Can Students With IEPs Be Suspended?

Can students with IEPs be suspended?

The short answer is yes: students who have IEPs can be suspended from school. However, there are legal safeguards to prevent students with disabilities from being disciplined unfairly and missing too much instruction. These legal protections are outlined by the Individuals with Disabilities in Education Act (IDEA) and Section 504 of the Rehabilitation Act.

Section 504 outlines the rights of people with disability in places of public accommodation. In schools, this means that students with disabilities cannot be punished more severely than their peers would be under the same circumstances.

According to IDEA, children are entitled to a Free Appropriate Public Education in the Least Restrictive Environment, which means that students with IEPs engage with the general curriculum to the greatest degree they are able and remain in classrooms with their peers whenever possible.

A student’s placement is outlined specifically in the IEP, so there are additional considerations when they are removed from the classroom. The special education disciple process is outlined by IDEA. IDEA also stresses that students remain in their current placement during the disciplinary proceedings.

Students who have IEPs can be suspended or placed in an Alternative Educational Setting (AES) for no more than 10 total school days, which can be consecutive or cumulative days missed. Absences of more than 10 days constitute a change in a student’s placement.

However, any absences beyond 10 days due to disciplinary reasons is considered a change in a student’s placement. In most cases, a school district must conduct a Manifestation Determination Review before the student’s placement can be changed. However, there is one notable exception to this rule. If a child brings a weapon to school, or possesses, uses, or sells illegal drugs on school property, they can be placed in an Alternative Educational Setting without a Manifestation Determination Review. Students can be placed in an AES for up to 45 days under these circumstances, but not longer than one of their peers would be under the same circumstances.

If the child’s conduct does not involve weapons or illegal drugs, the school district must conduct a Manifestation Determination Review within 10 days of taking disciplinary action. The purpose of an MDR is to determine two key points: whether or not a student’s behavior was a manifestation of their disability, and whether or not the district failed to properly implement the IEP.

The importance of the Manifestation Determination Review cannot be stressed enough. If the IEP Team decides that a student’s conduct was not a manifestation of their disability or the result of the school district failing to properly implement the IEP, then the student can be punished in the same way one of their peers would be – without continuation of special education services.

During a Manifestation Determination Review, the IEP Team considers three major questions:

·         Are the student’s IEP and placement appropriate? Were the special education services, supplementary aids and services, and behavior intervention strategies provided consistent with the IEP and placement?

·         Did the student’s disability impair their ability to understand the impact and consequences of their behavior?

·         Did the student’s disability impair their ability to control their behavior?

If the IEP Team finds that the answer to any of these questions is yes, then the conduct is a manifestation of the student’s disability. In these cases, the IEP typically needs to be re-visited. When considering what accommodations are appropriate for a student’s IEP, it’s important to think about more than just their academic needs. Students make the most significant gains and accomplishments when their behavioral, social and emotional needs are considered along with their academic needs.

Even if a student has had one in the past, it’s advisable for the school district to conduct a Functional Behavior Assessment. A Functional Behavioral Assessment gets to the root cause of a behavior, like acting out in class, by asking questions like what happened immediately before or after the event. It may be the case that a student only throws his books when it’s time to do math because he does not understand the material and would rather look silly than have his peers know. Once the results of the Functional Behavioral Assessment are collected, a Behavior Intervention Plan can be developed. Behavior Intervention Plans teach and reward positive behaviors. When children are given the proper support, they can reach their behavioral goals.

On the other hand, when a student’s conduct is not ruled a manifestation of their disability, they can be disciplined in the same way as their peers. However, parents can request a hearing any time they disagree with a placement decision. Parents can appeal the school’s decision. In these cases, the State arranges for a hearing. The student remains in the interim alternative educational setting during the appeal process. The hearing may be expedited if the school district claims that the child poses a threat of harming others in their current placement. The student is placed in an interim alternative education setting pending the results of the hearing, but for no longer than 45 days.

It can be confusing to try to navigate through all of these processes and procedures by yourself. Regardless of where you are in the special education process, we can help. Our team of educational advocates and special education attorneys supports students from their initial classification, to Behavior Intervention Plans and Functional Behavior Analyses, attending IEP and Manifestation Determination Review meetings and even filing for due process when necessary. If you know a student with disabilities who is struggling to meet behavioral goals in school, call us at (833) Advo-Kid or email lsacalis@posternockapell.com

Lori Sacalis