topleft CSBA.org >  Services >  Governance Technology > 

Napa COE |  AR  5144.2  Students

Suspension And Expulsion/Due Process (Students With Disabilities)   

arrow Previous bar Next arrow

Districts or county office programs receiving funds under the Education of the handicapped Act may not unilaterally exclude a dangerous or disruptive special education student form the classroom if the dangerous or disruptive behavior is caused by the student's disabling condition.

A student identified as an individual with disabilities pursuant to the Individuals with Disabilities Education Act (IDEA) or a student with a Section 504 accommodation plan pursuant to the federal Rehabilitation Act of 1973 (29 USC 794) is subject to the same grounds for suspension and expulsion which apply to students without disabilities.

All the procedural safeguards established by the County office of Education policies and regulations shall be observed in considering the suspension of special education students, including the requirement that, depending on the disruptiveness of the conduct, some form of in-school intervention be used prior to suspension to show that suspension was imposed only when other means of correction failed to bring about proper conduct. (Education Code 48900.5)

(cf. 5144.1 - Suspension and Expulsion/Due Process)

(cf. 6159.1 - Procedural Safeguards and Complaints for Special Education)

Procedures for Students Not Yet Eligible for Special Education Services

A student who has not been identified as an individual with disabilities pursuant to IDEA and who has violated the County Office program's disciplinary procedures may assert the procedural safeguards granted under this administrative regulation only if the County Office program had knowledge that the student was disabled before the behavior occurred. (20 USC 1415(k)(8))

The County Office program shall be deemed to have knowledge that the student had a disability if one of the following conditions exists: (20 USC 1415(k)(8); 34 CFR 300.527)

1. The parent/guardian has expressed concern in writing, or orally if the parent/guardian does not know how to write or has a disability that prevents a written statement, that the student is in need of special education or related services.

2. The behavior or performance of the student demonstrates the need for such services, in accordance with 34 CFR 300.7.

3. A current parent/guardian request is on file for an evaluation of the student for special education pursuant to 34 CFR 300.530-300.536.

(cf. 6164.4 - Identification of Individuals for Special Education)

4. The teacher of the student or other County Office program personnel has expressed concern about the behavior or performance of the student to the County Office program's director of special education or to other personnel in accordance with the County Office program's established child find or special education referral system.

The County Office program would be deemed to not have knowledge as specified in items #1-4 above if, as a result of receiving such information, the County Office program either conducted an evaluation and determined that the student was not a student with a disability or determined that an evaluation was not necessary and provided notice to the parent/guardian of its determination. (34 CFR 300.527)

If it is determined that the County Office program did not have knowledge that the student was disabled prior to taking disciplinary action against the student, then the student shall be disciplined in accordance with procedures established for students without disabilities. (20 USC 1415(k)(8))

If a request is made for an evaluation of a student during the time period in which the student is subject to disciplinary measures, the evaluation shall be conducted in an expedited manner. Until the evaluation is completed, the student shall remain in the educational placement determined by school authorities. (34 CFR 300.527)

Suspension

The Superintendent or designee may suspend a student with a disability for up to 10 consecutive school days for a single incident of misconduct, and for up to 20 school days in a school year, as long as the suspension(s) do not constitute a change in placement pursuant to 34 CFR 300.519. (Education Code 48903; 34 CFR 300.520)

Suspending a student for more that (10) consecutive days constitutes a change in placement and is prohibited without parental consent or by court order.

Suspension and Expulsion/Due Process

(Students with Disabilities)

AR 5144.2 (c)

When traditional disciplinary measures such as counseling, study carrels, detention or restriction of privileges fail to diffuse the threat posed by a dangerous handicapped student, school/program officials may use the ten-day suspension period to seek parental consent for another placement.

The County Office may seek to include in any potentially dangerous special education students Individual Education Plan the parent/guardian's advance approval for an appropriate disciplinary plan to be used in the event that dangerous or disruptive conduct should occur. Clarifying language in the IEP may be used to avoid the need to seek parental consent or court action within ten days of a suspension.

