Your child acts out in class. The school suspends or expels him or changes where he receives his education. You suspect the reason for the misbehavior is a learning or attention issue. However, your child doesn’t have an Individualized Education Program (IEP) or 504 plan. Maybe he hasn’t been evaluated or is in the middle of the evaluation process. What are your child’s rights?
The answer is complicated. All students have some basic rights when it comes to school discipline. For example, students and their parents must be told the reason for the punishment. And they must have a chance to tell their side of the story.
Under the federal Individuals with Disabilities Education Act (IDEA), children who have disabilities and have an IEP or 504 plan have additional legal rights and protections.
For example, if a school disciplines a child with an IEP by changing where he is taught, generally it must continue to provide education services to that child, wherever he is. This is true even if he is at home. It also must determine whether his behavior occurred because of his disability. If that’s the case, it must add behavior strategies to his IEP to help him. A change of placement happens if a child is suspended or expelled for more than 10 days total in a year or several times for similar behavior.
In some cases, a child without an IEP or 504 plan may also have these protections. IDEA says that a child will be protected if the school had a “basis of knowledge” about the child’s disability before the problem behavior occurred.
When is there a basis of knowledge?
A school has a basis of knowledge that a child has a disability in three cases:
- If a parent expressed concern in writing to a school administrator or the child’s teacher that the child needed special education services.
- If a parent requested an evaluation of the child.
- If the child’s teacher or other school employees expressed specific concerns to school administrators about the child’s pattern of behavior and the possibility that the child needs special education and related services.
In other words, it depends on whether the school had a reason to know of your child’s learning or attention issue. If your child violates a school rule after you or someone else requests an evaluation or while he’s in the middle of an evaluation, your child is protected by IDEA. But if you expressed a concern only orally, the child doesn’t have discipline rights under IDEA.
If my child is getting academic or behavioral help, does that mean the school has knowledge?
No. Schools often give extra help to students who don’t have disabilities under IDEA.
What if my child was already evaluated and found not eligible for special education services?
In this case your child isn’t protected by IDEA. If the school didn’t have any knowledge, then your child has the same discipline rights as students without disabilities.
If my child is not protected yet, can I speed up the evaluation process?
Yes. If a child is disciplined and afterward a parent asks for an evaluation, the school must decide if an evaluation is needed and conduct it as quickly as possible. This is called an expedited evaluation.
Your child’s school discipline rights may depend on the school’s knowledge. You may want to talk to a special education advocate if your child is punished. You may also want to read up on the disciplinary rights for children with disabilities under IDEA.