Newsline Volume 33, Number 4

Civil Discipline Law1

By Daniel T.S. Heffernan, Esquire, and Sherry L. Rajaniemi-Gregg, Esquire

3School discipline looms large in the lives of many students with disabilities. At times, the student can find herself being punished for her disability or see behavioral issues arising from her disability inappropriately or ineffectively addressed by the school district. Students with special needs can also be victimized by or model another child's inappropriate conduct. During the 2010-2011 school year, more than 48,000 students received out of school suspensions, 200 students were permanently excluded from school, and 100 students were moved to alternative settings. Federal and state law 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.

Which students are entitled to protection? The federal Individuals with Disabilities Education Act ("IDEA") accords students with special needs significant rights regarding student discipline. Students on IEPs and 504 plans are unequivocally entitled to IDEA's protection. In addition, students who are not yet eligible for special education services are covered "if the school district had knowledge that the child was a child with a disability" before the behavior precipitating the disciplinary action occurred. 34 CFR §300.534. In order for a student to be afforded the protections of IDEA before the behavior occurred:

  • the parent must have expressed concern in writing to school personnel that the child is in need of special education and related services;
  • a requested evaluation of the student's suspected special needs has not been completed; or,
  • school personnel have expressed specific concerns to the supervisory personnel about a pattern of behavior by the child.

Despite the above, the student will not be covered if the parent refused to have the child evaluated, the parent has refused services for the child, or if the child was found ineligible for an IEP or 504 plan.

If the student is not eligible for these protections in disciplinary matters, she is to be treated the same as any other student in disciplinary matters. This does not accord the school district unfettered discretion, however. Every school district in Massachusetts is required to have a student handbook, and must adhere to its disciplinary code and procedures. In addition, the use of restraints and seclusion of students is strictly limited by statutes and regulations in Massachusetts. Lastly, anti-discrimination and civil rights laws can proscribe the selective application of discipline to certain students or groups of students.

Which disciplinary measures do the protections extend to - the Ten Day Rule? The IDEA does not prevent school districts from meting out any type of discipline for protected students. These protections "kick in" if the school district seeks to, in reality or in effect, change the student's placement. Apart from actions such as moving a student to a different program or classroom or changing the essence of a student's program, removing the student from her classroom, by suspension for example, for more than ten days is tantamount to a change in placement. This "Ten Day Rule" applies to multiple exclusions that total ten days for a given school year if one can show that the behaviors are essentially the same. Therefore, school districts may discipline students with special needs to the same extent as non-disabled students as long as it does not constitute a change in placement.

Manifestation Determinations. If the school district seeks to change the student's placement, it must first convene the team to conduct a "manifestation determination" to determine if the behavior was related to, or a manifestation, of the student's disability. Underlying this requirement is the principle that a district cannot punish a student for her disability. The district may not change the student's placement if the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability or was the direct result of the district's failure to implement the IEP. These manifestation determinations are typically conducted like quasi-hearings, with witness testimony and various documents being considered. Parents have the burden of proof to establish the connection between the conduct and the disability or failure to implement the IEP. To do so, parents may submit reports or other documentation as well as present witnesses, including experts.

If the behavior is determined to be a manifestation of the student's disability, the school district must conduct a functional behavioral assessment ("FBA") or review a pre-existing FBA and return the student to her current placement except in situations involving "special circumstances" described below. If the behavior was not a manifestation or the student's disability, the student is subject to the same discipline as non-disabled peers.

The FBA can result in a behavior plan that delineates how certain behaviors are to be addressed. If incorporated into an IEP, this behavior plan may also proscribe the discipline the school district may mete out for it acts as a binding contract between the parents and school district. For example, if the behavior plan provides that the student will lose his computer time if he pushes another student, the district cannot suspend the student for that behavior. Similarly, if the IEP provides for certain procedures or responses to certain behaviors, they must be adhered to by the school district.

Special Circumstances. Concern about drugs and violence in schools has led to an exception to the above procedures in certain "special circumstances." In those situations, a school district may eschew the procedures above and immediately remove a student to an Interim Alternative Education Setting ("IAES") for up to 45 days. Those special circumstances are:

  • when the student possesses a weapon at school or a school function;

  • knowingly possesses, sells or solicits illegal drugs at school or a school function; or,

  • has inflicted serious bodily injury to another person at school or a school function.

The exception for special circumstance is intended to be a limited one. Applicable statutes and regulations define illegal drugs, weapons and serious bodily injuries. For example, serious bodily injury means injury involving a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted impairment of the function of a bodily member, organ, or mental facility.

Parents may challenge the disciplinary actions of the school district by filing a hearing request with the Bureau of Special Education Appeals ("BSEA"). The BSEA may review the propriety of the manifestation determination, the existence of special circumstances, the appropriateness of the IAES or other aspects of the discipline of a child with special needs.

The end of permanent school exclusion in Massachusetts. While students with special needs cannot be denied all forms of education regardless of their conduct, the same has not been true for students without the above procedural protections. Currently, such students who are charged with or convicted of felonies can be permanently excluded from school by their district and denied services by any new district where the student has relocated. Beginning July 1, 2014, school districts may no longer permanently exclude any student. While districts do not have to allow such students to be enrolled in regular classes or school, they must consider ways to reengage the students in the learning process and explore some non-expulsion remedies. The districts must provide some educational services to the students as well as establish procedural protections for those students. The details of these services and procedures will become clearer with the promulgation of regulations and the actual practice after July 1, 2014. In addition, school districts must collect data about suspensions and exclusions and provide that to the Department of Elementary and Secondary Education ("DESE"). DESE is mandated to investigate schools that suspend or expel a "significant" number of students for greater than 10 cumulative days, as well as make recommendations to those schools and make public the results.

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.

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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 kcslegal.com and our blog.
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1This is the first of a two part article. This article addresses the law surrounding disciplining students with special needs. The second article will provide practical suggestions regarding school discipline issues.