Special Education Workshop: Student Discipline

Transcription

1 Special Education Workshop: Student Discipline

2 Presented By: The Justice Center of Southeast Massachusetts (A Subsidiary of South Coastal Counties Legal Services, Inc.) & Disability Law Center, Inc.

3 About Us 231 Main Street, Brockton Attorney Susan Love: Seth Seidman: (Seth) (Susan) Free civil legal services to low-income and elderly residents of our communities. We provide help in these and other areas: Family Housing Elders Immigration Benefits Education

4 Topics of Presentation Overview of Discipline in Schools and Due Process Overview of Discipline for Students with IEPs Change of Placement Manifestation Determination Functional Behavior Assessment Behavior Intervention Plan Emergency Placement: Special Circumstances 504 Plan v. IEP Restraints General Education Discipline

5 School Discipline When student is disciplined, protections and rights are decided by length of suspension Short term (ten days or less) Long term (more than ten days) Review student handbook for code of conduct

6 Due Process Notice and an opportunity to be heard What the violation is and time to prepare defense Notice should be in writing and should outline rights Present evidence Call witnesses Bring attorney at own expense Have the right to school s records for your student

7 Discipline Procedures for Students Eligible for Special Education Students with IEPs have additional protections and rights throughout disciplinary proceedings

8 IDEA: (a) A free and appropriate public education (FAPE) must be available to all children residing in the state between the ages of 3 and 21 inclusive, including children with disabilities who have been suspended or expelled from school Students with IEPs whose placements have been changed for disciplinary reasons (suspensions, expulsions) must receive special educational services to participate in general education curriculum and make progress towards IEP goals

9 Change of Placement Students who violate the code of conduct may be removed from the school through in-school suspensions, out-of-school suspensions, and even expulsion When these removals constitute a change of placement under IDEA, additional rights and protections for students with IEPs are triggered

10 When a change of placement has occurred: The suspension or explusion is for more than ten consecutive school days, within one school year Schools have no discretion in this determination. Any student removed for more than ten consecutive days has changed placements and schools must follow the procedures required by IDEA

11 Change of Placement: Series of short term suspensions Even if student has not been removed for ten consecutive days, the student may have been removed so often, for such similar offenses, or for such a significant amount of total time, that these removals amount to a change in placement. Schools decide if a series of removals constitute a change of placement (unlikely)

12 Series of short removals If parent feels a series of shorter removals has dramatically impacted student s education, parent can convene a Team meeting or even request a hearing with the BSEA Guideline: Ten total days of suspension

13 Free appropriate public education and change of placement A student with an IEP whose placement has been changed for disciplinary reasons is entitled to: Special educational services to allow student to participate in general education curriculum and make progress towards IEP goals, although in another setting The IEP Team determines what services are needed and the alternative setting

14 Notification The day the decision is made to discipline a student in a way that constitutes a change of placement, the school must notify the parents of that decision and provide the parents with the procedural safeguards notice

15 Key protection upon change of placement: Manifestation Determination Within ten days of deciding to change a student s placement for disciplinary reasons, the school must convene a Team meeting to review the IEP and the misconduct Team must decided if misconduct was the result or manifestation of student s disability Parents must be allowed to participate in decision This decision is called a manifestation determination

16 Manifestation Determination Finding that misconduct is a manifestation of student s disability means student will usually be returned to original placement When misconduct is found not to be a manifestation of a disability, student can be disciplined as a student without disabilities Student must still receive special education services in another setting

17 How manifestation determinations Team must decide: are made If the behavior was caused by the student s disability OR The behavior was the result of the school s failure to implement the IEP

18 Misconduct was a manifestation of disability The child must be returned to his or her placement, unless a new placement is agreed upon by the IEP team A functional behavioral assessment must conducted, if a recent one is not available A behavioral intervention plan must developed or modified Barriers, if present, to implementation of IEP must be remedied

