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The Law Relative to Suspensions, Expulsions & IDEA


Below is a great summary of important case law and the Individuals with Disabilities Education Act ("IDEA") all relative to Suspensions and explusions. Good stuff provided to me by James Foster. I am indebted to him and We are both indebted to Rebecca K. Spar, Esq. and here law firm for creating this document and making it available to the public.

DISCIPLINE: LEGAL ISSUES OF SUSPENSION AND EXPULSION

REBECCA K. SPAR, ESQ.

COLE, SCHOTZ, MEISEL, FORMAN & LEONARD, P.A.

I. CONSTITUTIONAL DUE PROCESS PROTECTIONS AVAILABLE TO ALL STUDENTS

A. In General

In addition to the procedural rights granted under the Individuals with Disabilities Education Act ("IDEA") it is important to remember that children with disabilities are entitled to all of the procedural due process protections every student is entitled to when faced with a short term or long term exclusion from school. Courts have held that public education is a property interest protected by the 14th Amendment and that suspension and expulsion impact on a student's liberty interest in reputation, honor and integrity and standing with teachers and fellow students. Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729 (1975).

B. Minimal Procedural Protections

Procedural protections which must be provided for all suspensions/expulsions are: 1) oral or written notice of what the student is accused of doing and the reasons for the accusations; 2) if the student denies the charges, an explanation of the evidence on which the charges are based; 3) an informal hearing or meeting with an impartial school administrator such as the superintendent or principal to explain the student's side of the story before a suspension is imposed. Goss v. Lopez, supra; Jordan v. School District of City of Erie , 583 F.2d 91, 94(3d Cir. 1978.

C. Long Term Suspensions/Expulsions

Whenever a long term suspension or expulsion is imposed, the student is entitled to a hearing before the district board of education; with the opportunity to cross-examine the district's witnesses and put on his/her own witnesses. Black Coalition v. Portland School Dist. No. 1, 484 F.2d 1040, 1045 (9th Cir. 1973); Tibbs v. Board of Educ., 114 N.J.Super. 287, 295-96 (App. Div. 1971)(expulsions set aside for failure to provide accusing witnesses for testimony and cross-examination). Cf. Board of Educ. of City of Plainfield v. Cooperman, 105 N.J. 587 (N.J. 1987)(with regard to guidelines for admission of children with AIDS, the right to call witnesses and attendant right to cross-examine must be provided automatically upon request of the parties).

In New Jersey, state statutes provide that the hearing is to be within 21 days of suspension unless the incident involved an assault against school personnel without a weapon or a gun, in which case, the hearing is to be within 30 days. N.J.S.A. 18A:37-1 to -5.

D. Consequences of Failing to Provide Constitutional Procedural Protections

Failure to comply with Constitutional procedural requirements can be grounds for reversal and for immediate reinstatement of the student in school. R.R. v. Board of Educ. of Shore Regional H.S. District, 109 N.J.Super. 337 (Ch. Div. 1970); L.T. v. Long Branch Board of Education, 96 N.J.A.R.2d (EDU 125; C.F. v. City of Wildwood Board of Education, 96 N.J.A.R. (EDU) 619.

School authorities may also be liable for money damages in suits brought by students for wrongful suspension or expulsion. A student who has been suspended or expelled unlawfully may sue for money damages under the Civil Rights Act of 1871, 42 U.S.C. § 1983. If the school board member or official knew, or reasonably should have known, that the student was removed from the school without following proper procedure in violation of his/her due process rights, or in violation of any other constitutional right (such as free speech) or statutory right, of if the school official took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student, the school official may be held liable. Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 1001 (1975); T.L.O. v. Engrud , 94 N.J. 331, 349 (1983), rev'd on other grounds, New Jersey v. T.L.O., 469 U.S. 325 (1985). See also Jackson v. Franklin Co. Scho. Bd., 806 F.2d 623 (5th Cir. 1986).

E. Lowering Grades/Marks as Punishment

Some courts have held that teachers cannot lower grades or marks as punishment for absences due to suspensions. Wetherel v. Bd. of Educ. of Tp. Of Burlington, 1978 S.L.D. 794, 798; Babbit v. Moran, 1974 S.L.D. 145, 149 (student must be given the opportunity to make up the work missed because of the suspension and teachers must grade the work as if it had been completed on time).

II. SCHOOL DISTRICT'S AFFIRMATIVE OBLIGATION TO ADDRESS BEHAVIORAL ISSUES

Under the IDEA, the IEP team must address behavioral issues when developing an IEP before discipline even becomes an issue. Whenever the child's behavior impedes his learning or that of others, the team must consider strategies, including positive behavioral interventions, and supports to address the challenging behavior. 20 U.S.C. §1414(d)(3)(B)(i); 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R. 300.346(a)(2)(i). See also OSEP Memorandum, 26 IDELR 181 (1997).

