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Printed on: 07/31/2021
Please always refer to the online version for the most current up-to-date information.
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Chapter 8: Information on Discipline of Students with Disabilities
(8.1) Is my child with a disability treated under the law precisely as a child without a disability if she is being suspended or expelled?
A child with a disability can be disciplined (suspended or expelled) for the same reasons and to the same extent as a child without a disability. However, there are additional rules and safeguards that the school must follow. These rules are primarily intended to ensure the school takes your child’s disability into account at various stages of a disciplinary action. These rules include:
- Manifestation Determination: a special review that looks into whether your child’s disability or the school’s failure to follow her IEP led to the misconduct that your child has allegedly committed;
- Special circumstances for offenses involving weapons, drugs,
serious bodily injury;
- Discipline of a child who has a disability but has not yet been determined eligible for an IEP; and
- Discipline of a child with a disability who is eligible for a Section 504 plan.
These special safeguards, when they apply and how they protect your child with a disability under both the IDEA and Section 504 are explained in this chapter below. See questions 7 through 20.
(8.2) What are the behaviors that could get both regular and special education students suspended or expelled?
Students with disabilities may be suspended for any one of the misbehaviors on the list below that applies to all students, even if the misbehavior is a manifestation of the child’s disability. Suspension or expulsion for any of these acts must be related to school activity or attendance. This includes misconduct which occurs on school grounds, while going to or coming from school, during lunch (whether on or off campus), during a school sponsored activity, or while going to or coming from a school sponsored activity. [Cal. Ed. Code Sec. 48900(s).] The permissible grounds for taking disciplinary action under California Education Code Section 48900 are:
- Causing or threatening physical injury to another;
- Willfully using force or violence against someone, except in self-defense;
- Possessing a knife, gun, explosive, or other dangerous object without school authorities’ permission, or furnishing such an object;
- Unlawfully possessing, using, selling, or furnishing a controlled substance, alcoholic beverage, or intoxicant of any kind, or being under the influence of such a substance, beverage, or intoxicant;
- Offering or furnishing a substance misrepresented to be a controlled substance, alcoholic beverage, or intoxicant;
- Committing or attempting to commit robbery or extortion;
- Damaging or attempting to damage school or private property;
- Stealing or attempting to steal school or private property;
- Possessing or using tobacco in an unauthorized manner;
- Committing an obscene act or engaging in habitual profanity or vulgarity;
- Dealing in drug paraphernalia;
- Disrupting school activities or otherwise willfully defying school authorities. Students in kindergarten through grade 3 cannot be suspended for this act, and students in kindergarten through grade 12 cannot be recommended for expulsion. [Cal. Ed. Code Sec. 48900(k)(2)] Starting on July 1, 2020, the ban to suspend for willful defiance will extend to students in grade four and five, and for five years, it will also apply to students in grades six through eight. [Cal Ed. Code Sec. 48900(k).];
- Knowingly receiving stolen school or private property;
- Possession of an imitation firearm that appears to be real;
- Commission or attempt to commit a sexual assault, commission of a sexual battery;
- Harassment, threat, or intimidation of a student who is a witness in a school disciplinary proceeding;
- Engaging in hazing, or attempted hazing. (Hazing includes rituals that can cause serious bodily harm or personal degradation or disgrace);
- Engaging in bullying, whether in person or electronically (for example, by email, text message or on social media);
- Engaging in sexual harassment which a reasonable person of the same gender as the victim would consider sufficiently severe or pervasive as to have a negative impact on such a victim’s academic performance or to create an intimidating, hostile, or offensive educational environment [Cal. Ed. Code Sec. 48900.2];
- Causing, attempting to cause, threatening to cause, or participating in acts of hate violence, which is defined as injuring or interfering with a person’s exercise of any constitutional or other legal rights because of the person’s or a perception of the person’s, race, color, religion, ancestry, national origin, disability, gender, or sexual orientation [Cal. Ed. Code Sec. 48900.3, Cal. Penal Code Secs. 422.6 & 422.55];
- Intentionally engaging in harassment, threats, or intimidation, directed against school district personnel or pupils that is sufficiently severe to disrupt classwork, create substantial disorder, and invade the rights of the student or group by creating an intimidating or hostile educational environment [Cal. Ed. Code Sec. 48900.4]; and
- Making terrorist threats against school officials or school property. This includes any oral or written statement threatening to commit a crime which will result in death, great bodily injury, or property damage in excess of $1000 [Cal. Ed. Code Sec. 48900.7.]
Suspension or expulsion for any of these acts must be related to school activity or attendance. This includes misconduct which occurs on school grounds, while going to or coming from school, during lunch (whether on or off campus), during a school sponsored activity, or while going to or coming from a school sponsored activity. [Cal. Ed. Code Sec. 48900(s).]
(8.3) Can school districts use an alternative to suspensions or expulsions?
