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Statewide Parent Training Information Center (PTI) |
- My son, who is in a BD (Behavior Disability) program, has just been expelled for dangerous behavior. We have been told he can't return to his school. Can they decide to remove him without giving him his Due Process rights?
Under the IDEA 97 (Individuals with Disabilities Education Act) amendments, the process for suspensions and expulsions is outlined. It is important to understand that a student with a disability, can be removed from his/her current educational placement for up to 10 cumulative school days in a given school year, without the district being required to do any of the special education procedures. Where a suspension lasts more than 10 cumulative days, the school district will be required to follow the procedures for discipline outlined in the IDEA including providing educational services. If the child's behavior is such that he/she will have been suspended longer than the 10 cumulative school days, or it is expected that the behavior may recur, the IEP Team (which will always include the parent) must do a manifestation determination. This is a procedure to determine if the child's behavior is related to the disability. They must also review the child's IEP and placement and determine if the positive behavior goals in a behavioral plan within the IEP were being followed. If there is no plan within the IEP, then the IEP team must develop a plan for doing a functional behavioral assessment and developing goals, so that the behavior does not recur.
The District has the right to unilaterally remove a child from his/her educational placement to an alternative educational setting (AES) if the child brings a weapon (as defined by Federal Code Section 930 of Title 18) or knowingly possesses or solicits the sale of illegal drugs, or controlled substances. (This does not include alcohol) The removal of a student for one of these two offenses can not exceed 45 calendar days, and the student must receive services in compliance with the IEP.
If a student is determined to be a danger to himself or others, the district can request an expedited due process hearing with an impartial hearing officer. In Washington State, this will be an individual assigned through the Administrative Law Judge offices. They are responsible for all Due Process Hearings within the State. This individual must follow specific steps outlined within the IDEA to determine whether or not the child should be removed to an interim alternative educational setting. This setting can not exceed 45 calendar days. During that time the IEP team must meet to develop strategies and goals to address the behavior, and consider other possible placements for the student. The student must still receive his educational services in compliance with his IEP, and must have access to the general education curriculum, though in a different setting. A district also has the option of appealing to the courts for an injunction against the child. Both the hearing officer and the judge will be required to use specific procedures and practices in making a determination about removing the child.
As a parent, you have the right to challenge any decision made regarding the education, placement the provision of services, evaluation, or Free Appropriate Public Education (FAPE) for your child. This would be done through a Due Process hearing. As a part of this process, you may request that the district consider mediation to resolve the problem.
The intent of the IDEA is for parents and schools to work together as a decision making team on behalf of the child. Suspensions and expulsions can be a challenge to this team. However, working together as a team, these challenges can be met.
- My child has ADHD and is being evaluated by the school to see if he qualities for special education. He has been expelled. The notice said it was for "disrupting the educational setting". He had become angry and called the teacher a name during class. What are his rights?
Since the district had knowledge of your child's disability and he is in the process of being evaluated for special education, he has the protections of the disciplinary sections of the Individual with Disabilities Education Act (IDEA). Under IDEA, the school district has knowledge of a possible disability if a child has been referred for evaluation or if his behavior or performance demonstrates the need for special education and related services. If an exclusion will be for more than 10 days, it is considered a change in placement and certain procedures must be followed. 1) No later than the day the (change of placement) decision was made, parents must be notified and provided the procedural safeguards. 2) No later than 10 school days after the decision was made, the Individual Education Plan (IEP) Team must conduct a manifestation determination. It is a review of the relationship between the child's disability and the behavior subject to the disciplinary action. 3) Either before or not later than 10 days after taking the disciplinary action, if the district did not conduct a functional behavioral assessment and implement a positive behavioral intervention plan, they must call an *IEP meeting to develop a plan that addresses the behavior. If a plan is already in place, the IEP Team shall review and modify the plan, as necessary, to address the behavior. If a child has not been brought to the attention of the district for evaluation and a request for evaluation is made during the duration of the disciplinary action, the evaluation must be conducted in an expedited manner. Until a child is determined eligible for special education, he remains in the placement the school district chose, which can include suspension or expulsion with no services provided. The right to appeal the suspension or expulsion of any child is always available.
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