SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES

Chapter 8

Information on Discipline of Students with Disabilities

From a 13-Chapter Manual

Available by Chapter and in Manual Form

Written by:

Community Alliance for Special Education (CASE)

and

Protection and Advocacy, Inc. (PAI)

Copyright © 1992 by CASE and PAI

Ninth Edition

Revised December 2005

Written permission of the Community Alliance for Special Education (CASE) and Protection and Advocacy, Inc. (PAI) must be obtained for duplication of the materials contained in Special Education Rights and Responsibilities.

These materials are based on special education laws and court decisions in effect at the time of publication. Federal and state special education law can change at any time. If there is any question about the continued validity of any information in the handbook, contact CASE, PAI or a legal authority in your community.

 

Federal special education law was significantly amended by Congress in 2004 and will be further clarified by regulations from the U.S. Department of Education in 2006. The California Education Code has been amended to reflect some of the federal law changes but not all.  In certain circumstances where it provides greater protections or entitlements, California law will continue to control special education pupils’ rights unless it is amended to completely conform to federal law.

CASE and PAI will monitor the development of conforming state law and regulations, so that revised state laws and regulations can be incorporated into later supplements and editions of SERR.

For further information on the development of federal and state law and regulation, or clarification about IDEA implementation, please contact CASE or PAI.

 

Community Alliance for Special Education (CASE) provides legal support, representation, technical assistance consultations, and training to parents throughout the greater San Francisco Bay Area whose children need appropriate special education services. Trained advocates and attorneys assist parents at IEP meetings, Mediation Conferences and Due Process Hearings. CASE also provides free consultations about special education rights and services to parents and professionals by telephone or face-to-face. CASE is a nonprofit organization serving all children with disabilities who need or may need special education services. For more information, contact:

CASE

 

Protection and Advocacy, Inc. (PAI), is a private, nonprofit organi­zation that protects the legal, civil and service rights of Californians who have develop­mental or mental disabilities. PAI provides a variety of advocacy services, including information and referral, technical assistance, and direct representation. For information or assistance with an immediate problem, call:

PAI

Toll Free: (800) 776-5746

9:00 AM to 5:00 PM - Monday through Friday

 

 

PAI receives funding under the Developmentally Disabled Assistance and Bill of Rights Act and the Protection and Advocacy for Mentally Ill Individuals Act. Any opinions, findings, recommendations or conclusions expressed in this publication are those of the authors and do not necessarily reflect the views of the organizations which fund PAI.

SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES

TABLE OF CONTENTS

Chapter 1             Information on Basic Rights and Responsibilities

Chapter 2             Information on Evaluations/Assessments

Chapter 3             Information on Eligibility Criteria

Chapter 4             Information on IEP Process

Chapter 5             Information on Related Services

Chapter 6             Information on Due Process Hearings/Compliance Complaints

Chapter 7             Information on Least Restrictive Environment

Chapter 8             Information on Discipline of Students with Disabilities

Chapter 9             Information on Interagency Responsibility for Related Services (AB 3632/882)

Chapter 10        Information on Vocational Education

Chapter 11        Information on Preschool Education Services

Chapter 12        Information on Early Intervention Services

NOTE:              The text in each chapter refers to specific Questions in other chapters by using the titles shown above.

 

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SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES

Chapter 8

Information on Discipline of Students with Disabilities

TABLE OF CONTENTS

Question                                                                                    Page

1.      SUPERSEDED. SEE ONLY CHAPTER 1, QUESTIONS AND ANSWERS 37 THROUGH 37(B). Under what circumstances can a school district suspend or expel a student with disabilities?. 1

2.      For what reasons can a school district suspend or expel my child?. 1

3.      SUPERSEDED. SEE ONLY CHAPTER 1, QUESTIONS AND ANSWERS 37 THROUGH 37(B). Are there any limitations on suspension of students with disabilities?. 4

4.      SUPERSEDED. SEE ONLY CHAPTER 1, QUESTIONS AND ANSWERS 37 THROUGH 37(B). Are there any limitations on a school district’s right to expel a student with disabilities from school?. 6

5.      SEE ALSO CHAPTER 1, QUESTION AND ANSWER 37(B), ITEM 3). While the manifestation determination process is going on, does my child have a right to stay in his school?. 8

