Discipline and Change of Placement Issues

1. Discipline and Change of Placement Issues Sherrie Brown Special Education and the Law WINTER 2010

2. 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 actions”—i.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.

3. 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”

4. 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.

5. Change of Placement Basics • Students with disabilities under IDEA or Section 504 are owed certain due process. protections…above and beyond those of students without disabilities. Why? • Historical—i.e., denial of services by suspension or expulsion. • Therefore, changes of placement (suspension or expulsion are examples) cannot be made without following procedural requirements.

6. 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 removal—such 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

7. 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

8. 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.

9. 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 didn’t 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.

10. 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.

11. 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.

12. 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.

13. Procedure and Standards • Members of the team =district representative, parent and other relevant members of the IEP team as determined by parent and district—not necessarily entire team as with 1997 IDEA. • Within 10 school days of decision to remove that results in change of placement…team 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 district’s failure to implement IEP • No longer required to consider appropriateness of IEP and/or placement.

14. Continued… • Meeting not explicitly required to make manifestation determination—although? • If manifestation is the result…then 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.

15. 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 doesn’t reoccur. • If misconduct was a manifestation, then

16. District must • Conduct a FBA—unless one is already done—and 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.

17. 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.

18. 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!

19. 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.

20. 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 others…file 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 parent’s 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.

21. 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…

22. 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.

23. 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?

24. 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 decision—i.e., did she do it? • Parents will have the burden of proof under Schaffer v. Weast.

25. 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.

26. 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. • Student’s 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.

27. 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 made—i.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.

28. 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.

29. 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.

30. 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

31. 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).