Suspension of Students without Disabilities

According to IDEA 2004, within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the local educational agency (LEA), the parent, and relevant members of the IEP Team (as determined by the parent and the LEA) shall review all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents to determine: (i)  If the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or (ii)  if the conduct in question was the direct result of the LEA's failure to implement the IEP.  If the LEA, the parent, and relevant members of the IEP Team determine that the conduct in question was not a manifestation of the child's disability or due to the LEA's failure to implement the IEP, discipline procedures applicable to all students in the LEA may be applied. 

According to South Carolina statute 59-63-220, "Any district board may confer upon any administrator the authority to suspend a pupil from a teacher's class or from the school not in excess of ten days for any one offense and for not more than thirty days in any one school year but no such administrator may suspend a pupil from school during the last ten days of a year if the suspension will make the pupil ineligible to receive credit for the school year without the approval of the school board unless the presence of the pupil constitutes an actual threat to a class or a school or a hearing is granted within twenty four hours of the suspension."

Under What Circumstances Must An IEP Team use FBAs and BIPs?

My daughter took this picture of a friend's gazebo in Cairo.

Pursuant to 34 CFR section 300.530(f), FBAs and BIPs are required when the LEA, the parent, and the relevant members of the child's IEP team determine that a student's conduct was a manifestation of his or her disability under 34 CFR section 300.530(e). If a child's misconduct has been found to have a direct and substantial relationship to his or her disability, the IEP team will need to conduct a FBA of the child, unless one has already been conducted. Similarly, the IEP team must write a BIP for this child, unless one already exists. If a BIP already exists, then the IEP team will need to review the plan and modify it, as necessary, to address the behavior.

For a child with a disability whose behavior impedes his or her learning or the learning of others, and for whom the IEP team has decided that a BIP is appropriate, or for a child with a disability whose violation of the code of student conduct is a manifestation of the child's disability, the IEP team must include a BIP in the child's IEP to address the behavioral needs of the child.

Yes...my daughter is still in Cairo. She took this picture of a father and son riding on a burro. I believe she still prefers a cab.

In Johnston County (NC) Schools , 56 IDELR 305 (OCRXI, D.C. (NC) 2011), the Office for Civil Rights (OCR) determined that a school district violated Section 504 of the Rehabilitation Act of 1973 when it conducted a manifestation determination review (MDR) after a student with ED and ADHD completed his suspensions. OCR explained that under Section 504 a reevaluation, including a MDR in the case of a disciplinary exclusion, must occur prior to a signficant change of placement. On February 5, 2010, the school district imposed a 10-day suspension to take effect the same day. However, the district had suspended the student two times earlier in the year. When MDR concluded that the student's conduct was a manifestion of the student's disability the parent claimed the school district violated Section 504 by imposing suspension prior to the MDR. In the case of a series of short-term suspensions, the MD review must occur prior to the last in a series of suspensions that cumulatively amount to more than 10 days.

Parent of a Student with Asperger Syndrome and ADD Revocates Consent for IDEA Services

In Jefferson County Board of Education, 110 LRP 2743 (SEA AL 9/29/09), an Independent Hearing Officer (IHO) ruled a local education agency did not violate IDEA when a parent asked the district to find her child eligible for special eduation services a second time around. The parent withdrew her child from school after several disciplinary infractions then reenrolled her child 6 months later and signed a document revoking consent for special education services. Following an incident involving a smoke bomb, a hearing officer ordered the student to attend boot camp for 30 days. The parent then sought placement back into the special education program due to health concerns of her child. When the district correctly treated the referral as an initial evaluation for IDEA services and scheduled a meeting, the parent initiated due process alleging a denial of FAPE as services were not reinitiated automatically. The IHO wrote, "While it appears that the [IDEA amendments on revocation] do not clarify such an issue,... it appears cross-purpose to anticipate that the parent can turn on and off the services like a water faucet."

Pre-planning is a Key Consideration in Manifestation Determination Reviews

In re: Student with a Disability, 53 IDELR 205 (SEA VA 2009), a due process case, an independent hearing officer concurred with a Virginia district that a student's disruptive behavior was planned and willful; therefore, it was not a result of his ADHD. Based on the student's explaination that he was trying to get attention, in addition to the comments of the teacher who confronted him after the incident, the manifestation determination review team correctly concluded that the student's behavior did not reflect the impulsivity commonly characterized by his disability.

