1.Before a handicapped student can be expelled, a trained and knowledgable group of persons must determine whether the student's misconduct bears a relationship to his handicapping condition.
2.The determination that a handicapped student knows the difference
between right and wrong is not tantamount to determination that his misconduct
was or was not a manifestation of his handicap. Further, determination that
students are not seriously emotionally disturbed is not acceptable as
determination that misconduct was not a symptom of the handicap.
3.An expulsion is a change in educational placement which invokes the procedural protections of the IDEA and Section 504 of the Rehabilitation Act.
4.Expulsion is a proper tool under the IDEA and Section 504, but a complete cessation of educational services is not.
5.The IDEA requirement that parents have an opportunity for due process hearing makes no exception for handicapped students who voluntarily withdraw from the school or previously agree to an educational placement.
Review of the IEP
In the event that a handicapped student should exhibit problem behavior that might normally result in expulsion, the IEP should be reviewed to determine if the behavior in question has been addressed in the annual goals or short term objectives. If the particular behavior has been specified as one of the factors leading to the placement of the student in the special education program, there would be no doubt that this behavior is related to the handicapping condition. It is particularly important to note that many maladaptive behaviors associated with the condition of behavioral disorder are precisely those behaviors that might usually lead to expulsion and suspension from the public school programs. Information derived from rating scales or classroom observations may prove to be extremely valuable in this regard. If the misconduct has already been addressed in the IEP, recommendations may have been included as to appropriate discipline strategies to use or to avoid in dealing with the student.
To comply with federal regulations, a meeting must be held at least once a year for the purpose of reviewing the IEP and to revise its provisions if appropriate. It is obvious, however, that many discipline problems could be prevented if there would be coordinated, continuous evaluation of the progress of disabled students. If the annual goals, short term objectives, and the placement are appropriate for the student, there generally is improvement. If there is no improvement, the IEP committee has an obligation to change the educational program.
Parent Involvement with the IEP
All of the procedural safeguards which are normally available to parents are also available under the circumstances of possible exclusion of the handicapped student from the school. These safeguards include, but are not limited to, informed notice, informed consent if a change in placement is recommended, the right to refuse consent, the right to participate in decision making regarding the educational program, and the right to request an impartial due process hearing regarding these matters. If the parent should disagree with a proposed change in the educational program and a due process hearing is initiated, the student must be allowed to continue to attend the program in which she/he has been placed while any administrative or judicial proceeding regarding a complaint is pending. If suspension occurs during this period, the student must be allowed to return to the same program following the termination of the suspension period.
During both the development of the IEP and the IEP review, parents should be given the opportunity to discuss the types of
intervention that they feel have been effective with the student. They should also express their opinions concerning behavioral management techniques that are utilized in the various educational settings in which the student may be placed. The particular issues that should be explained to, or negotiated with, the parents or guardians include
(a) the use of tangible rewards,
(b) the use of corporal punishment, other aversive techniques, time-out, or isolation rooms, and
(c) school or district policy concerning the management of a student who is uncontrollable or considered to be in danger to herself/himself or others.
In some districts, the IEP includes a form on which the parent may indicate written approval or disapproval of the use of various behavior management techniques. The parents should also be encouraged to request parent counseling or training if either seem to be necessary or desirable in dealing with the special needs of the student.
Service Delivery Options
According to federal law, a full continuum of alternative placements must be available to handicapped students: regular class; regular class with supplementary services, such as resource room or itinerant instruction; special class; special schools; home instruction; and instruction in hospitals and institutions. If the behaviorally disordered student is exhibiting problem behavior in one setting that might normally result in suspension, the staffing committee may determine that placement in a more restrictive environment would be appropriate.
Federal law provides for placement of a handicapped student in the environment that is as close to regular education as is feasible for the student, in which her/his educational needs can be met. The purpose of placement in a more restrictive environment should, therefore, be to bring more services to bear upon the student's educational deficits and not merely to protect the normal population from the problem student. Although least restrictive environment and regular class are not synonymous, after the implementation of IDEA 97, many behaviorally disordered students who had previously been placed in segregated settings were reassigned to regular classes for at least part of the school day. It is, however, generally recognized that behavior problems may result from, or be exacerbated by, the student's inability to cope in an environment in which she/he cannot achieve success. Further, according to an analysis of the federal regulations, with respect to proper placements, if a disabled child's behavior is so disruptive in a regular classroom that the education of other students is significantly impaired, regular class placement is not considered to be appropriate to that child's needs. Selection of regular classes into which the behaviorally disordered student would be integrated should, therefore, be made very carefully, with full consideration given to the social and emotional as well as the cognitive demands of that setting.
Relationship of Misconduct to the Handicapping Condition
In the event of a possible suspension of a handicapped student, school administrators have been advised to consider the following questions:
School personnel have been cautioned to avoid the use of multiple or sequential suspensions with handicapped students. Such practice may be interrupted as a complete cessation of educational services, which is a violation of the handicapped students' right to a free, appropriate education as provided in state and federal law regulation.
Although the school district's code of student conduct applies to handicapped students as well as to the normal population, an exception must be included to ensure that the handicapped students will not be denied educational services. Behaviorally disordered students in particular may be less able than other students to control their behavior. Furthermore, any form of discipline used must be considered in terms of the eventual effect upon the student's behavior. Any disciplinary practice which exacerbates a handicapped student's behavior would be inappropriate for use with that student.
When a handicapped student's behavior is so disruptive to the education of others that she/he must be removed from that setting, the school district may consider the following alternatives:
It is important to ensure that any proposed change in educational program provides for
(a) the individual needs of the student and
(b) placement in the least restrictive environment.