Special Education Discipline Manifestation Determinations October 2016 Presented

Special Education Discipline – Manifestation Determinations October 2016 Presented by: Marcy Gutierrez

Tonight’s Agenda • Review Paper Topics for Paper #2 • Start With What You Know • Discuss Discipline & Manifestation Determinations • Rialto & New Haven Cases • Next Week – Section 504 – Residential Placement – Transgender Legal Issues

Research Paper #2 – Choose One Topic • 1, 000 Words – Due 11/09/16 • PROMPTS: From your review of available literature, with specific emphasis on relevant statutory and case law, please discuss what a school psychologist should consider, and what a school psychologist should do, when: – Deciding what areas to assess a child for special education? – Deciding whether or not a student’s misconduct is a manifestation of his/her disability? – Deciding whether or not to recommend that the IEP team find a child for eligible for special education 3

Deciding whether or not a student’s misconduct is a manifestation of his/her disability? • Just because juvenile justice authorities decline to prosecute a student with a disability for misconduct on school grounds doesn't mean that the district is bound by that decision. If the conduct is unrelated to the student's disability, the district may impose the same sanction that it would apply to nondisabled students for the same offense. See, e. g. , C. C. v. Hurst-Euless -Bedford Indep. Sch. Dist. , 65 IDELR 195 (N. D. Tex. 2015) (holding that the district did not violate the IDEA when it placed a middle schooler with ADHD and SLD in an IAES for 60 days after he photographed a schoolmate on the toilet). • The parents of a teenager who smoked marijuana on a daily basis throughout seventh and eighth grade could not convince a District Court that their son's anger, anxiety, and poor academic performance was the result of emotional disturbance. The court upheld an SRO's determination that 4 the student was ineligible for IDEA services. P. C. and M. C. v.

Deciding whether or not to recommend that the IEP team find a child for eligible for special education? • If a student qualifies as a child with a disability, a district cannot refuse to find the student eligible for IDEA services on the grounds that his disabilities are too severe. See Timothy W. v. Rochester, N. H. , Sch. Dist. , 441 IDELR 393 (1 st Cir. 1989) • A student needs special education and related services when the student requires those services in order to receive an educational benefit from the educational program. Marshall Joint Sch. Dist. No. 2 v. C. D. , 54 IDELR 307 (7 th Cir. 2010). • Eligibility decisions should consider whether a student's educational improvements resulted from the student receiving specialized instruction. See, e. g. , L. J. v. Pittsburg Unified Sch. Dist. , 116 LRP 37786 (9 th Cir. 09/01/16) (noting that a grade schooler with SLD, OHI, and ED made educational progress only because of the specialized services he received, the 9 th 5

DISCIPLINE

School Discipline • Suspension & Expulsion • Interim Alternative Educational Settings • Manifestation Determinations • Honig Injunctions 7

Suspensions & Expulsions Jurisdiction to Suspend or Expel a Student: • Under Education Code section 48900, et. seq. , principal/superintendent may suspend or recommend expulsion, and the governing board may expel, for acts of student misconduct that are related to a school activity or school attendance that occur: – While on any school grounds in California; – While going to or coming from school; – During the lunch period whether on or off school campus; or – During, or while going to or coming from, a school sponsored activity. 8

Suspensions & Expulsions Grounds for Suspension & Expulsion • • Obscenity & Profanity (§ 48900, subd. (i)) Drug Paraphenalia (§ 48900, subd. (j)) Disruption/Defiance (§ 48900, subd. (k)) Receiving Stolen Property (§ 48900, subd. (l)) Imitation Firearm (§ 48900, subd. (m)) Sexual Assault/Battery (§ 48900, subd. (n)) Harassment of Witness (§ 48900, subd. (o)) Sale of Soma (§ 48900, subd. (p)) 9

Suspensions & Expulsions Grounds for Suspension & Expulsion (continued) • Hazing (§ 48900, subd. (q)) • Bullying (§ 48900, subd. (r)) • Aiding or Abetting Infliction of Physical Injury (§ 48900, subd. (t)) • Sexual Harassment (§ 48900. 2) • Hate Crimes (§ 48900. 3) • Harassment of Other Students or District Staff (§ 48900. 4) • Terrorist Threats (§ 48900. 7) 10

Suspensions & Expulsions Grounds for Suspension & Expulsion • 3 Categories: – 1. Recommendation / Mandatory Expulsion – 2. Recommendation / Discretionary Expulsion – 3. Discretionary Recommendation / Discretionary Expulsion 11

Suspensions & Expulsions Mandatory Recommendation / Mandatory Expulsion • Under § 48915, subdivision (c), the principal or superintendent shall immediately suspend and recommend expulsion, and the Governing Board shall expel, for any of the following acts committed at school or at a school activity off school grounds: – Possessing, selling, or furnishing a firearm; – Brandishing a knife at another person; – Sale of drugs; – Committing or attempting to commit a sexual assault or committing sexual battery; or – Possession of an explosive. 12

Suspensions & Expulsions Time Limits on Suspension from School • No more than 5 consecutive days; • Cannot exceed 20 school days in a school year; or • 30 school days if the student has, for purposes of adjustment, enrolled or transferred to another regular school or class, an opportunity school or class, or a continuation education school or class. • Expulsion hearing within 30 days. 13

Special Education Discipline • Special education student discipline protections apply whenever: – (1) The District seeks to make a disciplinary change in a special education student’s placement; or – (2) The District had “knowledge” that the student was a child with a disability. 14

