School Discipline and Special Education Law. Chris Shank, Joel Greenberg, Esqs., Disability Rights Oregon, Brian Baker, Esq.,Juvenile Rights Project

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1 School Discipline and Special Education Law Chris Shank, Joel Greenberg, Esqs., Disability Rights Oregon, Brian Baker, Esq.,Juvenile Rights Project

2 Court Involved Youth Special Education referral rates are three times greater for students in foster care than non-court involved students. (30%-50%) of children in foster care are eligible for special education. In the late 1990 s, Oregon saw a thirtynine percent (39%) increase in children with special needs placed in out-of-home care.

Today s Discussion Discuss procedural protections under special education law for children with school-based disabilities facing exclusionary discipline

3 Today s Discussion Discuss procedural protections under special education law for children with school-based disabilities facing exclusionary discipline through suspension/expulsion. Examine alternatives to exclusion through functional behavioral assessment and development of behavioral intervention strategies.

4 Special Education: Exclusionary Discipline Suspension may include send-homes, sent out of class, or actual school removal. Students with Disability may be suspended up to 10 school days in a school year without provision of special education services. If district is considering expulsion, or a removal beyond 10 school days, the district must convene an IEP meeting, called a manifestation hearing, to determine if the student s behavior is related to his/her disability.

5 Special Education: Manifestation Manifestation Hearing: IEP team reviews all relevant information in the student s file, including child s individual education plan (IEP) or 504 plan, teacher observations, and any relevant information provided by the parents to determine:

6 Special Education: Manifestation 1.) was the child s conduct caused by, did it have a direct and substantial relationship to, the child s disability; or 2.) if the conduct in question was the direct result of the school s failure to implement the IEP.

7 Special Education: Manifestation If the conduct is a manifestation of the student s disability, the district may not expel the student. The IEP must provide functional behavioral assessment and/or review the student s behavior support plan, and the team can discuss additional student supports and/or possible change in educational placement.

8 Special Education: Manifestation If the manifestation determination is the behavior is not related to disability, the school may discipline the child as it would a non-disabled peer, including expulsion. However, the child is entitled to special education services even during a period of expulsion. The school,with IEP team input, determines the placement for services during the expulsion.

9 Special Education: Post Expulsion Students who have been expelled (where IEP team determined child s behavior not a manifestation of disability) are entitled to: Enroll in alternative education programs at district expense during the period of expulsion, (caveat: weapons-enrollment if district agrees); Continue to receive special education services, pursuant to the child s IEP/504 plan; Re-enroll in home school at the conclusion of the expulsion; Seek timely appeal of both the expulsion determination, as well as appeal of the manifestation determination. See ORS and OAR

10 Special Education: Students Not yet Eligible Certain students not yet receiving special education services are entitled to procedural protections of special education if: The parent has expressed concern in writing to supervisory or administrative personnel or a teacher of the child, that the child is in need of special education

Special Education: Students Not Yet Eligible The parent has requested an evaluation for special education services; The child s teacher or other school

11 Special Education: Students Not Yet Eligible The parent has requested an evaluation for special education services; The child s teacher or other school personnel expressed specific concerns about a pattern of behavior demonstrated by the child to the director of special education or to other supervisory personnel.

12 Special Education:Students Not Yet Eligible If one of these conditions is met, school must hold exclusionary discipline in abeyance pending convening of IEP team and compliance with IDEA procedural protections: identification, evaluation, determination of eligibility, IEP development, and manifestation determination.

13 Special Education: Functional Behavioral Assessment Anytime the IEP team identifies that student behavior is impacting the child s learning, the team should consider conducting a functional behavioral assessment (FBA) to determine how to best support the child s learning style and limit possible disciplinary referral.

14 Special Ed: Functional Behavioral Assessment (FBA) During discipline, if school looking at exclusion beyond 10 school days, an IEP team must review and revise an FBA, if one exists, and/or convene an IEP meeting to conduct an FBA and develop a behavior intervention/support plan (BSP/BIP), as a result of the behavior that lead to the school discipline referral.

15 Conclusion Special education protections in discipline situations ensure students are not excluded from school for behaviors that are related to their disability or where behaviors result from the failure of school team to implement IEP supports.

IDEA 2004 Close Up: Disciplining Students With Disabilities

IDEA 2004 Close Up: Disciplining Students With Disabilities If your child has an IEP, you should understand the legal provisions for disciplining him at school. By Candace Cortiella, The Advocacy Institute