Charter School's Expulsion of Student without Evaluating Him for Special Education Eligibility Violates the IDEA : Parent was NOT required to request the evaluation

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A Michigan charter school violated the IDEA by expelling a student with ADHD and oppositional defiant behavior without first evaluating his special education eligibility. It didn't matter that the child's guardian had not requested an evaluation.  In Rutherford Winans Academy, 114 LRP 32901 (Mich SEA 2013), a student had serious  behavioral issues that resulted in him being frequently disciplined. His guardian made several verbal requests for help for the student, but eventually the Academy expelled him and his guardian complained to the Michigan State Education Agency. The complaint indicated that the student had numerous behavioral difficulties, suspensions, and a hospitalization, but the student was never scheduled for an assessment to determine special education eligibility.

In its investigation the SEA found that the student had been  suspended four times and action plans were developed the first three times advising him what he needed to do to stay in school, but the plans did not include and the guardian did not specifically request a referral for a special education eligibility assessment. After the fourth suspension, the student was expelled. The investigation further revealed that the general education teacher had noted the student has serious behavioral issues and the guardian had even come into the classroom with a slip of paper requesting social work services. At one point, after the student was hospitalized,  the school principal told the guardian she should have the student evaluated.  He was evaluated at the Detroit Development Center and found to have ADHD and oppositional defiant behavior.

The charter school argued that it had no duty to initiate the evaluation process, because the guardian had not requested IDEA services or testing. In its decision the SEA noted that the principal in suggesting the guardian have the student evaluated after he was hospitalized had improperly "placed the burden for the evaluation on the guardian."  Finally, in finding the school had violated the IDEA, the SEA noted: " A student's entitlement to special education does not depend upon the vigilance of parents or guardians."