SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES

Chapter 8

Information on Discipline of Students with Disabilities

From a 12-Chapter Manual - Available by Chapter and in Manual Form

Seventh Edition

Written by: Community Alliance for Special Education (CASE) and Protection and Advocacy, Inc. (PAI)

Copyright © 1992 by CASE and PAI - Revised January 1998

Written permission of the Community Alliance for Special Education (CASE) and Protection and Advocacy, Inc. (PAI) must be obtained for duplication of the materials contained in Special Education Rights and Responsibilities.

These materials are based on special education laws and court decisions in effect at the time of publication. Federal and state special education law can change at any time. If there is any question about the continued validity of any information in the handbook, contact CASE, PAI or a legal authority in your community.

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Community Alliance for Special Education (CASE), provides legal support, representation, technical assistance consultations, and training to parents throughout the greater San Francisco Bay Area whose children need appropriate special education services. Trained advocates and attorneys assist parents at IEP meetings, Mediation Conferences and Due Process Hearings. CASE also provides free consultations about special education rights and services to parents and professionals by telephone or face-to-face. CASE is a nonprofit organization serving all children with disabilities who need or may need special education services. For more information, contact:

CASE

1031 Franklin Street, Suite B5, San Francisco, CA 94109, Tel. - (415) 928-2273, FAX - (415) 928-2289

680 W. Tennyson Road, Room 1, Hayward, CA 94544, Tel. - (510) 783-5333, FAX - (510) 783-8822

CASE-South Bay Legal Aid Society of Santa Clara County, 480 North First Street, San Jose, CA 95103, Tel. - (408) 283-1535

Protection and Advocacy, Inc. (PAI), is a private, nonprofit organization that protects the legal, civil and service rights of Californians who have developmental or mental disabilities. PAI provides a variety of advocacy services, including information and referral, technical assistance, and direct representation. For information or assistance with an immediate problem, call:

PAI

Toll Free/TTY: (800) 776-5746

8:30 AM to 5:00 PM - Monday through Friday

Central Office, 100 Howe Ave., Suite 185-N, Sacramento, CA 95828, Legal Unit - (916) 488-9950 / Administrative - (916) 488-9955

Southern California Area Office , 3580 Wilshire Blvd., Suite 902, Los Angeles CA 90010, Tel. - (213) 427-8747

San Francisco Bay Area Office, 449 - 15th Street, Suite 401, Oakland, CA 94612, Tel. - (510) 839-0811

PAI receives funding under the Developmentally Disabled Assistance and Bill of Rights Act and the Protection and Advocacy for Mentally Ill Individuals Act. Any opinions, findings, recommendations or conclusions expressed in this publication are those of the authors and do not necessarily reflect the views of the organizations which fund PAI.


 On June 4, 1997, the Individuals with Disabilities Education Act (IDEA) was amended by Congress and signed into law by President Clinton. Most of the new provisions in IDEA became effective on that date. Community Alliance for Special Education (CASE) and Protection & Advocacy, Inc. (PAI) have incorporated these amended IDEA provisions into the Seventh Edition of the Special Education Rights and Responsibilities (SERR) manual.

Because special education services in California are funded in part with federal money, these IDEA amendments take precedence over any prior inconsistent federal law or current state law, except where state law provides more protections or at least the same level of protections. In this edition of SERR, citations of federal law refer to the section numbers where these amendments appear in federal law at Title 20 of the United States Code. Citations of federal regulations refer to current, unrevised federal regulations at Title 34 of the Code of Federal Regulations. State citations refer to current California law and regulations.

New federal regulations must now be developed to implement the new federal statutes. The new federal regulations are supposed to be issued by July 1, 1998. However, this process may take longer. In addition, California special education law and implementing regulations will also be amended once federal regulations are issued. CASE and PAI will monitor the development of these final federal regulations, and state law and regulations, so that final federal and state laws and regulations can be incorporated into later supplements and editions of SERR.

It is important for you to know that the Individual Education Program (IEP) provisions of the IDEA amendments do not become effective until July 1, 1998. Since IEPs written for the 1998099 school year must meet the new IDEA IEP requirements, CASE and PAI have chosen to include these new IEP provisions in this edition of the SERR manual (Chapter 4). We hope that this information will help as you develop IEPs for the 1998-99 school year and beyond.

For further information on the development of federal and state law and regulation, or clarification about IDEA implementation, please contact CASE or PAI.


SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

TABLE OF CONTENTS

Chapter 1 Information on Basic Rights and Responsibilities

Chapter 2 Information on Evaluations/Assessments

Chapter 3 Information on Eligibility Criteria

Chapter 4 Information on IEP Process

Chapter 5 Information on Related Services

Chapter 6 Information on Due Process Hearings/Compliance Complaints

Chapter 7 Information on Least Restrictive Environment

Chapter 8 Information on Discipline of Students with Disabilities

Chapter 9 Information on Inter-Agency Responsibility for Related Services (AB 3632/882)

Chapter 10 Information on Vocational Education

Chapter 11 Information on Preschool Education Services

Chapter 12 Information on Early Intervention Services

NOTE: The text in each chapter refers to specific questions in other chapters by using the titles shown above.


 SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

Chapter 8

Information on Discipline of Students with Disabilities

TABLE OF CONTENTS

1. Under what circumstances can a school district suspend or expel a student with disabilities?

2. What are the reasons a school district can suspend or expel my child?

3. Are there any limitations on suspension of students with disabilities?

4. Are there any limitations on a school district's right to expel a student with disabilities from school?

5. What procedures must the school district follow when it wants to expel a student with disabilities from school?

6. What type of evaluation must be done when the school district is considering expelling my child?

7. What decisions should the IEP team make?

8. What will take place at the IEP meeting where the relationship between my child's disability and behavior is reviewed?

9. How do I prepare for the IEP meeting where the relationship between my child's disability and behavior will be reviewed?

10. Does my child have the right to attend school while the IEP team is meeting and during any appeals from the IEP team decision?

11. What must a school district show in order to obtain a hearing office order that changes my child's placement?

12. May my child be expelled from just the transportation portion of her school program?

13. If my child is expelled, is he entitled to any special education during the period of his expulsion?

14. What can I do if a teacher or other school staff person hurts my child?

15. Are there any special rules governing the discipline of students identified as "disabled" under Section 504 of the Rehabilitation Act of 1973?

16. My child was expelled from school. What are his rights to return to school in the school district that expelled him?

17. What rules govern the readmission process?

18. My child was expelled from our school district. What are the rules governing admission of my child to a new school district?

19. My child has behavior problems which may put her at risk of suspension and/or expulsion. Are there any special services or protections that apply to her?

20. Do the new positive behavior intervention regulations specifically prohibit some behavior programming or techniques?

21. Do the new positive behavior intervention regulations have any impact on the discipline of special education students?


SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

Chapter 8

Information on Discipline of Students with Disabilities

1. Under what circumstances can a school district suspend or expel a student with disabilities?

Students with disabilities generally are treated the same as their nondisabled peers in suspension cases. Both state and federal law severely restrict a school district's ability to expel special education students. A description of these restrictions is set forth in the subsequent sections of this chapter. Even if a special education student meets the legal criteria for expulsion, federal law requires that the student continue to receive a Free Appropriate Public Education while expelled or suspended for a period in excess of ten days. [20 U.S.C. Secs. 1412(a)(1)(A); 1415(k).] Thus, unlike a regular education student, a special education student does not suffer a cessation of educational services during a suspension or expulsion, but may suffer a change of placement to an alternative setting which provides all services required by the students's IEP.

2. What are the reasons a school district can suspend or expel my child?

The grounds for suspension or a recommendation of expulsion are the same for children with and without disabilities. The permissible grounds for taking disciplinary action under Cal. Ed. Code Sec. 48900 are:

(1) Causing or threatening physical danger to another;

(2) Possessing without school authorities' permission a knife, gun or other dangerous object, or furnishing such an object;

(3) Unlawfully possessing, using, or furnishing a controlled substance or alcoholic beverage, or being under the influence of such a substance or beverage;

(4) Offering or furnishing a substance misrepresented to be a controlled substance or alcoholic beverage;

(5) Committing robbery or extortion;

(6) Damaging or attempting to damage school or private property;

(7) Stealing or attempting to steal school or private property;

(8) Possessing or using tobacco in an unauthorized manner;

(9) Committing an obscene act or engaging in habitual profanity or vulgarity;

(10) Dealing in drug paraphernalia;

(11) Disrupting school activities or otherwise willfully defying school authorities;

(12) Knowingly receiving stolen school or private property;

(13) Possession of an imitation firearm that appears to be real;

(14) Commission or attempt to commit a sexual assault, commission of a sexual battery;

(15) Harassment, threat, or intimidation of a pupil who is a witness in a school disciplinary proceeding;

(16) Engaging in sexual harassment which a reasonable person of the same gender as the victim would consider sufficiently severe or pervasive as to have a negative impact on such a victim's academic performance or to create an intimidating, hostile, or offensive educational environment. [See Cal. Ed. Code Sec. 48900.2]

Suspension or expulsion for any of these acts must be related to school activity or attendance. This includes misconduct which occurs on school grounds, while going to or coming from school, during lunch (whether on or off campus), during a school sponsored activity, or while going to or coming from a school sponsored activity. [Cal. Ed. Code Sec. 48900.]

