SPECIAL EDUCATION: Discipline Basics

1. SPECIAL EDUCATION:Discipline Basics The Training Institute on Disability Rights

2. What about Discipline? • Student with a disability may be removed for no more than 10 school days for a disciplinary violation (unless exception applies) • More than ten days = change of placement (see following slides for details) • Exception: can automatically remove a student with a disability for 45 school days if 1) a weapon; 2) Drugs; 3) Serious bodily injury

3. 45 SCHOOL Day Removal • Weapon • “dangerous weapon” 18 U.S.C. § 930(g)(2) • Drugs • Controlled Substance 21 U.S.C. 812(c)§ 202(c)I, II, III, IV, or V • Does not include legally possessed or used substances • Serious Bodily Injury • “serious bodily injury” 18 U.S.C. §1365(h)(3)

4. WEAPONS EXCEPTION • The term “dangerous weapon” means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 1/2 inches in length.

5. SERIOUS BODILY INJURY • Serious Bodily Injury is defined as: (a) a substantial risk of death; (b) extreme physical pain; (c) protracted and obvious disfigurement; and (d) protracted loss or impairment of the function of a bodily member, organ, or mental function.

6. What about Discipline? Suspensions/Removal - All students “removed” are to get services to prevent recurrence of behavior resulting in removal – should be added to IEP Expulsions – FAPE services must still be provided so student can be able to “participate in general education curriculum” and “progress towards meeting goals set out in IEP.” Before an expulsion can take place, must hold Manifestation Determination Review (MDR)

7. MANIFESTATION DETERMINATION REVIEW • MDR is a meeting that occurs within ten school days of decision to change a student’s placement • School’s actions are change of placement when student is suspended for more than ten consecutive days or series of days that “constitute a pattern” exceeding 10 days in a year. • Only “Relevant” Members of IEP Team attend to determine if student’s behavior is a manifestation of his/her disability

8. What does it mean for behavior to be a manifestation of a disability? • Behavior is a manifestation of a disability if: • “caused by” the disability or • “Direct or substantial relationship to the disability” or • “direct result” of the school’s failure to implement the student’s IEP • If student’s behavior is manifestation of disability, student can’t be expelled without parent consent and must be returned to pre-removal placement (unless drugs, weapons, or serious bodily injury)

9. If behavior is manifestation of disability, what must the school do? • Functional Behavior Assessment (FBA) – evaluation to show relationship between behavior and what happens in student’s environment • Behavior Intervention Plan (positive interventions)

10. What if behavior is not a manifestation of a disability? • If behavior is not a manifestation of a disability, school can use same discipline measures as with other students • BUT school must continue providing FAPE

11. What is the goal at a MDR? • GOAL: To show that behavior IS a manifestation of student’s disability

12. How do I know if the FBA and BIP are appropriate? • A good BIP concretely defines problem behavior: • E.g. BIP should not state “Dan is aggressive often during the school day.” It should state “Dan hits other students during unstructured times of the day (passing period, lunch, and recess) approximately three times per day.” • Look at whatever occurred before negative behavior began (I.e. triggers)

13. FBA and BIPs continued • BIPs should discuss more appropriate replacement behaviors • I.e. instead of throwing a book when agitated in class, encourage the student to ask for a hall pass to see the school social worker • Change antecedents to behavior • I.e. if cursing occurs every time a student with a learning disability is assigned challenging math homework, consider changing antecedent (assignment of challenging math homework) by having student complete the work in resource room or with peer tutor.

14. Appealing Disciplinary Removal • File for due process • Hearing - Expedited • 20 school days from request • 10 days for decision

15. What if school wants to expel a student who has not yet been found eligible for special ed? • Students not yet found eligible for special ed may still be protected by IDEA under certain circumstances: • Parent stated in writing to a supervisor, administrator or a teacher that child may need special ed • Parent requested evaluation • Teacher/staff expressed specific concerns abut child’s pattern of behavior directly to director of special ed or other supervisory person

16. When are students not yet found eligible for special ed not protected? • Not protected if: • Child previously evaluated and found ineligible • Or parent refused special ed or evaluation in past

17. Student Discipline Not Yet Eligible • School did not have “knowledge” • Same discipline as non-disabled kids • If school did have “knowledge,” then the student is protected by IDEA.

