AR 5144.2
Students
Suspension and Expulsion/Due
Process (Students with Disabilities)
A student identified as an individual with
disabilities pursuant to the Individuals with Disabilities Education Act (IDEA)
is subject to the same grounds for suspension and expulsion which apply to
students without disabilities.
Procedures for Students Not Yet Eligible for Special
Education Services
A student who has not been officially identified as a
student with disabilities pursuant to IDEA and who has violated the district's
code of student conduct may assert the procedural safeguards granted under this
administrative regulation only if the district had knowledge that the student
is disabled before the behavior that precipitated the disciplinary action
occurred. (20 USC 1415(k)(5))
The district shall be deemed to have knowledge that
the student has a disability if one of the following conditions exists: (20 USC 1415(k)(5);
34 CFR 300.527)
1. The
parent/guardian has expressed concern to supervisory or administrative district personnel in writing, or orally if the
parent/guardian does not know how
to write or has a disability that prevents a written statement, that the
student is in need of special education or related services.
2. The
parent/guardian has requested an evaluation of the student for special
education pursuant to 34 CFR 300.530-300.536.
3. The
teacher of the student, or other district personnel, has expressed specific concerns directly to the district's
director of special education or to other
supervisory district personnel about a pattern of behavior demonstrated by the
student.
The district would be deemed to not have knowledge
that a student is disabled if the parent/guardian has not allowed the student
to be evaluated for special education services or has refused services. In addition, the district would be deemed to
not have knowledge if the district conducted an evaluation and determined that
the student was not an individual with a disability. When the district is deemed to not have
knowledge of the disability, the student shall be disciplined in accordance
with procedures established for students without disabilities. (20 USC 1415(k)(5))
If a request is made for an evaluation of a student
during the time period in which the student is subject to disciplinary
measures, the evaluation shall be conducted in an expedited manner. Until the evaluation is completed, the
student shall remain in the educational placement determined by school
authorities. (20 USC 1415(k)(5); 34 CFR 300.527)
MetroED and
Suspension
The Superintendent or designee may suspend a student
with a disability for up to 10 consecutive school days for a single incident of
misconduct, and for up to 20 school days in a school year, as long as the
suspension(s) does not constitute a change in placement pursuant to 34 CFR
300.519. (Education Code 48903; 34 CFR 300.520)
The principal or designee shall monitor the number of
days, including portions of days, that students with
valid individualized education programs (IEP) have been suspended during the
school year.
Services During Suspension
Any student suspended for more than 10 school days in
a school year shall continue to receive services during the term of the
suspension, to the extent necessary to provide the student a free and
appropriate public education. (20 USC
1412(a)(1)(A); 34 CFR 300.520)
If a student with disabilities is excluded from
school bus transportation, the student shall be provided with an alternative
form of transportation at no cost to the student or parent/guardian, provided
that transportation is specified in the student's IEP. (Education Code 48915.5)
Interim Educational Placement Due to Dangerous
Behavior
A student with a disability may be placed in an
appropriate interim alternative educational setting for up to 45 school days,
without regard as to whether the behavior is a manifestation of the student's
disability, when the student commits one of the following acts while at school,
going to or from school, or at a school-related function: (20 USC 1415(k)(1)(G);
34 CFR 300.520)
1. Carries
or possesses a weapon, as defined in 18 USC 930
2. Knowingly
possesses or uses illegal drugs
3. Sells
or solicits the sale of a controlled substance as identified in 21 USC 812(c),
Schedules I-V
4. Inflicts
serious bodily injury upon another person as defined in 18 USC 1365
The student's alternative educational setting shall
be determined by his/her IEP team. (20 USC 1415(k)(1)(G))
Procedural Safeguards/Manifestation Determination
The following procedural safeguards shall apply when
a student is suspended for more than 10 consecutive school days, when
disciplinary action is contemplated for a dangerous behavior as described
above, or when a change of placement is contemplated due to a violation of the
district's code of conduct:
1. The
parents/guardians of the student shall be immediately notified of the decision
and provided the procedural safeguards notice pursuant
to 34 CFR 300.504 on the day the decision
to take action is made. (20 USC 1415(k)(1)(H))
2. Immediately
if possible, but in no case later than 10 school days after the date of the
decision, a manifestation determination review shall
be made of the relationship between the student's disability and the behavior
subject to the disciplinary action. (20 USC 1415(k)(1)(E))
At the manifestation determination review, the
relevant members of the IEP team, the district and parent/guardian shall review
all relevant information in the student's file including the student's IEP, any
teacher observations, and any relevant information provided by the
parents/guardians to determine whether the conduct in question was either of
the following: (20 USC 1415(k)(1)(E))
a. Caused by, or had a direct and
substantial relationship to, the student's
disability
b. A direct result of the district's
failure to implement the student's IEP
If
the manifestation review team determines that the conduct was caused by either
#a or #b above, the conduct shall be determined to be a manifestation of the student's disability.
