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What You Need to Know about IDEA:
Suspending Children with Disabilities from School
by Pat Howey, Paralegal and Advocate

Note: This article is part of series of What You Need to Know about IDEA articles.

"The school sent my child with autism home for a weeklong cooling off period - can they do that?"

"The school suspended my child for misbehavior but didn't suspend the other children - can they do that?"

"The school sent my child home several times this year. He can't learn when he isn't in school. Can they do that?"

Everyone has questions about discipline - what schools can and cannot do, and how discipline procedures different for children with disabilities.

In What You Need to Know About IDEA: Suspending Children with Disabilities from School, Pat Howey answers questions from parents about suspensions - how long schools can suspend children, under what circumstances, what services schools must provide when children are removed from school, in-school suspenions, and basic issues of fairness.

The discipline statute in the Individuals with Disabilities Act of 2004 allows school personnel to suspend children with disabilities for up to 10 days for violations of a student code of conduct and to place children in interim alternative educational settings. The statute also includes the legal requirements for manifestation determinations, placement as determined by the IEP Team, appeals, authority of the hearing officer, and transfer of rights at the age of majority.

Questions

Question: My child has autism. He has difficulty communicating and gets frustrated. When he has an outburst, the school sends him home for a “cooling off period” of several days. He has been sent home for 4 or 5 “cooling off periods” in this school year. Is there a limit to the number of days the school can suspend him for behavior problems?

Yes. To protect your child from being suspended or removed too often for violating school rules, you need to know the law and how the law protects your child. You need to read the discipline statute in IDEA 2004 and the federal special education regulations about discipline. You will find links to both at the beginning of this article.

If your child violates a school rule or student code of conduct, the school can suspend your child for no more than 10 school days in a row. Student codes of conduct are usually written policies adopted by school boards.

Question: But that is not what is happening in my child’s case. The school is suspends him for several days at a time, but they do not suspend him for 10 days in a row. Is there a limit on the number of days the school can suspend a child in a school year?

You know that the school cannot suspend your child for more than 10 days in a row for violating school rules or a student code of conduct. If the school wants to suspend your child for more than 10 days, they must determine if his behavior was caused by his disability. This is called “manifestation determination.” If the school determines that your child’s behavior was not a result (manifestation) of his disability, the school may use the same discipline procedures as with non-disabled children. We’ll discuss manifestation determinations later, in another article.

However, if the school suspends or expels your child or removes him from his current placement, the school must continue to provide him with a free appropriate public education (FAPE). The law states that a child who is suspended or expelled shall continue to receive educational services, participate in the general education curriculum, and make progress toward his IEP goals.

In addition, your child should receive a functional behavioral assessment. Sometimes, schools forget to do functional behavioral assessments so you may need to write letter requesting a functional behavior assessment or get a behavioral assessment on your own. We will discuss functional behavioral assessments later, in another article. Based on the findings of the functional behavioral assessment, the school is to provide behavioral intervention services and modifications designed to address his problem behaviors so they do not reoccur.

Not necessarily. The U.S. Department of Education says that if your child takes part in the general curriculum, continues to make progress toward her IEP goals, and continues to participate with children who are not disabled to the same extent she does in her current placement, in-school suspensions do not count toward the 10-day rule. You can read about this in the Commentary about Discipline, beginning on page 46715.

Schools may be unfair when they discipline children. The school cannot give a child with a disability a more severe punishment than it gives to non-disabled children. The U.S. Department of Education says that schools may suspend children with IEPs “to the same extent that it would apply such a discipline measure to a child without a disability.” You can read this for yourself in the Commentary about Discipline, beginning on page 46715.

Discipline & IDEA 2004 Resources

What Are the School's Obligations to Children with Emotional and Behavior Problems? A teacher asks, "What obligations do we have to a student with behavior problems? Must we continue to provide special education services if we believe he is a danger to himself or others? What about the safety of the other students, teachers, and administrators?" Pete answers these questions with a few of his own - and offers a plan to help the child.

IDEA 2004: What You Need to Know About IEPs for Children with Behavior Problems - IDEA 2004 and the special education regulations include specific requirements for IEPs of children whose behavior impedes their learning or the learning of other children, including training teachers to use positive behavioral interventions and strategies.

What to Do When Schools Have Children Arrested for School-Related Behaviors - Pete Wright offers strategies to turn this negative experience into a positive outcome for the child.

Topic Brief: Discipline - New standards for manifestation determinations; new authority for school personnel; new standard for "special circumstances"; definition of serious bodily injury; authority of hearing officer; expedited hearings (3 pages)

Discipline and the ADHD Child. "If we can teach elephants, lions and tigers to behave, we can teach our children with ADHD to behave."; In response to a grandmother's plea for help, Pete shares four rules of discipline; what he did, never did, and why.

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Meet Pat Howey

Patricia Howey has supported families of children with disabilities since 1985. She has a specific learning disability and became involved in special education when her youngest child entered kindergarten. Pat has children, grandchildren, and great-grandchildren who have a variety of disabilities and she has used her experience to advocate for better special education services for several of them.

Pat is a charter member of the Council of Parent Attorneys and Advocates (COPAA), serving on its Board of Directors from 2000 through 2003. She has been a Commissioner on the Tippecanoe (County) Human Relations Committee, a graduate of Leadership Lafayette and Partners in Policymaking, and a member of the Wrightslaw Speakers Bureau. She has been on the faculty of the College of William and Mary Law School’s Institute of Special Education Advocacy since its inception in 2011.

Pat has an A.S. and a B.A. in Paralegal Studies from Saint Mary-of-the-Woods College, where she graduated magna cum laude. She is an Indiana Registered Paralegal and an affiliate member of the Indiana Bar and the American Bar Associations.

Pat began her advocacy career as a volunteer for the Task Force on Education for the Handicapped (now InSource), Indiana’s Parent Training and Information Center. In 1990, she opened her advocacy practice and served families throughout Indiana by representing them at IEP meetings, mediation, and due process hearings.

In 2017, Pat closed her advocacy practice and began working on a contract basis as a special education paralegal. Attorneys in Indiana, Texas, and California contracted with her to review documents, spot issues, draft due process complaints, prepare for hearings, and assist at hearings. In January 2019, she became an employee of the Connell Michael Kerr law firm, owned by Erin Connell, Catherine Michael, and Sonja Kerr. Her duties have now expanded to assisting with federal court cases.

"Changing the World -- One Child at at Time."

Contact Information

Patricia L. Howey, B.A., IRP
POB 117
West Point, Indiana 47992-0117
E-mail: specialedconsulting@gmail.com
Webpage: https://cmklawfirm.com/