School Discipline: Rights for Students With Disabilities

A school may suspend or expel any student. In some cases the school must do so. All students have rights when they are disciplined. The discipline should be explained and the student should be given a chance to object to it. The kind of notice and chance to object depend on the length of the time the student will be kept out of school. Students with disabilities have extra rights. This is to make sure that students with disabilities are not suspended or expelled because of their disability.

Duty to Prevent Behavior Problems

Schools have a duty to prevent problems that could lead to the suspension or expulsion of students with disabilities. Schools must consider how behavioral supports could help prevent the behaviors that result in these serious types of discipline. If your child has a disability and is being expelled or suspended long-term, you can ask if the school district took the proper steps to prevent the misbehavior.

If your child is being suspended or expelled, look closely at your child’s Individualized Education Program (IEP) and recent evaluations. Your child’s IEP should list functional and behavioral goals. It may include other information that can be helpful if your child is disciplined. To learn more about IEPs and how to ask for them, read How to Ask for Special Education Services for My Child.

If your child is being disciplined, find out:

• Did the IEP include behavioral goals?

• Were related services (like social work or counseling) provided to meet these goals?

• Was there a Behavioral Intervention Plan (BIP)?

• Did the BIP focus on positive behavior supports?

• Was the BIP and/or IEP followed correctly?

• Was the BIP revised if it did not seem to be working?

If the answer to any of these questions is “no,” the school may not have done its duty to prevent the misbehavior. If the school did not do what it is supposed to, you could file a complaint with the Michigan Department of Education (MDE). To learn more about this type of complaint, read Due Process Hearings and Education-Related Complaints.

When Rights Apply

Students who receive Special Education Services (SES) are guaranteed a free appropriate public education both in school and if they are suspended or expelled. To learn more, read Free Appropriate Public Education. When students who receive SES are suspended, the amount of time they are kept out of school is important.

Suspensions for fewer than 10 school days are short-term suspensions. All students must be given informal notice of the discipline and a chance to explain what happened. However, if your child is receiving SES and they are disciplined, you can ask for more explanation. You can ask your child’s IEP Team to meet with you to discuss the reason for the discipline. The IEP Team does not have to meet for short-term suspensions.

If your child is being suspended long-term or expelled, you can ask the IEP Team for a Manifestation Determination Review (MDR). If a student receiving SES is kept out of school for more than 10 school days, the time out of school counts as a change of placement. A change of placement triggers extra protections. An MDR and the “stay-put” rule are strong protections for students who receive SES. The stay-put rule allows your child to stay in the placement that you and the school last agreed upon while you appeal a disciplinary decision. To learn more read, The Manifestation Determination Review.

Serial Suspensions

Suspensions can be added together if they make up a pattern. If these add up to more than 10 school days in a school year, they are called serial suspensions. If your child receives a series of short-term suspensions, the time out of school could be counted as a change of placement. When this happens, special education rights apply.

To find out whether a series of suspensions counts as a change of placement, look at three facts:

• How long each removal was

• The total time the student was out of school

• How close together the removals were

For example, if a school suspends your child for three days in September, five days in October, and three days in November, this will probably count as a change of placement. However, if a school only suspends your child for five days in November and then another six days in May, this will probably not count as a change of placement.

The school decides if a series of suspensions is a change in placement. However, you can request an IEP Team meeting in writing to address your child’s suspensions. You can also request an evaluation at that time that may help explain why your child is struggling. You can use the Do-It-Yourself Letter for Students Receiving Special Education Services Who Are Being Disciplined (Suspended or Expelled) to help draft these requests.

Constructive Suspensions

When a student is not formally suspended or expelled but is removed from class for more than 10 school days, this is known as a constructive suspension. Examples of constructive suspension are in-school suspensions and sending the student home during school hours. A student’s right to an MDR applies to constructive suspensions. The other protections in the process that follow an MDR also apply. To learn more read, The Manifestation Determination Review.

