Does the IEP team have the authority to decide whether to discipline a student eligible for special education, and if so, the amount and severity of the discipline?
Arizona Revised Statutes (A.R.S.) acknowledge the authority of teachers and schools to maintain order and to discipline students, and to hold pupils to strict account for disorderly conduct on school property. [A.R.S. § 15-341(12)] There is nothing in the IDEA regulations or in Arizona law that allows a school to cede to parents or a student’s IEP team the deciding voice on whether or not discipline is to be imposed, and if so, the amount and severity of that discipline.
Must a school provide special education and related services to a child with a disability during disciplinary removals?
It depends. The regulations that implement the IDEA state that school personnel may remove a child with a disability who violates the code of conduct from his/her current educational placement for not more than 10 consecutive school days and during that time, no services need to be provided (as long as educational services are not provided during similar removals involving children without disabilities). [34 C.F.R. § 300.530(b)] However, after a child has been removed from his/her current placement for more than ten school days in the same year for disciplinary reasons, the school must ensure that the child receives a FAPE. [Id.] In other words, the school must ensure that the child receives educational services that enable him/her to continue to participate in the general curriculum and to progress toward meeting the goals set out in his/her IEP.[34 C.F.R. § 300.530(d)]
In disciplinary matters, do the protections of the IDEA only begin when a student is determined eligible for special education by his/her multidisciplinary evaluation team (MET)?
The regulations that implement the IDEA allow children not yet eligible to receive special education services to assert the IDEA’s disciplinary protections if the school had knowledge that the child was a child with a disability before the disciplinary incident occurred. A school will be deemed to “have knowledge” if, prior to the disciplinary incident: (1) the parents expressed in writing to a school’s administrative or supervisory staff a concern that their child needs special education; (2) the parents requested an evaluation; or (3) school personnel expressed specific concerns about a student’s pattern of behavior to the school’s special education director or other school administrators. [34 C.F.R. § 300.534(b)(1)-(3)]
Under “special circumstances” involving weapons, drugs, or serious bodily injury, the IDEA allows school personnel to remove a child with a disability to an interim alternative educational setting (IAES) for not more than 45 school days regardless of whether the behavior is determined to be a manifestation of the child’s disability. How are “weapon,” “illegal drug,” and “serious bodily injury” defined?
The term “dangerous weapon” means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 1/2 inches in length, as defined by the United States criminal code. [18 U.S.C. § 930(g)(2)] Illegal drug means a controlled substance, but does not include one that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed, as defined by the Controlled Substances Act. [21 U.S.C. § 812(c)] (Alcohol does not fall under the definition of illegal drug in this context.) Serious bodily injury involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, as defined in the U.S. criminal code. [18 U.S.C. § 1365(h)(3)] These definitions are incorporated by reference in the IDEA.
Does a bus suspension count as a day of suspension?
The United States Department of Education/Office of Special Education Programs (OSEP) has explained that whether a bus suspension counts as a day of removal depends on whether bus transportation is included in the child’s IEP. “If the bus transportation were a part of the child’s IEP, a bus suspension would be treated as a suspension . . . unless the public agency provides the bus service in some other way, because that transportation is necessary for the child to obtain access to the location where services will be provided. If the bus transportation is not a part of the child’s IEP, a bus suspension is not a suspension (under § 300.530).” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart E-Procedural safeguards, Federal Register, Vol. 71, No. 156, p. 46715 (August 2006)]
Do partial days of suspension and in-school suspension count as days of removal?
“Portions of a school day that a child had been suspended may be considered as a removal in regard to determining whether there is a pattern of removals.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart E-Procedural safeguards, Federal Register, Vol. 71, No. 156, p. 46715 (August 2006)] In-school suspension would not count as a day of removal as long as the child “is afforded the opportunity to continue to appropriately participate in the general curriculum, continue to receive the services specified in [his/her] IEP, and continue to participate with nondisabled children to the extent they would have in their current placement.” [Id.]
Can a school call the police to report a crime allegedly committed by a student eligible for special education?
There is nothing in the regulations that implement the IDEA that “prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.” [34 C.F.R. 300.535(a)] When reporting a crime committed by a child with a disability, copies of the child’s special education and disciplinary records must be transmitted to such authorities for consideration, to the extent permitted by the Family Educational Rights and Privacy Act (FERPA). [Id. at subsection (b)]
When a student eligible for special education is removed from his/her current educational placement for more than ten school days in a school year, who determines what educational services are needed to ensure that the student continues to receive a FAPE?
“After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, if the current removal is for not more than 10 consecutive school days and is not a change of placement under §300.536, school personnel, in consultation with at least one of the child’s teachers, determine the extent to which services are needed . . . so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.” [34 C.F.R. § 300.530(d)(4)] “If the removal is a change of placement under §300.536, the child’s IEP Team determines appropriate services. . .” [Id. at subsection (d)(5)] Remember, a disciplinary change of placement occurs if: (1) the student is removed for more than 10 consecutive school days, or (2) the student is subjected to a series of removals that constitute a pattern. [34 C.F.R. § 300.536]
The educational services a child will receive during days of removal will depend on the circumstances and need not replicate everything in the child’s IEP. The United States Department of Education/Office of Special Education Programs (OSEP) offers the following guidance: “We believe the extent to which educational services need to be provided and the type of instruction to be provided would depend on the length of the removal, the extent to which the child has been removed previously, and the child’s needs and educational goals. For example, a child with a disability who is removed for only a few days and is performing near grade level would not likely need the same level of educational services as a child with a disability who has significant learning difficulties and is performing well below grade level.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart E-Procedural Safeguards, Federal Register, Vol.71, No. 156, p. 46717 (August 2006)]
Who determines what special education services are provided to a student with a disability who has been removed for disciplinary reasons?
If the disciplinary removal does not constitute a change of placement (because it is not more than 10 consecutive days or it is part of a series of removals that cumulates to more than 10 school days in the same school year, but does not amount to a pattern of removals, see 34 C.F.R. § 300.536), then school personnel, in consultation with at least one of the child’s teachers, determine the extent to which services are needed during the removal period. [34 C.F.R. § 300.530(d)(4)] If the removal is a change of placement, the child’s IEP team determines the appropriate services to be provided during the removal. [Id. at subsection (d)(5)]