PRESENTED BY:

Sarah A. SchmankeBetsey A. Helfrich

Mickes Goldman O’Toole, LLC555 Maryville University Drive, Suite 240

Office: (314) 878-5600Fax: (314) 878-5607

sarahs@mickesgoldman.combhelfrich@mickesgoldman.com

DISCIPLINE DILEMMAS:

FROM ENROLLMENT TO EXPULSION

#RETHINKDISCIPLINE

US Department of Education Launched Campaign in Summer 2015:

CHOOSE YOUR OWN ADVENTURE

STEVE v. DISCIPLINE DILEMMAS

ENROLLMENT ADVENTURE

It is mid-summer and James’ mother calls Steve to inform him that her family lives in a neighboring District, but that she plans on enrolling James in Steve’s school district starting in the Fall. Steve’s District has a Board Policy which states that the District accepts tuition paying students and James’ mom wishes to pay the tuition so that James can get a fresh start in a new District. She wants to set up a meeting with Steve to discuss James’ disability and the issues she experienced with James’ previous school.

ENROLLMENT ADVENTURE

Later that day, the Superintendent, Dr. Jones, calls Steve and informs him that he has heard that James is attempting to enroll in the District. Superintendent Jones states that he has heard that this student is a special education student and a “real behavior problem” who was constantly in trouble at his home District. He tells Steve since allowing students to enroll on a tuition basis is not required in Missouri, he is not going to allow this student to enroll and he directs Steve to cancel the meeting with James’ mom and tell her that her request for enrollment has been denied.

Steve considers two options:

Follow the tuition policy, meet with James’ mother, and start transfer procedures.

OR

Please his Superintendent and tell James’ mother that James’ enrollment request has been denied.

Steve’s Choice: Steve cancels his meeting with James’ mom and in an emergency meeting the Board of Education repeals its policy which allows students to enroll on a tuition basis.

CHOOSE YOUR OWN ADVENTURE

ACCEPTING STUDENTS ON A TUITION BASIS

Missouri Law: “The school board of any district, in its discretion, may admit to the school pupils not entitled to free instruction and prescribe the tuition fee to be paid by them…”

RSMo. § 167.151(1)• Know your District’s Board Policy• Does your District accept students on a tuition

basis? Example: MCE Board Policy 2240:

“Nonresident students may be permitted to attend the District schools upon payment of tuition…”

ACCEPTING STUDENTS ON A TUITION BASIS

• Districts accepting tuition-paying students may not deny enrollment based on disability or any other protected status.

• Denial of admission could result in claims for disability discrimination under the Missouri Human Rights Act or Section 504/Title II of the ADA.

• The Missouri Human Rights Act makes it unlawful to:“directly or indirectly, to refuse, withhold from or deny any other person, or to attempt to refuse, withhold from or deny any other person any of the accommodations, advantages, facilities, services or privileges made available in any place of public accommodation…on the grounds of race, color, religion, national origin, sex, ancestry, or disability.”

  RSMo. § 213.065.2

SAFE SCHOOLS ACT ADVENTURE

Superintendent Jones informs Steve that the District is expelling Allison, a special education student, because he just received a Safe Schools Act notification informing the District that Allison is being charged with arson in the first degree for a fire at her dad’s house. Steve responds that he will get the manifestation determination meeting set up. Dr. Jones tells him it is not necessary because the Safe Schools Act mandates expulsion for any student who commits one of the “deadly crimes.”

Steve considers two options:

Not hold a manifestation determination meeting but convene an IEP meeting to determine services for Allison.

OR

Conduct a manifestation determination meeting and then an IEP meeting.

Steve’s Choice: Relying on Dr. Jones’ knowledge of the law Steve does not schedule a manifestation determination meeting but does convene an IEP meeting.

CHOOSE YOUR OWN ADVENTURE

SAFE SCHOOLS ACT

RSMo. § 167.171: Prohibits school districts from readmitting or enrolling a student to a regular program of instruction if the student is convicted of, indicted or information has been filed alleging, a petition has been filed alleging, or the student has been adjudicated to have committed one of the following:• First or second

degree murder• First degree or

statutory rape• First degree assault• First degree robbery

• Distribution of drugs to a minor

• First degree or statutory sodomy

• First degree arson• Felony kidnapping

SAFE SCHOOLS ACT

RSMo. § 167.171: “This subsection shall not apply to a student with a disability, as identified under state eligibility criteria, who is convicted or adjudicated guilty as a result of an action related to the student’s disability.”

EXPULSIONS

Expulsion of a student with an IEP always requires a manifestation determination meeting.• Within 10 school days of any

decision to change the placement of a child with a disability because of a student conduct violation a manifestation determination meeting must be held.

34 C.F.R. § 300.530(e)

UNRELATED MISCONDUCT

• If the MD meeting results in an unrelated finding, a school district may expel a student but must continue to provide educational services.

• Continued services/FAPE must enable the student to participate in the general curriculum, although in another setting, and progress on IEP goals.

• Must provide, as appropriate, an FBA and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.

34 C.F.R. § 300.530(d)

RELATED MISCONDUCT

If the misconduct is related, the student may not be expelled and the IEP team must meet and conduct an FBA and develop a BIP or review and modify as necessary a preexisting BIP.

34 C.F.R. § 300.530(f)

REMEMBER

When expelling a student with a disability, all of the required procedures for expulsion of a non disabled student must be followed, including notice and hearing requirements.

See Goss v. Lopez, 419 U.S. 565 (1975).

