Expulsion And Suspension

Discipline For Students In Special Education

Special education students may be subject to discipline, including expulsion or suspension under appropriate circumstances. Naturally, parents are deeply concerned when their child is disciplined by their school. Augustin Egelsee, LLP is a valuable resource for families facing worries and disruption when a student is (or may be) expelled or suspended.

Our special education attorneys are well-equipped to help you and your child to ensure they are being disciplined appropriately under the law.We are also able to challenge schools districts, when proper discipline procedures have not been followed to protect your child’s right to an education. We practice law in large part out of a passion to help students and families find answers and hope, in the midst of difficult challenges like expulsion or suspension.

When Can Schools Expel Or Suspend Special Education Students?

State and federal laws allow school personnel to consider, on a case-by-case basis, unique circumstances when determining if the child’s placement should be changed as a result of the student’s violation of a code of student conduct.

Federal law authorizes school personnel to consider, on a case-by-case basis, any unique circumstances when determining if a student’s placement should be changed as a result of the student’s violation of a code of conduct.

In certain circumstances, school districts have the authority to remove a student to another appropriate interim setting or suspension for not more than 10 school days and to the extent such alternatives are applied to children without disabilities.

School districts may apply the same disciplinary procedures to students with disabilities as are applied to students without disabilities if the violation of the school code of conduct is not a manifestation of the students’ disability.

What Happens Next?

A student who has been removed to another setting should receive a functional behavior assessment, behavioral intervention services and modifications designed to address the behavior violation.

Students who are removed from their current placement, whether the behavior is a manifestation of the students’ disability, must continue to receive educational services that enable the students to receive a FAPE.

If a decision is made by the school to change the student’s placement, within 10 days of that decision a meeting must be held to determine if the behavior was a manifestation of the student’s disability. The Manifestation meeting is to include the parents and the relevant members of the IEP team as those members are determined by the parent and the district. Participants are to consider if:

1. The conduct was caused by or had a direct and substantial relationship to the student’s disability;
2. If the conduct in question was a direct result of the district’s failure to implement the IEP.

If either of these occur, then the behavior is a manifestation of disability and student must return to current placement unless parent and district agree otherwise. If it was a manifestation and no behavior plan exits, the school district must conduct a functional behavior assessment and behavior plan. If a plan exists, then it must be revised to address behavior.

What About Suspensions And Expulsions Of Nonspecial Education Students?

Suspensions:

A student can be suspended for committing any of the acts outlined in Education Code Section 48900 (a) – (q), 48900.2 – 48900.4, 48900.7. The act must be related to a school activity or attendance, including while on school grounds, while going to or coming from school, during lunch time (whether on or off campus), and during, or while going to or coming from, a school sponsored activity. Suspension can only be imposed when:

1) Other means of correction fail to bring about proper conduct, or
2) The students’ presence causes a danger to persons or property, or threatens to disrupt the instructional process.

Expulsions:

A student can be expelled for committing any of the acts outlined in Education Code Section 48900 (a) – (q), 48900.2 – 48900.4, 48900.7

Mandatory Expulsion-Zero Tolerance Offenses (The principal must refer for expulsion if factual findings are made.) A student who commits one of the following shall be suspended and recommended for expulsion:

1) Possessing, selling or furnishing a firearm
2) Brandishing a knife at another person (a knife must have a blade longer than 3 ½ inches)
3) Unlawfully selling a controlled substance
4) Committing or attempting to commit a sexual assault, or committing a sexual battery
5) Possession of an explosive (destructive device)

The governing board shall expel upon a finding of the above acts. This does not prevent the governing board from suspending the enforcement of the expulsion for one year.

Limited Discretion:.

Unless the expulsion is inappropriate due to the particular circumstances, the principal shall recommend expulsion for:

1) Causing serious physical injury to another person, except in self-defense
2) Possession of any knife or other dangerous object of no reasonable use to the pupil
3) Unlawful possession of a controlled substance, except first offense of possession of not more than 1 ounce of marijuana (other than concentrated cannabis)
4) Robbery or extortion
5) Assault of battery upon a school employee

Upon recommendation for expulsion, the governing board may order expulsion only if there is a finding of one or both of the following:

1) Other means of correction are not feasible or have repeatedly failed to bring about appropriate conduct.
2) Due to the nature of the act, the presence of the student causes a continuing danger to the physical safety of the student or others.

Full Discretion:

The Principal, Superintendent, and Governing Board have full discretion in determining whether a student is expelled for certain acts upon a finding of one or both of the following:

1) Other means of correction are not feasible or have repeatedly failed to bring about appropriate conduct.
2) Due to the nature of the act, the presence of the student causes a continuing danger to the physical safety of the student or others.

We Are Here For You if Your Child Is Subject To Discipline

Our firm is dedicated to helping children. We can discuss your circumstances, explain your rights and help get your child’s education moving in the right direction.

Call 714-602-1498 or toll-free 866-781-7723 or complete our online intake form to request more information about our firm. We help families every day! Let us know what challenges you face.

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