The district's duty begins well before any behavioral incidents resulting in discipline occur. A failure to, if appropriate, consider and address behaviors in developing and implementing the child's IEP constitutes a denial of FAPE. In addition, "the regular education teacher of the child, as a member of the IEP team, shall to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel consistent with paragraph (1)(A)(iii). See Daleville City Bd. of Educ., 28 IDELR 114 (SEA Ala. 1998) (holding that the District did not make even colorable attempt to identify appropriate short term objectives and develop a systematic behavioral plan to be implemented by all teachers).

III. SHORT-TERM SUSPENSION

A. Removal For 10 School Days or Less:

1) A school district may discipline a disabled student by removing the student to an appropriate interim alternative educational setting, another setting or suspending the student for up to 10 or less consecutive school days. 20 U.S.C. §1415(k)(1)(A)(i); 34 C.F.R. 300.520(a))1))i).

2) Procedural protections

Even for a suspension of 10 days or less, the student is entitled to the minimal procedural protections set forth under Point I.B., supra.

32) Do in-school suspensions count towards the 10 school days?

(a) Daleville City Bod. Of Educ., 28 IDELR 144 (SEA Ala. 1998)(held that district erred in failing to conduct manifestation determination following in-school suspensions); Yough School District v. M.S., 23 IDELR 807 (Penn. Cm. Ct. 1995)(assumes without deciding that in-school suspensions count towards 10 school days); Greenville County (SC) Sch. Dist., 17 EHLR 1120 (OCR 1991)(in-school suspensions may constitute a significant change in placement if there is an interruption in services or educational program); Big Beavor Falls Area Sch. Dist. v. Jackson, 19 IDELR 1019 (Penn. Cm. Ct. 1993)(suspending student for 14 days and putting her on in-school suspension for an additional 11 days effectively excluded student from school where she was given the option of remaining in the ISS or going home and on at least occasions she chose to go home).

(b) But see, Marysville (WA) Sch. Dist. No. 25, 25 IDELR 992 (OCR 1996)(district did not exceed 10 days with 9 days out of school suspension and 11 days in-school suspension); Clear Creek, 28 IDELR 1081 (OCR, Tx 1998)(student had not been suspended more than 10 days where suspensions consisted of three full days, 6 partial days out of school, along with 9 detentions and 15 days of in-school suspensions); Chester Co. (TN) Sch. Dist., 17 EHLR 301 (OCR 1990)(in-school suspensions in excess of 10 days don't constitute a change in placement).

B. Additional Removals of Less than 10 school Days in the Same School Year:

1) Additional "short-term" removals of less than 10 school days in the same school year are permissible as long as the removals beyond the first 10 school days are not part of a "pattern of exclusion". 20 U.S.C. § 1415(k)(1)(A)(i); 34 C.F.R. 300.520(a)(1)(i).

2) A "pattern of exclusion" is a series of removals which amounts to more than 10 school days in a school year. Whether a pattern exists must be determined on a case-by-case basis and is determined by such factors as length of each removal, the proximity of the removals to one another and total amount of time the child is removed. 34 C.F.R. 300.519.

3) Who determines if there is a pattern of exclusion?

The law does not specify who determines if there is a pattern of exclusion but since all decisions regarding placement are to be made by the IEP team, it follows that this decision should also be made at a meeting of the IEP team, which includes the child's parent. 20 U.S.C. § 1415(b)(1); 34 C.F.R. 300.501(a)(2).

4) Cases finding "pattern of exclusion":

i. Manchester Sch. Dist. v. M.F., 1994 WL 485754 (D.N.H. 1994)(because the reasons for suspending in excess of 10 days was related to the student's primary disability of emotionally handicapped, the suspensions constituted a pattern of exclusion resulting in a change in placement);

ii. St. Marys (PA) Area Sch. Dist, 16 EHLR 1156 (OCR 1990)(pattern of exclusion where student was suspended four times for a total of thirty-one school days between January 10, 1989 and April 12, 1989 constituted a significant change in placement considering the length of the suspensions, their proximity and the total time suspended).

iii. Rock Island (IL) School District # 41, 353:364 (OCR 1989)(eight suspensions for a total of 24 days during the school year constituted a pattern of exclusion).

iv. San Juan (CA) Unified Sch. Dist., 20 IDELR 549 (OCR 1993)(At least 16 days of home suspension, seven days of on-site suspensions as well as detentions constituted a pattern of exclusions and a significant change in placement).

v. Bay County (Fla) Sch. Dist., 20 IDELR 920 (OCR 1993)(5 out-of-school suspensions from September 2, 1992 through February 26, 1993, for a total of 29 days created a pattern of exclusion).

vi. Cobb County (Georgia) School District, 29 IDELR 1171 (OCR 1993)(pattern of exclusion where student received five out-of-school suspensions totaling 22 days)

5) Convening IEP meeting following 11th day of suspension:

When the repeated suspensions reach a total of more than 10 school days, even if the repeated removals do not constitute a "pattern of removal", the IEP team must meet within 10 business days after the removal that amounts to the 11th day of suspension in the school year. The purpose of the meeting is to conduct a behavioral assessment and as soon as practicable, to develop a behavioral intervention plan. If a behavioral plan has already been implemented, the purpose will be to review its implementation and to modify if necessary. 20 U.S.C. § 1415(k)(1)(B); 34 C.F.R. 300.520(b)(2).