Knowledge that the Student has a Disability • “Knowledge” of a student’s disability occurs when: – The parent expressed concern in writing to a teacher, or supervisory or administrative personnel of the District, that the student needs special education; – The parent requested a special education assessment of the student; or – The child’s teacher/District personnel express to the special education director/District advisory personnel specific concerns about a pattern of behavior demonstrated by the student. 15

Knowledge that the Student has a Disability • “Knowledge” does not exist when: – The parent has refused to allow the District to assess the student; – The parent refused special education services; or – The District assessed the student and found that the student did not qualify for special education 16

Knowledge that the Student has a Disability • If there is a basis of knowledge that a student being suspended or expelled has a disability, the District must hold a “manifestation determination” within 10 school days of a decision to make a disciplinary change in placement. 17

Student Discipline and Special Education Changes in Placement 18

Change of Placement • A change of placement occurs if: – More than 10 consecutive school days; or – More than 10 cumulative days of short-term removals and constitute a pattern. 19

Change of Placement • Removals constitute a pattern when: – Removals total more than 10 school days in a school year; – Behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and – Additional factors such as the length of time of the removal, the total amount of time of the removal, and the proximity of the removals to each other. 20

Change of Placement: Interim Alternative Educational Settings • A student may be moved to an IAES for up to 45 school days if the student does any of the following at school or at a school function: – Possesses a weapon; – Possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance; or – Has inflicted serious bodily injury upon another person while at school, on school grounds or at a school function. Query: How to do this? 21

Serious Bodily Injury • The IDEA adopts the definition of "serious bodily injury " set forth at 18 USC 1365 (h)(3). 34 CFR 300. 530 (h)(i)(3). • That provision defines SBI as bodily injury which involves: – substantial risk of death; – extreme physical pain; – protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. 71 Fed. Reg. 46, 722 (2006). 22

SBI • Pocono Mountain Sch. Dist. (2008), 109 LRP 26432 (finding that although the student's behavior was injurious, frightening, and intimidating, "a broken nose does not fit within the [IDEA's] narrow definition of the infliction of SBI). • re: Student with a Disability (2010), 54 IDELR 139 (holding that while a paraprofessional suffered discomfort, disorientation, and pain that she rated at "seven" on a scale of one to 10 after being hit by a student, she was given no pain medication at the hospital and was back to normal the next day, and thus she did not suffer extreme pain within the meaning of the statutory definition of SBI) • Westminster Sch. Dist (2011), 56 IDELR 85 (a teacher's medical treatment, the fact that two drugs failed to provide pain relief, and her own characterization of her pain as the worst of her life showed that she suffered a 23

Change of Placement • • Bus suspensions On-campus suspensions Suspensions for less than one full school day Being “sent home early” 24

Change of Placement: Bus Suspensions • If transportation is included in the student’s IEP, a bus suspension must be treated as a “removal. ” • Such removal constitutes a change in placement if it is for more than 10 consecutive school days, which requires a Manifestation Determination (“MD”) (OSEP Letter to Sarzynski, 112 LRP 35343, June 21, 2012) 25

Change of Placement: On-Campus Suspensions • On-campus suspensions count as days towards suspension unless: – The student continues to receive the services specified in his IEP; – The student is able to appropriately participate in the general curriculum; and – The student is able to participate with nondisabled children to the same degree he could before suspension. (Parent v. Cloverdale Unified School District (2010) OAH Case No. 2010081062) 26

Day 11 Services • On Day 11 of suspension, or if the student is being recommended for expulsion, the District has additional requirements: – 1. Day 11 services AND – 2. MD Meeting • a “Manifestation Determination” within 10 school days of a decision to make a disciplinary change in placement. • District must notify parents and provide procedural safeguards 27

Manifestation Determinations • The MD Review must include at least one parent/guardian and relevant members of the student’s IEP team. – It is best to have the whole IEP team present. • Review all relevant information in the student’s file, including the IEP, teach observations, and any other relevant information. 28

Manifestation Determinations • The IEP team will determine whether the student’s behavior that led to the discipline was: – Caused by, or had a direct and substantial relationship to, the child’s disability; or – The direct result of the Director’s failure to implement the student’s IEP. 29

Manifestation Determinations • If the answer to both questions is “no”: – The District can discipline the student in the same manner as general education students. – The District may need to conduct behavioral assessment or offer behavioral interventions. • If the answer to either question is “yes”: – Student cannot be further disciplined. – Return the student to the placement from which they were removed, unless placement is changed through IEP process or student is placed in IAES. – Must conduct behavioral assessment and develop behavioral intervention plan, unless the student already has one. – If IEP was not properly implemented, must take immediate steps to remedy this. 30

Manifestation Determination IEP • At each subsequent suspension past 10 days, the team MUST conduct a MD, even for the same offense. • A school site may NOT exceed 20 days of suspension for a special education student. 31

Section 504 Discipline • MD meeting must be held to determine if the student’s behavior was a manifestation of their documented disability. • A 504 student is not entitled to services on Day 11 of suspension. 32

Change of Placement: Interim Alternative Educational Settings Honig v. Doe • Honig is the touchstone Supreme Court case regarding the IDEA’s “stay put” provisions. • Judicial relief to remove “dangerous” student from school is an exception to stay put. 33

Take Aways • Communication between GEN and SPED • Follow Timelines • Conduct Proper MD 34

Case Examples 35

Questions 36

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