School districts should use alternatives to suspension or expulsion to address problems of truancy, tardiness, and other absences from school activities. [Cal. Ed. Code Sec. 48900.]

Suspension is appropriate only after other means of correction fail to bring about proper conduct. [Cal. Ed. Code Sec. 48900.5.] A student may be suspended on a first offense only for reasons (1) through (5) above, or because her presence causes a danger to persons or property, or threatens to disrupt the educational process. [Id.]

Expulsion is appropriate only if the student:

-- Committed the offenses listed in (1) through (5) above or

-- Committed the offenses listed in (6) through (12) above and either:

(a) Other means of correction are not feasible or have failed repeatedly or

(b) The student's presence causes a continuing danger to the physical safety of the student or others. [Cal. Ed. Code Sec. 48915.]

The Cal. Ed. Code, at Sec. 48915(a), requires that a principal or superintendent recommend expulsion if any of the following acts are committed by the student, unless he finds that expulsion is inappropriate, due to the particular circumstance:

A. Causing serious physical injury to another, except in self-defense

B. Possession of any knife, explosive, or other dangerous object of no reasonable use.

C. Unlawful possession of a controlled substance.

D. Robbery or extortion

E. Assault or battery.

The Cal. Ed. Code, at Sec. 48915(c), requires that a principal or superintendent must suspend, and a school board must expel a student if any of the following acts have been committed:

A. Possessing, selling or furnishing a firearm

B. Brandishing a knife at another person

C. Selling a controlled substance

D. Committing or attempting a sexual assault or committing a sexual battery.

However, this mandatory expulsion provision is not enforceable against a special education student unless the student has been afforded all of the procedural and substantive safeguards set forth in this Chapter, and after application of those safeguards, has been found eligible for expulsion.

3. Are there any limitations on suspension of students with disabilities?

Students with disabilities are subject to the same suspension rules as non-disabled students, except with regard to the length of suspension. Under certain circumstances, a non-disabled student can be suspended for a period in excess of 30 days cumulatively per school year. However, a special education student may not be suspended for more than ten consecutive days without parental consent or a court order. [20 U.S.C. Sec. 1415(k)(1)(A)(i); Cal. Ed. Code Sec. 48911(h); Doe v. Maher, EHLR 557:53, 361.]

Cumulative suspensions of more than 10 days per year, under the particular circumstances of each case, may constitute: (1) a significant change of placement without an IEP, in violation of Title 34 Code of Federal Regulations (C.F.R.) Sec. 104.35(a), or (2) an attempt by the school district to avoid the impact of Doe v. Maher. [EHLR 307:06 (OCR, 1988).] This issue, while it does involve compliance issues that could be addressed by a Compliance Complaint, is best addressed by Due Process, which is quicker and better suited to resolving the factual issues that may be involved. It also places the student back in school immediately pending resolution of the matter. (See Question 10.)

NOTE: A recent memorandum, issued by the Office of Special Education and Rehabilitation Services (OSERS) in response to inquiries from various parties as to the proper interpretation of the disciplinary provisions of the new 1997 amendments to IDEA, indicates that a special education student must receive FAPE after ten days of suspension cumulatively in any school year. This is a non-binding memorandum, but indicates the direction OSERS may be going when the new regulations implementing the new IDEA amendments are promulgated.

There are general rules and procedures that apply to both special and regular education students. Suspensions may range in length from:

-- two consecutive days when ordered by a teacher [Cal. Ed. Code Sec. 48910(a)] to

-- five consecutive days when ordered by a principal or superintendent [Cal. Ed. Code Sec. 48911(a)] to as many as

-- ten consecutive days when ordered by the governing board of a school district [Cal. Ed. Code Sec. 48912(a)].

