As the parent of a child with a diagnosed disability who attends grade or high school in North Carolina, you have first-hand experience with the challenges and rewards of making sure your child receives the education they're entitled to under the law. You probably are very familiar with concepts such as a Free Appropriate Public Education and an Individualized Education Program, and you're likely working closely with your child's teachers and other school personnel on a regular basis. That's why when a situation arises that can result in your child being disciplined, it's important to understand what your – and your child's – rights are. The Lento Law Firm Student Defense Team understands how important your child's education is to you, and we are ready to help you in situations where their school is disciplining your child in ways you don't believe are appropriate. Call us today at 888.535.3686 or use our contact form to set up a consultation to discuss your concerns and learn more about how the Lento Law Firm Student Defense Team can help.
North Carolina Law Affecting the Disciplinary Process for Students With Disabilities
North Carolina has laws that generally describe the disciplinary process that must be followed in certain cases for students with disabilities. School policies in this area must be “consistent with federal laws and regulations.” Corporal punishment – still allowed by law in North Carolina but prohibited in almost all school districts in the state – must be administered to students with disabilities in a manner consistent with the way it's administered to other students.
The law also provides that a student with a disability cannot be assigned to “homebound instruction” as a disciplinary response to their behavior unless the student's Individualized Education Program (IEP) team determines that being taught at home is the “least restrictive alternative environment” for the student.
North Carolina Policies Affecting Discipline of Students With Disabilities
The North Carolina Department of Public Instruction has a number of policies that discuss how students with disabilities are to be disciplined. These generally implement the requirements of the federal Individuals With Disabilities Education Act (IDEA) but apply specifically to schools in North Carolina.
School officials are given the latitude to consider “any unique circumstances on a case-by-case basis” when deciding whether changing the placement of a child with a disability is an appropriate response when the child violates the school's code of conduct. Circumstances that the DPI says should be considered include the “area of disability, functioning level of the child, intent of the behavior,” and “other relevant factors.”
10-Day Removals or Suspensions
School personnel are allowed to remove a child with disabilities from the child's existing school placement to an “appropriate interim alternative educational setting” for no more than 10 consecutive days as a consequence of a school code of conduct violation. If the child is removed again during the same school year on disciplinary grounds, the school must provide them with educational services designed to help them meet the goals of their IEP.
Suspensions or Removals Longer than 10 Days
If a child with a disability is removed from school for more than 10 days, and it's determined that their misconduct was not a “manifestation of the child's disability,” then the school is allowed to discipline the child as it does children who do not have disabilities. The only differences are that the student's IEP team determines where the student will be educated during the suspension period, and the school must provide the suspended student with educational services designed to help them achieve their IEP goals.
Functional Behavioral Assessments
Where a child with a disability is removed from school for more than 10 days at a time, the school must conduct a “functional behavioral assessment” of the child, and provide “behavioral intervention services” that are designed to address the child's behavior violation, ideally so it does not happen again. If the child has an existing behavioral intervention plan, that plan “must be reviewed and modified, as necessary, to address the behavior.”
Manifestation Determinations
If the school decides to change the placement of a child with a disability on a permanent basis because the child has violated the school code of conduct, the school must conduct what is called a “manifestation determination.” This must include the child's parents, members of the child's IEP team, and someone from the school or school district. Together, they must review “all relevant information” in the child's file, observations from the child's teachers, and relevant information from the parents. The focus of this is to determine whether the child'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 implement the student's IEP.
In cases where the child's behavior resulted from the school's failure to implement their IEP, the school “must take immediate steps to remedy those deficiencies.” In cases where the misconduct was directly related to their disability, the child's IEP team must conduct a functional behavioral assessment and put a behavioral intervention plan in place for the child. If a plan was already in place, the IEP team must review it and modify it as necessary to address the student's behavior. In addition, the student must be returned to their original placement, except in special circumstances involving weapons, illegal drugs, or serious violence, when the student can be placed in an alternative setting as determined by their IEP team.
Appeals
Suspensions (or removals from current placement) that are 10 days or less are not appealable. Longer-term suspensions are appealable, as are the results of a manifestation determination and any decision involving the child's change of placement. Appeals are determined by a “due process hearing.” Parents can request a hearing by filing a petition with the Office of Administrative Hearings and the Director of Special Education (Exceptional Children Director) of their local school district. A copy must also be sent to the Consultant for Dispute Resolution at the North Carolina Department of Public Instruction, Exceptional Children Division.