Yes. Suspension is appropriate only after other means of correction fail to bring about proper conduct. Other means of correction include, but are not limited to: a conference between school personnel and the parent, a referral for special education assessments, and a positive behavior support approach with tiered interventions. School districts should use alternatives to suspension or expulsion to address problems of truancy, tardiness, and other absences from school activities. [Cal. Ed. Code Sec. 48900(w).]
It is within the superintendent’s discretion to use alternative methods, such as anger-management classes, instead of suspension or expulsion. [Cal. Ed. Code Sec. 48900(v).] A school district may also adopt a policy authorizing teachers to require the parent or guardian of a pupil who has been suspended to attend a portion of a school day in the classroom of his or her child or ward. [Cal. Ed. Code Sec. 48900.1.]
(8.4) What behaviors require the school district to recommend a student be expelled?
The California Education Code at Section 48915(a) requires that a principal or superintendent recommend expulsion if the student commits any of the following acts (unless he finds that expulsion is inappropriate due to the particular circumstance):
- Causing serious physical injury to another, except in self-defense;
- Possession of any knife, explosive, or other dangerous object of no reasonable use;
- Unlawful possession of a controlled substance;
- Robbery or extortion; or
- Assault or battery upon any school employee.
The governing school board may order the pupil expelled upon finding that the pupil committed one of the acts listed above and a finding that:
- Other means of correction are not feasible or have failed repeatedly; or
- The student’s presence causes a continuing danger to the physical safety of the student or others. [Cal. Ed. Code Sec. 48915(b).]
In addition, the California Education Code at Section 48915(c) requires a principal or superintendent of schools to immediately suspend and recommend for expulsion a pupil who commits any of the following acts:
- Possessing, selling or furnishing a firearm;
- Brandishing a knife at another person;
- Selling a controlled substance;
- Committing or attempting a sexual assault or committing a sexual battery; or
- Possessing an explosive.
The governing school board must order the pupil expelled upon a finding that the pupil committed one of these acts. [Cal. Educ. Code Sec. 48915(d).] However, this mandatory expulsion provision is not enforceable against a special education student unless the student has been afforded all of the procedural and substantive safeguards set forth in this chapter and, after application of those safeguards, has been found eligible for expulsion.
(8.5) What can I expect if my child is suspended?
A teacher may suspend a student for up to two days. [Cal. Ed. Code Sec. 48910.] A principal may suspend a student for up to five days. [Cal. Ed. Code Sec. 48911.] Typically, with suspensions, there is a pre-suspension conference involving the principal and teacher and the student. At that conference, the student is told why he is being suspended and what the evidence is against him, and he is given an opportunity to present his version of the event and any evidence in his favor. The law does not require the school to wait for the parent to arrive to hold this pre-suspension conference. [Cal. Ed. Code Sec. 48911(b).] However, the school is required to make reasonable efforts to contact the parent by phone at the time of the suspension. [Cal. Ed. Code Sec. 48911(d).]
A student can be suspended without a pre-suspension conference if the principal determines that an emergency situation exists. An emergency situation is where there is a “clear and present danger” to the life, safety or health of students or school staff. [Cal. Ed. Code Sec. 48911(c).] If no pre-suspension conference is held, because it is an emergency situation, a conference must be held within two school days. Both the parent and student must be notified of this conference and the student must be allowed to return to the campus to attend. [Cal. Ed. Code Sec. 48911(c).]
You must also be informed in writing of a suspension. [Cal. Ed. Code Sec. 48911(d).] The written notice should specify the section or sections of the Education Code which the district says your child violated. You are required to respond without delay to any request from school officials to attend a conference regarding your child's behavior. [Cal. Ed. Code Sec. 48911(f).]
(8.6) Can my child be required to serve a suspension at school?
Yes. A principal may assign students to serve suspensions in school. [Cal. Ed. Code Sec. 48911.1.] A school employee must notify the parent or guardian in writing when a student is assigned to an in-school suspension room for longer than one class period. [Cal. Ed. Code Sec. 48911.1(d).] For students with disabilities, in-school suspension days count as a removal towards a “change of placement” unless the student is afforded the opportunity to continue to appropriately participate in the general curriculum, continue to receive the services specified on the student’s IEP, and continue to participate with nondisabled children to the extent they would have in their current placement. [71 Fed. Reg. 46715 (Aug. 14, 2006).]
(8.7) Under what circumstances could my child with a disability be suspended or expelled from school?
Students with disabilities are subject to the same suspension rules as nondisabled students. However, before a school district can recommend that a student with a disability be expelled, a “manifestation determination” meeting must be held to discuss whether the student’s behavior was related to his disability or his IEP was implemented. [34 C.F.R. Sec. 300.530(e).]
