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Santa Maria-Bonita SD |  AR  5144.2  Students

Suspension And Expulsion Due Process (Students With Disabilities And Or With Handicaps)   

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A "student with disabilities" is a student who meets the requirements of Education Code 56026.

A "student with handicaps" is a student who meets the requirements of Section 504 of the Rehabilitation Act of 1973.

A student may qualify for services under both Education Code 56026 and Section 504.

A student identified as an individual with disabilities pursuant to the Individuals with Disabilities Education Act (IDEA), or identified as an individual with handicaps pursuant to the Rehabilitation Act of 1973, Section 504, is subject to the same grounds for suspension and expulsion that apply to students without disabilities. The same procedural rules for suspension and expulsion which apply to students without disabilities or handicaps apply to students with handicaps and disabilities in addition to other required procedures referenced below.

An Individualized Education Program meeting is referred to as an "IEP" meeting.

Procedures for Students Not Yet Eligible for Special Education Services and/or 504 Services

A student who has not been identified as an individual with disabilities pursuant to IDEA and/or with handicaps pursuant to Section 504 and who has violated the district's disciplinary procedures may assert the procedural safeguards granted under this administrative regulation only if the district had knowledge that the student was disabled and/or handicapped before the behavior occurred. (20 USC 1415(k)(8)) (Section 504)

The district shall be deemed to have knowledge that the student had a disability and/or handicap if one of the following conditions exists: (20 USC 1415(k)(8); 34 CFR 300.527) (Section 504)

1. The parent/guardian has expressed concern in writing, 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 and/or 504 accommodations.

2. The behavior or performance of the student demonstrates the need for such services, in accordance with 34 CFR 300.7 or Section 504.

3. The parent/guardian has requested an evaluation of the student for special education pursuant to 34 CFR 300.530-300.536 or accommodations pursuant to Section 504 of the Rehabilitation Act of 1973. (34 CFR 300.527)

4. The teacher of the student or other district personnel has expressed concern about the behavior or performance of the student to the district's Coordinator of Special Education, Section 504 Coordinator, or to other personnel in accordance with the district's established child find, special education referral system, or Section 504 identification system. (34 CFR 300.527)

A district would not be deemed to "have knowledge" as specified in items #1-4 above, if, as a result of receiving such information, the district either (1) conducted an evaluation and determined that the student was not a student with a disability and/or with a handicap, or (2) determined that an evaluation was not necessary and provided notice to the parent/guardian of its determination. (34 CM 300.527) (Section 504)

If it is determined that the district did not have knowledge that the student was disabled and/or handicapped, then the student shall be disciplined in accordance with procedures established for students without disabilities or handicaps. (20 USC 1415(k)(8)) (Section 504) (See AR 5144. 1)

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)(8)) (34 CM 300.527) (Section 504)

Suspension

The Superintendent or designee may suspend a student with a disability and/or with a handicap for up to five consecutive school days for a single incident of misconduct, as enumerated in Education Code Section 48900 and pursuant to Section 48900.5, and no more than 20 total school days in a school year. If the student is transferred to another school or alternative educational program, the school district receiving the student may count suspensions that occur while the student is enrolled in another school district, up to a cumulative total of 30 school

days in a school year. However, suspension for a single incident of misconduct may not exceed five consecutive school days, unless the student is suspended for a longer period of time by the Governing Board pursuant to Education Code 48912. (Education Code 48903 and 48911)

The principal or designee shall monitor the number of days, including portions of days, students with a valid individualized education program (IEP) or Section 504 Accommodation Plan have been suspended during the school year.

If the student poses an immediate threat to the safety of himself/herself or others, the Superintendent or designee may suspend the student for up to, but not more than, 10 consecutive school days. If a child is determined to be truly dangerous, a suspension may exceed 10 consecutive school days, or the child's placement may be changed, or both, if either (1) the student's parent/guardian agrees, or (2) a court order so provides. (Education Code 48911(h))

Services During Suspension

Students suspended for more than 10 school days in a school year shall continue to receive a free and appropriate public education during the term of the suspension. (34 CFR 300.520)

Interim Alternative Placement Due to Dangerous Behavior

The IEP team or 504 team may place a student with a disability and/or with a handicap in an appropriate interim alternative educational setting for the same amount of time as a student without a disability or handicap, but not for more than 45 days, if he/she commits one of the following acts: (20 USC 1415(k)(1)) (Section 504)

1. Carries a dangerous weapon, as defined in 18 USC 930, to school or to a school function. A dangerous weapon includes any device which is capable of causing death or serious bodily injury

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 function

A hearing officer may order a change in placement of a student with a disability and/or with a handicap to an appropriate interim educational setting for no more than 45 days or until the conclusion of any due process hearing proceedings requested by the parent/guardian, if the hearing officer: (20 USC 1415(k)(2)) (Section 504)

