Discipline of Students with Disabilities

Authority of School Personnel and Case-by-Case Determination 
School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change of placement, made in accordance with the following requirements related to discipline, is appropriate for a child with a disability who violates a school code of student conduct. 

Note: A removal is usually called an out-of-school suspension (OSS), but it may also include any time the school calls and asks you to pick up your child before the end of the school day because of disciplinary reasons. It also includes in-school-suspension (ISS) if services are not provided to your child, and suspension from the bus, IF transportation is a related service for child’s IEP. 

General

To the extent that they also take such action for children without disabilities, school personnel may, for not more than 10 school days in a row, remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension. School personnel may also impose additional removals of the child of not more than 10 school days in a row in that same school year for separate incidents of misconduct, as long as those removals do not constitute a change of placement (see the heading Change of Placement Because of Disciplinary Removals for the definition). 

Once a child with a disability has been removed from his or her current placement for a total of 10 school days in the same school year, the school district must, during any subsequent days of removal in that school year, provide services to the extent required below under the sub-heading Services

Additional Authority 

If the behavior that violated the student code of conduct was not a manifestation of the child’s disability (see the subheading Manifestation Determination) and the disciplinary change of placement would exceed 10 school days in a row, school personnel may apply the disciplinary procedures to that child with a disability in the same manner and for the same duration as it would to children without disabilities, except that the school must provide services to that child as described below under Services. The child’s IEP Team determines the interim alternative educational setting for such services. 

Services 

The services that must be provided to your child with a disability who has been removed from his or her current placement may be provided in an interim alternative educational setting (IAES). 

The school district is only required to provide services to a child with a disability who has been removed from his or her current placement for 10 school days or less in a school year, if it provides services to children without disabilities who have been similarly removed. 

A child with a disability who is removed from the child’s current placement for more than 10 school days and the behavior is not a manifestation of the child’s disability (see subheading, Manifestation Determination) or who is removed under special circumstances (see the subheading, Special Circumstances) must: 

1. Continue to receive educational services (have available a free appropriate public education), so as to enable the child to continue to participate in the general education curriculum, although in another setting (that may be an interim alternative educational setting), and to progress toward meeting the goals set out in the child’s IEP; and 
2. Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, which are designed to address the behavior violation so that it does not happen again.

After a child with a disability has been removed from his or her current placement for 10 school days in that same school year, and if the current removal is for 10 school days in a row or less and if the removal is not a change of placement (see definition below), then school personnel, in consultation with at least one of the child’s teachers, determine the extent to which services are needed to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP. 

If the removal is a change of placement (see the heading, Change of Placement Because of Disciplinary Removals), the child’s IEP Team determines the appropriate services to enable the child to continue to participate in the general education curriculum, although in another setting (that may be an interim alternative educational setting), and to progress toward meeting the goals set out in the child’s IEP. 

Manifestation Determination

Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct (except for a removal that is for 10 school days in a row or less and not a change of placement), the school district, you, and other relevant members of the IEP Team (as determined by you and the school district) must review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by you to determine: 
1. If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or 
2. If the conduct in question was the direct result of the school district’s failure to implement the child's IEP.

If the school district, you, and other relevant members of the child’s IEP Team determine that either of those conditions was met, the conduct must be determined to be a manifestation of the child’s disability. 

If the school district, you, and other relevant members of the child’s IEP Team determine that the conduct in question was the direct result of the school district’s failure to implement the IEP, the school district must take immediate action to remedy those deficiencies. 

Determination that Behavior was a Manifestation of Your Child’s Disability 

If the school district, you, and other relevant members of the IEP Team determine that the conduct was a manifestation of the child’s disability, the IEP Team must either: 
1. Conduct a functional behavioral assessment, unless the school district had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or 
2. If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior.

Except as described below under the sub-heading Special circumstances, the school district must return your child to the placement from which your child was removed, unless you and the district agree to a change of placement as part of the modification of the behavioral intervention plan. 

Special Circumstances 

Whether or not the behavior was a manifestation of your child’s disability, school personnel may remove a student to an interim alternative educational setting (determined by the child’s IEP Team) for not more than 45 school days, if your child: 
1. Carries a WEAPON (see the definition below) to school or has a weapon at school, on school premises, or at a school function under the jurisdiction of NCDPI or a school district; 
2. Knowingly has or uses ILLEGAL DRUGS (see the definition below), or sells or solicits the sale of a controlled substance, (see the definition below), while at school, on school premises, or at a school function under the jurisdiction of the NCDPI or a school district; or 
3. Has inflicted SERIOUS BODILY INJURY (see the definition below) upon another person while at school, on school premises, or at a school function under the jurisdiction of the State Educational Agency or a school district. 

Definitions  

  • Controlled substance — A drug or other substance identified under schedules I, II, III, IV or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)). Controlled substances under schedule I have no acceptable medical use in the United States. They have a high potential for abuse and there is no accepted safety for use of the drug or other substance under medical supervision. Controlled substances under schedules II, III, IV and V have a currently accepted medical use for treatment in the United States. They range from having a high potential for abuse to a low potential for abuse. Physical or psychological dependence on these drugs ranges from severe dependence to limited dependence. 
  • Illegal drug — A controlled substance; but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law.  
  • Serious bodily injury —Injury that involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of a function of a bodily member, organ or faculty.  
  • Weapon — A dangerous weapon is a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 and ½ inches. 


