School Suspensions: What Do I Do? Part Two

In the first part of my discussion of school suspensions that may lead to your child taken into custody or arrested, I outlined your rights and remedies in court.  In part two of this discussion, I will focus more on the school disciplinary procedures for a child with a disability.

If you child is charged with a violation of the Student Code of  Conduct and is subject to long term suspension or expulsion, you will receive a written notice from the school system of your rights. If the school intends to suspend your child less than 10 school days, then you will not receive a written notification of your rights. Instead, your child will be given in-school or out-of-school suspension.  In-school suspension may be for a few days. You do not have any legal right to challenge this type of suspension unless it materially affects the provision of a free appropriate public education for your child. What does this mean?  For instance if your child was placed in in-school suspension during a period of several weeks and he was not provided the special education and related services that was necessary for him to make educational progress, this may be trigger rights that you have under the IDEA to file a due process complaint or file a complaint with the Office for Civil Rights.

Similarly, short term out of school suspensions for a few days do not trigger any legal protections unless the total number of out-of-school suspension total more than 10 days in a school year. For instance, if your child  is given an out-of-school suspension on September 1st for three days, and given five days on November 15, and four days on January 5, this may constitute a change of placement that triggers due process protections. The removal of your child to a series of suspensions may constitute a pattern if (1) because the series of removals total more than 10 school days in a school year; (2) because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in a series of removals; and because additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.  34 C.F.R. 300.536(a).  The school system determines on a case-by-case basis whether there is a pattern of removals that constitute a change of placement. This determination is subject to review through the due process and judicial proceedings. 34 C.F.R. 300.536(b).  In the above example, therefore, suppose your child was suspended on September 1st for hitting another student, and on November 15 for hitting another student, and on January 5 for hitting another student, this behavior shows a pattern over a period of time.   The length of each suspension was relatively short 3-5 days. The proximity of the suspensions occurred approximately two months apart. This may not constitute a pattern that will trigger procedural rights and protections under the law. But suppose we take the same example and change it a bit to the school suspending your child on September 1st for five days for fighting, September 7 for three days for fighting, and September 10 for five days, then this would be a stronger case for establishing a closer proximity of the same or similar behavior and cumulatively more days of out of school suspension for more than 10 days in a relatively short period.  In any case, the review of these facts to establish a pattern is made on a case-by-case basis so there is no hard and fast rule to apply.

On the other hand, if your child was involved in fighting and the school system wants to suspend your child for more than 10 school days or change his educational placement from a majority of the school day in regular classes to most of the school day in a behavior disordered class or to an alternative school, then you are entitled to a manifestation determination meeting with 10 days of the first day of out of school suspension. The purpose of the manifestation determination meeting is two fold: (1) determine if the child’s conduct was caused by, or had a direct and substantial relationship to his disability or (2) the conduct in question was the direct result of the school district’s failure to implement the IEP. 34 C.F.R. 300.530(e). Suffice it to say that I have never attended a manifestation determination meeting at which the school district admitted that it failed to implement the child’s IEP. As a practical matter, the only focus of this meeting is to determine if the child’s conduct was caused or directly and substantially related to his disability.

How do you determine if the child’s conduct was caused or directly and substantially related to his disability?  This is quite tricky.  School districts will often claim that because the child knew the difference between right and wrong that the conduct was not caused or directly related to his disability. This is not the legal test, however.  The test is look at the child’s disability and its symptoms in making this assessment. For example, if the child has ADHD and has a history of impulsive and aberrant behavior, then it is easier to show that the child’s conduct was caused or directly related to the disability. If, however, there is no history that the child’s ADHD resulted in impulsivity, aggressiveness, and fighting then it will be much more difficult to show the relationship between the child’s conduct and disability. If the IEP team determines the child’s conduct was caused by or directly and substantially related to his disability, then the school district cannot impose more than 10 school days of suspension or change his educational placement unless the student was charged with a knowingly possession or use of a weapon or illegal drugs. 34 C.F.R. 300.530(f).  In this case, the school district can change the child’s placement to an interim alternative educational setting for up to 45 school days. For instance, if the child is found to be in possession of a less than one ounce of marijuana the school system can still send your child to an alternative school setting or more restrictive educational placement. This is true even if the IEP team determines that the child’s conduct (possession of marijuana) was caused by or directly related to his disability. On the other hand, if your child is just charged with a violation of the Student Code of Conduct such a fighting and it is found to be caused by or directly related  to his disability, then the IEP team must either conduct a functional behavior assessment unless one had already been previously conducted and implement a behavior intervention plan or if the behavior plan has already been developed then review the behavior plan and modify it if necessary to address the child’s behavior.

Are you confused?  There is plenty to be confuse about this process. This is why you should consult with a trained and experienced advocate or special education attorney to give you the best advice how to deal with this process. It can make a difference securing the services of a special education attorney in this process particularly if the child is also charged with a delinquent offense such as possession or use of an illegal drug or weapon and is also referred to juvenile or state court depending upon his or her age.  In the next post (Part III), I will talk more about school suspensions, change of educational placement and legal remedies to change to the IEP’s team’s manifestation determination of the relationship between your child’s conduct and disability.