Dealing Positively with Antisocial Behaviors

Presented by: Daniel R. Martin

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Taken from the November 1989 Issue of Principal, Vol. 69, No. 2 4

Authority to Control Conduct

 School authorities "have both the inherent and the statutory power to maintain order and discipline in the schools and to exclude from the student body those who are detrimental to such body and whose conduct is inimical to the exercise of the institution’s scholastic function."  See

Davis v. Ann Arbor Public Schools

, 313 F.Supp. 1217 (ED Mich, 1970).

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Authority to Control Conduct

 Revised School Code  Educate pupils and provide for their safety and welfare  MCL 380.11a(3)  Adopt and enforce code of student conduct  MCL 380.1312(8) 6

Limitations on Control

 “Vigilant protection of constitutional freedom is nowhere more vital than in the community of American schools.” 

Keyishian v Board of Regents

, 385 US 589 (1967)  “It hardly can be argued that either students or teachers shed their constitutional right[s] . . . at the school house gates.” 

Tinker v. Des Moines Ind. Com. Sch. Dist., 393 U.S. 503

(1969) 7

Limitations on Disciplinary Authority

 Constitutional Limits  First Amendment  Speech / Press / Religion  Fourth Amendment  Search & Seizure  Due Process

Limitations on Disciplinary Authority

 Statutory Limits  IDEA  Change of Placement / Manifestation Determination  FBA/BIP  Modified FAPE  Corporal Punishment  Seclusion and Restraint

Zero Tolerance Policies

 Mandatory Permanent Expulsions  Dangerous Weapons  Arson  Criminal Sexual Conduct  Physical Assault on School Personnel  Mandatory Suspension or Expulsion  Verbal Assault on School Personnel  Bomb Threats 10

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State Board of Education

 Researchers have found no evidence that zero tolerance policies make schools safer or improve student behavior.  Studies suggest that overuse of suspensions and expulsions may actually increase likelihood of later criminal misconduct.  Students subject to suspension and expulsion are isolated from learning environments.

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State Board of Education

 Review existing zero-tolerance policies that are above and beyond those required in law  Limit number of offenses mandating suspension and referral to law enforcement  directly related to safety of students and personnel  Reserve removing a child from an educational opportunity for the most serious infractions  not used as discipline for minor occurrences 13

State Board of Education

 Implement or expand use of proven alternative behavior management strategies that allow educators to address disciplinary matters correctively, rather than punitively, reducing suspensions  restorative practices,  positive behavior supports, and  peer mediation 14

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Positive Behavior Supports FBAs & BIPs

Everyone Counts!

Including those who engage in antisocial behaviors.

State Policy

 Every district must implement system of

school-wide

positive behavior support strategies 18

MDE PBS Policy & Guidance

“A ... data-based effort that concentrates on adjusting the system that supports the student. Such a system is implemented by collaborative, school-based teams using person-centered planning.”  Implementation Guide 2008 19

School Wide PBS: 3-Tiered Model

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IDEA Reqts – Proactive / IEP

 If child’s behavior interferes with his/her learning or learning of others, then as part of the development of IEP the IEP Team must  consider use of positive behavioral interventions and supports and other strategies to address that behavior  20 USC §1414(d)(3)(B)(i)  34 CFR § 300.324(a)(2) 21

IDEA Reqts – Reactive / Discipline

 As part of discipline process, when misconduct is determined a manifestation of student’s disability, IEP Team must either  If no FBA or BIP, conduct FBA

and

implement BIP; or  If the student has a BIP, review

and

as necessary to address behavior modify it  §1415(k)(1)(F)(i)  34 CFR § 300.530(f)(1) 22

IDEA Reqts – Reactive / Discipline

 Student must receive

“as appropriate

” an FBA, BIS and “modifications” designed to address behavior violation so it does not recur  When suspended in excess of 10 consecutive school days, or  When placed in an IAES  20 USC §1415(k)(1)(D)(ii)  34 CFR § 300.530(d)(ii)  See Q&A on Discipline – Q E-2 23

MDE Discipline Procedures

 If manifestation, then:  Immediately initiate FBA/BIP process or review an existing FBA/BIP to address the behavior  If not a manifestation, then  Immediately initiate,

as appropriate

, an FBA and behavioral intervention services and modifications designed to address the behavior violation so that it does not recur, or review an existing FBA/BIP to address the behavior  See, MDE Discipline Procedures 2011, p. 8 24

