Discipline of Students with Disabilities
The
Board recognizes that it may be necessary to suspend, remove, or
otherwise discipline students with disabilities to address disruptive or
problem behavior. The board also recognizes that students with
disabilities enjoy certain procedural protections whenever school
authorities intend to impose discipline upon them. The board is
committed to ensuring that the procedures followed for suspending,
removing or otherwise disciplining students with disabilities are
consistent with the procedural safeguards required by applicable laws
and regulations.
A. Authorized Suspensions or Removals of Students with Disabilities
1. For the purposes of this section of the code of conduct, the following definitions apply. A “suspension” means a suspension pursuant to Education Law 3214. A
“removal” means a removal for disciplinary reasons from the student’s
current educational placement other than a suspension and change in
placement to an interim alternative educational setting (IAES) ordered
by an impartial hearing officer because the student poses a risk of harm
to himself or herself or others. An “IAES” means a temporary
educational placement for a period of up to 45 days, other than the
student’s current placement at the time the behavior precipitating the
IAES placement occurred, that enables the student to continue to
progress in the general curriculum, although in another setting, to
continue to receive those services and modifications, including those
described on the student’s current individualized education program
(IEP), that will enable the student to meet the goals set out in such
IEP, and include services and modification to address the behavior which
precipitated the IAES placement that are designed to prevent the
behavior from recurring.
School personnel may order
the suspension or removal of a student with a disability from his or her
current educational placement as follows:
a. The
board, the district (BOCES) superintendent of schools or a building
principal may order the placement of a student with a disability into an
IAES, another setting or suspension for a period not to exceed five
consecutive school days and not to exceed the amount of time a
non-disabled student would be subject to suspension for the same
behavior.
b. The
superintendent may order the placement of a student with a disability
into an IAES, another setting or suspension for up to 10 consecutive
school days, inclusive of any period in which the student has been
suspended or removed under subparagraph (a) above for the same behavior,
if the superintendent determines that the student has engaged in
behavior that warrants a suspension and the suspension or removal does
not exceed the amount of time non-disabled students would be subject to
suspension for the same behavior.
c. The
superintendent may order additional suspensions of not more than 10
consecutive school days in the same school year for separate incidents
of misconduct, as long as those removals do not constitute a change of
placement.
d. The
superintendent may order the placement of a student with a disability
in an IAES to be determined by the committee on special education (CSE),
for the same amount of time that a student without a disability would
be subject to discipline, but not more than 45 days, if the student
carries or possesses a weapon to school or to a school function, or the
student knowingly possesses or uses illegal drugs or sells or solicits
the sale of a controlled substance while at school or a school function.
1) “Weapon”
means the same as “dangerous weapon” under 18 U.S.C. 930(g)(w) which
includes “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 . . . (for) a pocket knife with a blade
of less than 2 ½ inches in length.”
2) “Controlled
substance” means a drug or other substance identified in certain
provision of the federal Controlled Substances Act specified in both
federal and state law and regulations applicable to this policy.
3) “Illegal
drugs” means a controlled substance except for those legally possessed
or used under the supervision of used under any other authority under
the Controlled Substances Act or any other federal law.
4) Subject
to specified conditions required by both federal and state law and
regulations, and impartial hearing officer may order the placement of a
student with a disability in an IAES setting for up to 45 days at a
time, if maintaining the student in his or her current educational
placement poses a risk of harm to the student or others.
B. Change of Placement Rule
1.
A disciplinary change in placement means a suspension or removal from a
student's current educational placement that is either:
a. for more than 10 consecutive days; or for
a period of 10 consecutive days or less if the student is subjected to a
series of suspensions or removals that constitute a pattern because
they cumulate to more than 10 school days in a school year and because
of such factors as the length of each suspension or removal, the total
amount of time the student is removed and the proximity of the
suspensions or removals to one another.
2. School
personnel may not suspend or remove a student with disabilities if
imposition of the suspension or removal would result in a disciplinary
change in placement based on a pattern of suspension or removal.
However,
the district may impose a suspension or removal, which would otherwise
result in a disciplinary change in placement, based on a pattern of
suspensions or removals if the CSE has determined that the behavior was
not a manifestation of the student’s disability, or the student is
placed in an IAES for behavior involving weapons, illegal drugs or
controlled substances.
C. Special Rules Regarding the Suspension or Removal of Students with Disabilities
1. The district’s Committee on Special Education shall:
a. Conduct
functional behavioral assessments to determine why a student engages in
a particular behavior, and develop or review behavioral intervention
plans whenever the district is first suspending or removing a student
with a disability for more than 10 school days in a school year or
imposing a suspension or removal that constitutes a disciplinary change
in placement, including a change in placement for an IAES for misconduct
involving weapons, illegal drugs or controlled substances. If
subsequently, a student with a disability who has a behavioral
intervention plan and who has been suspended or removed from his or her
current educational placement for more than 10 school days in a school
year is subjected to a suspension or removal that does not constitute a
disciplinary change in placement, the members of the CSE shall review
the behavioral intervention plan and its implementation to determine if
modifications are necessary. If one or more members of the CSE
believe that modifications are needed, the school district shall convene
a meeting of the CSE to modify such plan and its implementation, to the
extent the committee determines necessary.
b. Conduct
a manifestation determination review of the relationship between the
student’s disability and the behavior subject to disciplinary action
whenever a decision is made to place a student in an IAES either for
misconduct involving weapons, illegal drugs or controlled substances or
because maintaining the student in his current educational setting poses
a risk of harm to the student or others; or a decision is made to
impose a suspension that constitutes a disciplinary change in placement.
