Students eligible for special education may be disciplined consistent with the disciplinary rules that apply to all students. The district will determine on a case by case basis whether discipline that is permitted under WAC 392-400 should occur. However, students eligible for special education must not be improperly excluded from school for disciplinary reasons that are related to their disability or related to the district’s failure to implement a student’s IEP. The district will take steps to ensure that each employee, contractor and other agents of the district responsible for education or care of a student is knowledgeable of special education disciplinary rules.
A. Removal Up to Ten Days
The Superintendent or designee may order the removal of a special education student from a current placement. The district need not provide services to a special education student removed from the current placement for ten school days or less in any school year, if services are not provided to a student without disabilities.
B. Removal for More than Ten Days
Once a student has been removed from placement for a total of ten school days in the same school year, the district must, during subsequent days of removal, provide appropriate services to the extent necessary to enable the student to participate in the general curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP in consultation with one or more of the student’s teachers and special education director will make the determination of such necessary services.
If the IEP team members described in the manifestation determination section determine that the behavior is not a manifestation of the student’s disability and the removal is a change of placement, the district may apply the same disciplinary measures that apply to students without disabilities. However, the student must continue to receive services to the extent necessary to enable the student to participate in the general curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP. The relevant IEP team members, selected by the parent and the district, will determine appropriate services.
Change in Placement
A change of placement occurs when a special education student is:
- Removed from current placement for more than ten consecutive school days in a school year; or
- Subjected to a series of removals in a school year and which constitute a pattern of removal because:
- the series of removals total more than ten school days in a year;
- the student behavior is substantially similar to the student’s behavior in previous incidents that resulted in the series of removals; and
- because of factors such as the length of each removal, the total amount of time a student is removed, and the proximity of the removals to one another.
Whether a pattern of removal constitutes a change in placement is determined on a case-by-case basis by the building principal and special education director and is subject to review through due process and judicial proceedings. The principal will notify the director of any special education suspension.
Within ten school days after the date on which the decision to change the placement is made the district will conduct a “manifestation determination” of the relationship between the student’s disability and the behavior subject to the disciplinary action.
The review of the relationship between a student’s disability and the behavior subject to the disciplinary action will be done in a meeting by the parent and relevant members of the IEP team who are selected by the parent and the district. The special education director or designee will contact the team and parents.The team will review all relevant information in the student’s file, including the IEP, teacher observations and information provided by the parent to determine:
- If the conduct was caused by or had a direct and substantial relationship to the child’s disability; or
- If the conduct in question was the direct result of the district’s failure to implement the student’s IEP.
If the team determines that the behavior resulted from any of the above, the behavior must be considered a manifestation of the student’s disability and the contemplated disciplinary action will not proceed.
If the team determines, specifically, that the conduct was the direct result of the district’s failure to implement the IEP, the district must take immediate action to remedy the deficiencies.
If the IEP team determines that the conduct was a manifestation of the student’s disability, the team must:
- Conduct a functional behavioral assessment (unless already completed) and implement a behavioral intervention plan; or
- Review the existing behavioral intervention plan and modify it to address the behavior; and
- Return the child to the placement removed from unless the parents and the district agree a change is necessary as part of the behavioral intervention plan, or unless the infraction involves drugs, weapons or bodily harm.
School personnel may order a change in placement to an appropriate interim alternative educational setting for the same amount of time that a student without disabilities would be subject to discipline, but for not more than 45 school days, if a special education student:
- Possesses a “dangerous weapon” or carries such a weapon to school or to a school function;
- Knowingly possesses or uses “illegal drugs” while at school or a school function;
- Sells or solicits the sale of a “controlled substance” while at school or a school function; or
- Inflicts serious bodily injury upon another person while at school or a school function. Serious bodily injury means a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ or mental faculty.
Any interim alternative educational setting in which the student is placed is determined by the student’s IEP team and will:
- Be selected so as to enable the student to participate in the general curriculum, although in another setting and to progress toward meeting the goals set out in the student’s IEP; and
- Include services and modifications designed to address the behavior or to prevent the behavior from recurring.
The district may ask an administrative law judge, or seek injunctive relief through a court having jurisdiction of the parties, to order a change in placement to an appropriate interim alternative educational setting for not more than 45 calendar days or seek injunctive relief through a court having jurisdiction of the parties when:
- The district can demonstrate beyond a preponderance of the evidence that maintaining said student’s current placement is substantially likely to result in injury to the student or others;
- The district has made reasonable efforts to minimize the risk of harm in the current placement, including the use of supplementary aids and services; and
- The proposed interim alternative educational setting has been proposed by school personnel in consultation with the student’s special education teacher and meets the requirements of WAC 392-172A.
Unless the parent and the district agree otherwise, if a parent requests a hearing to challenge either the manifestation determination or the interim alternative educational setting, the student must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the 45 day period, whichever occurs first.