6) IEP team does not have to meet again to review and revise the behavioral plan following additional suspensions in the same school year unless the additional suspensions constitute a change in placement or a team member, including the parent, requests a meeting. 34 C.F.R. 300.520(c)(1)-(2).

7) Is a behavioral assessment or manifestation determination required for suspensions of 10 days or less?

A plain reading of the IDEA statute would result in an answer of "yes". See 20 U.S.C. § 1415(k)(4). There are some cases where hearing officers have assumed a manifestation determination is required even for suspensions of less that 10 days.

See, e.g. In re: Student with a Disability, 30 IDELR 113 (SEA CT 1999)(student's possession of hashish and marijuana not a manifestation of his ability it that his learning disability had no impact on student's judgment or his ability regulate his behavior and there was nothing in the record showing that the student's program or placement were not appropriate).

Similarly, before the federal regulations were enacted, some hearing officers assumed that behavioral assessments as well as manifestation determinations were required for suspensions of less than 10 days. Hacienda La Puente Unified Sch. Dist. (SEA Cal. 1999)(behavioral assessment required before manifestation determination meeting is held).

However, OSEP has taken the position that behavioral assessments and manifestation determinations are not required when the removal is for 10 school days or less. 26 IDELR 181 (1997). See, also Northeast Indep. Sch. Dist., 28 IDELR 1004 (Tx 1998)(manifestation review not required for suspensions of less than 10 days). This view is set forth in the new federal regulations which provide that a functional behavioral assessment (if not previously done) must be conducted only after removing the child for more than 10 school days or commencing a removal that constitutes a change of placement. 34 C.F.R. 300.520(b)(1)(i).

Note, however, that IDEA requires a school district to address behavioral issues when developing an IEP, even if the child's behavior does not result in suspension. 20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. 300.346(a)(2)(i).

Thus, it is appropriate to request an IEP meeting be convened whenever there are behavioral issues which need to be addressed in order for the student to receive FAPE. See, Appendix A, 34 C.F.R. Part 300, Question 28 (in most cases in which a child's behavior impedes his learning or that of others, including behavior that would violate the school's discipline code, proper development of the child's IEP includes positive behavioral interventions, strategies and supports to address the behaviors. Failure to address these behaviors would constitute a denial of FAPE).

8) Can a student ever be disciplined, even with short term suspensions, for behavior that is addressed in the child's IEP?

Appendix A of the federal regulations provides that this would have to be determined on a case by case basis in light of the circumstances of the particular incident. 34 C.F.R., Appendix A, Question 38.

C. Educational Services During Short-Term Suspensions

1) OSEP has interpreted the IDEA to not require the school district to provide any educational services for the first 10 school days of a suspension, if services are not provided to children without disabilities who have been similarly removed. 20 U.S.C. § 1415(k)(1)(A)(i); 34 C.F.R. 300.121(d)(1). See also OSEP Memorandum 97-7, 26 IDELR 181 (1997).

But see, 20 U.S.C. § 1412(a)(1)(A)("a free appropriate public education is available to all children....including children with disabilities who have been suspended or expelled from school").

2) After the 10th school day, educational services must be provided even if subsequent short-term removals do not constitute a "pattern of exclusion". 34 C.F.R. 300.520(a)(1)(ii); 34 C.F.R. 300.121(d)(2).

3) With regard to the nature of educational services, for continued short term removals not constituting a "pattern of exclusion", the school district must "provide services to the extent necessary to enable the child to appropriately progress in the general curriculum and appropriately advance towards achieving the goals set out in the child's IEP..." 34 C.F.R. 300.121(d)(2)(i).

The federal regulations do not require that the interim placement include services designed to address the behavior at issue so it does not recur. Id. This would appear to be contrary to federal statute. 20 U.S.C. § 1415(k)(3))B)(i)-(ii).

4) The federal regulations allow the level of educational services needed to comply with the above to be determined by school officials such as the principal, in consultation with the child's special education teacher, without input from the parent. 34 C.F.R. 300.121(d)(3)(i). This is contrary to IDEA 97's emphasis on strengthening parental involvement, including requiring that parents be involved in meetings with respect to the educational placement of their child. 20 U.S.C. § 1415(b)(1).

IV. LONG-TERM SUSPENSION OR EXCLUSION CONSTITUTING A CHANGE IN PLACEMENT

A. Basis for "Change in Placement" Removal

A suspension or removal of more than 10 consecutive school days, or a series of removals that amount to more than 10 school days in a school year, and form a pattern of exclusion from school constitutes a "change in placement". 34 C.F.R. 300.519.

School districts may impose a suspension or expulsion which constitutes a change in placement in only three circumstances:

If the IEP team conducts a manifestation determination and concludes that the behavior of the student was not a manifestation of the child's disability. 20 U.S.C. § 1415(k)(4); 34 C.F.R. 300.523.

