Procedural Violations Around Disciplinary Removals of Students with Disabilities May Be a Denial of FAPE

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Author: Heather Edwards, Attorney at Law

The laws governing the provision of special education and related services to students with disabilities are full of complex procedures.  When a local educational agency commits certain procedural violations, it may deny the child a free appropriate public education (“FAPE”), which means the LEA loses the case in litigation.  Among the fundamental procedures that schools must follow is the requirement to convene a manifestation determination review meeting when the school decides to change a student with disabilities’ placement due to a violation of school rules.

For example, in East Side Union High School District and Santa Clara County Office of Education (OAH Case No. 2016061098) (December 21, 2016), the hearing officer held, among other things, that the District’s failure to convene a manifestation determination meeting was a violation of IDEA. Specifically, Student was a 16 year old male student who was eligible for special education under the category of other health impaired and emotional disturbance.  A teacher overheard Student discussing smoking marijuana with another student and discovered two lighters in his pocket. Student was taken to an administrator’s office where he became confrontational and told the staff “You better watch your back” and “You’re going to get what’s coming to you.” Law enforcement was called and Student was removed from campus.

Following this incident, staff reported that they did not feel safe in Student’s presence. As a result, the school imposed a five-day suspension for the incident but Student was not allowed to return to school at the end of the five days. Instead, the school offered to place Student on “home instruction” as the only option for Student to continue to receive an education, and the parent agreed. However, this was accomplished without an IEP team meeting or manifestation determination review meeting, or any discussion of an interim alternative educational setting. Student remained on “home instruction” for approximately two months periodically receiving instructional packets and assignments and returning some of them, but did not receive any services from a teacher.  In doing so, the hearing officer determined that the District’s failure to follow proper procedure violated IDEA.

The hearing officer held that the District’s failure to convene a manifestation determination meeting prior to changing placement was a procedural violation of the Student’s and Parent’s rights.  The hearing officer reasoned that although the parent signed a document placing the student on “home instruction,” she did so because she was told that was the only way Student could continue to receive an education, not because she was waiving her right to any IDEA procedures.  The hearing officer explained that if a manifestation determination meeting had occurred, the likely outcome would have been that Student’s disabilities were related to his conduct, and he would have had a right to return to school and receive a functional behavior assessment and perhaps a revised behavior plan, or alternatively at least the IEP team would have been able to discuss an appropriate interim alternative educational setting.

For more information about how to avoid these sort of procedural missteps and learn best practices for handling discipline of students with disabilities, don’t miss GIRARD, EDWARDS, STEVENS & TUCKER LLP’s upcoming Special Educational Legal Seminar to be held on Monday, February 27, 2017 from 9:00 a.m. – 3:00 p.m. in Sacramento, CA. Registration information can be found at www.regonline.com/GESTspedlegalseminar.

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