Discipline and the Special Education Student

By: Giulia Frasca, Esq.

The Justice Department conducted a study that shows that although children with special needs who receive special education services comprise twelve percent (12%) of the nation’s students, they constitute nineteen percent (19%) of students disciplined with either a suspension or expulsion. These percentages indicate that school districts often fail to understand the rights of students with disabilities and proactively provide positive behavioral supports.

The Individuals with Disabilities Education Act (IDEA) and the Americans with Disabilities Act (ADA) protect the rights of students with disabilities in that they cannot legally be subjected to long suspensions or expulsions for behaviors that are manifestations of their disabilities. Under New York State law, which applies to all students, whether classified or not, a “short-term suspension” is defined as five days or less. The Principal of the school can issue a short-term suspension. The parents have a right to an informal conference. The parent must receive twenty-four hour notice of the suspension and tutoring must begin, technically, immediately; however, this rarely happens.

Under New York State law, a “long-term suspension” is defined as a suspension that lasts more than five days. Long-term suspensions can only be issued by the Superintendent of the district and only after the Superintendent conducts a hearing to determine innocence or guilt. Witnesses may be called and cross-examined at the “Superintendent’s Hearing.”

Under the federal special education law (IDEA), a suspension in excess of ten school days constitutes a “change in placement,” and cannot be issued without going through the CSE. It is important to note that “ten days” can either mean ten consecutive days, or a series of short-term suspensions that add up to ten days if they are a part of a pattern of suspensions.

If a school district is seeking to suspend a student with a disability for longer than 10 days, it must conduct a manifestation determination. The “Superintendent’s Hearing”, discussed above, must occur first. If the student is found “guilty” at the Superintendent’s Hearing, the manifestation determination must be scheduled. CSE members, including the parent, attend the manifestation determination and make the determination. The CSE team will review information such as the student’s IEP, teacher observations, information from the parent and, sometimes, testimony from the student. The objective of the manifestation determination is to determine whether the conduct for which the district seeks to discipline the student was caused by, or had a direct and substantial relationship with the student’s disability, and/or was the conduct a direct result of the district’s failure to implement the student’s IEP.

If the conduct at issue is determined to be a manifestation of the student’s disability, the student must be returned to the placement from which he or she was removed unless the parent and the district agree upon a new placement.

If the CSE team has not yet conducted a Functional Behavioral Assessment (FBA), one must be conducted and a Behavioral Intervention Plan (BIP) must be developed. If the child already has a BIP, the CSE must review and modify the BIP in consideration of the conduct that led to the suspension and with the goal of preventing similar behavior in the future. If the behavior was a direct result of the district’s failure to implement the IEP, it is the district’s responsibility to immediately remedy those deficiencies. See Part 201 of the Regulations of the Commissioner of Education. If the school district does not follow the steps described above with regard to suspending a student for more than ten days, it is in violation of law.

Studies show that “reprimands, detentions and exclusion” are ineffective means of modifying student behavior and that forcing a student to be absent from school for long periods of time actually increases dropout rates, especially for students with special needs. See Discipline and the Special Ed Student, Maureen E. Hook, Ph.D. date February 14, 2014. This leads to an increased likelihood of unemployment and economic dependence for students with special needs. Rather than remediating the behaviors, suspending a student with special needs can have an unintended, detrimental effect on the student and ultimately society as a whole.

Students with special needs often exhibit associated behavioral issues and challenges and may require concrete examples of prohibited behaviors and conduct. They may have difficulty understanding the school’s disciplinary code as written. A student’s specific disability may also play a role in the behaviors exhibits. See Discipline and the Special Ed Student, Maureen E. Hook, Ph.D. date February 14, 2014. For example, a child with Tourette’s syndrome may shout something inappropriate, or repeatedly engage in conduct that is disruptive to others such as tapping, or fidgeting. A student with ADHD may have an outburst due to his or her disability. A student with autism may engage in flapping, banging or other stimulatory behavior. Before the student is disciplined, the relationship of the student’s disability with the offending behavior should be considered.

The movement from self-contained classrooms to the mainstream learning environment may influence certain conduct in students with special needs because there are many more factors that could stimulate, and/or cause anxiety or stress in a student with special needs. They face additional social, emotional, academic and environmental stressors and challenges. These challenges increase as students with special needs transition from elementary school to middle school and from middle school to high school. The predictability and flexibility of their daily schedules are no longer present. See Discipline and the Special Ed Student, Maureen E. Hook, Ph.D. date February 14, 2014.

While there may be benefits to receiving instruction in the least restrictive environment as required by the IDEA, the mainstream setting may not be appropriate for all children with special needs. It is necessary for the IEP team to consider each student’s special needs. For example, a student diagnosed with a processing disorder may not be able to maintain his or her focus any may miss crucial information in an ELA class with 25 students. The same may be true for students with hearing impairment. A student with attention issues may have trouble attending to task for extended periods of time. The implementation of common core standards and an increased emphasis on test results may often render it difficult for teacher to be able to individualize programs for students with special needs in the mainstream setting. Funding cuts also make it difficult for school district to provide students with special needs appropriate individualized instruction. See Discipline and the Special Ed Student, Maureen E. Hook, Ph.D. date February 14, 2014.

For these reasons, violations of the IDEA have been increasing. Littman Krooks LLP’s special education department works diligently with families of children with special needs to help them obtain a free appropriate public education for their children. To learn more about the Special Education Process at Littman Krooks, click here.

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