The student carries or possesses a weapon in school or at a school function, or knowingly uses, possesses, sells or solicits illegal drugs while at school or a school function. 20 U.S.C. § 1415(k)(1); 34 C.F.R. 300.520.

The district requests an emergency hearing and proves by substantial evidence that the student is substantially likely to cause injury to himself or others in the current educational setting. 20 U.S.C. § 1415(K)(2)(A); 34 C.F.R. 300.521(a)-(d).

B. Written Notice/Procedural Safeguards/Behavioral Assessment and Manifestation Determination Required

In every case in which the school district imposes a change in placement, on the day of the decision, it must send the parent a written notice of its decision along with a copy of the procedural safeguards notice. 34 C.F.R. 300.523(a)(1).

The IEP team must meet within 10 business days after the date on which the decision to take the action is made and 1) conduct a behavioral assessment and 2) conduct a manifestation review. 20 U.S.C. § 1415(k)(4); 34 C.F.R. 300.520(b)(1)-(2); 34 C.F.R. 300.523. These functions can be performed at the same or different IEP meetings. 34 C.F.R. 300.523(e).

C. Continuation of FAPE

The school district must also continue to provide FAPE to all disabled students who are expelled or suspended long-term. 20 U.S.C. § 1412(a)(1)(A).

D. Manifestation Determination:

1) Purpose

To review the relationship between the child's disability and the behavior subject to discipline. 20 U.S.C. § 1415(k)(4).

2) Standard

To determine whether the child's disability impaired his/her ability to understand the impact and consequences of the behavior subject to discipline and impaired the child's ability to control the behavior subject to discipline. 34 C.F.R. 300.523(c)(2).

The IEP team may find the behavior is not a manifestation of the student's disability only if it:

First considers in terms of the behavior subject to discipline all relevant information including evaluation and diagnostic results, observation of the child, child's IEP and placement.

In relationship to the behavior which was the subject of discipline, the child's IEP and placement were appropriate and that special education services, supplementary aides and services and behavioral intervention strategies were provided consistent with the IEP.

The child's disability did not impair the ability to understand the impact and consequences of the behavior subject to disciplinary action; and

The child's disability did not impair the ability to control the behavior subject to disciplinary action. 20 U.S.C. § 1415(k)(4)(C); 34 C.F.R. 300.523(c)(2).

If any of these standards are not met, then the IEP team must determine that the behavior was a manifestation of the child's disability. 34 C.F.R. 300.523(d).

3) Information to be Considered

At the manifestation determination, the IEP team must consider all relevant information, including diagnostic results, evaluations, observations, information provided by the parents, along with the student's IEP and information on the student's placement. 34 C.F.R. 300.523(c).

4) Consequences of Manifestation Determination

If the IEP team determines that the behavior in question was not a manifestation of the student's disability, then the school district can discipline the student in the same manner it would discipline a child without disabilities. 34 C.F.R. 300.524(a). The IEP team must transmit the child's special education records to the board of education for its consideration during the discipline proceedings. 34 C.F.R. 300.524(b).

If the student's behavior that is the subject of the discipline is a manifestation of the student's disability, then the student cannot be disciplined for the behavior See S-1 v. Turlington, 635 F.2d 342 (4th Cir. 1981).

5) Continuation of Educational Services

Even if behavior not manifestation of disability, district must provide student with services needed to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP. 34 C.F.R. 300.121(d)(3)(ii).

The child's IEP team is to determine which services are needed to enable the child to adequately progress in the general curriculum and advance towards achieving the goals set out in his/her IEP. 34 C.F.R. 300.121(d)(3)(ii).

6) Failure to comply with IDEA's procedural requirements concerning discipline is grounds for reinstating student to placement before disciplinary action taken.

a) Dallas School District, 28 IDELR 1225 (SEA Or 1998)(in considering the appropriateness of the student's IEP, the IEP team erred when it considered only the academic component, instead of the entire IEP and placement. "Under IDEA 1997, the behavioral portion of the student's IEP must be examined in light of the misconduct, and it must be determined whether the behavioral portion was appropriate in relation to the misconduct." The district was ordered to readmit the student to the school).

b) William S. Hart v. Union High School District, 26 IDELR 1258 (1997)(high school student found smoking marijuana at lunch was suspended pending expulsion. The parents filed due process and the hearing officer ordered the district to allow the student to continue in his placement given that the district had failed to conduct a functional behavioral assessment, implement a behavioral intervention plan or conduct a manifestation determination. Nor did the district provide the student with any educational services. Under those circumstances, the hearing officer ordered he be reinstated to the high school program he attended prior to his suspension).

7) Deficiencies in IEP

If the IEP team discovers any deficiencies in the IEP or placement in the course of the manifestation determination, it must take immediate steps to remedy these deficiencies. 34 C.F.R. 300.523(f).

8) Parent Files Due Process

If the parent files a due process petition to contest the manifestation determination, the child must be returned to his current educational placement while the due process is decided.

