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Introduction

  • Special Education

    “Special education” in the United States is the range of educational programs for children with mental, physical, emotional, and behavioral disabilities. Special education services do not focus on a single educational program. Schools provide special education services to students depending on their specific educational needs. Often, disabled children have the right to receive additional educational benefits.

    There are 3 major federal laws that protect children with disabilities:

    1. The Individuals with Disabilities Education Act (IDEA)
    2. The Americans with Disabilities Act (ADA)
    3. Section 504 of the Rehabilitation Act of 1973 (“Section 504”)

    IDEA is the most important of these laws. States have written laws that confirm and support IDEA. IDEA defines the rights of disabled students and outlines the educational services that they have a right to. Federal and state laws provide both: 1) services and educational benefits that disabled students have a right to, and 2) safeguards, or protections, to make sure that disabled students and parents receive these services. 

  • Wrong Uses of Special Education Programs

    Even with these legal protections, many special education programs still do not provide the necessary educational opportunities for disabled children or they are not used correctly. Sometimes special education programs assign the wrong students to their services:

    • Special education programs can be used to move so-called “problem children” out of the regular classroom into a separate educational system as a way to discipline them. In special education programs, these wrongly identified students are not given the proper resources to meet their educational goals.
    • 65% of parents of disabled students polled in a 2002 Public Agency survey felt that children with behavioral problems, rather than disabilities, were being misdirected into special education.

    An ongoing trend in special education is the systematic overrepresentation (consistent over-assignment) of minority students:

    • In some schools, this trend is so severe that it appears minority students are being “tracked” (or automatically placed) into special education programs based on their race.
    • Minority students, particularly African-American and Native American students, are far more likely to be diagnosed as having a learning disability than white students.
    • In most states, African-American children are 1.5 to 4 times more likely to be identified as mentally retarded or emotionally disturbed than white children.
    • Scholars say that this widespread misdiagnosis of minority students is because of both intentional and unintentional racial bias in the referral, testing, and placement of minority students in special education.

    This section is designed to help parents, guardians, and other advocates to understand special education processes and procedures. It is also designed to help parents and guardians to understand their rights under the law. The information in this section is meant to:

    • help parents and advocates protect children from being mistakenly put into special education
    • ensure that no decision about special education is made for a child without the full understanding, participation, and consent of the child’s parents.
  • What is the Individuals with Disabilities Education Act (IDEA)? What does the IDEA say about special education?

    The Individuals with Disability Education Act (IDEA) has 2 parts:

    1. Requires public schools to provide a free appropriate public education (“FAPE”)[v1] . Schools must set high expectations for disabled children and provide them with the academic and physical resources they need to meet these expectations.   
    2. Requires public schools to provide this education in the least restrictive environment (“LRE”) [v2] possible. School must provide disabled students with access to the same curriculum as non-disabled students. This curriculum should be taught, whenever possible, in the regular classroom with non-disabled students. 

    IDEA contains procedures and rules that schools must follow when:

    • identifying and evaluating students with disabilities
    • defining what makes up a free appropriate learning environment (FAPE)
    • designing special education programs and related services
    • making sure that students and parents know about their procedures and rights (due process) while deciding what makes up a FAPE

    Scholars say that this widespread misdiagnosis of minority students is because of both intentional and unintentional racial bias in the referral, testing, and placement of minority students in special education.

    This section is designed to help parents, guardians, and other advocates to understand special education processes and procedures. It is also designed to help parents and guardians to understand their rights under the law. The information in this section is meant to:

    • help parents and advocates protect children from being mistakenly put into special education
    • ensure that no decision about special education is made for a child without the full understanding, participation, and consent of the child’s parents.

The Initial Referral and Evaluation Process

  • When does a child need or not need special education services?

    A key issue in the IDEA and special education process is the first identification of a child with a disability.  Parents must be aware of their child’s needs and willing to speak out and work for their child’s best interests during all phases of the special education process. When meeting with school officials and when considering a child’s education status, the parent must always remember 1 thing: no matter how well-intentioned or professional the school official, the child is not their 1st or only priority. That means the parent must be the child’s sole advocate and must be willing to passionately and persistently represent their child. This could mean requesting an evaluation process or speaking out against a change in a child’s identification status and eligibility for special education services.   