If the behavior was related to the student’s disability or his IEP was not implemented, the student cannot be expelled and appropriate services need to be determined and provided to the student. The determination of placement is an IEP team decision and expulsion from school is a “change of placement”. A change of placement such as expulsion cannot be made without holding a “manifestation determination” meeting. The IEP team must hold a “manifestation determination” meeting upon a “change of placement.”
A “change of placement” also occurs when the student is suspended for more than 10 consecutive school days or when a student has more than 10 cumulative suspensions that constitute a pattern of removals due to proximity of suspensions and/or similarity of the incidents. [34 C.F.R. Sec. 300.536.] In this situation, the school district must also hold a manifestation determination meeting to determine the student’s educational, behavioral and placement needs and services. The school district cannot change your child’s placement without your consent, or without a manifestation determination meeting, except for certain serious behaviors. (See Question 11 below.)
State law defers to federal law for most of the rules governing suspension and expulsion of special education students. [Cal. Ed. Code Sec. 48915.5.] Federal and state law allow for up to 10 consecutive days of suspension of special education students without any requirement of a manifestation determination, but for suspensions in excess of 10 days, there must be a special meeting. [20 U.S.C. Sec. 1415(k)(1)(B).] Principals, therefore, sometimes extend students’ five-day suspensions by an additional five days. A student may be suspended on a first offense only for reasons (1) through (5) in the list in question 2 below, or because his presence causes a danger to persons. [Cal. Ed. Code Sec. 48900.5.]
(8.8) What is a “manifestation determination” meeting?
The manifestation determination meeting is an IEP meeting to determine whether a student with a disability may be expelled from school or have his placement changed for more than 10 school days for misconduct. It must be held within 10 school days of the school’s decision to expel the student or change his placement. At the meeting, the IEP team reviews the relevant information from the student’s file, including the IEP and any information from teachers and the parents, and then decides two things:
- Was the behavior caused by, or did it have “a direct and substantial relationship” to the student’s disability; and
- Was the behavior the direct result of the district's failure to implement the IEP?
[34 C.F.R. Sec. 300.530(e).]
If the IEP team answers “YES” to either question, the student cannot be expelled. Also, any placement change requires either the consent of the parent or an ALJ's order. If the IEP team determines that the behavior is a manifestation of the student's disability, the student has the right to go back to his original placement unless the IEP team decides that a change of placement is appropriate. The school must also do a functional behavioral assessment (FBA) for the student or modify the student’s existing behavioral intervention plan (BIP) to address the behavior. [20 U.S.C. Sec. 1415(k)(1)(F); 34 C.F.R. Sec. 300.530(f).]
If the team answers “NO” to both questions, the student can be referred for expulsion.
(8.9) How do I prepare for the manifestation determination meeting?
You should be prepared to discuss each of the questions that must be answered before the district can recommend that your child be expelled from school. The manifestation determination IEP team must agree that your child’s behavior was not directly related to his disability and that the IEP was properly implemented before a district can change a special education student’s placement. You can use school district staff (if they agree with your position) or school documents, independent experts and service providers, and your input to support your viewpoint. Therefore, if you have not done so, you should consider obtaining an independent psychological or counseling professional’s opinion as to the two questions that the team must answer. You should bring that professional (or their report) to the meeting. You should also consider bringing an advocate or attorney to your manifestation determination meeting, if possible.
As a part of your advocacy at the manifestation determination IEP meeting, you should consider whether all of the components of the IEP were implemented. Were the services written into the IEP actually being provided at the time of the behavior in question? If a BIP was in place, was it being implemented as required by the IEP at the time of the behavior? If the IEP included a BIP or goals that addressed significant behaviors, it is more likely that the manifestation determination team will find that the behaviors were related to your child’s disability.
In addition, you should also consider whether the district addressed all of your child’s behavioral needs. Were behavioral problems evident before the misconduct that led to the manifestation determination meeting? If so, was an FBA ever done? Was a behavior plan in place? Did the IEP specify a certain class size or type; a kind of classroom environment; or particular curriculum or other modifications? If so, were those IEP components being provided at the time of the misconduct in question? If ongoing behavioral issues were not addressed by staff appropriately, you may be able to convince the district that the student should not be referred for expulsion.
(8.10) If I disagree with the recommendation of the manifestation determination IEP team to expel my child, can I challenge the recommendation?
Yes. If you disagree with the team recommendation, you can file for due process to dispute the recommendation of the manifestation determination team. [20 U.S.C. Sec. 1415(k)(3); 34 C.F.R. Secs. 300.530 - 300.532.] In most cases, until the due process proceedings have been completed, your child must remain in his current classroom placement and continue to receive the special education services required in his IEP. See Chapter 6, Information on Due Process/Compliance Procedures.
(8.11) Are there any circumstances under which a school can change my child's placement immediately?
Yes. Under certain circumstances, a district can immediately place your child in a different placement, and keep him there for up to 45 school days, even if the behavior is found to be a manifestation of his disability. In this situation, the different placement is called an “interim alternative educational setting”.
