Transcript Americans with Disabilities Act

SPECIAL EDUCATION:
Discipline Basics
The Training Institute
on Disability Rights
Special Education: What You Need to Know
What about Discipline?
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Student with a disability may be removed for
no more than 10 school days for a disciplinary
violation (unless exception applies)
More than ten days = change of placement
(see following slides for details)
Exception: can automatically remove a
student with a disability for 45 school days if 1)
a weapon; 2) Drugs; 3) Serious bodily injury
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Special Education: What You Need to Know
45 SCHOOL Day Removal
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Weapon
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Drugs
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“dangerous weapon” 18 U.S.C. § 930(g)(2)
Controlled Substance 21 U.S.C. 812(c)§ 202(c)I, II,
III, IV, or V
Does not include legally possessed or used
substances
Serious Bodily Injury
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“serious bodily injury” 18 U.S.C. §1365(h)(3)
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Special Education: What You Need to Know
WEAPONS EXCEPTION
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The term “dangerous weapon” means 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 2 1/2
inches in length.
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Special Education: What You Need to Know
SERIOUS BODILY INJURY
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Serious Bodily Injury is defined as: (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.
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Special Education: What You Need to Know
What about Discipline?
Suspensions/Removal
- All students “removed” are to get services to prevent
recurrence of behavior resulting in removal – should
be added to IEP
Expulsions
– FAPE services must still be provided so student can
be able to “participate in general education curriculum”
and “progress towards meeting goals set out in IEP.”
Before an expulsion can take place, must hold
Manifestation Determination Review (MDR)
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Special Education: What You Need to Know
MANIFESTATION
DETERMINATION REVIEW
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MDR is a meeting that occurs within ten school days of
decision to change a student’s placement
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School’s actions are change of placement when student is
suspended for more than ten consecutive days or series of
days that “constitute a pattern” exceeding 10 days in a year.
Only “Relevant” Members of IEP Team attend to
determine if student’s behavior is a manifestation of
his/her disability
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Special Education: What You Need to Know
What does it mean for behavior to be
a manifestation of a disability?
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Behavior is a manifestation of a disability if:
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“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
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)
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Special Education: What You Need to Know
If behavior is manifestation of
disability, what must the school do?
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Functional Behavior Assessment (FBA) –
evaluation to show relationship between
behavior and what happens in student’s
environment
Behavior Intervention Plan (positive
interventions)
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Special Education: What You Need to Know
What if behavior is not a
manifestation of a disability?
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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
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Special Education: What You Need to Know
What is the goal at a MDR?
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GOAL: To show that behavior IS a
manifestation of student’s disability
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Special Education: What You Need to Know
How do I know if the FBA
and BIP are appropriate?
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A good BIP concretely defines problem
behavior:
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E.g. BIP should not state “Dan is aggressive often
during the school day.” It should state “Dan hits
other students during unstructured times of the day
(passing period, lunch, and recess) approximately
three times per day.”
Look at whatever occurred before negative
behavior began (I.e. triggers)
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Special Education: What You Need to Know
FBA and BIPs continued
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BIPs should discuss more appropriate replacement
behaviors
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I.e. instead of throwing a book when agitated in class,
encourage the student to ask for a hall pass to see the school
social worker
Change antecedents to behavior
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I.e. if cursing occurs every time a student with a learning
disability is assigned challenging math homework, consider
changing antecedent (assignment of challenging math
homework) by having student complete the work in resource
room or with peer tutor.
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Special Education: What You Need to Know
Appealing Disciplinary Removal
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File for due process
Hearing - Expedited
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20 school days from request
10 days for decision
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Special Education: What You Need to Know
What if school wants to expel a
student who has not yet been found
eligible for special ed?
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Students not yet found eligible for special ed may still
be protected by IDEA under certain circumstances:
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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
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Special Education: What You Need to Know
When are students not yet found
eligible for special ed not protected?
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Not protected if:
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Child previously evaluated and found ineligible
Or parent refused special ed or evaluation in past
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Special Education: What You Need to Know
Student Discipline Not Yet Eligible
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School did not have “knowledge”
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Same discipline as non-disabled kids
If school did have “knowledge,” then the
student is protected by IDEA.
