St. Johns | Case 25-1797 | 2025-05-14

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS ST. JOHNS COUNTY SCHOOL BOARD, Petitioner, vs. **, Respondent. / Case No. 25-1797EDM FINAL ORDER This expedited due process hearing was held on May 2, 2025, by agreement of the parties. The hearing was held via Zoom conference. Jessica E. Varn, an administrative law judge with Florida’s Division of Administrative Hearings (DOAH), presided over the hearing. APPEARANCES For Petitioner: Terry Joseph Harmon, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 For Respondent: Respondent, pro se (Address of Record) STATEMENT OF THE ISSUE Whether maintaining the student’s original placement at XXXXXXX High School is substantially likely to result in injury to himself or others; thereby continuing the student’s placement in an interim alternative education setting (IAES) for no more than an additional 45 school days.

2 PRELIMINARY STATEMENT The School Board first filed a request for an expedited due process hearing, DOAH Case No. 25-0291EDM, on January 17, 2025. A hearing was held on February 19, 2025. On March 4, 2025, the undersigned entered a Final Order finding that maintaining the student’s placement at XXXXXX High School was substantially likely to result in injury to himself or others; therefore, his placement should change to the IAES for no more than 45 school days. The School Board filed a second request for an expedited due process hearing on April 3, 2025. On April 18, 2025, a pre-hearing telephonic conference was held with the parties. The parties agreed to schedule the hearing on May 2, 2025. At the due process hearing, School Board Exhibits 1 through 40, 42 thr ough 46, and 48 through 68 were admitted; and Respondent Exhibits 1 through 8 were admitted. The School Board’s Exhibits include the entire record of DOAH Case No. 25-0291EDM, including the Transcript of the February 19, 2025, due process hearing and the Final Order in that case. The School Board presented the testimony of XXXXXXXXXX, Director for Exceptional Student Education (ESE). Respondent presented the testimony of: XXXXXXXXXXXXX, a mental health counselor intern; and XXXXXXX XXXXXX, a special education advocate. The Findings of Fact will not address each witness’s testimony or every exhibit entered into the record, but all testimony was considered and all exhibits were reviewed in preparing this Final Order. At the co nclusion of the due process hearing, the parties agreed to file proposed final orders by May 12, 2025. Both parties filed proposed final

3 orders on time. This Final Order was prepared without the benefit of a transcript, but the proposed final orders were considered. Unless otherwise indicated, all rule and statutory references are to the versions in effect during the relevant period. For stylistic convenience, the undersigned uses male pronouns when referring to the student. The male pronouns are neither intended, nor should be interpreted, as reference to the student’s actual gender. FINDINGS OF FACT 1. The student is XX years old and in XXXXXX grade, at a comprehensive high school. He is eligible for ESE services under the categories of Autism Spectrum Disorder (ASD), Language Impaired, and Speech Impaired. He spent his ninth and tenth grades at a different high school in the same school district. XXXXXXX High School was therefore new to him when he began his XXXX year. 2. XXXXXXX High School is a large high school, with around 2,500 students. He takes his math, reading, and English classes in a self-contained ESE classroom, and takes history, drama, science, and film in general education classrooms. Most of his general education classes are in the afternoon. 3. The student is educated on an Access Points curriculum, and he is a ssigned a 1:1 paraprofessional for the entire school day. He has some intelligibility challenges, low cognitive skills, and multiple maladaptive behaviors that result in physical harm to himself and others on the school campus. He is the size of a grown adult male, so when he hits, bites, yanks and pulls out hair, or tries to strangle the faculty members, he often inflicts bodily harm. 4. For the first two months of his XXXXX-grade year, the staff focused on building relationships with him, and avoided placing too many demands on

4 him. They quickly learned that he is a complex student; that he is highly unpredictable; and that he has a heightened sensitivity to words often used in everyday school life, such as “no,” “wait,” and “good.” 5. By the end of October, there was a major incident that stemmed from another student responding “yep” instead of the preferred “yes” to a question that Respondent had asked—this caused him to attempt to write the word “yes” on a piece of paper, which then snowballed into a dangerous situation: [He] took the paper, shoved it into the student’s face 4 times, then started screaming at her. [He] then began hitting objects, the wall and then eloped out of the classroom. Para[professional] followed [him] out into the hallway, tried to talk to [him] calmly. [**] grabbed the para’s shirt, placed him in a head lock. [He] then attacked another para tearing his shirt, scratching him in the neck. [**] tried to hit, bite, kick and tear staff members shirts. [**] ran down the hall and then into the courtyard where [he] finally was able to calm. 6. The next week, on November 4 and 8, XXX, two female students reported that the student had inappropriately touched them on their XXXXX. 7. On November 12, XXX, after lunch, a faculty member asked the student to pull down his own shirt, which was up. Upset by the direction, he: started walking towards a para in the classroom cha sing her around a table. Another teacher called [**]'s name to redirect [him]. [He] went up to that teacher and punched her in the stomach. [**] then left the classroom. During [his] escalation, [**] hit 5 other staff members. 8. On December 3, XXX, after the Thanksgiving break, a student reported that Respondent pushed him as he was exiting drama class. A day later, the student poked a staff member on her waistline, twice, stating that he could not help himself. And then again on December 9 and 10, XXX, three students reported that he inappropriately touched their XXXXX.