Your child may be placed in an “interim alternative educational setting” if the district claims he has done any of the following:
- Carried a weapon to school or possessed a weapon at school or on school grounds or at a school function;
- Knowingly possessed or used illegal drugs, or sold or solicited the sale of such a drug while at school, on school grounds, or at a school function;
- Inflicted serious bodily injury upon another person while at school, on school grounds, or at a school function. "Serious bodily injury" means: substantial risk of death, or extreme physical pain, or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
[20 U.S.C. Secs. 1415(k)(1)(G) & (7)(d)); 34 C.F.R. Sec. 300.530(g).]
Even if the school district attempts to remove your child to an interim alternative educational setting, it must still meet with you within 10 school days to have a manifestation determination meeting.
You may file for due process to disagree with the manifestation determination IEP meeting decision on expulsion, including moving your child to an interim alternative educational setting. If you file for due process to challenge the placement of your child in an interim setting, or the rest of the IEP team’s decision regarding whether the behavior was a manifestation of disability, an ALJ will decide—in an expedited hearing— whether to return your child to his original placement or leave him in (or order him into) a 45-day alternative placement. [20 U.S.C. Sec. 1415(k)(3)(B); 34 C.F.R. Sec. 300.532(b).]
During the challenge to either the interim setting or the district’s determination that the behavior was not a manifestation of your child’s disability, your child will stay in whatever setting the district has placed him. [20 U.S.C. Sec. 1415(k)(4)(A).] The hearing must be held within 20 school days from the date of your request and the ALJ must issue a decision within 10 school days after that. There must also be a “resolution session” or mediation held within seven days of the request. [20 U.S.C. Sec. 1415(k)(4)(B); 34 C.F.R. Sec. 300.532(c).] See Chapter 6, Information Due Process/Compliance Complaints.
The district can also request a due process hearing to ask an ALJ to order a change of placement if the district “believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others. [34 C.F.R. Sec. 300.532(a).] If the ALJ determines that maintaining the current placement of the student is substantially likely to result in injury to the student or to others, he may order a change in placement to an appropriate interim alternative educational setting for not more than 45 school days. [20 U.S.C. Sec. 1415(k)(3)(B)(ii)(II); 34 C.F.R. Sec. 300.532(b)(2)(ii).]
While in an interim alternative educational setting, during a long-term suspension (or expulsion), a student is still entitled to a free appropriate public education which enables the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child’s IEP. This includes behavioral intervention services and modifications so that the behavior for which the student has been placed in the interim alternative educational setting does not recur. [34 C.F.R. Sec. 300.530(d).]
(8.12) The district moved my child into a new classroom for disciplinary reasons. Is this a “change of placement” requiring an IEP meeting?
As stated above, the district can immediately place your child in an interim alternative educational setting (for conduct involving weapons, illegal drugs or inflicting serious bodily injury) and keep him there for up to 45 school days, even if the behavior is found to be a manifestation of his disability. There is no stay-put requirement under such circumstances. [34 C.F.R. Sec. 300.533.] However, if your child was recommended for expulsion for any other behavior, the stay-put requirements should be followed.
Also, a district may try to make a “disciplinary transfer” of your child to a new school. This may be done to avoid a stay-put (arguing that a change of school is not a change of placement, if the same IEP is offered at the new site) or because your child has behavior problems at school. Except as described above, changing your child’s placement (including a “disciplinary transfer”) is a decision that must be made by the IEP team, where due process procedures may be used.
(8.13) Must the district continue to provide special education services to my child if he is suspended for more than ten days or if he is expelled?
Yes. Unlike general education students, students with disabilities must continue to receive a free appropriate public education (FAPE) during any period of suspension beyond 10 days, during any period of interim placement and during any period of expulsion. [20 U.S.C. Secs. 1412(a)(1) & 1415(k)(1)(D); 34 C.F.R. Sec. 300.530(d).] The services your child receives under these circumstances must enable him to continue to participate in the general curriculum and to continue to progress toward meeting his IEP goals and to receive needed behavioral assessments and services. [20 U.S.C. Sec. 1415(k)(1)(D); 34 C.F.R. Secs. 300.530(d)(1)(i) & (ii).]
(8.14) I believe my child has a disability which caused his misbehavior, but the school district has never evaluated him for special education. Do the rules regarding the discipline of special education students apply to him?
The special education disciplinary rules apply if, before the behavior incident, the district “has knowledge” that your child has or may have a disability. If your child is not already identified as a special education student, there are three situations in which a district will be “deemed” to have this knowledge:
- When a parent had expressed concern in writing (before the student's misbehavior) to a school administrator or the student's teacher that he needs special education and related services;
- When a parent had requested (before the misbehavior) that the student be evaluated for special education; and
- When, before the misbehavior, a teacher or other school personnel had expressed specific concerns about a pattern of behavior directly to the special education director, or other supervisory personnel.
