Special Education Discipline: Suspensions and Expulsions
Is disciplining a special education student different than a non-special education student?
Yes! Special education students have more protections when facing discipline at school. The purpose of those protections is to make sure that a child is not missing many days of the services that they need. The protections also make sure that students with disabilities are not being disciplined due to their disability.
Can a special education student get suspended?
Unfortunately yes. A special education student can get suspended just like their non-disabled peers. But a special education student must still be educated and receive services while out on suspension if the discipline is considered a “change in placement.” A “change of placement” is when a student:
- Is removed from school for more than 10 school days in a row, or
- Is removed from school for more than a total of 10 school days in a school year if the behaviors that lead to the suspension are “substantially similar” or very much alike.
This means it is possible for there to be no change in placement even if a child is removed from school for more than 10 days. It all depends on the facts. If the school determines that it is a change of placement, services could take place in the school setting or outside of the school setting.
A “manifestation determination” also needs to happen if a change of placement has occurred. (See below)
Whether the discipline is considered a change in placement, where services will be provided, and the manifestation determination will be determined by the IEP Team.
What happens at a manifestation determination meeting?
An IEP Team meeting is held to decide if a student’s behaviors are “substantially related” to the child’s disability. If it is decided that the behavior is substantially related to the child’s disability, the child cannot be removed from school. The IEP team will review:
The child's file
The child's IEP
Any teacher observations
Any information provided by you. You can bring in outside evaluations or reports from your child's counselor for the team to review.
In deciding if there is a manifestation, the team will answer 2 questions:
Was the behavior caused by or directly and substantially related to the child's disability?
Was the behavior a direct result of the school's failure to implement the child's IEP?
If the answer to one of these questions is "yes," then the behavior is a manifestation of the child’s disability. Remember, you are an equal member at an IEP Team meeting! Be sure to explain why you think your child behaved inappropriately and how you think it is related to his or her disability.
What happens if the behavior is a manifestation of a child’s disability?
When there is a manifestation, the child cannot be further disciplined. This means the child cannot be recommended for expulsion or continue to be suspended for that behavior.
Instead, the IEP needs to be changed to address your child's behaviors. If the school did not follow the IEP, it must follow it immediately.
The IEP team must also conduct a functional behavioral assessment (FBA) unless one was completed earlier. The FBA will try to figure out the child's behaviors by looking at:
What makes the child’s behavior happen?
When does the behavior happen?
What is your child trying to get from the behaviors (attention, avoidance, etc.).
Once the FBA is completed a behavior plan must be put in place. If the child already had a behavior plan, it should be changed to address the behavior. The behavior plan should become part of the child's IEP.
The child should also be returned to the placement they were in before they were removed from school, unless:
The IEP Team decides to change the placement at the meeting, or
The school places your child in an
A child can only be placed in an IAES if 1 of 4 things happened:
- The child brought a weapon to school, on school grounds or at a school event.
- The child had illegal drugs at school, on school grounds, or at a school event.
The child inflicted serious bodily injury on another person at school, on school grounds or at a school event, or
The school asked for and won a due process hearing before the State of Maine Department of Education because the school was afraid your child was dangerous and was "substantially likely" to injure himself or someone else.
IMPORTANT: If a child did not have a weapon or drugs at school or did not cause serious bodily injury to another person while at school, on school premises or at a school event, the school cannot just place them in an IAES. The school must request a due process hearing before putting a child in an IAES. At the hearing, the school must prove that a child's continuation in his current placement is "substantially likely to result in injury to the child or to others." If the school does not prove this, your child cannot be put in an IAES.
In all cases, the IAES can be for only 45 school days. It is a temporary placement that gives the IEP Team time to develop an appropriate IEP while keeping the child and the school safe. The IEP Team decides what the IAES should be. Remember, the IAES must allow the child to advance in the general curriculum, meet his IEP goals, and address his inappropriate behavior. Again, you are an equal participant in the IEP Team meeting. You can invite other people who know your child to the IEP Team meeting. For example, if your child has a counselor or case manager who can talk about your child's behaviors and needs, invite him/her to attend in person or by phone. Make sure that your child's needs are being met in the IAES.
What if the behavior not a manifestation of the child’s disability?
If the IEP Team decides there is no manifestation, then your child can be disciplined just like any other student. This means he can be recommended for expulsion before a school board if the school wants him removed for more than 10 school days. Remember, your child must still receive educational services after being removed from school for more than 10 school days in a school year.
If you disagree with the manifestation determination, you can request a due process hearing. Your child will stay in his current educational placement (Stay Put). This can include the IAES if your child is placed there. You can ask for an expedited hearing.
What kind of services can a child get when removed from school?
If a student with a disability is removed from school for more than 10 school days in a school year, he must get educational services. The school district must make the arrangements. The services will be somewhere other than the school. This is true even if your child is expelled after a school board hearing. The services must allow the child to:
Progress in the general curriculum,
Progress toward his IEP goals, and
If appropriate, include a and a behavior plan that addresses the behaviors that caused the child to be removed from school.
If the removal is a change of placement, the IEP Team will decide what the services are. The IEP will then be changed. If your child have been out of school for more than 10 school day in a school year because of a series of short-term suspensions that do not amount to a change of placement, the IEP Team does not have to meet. Instead, an appropriate school staff person can decide what the services will be during your child's removal after talking with one of your child's teachers.
Is two hours a day of tutoring enough?
Tutoring by itself is probably not appropriate. It is a very restrictive placement because there is no contact with peers. Tutoring, along with other services, may be appropriate.
Think about the child's IEP goals. How will they be addressed? Also think about how your child's behaviors will be addressed? Remember, the educational services your child gets must allow him to advance in the general curriculum and meet his IEP goals.
If your child is tutored, the tutor must be a certified special education teacher, certified regular education teacher or an ed tech 3. The State regulations are clear that there is no maximum on the number of hours of tutoring a day. A school policy of giving 2 hours of tutoring a day is not appropriate.
A tutoring program must be decided by the IEP Team and must be based solely on your child's needs, not school policy or practice. If tutoring will last more than 10 school days, a new IEP must be developed.
Can a child be referred for special education services while suspended or expelled?
Yes. If a referral is made, the evaluations must happen quickly.
You can also claim the extra protections explained above (a manifestation determination and educational services when your child has been removed from school for more than 10 school days in a school year) if the school had knowledge that your child was a student with a disability.
The school is deemed to know that if:
The parent expressed concern in writing to a school administrator or the child's teacher that they believe the child needs special education services,
The parent requested an evaluation of the child, or
A teacher or other school staff expressed concerns about a child's pattern of behaviors to the special education director or other school staff person with supervisory responsibility.
A child will not be eligible for the extra protections if:
The school requested an evaluation and the parent or adult student said no,
The school offered special education services and the parent or adult student said no, or
The child was evaluated and the IEP Team decided that they do not have a disability under IDEA.