As the parent or guardian of a student who has been evaluated as having a disability in Indiana, you are probably very aware of many of the rights that your child has to a free and appropriate public education under both Indiana and federal law. You're aware of your child's Individualized Education Program (IEP) and may have participated in developing it together with school personnel. If your special needs child at some point is disciplined by their school, you want to know about it, and when that discipline is potentially serious and could result in their being suspended from school or removed to a new setting, you need to know how to help protect your child's rights. The experienced attorneys that make up the Lento Law Firm Student Defense Team understand the laws and rules that relate to the discipline of special needs students and will work with you to protect your child's rights in what can be a very difficult and stressful situation. Call us today at 888.535.3686 or schedule a confidential consultation to learn more about how we can help.
Indiana Law Affecting the Disciplinary Process for Students with Disabilities
Indiana law relies heavily on federal law requirements when it comes to disciplining students with disabilities. These provide parents with a number of rights in connection with their child's education and school discipline, and set forth standards for complaints and for resolution of disputes. In particular, the federal Individuals with Disabilities Education Act (IDEA) and portions of the Rehabilitation Act of 1973 and the Americans with Disabilities Act apply in disciplinary cases involving special needs students.
In addition, the Indiana State Board of Education includes in its Special Education Rules an entire set of rules (under the heading “Rule 44. Discipline Procedures”) devoted to the procedures that apply when a special needs child is disciplined at school. These focus on what happens when the discipline reaches the point where the child is removed from their regular school setting.
School officials have the discretion – but aren't specifically required – to “consider any unique circumstances on a case-by-case basis” when they discipline a “student with a disability who violates a code of student conduct.” Included in these “unique circumstances” are the student's disciplinary history and whether the student is able to understand the consequences of their alleged misconduct. Another consideration is the support the student received from the school before the alleged misconduct took place.
Indiana Policies Affecting Discipline of Students with Disabilities
As part of the Special Education Rules described above, Indiana includes a fairly detailed set of policies describing the process involved in disciplining a student with a disability and what the student's rights are under various circumstances. An ongoing concern of a number of these rules is determining to what extent the student will continue to receive educational services from the school even when removed from their regular assigned school setting. These rules follow the requirements of the federal IDEA, and can be used to determine whether your child's school is respecting your child's legal rights when disciplining your child. It's important to keep them in mind, especially when your special needs child is removed from school or any length of time for disciplinary reasons.
Ten Day Removals or Suspensions
School officials are allowed to remove a child with a disability from their “current placement” – that is, the school setting that is part of their regular school assignment – for no more than ten consecutive school days at a time, per incident, provided the same consequence would be applied to a student without a disability. If it is the student's first suspension, the school is not required to provide educational services to the student unless the school would normally do so for a student without a disability. However, once a student has been removed from school for more than ten school days during the same school year, the school is required to provide the student with instruction in some way that will help the student meet the goals of their IEP. This might be done by returning the student to their regular school setting or by providing the student with alternative instruction outside of that setting.
An “in-school suspension” is not considered a “removal” or a “suspension” for purposes of this 10-day rule if the student continues to be taught during the in-school suspension period and continues to receive any special education services required by their IEP. In addition, the student should also have the opportunity to participate with students who do not have disabilities “to the extent the student would have in the student's current placement.” This, of course, can be a challenge in a situation where the in-school suspension involves removing the student from their regular classroom assignment. It's important to pay close attention to the conditions of any in-school suspension that may be imposed on your special needs child to make sure their rights to a free and appropriate public education are being respected.
In some situations, a so-called “bus suspension” can be considered a “removal” for purposes of the 10-day removal limit, in cases where “bus transportation is part of the student's IEP,” and where the school does not provide the student with “transportation in an alternative manner.”