[20 U.S.C. Sec. 1415(k)(5); 34 C.F.R. Sec. 300.534(b).]
There are three situations in which the district will not be deemed to have knowledge:
- When the district has already assessed a student and determined he is not eligible for special education;
- When the parent has not allowed an evaluation; or
- The parent has refused special education services.
[34 C.F.R. Sec. 300.534(c).]
In these situations, a student is not protected under the special education discipline rules.
(8.15) What if I requested a special education evaluation for my child but I did not do it in writing?
State law requires that a special education evaluation go forward even if the request is made orally by the parent. District staff receiving such a request must assist the parent, if the parent asks for the assistance, in putting the referral request into writing. [Title 5 California Code of Regulations (C.C.R.) Sec. 3021(a).] An oral request for evaluation, even if it was not acted on by the district, should be enough to show the district had sufficient knowledge of a suspected disability for purposes of holding an IEP team meeting to make a manifestation determination. [34 C.F.R. Sec. 300.534.]
Even if you have made an oral request for evaluation, you should also put your request in writing and send it to the school district. In your letter, you need to specifically request an evaluation for special education services and tell the district why you think your child has a qualifying disability. It is not enough just to express your concerns. [See Saddleback Valley Unified School District v. Student, OAH Case No. 2010100932.]
(8.16) My child, who is being expelled, has not been made eligible for special education, but since the incident occurred I have requested an evaluation. What will happen with my child’s placement while we are waiting for the results of that evaluation?
When you have requested an evaluation for special education eligibility after the behavioral incident that led to the expulsion recommendation, the evaluation must be done more quickly. However, until the results of the evaluation are available, your child will remain in the educational placement determined by school officials. This means that your child can be expelled before the expedited assessment process is completed. [20 U.S.C. Sec. 1415(k)(5)(D); 34 C.F.R. Sec. 300.534(d)(2).]
(8.17) Does the teacher or other staff member’s expression of concern about behavior need to be in writing?
No. A teacher or other staff must express specific concerns about your child’s pattern of behavior directly to the special education director or other supervisory staff. However, these concerns do not need to be expressed in writing. [34 C.F.R. Sec. 300.534(b)(3).]
(8.18) Can my child be expelled from just the transportation portion of his school program?
Yes. However, if your child is excluded from school bus transportation, and transportation is a part of his IEP, he is still entitled to an alternative form of transportation at no cost to you. [Cal. Ed. Code Sec. 48915.5(c).] An IEP meeting must be held before excluding your child from the bus, because this is a change in IEP service.
(8.19) Are there any special rules governing the discipline of students identified as having a disability under Section 504 of the Rehabilitation Act of 1973?
Section 504 requires that schools evaluate a student believed to have a disability before making an initial placement of the student and before any subsequent, significant change in placement of the student. [34 C.F.R. Sec. 104.35(a).] According to OCR, the exclusion of a student for more than 10 consecutive days, the exclusion for an indefinite period, and the permanent exclusion of a student (expulsion) can constitute significant changes of placement under Section 504. A series of suspensions, each of which is 10 or fewer days in duration, but that creates a “pattern of exclusions”, may also be a significant change in placement. [Office of Civil Rights, Letter re: Akron City School Dist., 19 IDELR 542 (Nov. 18, 1992) (cited in Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1495 (9th Cir. 1994).]
Before changing a Section 504 student’s placement, the district must conduct a reevaluation of the student to determine whether the misconduct in question is caused by the student’s disability and, if so, whether the student’s current educational placement is appropriate. [34 C.F.R. Sec. 104.35(d).] As a first step in the re-evaluation, the district must determine whether the misconduct is caused by the student’s disability. This determination may be made by the same group of persons who make initial placement decisions for Section 504 students. Recent psychological evaluation information related to the behavior should be made available to the group. The determination should not be made by those responsible for the district’s regular disciplinary procedures, such as administrators, who lack expertise and personal knowledge about the student. These individuals, however, may participate as members of the placement decision group.
If it is determined that the misconduct of a Section 504 student is caused by the disability, the evaluation team must continue the evaluation to determine whether the student’s current educational placement is appropriate. Even when the behavior is caused by the disability and the appropriateness of the current educational placement is reviewed; that review, presumably, could find that the placement is not appropriate and could lead to a permanent change in placement and/or services.
If it is determined that the misconduct is not caused by the student’s disability, the student may be expelled from school in the same manner as students without disabilities. In such a situation, Section 504 and the ADA would permit all educational services to a solely Section 504 student to cease. The 504 expulsion standards are different from those applied to students eligible for services under the IDEA. [Discipline of Student with Disabilities in Elementary and Secondary Schools, OCR, October 1996, available at: http://corporate.findlaw.com/law-library/discipline-of-students-with-disabilities-in-elementary-and.html.]
