My child exhibits behaviors at school that interfere with her learning. Does the school have a responsibility to help?
Yes. If your child’s behavior interferes with her learning or is disruptive to others students, the IEP must address those behaviors. The IEP Team must identify appropriate positive behavioral interventions, supports, and other strategies to address each behavior. You can ask for a "functional behavior assessment" (FBA) to determine why and when she is displaying the inappropriate behaviors and how best to respond. With that information, the IEP Team can develop a "behavior intervention plan" (BIP), which becomes a part of her IEP. The BIP should identify the supports and services she needs so can continue to learn.
My child has an IEP. Does this mean she can’t be suspended from school?
No. The IDEA contains specific procedures that must be followed when making decisions about disciplinary removals such as suspension or expulsion. However, your child can be suspended or expelled in accordance with those procedures. If your child is facing a disciplinary removal for misconduct, it is important that you seek legal advice as soon as possible. We do not recommend withdrawing your child from school.
My child engaged in misconduct at school. The principal says she doesn’t want to suspend him but she has no choice because of the district’s zero tolerance policy? Is this true?
No. School administrators have discretion under IDEA to determine whether to change the placement of a student with a disability who violates the student Code of Conduct. This means the principal (or other administrator) does not have to apply a local "zero tolerance" policy to a student with a disability, but can use discretion because of the impact of the student's disability on his or her behavior.
What is a manifestation determination review (MDR)?
Before taking disciplinary action that results in a student with a disability having her placement changed for more than ten days, the school district must first determine whether the behavior was a manifestation of her disability. It is now more difficult to find a student's misbehavior was not a manifestation of his disability.
The new standard is that the misbehavior must have been "caused by" or had a "direct and substantial relationship" to the child's disability, or was the "direct result" of a school district's failure to implement the IEP. Manifestation determinations are not required for removals of less than 10 consecutive school days.
Who is a member of the team making the manifestation determination?
The full IEP Team does not have to meet to conduct a manifestation determination. The group consists of the parent and “relevant” members of the IEP Team.
What happens if the behavior IS found to be a manifestation of the disability?
If the behavior is found to have been directly related to the student’s disability, the student must be returned to the placement she was in when the behavior occurred, unless the parent agrees the student should go to another placement as part of a modification of her behavior intervention plan.
What happens if the behavior is NOT related to the disability?
If the behavior is found NOT to be related to the disability, the school is entitled to discipline the student just like any other student. However, special education services must continue to be provided to the student with a disability. The IEP Team must meet to place the student. Students in disciplinary settings are still entitled to special education services as necessary to access the general curriculum and to make progress toward his or her IEP goals.
My child got into an argument with another student on the playground. Neither child was hurt. The school says it can remove my child for 45 days for fighting. Is this true?
No. The school can only remove a student for up to 45 school days for offenses involving drugs, weapons, or the infliction of “serious bodily injury to another person.” This is true regardless of whether the offense was a manifestation of the student’s disability.
How do I challenge the school’s decision to discipline my child?
You may file a due process complaint and request for hearing. In discipline cases, the student is entitled to an expedited hearing within 20 school days after the hearing is requested. The hearing officer must issue a decision within 10 school days. Unless the team found the student’s conduct to be a manifestation of the disability, the student will remain in the disciplinary setting pending the hearing decision, or the end of his or her disciplinary placement.
If you have questions about student discipline and your child’s right, please contact the Native American Disability Law Center at (505) 566-5880. You may also contact your state educational agency or the Bureau of Indian Education to obtain a sample form for filing a due process complaint and request for expedited hearing.