the respective roles of the board of education and superintendent when imposing disciplinary...

The Respective Roles of the Board of Education and

Superintendent When Imposing Disciplinary Consequences on Children Identified as Disabled under the IDEA and Section 504

of the Rehabilitation Act

Jim Thomeczek

THOMECZEK & BRINK

Missouri School Boards Association – September 26, 2014

Tan-Tar-A, Osage Beach, Missouri

THOMECZEK & BRINK, LLC | 314.997.7733 | 816.874.8700

This year marks the 20th anniversary of

the Eighth Circuit’s decision in Light v. Parkway C-2 School

District


Typical Situation:

Board Creates PolicyAdministration Enforces Policy


StatutesBoard Creates Policy

§ 160.261, RSMo. Written Discipline Policy§ 167.161, RSMo. Board May Suspend/Expel Students; Authorize Principals & Superintendent to Suspend Students

Administration Enforces Policy§ 167.171, RSMo. Principal May Suspend for Up to 10 School Days§ 167.171, RSMo. Superintendent May Expel for Up to 180 School Days


ProcessPrincipal Suspensions – Up to 10 School Days

Goss v. Lopez Rights(1) The pupil shall be given oral or written notice of the charges against such pupil;(2) If the pupil denies the charges, such pupil shall be given an oral or written explanation of the facts which form the basis of the proposed suspension;(3) The pupil shall be given an opportunity to present such pupil’s version of the incident;


ProcessSuperintendent Suspensions – Up to 180 School Days

Goss v. Lopez Rights + (1) The pupil shall be given oral or written notice of the charges against such pupil;(2) If the pupil denies the charges, such pupil shall be given an oral or written explanation of the facts which form the basis of the proposed suspension;(3) The pupil shall be given an opportunity to present such pupil’s version of the incident; and(4) In the event of a suspension for more than ten school days, where the pupil gives notice that such pupil wishes to appeal the suspension to the board, the suspension shall be stayed until the board renders its decision, unless in the judgment of the superintendent of schools, or of the district superintendent, the pupil's presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process, in which case the pupil may be immediately removed from school, and the notice and hearing shall follow as soon as practicable.


ProcessExpulsion

Goss v. Lopez Rights + The school board of any district, after notice to parents or others having custodial care and a hearing upon charges preferred, may suspend or expel a pupil for conduct which is prejudicial to good order and discipline in the schools or which tends to impair the morale or good conduct of the pupils.At the hearing upon any such removal, suspension or expulsion, the board shall consider the evidence and statements that the parties present and may consider records of past disciplinary actions, criminal court records or juvenile court records consistent with other provisions of the law, or the actions of the pupil which would constitute a criminal offense. The board may provide by general rule not inconsistent with this section for the procedure and conduct of such hearings. After meeting with the superintendent or his designee to discuss the expulsion, the parent, custodian or the student, if at least eighteen years of age, may, in writing, waive any right to a hearing before the board of education.


Situation Involving a Child with a Disability:

All of the Same Rights that Are Afforded a Student Who Is Not a Child with a Disability

Plus . . .


What the PLUS is depends on two factors:

1. The total number of days of disciplinary removals during the school year

2. Whether the disciplinary removal proposed will result in a disciplinary change of placement


The Concept of a Disciplinary Change of Placement

1. The removal is for more than 10consecutive school days;2. The child has been subjected to aseries of removals that constitute apattern.THOMECZEK & BRINK, LLC | 314.997.7733 | 816.874.8700

What Constitutes a Pattern of Removals?

1. Before or during the suspension proposed, the student will have been subjected to more than 10 days of disciplinary removals;

2. Because the child’s behavior giving rise to the suspension proposed is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals;

3. Consideration of other factors, such as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.


Who Decides if There Has Been a Pattern of Removals?

The public agency [i.e., the school district] determines on a case-by-case basis whether a pattern of removals constitutes a change of placement.


Once again, if

1. The removal is for more than 10consecutive school days; or2. The child has been subjected to aseries of removals that constitute apattern.

There has been a disciplinary change of placement


Why does it matter if there has been a disciplinary change of placement?