MDE Discipline Procedures

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Districts must document their process for determining whether a BIP or other behavioral intervention services or modifications are appropriate

 MDE recommends using FBA process as documentation of meeting this requirement 25

Functional Behavioral Assessment (FBA)

 Generally, an acceptable FBA:  Defines target behavior  Establishes baseline of behavior frequency  Collects information regarding antecedents  Collects information regarding consequences* of the behavior for the child  Not punishment, but what student gets from behavior 26

Functional Behavioral Assessments

 Key to an appropriate FBA is data  Documentation and data collection are becoming increasingly focused upon in due process hearings  “ABC” data and documentation of interventions must be collected across environments (regular education, special education and other “educational settings”) depending on where the behavior is exhibited  Analysis of data is key to preparing an appropriate BIP  Graph the data and the effects of interventions 27

When to Perform FBA

 In most cases where child’s behavior impedes the learning of self or others and

can be readily anticipated to be repetitive

, development of IEP will include development of strategies to address that behavior 

Danielle G. v New York City BOE

, 50 IDELR 247 (ED NY, 2008)  ASD student’s self stimulatory behavior required FBA because it interfered with her learning  See also,

Mobile County Board of Ed

, 50 IDELR 84 (SEA Al., 2007) 28

When does one perform an FBA?

 When implementing PBS & devising or revising BIPs  school wide or individual  For individual students, you need not conduct FBA or implement BIP when:  behavior no different than typical student for that grade  behavior is not repetitive  Regulatory Rule of Thumb:  where behavior impedes learning of the student or of others, and  behavior is repetitive or readily anticipated to be repetitive 29

How Do PBS Relate to BIPs?

 PBS in the proactive IEP may constitute BIP in reactive/discipline context  Functional behavior assessment is the foundation for both PBS and BIP  P in PBS does not preclude use of negative consequences  BIPs should contain positive components  Existence of BIP referenced in IEP  In certain situations MDE requires the BIP to be “in” the IEP 30

Who performs the FBA?

 IDEA does not require any particular person or any particular qualifications (e.g., a board certified behavior analyst)  Staff who perform FBAs must be prepared and provided adequate training  Such training, provided by the school district working with the state department of ed, may be in-services, technical assistance, etc.

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Letter to Janssen

, 108 LRP 65830 (OSEP 2008) 31

Who performs the FBA?

 State guidance document on Implementing PBS recommends a team, including:  Student’s teacher  Parents  Student  Support staff  Administrators  Outside providers 32

Consent for FBA

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Letter to Christiansen

, 47 IDELR 161 (OSEP 2007)  FBA may be an evaluation which requires consent if it is used to determine whether a child has a disability, or the extent of special education or related services  No consent required if used for school wide PBS 33

Independent Educational Evaluations

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Harris v District of Columbia Public Schools

, 50 IDELR 194 (DC, 2008)  FBA is an “educational evaluation”  “Evaluation” is a procedure to determine the specialized instruction or related services a student needs  Integral in determining the behavioral needs of the student  Parent is entitled to IEE if they disagree with an evaluation obtained by the school  Since FBA is an “evaluation” parent is entitled to an IEE on the FBA if disagree 34

Steps in Behavior Intervention Plans (BIPs)

 Consider assessment information  Make hypothesis regarding behavior  Devise BIP  Target and replacement behaviors  Environmental supports  Train Staff  Collect Data  Review & Revise BIP as necessary 35

BIP Content

 More than one way to devise a BIP  IEP itself could lay out elements of positive behavior support that could constitute a BIP  Separate written document may set forth positive supports, replacement behaviors to be taught, intervention strategies and response strategies  PBS and BIPs are process as well as product  Good implementation requires good documentation  Data tells you when to review and revise 36

BIP Content

 Generally, if district followed process and implemented a BIP, Courts will not second guess the content / strategies of the BIP 

Alex R. v Forrestville Valley Community School Unit

, 41 IDELR 146 (7 th Cir., 2004)  Neither Congress nor US Department of Ed created any specific substantive requirements for the BIP  As long as BIP reasonable (i.e., reasonably calculated) a court will not create substantive requirements for BIP 37

Elements of a BIP

 Identify Target Behavior  Identify Replacement Behaviors  Identify Strategies  Environmental modifications/accommodations  Proactive interventions/redirection  Identify Rewards  Identify Consequences 38

BIP in a Separate Written Document?