5 9. On December 17, XXX, a major incident occurred, involving several injuries to staff members. It started when a staff member, after being poked in the stomach, raised her voice, telling the student not to touch her. The student’s response was: [**] attacked multiple staff members by hitting, bit ing, grabbing and tried to rip their shirts off. [**] also grabbed three staff members by the hair with both hands. One of them [he] pulled to the ground with [him] pulling out a chunk of the staff members hair. 10. Once the Spring Semester started, more staff injuries piled up. On January 8, XXX, during a general education class in the afternoon, another drawn-out incident occurred: During 6th period [**] went up to another student and grabbed his shirt. [He] went back to [his] seat where [he] hit [his] desk with [his] fist, [he] then got back up and walked back over to the student to try and grab his shirt again. The student tried to block [**] from grabbing his shirt, but [**] reached around his hand. [**] began escalating and [his] para asked [him] if [he] needed a break and to leave the classroom for a walk. While heading downstairs [**] became increasingly escalated and [his] para called for additional support. [**] eloped to the front of the school near the auditorium. During this time, [he] tried to hit, grab, and bite several staff members. 11. The following school day, on January 9, XXX, and also during his general education class periods, this occurred: During 5th pe riod [**] attempted to enter room 140, an active classroom at the time, which is not [his] assigned classroom. [His] para tried to redirect [him] several times without success. [**] then became physically aggressive towards staff. [His] actions included continuous attempts to hit strike, bite, and pull at/remove staff clothing. [**] was able to successfully grab two staff members by the shirt collar. At this time Ukeru pads were deployed. [**]

6 eloped to the courtyard in between the gym and the 200 hallway. Several and continuous attempts were made to deescalate [him] but were unsuccessful. [**]’s behavior became increasingly more aggressive and disruptive towards staff. [His] continuous and increasingly aggressive behavior caused concern for the safety and security of staff and students who transit this area during modified dismissal and class exchange. Steps were taken to secure the area and prevent students from transitioning between the gym and the main building. 12. Earlier on this same day, another student reported that during the transition to third period, Respondent had tried to touch him, and when the student tried to run away, Respondent turned to grab his sweatshirt. 13. The next day, on January 10, XXX, also in the afternoon, yet another major incident occurred. [**] requested to see a teacher during class time. [His] p ara told [him] that it was during class and that they were unable to disrupt another teacher’s class. [**] then eloped from the classroom stating [he] was going to see the teacher. [**] became physically aggressive towards staff. [His] actions included continuous attempts to hit strike bite and pull at/remove staff clothing. [**] eloped again to parent pick up where continuous attempts were made to deescalate [him] using the Ukeru pads but were unsuccessful. [**]'s behavior became increasingly more aggressive and disruptive towards staff. [His] continuous and increasingly aggressive behavior caused concern for the safety and security of staff and students who transit this area during modified dismissal. Modified students who normally exit through this area were redirected to the main office and had to exit the campus through the main parking lot of the school. 14. Throughout these major incidents, video footage reflects that the narratives quoted above, written by school staff, are quite understated. The videos reflect a student in fight mode, chasing and charging at the school

7 staff, wanting to lash out and hit anyone in his path. Many faculty members have been injured by the student’s attacks, intentionally and incidentally. 15. His mother persuasively testified that the student is not violent at ho me, or out in the community with his parents. The mother, at this second hearing, also presented the testimony of a mental health counselor intern who has been working with the student with some success in therapy sessions that include the mother. The intern has not observed the student in a school setting, or reviewed any of the volatile incidents that occurred at XXXXXX High School. Thus, her opinions are not persuasive. The overwhelming evidence establishes that while on XXXXXXX High School’s campus, when his parents are not present, the student becomes agitated in a manner that harms himself and others. 16. Since his last day of school at XXXXXXX High School, and after the Final Order in DOAH Case No. 25-0291EDM, the student has not attended a single day of school at the IAES, or at any brick and mortar school. Accordingly, there is no evidence establishing that the student has made any progress on his significant maladaptive behaviors, while attending school, to warrant a return to XXXXXXX High School. 17. The record e vidence overwhelmingly reflects that, at this juncture, the student is substantially likely to continue injuring himself or others if he returns to XXXXXXX High School. 18. The IAES is an ESE Center school; a small therapeutic setting with a l ow staff-to-student ratio and limited enrollment (43-44 students total). The school focuses on mental well-being, provides intense behavioral support, and is able to implement the student’s individualized education plan (IEP) and behavior intervention plan (BIP). The IAES school can also work on the student’s social/emotional skills, tolerance, daily living skills, and emotional regulation. The full mental health and behavior staff on campus, including a full-time behavior specialist, several registered behavior technicians, and a psychiatrist, can meet his current needs.