The program director or designee shall monitor the number of days, including portions of days that students with valid individualized education programs (IEP) have been suspended during the school year.

Services During Suspension

Students suspended for more than ten school days in a school year shall continue to receive services during the term of the suspension, to the extent necessary to provide the student a free and appropriate public education. (20 USC 1412(a)(1)(A); 34 CFR 300.520)

If a student with disabilities is excluded from school bus transportation, the student is entitled to be provided with an alternative form of transportation at no cost to the student or parent/guardian, provided that transportation is specified in the student's IEP. (Education Code 48915.5)

(cf. 3541.2 - Transportation for Students with Disabilities)

Interim Alternative Placement Due to Dangerous Behavior

A student with a disability may be placed in an appropriate interim alternative educational setting, including home placement, for up to forty-five days when he/she commits one of the following acts: (20 USC 1415(k)(1); 34 CFR 300.520)

1. Carries a weapon to school or to a school function. A weapon refers to a "dangerous weapon" as defined in 18 USC 930 and includes any device that is capable of causing death or serious bodily injury. The term does not include a pocket knife with a blade of less than 2 1/2 inches in length. "Carries a weapon" also covers instances in which the student is found to have a weapon that he or she obtained while at school (34 CFR 300.a1)

2. Knowingly possesses or uses illegal drugs while at school or a school function

3. Sells or solicits the sale of a controlled substance while at school or a school activity as identified in 21 USC 812(c), Schedules I-V

The student's alternative educational setting shall be determined by the student's IEP team. (20 USC 1415(k)(2))

A hearing officer may order a change in placement of a student with a disability to an appropriate interim educational setting if the hearing officer: (20 USC 1415(k)(2); 34 CFR 300.521, 300.522)

1. Determines that the County Office program has established by substantial evidence, meaning beyond a preponderance of the evidence, that maintaining the current placement of the student is substantially likely to result in injury to the student or others

2. Considers the appropriateness of the student's current placement

3. Considers whether the County Office program has made reasonable efforts to minimize the risk of harm in the student's current placement, including the use of supplementary aids and services

4. Determines that the interim alternative educational setting proposed by school personnel who have met with the student's special education teacher allows the student to:

a. Progress in the general curriculum and continue to receive those services and modifications, including those described in his/her IEP, to enable the student to meet the goals of the IEP

b. Receive services and modifications designed to address the behavior and ensure that the behavior does not recur

The student may be placed in the interim alternative educational setting for up to forty-five days, or until the conclusion of any due process hearing proceedings requested by the parent/guardian. (20 USC 1415(k)(2))

If in the opinion of school/program officials as special education student is a serious danger to the safety of students and staff and a more structured and closely supervised placement is deemed warranted, and the student's parent/guardian do not agree to a change in placement, the State or Federal Court may be petitioned to order that the student's placement be changed while expulsion proceedings and due process challenges to expulsions take place. (USC 1415(e)(3); Education Code 56505(d))

During court proceedings the County Office has the burden of proving that due process procedures would serve no purpose due to the imminent threat of danger if the student is not quickly removed.

Under truly exigent circumstances, home placement may be requested of the court.

Behavioral Assessment and Intervention Plan

Not later than ten business days after a student has been suspended for more than ten school days or placed in an alternative educational setting, the County Office program shall convene an IEP team meeting to conduct a functional behavior assessment and implement a behavioral intervention plan. If the student already has a behavioral intervention plan, the IEP team shall review the plan and modify it as necessary to address the behavior. (20 USC 1415(k)(1); 34 CFR 300.520)

(cf. 6159 - Individualized Education Program)

(cf. 6159.4 - Behavioral Interventions for Special Education Students)

As soon as practicable after developing the behavioral intervention plan and completing the required assessments, the IEP team shall meet to develop appropriate behavioral interventions to address the behavior and shall implement those interventions. (34 CFR 300.520)

