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School and Learning
Special Education and School Discipline

If your child is receiving special education, it is important for you to know about certain rules that schools must follow if they want to discipline your child. These rules are in addition to, not instead of, the rules that schools must follow when they discipline students who do not have special education needs. The rules can be very complex and confusing. Sometimes schools do not follow them. This article will give you a basic understanding of the rules. If you have questions about your child’s rights, contact Legal Services of New Jersey's Education Representation Project.

May a school discipline my child?

Yes. Schools may discipline students who receive special education. They must follow certain rules. These rules apply to children with special education needs in public schools, charter schools, and private schools, if that is their special education placement. These rules also apply to children who are in the process of being evaluated for special education, even if eligibility has not been decided. Even if your child is not receiving or being evaluated for special education, these rules may apply if you told the school in writing that your child may need special education or requested a special education evaluation, or if school staff has expressed concerns about your child’s behavior to certain other school staff.

How will I know if my child is being disciplined?

If the school wants to suspend your child, the principal must tell you in writing the reason for this decision. Your child’s special education case manager must also be notified of this decision. All children, not just children receiving special education, who are suspended for more than 10 days are entitled to receive written notice. School Discipline explains in more detail the rights of all students facing disciplinary action by a school.

How long may a school suspend my child from school?

Schools may suspend special education students for 10 days or less in the same way they can suspend a non-special education student. This is often called a short-term suspension.

If a school suspends your child from his or her class or school (educational placement) for more than 10 days in a row, the suspension is called a change in placement. A change in placement can also happen if your child has been suspended for more than 10 days in the whole school year (this does not have to be in a row) and there is a pattern. A pattern is determined by the school on a case-by-case basis. The school must consider several things, including the similarity of your child’s behavior during each incident, the length of each suspension, the total amount of time suspended, and the amount of time between suspensions.

If your child is in preschool, the school cannot suspend or expel him or her.

Does the school have to do anything before they make a change in placement?

Before a school can make a change in placement, the school must first look at how your child’s disability relates to the conduct or behavior that is causing concerns. This is called a manifestation determination. An Individualized Education Program (IEP) meeting must be held within 10 days of the school’s decision to make a change in placement. You have the right to be at this meeting. At the meeting, the IEP team must review relevant information in your child’s file, such as your child’s IEP, evaluations, and observations. You also have the right to give the IEP team any additional information that may be helpful. The IEP team must review this information. The IEP team (which includes you) must determine whether your child’s alleged conduct or behavior was:

  • Caused by, or has a direct and substantial relationship to, your child’s disability; or
  • A direct result of the school’s failure to implement your child’s IEP.

If the IEP team determines that your child’s conduct or behavior was a manifestation of his or her disability, the school must return your child to his or her placement. A special evaluation called a Functional Behavioral Assessment (FBA) must be done. An FBA is an evaluation that will look at the relationship between your child’s behavior and his or her disability. After it is completed, the IEP team must meet and create a Behavioral Intervention Plan. This plan should determine what behavioral interventions and modifications are needed to prevent the behavior from happening again. If an FBA was already done and your child has a Behavioral Intervention Plan, the IEP team must meet to review the plan. If needed, any necessary changes and modifications must be made.

If it is determined that your child’s conduct or behavior was not a manifestation of his or her disability, then the school can discipline your child the same way they would a child not receiving special education.

May a school ever make a change in placement without making a manifestation determination?

Yes. Schools may make a change in placement whether or not the conduct or behavior was a manifestation of your child’s disability, under certain circumstances.

This may happen when your child:

  • Has a weapon at school, on school premises, or at a school function;
  • Knowingly has, uses, sells, or attempts to get illegal drugs at school, on school premises, or at a school function; or
  • Inflicts serious bodily injury on another person while at school, on school premises, or at a school function.

In these cases, the school can remove your child to an interim alternative educational placement for no more than 45 calendar days. An interim alternative educational placement is the placement where your child will receive educational services during the period of discipline. Examples of interim alternative educational placements include other schools, other classroom placements, and home instruction.

This can also happen when a school believes that keeping your child in his or her placement may cause them to injure him- or herself or others. In order to do this, the school must file for a due process hearing and request permission to make the change in placement. If a judge finds it substantially likely that an injury will occur if your child remains in his or her current placement, the judge can order a removal to an interim alternative educational placement for no more than 45 calendar days.

Will my child get educational services while he or she is suspended?

Yes. In New Jersey, all children are entitled to receive educational services within five school days of any suspension.

If your child is suspended for 10 days or less in a row, your child must receive educational services that address the Core Curriculum Standards (this is the course of study that all New Jersey students are expected to receive in their respective grade levels) and are consistent with what is in your child’s IEP.

If your child has been suspended for more than 10 days during the school year, regardless of whether or not it is a change in placement, your child must receive his or her Free and Appropriate Public Education (FAPE). The IEP team (which includes you) determines the interim alternative educational placement where this will be provided. It may also be important for your child to receive a Functional Behavioral Assessment and for a Behavioral Intervention Plan to be developed in order to prevent the behavior from happening again.

I don’t agree with the school’s decision. May I challenge it?

Parents may challenge a school’s decision to impose discipline, make a change in placement, pattern of exclusion, manifestation determination, level of educational services provided, and interim alternative educational placement. In order to challenge the school’s decision, you should file a Parental Request for Mediation/Due Process Hearing/Expedited Due Process Hearing with the New Jersey Department of Education’s Office of Special Education Programs in Trenton. Your request must include your child’s name and address, date of birth, the name of the school your child attends, a description of the issue and facts, and how you propose to resolve the problem. The form for due process requests can be found on the Department of Education’s website. The appeal process is discussed in another Looking Out article, What to Do When You Disagree With a Special Education Decision. During the appeal, if your child has already been removed, he or she will remain in the interim alternative educational placement until a judge makes a decision, the period of discipline has ended, or you and the school agree to a different placement.

Education Representation Project

For additional information, contact Legal Services of New Jersey’s Education Representation Project by calling LSNJLAWSM, Legal Services of New Jersey’s statewide, toll-free legal hotline, at 1-888-LSNJ-LAW (1-888-576-5529).

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8/11/2017
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