Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
As an assistant principal, one of my main jobs is handling discipline. Recently, one of my students videoed a fight at school, and then she posted the video online. In keeping with building policy, she received two days of out-of-school suspension, followed by a day of in-school suspension.
Today, I was contacted by the family’s lawyer, who informed me of the family’s intent to sue because, he claimed, we violated the student’s IEP when we suspended her by depriving her of time in the classroom.
We did hold a manifestation determination meeting, and at that meeting we determined that the student’s conduct was not a manifestation of her disability. That said, I don’t want the district getting in trouble because of an IEP violation.
Did I do something wrong?
Anxious Administrator
Dear Anxious:
It is no fun to take a call from a lawyer threatening you, and Legal Mailbag reminds you that you never have to talk with a lawyer just because he or she called. As Legal Mailbag has said, people talk with people and lawyers talk with lawyers. In any event, we can focus on the lawyer’s claim because it sounds like you just listened and did not engage in discussion with the lawyer.
In disciplining a student with a disability, the two primary concerns are (1) whether the district would be disciplining a student improperly on the basis of his or her disability, and (2) whether the discipline would be considered a unilateral change in placement in violation of the student’s rights.
As to the first concern, Legal Mailbag notes that your district conducted a manifestation determination and found that the student’s misconduct was not a manifestation of her disability. Given that finding, it was appropriate to hold the student accountable by imposing discipline. Status as a child with a disability does not insulate a student from disciplinary consequences.
As to the second concern, any exclusion from school for more than ten days is generally considered a change in placement which school officials cannot make unilaterally except in limited circumstances not applicable here (i.e., when a student (1) knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or at a school function, (2) carries or possesses a weapon to school or to a school function, or (3) has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function. 20 U.S.C. § 1415(k)(1)(G)). Given that the suspension in question here was only two days of external suspension and one day of in-school suspension, the ten-day limit seems not to be a problem.
There is, however, one additional concern to keep in mind. 34 C.F.R. § 300.536 states that disciplinary exclusions for more than ten days cumulatively over the course of the year may constitute a change in placement based on consideration of (1) whether the behavior for which the student was disciplined is substantially similar to the conduct that resulted in prior removals, and (2) other factors, such as length of each removal, total time the student has been removed, and the proximity of removals to each other. Unless the district has suspended this student previously this year, this complication should not concern you, and you can rest easy.