1. Whether educational services are required during the disciplinary removal;2. If they are required, who decides what

the educational services will be;3. Where the educational services will be implemented (placement);4. Whether the district must make a manifestation determination;5. Consider other services, e.g., conducting a functional behavior assessmentTHOMECZEK & BRINK, LLC | 314.997.7733 | 816.874.8700

Why does it matter if there has been a disciplinary change of placement?

THE PROCEDURES REQUIRED BY THE IDEA WHEN A DISCIPLINARY CHANGE OF PLACEMENT IS BEING PROPOSED MAY RESULT IN THE DISTRICT’S NOT BEING PERMITTED TO IMPLEMENT THE FULL EXTENT OF THE DISCIPLINARY REMOVAL


THE STATUTORY SCHEME OF THE IDEA ANTICIPATES THAT THE DISCIPLINARY CONSEQUENCE WILL BE IMPOSED BEFORE THE MANIFESTATION DETERMINATION


What is a manifestation determination?

A manifestation determination is a process leading to a determination as to whether the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or whether the conduct in question was thedirect result of the school district’s failure to implement the child’s IEP.


Who makes the manifestation determination?

The manifestation determination the school district, theparent, and relevant members of the child’s IEP team.


When does the group get together to make the manifestation determination?

The group is to meet within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct.

In the case of multiple short term suspensions that result in a pattern of removal, that would mean within 10 school days of the principal’s decision to suspend.

In the case of a long term suspension, that would mean within 10 school days of the superintendent’s decision to impose an additional suspension.


How does the group go about making the manifestation determination?

The group must review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents.


What happens if the group determines that the behavior was a manifestation of the child’s disability?

Generally, the school district must return the child to the placement from which the child was removed.

The district must also conduct/review a functional behavior assessment.

The district must also develop and implement/review, modify and implement a behavior intervention plan.THOMECZEK & BRINK, LLC | 314.997.7733 | 816.874.8700

When does a school district not have to return the child to the placement from which the child was removed?

A school district does not have to return the child to the placement from which the child was removed . . .

. . . if the parent and the school agree to a change of placement as part of the modification of the behavioral intervention plan

. . . if the offense involved a weapon, drugs, or the infliction of serious bodily injury

. . . if the school district files a due process complaint alleging that maintaining the current placement of the child is substantially likely to result in injury to the child or others


Five Examples

Disciplinary Removal – 10 days or fewer – total number of days of removal during the school year is 10 or fewer

Disciplinary Removal – 10 days or fewer – total number of days of removal during the school year is greater than 10 – District decides no pattern; therefore, no change of placement

Disciplinary Removal – 10 days or fewer – total number of days of removal during the school year is greater than 10 – District decides there is a pattern; therefore, there is a change of placement – determined not a manifestation

Disciplinary Removal – More than ten consecutive school days; therefore, there is a change of placement – determined not a manifestation

Disciplinary Removal – More than ten consecutive school days; therefore, there is a change of placement –determined to be a manifestation


Disciplinary Removal – 10 days or fewer – total number of days of removal during the school year is 10 or fewer

FAPE Free Zone (a term coined by Jim Walsh out of Austin, Texas)

A [school district] is . . . required to provide services during periods of removal to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, [only] if it provides services to a child without disabilities who is similarly removed.


Disciplinary Removal – 10 days or fewer – total number of days of removal during the school year is greater than 10 – District decides no pattern; therefore, no change of placement

School district may impose additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement).

After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, if the current removal is for not more than 10 consecutive school days and is not a change of placement under § 300.536, school personnel, in consultation with at least one of the child’s teachers, determine the extent to which services are needed.


