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Is Your Child Being Sent Out of the Classroom Without Your Knowledge

We have been getting an increasing number of inquiries from parents asking what to do when they find that their child is being sent out of the classroom for lengthy periods of time, in conflict with where their IEP says they are supposed to be.

Further, parents are telling us that children are being placed in a small room, sometimes a closet, and being locked in that room for an indeterminate amount of time. Not surprisingly, we are told that no records are being kept. This writer has been involved in too many cases like this – particularly when the teacher forgets and everyone goes home (except the student who is locked in the closet until the next day). We are concerned about this whether this student qualifies for special education or not – but we will focus on the situation where this happens to a child with special needs.

We are also concerned about this because the IDEA is about to be revised. Issues of discipline and removal are high on the agenda of some powerful Republicans who are involved in the IDEA revisions. We mention Republicans not to be partisan, but because they are the majority party in both House and Senate and that makes it more likely the amendments will get through.

One of their proposals is to allow schools to permanently remove some students. Excuse me, but that is where I came in. Mills v. Board of Education, 348 F.Supp. 866 (D.D.C. 1972) established over 30 years ago that was unconstitutional and Mills is often cited as one of the pillars of IDEA and Section 504 interpretation.

There is no doubt that there are some students who are quite perplexing to teachers today but that is where two sources must be consulted. One source of help that is older than the Mills case requires every teacher to have access to a Comprehensive System of Personnel Development run by the State Education Agency through which a teacher can acquire and disseminate promising educational practices and thereby assure an adequate supply of appropriately trained personnel.

In other words, a harried teacher that literally has never seen a child like this before, cannot teach the other students in the class while this child is present in that class, and has run out of ideas to try – can get training. When we have interacted with teachers like this (and we have) they often tell us that if they asked for help they would be considered unqualified by the principal and might have professional problems.

That is a constant problem and it will certainly be amplified by No Child Left Behind. Under NCLB teachers like this will be "graded" and will have to receive some additional training and some additional supervision – whether they want it or not.

The purpose of removing the student from the classroom is obviously to change behavior. That triggers several duties under Section 504 and the IDEA which cannot just be skipped by the teacher. An evaluation must be conducted to determine if the "misbehavior" that is clearly incompatible with the classroom where this student has been placed is simply a "manifestation" of the disability itself. Without conducting the statutorily mandated "manifestation determination" a school might be punishing a student with no productive result. The student treated in this manner is much more likely to have develop worse conduct rather than better behavior.

Further, current law under the IDEA also requires an evaluation called a Functional Behavior Analysis to see if the "misbehavior" is intentionally performed by the student in order to get out of the classroom. As long as this misbehavior functions to get the student out of a boring, or uncomfortable, setting, the teacher is rewarding that misbehavior by removing him.

A big feature of No Child Left Behind is to analyze teacher behavior and strategies and assure that teachers are actually producing the results they think they are intending in their interactions with students.

But this topic is even more serious when a student is locked up. If the teacher’s goal is simply getting rid of the student, rather than creating positive behavior change, many inappropriate things can happen. This writer served many years ago as the Chairperson of the peer-review committee of the National Association for Advancement of Behavior Therapy. We investigated instances such as these and several involved deaths.

Parents suspecting that their child is being removed from a classroom, not in accordance with something on their IEP, must write and insist that the whole school day is documented and made available to them. They should ask their children and send statements to the school, requiring them to be placed in the child’s permanent file, documenting the child’s side of the story.

The parent should write and ask for the school board’s written policy that governs this type of teacher behavior. If there is one, the parent ought to challenge it. If there is none, and that is brought to the attention of the school board, then the school board will probably try to correct it before any legal action might be brought.

The parent ought to write, under No Child Left Behind, and ask for the credentials of their child’s current teacher, starting with any education classes taken in college and every experience or training the teacher has had since that time. We have on our website the section of NCLB that specifies what to ask for.

Finally, if someone in your group really wants to challenge this, you should consult your state Mental Health Code. This writer used to review every state’s code every year and there were always state laws that prevented this "confinement" by a teacher or required so much red tape (for example, visiting the confined area every 15 minutes, filling out a document on the condition of the student during that 15 minute period, and so forth) that the employee would decide it was too much work to send the person down the hall.

The ultimate solution is to follow the law. The student should have been adequately evaluated. They should be on a proper IEP. The IEP should be followed. The teacher should be qualified or be given the extra support that the Federal laws provide (beginning with the Comprehensive System of Personnel Development that your State Education Agency has cheated your teachers out of for 35 years, to today’s support through No Child Left Behind).

This information is educational and not intended to be legal advice.

Reed Martin is an attorney with over 35 years experience in special education law and recognized as one of the nation's leading experts.

— Reed Martin, J. D.
Is Your Child Being Sent Out of the Classroom
http://www.reedmartin.com
2003-11-23
http://www.reedmartin.com/lockedincloset.htm


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