Discipline of Children with Special Needs by William B. Reichhardt, Esq.
Note: Bill Reichhardt presented this program about discipline of students under IDEA or Section 504 at the 2013 Institute of Special Education Advocacy.
Our starting point is children who have been identified as having a disability under IDEA or Section 504.
Students who have not yet been determined eligible under IDEA prior to the misconduct may invoke the procedural and due process protections if it is later determined that they were eligible at the time of the misconduct.
The school is deemed to have knowledge of a child’s disability if:
Short and Long term Suspensions
Ten Day Rule
Continuation of Services
This is an area of law that continues to cause confusion. Some schools believe they don’t need to provide any instruction while the child is suspended or expelled. Or schools believe that because he’s suspended, they can change placement.
School districts must continue to provide educational services for special education students who have been suspended for more than 10 days or have been expelled.
What is a Change of Placement?
A change of placement occurs when:
– child has been removed from more than 10 consecutive school days; or
– the child has been subjected to a series of removals that constitute a pattern -
In school suspension may not be considered a change of placement triggering due process if:
– The student is afforded opportunity to progress in the general curriculum
– the school continues to provide services under the IEP
– student continues to participate with nondisabled students to the same degree
Manifestation Determination Review (MDR)
Special Circumstances when a MDR is not Required
The student may be removed to an interim alternative educational setting for not more than 45 school days without a MDR if:
– The student is in possession of a weapon at school, on school premises or at a school activity.
– The student knowingly possesses, uses, sells or distributes illegal drugs while at school or school functions.
– The student has inflicted serious bodily injury on another person at school or on school premises.
Criteria for the MDR
The behavior for which the child is being disciplined was caused by, or had a direct and substantial relationship to, the child’s disability, and /or
The behavior was the direct result of the schools failure to implement the IEP.
If the Behavior is a Manifestation of the Child’s Disability:
If the Behavior is not a Manifestation of the Students Disability
If the behavior was not a manifestation of the students disability, the student is subject to the same discipline for misconduct as children without a disability – however, the student must continue to receive education services to allow the child to progress under the IEP.
Preparing for the MDR: Marshalling the Evidence
Basics of Defending the MDR
Preparing Expert Input for the MDR
MDR Tactics from the Trenches
1. If you need more time to gather existing relevant evidence, offer to do a written waiver of the 10 day rule.
2. If refused, offer the waiver in writing and cite the reason. This could help you on appeal.
3. If your experts are helpful, get releases for them to speak to the school about the MDR criteria, in addition to written submissions.
4. If you have a good defense, turn the MDR into a collaborative problem solving effort. Focus on “ direct substantial relationship.”
5. Prepare your response to the “intentional misconduct” argument by school personnel who “don’t believe in special ed.”
Behavior Intervention Plans
Should be written and should describe specific positive behavioral interventions.
Are used to help a student with behavioral problems function in the least restrictive environment.
Should be made part of the student’s IEP (but not required).
Expedited Due Process Hearing
Parent may request if:
School may request if child is dangerous in current setting.
Common Appeal Issues in Discipline Cases