With the requirements of fair and equitable treatment of all students and within the guidelines of the federal judiciary, the following shall constitute the mini- mum due process procedures to be followed in the detention, suspension, and expulsion of students.
- The student shall be apprised of the nature and facts of the alleged misconduct.
- The student shall be given an opportunity to explain the circumstances of the alleged misconduct and to present witnesses on his/her behalf.
- The student shall be informed of the conditions of the disciplinary action.
- The parents or guardian of a detained and suspended student or the student, if he/she is eighteen years or older, may appeal the decision as provided by School Board policy.
Discipline of Children with Disabilities. Recent legislation adds substantial provisions that address the discipline of children with disabilities. Provisions allow school personnel to order a change in the placement of a child with a disability to an appropriate interim alternative education setting (IAES), another setting, or suspension, for not more than 10 school days.
Weapons and Drugs. A disabled child that carries a weapon to school or to a school function, or who possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function can be placed in an IAES for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 days.
Behavior Intervention Plan. The legislation requires that either before or not later than 10 days after taking the disciplinary action, the Local Education Agency (LEA) convene an Individualized Educational Program (IEP) meeting to develop an assessment plan to address the problem behavior (If the LEA did not conduct a functional behavior assessment and implement a behavior intervention plan for the child before the problem behavior), or if the child already has a behavior intervention plan, the IEP team will review the plan and modify it, as necessary, to address the behavior.
Manifestation Determination Review (Causal Hearing). If a disciplinary action is contemplated as a result of drugs, alcohol, or injury to self or others, or if a disciplinary action involving a change of placement for more than 10 days is contemplated for a child with a disability who had engaged in other behavior that violated any rule or code of conduct: (1) not later than the date on which the decision to take action is made, parents must be notified of the decision and of all procedural safeguards; and (2) immediately, if possible, but in no case later than 10 school days after the date on which the decision to take that action is made, a review must be conducted of the relationship between the child’s disability and the behavior subject to the disciplinary action. The review is to be conducted by the IEP team and other qualified personnel.
Requirements for Finding that Behavior is not a Manifestation of the Disability. In order to find that the behavior was not a manifestation of the disability, the team must determine: (1) that the child’s IEP and placement were appropriate and that special education services, supplementary aids and services and behavior intervention strategies were provided consistently with the IEP and placement; (2) the child’s disability did not impair the ability of the child to understand the impact and consequences of the behavior; and (3) the child’s disability did not impair the ability of the child to control the behavior.
Implications of Manifestation Review. If it is determined that the behavior of the child with a disability was not a manifestation of the child’s disability, the relevant disciplinary procedure applicable to children without disabilities may be applied to the child in the same manner in which that would be applied to children without disabilities, except that they will continue to receive a free appropriate public education.