Episode Fourteen: Children with Disabilities, Student Discipline: Part Two

In the second segment of our series on discipline, Lisa and Miriam are joined by Christina Peer for a discussion about students with special education needs. When facing disciplinary consequences, children with disabilities are often entitled to additional legal protections, including manifestation determination reviews, functional behavior assessments, and behavior intervention plans. But it is not always clear when these legal protections come into play. Do these regulations apply to students who are in the process of being evaluated or only those already eligible? What triggers a school’s obligation to conduct a manifestation determination review? What are some common mistakes schools make when disciplining children with disabilities?

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Miriam: Welcome to Class Act: Updates in Education Law. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We’re attorneys at Walter Haverfield in Cleveland. We practice school law, every few weeks we get together, we talk about the most recent legal developments in education relevant to school boards, administrators, teachers, just anybody who works in education.

Lisa: If you’ve been listening to our podcast for a while, you’ve noticed that we have a change in our name. We’re really excited, the new name is Class Act, same great podcast just a new fun name.

Miriam: Today, let’s continue talking about discipline. Last time we talked about discipline protections for all students, general education and special education students, notice and hearing and so on. Today, we’re going to talk a little bit more about special education kids and the protections that they are entitled to. Today, we’ll also talk a little bit about some of the problems that school districts face in the initial steps. Super exciting. Like last time, today we have Christina Peer with us, a partner at Walter Haverfield. She frequently advises school boards on discipline issues and we’re very lucky to have her.

Lisa: Thanks for joining us, Christina.

Christina: Thanks for having me, I’m excited to be back with you guys.

Miriam: Who is entitled to these protections? Which kids are protected by the special education regulations that we’re going to go into? First of all, students who are protected by the IDEA and section 504, we’ve reviewed those before. In essence, kids who have an IEP or a section 504 plan will be entitled to these protections, will have the protection of the 10-day rule and the manifestation determination that we’ll talk about a little bit later on.

Lisa: We also have another group of those that are suspected of having a disability and being eligible under one of these laws as well.

Miriam: Not only are the students with IEPs and section 504 plans protected but the law also protects kids for whom the process has been started but has not yet been completed. If a parent expressed concerns in writing or if a parent asked for an evaluation or if a teacher expressed a concern about a pattern of behavior to a director or administrator, in any one of those three situations, the law considers that child protected because the process has been started and maybe that child has a disability, maybe that child needs special education or is protected by section 504 and, in that case, we want to be rather safe than sorry and give them these protections.

Just one thing I just want to ask about, this comes up a lot, Christina and Lisa, I’m sure you see this. We’ll have a child who has never been identified, never anything about special education, parents never said anything about disability, teachers, nothing. Then there’s a problem, then the child gets in trouble and now the parents are all over, “Our child has special education needs, our child has a disability, what are you doing-”

Christina: You can’t suspend her.

Miriam: Actually, yes you can. How do the districts handle that? What’s something that you’ve seen?

Christina: I guess it just depends on the situation. Like you said, if we’re in any of those three situations that we’ve had before where the process has actually started, that’s a little bit different than a situation where, and I’ve seen this happen, literally we are at the expulsion hearing for that child and all of a sudden the parent whips out this diagnosis from the doctor and it says, “Johnny has ADHD and should have an IEP.” Everyone is like, “First time we’re hearing about that, maybe it would’ve been nice if you told us before.” Then it puts the district in a really, really hard situation.

Typically speaking what a school district will do in that situation, they’ll say, “All right, because we didn’t have this information and nobody suspected a disability at the time that little Johnny engaged in the misconduct, whatever it is that’s brought us to the table for expulsion, we’re going to go ahead with our regular education discipline procedure and then we’re also going to look at whether we need to initiate a special education evaluation.” We have to do that thinking about and doing an evaluation in an expedited manner so the district can’t take as long as it usually would. Typically you could take 30 days to make a decision as to whether or not you’re going to evaluate and then you will have another 60 days to actually do the evaluation. It has to be much, much, much faster than that.

Lisa: Almost simultaneous to the discipline.

Christina: Exactly. I think the thing that people don’t think about a lot is that the regular ED discipline procedures and protections that we talked about in our last episode really run simultaneously kind of on parallel tracks, if you will, with the special education procedures and protections and you’ve got to make sure you’re doing all of the steps in both or you’re going to have a problem that will probably lead to not being able to discipline the students.

Miriam: What does expedited mean? Is there a timeframe? [laughs]

Christina: No. It sounds like a flip answer but I’m being completely serious, the law does not tell you what expedited means.

Lisa: We can say that it does not mean taking your 30 and 60 days.

