Expulsion of a Student with an IEP Who Has Violated a School Rule of Conduct

Under state and federal special education law, with certain exceptions, a school district can expel a child with an IEP for the same behavior it would expel a student without an IEP.  For a child with an IEP, expulsion is a “change of placement” because it constitutes a significant change in the child’s educational setting (not just a change in classroom or building within the school district) for more than ten days.

Within ten school days of a school district’s decision to expel a child with an IEP, staff from the AEA and school district, the parent, and members of the child’s IEP team must review the child’s IEP, teacher observations, all relevant information in the child’s school file, and any related information provided by the parents, and determine whether the behavior that violated was a direct manifestation of the child’s disability.

1. If the group determines that the conduct was a manifestation of the child’s disability, then the IEP team must perform a functional behavior assessment and develop a behavioral intervention plan for the child. If the child already has a behavior intervention plan, the team must review and modify it, as needed, to address the behavior. With some exceptions, they may decide to return the child to school.

2. If the group determines that the behavior that violated the school code is not a manifestation of the child’s disability, the school may apply the disciplinary procedures to children with disabilities in the same manner and for the same duration as the procedures they apply to children without disabilities.

If the behavior for which the child with an IEP was expelled involved threats or incidents of violence, alcohol, weapons, or drugs (or if the group determined the behavior wasn’t a direct manifestation of the child’s disability), during the period of expulsion, the school must provide the child with educational services to allow the child to continue to participate in the general education curriculum in another setting, and to progress toward meeting the goals in the child’s IEP. The child’s IEP team determines the type, location, and amount of those services.

Request and Insist on Receiving Advance Copies of Draft IEPs and Amendments to IEPs

Parental review of a child’s IEP drafts and amendments in advance of IEP meetings is vital to their participation in the development of their children's IEPs.

However, IEP teams in Iowa typically wait until IEP meetings to provide parents with copies of draft IEPs and IEP amendments. This puts parents at a great disadvantage in with respect to participating meaningfully in the development of their children’s IEPs. By withholding draft IEPs and amendments from parents until meetings, IEP teams deny parents the time needed to read and process the content and formulate their own questions and input.

I strongly recommend to parents that as soon as they learn that an IEP meeting is being scheduled, they prepare an email requesting that at least three to five days before the meeting is scheduled, the IEP team send them an advance copy of any IEP draft or IEP amendment, and send the email to their child’s special education teacher, school principal, the school district’s special education director, and the Area Education Agency representative who serves on the child’s IEP team.

If an IEP team doesn’t honor a parent’s timely request for advance copies, and at the meeting begins passing out or displaying IEP drafts or amendments, rather than lying down before the steamroller, parents can politely arise and state that the meeting should be terminated and rescheduled for a mutually acceptable date and time after they have had several days to read and consider the contents of the IEP draft or amendment, compare it to the current IEP, and prepare for the meeting.

When Can A School District Exit a Child from Special Education?

The IDEA requires that states receiving federal IDEA funds provide a FAPE to all public school children with disabilities residing in the state through age 21. 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R. § 300.101. This requirement ends when: 

1.  The student has exceeded the age of eligibility for FAPE under state law. 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R. § 300.101; Iowa Admin. Code r. 281–41.102(1)(a). In Iowa, this is until the student's 21st birthday or through the end of the school year in which the student turns 21. 

2.  The student no longer meets the legal definition of a “child with a disability.” 34 C.F.R. § 300.8(a); 34 C.F.R. § 300.306(b); Iowa Admin. Code r. 281—41.305(1)(b)(1).

3.  The student’s parents or guardians revoke consent in writing for the continued provision of special education and related services. 34 C.F.R. § 300.300(b)(4); Iowa Admin. Code r. 281–41.300.2(d).

4.   The student has graduated from high school with a regular high school diploma or higher diploma, but a regular high school diploma does not include a recognized equivalent of a diploma, such as a general equivalency diploma, certificate of completion, certificate of attendance, or any similar lesser credential. 34 C.F.R. § 300.102(a)(3)(iv); Iowa Admin. Code r. 281–41.102(1)(c)(4).  

A Regular High School Diploma Cannot Be Based on Coursework Aligned with Iowa’s Alternative Academic Achievement Standards and Alternative Assessment

 In the past year, I've responded to several calls from parents who were struggling to respond to challenges from their child’s private and Medicaid insurers, asking the parents how their children, who the parents and school district said had substantially limited expressive and receptive communication skills and functioned at the level of a two-to-three-year old, had earned regular high school diplomas. 

Calls like this concern me because students whose high school instruction was entirely or mostly based on Iowa’s Essential Elements are not eligible to receive a regular high school diploma.  

Under state and federal law, a regular high school diploma may not be based on high school credits in courses based on Iowa’s Essential Elements for Students with the Most Significant Cognitive Disabilities. 34 C.F.R. § 300.102(a)(3)(iv); Iowa Admin. Code r. 281–41.102(1)(c)(4). A regular high school diploma is the high school diploma (or a higher form of diploma) awarded to the vast majority of graduating students, and doesn’t include any other form of diploma, GED, certificate of completion, certificate of attendance, or any similar lesser credential. 34 C.F.R. § 300.102(a)(3)(iv); Iowa Admin. Code r. 281–41.102(1)(c)(4).

The reasons state and federal law do not permit a regular high school diploma to be based on high school courses aligned with alternate academic achievement standards include:

1. Preserving the Integrity and Value of the High School Diploma. The legal requirement that a regular diploma must be aligned with a state's regular academic achievement standards prevents dilution of the diploma’s value in certifying to employers, postsecondary institutions, and others that a graduate has met the state’s academic requirements. 34 C.F.R. § 300.102; K.L. v. R.I. Bd. of Educ., 907 F.3d 639, 652 (1st Cir. 2018).

2. Preventing Premature Termination of Special Education. The IDEA requires that students with disabilities receive a FAPE until they either age out or graduate with a regular high school diploma. If a regular diploma could be awarded based on alternate, less rigorous academic standards, school districts could use such diplomas to terminate special education services before students with disabilities have aged out of special education eligibility at age 21. See e.g., K.L. at 652.

3. Ensuring Access to the General Curriculum. Requiring that alternate academic achievement standards are based on the state’s regular academic achievement standards ensures access of children with significant cognitive disabilities to the general curriculum (34 C.F.R. 300.39(b)(3)(ii); Iowa Admin. Code. r. 281-41.39(c)(3)(ii)) and to prepare for further education, employment, and independent living. 20 U.S.C. § 1400(d)(1)(A).

4. Ensuring Transparency and Informed Decision-Making. The IDEA and the Every Student Succeeds Act require that IEP teams and parents be informed about the implications of taking courses based on alternative academic achievement standards and alternate assessments. 34 C.F.R. § 300.160(3); 34 C.F.R. § 200.6; Iowa Admin. Code r. 281-41.160.