Berkeley Wins Right to Move Dangerous Student to Alternative Placement for 45 Days

Berkeley Unified School District filed an expedited due process hearing seeking to move a 14-year-old student with autism to an interim alternative educational setting after a series of serious behavioral incidents at Berkeley High School, including physical assaults, theft, unwanted sexual contact with a staff member, and an attempt to grab a police officer's loaded firearm. The ALJ found that maintaining the student at Berkeley High was substantially likely to result in injury to the student or others. Berkeley was authorized to place the student at Spectrum Center—Camden Campus, a nonpublic school, for up to 45 school days.

What Happened

The student is a 14-year-old ninth-grader with autism who enrolled in Berkeley Unified in 2015. Under his most recent IEP, he attended Berkeley High School with specialized academic instruction, speech-language services, occupational therapy consultation, and a one-to-one aide. Berkeley High is a large open-campus school of roughly 3,300 students, with limited entry monitoring. From the very beginning of the 2018–19 school year, the student's behavior escalated significantly. Within the first few months, he punched another student twice (drawing blood both times), attempted a third assault, struck a student with a badminton racket, and stole food and money from classmates. On November 13, 2018, he digitally penetrated a staff member's anus without consent, causing the staff member to take two weeks off work and suffer lasting trauma. After returning to school in December following a suspension, the student lunged for a police officer's loaded service weapon. Berkeley filed for an expedited due process hearing to remove the student to a smaller, more controlled nonpublic school setting.

Throughout this period, Berkeley attempted to address the student's behavior by proposing a behavior intervention plan and a functional behavioral assessment, but the mother declined to consent to either. Berkeley also scheduled four separate manifestation determination review meetings after each suspension — the mother declined to attend any of them. The district ultimately proceeded without her and ultimately sought court authorization to move the student to Spectrum Center—Camden Campus, a nonpublic school in Oakland equipped to serve students with disabilities and significant behavioral needs.

What the ALJ Found

The ALJ ruled entirely in Berkeley's favor, finding that the district met its legal burden to justify an emergency change of placement. Key findings include:

Substantial likelihood of injury was clearly established. In just four months, the student had physically assaulted other students, sexually assaulted a staff member, and attempted to seize a police officer's loaded firearm. The ALJ found the risk of serious harm — up to and including loss of life — to be real and ongoing.
The current placement could not contain the student's behavior. Berkeley High's open campus, large student body, and limited supervision made it structurally unable to safely manage the student. Even the student's dedicated one-to-one aide found his behavior so unpredictable that the aide requested a schedule break — something he had never done in seven years of working at the school.
The proposed alternative placement was appropriate. Spectrum Center—Camden Campus offered a smaller environment, lower student-to-staff ratios, staff specifically trained in working with students with disabilities and maladaptive behaviors, and use of applied behavior analysis — an evidence-based practice for students with autism. The ALJ found that Camden Campus would allow the student to continue accessing the general education curriculum and make progress on his IEP goals.
Parental consent is not required for an interim alternative educational setting (IAES). The IDEA specifically allows a district to seek court or ALJ authorization to move a student to an IAES without parental consent when there is a substantial likelihood of injury. The mother's decision not to participate in meetings did not prevent the placement from going forward.
Assessments can and should occur at the IAES. A separate (non-expedited) OAH decision had already ordered Berkeley to conduct a functional behavioral assessment without the mother's consent. The ALJ noted this assessment could be completed at Camden Campus, and that behavioral interventions could be implemented in the meantime.

What Was Ordered

Berkeley Unified School District was authorized to place the student at Spectrum Center—Camden Campus, a nonpublic school in Oakland, California, for a period not to exceed 45 school days, beginning from the student's first day of attendance at that campus.