Suspensions or Removals for Longer than Ten Days
Where a student with a disability is removed from the regular classroom assignments or suspended from school for more than ten consecutive school days, or is removed more than once from school for a total of more than ten school days because of similar types of misconduct, the school's decision to remove the student to another setting – whether it's to an alternative school setting, or to the student's home – constitutes a “change of placement” that triggers certain rights.
Parents of the student can ask for a mediation conference to try to resolve the situation, or they can request a due process hearing to contest the removal or removals. They can also ask for both mediation and a hearing, which can be a useful way to resolve the matter.
The Lento Law Firm Student Defense Team can help in these kinds of difficult situations. We understand the school's obligations under Indiana and federal law to provide your special needs child with an education, and we can review the circumstances of their disciplinary removal and help you fight for your child's rights under the law.
Manifestation Determination
One consequence that comes with the “change of placement” status is that the student is entitled to receive what's called a “manifestation determination.” A manifestation determination is a process where the student's “CCC” – “Case Conference Committee,” a group that includes the student's parents, a school representative, at least one of the student's special education teachers, and at least one of the student's special education teachers – meets and reviews all relevant information in the student's file. The CCC also reviews the student's IEP, teacher observations, and relevant information from parents.
The focus of all of this is to determine whether the student's misconduct was “caused by, or had a direct and substantial relationship” to their disability; or whether it was the “direct result” of the school's failure to properly implement the student's IEP. Where the student's conduct was because of the school's failure to implement the IEP, the school must “take immediate steps” to fix that problem. If it is related to the student's disability, the CCC must then conduct a “functional behavioral assessment” as described below.
If the student's behavior is not related to their disability, then the school is free to discipline the student as it does students who do not have disabilities, according to the school's usual disciplinary procedures. One significant difference is that the special needs student must receive “appropriate services” during “any removal that is ordered,” as determined by the student's CCC. These “appropriate services” should allow the student to:
- Continue to be part of the “general education curriculum,” but in “another setting”
- Make progress towards meeting the goals of their IEP
- If appropriate, receive a functional behavioral assessment and “behavioral intervention services and modifications” to help address the behavior so that it does not happen again
Parents have a right to challenge a school's decision that the student's misconduct was not a “manifestation of the student's disability.” They can seek to mediate the issue, file a due process hearing to resolve it, or both. The Lento Law Firm Student Defense Team can help you review your options in a situation where your child's school has decided that their misconduct was unrelated to their disability, but you believe otherwise, and can help you protect your child's rights in this kind of a situation.
Functional Behavioral Assessment
As noted above, when the student's misconduct was the result of the student's disability, the CCC must conduct a “functional behavioral assessment.” This is designed to determine the cause of the student's behavior and to develop a “behavioral implementation plan” for the student to help resolve it. In cases where a behavioral implementation plan is already in place, the CCC must review the plan and modify it, if necessary, to help address the behavior.
Appeals
The short-term removals or suspensions described above, those that are ten days or less in length, can't be appealed, though there is nothing to prevent you from scheduling an informal conference with the school principal or another administrator to discuss the matter. Longer-term removals or suspensions can be appealed, as can the decision to conduct a manifestation determination as well as the results of that determination. Rule 45 of the Indiana State Board of Education's Special Education Rules describes in detail the requirements for filing a complaint, and the process for resolving it.
It's important to make sure that any appeal includes all of the required information. This includes a description of what federal law or Board of Education rule has been violated; the facts supporting the claim, including the specific situation; and “a proposed resolution to the problem to the extent known and available to the party” filing the complaint. Complaints must also be timely and should be filed within one year of when the complaint is received by the Indiana Division of Special Education.
An effective complaint will do more than just lay out certain facts and laws. It will also describe the problem clearly and in a way that explains why the outcome you're asking for is the correct one. The Lento Law Firm Student Defense Team has years of experience crafting detailed and convincing complaints in situations like these, and will work with you to make sure that your complaint not only meets the requirements under Indiana law, but presents your child's case in a compelling way.
