What Protections are Available for My Special Education Child Facing School Discipline?

It is critical to know the protections that are available for your child if facing disciplinary action from his or her school. Special education students are protected under the Individuals With Disabilities Education Act (“IDEA”) when facing discipline in their school setting. Specifically, a student with disabilities cannot be suspended or expelled for more than 10 days without a manifestation determination meeting. The district must convene an IEP meeting within 10 school days of its decision to change the placement of a child with a disability when based upon a violation of a code of conduct with the purpose of determining whether the conduct was a manifestation of the student’s disability. IDEA 20 U.S.C. § 1415(k)(1)(E)(i). The local educational agency, the parent, and relevant members of the IEP Team shall review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine if the conduct in question (1) was caused by, or had a direct and substantial relationship to the child’s disability or (2) was the direct result of the local educational agency’s failure to implement the IEP. IDEA 20 U.S.C. § 1415(k)(1)(E)(ii).

A child who has not been determined to be eligible for special education and related services and who has engaged in behavior that violates a code of student conduct, may assert any of the protections provided for a disabled child if the local educational agency had knowledge that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred. IDEA 20 U.S.C. § 1415(k)(5)(A). A local education agency shall be deemed to have knowledge that a child is a child with a disability if, before the behavior that precipitated the disciplinary action occurred—(i) the parent of the child has expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services; (ii) the parent of the child has requested an evaluation of the child (iii) the teacher of the child, or other personnel of the local educational agency, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of such agency or to other supervisory personnel of the agency. IDEA 20 U.S.C. § 1415(k)(5)(B).

Priya Bahl-Sen is an attorney with over 15 years of experience, litigating and advocating for her clients. Ms. Bahl-Sen is a graduate of UCLA and Santa Clara University School of Law. Attorney Bahl-Sen works in alliance with Hope4Families, a non-profit Special Education law firm, that provides legal services to families in need, at no cost. Hope4Families assists parents/guardians of special needs school children in advocating for services from their school districts.