Palm Beach | Case 18-4570 | 2018-10-04

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS **, Petitioner, vs. Case Nos. 18-4570EDM PALM BEACH COUNTY SCHOOL BOARD, Respondent. _______________________________/ FINAL ORDER A final hearing was held in this case before Diane Cleavinger, an Administrative Law Judge of the Division of Administrative Hearings (DOAH), on xxxxxxxx xx, XXXX, in West Palm Beach, Florida. APPEARANCES For Petitioner: Petitioner, pro se (Address of Record For Respondent: XXXXX XX. XXXXXX, Esquire Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 STATEMENT OF THE ISSUE The issue for determination in this proceeding is whether the Student’s conduct during the summer of XXXX, that constitutes a violation of the student code of conduct, was a manifestation of XXX disability.

2 PRELIMINARY STATEMENT On XXXXX XX, XXXXX, Respondent conducted a XXXXXXXX XXXXXXXXXXX review, at the conclusion of which the team determined that Petitioner’s act of XXXXXXXXX did not constitute a XXXXXXXXXXXX of XXX disability. Petitioner’s parent was dissatisfied with the team’s decision and on XXXXXXX XX, XXXXX, filed a request for an expedited due process hearing. The request for hearing was forwarded to DOAH for hearing. By agreement of the parties, the final hearing was scheduled for XXXXXXXXX XXX, XXXXX. The final hearing was held, as scheduled. At the hearing, Petitioner’s parent testified on behalf of the Student and called one additional witness. Petitioner did not introduce any exhibits into evidence. Respondent did not offer the testimony of any witnesses and did not introduce any exhibits into evidence. At the conclusion of the final hearing, the parties stated that they did not intend to file proposed final orders in this action. Given the parties’ statements regarding proposed final orders and under Florida Administrative Code Rule 6A- 6.03312(7)(c), the deadline for the final order in this matter was established as XXXXXXXX XX, XXXXXX.

3 In regards to this Final Order, unless otherwise indicated, all rule and statutory references contained in this Final Order are to the version in effect at the time of the alleged violation. Additionally, for stylistic convenience, the undersigned will use XXXX pronouns in this Final Order when referring to the Student. The XXXX pronouns are neither intended, nor should be interpreted, as a reference to the Student’s actual gender. FINDINGS OF FACT 1. The Student is currently XXXXXX years old. XX is a student who qualifies for exceptional student education (ESE). XXX documented exceptionality is XXXXX XXXXX XXXXXX (XXX)- XXXXXXXX XXXXXXXX XXXXXXXXX XXXXXXXX (XXXXX). 2. During the XXXX-XXXXX school year, the Student was in XXXXX grade and attended School A, a public XXXX school in XXXX XXXXXX County, Florida. At the conclusion of that year the Student was promoted to XXXXXX grade. 3. At all times material, the Student had an Individual Educational Plan (IEP) that was consented to by the Student’s parent. There was no evidence regarding the contents of the Student’s IEP. Further, there was no challenge to the implementation of the Student’s IEP. 4. The evidence showed that in the past, the Student’s disability was XXXXXXX through XXXXXXXXXX. However, due to

4 medication prescribed to the Student for XXXX XXXXX, the Student is no longer XXXXXXX. In fact, the Student in the past has been a XXXX student with “XXXX” grades and has not been XXXXXXXX XXXXXXXXXX at school. 5. Sometime during the summer of XXXX, the Student made a XXXXX on XXXXXX XXXXXX which violated section 1006.13(3)(b), Florida Statues, establishing a zero tolerance policy for XXXXX made by students involving a school. The exact nature of the XXXXXX made by the Student was not established by the evidence. However, the parent admitted there was a XXXX made. Additionally, as required by the above-referenced statute, the Student’s action was reported to XXX XXXXXXXXX for possible XXXXXXXX. 6. From XXXXXX XX through XXX, XXXXX, the Student was XXXXXXXXXXX XXXXXXXXX to a XXXXXXX XXXXXXX XXXXXXXX and XXXXXXXXX with XXXXXXXXX. 7. Around XXXXXXX XX, XXXXX, prior to the start of school, a school XXXXXXX XXXXXXXX was issued to the Student for the XXXXXX XXXXX. A XXXXXXX XXXXXXXXXXXXXX meeting was held on XXXXXXXX XX, XXXX. There were no procedural challenges raised to the process followed by the School Board in setting or conducting the meeting. The team determined that the Student’s XXXXXX was not caused by, or had a direct and substantial relationship to, the child's disability, XXX, and that the XXXXXXXXXX in question

