The IDEA protects students with disabilities in disciplinary
proceedings that may result in long term suspension or expulsion. Suspension
over 10 days in a school year requires a Manifestation Determination Review
(MDR) (see below). A student with a disability (with an IEP) may be suspended
for up to 10 school days in a school year without FAPE being provided.
Suspension for more than 10 school days is considered a long term suspension.
A
disciplinary change of placement occurs for a student with a disability if: (1)
The removal is for more than 10 consecutive school days; or (2) he student 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
student’s behavior is substantially similar to the student’s behavior in
previous incidents that resulted in the series of removals; and because of
additional factors, such as the length of each removal, the total amount of
time the student has been removed, and the proximity of the removals to one
another. 34 C.F.R. § 300.536.
If
a student with a disability may be suspended for more than 10 school days due
to a code of conduct violation, the public agency, parents, and relevant IEP
Team members (determined by parents and district) must have a meeting to
determine whether the student’s behavior was a manifestation of his/her
disability. At the meeting, all relevant information in the student’s file, the
IEP, teachers’ observations and any other relevant information parents provide
must be reviewed in order to determine whether the conduct was caused by or had
a direct and substantial relationship to the student’s disability, or whether
the conduct was the direct result of the public agency’s failure to implement
the student’s IEP. If either of the two conditions above were met then there
should be a determination that the conduct was a manifestation of the student’s
disability. If it is determined that it was the public agency’s failure to
implement the student’s IEP, then the public agency must take immediate steps
to remedy those failures. 34 C.F.R. §300.530(e). When the determination is that
the conduct was a manifestation of the student’s disability, then the IEP Team
must either conduct an FBA (unless the public agency already conducted one
before the behavior violation occurred) and implement a BIP for the student or,
if there is already a BIP in existence for the student, then the public agency
must review the BIP and modify the BIP if necessary to address the behavior,
and the student must be returned to the placement from which he/she was removed
— unless the parents and public agency agree to a change of placement as part
of the BIP or modification to the BIP.
Exception: The student may be placed in an
interim alternative educational setting for no more than 45 school days without
a manifestation determination review IF the student carried or possessed a
weapon at school, knowingly possessed or used illegal drugs, sold or solicited
controlled substances or inflicted serious bodily injury on someone else while
at school or on school premises or at a school function. 34 C.F.R. §300.530 (f)
and (g).
In
cases where the behavior is determined to have NOT been a manifestation of the
student’s disability and the disciplinary changes in placement will exceed 10
consecutive school days, the same discipline may be imposed on the student with
disabilities as a student without disabilities. HOWEVER, the student with an
IEP must be provided with a FAPE; special educational services to enable the
student to continue participating in the general education curriculum, even in
another setting and make progress toward meeting the student’s IEP goals.
Additionally, if appropriate, the student is to receive a FBA, behavioral
intervention services and modifications to address the conduct so that it does
not recur. 34 C.F.R. §300.530 (c) and (d).
If
parents disagree with the outcome of the MDR, they may appeal by filing file a
due process complaint.
Students
with Section 504 Plan:
Students with 504 plans have similar protections to those students with IEPs.
But there are some differences. The public agency may discipline a student with
a disability under Section 504 just as it would a student without a disability
if the student is currently engaging in the illegal use of drugs or use of
alcohol, or in possession of illegal drugs or alcohol.
Additionally,
the public agency is not required to provide educational services during a long
term suspension or expulsion to a student with a 504 that committed a violation
that was determined not to be a manifestation of his/her disability.