    If parents suspect that their child may have a disability, the parent may make a written request for an evaluation to determine whether the child is eligible for special education services. Parents can submit this written request to the principal, the special education department of their school district, or to the state department of education’s special education office.

  • Roles and Responsibilities of the Parent During the IEP Process

    Parents play a central role:

    1. Must be aware and assertive on behalf
    2. Act as the child’s sole advocate (the child is the parent’s first priority).
    3. Can request an evaluation or a re-evaluation of the child.
    4. Can object to changes in the child’s eligibility status for services or changes in the child’s identification.
    5. Must remember that no matter how well-intentioned school officials are, your child is not their sole priority.
  • Procedures Schools Must Follow During School-Initiated Referrals

    School-Initiated Referrals must follow strict requirements for documentation and parent notification. Schools MUST:

    • Provide specific documentation of the appropriate efforts that have been made to educate the student in the regular education program. 
    • Explain in detail in the written notice: what action is proposed, how the school decided to make the referral, what documentation the school used to make its decision, what other options were considered, and why the school rejected other options.
    • Provide the student’s parents with “Prior Written Notice” of the school’s intent to refer the student for special education.
    • Supply the parents with a Procedural Safeguards Notice that explains 1) parental rights and 2) those of the child along with 3) the procedures that will be used to ensure that those rights are protected throughout the special education process.

    NOTE: Parent consent is voluntary and the parent can take back his or her consent at any time. If the parents refuse to consent to a special education eligibility evaluation, the school may still continue to seek an evaluation either through mediation or by beginning a due process hearing, discussed below.

    Most importantly, after providing the parents with written notice and materials, the school must get written consent from the parent for the evaluation of a child for special education services.   

  • Who conducts the initial evaluation?

    The initial evaluation is made by a group called a “MET” (multidisciplinary evaluation team) made up of people who know your child in a school, personal, and community setting:

    • Parents/Legal Guardians: Know the child best and should not hesitate to challenge the assumptions and opinions of the other members of the MET
    • School Official in Charge of Special Education
    • The Child (if appropriate): Parents decide whether the child’s presence will help or harm the decision about the child.
    • Your Child’s Regular Teachers
    • Other individuals the parent believes have special knowledge of the child: friend/relative, community leader, religious leader
    • A special education teacher
  • What role do the parents play in this process?

    Important Role of Parents: The parent(s) play a central role.  Parents should not be intimidated by the many “professionals” who are part of the special education evaluation.  The IDEA (Individuals with Disabilities Education Act) recognizes that parents, not “experts,” know their children best. The IDEA requires parental consent for an evaluation and encourages parent participation in the process. Parents’ own observations of their child in the home and outside of school are extremely important to any disability evaluation. Parents should not be afraid to question or disagree with the assumptions and opinions of any other member of the MET (Multi-disciplinary Evaluation Team).  

    Including Community Members, Family, and Friends: Parents should consider taking every opportunity possible to include their child and other people with special knowledge about the child in any evaluation.  The opinion of other adults familiar with the child, such as relatives, teachers and community leaders may be very helpful to provide additional information in the evaluation process. Including these other adults in the child’s life may also help to lessen the intimidation that a group of administrators and professionals can create.  Parents should think carefully about whether having their child attend the evaluation would help or harm any determination of their child’s need for special education services.

  • What are the criteria for a special education eligibility determination?

    In order to be eligible for special education and related services, a ‘child with a disability’ must be between 3 and 21 years old and have at least 1 disability.  The disabilities recognized under IDEA are:

    • Mental Retardation
    • Hearing Impairments & Deafness
    • Speech or Language Impairments
    • Visual Impairments & Blindness
    • Emotional Disturbances
    • Orthopedic Impairments
    • Autism
    • Traumatic Brain Injury
    • Other Health Impairments (Specifically includes asthma, ADD/ADHD, diabetes, epilepsy, heart conditions, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette Syndrome).
    •  Specific Learning Disabilities
    • Children aged 3-9 experiencing measurable developmental delays

    For definitions and more specific information on each of these, see [http://www.ericdigests.org/1999-4/ideas.htm].

  • Are special educational determinations based on science or medicine? Does race play any role in disability?

    A child’s race has no role in his or her disability. The data suggests that many administrators inappropriately rely on racial bias in making determinations.  A study by the U.S. Department of Education found that African American students in at least 13 states are at least 3 times more likely than white students to be identified as having mild mental retardation.

