D.N., A MINOR, BY AND THROUGH HIS MOTHER, R.N.

v.

SCHOOL BOARD OF BAY COUNTY, FLORIDA

KELSEY, J.

This case arises from a September 2021 riot at Rutherford High School in Springfield, Florida. Before the fight started, an incident occurred between Appellant and another student who had a known history of conflict with Appellant, leading Appellant to tell school personnel proactively that “something was going to happen.” This was considered a possible gang-related situation, and school personnel talked with both sides involved in the dispute in an attempt to calm them down. Nevertheless, 50 or more students became involved in a fight in the school courtyard. Appellant later testified that he got involved to protect his younger brother. The school resource officer called law enforcement for help, and the county sheriff plus three separate police departments responded. One law enforcement officer sustained minor injuries, and two school staff members were hit. Sixteen students were arrested. Another student was reported as having a gun, prompting a school lockdown. She was found with an Airsoft or pellet gun, and arrested. Portions of the fight were captured on video, and Appellant was shown fighting, while between 10 and 15 school personnel attempted to break it up.

Appellant was among those arrested. He was a fifteen-year-old ninth-grader. He had a history of 52 disciplinary referrals between 2013 and 2021, for “fighting, drug use/possession, skipping, defiance, physical attack, theft, class disruption, [and] inappropriate behavior.” School records reflected that Appellant had been in a behavioral program in elementary and middle school. Just three weeks before the school riot, Appellant had been suspended from school for a week due to drug use. Appellant’s first-quarter report showed he got an A in both Critical Thinking and Biology, but also three Fs and one D.

Appellant’s disciplinary infractions prompted multiple calls to and meetings with his mother, and occasionally to his grandparents when his mother could not be reached. School records also reflected that Appellant’s mother failed to respond to several attempts to contact her regarding his behavior. She advised the school that counseling did not work for Appellant.

For this new incident of participating in a riot, the school principal suspended Appellant and recommended he be expelled from all county public schools for the remainder of the school year and the following school year.¹ The school superintendent agreed with the recommendation. The school notified Appellant and his mother that it would be conducting an expulsion hearing. Appellant’s mother obtained assistance from a student advocacy

group. It was not until after receiving that notice and assistance that she first requested the school district to evaluate Appellant for a special education program and intervention services including a psychological evaluation, a behavioral assessment, and a psycho-biological assessment. She asserted that the school district had neglected its duties by not evaluating Appellant for disability-specific intervention services and treatment. She alleged that the school district should have known it needed to evaluate Appellant for a disability because of his behavior and discipline history.

State schools that receive federal funds, including the Bay County School District, are subject to federal law on students with disabilities. Under the relevant federal regulations, “[a] public agency must be deemed to have knowledge that a child is a child with a disability if before the behavior that precipitated the disciplinary action occurred . . . [t]he parent of the child requested an evaluation of the child . . . .” 34 C.F.R. § 300.534(b)(2) (2021) (emphasis added). Although Appellant’s mother argues that she requested “a behavior analysis in 2018” and “an evaluation of Appellant” a month before the riot, there is no evidence that either of those alleged requests asserted disability or sought disability-related assistance from the school district.

Under the same code provision, an agency is deemed to have notice of the need for disability services if a teacher or other school personnel “expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the agency or to other supervisory personnel of the agency.” Id. § 300.534(b)(3). The record evidence fails to satisfy this alternative provision. Although numerous school personnel reported Appellant’s behavior problems, there is no record that any of them viewed the behavior as disability-related, or reported them as such to the school’s or district’s special education or other supervisory personnel.

Because of this lack of prior assertion of disability, the school district proceeded to a hearing under the rules governing proceedings in which a public agency does not have knowledge that a child has a disability before taking disciplinary measures. Id. § 300.534(d). This provision allows the agency (here, the school

district) to impose disciplinary measures authorized for children without disabilities. On the facts presented, we find that the district acted properly in denying Appellant’s request for a stay, and pursuing expulsion.

Under the governing regulatory framework, the child’s rights and the school district’s authority depend on whether the school district knew Appellant had a disability. It was Appellant’s burden to prove that either his parent or school personnel requested a disability evaluation before Appellant’s participation in the school riot—but there was no such evidence. Appellant’s mother claimed that she requested an evaluation for Appellant’s behavior on August 23, 2018. Notably, however, the school’s records of that communication discussed behavior only, not disability. Appellant’s mother did not present any evidence that she requested disability services. At the hearing, after having received the assistance of an advocacy group, she testified that she would have used words asking for something like an IEP (individualized education program), to address his behavior. Appellant’s mother’s representative argued at the hearing that bad behavior can be caused by certain disabilities. But, true as that may be, it begs the question of whether disability was asserted before the behavior that resulted in school discipline—and based on the record evidence, it was not. Further, no school personnel who documented Appellant’s misbehavior asserted a concern that his behavior was caused by a disability.

It may be tempting to conclude that the school district should have suspected that a disability might be causing such a bad behavioral record.² But such a “should have known” test does not exist, and would be contrary to the governing law. If Appellant’s mother could not prove she ever asked for a disability evaluation or an exceptional student education plan, and not a single trained educator or school counselor over the years expressed any concern

that a disability was causing Appellant’s behavior, the school board cannot be expected to leap to that conclusion on its own. As school district counsel explained at the hearing, “Bad behavior over the course of many years is not the basis for a disabled classification.”

AFFIRMED.

LEWIS and BILBREY, JJ., concur. _____________________________