Why This Matters for Parents

Schools can remove your child from their current placement without your consent if there is a serious safety risk. Under the IDEA, if a district can demonstrate that keeping a student in their current placement is "substantially likely" to cause injury to the student or others, a hearing officer can authorize a move to an interim alternative educational setting — even over a parent's objection. You do not have a veto over emergency placements when real safety risks are established.
Refusing to participate in meetings can work against you. The mother in this case declined to attend four manifestation determination review meetings and did not engage with the district's proposed behavior intervention plan or assessment. While parents have every right to disagree with a district, refusing to participate at all can leave you without a voice in decisions that affect your child — and can undermine your legal position at a hearing.
Consenting to behavioral assessments and behavior intervention plans matters. Berkeley proposed a behavior intervention plan and a functional behavioral assessment early in the school year. Had those tools been in place, the student's escalating behavior might have been identified and addressed sooner. Refusing assessments does not protect your child if it means the district lacks the information to support them properly.
An IAES must still provide educational services. Even when a student is moved to an alternative setting for safety reasons, the law requires that the new placement allow the student to participate in the general education curriculum and make progress toward IEP goals. The new setting must also provide appropriate behavioral supports. Parents should ask for documentation showing how the IAES will meet their child's educational needs — not just contain their behavior.
"Substantially likely" does not mean a catastrophe must happen first. Courts have held that a student does not have to cause a serious injury before a district can act. A pattern of escalating behavior — even without permanent physical harm — can be enough to justify an emergency placement change. If your child's behavior is escalating, proactively engaging with the district on behavioral supports may give you more influence over where and how your child is served.

What Happened

What the ALJ Found

The ALJ ruled entirely in Berkeley's favor, finding that the district met its legal burden to justify an emergency change of placement. Key findings include:

Substantial likelihood of injury was clearly established. In just four months, the student had physically assaulted other students, sexually assaulted a staff member, and attempted to seize a police officer's loaded firearm. The ALJ found the risk of serious harm — up to and including loss of life — to be real and ongoing.
The current placement could not contain the student's behavior. Berkeley High's open campus, large student body, and limited supervision made it structurally unable to safely manage the student. Even the student's dedicated one-to-one aide found his behavior so unpredictable that the aide requested a schedule break — something he had never done in seven years of working at the school.
The proposed alternative placement was appropriate. Spectrum Center—Camden Campus offered a smaller environment, lower student-to-staff ratios, staff specifically trained in working with students with disabilities and maladaptive behaviors, and use of applied behavior analysis — an evidence-based practice for students with autism. The ALJ found that Camden Campus would allow the student to continue accessing the general education curriculum and make progress on his IEP goals.
Parental consent is not required for an interim alternative educational setting (IAES). The IDEA specifically allows a district to seek court or ALJ authorization to move a student to an IAES without parental consent when there is a substantial likelihood of injury. The mother's decision not to participate in meetings did not prevent the placement from going forward.
Assessments can and should occur at the IAES. A separate (non-expedited) OAH decision had already ordered Berkeley to conduct a functional behavioral assessment without the mother's consent. The ALJ noted this assessment could be completed at Camden Campus, and that behavioral interventions could be implemented in the meantime.

What Was Ordered

Berkeley Unified School District was authorized to place the student at Spectrum Center—Camden Campus, a nonpublic school in Oakland, California, for a period not to exceed 45 school days, beginning from the student's first day of attendance at that campus.

Why This Matters for Parents

Schools can remove your child from their current placement without your consent if there is a serious safety risk. Under the IDEA, if a district can demonstrate that keeping a student in their current placement is "substantially likely" to cause injury to the student or others, a hearing officer can authorize a move to an interim alternative educational setting — even over a parent's objection. You do not have a veto over emergency placements when real safety risks are established.
Refusing to participate in meetings can work against you. The mother in this case declined to attend four manifestation determination review meetings and did not engage with the district's proposed behavior intervention plan or assessment. While parents have every right to disagree with a district, refusing to participate at all can leave you without a voice in decisions that affect your child — and can undermine your legal position at a hearing.
Consenting to behavioral assessments and behavior intervention plans matters. Berkeley proposed a behavior intervention plan and a functional behavioral assessment early in the school year. Had those tools been in place, the student's escalating behavior might have been identified and addressed sooner. Refusing assessments does not protect your child if it means the district lacks the information to support them properly.
An IAES must still provide educational services. Even when a student is moved to an alternative setting for safety reasons, the law requires that the new placement allow the student to participate in the general education curriculum and make progress toward IEP goals. The new setting must also provide appropriate behavioral supports. Parents should ask for documentation showing how the IAES will meet their child's educational needs — not just contain their behavior.
"Substantially likely" does not mean a catastrophe must happen first. Courts have held that a student does not have to cause a serious injury before a district can act. A pattern of escalating behavior — even without permanent physical harm — can be enough to justify an emergency placement change. If your child's behavior is escalating, proactively engaging with the district on behavioral supports may give you more influence over where and how your child is served.