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School Bd of Independent School District No. 11

, 106 LRP 15941 (8 th Cir., 2006)  Held neither state nor federal law required the behavior plan to be in writing  The District staff had documented interventions  District staff responded to behavioral incidents with set procedures  Student made progress 39

BIP in the IEP

 Neither the IDEA nor its implementing regulations require the BIP to be in the IEP  While a district may choose to do so, it is not required under IDEA or Part B regs 

Letter to Huefner

, 23 IDELR 1072 (OSEP 1995).

 However, best practice includes developing, reviewing, implementing and documenting a BIP as part of the IEP process  Compare MDE Discipline Manual  To exclude the removal as a count day, removal must be in BIP and BIP must be in IEP 40

MDE Discipline Procedures

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II.G. Removal Part of Behavior Plan

1. If a removal from school is written into a behavior plan that is part of the student’s IEP …, the removal does not count as days of removal for disciplinary reasons. However, those days are counted as suspension for IDEA reporting purposes in MSDS.

* * * 3. When a removal from school is written into a behavior plan that is not part of the student’s IEP, the removal counts toward the days of removal for disciplinary reasons and the days are counted as suspension for IDEA reporting purposes in MSDS .

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MDE Discipline Procedures

 For BIP to be considered part of IEP a. BIP must be explicitly written in the IEP MDE recommends that BIPs be written in the Supplementary Aids and Services or Special Factors section of IEP, and include the time, frequency, condition, and location for implementation of the BIP b. The district must convene an IEP or develop an amendment to change the BIP c. If removal is part of the BIP, Procedural Safeguards should be provided to the parent 42

Aversives in the BIP?

 Generally, Positive Behavior Supports does not mean that the BIP may not have negative consequences  However, the majority of a well designed BIP will focus on the teaching aspect of behavior modification  i.e., on teaching replacement behavior, not on the consequences for the behavior 43

Aversives in the BIP not prohibited

 OSEP clarified that IDEA does not expressly prohibit the use of aversive behavioral interventions 

Letter to Anonymous

, 50 IDELR 228 (OSEP 2008)  Must also look to state law, as state law may establish additional requirements 

Letter to Trader

, 48 IDELR 47 (OSEP 2006) 44

Seclusion & Restraint Standards

 Applies to use of Seclusion or Restraint with ALL students  Students with and without disabilities  must be undertaken only by trained personnel & as a last resort 45

Prohibited uses

 May not be utilized  for the convenience of staff  as a substitute for an educational program  as a form of discipline or punishment  as a substitute for less restrictive alternatives  as a substitute for adequate staffing  as a substitute for staff training in PBS and crisis prevention and intervention 46

Training

 Personnel must have training  Awareness training to “the broader educational community”  Including “pre-service” training for all teachers  Awareness training for substitute teachers  Comprehensive training for “key identified personnel” 47

Emergency Exclusion

 “Emergency seclusion” is only appropriate where an emergency exists and seclusion is essential. Seclusion may be appropriate where:  the behavior poses an “

imminent risk to the safety of the individual student

” or others  A behavior that requires immediate intervention constitutes an “emergency”  Seclusion is not appropriate for students who exhibit self-injurious behavior or are suicidal 48

Three Types of Restraint

 Physical  direct physical contact that prevents or significantly restricts a student's movement  Chemical  administration of medication for purpose of restraint  Mechanical  use of any device or material attached to or adjacent to student’s body that restricts normal freedom of movement and which cannot be easily removed by student 49

Other prohibited practices

 Prone restraints  Restraints that negatively impact breathing  Corporal punishment  Deprivation of basic needs  Anything constituting child abuse  Intentional use of noxious substance(s) or stimuli which results in physical pain or extreme discomfort 50

Emergency Restraint

 “Last resort” intervention for student to regain self-control  Behaviors that

may

require the use of restraint:  The behavior poses an

imminent risk to the safety of the individual student or to others

; or  is otherwise governed by the corporal punishment sections of the Revised School Code  MCL 380.1312

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Actions not prohibited

Standards on physical restraint is not intended to forbid actions taken:  to break up a fight  to take away a weapon  to briefly hold the student in order to calm or comfort  minimum contact necessary to physically escort a student from one place to another  to assist a student in completing a task (provided the student does not resist or the resistance is minimal in intensity or duration)  to hold a student to prevent an impulsive behavior that threatens the student's safety 52

