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Home Archive Volume 65 Volume 65, Issue 2 COMMENT: The Road to Prison is Paved with Bad Evaluations: The Case for Functional Behavioral Assessments and Behavior Intervention Plans
COMMENT: The Road to Prison is Paved with Bad Evaluations: The Case for Functional Behavioral Assessments and Behavior Intervention Plans

By Stephanie M. Poucher │ 65 Am. U. L. Rev.  471 (2015)

In 1997, Congress amended the Individuals with Disabilities Education Act (“IDEA”) to include provisions meant to assist school districts in educating students with behavioral needs.  These amendments required schools to use functional behavioral assessments (“FBA”) and behavior intervention plans (“BIP”) under certain circumstances. Congress did not, however, include a definition of or substantive requirements for either system of behavior management. As a result, although BIPs and FBAs are now federally mandated requirements, and it is clear that disregarding behavioral issues is a denial of a free appropriate public education (“FAPE”), the IDEA’s adjudicative standard, there is no clear consensus as to whether a student with behavioral needs must have an FBA or a BIP or what either must include.  The IDEA’s lack of guidance has resulted in inconsistent and often contradictory court rulings, and the lack of specific definitions and procedures has allowed schools to develop purportedly legal but substantively deficient behavior evaluations and intervention plans for special needs students.

Despite this confusion, some courts have properly looked to the administrative record for guidance on the substantive elements of FBAs and BIPs.  Deference to hearing officers, along with other provisions within the IDEA, such as Child Find and inclusion obligations, may assist courts in determining whether a school’s failure to use an FBA and a BIP for a student with behavioral needs falls short of Board of Education v. Rowley’s requirements for FAPE.  FBAs and BIPs aim to prevent and correct student misconduct before it escalates and results in drastic disciplinary action.  Given the impact punitive school discipline policies have had on students with special needs, the added procedural safeguards these proactive behavior management schemes could provide are imperative to dismantling the school-to-prison pipeline.

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