Chapter 10: Student Discipline — Addressing Serious Behavior Issues and Concerns - Page 2

Relationship between Behavior and Disability

Within 10 days from the beginning of a disciplinary action that exceeds 10 days, the school district, the parents and relevant members of the student's IEP team must meet to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the student’s disability. This is referred to as a "manifestation determination." The team must also determine if the conduct was the direct result of the school's failure to implement the student’s IEP, including a behavior intervention plan.

In making this determination, the IEP team will review:

• The student's IEP

• The student's behavior intervention plan

• Any teacher observations

• Any relevant information provided by the parents

[New] The manifestation determination — the relationship between behavior and disability — must now be "direct and substantial," which is a change from the previous requirement for finding such a relationship. For example, a student's low self-esteem, while a possible by-product of a learning disability, cannot be considered to have a direct relationship to a student's behavior problem.

If the team finds that the student's behavior was related to the disability or an improperly implemented IEP, the student is returned to the original education setting unless the parents agree to a new placement, which is a new educational setting, as part of the behavior intervention plan.

If, on the other hand, the team finds that the student's behavior was not directly related to the disability, the same disciplinary actions can be imposed on the student with a disability as those imposed on a non-disabled student. Such action could include expulsion. However, if the student is expelled from school, the student must continue to receive educational services that allow him or her to continue to participate in the general education curriculum and progress toward meeting the goals set out in the IEP.

Special Offenses

Certain serious behavior problems can lead to a student being moved to an interim alternative educational setting for up to 45 school days even if the conduct is determined to be related to the student’s disability. Removing a student for these offenses does not require parent permission or agreement, nor does it require any involvement by a hearing officer or other impartial third party. These offenses are:

Weapons: If a student carries or possesses a weapon:

• To or at school

• On school premises

• At a school function

Drugs: If the student knowingly possesses or uses illegal drugs or sells or solicits the sale of illegal drugs while at school or at a school function.

[New] Serious bodily injury: If a student has inflicted serious bodily injury upon another person while at school, on school premises or at a school function.

Note: Parents should obtain the legal definitions of these offenses from their school district or Parent Training and Information Center (PTI)

An additional provision allows a school to seek to remove a student for up to 45 school days if the school believes that returning the student to the same educational placement is substantially likely to result in injury to the student or other students. The school must do this by making a request to a hearing officer.

Appeals

Parents have the right to challenge any decisions made regarding the interim alternative educational setting or the determination regarding the "manifestation determination" by asking for a due process hearing. Schools can also request a hearing if school personnel feel that returning a student to the original educational setting is highly likely to result in injury to the student or to others.

In either case, the hearing must be held within 20 school days of the date requested and the hearing officer must make the decision within 10 school days after the hearing.

[New] During the appeal process, the student remains in the interim alternative educational setting, unless the parent and the school agree otherwise.

Students Not Yet IDEA Eligible

Under certain circumstances, the protections available to students with disabilities who are already receiving services under IDEA may also be available to students who do not have an IEP in effect. These circumstances may apply to any students, including those receiving early intervening services discussed in Chapter 1: Pre-referral Services, if:

• The child's parent had expressed concern in writing to school personnel, including the teacher, that their child may be in need of special education prior to the behavior that resulted in the disciplinary action

• The child's parent had requested an evaluation as provided for by IDEA

• The child's teacher or other school personnel had expressed concerns about a pattern of behavior that might call for a referral for evaluation. Such concerns would need to have been made directly to supervisory personnel. For example, a teacher expressing his or her concerns to a parent would not be considered an adequate basis of knowledge.

Certain exceptions apply to the above circumstances. They include:

• If the child's parent had not allowed an evaluation of the child or had refused special education services that had been offered as required by IDEA

• If the child had been evaluated as required by IDEA and was not found eligible for special education

If a request is made to evaluate a student during the time period of the disciplinary action, the school must complete the evaluation as quickly as possible. During the evaluation, the student remains in the interim alternative educational setting while the evaluation is conducted.

Final Word

The provisions regarding student discipline are complex and sometimes confusing. If your child becomes the focus of a disciplinary action, seek information and guidance from expert resources such as your state's Parent Training and Information Center (PTI)Table of Contents

• An Overview of IDEA Parent Guide
• Chapter 1: Pre-Referral Services
• Chapter 2: Response-to-Intervention
• Chapter 3: Referral/Request for Evaluation
• Chapter 4: Procedural Safeguards — Understanding and Exercising Your Legal Rights
• Chapter 5: Evaluation: Learning More About Your Child
• Chapter 6: Eligibility Determination: Determining Your Child's Need for Special Education
• Chapter 7: Individualized Education Programs (IEPs) — Developing Your Child's Education Plan
• Chapter 8: Transition — Planning Your Child's Future Success
• Chapter 9: Students in Private School: Understanding Your Child's Special Education Options
• Chapter 10: Student Discipline — Addressing Serious Behavior Issues and Concerns
• Chapter 11: Dispute Resolution Options — Understanding Your Options for Settling Disputes

Additional Resouces