District Failed to Assess Aggressive Kindergartner for Over a Year, Owes Compensatory Services

What Happened

Student was an eight-year-old first grader with severe aggressive behaviors enrolled in Panama-Buena Vista Union School District. As early as the fall of his kindergarten year (2018-19), Student was hitting peers and staff, shoving classmates' faces onto concrete, head-butting his teacher, and accumulating 13 "major" and 12 "minor" behavioral incidents in a single school year. The district responded with informal "student success team" (SST) meetings, check-in/check-out systems, and behavioral aides — none of which were documented or effective. Despite weekly contact with Parent about Student's alarming behaviors, the district never offered to assess Student for special education. It was not until Parent made a formal written request in March 2019 that the district initiated an assessment at all.

The district's first assessment, completed in May 2019, found Student ineligible for special education — concluding his aggressive and off-task behaviors weren't affecting his "educational performance" because his grades were passing. A second assessment in December 2019 finally found Student eligible. By February 2020, after Student had given staff a black eye, bruised a teacher's ribs, and been restrained multiple times, the district completed a functional behavior assessment and amended its IEP offer. Parent filed for due process in September 2020, and the district filed its own complaints, all of which were consolidated into this hearing.

What the District Did Wrong

Failure to assess at all for over a year. The ALJ found that by November 1, 2018 — when Student was first suspended — the district clearly had reason to suspect a disability and should have offered an assessment plan. Instead, it relied on informal, undocumented SST interventions that were admittedly experimental and ineffective. The assistant principal testified he believed an SST meeting was a required first step before any special education referral could occur. This was legally incorrect. Parent was never informed of her right to request a formal assessment at either SST meeting.

The May 2019 assessment was inadequate. Even after Parent requested and the district conducted an assessment, it was found to be inappropriate in two critical ways. First, it used only one behavioral rating tool (the BASC), drew unsupported conclusions that Student's extreme behaviors were due to "boredom," and failed to recommend or conduct a functional behavior assessment despite Student having pushed classmates 19 times and required 23 redirections during a single observation. Second, the district improperly found Student ineligible by looking only at his academic grades and ignoring that social functioning — conflict resolution, peer relationships, following classroom rules — is a core part of "educational performance" under the law.

The December 2019 assessment also failed to adequately assess behavior. Despite Student's behaviors having escalated further into first grade, the December 2019 assessment again used only the BASC and again failed to conduct a functional behavior assessment. One district assessor downplayed Student's 25 behavioral incidents by suggesting that students at "lower socioeconomic" schools naturally exhibit more maladaptive behavior — testimony the ALJ found not credible, discriminatory in assumption, and legally irrelevant.

What Was Ordered

1. Student is awarded 160 hours of specialized academic instruction as compensatory education, to be provided by a certified non-public agency of Parent's choosing.
2. Student is awarded 51.5 hours to be used at Parent's discretion for behavior intervention services, individual counseling, and/or parent and family counseling services, also through a certified non-public agency.
3. Panama must establish direct payment to any certified non-public agency selected by Parent.
4. All compensatory hours are available through the end of the 2021-22 school year and expire on the last school day of that year if unused.
5. The district is not required to fund an independent educational evaluation in the area of behavior — the February 2020 functional behavior assessment was found appropriate.
6. The district may implement its December 2019 IEP as amended February 28, 2020 without parental consent, if Parent wants Student to receive special education services.

Why This Matters for Parents

1. You do not have to wait for an SST process to end before requesting a special education assessment. This district incorrectly believed SST meetings were a required gateway to a special education referral. They are not. If your child has a suspected disability, you can request a formal assessment in writing at any time, and the district must respond within 15 days with either an assessment plan or a written explanation of why it is refusing.

2. "Good grades" alone cannot disqualify a child from special education. The ALJ was explicit: educational performance includes social functioning, peer relationships, conflict resolution, and behavior — not just academic achievement. If your child is passing classes but cannot function safely or socially at school, that is an adverse effect on educational performance.

3. A behavioral assessment must actually analyze behavior — not just administer a rating scale. The district's use of a single questionnaire (the BASC), without a functional behavior assessment, was found inadequate when the child had documented, severe, escalating aggression. If your child has significant behavioral challenges, you can ask specifically whether the district is conducting a functional behavior assessment and what data it is collecting on the function (the "why") of the behavior.

4. Document everything, and request that the district document its interventions too. A key problem in this case was that the district's SST interventions were entirely undocumented — no dates, no strategies, no data. This made it impossible to show they were working, and it delayed accountability. Keep your own written records of every incident, every phone call, and every meeting, and ask the district to provide written documentation of any interventions it tries.