SAFE SCHOOLS ACT ADVENTURE CONTINUES

After Allison’s mother filed a Due Process complaint, the District convenes a manifestation determination meeting. The school personnel are in agreement that Allison’s alleged criminal conduct was not related to her disability. However, Allison’s mother disagrees and also claims that the District has not been implementing Allison’s IEP and giving her all of the services required so the District cannot discipline her. Allison’s mother is adamant that she does not agree with any determination that would allow Allison to be disciplined.

Steve considers two options:

Make a determination that the behavior is a manifestation of Allison’s disability because of Allison’s mother’s refusal to agree and/or the fact that the District has not been implementing the IEP correctly.

OR

Find that Allison’s behavior is not a manifestation of her disability.

Steve’s Choice: The MD meeting results in a determination that the alleged criminal conduct was not a manifestation of Allison’s disability over her mother’s objection.

CHOOSE YOUR OWN ADVENTURE

MANIFESTATION DETERMINATION MEETINGS

In MD meetings “all relevant information in the student’s file including the child’s IEP any teacher observations and any relevant information provided by the parents” must be reviewed to determine:

• Whether the conduct in question was caused by, or had a direct and substantial relationship to the child’s disability; or

• Was the conduct in question the direct result of the LEA’s failure to implement the IEP.

34 C.F.R. § 300.530(e)

PARENT DISAGREEMENT WITH MANIFESTATION DETERMINATION

A parent who disagrees with an MD committee’s determination that the student’s misconduct was not a manifestation of the student’s disability may request an expedited due process hearing to challenge that determination. 34 C.F.R. § 300.532(a)

ADVENTURES ON THE BUS

Student Sam has a problem keeping his hands to himself on the bus. Without discussing it with Steve, the bus driver suspends Sam from the bus until “after Christmas”, which is about 15 school days. Transportation is a related service for Sam. Steve thinks perhaps a manifestation determination may be required in this situation, but then Sam’s mom offers to drive him to school herself and “is fine with it.”

Steve considers two options:

Conduct a manifestation determination meeting.

ORLeave the matter alone, since Sam’s mom really doesn’t seem to mind driving him.

Steve’s Choice: Steve decides not to schedule a manifestation determination meeting and decides he will revisit the issue after Christmas.

CHOOSE YOUR OWN ADVENTURE

BUS SUSPENSIONS

Letter to Sarzynski, 59 IDELR 141 (OSEP 2012): Parent volunteered to drive student to school after student was suspended from bus.

OSEP: “A school district is not relieved of its obligation to provide special education and related services at no cost to the parent just because the child’s parent voluntarily chooses to provide transportation during a period of suspension from that related service.”

BUS SUSPENSIONS

• Suspension from the bus may be considered a suspension from school, which could result in a change in educational placement for a student with a disability.

• A change of placement triggers an MD review if it is for more than10 school days or it is part of a pattern of exclusion of more than 10 days.

34 C.F.R. § 300.536(a)(2)• When the removal is a change of placement, the MD

team must convene to determine if the suspension is a manifestation of the child’s disability. 34 C.F.R. § 300.530(f)(1)

BUS SUSPENSIONS

Is transportation part of the child’s IEP?

A bus suspension counts as a day of suspension for disciplinary purposes when transportation is part of the child's IEP.

Questions and answers on serving children with disabilities eligible for transp., 53 IDELR 268 (OSERS 2009).

If transportation is not listed in the child's IEP, transportation is not a part of the educational program and is not required for the student to gain access to the location where the services are delivered.

• the child and the child's parents have the same obligations to get the child to and from school as a nondisabled child suspended from the school bus.

71 Fed. Reg. 46, 715 (2006)

DISABILITY DISCLOSURE DURING DISCIPLINE ADVENTURE

During math class Jeff, a general education student, says that he’s going to kill another student Sam, and then kill himself. Superintendent Jones suspends Jeff for 30 days out-of-school. Jeff’s parents appeal his long term suspension and are given a hearing before the Board of Education. During the hearing Jeff’s mom says that Jeff is bipolar and severely chronically depressed. She claims the District had knowledge of Jeff’s disability, his conduct is related to his disability and demands that Jeff be returned to school immediately. The Board President asks Steve what the District should do.

Steve considers two options:Tell the Board President to tell Jeff’s mother that the Board will not make a determination as to whether Jeff is a student with a disability in these proceedings, continue with hearing and assign appropriate discipline.ORTell the Board President not to suspend Jeff and conduct an expedited evaluation.

Steve’s Choice: Confident that the District did not have knowledge of Jeff’s alleged disability because Jeff’s parents previously refused an evaluation, Steve advises the Board to continue with the hearing and discipline as appropriate.

CHOOSE YOUR OWN ADVENTURE

RESPONDING TO A DISCLOSURE OF A DISABILITY

Critical Question: Did the District have “knowledge” that the student was a student with a disability before the misconduct occurred?

Deemed to have knowledge of disability when:

• Parent has expressed concern in writing to supervisory or administrative personnel, or a teacher;

• Parent has requested evaluation;

• Staff has expressed specific concern about a pattern of the student’s behavior directly to the special education director or other supervisory personnel.

34 C.F.R. § 300.534

EXCEPTIONS TO THE “KNOWLEDGE” RULE

• District already conducted an evaluation and determined that the child was not eligible for services

• Parent refused to allow evaluation

• Parent refused IDEA services

34 C.F.R. § 300.534(c)

PARENT REQUEST FOR EVALUATION

• If a parent requests the student be evaluated for special education services during discipline, the District must conduct an expedited evaluation.

34 C.R.F. § 300.534(d)(2)(i)

• Until the evaluation is completed, the student remains in the educational placement determined by the school district.

• If the student is determined to be a child with a disability, the school shall provide special education and related services and follow required procedures for disciplining students with disabilities.

State Plan (2015, p. 83)