The district may discipline a student with a disability. Discipline may include certain allowable removals from school.
The request for evaluation must be expedited. (20 USC 1415(k)(5)(D)(ii); 34 CFR 300.534(d)(2)(i)) Student remains in the placement determined by school. (20 USC 1415(k)(5)(D)(ii); 34 CFR 300.534(d)(2)(ii)) This placement may include a student being suspended or expelled without educational services. (34 CFR 300.534(d)(2)(ii))
A manifestation determination is a meeting that must be held after a decision to change the placement of a student with a disability because of a violation of a student code of conduct. (20 USC 1415(k)(1)(E)(i);34 CFR 300.530(e)(1))
At the meeting, participants review the incident that led to the most recent exclusion to determine
- if the conduct in question was caused by, or had a direct and substantial relationship to, the student’s disability; or
- if the conduct in question was the direct result of the district’s failure to implement the student’s IEP. (20 USC 1415(k)(1)(E)(i);34 CFR 300.530(e)(1))
If the answer to either question is yes, then the conduct is a manifestation of the student’s disability. In such a case, there may be no change in placement unless otherwise agreed by all parties, and no disciplinary measures may be taken against the student. ( 34 CFR 300.530(e)(2))
In these cases, the district must:
- on the day of the district’s determination, notify the student’s parents/guardian/SESP of the decision to change placement and of the parent/guardian/SESP’s procedural rights to have that decision reviewed; and (20 USC 1415(k)(1)(H); 34 CFR 300.530(h). These are rights under 34 CFR 300.504.)
- schedule a meeting, called a “manifestation determination” to review the decision to change placement. (20 USC 1415(k)(1)( E); 34 CFR 300.530(e))
School personnel must consult with at least one of the student’s teachers to determine the extent to which FAPE services are needed to enable the student to participate in the general education curriculum, although in another setting, and to continue to progress toward meeting the goals set out in the student’s IEP. 34 CFR 300.530(d)(4)
In addition to the requirements of the IDEA, the district must comply with state law regarding school discipline. Under state law, any student serving an in-school or out of school suspension (of any length), or expulsion must be provided an opportunity to earn credits, make up assignments, tests, papers, and other school work as needed to make academic progress during the removal. M.G.L. c. 76, § 21; 603 CMR 53.13(1).
A district may do multiple removals in one school year if each removal is for no more than 10 consecutive school days, if the total is 10 or fewer days and if those removals don’t otherwise constitute a change of placement.
Note: 34 CFR 300.530(b). If the removal is for more than 10 consecutive or cumulative school days or a removal is a change of placement, the district may still pursue the discipline, but the student has additional protections.
A change of placement1 can exist if there is:
- a removal for more than 10 consecutive school days;2 or
- a series of removals that constitutes a pattern, as identified by
- more than 10 cumulative removal days in the school year,
- the student’s behavior is substantially similar to his/her behavior in previous
incidents that resulted in removals, and
- additional factors like length of each removal, total time of removals and
proximity of removals to one another.3
The school district determines whether a pattern of removals exists and is therefore a change of placement.4
- Some allowable removals constitute a change of placement and some do not. Districts may pursue either type of removal, but there are special protections when a district seeks a change of placement. School personnel must consider any unique circumstances on a case-by-case basis when deciding if a change of placement is appropriate. 20 USC 1415(k)(1)(A); 34 CFR 300.530(a).
- 34 CFR 300.536(a)(1)
- 34 CFR 300.536(a)
- 34 CFR 300.536(b)(1)
An allowable removal is:
- in-school suspension
- out of school suspension;4
- placement in another setting; or
- assignment to an interim alternative educational setting (IAES) [ 20 USC 1415(k)(1)(B); 34 CFR 300.530(b)]
An “in-house” suspension may be considered a removal. DESE, Discipline of Special Ed Students Under IDEA 2004, Dec. 2007, “In-house suspension may be considered a change of placement.”
A student is not protected if:
- The parent doesn’t allow evaluation;
- The parent refuses special education services; or
- The student was evaluated and found not eligible.
20 USC 1415(k)(5)(C); 34 CFR 300.354(c)