Novato USD | AR 5144.2 Students
Suspension And Expulsion/Due Process (Students With Disabilities)
A student identified as an individual with disabilities pursuant to the Individuals with Disabilities Education Act (IDEA), 20 USC 1400-1482, is subject to the same grounds and procedures for suspension and expulsion which apply to students without disabilities, except as otherwise specified in this administrative regulation.
(cf. 5144.1 - Suspension and Expulsion/Due Process)
Procedures for Students Not Yet Eligible for Special Education Services
A student who has not been officially identified as a student with disabilities pursuant to IDEA and who has violated the district's code of student conduct may assert the procedural safeguards granted under this administrative regulation only if the district had knowledge that the student is disabled before the behavior that precipitated the disciplinary action occurred. (20 USC 1415(k)(5) 34 CFR 300.534)
The district shall be deemed to have knowledge that the student has a disability if one of the following conditions exists: (20 USC 1415(k)(5); 34 CFR 300.527)
1. The parent/guardian has expressed concern to supervisory or administrative district personnel 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.
(cf. 6164.4 - Identification of Individuals for Special Education)
3. The teacher of the student, or other district personnel, has expressed specific concerns directly to the district's director of special education or to other supervisory district personnel about a pattern of behavior demonstrated by the student.
The district would be deemed to not have knowledge that a student is disabled if the parent/guardian has not allowed the student to be evaluated for special education services or has refused services. In addition, the district would be deemed to not have knowledge if the district conducted an evaluation and determined that the student was not an individual with a disability. When the district is deemed to not have knowledge of the disability, the student shall be disciplined in accordance with procedures established for students without disabilities. (20 USC 1415(k)(5) 34 CFR 300.534)
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. (20 USC 1415(k)(5); 34 CFR 300.527)
The Superintendent or designee may suspend a student with a disability for up to 5 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) does not constitute a change in placement pursuant to 34 CFR 300.519. (Education Code 48903; 34 CFR 300.530)
The principal 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.
(cf. 6159 - Individualized Education Program)
The Superintendent or designee shall determine, on a case-by-case basis, whether a pattern of removals of a student from his/her current educational placement for disciplinary reasons constitutes a change of placement. A change of placement shall be deemed to have occurred under either of the following circumstances: (34 CFR 300.536)
1. The removal is for more than 10 consecutive school days.
2. The student has been subjected to a series of removals that constitute a pattern because of all of the following:
a. The series of removals total more than 10 school days in a school year.
b. The student's behavior is substantially similar to his/her behavior in previous incidents that resulted in the series of removals.
c. Additional factors, such as the length of each removal, the total amount of time the student has been removed, and the proximity of the removals to one another, indicate a change of placement.
If a student's removal is determined to be a change of placement as specified in items #1 or 2 above, or the student is suspended for more than 10 school days in the same school year, the student's IEP team shall determine the appropriate educational services. Such services shall be designed to enable the student to continue to participate in the general education curriculum in another setting, to progress toward meeting the goals set out in his/her IEP, and to address the student's behavior violation so that it does not recur. (20 USC 1412(a)(1)(A); 34 CFR 300.530)
If the IEP of a student with a disability requires the district to provide the student with transportation, the district shall provide the student with an alternative form of transportation at no cost to him/her or to his/her parent/guardian when he/she is to be excluded from school bus transportation. (Education Code 48915.5)
(cf. 3541.2 - Transportation for Students with Disabilities)
Services During Suspension
Any student suspended for more than 10 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 300.530)
If a student with disabilities is excluded from school bus transportation, the student shall 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 Educational Placement Due to Dangerous Behavior
A student with a disability may be placed in an appropriate interim alternative educational setting for up to 45 school days, without regard as to whether the behavior is a manifestation of the student's disability, when the student commits one of the following acts: (20 USC 1415(k)(1)(G); 34 CFR 300.520)
1. Carries or possesses a weapon, as defined in 18 USC 930, to or at school, on school premises, or to or at a school function.
2. Knowingly possesses or uses illegal drugs, while at school, on school premises, or at a school function.
3. Sells or solicits the sale of a controlled substance as identified in 21 USC 812(c), Schedules I-V, while at school, on school premises, or at a school function.
4. Inflicts serious bodily injury upon another person as defined in 18 USC 1365, while at school, on school premises, or at a school function.
