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School District Granted Emergent Relief to Conduct Psychiatric Evaluation and Place Student in an Alternative Interim Setting

On November 23, 2015, Administrative Law Judge Caridad F. Rigo granted the Clifton Board of Education’s Request for Emergent Relief to complete a psychiatric evaluation of a special education student and to place her in an alternative interim educational setting due to escalating behaviors.  Clifton Bd. of Educ. v. K.M. o/b/o K.M., OAK Dkt. No. EDS 18260-15, Agency Dkt. No. 2016-23665, 2015 N.J. AGEN LEXIS 576 (Nov. 23, 2015).  K.M. was an eighth grade female student classified as emotionally disturbed eligible for behavior plans, counseling, among other interventions.  K.M. exhibited significant behavioral and discipline issues.  K.M. had been suspended from school for approximately sixteen days and received three in-school suspensions/detentions during the 2015-2016 school year for behaviors.  On October 27, 2015, the school district suspended her for taking videos of other students with her cell phone during class and then posting these videos on the internet.  The videos showed K.M. using profanity and ridiculing and harassing other special education students in her class.  Thereafter, on November 6, 2015, the school district moved for emergent relief when K.M.’s parents refused consent for a psychiatric evaluation and to change her placement to an alternative educational setting.

Judge Rigo determined that the school district met the requirements for emergent relief pursuant to N.J.A.C. 6A:14-2.7(s) – (1) a showing of irreparable harm, (2) that the legal right underlying the claim is settled, (3) a likelihood of prevailing on the merits of the underlying claim, and (4) that the equities are in its favor.  Specifically, Judge Rigo found irreparable harm because K.M. already had a break in educational services and “the district is at a loss as to what to do next for K.M.”  Without the parents’ consent for a psychiatric evaluation, the school district would be unable to provide a free appropriate public education to K.M.  Pursuant to N.J.A.C. 6A:14-2.7(b) a school district may file for due process to compel parental consent for an evaluation.  Moreover, Judge Rigo found that K.M.’s behaviors significantly disrupted the operations of the school and other students’ ability to access an education.  Under this background, Judge Rigo determined that there was likelihood of success on the merits and a balance of equities in favor of the district.

School districts are not without recourse when they are unable to obtain parental consent to evaluate a student or change a student’s placement when the student’s behaviors are escalating.  School districts should first implement reasonable interventions to maintain the behaviors and/or work collaboratively with parents to explore various options.  However, when these strategies fail, a school district may file for emergent relief to complete an evaluation and change a student’s placement to an alternative interim setting until a more appropriate placement and program can be developed.

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Sanmathi (Sanu) Dev

About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.

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