disciplining special education students to conduct a manifestation determination: ... consider all...
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D R . S A M U E L F R A N C I S S C H O O L L A W S Y M P O S I U M
T R I S T A T E A R E A S C H O O L S T U D Y C O U N C I L A N D
T H E U N I V E R S I T Y O F P I T T S B U R G H
Disciplining Special Education Students
Patricia R. Andrews 412-243-9700
PARC CONSENT DECREE
ID students have more discipline protections than others
1972 PARC Consent Decree
No ID student shall be denied access to public education
ID child’s placement cannot be changed for even 1 day without the IEP Team’s approval
Exceptions:
Weapons Possession
Drug Violations
Procedural Due Process
State Due Process Rights before removal Every child is entitled to same protections
Informed of reasons for suspension
Given opportunity to respond
Parents notified immediately in writing of suspension
Informal hearing for suspensions exceeding 3 days
Allow student to meet with school officials and explain circumstances of events
Show why student should not be suspended
Held within 5 days of suspension
Make up exams and missed work
Formal hearing for expulsions
Behavior Management
PBSPs are required for children whose behavior impedes learning
Must be based on a functional behavior assessment
Strategies must be positive rather than punitive measures
Methods that utilize positive reinforcement to shape behavior
Utilize behavior management to AVOID discipline issues
SHORT TERM DISCIPLINE
Authority of School Personnel
Children with disabilities get more protections in discipline
NOT LESS!
Children with mental retardation get the most protections!
Placement cannot be changed unilaterally by District for even one day
REVIEW EVALUATION REPORTS!
SHORT TERM DISCIPLINE
Case by Case Determination
Determinations of discipline for special ed students should be individualized
Must consider “unique circumstances” when determining whether to discipline
Has the child been disciplined in the past?
If so, for how long?
What were the circumstances surrounding the behavior?
Is there a PBSP?
Does it address the behavior?
Has the child shown improvements in controlling the behavior?
Is this a new behavior not yet addressed by the Team?
SHORT TERM DISCIPLINE
Suspensions:
Can remove child for 10 consecutive school days
To same extend such removals are applied to children without disabilities
Does not require IEP meeting
Does not require parental consent
Does require notice and informal hearing pursuant to Chapter 12
Not considered a change of placement
SHORT TERM DISCIPLINE
Additional short term suspensions
IDEA permits additional 10 day suspensions for each disciplinary infraction as long as it is not considered a pattern
PA law limits the total number of suspensions days in a school year to 15
Be careful about suspending for the 11-15th day if the behavior constitutes a pattern
SHORT TERM DISCIPLINE
What is a day?
IDEA: a day or portion of a day
Suspending for a portion of a day counts towards one of the 10 consecutive and 15 cumulative days
SHORT TERM DISCIPLINE
BEWARE OF CONSTRUCTIVE SUSPENSIONS!
“asking” parents to keep a child home or take a child home early
“suggesting” to a parent that the child sees a psychiatrist before s/he returns to school
Keeping child in “time out” in the principals office all day, everyday
Ask yourself: is this a change from the agreed upon placement?
SHORT TERM DISCIPLINE
SUGGESTIONS:
Use behavior management
Convene and reconvene IEP Team meetings
Don’t wait until the 10th day
Consider “unique circumstances”
Keep track of your days
Use days cautiously!
Chances are you will need them!
LONG TERM DISCIPLINE
Manifestation Determinations
Child may be subject to long term removals if the behavior was not a manifestation of the child’s disability
More than 10 consecutive days
More than 15 cumulative school days
Suspensions between 11-15 days that constitute a pattern
Any suspension for an ID child
Who makes the decision:
LEA
Parents
Other relevant members of the IEP Team
as determined by parents and LEA
LONG TERM DISCIPLINE
When to conduct a manifestation determination:
Within 10 school days
Of any decision to change the placement of a child with a disability because of a violation of the code of conduct
LONG TERM DISCIPLINE
Conducting a manifestation determination:
Consider all relevant information in the student’s file:
IEP
Teacher observations
Any relevant information from the parents
Determine:
If the conduct in question was caused by, or had a direct and substantial relationship to the child’s disability; or
If the conduct was the direct result of the LEA’s failure to implement the IEP
LONG TERM DISCIPLINE
Was the conduct in question caused by, or had a direct and substantial relationship to the child’s disability?
Does the student have severe intellectual impairment that may result in impaired judgment and/or reasoning?
Could the student understand that the behavior was wrong?
Did the effects of a severe emotional disturbance have a direct relationship to the behavior?
Did a neurological impairment or medical condition directly impact and/or produce involuntary or uncontrollable behavior?
Tourette Syndrome or ADHD
LONG TERM DISCIPLINE
Does student have a history of voluntarily controlling behavior in question?
Does student have ability to control the behavior
Is it difficult for student to control his/her actions?
Can student in an escalated emotion state recall the knowledge to produce the ability to perform the skill?
LONG TERM DISCIPLINE
Was the conduct the direct result of the LEA’s failure to implement the IEP?
Was student deriving reasonable educational benefit from his/her program?
Were needs addressed through the IEP?
Was a PBSP present?
