Mike is an 11 year old, 5th grade student with ADHD and SLD. He is on the autism spectrum (relatively high-functioning) and has significant sensory issues.
Mike's behavior problems are escalating. He becomes stressed out, refuses to do work, and refuses to go to occupational therapy. Mike is working on keyboarding skills and it is difficult for him. He has a low frustration tolerance, serious work avoidance issues, and a fair amount of attention-seeking behavior.
There is a Behavior Intervention Plan (BIP) in place for Mike, but the school is not following the plan. His parents are extremely frustrated with the school's response to Mike's escalating behavior.
The school's position is:
The BIP is meant to target one or two behaviors at a time. If Mike engages in conduct that is outside the BIP, the school very quickly gives him an in-school suspension (ISS), or silent lunch, or takes away recess.
*Mike's parents think it is inappropriate to give Mike an ISS when he is frustrated and refuses to complete his work or other tasks.
2. The principal does not seem to care whether there is a BIP or not. He has called the police twice in the last two months when Mike refused to get out of the car in the car-rider line and go into school.
When the police responded, they did not aggressively confront Mike and he ultimately went into the school on his own.
*Mike's parents think it is inappropriate for the school to immediately call the police. His parents think the special ed teacher should come out and talk to him, or use another solution from the BIP.
3. The school thinks Mike's willful choices cause his behavior problems at school. The school believes his underlying disabilities cause Mike’s higher stress levels.
*Mike's parents think the environment in school is inappropriate. They believe this environment causes his stress and behavior problems.
How to Address Behavior Management and the School's Response
What a BIP Looks Like
Get a Current Evaluation
When was Mike's most recent psychological evaluation? Mike's parents could ask for a psych eval or even a neuropsych eval specifically to assess behavioral function and identify strategies that will help.
If Mike has a recent psych eval, but the eval does not address behavioral strategies, that might be a basis for requesting an Independent Educational Evaluation (IEE). Part of the FBA could include the psych eval.
Either way, the FBA should be more than a records review. The FBA should consist of some kind of evaluation and/or observation. Characterize the FBA as an evaluation in order to trigger the parent's right to an IEE.
A good book on FBAs and BIPs is Why Johnny Doesn't Behave: Twenty Tips and Measurable BIPs by Barbara Bateman and Annemieke Golly.
TIP: It is a good thing the police officer was collaborative. Remember the requirement in the Federal Regulations (34 CFR 300.535). You can file a complaint if the school is calling law enforcement without also forwarding copies of the child's special education and disciplinary records for consideration by the appropriate authorities.
More about Behavior and Discipline
More about Evaluations
Thank you to William B. Reichhardt and Angela Ciolfi for providing the information in this article.
Angela Ciolfi, Executive Director, Legal Aid Justice Center
Angela Ciolfi joined the Legal Aid Justice Center (LAJC) in 2004 as a Powell Fellow in the JustChildren Program after clerking for U.S. District Judge Reginald C. Lindsay. She served as JustChildren Legal Director from 2010 to 2017 when she became the Director of Litigation and Advocacy. She was co-editor of Virginia CLE's Juvenile Law Practice Manual and co-authored the JustChildren program's widely distributed manual, Education Law and Advocacy.
Angela was the recipient of the Oliver White Hill Award from the VIrginia State Bar in 2003 and the Child Advocacy Award from the American Bar Association’s Young Lawyers Division in 2010. Angela was also named the recipient of the 2017 Virginia Legal Aid Award by the Virginia State Bar Access to Legal Services Committee for her work advocating for children’s issues throught the Commonwealth. She is a graduate of The College of William and Mary and University of Virginia School of Law.
From 2012-2014, Angela was a member of the faculty at the William and Mary Law School Institute of Special Education Advocacy (ISEA).
William B. Reichhardt, Esquire
William B. Reichhardt (Bill) is now retired from the full time practice of law and lives in Annapolis, Maryland. He received a B.A. from the University of Virginia (1971); a M.Ed. degree in counseling from the University of Virginia (1976) and a J.D. from George Mason University School of Law (1983). He has been admitted to practice in Virginia and Maryland.
His current practice is limited to consulting with parents and educators regarding special education and school law. For over 30 years, Mr. Reichhardt litigated at the trial and all appellate levels of the Virginia State and Federal courts. He has represented parents in special education due process hearings and Federal Court appeals.
His current efforts are limited to pro-bono work in Maryland and consulting and lecturing regarding special education and school law. For over 33 years, Mr. Reichhardt litigated at the trial and all appellate levels of the Virginia State and Federal courts. He has represented parents in special education due process hearings and Federal Court appeals.
In August 2006, Mr. Reichhardt was appointed by the Chief Justice of the Supreme Court of Virignia to serve on the Virginia State Bar Professionalism Course Faculty where he served for six years. Bill is a co-author of the Juvenile Law and Practice Handbook published by the Virginia Law Foundation and he has lectured extensively on topics related to school discipline, the rights of children, special education, criminal defense practice in juvenile court, and the laws of child abuse and neglect. He is the 2010 recipient of the Lewis F. Powell Jr. Pro Bono Award bestowed by the Virginia State Bar in recognition of his efforts to provide and support legal advocacy for children.
Bill was a member of the faculty at the William and Mary Law School Institute of Special Education Advocacy (ISEA).
Last revised: 4/9/2023