Discipline For Students In Special Education
Under appropriate circumstances, special education students may be subject to discipline, including expulsion or suspension. 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. Our goal is to ensure that your child is being disciplined appropriately under the law. We are also able to challenge Orange County school districts when proper discipline procedures have not been followed, protecting your child’s right to an education. We practice law largely 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 unique circumstances on a case-by-case basis. When determining whether a child’s placement should be changed due to a student’s violation of a code of student conduct, they have the authority to remove a student to an appropriate interim setting. They can also suspend a student for not more than 10 school days.
However, whatever disciplinary action is taken, it must be applied in the same way it would to children without disabilities. In other words, 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.
Immediate Steps To Take If Your Child Is Facing Expulsion
If your child faces expulsion, it is important to act quickly. Some steps that you should take immediately include:
- Request a meeting: Contact the school to request a meeting to discuss the situation and determine if the behavior was a manifestation of the student’s disability. This meeting is often called a “manifestation determination review” (MDR).
- Gather documentation: Collect all relevant documents to build your case. Include your child’s Individualized Education Program (IEP) and school records. You may also want to include any communication with teachers or administrators and private providers.
- Attend the MDR: The MDR determines if your child’s behavior was a manifestation of their disability. If it was, the school cannot proceed with expulsion.
The MDR is a required IEP meeting and is a critical step in the expulsion process. The MDR/IEP team determines if your child’s behavior has a direct and substantial relationship to their disability. They also consider if the behavior resulted from failure to implement the IEP.
Understanding The MDR
The manifestation meeting must 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:
- The conduct was caused by or had a direct and substantial relationship to the student’s disability.
- 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 the student must return to the current placement unless the parent and district agree otherwise. If it is a manifestation and no behavior plan exists, the school district must conduct a functional behavior assessment and behavior plan. If a plan exists, then it must be revised to address the behavior.
What Are The Potential Outcomes Of An MDR?
There are a few potential outcomes of the MDR process. The team may determine that the behavior was related to your child’s disability. If so, the school must focus on behavior intervention services through changes to the IEP or placement. In this situation, there cannot be an expulsion.
However, the team may conclude the behavior was not a manifestation of the disability. In this case, the school may proceed with disciplinary actions, including expulsion. However, your child still has certain rights. Notably, they are to continue receiving educational services during the expulsion period.
If you disagree with the MDR’s outcome, you have the right to appeal the decision and an experienced special education lawyer can help.
What Happens After A Student Has Been Removed?
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 must continue to receive educational services that enable the students to receive a FAPE (free appropriate public education). This is true regardless of whether or not the behavior was a manifestation of the students’ disability.
Suspensions And Expulsions Of Nonspecial Education Students In California
Expulsions and suspensions of nonspecial education students are major issues for families. But they are also complicated legal matters. We can provide general answers here about the issues at hand, but you may want to talk to us directly about the specific issue you face.
Suspensions
A student in California 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 school activity or attendance, including while on school grounds, while going to or coming from school, during lunchtime (whether on or off campus), and during, or while going to or coming from, a school-sponsored activity. Suspension can only be imposed when one of the following occurs:
- Other means of correction fail to bring about proper conduct.
- 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, which include:
- Injuring another person, attempting to injure somebody or threatening to do so
- Bringing controlled substances to school grounds
- Using force against somebody else, except in self-defense
- Making terroristic threats against a school official or school property
- Bullying other students
- Hazing or attempted hazing of another student
- Possessing an imitation firearm on school grounds
- Possessing or using tobacco products
These offenses can be grounds for a recommendation for expulsion.
Mandatory Expulsion
For zero tolerance offenses, the principal must refer the student for expulsion if factual findings are made. A student who commits one of the following shall be suspended and recommended for expulsion:
- Possessing, selling or furnishing a firearm
- Brandishing a knife at another person (a knife must have a blade longer than 3.5 inches)
- Unlawfully selling a controlled substance
- Committing or attempting to commit a sexual assault, or committing a sexual battery
- 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:
- Causing serious physical injury to another person, except in self-defense
- Possession of any knife or other dangerous object of no reasonable use to the pupil
- Unlawful possession of a controlled substance, except for the first offense of possession of not more than one ounce of marijuana (other than concentrated cannabis)
- Robbery or extortion
- Assault or 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:
- Other means of correction are not feasible or have repeatedly failed to bring about appropriate conduct.
- 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:
- Other means of correction are not feasible or have repeatedly failed to bring about appropriate conduct.
- 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.
No matter what you’re facing, you are not in this alone.
Why Choose Augustin Egelsee, LLP?
Between the two of us, we have nearly 50 years of experience advocating for children with special needs and helping their families deal with disciplinary issues. We practice special needs law exclusively, with the goal of ensuring every child we serve gets the education they are entitled to under the law.
Advocating for Orange County’s children with special needs is our personal mission as well as our profession. As a result of our relentless representation, we are often able to reach positive results in some of the most challenging disciplinary cases. We are honored whenever our clients say things like this about working with us:
I am extremely thankful to them and will never forget the support and effort they provided us with throughout the process of a recommended expulsion from the district although my daughter wasn’t guilty in the district accusations. They fought for us! We won! Thank you So So much!!!
You can read more testimonials from our clients or review some of our most prominent case results.
Schedule A Consultation With An Orange County Special Education Lawyer
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.