The Question

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.

Discipline 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.