Transcript Special Education Student Discipline

Special Education Student
Discipline
Darcy L. Kriha, Esq.
Franczek Radelet
Erin L. Han, Esq.
Legal Assistance Foundation
Special Education Suspensions –
Days 1-10
• A school district may suspend a special education student for 10
school days in any given school year if the student violates school
rules. During days 1 through 10, school districts are not required to
provide educational services, conduct a manifestation
determination (relatedness) review, or draft a behavior intervention
plan for the student.
– Schools should carefully consider the consequences of issuing a 10 day
suspension right at the beginning of the year for a special education
student.
– While a school may not be required to draft a BIP for these
suspensions, choosing to do so may help ward off future behavioral
issues if the behaviors seem related to the disability and/or likely to
continue or escalate.
• [34 CFR §300.530]
When is a student receiving special education
services entitled to additional legal protections?
• Whenever there is a “change of placement.”
– The general rule is that suspensions exceeding 10 total
aggregate days per school year could constitute a
“change of placement” and could subject the district
to legal action unless special education procedures are
followed.
• This is not always true, but the analysis is a complicated one
and this is a good time for a district to consult with its special
education attorney before proceeding with an expulsion that
exceeds the 10 days.
– Expulsions
34 C.F.R. §300.530
What are a school’s obligations when a
change of placement is anticipated?
• Conduct a “Manifestation Determination
Review” (MDR)
– Manifestation determination hearings may take
place with the parent and relevant members of
the IEP team, rather than the entire IEP team.
However, the determination as to which members
are “relevant” is to be made by both the parents
and the school district.
– Give the Parent a copy of the Procedural
Safeguards
What is the purpose of an MDR
• The MDR Team must determine—
– If the conduct in question was caused by, or had a
direct and substantial relationship to, the child’s
disability;
OR
– If the conduct in question was the direct result of
the school district’s failure to implement the IEP.
34 C.F.R. §300.530(e)
What happens if there is no
manifestation?
• Students with disabilities may be suspended
or expelled in the same manner as general
education students in instances where their
misconduct is not a manifestation of (i.e., not
related to) their disabilities, except that all
special education students who are expelled
must be provided with educational services
during the length of their expulsions. These
services should approximate a full day.
What happens if there is a
manifestation?
• Conduct a functional behavioral assessment (FBA) and
draft a behavior intervention plan (BIP), or, if an
FBA/BIP have already been conducted/drafted, review
the plan and modify if necessary. 34 CFR §
300.530(f)(i-ii)
– Characteristics of quality FBAs/BIPs
• Halt any expulsion proceedings relating to the incident.
• Return the child to the placement she was in prior to
the removal.
– Unless—
• A proper 45 day removal has occurred
• The school and parent agree to a change of placement as part of
the modification of the BIP/IEP.
Additional obligations in the case of a
suspension that constitutes a “change of
placement”
• Educational services must be provided during
the suspension as determined by school
personnel (e.g., homebound services). The
educational services “must enable the student
to appropriately progress in the general
curriculum and appropriately advance toward
achieving the goals set out in his/her IEP.”
• Related service minutes that are missed due
to the suspension must be made up.
EXCEPTION:
45-Day Interim Alternative Educational
Placements
• Even if there is a finding of a manifestation of disability,
school districts have the option of removing students
to an interim alternative educational setting for up to
45 school days for four acts of misconduct:
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(1) weapon offense,
(2) drug offense
(3) serious bodily injury or
(4) in those instances where the school district can prove
to a hearing officer that the student is substantially likely
to injure him/herself or others (dangerousness). The
district must request a hearing to show this 4th category,
but need not do so for 1-3.
45 Day Removal Definitions:
Weapon
“Weapon” is defined as: “a weapon, device,
instrument, material, or substance, animate or
inanimate, that is used for, or is readily capable
of, causing death or serious bodily injury, except
that such term does not include a pocket knife
with a blade of less than 2½ inches in length.” 18
U.S.C. 930.
45 Day Removal Definitions:
Illegal Drugs
“Illegal drug” is defined as a controlled
substance, but it does not include a substance
that is legally possessed or used under the
supervision of a licensed healthcare
professional. The definition of “controlled
substance” is contained in section 812 of Title
21 of the United States Code and includes over
130 various drugs. Keep in mind that alcohol is
not considered an illegal drug for purposes of a
45-day placement under IDEA.
45 Day Removal Definitions:
Serious Bodily Injury
• The term “serious bodily injury” is defined under federal law and means
bodily injury which involves—
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(A) a substantial risk of death;
(B) extreme physical pain;
(C) protracted and obvious disfigurement; or
(D) protracted loss or impairment of the function of a bodily member, organ,
or mental faculty; and
• This should be contrasted with the term “bodily injury” under federal law,
means— (The injuries listed below do not provide grounds for a 45 day
change of placement unless they also meet the more serious injury
definitions described above.)
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a cut, abrasion, bruise, burn, or disfigurement;
physical pain;
illness;
impairment of the function of a bodily member, organ, or mental faculty; or
any other injury to the body, no matter how temporary.
Final 45 Day Removal Grounds:
Substantially Likely to Injure Self or Others
A hearing officer may order a change in a student’s
placement to an appropriate interim alternative
setting for not more than 45 school days in
instances where the hearing officer determines that
the district has demonstrated by substantial
evidence (more than a preponderance of evidence,
i.e., more than 51%) that maintaining the current
placement of the student is substantially likely to
result in injury to the student or others. In this case
the district must proactively request a hearing.
34 CFR § 300.531
When do these rights apply for students who
are not yet qualified for special education?
• When the school had a “basis of knowledge” that the student was a child
with a disability before the incident in question. There is a “basis of
knowledge” in any of the 3 following situations: [34 CFR § 300.534]
1. The parent of a child has expressed concern in writing to supervisory
or administrative personnel of the appropriate educational agency or
a teacher of the child that the child is in need of special education;
2. The parent of the child has requested an evaluation;
3. The teacher of the child, or other personnel of the School District has
expressed specific concerns about a pattern of behavior
demonstrated by the child directly to the director of special
education or other supervisory personnel.
• Even if there is no strict “basis of knowledge,” in a particular case, districts
should keep in mind that their “Child Find” obligations to identify, locate,
and evaluate students in need of special education services are always in
effect. [34 CFR § 300.111; 23 Ill. Admin. Code 226.100]
What should a school do when there is
a “basis of knowledge”?
• Evaluate the student on an expedited basis. If
the evaluation takes longer than the 10 day
suspension, the student may be returned to
school, unless agreed otherwise.
What are a district’s obligations when a special education evaluation is
requested for a student who is out of school on suspension or expulsion and
where there was no basis of knowledge?
1. Conduct an expedited evaluation.
– The student may continue in the suspension or
expulsion (with or without services) for the
duration of the expedited testing.
2. If eligible, provide services to the student
during the remainder of the disciplinary
removal.
34 CFR 300.534(d)(2)