1. Determines that the district has established by substantial 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 district 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 allows the student to participate in general curriculum, to continue to receive IEP or 504 services and to receive services designed to ensure that the behavior does not recur

The student's alternative educational setting shall be determined by the student's IEP team or Section 504 team. (20 USC 1415(k (3)) (Section 504)

Procedural Safeguards/Manifestation Determination

Either before or not later than 10 business days after a student has been suspended for more than 7 school days or placed in an alternative educational setting, the district shall convene an IEP team meeting, or a 504 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 or 504 team shall review the plan and modify it as necessary to address the behavior. (20 USC 1415(k)(1)) (Section 504)

As soon as practicable after developing the behavioral intervention plan and completing the required assessments, the IEP team or 504 team shall meet to develop appropriate behavioral interventions to address the behavior and shall implement those interventions. (34 CFR 300.520) (Section 504)

If a student with disabilities and/or with handicaps who has a functional behavioral plan is subject to a removal for more than 10 school days in a school year that does not constitute a change in placement, the IEP team or 504 team members shall review the behavioral intervention plan and its implementation to determine if modifications are necessary. (34 CFR 300.520) (Section 504)

The following procedural safeguards shall apply when a student is suspended for 7 or more days, when disciplinary action is contemplated for a dangerous behavior, as described above, or when a change of placement of 7 or more school days is contemplated: (20 USC 1415(k)(4); 34 CFR 300.523) (Section 504)

1. No later than the day the decision to take disciplinary action is made, the parents/guardians of the student shall be immediately notified of the decision and provided all procedural safeguards

2. Immediately if possible, but in no case later than 10 school days after the date of the disciplinary decision, the IEP team and/or 504 team and other qualified personnel shall conduct a manifestation determination of the relationship between the student's disability and the behavior subject to the disciplinary action

At this meeting, the IEP team and/or 504 team, and other qualified personnel shall consider all relevant information, in terms of the behavior subject to the disciplinary action, including: (20 USC 1415(k)(4); 34 CFR 300.523) (Section 504)

a. Evaluation and diagnostic results, including the results or other relevant information supplied by the student's parents/guardians. Review of records, observation and interviews may constitute evaluations for 504 eligible students

b. Observations of the student

c. The student's IEP and/or 504 Accommodation Plan and placement

In relationship to the behavior subject to the disciplinary action, the team shall then determine whether the IEP or 504 Accommodation Plan and placement were appropriate and whether supplementary aids,

services, and behavioral interventions were consistent with the IEP and/or 504 plan. The team shall also determine that the student's disability or handicap did not impair the ability of the student to understand the impact and consequences of the behavior, nor impair his/her ability to control the behavior subject to the disciplinary action. (20 USC 1415(k)(4); 34 CFR 300.523) (Section 504)

If the team determines that the student's behavior was not a manifestation of his/her disability and/or handicap, then the student may be disciplined in accordance with the procedures for students without disabilities or handicaps. The district shall ensure the special education and/or 504 accommodation plan records are transmitted for consideration in the final disciplinary determination. (20 USC 1415(k)(5)) (34 CFR 300.54) (Section 504) (See AR 5144.1)

If the team determines that the student's behavior was a manifestation of his/her disability and/or handicap, then' the student's placement may only be changed via the IEP team process or the Section 504 accommodation process.

Pre-Expulsion Assessment and Meeting

Procedures and timelines governing the expulsion of students with disabilities or handicaps shall be the same as those for all other students, except that a manifestation determination and a pre-expulsion assessment or evaluation shall be made and an IEP team meeting, or Section 504 team meeting, held, under conditions and with possible consequences indicated below.

1. The parent/guardian shall receive written notice of the district's intent to conduct the pre-expulsion assessment for IEP students and pre-expulsion evaluation for 504 students and shall make the student available for the assessment/evaluation without delay at a site designated by the district. The parent/guardian shall also have the right to an independent assessment as provided in Education Code 56329. (Education Code 48915.5)

2. For IEP students, the pre-expulsion assessment shall be conducted in accordance with the guidelines of 34 CFR 104.35. Students eligible for 504 services shall be evaluated according to Section 504 guidelines. Pre-expulsion assessment/evaluation shall include a review of the student's placement at the time of the alleged misconduct and a determination of the relationship, if any, between the student's behavior and his/her disability and/or handicap. (Education Code 48915.5)

3. The IEP team or 504 team shall meet to determine if an expulsion hearing is appropriate. This meeting shall be held at a time and place mutually convenient to the parent/guardian and district within the period, if any, of the student's pre-expulsion suspension. The parent/guardian's participation may be made through actual participation, representation, or a telephone conference call. (Education Code 48915.5) (Section 504)

4. The parent/guardian shall be notified of his/her right to participate in the meeting at least 48 hours before the meeting. This notice shall specify: (Education Code 48915.5) (Section 504)

a. That the meeting may be held without the parent/guardian's participation unless he/she requests a postponement for up to three additional school days

b. That the suspension will be continued during the postponement if the student continues to pose an immediate threat to the safety of himself/herself or others

