is not a manifestation of a student’s disability, you need to have good rational for that. If you decide that something is going to be an appropriate interim alternative educational setting, why? What rationale can you give that really supports that? If you can’t come up with anything, you probably need to go back and make a different decision, because you’ve got to have something that really supports what you’re talking about. Can I tell my hearing story of the-

Lisa: Tell your hearing story. [laughs]

Christina: – parent who was challenging us on whether or not it was or was not a manifestation of her son’s disability? So, had a situation. This has been many years ago now, where two students were involved in a fight. Issues started early in the day. Of course, it’s two high school boys, and they’re fighting over a girl, right, because that never happens. [laughs]

We’ve got two high school boys fighting over a girl. Early in the day, they kind of have words with each other, but then, they go their separate ways and everything’s good. A little later in the day, they start talking to each other again. At some point, they decide – note my use of the word “decide” – that they’re going to get into a fight after school, because nothing proves how manly you are like getting into a fight after school over the girl.

Miriam: Meet me after school.

Christina: Pretty much. That was exactly what it was. They decided to do it off school property, but across the street from school, because surely we can’t get in trouble, right, if we do it right across the street from school.

Miriam: Also, we can have an audience.

Christina: Right. Oh, and they did– and they did. We get to the very end of the school day. My kid that we’re talking about, student number one here, who has a disability– He also has ADHD by the way. He decides that he has to prepare to fight. “I am going to prepare to fight. I’m going to take off my sweatshirt, and I’m going to put my backpack down.” He even sent a text to his sister and said, “You need to bring my tennis shoes, because I can’t fight in my flip flops,” right?

Miriam: Yes, that sounds pretty impulsive, doesn’t it?

Christina: Oh, totally impulsive. Of course, they get caught, because they have this whole audience and all these things. Everybody ends up in the principal’s office. The kid ends up getting suspended. Team decides it was not a manifestation of his disability. Parent argued tooth and nail that it was, because it was his impulsive behavior. We were absolutely saved on this by a good prior written notice that the district had written and documented all of the steps that this student had taken to prepare and plan for the fight, as well as he neglected the fact that there were security cameras at the school that picked up on all of his preparations.

We had him on tape taking off the sweatshirt, changing the shoes, and then walking across. There’s always an interesting twist to these, but never underestimate what a parent will do or try to say to get their little darling angel off the hook in a discipline situation, because no rational person looking at this would have been like, “Oh no, that was totally impulsive. Totally get that.”

Miriam: I love your stories. I love your stories, Christina. Thank you.

Christina: No problem. I’ve been doing this for a long time. I can’t make this stuff up, right?

Miriam: Absolutely.

Christina: It’s what it comes down to– One other really quick thing I just wanted to point out, going with the prior written notice piece that Miriam talked about, you also have to make sure that parents are aware of their procedural safeguards under IDEA. Every state has something for procedural safeguards. In Ohio, we have a little booklet that gets passed out, but every state has something. At the very beginning of this process, you need to make sure the parent gets an updated copy of that.

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Miriam: All right. Thank you so much, Christina. Thanks so much for being here with us. I hope everybody enjoyed this episode. As always, send us an e-mail, rate us on iTunes, and tune in next time.

Lisa: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter Haverfield does not guarantee the accuracy of information contained in this podcast.

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