(8.20) What rights do I have if I disagree with the Section 504 determination about my child’s behavior?
If you disagree with the determination that the behavior is not related to the student’s disability — or with the placement proposal in those cases where the behavior is determined to be caused by the disability — you may request a Section 504 hearing. The regulations require that the hearing be impartial, and that parents have the opportunity to participate and be represented by counsel. [34 C.F.R. 104.36.] Unlike special education disciplinary procedures, each school district establishes its own Section 504 hearing procedures. The school district alone chooses a hearing officer to make a decision on the disagreement. OCR has stated that employees and board members of your district may not serve as hearing officers. If another district shares a contract with your district to provide services to students with disabilities, its employees are also prohibited from serving as hearing officers. [Letter to Anonymous,18 IDELR 230 (OCR 1991).]
There is another important distinction between special education and 504 discipline procedures. Unlike the IDEA discipline procedures, the Section 504 procedures do not have a “stay put” provision. Therefore, a Section 504 student’s placement could be changed or he could be expelled while the Section 504 hearing is still pending. However, OCR has suggested that changing a student’s placement before the parent has challenged the decision “seems to undermine the rights given by due process,” and that a “fair due process system would encompass the school district waiting for the results of the process before making the change”. [Letter to Zirkel,22 IDELR 667(1995).]
If the behavior is related to the current use of alcohol or illegal drugs, school districts may take disciplinary action against a student with a disability to the same extent that it takes disciplinary action against persons not having disabilities. The due process procedures discussed above do not apply when disciplinary actions are due to the current use of illegal drugs or alcohol by students with disabilities. [29 U.S.C. Sec. 705(20)(C)(iv).]
(8.21) What are the rights of my child to return to school in the district that expelled him?
The district Board of Education must adopt local rules and regulations that establish a procedure for processing requests for readmitting expelled students. However, readmission is not automatic. Your school district must determine that your child can be readmitted to the school district. [Cal. Ed. Code Sec. 48916.]
The Board, after voting to expel your child, may suspend enforcement of the expulsion for a period up to one year. During this period, he is “on probation”. Probation may be revoked, and the expulsion enforced, if your child commits any act for which he could have been suspended or expelled or for any violation of the district’s student conduct code. After one year of successful probation, he must be reinstated. The district may, but is not required to, expunge your child’s records of all information related to the suspended expulsion. [Cal. Ed. Code Sec. 48917.]
The order expelling your child must specify the date when he may apply for readmission. That date cannot be later than the last day of the semester following the semester in which the expulsion occurred, but can be earlier. The order can include a plan of rehabilitation that your child must follow during the period of expulsion. It may also include an assessment at the time of application for readmission. The plan may also include recommendations for improved academic performance, tutoring, special education assessment, job training, counseling, employment, community service or other rehabilitative programs. [Cal. Ed. Code Sec. 48916.] If any of the reasons for expulsion related to controlled substances or alcohol exists, the district may require, as a condition of readmission and with your consent, that your child enroll in a county-supported drug rehabilitation program. [Cal. Ed. Code Sec. 48916.5.]
(8.22) If my child is expelled, what are the rules governing admission of my child to a new school district?
Your child may be admitted to school in another district only if:
- He establishes legal residence in the jurisdiction of the new district;
- His current district grants him an inter-district transfer.
[Cal. Ed. Code Secs. 46600(c) (transfer for expelled students), 46601 (appeals) & 46603 (provisional admission).]
The new district may request information and/or a recommendation from the former district and will then hold a hearing to determine whether your child poses a continuing danger to the students or employees of the new district. [Cal. Ed. Code Secs. 48915.1(a)-(b).] The hearing is conducted under the same rules and procedures as regular expulsion hearings. [Cal. Ed. Code Sec. 48918.] If, after the hearing, the district determines that your child does pose a continuing danger, it may condition enrollment on attendance in a specified program or may deny the request for admission. [Cal. Ed. Code Secs. 48915.1(c)-(d).] If the district determines that your child does not pose a continuing danger, it must admit him to one of its schools for the remainder of the expulsion period, provided he has established residence in the new district or has obtained an inter-district transfer. [Cal. Ed. Code Sec. 48915.1(e).] If you have not informed the new district of the expulsion from the former district and the new district finds out, the fact of nondisclosure must be recorded and may be discussed at the readmission hearing described above.
However, if your child was expelled for any of the following reasons, he cannot enroll in any other California district during the period of his expulsion, unless it is a county community school or juvenile court school:
- Causing serious physical injury to another person (except in self-defense);
- Possessing a knife, explosive or other dangerous object of no reasonable use to him at school or at a school activity off campus;
- Possession of a controlled substance;
- Engaging in robbery or extortion;
- Assault or battery;
- Possession or sale of a firearm;
- Brandishing a knife;
- Sale of a controlled substance; or
- Sexual assault.
