Suspension, Expulsion and Discipline Under the IDEA
A New York City study found that while disabled children constitute thirteen percent of the student body, this minority percentage is responsible for 50.3 percent of violent incidents directed against staff. Almost all of these attacks emanate from the categories of autism and seriously emotionally disturbed children. Apparently with considerations such as these in mind, Congress in 1997 amended the Individuals with Disabilities Education Act (“IDEA”) so as to encourage state boards of education to set aside dollars for the purpose of providing direct services to children, including alternative programming for children who have been expelled from school. It is ironic to observe that state education agencies now have, under §1411(f)(3) of the amendments, the authority to take money away from school districts that are currently doing a good job of providing a free appropriate public education (“FAPE”) to students and to reallocate it to those districts who are not. In the 2004 reauthorization of the IDEA, Congress once again amended significant portions of the statute as it relates to disciplining students with disabilities. The recent amendments provided districts more flexibility to discipline students with disabilities. What follows is an attempt to make sense of a number of quite complicated provisions, some of which have been added for the first time to IDEA. A serious attempt has been made to write clearly and simply and to reduce the need for the repeated cross-referencing that is endemic to the amendments. It is hoped that parents and educators alike will find this initial review helpful.
In Illinois, suspensions are defined as “a period not to exceed 10 school days.” The IDEA protects students with disabilities from excessive suspensions by defining the removal from the students “then-current educational placement” for more than 10 school days as a “change of placement”. In general, districts cannot unilaterally change a student’s placement without consent from the parents. Therefore, suspensions 10 school days or less are not considered a “change of placement” and do not require the parents’ consent. During the 10-days of suspension, the federal implementing regulations suggest that IEP services do not need to be provided, although the statute itself does not provide for any interruption of educational services.
It is clear that districts cannot suspend students with disabilities for longer than 10 days in a row without resorting to the additional procedures required when districts seek an expulsion or change of placement (which will be discussed in more detail below in Section II). However, there is currently great debate as to what extent a district can suspend a student with disabilities more than 10 non-consecutive days within a school year before the suspensions constitute a change of placement, and therefore, subject to these additional procedures.
When looking at more than 10 non-consecutive days of suspensions, the general rule is that a change of placement occurs when “the child has been subjected to a series of removals that constitute a [pattern of removals].”  To determine whether a “pattern” exists, the school district will on a case-by-case basis look to factors such as (1) whether the child’s behavior is substantially similar to previous incidents, (2) the total amount of time the child has been removed, (3) the length of each removal, and (4) the proximity of the removals to one another. The district’s decision is subject to review through due process and judicial proceedings. If the parent files for due process, there is a statutory injunction, referred to as the “stay put provision” enjoining the school district from changing the “current” educational placement during the pendency of all proceedings under the IDEA.
PRACTICAL APPLICATION OF THE LAW: Districts should take a conservative approach toward suspending students for more than 10 school days in any given school year. Parents and districts should carefully monitor students who are repeatedly suspended and proactively request a meeting to discuss the student’s current educational program. Alternative behavioral intervention plans and/or more supportive placements should be considered in lieu of multiple suspensions from school. Only in situations where the student has engaged in dangerous behaviors harmful to the child or educational environment should a district go beyond 10 suspension days in a school year.
Finally, in addressing cases of suspensions for less than 10 days, it should be noted that students with disabilities retain the same procedural rights as their non-disabled peers to contest a school suspension using the regular education procedures. While a suspension may not be considered a change in placement, school district still must report the suspension immediately to the parents of guardian of the student along with a full statement of the reasons for the suspension and notice of the right to review that decision. If the parents or guardian request a review, either the school board or hearing officer would review the actions of the school administrators. The student would have the ability to be heard and present evidence contesting the allegations. The board would then take action “as it finds appropriate.” While decisions regarding suspensions may be reviewed judicially, Courts are reluctant to overturn a district’s discretion in disciplinary matters where the deprivation of schooling is 10 days or less.
The general rule as set forth by the United States Supreme Court and the IDEA, is that no disabled student may be expelled for behavior that is a manifestation of his or her disability. There are significant changes in the 2004 amendments to the IDEA concerning the standards for determining when behavior is a manifestation of a student’s disability. In order for a school district to expel a student with disabilities, the relevant members of the student’s IEP must meet in what is typically called a manifestation determination review (“MDR”) meeting. An MDR meeting must be convened within 10 school days of any decision to expel or change the placement of the student.