9) Cases Addressing Manifestation Determination and/or Appropriateness of Functional Behavioral Assessment

a) S-1 v. Turlington, 635 F.2d 342 (4th Cir. 1981)(held that determination that student knew difference between right and wrong was not tantamount to determination that behavior was not a manifestation of disability. The Court of Appeals agreed with the reasoning of the psychologist that:

A connection between the misconduct upon which the expulsions were based and the plaintiffs' handicaps may have existed. She reasoned that 'a child with low intellectual functions and perhaps the lessening of control would respond to stress or respond to a threat in the only way that they feel adequate, which may be verbal aggressive behavior.' She further testified that an orthopedically handicapped child, whom she had consulted, 'would behave in an extremely aggressive way towards other children and provoke fights...[as] his way of dealing with stress and dealing with a feeling of physical vulnerability."

b) In Prince William County v. Malone, 762 F.2d 1210 (4th Cir. 1985), the Court of Appeals recognized that involvement in selling drugs could be a manifestation of a student's disability:

A direct result of Jerry's learning disability is a loss of self image, an awareness of lack of peer approval occasioned by ridicule or teasing from his chronological age group. He cannot keep pace with his peers. He is ostracized from their group. He does not understand their language. These emotional disturbances make him particularly susceptible to peer pressure. Under these circumstances he leaps at a chance for peer approval. He is a ready "stooge" to be set up by peers engaged in drug trafficking...The district court also determine that, while Jerry probably understood that involvement with drugs was wrong, his learning disability prevented him from comprehending or giving long-term consideration to the consequences of his actions."

c) Seattle School District, 29 IDELR 843 (SEA Wash. 1999)13 year old student who was diagnosed with Fetal Alcohol Effect ("FAE") was expelled from school following his admission that he possessed a knife and had threatened two students with it. The hearing officer held that the district had expelled the student without following any of the procedural requirements, including involving the IEP team in selecting a 45 day interim placement, performing a functional behavioral assessment, implementing a behavior modification plan and determining whether the behavior was a manifestation of his disability. The hearing officer further found that the student's conduct was a manifestation of his disability. Testimony had shown that FAE typically affected a student's ability to control impulses, to generalize instruction and that the student often required a highly structured placement with a consistent environment in and outside the classroom. Compensatory education was awarded proportionate to the lost education.

d) Board of Education of the Akron Central School District, 28 IDELR 909 (SEA NY 1998)(IEP team's decision to provide counseling to address behavioral issues did not satisfy IDEA's requirements for a functional behavioral assessment and, if appropriate, behavioral intervention plan. After listening to the audiotape of the IEP meeting, the Review officer noted that there "was virtually no discussion of the boy's behavioral needs, in the context of what might be required to prevent a recurrence of the boy's misbehavior.")

e) In Hacienda La Puente Unified School District, 30 IDELR 105 (SEA Cal. 1999), hearing officer found school district erred in conducting manifestation determination without first conducting behavioral assessment and by not considering if previously unknown disability was cause of behavioral incident. A 16-year old student with a specific learning disability was suspended for allegedly sexually assaulting a former girlfriend. Following a record review the school psychologist concluded that the alleged attempted assault was not connected to the students learning disabilities but rather was related to the issue of anger management which was not arising from his learning disability.

Concluding that a preexpulsion assessment must encompass all areas of "disabilities which are known, suspected or reasonably suggested by the conduct" and must be conducted before the manifestation meeting, the hearing officer found that:

The district witnesses...focused solely on the whether the alleged crime was connected to a visual or auditory processing disability. They did not consider assessing to determine if a previously unidentified disability was related to the alleged attempted rape. [The student's] disabilities may involve factors more complex than the processing disorders previously identified [such as] diminished ability to accurately interpret situations and social cues. ...Because the district's limited assessment was merely a review of the previous three year evaluation, it was not designed to specifically investigate whether the behavior of attempted assault was related to a disability.

The expulsion was set aside because of the procedural errors and compensatory education was awarded for the time the student was placed on home study until his enrollment in an appropriate private school.

10) Suggested Internet Resource:

Document entitled "Addressing Student Problem Behavior" can be found at http://www.air-dc.org/cecp/resources/problembehavior/acknowledge.htm. CECP's website also contains other pertinent materials and it is planning to implement a website on functional assessments.

E. Removal Based On Weapon or Drugs:

1) If a child with a learning disability possesses or carries a weapon to or at school or to a school function or possesses or uses or solicits the sale of illegal drugs at school or a school function, then the school may order a change in the placement of that child to an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to, but not for more than 45 days. 20 U.S.C. 1415(K)(1) (A)(ii).

2) Weapon for the purpose of the IDEA is defined as a dangerous weapon that is used for, or readily capable of causing death or serious bodily injury. 20 U.S.C. § 1415(k)(10)(D).

3) Weapon incident must occur at school or during a school function. See , e.g. Vista Unified School District, 29 IDELR 749 (1988)(school district not entitled to place disabled student in interim alternative education placement based on after-school incident at a park near the school).

4) 45 Day Interim Placement

Elements of:

The interim alternative education setting must enable the child to:

continue to participate in the general curriculum;

continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP;

must "include services and modifications designed to address the [dangerous] behavior...so that it does not recur."