A student is excluded from school whenever they are removed from class. However, a constructive suspension is not always obvious. For example, banning your child from riding the school bus to and from school excludes your child from school. Suspension from general transportation may be a sign that your child needs specialized transportation as a related service. If your child is suspended from specialized transportation, the school has a duty to find another way to get your child to school.

Another example is when a school calls you and asks you to pick up your child because of behavioral issues. Although the school is not calling it a suspension, it could be one. Like serial suspensions, this could make up a pattern. You can ask the school for a Functional Behavior Assessment (FBA) or to reevaluate your child’s Behavior Intervention Plan (BIP). An FBA helps school staff understand how the problem behavior serves your child. This allows them to decide how best to reduce or stop the problem behavior. A BIP is designed to help prevent behavioral problems by looking at what causes them. A BIP should include plans to teach a child alternative behavior.

Indefinite Suspensions

When a school administrator tries to keep a child out of school for an unknown amount of time, this is known as an indefinite suspension. An example of an indefinite suspension would be not allowing your child to return to school until they see a therapist.

Indefinite suspensions are a serious problem. They can result in your child being kept out of school for more than 10 school days without formal procedures and protections. If your child is kept out of school for more than 10 days, this is a change of placement, regardless of what the school calls the action. To protect your child's rights, count all the days they are kept out of school. You can ask for a due process hearing or file a state complaint if the school does not meet for an MDR after the 10th day of suspension. To learn more about these options, read Due Process Hearings and Education-Related Complaints.

Right to Post-Expulsion Services

If a school expels a special education student, the school must provide certain services afterward. One of the services the school must provide is free appropriate public education (FAPE) for the expelled student. To learn more, read Free Appropriate Public Education.

When a student is expelled, the IEP Team must meet and decide how the student will get FAPE. You can appeal the IEP Team’s post-expulsion services if they are not adequate. If this happens, a hearing officer will decide how to provide adequate services for your child.

The school may choose where the expelled special education student gets the FAPE. However, the FAPE must do 3 things:

• Meet the standards of the state educational agency (including minimum hours and school days)

• Include an appropriate school education (general curriculum instruction plus special education hours)

• Follow the IEP designed by the IEP Team or by a hearing officer if you appeal the IEP Team’s post-expulsion services

The Role of Juvenile Court

If a student with a disability commits a crime, the school can report the crime to the proper authorities. Even if the school reports a crime by the student, the school must still provide special education and related services to the student.

The school must give copies of the student’s records to the authorities. The school must make sure that all information about the student and the crime is kept confidential. Unless otherwise required by law, the authorities that receive the student’s records may not give the information to anyone else without the parent’s written consent.

Before a delinquency petition can be filed against a student with a disability, the student, parent, and school staff must meet to find solutions for behavior problems. A school cannot refer any student to juvenile court for truancy until it has looked for alternative education programs to meet the student’s needs.

Students Not Yet Identified As Having a Disability

Students who may be eligible for special education, but have not yet been identified as having a disability, can also be protected. This is important to students whose parents or advocates have asked for SES but did not get them. If you believe your child needs SES, use the Do-It-Yourself Letter Requesting Special Education Services. This tool will help you draft a letter asking the school to evaluate your child for special education services.

The school is responsible for knowing your child has a disability if any of these things happen before your child misbehaves:

• You wrote to someone in a position of authority in the school district, such as a teacher or principal, saying the student needs special education and related services;

• You asked for an evaluation of the student; or

• The student's teacher or other staff expressed specific concerns about the student's behavior directly to the director of special education or another supervisor.

The school is not responsible for knowing your child has a disability if you do not agree to evaluations. The school is also not responsible for knowing your child has a disability if an evaluation already found that your child is ineligible for services. If you do not agree with any decision about your child’s special education needs, you can ask for a due process hearing or file a complaint with the Michigan Department of Education. To learn more, read Due Process Hearings and Education-Related Complaints.

You can learn more about rights for students with disabilities in Special Education: An Advocate's Manual by the Michigan Protection and Advocacy Service, Inc.