Discipline of Students with Disabilities: Essential Point #6

In the July-August 2009 issue of In Case (Council of Administrators in Special Education), Julie Weatherly (attorney with the Weatherly Law Firm) begins a series of articles addressing the discipline of students with disabilities. Here is the sixth essential point...

For purposes of discipline of a student with a disability, a 'change of placement' may also include short-term removals for more than 10 days cumulatively in a school year, depending upon the pattern of removals.
"In addition to defning a 'change of placement' to include disciplinary removals for more than 10 consecutive school days, the IDEA regulations define a 'change of placement' in terms of cumulative days of suspension as folows: For purposes of removals of a child with a disability from the child's current educational placement, a change of placement occurs if the child has been subjected to a series of removals that constitute a pattern because the series of removals total more than 10 school days in a school year; because the child's behavior is substantially similar to the child's behavior in previous incidents that resulted in the series of removals; and because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another. 34 C.F.R. Section 300.536(2).
Using the above standard, the IDEA provides that an administrator and the student's special education teacher, at a minimum, are required to determine whether a pattern of removals that cumulate to more than 10 days in a school year constitutes a 'change of placement.' So, based upon the somewhat confusing language of the IDEA regulations, how is that done and when is it clear that a pattern of short-term removals is or is not a 'change of placement?' Unfortunately, the '10-day cumulative' language is not clear with respect to exactly which removls for more than 10 school days in a school year are a 'change of placement' and which ones are not. For that reason, it has been common practice for school districts to treat any removal beyond 10 days in a school year as a 'change of placement' and follow the applicable procedures for such a 'change of placement' to ensure that a removal is appropriate and will not be legally challenged. In addition, suspensions for more than 10 days in a school year are considered significant by the U.S. Department of Education in its monitoring process and , for that reason, is significant to State Educational Agencies when they are monitoring suspension numbers maintained by Local Education Agencies. While the law does not prohibit disciplinary removal of student with disabilities for more than 10 days in a school yfear, school districts must proceed with caution to ensure that a 'change of placement' has not occured when it has subjected a student with a disability to short-term suspensions totaling more than 10 days in a school year."