Defending Expulsions:  The General and Special Education Setting

There is hardly any situation more stressful for parents than when their child is facing an expulsion. Therefore, I have included a discussion about school discipline to address both the special needs student and the non-disabled student.

Discipline in the Special Education Setting.

Special education has a unique history with respect to disciplinary proceedings. Historically, schools were twice as likely to suspend a special needs student because of behavioral problems, and often used expulsion as a means to exclude disabled children from school. Congress recognized the problem and sought to strip the schools of unilateral authority to deny disabled students an education.

Congress created the Manifestation Determination Hearing, a meeting that must occur before a special education student can be expelled.

The Manifestation Determination Meeting.

The purpose of a manifestation determination meeting is to consider whether the child’s behavior was a manifestation of his disability. If the behavior was a manifestation of the child's disability, then the school cannot expel the child under general education discipline rules. However, if the behavior was not a manifestation of the child's disability, the district can expel the disabled student, and continue the expulsion process.

The manifestation determination meeting is like an IEP meeting. The parent and relevant members of the IEP team conduct a review of the child’s records to determine if the conduct was (1) caused by, or had a direct and substantial relation to, the child’s disability, or (2) was the direct result of the school district’s failure to implement the IEP. If either of these questions is answered affirmatively, then the behavior is deemed to be a manifestation of the child’s disability, and the school district cannot expel the child.

If the conduct has a causal relationship, the IEP team must consider conducting a Functional Behavior Assessment or review and modify the Behavior Intervention Plan (“BIP”). If the conduct was a result of a failure to implement the child’s IEP, the district “must take immediate steps to remedy [the] deficiencies.” A favorable Manifestation Determination means the child must be returned to the current placement unless the behavior involved special circumstances (such as weapons, drugs, or serious bodily injury) or unless the parent and the district agree to change the child’s placement.

In contrast, if the answer is “no” to both questions, then the child is subject to general education discipline proceedings, and can be expelled at an expulsion hearing. Even if the special education student is expelled, he is entitled to an education that allows him to continue to progress towards his IEP goals and related behavioral needs.

Protections for the Special Needs Child who is not yet eligible.

If a child is not yet eligible for special education, he may still assert these Manifestation Determination protections under certain circumstances. The Manifestation Determination protection applies if, before the act was committed, the parent expressed in writing her concern that her child may need special education services; the parent requested a special education assessment of her child; or a teacher or other school personnel expressed specific concerns about the pattern of behavior of the child.

Preparation for the Manifestation Determination Meeting

In order to fully prepare for the Manifestation Determination Meeting, make sure you have a thorough understanding of your child’s disability. Read through all of your child’s evaluation reports to determine whether your child’s behavior has been a documented concern in the past. You may also consider obtaining a professional independent psychological evaluation to determine whether your child’s has an unrecognized disability that you suspected existed, but was never uncovered by the IEP team. In addition, always record the Manifestation Determination meeting. Under California law, you should give at least 24 hour notice of your intent to record the meeting.

Challenging the Manifestation Determination Hearing

Sometimes, discipline decisions are made by administrators who ignore special education protections and requirements. This can translate into a sloppy Manifestation Determination meeting, where the IEP team “glosses over” your child disability, and how your child's disability may have impacted his behavior.

Consider whether the team conducted a thorough review of your child’s records in relation to his disability. For example, your child might be eligible for an IEP under the disability category of learning disability. But your child might also have ADHD. If the school has clearly documented your child's ADHD, but the team never discussed your child's ADHD in relation to the disciplinary act, you may have a strong argument that the team did not consider all relevant information in making its determination. As another example, if the school failed to provide the counseling services on your child's IEP, you will have an argument that the act was a direct cause of the school’s failure to provide the counseling services called for on the IEP.

When a parent disagrees with the manifestation determination hearing, she should consider contacting an attorney who is familiar with such proceedings. The parent (or attorney) may request an “expedited hearing," or a hearing that is decided quicker than the typical due process matter. During the dispute, the child “stays put” in the current placement or in an interim alternative education setting.

Protecting Against an Unfavorable Manifestation Determination

The best approach to defend against an unfavorable Manifestation Determination meeting is planning ahead. If your child exhibits serious behavior problems, ask the district to provide a Functional Analysis Assessment which is designed to find out the cause(s) of your child's behavior problems. The district may also be required to create a Behavior Intervention Plan ("BIP"), designed to address problem behaviors. If your child can benefit from behavior modifications, they should be included in the IEP. Also, make sure the IEP team creates IEP goals that address your child's behavior problems.

Remember: Discipline is reactive, but planning ahead is proactive! Be creative with your child's IEP. Consider helpful services such as anger management, counseling, or behavioral supports. Finally, if you believe your child’s current placement creates a greater risk of problem behaviors, take steps to change your child's placement. At the very least, inform the school of your concerns and document them in the IEP.

Discipline in the General Education Setting.

In the event that the disciplinary act was not a manifestation of your child's disability, or if you have a non-disabled child facing expulsion, then the California Education Code (“the Rules”) apply. The Rules set out 23 acts that are grounds for expulsion. These acts are somewhat broadly defined, meaning they encompass a variety of circumstances that fall within each description. Rather than laying out these rules one by one, I’ve included links to the specific statutory provision which may be of help if you’re trying to determine if an act falls within the Rules. (click here for link to California Education Code Section 48900, et. seq.)

In conjunction with the 23 specific disciplinary acts, the law sets out three levels of discretion by which the principal or superintendent (“Principal”) must handle an expulsion issue. In the simplest terms, there are times when the principal has full discretion (the least serious offenses), limited discretion (moderately serious offenses), or no discretion (the most serious offenses) to recommend expulsion for a violation of the Rules.

Discretionary Acts

In discipline matters that offer either full or limited discretion, the school district must prove either one of the two following provisions before they can expel a child: (1) other means of correction are not feasible or have repeatedly failed to bring about appropriate conduct or (2) due to the nature of the act, the presence of the student causes a continuing danger to the physical safety of the student or others.

Non-Discretionary Acts

The most serious acts under the code have no discretion and mandate expulsion. These offenses include such acts as the sale of drugs at school, bringing a firearm or explosives to school, brandishing a knife, or sexual assault. In these situations, the school district only needs to show that the act occurred in order to expel the student. They are not required to prove that other means of correction are not feasible or that the student is a danger to himself or others. However, even if the expulsion is mandatory, there are other options to consider. For instance, the governing board can suspend the enforcement of an expulsion for one year. A year may be enough time to consider alternatives or, even, to graduate.

The Expulsion Hearing

When your child is facing expulsion, an expulsion hearing must be held. You have the right to attend this hearing (and bring an attorney if you so desire) to challenge the expulsion. Sometimes, the school will fail to present adequate evidence necessary to prove a discretionary expulsion. In this case, it is important that you argue to the expulsion panel that your child should not be expelled for failure of proof.

If the offense falls into either of the discretionary categories discussed above, and your child has a minimal discipline history, you are in a better position to argue that an expulsion would be inappropriate. For these reasons, the expulsion hearing is very important. In fact, I I’m frequently asked to attend these hearings to ensure the best possible results.