[Cal Ed. Code Secs. 48915.1, 48915(a) & (c), 48915.2(a).]
After the period of expulsion (for any of the above reasons) is over, your child may be admitted to the new district if he meets the residence or inter-district transfer requirements. The admission would only be considered if, after a hearing, the new district determines that he does not pose a continuing danger.
If your child is expelled and is re-enrolled in a new school district, the new school district must continue to provide special education and related services to your child comparable to your student’s current IEP.
(8.23) My child has behavior problems that may put him at risk of suspension and/or expulsion. Are there any special services or protections for him?
Under current federal and state law, school districts MUST provide appropriate behavior-related services and supports, including detailed functional behavioral assessments and positive behavioral intervention plans when needed, whenever a student has behaviors that interfere with that student’s or another student’s learning. [Cal. Ed. Code Sec. 56520(b)(3).
If your child has behaviors which interfere with your child’s or another child’s learning, federal law requires that the IEP team consider which behavior supports and strategies and other services are needed so that your child can benefit from education in the least restrictive environment. [34 C.F.R. Sec. 300.324(a)(2), (b)(2); Cal. Ed. Code Sec. 56521.2(b).] The school district has to provide the type of assessment, plan, services or supports that your child’s IEP team determines are necessary to help your child with her behavior. Your child’s behavior should not prevent her from receiving the opportunity to benefit from education or to be educated in a less restrictive setting.
If your child has serious behaviors, such as aggressive or self-injurious behaviors, the IEP team should consider whether your child needs a Functional Behavioral Assessment (FBA) or Behavior Intervention Plan (BIP) along with considering other services or strategies to address his or her behavior needs. If your child has had a BIP that has not been effective in addressing your child’s challenging behavior, you should point this out to the IEP team and request that your child receive a detailed FBA so that the IEP team has enough information to develop a more detailed BIP.
Remember that before a student with a disability can be expelled, the district must conduct a manifestation determination meeting. If a district wishes to expel a student for a behavior that has been targeted for change under a BIP included in the student’s IEP, the IEP team would almost certainly have to find that the behavior was a manifestation of the student’s disability. Also, the district may have failed to implement the BIP called for in the IEP. Under either circumstance, expulsion would be prohibited. Therefore, you must make sure that your child’s BIP specifically addresses your child’s behaviors in a comprehensive way. This will better protect your child against a referral for expulsion for any of those behaviors.
School districts may suspend special education students for misconduct even though the behavior involved is targeted for change in the student’s BIP (subject to the suspension limitations discussed above). In recent guidance, however, the Office of Special Education and Rehabilitation Services (OSERS) stated that the IDEA does not provide school personnel with the broad authority to suspend for fewer than ten days without regard to whether the child’s IEP or BIP is properly addressing his or her behavioral needs. In other words, a series of suspensions of 10 days or fewer may indicate that the child’s IEP is not reasonably calculated to provide a meaningful educational benefit, and that the IEP team should address the need for additional behavioral supports. [OSERS, Dear Colleague Letter on the Inclusion of Behavioral Supports in Individualized Education Plans, available at: https://www2.ed.gov/policy/gen/guid/school-discipline/files/dcl-on-pbis-in-ieps--08-01-2016.pdf.]
(8.24) Are there laws that specifically prohibit some behavior programming or techniques?
Yes. Under state law, “emergency interventions” such as restraint and seclusion may only be used when:
- Your child engages in unpredictable, spontaneous behavior, and
- The behavior presents a danger of serious physical harm to the student or others, and
- The dangerous behavior cannot be immediately prevented by a less restrictive response than the emergency intervention.
Emergency interventions cannot be used as a substitute for a positive behavioral intervention plan, last longer than is needed to contain the behavior, or involve an amount of force that exceeds that which is reasonable and necessary under the circumstances. [Cal. Ed. Code Sec. 56521.1.]
State law contains very specific guidelines on the handling and documentation of behavioral emergencies. After the emergency intervention, the school must contact the parent/guardian within one schoolday. Further, the school must “immediately” complete a Behavioral Emergency Report (BER) that will be kept in the student’s file. The BER must contain:
- The name and age of the individual with exceptional needs;
- The setting and location of the incident;
- The name of the staff or other persons involved;
- A description of the incident and the emergency intervention used, and whether the student currently has a BIP; and
- Details of any injuries sustained by the student, or others, including staff.[Cal. Ed. Code Sec. 56521.1(e).]
All BERs must be immediately forwarded to, and reviewed by, a designated administrator. [Cal. Ed. Code Sec. 56521.1(f).] If the BER is written about a student who does not have a BIP, the school must schedule an IEP meeting within two days to discuss whether one is needed. If the student has a BIP and the incident involved a previously unseen serious behavior problem, or a previously designed intervention is ineffective, the IEP should meet to determine whether to modify the BIP. [Cal. Ed. Code Sec. 56521.1(g)-(h).]
