In recent years, there’s been understandable concern about school safety. Schools are trying to crack down on bullying. They’re getting tough about even minor rule-breaking, such as name-calling. If your child struggles with social skills or just acts out more, you may worry he’ll be at risk for being disciplined.
According to the law, children shouldn’t be disciplined for behavior related to their learning and attention issues. The Individuals with Disabilities Education Act (IDEA) offers extra protections to students in special education. Students with 504 plans have similar rights.
These laws require that schools follow strict procedures when disciplining students. The laws also cover students who don’t get services if the school “should have known” that the child has a disability.
These rights can be complicated and sometimes hard to follow. Here are some important facts to know.
The school needs to make the rules clear.
Usually, at the start of the year, the school gives students a handbook listing expectations for conduct. The school is responsible for making sure students are familiar with the codes of conduct.
The codes are different from school to school. The codes cover behavior and sometimes clothing, academic rules and attendance. The codes spell out the consequences for breaking the rules.
The school legally can’t suspend a student for behavior that results from a disability.
By law, the school is allowed to suspend students or send them to another setting—their home, another classroom, a behavior center or some other alternative educational setting—for a total of 10 days. However, suspending a student for even one day for behavior related to his learning disability may be illegal.
After suspending students for 10 days, special protections kick in.
What if the school suspends a student for 11 total days in a year? What if the school suspends him more than twice in a school year for a pattern of similar behavior? Then the child is considered to have had a “change in placement.” If this happens, the school must immediately notify you in writing of the change. They must inform you about your legal rights and protections (called procedural safeguards).
Within 10 days of the school’s decision (which resulted in the child’s change in placement), the student’s Individualized Education Program (IEP) team must conduct what’s called a “manifestation determination.” The entire IEP team, parents included, decides whether the child’s misbehavior was a “manifestation” of the condition. In other words, did the child’s disability cause or directly contribute to the misbehavior?
The IEP team also looks at whether some aspects of the IEP weren’t followed. Perhaps the student is supposed to get weekly counseling services, but the school keeps rescheduling. The student might act out. Or perhaps the school didn’t follow behavior accommodations, such as letting a child stand during class or leave class to visit a “cool-off” room.
What happens if the behavior was caused by a disability?
If the answer to the “manifestation determination” is yes, then the school can’t suspend, expel or discipline the student. It must allow the student to return. The school and the IEP team must immediately conduct a functional behavioral assessment (FBA). They will try to figure out when the behavior happens and why.
The IEP team also meets to develop a behavior intervention plan (BIP) to minimize the acting out. The BIP must be put into effect immediately. If the student already has a BIP, then the team needs to review and change the plan to address the behavior.
What happens if the behavior wasn’t caused by a disability?
If the answer to a “manifestation determination” is no, the school can treat the student the same as it treats students without disabilities or medical conditions. It can use the same disciplinary procedures. However the school must continue to provide special education services.
There are exceptions.
Sometimes the school can remove a student with a learning disability even if the misconduct is related to the disability. This applies if:
- A student has a weapon at school
- A student has been found with illegal drugs at school
- A student has caused serious bodily injury to another person at school
In these cases, the school can keep the student out of school for up to 45 days.
There is no federal law banning the controversial practices of restraint and seclusion.
Restraint is anything that limits a student’s ability to move freely. This could mean something like using tape or rope to restrain a child in his seat. It could mean holding a student facedown on the ground. Seclusion is when a teacher or administrator puts a student in a locked room separate from other students.
No federal law bans these practices. Most states have few or no laws prohibiting these practices. That means many public schools are free to decide when and how to restrain or seclude students. The use of these controversial forms of discipline with special education students has grown, according to a government report. Be sure there isn’t anything in your child’s IEP or 504 plan that could be interpreted as permitting restraint or seclusion.
If these methods are used, you can file a complaint with state or federal officials as part of your procedural safeguards. Most important, if you ever see any evidence of child abuse, you have the right to call the police.
You can always appeal a disciplinary decision.
You can appeal a school’s decision to discipline your child. You can also appeal a manifestation determination. You can request an expedited due process hearing. An expedited hearing takes place sooner than a hearing usually would.
During the appeals process, a student will generally remain where he is—suspended at home, or in some other setting—for up to 45 days or until the appeal is decided (unless parents and school agree otherwise).
Only students with an IEP or 504 plan receive these protections. A student who doesn’t receive special education services or accommodations will be treated like any other student.
There is an exception: If you asked for an evaluation or told the school in writing that you thought your child needed special education—or a teacher expressed concerns—then your child may be protected.
The safety of all students is a top concern. But the law recognizes that if a child misbehaves because of a behavioral, emotional or learning issue, the school should help him—not punish him. If your child has behavioral problems and his IEP doesn’t include counseling or social work services, consider asking the IEP team to include those services.
Understanding your child’s rights can help ensure that your child isn’t unfairly disciplined and that he receives the help he needs to follow school rules.