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2: Expulsion - Regular Education
Students
Already Identified
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Alison
Julien, Univ. Pittsburgh 1994, is an assistant professor of
legal writing at Marquette University Law School. She practiced
in special education law, expulsion, and litigation at Schott, Bublitz
& Engel S.C., Brookfield, where she remains of counsel.
Patricia
Engel, U.W. 1988, is a shareholder with Schott, Bublitz & Engel
S.C. A former special education teacher, she practices in special
education law, expulsion, and civil litigation.
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Assume
that John is no longer a regular education student. Instead, he was found
eligible to receive special education services under the category of emotional
disturbance approximately a year before the incident. His eligibility is
based upon an emotional disturbance; he has been diagnosed with anxiety,
depression, and a mood disorder.
The rest of the facts remain the same; namely, John is facing expulsion
because he wrote the "kill list."
Special Education: An Introduction. For the most part,
the expulsion procedures outlined for regular education students are the
same for children in special education. The differences lie in the procedures
that happen before the expulsion hearing, the parents' rights to challenge
district decisions, and the services provided post-expulsion.
The differences stem from the school's inability to unilaterally change
a special education student's placement. Every child in special education
has an individualized education program (IEP) prepared by the district
staff and the child's parents (the IEP team). The IEP specifies, among
other things, the student's educational goals and the special services
the student will receive. After preparing the IEP, the team determines
the child's placement, or where the services will be delivered. Placement
is driven by the child's needs as reflected in the IEP. In general, any
placement changes must be made by the IEP team, and any change in a child's
placement triggers additional procedural protections.
These principles are important in the disciplinary setting because any
removal from school for more than 10 consecutive days, including an expulsion,
constitutes a change in the student's educational placement.16
Thus, when the district contemplates expulsion, additional procedural
protections take effect. These include additional notice requirements,
the right to a manifestation determination, the right to request a due
process hearing, the child's right to "stay put" in the educational placement
during the hearing, the child's right to receive educational services
for every removal that exceeds a total of 10 cumulative days in a school
year, and the child's right to receive educational services even if expelled.
Notice and Manifestation Determination. When the district
decides to expel a special education student, in addition to the standard
notice of expulsion, the district must provide the parents with notice
of its decision and with notice of the parents' procedural rights and
protections under special education law.
The district also must convene the student's IEP team to assess the
child's behavior and, if necessary, to modify the child's IEP to include
appropriate behavioral interventions.17
The IEP team also is required to consider the relationship between the
child's behavior and the child's disability;18
this is known as the manifestation determination. The manifestation determination
must be made within 10 days after the date the district decided to seek
expulsion.19
The manifestation determination is a critical step in the process because
if the child's behavior was a manifestation of the child's disability,
the child cannot be expelled. Only if the behavior was unrelated
to the disability may the district proceed with the expulsion.20
To determine whether the behavior was a manifestation of the child's
disability, the IEP team must review all relevant information, including
evaluation and diagnostic results, observations of the child, and the
child's IEP and placement. The team may find that the behavior was not
a manifestation of the child's disability only if:
- the child's IEP and placement were appropriate and the services called
for in the IEP were provided, consistent with the IEP and placement;
- the child's disability did not impair the child's ability to understand
the impact and consequences of his or her behavior; and,
- the child's disability did not impair the child's ability to control
the behavior.21
If the team does not find that all three of these standards existed,
it must conclude that the child's behavior was a manifestation of his
or her disability,22
and the district cannot expel the child. Instead, the IEP team must consider
whether the child's IEP or placement should be revised to more effectively
address the child's behavior.23
If, however, the team determines that the behavior was not a manifestation
of the child's disability, the district may discipline the child in the
same manner that it would discipline a nondisabled student, including
expulsion.24
Appeal: "Stay Put" Placement. If the district concludes
that the student's behavior was not a manifestation of his or her disability,
the parents may request a hearing.25
This is an appeal to the Department of Public Instruction, which appoints
an administrative law judge to hear the case. The hearing must be expedited,26
and the burden of proof lies on the school district.27
While the appeal is pending, unless the parent and the district agree
otherwise, the child is entitled to remain in his or her current educational
placement, known as the "stay put" placement.28
Accordingly, the child cannot be expelled until the hearing is completed,
and only then if the district's decision is affirmed.