An informal, pre-suspension conference with the student must precede suspensions by a principal, principal's designee, or by a superintendent. At the pre-suspension conference, the student must be told why he is being suspended. He must also have an opportunity to present his version of the events and evidence in his defense. The student's parents need not be invited to the pre-suspension conference with the student. [Cal. Ed. Code Sec. 48911(b).]

The pre-suspension conference need not take place if the principal or designee or superintendent believes that an "emergency situation" exists. An "emergency situation" is one where it is believed that the student presents a clear and present danger to the lives, safety or health of students or school personnel. In this situation, the student may be suspended without a conference, but the student and his parents must be notified of the student's right to a conference within two school days and of the student's right to return to the campus to attend the conference. [Cal. Ed. Code Sec. 48911(c).]

At the time of any suspension, a school employee must make reasonable efforts to contact the student's parents or guardian in person or by telephone. The parents or guardian must receive a written notice of the suspension. [Cal. Ed. Code Sec. 48911(d).] Parents must respond without delay to any request from school officials that they attend a conference regarding their child's misconduct. [Cal. Ed. Code Sec. 48911(f).]

4. Are there any limitations on a school district's right to expel a student with disabilities from school?

Students with disabilities cannot be expelled from school unless an assessment has taken place and an IEP team has met. The assessment and IEP meeting are to determine whether the student's misconduct was a manifestation of her disability. A student with disabilities cannot be expelled for conduct that is a manifestation of her disabling condition.

Expulsion is a significant change in placement. [Doe v. Maher, EHLR 557:353, 360.] Before expulsion proceedings can begin for any student enrolled in a special education program, the procedures prescribed by federal and state law for changing the placement of a student with disabilities must be followed. [Id.] The specific statutory guidelines that must be applied by the IEP team to make a "manifestation" determination will be discussed in Question 8.

It is important to note that Cal. Ed. Code Sec. 48915.5 limits the inquiry into whether the misbehavior was a manifestation of the student's disability to an analysis of whether it was a manifestation of the student's "identified disability." [See Cal. Ed. Code Sec. 48915.5(a)(2).] School districts have interpreted "identified disability" to mean the disability or disabilities that the district has identified and acknowledged and which may have caused the student to become eligible for special education. However, in many cases, school districts have not identified a student as having any disability (or may not have identified all the disabilities a student may have) that may be manifested by misbehavior.

IDEA, at Sec. 1415(k)(8), provides that an unidentified disabled student is to be afforded the same protections against expulsion as a special education student if the district had knowledge that the child was disabled. The district is deemed to have knowledge of the disability if the following conditions were met prior to the misbehavior which is the basis for the expulsion:

A. The parent expressed concern in writing to the district that the child is in need of special education (this expression may be verbal if the parent is illiterate or has a disability that interferes with writing);

B. The behavior or performance of the child demonstrates the need for such services;

C. The parent has requested assessment pursuant to Sec. 1414; or

D. If district personnel have expressed concern about the behavior or performance of the child to other personnel of the district.

5. What procedures must the school district follow when it wants to expel a student with disabilities from school?

Expulsion is a change in placement and, therefore, the school district must follow the same procedures with expulsion that it must follow in making other significant changes to the program of a student with disabilities. These procedures include:

(1) Notifying the parents in writing of the district's intention to seek expulsion; an explanation of why the agency proposes expulsion; a description of each evaluation procedure, test record, or report that the agency uses as a basis for the proposed expulsion; a description of the factors relevant to the proposed expulsion; and a notice of procedural rights. [20 U.S.C. 1415(b)(3)&(c); 34 C.F.R. Secs. 300.504-300.5051]; the parents must also receive written notice of the district's intent to conduct a pre-expulsion assessment (the purpose of the pre-expulsion assessment is to determine whether the student was appropriately placed at the time of the misconduct and whether the misconduct was a manifestation of the student's disability. [Cal. Ed. Code Sec. 48915.5(e).];

(2) Conducting the pre-expulsion assessment of the student. [Doe v. Maher, EHLR 557:353, 363-64; 20 U.S.C. 1415(k)(4)(C)(i)(I); Cal. Ed. Code. 48915.5(e). ] Parental consent to the pre-expulsion assessment is not required, and the parents shall make the student available for the assessment at a site chosen by the school district without delay; however, the parents' right to an independent assessment under Cal. Ed. Code Sec. 56329 applies despite the fact that the student has been referred for expulsion [Cal. Ed. Code Sec. 48915.5(e).];

