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Suspension and the Special Education Student

By David Blades

Two important policy issues come into play when students with special needs engage in behavior that gives rise to suspension of the student. First, the school district is obligated to maintain order in the classroom to create a proper learning environment. However, when dealing with special needs students, the district must determine if the conduct giving rise to discipline is a manifestation of the student’s disability. If the offending behavior is a manifestation of the student’s disability, the district is limited in how long it may suspend the student and must make changes to the student’s education plan to improve his or her education experience. This article will examine the procedures and legal standards used to define the rights of special needs students juxtaposed with the districts authority and obligation to maintain discipline in the classroom.

There are misconceptions regarding the provision of a free and appropriate public education (FAPE) as it relates to discipline. For example, many parents believe because their child is disabled they cannot be suspended. Conversely, some people hold the opinion that disabled students can be suspended in the same manner and to the same degree as a student without special needs. Both positions are incorrect. Federal law balances the rights between districts and special needs students. Generally, districts have the right to establish rules where violation can lead to suspension. Conversely, the law limits the district’s ability to discipline a special needs student and even requires schools to develop a plan to correct the offended conduct in the future.

The framework outlining the rights of a special needs student and school district’s responsibilities are found in the Individual with Disabilities Education Act (IDEA).1 Principally, the IDEA requires public schools to provide all eligible students with a FAPE. A FAPE is specially designed instruction that meets the unique needs of the special needs student. Also, as part of the provision of a FAPE, the district must provide support services to assist the student to benefit from instruction.2 The education plan is a document designed to allow each student to benefit from individualized instruction. This document is referred to as the Individual Education Program (IEP).3 Educators and parents formulate the IEP in a collaborative effort contemplating the unique special needs of the student.

A student receiving special education services can be suspended but with significant limitations compared to the suspensions visited upon students without special needs.4 School officials may suspend a special needs student to the same extent they could suspend a student without special needs but only up to 10 days.5 This statute also limits the placement of special needs students in an alternative setting, such as in school suspension. Any effort to remove a student from the classroom for more than 10 school days constitutes a change of placement. When a change of placement occurs procedural safeguards for the special needs student take effect.

CHANGE OF PLACEMENT
A change of placement can occur even if 10 days of suspension are not consecutive. If a student is subjected to a series of removals that constitute a pattern, those removals may constitute a change in placement if they are more than 10 days in total.6 To constitute a pattern, the removals must be based on incidents that are substantially similar to behaviors that resulted in previous removals. Additionally, the length of each removal and the proximity of each removal to the other are factors in determining whether a change of placement has occurred. What constitutes a pattern of removal is highly subjective and can only be ascertained on a case-by-case basis.

If the decision is made to remove a special needs student from the classroom for more than 10 school days, a manifestation determination must take place. The procedure governing manifestation determinations is found at 20 U.S.C. 1415(k)(1)(E) and 34 CFR 300.530(e). It requires that within 10 school days of the decision to change the placement of a special needs student, a review of all relevant information regarding the student’s conduct and disability is conducted.

The review is to be conducted by the student’s IEP team.7 The review is to ascertain whether the conduct leading to the change of placement was either caused by or had a direct and substantial relationship to the child’s disability or if the conduct was the result of a failure to implement the student’s IEP. The review should examine all relevant information. Relevant information can include, but is not limited to, the child’s IEP, teacher observations, testing information, information provided by the parents, supplementary aids and if behavior strategies for the student were appropriate given the goals set out in the student’s IEP.8 Team members may consider the unique circumstances on a case-by-case basis when determining whether to suspend a special needs student for a violation of the student code of conduct.9

The review must be specific to the student’s behavior as it relates to his or her disability. For example, a team conducting a review must examine the student’s actual behavior when making a manifestation determination. The team cannot make general findings and apply them to a student’s specific behavior. For example, a team cannot find that since there is usually no relationship between particular conduct and a disability that there would be no such relationship in this specific case. Therefore, it would be irrelevant what behaviors some students with autism engage in as a general rule. A review should only be undertaken of the behavior of the autistic student facing suspension.10

If the team determines that the student’s behavior was not a manifestation of his or her disability, then the district may suspend the special needs student to the same extent as it would for the same student code of conduct violations of all students. However, the school district must continue to provide school services to a suspended special needs student so that student can continue to receive a FAPE. Indeed, should the district fail to provide a FAPE to the suspended student, a hearing officer has the authority to modify or rescind the change in placement.11

NEW BEHAVIOR INTERVENTION PLAN
A decision that the student’s behavior is a manifestation of his or her disability requires the district to implement a new behavior intervention plan or review a behavior plan that was already in place.12 There is no statutory framework that dictates the form of a behavior plan, however, the plan must properly identify the behavior that led to the code of conduct violation and then be designed to eliminate that behavior. It should go without saying that classroom teachers, counselors, principals, etc. can address behavior that is intermittent and not very severe. For instance, a student with ADHD who habitually fails to turn in homework may have a behavior plan requiring the use of an assignment notebook to help organize his or her thoughts. A teacher could monitor the student’s use of the notebook to help the student complete his or her work in a timely manner.

