Special Education Law and Discipline

David Nash, Esq.NJPSA Legal Counsel

and Teresa Moore, Esq.Rutgers Law School

www.featraining.org

We are pleased to bring you this FEA-developed program as an NJPSA member benefit.

Key Questions in Discipline Case for Students with DisabilitiesIs there a significant change in

placement?Did the incident involve a

weapon, drugs, or serious bodily injury?

Was the behavior a manifestation of disability?

Is the student a danger to himself or others?

Change in Placement

Significant if:For more than 10 consecutive

days; orSeries of removals constitute a

pattern.If significant change, triggers

procedural safeguards.

Was There a Pattern?Pattern exists if total number of

days removed is greater than 10 days; and

Other factors indicate a pattern:◦Length of each removal.◦Total amount of time removed.◦Proximity of removals to each other.

Were Weapons or Drugs Involved?Child who brings weapon to

school, knowingly possesses illegal drugs, or causes serious bodily injury may be placed in AES for same amount of time as nondisabled peer (45 days).

AES must meet goals of IEP.CST must conduct FBA,

formulate/review BIP, conduct manifestation determination as required.

Manifestation DeterminationCase Manager immediately

notifies parents of:◦Impending discipline. ◦Procedural safeguards.◦Plan to do manifestation review.

Timelines for Manifestation ReviewIEP meeting within 10 business days

of:◦ When child first removed more than 10

school days in one school year; and◦ Whenever child is subjected to change in

placement.Must begin to review/modify BIP

beginning on 11th day of removal or whenever change in placement occurs.

Review BIP if a team member believes it necessary if there are subsequent removals.

If Behavior is Not a ManifestationMay discipline same as other

students.Must continue to provide FAPE as

for all students.IEP team gives parents written

statement with conclusions and right to mediation or due process hearing.

Parent may challenge manifestation determination or penalty imposed.

Additional StepsMust provide written notice of AES,

suspension beyond 10 days, or expulsion, within 15 days of making decision and 15 days before implementing change unless:◦ IEP team finds immediate action needed.◦ Notice still must state when disciplinary

action will be implemented and explain why there was need for less than 15 days notice.

Persons making discipline decision must have special ed. and discipline records before making decision on discipline to be imposed.

If Behavior is a Manifestation, or if Behavior is Result of Poor IEP,

Then

IEP must be revised.Discipline may not be imposed.

Is the Student Dangerous?District may request an expedited

hearing if it believes then-current placement dangerous

Judge may place student in interim alternative setting up to 45 days if:◦ District has substantial evidence of likely

injury to student or others without change.◦ New placement is appropriate.◦ District attempted to minimize harm to

student, including use of supplementary aides and services.

◦ Interim setting allows student to receive FAPE and meet IEP goals.

◦ Includes services/modifications to address behavior.

Placement During AppealsIf parent requests due process

hearing, student must be returned to last agreed upon placement unless:◦ District and parent agree otherwise;◦ District seeks emergent hearing; or◦ Discipline results from

weapons/drugs/serious bodily injury.If weapons/drugs offense, serious

bodily injury or student found dangerous, student stays in interim AES pending hearing up to 45 days.

Placement During Appeals (cont’d)At end of 45 days in interim AES,

student must return to last agreed upon placement unless hearing officer determines student is too dangerous.

District cannot move student to new AES during 45 days unless hearing officer determines interim AES is too dangerous.

Continuing Right to EducationStudents suspended for more

than 10 days in a school year have right to FAPE.

Must provide educational services during “within 5 school days” of when a student is removed.

Rights of Non-Classified StudentsStudent may assert IDEA

protections if district knew or should have known that child had a disability.

District should have known if:◦Parent provided written notice to

district;◦Child’s behavior should have alerted

district;◦Parent requested an evaluation; or◦Student’s teacher or other personnel

expressed concern to school officials.

Discussion ScenarioChristine is a 10th grade special

education student who has major behavioral issues. During the current school year, Christine has already been suspended on three separate occasions, totaling 10 days of suspension between September and December.

Discussion Scenario (cont’d)In early January, the school principal

receives a call from a parent that her child, Carla, is being harassed and intimidated by Christine. Carla and Christine are in the same physical education class. Christine allegedly punched Carla and her friend Dina, in the locker room after gym class. The incident was not reported at the time by either student.

Discussion Scenario (cont’d)The mother claims that since this

assault, Carla has become so stressed that she doesn’t want to go to school, and when she finally did go today, she had a doctor’s note in order to avoid phys ed. According to the mother, Christine enjoys terrorizing other students and knows that she can get away with it, since she knows she can’t be suspended anymore this year.

Discussion Scenario (cont’d)The principal turns the matter

over to the anti-bullying specialist, Ms. Johnson. Christine admits to punching Carla and Dina. Ms. Johnson also learns during the investigation from several sources that Christine violently shoved another student, Renee, who had been teasing her for several weeks for being “stupid.”

Discussion Scenario (cont’d)Christine claims that she is the real

bullying victim and that she only lashed out at Carla and Dina because they kept calling her names, like “Time Bomb” and “Crazy Christine.” She produces printouts of online postings from a social networking site, in which Carla and Dina describe Christine in derogatory terms, related to her special education classification.

Discussion Scenario (cont’d)ISSUES RAISED

◦ Can a special education student be a bully?◦ Is Christine a Bully? ◦ Is Christine a victim of bullying?◦ Was Christine’s behavior a manifestation of

her disability?◦ What disciplinary action, if any, may the

district take against Christine? Against Carla and Dina?

◦ What steps, other than discipline, should be taken to address Christine’s behavior?

QUESTIONS

For more information about training opportunities, contact Jay Doolan:

jdoolan@njpsa.org609-860-1200

Foundation for Educational Administration12 Centre DriveMonroe Township, NJ 08831