DISCIPLINARY REMOVALS
A disciplinary removal is a suspension, expulsion, or other removal for disciplinary reasons, including removals for mental health examinations for students who threaten violence or harm in public schools under ORS 339.250(4)(b)(C).
“Disciplinary removal” does not include in-school suspensions if the student continues to have access to the general curriculum and to special education and related services as described in the student’s IEP and continues to participate with non-disabled students to the extent they would in their current educational placement.
“Disciplinary removal” does not include bus suspensions, unless the student’s IEP includes transportation as a related service, the District makes no alternative transportation arrangements for the student, and the student does not attend school as a result of the bus suspension.
First ten (10) Days of Suspension
A student may be removed from his/her current educational placement for disciplinary reasons for up to the (10) cumulative or consecutive school days per school year to the same extent and in accordance with the same procedures as students without disabilities. Such disciplinary removals are not considered a change in placement.
An administrator or his/her designee follows District procedure in determining whether to suspend the student.
For purposes of counting days of suspension, suspensions of a half day or less are counted as a half day and suspensions of more than a half day are counted as a full day.
Interim Alternative Educational Setting
Addressing student needs during the pre-referral and referral process
If there is a substantial risk to student or staff safety, the district may place the student in an Interim Alternative Educational Setting (IAES), pending the outcome of the evaluation and placement following the evaluation.
The following guidelines will assist with ensuring the success and safety of all students and staff.
Assessing need for Interim Alternative Educational Setting:
Is there a demonstrated need for additional support or interventions pending the outcome of the pre-referral/referral process?
Is the need behavioral, academic or both?
Is the student a danger to self or others?
Where is the student most successful?
Where does the student have the most difficulty? Be sure to consider unstructured time, time outside the classroom, and time before and after school.
Alternative Educational Setting options (not an exhaustive list):
Change of classroom
Change of school schedule/length of day
Home Instruction
Tutoring
Extra adult assistance
Additional Disciplinary Removals of up to 10 School Days Each (no pattern) OAR 581-015-2410
Disciplinary removals that exceed a total of ten (10) consecutive or cumulative school days in a school year are considered a change of educational placement. Such removals are subject to special requirements.
During such removals, the District must provide services that are necessary to enable the student to continue to participate in the general education curriculum (although in another setting) and to progress towards meeting the goals in the student’s IEP.
A manifestation determination meeting must be held before the 11th day of disciplinary removal.
School districts may remove a child with a disability who violates a code of student conduct from the child's current educational placement to an appropriate interim alternative educational setting, another setting, or suspension for additional periods of up to ten school days in a school year to the same extent, and with the same notice, as for children without disabilities, if the removals do not constitute a pattern under section (2) of this rule. These removals are not considered a change in placement.
School personnel must determine, on a case-by case basis, whether the series of removals constitute a pattern;
(a) Because the child's behavior is substantially similar to the child's behavior in previous incidents that resulted in the series of removals; and
(b) 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 removals to one another.
Educational services necessary to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals of the child's IEP must be provided.
School personnel, in consultation with at least one of the child's teachers, will determine the extent to which the services are needed, and the location for the delivery of those services.
School districts are not required to determine whether the behavior resulting in removal is a manifestation of the child's disability.
Stat. Auth.: ORS 343.041, 343.045 & 343.155;
Stats. Implemented: ORS 343.155, 34 CFR 300.530, 300.536
Hist.: ODE 35-1999, f. 12-13-99, cert. ef. 12-14-99; ODE 2-2003, f. & cert. ef. 3-10-03; Renumbered from 581-015-0552, ODE 10-2007, f. & cert. ef. 4-25-07
Scheduling Manifestation Determination Meeting
A manifestation determination meeting MUST be held within ten (10) school days of the decision to change placement due to discipline and before the 11th school day of removal during the current school year.
Building administrator notifies Student Services Director and the student’s case manager of suspension.
Special education case manager invites parents and other IEP team members to the Manifestation Determination meeting. A Notice of Team Meeting form must be used to document parental invitation-even if time constraints are such that it is not feasible to mail notice.
Manifestation Determination Considerations
At the manifestation determination meeting, the team determines if the behavior that caused the student to be disciplined was a manifestation of the student’s disability.
The IEP team must consider:
Behavior Incident-details of the student’s offense/rules violation
Current Disability-based on eligibility statements or identified educational needs as noted on the IEP
All Relevant Student Information-including evaluations, observations, parent information, current IEP/placement, other information the IEP team believes is relevant
The IEP team must then answer the following questions:
Was the conduct in question the DIRECT result of the District’s failure to implement the student’s IEP?
Was the conduct in question caused by, or, did it have a DIRECT AND SUBSTANTIAL relation to the student’s disability?
In analyzing whether the conduct was caused by, or had a direct and substantial relationship to the student’s disability-analyze the behavior over time and across settings. Behavior MUST be a DIRECT RESULT of the disability. The behavior must not be an attenuated association. An example of an attenuated association would be a case where a student’s physical handicap results in a loss of self-esteem, and the student consciously misbehaves in order to gain attention of his/her peers.
Behavior is a Manifestation of a Student’s Disability
If the team answers “YES” to one or both of the questions, then the conduct in question is considered a manifestation of the student’s disability. The student CANNOT be removed from his/her current placement for disciplinary reasons beyond the 10th cumulative day of removal for the current school year (except as provided in the following “special circumstances”.
