Discipline.

It is not the word any of us like. Whether we are adults, children, or frankly the family pet. Discipline can be meaningful or meaningless. It can teach dedication or school avoidance. It can built self esteem and determination or if wrongly applied ruin it. Discipline should be used thoughtfully, logically, and with an end goal in mind.

Discipline in schools is different for children who are eligible for special education verse a child in general education. Below we explore some of the frequently asked questions.

Discipline Issues at School.

 

The longtime columnist Ann Landers was right about a lot of things, including that when trouble arrives, we must look it squarely in the eye and deal with it. This is true both in our own lives and that of our children. When kids face long-term suspensions or expulsion from school, it is terrifying and upsetting. It is often one of the most challenging things parents can experience in terms of their child’s education. But I promise you it is not the end of the world, and there are many options out there regardless of what happens.

However, if ever there was a time to consult with an experienced education attorney, this may be it. Expulsion is the harshest punishment a school can give a student, and I do not feel it is ever appropriate, nor can I understand how being out of school for six months to a year solves anything. I am pretty darn sure I am not alone in this thought either.

Now for your purposes, the most important thing is not only to understand discipline but also what options you have available following the decision. So to tackle this topic, let’s start at the beginning. The requirements for discipline in IDEA are found in the regulations at 34 CFR §§300.530–300.536.

Some frequently asked discipline questions.

What if my child is has not been made eligible for special education yet and the school is trying to suspend or expel him? 

 IDEA provides protections for a child who should have been made eligible but who has not been evaluated or had an eligibility meeting with certain requirements.   34 CFR 300.534 (a).   A parent is able to assert the same protections for their child as long as prior to the disciplinary matter they have met the any of the following conditions:  1.  Expressed concern in writing to the school district that the child is in need of special education and related services.  34 CFR 300.534(b)  2.  Requested in writing an evaluation of their child.  34 CFR 300.534(b)(2).   3.  The child’s instructor or other school employees have expressed that they believe the student may have special needs or that there is a pattern of behavior that clearly indicates that the student may have special educational needs.  34 CFR 300.534 (b)(3).     

Can a school discipline my child for behavior that occurs outside of school? 

It depends. This is a big topic, and the answer is complex. In fact, there are many court cases right now about this and where the line is in terms of the behavior of students outside of school doors. But basically, if it is something that would affect other students in school, like sexual or racial harassment on an online forum, a school can take steps to discipline your child.

What if I did not make the school aware of my concerns prior to this time because I didn’t understand the school’s obligations?

If the school did not have a reason to know of the child’s disability before the incident occurred it can discipline your child just like every other child in the general population.  However, as a parent you have the right to request an evaluation from the school and ask for it to be conducted in an expedited matter – within 20 school days.  34 CFR 300.534 (d)(2)(i).   Parent’s also have the right to request an expedited due process hearing on eligibility for the student.

 What if the school has previously evaluated my child and found them not eligible?

If a district has already evaluated your child and found them not eligible for special education than your child may be disciplined in the same manner as their general education peers.  However, parents have the right to request an expedited due process hearing  for their child.

Does having an IEP change the discipline my child can receive from the school?

Yes, a student with disabilities is entitled to different protections under the law than a student who does not have any special needs.   These protections include a limit to the days a school can remove a student, protections against expulsions, protections against discipline for behaviors related to the disability, manifestation determinations before more than 10 days of removal, and requirement that even if expelled the student still has access to educational services. 

My child has been suspended for behavior that is directly related to his disability can they do that? 

They can, but there are limits.  IDEA allows a district to “remove” a student with special needs up to 10 school days during the school year.    This removal may be early pick-ups, in-school suspensions, out of school suspensions, and anything else that may constitute a change of your child’s placement.”  34 CFR 300.530 (b)(2).

Be aware that this does not excuse the school’s obligation to provide your child with FAPE and an appropriate program.  (See Suspensions and FAPE)

What if my child is going to be removed more than 10 days in the school year? 

Prior to removing your child for more than 10 days the school must conduct a Manifestation Determination Review.   This is a safeguard to ensure your child is not being removed more than 10 days for behaviors related to their disabilities.   (See Manifestation Determinations.)