(3) Convening an IEP team meeting (with at least 48 hours notice to the parents) to determine if the misconduct is directly related to the student's disability and whether the student was appropriately placed at the time of the misconduct; the pre-expulsion IEP must be held at a time mutually convenient to the school district and parents and within the period of any pre-expulsion suspension or may be conducted by telephone; if the parents do not request a postponement, the meeting may proceed without the parents; the parents may have up to a three-day postponement, but the period of suspension will then be extended by that number of days if the student poses an immediate threat to his own health or safety or to that of others; the period of pre-expulsion suspension cannot be extended beyond 10 consecutive school days without the written agreement of the parents or a court order; however, if the parents have requested a postponement which would result in more than 10 consecutive days of suspension and refuses to give written consent, the meeting may take place at the originally scheduled time with or without the parents' participation [Cal. Ed. Code Secs. 48915.5(d)-(e)]; and

(4) Informing the parents of their right to request both impartial administrative review of any IEP team decisions and judicial review of the state's final administrative determination. (Discussed in detail in Chapter 6.)

6. What type of evaluation must be done when the school district is considering expelling my child?

Once a decision has been made that your child's misconduct may warrant expulsion (and your child has disabilities), the school district must notify you and evaluate your child. The school district cannot rely only on information in its own files. It must conduct an assessment with trained personnel. The evaluation should provide information about the relationship between the misconduct and your child's disability and the appropriateness of your child's program. In addition to considering the results of the pre-expulsion assessment, the IEP team must also review and consider your child's health records and school discipline records. [20 U.S.C. 1415(k)(4)(C); Cal. Ed. Code Sec. 48915.5(e).]

Under state law, the school district is not required to obtain parental consent prior to this pre-expulsion assessment. If the student's parents disagree with the evaluation, they can request an independent evaluation. [20 U.S.C. Sec. 1415(b)(1); 34 C.F.R. Sec. 300.503; Cal. Ed. Code Secs. 48915.5(b), 56329(b), 56506(c).]

7. What decisions should the IEP team make?

The IEP team must make the following determinations:

(1) In relation to the behavior subject to disciplinary action, was the child's IEP placement appropriate and were all services, supplementary aids and services, and behavior intervention strategies provided consistent with the child's IEP and placement?

(2) Did the child's disability impair the ability of the child to understand the impact and consequences of said behavior?

(3) Did the child's disability impair the ability of the child to control the said behavior?

The child will be eligible for expulsion only if the IEP team answers Question 1 in the affirmative and Questions 2 and 3 in the negative.

Regardless of the IEP team's determination of eligibility for expulsion, the IEP team must consider placement and additional services, because, after a maximum ten day suspension, the student is entitled to implementation of his IEP regardless of whether he is expelled or not. [20 U.S.C. Secs. 1412(a)(1)(A); 1415(k).]

8. What will take place at the IEP meeting where the relationship between my child's disability and behavior is reviewed?

The IEP team, including the parent, must review all relevant information. This includes all evaluation reports and test results, including those supplied by the parent. It also includes any observations of the child, information about the placement, and the child's IEP. The team can only determine the child's behavior was not the cause of his/her behavior if it finds:

-- the IEP and placement were appropriate, all services, including supplemental aids and services and behavioral services, were being provided consistent with the child's IEP and placement;

-- the child's disability did not impair his/her ability to understand the consequences of the behavior in question; and

-- the child's disability did not impair his/her ability to control the behavior in question.

[20 U.S.C. Sec. 1415(k)(4)(C).]

9. How do I prepare for the IEP meeting where the relationship between my child's disability and behavior will be reviewed?

You should prepare yourself to discuss each of the items which must be considered before a school can assert that a child's disability was not the cause of his/her behavior. (See previous answer.) All of the items must be satisfied before a school can change a special education pupil's placement. Therefore, you may wish to consider obtaining an independent psychological or counseling professional's opinion as to one or more of the items mentioned in the previous question and answer, especially on the questions of whether the child understood the consequences of and had the ability to control his/her behaviors.

You should bring that professional's report or that professional him/herself to the meeting. You should consider whether the IEP was appropriate. Were all the services and modifications needed by the child in the IEP? Even if all the necessary services and personnel were in the IEP, were they actually being provided at the time of the behavior in question? Were behavioral problems evident before the behavior in question? If so, was functional behavioral assessment ever done? Was a behavior intervention plan in place? If a behavior plan was in place, was in being implemented at the time of the behavior? Was the placement appropriate? Did the IEP specify a certain size or type of class or kind of environment, and was the child receiving that at the time of the behavior in question? If the IEP specified certain curriculum or other modifications, were those being made at the time of the behavior in question?

