Suspensions, Expulsions & IEPs
daughter's rights are governed by the 2004 amendments to IDEA concerning
suspension or expulsion of children with special educational needs.
(These provisions are found mostly at 20
U.S.C. § 1415(k).
A school department can also try to convince a hearing officer in your state's special education due process system to order an interim alternative educational placement for up to 45 days by proving that maintaining the child in her current placement "is substantially likely to result in injury to the child or to others." (§ 1415(k)(3)(A))
In either case, any alternative educational placement for up to 45 days under these provisions must provide FAPE. Accordingly it must be designed to "enable the child to continue to participate in the general curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP." (§ 1415(k)(1)(D)
The placement must also include services to address the behavior for which the student is being suspended in the first place. (A home tutoring program would not normally satisfy these requirements, though if the only alternative is a program for students with severe emotional / behavioral disabilities, sometimes a parent is faced with either accepting an inappropriate home-bound instruction program or placement in a volatile setting with an inappropriate peer group. If it is feasible to use the expedited hearing process, described below, it may be best to accept home tutoring while contesting the matter.)
The behavior of which your daughter has been accused does not fall into the categories that would allow the school system to move her to an alternative 45-day setting since there was apparently no dangerous weapon or drugs involved. While the school could try to convince a hearing officer that she represents a danger to herself or others, it would be unlikely to succeed. It is easy to think of steps the school system could take to "minimize the risk of harm in the child's current placement." Ordinary security measures in the halls, a peer mediation program, the assignment of an aide, and/or modifications to your daughter's IEP are some of the options that might be considered.
term Suspensions or Expulsions
If either of these circumstances applies, the IEP team must correct the IEP or its implementation and, except for the 45-day provisions I described earlier, the school cannot legally suspend the student beyond ten days. If the team finds that the behavior is not a manifestation of the child's disability, the school can suspend longer than ten days as it can a student without a disability, but must still provide ongoing education under his/her IEP during the suspension.
Functional Behavioral Assessment & Behavioral Intervention Plan
addition to, or as part of, this review (and regardless whether the
behavior is found to be a manifestation of the child's disability),
the school system must conduct a "functional behavioral assessment"
and develop or modify a behavioral intervention plan as necessary
to address the behavior for which the student is being disciplined.
In your daughter's case, you will want to be sure that the IEP team evaluates the link between her language processing difficulties and her behavior in stressful circumstances with peers when she does not understand social cues or how to use words rather than physical aggression.
The school should also perform a behavioral assessment to see what strategies will help your daughter recognize and re-channel feelings of anger or frustration. She might benefit from a social skills group for students with similar language impairments. If so, that service should be added to her IEP.
are entitled to an expedited hearing if they appeal either a finding
that their child's behavior was not a manifestation of his/her disability
or a placement decision made under the suspension/ expulsion provisions.
rights I have discussed here apply to students who are already identified
as having special educational needs.
Also, even if the school system is not deemed to have "knowledge" of a disability, parents can request an evaluation when their child is being suspended or expelled, which must be expedited. (§ 1415(k)(5)(D) In that case, however, the child must remain in whatever placement is determined by the school pending the outcome of the evaluation.
these provisions are very complex and the stakes are high.
If your child is faced with long-term suspension or expulsion you should consult with an expert in special education law to be certain that her rights are protected and that the school system does not lose sight of your child's educational needs in its effort to enforce discipline.
Statute & Regulations: The complete text of the discipline statute, 20 USC Section 1415(k), can be found on pages 118-123 of Wrightslaw: Special Education Law, 2nd Edition; the complete text of the discipline regulations at 34 CFR Section 300.530-300.538 can be found at pages 264-268 of Wrightslaw: Special Education Law. 2nd Edition.
The complete text of the U. S. Supreme Court discipline case, Honig
v. Doe, can be found on pages 369-381 of Wrightslaw:
Special Education Law, 2nd Edition.