By Kevin Lungwitz
The Fifth Circuit Court of Appeals recently decided a special education case regarding “time out” that all Texas educators need to be aware of.
O.W. was a fifth grader in Spring Branch ISD. When O.W. engaged in inappropriate conduct, he was ultimately directed to a desk in the classroom for a 5-minute period (Take 5) or a 10-minute period (Take 10). During these periods, O.W. had the opportunity to pursue replacement behavior such as drawing. O.W. was placed in a Take 5 or Take 10 on 16 of his 40 days at the school.
Texas law allows time-outs in conjunction with other positive behavioral interventions, “but it must be included in the I.E.P. or B.I.P. “if it is utilized on a recurrent basis.”
The parties agreed that time-out was not included on the I.E.P. and that the Take-5s or Take-10s were used on a recurrent basis. But Spring Branch ISD argued that the Take disciplines were not actually time-outs because the desk was in O.W.’s classroom, not separated from other students, and because O.W. was given an opportunity to pursue preferred activities during the discipline.
The Court found it irrelevant that the time-out was in the same classroom or that the student could pursue preferred activities. The determining factor was O.W.’s separation from other students, even for a limited time period.
The Court concluded that the recurrent Take disciplines constituted time-outs, and thus violated O.W.’s I.E.P. by omission. The Court: “An IEP or BIP which does not authorize the recurrent use of time-outs effectively prohibits such use.”
The take-away: Ostensibly, any disciplinary technique that separates a student from other students even for a limited time could be construed as time-out, subject to I.D.E.A. and Texas regulatory restrictions.
This is a good time to think about these varied techniques on your campus (e.g. head down; chair turned around; placement in the book-nook, etc.) and ask: Is this a time-out?
Remember: It’s not what you call it, it’s what the effect is. If so, it needs to be in the I.E.P or B.I.P. if used on a recurrent basis.
Kevin Lungwitz is TEPSA’s Outside General Counsel.
 Spring Branch Indep. Sch. Dist. v. O.W., 2019 WL 4401142 (Sep. 16, 2019)
 19 Tex. Admin. Code Sec. 89.1053(g)
 Spring Branch Indep. Sch. Dist. v. O.W., 2019 WL 4401142 @ 13 (Sep. 16, 2019)
Note: Information from Legal Ease is believed to be correct upon publication, but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.