Students with IEPs and Public School Expulsions

Recently, I've received questions concerning public school expulsion of students with IEPs. Below I have briefly summarized the general procedures and applicable law. 

The Iowa Legislature conferred broad statutory authority on local public school boards to adopt and enforce their own rules and disciplinary policies. Local school boards have explicit statutory authority to expel or suspend students for violating school rules under Iowa Code 282, which states in its first paragraph:

The board may, by a majority vote, expel any student from school for a violation of the regulations or rules established by the board, when the presence of the student is· detrimental to the best interests of the school. The board may confer upon any teacher, principal, or superintendent the power temporarily to suspend a student, notice of the suspension being at once given in writing to the president of the board.

1.  Suspension. When a student is discovered or reported for violating a school rule for which the student may be expelled, generally, a school administrator issues an out-of-school suspension and sends a notice of the student's suspension to the parents and the president of the school board. The board will review the suspension and decide whether to hold a disciplinary hearing to determine whether or not to order further sanctions against the student, which may include expulsion. See Iowa Code 282.4.

2. Manifestation Determination Meeting. A suspension for more than ten days is considered a "change of placement." See Doe v. Todd Cty. Sch. Dist., 625 F.3d 459, 461 (8th Cir. 2010) citing Honig v. Doe, 484 U.S. 305, 325 n.8, (1988). When the student has an IEP and the suspension is for more than 10 days, or adds up to 10 days within the same school year, or if expulsion is recommended, within ten school days the school district and AEA are required to hold a manifestation determination meeting to determine whether the student's behavior that gave rise to the violation was a manifestation of the student’s disability. See 20 U.S.C. § 1415(k); 34 C.F.R. § 300.530; 281 I.A.C. 41.530. 

The team should determine whether the student actually committed the alleged violation, determine whether (1) the student's behavior was caused by the student's disability, and (2) whether the student's conduct was the result of inappropriate placement. Meeting discussions and conclusions should be recorded. The team must inform the parent of its decision that same day. Id.

2.  Notice of the school board hearing. The hearing notice sent to the student's parent should refer to the board policy or rule the student is accused of violating and a state that expulsion is being recommended. The notice must state the date, time, and place of the school board hearing and what evidence and witnesses the board plans to present at the hearing. The notice should also inform the parent of the parent's right to:

• have counsel or representation present at the parent's choice and expense,
• cross-examine witnesses against the student,
• produce witnesses to testify,
• receive copies of the documents supplied to board members, and
• a closed (nonpublic) hearing.

3.  The school board hearing. At the hearing, the school board is not required to give a full statement of the student's rights and:

• there is no right to have all witnesses sworn by a person authorized to give oaths,
• there is no subpoena power to compel witnesses to be present and testify against their will,
• there is no free legal assistance,
• there is no requirement for a court reporter (the hearing will be recorded),
• there is no right to know the identity of student informants, and
• Iowa law does not require the recusal (non-participation) of a board member if the board member is biased in favor or against the student.

4.  After the hearing. The board deliberates in closed session before making its decision. After it has concluded its deliberations, the parent will be given the decision.

5.  Findings of fact and conclusions of law. The parent will receive a written copy of the board's findings that will state the evidence that led the board to believe the student committed the violation and the board's decision. 

6.  Appeal. A parent who disagrees with the decision of the school board may, within thirty days after the decision, appeal the decision to the Iowa State Board of Education. See Iowa Code 290.1.  The standard of review of such appeals requires the State Board to affirm the local board's decision unless it is "unreasonable and contrary to the best interest of education." See In re Jesse Bachman, 13 D.o.E. App. Dec. 363 (196). 

