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.