18. HYPOTHETICAL 1 • Your client, who is diagnosed with a behavioral disorder and is receiving special education services, recently brought drugs to school. The school is holding a MDR. The school finds that the student’s behavior is not a manifestation of his disability and informs you that your client cannot return to school ever and the school will provide the student with no special education services. Can the school do this? Why or why not?

19. HYPOTHETICAL 2 • Jennifer is a fifteen-year-old student with bipolar disorder who recently was caught by the school’s security guard with gang drawings on her notebook. The school is about to hold an MDR for Jennifer. What should the parent argue at the meeting? If the school finds that Jennifer’s behavior is not a manifestation of her disability, can they expel her? If they expel her, do they need to provide her with any special education services at all? If Jennifer’s parents disagree with the school’s decision that Jennifer’s behavior is not a manifestation of her disability, what can her parents do?

20. Expulsion Hearings: Illinois School Code • 105 ILCS 5/10‑22.6 • Accessible at www.ilga.gov

21. Expulsion Hearings (in general) • An expulsion is a removal of a student from school for more than 10 days in a row • A student may be expelled for a definite period of time from 11 days up to 2 years.

22. What happens before the hearing? • School must send written notice of the behavior for which it believes your child should be expelled. The notice must include the reason that the school is considering expelling your child and the date of the MDR. • School must send notice in writing and by certified mail inviting student and parent to attend expulsion hearing.

23. At the Expulsion Hearing • Right to call witnesses • Present evidence • Cross-examine District’s witnesses

24. Who will be at the expulsion hearing? • Student and parent should go. • School District may have an attorney. • Often people who were involved in or witnessed the incident are there. • A school administrator may be there.

25. Who decides whether a student will be expelled? • Depends on the School District. Sometimes the Board of Education of the District makes the decision. Other Districts have hearing officers who make the decision.

26. Can expulsion hearings be appealed? • Yes. If a student is expelled, the student can appeal this decision in state court. • The District may have an internal appeal policy and, if so, the student must first exhaust through the internal appeal policy prior to filing in state court.

27. Expulsions from Chicago Public Schools • The Student Code of Conduct (SCC) outlines CPS disciplinary policies • For a copy, contact the Law Department at (773) 553-1700. • If CPS is going to expel a student, the District sends a “Notice of Request For Disciplinary Hearing” letter. • Closer to date that hearing will take place, CPS then sends a “Notice of Disciplinary Hearing.”

28. Who is present at CPS expulsions? • Hearing Officer appointed by the Board of Education • CPS “Prosecutor” • Student and Parent • Any witnesses • Usually a school administrator

29. Any chance at settling an expulsion hearing? • Depending on the offense, CPS and student may come to an agreement for student to attend the SMART program.

30. Expulsion Case Law: Colquitt v. Rich Township, 699 N.E.2d 1109 • Do not have a legal right to a court reporter at expulsion hearings • Do have the right to cross-examine accusers (with the potential exception that one may not be able to cross-examine an accuser if that would put the accuser in danger)

31. Expulsion Case Law: Robinson v. Oak Park, 571 N.E.2d 931 • In reviewing the Board's action to determine whether it has abused its discretion, the court must consider (1) the egregiousness of the student's conduct; (2) the history or record of the student's past conduct; (3) the likelihood that such conduct will affect the delivery of educational services to other children; (4) severity of the punishment; and (5) the interest of the child.

32. Does 105 ILCS 5/10-22.6 of the Illinois School Code apply to charter schools? • No. Charter schools are exempt from the expulsion section of the Illinois School Code. • Look to the charter school’s Student Code of Conduct and ensure that the charter school is following its own code. • Charter school does have to follow all relevant case law (I.e. offer opportunity to cross-examine accusers, consider the Robinson factors, etc.)

33. Questions????