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Special Education: Protecting Your Child, Protecting Your Rights

October 2016

If you think your child needs special education services, this guide can help you have your child evaluated to see what services are needed. You will also learn how to help make sure your child gets the services he or she needs to do well in school.

Si usted cree que su niño necesita servicios de educación especial, esta guía le puede ayudar para que su hijo sea evaluado para determinar qué servicios son necesarios. También aprenderá como asegurarse de que su niño reciba los servicios que él o ella necesita para hacer bien en la escuela.

Discipline of Special Education students

Can my child be disciplined?

Yes, but there are limits on how the school can discipline a child with a disability. Children with disabilities get extra protections if they are removed from school for more than 10 days or if the child's behavior was caused by the disability.

Exception: Weapons, illegal drugs, or causing serious injury
Your child may be moved to a different educational setting (an Interim Alternative Educational Setting or IEAS) for 45 school days, even if the behavior was caused by the child’s disability, if your child does any of these things on school grounds or at a school activity (even a different school):

  • carries a weapon;
  • knowingly has, uses, sells, or tries to buy illegal drugs; or
  • causes someone serious bodily injury.

Suspension for 10 or fewer school days

If your child is to be suspended for 10 school days or fewer, he or she may be

  • placed in in-school suspension;
  • placed in a different educational setting; or
  • suspended.

Any child who is suspended from school must be given a chance to complete missed classwork, including tests.

Suspension for more than 10 school days

For a child in special education, a removal or suspension for more than 10 school days is considered a change in placement. The removal can be 10 or more days

  • in a row, or
  • during the school year in a way that shows a pattern.

In this case, the school district must give your child educational services so he or she can keep working toward the goals in the IEP. The educational services do not have to be at the school.

The Planning and Placement Team must also hold a manifestation determination meeting within ten school days of the decision to remove your child from school.

At the meeting, the PPT must decide whether your child's behavior

  • was caused by or related to your child’s disability, or
  • happened because the school did not carry out your child's IEP.

The child’s parents, other members of the PPT, and school staff attend the manifestation determination meeting. You may invite a professional or a friend to support you.

The school must tell you in writing about the meeting at least 5 days ahead of time, along with a written statement telling you about your rights. The manifestation determination meeting is important. If you can’t go to the meeting, you have a right to call the school and ask them to reschedule it.

If the group determines that your child’s disability did not cause your child’s behavior, your child may be disciplined just like any other child, except that the school district must keep providing special education services.

If it is found that your child’s behavior was caused by his or her disability or that it happened because the IEP was not followed, then your child cannot be removed from school unless the behavior involved weapons, drugs, or seriously injury.

The team must also do these things:

  • Try to find out why the behavior is happening. This is called a functional behavioral assessment (FBA).
  • Create a plan to stop the behaviors and teach the child proper behavioral and social skills. This plan is called a behavioral intervention plan (BIP) or behavioral intervention services (BIS).

If your child already has a behavioral intervention plan, the team must look at it and make changes as needed. Your child must be returned to the placement he or she was in before being removed unless you and the school agree to a change in placement.

You may ask the PPT to reevaluate your child to decide if the assessment and plans are appropriate.

NOTE: If your child is repeatedly suspended or removed from the classroom, you should ask the school to hold a PPT meeting. If your child is suspended for more than 10 days in a school year, a PPT meeting must be held. If you disagree with any decisions made about your child, you can ask for a due process hearing to be held without delay. (See Due Process on page 20.)

Expulsion

If your child is facing expulsion, you should talk to a lawyer right away. The school must give you an expulsion notice that tells you how to get low cost or free legal help. If you have low income, you can call Statewide Legal Services at 1-800-453-3320. They may give you advice over the phone, mail you information, or refer you to a free attorney.

What should happen if the school district is thinking about expelling my child?

First, a manifestation meeting should be held.

If the team decides that the behavior was caused by your child’s disability or that it happened because the IEP wasn’t followed, then your child will return to school.

If the team decides that your child’s behavior was not caused by your child’s disability, then an expulsion hearing will probably be scheduled.

If you don’t agree with the decision, you can ask for a due process hearing(see below). Your child should stay in his or her current placement until due process is completed. But if the school district things that keeping your child in school will result in your child or someone else getting hurt, then it may ask for an expedited hearing (See Expedited, below).

Sometimes, a PPT may decide that keeping your child in his or her current placement will probably result in injury to your child or to others, so your child may be placed in a temporary alternative educational setting for no more than 45 school days.

During the 45 days, your child may be evaluated or observed again. After the 45-day period, the school will decide whether to move forward with an expulsion hearing.

What could happen at an expulsion hearing?

While an expulsion hearing is not as formal as a court trial, it is a legal proceeding and it may be the only chance you get to tell your story. There is no right to appeal the hearing officer’s decision in court if you are not happy with the outcome. The hearing officer will listen while each side tells its story and will then decide

  • if your child broke the rules,
  • if your child should be expelled, and
  • how long the expulsion will last.

You have the right to bring an attorney with you to the hearing. Call Statewide Legal Services at 1-800-453-3320 as soon as you think your child might be expelled. If you don’t have an attorney, you can bring someone else as an advocate.

If your child is expelled,

  • he or she is still entitled to special education services; and
  • a PPT meeting should be held after the expulsion hearing to make sure your child will get enough services to be able to make progress on his or her goals and objectives. Schools don’t usually hold this PPT, so you should get legal help as soon as you think your child might be expelled from school.

Once your child is expelled, it will be very hard for your child to go to another school, even if you move to a different school district. Therefore, it is important that you try to talk to a lawyer right away.

See the legal aid booklet, School Expulsions.

What can I do if I disagree with the school about what is right for my child?

Placement in Special Education

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