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.
