Discussion 2.2
Disciplining Students Receiving Special Education
By
Vincent H. A. Gordon, Jr., Ph.D.
April 2017
Abstract
A brief synopsis of the legality of disciplining students with special needs in public
education is presented. An example of a case study is also presented from the
experience of the author demonstrating laws surrounding providing students with a free
and public education (FAPE). Examples of the application of the laws protecting
students’ rights to FAPE and the responsibility of school districts to insure the timely
response of handling discipline issues are also presented.
Legal Analysis
Laws are made to protect the rights, liberty, life, and the pursuits of happiness of
individuals. This paraphrase of the Fourteenth Amendment of the Constitution of the
United States of America is exhibited in every area of society. The discipline of
education also has these same laws to protect and to preserve the sanctity of instruction
where the transmittal of knowledge is presented in an atmosphere that is conducive to
the learning environment. When students habitually display inappropriate attitudes and
behaviors especially after appropriate disciplinary responses are applied to try to
discourage those destructive actions, alternative means of providing education to those
students become an urgent priority of the school to insure that instruction and learning
continue and are not hindered by the wrongful choices of disrespectful, disobedient, and
disruptive students.
There are federal laws, state statutes, case laws, and local policies which address
the areas of rights, liberty, life, and the pursuits of happiness of individuals who are
disabled. The intent of these laws, statutes, and policies are positive. The main purpose
of these safeguards is to insure that everyone is treated fairly and is not disadvantaged
due to a physical, mental, or emotional disability. The challenge exists when
individuals with a disability or disabilities exploit their disability or disabilities and the
intent of these laws, statutes, and policies, to perpetuate their wrongful and selfish
impulses. The topic: Disciplining Students Receiving Special Education attempts to
address the importance of following legal documents to help and not to hinder the
protection and preservation of instruction and learning in a safe environment for all
students.
According to Title 20>Chapter 33>Subchapter II>c 1415 Procedural Safeguards,
there are different types of procedures listed which address the responsibilities and
rights of schools, parents, and students pertaining to disciplining students receiving
Special Education. One of those procedures discussed the steps to be initiated by the
school prior to initiating or refusing to initiate a change of placement.
(3) Written prior notice to the parents of the child, in accordance with subsection
(c) (i), whenever the local educational agency
(A) proposes to initiate or change; or
(B) refuses to initiate or change, the identification, evaluation, or educational
placement of the child, or the provision of a free appropriate public education to
the child (http://www.4.law.cornell.edu/uscode).
In case either the school or the parent is not satisfied with a particular decision, an
appeal becomes the next step in trying to resolve the issue. According to Procedural
Safeguards 1415 of Title 20>Chapter 33>Subchapter II, the definition along with a brief
description of an appeal is given when both parties or either party tries to rectify a
problem pertaining to Free And Appropriate Education (FAPE) and Individuals with
Disabilities Education Act (I.D.E.A.):
(A) In general, the parent of a child with a disability who disagrees with any
decision regarding placement, or the manifestation determination under this
subsection, or a local educational agency that believes that maintaining the
current placement of the child is substantially likely to result in injury to the
child or to others, may request a hearing.
(B) Authority of hearing officer
(i) In general, a hearing officer shall hear, and make a determination regarding
an appeal requested under subparagraph (A).
(ii) Change of Placement Order. In making the determination under clause (i),
the hearing officer may order a change in placement of a child with a disability.
In such situations, the hearing officer may-
(I) return a child with a disability to the placement from where the child was
removed; or
(II) order a change in placement of a child with a disability to an appropriate
educational setting for not more than 45 school days if the hearing officer
determines that maintaining the current placement of such child is substantially
likely to result in injury to the child or to others
(http://www4.law.cornell.edu/uscode).
According to Imber (2004), “disputes between parents and schools over the issue
of LRE are common. Sometimes the school advocates special placement, while parents
favor education in the regular classroom, and sometimes the positions are reversed.”
Sometimes, the behavior of the student is so disruptive that it impedes the learning of
other students (p277). Imber presented a case study of a sixth grader whose parents
insisted that their son’s disruptive behavior was due to his disability of Attention Deficit
Hypertension Disorder (ADHD) (p261). The school had tried numerous intervention
plans to accommodate and modify the student’s behavior. However, his behavior was
the same. When the school attempted to expel the student, the parents stated that
expelling their son was not permitted under the policies of IDEA because of his
disability of ADHD. The parents argued that their son was entitled to FAPE. The
school contended that they had to significantly alter their discipline code of conduct to
accommodate their son’s inappropriate behavior (p262).
