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Special Education: Your rights under the Individuals with Disabilities Education Act (IDEA) in disciplinary actions against students with disabilities

What is the Individuals with Disabilities Education Act (IDEA)?
IDEA, 20 U.S.A. 1400 et. seq., is a federal law which entitles all students with disabilities to have available to them a free appropriate public education emphasizing special education and related services designed to meet their unique needs. It also assures that the rights of children with disabilities and their parents are protected. 20 U.S.C. 1400 (c). On June 4th, 1997, President Clinton in signed into law a number of amendments to IDEA. New provisions governing disciplinary actions went to effect on that date.

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If my child with a disability is suspended or expelled from school, is he/she still entitled to receive a free appropriate public education?
Yes. A student with a disability is entitled to continue to receive a free appropriate education even if she/he has been suspended or expelled from school. 20 U.S.C. 1412 (a)(1)(A).

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Can school personnel order a change in the placement of my child?
Yes. School personnel may order a change in the placement of a child with a disability to an "appropriate interim alternative educational setting", another setting, or suspension for not more than 10 school days (to the extent that such alternatives would be applied to children without disabilities). 20 U.S.C. 1415 (k)(1)(A)(I).

If your child carries a weapon to school or to a school function or knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function, school personnel may order a change in the placement to an appropriate alternative educational setting for not more than 45 days. 20 U.S.C. 1415(k)(1)(A) (ii)

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What is a "weapon" within the meaning of IDEA?
A "weapon" is defined as 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. It does not include a pocket knife with a blade of less than 2 _ inches in length. 20 U.S.A. 1415(k)(10)(D), citing 18 U.S.C. 930(g)(2).

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What procedures must be followed if school personnel change my child's educational placement?
On the day the disciplinary decision is made, you must be notified of the school personnel's decision and of all procedural safeguards. 20 U.S.C. 1415(k)(4)(A)(I).

There must be an Individual Education Plan (IEP) team meeting within 10 days for the following purposes:

  1. For a determination of whether or not there is a relationship between your child's disability and his/her behavior. This is called the "manifestation determination review". 20 U.S.C. 1415(k)(4)(A)(ii).
  2. If your child had a behavioral intervention plan, the IEP team must review and modify the plan as necessary, to address the behavior. 20 U.S.C.1415 (k)(1)(B)(ii).
  3. If the school district did not conduct a "functional behavioral assessment" and implement a "behavioral intervention plan" for your child before the behavior occurred, the IEP team must develop an assessment plan to address the behavior. 20 U.S.C. 1415(k)(1)(B)(I).

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When is a "manifestation determination review" required?
All students with disabilities who are subject to disciplinary procedures which consist of suspension of any length and/or expulsion must have manifestation determination review. 20 U.S.C. 1415(k)(4)(A).

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When must a manifestation determination review be held?
Immediately, if possible, but in no case later than 10 school days after the date the disciplinary decision is made. 20 U.S.C. 1415(k)(4)(A)(ii).

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Who participates in a manifestation determination review?
This review is conducted by the IEP team, which includes parents and the student, and other qualified professionals. 20 U.S.C. 1415(k)(4)(B).

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What does the IEP team look at in making the determination as to whether or not my child's behavior was related to his/her disability?
Under 20 U.S.C. 1415(k)(4)(C). the IEP team is allowed to find that the behavior of your child was not a manifestation of his/her disability only after:

  1. Considering all relevant information about your child's behavior including:

    1. evaluation and diagnostic results, including information provided by parents,
    2. observations of your child, and
    3. your child's IEP and placement.

  2. And then determining that in relationship to your child's behavior:

    1. your child's IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior integration strategies were provided consistent with your child's IEP and placement,
    2. your child's disability did not impair his/her ability to understand the impact and consequences of his/her behavior, and
    3. your child's disability did not impair his/her ability to control his/her behavior.

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What happens to my child if the IEP team determines that his/her behavior was not a manifestation of his/her disability?
If the IEP team determines that the behavior is not related to your child's disability, disciplinary procedures applied to students without disabilities may be applied to your child. However, the school district has to continue to provide your child with a free appropriate public education. 20 U.S.C. 1415(k)(5)(A).