5 was not the direct result of Respondent’s failure to implement the IEP. Thereafter, the IEP team met and determined that the Student should not be XXXXXXX as section 1006.13(3)(b) permits, but should be placed in School B, an XXXXXXXXXX XXXXXXXXX XXXXXXXXX XXXXXX, for XXXX XXXXXXX-grade year (XXXX-XXXXX). There was no evidence that demonstrated the team’s XXXXXXXXXX XXXXXXXXXXX decision was in error. Further, there was no evidence that demonstrated the Student’s threat was related to XXX disability. 8. After the XXXXXXXXXXX XXXXXXXXXXXXXXXXX, the State Attorney, on XXXXXXX XX, XXXXX, “no filed” the pending XXXXXXXX action against the Student, thereby ending the XXXXXX case against the Student. However, the action by the State Attorney had no impact on the School Board’s and IEP team’s decision to place the Student in School B. More relative to this case, the State Attorney’s action does not impact the XXXXXXXXXXXX XXXXXXXXXX team’s decision that the Student’s XXXX was not related to XXX disability.1/ CONCLUSIONS OF LAW 9. DOAH has jurisdiction over the subject matter of this proceeding and of the parties thereto. See § 1003.57(1)(c), Fla. Stat.; Fla. Admin. Code R. 6A-6.03311(9)(u) and 6A-6.03312(7). 10. Petitioner bears the burden of proof with respect to each of the claims raised in the Complaint. Schaffer v. Weast,

6 546 U.S. 49, 62 (2005); Dep’t of Educ., Assistance to States for the Education of Children with Disabilities, 71 Fed. Reg. 46724 (Aug. 14, 2006)(explaining that the parent bears the burden of proof in a proceeding challenging a school district’s manifestation determination). 11. In enacting the Individuals with Disabilities Education Act (IDEA), Congress sought to "ensure that all children with disabilities have available to them a free appropriate public education that emphasized special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A); Phillip C. v. Jefferson Cnty. Bd. of Educ., 701 F.3d 691, 694 (11th. Cir. 2012). The statute was intended to address the inadequate educational services offered to children with disabilities and to combat the exclusion of such children from the public school system. 20 U.S.C. § 1400(c)(2)(A)-(B). To accomplish these objectives, the federal government provides funding to participating state and local educational agencies, which is contingent on the agency's compliance with the IDEA’s procedural and substantive requirements. Doe v. Alabama State Dep't of Educ., 915 F.2d 651, 654 (11th Cir. 1990). 12. Parents and children with disabilities are accorded substantial procedural safeguards to ensure that the purposes of

7 the IDEA are fully realized. See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 205-06 (1982). Among other protections, parents are entitled to examine their child's records and participate in meetings concerning their child's education; receive written notice prior to any proposed change in the educational placement of their child; and file an administrative due process complaint "with respect to any matter relating to the identification, evaluation, or educational placement of [their] child, or the provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(1), (b)(3), & (b)(6). 13. School districts have certain limitations on their ability to remove disabled children from their educational placement following a behavioral transgression. Specifically, the IDEA provides that where a school district intends to place a disabled child in an alternative educational setting for a period of more than ten school days, it must first determine that the child’s behavior was not a manifestation of his disability. 20 U.S.C. § 1415(k)(1)(C). Pursuant to the IDEA’s implementing regulations, “[o]n the date on which the decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct, the LEA must notify the parents of that decision, and provide the

8 parents the procedural safeguards notice described in § 300.504.” 34 C.F.R. § 300.530(h). 14. The necessary inquiry is set forth in 20 U.S.C. § 1415(k)(1)(E), as follows: XXXXXXXXXXXX XXXXXXXXXXXX. (i) In general. Except as provided in subparagraph (B), within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the local educational agency, the parent, and relevant members of the IEP Team (as determined by the parent and the local educational agency) shall review all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents to determine— (I) if the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or (II) if the conduct in question was the direct result of the local educational agency's failure to implement the IEP. 15. If the local educational agency, the parent, and relevant members of the IEP team determine that either subclause (I) or (II) of clause (i) is applicable, the conduct shall be determined a XXXXXXXXXXXXX of the child’s disability. 20 U.S.C. § 1415(k)(1)(E)(ii). If the XXXXXXX is deemed a XXXXXXXXXX of the child’s disability, the student must be returned to the educational placement from which XX or XXXX was removed.