PRACTICAL APPLICATION OF THE LAW: Since there are strict 10 day time frames to implement the manifestation review meeting, district typically suspend students with disabilities for 10 days in order to have time to assemble to relevant staff and review the student’s situation. Parents, on the other hand, often use this time to contact legal counsel as well as the student’s private clinical providers so that the student’s entire clinical “picture” will be provided at the meeting as well as other mitigating or relevant information.
At the MDR meeting all relevant information shall be considered in order to address two questions: (1) Is the conduct in question caused by, or had a substantial relationship to, the student’s disability; and (2) Is the conduct in question the result of the school district’s failure to implement the IEP. If either answer is “yes” then the behavior is a manifestation and the school may not expel the student or change his or her educational placement. In addition, a “yes” to either question creates in the school district an additional responsibility of conducting a functional behavioral assessment and implementing a behavioral intervention plan based on that assessment, or if a behavioral plan already exists, the affirmative duty to review and modify the plan as necessary. Finally, unless the behavior falls into one of the special circumstances described below in Section III, the student must be returned back to the educational placement from where he or she was removed unless the district and parents agree to a change in placement as part of the behavioral plan.
If the district at the MDR determines that the behavior was unrelated to the student’s disability and the IEP was properly implemented then the student is subject to a change of placement and any other disciplinary measures that could be imposed on a non-disabled student, including expulsion through the regular education expulsion process. Under the IDEA, the school district must still provide special education services to an expelled student with disabilities, so as to enable the child to continue to progress in the general education curriculum and progress towards meeting his or her IEP goals. These services would be provided to the expelled student in an alternative educational setting.
The decision of the MDR team with respect to placement or the manifestation determination is subject to appeal through a due process hearing. As previously indicated, the filing of the due process request triggers the “stay put provision” of the IDEA, which enjoins the district from removing the student from his or her then-current educational placement during the pendency of any all proceedings under the IDEA. The U.S. Supreme Court stated unequivocally in Honig v. Doe that unless the parents and school district agree, the student remains in the then-current educational placement. Referring to the intent of Congress the Court stated,
We think it clear, … that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school. In so doing, Congress did not leave school administrators powerless to deal with dangerous students; it did, however, deny school officials their former right to “self-help,” and directed that in the future the removal of disabled students could be accomplished only with the permission of the parents or, as a last resort, the courts. (Emphasis Added)
The Court also remarked that the absence of an “emergency” exception to the stay-put provision for “dangerous” students was “conspicuous.”
Therefore, the filing of a due process request enjoins the district from removing (i.e. expelling) the student until the issues are resolved through the administrative hearing. The Court’s interpretation is consistent with the reasons for initial passage of the EHA, which included the fact that school systems across the country had excluded one out of every eight disabled children from classes. The Supreme Court stated that participating states must educate all disabled children, regardless of the severity of their disabilities.
III. Special Circumstances
Prior to the 1997 and 2004 amendments, school districts seeking to override the “stay put” provision had to affirmatively go into Court and seek a restraining order or injunction based on the severity or dangerousness of the student’s misconduct. The legislature finally added an “emergency” exception (previously noted by the Honig Court to be absent) to stay-put in the 1997 and 2004 amendments. There now exist several circumstances where upon the commission of certain offenses, the school district can unilaterally place a student with disabilities in an interim alternative educational setting regardless of whether the behavior was a manifestation of the student’s disability. If a student with disabilities while at school, on school premises, or at a school function (1) carries or possesses a weapon, (2) knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance, or (3) inflicts “serious bodily injury” upon another person, that student can be removed to an alternative educational setting for up to 45 school days without regards to whether the behavior is determined to be a manifestation of the student’s disability.
PRACTICAL APPLICATION OF THE LAW: A “weapon” is defined as, “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 less than 2 ½ inches in length.” 20 U.S.C. §812(c)
It is important to note that districts can place students who have committed any of the three acts unilaterally. However, the interim alternative placement must be determined by the IEP Team, not an individual school administrator. The placement must be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, to continue to receive all IEP services that will enable the child to meet his IEP goals, and finally shall include services and modifications designed to address the behavior so it will not reoccur. Even if the district elects to place a student in a 45-day placement, they are still obligated to follow the procedural time frames regarding holding a MDR meeting.
