Dan Ahearn

First, a warning for parents. This segment of the law is highly complex and technical. This section of the Handbook will explain discipline in a general sense. Parents should strongly consider talking to an experienced attorney if their child is involved in a disciplinary procedure.

This section will discuss discipline in the following segments: the 10 day discipline category; weapons, drugs, or dangerous behavior category; interim alternative educational settings; manifestation determination; placement pending appeal; and children not yet eligible for special education. Some of these sections overlap and link with each as the discipline process unfolds; other sections are only applicable in certain contexts as noted.

The 10-Day Discipline Category
When a child violates a school district's policies as stated in the student handbook, the district may remove the child from his or her current placement for up to 10 cumulative (total) days during the school year without the need to provide services during those days?.34 CFR 300.520(a)(1)(ii). If the removal exceeds 10 cumulative days, then the district must convene a TEAM meeting within 10 business days to conduct a, or review an existing, functional behavioral assessment (an evaluation that assesses the behavior and recommends programming to address the behavior) and develop a plan to address the behavior?.34 CFR 300.520(b)(1)(i). In addition, if the removal exceeds 10 cumulative days, the district may also need to assess whether the removals constitute a pattern?.34 CFR 300.519(b). If a pattern does exist based on length, time, and proximity of the removals, then the removals may equal a change in placement for the child which will require a TEAM meeting and a manifestation determination (see below)?.34 CFR 300.523. Finally, a school district may also remove a child for up to 10 consecutive days for different violations, 34 CFR 300.520(a)(1)(i), but a district must be conscious of the pattern of removal provision discussed above. Regardless of the above provision, whenever a child is removed from school for more than 10 cumulative days, the district must provide a free and appropriate education to the child which has been interpreted to mean that the child's special education program must be delivered.

Weapons, Drugs, or Dangerous Behavior Discipline Category/Interim Alternative Educational Settings
Whenever a special education student possesses a weapon or drug as defined under federal law, the district may unilaterally (without parental consent) remove the child to an interim alternative educational program for up to 45 calendar days?.34 CFR 300.520(2). In addition, if a district believes that a child poses a danger, it may petition a Hearing Officer to place the child in an interim alternative educational setting for up to 45 days?.34 CFR 300.521. To order such a placement, a Hearing Officer must find a substantial likelihood of injury, that the district took steps to minimize the harm, that the current IEP was appropriate, and that the interim setting is appropriate. An interim alternative educational program is a program identified by the TEAM that allows a child access to the general curriculum, provides IEP services, and addresses the behavior involved in the incident. A Hearing Officer may extend a 45 day placement.

Manifestation Determination
Whenever a child's placement is changed (pattern of removals or interim alternative educational program due to drugs, weapon, or danger) or if removals exceed 10 cumulative days, then the TEAM must convene with 10 days and conduct a manifestation determination?.34 CFR 300.523. As part of this determination, the TEAM must consider any evaluations and observations of the child; whether the IEP was appropriate, whether services were provided consistent with the IEP, whether behavioral interventions were provided consistent with the IEP, and whether the child understood and could control his or her behavior?.34 CFR 300.523. If the answer to any of these questions is negative, then the child should be returned to his or her placement

Placement Pending Appeal Stay Put
Placement Pending Appeal or Stay Put means that whenever a parent disagrees with a district's proposed change of placement for a child, the child is entitled to stay in the current placement until the dispute is resolved?.34 CFR 300.514. In the context of discipline for drugs, weapons, and dangerous behavior which results in placement in an interim alternative educational program, when a parent disagrees with placement in the program, then stay put becomes the interim alternative educational program and not the prior program?.34 CFR 300.526.

Children Not Yet Eligible for Special Education
A regular education child who has been disciplined by a district may require assessment to determine if he or she should have been determined eligible for special education prior to the disciplinary action. The IDEA specifies that children who are not yet eligible for special education under these circumstances may invoke the IDEA protections if the child can show that the district had knowledge of the need for special education services?.34 CFR 300.527(a). Knowledge is defined as a parent expressing concern in writing about the child, the child's behavior or performance indicating a need for services, a parent requesting an evaluation, or a teacher or other personnel expressing concern in writing to the special education director?.34 CFR 300.527(b). If a district has no knowledge, then the disciplinary actions applicable to regular education students apply.

If disciplinary action occurs to such a regular education student and a request for a special education evaluation is filed, the district must conduct the evaluation in an expedited manner?.34 CFR 300.527(c)(2). Pending the evaluation, a student is entitled to receive educational services but the district determines the nature of the service. Finally, whenever either a parent or a district challenges any disciplinary procedures, the parties are entitled to an expedited hearing with a decision within 45 days under federal law?.34 CFR 300.528. Note that the Massachusetts Bureau of Special Education Appeals has a detailed expedited hearing process.

Dan Ahearn is an educator and attorney. He works in the education field at the Landmark School, which specializes in teaching students with language based learning disabilities, where he directs the Landmark Outreach Program. He also practices disability, special education, education, and children's law. He has been practicing in these areas for over 15 years. He currently teaches a Children's Law course at Suffolk University Law School; teaches legal research and writing in the First Year Writing Program at the Boston University School of Law; and counsels law students in the Harvard Law School's Office of Public Interest Advising. He was the past Director of the Massachusetts Bureau of Special Education Appeals and served as a Senior Attorney at the Disability Law Center in Boston. He is on the Board of Directors of the Learning Disabilities Network and is a Fellow of the Massachusetts Bar Foundation.

For more information go to A Guide to Special Education