In order to make a record of its attempts to arrange the meeting at a mutually convenient time and place, the district shall keep documentation such as: (34 CFR 300.345) (Section 504)

a. Detailed records of telephone calls made or attempted, and the results of those calls

b. Copies of correspondence sent to parents/guardians and any responses received

c. Detailed records of visits made to the parent/guardian's home or place of employment, and the results of those visits

5. The district shall grant a parent/guardian's request that the meeting be postponed for up to three additional school days. The total period of suspension shall not be extended beyond 10 consecutive school days unless agreed to by the parent/guardian or required by court order. If the parent/guardian refuses to consent to an extension beyond 10 consecutive school days and chooses not to participate, the meeting may be conducted without the parent/guardian's participation. (Education Code 48915.5) (Section 504)

6. The IEP team or 504 team shall consider the pre-expulsion assessment/evaluation results and shall also review and consider the student's health records and school discipline records. (Education Code 48915.5) (Section 504)

7. If the IEP team or 504 team determines that the alleged misconduct was caused by, or was a direct manifestation of, the student's disability and/or handicap or that the student was not appropriately placed, the expulsion shall not proceed. (Education Code 48915.5) (Section 504)

8. If the IEP team or 504 team determines that the alleged misconduct was not caused by, or a direct manifestation of, the student's disability and/or handicap, and if it is determined that the student was appropriately placed, the student shall be subject to expulsion in accordance with procedures that apply to all students. (Education Code 48915.5) (Section 504)

9. When expulsion is ordered, the Board shall recommend a rehabilitation plan for the student. (Education Code 48916)

Notification to Law Enforcement Authorities

Prior to the suspension or expulsion of any student, the principal 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(a))

The principal 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(c))

Within one school day after a student's suspension or expulsion, the principal or designee shall notify appropriate city or county law enforcement authorities, by telephone or other appropriate means, of any student acts which may have violated 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(b))

Due Process Appeals

If the parent/guardian disagrees with a decision that the behavior was not a manifestation of the student's disability and/or handicap or with any decision regarding placement, he/she has a right to appeal the decision. (20 USC 1415(k)(6)) (Section 504)

The expulsion hearing shall not be conducted, and the 30-day expulsion proceedings time limit shall not commence, until after completion of the following:

1. Pre-expulsion assessment/evaluation and the manifestation determination; (Education Code 48915.5; 20 USC 1415(k)) (Section 504)

2. IEP team meeting or 504 team meeting and (Education Code 48915.5) (Section 504)

3. Due process hearings and appeals, if initiated. (Education Code 48915.5) (Section 504)

The Board may expel a student with a disability and/or handicap only if an IEP team or 504 team has determined that the misconduct was not caused by, or a direct manifestation of, the student's identified disability or handicap, and the student was appropriately placed at the time the misconduct occurred. (Education Code 48915.5) (Section 504) (See AR 5144. 1)

Services During Expulsion

During the term of the expulsion, a student with a disability and/or handicap shall continue to be offered a program of free and appropriate public education. Such services may include independent study, home instruction, or another appropriate alternative program.

The 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 or 504 plan. (34 CFR 300.121) (Section 504)

Readmission

Readmission procedures for students with disabilities and/or handicaps shall be the same as those used for all students. The Superintendent or designee may consider the input of the student's IEP team or 504 team when developing recommendations to the Board regarding a request for readmission. Upon readmission, an IEP or 504 team meeting shall be convened to determine whether a new IEP or 504 Accommodation Plan needs to be established.

Suspension of Expulsion

The Board's criteria for suspending the enforcement of an expulsion order shall be applied to students with disabilities and/or with handicaps in the same manner as they are applied to all other students. (Education Code 48917) (See AR 5144.1)

Legal Reference:

EDUCATION CODE

35146 Closed sessions (re suspensions)

35291 Rules (of governing board)

48900-48925 Suspension and expulsion

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 Individual 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

UNITED STATES CODE, TITLE 20

1412 State eligibility

1415 Procedural safeguards

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

300.1-300.756 Assistance to states for the education of students with disabilities

COURT DECISIONS

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) U.S. Dist. Ct., S.D. Cal. 858 F.Supp. 1044

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

Doe v. Maher, (1986) 793 F.2d 1470

Rock Island School District #41, IDELR 353:364

San Juan Unified School District, 20 IDELR 549

Management Resources:

FEDERAL REGISTER

34 CFR 300.a Appendix A to Part 300 - Questions and Answers

34 CFR 300a1 Attachment 1: Analysis of Comments and Changes

WEB SITES

CDE: http://www.cde.ca.gov

USDE: http://www.ed.gov

Regulation SANTA MARIA-BONITA SCHOOL DISTRICT

approved: March 9, 1988 Santa Maria, California

revised: November 9, 1994

revised: August 22, 2001