Appropriate?
Being implemented as designed?
Review progress monitoring data, evaluations and diagnostic information, observations, teacher/staff/parent/student input
Was student getting appropriate SDI, related services and supports from school personnel?
LONG TERM DISCIPLINE
MANIFESTATION:
If either question is answered “yes” the conduct is a manifestation of the child’s disability
Child is returned to last agreed upon placement
No further discipline occurs
Unless:
The parent and LEA agree to change the placement as part of modifications to the PBSP
Or child is placed in a 45 day alternative placement
LONG TERM DISCIPLINE
NOT A MANIFESTATION:
If both questions are answered “no” the behavior was not a manifestation of the child’s disability
District can discipline to the same extent it could/would discipline education student
Review Code of Conduct
Due Process
Can be requested to challenge manifestation determination
Expedited hearing
MANIFESTATION CASES
AP v. Central Dauphin School District
Student in ES class since Elementary school
History of behavior issues and inability to focus attention
In 6th gate (07-08) student exhibited appropriate school behavior only 60% of the time
2 consecutive days of room clearing behavior
In 7th grade, 8 behavior incidents
Inappropriate school/class behavior
6 involved disrespect toward school personnel
1 fight/assault of peer on school bus
MANIFESTATION CASES
8th grade IEP
Included FBA:
Behavior occurs when presented with non-preferred social situations and non-preferred academic tasks
Behavior includes inappropriate words, disrespect toward staff, verbal aggression towards others
Function of behavior was to avoid social interaction or completion of work and to gain peer attention
No history of physical aggression with peers
MANIFESTATION CASES
8th grade incidents:
With the help of another student, AP assaulted another student while walking home from school for making a slur at him
Punched another student while walking home
District held a manifestation determination to suspend for more than 15 school days in the 2008-2009 school year, pending recommendation for expulsion
MANIFESTATION CASES
District concluded no manifestation:
Behavior was premeditated and planned
Involved at least 1 co-conspirator
Was undertaken on purpose
Parents disagreed:
Felt district ignored reports and other information about student’s diagnosis
MANIFESTATION CASES
HO found no manifestation, but disagreed with school’s analysis:
Found behavior to be “rooted in” student’s ADHD
Impulsive
Inappropriate peer interactions
BUT . . . Found parents failed to show that it was wholly caused by or had a direct and substantial relationship to ADHD
Prior behaviors did not show student to be physically aggressive to peers
ADHD played a role in the incident, but not to the point of causation/directness/substantiality
MANIFESTATION CASES
DC v. Hermitage School District
17 year old student with ADHD and LD in reading
History of minor infractions
Major incident (details redacted from decision)
Manifestation determination held
To move to expulsion
MANIFESTATION CASES
District concluded no manifestation
Classroom behaviors included class participation, completing assignments, focusing and paying attention
Student knew right from wrong
Understood consequences of behavior
Disability did not cause or have direct and substantial relationship to the behavior
Parents disagreed
Concerned about student’s temper
MANIFESTATION CASES
HO agreed with school district
No evidence that the behavior in question was impulsive
No evidence of prior behaviors of a similar nature
The fact that student, like most if not all kids, placed a priority on maintaining peer relationships and can give into peer pressure does not lead to the conclusion that the behavior had a direct and substantial relationship to the disability
MANIFESTATION CASES
FF v. School District of Philadelphia
Student identified as OHI brought weapon to school
ADHD, OCD and Tourette Syndrome
Prior behavior
Records indicate student has irresistible impulses to take actions regardless of consequences
Longstanding pattern of taking things from home and bringing them to school
District staff would search him at beginning of day and attempt to secure any items prior to him entering school
Profane, threatening language, walking out of class, throwing objects, kicking and other assaultive behavior, fighting
MANIFESTATION CASES
District found no manifestation:
Student was not in an explosive state when he brought weapon
Student plainly knew behavior was wrong
Hearing Officer disagreed
Found student had irresistible impulses
District was aware of it
Found district did not even consider whether behavior of bringing the knife was caused by or substantially related to the impulsiveness that was a known symptom of student’s disabilities
MANIFESTATION CASES
HO also faulted District procedurally
Should have included as a “relevant team member” someone with clinical background regarding student’s disability
Failed to seek adequate documentation about child’s disability
BUT . . .
Child could go to interim placement regardless of whether it was a manifestation of disability for knife possession
MANIFESTATION CASES
C.S. v. Moon Area School District
Student moved into District in 10th grade with no IEP
Parents requested evaluation
Student found eligible under category of OHI
Parents reported some emotional issues
Psychologist recommended that IEP Team “consider” conducting an FBA
IEP Team did not discuss behaviors
Teachers saw no behavior issues
MANIFESTATION CASES
School found a notebook in C.S.’s locker
Very disturbing:
violent imagery,
Threats of bringing gun to school to kill everyone
racial/ethnic/misogynistic slurs
Lists of weapons and where to buy supplies
Map of building with teacher’s classroom’s highlighted
MANIFESTATION CASES
School District found not a manifestation
Numerous entries
Not impulsive
Thought out
Hearing Officer overturned
School did not have PBSP in place
Found school to be deliberately indifferent!
