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Discipline Disputes

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The following is from the Education Law Center of Pennsylvania.
SCHOOL DISCIPLINE AND STUDENTS WITH DISABILITIES 

HOW CAN DISCIPLINE PROBLEMS BE AVOIDED?

Continued behavior problems often indicate that a child’s program is not appropriate. If parents suspect that behavior problems are preventing their child from succeeding at school, they should write to the principal and request an IEP Team Meeting or “Pre-Hearing Conference.” The Pre-Hearing Conference must be held within 10 calendar days of the school district’s receipt of the parents’ written request.

At the meeting, the family should discuss the problems the child has been having and the changes to the program that might help. These could involve changes to the instructional program or roster; changes to the methods used to avoid – or handle – a crisis; and adding related services, such as counseling. The IEP Team must consider whether the IEP should include strategies and supports to help a student who has a behavior problem that interferes with his or her learning or the learning of others. Make sure that the child’s IEP contains a section that addresses the child’s behavioral needs and is based on positive measures designed to help, not punish, the student. The family can request that the school re-evaluate the child’s behavioral needs to help in developing an appropriate program.

CAN SPECIAL EDUCATION STUDENTS BE SUSPENDED OR EXPELLED FROM SCHOOL?

There are special rules that apply to students who are receiving special education services. These rules are intended to make certain that students with behavioral disabilities are not punished for conduct they cannot control; that such students get the services they need to learn to behave properly; and that all students are protected. Many of these rules are very complex.  Here are the highlights.

FOR STUDENTS WITH DISABILITIES OTHER THAN RETARDATION: Suspensions can take place, but cannot be for longer than 10 school days in a row, or 15 school days in the school year. If school officials want to suspend the student beyond these limits, the proposed exclusion is considered a “change in placement.”9 Before such a change can occur, school officials must send the family written notice (called a Notice of Recommended Educational Placement), and, if the family disagrees with the proposed exclusion, the exclusion cannot take place at that point (except as noted below under “exceptions”).

Not more than 10 business days after the District has “changed the placement” of a student for disciplinary reasons, an IEP Team must convene to determine what assessments are necessary and to develop a behavioral intervention plan; or, if the child already has a behavioral intervention plan, to review that plan. Within 10 school days, the IEP Team (which includes the parents) must conduct a review to determine if the student’s misconduct was related to the student’s disability.

In making the determination as to whether the child’s behavior was “a manifestation” of the disability, the IEP Team must consider evaluation and diagnostic results, and other information from the family; observations of the child; and the child’s IEP and placement, including whether he or she received all required services. The Team must further consider whether the child’s disability hurt the child’s ability to understand the impact of, or to control, his or her actions. If the Team decides that the student did not receive all required services, or that the child’s disability affected his or her ability to understand or control the misbehavior, the Team must find that the misbehavior was a “manifestation” of the disability.

If the Team decides that the misbehavior was not a manifestation of the disability, it can recommend that the student be subject to exclusion from school, including expulsion, on the same basis as students who are not disabled. However, if the parents challenge this decision through the procedural safeguard system, the district cannot implement its suspension or expulsion unless the hearing officer and appeals panel (and possibly a court) ultimately agree with the district’s position. If the IEP Team decides that there are problems with the program, or that the behavior at issue is a manifestation of the student’s disability, discipline cannot be imposed. In addition, if, in the course of the review the IEP Team identifies deficiencies in the child’s IEP, the implementation of the IEP or the child’s placement, the Team must immediately take steps to fix the problems.

Regardless of whether the Team concludes that the misbehavior was a manifestation of the student’s disability, if a district excludes a student for disciplinary reasons, it still must provide the student with education services to the extent necessary for the child to progress appropriately in the general curriculum, and to advance in the IEP goals. State law provides that any student who is suspended has the right to make up the school work he or she misses.

