This is the third and final post on school suspensions involving children with disabilities and what parents can do to challenge such suspensions in manifestations determination meetings and in juvenile or state court proceedings.
One of the most difficult challenges facing parents of children with disabilities when the school system proposes to impose long-term suspension (more than 10 school days) or expulsion are the time limitations. When the school system initially decides to suspend your child from school and then determines that your child should receive a long-term suspension or expulsion, a parent has little time to prepare for the manifestation determination meeting and school disciplinary hearing. The school disciplinary hearing must occur within 10 school days of the initial suspension. The manifestation determination meeting must also occur within 10 school days of the initial suspension. 20 U.S.C. 1415(k)(1)(E)(i). The school system is only required to provide adequate notice to the parents of the location, date, and time of the school disciplinary hearing and manifestation determination meeting. Most of the time the parents receive only four or five business days advance notice of the hearing and manifestation determination meeting. This is precious little time to prepare for the hearing and meeting and retain legal counsel, if desired. If the parents retain counsel, this imposes strict time lines to adequately prepare for the hearing and meeting, which may include but is not limited to, meeting with the parents and child, interviewing witnesses, reviewing educational records, performing legal research, preparing for the examination of witnesses, speaking to educational experts, if possible, and communicating with the school system’s legal counsel. For this reason, the parents should seek and secure an attorney has extensive knowledge and experience in representing students at school disciplinary hearings and manifestation determination meetings. Because of the short time limits to prepare for the hearing and meeting and the cost of legal representation, very few parents retain legal counsel in these proceedings. Therefore the parents are at a great disadvantage at the school disciplinary hearing and manifestation determination meeting.
A school system may schedule the manifestation determination before the school disciplinary hearing or after the hearing. The advantage of scheduling the manifestation determination meeting before school disciplinary hearing is that the if the IEP team determines that the child’s conduct was directly related or caused by the child’s disability then a school disciplinary hearing is often unnecessary. Even if the IEP tram determines that the child’s conduct was not directly related or caused by the child’s disability, the parents have a better idea what to expect at the school disciplinary hearing and can introduce mitigating circumstances against any disciplinary recommendation that is made by the school system. Parents should remember that if the IEP team determines that the child’s conduct was not directly related or caused by the child’s disability, the school disciplinary panel or hearing officer can impose long-term suspension or expulsion for the child as if the child was not in special education. 20 U.S.C. 1415(k)(1)(C). The usual practice of school systems in these cases is to recommend suspension for the remainder of school year or one full school year. In the alternative, the parents are usually offered alternative school as a placement for the child. In some cases, the alternative school is not a viable option. The school system is not required to provide a bus to transport the child to the alternative school. For parents who work, alternative school is not a practicable option. Some school systems offer what is called the Omnibusman program as an alternative school placement. In brief, this program allows the child to work at a desk with a computer with other similarly situated students but it is limited to about four hours a day. Again this may not be a practical option for many parents because of the abbreviated school day or the lack of appropriate structure and instruction for the child. In any case, the school system cannot terminate all special education instruction and services to the child even if the IEP team determines that the child’s conduct was not directly related or caused by the child’s disability. 20 U.S.C. 1412(a)(1)(A). If a disciplinary panel or hearing officer decides to expel the student for a serious drug offense or committing a serious felony such as aggravated assault or sexual assault at school, for example, most school systems will offer the child only three hours of week of instruction at the student’s home or in a neutral setting such as a library.
Can a parent appeal the decision of the IEP team that a child’s conduct is not directly related or caused by the student’s disability. Yes. But the parent must request an expedited due process hearing which must be held within 20 school days from the date the due process complaint is filed. 34 C.F.R. 300.532(c)(2). Again if the parents retain attorney, this leaves little time to properly prepare for this due process hearing. The parents also have the right to appeal the decision of the disciplinary panel or hearing officer concerning the finding of a violation of the Student Code of Conduct and disciplinary sanction such as long-term suspension, expulsion or other disciplinary measures. But this is an entirely different appeal process from the appeal of an IEP team’s decision at a manifestation determination meeting. Suffice it to say that parents – at the very least – should consult with an attorney who concentrates in this area of special education law to receive advice, direction and information about your appeal options.
