School district in central Arkansas ordered to take student who posted picture with gun

District appeals to federal judge

A hearing officer for the Arkansas Department of Education has ordered the Vilonia School District to return a 15-year-old special education student to his ninth-grade classes, over the objections of district officials who say he is potentially dangerous to other students and staff.

But instead of returning the boy to his classes at the Freshman Academy, the district on Monday appealed the hearing officer's 19-page order, signed Wednesday and filed Friday, to U.S. District Judge Kristine Baker in Little Rock.

Meanwhile, an attorney for the boy and his parents asked Baker on Monday evening to require the district to allow the boy to immediately return to school.

The boy has been out of school since March 2, when he was sent home because of a social media post he made at home the night before that was seen by the parent of a classmate. The picture was of the boy holding a rifle-type gun in front of himself with the words "I love it when they run" at the bottom.

When asked about the post March 2, the boy told school officials the gun was an Airsoft gun that didn't shoot real bullets and that the words were lyrics from a rap song.

But later that day, school officials also found an audio recording the boy had posted on the same social media platform, Snapchat, saying, "for all you p---- f------ out there that think you can beat my a--, I wish the f--- you would do so, that I fight to kill, I don't fight to hurt people." And they reported finding another image in which the boy had drawn a red circle around the head of another male student in a photograph.

Although the boy downplayed the posts as just joking around, he admitted to a special education supervisor on March 2 that he considered himself a "2" on a happiness scale in which 1 is unhappy and 10 is happy, according to the hearing officer's report. Testimony in an April 6 hearing before Baker revealed that he suffered brain damage as an infant, before being adopted by his current parents, and had been treated for depression a few months before the posts.

The hearing was held to decide whether, by trying to expel the boy, district officials were violating his rights under the federal Individuals with Disabilities Education Act, which requires school districts to provide a free and public education for special education students in the least-restrictive environment possible. The district contended it had a duty to protect other students and staff.

In the event of expulsion, federal law requires that the boy continue his education at home or at a day-treatment center.

On April 12, Baker granted the district's request to block a "stay-put" provision of the act that would have required the boy to be returned to the regular classroom after 10 days of suspension, which in this case was lengthened by a week of spring break. Baker agreed there was "significant interest in maintaining school safety" that overrode the provision, at least until the state Department of Education's administrative hearing.

The hearing officer's final report, after a closed hearing that lasted several days, indicates the boy's parents admitted him to a psychiatric facility on March 3 and that he was discharged on March 13. The hearing officer, Dr. Robert B. Doyle, said the psychiatrist told the district in a letter that the boy "does not pose a threat to himself or others and does not meet the criteria for acute hospitalization."

Doyle noted that the district had also cited evidence during the hearing about remarks the boy allegedly made in February about wanting to kill someone and go to prison for the rest of his life, that he was involved in a "love triangle" at school, and that there had been previous incidents of him "acting out."

But Doyle said evidence at the hearing also showed that the district didn't put in place support services to assist the boy.

"The District has not provided evidence that the student threatened to commit a crime of violence or to kill anyone in particular other than himself," Doyle wrote. "While it can be argued that the lyrics ... while holding an airsoft rifle could be construed as a threat to commit a crime of violence, it was not directed toward any individual or facility. Further, there is no evidence that the student shared or performed the song with anyone so as to cause a victim to believe the immediacy of the threat and the likelihood that it will be carried out."

"I conclude that the district did not have the authority to remove the student to an alternative education setting following the 10-day disciplinary act of suspension," Doyle wrote.

He also found that the district failed to show that the boy's conduct "supports a finding that maintaining his current placement [in the classroom] is substantially likely to result in injury, and that he should be removed to an alternative educational setting."

"While there is no bright-line rule for determining whether a particular student's behavior can be determined as 'dangerous' to self or others, the student's behaviors as presented in the evidence and testified to by the witnesses of both parties, to not meet the criteria of dangerousness by the standards" of other hearing officers in cases across the country, he said.

Metro on 05/01/2018

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