disciplining special education students to conduct a manifestation determination: ... consider all...

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

[email protected]

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!


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?


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


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


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


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?


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


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


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


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


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?


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?


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


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


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


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

disciplining special education students to conduct a manifestation determination: ... consider all...

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