Tuesday, September 4, 2012

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.

Friday, August 24, 2012

May an IEP Team "Disallow" a Student's Participation in a Nonacademic or Extracurricular Activity?

Occasionally I have cases in which an IEP team has refused to provide an accommodation or service for a student participating in a nonacademic activity on the basis that the IEP Team either believes the activity is not "educationally necessary," and/or, it has concerns about whether the student should be constrained from participating in the activity due to health, fatigue, and safety factors.

Let’s take, for example, "Abby," a student who qualified to be on her school’s mock trial team. She has nonprogressive muscular dystrophy, uses a wheelchair, and needs the same assistance for team practices and events as the assistance provided to her between 8:30 a.m.-3:45 p.m. each school day (e.g., assistance with the bathroom, carrying her backpack, laptop computer, books and papers, and getting things in and out of it, etc.  When Abby makes the team, instead of arranging for and scheduling the services she needs, the IEP calls a meeting and hands her parents an IEP amendment stating:

"Abby will be allowed to participate in nonacademic and extracurricular activities only to the extent that it is educationally necessary for her and the IEP team has determined that it is medically appropriate.  Abby will not participate in any nonacademic activities until she has been evaluated by an orthopedist, and the orthopedist has completed and returned to the IEP Team a report of the evaluation findings and responses to the team’s questionnaire.  After the orthopedist has submitted this information to the IEP team, it will meet and determine the nonacademic school activities in which Abby will be allowed to participate and the conditions of that participation."

When I read an amendment like this, I tend to conclude: (1) the school district is trying to avoid supplying and paying for the services that the student needs in order to participate in an activity for which he or she is qualified; (2) the school district is acting contrary to the federal statutes that protect the rights of students with disabilities to be educated to the maximum extent appropriate with nondisabled students, including participation in extracurricular and nonacademic activities. See, 34 C.F.R. §§ 300.320(a)(4)(ii), 300.107, and 300.117; and (3) that the school district has chosen to be part of the problem that Congress intended to cure when it enacted the Rehabilitation Act of 1973 (Rehabilitation Act), the Americans with Disabilities Act (ADA) of 1990, and the Individuals with Disabilities Education Act (IDEA). More specifically:
The plain language of IDEA regulations 34 C.F.R. §§ 300.320(a)(4)(ii), 300.107, and 300.117 establish that the extracurricular and nonacademic activities in which a student may participate are not limited to those activities that are "educationally necessary."

Neither the IDEA nor its implementing regulations confer any power on an IEP Team to "disallow" the participation of a student covered by the Act in an extra-curricular or nonacademic activities.
 
Neither the IDEA nor its implementing regulations confer any power on an IEP Team to make a determination of "medical appropriateness."

Section 504 of the Rehabilitation Act of 1973 provides: "No otherwise qualified individual with a disability . . . shall, solely by reason of his disability, be excluded from the participation in, or denied the benefits of, or be subjected to discrimination under any program or activity receiving federal assistance." 29 U.S.C 794(a).
 
Title II of the Americans with Disabilities Act of 1990 provides: "No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program, or activities of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. 12132.

The School District made no offer to pay for the medically-unnecessary evaluation although when a School District requires such an evaluation for a student served under the IDEA, the evaluation must be provided at no cost to the parent (Raymond S. v. Ramirez, 918 F. Supp. 1280, 1293-1294 (N.D. Iowa 1996)), and the child’s parents may not be required to use their medical insurance to pay for the evaluation, or the co-pay amount. Id.

Friday, August 17, 2012

Should You Excuse an AEA Consultant from an IEP Meeting?

I frequently receive questions from parents asking about whether specific teachers or consultants “must” attend IEP meetings.   Here are a few questions and responses:

Question 1:  I went to my son’s IEP meeting which had called to discuss changing his speech therapy services.  The speech and language pathologist (SLP) who has been doing his therapy was on the list of people who were supposed to be at the meeting.  When I arrived, the area education agency facilitator (a former AEA social worker) asked me to sign a form excusing the SLP’s attendance because he had excused the SLP from the meeting.  I responded that I should have been asked to excuse the SLP before he held the meeting, and that I would have said no and asked that it be scheduled when she was available.  The facilitator said it didn’t matter whether the SLP could come because he had received an email report from her.  I didn’t sign the excuse form, the emailed report wasn’t helpful, and the meeting was a waste of time (and used up two hours of my vacation time).   Can I keep this from happening again? 
Answer:   To keep this from happening again, you may want to try sending a copy of the following answer to the members of your son’s IEP team. 
The AEA facilitator had no business excusing the SLP and convening the meeting without her.  As soon as he knew of the SLP’s unavailability, he should have asked you if you were willing to excuse her, and if you said no, the meeting should have been re-scheduled for a time the SLP could attend. 
Parents have no obligation to excuse a specified teacher or area education agency consultant from an IEP meeting.  They should not do so if there any chance that the person’s expertise and knowledge apply to IEP topic that may be discussed or modified at the meeting. 
Congress felt so strongly about this that the IDEA and its implementing regulations require that if the IEP Team will discuss or modify any part of a child’s IEP related to the area of expertise of the Team member seeking to be excused, that before the parent makes written consent to excusing that member, the school district must first:
(a)          fully inform the parent of all information relevant the excusing the specific type of person, and must do this in the parent’s native language, or other mode of communication.  
(b)          make sure that the parent consents in writing to the excusing the required person, and the consent writing describes the specific meeting for which the excuse applies.
(c)           make sure the parent understands that his or her granting of consent is voluntary and may be revoked at any time.
A member of an IEP may be excused from attending an IEP meeting, in whole or in part, if the meeting involves a modification to or discussion of the member’s area of the curriculum or related services, if: 
(1)  the parent, in writing, and the public agency consent to the excusal; and
(2)  the member submits, in writing to the parent and the IEP team, input into the development of the IEP prior to the meeting.

Thursday, April 26, 2012

PE, IEPs, and New Federal Guidance

A 2010 report from the Government Accountability Office found that although PE is one of the general education courses in which students with disabilities most commonly participate, education had "provided little information or guidance on PE or extracurricular athletics for students with disabilities." The report further noted that few students with IEPs have specified accommodations for PE writen into their IEPs.

In response, in August of 2011, the U.S. Department of Education released a guidance statement titled Creating Equal Opportunities For Children and Youth With Disabilities to Participate in Physical Education and Extracurricular Athletics.  The statement is available online at:  http://www2.ed.gov/policy/speced/guid/idea/equal-pe.pdf 

Among other things, the DOE's statement notes that that according to researchers with the President's Council on Physical Fitness and Sports Research Digest, children with disabilities are 4.5 times less physically active than children without disabilities. This concerned the researchers since higher levels of sedentary behavior during childhood are likely to continue into adulthood, and contribute to an increased risk of adult obesity, and other health problems.

The recommendations contained in the DOE guidance include the use of equipment, as appropriate, such as a treadmill with an even, predictable walking surface, the Wii, Xbox, and PlayStation, and devices like them, to simulate participation in sports that some students with disabilities can't do in the traditional way. Most of all, the guidance emphasizes the importance of student participation, and notes that team play and sportsmanship cannot be taught except through participation.

Thursday, April 19, 2012

three football players to help protect a freshman against a wave of constant bullying.  By November, the program was such a success, and had added nine more football players and four more bullied students in need of protection. Next year, 18 football players at Johnson High will help eight incoming freshmen as part of the program.

This week, the three original "Bully Guards"—seniors Cohner Mokry, Ryder Burke, and Austin Carson—were all recognized at a school board meeting by their district superintendent.  In order to carry out their mission, the three left their classes a few minutes early so they could meet up with and walk the freshman to each of his classes. Not long after they had started doing this, the freshman began fitting right in with the three seniors.  Burke told a local newspaper: "We went through high school and have had a great experience, It should be everybody having that great experience."

What a great developmental experience this is for the bully guards and the bullied kids alike! Kudos to the school counselor and football players who got this started!  How about bully guards who are wrestlers, basketball players, and volleyball players?  Is anyone out there in Iowa listening?


