Many times, students with behavior challenges are identified through a special education assessment plan as qualifying for an Individualized Education Plan (IEP). Parents are led to believe that the Individualized Education Plan protects students during the discipline process. Sometimes parents of a student with a disability believe that having an IEP means their student with a disability cannot be suspended. Read on to learn more.
Can A Student With An Individualized Education Plan (IEP) Be Suspended?
Yes. An Individualized Education Plan (IEP) does not prevent or protect a student from being suspended. An IEP also does not prevent a student from being disciplined, particularly if the student with a disability violates an education code.
But My Student’s Disability Is What Is Causing The Behavior That Led To The Suspension.
Oftentimes, the student does do behaviors related to their disability, the exact thing for which they have the Individualized Education Plan (IEP) initially. This does not mean they cannot be suspended or disciplined for those behaviors, but it does mean the behaviors should be looked at differently. The behavior should be taken into consideration, particularly when looking at the intent of the student’s behavior.
As an example, a student with an Individualized Education Plan for Autism throws an eraser at another student in their classroom during a transition period. While another student without Autism might be sent home for the throwing, the student with Autism on the Individualized Education Plan (IEP) might not be sent home. Their Behavior Intervention Plan BIP) would be implemented and, if necessary, the IEP team would meet to review the Behavior Intervention Plan (BIP).
How Do A Behavior Intervention Plan (BIP) And Functional Behavior Analysis (FBA) Fit In To Discipline And Suspension?
When a student with an Individualized Education Plan (IEP) has behaviors that consistently negatively impact their access to their classroom and education, it is appropriate to develop a Behavior Intervention Plan (BIP). A BIP is developed after a Functional Behavior Analysis (FBA) is conducted. The BIP should lay out a clear plan of how to prevent the target or problem behaviors as well as how to respond to them to minimize their duration and occurrence. Stay tuned for our upcoming blog post on managing behaviors for students with disabilities.
My Child Has Been Suspended Many Times In This School Year. I Am Being Told There Will Be A Manifest Determination. What Does This Mean?
One of the benefits of having a student with an Individualized Education Plan (IEP) is that there are protections for when the student is suspended for a certain number of days or commits an offense that is an expellable suspense. One of them is the Manifest Determination process for students with an IEP.
When a student with an IEP is suspended a certain number of days in one school year (usually 10 days but some districts will meet sooner), the IEP team is required to meet to review records to determine two things:
- Is the behavior a manifestation of the student’s disability? In other words, is the behavior identified as part of the disability?
- Was the IEP implemented and does it remain appropriate for the student’s behavior?
Answering these questions, particularly if a student with an IEP is up for expulsion, will determine the school’s next steps. Here are some examples:
Hypothetical 1: Alex, a student with Autism with challenges with language, verbally threatens another student when he is frustrated. The IEP team would meet to hold a manifest determination meeting. The team would likely find that the yelling of a verbal threat was part of (or a manifestation of) the Autism because Alex doesn’t have the vocabulary or communication skills to tell the other student to “stop it”. If the IEP doesn’t have goals for this area, the IEP needs to be adjusted. Alex would still be suspended because he broke a school rule and violated education code; but, he would not be up for expulsion because the behavior was a manifestation of his Autism and the Individualized Education Plan was not effective.
Hypothetical 2: Susan, a student with a Specific Learning Disability in written language and attention, is suspended and up for expulsion for bringing marijuana to school. Because bringing marijuana to school is not a result of a learning disability or attention deficit, the behavior would not be resulting from the disability. Regardless of whether or not the IEP is effective, Susan would still be up for expulsion because her conduct (bringing marijuana) was not caused by her disability.
I’m Told I Have To Attend An Expulsion Hearing. What Now?
If your student has gone through the Manifest Determination process but is still up for expulsion, you still have due process rights to appeal the suspension and even the manifest determination finding. The school must send you a notice of hearing if your student with a disability is up for expulsion. You have the right to have representation at that meeting, be it an advocate or attorney. Even if you lose the hearing, you have the right to appeal the hearing.
If you still have questions about the discipline process for students with a disability who is on an IEP, or if your student is actively going through this process, contact our office to schedule a complimentary 30 minute phone consultation to review your due process rights.