Discipline of Students with Disabilities

The Board of Education, District Superintendent, Superintendent of Schools, a Building Principal or, in his/her absence, an acting Building Principal may suspend a student with an educational disability for a short-term (5 school days or less) in the same manner as non-disabled students may be suspended.  A principal’s designation of an Interim Alternative Educational Setting must be made in consultation with the student’s special education teacher.

In the event that a student has a known disability or when school officials can be deemed to know – in accordance with law, that a student has a disability or meets the suspected of having a disability standard, the District will first proceed to conduct a §3214 long term disciplinary proceeding for any suspension of more than five days. The §3214 disciplinary proceeding will be held in two parts, first to determine the student’s guilt or innocence on the charges and the second to determine the penalty.

If guilt is determined on a violation of a provision of the District’s Code of Conduct, before a penalty may be imposed, the following rules shall apply:

§504/ADA Disability

For a student solely with a disability under §504 of the Rehabilitation Act of 1973 (“§504”)/Title II of the Americans with Disabilities Act (hereinafter referred to as the “ADA”), the §504 multi-disciplinary committee must make a determination regarding whether the conduct underlying the charges was a manifestation of the student’s disability.

1. If a nexus is found between the disability and the conduct, no additional discipline shall be imposed and the record of discipline imposed to date shall be expunged.
2. If no nexus is found, yet a disability is indicated, or has been identified, discipline may be imposed upon remand to the §3214 hearing officer.  A change in placement; i.e. a suspension, removal or transfer, in excess of ten (10) school days must be preceded by notice and an evaluation conducted by the §504 team.
3. Students with a recognized §504/ADA disability who are known to be currently engaged in the illegal use of drugs or alcohol, who are found to be using or in possession of alcohol or drugs may be disciplined, regardless of their disability status, in the same manner and to the same extent as non-disabled students.

IDEA Disability

For students classified or presumed to have disabilities under the IDEA (a student with an educational disability), a Manifestation Team must make a Manifestation Determination prior to a student’s suspension for 10 or more consecutive school days or prior to a suspension of 10 days or less, if it has been determined that a suspension for less than ten consecutive school days would constitute a disciplinary change in placement.

A series of suspensions that are each ten (l0) days or fewer in duration may create a pattern of exclusions that constitutes a disciplinary change in placement. That determination will made on a case-by-case basis in accordance with applicable law and regulation. Among the factors to be considered in making this determination are the length of each suspension, the proximity of the suspensions to one another, and the total amount of time the student is excluded from school.

A student shall be presumed to have a disability if prior to the time the behavior occurred:

1. The parent or guardian of the child has expressed in writing to supervisory or administrative personnel of the appropriate educational agency or to a teacher of the student that the student is in need of special education, provided that such notification may be oral if the parent does not know how to write or has a disability that prevents a written statement; or
2. The parent of the student has requested an evaluation of the student; or
3. A teacher of the student or other personnel of the District has expressed specific concern about a pattern of behavior demonstrated by the student to supervisory personnel in the District in accordance with the District’s child-find procedures.

A student shall not be presumed to have a disability for discipline purposes, despite satisfaction of one or more of the above criteria, if:

1. The parent of the student has not allowed a relevant evaluation of the student by the Committee on Special Education (“CSE”);
2. The parent of the student has refused special education services; or
3. It was determined by the CSE or Committee on Preschool Special Education (“CPSE”) that the Student is not a student with a disability; or
4. It was determined that an evaluation was not necessary and the District provided appropriate notice to the parents of such determination.

Manifestation Determinations

A Manifestation Team, which shall include a representative of the school district knowledgeable about the student and interpretation of information about child behavior, the parent and relevant members or the committee on special education as determined by the parent and the school district. The parent must receive written notification prior to any manifestation team meeting to ensure that the parent has an opportunity to attend and inform the parent(s) of their right to have relevant members of the CSE participate at the parent’s request.

1. When making a manifestation determination, the Manifestation Team shall review all relevant information in the student’s file including the student’s IEP, any teacher observations and any relevant information provided by the parents to determine if:
   1. The conduct in question was caused by or had a direct and substantial relationship to the student’s disability; or
   2. The conduct in question was a direct result of the school district’s failure to implement the IEP

If either of the aforementioned criteria listed as “a.” and “b.” above are answered affirmatively, the conduct in question shall be deemed to be a manifestation of the student’s disability.

When the Manifestation Team determines that the conduct in question was a manifestation of a student’s disability, the CSE shall meet to recommend and conduct a functional behavioral assessment and implement (or modify) a behavior intervention plan in accordance with 8 NYCRR § 201.3 and  201.4(d)(2)(a)).

A meeting for the sole purpose of making a manifestation determination does not require five calendar days’ notice to the student’s parent or guardian.  However, if the CSE meets to consider a change in placement in conjunction with the manifestation determination, the five-day notice requirement of §200.5(a)(3) of the Commissioner’s Regulations will be applicable.

