October 10, 2003 98-R-0813

FROM: Judith S. Lohman, Principal Analyst

RE: Discipline of Special Education Students

You asked if a school system can expel a special education student for violating its policies, if there are limits on what a special education student can be expelled for, whether parents have the final say on whether the student is expelled or on the expelled student's educational plan, and what laws cover expulsion of special education students.

SUMMARY

Both state and federal law govern expulsion of special education students and both laws allow such a student to be suspended or expelled under certain conditions. A special education student can be suspended from school or placed in an alternative educational setting for up to 10 days for any misconduct that would result in a similar action against a non-special education student. In the case of such short suspensions, there is no requirement for alternative education and no requirement that a district determine whether or not the student's behavior is the result of his disability.

For a longer suspension or expulsion, additional procedural requirements apply under federal law. If a special education student's misconduct is a manifestation of his disability, he cannot be expelled under either state or federal law. But he may be placed in an alternative educational setting and other steps must be taken to address his behavior. If a special education student's misconduct does not stem from his disability, he may be expelled like any other student. But, although school districts are not required to offer nondisabled students alternative education services when they are expelled if they are over age 16, they must offer such an opportunity to an expelled special education student until he is 21.

Parents may appeal decisions regarding discipline of their disabled children in accordance with the procedural requirements of state and federal special education laws. But parents do not have the “final say” on their child's placement or the discipline they receive in school.

For your further information on this topic, we enclose an article on the requirements for disciplining special education students under federal law published on-line by the Council for Exceptional Children, a special education advocacy group.

FEDERAL LAW

The federal Individuals with Disabilities Education Act of 1997 (P.L. 105-17), known as IDEA, enacted new and more explicit rules for disciplining special education students. In general, whenever a special education student's educational placement is challenged, the student must remain in his current placement pending the outcome of appeal proceedings, unless the school district and the student's parents agree otherwise. This provision, which has always been part of the federal special education law, is known as the “stay-put” requirement. But IDEA made exceptions to the stay-put requirement to allow a school district to place a student in an alternative educational setting for disciplinary reasons.

Suspensions for Up to Ten Days

IDEA gives school personnel explicit authority to move a special education student to an appropriate alternative educational setting, or to suspend such a student from school entirely, for up to 10 days for any violation of school policy that would result in similar discipline of a child without a disability. According to the law's legislative history, this provision is merely a codification of the law as it existed before 1997 (House Report No. 105-95, p. 108). A policy letter issued by the U.S. Department of Education on September 19, 1997, states that school districts are not required to offer special education services to disabled children suspended for fewer than 10 days and they do not have to review the student's individualized educational plan (IEP). In addition, under the federal law as interpreted by the Education Department, for short suspensions districts to not have to determine whether the action that led to the suspension was caused by the student's disability (OSEP 97-7, copy enclosed).

45-Day Alternative Placements

Drugs and Weapons. Federal law also allows school districts to move a disabled child to an appropriate alternative educational placement for up to 45 days if (1) the student carries a weapon to school or to a school function or (2) the student knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance at school or at a school function. The law defines a weapon as any device used for or readily capable of causing serious bodily injury or death excluding a pocketknife with less than a 2 1/2-inch blade.

Either before or within 10 days of exercising this authority, a district must convene an individualized program team (or, as commonly known in Connecticut, a planning and placement team or PPT) meeting to either (1) conduct a functional behavioral assessment and develop a behavior implementation plan for the child if it did not already do so before he engaged in the behavior, or (2) review and, if necessary, modify the existing plan to address the behavior.

Behavior Substantially Likely to Injure the Child or Someone Else. The federal law allows a special education hearing officer to order a child's placement to be changed to an appropriate alternate education setting for up to 45 days if he (1) finds “substantial evidence” (defined as a preponderance of evidence) that the child's current placement is likely to lead to injury to himself or someone else; (2) considers whether the school district has made reasonable efforts to minimize the risk of the child's current placement, including using supplemental aids and services; and (3) determines that the proposed alternative placement meets the requirements of the law (see below).

Alternative Educational Placement Requirements

In general, when a student is placed in an alternative educational setting as a response to misconduct, the PPT must determine the alternative educational placement. Such a placement must (1) enable the child to participate in the general curriculum, though in a different setting; (2) allow him to continue to receive the services and modifications, as described in his individualized educational plan (IEP), that will allow him to meet the plan's goals; and (3) include services designed to address the behavior that resulted in the alternative placement so that it does not recur.