There are specific requirements for the information that must be included in the due process hearing petition. Petitions that do not meet these requirements will not be considered, so it's important to make sure that any petition doesn't leave out any of the required information. It's also important to submit a petition that argues your child's case in a compelling and effective way. This is where the Lento Law Firm Student Defense Team can be particularly helpful. Our experienced attorneys understand the requirements for appealing disciplinary decisions affecting students with disabilities in North Carolina and will make sure any petition that is filed meets those requirements so that the matter isn't delayed. What's more, we will work with you to make sure the petition includes as much helpful and relevant information as possible and that it makes strong, effective legal arguments based on North Carolina and federal law.
Other Types of School Discipline
Students with disabilities can also be disciplined in the same manner as all other students for code of conduct violations that won't necessarily result in them being removed from their current placement. All students, including students with disabilities, can find themselves disciplined for any number of conduct violations, including academic and behavioral misconduct. Schools typically give themselves a wide range of options when it comes to disciplining students, aside from suspending or expelling them from school. Some of these consequences include:
- Parent-teacher conferences to address the misconduct
- Requiring the student to take a “time-out” away from other classmates
- Meetings with a school counselor
- Detention, including before- and after-school detention, as well as Saturday detention
- Exclusion from extracurricular activities for a certain period of time
- Community service
- Loss of school transportation (bus) privileges
In addition, of course, students can also be suspended for short or long periods of time for the more serious types of misconduct. When this happens, the school's code of conduct may provide for some form of informal hearing for short-term suspensions, even though North Carolina law may not require the school to do so.
For longer-term suspensions, anything over 10 days, parents have a legal right to appeal, as described above. There are typically steps that the school must take before imposing a long-term suspension, with notice to the parent being one of those steps. In most cases, there will be some form of hearing before the superintendent of the school district. If the superintendent decides that the student should be suspended or expelled, the recommendation will be reviewed by the board of education, which will make the final decision. The board's determination may usually be appealed – but to the same board that made the decision. In cases where a student with a disability is subject to a long-term suspension or expulsion, the additional requirements described above will apply to the appeal process.
The Hearing Procedure for More Serious Forms of Discipline
School codes of conduct will typically describe the hearing process that the school is to follow in cases of more serious misconduct allegations that can result in suspension or expulsion. This process will resemble a sort of informal court hearing, with evidence introduced and witnesses testifying on both sides of the case. The specific process used, including the makeup of the hearing body, the rights that the student has during the hearing, and the way the hearing will operate, may differ from one school district to another, but all of them are required to follow the applicable North Carolina law.
Some Problems With School Discipline
While every school in North Carolina has a code of conduct that describes what's expected of students and how the school will react to various types of misconduct situations, teachers and school administrators don't always follow those procedures. This is where things can get very difficult, particularly for students with disabilities. Issues can include:
- Failure to investigate. Busy and poorly-trained school personnel may not fully investigate misconduct claims. Students who are involved in altercations, for example, may be accused of instigating a fight when, in fact, they were simply trying to defend themselves. This can be a particular problem for students with disabilities, who may find themselves the target of other students' comments or aggressive behaviors that can trigger an aggressive response.
- Failure to notify. Parents will typically have a right to be notified of certain types of discipline when it's applied to their child. Schools sometimes fail to do so.
- Failure to follow procedures. Where the school code of conduct describes a procedure that is to be followed before a student is disciplined, it's reasonable to expect the school to follow that procedure. Unfortunately, that doesn't always happen. This is particularly important when a student with a disability is being disciplined.
- Unfairness. Teachers and school administrators aren't always fair, and may discipline certain students more harshly than others for the same types of misconduct.
How an Experienced Student Defense Attorney Can Help
An experienced student defense attorney from the Lento Law Firm Student Defense Team will work with you to understand the situation that led to the discipline or potential discipline that is affecting your child. We will advise you of your rights – and your child's rights – under North Carolina and federal law, as well as those that are provided by the code of conduct adopted by your child's school. Where necessary, we can conduct our own investigation of the incident or situation that prompted the discipline, often uncovering “the rest of the story” that the school's inadequate investigation failed to reveal.
In cases where the school fails to follow the legal requirements for disciplining students with disabilities, we will fight for your child's rights and can discuss the situation with the school or, where that fails to resolve the situation, file suit to force the school to follow the law. In other situations, where your child is being disciplined in the same way as all other students, we will make sure that the school is doing so fairly, that it's following its own procedures, and that your child's rights are respected throughout the entire process.
The Lento Law Firm Student Defense Team Can Protect Your Child's Rights
The Lento Law Firm Student Defense Team is committed to helping students all over the country – including in North Carolina – protect their rights in school disciplinary situations. We understand the laws, rules, and policies that apply to disciplining all students, including those with disabilities, and we will aggressively fight for your child's rights in any disciplinary situation.
Call us today at 888.535.3686 or use our contact form to schedule a confidential consultation to learn more about how the Lento Law Firm Student Defense Team can help protect your child's right to receive an education. We're here to listen and to help!