    For example, disproportionate numbers of minorities, particularly African American children, are repeatedly determined to be disabled under these broad and subjective categories of disabilities. This suggests that minorities are being misdiagnosed across the county at rates much higher than white students are misdiagnosed. Throughout the special education process, teachers and administrators might knowingly or unknowingly consider factors such as: beliefs of African American and Latino inferiority, low expectations for minorities, cultural insensitivity, fear and misunderstanding of African American males, and overcrowded schools.

    Parents should be particularly cautious when their child is identified as having a more subjective disability (a disability whose diagnosis often depends on the examiner’s personal opinion) such as emotional disabilities, mild or moderate mental retardation or developmental delays because these identifications are most likely to be influenced by racial bias. Parents may challenge these identifications through the processes below.

    Of course, many minority students, like students of other races, do have disabilities and the information  about misdiagnosis is not to suggest that their parents should resist their child receiving special education services when the child needs them.

  • How is the special education eligibility determination made?
    • Current evaluations, information provided by the parents, educational history, and all other relevant documentation
    • Further testing and evaluation materials

    Decisions are based on:

    1. The child’s disability
    2. The child’s present level of performance & educational needs
    3. Whether the child needs special education

    MET MUST provide:

    1. A report to parents explaining its finding
    2. Prior Written Notice explaining in detail what action is proposed, how the decision was made, what documentation was relied on in supporting the decision, what other options were considered and why other options were rejected.
  • When a child is determined eligible for special education, is it permanent?

    NO. Under IDEA, a child with a disability must be re-evaluated at least once every 3 years. The requirements for consent and notice to conduct an initial evaluation also apply each year that the student is reevaluated. Requirements to provide supporting documents and consent forms to parents before conducting the initial evaluation also apply to the re-evaluation process.

    The parent or teacher can also request a re-evaluation at ANY TIME from their local or state department of education (for example, if the parent or teacher believes that the child no longer requires special education or that the child’s needs have changed.)            

  • Can I protest or appeal a special education eligibility determination?

    YES. There are 4 main actions that you can take if you feel that the child was improperly tested or referred for special education.  They are:

    INDEPENDENT EDUCATIONAL EVALUATION

    • WHAT IS IT? A separate evaluation of a child’s eligibility for special education services carried out by qualified persons who are not employed by the school district.
    • WHO PAYS FOR IT? The IEE is paid for at public expense.
    • HOW TO REQUEST IT? Contact the special education division of the state or local department of education for more information about how to request and arrange for an IEE.
    • OTHER INFORMATION: If an IEE of the child is requested by the parent, the public agency must, without reasonable delay, either start a due process hearing or ensure that the evaluation is provided at public expense. 

     

    MEDIATION

    • WHAT IS IT? A non-binding (does not result in a legal agreement), voluntary meeting in which parents and school district representatives may meet with a neutral third party who will help in resolving a dispute about a child’s special education evaluation, placement, or program.
    • WHO PAYS FOR IT? Paid for by the state. 
    • HOW TO REQUEST IT? Contact the special education division of the state or local department of education.
    • OTHER INFORMATION: State complaints generally must be filed within 1 year of the accused violation.

     

     

    FILE A STATE COMPLAINT

    • WHAT IS IT? State-filed complaint made by the parent if s/he believes that the school district or the State Department of Education has failed or is failing to follow any federal or state education laws or regulations.
    • WHO PAYS FOR IT? Generally no cost.
    • HOW TO REQUEST IT? Send a written and signed complaint stating the facts relating to any alleged violation to the Dispute Resolution Coordinator at the special education division of the state or local department of education.

     

     

    DUE PROCESS HEARING

    • WHAT IS IT? Parents can request a hearing where both they and the school will present their case and a third party will issue a decision.
    • WHO PAYS FOR IT? Generally no cost (possibly attorney’s fees which may be reimbursed).
    • HOW TO REQUEST IT? A parent must make a written request to the school, typically with the chief administrator of their child’s school.
    • OTHER INFORMATION: A decision is typically reached within 45 days of your request.

Development and Implementation of the IEP

  • How is an IEP Developed?

    Once the evaluation team determines that a student needs special education services, the school schedules an Individualized Educational Program (“IEP”) meeting to design a program of services for the student. The IEP Team includes the same group of people who comprised the evaluation team that decided the student had a disability.  

