Protection for Students with Disabilities
The Individuals with Disabilities Education Act (IDEA) and related regulations provide eligible students with certain procedural rights and protections in the context of student discipline.
In general, special education students may be suspended from their programs, just as any other student can be, for up to ten (10) school days per year. However, when a special education student is excluded from their program for more than ten (10) school days in the school year, the student’s special education Team must develop a functional behavioral assessment plan. In many instances, the Team also may be required to determine whether the student’s behavior was a direct result of their disability (a “manifestation determination”).
If the Team determines the behavior was not a direct result of the student’s disability, the school may discipline the student according to the school’s code of conduct, except that the district must continue to provide the student with educational services during the period of the suspension or expulsion. However, if the Team determines that the behavior was a direct result of the disability, the student may not be excluded from the current educational placement (except in the case of weapons, drugs, or the possibility of serious bodily injury to the child or others) until the Team develops and the parent(s)/guardian(s) consent(s) to a new IEP.
In the event a student possesses, uses, sells or solicits a controlled substance or possesses a weapon or seriously injures an individual at school or at a school function, a school may place a student in an interim alternative education setting for up to forty-five (45) days. Hearing officers may also order the placement of a student in an appropriate interim setting for up to forty-five (45) days upon determination the current placement is substantially likely to result in injury to the student or others. When a parent (s)/guardian (s) disagrees with the decision on the “manifestation determination” or with a decision regarding placement, the parent(s)/guardian(s) have the right to request an expedited due process hearing from the Bureau of Special Education Appeals. Similar procedures apply to students who have been determined to have a disability under Section 504 of the Rehabilitation Act.
The IDEA protections summarized above also apply to a child who has not yet been found eligible for services under the statute if the district is “deemed to have knowledge” that the child was eligible for such services before the conduct that precipitated the disciplinary action occurred. The IDEA provides that a school district is “deemed to have knowledge” if: (1) the child’s parent/guardian had expressed concern in writing to district supervisory or administrative personnel or the child’s teacher that the child needs special education and related services; (2) the child’s parent/guardian had requested an evaluation of the child to determine eligibility for special education services; or (3) the teacher of the child or other school district personnel had expressed specific concerns about a pattern of behavior by the child directly to the district’s director of special education or to other supervisory personnel. However, a school district is not “deemed to have knowledge” if the district evaluated the student and determined that the child was not eligible for special education services or the child’s parent/guardian refused an evaluation of the child or IDEA services.
If the school district has no knowledge that a student is an eligible student under the IDEA before taking disciplinary measures against the student, the student may be disciplined just as any other student may be. If, however, a request is made for an evaluation to determine eligibility while the student is subject to disciplinary measures, the district must conduct the evaluation in an expedited manner. Pending the results of the evaluation, the student must remain in the educational placement determined by school authorities, which may include suspension or expulsion without services. If the student is determined eligible for an IEP as a result of the evaluation, the school district must provide the student with special education and related services in accordance with the IDEA in the least restrictive environment.
Additional information regarding the procedural protection for students with disabilities can be obtained from the Director of Student Services, who can be reached at the Administration Building at 508-548-0151, extension 143.