Discipline of Students with Disabilities

Suspensions of 10 or Fewer Days in a School Year

School personnel may remove a child with a disability who violates the code of student conduct from his or her current placement for not more than one 10 consecutive school days (to the extent those alternatives are applied to children without disabilities), and/or for additional removals of not more than 10 cumulative school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement.

A change of placement occurs if—

• The removal is for more than 10 consecutive school days; or

• 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.

Suspensions of more than 10 Days in a School Year

After a child with a disability has been removed from his or her current placement for more than 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent required below.

A child with a disability who is removed from the child's current placement for more than 10 school days in a school year must—

• Continue to receive educational services that enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP; and

• Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.

• Services may be provided in an interim alternative educational setting (IAES) or placement outside the students regular school/special education placement.

• A public agency is only required to provide services during periods of removal to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if it provides services to a child without disabilities who is similarly removed.

Services for Removals less than or more than 10 consecutive school days

After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, if the current removal is for not more than 10 consecutive school days and is not a change of placement, school personnel, in consultation with at least one of the child's teachers, shall determine the extent to which special education services are needed, so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP.

If the removal is for more than 10 consecutive school days, the child's IEP Team shall determine appropriate special education services.

The U.S. Department of Education indicates that it does not interpret “participate” to mean that a school or district must replicate every aspect of the services that a student would receive if in their normal classroom(s). The Department indicates for example, that it may not be “feasible” for a suspended student to receive every aspect of the services they would have received in a chemistry or auto mechanics classroom or other class that requires “a hands-on component or specialized equipment or facilities.” Further, the Department believes that IDEA “modifies the concept of FAPE” in the disciplinary context. The student does not have to receive exactly the same services in exactly the same settings as they were receiving prior to the imposition of discipline, provided the special education and related services the student receives enables them to continue to participate in the general curriculum and make progress on their IEP goals (71 FR 46716).

Manifestation Determination

Once a student has been disciplinarily removed for more than 10 days in a school year, an IEP team must convene to make a manifestation determination. Within 10 school days of a disciplinary removal the child's IEP Team must 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—

• If the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or

• If the conduct in question was the direct result of the LEA's failure to implement the IEP.

The IEP team will determine that the conduct IS or IS NOT a manifestation of the student's disability.

• If the IEP team determines the behavior IS NOT a manifestation of the disability, school personnel may apply the relevant disciplinary procedures in the same manner and for the same duration as the procedures would be applied to children without disabilities; however, the student shall still be provided appropriate services as set forth above.

• If the IEP team determines the behavior IS a manifestation of the disability, the student is entitled to return to school.

  • • Determination that behavior was a manifestation. If the LEA, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child's disability, the IEP Team must—

      • • Conduct a functional behavioral assessment, unless the LEA had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or

        • If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and

Special Circumstances and IAES Placements

School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child's disability, if the child—

• Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of an SEA or an LEA;

• Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA; or

• Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA.

Notification

On the date on which the decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct, the LEA must notify the parents of that decision, and provide the parents the procedural safeguards notice.