Quick Summary   Student with a disability may be removed for no more than 10 consecutive school days for a disciplinary violation (unless exception applies). – More than 10 consecutive school days = change of placement Exception: may be suspended to an interim alternative education setting for not more than 45 school days for incidents involving drugs, weapons, or serious bodily injury.

1

Short Term Suspension: Not More Than 10 Consecutive School Days  Student may be removed:  To an alternative educational setting  To another setting  By suspension 34 C.F.R. § 300.530(a )

2

When is Removal a Change in Placement? Removal constitutes a “change in placement” if a student with a disability is: (1) removed from the student’s current placement for more than 10

consecutive

school days;

or

(2) subjected to a series of removals that constitutes a “pattern of removals” that accumulates to more than 10 school days in a school year. 34 C.F.R. § 300.536(a)

3

Manifestation Determinations  Required prior to a change of placement of a student with a disability.

 Parents must be notified in writing.

 The IEP team must conduct a “manifestation determination” review within 10 school days of the date school personnel removed the student from school. Team must discuss whether student’s behavior is manifestation of student’s disability.

34 C.F.R. § 300.530(e) & (h)

4

What does it mean for behavior to be a manifestation of a disability?

  Behavior is a manifestation of a disability if: – – “caused by” the disability or “direct or substantial relationship to the disability” or – “direct result” of the school’s failure to implement the student’s IEP (34 C.F.R. § 300.530(e)) If student’s behavior is manifestation of disability, student can’t be expelled without parent consent and must be returned to pre-removal placement (unless drugs, weapons, or serious bodily injury) (300.530(f))

5

If behavior is a manifestation of the student’s disability, what must a school do?

 Functional Behavior Assessment (FBA) in student’s environment – evaluation to show relationship between behavior and what happens  Behavior Intervention Plan (positive interventions) 34 C.F.R. § 300.530(f)

6

What if the behavior is not a manifestation of the student’s disability?

 If behavior is not a manifestation of a disability, school can use same discipline measures as with other students.

 BUT school must continue providing FAPE – “continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP” (34 C.F.R. § 300.530(d)(4)).

7

What if school wants to expel a student who has not yet been found eligible for special ed?

 Students not yet found eligible for special ed may still be protected by IDEA under certain circumstances: – – – Parent stated in writing to a supervisor, administrator or a teacher that child may need special ed Parent requested evaluation Teacher/staff expressed specific concerns abut child’s pattern of behavior directly to director of special ed or other supervisory person 20 U.S.C. 1415(k)(5)(B)(iii)

8

When are students not yet found eligible for special ed not protected?

 Not protected if: – Child previously evaluated and found ineligible – Or parent refused special ed or evaluation in past 20 U.S.C. 1415(k)(5)(C)

9

Student Discipline Not Yet Eligible

 School did not have “knowledge”  – Same discipline as non-disabled kids If school did have “knowledge,” then the student is protected by IDEA.

10

Do charter schools in Illinois have to follow IDEA?

 Yes. Charter schools must follow all aspects of IDEA, including the discipline portions of the law.

11

Common Problems and Potential Solutions

12

Illegal Send Homes

 Parents often get called from the school to “come pick up” their child due to a behavior incident. Question: Is this a suspension? Answer: YES

13

Why does it matter?

     Removals from school must be documented so that rights are triggered. Once the student reaches 10 days of removal, s/he is typically entitled to services on the 11 th day. Series of removals may indicate a pattern of removal. Documented removals provide evidence as to whether a program or behavior plan is or is not working. IDEA requires written notice of a removals over 10 days. (34 C.F.R. 300.530(h)).

14

Possible Solutions

 Parent should tell school that she will not pick child up unless child is suspended.

 Parent should request suspension paperwork.

15

Overuse of In-School Suspensions  In-school suspensions (ISS) count towards the ten days, unless the student is receiving his/her special education services while participating in ISS.

16

A Few Case Examples  See handout for more cases 

Randy M. v. Texas City Independent School District,

93 F.Supp. 2d 1310 (S.D. Texas 2000) 

Chicago (IL) Pub. Schs

., 45 IDELR 227 (OCR 2005)

17

Possible Solutions  Parents should request detailed information on what the child is doing during the ISS  Parents can request MDR

18

Overuse of Serious Bodily Injury Exception  School can remove a student immediately for 45 school days if a student inflicts serious bodily injury (34 C.F.R. §300.530(g)(3))  18 U.S.C. §1365(h)(3) (a) a substantial risk of death; (b) extreme physical pain; (c) protracted and obvious disfigurement; and (d) protracted loss or impairment of the function of a bodily member, organ, or mental function.

19

A Few Case Examples  See handout for more cases 

Pocono Mountain Sch. Dis

., 109 LRP 26432 (SEA PA 2008) 

In re: Student with a Disability

, 108 LRP 45824 (SEA WV 2008).

20

Possible Solutions  Ask parent and student detailed questions about what happened to the “victim” or injured party  Negotiation to stop the 45 day placement  File for due process

21

Questions???? 22