Notification

On the date school personnel make the decision that a disciplinary removal of your child is a change of placement, the LEA must notify you of that decision, and provide you with the Procedural Safeguards notice.
 
Change in Placement for Disciplinary Reasons 

A removal of your child with a disability from your child’s current educational placement is a change of placement if: 
1. The removal is for more than 10 school days in a row; or 
2. Your child has been subjected to a series of removals that constitute a pattern because: 
a. The series of removals total more than 10 school days in a school year;
b. Your child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and 
c. Of such additional factors as the length of each removal, the total amount of time your child has been removed, and the proximity of the removals to one another.

Whether a pattern of removals constitutes a change of placement is determined on a case-by-case basis by the school district and, if challenged, is subject to review through due process and judicial proceedings. 

Determination of Setting 

The Individualized Education Program (IEP) Team determines the interim alternative educational setting for removals that are changes of placement, and removals under the subheadings Additional Authority and Special Circumstances

Appeal in General 

You may file a due process complaint (see the heading Due Process Complaint Procedures) to request a due process hearing if you disagree with: 
1. Any decision regarding placement made under these discipline provisions; or 
2. The manifestation determination described above. 

The school district may file a due process complaint (see above) to request a due process hearing if it believes that maintaining the current placement of your child is substantially likely to result in injury to your child or to others. 

Authority of Hearing Officer 

A hearing officer that meets the requirements described under the subheading Impartial Hearing Officer must conduct the due process hearing and make a decision. The hearing officer may: 
1. Return your child with a disability to the placement from which your child was removed if the hearing officer determines that the removal was a violation of the requirements described under the heading Authority of School Personnel, or that your child’s behavior was a manifestation of your child’s disability; or 
2. Order a change of placement of your child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of your child is substantially likely to result in injury to your child or to others. 

These hearing procedures may be repeated, if the school district believes that returning your child to the original placement is substantially likely to result in injury to your child or to others. 

Whenever you or a school district files a due process petition to request an expedited hearing, all the requirements under the previous headings: Filing a Due Process Petition, Hearings on Due Process Petitions, and State-Level Appeals must be followed, except for the timelines and written response. 

The timelines are expedited as follows: 

The Office of Administrative Hearings must arrange for an expedited due process hearing, which must occur within 20 school days of the date the hearing is requested and must result in a determination within 10 school days after the hearing; and 

Unless you and the school district agree in writing to waive the resolution meeting, or agree to use mediation, a resolution meeting must occur within seven (7) calendar days of the date the school district’s Superintendent or EC Director received notice of the expedited due process petition. The hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 calendar days of the date the school district’s Superintendent or EC Director received notice of the due process petition. 

A party may appeal the decision in an expedited due process hearing in the same way as for decisions in other due process hearings. 

Placement during Appeals 

When, as described above, you or the school district file a due process complaint related to disciplinary matters, your child must (unless you and the NCDPI or school district agree otherwise) remain in the interim alternative educational setting (IAES) pending the decision of the hearing officer, or until the expiration of the time period of removal as provided for and described under the heading Authority of School Personnel, whichever occurs first. 

Protections for Children Not Yet Eligible for Special Education and Related Services in General 

If your child has not been determined eligible for special education and related services and violates a code of student conduct, but the school district had knowledge (as determined below) before the behavior that brought about the disciplinary action occurred, that your child was a child with a disability, then your child may assert any of the protections described in this notice. 

Basis of Knowledge for Disciplinary Matters 

A school district will be deemed to have knowledge that your child is a child with a disability if, before the behavior that brought about the disciplinary action occurred: 
1. You expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or to your child’s teacher that your child is in need of special education and related services; 
2. You requested an evaluation related to eligibility for special education and related services under Part B of IDEA; 
3. Your child’s teacher or other school district personnel expressed specific concerns about a pattern of behavior demonstrated by your child directly to the school district’s director of special education or to other supervisory personnel of the school district; or 
4. Your child’s behavior and performance, prior to the disciplinary action, clearly and convincingly establish a need for special education 

Exception 

A school district would not be deemed to have such knowledge if: 
1. You have not allowed an evaluation of your child or have refused special education services; or 
2. Your child has been evaluated and determined to not be a child with a disability under Part B of IDEA. 

Conditions that Apply if there is No Basis of Knowledge 

If prior to taking disciplinary measures against your child, a school district does not have knowledge that your child is a child with a disability, as described above under the sub-headings Basis of Knowledge for Disciplinary Matters and Exception, your child may be subjected to the disciplinary measures that are applied to children without disabilities who engage in comparable behaviors. 

However, if a request is made for an evaluation of your child during the time period in which your child is subjected to disciplinary measures, the evaluation must be conducted in an expedited manner. 

Until the evaluation is completed, your child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services. 

If your child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the school district, and information provided by you, the school district must provide special education and related services in accordance with Part B of IDEA, including the disciplinary requirements described above. 

Referral to and Action by Law Enforcement and Judicial Authorities 

Part B of IDEA does not: 
1. Prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities; or 
2. Prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.