Christina: Correct, it is less time than that. Really, when people look at it, like if a parent were to file a due process complaint or use any of their other IDEA procedural protections, it’s a reasonableness standard, like a reasonable person, if you will. Would a reasonable person looking at this think that you moved as quickly as it was practical for you to move under those circumstances, whatever they happen to be.

Lisa: Something to keep in mind too, the student might be out for a suspension or expulsion, that doesn’t mean you sit and wait until they’re back in the school setting to do any assessment or anything like that. That is definitely going to fall in the unreasonable side.

Christina: That is absolutely what you don’t want to do.

Miriam: You want to get right on that, you want to jump on that right away.

Christina: Absolutely. One of the things that people tell me from time to time, they’re like, “My school psychologist is just so busy. He or she has an entire list of kids already lined up for an evaluation so this kid has to go to the back of the line.” No, no, no, this kid gets a free pass to the front of the line, whatever you want to call it. They’ve got to be expedited even if everybody’s really busy, even if you have to bring in a different school psychologist to take some of the weight off because legally nobody cares that everybody’s busy, I hate to say that but it’s just the truth.

Miriam: That’s the situation where the discipline has already been imposed and the parent then brings up the disability issue for the very first time.

Christina: It’s totally different if you’re already in the process and maybe the parents already brought up the disability and you’re already halfway through doing any evaluations under IDEA, at that point, it’s a different situation, you’re still going to need to finish the evaluation in an expedited manner but you’re not going to be able to simply go forward and impose the discipline like the student was just a regular education student. You’re probably going to have to put your regular education discipline process on hold a little bit while you finish up the evaluation and then look at doing a manifestation determination which we’ll talk about a little bit later and going through all those other processes.

Lisa: For the students who are already IDEA eligible or are already 504 eligible or are already suspected in the process, the protections and procedures we’re going to talk about, that’s the core group that we’re talking about at this point.

Christina: Exactly. For those protections that you already have in place.

Lisa: For these protections to kick in, you might have heard us mention a 10-day roll earlier. This is the gold standard red flag for when you need to kick into high gear and if you didn’t listen to our prior episode about the protections for general education students, you’ll want to listen to that too because those are all still going to apply, this is going to just be on top of that.

Christina: Absolutely.

Lisa: The 10-day role, just to give you an overview of that, we have a student with special education needs, they are in a specific placement with their specially designed instruction happening so as soon as they are pulled out of those services for suspension or expulsion, we start counting days. Basically, you have 10 days in a school year that a child with a disability can be disciplined in the same manner as regular education students before we start kicking in these special protections.

Miriam: That’s because a child with an IEP or section 504 plan, there’s a specific placement where that happens, where the specially designed instruction occurs and that’s part of an IEP, that’s the child’s least restrictive environment and if you are changing that placement, you need to have this conversation. Changing that placement includes 10 days out. If the child is out 10 days, the law considers that as a change of placement.

Christina: For any day over day 10, when we get to 11. Essentially, you’ve got what I like to call your 10 free days, those are the days where you don’t have to do any additional special education procedural protections but when you get to day 11, you’re going to need to start looking at, all right, is this a change of placement? I’m going, to be honest with you folks, the answer is probably yes. Even if you try to say it’s not the same pattern of behavior, it’s different things, it’s different issues. If it were me, I wouldn’t want to take that risk and count on a hearing officer not seeing it necessarily as a pattern of behavior.

Lisa: Err on the side of caution.  There is a little bit of a caveat to these being free days. If it constitutes a pattern of behavior, it’s not necessarily you have all the days you need to be addressing it if we have a continued behavior that’s repeating and causing the same problem. You might be needing to look at doing like a functional behavior assessment or something to see why this kid keeps getting in trouble for the same thing over and over.

Christina: Yes, I guess it kind of depends like I look at the free days and I think of them as these are days when I don’t have to do a manifestation determination or look at whether the conduct was related to the student’s disability, but I see what you’re saying and you’re absolutely right you if you have a student, even if they haven’t been suspended, for 10 whole days yet, but they keep engaging in that same kind of misconduct just from an educational standpoint you’re going to want to look at it and say okay wait a minute, is there something different we need to be doing because they keep engaging in the same kind of behavior.

Lisa: Don’t just ignore it until you get to take day 11 to address it for the child’s needs.

Miriam: This is not just us and our conversation, I read an interesting letter from the office for civil rights recently that specifically called out districts on the 10 free days. They don’t like that word free days and what they specifically want, of course, the office for civil rights. They specifically want you to take that time to consider what else the child could need or what else the school district can do to resolve the situation prevent it from happening.

