Discipline, Suspension and Expulsion: What Are Your Child’s Legal Rights?
By James A. Clifford, Esq.
The purpose of this article is not to expound upon the meaning and scope of a very complicated area of the law known as “due process”. I will address “due process hearings” in a subsequent article. However, a basic definition is warranted. The term "due process" comes from a long body of constitutional law. Under the Bill of Rights, applicable to all states through the 14th Amendment of the U.S. Constitution, individuals may not be deprived of "life, liberty, or property" without a fair opportunity to affect a judgment or result. This is known as “procedural due process”. A right afforded all American children is the right to a public education. The primary right afforded children with disabilities is the right to a “free and appropriate public education” (FAPE). The federal statute dealing with FAPE is known as the Individual with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq. Because IDEA is a federal mandate, each state must enact legislation intended to fulfill the obligations of IDEA. In Maine, these laws can be found at 20-A M.R.S.A. § 7000. The specific regulations implementing IDEA are known as the Maine Unified Special Education Regulations (MUSER), which are overseen and administered by the Department of Education.
School Discipline Generally
Student discipline is governed by Maine law at 20-A M.R.S.A. § 1001. Clearly, students not enrolled in special education can be suspended or expelled if they violate certain school policies, including violence and possession of weapons. A 1975 U.S. Supreme Court case, Goss v, Lopez, is the major legal authority for disciplinary suspensions of 10 days or less. This case authorized school principals to impose suspensions of “up to 10 days” at their discretion, as long as minimal levels of due process are honored, such as proper notice of the charges, an explanation of the evidence, and an opportunity for a hearing. However, the Goss case also provides that if a student poses a threat to himself or others or has been determined to be “disruptive of the academic process”, the student may be removed immediately, with due process safeguards to be addressed “as soon as practicable”. Schools may transfer a disruptive student to an “interim alternative setting” in lieu of suspension or expulsion, which may exempt a school from complying with due process. Expulsion is left to school boards and requires compliance with traditional notions of due process (i.e., timely notice and an opportunity for a hearing). In sum, as long as basic due process is honored and the student is not receiving special education services, the school is free to impose disciplinary measures as it sees fit.
Discipline under IDEA and Maine Regulations
The 1988 U.S. Supreme Court case entitled Honig v. Doe held that disciplinary suspensions of students with disabilities for more than 10 days would create a “significant change of placement” under IDEA. The Honig decision meant that school disciplinary measures must now comply with not only traditional procedural due process requirements afforded all students, but also the additional procedural safeguards set forth in IDEA, including the “stay put” provisions prohibiting any change in placement without due process. However, IDEA clearly authorizes schools to impose disciplinary measures upon a student with a disability for up to 10 days. In fact, the school may have no obligation to provide FAPE during a suspension of 10 days or less (e.g., tutoring or other special service) unless it would provide similar services to a non-disabled student. The sections of IDEA covering discipline can be found at 20 U.S.C. § 1415 and, correspondingly, under Maine law in Article XVII of MUSERS.
For students facing significant disciplinary removals of more than 10 days, a process known as “Manifestation Determination” establishes whether a school district can impose disciplinary measures as it would any child or required to address the misconduct primarily through the IEP Team process. The Manifestation Determination always takes place at the IEP Team meeting, and the participants at the meeting address two questions. First, was the misconduct “caused by, or had a direct and substantial relationship to, the child’s disability?” And second, was the misconduct “the direct result of the failure to implement the IEP?” The answer must be “no” to each of those questions for the IEP Team to conclude that the misconduct is not a manifestation of the child’s disability, thereby permitting the school to discipline the student with a disability in the same manner as it would a non-disabled child.
If the student’s behavior is determined by the IEP Team to be caused or related to the disability and/or the misconduct was the result of the failure to implement the IEP (i.e., a “yes” answer to either of the questions above), then the conduct is a “manifestation” of the disability and certain other procedural due process safeguards are triggered. The IEP Team will conduct a “functional behavioral assessment” (FBA) and implement a “behavioral intervention plan” (BIP) and immediately return the student to the special education placement. The IEP Team can also agree to an alternative placement.
Under IDEA, misconduct of a student with a disability involving drugs, weapons, or violence can result in placement to an “interim alternative settings” for up to 45 days. Schools can also petition a hearing officer to remove a child with a disability for up to 45 days for other misconduct if the school demonstrates the student creates a significant risk of harm to himself or others
Students Not Yet Eligible for Special Education
In addition to all of the procedural safeguards set forth in this article, there are specific regulations governing the discipline of students who are “not yet eligible” for special education or related services. In other words, IDEA recognizes that there are many, many children just like Max, that is, students facing significant disciplinary measures without a formal diagnosis but with the same special needs as students with an identified disability or disabilities. Under this part of IDEA, a school district must provide the same disciplinary procedural safeguards under IDEA to a student not identified as qualifying for special education if (a) a parent has expressed concern that their child may need special education services, (b) a parent has requested an evaluation of the child, or (c) a teacher or other school personnel has expressed specific concerns about a pattern of behavior.