If you are the parent or guardian of a student in grade or high school in Michigan who has a diagnosed disability, you want the very best for your child and expect that your child’s school will live up to its legal obligation to provide your child with a free and appropriate public education. You may have already participated in the creation of your child’s Individualized Education Program and likely have regular contact with teachers and others at the school who interact with your child on a day-to-day basis. So when you learn that your special needs child has been accused of serious misconduct at school and is facing discipline that could significantly change how they’re taught, you need to understand what your rights are as a parent, as well as what rights your child has in this situation. The LLF National Law Firm Student Defense Team is here to help you protect your child’s rights in a school disciplinary situation. Call us at 888.535.3686 or use our contact form to schedule a confidential consultation to learn more about how we can protect students with disabilities in disciplinary situations in Michigan.
Michigan Law Affecting the Disciplinary Process for Students With Disabilities
Michigan law specifically requires school officials to take a number of factors into account before suspending or expelling a student. One of these is “Whether the pupil is a student with a disability.” Any decision to suspend or expel a student must show that the board or school officials making the disciplinary decision “considered each of the factors” that they are required to consider before making the decision, including considering the student’s disability. (Note that in Michigan, a “suspension” is defined as removing a student from school for fewer than 60 days, while “expulsion” is when the student is removed for more than 60 days.)
Michigan law gives school officials broad discretion to determine whether a particular student should be suspended or expelled. A student can be removed from school for “gross misdemeanor or persistent disobedience” when the school determines that “the interest of the school is served” by doing so. That said, if there is “reasonable cause to believe that the pupil is a student with a disability,” and the school district has not evaluated the student to determine whether or not a disability exists, the student must be “evaluated immediately” to determine if the student qualifies as a student with a disability under Michigan and federal law. That determination can substantially change whether and how the student is disciplined by the school.
Michigan Policies Affecting Discipline of Students With Disabilities
Michigan has no specific administrative rules that relate to the discipline of students with disabilities. As noted above, Michigan is required to comply with federal law when disciplining a student with a disability. In particular, the federal Individuals With Disabilities Education Act (IDEA) places a number of limits on how a school can discipline a student with a disability. It’s important to keep these requirements in mind any time a school disciplines a child who has been evaluated and found to have a disability.
10-Day Removals or Suspensions
School officials can remove a student with a disability from their current placement for periods not to exceed 10 days on disciplinary grounds. The student can be suspended from school or placed in a different educational setting for the suspension period. This can be done multiple times during the school year, for different misconduct incidents, each time for no more than 10 consecutive days.
During the first suspension of 10 days or less, the school is not required to provide the student with “education services;” during any subsequent suspension, however, the school must do so. These services should allow the child to “continue to participate in the general education curriculum” even in an alternate setting, and should also allow the child to progress towards meeting the goals set by the child’s IEP.
Suspensions or Removals for Longer than 10 Days
When a student with a disability is suspended for more than 10 days, there are two possible outcomes. If the school determines that the misconduct was not “a manifestation of the child’s disability,” then the student will be treated as any other student would be under the school’s code of conduct. Unlike other students, however, the student with a disability will continue to receive educational services as decided by the child’s IEP team. Those services should be ones that will allow the student to continue to progress toward meeting their IEP goals.
Functional Behavioral Assessments
Another consequence of the suspension of a student with a disability for more than 10 consecutive days is the requirement that the school conduct what’s called a “functional behavioral assessment” of the child. The purpose of a functional behavioral assessment is to help the school develop and put in place a “behavioral intervention plan” for the child, to help the student address and change the behavior that prompted the suspension. If the child already has a behavioral intervention plan in place, the school must review it and modify it if possible to address the student’s behavior.
Manifestation Determination
When a school decides to change the placement of a student with a disability on misconduct grounds – moving them from their present school situation to an alternative setting such as a strict disciplinary school or online school – the school must conduct something called a “manifestation determination.” The manifestation determination must involve the child’s parents as well as members of the child’s IEP team and a representative from the school or school district. All “relevant information” in the child’s file must be reviewed. The group must consider observations from the child’s teachers, as well as relevant input from the parents.
The goal of the manifestation determination is to decide whether the student’s misconduct can be attributed to the school’s failure to properly implement the student’s IEP, or whether the misconduct was either caused by or had a “direct and substantial relationship” to the child’s disability.
If it appears the misconduct was related to the school’s failure to implement the student’s IEP, the school is required to take steps immediately to fix the deficiencies. If the misconduct was related to the child’s disability, then the IEP team must conduct a functional behavioral assessment and develop a behavior intervention plan for the child. If there is already one in place, the IEP team is required to review and modify it, if need be, so that it better addresses the child’s behavior. The student must also be allowed to return to their original placement, except under special circumstances.
Appeals
Short-term suspensions (10 days or less) are not appealable, though in many cases, it will be possible to hold an informal conference with the school principal to discuss the suspension. For longer-term suspensions, as well as for decisions resulting from a manifestation determination, parents can file a complaint with the Michigan Department of Education. There are specific requirements that apply to due process complaints: information they must include, timeframe for filing, and where and how they’re to be delivered.