7. Services in Alternative Educational Placement. Under the Iowa Department of Education Rules of Special Education (281 I.A.C. 530) and the IDEA (20 U.S.C. § 1415(k)(1)(D), 34 C.F.R. § 300.530), a  student who is removed from his or her current placement based on a disciplinary violation, must continue to receive educational services to enable the child to continue to participate in the general educational curriculum, although in another setting, and to progress toward meeting the goals set out in the student's IEP. See 20 U.S.C. § 1415(k)(1)(D); 34 C.F.R. §300.530(c), (d)); 281 I.A.C. 41.530. The IDEA provides that the interim alternative educational setting shall be determined by the IEP Team (unless the student has committed a criminal offense and the juvenile court places the student in a facility), and the IEP Team determines appropriate services under § 300.530(d)(1), 34 C.F.R. § 300.530(d)(5). See also M.M. v. Special Sch. Dist. No. 1, 512 F.3d 455 (8th Cir. 2008). When a student has been removed to an alternate placement, the school district is not required to provide all services in the student's IEP. 

8.  Re-enrollment after expulsion. A student who has been expelled from public school and has not met the conditions of the expulsion, will not be permitted to enroll in a public school district until the board of directors of the school district approves, by a majority vote, the enrollment of the student. See Iowa Code § 282.4.

School Suspensions and Expulsions

Suspensions and Expulsions Generally

            In regard to students who are not receiving or eligible for special education services, the State of Iowa vests authority to expel a student from a public school in the school boards of each Iowa school districts.  Iowa Code § 282.4(1).  A school board may, by a majority vote, expel a student for a violation of the regulations or rules established by the board, or when the presence of the student is deemed to be detrimental to the best interests of the school.  The board may confer upon any teacher, principal, or superintendent the power temporarily to suspend a student, notice of the suspension being at once given in writing to the president of the board.

            Although students of mandatory school attendance age do not have a Constitutional right to a public education, in Goss v. Lopez, the U.S. Supreme Court held that state attendance laws provide them with a property right in receiving a public education.  On this basis, the Court ruled that a school district cannot expel a student without first providing “due process” to ensure the right isn’t taken away arbitrarily for more than ten days. 

            Under Iowa law, if a student breaks a school rule punishable by expulsion or a suspension of more than ten days, due process procedures are required, which culminate in a hearing before the school board.  In making its decision about whether to suspend the student for more than ten days, or to expel him or her for a year, the board is charged with considering “the best interests of the school district” and “what is best to protect and ensure the safety of the school employees and students from the student committing the assault.”

            When a student is alleged to have committed an action that is punishable by expulsion, due process under Goss requires that prior to the hearing, the school district must provide written notice by regular U.S. mail to the parents and student.  According to the School Administrators of Iowa, the notice should state the specific school rule that the student is accused of violating AND specifically state that expulsion is being considered or recommended.  The school district must schedule a an expulsion hearing before its school district board of directors, within ten days from the date the student was excluded from school.  

            The purpose of the written notice is to allow the student to prepare a meaningful defense.  When a school district fails to provide this notice, it violates the student’s due process rights. See In re Guthrie, 19 D.o.E. App. Dec. 306 (2001).  The School Administrators of Iowa recommend that if the school district plans to introduce evidence of the student’s past disciplinary history, this should be stated in the notice.  In addition, the notice should provide:

·         The date, time, and place of hearing

·         A recital of the rights of the parents and student

·         The names of witnesses who the school expects to give evidence and testimony

·         The parent and student’s right to counsel of his or her choice at their own expense

·         The right to cross-examine witnesses against the student

·         The right of the parent and student to produce witnesses to testify on the student’s behalf

·         The right of the parent and student to copies of documents supplied to board members

·         The right to a closed hearing unless an open hearing is specifically requested

            The student is entitled to a decision by an impartial decision maker. This notwithstanding, it is notable that Iowa law does not require a school board member who is biased in favor of or against the student, to recuse him or herself.  Nonetheless, if such a board member fails to do so, this issue may be raised on a later appeal by the student to the Iowa Department of Education. See generally, 281 IAC 6.1(290).

            At the hearing, after the student and school district have presented their witnesses and evidence, the school board goes into closed session to decide the case.  According to the School Administrators of Iowa closed sessions are always taped.  After the board has announced its decision at the hearing, the student and parents are entitled to receive written "findings of fact and conclusions of law."  See In re Shinn (14 D.o.E. App. Dec. 185 (1997)) which states that the due process rights of an expelled student include written findings and conclusions as to the charges and penalty.  The Findings of Fact section should summarize the testimony of those who testified about the guilt or innocence of the student.  The "Conclusions of Law" part of the written decision should set out the penalty the board has chosen.

