POLICY MANUAL

Disciplining Students With Disabilities - Policy JGDA

Students with disabilities, who violate the student code of conduct, or engage in conduct for which they may be disciplined, will be disciplined in accordance with this policy. Additionally, the regular disciplinary procedures must be followed. School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement for a child with a disability as a result of discipline.

I. Long-Term Suspensions, Expulsions or Short-Term Suspensions Which Constitute a Pattern - Change in Placement
For the purpose of removing students with disabilities from their current educational placements, a change in placement occurs when:

(1) the removal is for more than 10 consecutive school days at a time; or

(2) there is a series of removals each of which is for 10 days or less and they cumulate to more than 10 days in a school year and constitute a pattern because of:

(a) the length of each removal,

(b) the proximity of the removals,

(c) the total time the student is removed, and

(d) the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals.

If the disciplinary action will result in a change of placement for a student with a disability then that student’s parents must be sent notice that same day of the recommendation for discipline and be provided with a copy of the procedural safeguards. The procedures outlined in Section IV must also be followed. The special education and disciplinary records of the student must be made available to the person who makes the final decision regarding the discipline.

II. Short-Term Suspension
A short-term suspension is a suspension of 10 consecutive days or less at a time.

School authorities may remove a student with a disability from his or her current educational setting for up to 10 school days cumulative in a school year to the extent that such removal would be applied to students without disabilities and for additional short-term suspensions provided no pattern exists.

III. Functional Behavior Assessments and Behavior Intervention Plans
If the school administration, the parent, and the relevant Individualized Education Program (IEP) team members determine that a manifestation exists, the IEP team must:

  • conduct a Functional Behavioral Assessment (FBA) and implement a Behavioral Intervention Plan (BIP), if no FBA was conducted previously; or,
  • if the student already has a FBA and BIP in place, review and modify the BIP, as necessary to address the behavior.

If a manifestation is found, the school division and the parent may agree to a change in placement when reviewing or modifying the BIP. Without this agreement, the student must return to the placement from which the student was removed.

IV. Educational Services While Disciplined
For the first 10 days of removal in a school year, the School Board is not required to provide educational services to the student with a disability if services are not provided to students without disabilities who have been similarly removed.

After the first 10 days of removal in a school year, the School Board shall provide educational services to the student during the period of removal. The services must enable the student to:

1) continue to progress in the general curriculum, although in another setting, and

2) progress toward meeting the goals set out in the student’s IEP.

The determination of educational services is made by the IEP team for discipline which constitutes a change in placement. For discipline which is not a change in placement, the determination is made by school personnel in consultation with the student’s special education teacher.

V. Manifestation Determination
When a disciplinary action is proposed that will result in a change of placement, a manifestation determination review shall be conducted within 10 school days after the date on which the decision to take disciplinary action is made. This review shall be conducted by the Manifestation Team which consists of a local educational agency representative, the parent and relevant members of the IEP team (as determined by the parent and the school division).

The Manifestation Team may determine that the behavior of the student was not a manifestation of such child's disability only if the Team:

1) considers all relevant information in the student’s file, including the student’s IEP, any teacher observations, and any relevant information supplied by the parents; and

2) determines that:

(a) the conduct in question was not caused by, or had a direct and substantial relationship to, the student’s disability; and

(b) the conduct in question was not the direct result of the school division’s failure to implement the IEP.

If a manifestation is found, the student cannot be disciplined beyond any permissible short term removal that may be available. A parent may request an expedited due process hearing if the parent disagrees with the determination that the behavior was not a manifestation of the student’s disability or if the parent disagrees with any decision regarding the placement of the student while disciplined. The parent may also seek a due process hearing to challenge the determination that a short term suspension was not a pattern. The student will remain in the interim alternative education setting pending the decision of the hearing officer or the expiration of a forty-five school day removal.
VI. Disciplinary Action for Behavior that is Determined Not to be a Manifestation
If the behavior is not a manifestation of the student’s disability, the disciplinary procedures will be applied in the same manner as applied to nondisabled students. Following a removal which constitutes a change in placement, the student must continue to receive the educational services necessary to enable the student to continue to participate in the general curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP. The Manifestation Team must decide whether to conduct or review the FBA and BIP. In addition, the special education and disciplinary records of the student must be made available to the person who makes the final decision regarding the discipline.

VII. Disciplinary Action and/or Alternative Placement for Behavior That Is Determined To Be a Manifestation
A student with a disability whose behavior is determined to be a manifestation of his or her disability may not be disciplined except to the extent a removal is otherwise permitted by law. The student may also be removed to a more restrictive placement by following change in placement procedures. The Manifestation Team must conduct or review a FBA and/or BIP as provided in Section III.

VIII. Interim Alternative Educational Settings for Weapons and Drugs and Infliction of Serious Bodily Injury
Students with disabilities 1) who carry or possess a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a state or local educational agency; 2) who knowingly possess or use illegal drugs or sell or solicit the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of a state or local educational agency; or 3) who inflict serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of a state or local educational agency may be disciplined pursuant to Policies JFCD, JFCF or JGDB and may be placed in an interim alternative educational setting for up to forty-five school days. This option is available without regard to whether a manifestation exists. If no manifestation is found, the student may be disciplined to the extent a student without disabilities would be disciplined.

