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 require 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.
The Code of Conduct affords students with disabilities subject to disciplinary action no greater or lesser rights than those expressly afforded by applicable federal and state law and regulations.
Authorized Suspensions or Removals of Students with Disabilities
For purposes of this section of the Code of Conduct, the following definitions apply:
- A “suspension” means a suspension pursuant to Education Law section 3214 (3)(a) through (d).
- A “removal” means the removal of a student with a disability for disciplinary reasons from that student’s current educational placement, other than a suspension; and the change of placement of a student with a disability to an IAES (Interim Alternative Educational Setting) by a superintendent of schools for behavior involving weapons, illegal drugs or controlled substances, commission of an act of serious bodily injury upon another in school or school premises as set forth in the Commissioner’s Regulations, or by an impartial hearing officer in a dangerous situation.
- A IAES means a temporary educational placement for a period of up to 45 school 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 education curriculum, although in another setting;
- enables the student to continue to receive those services and modifications, including those described on the student’s current IEP (Individualized Education Program), that will enable the student to meet the goals set out in such IEP;
- includes services and modifications to address the behavior that 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 building principal may order the placement of a suspended student with disability a period not to exceed five consecutive school days and not to exceed the amount of time a non-disabled students would be subject to suspension for the same behavior.
- 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.
- 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.
- 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 disability would be subject to discipline, but not more than 45 school 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 or has inflicted serious bodily injury [as defined in Section 201.1(m)] upon another person while at school, on school premises, or at a school function, under the jurisdiction of the educational agency.
- 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.
- Removal of a student with disabilities other than a suspension or placement in an IAES shall be conducted in accordance with the due process procedures applicable to such removal 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 the behavior is not a manifestation of the student’s disability.
- 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.
Subject to specified conditions required by both federal and state law and regulations, an impartial hearing officer may order the placement of a student with a disability in an IAES setting for up to 45 school days at a time, if maintaining the student in his or her current educational placement poses risk of harm to the student or others.
Change of Placement Rule
A disciplinary change in placement means a suspension or removal from a student’s current educational placement that is either:
- for more than 10 consecutive school days; or
- for a period of 10 consecutive school 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.
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.
Special Rules Regarding the Suspension or Removal of Students with Disabilities
The District’s Committee on Special Education shall:
- Conduct functional behavioral assessment to determine why a student engages in a particular behavior and develop or review a behavioral intervention plan.
If subsequently, a student with a disability who has a behavioral intervention plan and been suspended or removed from his/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 of the members of the CSE believe modifications are needed, the school district shall convene a meeting of the CSE to modify such a plan and its implementation to the extent the committee determines necessary.
- Conduct a manifestation determination to review 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/her current education 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.
The procedures aforementioned could apply to students not previously determined to be eligible for special education or related services. This would occur if the district had knowledge that the child was suspected of having a disability before the behavior that precipitated the disciplinary action occurred.
The district will be deemed to have such knowledge if:
- the parent/guardian has expressed a concern in writing to the supervisor or administrative personnel of the appropriate educational agency or to the teacher of the student that his/her child needs special education and related services“;
- the child’s behavior or performance demonstrates the need for these services;
- the parent has requested an evaluation of his/her child;
- the child’s teacher or other school personnel have expressed concern about the child’s behavior or performance to the Director of Special Programs or other school administration;
- 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;
- a student will not be considered a student presumed to have a disability for discipline purposes if, upon receipt of information supporting a claim that the district had knowledge the student was a student with a disability,
- the parents of the student have not allowed an evaluation of the student pursuant to Section 200.4 of this part; or
- the District has determined that the student is not a student with a disability pursuant to Sections 200.4 or 200.16 of this title; or
- the parent of the student has refused services under this part.
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 a 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.
Expedited Due Process Hearings
An expedited due process hearing shall be conducted in the manner specified by the Commissioner’s regulations incorporated into this code, if:
- 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/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;
- the parent requests such a hearing from a determination that the student’s behavior was not a manifestation of the student’s disability or related to any decision regarding placement, including but not limited to any decision to place the student in an IAES.
During the pendency of an expedited due process hearing or appeal regarding the placement of a student in 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 expiration of the IAES placement, whichever occurs first, unless the parents and the district agree otherwise.
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.
An expedited due process hearing shall be completed within 15 business days of receipt of the request for a hearing. Although the impartial hearing office may grant specific extensions of such time period, he/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.
Referral to Law Enforcement and Judicial Authority
In accordance with the provisions if IDEA and its implementing regulations:
- 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.
- The superintendent shall ensure that copies of the special education and disciplinary records of a student with disabilities are transmitted for consideration to the appropriate authorities to whom a crime is reported.