            A parent who disagrees with the school board’s decision may appeal an expulsion decision to the Iowa Department of Education by filing a complaint requesting a due process hearing before an administrative law judge. 

Suspensions and Expulsions under the IDEA

            The above-described procedures apply to students who are not receiving special education services under the Individuals with Disabilities Education Act (IDEA). 20 USC § 1400 et seq.  Under the IDEA and its implementing regulations, a school district may suspend or move a student with a disability to an interim alternative educational setting for not more than 10 school days (consecutively or per school year) if under the circumstances a nondisabled student would be treated in the same manner for the same violation.

Change of Placement

            However, with respect to disciplinary removals of a student covered by the IDEA from the student’s current educational placement, a “change of placement” occurs if a student is removed for more than than ten consecutive school days; or the student has been subjected to a series of disciplinary removals totaling more than ten school days within a school year.  See 34 CFR 300.530 through 300.535.

Manifestation Determination

            If a student covered by the IDEA will be excluded from school for disciplinary reasons for over ten days (consecutively or within one school year), the IDEA requires the IEP team to make a decision within ten days of that exclusion to determine whether or not the offending behaviors were a "manifestation" of the student’s disability. 20 USC §1415(k)(4)(B),(C);  20 U.S.C. 1415(k)(1)(A) and (E).  This process, referred to as a “manifestation determination.” 34 CFR § 300.530(a) and (e). 

            The behavior must be determined to be a manifestation of the child’s disability if the parent and relevant members of the child’s IEP Team determine that:

·         the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or

·         the conduct in question was the direct result of the local educational agency’s failure to implement the IEP.

If Behavior is Determined to be a “Manifestation”

            If the IEP team determines that either of the above conditions applies, except for the following exception and the 45-day provisions described below, the school district cannot legally suspend the student beyond ten days, and the IEP team must conduct a functional behavior assessment and implement a behavior improvement plan for the student.  If a behavior improvement plan has already been developed, it must be reviewed and modified it as necessary to address the behavior.  

            Even if the IEP team determines that the behavior was a manifestation of the student’s disability, the school district may file for a due process hearing and ask the administrative law judge to order that the student receive services in an interim alternative educational placement for up to 45 days, on the basis that maintaining the student in his or her current placement "is substantially likely to result in injury to the child or to others." 20 USC § 1415(k)(3)(A). 

If Behavior is Not Determined to be a “Manifestation”

            If the team finds that the behavior was not a manifestation of the student’s disability, the school can suspend the student for the same amount of time that it would suspend a student without a disability for the same violation, but it must still provide ongoing education under the student’s IEP during the suspension.

The 45-day Rule

            Whether or not the IEP team determines that the behavior was a manifestation of the student’s disability, the IDEA specifically authorizes school districts to unilaterally (i.e., without the parent's consent) remove a student to an interim alternative educational setting for not more than 45 school days if the student carries a dangerous weapon to school or a school function, knowingly possesses, uses, sells or attempts to sell illegal drugs at school or at a school function, or inflicts serious bodily injury upon another person while at school or at a school. 20 U.S.C.S. § 1415(k)(1)(G)(i); 34 C.F.R. § 300.530(g).  The placement must include services to address the behavior for which the student is being suspended in the first place.     

            The IDEA provides that the interim alternative educational setting shall be determined by the IEP team and not the school district or AEA.  Doe v. Todd Co. Sch. Dist., 625 F.3d 459 (8th Cir. 2010), cert. den., 132 S. Ct. 367 (2011); 20 U.S.C.S. § 1415(k)(2); 34 C.F.R. §§ 300.530(d)(5), 300.531. 

Student who Might Be Deemed to Have a Disability

            A child who has not been identified as eligible for special education, who has engaged in behavior that violated a school rule, may assert any of the protections provided for in the IDEA if the school district had knowledge that the student had a disability before the behavior that precipitated the disciplinary action occurred. 