20 U.S.C. § 1415(k)(3)(B)(i) and (ii); 34 C.F.R. 300.522.

5) Placement to be determined by child's IEP team. 34 C.F.R. 300.522(a).

6) Cases Interpreting:

a) Board of Education of the Akron Central Sch. Dist., 28 IDELR 909 (SEA, NY 1998)(interim placement providing home instruction 120 minutes, 5 times per week did not comply with IDEA requirements for an interim placement in that the district failed to show that it would provide the student with the resource room services and the same amount of instruction time as set forth in the student's IEP. Nor did the district show that the program was designed to enable the student to meet his IEP goals and objectives).

b) Oregon City School District, 28 IDELR 96 (SEA Or. 1998). Although the district had satisfied the other criteria for an interim placement, the hearing officer found it failed to show that the interim placement which consisted one-on-one instruction with virtually no contact with peers and very little with educators, was appropriate. The counseling and social behavioral services called for in the student's IEP were not provided.

In response to the district's argument that there were no behavioral issues in the interim placement–that behavioral issues only arose in the classroom, the hearing officer stated that was at best a "self-serving approach...since one could always 'eliminate the behavioral problem' by simply removing the child". Accordingly, the district was ordered to allow the student to return to school pending completion of the due process proceedings and to provide supplementary supports and services needed.

c) Hempfield School District, 27 IDELR 406 (SEA, Pa. 1997)(hearing officer rejected interim placement because school district failed to prove that setting included services and modifications designed to address the "target behaviors").

7)If the parent requests a hearing, the student remains in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of 45 days, whichever occurs first. 29 U.S.C. § 1415(k)(7)(A). See, e.g. Poteet Indep. Sch. Dist., 29 IDELR 423 (SEA Tex. 1998).

F. Removal By Hearing Officer on Grounds of Dangerousness

1) Hearing officer can order a change in placement to for up to 45 days if she:

determines that the public agency has demonstrated by substantial evidence that maintaining the current placement is substantially likely to result in injury to the child or others;

considers the appropriateness of the child's current placement;

determines that the public agency shows that it has made "reasonable efforts to minimize the risk of harm in the child's current placement";

determines that the interim alternative education setting proposed by the IEP team will enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in the IEP.

Additionally, the interim setting must include services and modifications to address the behavior that led to the removal, and which are designed to prevent the behavior from recurring.

20 U.S.C. § 1415(k)(2)(A)-(D); 20 U.S.C. § 1415(k)(3); 34 C.F.R. 300.521(a)-(d).

2) Interim alternative educational placement

It must satisfy the same standards required for 45 day weapon removal. 34 C.F.R. 300.522.

However, the regulations provide that the interim placement can be determined by school personnel who have consulted with child's special education teacher. 34 C.F.R. 300.521(d).

3) Behavior Held Substantially Likely to Cause Injury:

a) Light v. Parkway C-2 School District, 41 F.3d 1223 (8th Cir. 1994), the Court of Appeals held that the school district had shown by substantial evidence that continuing Lauren, a 13 year old, in her current placement posed a substantial risk of injury to herself or others. In determining whether there was a substantial risk of injury, the Court of Appeals noted that the test was whether there was an objective likelihood of injury. In that case, the school district showed that Lauren exhibited a steady stream of aggressive and disruptive behaviors, such as biting, hitting, kicking, throwing objects and turning over furniture. Several witnesses testified that Lauren hit, kicked and bit her teacher at least several times a week, hit, slapped and kicked disabled and non-disabled students, threw pencils and other objects at other students' eyes, ears and faces. The school documented that over a two year period, Lauren committed eleven to nineteen aggressive acts per week, with an average of fifteen per week. Of these incidents, approximately thirty required the attention of the school nurse.

(b) Horry County Sch. Dist. v. P.F., 29 IDELR 354 (D. Ct. S.C. 1998)(district court held that the student was substantially likely to injure herself based on her "long history of self-injurious behavior and harm to others, including head-banging, rectal digging, biting, hurling of objects, hitting, kicking, clawing, spitting, overturning furniture, destroying property, and making threatening statements, including threatening to kill staff and other students. Within the past two years alone, [the student] has not only broken the nose of at least one teacher's aide, but banged her own head on a cement tennis court and head-butted her teachers in the face." The Court concluded that the student was "presently, and was at all times relevant to this proceeding, substantially likely to injure herself or others in a local school setting").

(c) Texas Independent School District v. Jorstad, 752 F. Supp. 231, 238 (S.D. Tex. 1990) (court granted injunctive relief finding that student posed a "severe and on-going threat of imminent danger to himself and to others" and that the student behaved in a "virtually constant" manner that was dangerous to himself and others.

(d) Community Consolidated Sch. Dist. 15, 30 IDELR 448 (SEA, Ill. 1999)(hearing officer held that student substantially likely to injure others where hit, bit, kicked, pushed, scratched, pinched, head-butted, spat on and struck other students and staff, bolted out of the classroom, onto the parking lot and on at least four occasions, climbed on parked cars. Detailed records kept by the school showed that the aggressive and harmful behavior occurred toward his classmates on an every other day basis and toward the staff on a twice a day basis and that despite the numerous behavior management strategies implemented by the staff, had increased in frequency and severity.

