Discipline and Change of Placement Issues

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Discipline and Change of Placement Issues

• Sherrie Brown
• Special Education and the Law
• WINTER 2010

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Discipline as Change of Placement

• Honig v. Doe, 479 U.S. 1084 (1988)
• Facts?
• Issue?
• Honig Rule districts cannot unilaterally
  exclude students (change placement) and there is
  no such thing as dangerousness exception to
  this rule.
• Districts can implement normal disciplinary
  actionsi.e., suspension for up to 10 days (if
  used with other children)
• This should provide sufficient time for resolving
  the problem (IEP meeting, interim placement
  negotiated with parents)
• If not, districts could get injunction from
  courts preventing return of dangerous students.

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Honig RuleCaused Anxiety and Frustration

• Jeffords Amendment to IDEA in 1994
• Allowed districts personnel to unilaterally place
  students who brought guns to school in IAES for
  up to 45 days.
• 1997 Amendments to IDEA extended authority to
  include students who bring other dangerous
  weapons and to those in possession of illegal
  drugs and who sell or solicit the sales of
  controlled substances.
• However, could not unilaterally change placement
  for other dangerous students.
• Although Hearing Officer was authorized to issue
  injunction, rather than only court as previously
  required.
• IDEA amendments 1997 also incorporated the up to
  10 day does not equal change of placement Honig
  Rule
• Consecutive or pattern of exclusion

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IDEA 2004 brought

• Numerous changes in discipline procedures
• Standard and procedures for manifestation
  determinations
• Use and scope of 45 day interim alternative
  educational settings
• Stay-put rule
• And some ambiguity that will only be resolved by
  litigation or additional regulatory guidance.

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Change of Placement Basics

• Students with disabilities under IDEA or Section
  504 are owed certain due process.
  protectionsabove and beyond those of students
  without disabilities. Why?
• Historicali.e., denial of services by suspension
  or expulsion.
• Therefore, changes of placement (suspension or
  expulsion are examples) cannot be made without
  following procedural requirements.

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When do disciplinary removals result in a change
of placement?

• Removal is for more than 10 consecutive school
  days or
• Series of removals that constitute a pattern of
  removalsuch as when
• More than 10 school days total in a school year
• Behavior is substantially similar to behavior in
  previous incidents
• Proximity of removals to one another, length of
  each removal, and total amount of time

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Counting

• Types of Days
• Days (calendar day)
• Business Days (M-F except for federal/state
  holidays)
• School Days (any day students must be in
  attendance including partial days)
• In-School Suspension
• Does not count as disciplinary removal if allows
  student to
• Appropriately partipicate in general curriculum
• Receive the IEP services
• Participate with nondisabled students to extent
  they would have otherwise

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Continued

• Bus-suspension will count
• If bus service is part of IEP
• Schools fails to provide some other
  transportation
• Transportation necessary for child to get to
  school
• Partial-Day Removals
• Can but do not have to count partial days
• Different from IDEA 1997 which did count them.
• Restart the clock
• No longer allowed.
• Must use the pattern of removals test.

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Case-by-Case Determination

• School personnel may consider any unique
  circumstances on a case-by-case basis when
  determining whether a disciplinary change of
  placement is appropriate.
• DOE didnt clarify but stated that best left up
  to local school personnel who know the
  individual.
• Such as consider whether child can understand
  consequences, expresses remorse, supports
  provided to child prior to violation.

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Short Term Removals

• School personnel may remove for not more than 10
  consecutive school days on same basis as other
  children.
• An initial disciplinary removal of up to 10
  consecutive school days is not a change of
  placement and no requirements owed except as owed
  other students.

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Multiple Short-Term Removals

• Additional disciplinary removals (after 1st)
  allowed until they become a change of placement
  which happens if there is a pattern of removal.
• School personnel decide whether removals creates
  a pattern.
• If parents disagree, due process to challenge.
• No manifestation determination required UNLESS
  the multiple removals change of placement.
• But beginning on the 11th cumulative day away,
  services must be provided to the student.