Any interim alternative educational setting shall be selected, by the IEP team, so as to enable the student to continue to progress in the general curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP.

The student must also receive, as appropriate, a FBA, behavioral intervention services and modifications designed to address the behavior so it does not recur.

IX. Change of Placement by Hearing Officer
In addition to the other options for removal, a hearing officer may order a change in the placement for a student with a disability to an appropriate interim alternative educational setting for not more than forty-five (45) school days if the hearing officer determines that maintaining the current placement of such student is substantially likely to result in injury to the student or others. Additional forty-five (45) school day removals may be authorized by the hearing officer as necessary.

X. Placement During Appeals
Students with disabilities are entitled to the due process rights available to a non-disabled student. In addition, students with disabilities are entitled to the due process procedures available under the Individuals with Disabilities Education Act, as amended and any state procedures. During the course of any appeals, the student’s placement shall be in accordance with the provisions of federal law unless the parent and the school division agree otherwise.

XI. Protection for Students Not Yet Eligible for Special Education and Related Services
Students for whom the parents assert there is a disability but who have not yet been identified as disabled may be subjected to the same measures applied to students without disabilities if the school division did not have knowledge of the disability before the behavior that precipitated the disciplinary action occurred. A school division will be found to have knowledge of the student’s disability if before the behavior that precipitated the disciplinary action occurred:

(1) the parent expressed concern in writing (or orally if the parent is unable to write or, if necessary, to accommodate a disability) to school personnel that the student is in need of special education and related services; or

(2) the parent requested an evaluation of the student for special education eligibility through formal evaluation procedures; or

(3) the student’s teacher or other school personnel had expressed specific concerns about a pattern of behavior demonstrated by the student directly to the Director of Special Education or to other supervisory personnel of the school division.

A school division would not be found to have knowledge of a student’s disability if:

(1) the parents refused to allow an evaluation of the student or refused special education services; or

(2) the student was evaluated and found not eligible for special education services.

If a request for an evaluation is made during the period such student is subject to disciplinary measures, the evaluation shall be conducted in an expedited manner. If the student is found eligible as a child with a disability, taking into consideration information from the evaluation conducted by the school division and information provided by the parents, then the student must be provided special education and related services, although in another setting, in compliance with the procedures for suspended and expelled students with disabilities. Pending the results of the evaluation, the student shall remain in the educational placement determined by the school authorities.

XII. Students with Disabilities as Defined Under Section 504 of the Rehabilitation Act of 1973
1. Section 504 is a nondiscrimination statute. It prohibits discrimination against students on the basis of disability.
If a child is disciplined and that child has a disability as defined under Section 504 of the Rehabilitation Act, it would be discriminatory to discipline the child if the disability caused the misconduct. Thus, before disciplining a child who has a Section 504 disability, the school must determine whether the misconduct caused the disability.
Since discipline procedures developed for students with disabilities as defined in the IndividualsWith Disabilities Act (IDEA) generally assure compliance with Section 504, Lynchburg City Schools’ discipline policy for Section 504 has been designed to mirror IDEA discipline procedures with one exception unless otherwise noted: Students with 504 disabilities are not entitled to educational services during a long-term suspension unless students without disabilities are provided educational services for the same offenses.

2. Short-term suspensions of 10 days or less at a time may be imposed to the same extent as for non-disabled students, provided the suspensions do not constitute a pattern.
A series of short-term suspensions which constitute a pattern of exclusion, a long-term suspension or expulsion all require a manifestation determination.

3. A school can discipline a child if the misconduct was not a manifestation of the child’s disability.

4. A group of knowledgeable persons must make the determination of whether a child’s disability caused the misconduct in all cases where long-term disciplinary action is recommended, except for the defined drug and alcohol situations.

5. Manifestation procedures are not required when a student with a 504 disability uses or possesses alcohol or illegal drugs and/or is currently engaging in the use of alcohol or drugs. Schools may discipline children with a 504 disability who commit these drug or alcohol offenses to the same extent as children without disabilities.

6. When a child who has a 504 disability uses or possesses alcohol and/or illegal drugs as outlined in the exceptions to the manifestation procedures under Section 504, he/she has no right to appeal these drug and/or alcohol offenses in a due process hearing.

7. Students with Section 504 disabilities are not entitled to educational services during a long-term suspension unless those services are made available to non-disabled students.

Adopted: July 12, 2016

Legal Refs.:

20 U.S.C. § 1415(k).
29 U.S.C. § 705(20)(C)(iv)

34 C.F.R. 300.530-300.536.

8 VAC 20-81-160.

Cross Ref.:

JFC Student Code of Conduct
JFCD Weapons in School
JFCF Drugs in School
JGD/JGE Student Suspensions/Expulsions
JGDB Discipline of Students with Disabilities for Infliction of Serious Bodily Injury

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