Special Needs Students and School Discipline

Posted By Tom Blessing || 19-Oct-2017

I get lots of calls from parents whose special needs children do things which get them in trouble at public schools, leading to suspension, expulsion, placement in an interim setting and even juvenile criminal charges. Sometimes schools will call parents (often repeatedly) asking them to come pick up their child from school early if the child is having a rough day. The law gives substantial protections to students in special education as well as those who do not yet have an Individualized Education Program (IEP) if the school had reason to suspect the child had a disability.

Many parents think they don’t have a choice when the school proposes putting their child on a half-day schedule or asks them to come pick him up early, but under the Individuals with Disabilities Education Act (IDEA), disabled students are generally entitled to attend public school for the same hours as their typical peers; they can’t be sent home early or put on a shortened school day schedule just because their behaviors are difficult to manage.

The legal term for taking a child out of his classroom for disciplinary reasons is a “removal,” and a removal for any portion of a school day is considered a removal for the whole day: if your child is sent home 5 hours into a 6-hour school day, that counts as an entire day out of school. A removal can range from making a child sit in the hallway or sending him to the office up to suspension or expulsion. Schools can generally remove disabled students for up to 10 days without providing services, but the law requires schools to follow certain procedures to remove a student for more than 10 days in a given school year. A removal of a student for more than 10 consecutive school days or a series of removals that constitute a pattern is considered a “disciplinary change of placement.” The law requires public schools to follow certain procedures before making a disciplinary change of placement of students with disabilities, so I recommend consulting a special education lawyer if you find your child in this situation.

I recommend documenting it every time you are called by the school to come pick up your child so you can keep track of the removals. You may be entitled to compensatory educational services to make up for the lost time. If your child is being removed for more than 10 days (expelled), the law requires the school to hold what’s called a manifestation determination conference. This is a meeting with school staff to determine if the child’s behavior was related to his disability or if the school failed to follow his IEP, in which case the school has to conduct a functional behavior assessment (FBA) of the student. If you disagree with the outcome of the manifestation determination you may appeal it by filing a request for a due process hearing.

Students who are charged with offenses involving drugs, weapons or serious bodily injury may be placed in an interim school setting for up to 45 days even if the behavior was related to their disability. An Independent Hearing Officer can order a student placed in an interim setting for up to 45 days if she believes the student is substantially likely to injure someone at school. I’ve had a couple cases where schools tried to place a student in an interim setting even though his conduct did not meet the criteria for that, so it’s good idea to consult a special education attorney if your child’s school schedules a manifestation determination conference.

If your special needs child is in trouble at school, call or email Indiana Special Education Attorney, Tom Blessing - tblessing@hzlegal.com, for a free consultation.

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