Last Updated on November 29, 2022 by Michelle Ball
By Michelle Ball, Sacramento California Expulsion, Special Education, sports/CIF, College, Education and School Attorney/Lawyer for Students since 1995
Did you know that disabled students can be suspended or expelled from schools? Well, they can. But, when is this legal and when is it against the law? Here are some basics.
Disabled Students Can Be Suspended Ten Days In a Row or Longer, Depending on the Discipline Pattern
Under the law, all students, even special education students, can be suspended or expelled from California elementary, junior and high schools.
But what if a student is Autistic and on an IEP (Individualized Education Program) or has Asthma and is on a 504 Plan (disability accommodation plan for students who don’t require specialized instruction)? How can a school suspend these students? What if the conduct the student is suspended for IS disability-related conduct?
The law says “so what” depending on how long the student is excluded during the school year and the pattern of those exclusions.
Schools can remove a special education or 504 student from school for up to ten days in a row during a school year, with no disability laws broken. This means a student who has a behavior disability who throws a chair, can be suspended for the maximum amount of five days for the offense and even kept out a little longer pending expulsion. Or, the student can be suspended additional days for different offense(s) during that school year so long as there is no “change of placement” from those exclusions.
What Happens on the Eleventh Day of Exclusion of a Disabled Student?
Once a student is pushed out of school eleven days in a row or more, things change. Before the student may be suspended or removed from school an eleventh day, an IEP or 504 meeting must be held, to determine whether the conduct was a manifestation of the student’s disability. This is a special IEP meeting with special considerations.
Additionally, after a special education or 504 student has been out 10 days in one school year, if additional exclusions amount to a “change of placement” (due to proximity, similarity, or other factors), an IEP or 504 manifestation meeting should occur for every exclusion beyond ten days that school year.
IEP Versus 504 and the Eleventh Day
IEP and 504 students differ in one respect. If an IEP student is found to be properly excluded on the eleventh day (at the manifestation IEP meeting), that IEP student still is entitled to an education, albeit perhaps in a new environment.
The 504 student, who is on their eleventh day and with a manifestation 504 meeting where exclusion is found appropriate, will suffer the same consequences that a non-disabled student would. So, if a nondisabled student would be put in a continuation school on an involuntary transfer for the school offense, the 504 student can be also.
Isn’t Keeping Special Ed Students Out Up To Ten Days Discrimination?
No. The exclusion up to ten days is allowed under federal law. Multiple exclusions up to ten days are also allowed, unless they amount to a “change of placement.”
What About a Behavior Support Plan?
It is possible that a student who is being suspended for conduct may have a Behavior Support Plan (BSP) which is in place and is meant to address the conduct that got them suspended from school.
The existence of a BSP, even if badly ignored, does not negate the fact that schools can remove students up to 10 days with no special education meeting required.
Exception When Suspension Pending Expulsion
Even though a student up for expulsion may have just received the first 5 day suspension (California school suspensions can be a maximum of 5 days) that school year, a manifestation IEP or 504 meeting is usually required for a school to refer a student for an expulsion hearing.
This is because usually schools keep students at home while awaiting an expulsion hearing and this student exclusion will break the ten day rule.
As a pre-expulsion extension of suspension, let alone the expulsion itself, will cause the student to be out longer than the maximum ten days allowed, a pre-expulsion referral IEP or 504 meeting must be held.
Pre-Suspension Extension IEP or 504
How it works usually is when a special needs student is up for expulsion, a manifestation IEP or 504 meeting is convened on the student’s last day of suspension, so the school can try to keep the child out longer. If the team determines that the conduct was not a manifestation of the student’s disability the expulsion process may move forward.
During this time of limbo, the special education student is still entitled to their IEP services, albeit in an alternative environment. A 504 student may be out of luck and will only receive the same placement as a non-special education peer.
Exception With Certain Offenses
IEP students may also be placed for up to 45 days in an alternate education environment, even without an expulsion, if the student commits a school offense that involves illegal drugs, controlled substances, weapons or causes serious physical injury.
What Can a Parent Do?
If a child is a special education or 504 student who is being suspended, and multiple suspensions have occurred, even adding up to more than ten days, but there is no clear pattern supporting a “change of placement,” parents can still request an IEP or 504 meeting to address the suspendable behaviors. Even if the school suspension may be legally “okay,” that does not mean that the student cannot receive support or help for the issues, if qualified.
If the parent thinks the conduct is related to the student’s disabilities, a new assessment can be requested for the student or an assessment in a new area of potential need. Then, any newly discovered disabilities can be put into the student’s IEP or 504 and support services provided. This also may help if future issues occur to support a manifestation of disability argument.
Parents should take action to try to get any support they can if a special needs student is being punished, suspended or expelled by a school.
Special education lawyer Michelle Ball assists students and parents with special education expulsion and suspension matters throughout California. She can assist, from her office in Sacramento, with issues from San Diego, to Manteca, Berkeley, Roseville, Lincoln, Rocklin, Elk Grove, Auburn, and anywhere in California.