Lisa: All right it’s going to be where you’re going to need to keep your IEP team informed of if the students being disciplined so that that team that is making a lot of these decisions has the relevant information to discuss.

Christina: Sure and it is the best practice when you’re thinking about it, why would you just let a student over and over and over again, a student with a disability just keep engaging in this misconduct and keep ending up in discipline situations. If we think that there might be something we need to do to address it as part of their specially designed instruction or as part of their IEP or as part of their 504 plan that it makes complete sense.

I guess when I’m saying free days what I’m saying is, for those 10 days that student can still be disciplined in the same manner as their non-disabled peers. Even though you’re doing other things like maybe you’re taking a closer look at the IEP or Section 504 plan or you’re looking at doing a functional behavior assessment or any of those things that doesn’t mean the student can’t still be disciplined during that time period.

Lisa: In getting to these 10 days, counting them is very important. We see a lot of mistakes and a lot of-

Christina: It’s amazing how hard it is to count to 10, I got to be honest with you, it’s ridiculous.

Lisa: Is 10 really 10 here? Let’s talk about what that looks like so the first thing to point out is that it’s not necessarily consecutive days, it’s cumulative.

Christina: Correct, that kid who gets suspended for three days and then three more days and then three more days after that and then we got three more days, okay now you’re over.

Lisa: Who’s keeping track of that? You need to make sure that somebody, the administrator, is imposing the discipline or the IEP software.

Christina: Most districts have some software where you can go and you can count down the screen like how many days of removal. In my experience though part of the issue is making sure that all of the days that a student is actually out for discipline get put into the computer the right way because if the data doesn’t get entered the right way, all the counting in the world isn’t going to help you because what’s on the screen isn’t right.

Miriam: Tell me a little bit more what you mean by that?

Christina: Let’s say that a student is emergency-removed for example, something happens and they’re emergency-removed for a day, if they were counted as present at the beginning of that school day because they were in school sometimes they don’t get counted that day that they’re absent for the rest of the day doesn’t get counted at all as an emergency removal because nobody ever goes back and updates the attendance.

Lisa: Like a partial day, they might have missed half a day and you need to count that half-day.

Christina: Let’s say that they came that morning, they were counted as present at 10:00 in the morning. There was some huge fight and the building administrator said this was such a big deal. We need to do an emergency removal so the student is out for that half of a day. It’s half of a day of disciplinary removal and sometimes districts don’t go back and update the attendance to account for that and you need to because if you don’t then you’re not going to have your 10 days accurately.

Miriam: Does that count as one full day or half a day?

Christina: Half a day, I usually say. I don’t know if there’s really anything in the statute, to be honest with you, that talks about half days but I tend to look at it as how long was the student actually out of class because if they were there for literally the first half of the day, and we sent them home around the halfway point, I would just count it as a half. Other people might feel more conservatively about that than I do.

Lisa: On practical terms at least counting it as half, if they’re missing 20 half days, that’s pretty substantial.

Christina: Absolutely.

Lisa: How about in-school suspensions?  This seems to be an area that trips up a lot districts.

Miriam: I see that. I see a lot of in-school suspensions and they’re not counted.

Lisa:  Sometimes they can be and sometimes they shouldn’t be.

Christina: It’s so hard and that’s kind of why I’m sighing over this one because some districts call them in-school suspension, some call them in-school restriction, some have really kitschy cute names for them that make it sound like it’s not discipline even though it actually really is, like I’m going to go to the pride room.

[laughter]

When the pride room is really like I know you messed up.

Lisa: The circumstances are going to be what are important here in determining if you need to count those days.

Christina: Absolutely because if the student is simply in a room and they’re not receiving any instruction, specifically they’re not receiving the specially designed instruction that’s part of their IEP.

Lisa: Yes, they’re still in the building, not in their programming.

Christina: Correct, but they’re not getting their IEP services or their programming. Some districts try to get around that and I think it’s workable to have an intervention specialist actually go into that in-school suspension room, whatever you call it, and provide those services, and I could make a good argument that it is not a day of removal because the student received all of their services, but if they don’t receive those, then yes, those days are going to count even though the student is technically in the building.

Lisa: I’ve seen the student be in the in-school suspension room for part of the day and then go maybe still to their resource room for their intervention services or something like that.

Christina: Or maybe to they’re related services, they could say they have speech services, they still go out to their speech services and that sort of thing but I guess the caveat with that, but I want to make sure people understand, is if you’re at a point where this is happening over and over again, there comes a point where you don’t really pass the red-face test as to whether it’s a removal or not because putting the student in an in-school suspension room for 20 days and just having the intervention specialist, like pop-in, to provide minutes of instruction, it’s not the same as being in class.