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Special Education: What You Need to Know
HYPOTHETICAL 1
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Your client, who is diagnosed with a behavioral
disorder and is receiving special education services,
recently brought drugs to school. The school is holding
a MDR. The school finds that the student’s behavior is
not a manifestation of his disability and informs you
that your client cannot return to school ever and the
school will provide the student with no special
education services. Can the school do this? Why or
why not?
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Special Education: What You Need to Know
HYPOTHETICAL 2
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Jennifer is a fifteen-year-old student with bipolar
disorder who recently was caught by the school’s
security guard with gang drawings on her notebook.
The school is about to hold an MDR for Jennifer. What
should the parent argue at the meeting? If the school
finds that Jennifer’s behavior is not a manifestation of
her disability, can they expel her? If they expel her, do
they need to provide her with any special education
services at all? If Jennifer’s parents disagree with the
school’s decision that Jennifer’s behavior is not a
manifestation of her disability, what can her parents
do?
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Special Education: What You Need to Know
Expulsion Hearings: Illinois
School Code
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105 ILCS 5/10-22.6
Accessible at www.ilga.gov
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Special Education: What You Need to Know
Expulsion Hearings (in general)
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An expulsion is a removal of a student from
school for more than 10 days in a row
A student may be expelled for a definite period
of time from 11 days up to 2 years.
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Special Education: What You Need to Know
What happens before the
hearing?
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School must send written notice of the
behavior for which it believes your child should
be expelled. The notice must include the
reason that the school is considering expelling
your child and the date of the MDR.
School must send notice in writing and by
certified mail inviting student and parent to
attend expulsion hearing.
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Special Education: What You Need to Know
At the Expulsion Hearing
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Right to call witnesses
Present evidence
Cross-examine District’s witnesses
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Special Education: What You Need to Know
Who will be at the expulsion
hearing?
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Student and parent should go.
School District may have an attorney.
Often people who were involved in or
witnessed the incident are there.
A school administrator may be there.
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Special Education: What You Need to Know
Who decides whether a student
will be expelled?
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Depends on the School District. Sometimes
the Board of Education of the District makes
the decision. Other Districts have hearing
officers who make the decision.
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Special Education: What You Need to Know
Can expulsion hearings be
appealed?
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Yes. If a student is expelled, the student can
appeal this decision in state court.
The District may have an internal appeal policy
and, if so, the student must first exhaust
through the internal appeal policy prior to filing
in state court.
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Special Education: What You Need to Know
Expulsions from Chicago Public
Schools
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The Student Code of Conduct (SCC) outlines CPS
disciplinary policies
For a copy, contact the Law Department at (773) 5531700.
If CPS is going to expel a student, the District sends a
“Notice of Request For Disciplinary Hearing” letter.
Closer to date that hearing will take place, CPS then
sends a “Notice of Disciplinary Hearing.”
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Special Education: What You Need to Know
Who is present at CPS
expulsions?
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Hearing Officer appointed by the Board of
Education
CPS “Prosecutor”
Student and Parent
Any witnesses
Usually a school administrator
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Special Education: What You Need to Know
Any chance at settling an
expulsion hearing?
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Depending on the offense, CPS and student
may come to an agreement for student to
attend the SMART program.
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Special Education: What You Need to Know
Expulsion Case Law: Colquitt v.
Rich Township, 699 N.E.2d 1109
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Do not have a legal right to a court reporter at
expulsion hearings
Do have the right to cross-examine accusers
(with the potential exception that one may not
be able to cross-examine an accuser if that
would put the accuser in danger)
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Special Education: What You Need to Know
Expulsion Case Law: Robinson v.
Oak Park, 571 N.E.2d 931
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In reviewing the Board's action to determine
whether it has abused its discretion, the court
must consider (1) the egregiousness of the
student's conduct; (2) the history or record of
the student's past conduct; (3) the likelihood
that such conduct will affect the delivery of
educational services to other children; (4)
severity of the punishment; and (5) the interest
of the child.
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Special Education: What You Need to Know
Does 105 ILCS 5/10-22.6 of the Illinois
School Code apply to charter schools?
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No. Charter schools are exempt from the
expulsion section of the Illinois School Code.
Look to the charter school’s Student Code of
Conduct and ensure that the charter school is
following its own code.
Charter school does have to follow all relevant
case law (I.e. offer opportunity to crossexamine accusers, consider the Robinson
factors, etc.)
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Special Education: What You Need to Know
Questions????
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