19 Functional Behavioral Assessment (FBA) Determines the function of behavior Once purpose is understood, provide student with alternative ways of achieving purpose 3 common functions of behavior: attention, avoidance, sensory outlet Involves Interview of teacher, parents and student Observation of student Manipulating student s environment (less common) to evaluate student s response

20 Functional Behavioral Assessment (FBA) May need to request an outside evaluation from behavioral psychologist if FBA does not explain child s behavior adequately Parents are entitled to a school-funded, or partially funded, independent FBA, depending on family income

21 Behavior Intervention Plan (BIP) May make modifications to school code of conduct Should include positive interventions and supports to help the child succeed Reward system for good behavior Can include support for teachers to assist student with behavioral challenges Can include related services BIP can be developed for students before they are disciplined When a child s behavior impedes the child s learning or that of others, the IEP Team must consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior. (IDEA: (a)(2)(i))

22 Misconduct was not a manifestation of disability The student may be disciplined and removed as a child without an IEP The student must continue to receive educational services to allow participation in the general education curriculum and progress towards IEP goals, though in another setting IEP Team determines needed services and alternative setting Provide, as appropriate, a functional behavioral assessment (unlikely) A behavioral intervention plan must be developed or modified, as appropriate (unlikely)

23 Special Circumstances A child may be removed to an interim alternative educational setting (IAES) for not more than 45 school days regardless of whether or not the behavior was found to be manifestation of the student s disability if Student possess a weapon at school A weapon, device, instrument, material, or substance that is used for or can cause death or serious injury, except that such term does not include a pocket knife with a blade of less than 2.5 Knowingly possess, uses or sells illegal drugs at school Inflicts serious bodily injury upon another person at school A substantial risk of death, extreme physical pain, disfigurement, loss or impairment of the functioning of a body part

24 Case-by-case discretion School cannot contend that they must remove a student for a specific violation Law allows discretion; schools should consider any unique circumstances on a case-by-case basis

25 Interim Alternative Educational Setting and Manifestation Determination A manifestation determination must still be conducted even if student is being removed for special circumstance to IAES School can keep child in interim alternative educational setting for 45 days regardless of manifestation determination If misconduct is found to be a manifestation of disability, school must file for due process hearing if after 45 days in IAES, school feels student cannot be returned to original placement and parent won t consent to a change Key question in these disputes: is placement substantially likely to result in harm to student or to another, is it possible to reduce that risk of harm

26 Interim Alternative Educational Setting The IEP Team determines the IAES based on what the student will require to make progress towards IEP goals and participate in the general education curriculum In school: Resource room (unlikely) Out of school: Alternative school/therapeutic school

27 Appeal If the parent disagrees with the manifestation determination or placement, parent can file with BSEA Hearings in these circumstances are expedited: hearing within 20 school days of request; decision within 10 school days of hearing During the appeal student remains in disciplinary setting Student should be receiving special education services, in a different setting, throughout dispute resolution

28 Understanding Change of Placement: Specific timelines and Circumstances

29 Removal for 10 school days or less Removal for ten school days or less is rarely a change of placement Students with IEPs can be removed from school for ten school days or less without receiving special education services As long as those removals don t constitute a pattern, as determined by school, and therefore are not a change of placement

30 More than 10 total days and not a change of placement If a child has been removed for more than ten total days in the same year but these removals are not a change of placement: the school, in consultation with at least one of the student s teachers, should determine and provide the services needed for student to participate in the general curriculum and make progress toward IEP goals This determination of needed services is made independently of the IEP team

31 Removal for more than 10 consecutive school days If student is to be removed from school for eleven consecutive school days or more, child s placement has been changed School must Provide student with educational services to participate in general education curriculum and progress toward IEP goals, although in a different educational setting, throughout removal IEP Team determines alternative placement and services needed during removal Must have manifestation determination Provide, as appropriate, a functional behavioral assessment and behavioral intervention plan to prevent recurrence