More severe behavior issues, particularly if they are frequent, require direct observation of the student’s behavior in the environment in which it occurs. A person with expertise in behavior usually conducts these observations. The purpose of these observations is to collect measurable and useable data. There is a plethora of data that can be collected concerning a child’s behavior. Some examples of data that can be collected include:

  • charting the frequency of the offending behavior;
  • where the behavior occurred;
  • recent changes in the student’s life in or out of school; and
  • levels of academic instruction and expectations.

The collected data is used to write a plan with modifications to the level of instruction and behavior management to correct the student’s behavior. If the behavior plan fails to achieve its objective, the evaluation and revision process starts all over again.

There are three exceptions, called special circumstances, to the 10-day rule that permits the school to immediately place a student in an interim alternative education setting for up to 45 school days.13 These exceptions apply if a special needs student brings a dangerous weapon, inflicts serious bodily injury upon another or knowingly possesses, uses, sells or attempts to sell illegal drugs while at school or a school function.14 Additionally, an administrative hearing officer can order an interim change in placement for up to 45 school days if it is proven that by continuing the student in his or her current placement there is a substantial likelihood of injury to the student or others.15 In either event, the school district must continue to provide the student with a FAPE while he or she is placed in an interim placement.16 Services provided by the district should include services to address the behavior that led to the suspension in the first place.

If a parent disagrees with a decision to remove their student from school, they may request an expedited administrative hearing before an independent hearing officer.17 The hearing officer has the authority to determine whether the removal of the student from school constituted a change in placement and if there was a change in placement, was the behavior that led to that change a manifestation of the student’s disability. In this type of hearing, the burden of proof falls on the one challenging the manifestation determination.18 The hearing officer will take testimony from witnesses as necessary and review all relevant data when making his or her determination.19 The hearing officer’s decision can be appealed. In Oklahoma, that appeal is to a second level of administrative review. Once the administrative remedies have been exhausted, appeal can be taken to either state or federal district court.

At the conclusion of the hearing, the hearing officer has several options. If it is determined the student’s behavior was a manifestation of his or her disability, the hearing officer could order the student be returned to the placement from which the student was removed. Also, even if it is a manifestation of the disability, the hearing officer may order a change in placement if it is determined that maintaining the current placement is substantially likely to result in injury to the student or others.20

CONCLUSION
School districts have an obligation to maintain order in the classroom. At the same time, protections are in place for special needs students. While school districts have the authority to develop and enforce a code of conduct, they are limited in how they may suspend special needs students. These procedural and substantive limitations are not designed to excuse behavior of students. They are, however, intended to design a program for special needs students to eliminate the inappropriate behavior and learn to behave appropriately in the school setting.

ABOUT THE AUTHOR
David Blades has been practicing law in Oklahoma for 25 years. He is currently serving as an administrative hearing officer for the Oklahoma State Department of Education.

1. 20 U.S.C §1400 (IDEA). While this article focuses on students under the rubric of the IDEA (commonly referred to as special education), there are other statutes that provide for similar rights for the disabled student. Namely, Section 504 of Rehabilitation Act of 1973 as amended requires the same protections against undue suspensions, as does the IDEA.
2. 20 U.S.C. §§1401 (9),(26), and (29).
3. 20 U.S.C. §1401 (9)(D).
4. 70 O.S. §24-101.3.
5. 20 U.S.C. §1415(k)(1)(B).
6. 34 C.F.R. 300.536(a).
7. The IEP team can include teachers, administrative representative, counselors, school psychologists and parents. Specific requirements of the types of individuals who should be on the team can be found at 34 C.F.R. 300.321.
8. 34 C.F.R. 300.530(e).
9. 34 C.F.R. 300.530(a).
10. See Bristol Twp. Sch. Dist. v. Z.B., 67 IDELR 9 (E.D. Pa. 2016).
11. See District of Columbia v. Doe, 611 F3d 888 (D.C. Cir. 2010).
12. 14 U.S.C. §1415(k)(1)(F)(i) and 34 CFR 300.530(f).
13. 20 U.S.C. §1415(k)(1)(G).
14. See 34 C.F.R. 300.530(g)(h)(i). Controlled substance is defined in 121 U.S.C. 812(c) but does not include a controlled substance that is legally possessed or used under the supervision of a licensed healthcare professional or that is legally possessed or used under any other authority under that act or under provision of federal law. Serious bodily injury is defined 18 U.S.C. §1365 (h)(3). Dangerous weapon is defined in 18 U.S.C. §930(g)(2).
15. 20 U.S.C. §1415(k)(3)(A).
16. 20 U.S.C. §1415(k)(1)(D).
17. 34 C.F.R. 300.532(a). The hearing regarding a manifestation determination is not the forum to challenge whether the student’s conduct violated a school’s conduct policy. That issue should be addressed by whatever suspension policy the school district has adopted.
18. See Schaffer v. Weast, 546 U.S. 49 (2005).
19. The hearing is to be conducted in an expedited manner. The hearing must occur within 20 school days of the request and the hearing officer must render a decision within 10 school days of the completion of the hearing. 34 C.F.R. §300.532.
20. 34 C.F.R. §300.532(b).

Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 28 (August 2018)