Special Education: Discipline Basics Lee Robbins Equip for Equality
What about Discipline? Student with a disability may be removed for no more than 10 consecutive school days for a disciplinary violation or more than ten days that constitutes a pattern of behavior (unless exception applies) Exception: can automatically remove a student with a disability for 45 school days if 1) Weapon; 2) Drugs; or 3) Serious bodily injury 2
45 SCHOOL Day Removal Weapon – “dangerous weapon” 18 U.S.C. § 930(g)(2) Drugs – Controlled Substance 21 U.S.C. 812(c) § 202(c)I, II, III, IV, or V – Does not include legally possessed or used substances Serious Bodily Injury – “serious bodily injury” 18 U.S.C. § 1365(h)(3) 3
WEAPONS EXCEPTION The term “dangerous weapon” means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 1/2 inches in length. 4
SERIOUS BODILY INJURY Serious Bodily Injury is defined as: (a) a substantial risk of death; (b) extreme physical pain; (c) protracted and obvious disfigurement; and (d) protracted loss or impairment of the function of a bodily member, organ, or mental function. 5
Can a student with a disability be expelled? Expulsions – Educational services must still be provided so student can be able to “participate in general education curriculum” and “progress towards meeting goals set out in IEP.” Before an expulsion can take place, must hold Manifestation Determination Review (MDR) 6
MANIFESTATION DETERMINATION REVIEW MDR is a meeting that occurs after a school suspends a student with a disability for ten consecutive school days or more than ten days in a school year that constitutes a pattern IEP team decides whether a student’s behavior is a manifestation of his/her disability 7
What does it mean for behavior to be a manifestation of a disability? Behavior is a manifestation of a disability if: – “caused by” the disability or – “Direct or substantial relationship to the disability” or – “direct result” of the school’s failure to implement the student’s IEP If student’s behavior is a manifestation of his/her disability, the student can’t be expelled without parent consent and must be returned to the pre-removal placement (unless drugs, weapons, or serious bodily injury) 8
If behavior is a manifestation of the disability, what must the school do? Functional Behavior Assessment (FBA) – evaluation to show relationship between behavior and what happens in student’s environment Behavior Intervention Plan (positive interventions) 9
What if behavior is not a manifestation of a disability? If the behavior is not a manifestation of a disability, the school can use same discipline measures as with other students However, the school must continue providing a free appropriate public education, even if the student is expelled 10
Appealing Disciplinary Removal File for due process Hearing - Expedited – 20 school days from request – 10 days for decision 11
What if the school wants to expel a student who has not yet been found eligible for special ed? Students not yet found eligible for special ed may still be protected by IDEA under certain circumstances: – Parent stated in writing to a supervisor, administrator or a teacher that child may need special ed – Parent requested evaluation – Teacher/staff expressed specific concerns about child’s pattern of behavior directly to director of special ed or other supervisory person 12
Where does a student with a disability go to school when expelled? Typically an alternative school Do not confuse these alternative schools with alternative schools that students choose to go to even when not expelled (i.e. YCCS, Alternative School Network) 13
Advocacy Tips in Discipline Cases for Students with Disabilities Try your hardest to resolve the case prior to the expulsion hearing If the case goes to a hearing, be prepared to present mitigating evidence 14
Contact Information Lee Robbins, EFE, lee@equipforequality.org 15
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