What about discipline involving allegations of drugs, weapons, or serious bodily injury – can they remove my child without a manifestation determination? 

Yes.  If your child brings a weapon or drugs to school, even if they were unaware of the purpose of these items or it was directly related to their disability, or if they inflicted serious bodily injury on a school employee or classmate, the school may remove them to an Interim Alternative Educational Setting for up to 45 school days without regard to whether the behavior is determined to be a manifestation of the student’s disability.  34 CFR 300.530 (g).

What is an in-school suspension? 

An in-school suspension is when a child serves a suspension during the school day without the student leaving school. Often the child is placed in a different room, a resource room, or sent to a room adjacent to the principal’s office or another administrators office. If the school is not providing the services in your child’s IEP during this time after a ten-day period, it can constitute a change of placement. 

What is an out-of-school suspension? 

It is just what it sounds like—your child is not allowed to come to school as a result of their behavior for a period of time. This period of time may be a partial day, a full day, or multiple days.

If the school is removing my child for longer than ten days, are there requirements as to what they have to document or tell me? 

Yes. This is where written notice comes in again, and if you recall, written notice is a procedural safeguard for parents anytime a school proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child. 34 CFR 300.503(a-b). They must also hold a Manifestation Determination Review.

Does a bus suspension count as a suspension? 

It does. Especially if transportation is part of your child’s IEP. If your child relies on the bus to get to and from school or has disabilities that require special transportation, the school has a duty to provide these services and during the time periods they do not, this counts as a suspension. (71 Fed. Reg. 46,715 (2006).


I get calls from school to pick my child up early. Is this a suspension?

Yes. Even if the school doesn’t call it one, it is a removal. I often hear from parents who have received multiple calls from the school within the school year and regularly pick their child up due to behavior or school staff being unable to manage the student. This is a removal that is the equivalent of a suspension.

My ten-year-old bit another child—is this serious bodily injury? 

IDEA uses the term “serious bodily injury,” which has the same definition found at Section 1365(h)(3) of the US criminal code. 34 CFR 300.530 (i)(3). Serious bodily injury is bodily injury that involves: 1) a substantial risk of death, 2) extreme physical pain, 3) protracted and obvious disfigurement, or 4) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. 18 USC 1365 (h)(3); and 71 Fed. Reg. 46,722 (2006). So no, biting, kicking, hitting, throwing paper or a book at someone, including staff, is not committing serious bodily injury. This must be something that is severe enough that there is true substantial harm. That said, if a child is regularly biting, the school should most definitely do an FBA and create a new BIP, and even consider a one-to-one aide until this behavior can be eliminated.



Early Pick-ups, In-School Suspensions, and Out of School Suspensions - They all add up.

A change of placement is a term under IDEA that occurs when a child has been removed for ten consecutive school days or has received a series of shorter removals that constitute a “pattern.” 34 CFR 300.536. A change of placement occurs if: 1) the removal is for more than ten consecutive school days or 2) the child has been subjected to a series of removals that constitute a pattern. 

And now—what is a pattern? A pattern forms when the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals and such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another are close. 34 CFR 300.536 (a). This can be in-school suspensions, bus suspensions, out-of-school suspensions, and early pickups—all count when we look for a ten-day removal. So, if your child has more than ten of these days in a school year, they have had a change of placement which requires an MDR conference and may constitute a violation of FAPE. 

Your child’s IEP team determines the appropriate placement. 34 CFR §300.531. The placement must clearly be selected “so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.” 34 CFR §300.530(d).

STEPS TO DEALING WITH DISCIPLINARY ISSUES

If your child is subject to frequent discipline and you have concerns that this is not appropriate, is making the situation worse, or is related to their disability, then consider taking the following action. 

  1. Convene an IEP meeting to discuss the discipline that is occurring. Email the school before the meeting about the discipline and your concerns. Email the school after the meeting to preserve what was discussed, your understanding, and the conclusions.

  2. Ask for an FBA. 

  3. Consider asking for a board-certified behavior analyst (BCBA) or other specialized provider to assist the school in creating a BIP. 

  4. Document the school’s calls and emails to you regarding your child’s behavior.