            The IDEA deems a school district to know that a student has a disability if, before the behavior that precipitated the disciplinary action occurred:

·         The parent of the child expressed concern in writing to the school district or AEA that the student is in need of special education;

·         The parent of the student requested an evaluation of the student pursuant to 34 CFR 300.300 through 300.311; or

·         A teacher of the student, or other personnel of the LEA, expressed specific concerns about a pattern of behavior demonstrated by the student to the director of special education of the school district or AEA, or to other supervisory personnel of the school district or AEA. 34 CFR 300.534(a) and (b); 20 U.S.C. 1415(k)(5)(A) and (B).

            A school district is not be deemed to have knowledge that a student has a disability if the student’s parent has not allowed an evaluation of the student pursuant to 34 CFR 300.300 through 300.311, has refused special education services; or the student has been evaluated in accordance with 34 CFR 300.300 through 300.311 and determined to not be a child with a disability under the IDEA. 34 CFR 300.534 (c); 20 U.S.C. 1415(k)(5)(C).

 

Appeals

            The parent of a child with a disability who disagrees with any decision regarding placement under 34 CRF 300.530 and 300.531, or the manifestation determination under 34 CFR 300.530(e), or a school district that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting an expedited due process hearing.  34 CFR 300.532(a); 20 U.S.C. 1415(k)(3)(A).  When an appeal is filed by either the parent or the school district, the child must remain in the interim alternative educational setting pending the decision of the ALJ or until the expiration of the time period specified in 34 CFR 300.530(c) or (g), whichever occurs first, unless the parent and the state department of education or school district  agree otherwise.  34 CFR 300.533; 20 U.S.C. 1415(k)(4)(A).

            After hearing the appeal, the administrative law judge (ALJ) may sustain the placement decision, or may:

·        Return the child with a disability to the placement from which the child was removed if the ALJ determines that the removal was a violation of 34 CFR 300.530 or that the child’s behavior was a manifestation of the child’s disability; or

·         Order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.

            The Iowa Department of Education is responsible for arranging the expedited due process hearing, which must occur within 20 school days of the date the complaint requesting the hearing is filed.  After the hearing is completed, the ALJ must make a determination within ten school days after the hearing. 

            Unless prior to the due process hearing, the parents and school district agree in writing to waive the resolution meeting described in 34 CFR 300.532(c)(3)(i), or agree to use the mediation process described in 34 CFR 300.506:

·         A resolution meeting must occur within seven days of receiving notice of the due process complaint; and

·         The due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 days of the receipt of the due process complaint.

Special Education & Disciplinary Procedures

A day in which I receive four phone calls in regard to questions about school discipline procedures under the IDEA seems like a good day to post the federal regulations for Part B of IDEA, §§300.530 through 300.536.