2.
The parents of a student who is facing disciplinary action, but who has
not been determined to be eligible for services under IDEA and Article
89 at the time of misconduct, shall have the right to invoke applicable
procedural safeguards set forth in federal and state law and regulations
if, in accordance with federal and state statutory and regulatory
criteria, the school district is deemed to have had such knowledge that
their child was a student with a disability before the behavior
precipitating disciplinary action occurred. If the district is deemed
to have had such knowledge, the student will be considered a student
presumed to have a disability for discipline purposes.
a. The superintendent, building principal or other school official imposing a suspension or removal shall be responsible for determining whether the student is a student presumed to have a disability.
b. A
student will not be considered a student presumed to have a disability
for discipline reasons if, upon receipt of information supporting a
claim that the district had knowledge of the student was a student with a
disability, the district either:
i. Conducted an individual evaluation and determined that the student is not a student with a disability, or
ii. Determined
that an evaluation was not necessary and provided notice to the parents
of such determination, in the manner required by applicable law and
regulations.
If there is no basis for
knowledge that the student is a student with a disability prior to
taking disciplinary measures against the student, the student may be
subjected to the same disciplinary measures as any other non-disabled
student who engaged in comparable behaviors.
However,
if a request for an individual evaluation is made while such
non-disabled student is subjected to a disciplinary removal, an
expedited evaluation shall be conducted and completed in the manner
prescribed by applicable federal and state law and regulations. Until
the expedited evaluation is completed, the non-disabled student who is
not a student presumed to have a disability for discipline purposes
shall remain in the educational placement determined by the district,
which can include suspension.
3. The
district shall provide parents with notice of disciplinary removal no
later than the date on which a decision is made to change the placement
of a student with a disability to an IAES for either misconduct
involving weapons, illegal drugs or controlled substances or because
maintaining the student in his/her current educational setting poses a
risk of harm to the student or others; or a decision is made to impose a
suspension or removal that constitutes a disciplinary change in
placement. The procedural safeguards notice prescribed by the
Commissioner shall accompany the notice of disciplinary removal.
4. The parents of a student with disabilities subject to a suspension of five consecutive school days
or less shall be provided with the same opportunity for an informal
conference available to parents of non-disabled students under the
Education Law.
5. Superintendent hearings on disciplinary charges against students with disabilities subject to a suspension
of more than five school days shall be bifurcated into a guilt phase
and a penalty phase in accordance with the procedures set forth in the
Commissioner’s regulations incorporated into this code.
6. The removal of a student with a disability other than a suspension or placement in an IAES shall
be conducted in accordance with the due process procedures applicable
to such removals of non-disabled students, except that school personnel
may not impose such removal for more than 10 consecutive days or for a
period that would result in a disciplinary change in placement, unless
the CSE has determined that the behavior is not a manifestation of the
student’s disability.
7. During
any period of suspension or removal, including placement in an IAES,
students with disabilities shall be provided services as required by the
Commissioner’s regulations incorporated into this code.
D. Expedited Due Process Hearing
1. An expedited due process hearing shall be conducted in the manner
specified by the Commissioner’s regulations incorporated into this code
if:
a. The district requests such a hearing to obtain an order of an
impartial hearing officer placing a student with a disability in an IAES
where school personnel maintain that it is dangerous for the student to
be in his or her current educational placement, or during the pendency
of due process hearings where school personnel maintain that it is
dangerous for the student to be in his or her current educational
placement during such proceedings.
b. The parent requests such a hearing from a determination that the
student’s behavior was not a manifestation of the student’s disability,
or relating to any decision regarding placement, including but not
limited to any decision to place the student in an IAES.
1. During the pendency of an expedited due process hearing or appeal
regarding the placement of a student into an IAES for behavior involving
weapons, illegal drugs or controlled substances, or on grounds of
dangerousness, or regarding a determination that the behavior is not a
manifestation of the student’s disability for a student who has been
placed in an IAES, the student shall remain in the IAES pending the
decision of the impartial hearing officer or until the expiration of the
IAES placement, whichever occurs first, unless the parents and the
district agree otherwise.
2. If school personnel
propose to change the student’s placement after expiration of an IAES
placement, during the pendency of any proceeding to challenge the
proposed change in placement, the student shall remain in the placement
prior to removal to the IAES, except where the student is again placed
in an IAES.
2. An
expedited due process hearing shall be completed within 15 business days
of receipt of the request for a hearing. Although the impartial hearing
officer may grant specific extensions of such time period, he or she
must mail a written decision to the district and the parents within five
business days after the last hearing date, and in no event later than
45 calendar days after receipt of the request for a hearing, without
exceptions or extensions.
E. Referral to law enforcement and judicial authorities
In accordance with the provisions of IDEA and its implementing regulations:
1. The
district may report a crime committed by a child with a disability to
appropriate authorities, and such action will not constitute a change of
the student’s placement.
2. The superintendent
shall ensure that copies of the special education and disciplinary
records of a student with a disability are transmitted for consideration
to the appropriate authorities to whom a crime is reported.
