Page 2: Expulsion - Regular Education

Students Already Identified

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.

Page 4: Students Not Yet Identified