Disciplinary Removal – 10 days or fewer – total number of days of removal during the school year is greater than 10 – District decides there is a pattern; therefore, there is a change of placement – determined not a manifestation

Needed to conduct a manifestation determination

Determine if FBA and behavior services would be appropriate

Not a manifestation – may implement proposed disciplinary consequence

IEP team determines services and placement (IAES)


Disciplinary Removal – More than ten consecutive school days; therefore, there is a change of placement – determined not a manifestation


Determine if FBA and behavior services would be appropriate

Not a manifestation – may implement proposed disciplinary consequence

IEP team determines services and placement (IAES)


Disciplinary Removal – More than ten consecutive school days; therefore, there is a change of placement – determined to be a manifestation


FBA and BIP

School district may not continue to implement the disciplinary consequence

Child returns to the placement from which he was removed!THOMECZEK & BRINK, LLC | 314.997.7733 | 816.874.8700

Doe ex rel. Doe v. Todd Cnty. Sch. Dist., 625 F.3d 459 (8th Cir. 2010).



Facts:• Jonathan Doe was a public high school

student with a reading disability receiving special education and related services.

• On September 8, 2005, Doe fought with another high school student on school grounds.

• The next day, Doe brought a pocket knife to school.

• Assistant Principal Berg learned of the fight and called Doe to his office.

• Doe admitted being in a fight and bringing a knife to school.



Facts:• When Assistant Principal Berg mentioned

the possibility of gang activity, Doe said the situation was “fucking bull shit” and walked out.

• When Doe’s grandfather arrived, Berg told Doe and his grandfather that Doe was suspended for fighting and bringing a knife to school.

• On September 12, Berg wrote Doe’s grandparents confirming that Doe was suspended from September 8 “until a hearing with the School Board can be arranged.”



Facts:• Special Education Director Lucas convened

an IEP team meeting on September 13.• Doe and his grandmother, Dorothy Doe, the

parent member of the team, attended.• The IEP team first determined that Doe's

misconduct was not a manifestation of his disability.

• Then, the IEP team adopted, with Dorothy Doe's written approval, an IEP Addendum. THOMECZEK & BRINK, LLC | 314.997.7733 | 816.874.8700


Facts:• The Addendum changed Doe’s placement to

an after-school program at the Alternative High School located one block from the high school, where he would receive two hours of regular and special education tutoring per day until he could be “transitioned” back to the general education setting.

• After the IEP team meeting, Lucas told Berg that Doe was “no longer under suspension” because his placement had been changed.



Facts:• On September 21, grandmother wrote Berg

advising that Doe had now been suspended ten days and requested a hearing before the school board unless Doe was returned to the high school the next day.

• Berg responded on September 29 that the suspension ended on September 13 when the IEP team changed Doe’s placement to the After School Program.

• Therefore, “there is no long-term suspension presently in effect which could result in an appeal to ... and hearing before the school board.”



Facts:• On October 11, Dorothy Doe wrote Lucas

complaining that two hours of daily instruction at the After School Program denied Doe the free appropriate public education and requesting that his placement be changed.

• The IEP team met the next day and agreed to complete behavioral rating scales before beginning Doe’s transition back to the high school.

• Doe returned to the high school on November 3, 2005.



The Eighth Circuit’s Application of the Law:• After the IEP team determined on

September 13 that Doe’s misconduct was not a manifestation of his disability, the IDEA gave the team two significantly different procedural alternatives for dealing with the situation.



The Eighth Circuit’s Application of the Law:• First, the team could have let school officials

apply generally applicable disciplinary procedures and suspend Doe “in the same manner and for the same duration in which the procedures would be applied to children without disabilities....”

• Alternatively, the IEP team could act more affirmatively, as Doe’s did in this case, by changing the disabled child's placement from the school which suspended him to an alternative educational setting.



The Eighth Circuit’s Application of the Law:• Once the IEP team changed Does placement

with Dorothy Doe's consent, the IEP team, not the school board, became the decision-maker authorized to change his placement again.Doe ex rel. Doe v. Todd Cnty. Sch. Dist., 625 F.3d 459, 464 (8th Cir. 2010)


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Contact Information

Jim ThomeczekTHOMECZEK & BRINK, LLC

St. Louis and Kansas City (by appointment)

St. Louis: 314.997.7733Kansas City: 816.874.8700

Cell: 314.302.1120E-Mail:

[email protected]

the respective roles of the board of education and superintendent when imposing disciplinary...

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