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Interaction Between IDEA and School Expulsion for Misconduct

Interaction Between IDEA and School Expulsion for Misconduct. Two questions to ask when student charged with gross misconduct Does student have IEP? If no IEP at time of misconduct, did school have constructive knowledge that child had disability?. Does student have IEP? If yes,

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Interaction Between IDEA and School Expulsion for Misconduct

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  1. Interaction Between IDEA and School Expulsion for Misconduct

  2. Two questions to ask when student charged with gross misconduct • Does student have IEP? • If no IEP at time of misconduct, did school have constructive knowledge that child had disability?

  3. Does student have IEP? If yes, • Manifestation Determination Review (good way to nip expulsion in the bud) • Burden on parent/child (34 CFR 530(e)) • “Direct and substantial relationship” test • “Direct result of school’s failure to implement IEP”

  4. Clever ways to meet burden at MDR • Review IEP carefully (basis of elig., BIP, targeted behaviors, social work objectives, WPM for special ed and related services) • Review outside assessments (consent issues, use of speaker phone) • Ascertain w/ parent and child whether related services provided as specified by IEP

  5. Practice tips for advocacy at MDR • Must be held within 10 school days of misconduct • Beware of student admissions in serious cases • Are “relevant members of IEP team” present • “He knows difference b/n right and wrong.” • Change of placement as bargaining chip

  6. Due Process Complaint to appeal adverse MDR determination • Request stay of expulsion proceedings • “Stay put” not applicable w/ adverse MDR determination or interim alternative educational setting for weapons, drugs or serious bodily injury cases • Unrealistic time lines for expedited appeals (34 CFR 532c): 20 days

  7. If no IEP at time of misconduct, did school have constructive knowledge of child’s disability? • Three ways to show constructive knowledge (34 CFR 533) • Parent expressed concern in writing of child’s need for special ed • Parent requested evaluation • Teacher or other school personnel expressed concern about pattern of behavior

  8. If school had constructive knowledge Inform school district asap If school district insists on proceeding with expulsion, file due process complaint to invoke same procedural safeguards as those available for students with IEP. This means school must complete FIE, have eligibility/IEP meeting, and conduct MDR (by which time everyone has forgotten what the misconduct was) before holding expulsion hearing.

  9. Representing students with disabilities at expulsion hearings • Student’s disability as mitigating factor. See Robinson v. Oak Park H.S., 571 N.E.2d 931 (1st Dist. 1991). • Use “unique circumstances on case by case basis” language in 34 CFR 530(a) • Argue that student will be unable to progress towards meeting IEP goals if expelled (300 CFR 530(d)(i)). See illinoislawhelp.org

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