  • What information will be in the IEP?
    • Student’s present level of educational performance.
    • Measurable annual goals and short-term objectives for evaluating progress toward those goals.
    • Specific special education and related services provided to enable the student to meet the established performance goals.
  • What is the parents’ role in the development of an IEP?

    The IEP, like the initial eligibility decision, should be a group process, and parents are an essential part of the group.  Parents should attend and feel free to request that the meeting take place at a time that is convenient for them.  The law does not define how decisions are made, so parents must make clear which services they want for their child and why their child needs it.  The parents should not hesitate to question about the school’s proposals for services for their students like: 

    • Exactly what the school will provide?  
    • Who at the school will provide it?
    • Where will it be provided?  
    • Why it is being provided?  
  • Things Parents Should Keep in Mind While Developing the IEP
    1. The IEP should be a group process, and parents are an essential part of the group.
    2. Parents should be cautious when considering any suggestion that their children receive any part of their education outside of the regular classroom or apart from their non-disabled peers.
    3. Minority students in particular are more likely than white special education students to be placed in a separate education facility.
    4. Removing the student from the regular classroom can have a stigmatizing effect.
    5. Parents do NOT have to agree to each particular goal until the end of the IEP development process.
  • What is the parents

    Parental participation in developing the IEP is required. Parental consent is also required for the school to carry out the IEP.  After the IEP is developed, but before it is implemented, the school must:

    • Provide the parents with Prior Written Notice that includes a copy of the IEP and explains in detail what action is proposed, how the IEP was developed, what documentation was relied on in reaching the decision, what other options were considered, and why other options were rejected. 
    • Secure the parents’ written consent to their child’s initial special education placement.  This consent must be voluntary, and may be taken back by the parents at any time.

    Once the IEP has been implemented, parents must receive progress reports at least as often as the reports provided to non-special education students, detailing:

    1. Their child’s progress in the general curriculum
    2. Their child’s progress meeting the goals established in the IEP

    Regular review of the IEP must:

    1. Take place every year.
    2. Be accompanied by the same notifications and consent as the initial approval and implementation of the IEP.

     

Challenging Special Education Decisions through Impartial Due Process Hearings

  • How can parents challenge special education decisions?

    An impartial due process hearing is the most important method a parent may use to initially challenge any decision made under the IDEA statute.  The due process hearing is an opportunity for parents and school personnel to meet before an impartial individual to present their arguments and positions concerning the identification, evaluation, placement, or provision of a FAPE for a disabled student.  The following materials provide a brief summary of how parents may begin a due process hearing, what to expect at a due process hearing, and how to appeal an unsatisfactory hearing outcome, if necessary.

  • How do I begin a due process hearing?

     In order to initiate a due process hearing about a child’s identification, evaluation, placement, or other part of the child’s FAPE (Free and Appropriate Education), a parent must make a written request to the school, typically with the chief administrator of their child’s school.  Parents should include the following information in their written request:         

    1. Child’s name and address
    2. Name of school or program the child is attending
    3. Description of the disagreement and facts relating to the problem
    4. Parents’ proposed resolution of the problem, to the extent possible

    An Impartial Due Process Hearing Officer (the “Hearing Officer”) who the state pays for will be appointed to hear the case.  Once this process has begun, parents may wish to contact the special education division of the state or local department of education for further information on how to obtain free or low-cost legal services for advice and help in preparing for the due process hearing.

  • What is the timetable and schedule for a due process hearing?

    Step 1: Hearing Officer contacts the parties in writing to confirm the appointment and schedule a pre-hearing conference.

    Step 2: At the pre-hearing conference, the Hearing Officer will:

    • specify the issues to be decided at the hearing
    • describe the process of the hearing
    • set the time and date for the hearing.

    Step 3: The due process hearing must be conducted and a copy of the decision delivered to both parties no later than 45 calendar days from the date the written request for the hearing.

    Step 4: Hearing Officer may grant an extension of time following the request of either party.

  • What occurs at the due process hearing?

