"The school sent my child with autism home for a weeklong cooling off period - can they do that?"
You will find the discipline statute in Section 1415(k) of the Individuals with Disabilities Education Act and the federal regulations about discipline in C.F.R. 300.530. (See Wrightslaw: Special Education Law, 2nd Edition, pages 118-123; pages 264-268)
You will also find helpful information in the Commentary that accompanies the regulations. If you have questions about behavior issues and discipline, please download, print and read the Commentary about Discipline .
Yes. To protect your child from being suspended or removed too often for violating school rules, you need to know the law and how the law protects your child. You need to read the discipline statute in IDEA 2004 and the federal special education regulations about discipline. You will find links to both at the beginning of this article.
If your child violates a school rule or student code of conduct, the school can suspend your child for no more than 10 school days in a row. Student codes of conduct are usually written policies adopted by school boards.
Question: But that is not what is happening in my child’s case. The school is suspends him for several days at a time, but they do not suspend him for 10 days in a row. Is there a limit on the number of days the school can suspend a child in a school year?
You know that the school cannot suspend your child for more than 10 days in a row for violating school rules or a student code of conduct. If the school wants to suspend your child for more than 10 days, they must determine if his behavior was caused by his disability. This is called “manifestation determination.” If the school determines that your child’s behavior was not a result (manifestation) of his disability, the school may use the same discipline procedures as with non-disabled children. We’ll discuss manifestation determinations later, in another article.
In addition, your child should receive a functional behavioral assessment. Sometimes, schools forget to do functional behavioral assessments so you may need to write letter requesting a functional behavior assessment or get a behavioral assessment on your own. We will discuss functional behavioral assessments later, in another article. Based on the findings of the functional behavioral assessment, the school is to provide behavioral intervention services and modifications designed to address his problem behaviors so they do not reoccur.
Question: My child has ADHD The school gave her several in-school suspensions because of her behavior. Do in-school suspensions count toward the 10 day limi?
Not necessarily. The U.S. Department of Education says that if your child takes part in the general curriculum, continues to make progress toward her IEP goals, and continues to participate with children who are not disabled to the same extent she does in her current placement, in-school suspensions do not count toward the 10-day rule. You can read about this in the Commentary about Discipline, beginning on page 46715.
Question: Several children wrote on the bathroom walls. The school suspended my child. The school required the other children to clean the walls but did not suspend them. My child has an IEP. The other children do not. How can the school suspend my child, but not suspend children without IEPs? This doesn’t seem fair.
Schools may be unfair when they discipline children. The school cannot give a child with a disability a more severe punishment than it gives to non-disabled children. The U.S. Department of Education says that schools may suspend children with IEPs “to the same extent that it would apply such a discipline measure to a child without a disability.” You can read this for yourself in the Commentary about Discipline, beginning on page 46715.
Discipline & IDEA 2004 Resources
Meet Pat Howey
Patricia Howey has supported families of children with disabilities since 1985. She has a specific learning disability and became involved in special education when her youngest child entered kindergarten. Pat has children, grandchildren, and great-grandchildren who have a variety of disabilities and she has used her experience to advocate for better special education services for several of them.
Pat began her advocacy career as a volunteer for the Task Force on Education for the Handicapped (now InSource), Indiana’s Parent Training and Information Center. In 1990, she opened her advocacy practice and served families throughout Indiana by representing them at IEP meetings, mediation, and due process hearings.
In 2017, Pat closed her advocacy practice and began working on a contract basis as a special education paralegal. Attorneys in Indiana, Texas, and California contracted with her to review documents, spot issues, draft due process complaints, prepare for hearings, and assist at hearings. In January 2019, she became an employee of the Connell Michael Kerr law firm, owned by Erin Connell, Catherine Michael, and Sonja Kerr. Her duties have now expanded to assisting with federal court cases.