FOR STUDENTS WITH MENTAL RETARDATION, any proposed exclusion from school is considered a “change in placement.” Before a suspension can occur, school officials must send the family a Notice of Recommended Educational Placement proposing the change. The district must then follow all of the procedures that apply to students with other disabilities. If the family disapproves the proposed exclusion, the child cannot be suspended at that point except as described below under “exceptions.”

ARE THERE EXCEPTIONS TO THESE RULES?

Yes. If a student with a disability has a gun or other dangerous weapon or uses or possesses illegal drugs while at school or a school function, or if a hearing officer determines that the student is substantially likely to injure himself or other students, the law allows school officials to place the child in an “interim alternative education setting” for up to 45 calendar days without the permission of the parents. At the end of the 45 days, the student must be returned to the previous educational placement. The alternate education setting must allow the student to continue to progress in the general curriculum and to receive the services listed on his or her IEP.

If school officials decide that the student should not return to the previous educational placement after the 45 days is over, and offer the family another alternative, the family can oppose the new program through the procedural safeguard system. In most circumstances, while the hearing and appeal process is completed, the student would have the right to return to the previous school. However, if school officials believe that returning the student to the previous placement would pose an immediate threat or danger to the student or others, the school can ask a hearing officer to keep the child in the same or another alternate setting for up to another 45 calendar days. School officials will have to show that they have tried a number of interventions to help the situation, including the use of supplemental aids and services. School officials can keep asking the hearing officer for 45 day extensions while the appeal is pending, but they must persuade a hearing officer, with each request, that the student is dangerous. As in the past, officials can also seek permission from a court to exclude the child until a special education hearing can be held.

WHAT ABOUT ‘IN-SCHOOL’ SUSPENSIONS AND SUSPENSIONS FROM THE SCHOOL BUS?

The same rules apply to in-school suspensions, if the suspension removes the student from his or her special education program or placement. If transportation is listed on the student’s IEP, a proposed suspension from the school bus is subject to the same rules as a proposed out-of-school suspension.

DO EXPELLED STUDENTS LOSE THEIR RIGHT TO AN APPROPRIATE EDUCATION?

No. Federal law provides that a free, appropriate public education must be available to all children with disabilities, including children with disabilities who have been suspended for more than 10 days or expelled from school.

DOES A STUDENT HAVE ANY SPECIAL RIGHTS WHEN THE DISTRICT KNEW THAT THE CHILD MIGHT HAVE A DISABILITY BEFORE THE MISCONDUCT, AND DIDN’T DO ANYTHING ABOUT IT?

The law extends the same protections to a student when the district “had knowledge,” before the student’s misconduct, that the child had a disability – even if the student had not yet been formally “identified.” A district is considered to have such “knowledge” if: the parents have expressed a concern in writing (or orally if the parent can’t write) to school staff that the child needs special education; the child’s behavior or performance has shown that services were needed; the parent has requested an evaluation; or the teacher or other school personnel has referred the student for special education. A student is not entitled to the special education protection when the district has already conducted an evaluation and determined that the child is not disabled or has concluded that no evaluation is necessary – although, in that situation, the district must provide the parents with notice.

WHAT ABOUT OTHER TYPES OF DISCIPLINE?

The law states that certain disciplinary action can never be used with students who have a disability. Schools are prohibited from using any of the following forms of discipline:

corporal punishment; punishing a student for behavior that is an outgrowth of the student’s disability; using “noxious” substances, such as pepper sauce; withholding meals, fresh air (recess) or water; serial suspensions; electric shock; locking or keeping the student in a room, space or box from which he or she cannot easily leave; ‚ any treatment that is demeaning.

WHAT IF THE PARENTS CANNOT REACH AGREEMENT WITH SCHOOL OFFICIALS?

If the family and school officials cannot agree on any of the issues discussed in this section, for example, what should be in the child’s behavior program; whether the misconduct was a “manifestation” of the child’s disability; whether the district had “knowledge” that the child had a disability before the misconduct; or whether there is a safety issue that justifies putting the child in an alternative setting over the family’s objection, the parents can use the Special Education Procedural Safeguard System described in Chapter 6.

See Education Law Center

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