The decision to place a child in an interim alternative placement may be appealed through a due process request. Furthermore, under the new amendments, school districts can file their own due process to request an order from a hearing officer ordering an alternative placement for 45 school days if the student does not fit into one of the three special circumstances, but the district believes that maintaining the current placement is substantially likely to result in injury to the child or to others.
IV. Due Process for Disciplinary Decisions
A special education due process hearing may be requested by the parent of a child with a disability who disagrees with any decision regarding the manifestation determination or placement resulting from an MDR or unilateral alternative 45-day placement. As noted above, the district can also request a hearing to place a student in an alternative 45-day placement if the district believes that maintaining the current placement is substantially likely to result in injury to the child or others.
If the school district has placed the student in a 45-day interim alternative setting, then the student will remain in that placement pending the decision of the hearing officer or the expiration of the time period, whichever occurs first. Therefore, all challenges to 45-day placements are expedited, meaning that they must occur within 20 school days of being requested with a decision issued within 10 school days. At expedited hearing, the hearing officer will determine one of the following questions: (1) whether the child shall be placed in the proposed alternative educational setting; or (2) whether the district has demonstrated that the child’s behavior was not a manifestation of the child’s disability.
PRACTICAL APPLICATION OF THE LAW:
Event(s): Appeal By: Status of Hearing:
MDR (not related) Parents Expedited
Unilateral 45-Day Placement (special circumstances) Parents Expedited
Unilateral 45-Day Placement (no special circumstances) District Expedited
MDR (related, change of placement other than 45-day) Parents Non-Expedited
MDR (related, no change of placement, change of services) Parents Non-Expedited
Consequently, there can be circumstances where two separate due process hearings are required to resolve all issues. Take for example the situation where a student brings drugs to his traditional high school where he attends. The District convenes an MDR and finds that the behavior is related, but determines that after looking at other disciplinary incidents over the course of the year, that the current placement is not meeting the student’s needs and therefore also recommends a therapeutic day placement. In addition, the district exercises its right to unilaterally place the student at a 45-day placement pending his more permanent placement.
In the above case, the parent has the right to challenge the 45-day placement through an expedited hearing. In addition, the parent can bring a non-expedited hearing to challenge the change in placement. So where is the stay-put placement during these appeals? For 45-school days the student would remain at the 45-day placement until the expedited hearing is resolved in the student’s favor or the 45-school days expire. At the conclusion of the 45-day placement the stay-put would convert back to the traditional high school until the completion of the non-expedited hearing. Of course, if the facts warrant, the district could bring an additional expedited due process hearing alleging that the current placement is dangerous to the student or others. If the hearing officer agrees that the student was a danger to themselves or others, the district could place the student in subsequent additional 45-day alternative placements while the non-expedited hearing was pending.
If the nature of the student’s behavior does not fall under one of the special circumstances, then the filing of a due process triggers the stay-put provision and the student may not be removed from the last agreed upon IEP placement. While a great deal of detail has been provided regarding the amendment’s complex special circumstances, the IDEA remains essentially intact in that there is still a presumptive injunction enjoining school districts from changing the “current” educational placement during the pendency of all proceedings under the Act that do not fall under the narrow special circumstances exceptions.
This is underscored by a recent Massachusetts administrative due process hearing overturning the district’s decision to place a student with Asperger syndrome, ADHD and multiple LDs in a 45-day interim alternative setting for pulling the principal’s tie when he learned he would not be permitted to leave school early. The hearing officer in that case noted that the student did not cause serious bodily injury and refused to find that the tie was a “weapon,” as it was not capable of causing death or serious injury. Furthermore, the hearing officer noted that the student did not “possess” or “carry” the necktie. Since there were no special circumstances present, the district was not permitted to change the student’s placement unilaterally. Scituate Public Schools, 47 IDELR 113 (Massachusetts State Educational Agency, January 29, 2007)
V. What is the Current Placement During Appeals?
In summary, when a parent requests a hearing to challenge a disciplinary action taken by a school district for weapons/drugs/risk of injury behavior, and this challenge involves a dispute as to the alternative educational setting chosen or the manifestation determination decision made, the child must remain in the alternative education setting until the expiration of the time period in the applicable paragraph, i.e., not more than 45 days.