Interim Alternative Educational Setting. In limited
circumstances a school may unilaterally change a student's placement even
if the student is in special education. If a special education student
brings a weapon or drugs to school, school officials may unilaterally
remove the child to an interim alternative educational setting for up
to 45 days.29
In addition, if the school believes that a child is likely to injure himself
or others, the school may ask an administrative law judge to order placement
in an interim alternative setting for up to 45 days.30
The district may request subsequent extensions for 45 days at a time if
it continues to believe that the child would be substantially likely to
injure himself or others if he remains in his regular placement.
Services After Expulsion. Perhaps the most critical
distinction between regular education students and special education students
is that once a special education student has been removed from school
for more than 10 days in a school year, the district must provide services
to the child during any subsequent removal.31
There is no similar protection for regular education students. Thus, unlike
students in regular education, whose educational services normally cease
once the student is expelled, a child in special education continues to
receive educational services even after expulsion. The student's IEP team
determines the nature and extent of those services.32
At a minimum, the school must provide as much support and instruction
as is needed for the student to make progress in reaching his or her IEP
goals, and advance through the general curriculum.33
John's Case. Applying these legal principles to John's
case, because he was a special education student when he was caught with
the "kill list," the special education rules apply. Thus, within 10 days
of the date when the district decided to seek expulsion, John's IEP team
would be required to meet to review his IEP and consider whether his behavior,
writing a "kill list," was a manifestation of his disability. His team
would ask: 1) were John's IEP and placement appropriate, and were
services provided in accordance with the IEP; 2) did John's anxiety,
depression, or mood disorder impair his ability to understand the impact
and consequences of writing the "kill list," and 3) did John's anxiety,
depression, or mood disorder impair his ability to control his behavior?
The role of the parents' attorney is to ensure that the team has all
necessary information to assist it in answering these questions appropriately.
Thus, John's attorney would need to obtain complete copies of John's medical
and educational records. Those documents often note problems concerning
mental health, behavior, impulsivity, or attention. The attorney also
should contact John's psychologist and psychiatrist to determine whether
those doctors had relevant information for the IEP team and whether they
should attend the manifestation determination hearing. Often doctors or
other mental health professionals have valuable information and insight
into the student's behavior, treatment regimen, and prognosis, and that
information may prove very beneficial when considering the interplay between
the student's behavior and his or her disability. If John's doctors were
able to explain that any of his medical conditions impaired his ability
to understand the consequences of his actions or, more likely, impaired
John's ability to control his actions, the IEP team would be more likely
to determine that John's conduct was a manifestation of his disability.
The importance of involving the student's private treatment providers
was underscored in [Student] v. Richland School District.34
In that case, a student with a learning disability was involved in
a vandalism incident. His IEP team considered the relationship between
his disability and his conduct and concluded that the vandalism was not
a manifestation of the student's learning disability. What the team ignored,
however, were facts raised by the student's mother, which suggested that
the student also had attention deficit disorder (ADD). The student had
been repeatedly truant and had received at least 54 behavioral referrals
during high school. The district was aware of his behavioral problems
but did not evaluate him to determine whether he qualified for special
education services under the categories of "emotional disturbance" or
"other health impairment" based on his ADD. It also did not consider whether
the student's behavior was a manifestation of his ADD.
On appeal, the parents presented evidence from the child's psychologist.
She testified that the student's behavior was not a manifestation of his
learning disability, but it was a manifestation of his ADD and his mood
disorder. She explained that although his disabilities did not prevent
him from knowing the consequences of his behavior, they did cause him
to have difficulty controlling his behavior. On the basis of this testimony,
the ALJ concluded that the district had not met its burden of proof, reversed
the manifestation determination, and set aside the expulsion.
Thus, assuming that John's doctors could provide helpful information
to the IEP team, John's attorney would want to ensure their participation
in the IEP meeting, either in person or by phone. At a minimum, a letter
from the doctor responding to the questions the team is charged to answer
should be provided to the IEP team.
The attorney also should consider consulting an educational expert.
The IEP team's first determination is whether the child's IEP and placement
were appropriate, and whether services were provided in accordance with
the IEP. If the IEP and placement were inappropriate, the team must conclude
that the behavior was a manifestation of the disability. Thus, John's
attorney would want to contact educational experts for input on the appropriateness
of the IEP and placement.
Under these facts and with the input of John's health care providers,
the IEP team probably would conclude that John's conduct was a manifestation
of his disability. Thus, he could not be expelled. Instead, John would
continue to receive educational services in the placement deemed appropriate
by his IEP team.
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4: Students Not Yet Identified
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