10. Does my child have the right to attend school while the IEP team is meeting and during any appeals from the IEP team decision?

Generally, a student has the right to remain in his current placement during the pendency of the IEP meeting and any appeals, aside from the initial suspension for the offense, which may be up to ten days. However, there are exceptions to this rule if the student is charged with certain categories of offenses involving weapons or drugs, in which event the student may be placed in an alternative placement while expulsion proceedings are pending. [20 U.S.C. Sec. 1415(k)(1).] In addition, a Hearing Officer, upon application of a district, may subject a student to alternative placement, pending expulsion proceedings, if he finds that maintaining the current placement is substantially likely to result in injury to the child or others. [20 U.S.C. Sec. 1415(k)(2).] A detailed discussion of the law governing alternative placement is presented in Chapter 6 .

Some school districts are trying to avoid the rule requiring that the child stay in his original placement while due process is pending by making a "disciplinary transfer" of the child to a new school and relying on a line of case law which holds that a change of schools is not a change of placement if the same IEP service is offered at the new site. However, recent State Hearing Office decisions have determined that a change of school site for disciplinary or any other reasons while due process is pending is unlawful, except in the very limited situation where the placement has been eliminated for all students for budgetary reasons. [Student v. Saddleback Valley Unified School District, SN 60-94; Student v. Oxnard Elementary School District, No. 777-94A.]

11. What must a school district show in order to obtain a hearing office order that changes my child's placement ?

The school district must persuade the hearing officer that maintaining your child in his current placement, pending the assessment, IEP, and/or due process hearing procedures, is substantially likely to result in injury either to your child or to others. The district must also show that it has made reasonable efforts to minimize the risk of harm in the child's current placement; that the proposed alternative placement will allow the child to participate in the general curriculum and will assure implementation of his IEP; and include modifications and services to address the behavior which led to the expulsion proceeding. [20 U.S.C. Sec. 1415(k)(2).]

12. May my child be expelled from just the transportation portion of her school program?

Yes. However, if a special education student is excluded from school bus transportation, and transportation is a part of her IEP, she is still entitled to an alternative form of transportation to and from school at no cost to the student or her parents. [Cal. Ed. Code Sec. 48915.5(j).]

13. If my child is expelled, is he entitled to any special education during the period of his expulsion?

Yes, 20 U.S.C. Sec. 1412(a)(1)(A) provides that an expelled student still has the right to receive a free appropriate public education.

14. What can I do if a teacher or other school staff person hurts my child?

Whether it is in the context of "discipline" or otherwise, if a child or group of children is in immediate physical danger, or the health, safety or welfare of a child or group of children is threatened, a complaint may be filed with the California Department of Education (CDE) under the Uniform Complaint Procedure. [5 Cal. Code Regs. Sec. 4600 et seq.] The CDE must directly intervene and not refer the complaint for a local investigation. [5 Cal. Code Regs. Secs. 4611(a) and 4650(a)(vii)(C).] See questions and answers regarding Compliance Complaints in Chapter 6, Information on Due Process Hearings/Compliance Complaints; see also CDE Legal Advisory LO:1-94, January 25, 1993.

15. Are there any special rules governing the discipline of students identified as "disabled" under Section 504 of the Rehabilitation Act of 1973?

For students not in special education but identified as "disabled" under Section 504 of the Rehabilitation Act of 1973, the rules and protections are very much the same as those that apply to students in special education. See Chapter 1, Information on Basic Rights and Responsibilities, Question 6. Section 504 students must be evaluated prior to expulsion to determine whether their misconduct was related to their disabilities. This evaluation may not be made by the same school officials who are responsible for the school's regular disciplinary procedures, such as the principal or the school board. However, the same team of persons who initially determined that the student was "disabled" under Section 504 may make the evaluation.

If the evaluation shows that the student's conduct is related to his disabling condition, he cannot be expelled. The evaluation team must also determine whether the student's current educational placement is appropriate. It appears, under Section 504 however, that as long as it is determined that the student's misconduct was not related to his "disability", he may be expelled like any student without a disability. [See Discipline Of Students With Handicaps In Elementary And Secondary Schools, U.S. Department of Education, Office for Civil Rights, September, 1992.]