Procedural Safeguards/Manifestation Determination

The following procedural safeguards shall apply when a student is suspended for more than ten consecutive school days, when disciplinary action is contemplated for a dangerous behavior as described above, or when a change of placement is contemplated: (20 USC 1415(k)(4); 34 CFR 300.523)

1. The parents/guardians of the student shall be immediately notified of the decision and provided the procedural safeguards notice pursuant to 34 CFR 300.504 on the day the decision to take action is made. In no case shall this notice be served less than forty-eight hours before the meeting. If the parent/guardian refuses written permission for the evaluation to proceed, the IEP Team may seek a fair hearing and proceed without such consent if the proposed evaluation is approved as a result of the due process hearing. Parental consent is not required as a condition for expulsion proceedings or the decision to expel. (Education Code 48915.5)

2. Immediately if possible, but in no case later than ten school days after the date of the decision, a manifestation determination review shall be made of the relationship between the student's disability and the behavior subject to the disciplinary action.

3. Unless a parent/guardian has requested a postponement in writing, the meeting may be conducted without the parent/guardian's participation.

4. A parent/guardian's request that the meeting be postponed shall be granted for up to three additional school days. The County Office of Education shall extend any suspension of the student for the period of postponement.

5. At this review, the IEP team and other qualified personnel shall consider, in terms of the behavior subject to the disciplinary action, all relevant information that has been acquired within three years of the date of the alleged misconduct, including: (20 USC 1415(k)(4); 34 CFR 300.523)

a. Evaluation and diagnostic results, including the results or other relevant information supplied by the student's parents/guardians, including:

(1) A review of the student's school progress and behavior, if available, including, but not limited to, a review of the student's individualized education program, teacher progress reports and comments, school health records, and school discipline records.

(2) A review of the ability of the student to conform his/her behavior to the prescribed standards, and determination of the relationship, if any, between the student's behavior and his/her handicapping condition.

b. Observations of the student

c. The student's IEP and placement

6. In relationship to the behavior subject to the disciplinary action, the team shall then determine whether the IEP and placement were appropriate and whether supplementary aids, services, and behavioral intervention strategies were provided consistent with the student's IEP and placement. The team shall also determine that the student's disability did not impair the ability of the student to understand the impact and consequences of the behavior, nor did it impair his/her ability to control the behavior subject to the disciplinary action. (20 USC 1415(k)(4); 34 CFR 300.523)

7. If the team determines that the student's behavior was a) not a manifestation of his/her disability, and b) the student was appropriately placed at the time misconduct occurred, then the student may be disciplined in accordance with the procedures for

students without disabilities, as long as the student continues to receive services to the extent necessary to provide that student a free and appropriate public education. (20 USC 1415(k)(4); 34 CFR 300.524)

If the team determines that the student's behavior was a manifestation of his/her disability, then the student's placement may be changed only via the IEP process. (20 USC 1415(k)(4))

Due Process Appeals

If the parent/guardian disagrees with a decision of the IEP Team that the behavior was not a manifestation of the student's disability or with any decision regarding placement, he/she has a right to appeal the decision. (20 USC 1415(k)(6); 34 CFR 300.525)

If the State's special education due process hearing is initiated by the parent/guardian due to a disagreement with the IEP Team recommendation, the County Office of Education shall cooperate with the State Department of Education toward achieving an expeditious resolution to the disagreement.

