Disciplining Students With Disabilities

Given the climate of school violence that exists today in many of our schools in the form of bullying, guns, and threats to safety, schools are developing zero-tolerance policies to help protect their students. However, these policies must follow rules and procedures dictated by the New Jersey and United States applicable laws. This is especially true when disciplining a student with disabilities. Such students are afforded certain disciplinary protections by the Federal and State laws. As a parent of a child with a disability, it is important for you to know about certain rules that school districts must follow if they want to discipline your child. These rules apply to public schools, charter schools, and private schools if the student involved is one with disabilities.

Schools are given some discretion in developing a code of conduct for students. However, the by-laws of the district must be in accordance with the individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act. These contain certain disciplinary rules that may provide a student with disabilities more protections, and limit the school’s ability to impose certain means of discipline.

IDEA gives certain protections for eligible students and thought-to-be-eligible students when those students engage in behavior that is a manifestation of their disabilities. Section 504 contains a similar protection for students when behavior and the disability are closely related.

Discipline/Suspension/Expulsion in New Jersey

School district officials may order the removal of a student with disability from his or her current educational placement to an interim educational setting, another setting, or a suspension for up to 10 consecutive or cumulative school days in a school year. Such suspensions are subject to the same school district procedures as those for nondisabled students. However, at the time of removal, the principal shall forward written notification and a description of the reasons for such action to the case manager and the student’s parent(s).

• Notwithstanding the above, preschool students with disabilities shall not be suspended, long-term or short-term, and shall not be expelled.
• The board of education is not required to provide, during periods of removal, services to a student with a disability who has been removed from his or her current placement for 10 school days or less in a school year, provided that if services are not provided to general education students for removals of 10 or fewer days duration.

School district personnel may consider, on a case-by-case basis, any unique or unusual circumstances when determining whether or not to impose a disciplinary sanction or order a change in placement for a student with a disability who violates a district’s code of conduct.

The removal of a student with a disability from his or her current educational placement for disciplinary reasons constitutes a change of placement if:

• The removal is for more than 10 consecutive school days; or
• The student is subjected to a series of short-term removals that constitute a pattern because cumulate to more than 10 school days in a school year and because of factors such as the length of each removal, the amount of time the student is removed, and the proximity of the removals to one another. This pattern shall be determined by the district’s board of education officials and the student’s case manager.

Disciplinary action initiated by the district’s board of education that involves removal to an interim alternative educational setting, suspension for more than 10 school days in a school year, or expulsion of a student with a disability shall be in accordance with 20 U.S.C.§1415(k). (See N.J.A.C. 6A:14. However, removal to an interim alternative educational setting of a student with a disability in accordance with 20 U.S.C.§1415(k) shall be for a period of no more than 45 calendar days.

In the case of a student with a disability who has been removed from his or her current placement for more than 10 cumulative or consecutive school days in the school year, the school district shall provide services to the extent necessary to enable the student to progress appropriately in the general education curriculum and advance appropriately toward achieving the goals and objectives set out in his or her IEP.

• When it is determined that a series of short-term removals is not a change of placement, the school district’s board officials, in consultation with the student’s special education teacher and case manager, shall determine the extent to which services are necessary to enable the student to progress appropriately in the general education curriculum and advance appropriately toward achieving the goals and objectives set out in his or her IEP.
• When a removal constitutes a change in placement, and it is determined that the behavior is not a manifestation of the student’s disability (see below), the student’s IEP team shall determine the extent to which services are necessary to enable the student to progress appropriately in the general education curriculum and advance appropriately toward achieving the goals and objectives set out in his or her IEP.

Manifestation Hearing

The IEP team (which includes your child’s special and regular classroom teachers, related services providers, speech therapist, occupational therapist, counselor, therapist, school district representative and parents) must determine whether or not your child’s behavior was a manifestation of his or her disability. They meet to review the behavior at issue and determine whether or not it was a manifestation of the disability. To determine this, they must consider two questions:

• Was the behavior caused by or did it have a direct relationship to your child’s disability?
• Was the behavior the result of the school district’s failure to properly implement your child’s IEP?

A “yes” answer to either of these questions indicates that the behavior was a manifestation of your child’s disability. Consequently, your child must be returned to his or her previous placement, or an alternative placement mutually agreed upon by you and the school district.

Further, if the behavior was a manifestation of your child’s disability, the school district must also complete a Functional Behavior Assessment (FBA). From this, they will develop a Positive Behavior Support Plan (PBSP). The IEP team may consider adjusting your child’s IEP with your cooperation.

If the answers to the two manifestation questions indicate that your child’s behavior was not a manifestation of his or her disability, then the actions set forth at the outset apply.

School Change Without Manifestation Determination

The school district may make a change in your child’s placement regardless of whether the behavior was a manifestation of his or her disability. The school district may move your child to an interim educational setting for up to 45 days if:

• He or she was in possession of a weapon at school or at a school function;
• He or she knowingly was in possession of, used, sold, or attempted to get illegal drugs at school or at a school function; or
• He or she inflicted serious bodily injury on another person while at school or at a school function.

Student Records

• All student records shall be maintained according to
  N.J.A.C. 6A:32-7.
• The parent, adult student, or designated representative shall be permitted to inspect and review the contents of the student’s records, including discipline records, maintained by the school district without unnecessary delay and before any meeting regarding the IEP.