Discipline & Special Needs Rights
Help! My child is under threat of expulsion.
Oftentimes, a family’s introduction to me comes when they place a panicked phone call to me that their child has been suspended for a period of time (typically 10 days) and that a possible expulsion is looming in the child’s near future.
Special needs children have a lot more rights when it comes to possible suspensions or expulsions than do regular education children.
If your child’s grades have been bad, he or she hasn’t passed some or all of ISTEP and is having trouble behaviorally or emotionally, it’s possible that your child has a disability that would trigger many more rights and protections in an expulsion situation.
In other words, if the school knew or should have known that your child had a disability, it had an affirmative duty to attempt to perform a psychoeducational evaluation of your child to ascertain if your child has special needs. If the school failed to do this but your child SHOULD have been found eligible for special education and related services but was not, your child is STILL entitled to all the legal protections of a student who had properly been evaluated and found eligible in regard to how the school handles the suspension/expulsion.
This liability can oftentimes be used to make the suspension/expulsion “go away” and become removed from the student’s record.
IMPORTANT: If your school has suspended your child and is threatening to expel him and you believe that your child might have undiagnosed disabilities, you can file for an Article 7 due process hearing before the expulsion hearing and most likely will be able to keep your child in school (unless your child brought weapons or drugs to school and that is the basis for the suspension/expulsion).
Below are some decisions in regard to suspensions/expulsions
Disciplinary change of placement
When a student is subjected to a disciplinary change of placement unilateral removal from the current placement for more than ten consecutive instructional days), the CCC is required to conduct a manifestation determination in accordance with 511 IAC 7-29-6 (d). With limited exception the disciplinary change of placement may not continue or otherwise occur if the CCC determines that the student’s behavior is caused by a manifestation of the student’s disability, deficiencies in the student’s IEP or its implementation, or an inappropriate placement. If the parent disagrees with the school’s position that the behavior is not a manifestation of the student’s disability, the parent may request an expedited due process hearing. The due process hearing is expedited because an immediate change of placement is at stake.
Suspensions same as short-term removals
Complaint No. 1778.01 -- Due to behavior, a six-year-old student was often sent home early during the first half of a school year. The school did not maintain records to indicate how often this occurred, nor did it consider that these actions constituted “suspensions” for Article 7 purposes. Under 511 IAC 7-29-1 (a), a suspension is defined as a” unilateral temporary removals of a student from the student’s current placement by the public agency.” Short-term removals pursuant to a student’s IEP are not considered suspensions. These removals were not pursuant to the IEP. As a result, each removal constituted a “suspension.”
Suspension for more than 10 school days must continue to receive FAPE
Interim alternative educational setting
Letter to Anonymous, 30 IDELR 604 (OSEP 1993). IDEA requires that a student with a disability who is suspended for more than ten (10) school days in a school year or expelled from school or placed in an interim alternative educational setting continue to receive a FAPE, even if the conduct is not a manifestation of the student’s disability or placement. In ensuring the provision of FAPE, IDEA emphasizes participation of the student in the general curriculum.
Letter to Anonymous 30 IDELR 604 (OSEP 1993). IDEA requires that a student with a disability who is suspended for more than ten (10) school days in a school year or expelled from school or placed in an interim alternative educational setting continue to receive FAPE, even if the conduct is not a manifestation of the student’s disability or placement. In ensuring the provision of FAPE, IDEA emphasizes participation of the student in the general curriculum.
Suspensions constitute change in placement if happen often enough
Complaint No. 1778.01. Due to behavior, a six-year-old student was often sent home early during the first half of a school year. The school did not maintain records to indicate how often this occurred, nor did it consider that these actions constituted “suspensions” for Article 7 purposes. Under 511 IAC 7-29-1(a), a suspension is defined as a “unilateral temporary removal of a student from the student’s current placement by the public agency.” Short-term removals pursuant to a student’s IEP are not considered suspensions. These removals were not pursuant to the IEP. As a result, each removal constituted a “suspension.”