Planning Undermines Impulse Control Argument

A state due process hearing (San Diego Unified School District, 109 LRP 54649 [SEA CA 08/12/08]) resulted in a decision that a California school district was justified in disciplining a student with a Specific Learning Disability and ADHD just as if he was a student without a disability. During a manifestation determination review, the IEP correctly concluded that the student's drug distribution did not have a direct and substantial relationship to the student's disability. Investigation into the incident revealed that his actions were not conducted on the spur of the moment but involved planning. Administrators are advised to conduct thorough investigations of behavior incidents so they can bring the information to manifestation determination hearings for the purpose of guiding decisions.

Middle School Student's Misconduct Determined Unrelated to ADD

In Hollingsworth v. Hackler, 53 IDELR 298 (Texas Court of Appeals 2009), the court reversed the denial of appellants' (principal and assistant principal) motions for summary judgment and rendered judgment that the parents take nothing on their Individuals with Disabilities Education Act claims brought under the Civil Rights Act. In this case the student made an obscene gesture at classmates who were making fun of him. An admission, review, and dismissal (ARD) committee meeting was held and the committee found that the student's behavior was not a manifestation of his attention deficit disorder. According to the case summary, a dispute ensued and the parents sued. The principal and assistant principal challenged the denial of their summary judgment motion under as to the parents' claim. On appeal, the court reversed and rendered judgment that the parents take nothing on this claim. The parents were members of the ARD committee that conducted the manifestation determination review of the student's behavior. The parents did not show that the disciplinary procedures applicable to children without disabilities required parental involvement in the school's disciplinary decisions, for purposes of 20 U.S.C.S. § 1415(k)(5)(A). There was no evidence that the district violated the student's rights under the Act by placing him in a disciplinary alternative education program for 45 days without referring the disciplinary decision to the ARD committee. Thus, principal and assistant principal were immune from individual liability to the parents for civil damages.

Lewellyn v. Sarasota County School Board, 53 IDELR 288 (M.D. Florida 2009)

In this case, parents claimed the school district disciplined their two sons with disabilities unfairly when it revoked a school choice privilege for one boy (attending a school outside their attendance area) and offered the other deferred expulsion and a behavior contract. The Section 504 and ADA claim filed was discontinued as the District Court determined the district did not discriminate based on disability. The manifestation determination review revealed the boys' behavior was not related to their disabilities which allowed school officials to wage the district discipline policy as it would for students without disabilities. The change in schools back to the one boy's home attendance area does not constitute a change in placement as the Office of Special Education Programs (OSEP) has written that transferring a student to another school does not constitute a change in placement unless it substantially or materially alters his educational program (Letter to Fisher, 21, IDELR 992 (OSEP 1994).

Teacher's Use of Seclusion and Restraint Does Not Violate Student's Constitutional Rights

In C.N. v. Willmar Public Schools, 53 IDELR 251, 591 F.3d 624 (8th Circuit 2010), the parent of a third grade student identified with a disability under IDEA reenrolled her daughter in another district after learning her daughter was subjected to physical and verbal abuse by a special education teacher. After transferring, the student's mother sought to challenge the adequacy of the former district's educational services. The subsequent challenges to the student's previous education became moot because according to the U.S. Court of Appeals for the Eighth Circuit in Thompson, if a student changes school districts and does not request a due process hearing, his or her right to challenge prior educational services is not preserved. Rather, the new school district is responsible for providing a due process hearing. The Section 504 claim was properly dismissed for the same reason. As for plaintiff's Section 1983 claims, there was no Fourth Amendment violation since the special education teacher's use of restraints and seclusion was authorized by the student's individualized education program. Her behavior intervention plan allowed her teacher to use seclusion and restraint as behavior managment techniques.

Calling Police Does Not Violate Student's Constitutional Rights

In B.L. Boyertown Area School District, 52 IDELR 42 (E.D. Pennsylvania 2009), a court granted a school district's and principal's motion to dismiss action for damages under Section 1983, 504, and the ADA. Where the student's Behavior Intervention Plan provided that the Principal had broad discretion when the student hurt or threatened others or used profanity, the principal's action of calling the Pennsylvania State Police was within the provisions of the BIP when the student used profanity towards his one-to-one aide. Telephoning the police to deal with the child does not constitutute a clear violation of the child's consitutional rights and it was reasonable for the principal to assume that this action was in compliance with the law.

Parents Need to Exhaust Administrative Remedies Under IDEA Before Making Discrimination Claims

In C. B. v. Sonora School District, 53 IDELR 115 (E. D. California 2009), the parents of a sixth grader with mood disorder filed a claim for disability discrimination after a school employee called police when the student "shut down". The police handcuffed the student then took him to a relative's home. The parents claimed discrimination and charged school personnel with not following the behavior intervention plan which outlined specific interventions to try when the student "shut down". The U. S. District Court (Eastern District in California), held that administrative remedies under IDEA must be exhausted before seeking relief under a Section 504 claim and Title II. Since the parents claimed the BIP was not being followed, the U. S. District Court does not have jurisdiction until administrative remedies under IDEA have been exhausted.