If a child is placed in an interim 45-day alternative placement for weapons/drugs/risk of injury behavior and school personnel propose to change the placement after the expiration of the 45 day time period, during the pendency of any challenge to the proposed change, the child must remain in the location he was in prior to being moved to the alternative educational setting, except that the local education agency may request an “expedited hearing” if they think it is dangerous for the child to go to the pre-AES placement. In this instance, to order a change in placement, the officer must find that:
- the school district has shown that maintenance of the current placement is substantially likely to result in injury to the child or others;
- the current alternative educational setting is appropriate;
- the school district has made reasonable efforts to minimize the risk;
- the alternative educational setting meets the “additional requirements” to enable the child to continue to participate in the general curriculum even though he is placed in another setting and to continue to receive all IEP services enabling the child to meet his IEP goals, including modifications designed to address the behavior in question.
VI. Protections for Children Not Yet Eligible for Special Education – 20 U.S.C. §1415(k)(5)
A child can invoke special education procedures, even if he or she is not yet eligible for special education, if the school district had knowledge that the child had a disability before the behavior in question occurred. The basis of such “knowledge” is as follows:
1. The parent (if not illiterate) has expressed a concern in writing that the child is in need of special education services to either supervisory or administrative personnel of the district or to a teacher of the child.
— OR —
2. The parent has requested a Case Study Evaluation;
— OR —
3. A teacher or “other [school district] personnel” have expressed concern about the child’s behavior or performance to the Special Education Director or to “other supervisory personnel” of the local education agency.
If there is no “knowledge” found to be present, the child may be subject to the same discipline rules as others. However, if a request for an evaluation is made during the time the child is subjected to disciplinary procedures, the evaluation must be “expedited.” No time period is specified, however.
If the child is determined to be a child with a disability, the district must provide special education services and extend all of the disciplinary procedural protections of the Act, including holding an MDR meeting.
VII. Other Considerations: Records Confidentiality Issues
A provision requires that any school district reporting a crime must ensure that copies of the special education and disciplinary records are transmitted for consideration by the appropriate authorities to whom it reports the crime. Although this provision is explicitly intended to reverse some of the case law which held that a report to juvenile authorities is an arguable change of placement, the amendment goes too far and in fact would be a direct violation of the mental health confidentiality acts of many states. Certainly, any conveyance of “special education and disciplinary records” without proper consent of the parents and any minor age 12 to 18 would be a clear violation of the Illinois Department of Mental Health and Developmental Disabilities Confidentiality Act, thereby raising the possibility of an award of attorney fees and damages to the parents from the violating district.
NOTE: An expedited due process request should be used when contesting the manifestation determination or placement in an alternative educational setting resulting from disciplinary action.
Expedited Due Process Request Form
(to be hand delivered or sent by certified mail)
(Name of Student, Age, Date of Birth)
Dear Superintendent ______________:
Please treat this correspondence as a formal request for a due process hearing pursuant to 105 ILCS 5/14-8.02b, 23 Illinois Administrative Code §226.655, 20 U.S.C. 1415(k)(3) and 34 CFR 300.532, 300.533, 300.507 and 300.508.
I. Name of Child:
The name, age, and date of birth of the child are stated above.
II. Address of Child’s Residence:
III. Name of School the Child is Attending:
IV. Description of the Nature of the Problem, Including Facts Relating to the Problem:
V. Proposed Resolution of the Problem to the Extent Known and Available at the Present Time:
For the above listed reasons, it is our position that the district has failed to provide our child with a free appropriate public education as required by state and federal law. We will participate in state sponsored mediation efforts.
 20 U.S.C. §1411(e)(2)(c)(ix).
 105 ILCS 5/10-22.6(b).
 20 U.S.C §1415(j) and (k)(1)(B).
 Compare, 34 CFR 300.530 with 20 USC §1415(k).
 34 C.F.R. §300.536.
 20 U.S.C §1415(j).
 105 ILCS 5/10-22.6.
 20 U.S.C §1415(k)(3) and Honig v. Doe, 108 S.Ct. 592 (1988).
 Relevant information can include, among other items, any evaluative and diagnostic results (including all information supplied by the parents), an observation of the child, and a review of the child’s IEP and current placement.
 Honig at 604.
 20 U.S.C. §1415(k)(1) and (2).
 23 Ill Admin. Code 226.655
 20 U.S.C. §1415(k)(4).
 20 U.S.C. §1415(k)(7)(B) & (C).
 20 U.S.C. §1415(k)(5)(B).
 20 U.S.C. §1415(k)(5)(D)(i).
 20 U.S.C. §1415(k)(5)(D)(ii).
 20 U.S.C. §1415(k)(6)(B).