Corporal Punishment §1312(1)

 §1312(1) of Michigan Revised School Code prohibits corporal punishment  Defined as “the deliberate infliction of physical pain by hitting, paddling, spanking, slapping, or any other physical force used as a means of discipline”  Specifically excludes “physical pain caused by reasonable physical activities associated with athletic training” 53

Reasonable Force §1312(4) of RSC

 An employee / volunteer / contractor may  use “reasonable physical force”  upon a pupil  as necessary  to maintain order and control in a school or school related setting  for the purpose of providing an environment conducive to safety and learning 54

Reasonable Force §1312(4) of RSC

 As necessary for 1 or more of the following:  Restrain/remove a pupil whose behavior is interfering with the orderly exercise and performance of school functions — if the pupil has refused to comply with request to refrain from further disruptive acts  Self defense/defense of another  Prevent pupil from harming self  Quell disturbance that threatens physical injury to another  Obtain weapon or dangerous object from pupil  Protect property 55

Reasonable Force §1312 of RSC

 Deference must be given to reasonable good faith judgments by an employee/volunteer/contractor in using physical force in the above situations  When such force is used in accordance with the act on a student (or person of school age in a school related setting) there is immunity from civil damages  A person willfully or through gross negligence violating the act may be appropriately disciplined  An employee may be disciplined in accordance with school board policies 56

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The Collaborative Problem Solving (CPS) Approach

Everyone Counts!

And deserves to be treated with compassion and respect.

Collaborative Problem Solving (CPS)

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Collaborative Problem Solving (CPS)

The trademarks “Collaborative Problem Solving” and “Collaborative Problem Solving approach” are registered to Dr. Ross W. Greene. I am not a certified trainer, have no affiliation with Dr. Greene, and am merely presenting an overview of the model. While I am presenting my best understanding of the model, the accuracy of the information presented should not be assumed. Visit the website www.livesinthebalance.org to access model updates and other resources.

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www.livesinthebalance.org

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www.lostatschool.org

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CPS Paradigm Shift

Behavioral challenges understood as form of developmental delay  domains of flexibility/adaptability, frustration tolerance, and problem-solving  deserving of the same compassion and approach as are applied to other cognitive delays  reading, writing, and arithmetic 63

CPS – Behavior & Problems

 Challenging behavior occurs in response to specific unsolved problems  e.g., homework, screen time, teeth brushing, clothing choices, sibling interactions, etc.

 These unsolved problems are usually highly predictable and can therefore be solved proactively 64

CPS – Behavior & Problems

 Typical disciplinary approach using time-outs, detentions, suspensions, expulsion, and isolation do not solve these problems or "build character" but rather often makes things worse  Primary goal of intervention is to collaboratively solve these problems in a way that is

realistic

and

mutually satisfactory

so that they don't precipitate challenging behavior any more 65

Collaborative Problem Solving

 Adults take a genuine interest in kid’s concerns and perspectives, which are viewed as legitimate, important, and worth listening to and clarifying  Adults who do not resort to physical intervention and are knowledgeable about and proficient in other means of solving problems 66

Collaborative Problem Solving

 Solving problems collaboratively prepares kids for the demands they will face in the real world  Blind obedience to authority is dangerous; life in the real world requires expressing one's concerns, listening to the concerns of others, and working toward mutually satisfactory solutions 67

CPS: Five Goals of Plan B

 Goal 1: Pursue unmet expectations and ensure that your concerns about a kid’s challenges are addressed  Goal 2: Solve the problems precipitating a child’s challenging episodes in a collaborative, mutually satisfactory, and durable fashion  Goal 3: Teach the kid the skills he’s lacking  Goal 4: Reduce challenging behavior  Goal 5: Create a helping relationship 68

Three Approaches

 Plan A  Adults impose their will in response to unmet expectation / problem  Plan B  Collaborative problem solving  Plan C  Dropping an expectation completely, or at least temporarily 69

CPS: 3 Steps of Plan B

Step 1: Empathy  Understand the kid’s concern / perspective Step 2: Define the Problem  Adult’s concern about problem or unmet expectation Step 3: Invitation  Restate the two concerns (kid’s and adult’s) and invite the kid to solve it collaboratively – together  Realistic & mutually satisfactory solution 70

CPS: Assessment of Skills/Problems

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Everyone Counts!

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