Suspension and Expulsion

Law-In-Brief: Special Education #7

Date:  March 26, 2003

Prepared by: David Girard, WPAS Legal Advocacy

Suspension and Expulsion Rules For All Students

When a school or district suspends or expels your child, it must make sure that the removal is consistent with state laws and regulations governing discipline for all students. Washington State discipline regulations are located at Chapter 180-40 of the Washington Administrative Code (“the WAC”) (www.wa.gov/wac).  They address discipline, suspension, and expulsion for all public education students. Districts must have policies and procedures that describe various types of misconduct and address penalties imposed for the misconduct. Discipline must be consistent with the district policies and procedures. Except for emergencies, schools generally may not suspend or expel any student unless they have tried other forms of corrective action that would modify the student’s behavior.

A suspension is a removal from a single subject, class period, or full schedule of classes for a definite period of time. Removal for more than a single class period or subject area is a suspension. An expulsion is a removal from any single subject, class period, or full schedule of classes for an indefinite period of time.

Generally, all public school students have due process rights before they are suspended or expelled.  For example, a student facing a temporary suspension from school of 10 days or less is entitled to notice (oral or written) and an opportunity to be heard.  A student facing a suspension of 10 days or more or expulsion may be entitled to more formal procedures.  Check your school’s disciplinary procedures and the WAC. Don’t assume that your school’s disciplinary procedures are correct or consistent with the WAC.  To the extent that your school’s procedures are inconsistent with the WAC, the WAC is the governing law.

The discipline of children with disabilities under the IDEA and Section 504 is very complex and has been the subject of much litigation, both in administrative hearings and in the courts.  The summary contents of this FYI are not and should not be construed as a substitution for the advice of an attorney experienced in special education law and practice.

Discipline of Special Education Students

 IDEA regulations clarify that (1) special education students whose behavior is not related to their disability may be disciplined in a manner consistent with discipline of students without disabilities, (2) special education students should not be punished for behavior that that is a result of their disability, and (3) special education students should continue to receive services that will allow them to progress with their education.  Note:  Generally, the discipline of special education students is the same under the IDEA and Section 504.

General Disciplinary Removals

No change of placement. School authorities may remove your child from his or her current educational placement up to ten consecutive days or up to ten cumulative days if the same removal would apply to a student who is not eligible for special education services. Your child may also be removed from his or her educational placement for additional consecutive periods of up to ten days if the removals do not constitute a pattern of exclusion, which would result in a change of placement.

Change of placement. A change of placement occurs (1) any time the removal is for more than ten consecutive days in a school year or (2) when your child has a series of removals that cumulate to more than ten school days in a school year and the removals constitute a pattern of exclusion. Factors that are considered in determining a pattern of exclusion include the length of each removal, the total amount of time your child is removed, and the proximity of the removals to one another.

Removals for Drugs or Weapons

School personnel may remove your child from his or her current educational placements and place him or her in an interim alternative educational placement for the same amount of time that a student who is not eligible for special education services would be subject to discipline, but not for more than 45 days:

 (1) if he or she possesses or carries a weapon to school or school function, or

(2) he or she knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function.

Controlled substance means a drug or other substance identified under Schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812[c]).

Illegal drug means a controlled substance but does not include a substance that is legally possessed or used under the supervision of a licensed health care professional or that is legally possessed or used under any other authority under that act or under any other provision of federal law.

Weapon has the meaning given the term “dangerous weapon” under paragraph (2) of the first subsection (g) of section 930 of Title 18, United States Code: Dangerous weapon means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than two and one-half inches in length.

Removals for Dangerous Behavior

Schools may ask an Administrative Law Judge (ALJ) in an expedited due process hearing to remove your child from his or her current educational placement to an interim alternative placement for not more than 45 calendar days if the school believes your child is likely to harm him or herself or others. This administrative hearing process may be repeated for additional 45 calendar day periods.

The school must demonstrate, by substantial evidence that maintaining the current placement of your child is substantially likely to result in injury to your child or to others.  The ALJ must consider the appropriateness of your child’s placement prior to removal, consider whether the school has made reasonable efforts to minimize the risk of harm in your child's current placement, and determine whether the interim alternative educational setting will allow your child to progress in the general curriculum and make appropriate progress on the goals in the IEP.

In addition to the administrative hearing process for removing your child, school personnel may still request an injunction from the courts.  Generally you must be given notice and an opportunity to be heard by the court before such an injunction will be issued.

Providing Educational Services

No change of placement. A school does not have to provide educational services to your child for the first ten school days your child is removed in a school year if the school would not provide educational services to a student who is not eligible for special education services. After your child has been removed for ten days in a school year, the school must provide services that will allow your child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals in your child’s IEP. School personnel need to consult with the special education teacher to make the decision regarding the level of services needed.

Change of placement: interim alternative educational settings. The IEP team determines the interim alternative educational setting when a student is removed from his or her placement because of drug or weapon violations. You, as a parent, are a member of that IEP team.

If the ALJ agrees that your child should be placed in an interim alternative educational setting because of dangerous behavior, the setting proposed by school personnel will be made in consultation with the special education teacher.

