If your child is facing disciplinary action at school, it is important to understand your child’s legal rights. This is particularly so with respect to students with disabilities. Students with disabilities have specific rights and protections that schools must follow before that school can expel them. There is a mandatory requirement to determine the influence of the disability on the conduct in question.
How long can the school discipline my child within the law?
If a child with a disability violates a school rule or the student code of conduct, the school can suspend/remove your child for no more than ten school days in a row without any further action. Additionally, short-term suspensions can also reach this threshold if they show a pattern. The school does not need to take action until these shorter suspensions exceed ten days. The school does not have to provide services during the first ten days of removal/expulsion. Once the disciplinary action goes beyond the tenth day, the law requires further action, including providing services in the IEP.
Determining if the behavior manifested from the disability?
If the school wants to suspend a child with a disability for more than ten days, they must first determine how the child’s disability affected the incident. This is known as a “manifestation determination.” The team must determine whether the behavior was a result of that child’s disability. If the team determines the child’s behavior was a result of their disability, a “change of placement” is not legally enforceable.
If the team determines that the behavior was unrelated to the student’s disability and the IEP was properly implemented then the student is subject to a change of placement and any other disciplinary measures that could be imposed on a non-disabled student, including expulsion through the regular education expulsion process. Under the IDEA, the school district must still provide special education services to an expelled student with disabilities.
To be considered a “manifestation” of the disability, the team must determine one of the following:
- The act was substantially related to the disability
- The behavior was caused by the disability
- The act was a direct result of the school not following your child’s IEP.
What is “change of placement”
If your child is receiving special education or related services under IDEA, your child’s placement is the educational setting that the IEP team determined is best for your child. Placement is not just a room but rather the program and services most appropriate for your child. For example, a student can be in the Autistic Support “program” yet spend half the day in the general education classroom and the other half in the Autistic Support classroom. Special education services can take place in a regular class with supplemental aids and services, a special class where all children in the class receive special education services for some or all of the day, a special school, or even in the home setting. Placement is always per the individual student and can often include different physical settings.
As previously mentioned, “change of placement” is not legally enforceable if the disability caused the misbehavior. Furthermore, a “change of placement” requires the removal of the student from their educational placement for more than ten days. But sometimes a “change of placement” can happen and go unnoticed. What if a student misbehaves and must sit in the hallway sporadically throughout the year as “punishment”. Perhaps the student routinely sits in the principal’s office half the day as a disciplinary measure. If this is a “pattern” then these days, or half days, can certainly add up to the 10-day threshold. For this very reason, parents should keep note of the disciplinary action and bring it to the school’s attention.
What happens at a manifestation determination review (MDR)?
A manifestation determination review (MDR), sometimes called a manifestation determination hearing, is simply the name of the meeting to determine whether the behavior leading to the disciplinary action was a manifestation of the child’s disability. This meeting must take place within 10 days of the incident. Contrary to how it sounds, there is no judge or mediator involved in this meeting. It is very similar to an IEP meeting and requires a meeting of the “relevant members” of the IEP team. A parent must legally receive the invite but does ot have to attend.
What if the behavior is a result of the disability?
If the behavior leading to the disciplinary action was in fact a manifestation of the child’s disability, the misbehavior is instead addressed as a special education matter. Under these circumstances, there will usually be adjustments to the IEP through the usual IEP process. This often includes conducting a Functional Behavior Assessment (FBA) and creating or modifying a Behavior Intervention Plan (BIP).
Parents should carefully monitor disciplinary action involving their children at school. It is important not to hesitate to request a meeting with the school to discuss their child’s current educational program. It is always better to address these issues before they get out of hand. Rather than multiple suspensions, consider making changes made to the behavior plans or may additional supports.
Finally, in addressing cases of suspensions for less than 10 days, students with disabilities retain the same procedural rights as their non-disabled peers. They can contest a school suspension using the regular education procedures. While a suspension less than 10 days is not a change in placement, the school district still has responsibilities. They must report the suspension immediately to the parents along with a statement containing the reason for the suspension and notice of the right to review that decision.
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