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: (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— (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.) 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] 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; The parent of the child has requested an evaluation; 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.

Conduct an expedited evaluation. 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? Conduct an expedited evaluation. The student may continue in the suspension or expulsion (with or without services) for the duration of the expedited testing. If eligible, provide services to the student during the remainder of the disciplinary removal. 34 CFR 300.534(d)(2)