If the student's parent/guardian initiates a due process hearing to challenge the interim alternative educational setting or the manifestation determination, the student shall remain in the interim alternative setting pending the decision of the hearing officer or the expiration of the 45-day time period, whichever occurs first, unless:

1. He/she has been suspended. Such suspensions may not exceed five consecutive school days of a single incident of misconduct unless extended by five (5) additional days when the student poses an immediate threat to the safety of others (Education Code 48911)

2. The student and his/her parents/guardians agree to a change in placement (Code 48911, 34 CFR 300.526)

3. A court order has been obtained permitting such a change in placement.

4. The change is a "minor" change in program or services rather than a "significant" change in placement. (Doe v. Maher)

If school personnel maintain that it is dangerous for the student to be placed in the current placement (placement prior to removal to the interim alternative education setting), pending the due process proceedings, the Superintendent or designee may request an expedited due process hearing. (34 CFR 300.526)

Services During Expulsion

Expelled students shall continue to receive services during the term of the expulsion to the extent necessary to provide the student a free and appropriate public education. Any alternative program must provide services to the extent necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the student's IEP. (20 USC 1412(a)(1)(A); 34 CFR 300.121, 300.520)

(cf. 6158 - Independent Study)

(cf. 6185 - Community Day School)

Readmission

Readmission procedures for students with disabilities shall be the same as those used for all students. Upon readmission, an IEP team meeting shall be convened.

Suspension of Expulsion

The Board's criteria for suspending the enforcement of an expulsion order shall be applied to students with disabilities in the same manner as they are applied to all other students. (Education Code 48917)

Notification to Law Enforcement Authorities

Prior to the suspension or expulsion of any student, the program director or designee shall notify appropriate city or county law enforcement authorities of any student acts of assault which may have violated Penal Code 245. (Education Code 48902)

The program director or designee also shall notify appropriate city or county law enforcement authorities of any student acts which may involve the possession or sale of narcotics or of a controlled substance or possession of weapons or firearms in violation of Penal Code 626.9 and 626.10. (Education Code 48902)

Within one school day after a student's suspension or expulsion, the program director or designee shall notify appropriate city or county law enforcement authorities, by telephone or other appropriate means, of any student acts which may violate Education Code 48900(c) or (d), relating to the possession, use, offering or sale of controlled substances, alcohol or intoxicants of any kind. (Education Code 48902)

Legal Reference:

EDUCATION CODE

35146 Closed sessions re: suspensions

35291 Rules of governing board

48203 Reports of severance of attendance of disabled students

48900-48925 Suspension and expulsion

49076 Access to student records

56000 Special education; legislative findings and declarations

56320 Educational needs; requirements

56321 Development or revision of individualized education program

56329 Independent educational assessment

56340-56347 Individualized education program teams

56505 State hearing

PENAL CODE

245 Assault with deadly weapon

626.2 Entry upon campus after written notice of suspension or dismissal without permission

626.9 Gun-Free School Zone Act

626.10 Dirks, daggers, knives, razors, or stun guns

UNITED STATES CODE, TITLE 18

930 Weapons

1365 Serious bodily injury

UNITED STATES CODE, TITLE 20

1412 State eligibility

1415 Procedural safeguards

UNITED STATES CODE, TITLE 21

812 Controlled substances

UNITED STATES CODE, TITLE 29

706 Definitions

794 Rehabilitation Act of 1973, Section 504

CODE OF FEDERAL REGULATIONS, TITLE 34

104.35 Evaluation and placement

104.36 Procedural safeguards

300.1-300.818 Assistance to states for the education of students with disabilities, especially:

300.530-300.537 Discipline procedures

COURT DECISIONS

Schaffer v. Weast, (2005) 546 U.S. 549

Parents of Student W. v. Puyallup School District, (1994 9th Cir.) 31 F.3d 1489

M.P. v. Governing Board of Grossmont Union High School District, (1994) 858 F.Supp. 1044

Honig v. Doe, (1988) 484 U.S. 305

Management Resources:

FEDERAL REGISTER

Rules and Regulations, August 14, 2006, Vol. 71, Number 156, pages 46539-46845

WEB SITES

California Department of Education, Special Education: http://www.cde.ca.gov/sp/se

U.S. Department of Education, Office of Special Education Programs: http://www.ed.gov/about/offices/list/osers/osep

Regulation NAPA COUNTY OFFICE OF EDUCATION

approved: January 6, 2004 Napa, California