Cheri Belkowitz is an attorney practicing Education Law at Belkowitz Law, PLLC in Fairfax, Virginia.
Navigating the laws governing disciplinary actions for students with disabilities can be difficult. Below are answers to several commonly-asked questions:
1.What happens when my child gets in trouble in school and the school makes a recommendation for a long-term suspension or expulsion?
If your child is a student with a disability, IDEA provides that a manifestation determination review (“MDR”) must occur within ten school days of any decision to change your child’s placement. The MDR essentially looks at whether the conduct in question is related to the student’s specific disability or was a direct result of the school’s failure to properly implement the IEP. The parents of the student, the parents’ attorney, representatives of the local education agency, and relevant members of the child’s IEP Team are all part of the MDR.
2.What if the conduct by my child is not found to be a manifestation of his disability?
If the MDR team members find that the student’s behavior in question was not a manifestation of the child’s disability, the child may be treated as a student without a disability under the school’s disciplinary rules. The child would, however, continue to receive the services and accommodations indicated in his IEP.
3.What if the MDR finds that the conduct is related to my child’s disability?
If the conduct is determined to be a manifestation of the child’s disability, then the IEP Team must conduct a functional behavioral assessment (“FBA”) (if an FBA was not previously conducted) and implement a behavioral intervention plan (“BIP”). If a BIP already exists, the school must review and modify the BIP to address the behavior. The school district must then return the child to the placement from which he or she was removed, unless otherwise agreed by the parents and the school district.
4.What if my child brought a knife or other weapon to school?
As parents, we all expect a level of safety and security for our children while at school. As a means to balance the rights of the student with a disability with the rights of the other students in the school, there are three exceptions in the process of disciplining a student with a disability. If the student’s conduct involved: 1) carrying or possessing a weapon; 2) possessing, using or selling illegal drugs; or 3) inflicting serious bodily injury upon another person, then the student may be removed to an interim alternative educational setting for not more than 45 days, even if the behavior was a manifestation of the child’s disability.
5.My child was questioned by school administrators without me being present. Is this allowed? My child signed a written statement before I was even notified. Is this legal?
Yes, schools may question your child without your permission or without legal representation. It is good practice for the school to attempt to contact the parent prior to questioning, but, oftentimes, the parent is contacted after-the-fact. The crux of the permissibility of the questioning revolves around who is doing the questioning.
If the questioning of your student is made by a school resource officer (“SRO”), then state and federal laws apply regarding questioning your child. An SRO is a certified law-enforcement officer (a police officer), who must act according to state and federal laws, including advising your child of his or her Miranda rights and/or having probable cause for a search. School security officers (“SSO”), on the other hand, are employees of the school and, along with school administrators, can detain and question students, without the same legal protections. I advise parents to tell their children to refrain from making any statement or comment, whether the incident directly involved the child or if he or she was merely a witness, unless and until the parent arrives. Even then, if the parent is not familiar with the law, damaging comments can be made.
6.I previously requested a special education evaluation of my child, but our principal told us to wait until next year. In the meantime, my child violated the code of student conduct and is now in trouble. Does he have protection even though we never went through the special education eligibility process?
Once you make a request for a special education evaluation, the school must begin the process required by law. The principal or other administrator cannot defer the process without providing proper procedural safeguards.
IDEA also provides that a student not yet found eligible for special education services may be protected as a student with a disability in disciplinary matters if the school had knowledge that the child was a child with a disability. In this case, the parent specifically requested a special education evaluation, which would provide special education protections for the student— even though the parent’s request went unfulfilled.
7.The letter from my child’s school states that the disciplinary hearing “is not a legal proceeding.” Do I need to hire a lawyer to represent us at the hearing?
Disciplinary hearings are conducted like administrative hearings, where each side presents its case by makes an opening statement, offering evidence, questioning witnesses and making a closing statement. In most jurisdictions, the hearing officer is an employee of the school district, and oftentimes, a former principal from a school within the district. The consequences of a school disciplinary proceeding can be severe, and many parents do not want to risk their child’s future without the additional guidance of an attorney. A lawyer is not required at the disciplinary hearing, but a lawyer can appropriately advise parents and ensure that the disciplinary process is impartial.
1. The child has an Individualized Education Program (“IEP”) or a Section 504 Plan.
2. 20 U.S.C. Section 1415.
3. 34 C.F.R. Section 300.530(b).
4. 20 U.S.C. Section 1415(k)(1)(E).
5. 20 U.S.C. Section 1415(k)(1)(G).
6. 20 U.S.C. Section 1415(k)(5)(B).
Cheri Belkowitz is an attorney at Belkowitz Law, PLLC in Fairfax, Virginia. Cheri practices Education Law throughout the Commonwealth of Virginia. She serves on the Fairfax Advisory Committee for Students with Disabilities, as well as on the Board of Directors for the Arc of Northern Virginia. She helps parents navigate the maze of special education laws and services, and she represents students faced with disciplinary actions. She lives in Fairfax Station, Virginia, with her husband and their children, Emily and Sam. Their eldest, Allison, is a first-year student at UVA.
If you have any additional questions, please contact the author at [email protected].