8 CONCLUSIONS OF LAW 19. DOAH has jurisdiction over this case pursuant to section 120.65(6), Florida Statutes; and Florida Administrative Code Rule 6A-6.03312(7). 20. The School Board carries the burden of proving all elements of its claim. “The burden of proof in [a due process hearing] is properly placed upon the party seeking relief.” See Schaffer v. Weast, 546 U.S. 49, 61 (2005); see also West Platte R-II Sch. Dist. v. Wilson, 439 F.3d 782, 784 (8th Cir. 2006); Devine v. Indian River Cnty. Sch. Bd., 249 F.3d 1289, 1292 (11th Cir. 2001), cert. denied, 123 S. Ct. 82 (2002). 21. The Individuals with Disabilities Act (IDEA) requires that any time a school district proposes to change the placement of a student because of a violation of the code of 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.” 20 U.S.C. § 1415 (k)(1)(E). If the answer to either (i) or (ii) is yes, then the conduct is deemed a manifestation of the student’s disability. 22. If the behavior is determined not to be a manifestation of the student’s disability, “the relevant disciplinary procedures to children without disabilities may be applied to the child in the same manner and for the same duration as the procedures would be applied to children without disabilities…” 20 U.S.C. § 1415(k)(1)(C). 23. If the behavior is found to be a manifestation of the student’s disability, the student must be returned to the placement from which the student was removed absent the existence of a “special circumstance” or

9 unless the parent and local educational agency agree otherwise. 20 U.S.C. § 1415(k)(1)(F). 24. That said, if the local educational agency believes that maintaining the student's current placement is substantially likely to result in injury to the student or others, it may appeal the decision by requesting an expedited due process hearing. 20 U.S.C. § 1415(k)(3); Fla. Admin. Code R. 6A- 6.03312(7)(a)2. 25. When an appeal under 20 U.S.C. § 1415(k)(3) is sought by the local educational agency: The child shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period provided for in paragraph (1)(C), whichever occurs first, unless the parent and the State or local educational agency agree otherwise… 26. A fter completing an expedited due process hearing on a local educational agency’s appeal, the hearing officer may: Return a child with a disability to the placement from which the child was removed; or order a change in placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of such child is substantially likely to result in injury to the child or to others. 20 U.S.C. § 1415(k)(3); Fla. Admin. Code R. 6A-6.03312(8). 27. If a hearing officer changes the placement of a student to an IAES for not more than 45 school days, the procedures for expedited hearings may be repeated if a local educational agency believes that returning the student to the original placement is substantially likely to result in injury to the student or to others. 34 C.F.R. § 300.532(b)(3); Fla. Admin. Code R. 6A-6.03312(7)(b). A hearing officer has the authority to order an additional change of

10 placement to an IAES for not more than 45 school days if the hearing officer determines that returning the student to the original placement is substantially likely to result in injury to the student or to others. 34 C.F.R. § 300.532(b)(3); Fla. Admin. Code R. 6A-6.03312(8). 28. As described above in the Findings of Fact, the student has injured multiple faculty members at XXXXXX High School numerous times, and the passage of time has produced no evidence to the contrary, as he has yet to attend school since the previous Final Order was issued. The School Board has shown, by a preponderance of the evidence, that the student is substantially likely to injure himself or others if he is returned to XXXXXXX High School. ORD ER Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the student’s placement must remain at the IAES for no more than an additional 45 school days, effective April 3, 2025, because maintaining his placement at XXXXXX High School is substantially likely to result in injury to himself or to others. DONE AN D ORDERED this 14th day of May, 2025, in Tallahassee, Leon County, Florida. SCase No. 25-1797EDM JESSICA E. VARN Administrative Law Judge DOAH Tallahassee Office Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (850) 488-9675 www.doah.state.fl.us

11 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2025. CO PIES FURNISHED: Amanda W. Gay, Esquire (eServed) Terry Joseph Harmon, Esquire (eServed) Tim Forson, Superintendent (eServed) Bryce D. Milton, Educational Program Director (eServed) Respondent (eServed) David Chappell, Acting General Counsel (eServed) N OTICE 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).