Complaint No. 1719.01 State law does not grant a public agency “ten free days” to suspend a student before honoring a request by a parent to reconvene the CCC to assess whether a behavior is a manifestation of the student’s disability or placement. Following the sixth suspension, the parent requested the CCC convene. The director declined, stating that a CCC meeting is not necessary until the student has been suspended at least ten instructional days. The so-called “ten day” rule, however, establishes a requirement for when a CCC must convene. There is no limitation on the CCC convening to assess such causality/nexus/manifestation at any time.
Complaint No. 1692.01 Student was suspended from school on October 13th pending expulsion. The parent initiated an educational evaluation on November 10th. However, the school did not convene the CCC until 40 instructional days later (January 25th of the following year). This constituted a violation of Article 7, which requires evaluations under these circumstances to be expedited (CCC convened within 20 instructional days from receipt of parent’s written consent for evaluation of a student expelled from school).
Suspensions/expulsions in federal law:
Federal law says a student can "suffer multiple suspensions for separate offenses that accumulate to more than ten school days in a school year so long as no single suspension exceeds ten school days." However, for all days in excess of ten in a school year the student must receive FAPE although in an alternative setting which must provide services to the extent necessary to allow the child to progress appropriately in the general curriculum and in achieving his IEP goals. [34 C.F.R. Secs. 300.520(a)(ii) and 300.121(d)]
Comments to the federal regulations published by OSERS indicate that the alternative setting "need not provide *all* services set forth in the IEP, due to the short-term nature of the suspension." (up to 10 days). School personnel, in consultation with the student's special education teacher (not an IEP team) determine the setting. [34 C.F.R. 300.121(d)(3)(i)].
Federal regulations do provide an appeal from the determination of the alternative setting described above, however, since the placement would not exceed ten days, the placement would be terminated before any appeal could be concluded. The only effective relief would be compensatory education for needed services that were not provided during this brief time period (eg. if the students IEP sets forth counseling which is not provided in the alternative setting).
A *series* of suspensions that accumulate to more than ten days per school year *may* constitute a change of placement without an IEP. If they represent a pattern because of such factors as the length of each removal, the total amount of time the student is removed, and the proximity of the removals to one another, the series of suspensions would be in violation of 34 C.F.R. Sec. 300.519(b). If this is the case, the student must be returned to his pre-suspension school placement with full IEP services. While this does involve compliance issues that could be addressed by a compliance complaint, it would probably be better addressed through a due process hearing, which is better suited to resolving factual issues that may be involved. It also places the student back in school immediately pending resolution of the matter.
Interrogation of Juveniles
The circumstances surrounding the questioning of a student by adult authority figures must be very carefully and factually determined so as to decide if the student was "in custody" and the state statutes and cases on what constitutes "in custody."
In a 1995 Indiana case in which a 13-year-old student eligible for special education and related services got into an altercation. His special education teacher, based on his IEP, had him "write down" what happened and how he could have handled the matter better. This document was then turned over the police as his "confession" for purposes of a juvenile investigation and assault charges. The attorney moved to suppress the confession in juvenile court on the basis that the child was, under the circumstances, "in custody," and the juvenile court judge threw it out. The reason was that the child did NOT feel free to leave, the special education teacher had been instructed to have him write up the information by the school police liaison and thus was acting as an agent of the police.
Keep in mind that many state's juvenile codes have a provision requiring that a child have the ability to consult with a parent or guardian before being questioned by law enforcement. In Indiana, we have such a statute, and our juvenile code is patterned after a model juvenile code. The remedy is usually exclusion of the statement in delinquency proceedings. However, that rule doesn't always apply in the educational realm.
Mitigation in Discipline
Texas Mitigating Factors in Discipline Placements:
Beginning with the 2009-10 school year, districts are now required to consider mitigating factors in each decision concerning suspension, DAEP placement, expulsion, or JJAEP placement, regardless of whether the action is mandatory or discretionary. Previously, districts were granted discretion when indicating in the Student Code of Conduct whether self-defense, intent, a student’s disciplinary history, or a student’s disability would be considered as a factor in a decision to suspend, expel, or remove a student to DAEP.
Previously districts were granted discretion when indicating whether self-defense, intent, a student’s disciplinary history or a student’s disability would be considered as a factor in a decision to suspend, expel or remove a student to a DAEP.