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Students with Disabilities

Rights of Students with Disabilities Involved in the Disciplinary Process

Students with disabilities (i.e., special education eligible or §504/ADA qualified students or students in the referral process) are subject to disciplinary procedures. Discipline of these students is governed by procedural due process requirements in order to guarantee access to a free and appropriate public education (FAPE). Schools are obligated to accurately record the number of days of removal for disciplinary reasons, including suspensions, bus suspensions (without alternate transportation), half-days, and early releases. Schools are not allowed to implement “informal” suspensions – with or without parental consent.
 

Functional Behavioral Assessment and Behavior Intervention Plan

When a child with a disability exhibits severe behavioral difficulties, schools have a responsibility to focus on positive and proactive approaches (e.g., functional behavioral assessment and behavioral intervention plan) rather than relying solely on exclusionary practices (e.g., suspensions or removals). A functional behavioral assessment (FBA) refers to a school-based team that meets to examine the child’s problem behaviors to figure out when, where, and why they are occurring. A behavior intervention plan (BIP) provides the school with an action plan so that when the problem behavior occurs, teachers and others will know how to respond.
 

School Suspensions/Expulsions

When suspending a student with a disability for disciplinary reasons, school administrators should begin by using the same due process procedures that are established for all students; however, after the fifth day of suspension, the IEP team must conduct a functional behavioral assessment (FBA) and implement a behavioral intervention plan (BIP) for the student. After the seventh day of suspension, the IEP team must meet to review and revise the FBA and BIP and implementation of the IEP and BIP. After the tenth day of suspension, students with disabilities have specific additional rights.

Prior to proceeding with a suspension for a student with a disability past the tenth day of suspension, the school administrator and specialized services regional manager must review all the suspensions for the student during the school year to determine whether a pattern of suspensions exists. 

  • If a pattern does not exist, school personnel must develop a plan to provide educational services on each day the student is to be suspended and may suspend the student. For §504/ ADA students, there is no obligation to provide services beyond the tenth day of suspension.
  • If a pattern does exist and the proposed suspension would constitute a change of placement, prior to suspending the student, the IEP team must conduct a manifestation determination. 
  • If the IEP team determines the behavior is not a manifestation of the student’s disability, then school personnel must develop a plan to provide educational services on each day the student is to be suspended and may suspend the student.
  • If the IEP team determines the behavior is a manifestation of the student’s disability, then the school administrator cannot suspend the student. The IEP team must also meet to review and revise the FBA and BIP and implementation of the IEP and BIP.

Because the manifestation determination is conducted in the context of an IEP or §504/ADA team meeting, parents have the right to request a due process hearing if they disagree with the outcome.