«IMPORTANT: ELC's publications are intended to give you a general idea of the law. However, each situation is different. If, after reading our ...»
SCHOOL DISCIPLINE AND STUDENTS WITH DISABILITIES
IMPORTANT: ELC's publications are intended to give you a general idea of the law.
However, each situation is different. If, after reading our publications, you have questions
about how the law applies to your situation, contact us for a referral or contact an
attorney of your choice.
HOW CAN DISCIPLINE PROBLEMS BE AVOIDED?
When the IEP Team writes a child’s Individualized Education Program (IEP), it must consider the child’s behaviors. The IEP Team should ask two questions: (1) Do the child’s behaviors hurt the child’s ability to learn? (2) Do the child’s behaviors hurt other students’ ability to learn? If so, the IEP Team must decide whether there are positive behavioral interventions, supports, and other strategies that should be included in the child’s IEP. If the behaviors do not improve, the IEP may need to be changed.
If you think that your child’s behaviors are harming her success at school, you should write to the principal and request an IEP Team meeting. If the school will not meet with you or if you have a meeting and you aren’t happy with the result, you may need to go to mediation or a hearing to solve the problem. (For more information on these options, see ELC’s Fact Sheet entitled, “How To Resolve Special Education Disputes.” All ELC’s Fact Sheets can be found on our website at www.elc-pa.org or you can get them by calling the numbers listed below.) At the IEP meeting, the family should discuss the problems the child has at school and suggest changes that might help stop the behaviors. You should also ask the school for some suggestions. You can request that your child receive a “functional behavioral assessment” (an evaluation of what things cause the misbehavior) that can be used to write a “Behavioral Intervention Plan” (BIP). You should make sure that the behavior plan is part of your child’s IEP and is based on positive measures designed to help, not punish, your child.
TIP: Some questions to ask include: how can the teacher be a better “manager” of the classroom; does the child need counseling or a crisis intervention plan; what can be done to prevent disruptive behaviors;
and is the teacher gathering on-going data to help figure out if the behavior plan is working?
For more information on evaluating students’ behavioral needs and developing appropriate behavior plans, visit www.pattan.k12.pa.us/teachlead/Behavior.aspx.
WHEN SHOULD A PARENT GET NOTICE THAT THE SCHOOL HAS DECIDED
TO DISCIPLINE HER CHILD?State law requires a school to inform the family and the student whenever it intends to suspend or expel any student from school. (For more information on the timing and form of the notice, see ELC’s Fact Sheet “School Discipline in Pennsylvania” and other ELC publications on this subject).
Sometimes the schoolwants to punish the child so severely that it is called a “change in placement” (see below for more information). If it is a change in placement, the school should give the family a Notice of Recommended Educational Placement or NOREP. The school must include a copy of the “Procedural Safeguard Notice” (a document that explains the student’s and family’s legal rights) with the NOREP. The NOREP tells the family how the school or school district is proposing to discipline the child and why. It also gives the family information on what other options the school or school district considered, and gives the family the opportunity to agree or disagree with the proposal. If you agree, the school can discipline your child. If you disagree, the school must follow the rules outlined
WHAT PUNISHMENT CAN THE SCHOOL IMPOSE ON MY CHILD?
The school cannot punish a student with a disability more harshly than it would punish a student without a disability under the same circumstances. The school must follow the same rules it applies to all students. For example, the school can only punish a child if they break a rule that is listed in the school’s code of conduct. You should get a copy of the code of conduct at the start of the year.
If you do not have a copy, you should ask to see the copy that is kept in the school’s library.
Sometimes, the rule that the student broke allows the school to expel her, transfer her to another school (in Pennsylvania often called alternative schools for “disruptive students”), or suspend her for a long time. If this is what the school wants to do, then a student with a disability may have extra protections under special education law. To see if these protections apply, you must first figure out if the discipline the school is proposing counts as a “change in placement.” Question 1: Is the Proposed Discipline a Change in Placement?
Students with mental retardation at public school districts or charter • schools: Any suspension, expulsion, or transfer to another school is considered a change in placement – even a one day suspension.
Other students with IEPs who attend public school districts: An • expulsion is a change in placement. A suspension or transfer to another educational setting (including an alternative school) for more than 10 school days in a row OR for more than 15 total school days in the school year is also a change in placement.
-3Other students with IEPs who attend charter schools: If a public charter • school wants to expel a student or to suspend a student for more than 10 school days in a row, it is a change of placement. A “pattern” of suspensions, is also a “change in placement.” To figure out if the child had a “pattern” of suspensions, you should ask if: the child has been suspended for a total of more than 10 days in a school year and another suspension is being proposed;
the child is being suspended for behavior that is “substantially similar” to behavior for which the child has previously been suspended; the length of each suspension; the total time the child has been suspended; and how close together the suspensions have been.
If the proposed discipline is NOT a change in placement The public school or charter school may discipline your child using the rules that apply to students without disabilities. (For information on the discipline rules for all students, see ELC’s Fact Sheet “School Discipline in Pennsylvania” and other ELC publications on this subject. Philadelphia students have special rights and a separate ELC fact sheet.) If the proposed discipline IS a change in placement If the discipline is a change in placement, the school must hold a manifestation determination meeting.
