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  3. FHAD- Safe Schools: Discipline of Students with Disabilities

FHAD- Safe Schools: Discipline of Students with Disabilities

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Approval Date: March 2023

FHAD- Safe Schools
Discipline of Students with Disabilities

Definitions:

“Individual with Disabilities in Education Act (IDEA)” means the law that makes available a free appropriate public education to eligible children with disabilities throughout the nation and ensures special education and related services to those children.

“Individualized Education Plan (IEP)” means a plan or program developed to ensure that a child with an identified disability who is attending an elementary or secondary educational institution receives specialized instruction and related services.

“Section 504 Plan” means a plan developed to ensure that a child who has a qualifying disability identified under the law and is attending an elementary or secondary educational institution receives accommodations that will promote their academic success and access to the learning environment.

“Functional Behavior Assessment (FBA)” means an assessment used to identify what is maintaining or causing a challenging student behavior.

“Behavior Intervention Plan” (BIP) is a written improvement plan, based on the outcomes of a functional behavior assessment, which specifies the actions to be taken in order to improve or replace a challenging student behavior.

“Controlled substance” means a drug or other substance that cannot be distributed without a prescription, identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. § 812(c)).

“Illegal drug” means a controlled substance but does not include a drug controlled, possessed, or used under the supervision of a licensed health-care professional or one legally possessed or used under state or federal law.

“Serious bodily injury” means bodily injury that creates or causes serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or creates a substantial risk of death. It excludes a cut, abrasion, bruise, burn, disfigurement, physical pain, illness, or a temporary impairment of the function of a bodily member, organ or mental faculty. (Utah Code Section 76-1-101.5)

“Weapon” means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for or is readily capable of, causing death or serious bodily injury. It excludes a pocket knife with a blade of less than 2.5 inches.

34 CFR § 300.530(g)
Utah Admin. Rules R277-750-2 (November 6, 2020)
State Board of Education Special Education Rules V.E.5.

Discipline Procedures for Students with a Disability

Federal and state laws restrict disciplining a student for conduct which is a manifestation of a disability. Therefore, where a student who has been identified as eligible for special education services engages in conduct which is a violation of school rules or is conduct that is subject to discipline under this general policy, additional procedures may apply. If the student has not previously been identified as eligible for special education, and asserts that he or she should receive the procedural protections, application of the procedural protections will depend on the criteria set forth below.

Identified Students with a Disability Change of Placement for Disciplinary Reasons

For purposes of removals of a student with a disability from the student’s current educational placement, a change of placement occurs if:

  1. The removal is for more than ten (10) consecutive school days.
  2. The student is subjected to a series of removals that constitute a pattern because they cumulate to more than ten (10) school days in a school year, because the student’s behavior is substantially similar to behavior in prior incidents resulting in removal, and because of additional factors such as the length of each removal, the total amount of time each student is removed, and the proximity of the removals to one another. The District shall determine whether a pattern of removals constitutes a change in placement on a case-by-case basis.

34 CFR § 300.536
Utah Admin. Rules R277-750-2 (November 6, 2020)
State Board of Education Special Education Rules V.E.5.

Removals

  1. Ten (10) School Days or Less
    1. Short-term suspension
      1. To the extent removal would be applied to students without disabilities, a principal may remove a student with a disability who violates the code of student conduct found in Policy FHA from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than ten (10) school days without implicating any of the additional IDEA or Section 504 safeguards.
  2. Utah Admin. Rules R277-750-2 (November 6, 2020)
    State Board of Education Special Education Rules V.E.5.
    34 CFR § 300.530(g)
    20 U.S.C. § 1415(k)(1)(B)
  3. Change in Placement: Removals for More than Ten (10) School Days
    1. Long-term suspension or expulsion.
      1. Any suspension of a student with a disability for more than ten (10) days constitutes a change in placement, as does a change in the student’s educational program (classroom assignment) for disciplinary reasons. Prior to a change in placement, parents of the student must be notified of the proposed change and provided the procedural safeguards notice described in the state’s Special Education Rules, and the student’s IEP/ Section 504 team and other qualified personnel must conduct a manifestation determination review of the relationship between the student's disability and the behavior subject to the disciplinary action. The manifestation determination review must take place immediately, if possible, but in no case later than ten (10) school days after the date on which the decision to take action was made.

34 CFR § 300.530(g)

Manifestation Determination

Within ten (10) days of any decision to change the placement of the student with a disability because of a violation of the code of student conduct, the school, the parent or guardian, and relevant members of the IEP/Section 504 Team (as determined by the parent/guardian and school) shall review all relevant information in the student’s file, including the student’s IEP/Section 504 Plan, any teacher observations, and any relevant information provided to the parents to determine:

  1. If the conduct in question was caused by, or had a direct and substantial relationship to, the student’s disability; or
  2. If the conduct in question was the direct result of the school’s failure to implement the IEP or Section 504 plan.