Teams Must Consider Relevant Information When Conducting a Manifestation Determination Review

In re: Student with a Disability, 52 IDELR 239 (SEA WV 209), an independent hearing officer concluded a school district violated IDEA when conducting a manifestation determination review for a 13-year-old with ADHD and ODD who took a pill given to him by another student. The manifestation determination team failed to discuss pertinent information during their review including medications the student was taking or how the behavior was linked to the student's disability. Furthermore, the student shared he felt pressured to take the pill that was offered by a larger student. Another error on the part of the district was failing to include the school psychologist who completed the student's initial educational evaluation. IEP teams must be mindful to conduct thorough MDRs and to discuss all relevant information including the student's IEP, discipline reports, teacher observations, and parental input in an attempt to understand the function of the student's behavior.

Guidelines for the Use of Seclusion and Restraint of Students with Disabilties is in Draft Phase

In a letter dated July 31, 2009, to Chief State School Officers, Secretary of Education Arne Duncan wrote "I urge each of you to develop or review and, if appropriate, revise your State policies and guidelines to ensure that every student in every school under your jurisdiction is safe and protected from being unnecessarily or inappropriately restrained or secluded." In response to this request, a team consisting of various agency personnel throughout South Carolina was formed by the SCDE for the purpose of drafting guidelines on the use of seclusion and restraint. I am fortunate to be one of the draft reviewers and therefore received a copy of the work in progress this week with charge to respond by tomorrow. I read the proposed draft and highlighted actions our district would need to take to ensure adherence to the guidelines. All in all, I believe the team developed a thorough document defining several terms (e.g., seclusion, physical restraint, escorting, mechanical restraints). I am very pleased that the document opens with a description of School-wide Positive Behavior Interventions and Supports and how this system has the potential to reduce behavioral incidents that might escalate to Tier III. I am confident the finalized guidelines will provide a blanket of protection for students and school administrators dealing with crisis behavior.

IEP Teams Need to Determine Understanding of Right and Wrong During MDRs for Students with ADHD

In Volume 25, Issue 11 of the Special Educator (December 4, 2009), there is an interesting article providing guidance to IEP teams when conducting manifestation determination reviews (MDRs) for students with ADHD. In two separate cases the school districts determined the students' behavior was not a manifestation of their disabilities. In Reeths-Puffer Schools, 52 IDELR 274 (SEA MI 2009), the administrative law judge (ALJ)ruled in favor of the school district when it determined that a student with ADHD told police he knew it was wrong to bring a knife with a four-inch blade to school and that he did it to protect himself. However, in San Diego Unified School District, 52 IDELR 301 (SEA CA 2009), an ALJ did not agree with the district and believed it was a manifestation of the student's disabling ADHD when the teenager served as the "middle man" when selling marijuana seeds. In this case the student had stopped taking his medication a few weeks earlier due to side effects. The evidence revealed "the impulsivity characteristic of the student's ADHD and his lack of medication led him to join the drug transaction without thinking of the consequences."
IEP teams are advised to consider the following when conducting MDRs:

• analyze all student records
• conduct interviews and include anyone who might have witnessed the student before or during the particular incident
• examine medical and disciplinary history
• learn behavioral motivations or goals
• determine the student's cognitive awareness of right and wrong
• determine if the student knew he/she was violating school policy
• determine if any planning was involved and over what period of time the planning process occurred
  

Making Unilateral Changes in Placement Through the Use of Suspension or Other Removal from the Current Placement

Julie Weatherly featured an article in a journal titled In Case, Volume 48, Numbers 4-6; and in Volume 49, Numbers 1-2. The title of the article is Avoiding Legal Disputes in Special Education: 21 Training Points for Administrators. According to Weatherly, LEAs must be mindful when students with disabilities are suspended for over 10 days at a time and for more than 10 days at a time cumulatively in a school year when the pattern of removals constitute a "change in placement". Before changing the educational placement of a student with a disability the following must occur: (1) manifestation determination, (2) IEP team must plan for a functional behavioral assessment then develop a behavioral intervention plan based on the results, and (3) the IEP must determine what services are necessary for the student to participate in the general education setting and to make progress toward his/her IEP goals in the alternative education setting when the student is removed for more than 10 days. Other removals not designated "short-term suspensions" may also count toward the 10 day change in placement. For example, sending a student with a disability home to "cool down" or "home time-out".

Verify student's role in wrongdoing before carrying out MDR

An interesting article from Special Ed Connections....