(e) Binghampton City School District v. Borgna, 17 EHLR 677 (N.D.N.Y. 1991)(hearing officer determine the student was substantially likely to injure himself of others where the student frequently hit, kicked and spit on staff, punched and struck other students with his fists and objects, climbed on desks, all in a two month period).

4) Behavior Not Substantially Likely to Cause Injury:

a) School District of Philadelphia v. Stephan M. and Theresa M., 25 IDELR 506, 508 (E.D. Pa. 1997) (school district failed to meet burden of proving substantially likely to cause injury where student had only one incident of misconduct - using a razor blade to cut the hand of another student who had provoked her - and no other record of disciplinary infractions. Although the Court observed that "[c]utting a child is not an acceptable response to lewd behavior[,], plaintiff, had not made the type of showing which the courts have required to secure relief...")

b) Phoenixville Area School District v. Marquis B., 25 IDELR 452 (E.D. Pa. 1997) (hitting three other students and shoving principal against the wall in a three month period, while "clearly not appropriate" did not "rise to the level of demonstrating a substantial likelihood of causing injury in the immediate future."), aff'd, 1997 WL 67793 (E.D.Pa. 1997).

c) Clinton County R-III School District v. C.J.K., 896 F.Supp. 948, 950 (W.D. Mo. 1995) (injunctive relief removing student denied where student made repeated threats of violence to school officials and other students (but never acted on the threats), including threatening to place an explosive device in the principal's car, warning a student that he "knew where she lived," exploding in anger and throwing furniture.

d) M.P., by D.P. v. Governing Board of the Grossmont Union High School District, 858 F.Supp. 1044, 1050 (S.D. Cal. 1994) (knocking down bookshelf, fighting with another student, throwing modeling clay, insubordination and bringing a gun to school were insufficient to demonstrate substantial likelihood of injury to self or others.)

e) Cabot School District, 27 IDELR 304 (SEA Ark. 12/9/97) (where the student allegedly threatened to kill an assistant principal). The assistant principal testified that the student said, "I'm going to kill you, and when they find you, you will be six feet under." Students who witnessed the incident gave statements that they heard the student say either "I could kill you," or "I know someone who wants to kill you." A policeman testified that when the assistant principal asked the student to tell the police officer about wanting him six feet under, the student said, "Yeah, you're going to find yourself six feet under." The police officer arrested the student when he called the assistant principal a "fucking bitch" in front of the police officer.

The hearing officer found that although the student's behavior (assuming it was true, which the student denied) was disruptive, verbally abusive and insubordinate, and certainly very defensive, it did not meet the burden of proof set forth in Hong v. Doe and other cases.

f) Scranton School District, 29 IDELR 133 (SEA PA. 6/22/98) (aggressive acts, including threats, use of foul language, throwing furniture, punching teacher and throwing objects at teacher, never resulted in injury to anyone, and therefore, district did not meet burden of proving substantially likely to cause injury. In reaching its decision, the appeals panel found significant that the professionals who worked or currently worked with the student did not believe that there was a substantial likelihood that he would injure himself or others).

5) Reasonable efforts to minimize risk of harm:

a) A.M.J. and A. N. J. v. East Orange Bd. of Educ., 1999 WL 160586 (SEA N.J. 1999)(district failed to make reasonable efforts to mitigate the risk of harm).

b) Light v. Parkway C-2 School District, 41 F.3d 1223 (8th Cir. 1994) (holding that the school district met the burden of demonstrating that it had made reasonable efforts to minimize risk of injury where student with learning disability was accompanied throughout the school day by a teacher and teacher's assistant each with extensive training and support, including assistance of behavior management specialists, special education consultants, inclusion facilitators, and crisis prevention trainers, without any reduction in the frequency of the student's aggressive behaviors).

G. State or Federal Court May Also Order Change in Placement

Pursuant to the Supreme Court's ruling in Honig v. Doe, 484 U.S. 305, 98 L.Ed.2d 686, 108 S.Ct. 592 (1987), a school district may seek an injunction in court allowing the removal of a disabled student upon a showing that maintaining the student in his/her current placement is substantially likely to result in injury to the student or others. See OSEP Memorandum, 26 IDELR 981 (1997).

H. Under what conditions can a school district compel a student to submit to a psychiatric or other mental health examination following a behavioral incident?

Following incidents such as alleged threats, some school district will routinely exclude the student from school until he/she submits to a psychiatric or other mental health evaluation and obtains a report that he/she is not a danger to himself or others. School districts have gone so far as to "require" a parent to hospitalize their child for an in-patient evaluation as a condition of returning to school.

