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IDEA 2004 Close Up: Disciplining Students With Disabilities

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By Candace Cortiella, The Advocacy Institute

Be on the Alert for the "Special Circumstances"

Certain offenses can lead to a student being moved to an interim alternative educational setting for up to 45 school days even if the conduct is determined to be related to the student's disability. Removing a student for these offenses does not require parent permission or agreement, nor does it require any involvement by a hearing officer or other impartial third party. These offenses are:

  • Weapons

If a student carries or possesses a weapon:

  • On the way to or at school
  • On school premises
  • At a school function

  • Drugs

If the student knowingly possesses or uses illegal drugs or sells or solicits the sale of illegal drugs:

  • While at school
  • At a school function

  • Serious bodily injury

If a student has inflicted serious bodily injury upon another person:

  • While at school
  • On school premises
  • At a school function

An additional provision allows a school to seek to remove a student for up to 45 school days if the school believes that returning the student to the same educational placement is substantially likely to result in injury to the student or other students. The school must do this by making a request to a hearing officer, who, among other requirements, is not employed by the state education agency or local school district involved in educating the child; has specialized knowledge and skills related to IDEA; and has no interests that conflict with his objectivity in the hearing process.

Parent Right to Appeal

Parents have the right to challenge any decisions made regarding the interim alternative educational setting or the determination regarding the "manifestation determination" by asking for a due process hearing. Schools can also request a hearing if school personnel feel that returning a student to the original educational setting is highly likely to result in injury to the student or to others.

In either case, the hearing must be "expedited" by:

  • holding the hearing within 20 school days of the date requested; and
  • issuing a decision by the hearing officer within 10 school days after the hearing.

IDEA 2004 made an important change to the placement of students during this appeal process. Before, a student was to remain in his or her current educational placement during the appeal process - often referred to as "stay put." Now, under IDEA 2004, the student remains in the interim alternative educational setting, unless the parent and the state agree otherwiseor the time period for the infraction (e.g., 45 school days for special circumstances or duration applied to non-disabled students) has expired.

Candace Cortiella's work as Director of the nonprofit The Advocacy Institute focuses on improving the lives of people with learning disabilities, through public policy and other initiatives. The mother of a young adult with learning disabilities, she lives in the Washington, D.C., area.

Comments from readers

"I need help my child is not thriving in his school he has learning disability some speech impediment and he is ADHD I am willing to pay for his education using his supplemental income to insure that Jeremiah is becoming all he can be. I am not pleased with the behavioral program in Lancaster TX that my child has become confined to. It is not working for us and I am unable to move him to anyother school in Lancaster TX therefore I am searching for alternatives there are pictures in my phone where the teacher scratched his neck up trying to hold him with her nails, he has had a busted lip trying to gain entry into the school, has stated that a teacher hit him, he is often times given extra medicine after I have informed them he has been medicated. he has a cut just centimeters from his eye where his teacher said the point of another students scissors was used by J to cut himself the list goes on.. HELP ME I AM ASKING FOR HELP."
"I think alot of reasons why children who have behavioral issues is because of parents who haven't interllectually and emotionally dealt with the fact that they are disabled.I wouldn't be married today If my image of being a perfect father and husband superceeded the desire to serve my wife and son imperfections and all.Divorce can also be a major reason why a child behaves badly especially at school.There is also a sibling rivalry component where the sibling feels that their place on the family tree is undermined.That sibling can communicate consciously or sub consciously hey you made mom and dad breakup and you upstaged my place in mom and dads eyes.This can render a child feeling out of place and feeling at the very least under valued.The emotional stability of a child whether or not their disabled or the parent is there is no place for ego/pride/resentment/guilt if a parent is going to raise their children effectively."
"my son has an I.E.P. and has behavioral issues.Recently a staff memeber on her way to school said she saw my son and 4 other kids smoking pot.(they were smoking cigs.)and they werent on school grounds. She went into the school and reported it to the vice principal. He called them all into his office and searched them all, he found nothing so he then searched their lockers and ofcourse they found a small roach in my sons locker only. He was the only one suspended and he was arrested.The vice principal even told me on the phone that he did not look high or smell like weed, but this school has been trying to get him out of there since day one.Now they are trying to expel him from school. he would like to go to an alternative school to get his diploma and wants to go to college after. He is not a bad kid, he made a mistake and shouldnt have to pay for it for the rest of his life. Do they have to provide him with an education or not????? HELP!!"