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(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?

(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:

  1. 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;
  2. When a parent had requested (before the misbehavior) that the student be evaluated for special education; and
  3. 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:

  1. When the district has already assessed a student and determined he is not eligible for special education;
  2. When the parent has not allowed an evaluation; or
  3. 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.