32 Reminder Any student whose placement has been changed for disciplinary reasons must have a manifestation determination Regardless of outcome of manifestation determination, student must be provided with educational services to make progress toward IEP goals and participate in general curriculum Parent can appeal manifestation determination, and placement decisions; but student will remain in discipline setting during appeal

33 Student not yet eligible for special education: Prior Knowledge If the school had knowledge that the child who committed the misconduct had a disability, but no IEP, then the student is entitled to the same protections as those with IEPs School had prior knowledge of disability, if: Parent expressed concern in writing to school staff the child may require special education The parent requests and evaluation of the child The teacher expressed specific concerns about a pattern of behavior demonstrated by the child to the Director of Special Education

34 Exceptions to prior knowledge provision Parent has not allowed an evaluation Parent has refused services Child could be disciplined as a student without an IEP

35 Student not yet eligible for special education: Expedited Evaluation If the child is evaluated and found eligible during disciplinary proceedings, the rights and protections afforded to children with IEPs will be applied throughout the process The child will remain in the placement determined by the school (may be out-of school-suspension) until the evaluation is complete and eligibility is determined

36 Restraints Only used when Non-physical intervention would be ineffective The students behavior poses a threat of imminent serious physical harm to self or others Must report use of restraint to parent if lasts longer than 5 minutes, or results in injury to student or staff In these circumstances, school must inform parent of use of restraint as soon as possible, and by written report no later than three schools days from the time of the incident

37 Differences between Section 504 (504 Plans) and IDEA (IEPs) Section 504 has fewer protections for parents and students Student with 504 plans can be suspended and expelled without services, if the misconduct was not a manifestation of disability Section 504 does not guarantee parent participation in meetings, including manifestation determination No stay put rights Section 504 does not entitle parents to an independent evaluation

38 General Education Student Discipline

39 Mass. General Laws, Chapter 71, Section 37H If at a school function, a student is found in possession of a weapon or drugs, or causes injury (see special circumstances slide for definitions), a student may be expelled permanently from district Student has right to a hearing with principal May bring attorney, present evidence, witnesses Student may appeal expulsion to superintendent Must notify superintendent of appeal within 10 days of expulsion

40 Mass. General Laws, Chapter 71, Section 37H1/2 A student charged with a felony can be suspended for an appropriate period of time if the students presents a substantial detrimental effect on the general welfare of the school Principal makes these determinations Student must receive written notice of the reason for the suspension Right to appeal to superintendent; must notify superintendent of appeal within 5 days of suspension; suspension remains in effect during appeal Conviction, guilty plea or plea to sufficient facts (continued without a finding) will likely result in expulsion

41 Due Process for Disciplinary Action: New Bedford Short term suspension: Ten consecutive school days or less Verbal notice of the offense student is charged with and opportunity to respond before disciplinary action takes effect If student is suspended, parent must be notified by phone and in writing Long term suspension: More than ten consecutive school days Before disciplinary action parent, will be given notice of a hearing May bring attorney, at their own expense Present witness, evidence Within five days of start of suspension/expulsion, parent may appeal to the Superintendent

42 Due Process for Disciplinary Action: New Bedford Emergency Suspension: The physical safety of student or others is endangered and will continue to be endangered Student is causing and will continue to cause substantial interference with classroom instruction If an emergency suspension is short term, an opportunity to respond to charges must be provided as soon as possible If the emergency suspension is a long term suspension, student is entitled to a hearing as soon as possible

43 Special Educations Laws and Related Laws Massachusetts Laws (and regulations) MGL 71B: Children with Special Needs 603 CMR 28.00: Special education regulations Federal Laws (and regulations) 20 USC 1400: Individuals with Disabilities Education Act (IDEA) 34 CFR 300: IDEA regulations 29 USC 794: Section 504 of the Rehabilitation Act of USC et seq: American Disabilities Act 20 USC 6301: No Child Left Behind Act 20 USC 1232: Family Educational Rights and Privacy Act (FERPA)