There are certain behaviors for which a school system can change a student's placement to an "interim alternative educational setting" for up to 45 days (calendar days, not school days). This is so if the student carries a dangerous weapon to school or a school function or knowingly possesses, uses, sells or attempts to sell illegal drugs at school or at a school function (1415(k)(1)(A)).
A school department can also try to convince a hearing officer in your state's special education due process system to order an interim alternative educational placement for up to 45 days by proving that maintaining the child in her current placement "is substantially likely to result in injury to the child or to others" (1415(k)(2)(A)). In such a case, the hearing officer must find not only that the child represents a real danger, but also that the school system has "made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services."
In either case, any alternative educational placement for up to 45 days under these provisions must provide FAPE. Accordingly it must be designed to "enable the child to continue to participate in the general curriculum" and continue to receive services and modifications, including those in her IEP, "that will enable the child to meet the goals set out in that IEP" (1415(k)(3)(B). The placement must also include services to address the behavior for which the student is being suspended in the first place. (A home tutoring program would not normally satisfy these requirements, though if the only alternative is a program for students with severe emotional/behavioral disabilities, sometimes a parent is faced with either accepting an inappropriate home-bound instruction program or placement in a volatile setting with an inappropriate peer group. If it is feasible to use the expedited hearing process, described below, it may be best to accept home tutoring while contesting the matter.)
The behavior of which your daughter has been accused does not fall into the categories that would allow the school system to move her to an alternative 45-day setting since there was apparently no dangerous weapon or drugs involved. While the school could try to convince a hearing officer that she represents a danger to herself or others, it would be unlikely to succeed. It is easy to think of steps the school system could take to "minimize the risk of harm in the child's current placement." Ordinary security measures in the halls, a peer mediation program, the assignment of an aide, and/or modifications to your daughter's IEP are some of the options that might be considered.
Most importantly, a school system cannot impose a long-term suspension or expel a student with special educational needs if the behavior for which s/he is being disciplined was a "manifestation" of his or her disability (1415(k)(4)(B),(C)). IDEA provides that the IEP team must find that behavior was a manifestation of the child's disability if: (1) the IEP was inappropriate with respect to the behavior or was not being implemented, including appropriate behavior intervention strategies; (2) the child was unable to understand the impact and consequences of her behavior because of her disability; or (3) the child's disability impaired her ability to control her behavior. If any of these circumstances applies, the IEP team must correct the IEP or its implementation and, except for the 45-day provisions I described earlier, the school cannot legally suspend the student beyond ten days. If the team finds that the behavior is not a manifestation of the child's disability, the school can suspend longer than ten days as it can a student without a disability, but must still provide ongoing education under his/her IEP during the suspension.
In addition to, or as part of, this review (and regardless whether the behavior is found to be a manifestation of the child's disability), the school system must conduct a "functional behavioral assessment" and develop or modify a behavioral intervention plan as necessary to address the behavior for which the student is being disciplined (1415(k)(1)(B)). Again, the statute itself makes no distinction for suspensions less than ten days, but the Department of Education's proposed regulations indicate that this requirement only applies after ten days of suspension. (Proposed 34 CFR 300.520(b))
In your daughter's case, you will want to be sure that the IEP team evaluates the link between her language processing difficulties and her behavior in stressful circumstances with peers when she does not understand social cues or how to use words rather than physical aggression. The school should also perform a behavioral assessment to see what strategies will help your daughter recognize and re-channel feelings of anger or frustration. She might benefit from a social skills group for students with similar language impairments. If so, that service should be added to her IEP.
Parents are entitled to an expedited hearing if they appeal either a finding that their child's behavior was not a manifestation of his/her disability or a placement decision made under the suspension/expulsion provisions (1415(k)(6)). The Department of Education's proposed regulations would require that a decision be rendered in an expedited hearing within ten business days of the hearing request unless the parties agree to a longer period. (Proposed regulation 34 CFR 300.528(a)(1)) Unless the child is properly moved to a 45-day alternative placement, s/he is entitled to remain in the current educational placement. If s/he has been properly moved to an alternative placement, that is where s/he must remain until either the hearing officer orders a change or the assigned time period for the interim placement expires.
The rights I have discussed here apply to students who are already identified as having special educational needs. Importantly, the law also applies to students who the school system knew or should have known have disabilities. IDEA treats a school system as "knowing" about a disability for these purposes if: (1) a parent expressed concern that his/her child needs special education (this must be in writing unless the parent is illiterate or unable to write because of a disability); (2) the behavior or performance of the child shows s/he needs such services; (3) a parent requested an evaluation of his/her child; or (4) a teacher or other school employee has expressed concern about behavior or performance to other school staff (1415(k)(8)). Also, even if the school system is not deemed to have "knowledge" of a disability, parents can request an evaluation when their child is being suspended or expelled, which must be expedited (1415(k)(8)(C)(ii)). In that case, however, the child must remain in whatever placement is determined by the school pending the outcome of the evaluation.
Obviously, these provisions are very complex and the stakes are high. Moreover, the inter-relationship between these federal requirements and a state's own laws and regulations concerning student discipline will raise many questions. (For example, if a state tries to use a broader definition of "dangerous weapon" than applies under the provisions allowing 45 day interim placements, it may be held that the state's requirements must give way to the federal. It has been held that a state can adopt greater protections for children with special education needs, but not lesser. See David D. v. Dartmouth School Committee, 775 F.2d 411 (1st Cir. 1985), cert. denied, 475 U.S. 1140 (1986).) If your child is faced with long-term suspension or expulsion you should consult with an expert in special education law to be certain that her rights are protected and that the school system does not lose sight of your child's educational needs in its effort to enforce discipline.
Special Education Articles by Robert Crabtree:
- Due Process Hearings
- Nine 'Rules of Thumb' for Parents
- What You Should Know About Evaluations