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Long-Term Removals Based on Manifestation
Determination

• Manifestation Determination appeared in 1997 as
  way to ensure students not punished for their
  disability.
• Disabled students may be subject to long-term
  removal like other students if misconduct not
  manifestation of disability.
• 2004 tightened the rules and emphasized need for
  direct link.

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Procedure and Standards

• Members of the team district representative,
  parent and other relevant members of the IEP team
  as determined by parent and districtnot
  necessarily entire team as with 1997 IDEA.
• Within 10 school days of decision to remove that
  results in change of placementteam must review
  all relevant information.
• Team must determine manifestation if
• Conduct in question was caused by or had direct
  and substantial relationship to disability
• Was direct result of districts failure to
  implement IEP
• No longer required to consider appropriateness of
  IEP and/or placement.

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Continued

• Meeting not explicitly required to make
  manifestation determinationalthough?
• If manifestation is the resultthen IEP team must
  conduct a FBA or review an existing BIP, so
• Probably makes sense to do manifestation
  determination at an IEP meeting with full team so
  that plan of action can be determined at same
  time.

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Effects of Manifestation Determination

• If misconduct was not manifestation, district may
  discipline in the same manner and same duration
  as other students.
• Student must continue to receive services to
  enable student to participate in general
  education curriculum although in another setting,
  and
• Receive as appropriate FBA and BIP (services)
  and modifications designed to address the
  behavior so doesnt reoccur.
• If misconduct was a manifestation, then

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District must

• Conduct a FBAunless one is already doneand
  implement a BIP.
• If one already exists, must review the plan and
  modify it as necessary
• Return the student to the pre-removal placement,
  unless
• Parent and district agree to change of placement
  as part of the BIP
• Student is being removed to 45-day interim
  alternative educational setting.

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Removal for 45-day IAES

• For Drug or Weapons Violation or Infliction of
  Serious Bodily Injury
• Beginning in 1997, school officials could remove
• Maximum was 45 calendar days, placement selected
  by IEP team.
• 2004 changes expand and length this time
• Removal for up to 45 school days.
• More than 45 days must be decided by hearing
  officer
• IEP team still determines the placement.
• DOE did not preclude home as being appropriate.
• Like all removals, manifestation determination
  required but regardless, still can be removed.

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45-day removal

• Weapons
• Carries a weapon to or possesses a weapon at
  school, on premises, or to or at a school
  function.
• Weapon is something used for or readily capable
  of causing death or serious bodily injury, except
  not a pocket knife with blade of less than 2 ½
  inches in length.
• Paper clip, pencil, and paintball gun are not
  weapons per various courts!

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45-day removal

• Drug Violations
• When a student knowingly possesses or uses
  illegal drugs, or sells or solicits the sale of a
  controlled substance while at school, etc.
• Rule does not cover alcohol, tobacco, over the
  counter drugs or lookalike drugs (?)
• Infliction of Serious Bodily Injury
• Subject to removal to 45-day IAES if inflicts
  this on another person at school, etc.
• Defined as substantial risk of death, extreme
  physical pain, protracted and obvious
  disfigurement, protracted loss or impairment of
  the function of a bodily member, organ, or mental
  faculty.

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45-day removal for dangerousness

• If district believes that maintaining the current
  placement or returning a student to pre-removal
  placement is substantially likely to result in
  injury to student or othersfile a due process
  complaint requesting that student be removed to
  45 day IAES.
• Appropriate times to request this might be
• manifestation determination precludes long-term
  removal,
• attempt to change placement through IEP thwarted
  by parents filing of complaint and application
  of stay-put rule or
• 45-day IAES based on drug or weapons or SBI is
  expiring.
• Hearing is conducted on expedited basis.
• 2004 does not require the hearing officer to
  consider specific factors and criteria when
  ruling.
• Can be extended through new due process request.

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Continuation of Services

• Services must begin on day 11 of removal.
• Must continue to receive services that allow
  student to continue to participate in general
  educational curriculum and to progress toward
  meeting his/her IEP goals.
• Must receive FBA and BI services and
  modifications.
• But not necessarily the same services and
  although FAPE required, the FAPE standard is
  modified to encompass those services necessary
  to enable the child to continue

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Who Decides the Services?

• Depends on length of removal
• If not a change of placement, school personnel
  with consultation with at least one of the
  teachers, determine.
• If is a change of placement, IEP team determines.

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Functional Behavioral Assessment

• Big change here is that if the manifestation
  determination results in decision that behavior
  was a manifestation, then IEP team must conduct
  FBA unless one was conducted already and
  implement BIP or review an existing one.
• However, when student is eligible for
  continuation of services (i.e., past the 10 day
  limit) the services must include as appropriate a
  FBA and intervention services and modifications.
• DOE says that Congress specifically changed the
  IDEA 1997 requirement and there is no obligation
  to do a FBA within 10 days of a disciplinary
  removal regardless of whether manifestation or
  not.
• Help?

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Appeal of Discipline Decision

• Parent may appeal any manifestation determination
  decision or other disciplinary issue by
  requesting due process.
• Heard by hearing officer on expedited basis (20
  school days of the complaint and decision within
  10 days of hearing).
• Appeal is not to challenge the merits of the
  disciplinary decisioni.e., did she do it?
• Parents will have the burden of proof under
  Schaffer v. Weast.

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Placement during Appeals

• Stay-put rules changed in 2004 IDEA.
• Disciplinary setting is always the stay-put
  placement during disciplinary appeal.
• Student must remain in that setting unless
  parents/district agree otherwise, hearing officer
  changes or the removal expires.

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Students not yet eligible for IDEA services

• 2004 IDEA narrows the previous law as to when
  district deemed to have knowledge
• Basis of knowledge
• Parents expressed concern in writing to
  supervisory or administrative personnel, teacher
  of student.
• Parent requested evaluation.
• Students teacher or other personnel expressed
  specific concerns about pattern of behavior
  directly to special education director or other
  supervisors.
• District does not have knowledge if
• Parents have not allowed an evaluation or refused
  services under IDEA.
• Student been evaluated and determined not to be
  eligible.

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Non-disciplinary change of placement?

• Prior to any change of educational placement,
  district must provide written notification to
  parents.
• If parents and school disagree about proposed
  change of placement, the child remains in the
  then current placement until resolved.
• Refers to the placement that was in effect when
  complaint was madei.e., request for hearing.
• In effect an automatic preliminary injunction
  commonly known as the stay-put provision.
• Parents and district may agree to change
  placement pending resolution without compromising
  their positions.

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When does a change of placement occur?

• Judicially interpreted to mean significant
  alteration in the education program.
• Does not mean any change of facility, teacher or
  classmates.
• Change must have some effect on educational
  outcome.

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Administrative Guidance

• OSEP letter (1994) states that change of
  placement is an action that substantially or
  materially alters an educational program.
• Applies four factors in determining this
  substantially or materially alters standard
• IEP is being revised concurrently
• Student will be educated with nondisabled peers
  to the same extent
• Student will have the same opportunities to
  participate in extracurricular and nonacademic
  services
• New location is the same option on the continuum
  of alternative placements.

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Summary

• Significant change includes a change in
• The amount of time in special education
• The type of special education (indirect or
  direct)
• Alteration of the amount of time in regular
  education
• Reevaluate and hold IEP meeting, if
• Change time in special education
• Change type of special education
• Change qualifications of person providing special
  education

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Discipline Facts

• Racial disproportionality in application of
  school discipline has been well documented for
  over 30 years (Drakeford, 2004).
• Students with disabilities who were from Black,
  Hispanic and American Indian backgrounds were 67
  more likely to be removed from school by a
  hearing officer on the grounds that they were
  dangerous during the 1999-2000 school year than
  their White peers (Osher, Woodruff Sims, 2002).
• Students with disabilities are more than twice as
  likely to be suspended or expelled as other
  students.
• 87 of students with disabilities suspended or
  expelled are either students with BD or LD.
• Students with BD or LD comprise 1 and 4.5 of
  school population but make up 22 of those
  suspended or expelled.
• Sources Responsibilities of School Employees
  when Disciplining Special Education Students.WEA
  (2000) and Truth in Labeling Disproportionality
  in Special Education (NEA (2007).