Substantial Likelihood of Injury

In 2016, a 15 year old special education student wrote his own rap lyrics in

a school journal. Salem City Bd. Of Educ., EDS 01159-16 (2016). He wrote

“U better dip like a chip because I got a new gun with 2 clips I can’t wait to

use it better yet shoot it…” The student did not give the lyrics to anyone or

perform them. The student had previously been warned that discussing

shooting a gun is not appropriate at school. There was no written policy

prohibiting students from making gun references. The student informed the

Superintendent that he does not own a gun and no one in his household

owns a gun. The Superintendent recommended suspending the student and

placing him at an alternative school. The police were contacted but no

charges were filed. The Board held a hearing where it confirmed the

Superintendent’s recommendation of suspension and alternate placement for

making terroristic threats. The student’s Case Manager testified that the

Child Study team had not been consulted about disciplining the student. The

parent testified that when he spoke to the Superintendent, he felt that the

decision to place the student in an alternate placement had already been

made.

Under the Individuals with Disabilities Education Act (“IDEA”), a school

district can place a student in an alternative placement without determining

whether the behavior is a manifestation of the students disability for 45 days

or less if the student: brings a weapon to school; inflicts serious bodily injury

on someone while at school; or knowingly has, uses, sells, or solicits the sale

of a controlled substance while at school, on school premises, or at a school

function. If the student’s current placement is substantially likely to result in

an injury then the district can request an expedited due-process hearing. A

hearing officer may return the student to their current placement or order an

alternate placement for 45 days or less if the hearing officer determines that

the current placement is substantially likely to result in injury.

The Department of Education held that the District provided no evidence that

the student made terroristic threats since the lyrics were not aimed at

anyone and were not shared with anyone. The District did not determine

whether the behavior was a manifestation of his disability as the Child Study

team was not consulted. Without determining that, the District cannot

remove the student to an alternate placement since the student did not

bring a weapon to school or inflict serious bodily injury (see above

paragraph). The Department of Education also held that the Board did not

show a substantial likelihood of injury in his current placement. The

Department then noted that there was no proof of physical violence which is

sufficient for finding a substantial likelihood of injury. It was also noted that

threats of violence are unlikely to result in a substantial likelihood of injury

without physical violence. Since the school does not have a policy prohibiting

references to guns, the Department of Education held that the student had

not violated the school’s policy. The Board could not remove the student to

an alternate placement but the issue of whether the student’s due process

rights had been violated was not determined.

Before a school district even considers whether the current placement is

substantially likely to cause injury, the district should determine whether the

student’s behavior is a manifestation of their disability. If it is determined

that the behavior was a manifestation of their disability, then the Board can

consider whether the current placement is substantially likely to cause

injury. Vague statements relating to violence are generally not sufficient.

Even threats directed at someone may not be sufficient if there is not also

physical violence. The IDEA and regulations do not includes factors to

consider so the Board must use its judgment and previous cases in making

the determination.

If you have questions about how to determine whether an alternate

placement is justified, we recommend that you consult with your school

district’s attorney or call Karen, Steve or Bobby.