FCSN // Newsletter // 2013 // Summer 2013 // School Discipline Law – Part 2
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School Discipline Law – Part 2

By Daniel T.S. Heffernan, Esquire and Sherry L. Rajaniemi-Gregg, Esquire -Kotin, Crabtree & Strong

elementary school aged boy sitting with his head on a desk outside of a classroomAs we stated in our Spring 2013 Newsline article, school discipline issues impact myriad students with disabilities. Tens of thousands of students are suspended from Massachusetts public schools every year, and students can be disciplined for their disabilities or find that behavioral issues arising from their disabilities are being inappropriately or ineffectively addressed. We offer these practical suggestions to families in the area of school discipline.

Know your rights. Federal and state laws, such as the Individuals with Disabilities Education Act (“IDEA”), provide significant procedural and substantive safeguards to ensure that children with special needs are not punished for their disabilities and that inappropriate behaviors are properly addressed.

Be proactive. Serious discipline issues rarely develop overnight. Many were festering for quite some time and measures could have been taken to prevent escalations to the level that formal discipline is required. For example, when a student gets suspended for hurting a peer, one may find that the suspended student had earlier incidents of pushing others when overwhelmed in certain situations. The school may have said little or nothing, or told the parents the school would handle it. The parents may be embarrassed about their child’s behavior and content to let the school deal with it. However, the parents may have seen the same behaviors outside of school and realize it is a bigger issue that should and could be dealt with more proactively and effectively. Together, the school and parents may be able to “head off” serious incidents that will bring more severe discipline or even a change in the child’s placement.

Work as cooperatively as possible with the school: Serious discipline issues often devolve into adversarial situations between the parents and school. The school may ultimately seek to exclude the student or move her into a different classroom. The parents will often oppose this discipline or change of placement. Once locked into their respective positions, both sides can lose sight of the fact that they share the same important goal – appropriate behavior by the student. Make the school realize that you are as interested in extinguishing problematic behavior as it is, appreciate the challenge it presents for the school personnel, and express your willingness to partner with them in effectively addressing the behavior. The school will welcome that attitude. Share the information you have on what may be going on with the student, whether it is a change of medication or a situation outside school that is impacting the student. Work with the school to develop the most effective way of addressing the behavior even if it entails carrying the discipline over to home through means you know are effective for your child. This coordinated approach will not only be more effective with the student, but it will reduce the adversarial overlay of many discipline issues and may convince the school district that it does not need to resort to formal, more serious discipline.

Know which school personnel to work with best. It is important to know the agenda and perspective of various school personnel who may be involved with discipline issues. A vice principal, who perhaps is inexperienced with students with disabilities and who deals with the more significant discipline issues, may be mandated to take a hard line on certain behaviors and does that by meting out discipline that is consistent, predictable and leaves little or no room for exceptions. This may be unfair as well as ineffective in addressing the discipline issue of a student with a disability. If a student with disabilities who, on his way to a test in the math class he is struggling in, becomes dysregulated, shoves another student into a locker, and gets sent to that vice principal, it is a foregone conclusion what the result will be. The vice principal, as he has done for similar behavior, suspends the student for a day. With the suspension, the student avoids taking that test. The student has now learned that he can get out of that class by being physical and the vice principal will apply the principle of progressive discipline. Below are ways to avoid this counterproductive pattern.

Use the IEP to more effectively address discipline issues. Along with addressing issues such as services, placement, and goals, an IEP can be invaluable in addressing how certain behaviors and discipline issues will be addressed. One IEP section provides that the school and family can agree that the school discipline code will not apply to the student. While school districts are loathe to give this blanket immunity from the discipline code, they may be amenable to certain modifications to the standard disciplinary procedure. A behavior plan, sometimes developed as a result of a functional behavioral assessment (“FBA”), should be incorporated into the IEP. This behavior plan is a contract about how the school district will address certain behaviors and mete out discipline. If the behavior plan provides that the student will lose his computer time if he pushes another student, it would be a breach of the contract to suspend the student for that behavior. If certain school personnel, such as the inclusion facilitator, are better at dealing with the student’s behaviors, then the IEP should dictate that discipline issues involving that student will be referred to the inclusion facilitator. Some IEPs contain provisions that discipline issues will be referred to the special education team before any discipline is imposed. The parents, as part of that team, may have a chance to influence how the behavior is addressed. This prevents an automatic referral to school administrators who feel they must handle it a certain way.

Resolve what you can outside formal disciplinary proceedings. To change a student’s placement, the school district must convene the team to conduct a “manifestation determination” to determine if the behavior was related to, or a manifestation of, the student’s disability. Schools may also conduct suspension or expulsion hearings to exclude the student. While various laws, regulations and often a district’s own student handbook accord you the opportunity to present witnesses and documents at these quasi-hearings, waiting until that actual proceeding to make your case is a mistake. Having the decision maker, often the principal, to rule in the student’s favor in that forum would be perceived as undermining or contradicting teachers or other school personnel. Find out what you can about what happened and what or who is driving the push for the serious discipline, and see if you can address the discipline outside these formal proceedings. Even if you are unsuccessful, your efforts will help you better prepare for the proceedings or soften up those pressing the case for the more significant discipline. If the matter does proceed, present the best case possible by bringing as witnesses experts knowledgeable about your student and his disability in order to establish the connection between the student’s disability and the offending behavior and submit supportive reports.

School discipline can significantly impact a student’s education. To properly address a student’s disability, and to ensure that students with special needs receive fair, appropriate and effective discipline, it is essential to be familiar with the law in this crucial area and follow the above practical tips.

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1This is the second of a two-part article. The first article was published in the Spring 2013 Newsline and focused on the law surrounding disciplining students with special needs. This second article provides practical suggestions regarding school discipline issues.

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Daniel T.S. Heffernan and Sherry Rajaniemi-Gregg are attorneys with Kotin, Crabtree & Strong where they concentrate on special education and civil rights law. They have represented numerous families with children with special needs in abuse, civil rights and negligence actions. More information on special education can be found on their website (www.kcslegal.com) and special education blog (www.kcsspecialeducationlaw.com)