A student identified as an individual with a disability under IDEA or a student with a 504 plan are generally subject to the same grounds for suspension and expulsion which apply to students without disabilities. This blog will discuss some legal provisions under IDEA which are specific to students with disabilities under IDEA or have a 504 plan. State laws generally defer to federal law for most of the rules governing expulsion of special education students.
Students Not Yet Eligible for Special Education:
A student who is not yet eligible for special education services may be entitled to the same protections under IDEA if the district had knowledge, or should have known, that the student is disabled before the violation occurred. If a request for evaluation is made during the time the student is subject to disciplinary measures, the evaluation must be done in an expedited manner. Until the evaluation is completed, the student shall remain in the education placement determined by school authorities.
When a student will be removed from school for more than 10 days they are entitled to a manifestation meeting. A special education student may not be expelled for more than 10 days if the misconduct is a manifestation of their disability.
A manifestation determination meeting is a meeting of relevant IEP team members. The IEP team must determine:
- Was the behavior caused by, or did it have a direct and substantial relationship to, the student’s disability; and
- Was the behavior the direct result of the district’s failure to implement the IEP?
If the answer is yes to either question, the student cannot be expelled and change of placements will require the consent of the parents.
A special education student may be placed in an interim alternative education setting for up to 45 days, whether or not the behavior is a manifestation of his or her disability, if the student carried or possessed a weapon, possessed or used illegal drugs, or inflicted serious bodily injury on another person.
Disputing Manifestation Determination:
If you disagree with the manifestation determination you can file for an expedited due process hearing. If your student’s conduct was determined to be unrelated to their disability then the district can choose to discipline the student in the same way as non-disabled students.
If you disagree with the due process hearing you can file an appeal to state or federal court. You have 90 days to file an appeal.
Functional Behavioral Analysis and Behavior Intervention Plan:
A student who is recommended for expulsion should receive a functional behavioral assessment. It may be necessary to implement a behavioral intervention plan. For more information see my blog regarding this topic: https://specialedlegaljourney.com/2016/09/21/discipline-functional-behavioral-assessments-and-behavioral-intervention-plans/
Expulsion is not a matter to be taken lightly. The consequences can be serious. In order to protect your special education student you must understand the differences between the laws that apply to general education students and those which apply to special education students.
If your child has been suspended or recommended for expulsion, call Kristin at (925) 551-1041.
(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)