For a due process complaint to be effective, you not only want to make sure you follow all of the requirements, but you also want to make sure it describes the issues clearly and in a way that supports the outcome you want to achieve. The LLF National Law Firm Student Defense Team understands how schools are supposed to handle disciplinary matters for students with disabilities under both Michigan and federal law. Our experienced attorneys will work with you to gather the information needed to support your complaint and will use that to draft a clear and compelling complaint. We will also represent you and your child throughout the process, including at any required or proposed settlement conferences with school officials. The goal of any due process complaint is to achieve a fair result for your child, one that allows them to have the best chance of getting the free and appropriate public education that the law says they deserve.
Other Types of School Discipline
Students with disabilities can also be disciplined in other ways, essentially in the same manner as all other students, according to the school’s code of conduct. Grounds for discipline can range from academic misconduct to minor in-class disturbances, to more serious forms of behavioral misconduct. The LLF National Law Firm Student Defense Team has helped students across the country, including in Michigan, defend themselves in situations where school discipline threatened to affect their student record. We understand that schools have different types of conduct codes that implement slightly different procedures and standards for disciplining students. Some of the typical forms of discipline include:
- Conferences with parents and the student to address the misconduct
- Enforced “time outs” in areas away from the classroom
- Supervised lunch periods in a separate eating area from other students
- Suspension from extracurricular activities, including school clubs and interscholastic sports
- Detention at various times before or after school
- Loss of transportation (school bus services)
Discipline can also include suspension and expulsion, though in the case of students with disabilities, it can be more complicated for a school to implement these types of discipline, as noted above.
The Hearing Procedure for More Serious Forms of Discipline
In any case where the discipline is serious, it’s important to pay close attention to the code of conduct to make sure the school followed its own procedures, and that you, as the parent of a student, have been given the notice and opportunity to be heard that the school says should apply. In particular, you will have a right to a hearing if your child is suspended for more than 10 days, but in some cases, the school’s own code of conduct may provide you with other rights for lesser forms of punishment. The LLF National Law Firm Student Defense Team can help you evaluate what your options are in cases where your child is being disciplined at school, and one of our experienced student defense attorneys can act as your child’s informed advocate in discussions with school officials about the alleged misconduct.
In other cases, your child may be entitled to a formal hearing. These will typically give you an opportunity to hear what information and evidence the school has against your child. You will also be able to cross-examine the school’s witnesses, to present your own evidence and witnesses in your child’s defense, and to be assisted by an attorney at the hearing. The LLF National Law Firm Student Defense Team has helped students across the country defend themselves in formal disciplinary hearings, and our experienced attorneys are ready to help you and your child do so in Michigan.
Some Problems With School Discipline
School codes of conduct exist in every school in Michigan. Teachers and administrators are well aware of what the requirements are for various levels of student discipline. Unfortunately, that doesn’t mean they always follow their own school’s policies and procedures, or apply those policies and procedures in a fair or competent way. When the target of school discipline is a student with a disability, the consequences of the school’s failure to follow its own rules can be particularly severe. Typical types of problems that the LLF National Law Firm Student Defense Team has encountered include:
- Minimal or poor investigation of misconduct claims. Busy, untrained school administrators don’t always conduct a full or fair investigation of misconduct claims made against a student. Sometimes, they’ll “play favorites,” believing one student over another simply on the basis of personality. Other times, they won’t dig deep enough to learn the whole story – for example, how a student involved in a fight was a victim trying to defend themselves.
- Discipline without notification. Codes of conduct typically describe when parents are to be notified that their child has been disciplined. Schools don’t always do so, which can lead to further disciplinary problems and unwelcome surprises when a student is more seriously disciplined for repeated misconduct that parents weren’t aware of.
- Procedures not being followed. Codes of conduct typically describe a number of different procedures that the school is to follow depending on the seriousness of the misconduct allegations. And frequently, school officials fail to follow those procedures when imposing discipline on a student.
- Uneven discipline. Teachers and school administrators still play favorites, and that can lead to an uneven and unfair application of discipline from one student to another.
How an Experienced Student Defense Attorney Can Help
An experienced student defense attorney from the LLF National Law Firm Student Defense Team will speak with you and your child to learn as much as possible about the situation leading to the misconduct allegation they are facing at school. In some cases, we will conduct our own investigation of the incident to try to learn “the rest of the story” and gather evidence and witnesses that will be useful in defending against the charges. We will also discuss the situation with school officials and use our understanding of the facts and the law applicable to the situation to attempt to resolve it in as favorable a manner as possible. Where the misconduct allegations are serious enough, we will make sure the school follows the appropriate procedures – particularly those relating to the discipline of a student with a disability.
Where necessary, we can file a lawsuit to force the school to follow its own policies as well as Michigan and federal law when it comes to disciplining your child. In addition, we have the experience to handle any appeal of a hearing or manifestation determination. Our goal is to protect your child’s rights and help them have the best chance of receiving the education they’re entitled to under the law.
The LLF National Law Firm Student Defense Team Can Protect Your Child’s Rights
The LLF National Law Firm Student Defense Team is ready to help you and your child defend their rights in any Michigan school disciplinary proceeding. We’ve helped students across the country who find themselves in similar situations, and we understand the rules and policies that apply in Michigan schools when it comes to student discipline. When the situation involves a student with a disability, we have experience making sure the school follows the Michigan and federal laws that are designed to ensure that students receive a free and appropriate public education. In any case, we will aggressively fight for your child’s rights in any situation where their school is trying to discipline them.
Call the LLF National Law Firm Student Defense Team today at 888.535.3686 or use our contact form to schedule a confidential consultation to learn more about how we are ready to help protect your child’s rights.