6.      SUPERSEDED. SEE ONLY CHAPTER 1, QUESTIONS AND ANSWERS 37 THROUGH 37(B). What are the rules regarding interim alternative educational setting placements for special education students accused of drug or weapons offenses?. 9

7.      SUPERSEDED. SEE ONLY CHAPTER 1, QUESTIONS AND ANSWERS 37 THROUGH 37(B). What are the rules regarding interim alternative educational setting placements made by hearing officers for special education students who the school contends are substantially likely to cause injury to themselves or others in their current placements?. 10

8.      The school changed my child’s placement for disciplinary reasons. I have not appealed yet but the school told me that stay put would not apply even if I do appeal because the change was not really a change of placement because my child will be receiving the same basic services he received in his previous placement. Is that true?. 12

9.      SUPERSEDED. SEE ONLY CHAPTER 1, QUESTION AND ANSWER 37(A). How do I prepare for the IEP meeting where the relationship between my child’s disability and behavior will be reviewed?. 12

10.   My child, who is being expelled, has not been made eligible for special education; but I believe he would qualify if the school district assessed him. What will happen with my child’s placement while we are waiting for the results of that evaluation?. 13

11.   SUPERSEDED. SEE ONLY CHAPTER 1, QUESTION AND ANSWER 37(C). My child, who is being expelled, has not been made eligible for special education; but I believe she would qualify if the school district assessed her. Is my child protected by any special rules regarding discipline procedures for students with disabilities who have not been officially recognized by the school district?. 13

12.   SUPERSEDED. SEE ONLY CHAPTER 1, QUESTION AND ANSWER 37(C). What if I had concerns about my child needing special education but I never put my concerns in writing to the school?. 14

13.   SUPERSEDED AND NO LONGER PART OF SPECIAL EDUCATION LAW. How is the second factor (the behavior or performance of the child demonstrates the need for special education services in accordance with having a special education qualifying condition) interpreted and applied?. 14

14.   SUPERSEDED AND NO LONGER PART OF SPECIAL EDUCATION LAW. How far back will the hearing officer look for evidence of a qualifying disability in the context of determining whether my child’s behavior or performance demonstrated the need for special education due to a qualifying condition?. 16

15.   What if I requested a special education evaluation for my child but I did not do it in writing?. 16

16.   What form does the teacher’s or other staff member’s expression of concern about behavior or performance have to take?. 17

17.   The district assessed my child and determined him ineligible (or at least had considered whether to assess him and decided against it). The district told me I had a right to appeal the denial of eligibility (or the refusal to assess) but I didn’t. Does my child have any protection?. 17

18.   May my child be expelled from just the transportation portion of her school program?. 18

19.   What can I do if a teacher or other school staff person hurts my child?. 19

20.   Are there any special rules governing the discipline of students identified as “disabled” under Section 504 of the Rehabilitation Act of 1973?. 19

21.   My child was expelled from school. What are his rights to return to school in the school district that expelled him?. 21

22.   What rules govern the readmission process?. 21

23.   My child was expelled from our school district. What are the rules governing admission of my child to a new school district?. 22

24.   My child has behavior problems that may put her at risk of suspension and/or expulsion. Are there any special services or protections that apply to her?. 23

25.   Do the new positive behavior intervention regulations specifically prohibit some behavior programming or techniques?. 24

26.   Do the new positive behavior intervention regulations have any impact on the discipline of special education students?. 25

27.   I have been unsuccessful in establishing that my child’s behavior was a manifestation of his disability or the result of an inappropriate placement, and there will be a regular expulsion hearing. What are the rules for such a hearing and for any appeals of the results?. 26

 

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SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES

Chapter 8

Information on Discipline of Students with Disabilities

1.              SUPERSEDED. SEE ONLY CHAPTER 1, QUESTIONS AND ANSWERS 37 THROUGH 37(B). Under what circumstances can a school district suspend or expel a student with disabilities?

Students with disabilities generally are treated the same as their nondisabled peers in suspension cases. Both state and federal law severely restrict a school district’s ability to expel special education students. A description of these restrictions is set forth in the subsequent sections of this chapter. Even if a special education student meets the legal criteria for expulsion, the law requires that the student continue to receive a Free Appropriate Public Education while expelled or suspended for a period in excess of ten school days, which accumulate during a school year. [20 United States Code (U.S.C.) Secs. 1412(a)(1)(A) and 1415(k); 34 Code of Federal Regulations (C.F.R.) Sec. 300.520.] Thus, unlike a regular education student, a special education student does not suffer a cessation of educational services during a suspension or expulsion in excess of the ten-day limit, but he will suffer a change of placement to an alternative setting. (For the specific requirements of the alternative setting see Questions 3 and 4.)