(20 USC 1415(k)(1)(F))
3. If
the manifestation determination review team has determined that the conduct was
a result of the student's disability, the IEP team shall conduct a functional behavioral
assessment as specified below. The
student shall be returned to the placement from which he/she was removed, unless the parent/guardian and district agree
to a change of placement as part of the modification of the behavioral intervention plan. (20 USC 1415(k)(1)(F))
4. If
the manifestation determination review team determines that the student's
behavior was not a manifestation of his/her disability, the student may be disciplined in accordance
with the procedures for students without disabilities. The student shall
continue to receive services to
the extent necessary to participate in the general education curriculum,
although in another setting, and to progress toward meeting the goals set out in the student's IEP. (20 USC 1415(k)(1)(D))
Behavioral Assessment and Intervention Plan
The IEP team shall conduct a functional behavioral
assessment and implementation plan for a student who has been removed because
of dangerous behavior, or whose behavior was determined to be a manifestation
of his/her disability, or whose behavior was determined not to be a
manifestation of his/her disability. If the student already has an existing
functional behavioral assessment, the team shall modify the assessment, as
appropriate, to address the behavioral violation so that it does not recur. (20 USC 1415(k)(1)(C),(D),
(F))
Due Process Appeals
If the parent/guardian disagrees with the
determination that the student's behavior was not a manifestation of his/her
disability or with any decision regarding placement, the parent/guardian has a right
to appeal the decision to a hearing officer.
(20 USC 1415(k)(3); 34 CFR 300.525)
If the student's parent/guardian initiates a due
process hearing to challenge the interim alternative educational placement or
the manifestation determination, the student shall remain in the interim
alternative educational setting pending the decision of the hearing officer or
the expiration of the 45-day time period, whichever occurs first, unless the
parent/guardian and district agree otherwise.
(20 USC 1415(k)(4); 34 CFR 300.526)
If school personnel maintain
that it is dangerous for the student to be placed in the current placement
(placement prior to removal to the interim alternative education setting) while
the due process proceedings are pending, the Superintendent or designee may
request an expedited due process hearing.
(20 USC 1415(k)(4); 34 CFR 300.526)
Services During Expulsion
Any student with a disability who is expelled shall
continue to receive services during the term of the expulsion to the extent necessary
to provide the student a free and appropriate public education. Any alternative
program must provide services to the extent necessary to enable the student to
appropriately progress in the general curriculum, although in another setting,
and appropriately advance toward achieving the goals set out in the student's
IEP. (20 USC 1412(a)(1)(A);
34 CFR 300.121, 300.520)
Readmission
Readmission procedures for students with disabilities
shall be the same as those used for all students. Upon readmission, an IEP team meeting shall
be convened.
Suspension of Expulsion
The Governing Board's criteria for suspending the
enforcement of an expulsion order shall be applied to students with
disabilities in the same manner as they are applied to all other students. (Education Code 48917)
Notification to Law Enforcement Authorities
Prior to the suspension or expulsion of any student
with a disability, the principal or designee shall notify appropriate city or
county law enforcement authorities of any act of assault with a deadly weapon
which may have violated Penal Code 245.
(Education Code 48902)
The principal or designee also shall notify
appropriate city or county law enforcement authorities of acts by any student
with a disability which may involve the possession or sale of narcotics or of a
controlled substance or possession of weapons or firearms in violation of Penal
Code 626.9 and 626.10. (Education Code 48902)
Within one school day after a suspension or expulsion
of a student with disabilities, the principal or designee shall notify
appropriate city or county law enforcement authorities, by telephone or other
appropriate means, of any act by the student which may violate Education Code 48900(c) or (d), relating
to the possession, use, offering or sale of controlled substances, alcohol or
intoxicants of any kind. (Education Code
48902)
Legal Reference:
EDUCATION
CODE
35146 Closed
sessions (re suspensions)
35291 Rules
(of governing board)
48900-48925 Suspension and expulsion
56000 Special education; legislative
findings and declarations
56320 Educational
needs; requirements
56321 Development
or revision of individualized education program
56329 Independent
educational assessment
56340-56347 Individual education program teams
56505 State
hearing
PENAL
CODE
245 Assault
with deadly weapon
626.2 Entry
upon campus after written notice of suspension or dismissal without permission
626.9 Gun-Free
School Zone Act
626.10 Dirks,
daggers, knives, razors or stun guns
UNITED
STATES CODE, TITLE 18
930 Weapons
1365
Serious bodily injury
UNITED
STATES CODE, TITLE 20
1412
State eligibility
1415 Procedural
safeguards
UNITED
STATES CODE, TITLE 21
812(c)
Controlled substances
UNITED
STATES CODE, TITLE 29
706 Definitions
794 Rehabilitation
Act of 1973, Section 504
CODE
OF FEDERAL REGULATIONS, TITLE 34
104.35 Evaluation
and placement
104.36 Procedural
safeguards
300.1-300.756
Assistance to states for the education of students with disabilities
COURT
DECISIONS
Parents
of Student W. v.
M.P. v. Governing Board of
Honig v. Doe, (1988) 484
Doe
v. Maher, (1986) 793 F.2d 147
Adopted:
Revised: