5144.2 AR - Suspension and Expulsion/Due Process (Students with Disabilities)

Students    
Administrative Regulation No. 5144.2 
Regulation Reviewed:  May 20, 2010

SUSPENSION AND EXPULSION/DUE PROCESS (STUDENTS WITH DISABILITIES)

A student identified as an individual with disabilities pursuant to the Individuals with Disabilities Education Act is subject to the same grounds for suspension and expulsion which applies to students without disabilities.

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

Procedures for Students Not 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 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 before the behavior occurred.  (20 USC 1415)

The district shall be deemed to have knowledge that the student had a disability if one of the following conditions exist:  (20 USC 1415)

1. The parent/guardian has expressed concern to district supervisory or administrative personnel in writing that the student is in need of special education or related services

2. The parent/guardian has requested an evaluation of the student for special education pursuant to 34 CFR 300.333-300.311.

3. The teacher of the student, or other district personnel has expressed concern 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 if a student is disabled if the parent/guardian has not allowed the student to be evaluated for special education services.  In addition, the district would be deemed to not have knowledge if the district conducted an evaluation pursuant to 34 CFR 300.300- 300.311 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 who engage in comparable behavior.   (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.  (34 CFR 300.527)

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 300.536.  (34 CFR 300.530, Education Code 48903)

Suspension

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.

The district 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 any 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 the removal has been determined to be a change of placement as specified in items #1-2 above, the student's IEP team shall determine the appropriate educational services. (34 CFR 300.530)

Services During Suspension

Students suspended for more than 10 school days in a school year shall continue to receive services during the term of the suspension.  School personnel, in consultation with at least one of the student’s teachers, shall determine the extent to which services are needed as provided by 34 CFR 300.101(a), so as to enable the student to continue to participate in the general education curriculum in another setting and to progress toward meeting the goals as set out in his/her IEP.  (20 USC 1412(a)(1)(A); 34 CFR 300.530.

If a student with a disability 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 Alternative Placement Due to Dangerous Behavior

The district may unilaterally place a student with a disability in an appropriate interim alternative educational setting for up to 45 days, without regards to whether the behavior is a manifestation of the student’s disability, when the student commits one of the following acts while at school, going to or from schools, or at a school-related function:  (20 USC 1415(k)(1); 34 CFR 300.520)

1. Carries a weapon, as defined in 18 USC 930,

2. Knowingly possesses or uses illegal drugs

3. Sells or solicits the sale of a controlled substance as identified in 21 USC 812©, Schedules  I-V

4. Inflicts serious bodily injury upon another person as defined in 18 USC 1265

The student's alternative educational setting shall be determined by the student’s individualized educational program (IEP) team.  (20 USC 1415(k)(1)(G); 34 CFR 300.531

On the date the decision to take disciplinary action is made, the parents/guardian of the student shall be notified of the decision and provided the procedural safeguards notice pursuant to 34 CFR 300.504. (20USC 1415(k)(1)(H); 34 CFR 300.530)

(cf. 6159 - Individualized Education Program)

Behavioral Assessment and Intervention Plan

Not later than 10 business days after a student has been suspended for more than 10 school days or placed in an alternative educational setting, the district 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)

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)

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)

Manifestation Determination

The following procedural safeguards shall apply when a student is suspended for more than 10 consecutive days, when a series of removals of a student constitutes a pattern, or when a change of placement of a student is contemplated due to a violation of the district’s code of conduct:  (20 USC 1415 (k)(4); 34 CFR 300.523)

1. Notice:  On the date of the decision to take disciplinary action is made, 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. (20 USC 1415 (k)(4); 34 CFR 300.530)

2. Manifestation Determination Review:  Immediately, if possible, but in no case no later than 10 school days after the date of the decision to take disciplinary action, 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)(4); 34 CFR 300.530)

At the manifestation determination review, the district, the student’s parent/guardian, and relevant members of IEP team (as determined by the district and parent/guardian 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 300.53o)
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 a condition in either #a or #b above was met, the conduct shall then be determined to be a manifestation of the student's disability. (20 USC 1415(k)(1)(E); 34 CFR 300.530
3. Determination that Behavior is a Manifestation of the Student's Disability: When the conduct has been determined to be a manifestation of the student's disability, the IEP team shall conduct a functional behavioral assessment, unless a functional behavioral assessment had been conducted before the occurrence of the behavior that resulted in the change of placement, and shall implement a behavioral intervention plan for the student. If a behavioral intervention plan has already been developed, the IEP team shall review the behavioral intervention plan and modify it as necessary to address the behavior. (20 USC 1415(k)(1)(F); 34 CFR 300.530)

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. Determination that Behavior is Not a Manifestation of the Student's Disability: 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. (20 USC 1415(k)(1)(D); 34 CFR 300.530)

The student shall receive services to the extent necessary to participate in the general education curriculum in another setting and to allow him/her to progress toward meeting the goals set out in his/her IEP. As appropriate, the student also shall 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)

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 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)

Readmission

Readmission procedures for students with disabilities are the same as those used for all students.  Upon readmission, an IEP team meeting shall be convened to determine whether a new IEP needs to be established.

Suspension of Expulsion

The Governing 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 regular 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.

Report to the 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)

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
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

 

 

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