A disciplinary
change of placement occurs for a student with a disability if: (1) The removal
is for more than 10 consecutive school days; or (2) he student has been
subjected to a series of removals that constitute a pattern because the series
of removals total more than 10 school days in a school year; because the
student's behavior is substantially similar to the student's behavior in
previous incidents that resulted in the series of removals; and because of
additional factors, such as the length of each removal, the total amount of
time the student has been removed, and the proximity of the removals to one
another. 34 C.F.R. § 300.536.
Suspensions
And The Ten-Day Rule: If the
suspension is for 10 school days in a school year or less, FAPE is not
required. Suspension for more than 10
school days is considered a long term suspension and a disciplinary change of
placement. The IDEA protects students
with disabilities in disciplinary proceedings that may result in long term
suspension or expulsion as those are changes of placement.. Suspensions over 10 days in a school year
requires a Manifestation Determination Review (MDR).
State law defers
to federal law. States often have a law
that says something along the lines of “the suspension or expulsion of children
with disabilities, as defined in [State statute section], shall be in accordance
with the [IDEA] and federal regulations issued pursuant to the [IDEA].”
A disciplinary “change
of placement” occurs for a student with a disability if: (1) The removal is for
more than 10 consecutive school days; or (2) the student has been subjected to
a series of removals that constitute a pattern because the series of removals
total more than 10 school days in a school year; because the student's behavior
is substantially similar to the student's behavior in previous incidents that
resulted in the series of removals; and because of additional factors, such as
the length of each removal, the total amount of time the student has been
removed, and the proximity of the removals to one another. 34 C.F.R. § 300.536.
The public
agency determines on a case-by-case basis whether a pattern of removals
constitutes a change of placement. 34
C.F.R. § 300.536(b)(1). The public
agency’s determination of whether a pattern of removals constitutes a change of
placement is subject to review through due process and judicial
proceedings. 34 C.F.R. § 300.536(b)(2).
Note that change
of placement due to disciplinary removals is an exception to the general rule
that parents must be within the group that makes any placement decisions. 34
C.F.R. § 300.327 (“Consistent with §300.501[c], each public agency must ensure
that the parents of each child with a disability are members of any group that
makes decisions on the educational placement of their child.” C.F.R. § 300.501[c], in turn, “Parent
involvement in placement decisions,” states that “Each public agency must
ensure that a parent of each child with a disability is a member of any group
that makes decisions on the educational placement of the parent's child.”)
Change of
placement due to disciplinary removals is also an exception from the mandate
that the least restrictive environment must be considered for placement
decisions. 34 C.F.R. §§ 300.114 -120.
However, parents
must be notified of a change in placement for disciplinary removals. 34 C.F.R.
§ 300.530(h) (“Notification. On the date on which the decision is made to make
a removal that constitutes a change of placement of a child with a disability because
of a violation of a code of student conduct, the public agency must notify the
parents of that decision, and provide the parents the procedural safeguards
notice described in §300.504.”).
"Stay
Put" Placement During Pendency Of Due Process: The IDEA provides that that during the
pendency of judicial review of a due process decision, unless the State or
local educational agency and the parents otherwise agree, “the child shall
remain in the then-current educational placement of such child…until such
proceedings have been completed.” 20 U.S.C. § 8 1415(j). Section 1415(j),
commonly referred to as the “stay put” provision, requires the educational
agency to maintain a disabled child's educational program until any placement
dispute between the 10 agency and the child's parents is resolved. Sch.
Committee of the Town of Burlington v. Mass. Dep’t of Educ., 471 U.S. 359, 359,
105 S.Ct. 1996, 1997 (1985). Stay put “functions as an ‘automatic’ preliminary
injunction. The automatic stay-put exists because of “Congress’s sense that
there is a heightened risk of irreparable harm inherent in the premature
removal of a disabled child to a potentially inappropriate educational
setting.” Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 1040
(9th Cir. 2009).
Continuation
Of Educational Services During Removal:
The U.S. Department of Education has noted that "while children
with disabilities removed for more than 10 school days in a school year for
disciplinary reasons must continue to receive FAPE, we believe the [IDEA]
modifies the concept of FAPE in these circumstances to encompass those services
necessary to enable the child to continue to participate in the general
curriculum, and to progress toward meeting the goals set out in the child's
IEP. A public agency is not required to provide children suspended for more
than 10 school days in a school year for disciplinary reasons, exactly the same
services in exactly the same settings as they were receiving prior to the
imposition of discipline. However, the special education and related services
the child does receive must enable the child to continue to participate in the
general curriculum, and to progress toward meeting the goals set out in the
child's IEP." See 71 Fed. Reg.
46,716 (2006).
Simply stated, a
suspension, expulsion, or 45 day placement, should not result in a child with a
disability falling further behind. The
setting for each student with a disability will depend on their individual needs
and the various services available by the District/charter school to meet those
needs.
Thus, a student
who has an IEP (or a student with a 504 that falls under the EXCEPTION below)
must receive educational services during his or her long term suspension or
expulsion; the services must enable the student to continue to
participate in the general education curriculum and progress toward meeting his
or her goals as set forth in the student’s IEP.
Thus, technically, a student who has an IEP cannot be expelled; he/she
can only be long-term suspended. Additionally,
the student must receive a FBA and behavioral intervention services and
modifications designed to address the student’s behavior so it will not
recur. The IEP team is responsible for
determining the appropriate services and the location where the services will
be provided.
Students with
only a 504 plan are not entitled to a FAPE during a long term suspension or
expulsion. EXCEPTION – If state law has a provision for providing services to
non-disabled students who are long term suspended or expelled then the school
would still be obligated for provide services to disabled students.
Interim
Alternative Educational Settings (IAES):
In certain cases, the student may be placed in an “interim
alternative setting” [IAS] (also called an “interim alternative educational
setting,” [IAES] or “interim alternative placement”) for no more than 45 school
days without a manifestation determination review IF the student carried or
possessed a weapon at school, knowingly possessed or used illegal drugs, sold
or solicited controlled substances or inflicted serious bodily injury on
someone else while at school or on school premises or at a school function. 34 C.F.R. §300.530 (f) and (g).
The IEP Team determines the
IAES. 34 C.F.R. §300.531. If parents disagree with the IAES that the
IEP Team determines or a hearing officer selects, they can appeal by filing a due
process complaint. 34 C.F.R.
§300.532. During the appeal process, the
student will remain in the IAES until there is a final decision or until the
expiration of the placement, whichever happens first; unless the public agency
and parents agree otherwise. 34 C.F.R. §300.533.
In closing: Before discipline measures are imposed,
school personnel should consider: the
individual student and his/her disability(ies),
the student’s IEP provisions and any behavior assessments they have, the
behavior and severity of the misconduct, how many days of suspension the
student has had that school year, and what discipline measures would be used
for a nondisabled student who misbehaved in the same manner.
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