"A student with LDs is involved in a sale of marijuana at school. The district holds a school board meeting, where it decides to expel the student. It then conducts a manifestation determination review.
The parents in Farrin v. Maine Sch. Administrative Dist. No. 59, 35 IDELR 189 (D. Me. 2001), argued the district should have conducted the MDR first. The court disagreed, noting there is nothing in the IDEA that spells out in what order a disciplinary hearing and MDR must take place.
"It makes sense to hear the student's side of the story; determine, for sure, did he commit this offense; then determine, for sure, the proposed penalty," said Jim Walsh, a school attorney at Walsh, Anderson, Brown, Aldridge & Gallegos, P.C., in Austin, Texas. "Otherwise, you're doing a manifestation determination before you've even officially . . . determined exactly what the student did."
This is just one source of contention that commonly arises between parents and school personnel during MDRs, Walsh said. Other areas where potential missteps can occur include staving off disagreements about committee composition, addressing consensus problems, and administering long-term suspensions.
Walsh spoke about and offered guidance on each of these issues during LRP's audio conference Getting Manifestation Determinations Right: Practical Strategies for Compliance."

Disciplining Students with Disabilities: Essential Point #9

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 ninth essential point...
"As is the case with the use of in-school suspension, a disciplinary removal of a student with a disability from the school bus could constitute a 'change of placement.' It is important to remember that 'placement' generally includes those services set forth in a student's IEP. Thus, it will be important to determine whether transportation is included as a related service on a student's IEP in order to determine whether a 'change of placement' has occurred as a result of a bus suspension.
Again, in the commentary to the 2006 IDEA regulation, the U.S. Department of Education commented that '[w]hether a bus suspension would count as a day of suspension would depend on whether the bus tranportation is a part of the child's IEP. If the bus transportation were a part of the chld's IEP, a bus suspension would be treated as a suspension...unless the public agency provides the bus service in some other way.' The Department of Education went on to note that where bus transportation is not a part of the child's IEP, it is not a suspenstion and that '[i]n those cases, the child and the child's parent have the same obligations to get the child to and from school as a nondisbled child who has been suspended from the bus. However, public agencies should consider whether behavior on the bus is similar to behavior in the classroom that is addressed in an IEP and whether the child's behavior on the bus should be addressed in the IEP or a behavioral intervention plan for the child (71 Federal Regulations 46,715).' Thus, whether bus suspensions may amount to a 'change in placement' will depend upon whether the student's IEP lists transportation as a related service because the student's needs are such that specially designed transportation is required. If transportation is a related service, bus suspension will count toward the 'change of placement' analysis. If it is not a related service, it will not count."

Discipline of Students with Disabilitites: Essential Point #8

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 eighth essential point...
"Similar to the removals referenced in Essential Point #7 are those that are called "in-school suspension" or ISS. It is important to remember that the use of ISS to discipline a student with a disability could also constitute a 'change of placement.' In the commentary to the 2006 regulations, the U.S. Department of Education reiterated its 'long term policy' that an in-school suspension would not be considered a part of the days of suspension toward a change of placement 'as long as the child is afforded the opportuntiy to continue to approopriately participate in the general curriculum, continue to receive the services specified on the child's IEP, and continue to participate with nondisabled children to the extent they would have in their current placement (71 Federal Regulation, 46,715).' Therefore, based upon this guidance, whether a change of placement has occurred via the use of in-school suspension will depend upon what is afforded to the student in the ISS environment and whether the student is appropriately participating in the general curriculum there, receiving the services listed on his IEP and participating with nondisabled students to the same extent as contemplated by his current IEP. If not, then it is arguable that days served in ISS should be considered in determining whether a pattern of removals has occurred that constitutes a 'change of placement.'

Discipline of Students with Disabilities: Essential Point #7

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 seventh essential point...
"It is important to remember that disciplinary removals from school that are not formally considered 'suspension' or 'expulsion,' may still likely be removals that could constitute a pattern that is a 'change of placement.' Examples of such removals could include asking a student's parents to keep her home several days for 'home time out' or a 'cool-down period.' Similarly, moving the student to the principal's office or to another teacher's classroom all day every day could eventually constitute a change of placement that runs afoul the IDEA's procedural requirements. Even half-day removals from school could constitute a 'change of placement.' Indeed, in the commentary to the 2006 IDEA regulations, the U.S. Department of Education stated that 'portions of a school day that a child has been suspended may be considered as a removal in regard to determining whether there is a pattern of removals that constitutes a change of placement (71 Federal Regulation 46, 715).' When considering the use of removals that are not officially 'suspensions' or 'expulsions,' caution is advised when imposing such removals, and school personnel should maintain accurate data that tracks the use of such removals to ensure that an inappropriate 'change of placement' has not occurred outside of the placement process."

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."