    The due process hearing will follow the procedures and schedule set by the Hearing Officer at the pre-hearing conference.  Generally, parents should expect the following events to happen at the hearing:

    1. Introductory remarks from the Hearing Officer reviewing the procedures to be followed and the rights of the parents, student, and school.
    2. Presentation of evidence and testimony by the school district or agency and its witnesses.
    3. Presentation of evidence and testimony by the parents or parents’ representative and their witnesses.
    4. Brief summary statement (if any) by the school district or agency.
    5. Brief summary statement (if any) by the parents.
    6. Concluding remarks from the Hearing Officer reviewing the due process and procedural safeguards that were followed during the hearing, providing an overview of what will happen next, and describing the procedures to be followed for any appeal following the hearing.
  • What rights do parents have at the due process hearing?

    Parents have various specific rights at the due process hearing, including:

    • the right to an lawyer and help from individuals with special training or knowledge in special education.
    • the right to examine/cross-examine witnesses.
    • the right to require production of witnesses by subpoena (a legal summons).
    • the right to obtain and examine educational records of the child.
    • the right to a written or electronic record of the hearing .
    • the right to a written decision by the hearing officer.     
  • Can I protest or appeal the decision made by the Hearing Officer?

    YES.

    • Who can appeal? The parents, the school district, or agency.
    • When can I appeal? Typically around 30 or 35 days after receiving the Hearing Officer’s decision.
    • Who can I appeal to? In most states, appeals are first made to an Administrative Review Officer. Then, to the special education division of the state or local department of education.
    • How/In what form can I appeal? Written request to the special education division of the state or local department of education. If necessary, the Administrative Law Judge appointed by the Administrative Review Officer will take additional evidence to come up with an independent decision.
    • When do I receive the decision? Generally, the Administrative Review Officer must provide a written or electronic copy of the decision to you within 30 days of receiving the request for the appeal. 
  • Can I protest or appeal the administrative law judge’s decision?

    YES.

    • Who can appeal? Parents, in the form of a lawsuit.
    • Who can I appeal to? Consult with an attorney for advice and assistance about how to file the lawsuit.
    • Additional assistance in finding legal help and advice can been found under the public information section of the American Bar Association website, www.abanet.org or your local state bar association’s website.
    • How/In what form can I appeal? A lawsuit to federal district court or state court.
    • When will I receive a decision? Consult your legal counsel for a time period estimate. 
  • What repayments are available to parents who win their cases?

    Parents may be able to seek some limited repayment or reimbursement (known as remedies) if they succeed in any of the administrative or legal proceedings described in this section.  Some available remedies that are allowed include:

    • Tuition reimbursement for private services like private school tuition.
    • Compensatory Education (remedy for children who were eligible for special education and related services but who were denied those services).
    • Attorney’s fees (available to parents who are the winning party in either an administrative proceeding or judicial proceeding).

Additional Legal Protections for Disabled Students

  • Section 504 of the Rehabilitation Act Forbids Discrimination against Children with Disabilities

    Another law that protects students with disabilities is Section 504 of the Rehabilitation Act of 1973, often referred to as “Section 504.”  The IDEA and Section 504 overlap in several respects, but provide students with distinct remedies and rights.  The primary difference is that IDEA provides “entitlements,” or the right to services and resources for children who are eligible for special education and related services as discussed above while Section 504 is an anti-discrimination statute that “protects” against discrimination toward children with disabilities.  “Discrimination” based on disability under Section 504 occurs when an individual is excluded from participation in or is denied the benefits of any school program or activity.  Section 504 applies to all preschool, elementary, and secondary education programs that receive federal financial assistance. 

    Section 504 defines “disability” more broadly than the IDEA.  Under Section 504, disability includes all individuals who have a “physical or mental impairment which substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment.”  The disability does not have to fit in the pre-defined list in the IDEA statute.  Moreover, it is enough under Section 504 that the school perceives the student as having a disability, even if the student does not in fact have a disability.  This can be particularly important as you might think of your child as non-disabled, but the school perceives your child different and treats them differently on this perception.

  • How are the IDEA and Section 504 are similar and different?

    IDEA (Individuals with Disabilities Education Act)    

    • defines “disability” more
    • narrowly
    • only applies to students who are
    • determined to have disabilities             
    • provides entitlements, or services
    •  to disabled students                                           

    Section 504 of the Rehabilitation Act of 1973

    • defines “disability” more broadly, including:  all individuals who have a “physical        or mental impairment which substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment.”
    • also applies to students who the school perceives to have disabilities, but do not in fact have them
    • provides protections against discrimination

    Both IDE and Section 504

    • Provide legal protection for disabled students under federal law. 
  • Has my child suffered discrimination due to their disability or been denied a Free Appropriate Education under Section 504?