45 DAY REMOVAL
Placement in interim alternative setting “under special circumstances”
Not more than 45 school days
Without regard to whether the behavior is a manifestation of the child’s disability
45 DAY REMOVAL
Weapons:
If a child carries a weapon to or possesses a weapon at school, on school premises or to or at a school function under the jurisdiction of the LEA
Chapter 14 Regulations expand to include ID students
Weapon defined under Federal Crimes Code
Does not include a pocket knife with a blade of less than 2 ½ inches in length.
45 DAY REMOVAL
Illegal Drugs
Child knowingly possesses or used illegal drugs or sells or solicits the sale of a controlled substance while at school, on school premises or at a school function under the jurisdiction of the LEA
Chapter 14 Regulations expand to include ID students
Includes controlled substances
Does not include: controlled substances that are legally possessed or used per a prescription or under other authority or law
Does not include: over the counter meds or alcohol
45 DAY REMOVAL
Serious Bodily Injury
Child has inflicted serious bodily injury upon another person while at school, on school premises or at a school function under the jurisdiction of the LEA
Chapter 14 expands this to include ID students
Definition:
Bodily injury that involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty
45 DAY REMOVAL
Serious Bodily Injury:
A threat of injury is not a serious bodily injury
Cannot use a 45 day unilateral placement
45 Day Removal Cases
FF v. School District of Philadelphia
Was the object a weapon?
Swiss army knife
2 of the 3 blades measured over 2 ½ inches
Hearing Officer ruled it was plainly an object capable of inflicting serious bodily harm or death
Parents argued that the blade wasn’t really 2 ½ inches
Argued that the “tang” should be excluded
Unsharpened portion of metal where the sharpened blade attaches to handle
HO disagreed
45 Day Removal Cases
AD v. Upper St. Clair School District
Student brought Swiss Army knife to school
Parents argued District could not discipline because he did not “intend” to bring it to school
HO found no intent required in language of IDEA
v. language in statute for “knowingly” possessing/using illegal drugs
Once HO found student to be in possession of weapon, had no authority to order less than 45 days
Discretion of school district
REQUIREMENTS FOR IAP
Interim alternative placements
Determined by IEP Team
NOT School Board
Must continued to provide FAPE
Enable child to participate in school’s general curriculum
And to progress toward meeting IEP goals
Although in another setting
Cannot be homebound
Too restrictive
Case Law on IAPS
FF v. School District of Philadelphia
Hearing Officer found IAP setting inappropriate
No comp ed ordered, but ordered IEP Team to recommend new placement
Placement had a school wide behavior system and point structure for behavior intervention
HO found structure was not sufficiently individualized to meet the student’s needs
Program set up to transition students back at the end of semesters, not at the end of 45 days
Therefore, student could not meet the goal of the program in 45 days of placement
FUNCTIONAL BEHAVIOR ASSESSMENTS
When is it required:
When a child is removed to a 45 day placement
When a child’s placement is changed because the behavior was not a manifestation of disability; or
Where the Team determines that the child’s behavior is a manifestation of the disability.
If child already has a PBSP:
Determine whether a new FBA is necessary
Review and revise plan to address behavior in question
STAY PUT
If parents request a due process hearing:
Regarding a manifestation determination:
The child stays in current educational setting pending HO’s determination
Regarding a 45 day placement
Child can be removed to the IAP for 45 days while hearing occurs
Child would return to last agreed upon placement at the end of 45 days
CLEAR AND PRESENT DANGER
HO’s have the authority to order a 45 school day placement if the school demonstrates:
Maintaining child is substantially likely to result in injury to another child or to others
Injury does not have to be in “the immediate future”
District does not have to prove that it took reasonable steps to mitigate the danger
Also likely HO’s would want to hear it!
Provision of Services
What services must be provided during discipline?
Days 1-10 in a school year:
None
Days 11-15:
School personnel, in consultation with at least 1 of the child’s teachers, determines the extent to which services are needed
So child can continue to participate in general education curriculum
And meet goals
Change of placement (not a manifestation or 45 day IAP)
FAPE
Including appropriate behavior management
Thought To Be
A child not identified at the time of the disciplinary incident gets no protections under the IDEA
Is subject to regular discipline
Unless District “had knowledge” that the child was a child with a disability
Thought To Be
What is “had knowledge”?
Parent expressed concern in writing to supervisory or administrative personnel or a teacher of the child that the child is in need of special ed:
Can be oral if parent cannot write or has disability that prevents compliance
TRAIN Teachers!
Parents previously requested an evaluation
Teacher or other personnel expressed specific concerns about a pattern of behavior demonstrated by child directly to the Director of Special Ed or other Supervisors
Thought To Be
Exceptions:
The District will not be deemed to have knowledge if:
The parent has not allowed an evaluation
The parent has refused services
Child was evaluated and found ineligible
If parent requests evaluation during discipline
Evaluation is expedited
Reporting to Police
May report crime to appropriate authorities
To the same extent as would be reported for regular ed
Use discretion!
Must provide copies of special education and discipline records
Only to the extent permitted by FERPA
Meaning: have to get parental permission