If the parents disagree with the determination that their child's misconduct was not related to his disabling condition, they can ask for an impartial hearing on the issue. The school district is required by Section 504 to facilitate such a hearing. [Id.]

The protections of Section 504 do not apply to students who are currently using alcohol or illegal drugs. A current user of alcohol or illegal drugs is not considered "disabled" for purposes of Section 504 eligibility. [Id.]

16. My child was expelled from school. What are his rights to return to school in the school district that expelled him?

The order expelling a student must specify the date when he may apply for readmission to a school in the district from which he was expelled. That date cannot be later than the last day of the semester following the semester in which the expulsion occurred. The date can be earlier. The order can include a plan of rehabilitation which the student must follow during the period of expulsion. It may also include an assessment at the time of application for readmission. The plan may also include recommendations for counseling, employment, community service, or other rehabilitative programs. [Cal. Ed. Code Sec. 48916.] If any of the reasons for expulsion related to controlled substances, the district may require, as a condition of readmission and with parental consent, that the student enroll in a county-supported drug rehabilitation program. [Cal. Ed. Code Sec. 48916.5.]

17. What rules govern the readmission process?

The governing board of a district must adopt local rules and regulations that establish a procedure for filing and processing requests for readmission by expelled students. However, her completion of the readmission process does not entitle your child to automatic readmission. Actual readmission is discretionary with the school district. [Cal. Ed. Code Sec. 48916.]

In addition, the governing board, after voting to expel a student, may suspend enforcement of the expulsion for a period up to one year. During this period, your child may be assigned to another program for rehabilitation. During this period, she is "on probation." Probation may be revoked and the expulsion enforced if the student commits any act for which she could have been suspended or expelled (see Question 2) or for any violation of the district's student conduct code. [Cal. Ed. Code Sec. 48917.] After one year of successful probation, she must be reinstated. The district may, but is not required to, expunge the student's records of all information related to the suspended expulsion. [Id.]

18. My child was expelled from our school district. What are the rules governing admission of my child to a new school district?

Your child could be admitted to school in another school district only if: (1) he established legal residence in the jurisdiction of the new school district or (2) his current school district granted him an interdistrict transfer. [See Cal. Ed. Code Sec. 46600 and following.] However, an expelled student's rights to be admitted to a school in a new school district during the period of his expulsion depends on the reasons for expulsion from the previous school district.

If your child was expelled for any of the following reasons: (1) causing serious physical injury to another person (except in self-defense); (2) possessing a knife, explosive or other dangerous object of no reasonable use to her at school or at a school activity off campus; (3) selling any controlled substance; or (4) engaging in robbery or extortion, he cannot enroll in any other California school district during the period of his expulsion -- unless it is a county community school or juvenile court school. [Cal Ed. Code Sec. 48915.2(a).] After the period of expulsion is over, a student expelled for one of the four reasons listed above may be admitted to the new school district if, after a hearing, the new district determines that he does not pose a danger to the students or employees of the new school district. He must also have established residence in the new district or obtained an interdistrict transfer. [Cal. Ed. Code Sec. 48915.2(b).] The hearing is conducted under the same rules and procedures as regular expulsion hearings. [See Cal. Ed. Code Sec. 48918.]

If your child was not expelled for any of the four reasons listed above, he may be admitted to a school in a new school district before expiration of the previous school district's expulsion if, after a hearing, the new district determines that he does not pose a continuing danger to the students or employees of the new district. In this process, the new district may request information and/or a recommendation from the previous school district. If you or your child have not informed the new district of his expulsion from the previous district, and the district finds out, the fact of nondisclosure must be recorded. This fact may be discussed at the hearing to determine whether your child is a continuing danger. [Cal. Ed. Code Sec. 48915.1(a)-(b).] The hearing is conducted under the same rules and procedures as regular expulsion hearings. [See Cal. Ed. Code Sec. 48918.] If, after the hearing, the district determines that your child does pose a continuing danger, it may deny his request for admission. If the district agrees to admit him anyway, it may condition enrollment on attendance in a specified program. [Cal. Ed. Code Sec. 48915.1(c)-(d).] If the district determines that your child does not pose a continuing danger, it must admit him to one of its schools, provided he has established residence in the new district or has obtained an interdistrict transfer. [Cal. Ed. Code Sec. 48915.1(e).]

