CASE NO. 2023040764

BERKELEY UNIFIED SCHOOL DISTRICT v. Student

Counsel for Student: No one

Counsel for School District: Lenore Silverman and Ankita Thakkar

Representative for School: Heather Lena Sweeny and Shawn Mansager

ALJ: Kara Hatfield

Date of Decision: May 30, 2023

ISSUES:

• Does Student’s behavior pose significant risk of injury to himself or others such that District can remove Student to an interim alternative educational setting for not more than 45 school days?

FACTS OF THE CASE:

• Student was 13 years old and eligible for special education under the category of other health impairment and after a three-year-review assessment, Student’s eligibility was changed to primary emotional disturbance, and secondary other health impairment. Student’s placement was changed from a public school to an NPS.
• Parent placed student in an NPS as a general education student and requested District to assess Student for eligibility for special education and related services. District completed the assessment process with parent’s consent and determined that Student is eligible for special education under the categories of emotional disturbance and other health impairment.
• District recommended and offered placement in a residential facility to which parent did not agree and Student continued to attend NPS as a general education student where he had multiple incidents of majorly disruptive behaviors.
• Within two weeks of starting school in general education setting, student had already been suspended a total of six days for events involving slapping, pushing, punching, and kicking other students, and for saying sexually charged and insulting things to another student. He often provoked fights, used profanity, and used offensive words based on race, disability, appearance, and sexual orientation. He created disruptions in his own classes and other classes he barged into when he eloped from his assigned classes.
• Parent did not want to agree to send Student to another educational setting and wanted a judge to make the decision about what type of educational setting Student required. Hence, District filed a request for due process hearing before ALJ.

CONCLUSION:-

• District proved that Student’s behavior posed significant risk of injury to himself or others such that District can remove Student to an interim alternative educational setting for not more than 45 school day.

Rationale:-

• District implemented behavior intervention plan at the NPS attending by Student, however, student continued to exhibit majorly disruptive behaviors including elopement from campus, exiting onto three residential streets that fronted the school, as well as one very busy, major street that had a lot of vehicular traffic, including public buses.
• District had to provide counseling services to other students who were victimized by Student’s aggression. Other students and their parents requested to be transferred out of classes in which Student was assigned because Student was so disruptive to their learning. Students and staff expressed that they feel fear in the hallways since Student began attending the School.
• Student’s conduct was so threatening or out-of-control that District staff could not resolve the crisis on their own, and they called for additional support and resources from public services including community-based mobile crisis intervention program with skilled staff for medical intervention as well as Police Department.
• District submitted various behavior logs and reports, manifestation determination analyses, and IEP team meeting notes for manifestation determinations and presented credible witnesses in support of its request to remove Student from his current educational placement.

REMEDIES/ORDER:-

• District may immediately remove Student from his current placement and place Student at District’s recommended or similar residential facility with an integrated nonpublic school, as an interim alternative educational setting.
• The interim alternative educational setting shall last a maximum of 45 school days, at which point District shall return Student to his current placement, unless otherwise ordered or agreed to by the parties.