When Can a School Suspend or Expel a Student With Special Education Needs?

On Behalf of | Sep 23, 2021 | Behavior Intervention Plans, IEP, Special Education, Suspensions/Expulsions |

An important principle under the Individuals with Disabilities Education Act (IDEA) is that a child with a disability should not be unduly disciplined for behavior that is a manifestation of their disability. The IDEA has put in place protections for children facing discipline who have a disability, and who have or should have had an Individualized Education Program (IEP) at the time of the child’s misconduct.  Specifically, the IDEA prohibits expulsion of a student with a disability for conduct that is was a manifestation of the student’s disability.

If a school principal suspends a child with special needs for more than 10 consecutive days, puts them up for expulsion, or when a district proposes to take disciplinary action that results in a change of placement, the district must call an IEP meeting, called a manifestation determination review (MDR) meeting.  The purpose of an MDR meeting is to examine the relationship between a child’s disability and their misconduct.  In other words, during the MDR IEP meeting, the IEP team is charged with determining whether the child’s behavior was a manifestation of their disability.

The MDR analysis must be performed within 10 school days of “any decision to change the placement of a child with a disability because of a violation of a code of student conduct.”

The questions the IEP team must answer during an MDR meeting are:

  1. Was the conduct in question caused by, or have a direct and substantial relationship to, Student’s disability; and
  2. Was the conduct direct result of the school district’s failure to implement the student’s IEP?

The MDR must involve a review of all the relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents.

If the district team does not find that the conduct was a manifestation of the child’s disability, but the parents disagree, parents may request an expedited due process hearing of claims based upon an appeal of a manifestation determination. An expedited hearing must be conducted within 20 school days of the date an expedited due process hearing request is filed, and a decision must be rendered within 10 school days after the hearing ends. If the MDR reveals that the conduct was a manifestation of the child’s disability, the IEP team must either:

  1. Conduct a functional behavioral assessment, unless the [district] had conducted an FBA before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or
  2. If a BIP already has been developed, review the BIP and modify it, as necessary, to address the behavior.
  3. And, except under special circumstances* return the child to the placement from which the child was removed, unless the parent and the [district] agree to a change of placement as part of the modification of the BIP.

*Special circumstances:  School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, if the child: (1) Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of an SEA or an LEA; (2) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA; or (3) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA.

 

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