What Every Parent Should Know About Special Education & Expulsions
Is my child’s education protected under the laws of special education?
Yes. If your child is receiving special education services, your child’s education is protected by state and federal law – it cannot be terminated or taken away. All special education students are entitled to an individualized education program (IEP). Even if they are suspended or expelled, special education students always have the right to a curriculum that allows them to advance in their IEPs.
How long can my child be suspended from school for her/his behavior?
When your child breaks a school rule, your child can be punished like non-special education students for up to 10 days. A student is not entitled to special education protections during those 10 days. However, in California, students cannot be suspended for more than five consecutive days unless they are being recommended for expulsion. If your child has been suspended for more than a total of 10 school days during a school year, your child must continue to receive special education services necessary to progress in their IEP goals.
What happens if the school wants to remove my child for more than 10 days?
First, the school must notify you immediately. Within those first 10 days of removal, the school must also have what is called a manifestation determination with you and relevant members of the IEP Team to decide whether there is a relationship between the child’s disability and the behavior that led to the disciplinary action.
How will the IEP Team decide whether my child’s behavior was a manifestation of her disability?
The group making the manifestation determination must consider all relevant information in your child’s file, teacher observations, and any relevant information you provide. Your child’s behavior can be determined to be a manifestation of your child’s disability if either:
1) the behavior was caused by, or had a “direct and substantial relationship” to the disability,
2) the behavior was a “direct result” of the school’s failure to follow your child’s IEP.
What if the IEP team determines that my child’s behavior is not a manifestation of their disability?
Your child will be subject to the same disciplinary measures as any other student. This means that your child can be expelled from her/his school district. But, the child is still entitled to special services to help them advance in their IEP. You DO have the right to disagree with the school’s decision (click here for more information).
What if the IEP team decides that my child’s behavior is a manifestation of their disability?
The child cannot be expelled, and generally has a right to return to her/his school. Even if the child’s behavior is a manifestation of a disability, the child can be placed in an interim alternative educational setting (interim placement) for up to 45 school days under special circumstances (click here for more information).
What is an interim placement?
When can my child be placed in an interim placement?
Your child can be placed in an interim placement for up to 45 school days if:
- The child brings a weapon or illegal drugs to school or any school event.
- The child sells illegal drugs at school or any school event.
- The child inflicts serious bodily injury on another person at school or any school event.
- A hearing officer decides that the child is likely to be a danger to themselves or others at the current school.
- You agree in writing that your child can be placed in an interim placement. Before signing any papers at a manifestation determination, you should consult a lawyer or an advocate.
Your child must return to the original school at the end of the 45 days. However, if your child is in an interim placement because a hearing officer has decided that the child is a danger to themselves or others, the school may ask the hearing officer to place your child in an interim placement for another 45 days if it would still be dangerous for your child to return to the old school.
What if I do not agree with the determination about my child’s behavior?
If you feel that your child’s behavior was not a manifestation of a disability or you believe the school wrongfully removed your child from their original school for more than 10 days, you have the right to request a due process hearing from the state. You may also request a mediation conference from the district instead of a hearing. While waiting for the hearing decision, the student remains in the interim alternative educational setting unless the time period expires before the end of the hearing. In that case, the student returns to the original placement unless the parent and school agree otherwise.
How long does an appeal take?
The hearing must take place no more than 20 school days after your request an appeal, and the state hearing office must mail you a written decision within 10 school days after the hearing.
LSC may not be able to help you appeal the district’s decision, but click here for a list of organizations and law firms that may be able to represent you or give you legal advice.
What if my child was not eligible for special education when my child got in trouble, but I think they should have been?
If the school knew that your child might be eligible, special education protections may still apply to your child. The school had knowledge if:
1) You asked the school in writing to evaluate your child before the behavior occurred,
2) You wrote a letter expressing your concern that your child needed special education to your child’s teacher or to the school, or
3) Your child’s teacher made a special education referral to an administrator.
The school does not have knowledge if you refused to allow an evaluation of your child, you refused special education services offered to your child, or your child had already been evaluated and had no disabilities.
If the school had no knowledge that your child might be eligible, regular disciplinary policies apply. If a request is made for an evaluation of the student during the period where the student is subject to discipline, the evaluation has to be conducted in an expedited manner. If the student is determined to have a disability, the school must provide special education services. While waiting for evaluation results, the student remains in the placement decided by the school.