Special Education and Discipline
Right to Due Process for All Children
When suspended or expelled, every child has certain due process rights based on the U.S. Supreme Courts’ decision in Goss v. Lopez (1974). This includes but is not limited to:
- oral or written notice of charges against him/her
- explanation of the evidence, if the student denies the charges
- opportunity for the student to present his/her side of the story
- a hearing scheduled promptly after the event
Right to a Manifestation Determination Review Hearing (MDR)
Before a student who is eligible for 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 related to the child’s disability. For example, if a child is eligible for Special Education because s/he has Attention Deficit Disorder, s/he cannot be expelled or long-term suspended for behavior that is caused by poor impulse control.
An Individual Education Planning Team (IEPT) must hold an MDR to discuss the following:
- Whether the violation of the school discipline code is related to the students disability, and
- Whether or not the school did everything possible to keep the behavior from happening.
Specifically, the team decides:
- Whether or not the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or,
- Whether or not the conduct in question was the direct result of the school’s failure to implement the IEP. 34 CFR §300.530(e). (Source: Michigan Protection and Advocacy Service)
- If the answer to either question is YES (there was a substantial relationship to disability) or (the incident was a result of failure to implement the IEP), the expulsion must be halted.
Questions to determine if the behavior “was caused by, or had a direct and substantial relationship to the child’s disability”:
- 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. (It has a substantial relationship to the child’s disability).
- 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 MDR, the student must “stay-put” in his/her school placement until the hearing is over, unless there are “special circumstances” (34 CFR §300.530).
Right to Stay-Put Protection
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. Under “special circumstances”, if a weapon, drug or serious bodily harm is involved, the school can move the child to a 45-day temporary placement (an “interim alternative educational setting” or IAES) 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, if the district secures a court injunction.
Concerns about Discipline
Considering Supports and Services 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 may result in a re-evaluation of the Individualized Educational Plan (IEP). Out-of-school suspensions that total 10 days may be considered a “significant change in placement,” meaning the student is not getting an education in the conditions described by the IEP. This reconvening process is intended to encourage the school to work out an IEP and/or a Behavior Plan to accommodate the student’s needs, so that s/he can succeed in school.
Services During 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 still provide a “free and appropriate education” (FAPE). FAPE is required for Special Education students, and should include instruction, as well as other support services listed in the IEP.
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 MDR 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. Sample Letter for a Stay-Put.
- Schools are required to conduct an evaluation if they suspect a child may require special education services. This is part of their “Child Find” obligation. If progress is not being made with an evaluation at the school level, a parent should request an Independent Educational Evaluation (IEE) . Request for Independent Educational Evaluation
- Depending on the nature of the child’s disability, or additional social and environmental factors, a parent may consider enrolling his/her child in an alternative educational placement. However, public alternative placements are limited and students must be accepted into their programs.