Any interim alternative educational setting selected because of drugs, weapons, or dangerous behavior must enable your child to continue to progress in the general curriculum and receive services and modifications, including those in the current IEP that will enable your child to meet the goals set out in that IEP. In addition, your child must receive services and modifications designed to address his or her behavior so the behavior will not recur.

Change of placement: no manifestation of a disability. If your child is removed from his or her placement for behavior that is not a manifestation of his or her disability, educational services must be provided to the student to the extent necessary to enable your child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals in your child’s IEP. The IEP team determines what educational services are necessary under these circumstances.

When the student is incarcerated. An IEP team of a special education student convicted as an adult and receiving services under RCW 28A.193 may modify the student’s IEP if there is a demonstrated bona fide security risk or compelling interest related to the student’s incarceration that cannot otherwise be accommodated.

Functional Behavioral Assessments and Behavior Plans

Behavior is one of the special considerations IEP teams are required to consider when developing or reviewing your child’s IEP. If the school did not already conduct a functional behavioral assessment and implement a behavior intervention plan for your child before the misconduct occurred, the IEP team must meet to develop an assessment plan. This meeting must be held no later than ten business days after either first removing your child for ten school days in a school year or no later than ten business days after beginning a removal that is considered a change of placement. As soon as practicable after developing the assessment plan and completing the assessments, the IEP team shall meet to develop appropriate behavior interventions and implement those interventions.

If your child already has a behavior intervention plan in his or her IEP, then the school must convene the IEP team to review the plan and its implementation and modify the plan and its implementation as necessary to address the behavior.

If your child has a behavioral intervention plan and there are any further removals in a school year that are not considered a change of placement, the IEP team members, including you as a parent, may individually review the behavior intervention plan to determine whether modifications are necessary. If one or more members believe changes are necessary, the team shall meet to modify the plan and its implementation.

Manifestation Determination

Parent notice. Any time a school removes your child for drugs, weapons, dangerous behavior, or for other removals that constitute a change of placement because of a violation of the code of conduct that applies to all children, the school must notify you not later than the date on which the decision to take the action is made and provide you with a copy of procedural safeguards.

Review. Immediately, if possible, but no later than ten school days after the decision to change your child’s placement, the school must conduct a review of the relationship between your child’s disability and the behavior subject to the disciplinary action. The review must be conducted by the IEP team and other qualified personnel in a meeting.

The review team must consider all relevant information, including (1) evaluation and diagnostic results and other information supplied by you, (2) observations of your child, and (3) the IEP and placement.

The review team must then determine whether, in light of the behavior resulting in discipline, (1) the IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior strategies were provided consistent with your child’s IEP and placement; (2) your child’s disability did not impair his or her ability to understand the impact and consequences of the behavior; and (3) your child’s disability did not impair his or her ability to control the behavior.

If the team determines that all of the above standards were met, then the behavior will not be considered a manifestation of your child’s disability. If the team finds deficiencies in the IEP, placement or in the implementation of the services, it must take immediate action to remedy the deficiencies.  A parent or guardian can appeal a manifestation determination by use of the due process procedure.

If the team decides the behavior was not a manifestation of the disability, then your child may be disciplined consistent with discipline of students without disabilities except that educational services must continue and allow your child to progress in the general curriculum and to progress in meeting the goals of the IEP.

The meeting conducted for a manifestation review may occur at the same time the team reviews the behavior intervention plan.

Appeals

General. You have the right to ask for a hearing if you disagree with any disciplinary placement decisions or if you disagree with a determination that your child’s behavior was not a manifestation of your child’s disability. The state will provide an expedited due process hearing for appeals of disciplinary actions. In reviewing a decision with respect to the manifestation determination, the ALJ determines whether the school district has demonstrated that your child’s behavior was not a manifestation of his or her disability as described above. In reviewing a decision to place your child in an interim alternative educational setting for weapons or drugs, the ALJ applies the standards explained under “Removals for Dangerous Behavior” in this FYI.

If you are appealing the interim alternative educational setting or manifestation determination for drugs or weapons violations or dangerous behavior, your child remains in the interim alternative educational setting until the decision of the ALJ, appeal to court, or expiration of the 45-day time period, whichever occurs first unless the school and you agree otherwise. For all other hearings to challenge disciplinary decisions, your child remains in the current educational placement (placement prior to disciplinary action) during hearing proceedings unless the school and parents agree otherwise.

If a school proposes to change your child’s placement after expiration of an interim alternative placement and a parent challenges the proposed change of placement, your child must remain in his or her placement prior to the interim alternative placement pending the due process hearing decision. If school personnel believe that returning your child to his or her prior current placement during the pendency of the due process proceedings is dangerous to your child or others, they may request an expedited due process hearing.

In determining whether your child may be placed in the interim alternative educational setting or in another appropriate placement ordered by the ALJ, the standards explained under “Removals for Dangerous Behavior” in this FYI would be applied.

This document is an information service of the Washington Protection & Advocacy System (WPAS).   It provides general information only and should not be used as legal advice for any specific situation.  If you would like more information about this topic, call us and ask for a Resource Advocate.

To receive this document in an alternative format, such as large print or Braille, please call Washington Protection & Advocacy System (WPAS) at 1-800-562-2702.

WPAS is a member of the National Disability Rights Network
A substantial portion of the WPAS budget is federally funded.

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