§ 300.530 Authority of school personnel.
(a) Case-by-case determination. School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement, consistent with the other requirements of this section, is appropriate for a child with a disability who violates a code of student conduct.
(b) General.
(1) School personnel under this section may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 consecutive school days (to the extent those alternatives are applied to children without disabilities), and for additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under § 300.536).
(2) After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent required under paragraph (d) of this section.
(c) Additional authority. For disciplinary changes in placement that would exceed 10 consecutive school days, if the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child’s disability pursuant to paragraph (e) of this section, school personnel may apply the relevant disciplinary procedures to children with disabilities in the same manner and for the same duration as the procedures would be applied to children without disabilities, except as provided in paragraph (d) of this section.
(d) Services.
(1) A child with a disability who is removed from the child’s current placement pursuant to paragraphs (c), or (g) of this section must—
(i) Continue to receive educational services, as provided in § 300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP; and
(ii) Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.
(2) The services required by paragraph (d)(1), (d)(3), (d)(4), and (d)(5) of this section may be provided in an interim alternative educational setting.
(3) A public agency is only required to provide services during periods of removal to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if it provides services to a child without disabilities who is similarly removed.
(4) After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, if the current removal is for not more than 10 consecutive school days and is not a change of placement under § 300.536, school personnel, in consultation with at least one of the child’s teachers, determine the extent to which services are needed, as provided in § 300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.
(5) If the removal is a change of placement under § 300.536, the child’s IEP Team determines appropriate services under paragraph (d)(1) of this section.
(e) Manifestation determination.
(1) Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the LEA, the parent, and relevant members of the child’s IEP Team (as determined by the parent and the LEA) must 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—
(i) If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or
(ii) If the conduct in question was the direct result of the LEA’s failure to implement the IEP.
(2) The conduct must be determined to be a manifestation of the child’s disability if the LEA, the parent, and relevant members of the child’s IEP Team determine that a condition in either paragraph (e)(1)(i) or (1)(ii) of this section was met.
(3) If the LEA, the parent, and relevant members of the child’s IEP Team determine the condition described in paragraph (e)(1)(ii) of this section was met, the LEA must take immediate steps to remedy those deficiencies.
(f) Determination that behavior was a manifestation. If the LEA, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child’s disability, the IEP Team must—
(1) Either—
(i) Conduct a functional behavioral assessment, unless the LEA had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or
(ii) If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and
(2) Except as provided in paragraph (g) of this section, return the child to the placement from which the child was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavioral intervention plan.
(g) Special circumstances. School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, if the child—
(1) Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of an SEA or an LEA;
(2) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA; or
(3) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA.
(h) Notification. On the date on which the decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct, the LEA must notify the parents of that decision, and provide the parents the procedural safeguards notice described in § 300.504.
(i) Definitions. For purposes of this section, the following definitions apply:
(1) Controlled substance means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)).
(2) Illegal drug means a controlled substance; but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law.
(3) Serious bodily injury has the meaning given the term ‘‘serious bodily injury’’ under paragraph (3) of subsection (h) of section 1365 of title 18, United States Code.
[Note: The US Department of Education uses the following from 18 U.S.C. 1365(h)(3): The term serious bodily injury means bodily injury that involves—
1. A substantial risk of death;
2. Extreme physical pain;
3. Protracted and obvious disfigurement; or
4. Protracted loss or impairment of the function of a bodily member, organ, or mental faculty. (71 Fed. Reg. 46723)]
(4) Weapon has the meaning given the term ‘‘dangerous weapon’’ under paragraph (2) of the first subsection (g) of section 930 of title 18, United States Code.
[Note: The US Department of Education uses the following excerpt from the definition of “dangerous weapon” in 18 U.S.C.04-Z(g)(2): The term dangerous 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 ½ inches in length. (71 Fed. Reg. 46723)]
(Authority: 20 U.S.C. 1415(k)(1) and (7))

§ 300.531 Determination of setting.
The child’s IEP Team determines the interim alternative educational setting for services under § 300.530(c), (d)(5), and (g).
(Authority: 20 U.S.C. 1415(k)(2))

§ 300.532 Appeal.
(a) General. The parent of a child with a disability who disagrees with any decision regarding placement under §§ 300.530 and 300.531, or the manifestation determination under § 300.530(e), or an LEA that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting a hearing. The hearing is requested by filing a complaint pursuant to §§ 300.507 and 300.508(a) and (b).
(b) Authority of hearing officer.
(1) A hearing officer under § 300.511 hears, and makes a determination regarding an appeal under paragraph (a) of this section.
(2) In making the determination under paragraph (b)(1) of this section, the hearing officer may—
(i) Return the child with a disability to the placement from which the child was removed if the hearing officer determines that the removal was a violation of § 300.530 or that the child’s behavior was a manifestation of the child’s disability; or
(ii) Order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.
(3) The procedures under paragraphs (a) and (b)(1) and (2) of this section may be repeated, if the LEA believes that returning the child to the original placement is substantially likely to result in injury to the child or to others.
(c) Expedited due process hearing.
(1) Whenever a hearing is requested under paragraph (a) of this section, the parents or the LEA involved in the dispute must have an opportunity for an impartial due process hearing consistent with the requirements of §§ 300.507 and 300.508(a) through (c) and §§ 300.510 through 300.514, except as provided in paragraph (c)(2) through (4) of this section.
(2) The SEA or LEA is responsible for arranging the expedited due process hearing, which must occur within 20 school days of the date the complaint requesting the hearing is filed. The hearing officer must make a determination within 10 school days after the hearing.
(3) Unless the parents and LEA agree in writing to waive the resolution meeting described in paragraph (c)(3)(i) of this section, or agree to use the mediation process described in § 300.506—
(i) A resolution meeting must occur within seven days of receiving notice of the due process complaint; and
(ii) The due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 days of the receipt of the due process complaint.
(4) A State may establish different State-imposed procedural rules for expedited due process hearings conducted under this section than it has established for other due process hearings, but, except for the timelines as modified in paragraph (c)(3) of this section, the State must ensure that the requirements in §§ 300.510 through 300.514 are met.
(5) The decisions on expedited due process hearings are appealable consistent with § 300.514.
(Authority: 20 U.S.C. 1415(k)(3) and (4)(B), 1415(f)(1)(A))

