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SCHOOL DISCIPLINE OF
SPECIAL EDUCATION STUDENTS
By Steven E. Glink, Attorney at Law*
I
often get calls from parents whose children are facing disciplinary action by
their local school. The types of “offenses” that these students are charged
with range from tardiness, insubordination (i.e., failure to obey a teacher’s
directive), verbal assault, fighting, possession of weapons, drugs and “being
dangerous.” The purpose of this article is to inform parents of what to expect
in these situations and to give them some guidelines in how to deal with the
situation. The first thing that parents need to understand is that there is
a tremendous difference between power and right. What I mean by that is that
under the law, the schools possess a lot of power in the area of student
discipline. This is true because courts traditionally have been reluctant to get
involved in student discipline matters. The courts want the schools to handle
their own problems. The schools are aware of this and have taken advantage of
the courts’ reluctance. To me, it appears that many schools believe that they
can do whatever they want, whenever they want however they want. Schools usually
have no concept of substantive or procedural due process of law. The schools
often
adopt the attitude of “it’s our way or the highway.” They continue to do
things in a certain way because that is how they have always done it.
Unfortunately, just because the school has done something in a certain way for
years does not mean that it is legally correct. Zero tolerance policies are a
perfect example of what I am talking about. The schools claim that zero
tolerance policies bring uniform discipline to students. In other words,
everyone is treated exactly the same. In theory, that sounds great, but in
practice, it is impractical because everyone is not the same. Zero tolerance
policies do not provide school administrators with any discretion to consider
the specific circumstances of any student’s situation. Thus, when a student
becomes verbally aggressive to a teacher, the student is found to be a
“dangerous person” and expelled because that is
the school’s policy. Often, the school fails to recognize
that a student with ADHD is impulsive, which may cause
the student’s verbal outburst. I believe that the school’s
failure to recognize individual differences is a terrible thing.
I also believe that the law is starting to scrutinize this area
a lot more closely. The courts want to make sure that the
schools are not abusing their power and that the students
are getting treated fairly.
Recent amendment to IDEA have afforded more protection
to students that are classified as special ed. eligible. Parents need to know
that the law does empower the school to impose “minor” discipline on special
ed. students with little restriction (20 USC 1415 (k)(1)(A)(I); 34 CFR
300.520 (a)(1)(I).
Examples of minor discipline include time-outs, detentions
and short suspension (up to 10 school days). Fortunately,
the law makes it much more difficult, if not impossible for
the schools to expel special ed. students. Under the law,
expulsion is considered a change of placement. When a school is confronted with
a special ed. student who is facing expulsion, the first thing that the school
must do is to convene a manifestation determination review hearing (20 USC 1415
(k)(4); 34 CFR 300.523). The purpose of the MDR is to determine whether the
student’s behavior is a manifestation of (i.e., caused by) his/her
disability. If the conduct is a manifestation of the disability, then the school
is prohibited from expelling the student. If there is a manifestation finding,
the IEP team must meet and consider whether a change in placement is
appropriate. There are only two disciplinary circumstances in which the school
may unilaterally change the special ed. student’s placement, which are (1) if
the student brings a weapon to school or (2) if the student is in possession of
drugs. 34 CFR 300.520. In those cases, the school may unilaterally impose a 45-
day alternative interim placement. If the school believes that a special ed.
student (no weapons or drugs) constitutes a danger to other students or staff,
the school must present evidence to an impartial hearing officer. If the school
proves its case, the HO is empowered to approve a 45-day alternative interim
placement (34 CFR 300. 521). Finally, a student who has not yet been found
eligible under IDEA may invoke all of the protections of the law in discipline
cases if the school had “knowledge” that the child had a disability before
the behavior occurred. 34 CFR 300.527. Knowledge is specifically defined in
the Federal Regulations (34 CFR 300.527 (b)). It isimportant for parents to
remember that every 45-day must be appropriate to meet the child’s
educational needs.
I hope that this article was helpful in understanding the disciplinary process for special ed. students. I want you to understand that because the school holds a lot of power, you may not be able to stop what they are doing initially. However, hopefully, with the help of an attorney or an advocate, if the school does not comply with the rules of law, they will be held accountable and their actions will be reversed.
* Steven E. Glink is an attorney who practices school law in the Chicago metropolitan area. The information contained in this article is intended as general information and not as legal advice. No attorney-client relationship is intended. Laws vary from state to state. Moreover, the interpretation of facts and law may vary depending on the judge or hearing officer assigned to the case. Therefore, there is no guarantee that Steven’s interpretation of the law or facts would be accepted in any court or hearing. Please feel free to contact Steven via e-mail (steve@educationrights.com) or by phone (847/480-7749) for further information.