On the date the decision to take disciplinary action is made, the student's parent/guardian shall be notified of the decision and provided the procedural safeguards notice pursuant to 34 CFR 300.504. (20 USC 1415(k)(1)(H); 34 CFR 300.530)
A student who has been removed from his/her current placement because of dangerous behavior shall receive services, although in another setting, to the extent necessary to allow him/her to participate in the general education curriculum and to progress toward meeting the goals set out in his/her IEP. As appropriate, the student shall also receive a functional behavioral assessment and behavioral intervention services and modifications that are designed to address the behavior violation so that it does not recur. (20 USC 1415(k)(1)(D); 34 CFR 300.530)
Procedural Safeguards/Manifestation Determination
The following procedural safeguards shall apply when a student is suspended for more than 10 consecutive school days, when disciplinary action is contemplated for a dangerous behavior as described above, or when a change of placement is contemplated due to a violation of the district's code of conduct:
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. (20 USC 1415(k)(1)(H) 34 CFR 300.530)
(cf. 5145.6 - Parental Notifications)
(cf. 6159.1 - Procedural Safeguards and Complaints for Special Education)
2. Immediately if possible, but in no case later than 10 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. (20 USC 1415(k)(1)(E) 34 CFR 300.530)
At the manifestation determination review, the relevant members of the IEP team, the district and parent/guardian shall review all relevant information in the student's file including the student's IEP, any teacher observations, and any relevant information provided by the parents/guardians to determine whether the conduct in question was either of the following: (20 USC 1415(k)(1)(E) 34 CFR 300.530)
a. Caused by, or had a direct and substantial relationship to, the student's disability
b. A direct result of the district's failure to implement the student's IEP, in which case the district shall take immediate steps to remedy those deficiencies
If the manifestation review team determines that the conduct was caused by either #a or #b above, the conduct shall be determined to be a manifestation of the student's disability. (20 USC 1415(k)(1)(F) 34 CFR 300.530)
3. If the manifestation determination review team has determined that the conduct was a result of the student's disability, the IEP team shall conduct a functional behavioral assessment as specified below. The student shall be returned to the placement from which he/she was removed, unless the parent/guardian and district agree to a change of placement as part of the modification of the behavioral intervention plan. (20 USC 1415(k)(1)(F) 34 CFR 300.530)
4. If the manifestation determination review team determines that the student's behavior was not a manifestation of his/her disability, the student may be disciplined in accordance with the procedures for students without disabilities. The student shall continue to receive services to the extent necessary to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student's IEP. (20 USC 1415(k)(1)(D) 34 CFR 300.530)
Behavioral Assessment and Intervention Plan
The IEP team shall conduct a functional behavioral assessment and implementation plan for a student who has been removed because of dangerous behavior, or whose behavior was determined to be a manifestation of his/her disability. If the student already has an existing functional behavioral assessment, the team shall modify the assessment, as appropriate, to address the behavioral violation so that it does not recur. (20 USC 1415(k)(1)(),(D), 34 CFR 300.530)
(cf. 6159.4 - Behavioral Interventions for Special Education Students)
(cf. 6158 - Independent Study)
(cf. 6185 - Community Day School)
Due Process Appeals
If the parent/guardian disagrees with any district decision regarding placement under 34 CFR 300.530 (suspension and removal for dangerous circumstances) or 34 CFR 300.531 (interim alternative placement), or the manifestation determination under 34 CFR 300.530(e), he/she may appeal the decision by requesting a hearing. The district may request a hearing if the district believes that maintaining the student's current placement is substantially likely to result in injury to the student or others. In order to request a due process hearing, the requesting party shall file a complaint pursuant to 34 CFR 300.507 and 300.508(a) and (b). (20 USC 1415(k)(3); 34 CFR 300.532)
Whenever a hearing is requested as specified above, the parent/guardian or the district shall have an opportunity for an expedited due process hearing consistent with requirements specified in 34 CFR 300.507, 300.508 (a)-(c), and 300.510-300.514.
If the student's parent/guardian or the district has initiated a due process hearing under 34 CFR 300.532 as detailed above, the student shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the 45-day time period, whichever occurs first, unless the parent/guardian and district agree otherwise. (20 USC 1415(k)(4); 34 CFR 300.533)
Services During Expulsion
Any student with a disability who is expelled 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, although in another setting, and appropriately advance toward achieving the goals set out in the student's IEP. (20 USC 1412(a)(1)(A); 34 CFR 300.121, 300.530)
(cf. 6158 - Independent Study)
(cf. 6185 - Community Day School)
Readmission procedures for students with disabilities shall be the same as those used for all students. Upon readmission of a student with disabilities, an IEP team meeting shall be convened to review and, as necessary, modify the student's IEP.
Suspension of Expulsion
The Board of Education'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
Law enforcement notification requirements involving students with disabilities shall be the same as those specified for all students in AR 5144.1 - Suspension and Expulsion/Due Process.
When giving any required notification concerning a student with disabilities to any law enforcement official, the principal or designee shall require the law enforcement official to certify in writing that he/she will not disclose the student's information or records to any other person without the prior written consent of the student's parent/guardian. (Education Code 49076)
(cf. 5131.7 - Weapons and Dangerous Instruments)
Report to County Superintendent of Schools
The Superintendent or designee shall report to the County Superintendent of Schools when any special education student has been expelled or suspended for more than 10 school days. The report shall include the student's name, last known address, and the reason for the action. (Education Code 48203)
35146 Closed sessions re: suspensions
35291 Rules of governing board
48203 Reports of severance of attendance of disabled students
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
56505 State hearing
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
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
794 Rehabilitation Act of 1973, Section 504
CODE OF FEDERAL REGULATIONS, TITLE 34
104.35 Evaluation and placement
104.36 Procedural safeguards
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
Rules and Regulations, August 14, 2006, Vol. 71, Number 156, pages 46539-46845
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 NOVATO UNIFIED SCHOOL DISTRICT
approved: August 26, 2008 Novato, California
revised: December 7, 2010
revised: May 21, 2013