If the school, the parent or guardian, and relevant members of the IEP/Section 504 Team determine that either section one (1) or (2) above is applicable to the student, the conduct shall be determined to be a manifestation of the student’s disability.

  1. If the IEP/Section 504 Team determines that the student’s disruptive behavior is a manifestation of the disability, the result of inappropriate placement, or the failure to implement the student’s IEP or Section 504 plan, the student may not be disciplined for the conduct.
    1. If the student’s behavior indicates an inappropriate placement or failure to implement, the IEP/Section 504 Team shall review the placement and recommend alternatives.
    2. If the IEP/Section 504 Team determines that the behavior was a manifestation of the student’s disability, it shall rewrite the IEP/Section 504 plan to address the student’s behavioral and educational needs or, when appropriate, consider the extension of an emergency removal. Prior to revising the IEP/Section 504 plan the team may conduct a Functional Behavior Assessment to identify the targeted response that should be included in the revised IEP/Section 504 Plan.
  2. If the IEP/Section 504 Team determines that the conduct is not a manifestation of the disability or a result of inappropriate placement or failure to implement the IEP/Section 504 plan, then the student may be disciplined under the same standards as are applied to non-disabled students.
  3. If the student’s parent or guardian disagrees with the IEP/Section 504 Team’s manifestation determination, or regarding decisions for the student’s placement, the parents may request a due process hearing pursuant to the policies governing students with disabilities.

34 CFR § 300.121
34 CFR § 300.530(e)
Utah Admin. Rules R277-750-2 (November 6, 2020)
State Board of Education Special Education Rules V.E.5.

District Responsibility to Provide Services During Suspension

If the student is suspended for more than 10 days in a given school year, the District still must provide services to the student with a disability to the extent necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the student’s IEP.

  • The IEP Team shall determine the instructional and related services to be provided during the time of suspension.
  • The student’s IEP shall include goals and objectives designed to assist in returning the student to school and preventing significant regression.

Students Not Identified as Eligible for Special Education

If a student who has not been previously identified as eligible for special education services, or the student’s parents, assert that the student is entitled to the special discipline procedures applicable to students with disabilities, then those procedures shall apply to the student if any of the following conditions in paragraphs 1-3 are satisfied, subject to paragraph 4 below:

  1. The student’s parent or guardian has previously expressed to the student’s teacher or to supervisory or administrative personnel of the District that the student needs special education services.
  2. The student’s parent or guardian has previously requested that the student be evaluated for eligibility for special education services.
  3. The student’s teacher or other school personnel have previously expressed specific concerns about a pattern of behavior demonstrated by the student to the special education director of the school or to other supervisory personnel.
  4. If, prior to the conduct for which discipline is contemplated, (a) the student’s parent has not allowed an evaluation of the student for eligibility for special education services, (b) the student’s parent refused special education services for the student, or (c) the District evaluated the student and determined that the student was not a child with a disability, then the special discipline procedures for students with disabilities shall not apply to the student, and the student shall be disciplined in accordance with the procedures for non-disabled students.

If, during the period of time in which a student is subject to disciplinary sanctions, the student’s parent or guardian requests that the student be evaluated for eligibility for special education services, an evaluation shall be conducted on an expedited basis. Until the evaluation is complete, the student’s educational placement shall remain the same (if the child has been suspended or expelled, for example, the suspension or expulsion shall remain in effect).

34 CFR § 300.534
Utah Admin. Rules R277-750-2 (November 6, 2020)
State Board of Education Special Education Rules V.E.5.

Removal of Students with Disabilities for Specific Conduct

In the following circumstances, regardless of whether the student’s action was a manifestation of the student’s disability, the student may be placed in an interim alternative educational setting for a period to be determined but not to exceed 45 days.

  • The student 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 District;
  • The student knowingly possesses or uses 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 District;
  • The student has inflicted serious bodily injury on another person while at school, on school premises, or at a school function under the jurisdiction of the District.

If the circumstances warranting an interim alternative educational setting are present, then:

  • The appropriate interim alternative educational setting shall be determined by the IEP/Section 504 Team.
  • If the student’s parent or guardian requests a due process hearing, the student shall remain in the alternative educational setting during the pendency of any due process proceedings unless the parents and the special educational coordinator agree otherwise.
  • The IEP/Section 504 Team must convene prior to the end of the period of removal to the alternative educational setting to determine the least restrictive environment in which the student may be placed when the period of removal is concluded