Brian's full article is at:   http://blogs.edweek.org/edweek/schooled_in_sports/2012/04/texas_hs_football_players_spend_spare_time_as_bully_guards.html?cmp=ENL-EU-NEWS2







Wednesday, April 11, 2012

Effective Use of Contingent Praise with Students Who Have Behavioral Issues

                I have never been ask to file a complaint on behalf of the special education needs of a child identified with behavioral issues whose teacher skillfully and consistently gives the child verbal praise contingently to increase the child’s appropriate behaviors.  In contrast, I am frequently contacted by parents of children who are concerned that the behavior procedures used by their child’s school/teacher have decreased the child’s behavioral performance, and/or resulted in a series of disciplinary actions.
  
                An examination of these situations usually indicates that the child’s school or teacher primarily relies upon control and reactive strategies to deal with problem behaviors, and delays incentives (“positive reinforcements”) until the student has “earned” them.  Under those circumstances, it is no surprise to find that the student has begun to manifest “counter-control” behaviors, and the teacher and student are engaged in ongoing and serial power struggles.  These cases demonstrate that despite more than fifty years of research, many educators have not learned that control and reactive strategies, and delayed reinforcement procedures, are vastly less successful in shaping, increasing, and maintaining appropriate social and academic behaviors in students who have behavioral problems at school.
                It is perplexing that, given the extensive base of empirical support for the use of contingent teacher praise in increasing appropriate student behaviors that so many educators have not learned how to competently use this highly effective means of assisting students whose behaviors interfere with learning.  A 2010 research article published in Preventing School Failure, titled Using Teacher Praise and Opportunities to Respond to Promote Appropriate Student Behavior (article is located at http://amywagner.wiki.westga.edu/file/view/teacher+praise.pdf/238204939/teacher+praise.pdf)  provided that teacher attention to students with behavioral issues comes in the form of high rates of teacher reprimands for inappropriate behaviors, and that students with the most aggressive behaviors have the highest rates of teacher reprimands and the lowest rates of positive teacher attention -  even when they appropriately comply with teacher commands.  
                The authors of the above-mentioned article point out that regardless of a student’s age or disability, teacher use of contingent praise has been shown to increase a variety of appropriate student behaviors and academic skills, including following directions, engagement in instruction, on-task behavior, correct academic responding, and work accuracy and completion.  They noted and cited supporting authorities who have found that the skilled use of contingent praise has been repeatedly shown to increase positive behavior while simultaneously decreasing and disruptive problem behavior, and that teacher praise combined with decreased attention to problem behavior lead to decreases in talking outs and arguing with teacher requests as well as other disruptive behavior.
                When considering the lack of a particular student’s progress on behavioral goals, as professionals, teachers should be aware of the amount of attention they are giving to desired behaviors and to inappropriate ones.  As a component a teaching improvement program, some schools might employ procedures like those set out in the above-cited article, as a self-monitoring exercise during which teachers review a series of 15 minute recordings of their classes, and record data on their use of commands, reprimands, and contingent reinforcement with all students or with a particular student.  

Thursday, April 5, 2012

Students with Autism and Special Education Litigation

In an interesting blog article, the director of the National Institute of Mental Health, Thomas R. Insel, M.D., has written about the increased number of children in the U.S. who have been diagnosed in with autistic disorders. Dr. Insel concludes that diagnostic changes and ascertainment do not account for most of the increase, and that at this point, on the basis of data collected and analyzed to date, it appears that more children are affected with autism spectrum disorders, and more of those children are being detected.

Dr. Insel's article comes on the heels of a study published last year by Perry A. Zirkel, professor of education and law at LeHigh University.  In that study, Zirkel looked at the incidence education-related legal actions involving involving children diagnosed with autism and the issues of a free and appropriate public education (FAPE) and least restrictive environment (LRE).  He found that while the number of students in special education who are diagnosed wth autism has increased, between 1993 and 2008, the percentage of special education cases involving FAPE and LRE issues in the education of a child with autism, has remained at at around 32 percent of the total number of special education litigations involving those issues.  Among his conclusions, Zirkel states that the ongoing high rate of such cases is probably due in part to the limited success that school districts have had in effectively addressing the needs of children with this complex disability.

The full text of Dr. Insel's blog is located at:
http://www.nimh.nih.gov/about/director/index.shtml 

The full text of Dr. Zirkel's article is located at:
http://blogs.edweek.org/edweek/speced/Zirkel%20Article%20on%20Autism%20Litigation%20Disproportional.PDF