9 20 U.S.C. § 1415(k)(1)(F)(iii). Additionally, if no XXXXXXXXXX XXXXXXXXXXXX XXXX (XXX) was in place at the time of the XXXXXXXXXXX, the school district is obligated to “conduct a XXXXXXXXX XXXXXXXXX XXXXXXXXXX, and implement a [XXX] for such child.” 20 U.S.C. § 1415(k)(1)(F)(i). 16. If the XXXXXXX that gave rise to the violation of the school code is determined not to be a XXXXXXXX of the child’s disability, the school district may apply the relevant XXXXXXXXXXXXX procedures in the same manner and duration as would be applied to children without disabilities. 34 C.F.R. § 300.530(c). The child, however, must continue to receive education services so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP. Additionally, the child must receive, as appropriate, a XXXXXXXXX XXXXXXXXX XXXXXXXXX (XXX), and XXXXXXXXXXXX XXXXXXX services and modifications, that are designed to address the XXXXXX violation so that it does not recur. 34 C.F.R. § 300.530(d)(i) and (ii). 17. In this case, Petitioner’s complaint raises no procedural issues with the XXXXXXXXXXX review process and does not contend that the XXXXXXXX in question was a XXXXXXXXXXXXX of the Student’s disability. However, the complaint does contend that the Student was simply not guilty of the misconduct, since

10 the criminal action was “no filed” against the Student and there was no other evidence of the XXXXXXXX. 18. Addressing Petitioner’s claim that the team failed to properly consider the merits of the underlying conduct in question, the undersigned rejects this contention. The team’s function is not to determine guilt or innocence of the underlying conduct in question, but rather to determine, whether said conduct (as determined by the school’s investigation) was a XXXXXXXXXXXXX of the Student’s disability or of Respondent’s failure to implement the IEP. Further, the expedited hearing afforded under IDEA is limited to a review of the XXXXXXXXXXX XXXXXXXXXXXX by the team. The hearing does not encompass a review of the merits of the violation of the code of student conduct. See Danny K. v. Dep’t of Educ., 2011 U.S. Dist. LEXIS 111066 (D. Haw. 2011)(holding that there is no authority to suggest that a XXXXXXXXXXXX XXXXXXXXXX team must review the merits of a school’s findings as to how a student violated the code of student conduct as such a requirement would essentially XXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXXXX teams, and in turn, [administrative law judges] as appellate deans of students). See also Fla. Admin. Code R. 6A-6.03312(7)(c). As such, there was no evidence presented at the hearing that demonstrated Petitioner’s misconduct was a XXXXXXXXXXX of XXX disability and Petitioner, therefore, failed to demonstrate that Respondent’s

11 determination concerning the XXXXXX made by the Student during the summer of XXXXX was incorrect. ORDER Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that: 1. The XXXXXXXXXXXXXXX XXX XXXXXX decision that Petitioner’s conduct during the summer of XXXX was not XXXXXXXXXXXXXX of the Student’s disability was correct and is approved. 2. Respondent may apply the relevant XXXXXXXXXXXXXXXX procedures in the same manner and duration as would be applied to children without disabilities. The Student, however, must continue to receive education services so as to enable the Student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the Student’s IEP. 3. All other requests for relief are denied. DONE AND ORDERED this 4th day of October, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060

12 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this XXX day of October, XXXXX. ENDNOTE 1/ In general, the purpose of a manifestation review hearing is to review the manifestation decision made by the manifestation determination team. The purpose of the hearing is not to challenge the accuracy of the specific act for which a student is being disciplined. In general, challenges to the specific act for which a student is being disciplined, and whether that act occurred, can only be made in a disciplinary hearing provided for in the school’s student code of conduct or Board rules. COPIES FURNISHED: Petitioner (Address of Record) XXXXXX XX. XXXXXXX, Esquire Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 (eServed) XXXXXX XXXXXXX Department of Education 325 West Gaines Street Tallahassee, Florida 32399 (eServed) XXXXXXXX XXXXXX, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) XXXXXX XX. XXXXX II, Ed.D., Superintendent

13 Palm Beach County School Board 3300 Forest Hill Boulevard, C-316 West Palm Beach, Florida 33406-5869 NOTICE OF RIGHT TO JUDICIAL REVIEW This decision is final unless, within 90 days after the date of this decision, an adversely affected party: a) brings a civil action in the appropriate state circuit court pursuant to section 1003.57(1)(c), Florida Statutes (2014), and Florida Administrative Code Rule 6A- 6.03311(9)(w); or b) brings a civil action in the appropriate district court of the United States pursuant to 20 U.S.C. § 1415(i)(2), 34 C.F.R. § 300.516, and Florida Administrative Code Rule 6A-6.03311(9)(w).