Discipline of Students With Disabilities When the Manifestation Team has made an Affirmative “Manifestation Finding”

When an educationally disabled student’s conduct is a manifestation of the child’s disabling condition, a student classified under IDEA may only be suspended from school for more than ten (10) consecutive school days, if one of the following applies:

1. The CSE recommends a change in placement on the student’s Individualized Education Plan (IEP) and Behavior Intervention Plan and the parent, guardian or eighteen-year or older student consents to such change in writing following receipt of their Procedural Safeguards Notice.
2. A court order or order from an impartial hearing officer of suspension/removal of a dangerous student pursuant to 8 NYCRR 201.8 is obtained.
3. The violation involves weapons, drugs/controlled substances or serious bodily injury.

Suspensions for Misconduct Involving Weapons and/or Drugs and/or Serious Bodily Injury

A student classified or suspected of having a disability under IDEA may be suspended and placed in an Interim Alternative Educational Setting (“IAES”) for up to forty-five (45) school days (less if the discipline is for a non-disabled student would be less), if the student is found guilty of: 1) carrying or possessing a weapon while at school, on school property or while at a school function; 2) knowingly possessing or using illegal drugs, or selling or soliciting the sale of a controlled substance while at school, on school premises or while at school function; or 3) inflicting a serious bodily injury to another person while at school or a school function.

1. In accordance with law, the term “weapon” means “a weapon, device, instrument, material or substance, animate or inanimate, that is used for, or is readily capable of causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2-1/2 inches in length.”
2. In accordance with law, the term “illegal drugs” means controlled substances but not those legally possessed or used under the supervision of a licensed health care professional or other permitted authority under the Federal Controlled Substances Act or under any other provision of Federal law. Controlled substances are drugs and other substances identified under schedules set forth in applicable Federal law provisions.
3. In accordance with law, the term “serious bodily injury” means bodily injury which involves a 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.

Before a student is suspended and placed in an IAES for up to 45 school days for behavior involving weapons and/or drugs and/or serious bodily injury, the Manifestation Team must conduct a manifestation determination. Placement in an IAES as a result of conduct involving weapons and/or drugs and/or serious bodily injury is not contingent upon a Manifestation Team determination that the misconduct is not related to the student’s disability.

1. If the student is or may be placed in an IAES, the CSE shall, as appropriate, recommend functional behavioral assessment and behavior intervention, or review any such pre-existing plan for modification; and
2. A CSE shall determine and recommend an IAES reasonably calculated to enable the child to continue to receive educational services, participate in the general curriculum and progress toward meeting IEP goals and objectives during the period of suspension from instruction.

Dangerous Students

To continue the suspension of a student classified or deemed to be known as having an education disability under IDEA for more that 10 consecutive school days, the School District may commence an expedited hearing before a special education impartial hearing officer to demonstrate that a student is “dangerous” and is substantially likely to cause injury to himself or others if returned to his last agreed upon placement. An impartial hearing officer may order the placement of the student in an interim alternative setting for up to forty-five (45) school days in accordance with 8 NYCRR §201.8 and 201.11.

1. The Manifestation Team shall conduct a manifestation determination within 10 school days of the initial disciplinary action.
2. If the student is or may be placed in an IAES, the CSE shall, as appropriate, recommend a functional behavioral assessment and behavior intervention plan, or review any such pre-existing, plan for modification; and
3. An impartial hearing officer’s determination allowing a student’s placement in an IAES as a result of dangerous behavior, is not contingent upon a Manifestation Team determination that the misconduct is not related to the student’s disability.  The IAES placement shall be based upon the CSE’s recommendation.

Discipline of Students with Disabilities when the Manifestation Team has made a “No Manifestation Finding”

Where a student with a disability’s conduct is found not to be a manifestation of his/her disability he/she may be disciplined in the same manner and to the same extent as non-disabled students. In such instances, the CSE shall meet upon proper notice to determine any appropriate evaluations which must be performed, changes to a student’s IEP and to recommend an appropriate IAES where the child can continue to receive educational services, although in another setting, that enable the child to participate in the general education curriculum and progress toward meeting IEP goals and objectives during the period of suspension from instruction. Where a suspension or disciplinary change in placement will exceed 10 school days, the CSE shall conduct a functional behavioral assessment and implement or modify a behavior intervention plan, as well as implement modifications intended to avoid a recurrence of the behavior.

Pendency Placement

An IAES shall be deemed the student’s “stay put” placement for up to forty-five (45) school days, during the pendency of any expedited due process proceedings commenced by parents to contest 1) a finding that a  student is not “presumed to have a disability”, and/or 2) a finding that the  student’s misconduct was not a manifestation of the student’s disability, and/or 3) a decision to place a student in a CSE recommended IAES for misconduct involving weapons and/or drugs and/or serious bodily injury, and/or 4) the decision of an impartial hearing officer in a dangerousness hearing and/or 5)the appropriateness of an IAES program recommended by the CSE in the context of  one of the four categories of action listed above.

Declassified Students

In accordance with law, the CSE must conduct a manifestation determination in the case of a student with an educational disability who has been declassified if the disciplinary matter involves behavioral problems.

Adoption date:  November 9, 1998

Revised:  June 25, 2001

Revised:  July 1, 2006