Other Requirements

Before school authorities or hearing officers change a special education student's placement for more than 10 days for disciplinary reasons, they must (1) no later than the date the decision is made, notify the child's parents of the decision and of all procedural safeguards and (2) immediately but in no case later than 10 school days after taking the action, conduct a review to determine the relationship between the child's disability and his behavior.

Review of Relationship of Behavior to Disability. The review must be carried out by the child's PPT. The PPT may not determine that the child's behavior was unrelated to his disability unless it (1) considers all relevant information, including evaluation and diagnostic results, including such results and relevant information supplied by the child's parents, observations of the child, and the child's IEP and placement; and (2) then determines that (a) in relation to the behavior, the child's IEP and placement were appropriate and the services, supplemental aids and services, and behavior intervention strategies provided were consistent with the child's IEP and placement and (b) his disability did not impair the child's ability to understand the disciplinary consequences of his behavior or to control his behavior.

If the PPT determines that the child's behavior was not a manifestation of his disability, he may be disciplined in the same manner as a nondisabled child, except that the district must offer an alternative educational program to any special education child under 21 who is suspended or expelled from school. In addition, if a school district initiates disciplinary procedures against a special education child that are applicable to all children, it must ensure that the child's special education and disciplinary records are transmitted for consideration by the person making the final determination about the disciplinary action.

Appeals by Parents

Parents who disagree with a PPT determination that their child's behavior is not a manifestation of his disability or with any decision regarding placement may request a hearing and the state or local education agency must arrange for the hearing to be expedited. In reviewing a decision about the relationship of the behavior to the disability, a special education hearing officer must follow the same steps as the PPT described above. In reviewing a decision regarding an alternative placement, the hearing officer must apply the standards for alternative placements already described.

Placement During Appeal

While a decision is being appealed, the child must remain in the alternative educational setting until the hearing officer's decision or until the 45-day period expires unless the parent and the state or school district agree otherwise. Once the 45-day period expires, the child must be returned to his previous placement and remain there during the appeal. If school personnel contend that it is dangerous to return the child to his earlier placement, it may request an expedited hearing. In determining whether the child may be kept in the alternative setting or placed in another appropriate setting, the hearing officer must use the standards for alternative placements already described.

Child Not Yet Determined Eligible for Special Education

Any child who has not been determined eligible for special education and who engages in behavior that may result in discipline may assert the protections of the special education law if the school district knew the child had a disability before the behavior occurred. A district is considered to “know” a child has a disability if (1) the child's parent has expressed concern in writing (unless the parent is illiterate or has a disability that prevents him from writing) to school personnel that the child needs special education, (2) the child's behavior or performance demonstrates the need for special education, (3) the child's parent has requested a special education evaluation, or (4) the child's teacher or other school staff members expressed concern about the child to the special education director or other special education staff.

If the school district has no knowledge that a child might be or is eligible for special education, the child is subject to the same discipline as a nondisabled child. But if there is a request for the child to be evaluated during either a 10-day or 45-day suspension or alternative placement period, the evaluation must be expedited. If, after the evaluation, the child is determined to be eligible for special education, the school district must provide it. While the evaluation is conducted, the child must remain in the educational placement determined by school authorities.

Law Enforcement and Judicial Authorities

Regardless of these requirements, a school district may report a crime committed by a child with a disability to appropriate authorities. State law enforcement and judicial authorities may carry out their responsibilities under state and federal law with respect to any crimes committed by a child with a disability. When a school district reports a crime committed by a child with a disability, it must ensure that the child's special education and disciplinary records are transmitted to the appropriate authorities.

STATE LAW

Under state law, a special education student cannot be expelled for conduct caused by his disability. Before a board may conduct an expulsion hearing on a special education student, the law requires the child's PPT to convene to determine whether his misconduct was caused by his disability. If the PPT finds that it was, the student cannot be expelled. But the PPT must reevaluate the child in order to modify his IEP to address the misconduct and assure the safety of other children and school staff.

If the child's disability did not cause the misconduct, he may be expelled after a hearing. But the board must offer him an alternative education program that meets his needs during the expulsion period (CGS §10-233d(i)).

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