As the complaint moves through the dispute resolution process, we will be with you at every step. We'll represent your child's interests and can attend mediation sessions to try to resolve things quickly and effectively. If a hearing is necessary, we will be there presenting your child's case, arguing on their behalf, and advocating for their right to a free and appropriate public education under the law.
Other Types of School Discipline
Our experienced student defense attorneys also understand how the school disciplinary process works in general for all students. We regularly help students from across the country, including in Indiana, defend their rights in situations where schools are attempting to discipline them for alleged misconduct. In cases where a student with a disability is being disciplined according to the school's usual disciplinary procedures because the school has determined that their misconduct did not relate to their disability, we can still provide help where that discipline could seriously affect their education.
Schools in Indiana all have codes of conduct that describe the types of misconduct that can result in discipline, what that discipline can be, and how the school investigates misconduct claims and determines what discipline to impose. While each school's procedures tend to vary somewhat, the types of discipline that can often take place include the following:
- Parent-teacher conferences with the student to discuss the misconduct
- Loss of lunch privileges, requiring the student to eat lunch in a supervised setting
- Loss of extracurricular activity privileges
- “Time out” periods, spent somewhere away from their usual classroom
- Detention
- “Bus suspension,” where bus transportation is not part of the student's IEP
Of course, students can also be suspended or expelled, though in the case of a student with a disability, that can trigger some of the protections provided by federal and Indiana law.
The Hearing Procedures for More Serious Forms of Discipline
You may have a right to a hearing for some of the forms of discipline that are short of a suspension or an expulsion. The Lento Law Firm Student Defense Team can help you evaluate your student's situation to determine what their rights are under the school's regular code of conduct and Indiana law. We can also help evaluate other misconduct situations to determine whether your child is being treated fairly by their school.
Some Problems with School Discipline
School administrators don't always follow their own school's code of conduct or state law when it comes to investigating and disciplining student misconduct. This can result in a student being disciplined unfairly, which can cause more harm in the case of a student with a disability. Common issues that the Lento Law Firm Student Defense Team has seen in our years of protecting students' rights include:
- Inadequate investigations. Busy school officials don't always have the time or the training to investigate misconduct claims properly. They will often act on less-than-complete information. We often conduct our own investigations for our student clients and uncover “the rest of the story” that provides important context to, or completely contradicts, misconduct allegations.
- Failure to notify parents of discipline. Parents have a right to know when their child is disciplined. In the case of a student with a disability, this can be particularly important in terms of allowing parents to help their child address and correct their behavior.
- Procedures ignored. School officials often just don't follow their own rules. Our experienced attorneys will point this out and help correct any injustices that may result.
- Unfair application. Playing favorites can mean that some students get away with what other students are disciplined for. We can help protect against that hurting your child.
How an Experienced Student Defense Attorney Can Help
At the Lento Law Firm Student Defense Team, our experienced attorneys understand the often-complicated laws and rules that apply in situations where a special needs student is being disciplined by their school. We will work with you to help you understand the situation, what your options are, and how best to protect your student's rights. We can be there with you during conferences with school officials, at formal mediation meetings, and during hearings. Our attorneys understand the appeal process after a manifestation determination or other discipline-related decision by your child's school. By applying our knowledge of the law to the facts of your child's particular situation, we can present your child's case in a clear and compelling way.
The Lento Law Firm Student Defense Team Can Protect Your Child's Rights
The Lento Law Firm Student Defense Team is here to help when your special needs child is facing serious consequences at school for disciplinary reasons. We have helped students all across the country, including in Indiana, protect their rights in serious disciplinary situations at school, and have the understanding of federal and state law to make sure that the rights of your special needs child are protected as well. We will fight for your child's right to a free and appropriate public education when your child's school is improperly trying to discipline them.
Call the Lento Law Firm Student Defense Team today at 888.535.3686 or schedule a consultation with one of our experienced student defense attorneys to learn more about how we can help you protect your child's rights.
