Consequences for behavior problems should not discriminate against a student based on his/her disability.  Yet, schools suspend and expel students with disabilities for behavior caused by their disabilities.  For this reason, it's important to know your rights and your son's rights as they relate to suspensions and expulsions.   

 

"Suspension" means the removal of a student from ongoing instruction for adjustment purposes. During a suspension, the district personnel has the authority to move a student from their current placement into another placement (an "interim alternative setting") on a temporary basis. The grounds for suspension are the same for students with and without disabilities.  The California Ed Code lists over fifteen grounds for suspension that include: causing or threatening physical injury to another; possessing a knife, gun or other dangerous object without school permission; unlawfully possessing, using, or furnishing a controlled substance or alcoholic beverage; damaging or attempting to damage school or private property; and disrupting school activities or otherwise willfully defying school authorities.  Typically, an informal/pre-suspension conference involving the principal, teacher and the student is held to inform the student why they are being suspended and allow them to tell their side of the story.  The school is required to make reasonable efforts to contact the parent at the time of the suspension but does not require waiting for the parent to arrive to hold this conference.  Additionally, a student can be suspended without this informal conference if the principal determines that an emergency situation (i.e., "clear and present danger") exists.  In this case, a conference must be held within two school days and both the parent and student must be notified and the student allowed to return to campus to attend.  The school is required to also notify the parent of the suspension in writing.

 

Students receiving special education services may not suspended for more than 10 consecutive school days without parental consent or a court or hearing officer's order.  Any suspension of a special education student in excess of 10 consecutive days is considered a change of placement and a " manifestation determination" meeting must be held.  The purpose of this meeting is for the IEP team to determine whether the behavior that led to the decision to suspend or expel the student was either (1) caused or was directly substantially related to the student's disability, or (2) was a direct result of the school's failure to implement the IEP.  Your child has the right to go back to his/her initial classroom placement after the 10 consecutive days of suspension expire even if a manifestation determination meeting is pending. ( E xception:  If the behavior involved weapons, drugs or inflicted serious bodily injury, the school can move the student's placement to another setting for 45 days but that setting must provide free and appropriate public education.)

 

The manifestation determination meeting is very important and you need to make sure you are prepared.  Some parents bring an advocate or attorney with them.  There are several things you should consider:  What is your child's disability as documented on their IEP and school evaluations?  Research your child's disability to determine if his/her behavior is connected (i.e., review the DSM-V to see symptoms - or manifestations - of the diagnosis, look through past school psychology assessments to see if the behavior is mentioned, etc.).  If there was already a behavior assessment and/or plan in place previously, did the school staff follow it?  Record the meeting (give the school 24 hours notice). 

 

If the team determines the conduct was a manifestation of the student's disability, then a functional behavior assessment must be completed and behavior intervention plan implemented.  If there was already a behavior intervention plan in place, it needs to be reviewed and modified as necessary to address the behavior.  And remember your right to request an Independent Educational Evaluation (IEE) if you do not agree with the school's behavior assessment.  Obtaining a behavior assessment from a professional outside the district may be what is needed to appropriately support the student.  Lastly, a behavior plan can only work if staff are properly trained and it's implemented correctly. 

 

If the team determines the conduct is not a manifestation of the student's disability, the district may continue with expulsion proceedings.  If you disagree with the school's determination, you can file an appeal through an expedited special education due process hearing. (For more information about appealing, please contact our office.) For any placement change or removal adding up to more than 10 cumulative days in a school year, your child must receive free and appropriate public education (FAPE) even if your child is in an alternative placement.  This means the district must provide services in order to allow the student to progress appropriately in the general curriculum and to make progress toward achieving his/her IEP goals.  Additionally, the student should receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur. 

 

What if your child is not a special education student?  The same rules would apply if the district "has knowledge" that your child has a disability.  The district would "have knowledge" if any of the following occurred prior to the student's misbehavior:   (a) you had expressed concerns in writing to a school administrator or teacher that the student needs special education;  (b) you had requested that the student be evaluated for special education and the district did not do so; or (c) a teacher or other school personnel expressed specific concerns about a pattern of behavior directly to the special education director or other supervisory personnel.  Any of these taking place prior to the misbehavior would constitute the district having knowledge of the disability and your child would be afforded the same rights as a student receiving special education services.  You would then file for a due process hearing to present your evidence.

 

"Everyone in the classroom has a story that leads to misbehavior or defiance.  Nine times out of ten, the story behind the misbehavior won't make you angry.  It will break your heart."  Annette Breaux