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Discipline: Suspensions, Expulsions & IEPs
by Robert K. Crabtree, Esq.

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The Question
girl, looks sad, no smile
My daughter has a language impairment and has been on an IEP since last year. She has had a rough year and was just suspended from school for pushing another student into a locker. This is her second suspension this year for fighting.

I think she's getting into these fights because she has so much trouble understanding how to use words in tense social situations.

Does the school have to provide her any educational services while she is suspended? The Vice Principal told us he's considering expelling my daughter. Can the school system do that?

The Answer

Your 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).

The law states explicitly that a free appropriate public education ("FAPE") must be available to all children with disabilities, "including children with disabilities who have been suspended or expelled from school." (20 U.S.C. §1412(a)(1)(A)). Your daughter is certainly entitled under this law to continue to receive an appropriate education if she is suspended for any time beyond 10 days. See 34 CFR 300.530 in regard to "ten day" suspensions. Be sure to read the IDEA Regulations about discipline at 34 CFR 300.530-537.

Wrightslaw: Special Education Law, 2nd EditionDiscipline statute, 20 USC Section 1415(k)

Discipline regulations, 34 CFR Section 300.530 - 300.537

Wrightslaw: Special Education Law, 2nd Edition

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Alternative Educational Settings

There are certain behaviors for which a school system can change a student's placement to an "interim alternative educational setting" for up to 45 school days. This is so if the student carries a dangerous weapon to school or a school function, knowingly possesses, uses, sells or attempts to sell illegal drugs at school or at a school function, or has inflicted serious bodily injury upon another while at school or at a school function. (§1415(k)(1)(G))

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.

Long term Suspensions or Expulsions

Most importantly, a school system cannot impose a long-term suspension or expel a student with special educational needs if the behavior for which s/he is being disciplined was a "manifestation" of his or her disability. (§1415(k)(4)(B),(C)) IDEA provides that the IEP team must find that behavior was a manifestation of the child's disability if:

  • the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or
  • the conduct in question was the direct result of the local educational agency’s failure to implement the IEP.

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

In 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. (§ 1415(k)(1)(D))

What You Can Do

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.

Parents 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. (§ 1415(k)(4))

Unless the child is properly moved to a 45-day alternative placement, s/he is entitled to remain in the current educational placement. If s/he has been properly moved to an alternative placement, that is where s/he must remain until either the hearing officer orders a change or the assigned time period for the interim placement expires.

Student Rights

The rights I have discussed here apply to students who are already identified as having special educational needs.

Importantly, the law also applies to students who the school system knew or should have known have disabilities. IDEA treats a school system as "knowing" about a disability for these purposes if:

  • a parent expressed concern that his/her child needs special education (this must be in writing unless the parent is illiterate or unable to write because of a disability);
  • a parent requested an evaluation of his/her child; or
  • a teacher or other school employee has expressed concern about behavior or performance to other school staff. (§1415(k)(5)(B))

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.

Obviously, these provisions are very complex and the stakes are high.

Moreover, the inter-relationship between these federal requirements and a state's own laws and regulations concerning student discipline will raise many questions. (For example, if a state tries to use a broader definition of "dangerous weapon" than applies under the provisions allowing 45 day interim placements, it may be held that the state's requirements must give way to the federal. It has been held that a state can adopt greater protections for children with special education needs, but not lesser. See David D. v. Dartmouth School Committee, 775 F.2d 411 (1st Cir. 1985), cert. denied, 475 U.S. 1140 (1986).

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.

References

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 300.530-300.537 can be found at pages 264-268 of Wrightslaw: Special Education Law. 2nd Edition.

Caselaw: 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.

Editor's Note
: Mr. Crabtree wrote the original article soon after IDEA-97 was enacted. IDEA was re-authorized in 2004 and this article has been edited to reflect the current statute. The statute and regulations are difficult to read and understand. Many courts have taken different, sometimes opposite interpretations of a word or phrase in a particular statute or regulation. To understand this law in your state, get your state special education regulations and read the leading cases in your state and judicial circuit.


Meet Robert Crabtree

Bob Crabtree is a partner at Kotin, Crabtree, and Strong, LLP, a general practice law firm in Boston, MA. Among other areas of practice, Bob concentrates in special education and disability law.

This article was originally published by the Family Education site at www.familyeducation.com

Contact Info

Robert K. Crabtree
Kotin, Crabtree & Strong, LLP
One Bowdoin Square
Boston, MA 02114-2925
Phone: 617/227-7031
Facsimile: 617/367-2988
Email: rcrabtree@kcslegal.com
Website: www.kcslegal.com

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