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General Rule on Disciplining Special Education Students

by THOMAS S. NELSON, Special Education Attorney, San Diego, CA
Students Already Eligible for Special Education:

General Rule on Disciplining Special Education Students:

A change of placement is found in the following situations:

  • Where the student is suspended for more than 10 consecutive school days.
  • Where the student is suspended for more than 10 non-consecutive school days in a given year, where the suspensions constitute a pattern. 34 CFR §300.519.
  • Any effort to expel the student.
    Manifestation Hearing

    There are 2 questions that the IEP Team must consider during a manifestation determination meeting:

    1. (1) "Whether the conduct in question was caused by, or had a direct and substantial relationship to the student's disability, OR"
    2. (2) "Whether the conduct in question was the direct result of the local education agency's failure to implement the IEP." 20 USC § 1415(k)(1)(E)(i)

    Outcomes of a Manifestation Hearing

    · If the answers to questions 1 and 2 are "no," then the student can be disciplined like any other student.

    If the answer to either question 1 or 2 is "yes," then the IEP Team shall: (20 USC § 1415(k)(l)(F))

    • Conduct a functional behavioral assessment and implement a behavioral intervention plan for such child, provided that the local educational agency had not conducted such assessment prior to such determination before the behavior that resulted in a change in placement described in subparagraph (C) or (G);
    • in the situation where a behavioral intervention plan has been developed, review the behavioral intervention plan if the child already has such a behavioral intervention plan, and modify it, as necessary, to address the behavior; and
    • except as provided in subparagraph (G), return the child to the placement from which the child was removed, unless the parent and the local educational agency agree to a change of placement as part of the modification of the behavioral intervention plan.

      The exceptions described in (G) are as follows:

      • School personnel may remove a student to an interim alternative educational setting for not more than 45 school days (Note: no longer calendar days under the 2004 law) without regard to whether the behavior is determined to be a manifestation of the child's disability, in cases where a child:
      • Carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a State or local educational agency;
      • Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency; or
      • Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency.
    Appealing a Manifestation Hearing Determination:

    Expedited Hearing 20 USC §1415)(4)M)

    • The due process hearing should be expedited and shall occur 20 days from the date it is requested.
    • The decision should follow within 10 days of the hearing.

    Placement during the appeal:

    The student will stay in the interim alternative educational setting (IAES) pending the appeal decision or until the end of the 45 day period, whichever happens first. See 20 USC § 1415(k)(4)(A).

    Students not yet eligible for special education services, but where eligibility should be considered:

    • Generally, such children may assert the above protections only if it can be shown that the local educational agency had knowledge that the child was a child with a disability before the behavior leading to the disciplinary action occurred. 20 USC §1415 (k)(5)(A) Basis of Knowledge
    • 20 USC § 1415(k)(5)(B) holds that a basis of knowledge shall be found in the following situations:
    • "(i) the parent of the 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 and related services."
    • "(ii) the parent of the child has requested an evaluation of the child" for special education services.
    • "(iii) the teacher of the child, or other personnel of the local educational agency, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of such agency or to other supervisory personnel of the agency."
    • No basis of knowledge can be found where the parent refused services or evaluation of the child. 20 USC §1415(k)(5)(C) USC § 1415(k)(5)(D)(ii): "If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under this subsection, the evaluation shall be conducted in an expedited manner. If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency shall provide special education and related services in accordance with this part, except that, pending the results of the evaluation, the child shall remain in the educational placement determined by school authorities."

    Even if the child is ultimately expelled because no basis of knowledge is established, the child will still be entitled to FAPE in the alternative placement.

  • Thomas S. Nelson is a special education attorney in San Diego. He advocates for an appropriate education for children with special needs and for regular education students facing expulsion. See his site at: See her site at: www.specialedlaw.us or contact him by phone at:(858)-945-6621.



    Disclaimer: Internet Special Education Resources (ISER) provides this information in an effort to help parents find local special education professionals and resources. ISER does not recommend or endorse any particular special education referral source, special educational methodological bias, type of special education professional, or specific special education professional.

     

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