2.              For what reasons can a school district suspend or expel my child?

The grounds for suspension or a recommendation of expulsion are the same for children with and without disabilities. The permissible grounds for taking disciplinary action under Cal. Ed. Code Sec. 48900 are:

(1)           Causing or threatening physical danger to another;

(2)           Possessing a knife, gun, or other dangerous object without school authorities’ permission, or furnishing such an object;

(3)           Unlawfully possessing, using, or furnishing a controlled substance or alcoholic beverage, or being under the influence of such a substance or beverage;

(4)           Offering or furnishing a substance misrepresented to be a controlled substance or alcoholic beverage;

(5)           Committing robbery or extortion;

(6)           Damaging or attempting to damage school or private property;

(7)           Stealing or attempting to steal school or private property;

(8)           Possessing or using tobacco in an unauthorized manner;

(9)           Committing an obscene act or engaging in habitual profanity or vulgarity;

(10)        Dealing in drug paraphernalia;

(11)        Disrupting school activities or otherwise willfully defying school authorities;

(12)        Knowingly receiving stolen school or private property;

(13)        Possession of an imitation firearm that appears to be real;

(14)        Commission or attempt to commit a sexual assault, commission of a sexual battery;

(15)        Harassment, threat, or intimidation of a pupil who is a witness in a school disciplinary proceeding;

(16)        Engaging in sexual harassment which a reasonable person of the same gender as the victim would consider sufficiently severe or pervasive as to have a negative impact on such a victim’s academic performance or to create an intimidating, hostile, or offensive educational environment; [See Cal. Ed. Code Sec. 48900.2.]

(17)        Causing, attempting to cause, threatening to cause, or participating in acts of hate violence, which is defined as injuring or interfering with a person’s exercise of any constitutional or other legal rights because of the person’s or a perception of the person’s, race, color, religion, ancestry, national origin, disability, gender, or sexual orientation; [Cal. Ed. Code Sec. 48900.3, Cal. Penal Code Sec. 422.6.]

(18)        Intentionally engaging in harassment, threats, or intimidation, directed against a pupil or group of pupils that is sufficiently severe to disrupt classwork, create substantial disorder, and invade the rights of the pupil or group by creating an intimidating or hostile educational environment; [Cal. Ed. Code Sec. 48900.4.]

(19)        Making terrorist threats against school officials or school property. This includes any oral or written statement threatening to commit a crime which will result in death, great bodily injury, or property damage in excess of $1000. [Cal. Ed. Code Secs. 48900 and 48900.1.]

Suspension or expulsion for any of these acts must be related to school activity or attendance. This includes misconduct which occurs on school grounds, while going to or coming from school, during lunch (whether on or off campus), during a school sponsored activity, or while going to or coming from a school sponsored activity. [Cal. Ed. Code Sec. 48900(p).]

School districts should use alternatives to suspension or expulsion to address problems of truancy, tardiness, and other absences from school activities. [Cal. Ed. Code Sec. 48900(q).]

Suspension is appropriate only after other means of correction fail to bring about proper conduct. [Cal. Ed. Code Sec. 48900.5.] A student may be suspended on a first offense only for reasons (1) through (5) above, or because her presence causes a danger to persons or property, or threatens to disrupt the educational process. [Id.]

Expulsion is appropriate only if the student:

¨              Committed the offenses listed in (1) through (5) above or

¨              Committed the offenses listed in (6) through (12) above and either:

·                 Other means of correction are not feasible or have failed repeatedly; or

·                 The student’s presence causes a continuing danger to the physical safety of the student or others.

[Cal. Ed. Code Sec. 48915.]

The Cal. Ed. Code at Sec. 48915(a) requires that a principal or superintendent recommend expulsion if the student commits any of the following acts (unless he finds that expulsion is inappropriate due to the particular circumstance):

(1)           Causing serious physical injury to another, except in self-defense;

(2)           Possession of any knife, explosive, or other dangerous object of no reasonable use;

(3)