If the school district goes forward with disciplinary procedures, your child's special education and disciplinary records must be taken into consideration by the person(s) making the final disciplinary decision. 20 U.S.C. 1415(k)(5)(B).

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Who determines what an appropriate interim alternative setting is for my child if he/she brought weapon or illegal drugs to school?
The appropriate alternative setting is determined by the IEP team which includes you and your child. 20 U.S.C. 1415(k)(3)(A).

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Are there any requirements that must be considered in determining an appropriate interim alternative setting for my child?
Yes. Under 20 U.S.C. 1415(k)(3)(B) any interim alternative setting must be selected so that your child:

  1. Continues to participate in the general curriculum, although in another setting;
  2. Continues to receive those services and modifications included in his/her current IEP, that will enable him/her to meet the goals set out in it; and
  3. Receives those services and modifications designed to address the behavior(s) at issue so that it does not reoccur.

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Can I contest the disciplinary actions taken by the local education agency?
Yes. If you disagree with a determination that your child's behavior was not a manifestation of his/her disability or with an alternative placement decision, you may request an expedited hearing. 20 U.S.C. 1415(k)(6)(A).

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If I file for an expedited hearing, where does my child go to school?
Typically, your child remains in his/her current educational setting and his/her current IEP is fully implemented during the duration of the hearing and any appeals. This is referred to as the "stay put" provision. This may change only if you and the school district mutually agree to another placement pending the outcome of your hearing. 20 U.S.C. 1415(j).

If, however, you are requesting an expedited hearing challenging a manifestation determination or the alternative placement decision, your child remains in the interim alternative education setting pending the decision of the hearing officer or until the expiration of the 45 days, whichever occurs first. This may change only if you and the school district mutually agree to another placement pending the outcome of your hearing. 20 U.S.C. 1415(k)(7)(A).

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How does a hearing officer order a change in the placement of my child?
A hearing officer may, pursuant to 20 U.S.C. 1415(k)(2), order a change in the placement of your child to an appropriate interim alternative educational setting for not more than 45 days, but only if the hearing officer:

  1. Determines that the public agency has proved by a preponderance of the evidence that maintaining the current placement of your child is substantially likely to result in injury to him/her self or to others;
  2. Considers the appropriateness of your child's current placement;
  3. Considers whether the public agency has made reasonable efforts to minimize the risk of harm in your child's current placement, including the use of supplementary aids and services; and,
  4. Determines that the interim alternative educational setting enables your child to:

    1. participate in the general curriculum, although in another setting;
    2. continue to receive those services and modifications included in his/her current IEP that will enable him/her to meet the goals set out in the IEP; and,
    3. receive those services and modifications designed to address the behaviors at issue so it does not reoccur.

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Can the local educational agency report my child's behavior to law enforcement and judicial authorities?
Yes. An agency may report a crime committed by a student with a disability to appropriate authorities. However, the school district must ensure that copies of the special education and disciplinary records of the student are transmitted for consideration by the authorities. 20 U.S.C. 1415(9).

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Should I obtain legal advice if my disabled child is subjected to disciplinary action?
Seeking legal advice or representation is wise. If you do not know an attorney or cannot afford one, you may contact:

Nevada Disability Advocacy & Law Center
1201 Terminal Way, Suite 219
Reno, Nevada 89502
775-333-7878
775-788-7824 (TTY)
775-788-7825 (fax)
1-800-992-5715 (toll-free)

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Special Education LinksThe following Web sites may provide additional information or assistance regarding special education issues:

U.S. Department of Education
http://www.ed.gov/offices/OSERS/IDEA/geninfo.html

Nevada Disability Advocacy & Law Center
http://www.ndalc.org

Special Ed Advocate
http://www.wrightslaw.com/

Technical Assistance Alliance for Parents Centers
http://www.taalliance.org/

IDEA Amendments, misc. info
http://www.empowermentzone.com/ideaprop.txt

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