    YES – but only if your student is “otherwise qualified” for the benefits or services they have been denied:

    1. Student must be of an age during which non-disabled students are provided with these services
    2. Student must be of an age which it is mandatory under state law to provide special education to eligible children
    3. The student must be someone who is provided with special education under IDEA.

    The idea of Section 504 is that, while disabled and nondisabled students may not receive the same resources or achieve the same outcomes, the school must be taking the steps necessary to see that disabled students receive roughly equivalent opportunities.

  • What are the requirement for equal access to educational programs and activities under Section 504?
    • Modifications & Accommodations: School systems must provide modifications to curriculum and testing or other accommodations for students with disabilities. 
    • The special education services provided under the IDEA must be as responsive to disabled students’ needs as regular education services are to non-disabled students’ needs.
    • Use of Separate Educational Facilities: Section 504 (like IDEA) also requires that schools place children with disabilities in the regular educational environment unless the school can demonstrate that the education of the child in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily. 
    • Any separate facilities for special education students must be comparable (as similar as possible) to those provided to non-disabled students. 
  • Procedural Safeguards and Due Process under Section 504
    • Notice Before Special Education Identification: Schools must provide notice before taking any action with respect to special education identification, evaluation or placement.
    • Schools must provide a full and individualized evaluation for each child being considered for special education and related services and must provide the parent with an opportunity to examine relevant records maintained by the school regarding the child.
    • If requested by the school or the parent, the school system must provide for an impartial hearing as well as a review process where the parents and child may be represented by counsel.
  • Americans with Disabilities Act

    Finally, the Americans with Disabilities Act (“ADA”) also offers protection against disability discrimination, but its protections are nearly identical to Section 504 of the Rehabilitation Act.  The only significant difference is: Section 504 only covers schools that receive federal funding (which is basically all public schools), whereas the ADA covers private schools as well.  Therefore, if your child is in private school, he or she is still protected against disability discrimination, but your child is protected under the ADA instead of the IDEA. Private school students are not protected under IDEA. 

Disciplinary Procedures for Special Education Students

  • Are there procedures that govern discipline of special education students?

    Students with disabilities are repeatedly suspended and disciplined more often than non-disabled students.  Disabled students, who already often suffer discrimination from their peers and school officials due to their disabilities, are at risk of being even further discriminated against in school when they are disciplined and suspended.  If the behavioral problem is being caused by a student’s disability, the student should not be punished for something that is out of his/her control.  Parents should be aware that in certain circumstances, the IDEA statute provides additional protections about the discipline procedure. The IDEA particularly protects students when the behavior causing the school to take disciplinary action is related to the student’s disability.  

  • Are students with disabilities entitled to any protections for suspensions lasting more than 10 days?

    Yes.  Suspensions of more than 10 days require schools to provide students with instruction sufficient to allow the student to progress toward his or her IEP goals and progress in the general curriculum for the length of the suspension.  If a school suspends a disabled student for a time period of more than 10 consecutive school days or if a school suspends a disabled student for a time period of more than 10 total days in a single school year, that movement of the student is considered a “change in placement” under the IDEA regulations.  This “change in placement” then triggers 2 special procedural protections: 

    1. Functional Behavioral Assessment
    2. Manifestation Determination Review
  • What is a Functional Behavioral Assessment?
    • What is it?  A meeting that occurs along with the Manifestation Determination Review, to determine how to modify the students’ IEP to account for the behavior that requires disciplinary action.
    • Who participates? Parents (the school must provide notice to the parents about this meeting), the IEP Team.
    • When does it occur? When a student with a disability is suspended for more than 10 days (either at 1 time or over the course of the year).  Must occur within 10 days of any “change in placement.”
    • What happens at the meeting? IEP Team will either develop an IEP for the student or review and modify the student’s existing IEP to address the behavior that prompted the school to initiate disciplinary measures.
    • What does it decide? Determines how to develop or modify the student’s IEP so as to address the behavior that resulted in the imposition of disciplinary measures.
  • What is a Manifestation Determination Review?
    • What is it? A meeting to determine whether the behavior that prompted the disciplinary problem is related to the student’s disability.
    • Who participates? The IEP Team that participated in determining the students’ eligibility and evaluation.
    • The parent must receive notice of the Review and an invitation to it, along with all of the other prior written notices and procedural safeguards that accompany IEPs.
    • When does it occur? Must be carried out within 10 days of any “change of placement”; usually carried out at the same time as the Functional Behavioral Assessment.
    • What happens at the meeting? The IEP Team will review all relevant information and will decide whether or not the student’s behavior was related to his/her disability.
    • What does it decide? If it decides that the student’s behavior was not related to the student’s disability, then the student will receive the same disciplinary measures that other non-disabled students receive. If it determines that the student’s behavior was related to the student’s disability, the student must be readmitted to school immediately and his/her IEP adjusted according to the meeting’s decisions.

