1 Quick Summary Student with a disability may be removed for no more than 10 consecutive school days for a disciplinary violation (unless exception applies). – More than 10 consecutive school days = change of placement Exception: may be suspended to an interim alternative education setting for not more than 45 school days for incidents involving drugs, weapons, or serious bodily injury.

2 Short Term Suspension: Not More Than 10 Consecutive School Days Student may be removed: To an alternative educational setting To another setting By suspension 34 C.F.R. § (a )

3 When is Removal a Change in Placement? Removal constitutes a “change in placement” if a student with a disability is: (1) removed from the student’s current placement for more than 10 consecutive school days; or (2) subjected to a series of removals that constitutes a “pattern of removals” that accumulates to more than 10 school days in a school year. 34 C.F.R. § (a)

4 Manifestation Determinations Required prior to a change of placement of a student with a disability. Parents must be notified in writing. The IEP team must conduct a “manifestation determination” review within 10 school days of the date school personnel removed the student from school. Team must discuss whether student’s behavior is manifestation of student’s disability. 34 C.F.R. § (e) & (h)

5 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 (34 C.F.R. § (e)) If student’s behavior is manifestation of disability, student can’t be expelled without parent consent and must be returned to pre-removal placement (unless drugs, weapons, or serious bodily injury) ( (f))

6 If behavior is a manifestation of the student’s disability, what must a school do? Functional Behavior Assessment (FBA) – evaluation to show relationship between behavior and what happens in student’s environment Behavior Intervention Plan (positive interventions) 34 C.F.R. § (f)

7 What if the behavior is not a manifestation of the student’s disability? If behavior is not a manifestation of a disability, school can use same discipline measures as with other students. BUT school must continue providing FAPE – “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” (34 C.F.R. § (d)(4)).

8 What if 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 abut child’s pattern of behavior directly to director of special ed or other supervisory person 20 U.S.C. 1415(k)(5)(B)(iii)

9 When are students not yet found eligible for special ed not protected? Not protected if: – Child previously evaluated and found ineligible – Or parent refused special ed or evaluation in past 20 U.S.C. 1415(k)(5)(C)

10 Student Discipline Not Yet Eligible School did not have “knowledge” – Same discipline as non-disabled kids If school did have “knowledge,” then the student is protected by IDEA.

11 Do charter schools in Illinois have to follow IDEA? Yes. Charter schools must follow all aspects of IDEA, including the discipline portions of the law.

12 Common Problems and Potential Solutions

13 Illegal Send Homes Parents often get called from the school to “come pick up” their child due to a behavior incident. Question: Is this a suspension? Answer: YES

14 Why does it matter? Removals from school must be documented so that rights are triggered. Once the student reaches 10 days of removal, s/he is typically entitled to services on the 11 th day. Series of removals may indicate a pattern of removal. Documented removals provide evidence as to whether a program or behavior plan is or is not working. IDEA requires written notice of a removals over 10 days. (34 C.F.R (h)).

15 Possible Solutions Parent should tell school that she will not pick child up unless child is suspended. Parent should request suspension paperwork.

16 Overuse of In-School Suspensions In-school suspensions (ISS) count towards the ten days, unless the student is receiving his/her special education services while participating in ISS.

17 A Few Case Examples See handout for more cases Randy M. v. Texas City Independent School District, 93 F.Supp. 2d 1310 (S.D. Texas 2000) Chicago (IL) Pub. Schs., 45 IDELR 227 (OCR 2005)

18 Possible Solutions Parents should request detailed information on what the child is doing during the ISS Parents can request MDR

19 Overuse of Serious Bodily Injury Exception School can remove a student immediately for 45 school days if a student inflicts serious bodily injury (34 C.F.R. § (g)(3)) 18 U.S.C. §1365(h)(3) (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.

20 A Few Case Examples See handout for more cases Pocono Mountain Sch. Dis., 109 LRP (SEA PA 2008) In re: Student with a Disability, 108 LRP (SEA WV 2008).

21 Possible Solutions Ask parent and student detailed questions about what happened to the “victim” or injured party Negotiation to stop the 45 day placement File for due process

22 Questions????