IDEA provides for evaluations for the purpose of determining a student's eligibility and to determine the child's educational needs. 20 U.S.C. § 1414. Since "education" is broadly defined to include behavioral, emotional issues, an IEP team, including the parent, could decide that psychiatric or other mental health evaluations are warranted. However, the purpose of the evaluation would be to determine eligibility or educational needs and the proper procedures would have to be followed, including convening an IEP meeting upon proper notice and with the parent to determine the evaluation plan. If the parent refused consent, the school district would have to initiate due process and in the interim, the child should continue in school. There is no provision under IDEA for excluding a child from school for the purpose of obtaining an evaluation unless all of the criteria of 20 U.S.C. § 1415(k)(2) are satisfied (i.e. substantial evidence that maintaining placement is substantially likely to result in injury to the child or to others and other elements).

In Hacienda La Puente Unified Sch. Dist., 30 IDELR 105 (SEA Cal. 1999), the hearing officer rejected the district's request to conduct an evaluation to determine if it was safe to return the student to his high school campus but allowed the district to conduct an assessment in accordance with § 1415 to address the behavior which led to the student's expulsion by someone with expertise in the area. The student's return to school, however, was not made contingent upon the completion of this evaluation.

I. Placement During Appeals

1) If parent appeals from disciplinary action brought under G. (removal based on weapons or drugs) or H. (removal based on dangerousness exception), the child is to remain in the 45 day alternative interim placement for up to 45 days or until a decision is entered, whichever comes first unless the parent and the state or local agency otherwise agree. 20 U.S.C. § 1415(k)(6)-(7); 34 C.F.R. 300.526.

2) If parents appeals from determination of IEP team that the behavior is not a manifestation of the child's disability and subsequent discipline, the student remains in his current educational placement pending a decision. 20 U.S.C. § 1415(k)(6) & (7); 34 C.F.R. 300.524(c).

3) An expedited hearing is to be held. 20 U.S.C. § 1415(6)(A)(ii).

V. PROTECTIONS FOR STUDENTS NOT RECEIVING SPECIAL EDUCATION AND RELATED SERVICES

A. In General

A child is entitled to all of the discipline procedural protections under IDEA even if not classified if the district knew or should have known that the child was a child with a disability. 20 U.S.C. § 1415(k)(8). The district's knowledge of the child's disability must be before the time of the violation of school rules. 20 U.S.C. § 1415(k)(8)(A).

B. Basis of Knowledge

The district is deemed to have knowledge that a child is a child with a disability if:

the parent expressed concern in writing, unless the parent is illiterate or has a disability that prevents compliance with this requirement in which case verbal notice is sufficient;

the behavior or performance of the child demonstrates the need for such services;

the parent of the child has requested an evaluation or the teacher of the child or other personnel expressed concern about the behavior or performance of the child to the direct of special education or to other personnel of the agency. 20 U.S.C. § 1415(k)(8)(B).

A school district is not deemed to have knowledge if it conducted an evaluation, determined that the child did not have a disability and provided the parents with written notice of this determination. 34 C.F.R. 300.527(c).

C. If No Basis Of Knowledge

The district may subject the child to the same disciplinary measures as applied to children without disabilities. If a request for an evaluation is made during the time period in which the child is subjected to disciplinary measures, the evaluation must be conducted in an expedited manner. 20 U.S.C. § 1415(k)(8)(C)(ii); 34 C.F.R. 300.527(d)(2)(ii). If the child is determined to be disabled, then the district must provide FAPE in accordance with IDEA's discipline requirements, including conducting a manifestation determination. 20 U.S.C. § 1415(k)(8)(C)(ii).

VI. REFERRAL TO AND ACTION BY LAW ENFORCEMENT AND JUDICIAL AUTHORITIES

A. Districts May Report Crimes

IDEA 97 explicitly provides that a school district is not prohibited from reporting a crime committed by a child with a disability to appropriate authorities. 20 U.S.C. § 1415(k)(9)(A); 34 C.F.R. 300.529.

But see State of Connecticut v. David F., 29 IDELR 376 (1998)(although school district may report a crime committed by student with disabilities to the juvenile authorities, the school's responsibilities under IDEA do not end with the child enters the juvenile system)

B. Disclosure of Student Records

IDEA provides that if the district reports a crime committed by a child with a disability, it must ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime. 20 U.S.C. § 1415(k)(9)(B).

Will disclosing student records without parental consent violate FERPA or equivalent state laws?

One question following enactment of IDEA 97 was whether disclosure of the student records without consent of the parents would violate Family Educational Rights and Privacy Act ("FERPA") and state laws governing disclosure of student records. Federal regulations provide that the district must disclose student records to the extent that submission of the records is permitted by FERPA. 20 U.S.C. § 1415(k)(9)(B); 34 C.F.R. 300.529(2). No clarification is provided as to what FERPA would allow.

Of the many conditions listed in FERPA for disclosing records without parent or student consent, only two would seem to possibly apply here. FERPA allows a school district to disclose education records pursuant to a judicial order or lawfully issued subpoena upon notice to the parent or student and in advance of the disclosure so that the parent can seek a protective order. The district may also release school records to appropriate parties in connection with health and safety emergencies. 34 C.F.R. 99.31; 34 C.F.R. 99.36.