§ 300.533 Placement during appeals.
When an appeal under § 300.532 has been made by either the parent or the LEA, the child must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period specified in §A300.530(c) or (g), whichever occurs first, unless the parent and the SEA or LEA agree otherwise.
(Authority: 20 U.S.C. 1415(k)(4)(A))

§ 300.534 Protections for children not determined eligible for special education and related services.
(a) General. A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated a code of student conduct, may assert any of the protections provided for in this part if the public agency had knowledge (as determined in accordance with paragraph (b) of this section) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.
(b) Basis of knowledge. A public agency must be deemed to have knowledge that a child is a child with a disability if before the behavior that precipitated the disciplinary action occurred—
(1) The parent of the child 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;
(2) The parent of the child requested an evaluation of the child pursuant to §§ 300.300 through 300.311; or
(3) The teacher of the child, or other personnel of the LEA, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the agency or to other supervisory personnel of the agency.
(c) Exception. A public agency would not be deemed to have knowledge under paragraph (b) of this section if—
(1) The parent of the child—
(i) Has not allowed an evaluation of the child pursuant to §§ 300.300 through 300.311; or
(ii) Has refused services under this part; or
(2) The child has been evaluated in accordance with §§ 300.300 through 300.311 and determined to not be a child with a disability under this part.
(d) Conditions that apply if no basis of knowledge.
(1) If a public agency does not have knowledge that a child is a child with a disability (in accordance with paragraphs (b) and (c) of this section) prior to taking disciplinary measures against the child, the child may be subjected to the disciplinary measures applied to children without disabilities who engage in comparable behaviors consistent with paragraph (d)(2) of this section.
(2)
(i) If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under § 300.530, the evaluation must be conducted in an expedited manner.
(ii) Until the evaluation is completed, the child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services.
(iii) If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency must provide special education and related services in accordance with this part, including the requirements of §§ 300.530 through 300.536 and section 612(a)(1)(A) of the Act.
(Authority: 20 U.S.C. 1415(k)(5))

§ 300.535 Referral to and action by law enforcement and judicial authorities.
(a) Rule of construction. Nothing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.
(b) Transmittal of records.
(1) An agency reporting a crime committed by a child with a disability must ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime.
(2) An agency reporting a crime under this section may transmit copies of the child’s special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act.
(Authority: 20 U.S.C. 1415(k)(6)

§ 300.536 Change of placement because of disciplinary removals.
(a) For purposes of removals of a child with a disability from the child’s current educational placement under §§ 300.530 through 300.535, a change of placement occurs if—
(1) The removal is for more than 10 consecutive school days; or
(2) The child has been subjected to a series of removals that constitute a pattern—
(i) Because the series of removals total more than 10 school days in a school year;
(ii) Because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and
(iii) Because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.
(b) (1) The public agency determines on a case-by-case basis whether a pattern of removals constitutes a change of placement.
(2) This determination is subject to review through due process and judicial proceedings. (Authority: 20 U.S.C. 1415(k))