Students with disabilities are afforded special privileges and protections under the law to ensure they are both treated equally and provided the same educational opportunities in an environment comparable to their non-disabled peers. Many may wonder if students with disabilities are able to be disciplined due to the protections they receive, and if so, to what extent. In truth, the answer is quite simple, yes, students with disabilities can be disciplined, so long as the disciplinary actions taken against them are in accordance with state and federal law, however, as the saying goes, “the devil is in the details”.
School districts have the right to remove a disabled student from school as long as they abide by the procedures and safeguards set forth in both federal and state law regulations (20 USC § 1415(k); 34 CFR §§ 300.530-37; Educ. Law § 3214(3)(g). 440(1); 8 NYCRR Part 201). However, students with disabilities attending summer school are entitled to the same discipline safeguards applicable during the regular school year (LIH v. N.Y City Bd. of Educ., 103 F.Supp2d 658 (E.D.N.Y 2000)).
To whom may suspend a student with a disability depends on the length of the suspension removal. A school board, superintendent, or principal may order the placement of a disabled student into an appropriate interim alternative educational setting (IAES), another setting, or suspension for a period that does not exceed more than five consecutive school days. In addition, this suspension may not exceed the amount time that a non-disabled student would receive for the same behavior (20 USC § 1415(k)(1)(B); 34 CFR § 300.530(b)(1); 8 NYCRR § 201.7(b)).
For suspensions up to ten consecutive school days, the superintendent of schools either may directly, or upon the recommendation of a hearing officer designated to conduct a student disciplinary hearing (pursuant to Education Law section 3214(3)(c),(g)) may issue such disciplinary suspensions that include the placement into an appropriate IAES, or other setting. The duration of the superintendent’s disciplinary suspension also may not exceed the time that a non-disabled student would receive in the same instance (20 USC § 1415(k)(1)(B); 34 CFR § 300.530(b)(1); 8 NYCRR § 201.7(c)). However, the superintendent may order additional suspensions, so long as they do not exceed more than ten consecutive school days in the same year. Additionally, they must pertain to separate incidents of misconduct that do not constitute a disciplinary change of placement.
Furthermore, under New York law, the school district must conduct a disciplinary hearing to determine the student’s guilt of the misconduct before a suspension penalty beyond five days may be imposed (Educ. Law § 3214(3)(g)). The same law applies both toward students who have a disability, and those who have been declassified (Educ. Law § 3214(g)(2); 8 NYCRR § 201.5; Appeal of a Student Presumed to Have a Disability, 35 Ed Dept Rep 492 (1996).
Limitations on the Authority to Suspend or Remove a Student with a Disability
According to New York law, students with disabilities may not be suspended or otherwise removed from school for either a five or ten-day period if the suspension or removal would result in a disciplinary change in placement based on a pattern of suspensions or removals (20 USC § 1415(k)(1)(B); 34 CFR § 300.530(b)(1); 8 NYCRR § 201.7(d).
Additionally, according to the U.S Department of Education, Office of Civil Rights Midwestern Division, Kansas City (Mo.), an in-school suspension may result in a significant change in placement or count towards a pattern of suspension or removals that violates Section 504 of the Rehabilitation Act. This law, however, in dependent on the nature and quality of services provided to the student, and their comparability to services provided prior to the in-school suspension (Dunkin (Mo) R-V Sch. Dist., OCR Decision, 52 IDELR 138 (Jan. 2009)).
Justifying a Disciplinary Change in Placement
Generally, the suspension, or removal of a disabled student constitutes a disciplinary change in placement if it is for A); more than ten consecutive school days (34 CFR § 300.536(a)(1)) or B); ten consecutive school days or less, if the student is subjected to a series of suspensions or removals that add to more than ten school days in a year. Another plausible scenario is if the child’s behavior is substantially similar to behavior in prior incidents that resulted in suspension or removal, and because of factors, such as the length of each suspension or removal, the amount of time the child is removed, and the time in between suspensions and removals (34 CFR § 300.536(a)(2); 8 NYCRR § 201.2(e)).
There is no general rule or law that justifies a disciplinary chance of placement, therefore, determination is examined on a case by case basis, and depends on the particular student, as well as facts involved. These cases are subject to review through due process and judicial proceedings (34 CFR § 300.536(b); 8 NYCRR § 201.2(e)). School districts must inform parents of any decision that subjects their child to a suspension or removal that constitutes a disciplinary change in placement based on the student’s violation of the student code of conduct on the same date that such a decision is made. In addition to this notice, the district must also provide the student’s parents a copy of their procedural safeguards ( 34 CFR § 300.530(h).
Exceptions to the Disciplinary Change in Placement Rule
There are exceptions to the rules imposed upon changing the placement of students with disabilities. A student with a disability may be suspended or removed from school for a period that would otherwise constitute a disciplinary change in placement if the manifestation team determines that the student’s behavior was not a manifestation of the student’s disability, or if it involves the placement of a student in an IAES for behavior relating to the infliction of serious bodily injury upon another, poses risk of harm on the student or others, or is involved with the handling of illegal drugs or substances (20 USC § 1415(k)(1)(C); 34 CFR § 300.530(a); 8 NYCRR § 201.7(f)).
Understanding Interim Education Settings
An interim alternative education setting (IAES) can be described as a temporary educational placement determined by the committee on special education, other than the student’s current placement at the time the behavior subject to disciplinary actions occurred (20 USC § 1415(k)(2); 34 CFR § 300.531; 8 NYCRR § 201.2(k).
A school superintendent may elect to place a student in an IAES for the same amount of time that a child without a disability would be subject to, so long as the discipline does not exceed more than 45 school days for each instance where the child:
Additionally, an impartial hearing officer (IHO) may order the placement of a child into an IAES for up to 45 school days at a time if the school can provide evidence to justify that the return of the child into his or her previous class placement is substantially likely to result in the injury to the child or others. The IHO must also take the child’s current placement into consideration and weigh if the district has taken steps to minimize the risk of harm in the child’s current placement, and determine whether the proposed IAES will provide the student with the required level of services that must be provided in an IAES.
Though schools are prohibited from discriminating against students with disabilities based on their disability, students may be placed in an IAES on grounds of dangerousness and for misconduct relating to the infliction of serious bodily injury, possessing or using weapons, illegal drugs, or controlled substances even if the behavior triggering the placement was a result of the student’s disability (20 USC § 1415(k)(1)(G); 34 CFR § 300.530(g); 8 NYCRR §§ 201.9(c)(3).
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