    If the IEP Team decides that the student’s behavior is not related to his or her disability, the student will be subject to the same disciplinary measures applied to non-disabled students.  Parents should be aware, however, that this decision may only be reached if the IEP Team makes the following decisions:

    1. The student’s previous IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided in a way that appropriately followed  the student’s IEP and placement;
    2. The student’s disability did not get in the way of  the student’s ability to understand the impact and consequences of his or her behavior; and
    3. The student’s disability did not get in the way of the student’s ability to control his or her behavior. 

    If parents disagree with the conclusions made at the Manifestation Determination Review, they may request a due process hearing and administrative and legal appeals that may follow.

  • Can the school take disciplinary action against a disabled student beyond just suspending them, such as removing the student entirely from school or placing the student in an alternative setting?

    Yes, but only under a small list of circumstances and for a limited period of time. The suspensions described above should usually result in no change to a disabled child’s usual educational placement.  However, in certain instances, the school may be justified in placing the student in a temporary alternative educational setting until the decision of hearings. An interim (temporary) placement of up to 45 days can be made under the following circumstances:

    • The student carries or possesses a weapon to or at school, on school premises, or at a school function.
    •  The student knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function. 
    • A hearing officer determines that substantial evidence shows that the student’s current placement is very likely to result in injury to the child or others.  When making such a decision, the hearing officer must also consider:
      • the appropriateness of the student’s current placement
      • whether the school has made reasonable efforts to minimize the risk of harm in the student’s current placement
      • whether the proposed alternative setting will enable the student to appropriately progress toward his or her IEP goals
      • whether the proposed alternative setting will enable progress in the general curriculum

    This interim (temporary) alternative placement is also considered to be a “change in placement.”  Because this is a change of placement, the school must carry out a Functional Behavioral Assessment and a Manifestation Determination Review before any interim placement can be made. In the meantime, students must remain in their then-current educational placement until they receive the outcome of these proceedings.  If the parents wish to appeal any decision about alternative education placement, the same due process protections discussed above apply in the Manifestation Determination Review.

  • What are the consequences of alternate placements?

    Parents should consider carefully the ramifications of any amount of time their child may spend being educated outside the ordinary classroom with other non-disabled students.  Even when the school rightfully disciplines a student, disciplinary actions should not overshadow the IDEA’s primary goal that special education be accomplished in the mainstream educational environment whenever possible.  Parents should be aware of common biases against both minorities and the disabled that may affect placement and suspension decisions and should not hesitate to take advantage of the procedural protections available to them through due process hearings and subsequent administrative and legal appeals if they believe that the school might be doing something wrong. 

  • Are these disciplinary protections available to students who have not previously been identified as being in need of special education?

    Yes, if the school district has “knowledge” of the student’s potential disability.  The school is considered to have such knowledge if:      

    • The student’s parents have previously expressed a concern in writing that their child may require special education and related services;
    • The student’s behavior or performance demonstrates the need for such services;
    • The student’s parents have previously requested an evaluation to determine their child’s eligibility for special education and related services;
    • The student’s teacher has previously expressed concern about the behavior or performance of the student to the director of special education or other school personnel concerning the child’s need for special education and related services.

    It is important that disabled students who have not been previously identified should not be punished unnecessarily for behavior which may very well be a manifestation of their disability. The IDEA statute places importance on the school’s responsibility to identify and assist disabled students as soon as their disability becomes known.  As a result, parents should not hesitate to consider the possibility that disciplinary issues concerning their child may actually be an indication of a disability in need of diagnosis and educational assistance.