Can the School Give my Child With an IEP “Unofficial” Suspensions?

By Robert Tudisco, JD
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Q

My son has an IEP and also has ADHD and behavior issues. The school often calls me to take him home for acting out in class. The principal says it’s not an “official” suspension. I’ve heard kids with IEPs have some protection against suspensions. Is that true? What can I do?

A

The first thing to know is you’re not alone. I’ve spent the last two decades representing kids with disabilities, like ADHD, who’ve run into school discipline issues. Questions about “unofficial” suspensions come up a lot.

Before I get into the answer, it’s important to know a little about the law. Students with IEPs and 504 plans have extra protections in cases of school discipline. That’s true whether or not the IEP or 504 plan covers behavior issues.

The general rule is a student with an IEP or a 504 plan can’t be suspended for more than 10 total days in a school year without the IEP team meeting to decide if the behavior was related to the student’s disability. The 10 days isn’t just for one event. It’s for all of them added together. If the behavior is related to the child’s disability, then the school is required to address it and come up with a plan for improvement.

What’s tricky here is that the school says this isn’t an “official” suspension. However, school discipline law isn’t limited to suspensions. It applies to any “change in placement.”

Each time the student with an IEP is removed from class, schoolwork is missed, and the impact of being taken home is the same as it would be for an official suspension. This is also true if a child isn’t sent home but is made to sit in the principal’s office for the day. In fact, I’ve seen where this is a pattern. Not officially suspending the student can be a way to try to get around the 10-day limit in the law.

What then should you do? One thing you could do when the principal calls is say you won’t take your child home unless there’s an official suspension. As a parent, you have this right. Of course, I completely understand that this can be tough to do. But it forces the hand of the school to review the IEP and offer help for your child’s behavior issues.

The strategy that I most often recommend is to ask for an immediate IEP meeting to discuss your behavior concerns. You have the right to call an IEP meeting at any time. It’s important, however, to make sure this is a productive meeting.

Ask in writing for the IEP meeting, and include your concerns in the request. Then—and this is critical—gather everything you can to show the behavior concerns are ongoing, have a history, and need to be addressed by the school:

  • Print out the school’s code of conduct. The code of conduct is usually available on the school’s website. It will state that your child’s performance in school isn’t just about academics. It’s about behavior as well. Most codes give specific examples of behavior that isn’t allowed. Using this as a guideline, you can argue that your child’s behavior isn’t meeting the school’s standard of acceptable conduct. So, he needs help.

  • Review your notes on when your child has been taken out of class. Keep track of the days the school has asked you to pick up your child. Or sent your child to the principal’s office. Review and gather these notes to share at the meeting.

  • Gather all behavior-related emails and letters received from or sent to the school. These can show your child’s behavior over time and how it’s escalated. Letters and emails can also show the growing concerns that you and the school have raised.

  • Make copies of report cards that show behavioral issues. Most report cards have a section for behavior concerns. These are specific and may contain things like: “is disruptive in class,” “does not follow directions,” “does not get along with other children” and “has difficulty keeping hands to himself/herself.”

These notes are valuable. They provide detail and can show increasing problems or a lack of improvement. Also, since they appear on the report card, that shows that these behaviors are a key part of your child’s education.

Once you get to the IEP meeting, your goal should be to work with the IEP team to put behavioral supports in place. These will help prevent future calls from the school asking you to take your child home.

Of course, things can sometimes get a lot more complicated than this. In those cases, you may need the help of an advocate or attorney. You can also opt to talk with one if you are not sure. 

About the Author

About the Author

Robert Tudisco, JD 

is a practicing attorney in the areas of education law, disability advocacy, and criminal law.

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