19. My child has behavior problems which may put her at risk of suspension and/or expulsion. Are there any special services or protections that apply to her?

In 1990, the California Legislature enacted Assembly Bill 2586 (Hughes). This bill, and especially its accompanying regulations at Title 5, California Code of Regulations (5 Cal. Code Regs.) Sections 3001 and 3052, have substantially changed the way school districts must serve special education students with serious behavior problems. These regulations do not apply to students who are only identified as "disabled" under Section 504 or to any other students.

If your child is enrolled in special education and exhibits a serious behavior problem, the district must provide a functional analysis assessment by a behavior intervention case manager -- who must have training and experience in positive behavior intervention. The behavior intervention case manager must develop a positive behavior intervention plan which (1) identifies the function of the negative behavior for your child and (2) teaches her positive replacement behaviors which accomplish the same objectives for her but in a socially appropriate way.

A "serious behavior problem" is a behavior problem which (1) is self-injurious or assaultive or (2) causes serious property damage or (3) is severe, pervasive, and maladaptive and for which instructional/behavioral approaches specified in the student's IEP are found to be ineffective. [5 Cal. Code Regs. Sec. 3001(y).]

When agreed upon by the IEP team, the positive behavior intervention plan becomes part of your child's IEP. It must contain goals and objectives specific to the targeted behaviors, and it must describe the services to be provided in order to achieve the goals and objectives. [Id.] The behavior interventions selected by the case manager must be positive. That is, they must respect your child's dignity and privacy, assure her physical freedom, social interaction, and individual choice, help her learn to interact effectively socially, assure her access to education in the least restrictive environment, and result in lasting positive change. [5 Cal. Code Regs. Sec. 3001(d).]

Positive behavior interventions shall be used only to replace specified negative behaviors with acceptable behaviors and shall never be used solely to eliminate maladaptive behaviors. [5 Cal. Code Regs. Sec. 3052(a)(2).] In other words, districts should not use techniques that simply contain or suppress maladaptive behaviors -- they must simultaneously try to teach appropriate substitute behaviors.

20. Do the new positive behavior intervention regulations specifically prohibit some behavior programming or techniques?

The behavior interventions used by the district cannot involve the infliction of pain or trauma. [5 Cal. Code Regs. Sec. 3001(d), 3052(a)(5).] In a behavioral emergency, that is, the demonstration of a behavior that has not been previously observed and addressed or for which no previous intervention has been effective, properly trained school personnel may use prone containment. The regulations contain very specific guidelines on the handling and documentation of emergencies. However, even in emergencies (and in all other behavior services) behavior interventions may not include:

(1) Release of toxic or unpleasant sprays near the student's face;

(2) Denying adequate sleep, food, water, shelter, bedding, comfort, or access to bathroom facilities;

(3) Subject the student to verbal abuse, ridicule or humiliation or cause emotional trauma;

(4) Use locked seclusion;

(5) Impede adequate supervision of the student;

(6) Deprive the student of one or more of his/her senses; or

(7) Employ any device, material, or object that simultaneously immobilizes all four extremities (except for prone containment in emergencies). [5 Cal. Code Regs. Sec. 3052(i), (l).]

21. Do the new positive behavior intervention regulations have any impact on the discipline of special education students?

Yes. If a district wishes to expel a student for a behavior that has been targeted for change under a positive behavior intervention plan, the IEP team would almost certainly have to find that the behavior was related to the student's disability. Thus, expulsion would be prohibited. In California, a special education student cannot be expelled unless the IEP team determines that she was appropriately placed at the time of her misconduct. [Cal. Ed. Code Sec. 48915.5(a)(3).] Thus, if a student did not receive a positive behavior assessment and intervention for a behavior that fit the definition of serious behavior problem (see Question 20), the IEP team should find that she was not appropriately placed at the time of her misconduct. This situation would also preclude expulsion.

However, school districts may suspend special education students for misconduct even though the behavior involved is targeted for change in the student's positive behavior intervention plan -- subject to the limitations discussed above regarding consecutive and total number of days.

Also, a student who is subjected to an alternative placement because of a weapon or drug charge, must, within ten days of suspension or alternative placement, have an IEP meeting to develop an assessment plan to address the behavior, or, if the student already has a behavior plan, the IEP team must review it and modify the plan if necessary to address the behavior. [20 U.S.C. Sec. 1415(k)(1)(B).]

For further information on the positive behavior intervention regulations, see Chapter 5, Information on Related Services.


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