Even in emergencies (and in all other behavior services), emergency interventions used by the school district cannot involve the infliction of pain or trauma. [Cal. Ed. Code Secs. 56520(a)(4), 56521.2(a).] Specific prohibited emergency interventions include:
- Causing physical pain, including, but not limited to, electric shock;
- Releasing noxious, toxic, or otherwise unpleasant sprays, mists, or substances near a student’s face;
- Denying adequate sleep, food, water, shelter, bedding, physical comfort, or access to bathroom facilities;
- Subjecting the student to verbal abuse, ridicule, or humiliation;
- Using an object that simultaneously immobilizes all four extremities;
- Locked seclusion;
- Precluding adequate supervision of the individual; and
- Depriving the individual of one or more of his or her senses.
[Cal. Educ. Code Sec. 56521.2(a).]
However, in a behavioral emergency, properly trained school personnel may use prone containment. [Cal. Ed. Code Sec. 56521.1(d)(2).]
(8.25) What can I do if teachers or other school staff physically or emotionally abuse my child?
Whether it is in the context of “discipline” or otherwise, a complaint may be filed with the California Department of Education (CDE) under the Uniform Complaint Procedure if: (1) a child or group of children is in immediate physical danger; or (2) the health, safety or welfare of a child or group of children is threatened. The CDE must directly intervene and not refer the complaint to the school district for a local investigation. [5 C.C.R. Secs. 4611(a) & 4650(a)(7)(C).] See questions regarding Compliance Complaints in Chapter 6, Information on Due Process/Compliance Procedures.
If the school district violates any of the state laws regarding emergency interventions, you can also file a special education compliance complaint with the California Department of Education (CDE). [34 C.F.R. Sec. 300.151-153.] See questions regarding Compliance Complaints in Chapter 6, Information on Due Process/Compliance Procedures.
(8.26) If, after the manifestation determination or 504 meeting, the team recommends a student for expulsion (and you choose not to challenge the recommendation through due process), what are the procedures for the expulsion hearing and for any appeals?
If the IEP team recommends a referral for expulsion, the district must then hold an expulsion hearing. The hearing must be scheduled to be held within thirty days after the decision to expel the student is made. [Cal. Ed. Code Sec. 48918.] Once scheduled, you have the right to automatically postpone the expulsion hearing for up to 30 days to adequately prepare. [Cal. Ed. Code Sec. 48918(a).] You should attend the hearing, with experts and supporters, to provide arguments against expulsion (usually the same arguments that were presented at the manifestation determination meeting).
A full discussion of the procedures governing expulsion hearings and for any appeals of the results of those hearings is beyond the scope of this manual. You should consult California Education Code Sections 48918 - 48926 for more information, as well as your district policies for expulsion hearings.
(8.27) The district proposes to remove my child from school because of his behavior problems and is recommending home instruction as his placement. Can the district do this?
Yes. However, any home instruction program must be individually designed to assure that progress toward goals and objectives continues, even if the program is being provided at the student’s home. The law also requires that students have access to (and make progress in) the general education curriculum. [20 U.S.C. Sec. 1414(d)(1)(A)(i).] All the same procedures must be followed by the IEP team in developing an IEP for a student to be instructed at home as are followed for any other special education student. [U.S. Department of Education, Office of Special Education Programs, Letter to Boney (1991) 18 IDELR 537.] State law has additional rules for providing home instruction to students with disabilities. The rules include the requirement that the IEP team have a report from a physician or psychologist that includes a projected date for the student’s return to school. [5 C.C.R. Sec. 3051.4.]
Home instruction is also available to general education students with temporary disabilities, and provides them with one hour of instruction per day. [Cal. Ed. Code Sec. 48206.3.] This service is different from individualized in-home placement and instruction under the IDEA for purposes of providing a FAPE to a child with disabilities. Both services are commonly referred to as “home/hospital instruction,” but home instruction for a student with an IEP must continue to provide a FAPE. [See Student v. Tehachapi Unified School District, OAH Case No. 2015060035.]
Home instruction, one of the most restrictive placements, is an educational program option available to students with disabilities who cannot be educated in a public school setting. Typically, students in this placement have significant health needs, a temporary illness or disability or significant behavioral challenges. This placement should not be used as a substitute for providing behavioral supports in a classroom setting. In recent guidance, OSERS stated that placement on home instruction may suggest that the child’s placement in the least restrictive environment may not be appropriate. [OSERS, Dear Colleague Letter on the Inclusion of Behavioral Supports in Individualized Education Plans, available at: https://www2.ed.gov/policy/gen/guid/school-discipline/files/dcl-on-pbis-in-ieps--08-01-2016.pdf.]