The IEP team MUST conduct a functional behavior assessment (FBA) if one has not already been conducted.
2. The IEP team MUST develop a Behavior Support Plan (BSP) or review and revise the current BSP.
The student returns to current educational placement, unless the parent and District agree to a change of placement or one of the following “special circumstances”.
Special Circumstances
Removal by an Administrative Law Judge for behavior likely to result in injury-School administrator must contact the Director of Student Services prior to initiating this. (This requires filing for a due process hearing.)
Weapons Offenses- The District may remove a student to an alternative setting for up to 45 school days when student is found carrying or possessing a weapon to or at school, on school premises, or at a school function. School Administrator must contact the Director of Student Services prior to initiating this.
Weapon must meet the definition of a weapon under IDEA. These include the following:
Firearm: (a) any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive: (b) the frame or receiver of any such weapon; (c) any firearm muffler or firearm silencer; or (d) any destructive device (any explosive, incendiary, or poison gas, bomb, grenade, rocket with charge of more than four ounces, missile with charge of more than ¼ ounce, mine, or similar device). Does not include antique firearm.
Dangerous Weapon; “any weapon, device, instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious injury.” ORS 161.015(2)
Deadly Weapon: “any instrument article or substance specifically designed for and presently capable of causing death or serious physical injury.” ORS 161.015(2)
School Administrator should contact Scappoose law enforcement. The student may be arrested for the above noted offenses.
Drug Offenses- The student may be removed to an alternative setting for up to 45 school days for a drug offense, as defined in the IDEA. School administrator must contact the Director of Student Services prior to initiating this.
IDEA defines a drug offense as knowingly possessing or using illegal drugs or selling or soliciting the sale of a controlled substance, while at school, on school premises, or at a school function.
“Illegal drug” does not include a prescription for which the student as a valid prescription. However, distributing, selling, or soliciting the sale of the prescription, even if the student has a valid prescription for the drug, does constitute a drug offense by the student.
Infliction of SERIOUS bodily Injury upon another person
The student may be removed to an alternative setting for up to 45 school days for inflicting serious bodily injury on another person while at school, on school premises, or at a school function.
School Administrator must contact the Director of Student Services prior to initiating this.
Serious bodily Injury is an injury that involves:
Substantial risk of death
Extreme physical pain
Protracted and obvious disfigurement; or
Protracted loss or impairment of function of a bodily member, organ or mental facility.
School Administrator should contact Scappoose law enforcement. It is likely the student would be arrested for any of the offenses noted above.
Behavior is not a manifestation of the student’s disability
If the IEP team determines the behavior is NOT a manifestation of the student’s disability (by answering “no” to the questions, the regular disciplinary procedures may be applied as they are for non-disabled students.
When a student is removed to an alternative setting for up to 45 school days- The student must continue to receive Special Education and Related Services through the alternative setting to allow student to continue to progress towards IEP goals. The student must continue to participate in the general education curriculum. Functional Behavior Assessment and Behavior Support Plan should be developed if not already done so.
Protections for Students Not Yet Eligible for Special Education
Special procedures for discipline of special education students apply to students not yet identified as students with disabilities if the District has knowledge that the student has a disability.
A District “has knowledge” that a student has a disability if, before the behavior that precipitated the disciplinary action occurred:
The parent expressed concern in writing to an administrator or teacher of the student that the student “needs special education and related services.”
The parent requested a special education evaluation of the student.
A teacher or other District personnel expressed specific concerns about a pattern of behavior to an administrator.
Referral to the CST Team for a Special Education Evaluation had been made prior to the behavior that precipitated the disciplinary action.
A District “does not have knowledge” that a student has a disability if, the District “does not have knowledge” simply because:
Staff are informally discussing that a student may be a special education student.
The student is in the pre-referral process, prior to a Special Education referral.
The parent has not allowed an evaluation of the student, or has refused services under the IDEA.
The student has been evaluated and determined the student was not a student with a disability.
Parental Right to Appeal
The parent may request a due process hearing if the parent disagrees with the manifestation determination or any decision about placement related to a disciplinary removal.
Such hearings are conducted on an expedited basis. The hearing must be held within 20 school days of the date the hearing is requested and must result in a written decision within 10 school days of the hearing.
Placement during the appeal is the interim alternative educational (disciplinary) setting pending the decision of the administrative law judge or until the end of the disciplinary removal, whichever occurs first, unless the District and parent agree otherwise.
Definition of Weapon under the IDEA 2004
What is a Weapon? (For removal to 45 day alternative Setting under the IDEA)
“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 a term does not include a pocket knife with a blade of less than 2 1/2 inches in length.” 19 USC 930.
Other Definitions of Weapon (under Oregon Law)
Firearm; “(a) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive: (b) the frame or receiver of any such weapon; (c) any firearm muffler or firearm silencer; or (d) any destructive device (any explosive, incendiary, or poison gas, bomb, grenade, rocket with charge of more than four ounces, missile with charge of more than ¼ ounce, mine or similar device)” Does not include antique firearm.
Dangerous Weapon: “any weapon, device, instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious injury.” ORS 161.015(1)
Deadly Weapon: “any instrument, article or substance specifically designed for and presently capable of causing death or serious physical injury.” ORS 161.105(2)