While there’s some leeway there, you still want to be careful how you do that and how you count it.

Miriam: If you are in front of a hearing officer and you say, you know what, the mom says, “Oh, this is my child’s 45th day of in-school suspension.”

Lisa: You can see in a practical, I mean 45 days of that certainly looks like a change of placement.

Christina: Absolutely and I think people lose sight of that like, “Yes, I don’t have to count those days.”

Lisa: Again that goes back to somebody knowing what they’re counting and paying attention to, even keeping track of those in-school days as well.

Christina: Absolutely, the one that always tends to trip people up is bus suspensions because a bus suspension might count as a day of disciplinary removal if the student has transportation on their IEP as a related service and we kick them off the bus. Well guess what we have just said, we’re not providing them with one of their IEP services, therefore, that would count as a day of disciplinary removal. I’ve never actually seen this but I anticipate that it would still count as a day of removal even if the student actually makes it to school that day because there was a service on their IEP that we didn’t provide.

It would certainly count as a day of removal if they didn’t make it to school because they couldn’t make it to school so we didn’t suspend them from school but we suspended them from the bus, but they had no way to get to their services.

Lisa: In all practical application, they were kept from their service and kept from school.

Christina: Exactly, and I think districts have gotten a lot smarter about this because in years gone by we gave a lot more leeway to say bus drivers or the transportation department, the bus garage was suspending people from the bus and I think these districts have become more cognizant about these kinds of issues. A bus suspension has to be done typically speaking by the student’s building administrator so those folks are going to know is this student on an IEP? Is this a student who has transportation as a related service and then what do I want to do that’s maybe different– with different kind of disciplinary outcome for the student that isn’t going to count against us.

Miriam: For that to happen, I think there needs to be two pieces to this, the transportation director or the bus driver needs to let the building principal know they cannot just take these steps on their own, and then the building principal has to have a method for red-flagging these kids, and we just talked about this, has to have a way of recognizing which kids have IEPs and for which students on those IEPs transportation is a service that we should be providing.

Lisa: I would even add a third prong to that and having the communication also with the IEP team because when we dive into what the protections of the steps are that have to take after these 10 days that team is instrumental so they need to be in the mix of communication in knowing what’s going on with all this as well.

Christina: The other thing here just to bring this all back around, and looking at some common mistakes that people make, is we talked about the bus a little bit, we’ve talked about the days, sometimes people will ask me, and this always just makes me laugh like, “Well, when do I get to hit the restart button on my 10 days because I get 10 more of those.” [crosstalk] I feel Lisa knows the answer. There is no reset button on the 10 days, you only ever get 10 per school year.

Lisa: It’s not 10 for fighting and 10 for being disruptive.

Christina: Exactly, or 10 more for stealing something or whatever.

Lisa: 10 total in the school year.

Christina: Two more things with that. The first is if a student moves into your school district and their previous school district has used all of those 10 days, guess what? There is no reset button on that either. You’re just stuck with the 10 days being gone.

Lisa: You do need to look at their attendance and the records to know where you stand on that as well.

Christina: That’s exactly right. Then the other thing that I always tried to tell building administrators about the 10 days and how that works, there are things that you can do to discipline a student that don’t necessarily need to involve removal from school.

Lisa: That’s an excellent point.

Christina: Don’t waste your 10 days at the very beginning of the school year. Think about how am I going to dole these out over a period of time so I don’t immediately land myself in a place where all of the IDEA and section 504 discipline protections kick in if I can do other things. Other things might be after school detentions. They might be a community service, they might be Saturday schools. If your district does something like that, there are lots of other things you can do. Don’t just blow through your 10 days because you’re only hurting yourself.

Miriam: This is what I always say, don’t kill a fly with a hammer on a glass table.

Christina: I love that. I’m going to start using that. I really like that.

Lisa: All right, so we have these 10 days and then we kick in on the 11th day with some more protections and we will dive into those in our next episode, but basically the big words you’re going to be hearing is the manifestation determination review.

Miriam: We’re going to talk about what that meeting looks like. We’re going to talk about who needs to be there. Please tune in for that. Please, please listen to our podcast episodes about manifestation determination and I really hope– we all really hope that you enjoyed this episode and thank you for joining us, Christina.

Christina: Thanks for having me.

Miriam: Please shoot us an email everybody just shoot us an email. Tell us what you think. Rate us on iTunes. The algorithm helps us move up. Thanks so much. We’ll see you next time.

Voice: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter Haverfield does not guarantee the accuracy of the information contained in this podcast.

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