Manifestation Hearing
Before a student who has already been
certified in need of Special Education services can be expelled
or suspended long-term (more than 10 days), a meeting must
be held to determine if the punishable behavior is at all
related to the child's disability. For Example, if a child
is certified as Special Education because s/he has Attention
Deficit Disorder, s/he cannot be expelled/long-term suspended
for not sitting still in class.
An Individual Education Planning
Team (IEPT) must meet to discuss the following:
Is the current IEP and placement
appropriate? Were Special Education services, supplementary
aids, and behavioral intervention strategies provided consistent
with the student's IEP and placement?
If the answer to either is NO,
the expulsion must be halted.
Did the student's disability impair
his or her ability to understand the impact and consequences
of the behavior subject to disciplinary action/behavioral
intervention plan?
If the answer is YES, the expulsion
must be halted.
Did the student's disability impair
his or her ability to control the behavior subject to disciplinary
action?
If the answer is YES, the expulsion
must be halted.
During the course of the Manifestation
Review, the student must "stay-put" in his/her school
placement until the hearing is over. 20 U.S.C. 1415 (c)(2)(i)(ii)
Obtaining a Stay-Put
The Individuals with Disabilities
Education Act of 2004 (IDEA ‘04) lays out a stay-put
provision that temporarily protects Special Education students
from unjustified suspension or expulsion. The provision requires
that while a school or law enforcement agency is reviewing
the case or filing proceedings, a Special Education student
has the right to remain in his or her "then current educational
placement" unless the parent and school agree otherwise.
However, if a weapons, drugs or serious bodily harm is involved,
the school can move the child to a 45-day temporary placement
without parental consent. Obtaining a stay-put may seem difficult
at first (See Sample Letter for a Stay-Put). However the only
way a Special Education student can be kept out of school
is if the district secures a court injunction.
Re-evaluation Prior to Long-term
Suspension
Multiple suspensions of a Special
Education student that total 10 days (combined, or all at
once) over the academic year must result in a reevaluation
of Individualized Educational Plan. Out-of-school suspensions
that total 10 days is considered a “significant change
in placement,” meaning the student is not where the
IEP says s/he is supposed to be and therefore is not being
followed. This reconvening process is intended to encourage
the school to work out an IEP which will support the student,
so that s/he can succeed in school.
Implications of Long-term
Suspension or Expulsion
If the school board expels a Special
Education student, or gives him/her a long-term suspension,
the district must assure that there is not a complete cessation
of educational service. "Free and appropriate education"
is a must for Special Education students, and this is not
limited to minimal homebound services.
Strategies to protect Special
Education Students from Aggressive Disciplinary Actions
Look for a relationship between an
inadequate IEP or Behavior Intervention Plan (BIP) and the
child’s behavior. Could the behavior be a result of
not following the IEP or BIP, or are the services provided
inadequate to the child’s needs?
Make sure the manifestation process
is properly followed. Before an expulsion can take place,
the manifestation hearing must conclude that the child's disability
did not impair their ability to understand and control the
behavior.
If school had any knowledge of a
potential disability or problem before the disciplined behavior
occurred, the child can "stay-put" while testing
is done. School’s have a duty to pursue an Educational
Evaluation if they suspect a child may require special education
services. If progress is not being made with an evaluation
at the school level, a parent should request an Independent
Educational Evaluation (IEE) .
Sample
Letter for a Stay-Put
Request
for Independent Educational Evaluation
If little progress is being made
within the school, depending upon the extent of the child’s
disability, additional social and environmental factors, a
parent may consider alternative educational placements. However,
alternative placements are limited and students must be accepted
into the program.
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