The case went before the First Circuit. The First Circuit upheld the school’s
decision to expel the sixth grader because, according to the court, Americans with
Disabilities Act (ADA) does not require “a school to suspend its normal codes of
conduct in order to tolerate disruptive and disrespectful conduct when that behavior
impaired the educational experience of other students and significantly taxed the
resources of the faculty and other students” (p262).
Both of these documents, the U.S. Code and the case law support the educational
practice of disciplining students receiving special education where a change of
placement may be warranted. According to Title 20 subsection (6) under Procedural
Safeguards 1415, any party has an opportunity to present a complaint if either party is
dissatisfied with a decision made pertaining to “any matter relating to the identification,
evaluation, or educational placement of the child, or the provision of FAPE” when
disciplining a student with special needs (http://www4.law.cornell.edu/uscode).
Case Study
One school year as a new administrator, I had the opportunity to participate in a
Mediation meeting with one of our students who was receiving special services at our
public high school. Due to a number of level 3 and 4 infractions which are infractions
of a more serious nature according to the U.S. Virgin Islands Board of Education Policy
Manual, student “X” received intervention plans, counseling from his school counselor,
and a behavior contract. The behavior of this student escalated to the point of his
physically retaliating against one of the school monitors during a fight after school. The
Basic Child Study Team (BCST) which consisted of the five administrators (principal
and four assistant principals), school’s guidance counselors, the resource teacher in the
Department of Special Education at the school, and the school nurse, met to review
those students whose behaviors and academic performances were found to be at risk
academically and socially, and to decide a plan of action for assisting them to do better
at school. Determination of identifying those students whose academic performances
and behaviors to be at risk were: attendance, academics, and discipline records. This
process was completed for all of the students (General Education, Bilingual Education
and Special Education students) whose level of performance in the above mentioned
areas were poor. The BCST decided that perhaps a change of placement would be best
for some of these students whom the school preferred to refer to as our “students of
hope” instead of using the negative descriptor “students at risk” to describe or to refer to
them. Those students who were referred to the Alternative Education Program
transferred without incident from either student or parent, with the exception of one
parent. Student “X”’s mother’s sentiments which were expressed verbally to me were
that she did not want her son to be “mixing with criminals” at the Alternative Education
Program.
The director of the Alternative Education Program was present at the school
conducting an orientation of the program for the parents of those students who were
referred to attend the program. The parent of student “X” walked out of the orientation
and stated that the orientation was not for her son. The parent promptly filed a Due
Process with the State Office of Special Education, she contacted a Child Advocate, and
she sent a copy of her complaint to the Office of the Superintendent in the Department
of Education.
I received a letter from the superintendent, the attorney representing the parent,
and from the State Office of Special Education directing me to allow student “X” to
remain at the school. The directive was a “Stay Put” directive until a decision could be
rendered at the Mediation meeting since the time of completing the Due Process had
already passed the ten days.
The Mediation was held where the Director of Special Education and the
Mediator agreed that due to some discrepancies with the student’s Behavior
Intervention Plan (BIP) which was not completed in a timely manner by the resource
teacher, and due to the lack of following protocol in communicating with the parent in
writing within ten working days before making a decision to transfer her son to an
alternate setting, the school erred and therefore, the student would remain at the home
school. Part of the compromise, however, was that the student’s Individualized
Education Plan (IEP) and Behavior Intervention Plan (BIP) would reflect the
expectation of the team for drastic adjustments to be made in the student’s attitude and
behavior. Accountability was set in place in the student’s IEP and BIP to ensure
complete compliance with the goals of the IEP team and the academic/discipline code
of conduct of the school. The student would complete the remaining of the school year
at his home school. He would begin the next school year and would continue to follow
the IEP goals and the BIP goals. Any infractions would result in an IEP meeting to
discuss change of placement.
Although one may feel that the school could have been given an opportunity to
correct their procedural error while permitting the student to attend the Alternative
Education Program in order to receive the services which student “X” desperately
needed without any distractions, the importance of completing careful documentation
and following procedures within the ten working days in order to prevent litigation or
the violation of someone’s rights were understood. In order to prevent legal issues from
arising, one has to be extremely careful in documenting and following proper protocol
according to law and to those policies which guide schools. The student completed the
remaining year without incident and did not return the following school year. His
mother transferred him to another school district within the United States.
References
Imber, M. and Geel, T. (2004). Educational law third edition. Lawrence Erlbaum
Associates, Inc. New Jersey.
The U.S. Code. Retrieved from http://www4.law.cornell.edu/uscode