The school must have a manifestation determination meeting within 10 school days of its proposal to change the child’s placement. While you are waiting for the meeting, the school may not transfer your child to a new school setting or force you to keep your child at home unless the child’s misbehavior involved drugs, guns, or serious injury to another person, or if a Hearing Officer has found that keeping your child in the same program would be dangerous for the child or others. We discuss these “special circumstances” and the “dangerousness” exception in more detail below.
The parent and any members of the IEP Team that the parent and the school agree are needed must come to the manifestation meeting. The Team should review information from the child’s file, the child’s IEP, teacher observations, and information from the parent and then ask if the child’s misbehavior was a “manifestation” of her disability. The Team should ask two
1. Was the child’s misbehavior caused by, or directly and substantially related to, the child’s disability?
If all the team members agree the child’s behavior WAS a “manifestation” of
If the school and the family agree that the student’s misbehavior was a manifestation of the student’s disability, the student CANNOT be suspended, expelled, or transferred to a new school setting as punishment for the misbehavior. (The only exceptions are if the child’s misbehavior involved drugs, weapons, or serious injury to another person – see the “special circumstances” rules below). In addition, the IEP Team must conduct a functional behavioral assessment for the child unless one has already been done. The school must also either develop a behavior intervention plan or review and revise the plan that already exists.
If all Team members agree that the child’s conduct was NOT a “manifestation” of her disability:
The school can discipline the child the same way it disciplines students who do not have disabilities. This includes a long-term transfer to a new school or an alternative school, or even an expulsion by the local School Board. (To review the rules for suspension and expulsion of all students, see ELC’s Fact Sheet “School Discipline in Pennsylvania” and other publications on this subject.) However, even if the child is expelled from school, she must still receive special education services (more below).
What happens if the school decides that the child’s conduct was NOT a manifestation of her disability and the parent disagrees?
If the school decides that the behavior was not a “manifestation” of the disability, it may discipline the child. The parent can request a special education hearing to challenge this decision. The hearing must be concluded within 20 school days, and the Hearing Officer must reach a decision in 10 more school days. If the
-6Hearing Officer agrees with the parent that the child’s behavior was a manifestation of the disability, he must order the school to return the child to the placement she was in before the misbehavior. If the Hearing Officer disagrees with the parents, the school can suspend or even expel the child, or transfer her to an alternative school.
Question 3: What happens if my child’s misbehavior involved drugs, a weapon, or serious injury to someone (special circumstances)?
A student’s misbehavior is a “special circumstances” if it involves illegal drugs, weapons, selling prescription drugs, or serious bodily harm to another person at school or a school-related activity. “Serious bodily injury” must be really serious to count – pushing someone (even a teacher) or scratching them should not be enough. Call us if you have questions about this rule. If your child’s misbehavior is one of these “special circumstances,” the school can immediately move your child to an alternative educational setting (alternative school) for up to 45 school days even if the child has mental retardation, and even if the school agrees with the parent that the misbehavior was a “manifestation” of the student’s disability.
For example, if your child has mental retardation and a teacher finds a marijuana joint in your child’s pocket, the school can immediately transfer your child to an alternative school for up to 45 school days. The school must still have a “manifestation” meeting within 10 school days. If the Team decides that having the joint was a manifestation, it must conduct a functional behavior assessment and/or revise your child’s behavior plan, but your child can still be forced to stay in the alternative school for the rest of the 45 days.
Are there other ways that a school can send my child to (or force my child to stay in) an alternative school without my permission?
Remember, a school can always transfer a child with a disability to an alternative school if the parent agrees. Remember also, even when the parent disagrees, the school can transfer the child to an alternative school if either (1) the behavior is not a manifestation of the disability and the school’s published discipline rules allow the child to be transferred for his misbehavior, or (2) the
-7behavior involved drugs, a weapon, or serious injury to another person.
In addition, a school also has the power to ask a Hearing Officer to transfer the child to an alternative school for up to 45 school days – even if the child has not done anything wrong at school. The school must prove to the Hearing Officer that keeping the child in the current placement is dangerous. (The test is whether keeping the child in her current school “is substantially likely to result in injury to the child or to others.”) If the school cannot prove this to the Hearing Officer, then the child may not be transferred.
If your child has already been transferred to an alternative school for 45 days because her misbehavior involved a “special circumstance” (drugs, weapon, or serious injury to another person), a school can ask a Hearing Officer to order that she stay in the alternative school for another 45 school days. The school must prove that it would be dangerous to return the child to her old IEP setting.
If my child has been suspended, expelled, or transferred to another educational placement, will she still receive any special education services?
Any student who is suspended has the right to make up the school work she misses. This State law applies even if the suspension is so short that it doesn’t count as a “change in placement.” If a school “changes the placement” of a child with a disability, federal law requires the school to provide her with enough educational services to participate in the general education curriculum and make progress on her IEP goals. This is true even if the child has been expelled or transferred to an alternative school. In addition, when the school “changes the placement” of a child for discipline reasons, it must hold an IEP meeting to schedule a functional behavior assessment for the child (if one hasn’t already been done). This assessment should give the IEP Team information on the things that “trigger” the child’s misbehavior and give the Team suggestions on how to prevent the misbehavior. The IEP Team should also write or revise the child’s behavior plan.
-8What if I think my child has a disability, but she does not have an IEP?