Can My Special Needs Student be Suspended or Expelled?
“We shouldn’t punish kids for their disability”By Judy Malmon, J.D. | Last updated on July 28, 2022
All children test boundaries in an effort to learn what’s acceptable and what’s off limits. At best, each child will have sufficient relationships with parents, teachers, counselors and other adults throughout the school year and beyond, who help create a strong network of nurturing, teaching, modeling, incentivizing and correcting. However, there will always be exceptions.
As an early intervention, schools have policies and practices for disciplining student behavior. If a child’s behavior becomes more serious, a school may consider suspension or even expulsion. But what if a student’s behavior may stem from a child’s disability? Can a school discipline him or her in the same way as a non-disabled student?
This depends on the nature of the student’s disability, the nature of the act for which they are being disciplined and the specifics of their IEP (Individualized Education Plan)—if they have one.
“Discipline becomes a very unique issue when you’re dealing with students with certain kinds of disabilities, where students may say things and there needs to be a response,” says Tim Gilsbach, a special education attorney at King, Spry, Herman, Freund & Faul. “But how do you mix that with it being a manifestation of a disability? How do we program to help the student understand that you can’t just say those things?”
Under the Individuals with Disabilities Education Act (IDEA), school districts are required to take certain steps before disciplining special education students or implementing a behavior intervention plan. Until recently, according to Gilsbach, schools typically responded to these students through programmatic responses and behavioral supports, with the sense of knowing a particular student and their intentions.
“But after the events in Florida,” he says, “school districts have become far less willing to take that approach; there’s too much concern. So, school districts have become super vigilant in how they deal with behavior. But it’s a balancing act: We have to meet that student’s needs; we have to deal with the fact that that student has a disability. But at the same time, from a safety perspective, we can’t just ignore what’s been going on.”
Under IDEA, if a student is suspended for more than 10 days or is facing expulsion, there must be a proceeding called a Manifestation Determination. At this meeting, the educational team and school staff will review the student’s IEP and assess whether the behavior at issue was as a result of their disability or was a result of a failure to implement the IEP. If the answer to that assessment is no, the student may be subject to the same disciplinary action as any other student. But if the answer is yes, says Gilsbach, “then we generally can’t discipline the student. They have to go back and evaluate the student and revise the IEP to deal with those behavior issues.”
One significant exception is for situations involving weapons, illegal drugs or serious bodily injury, known as “special circumstances.” In these instances, a school may implement a change of placement for the student to an alternative setting for up to 45 school days.
If a change in placement, including expulsion, is upheld after the Manifestation Determination, a parent may appeal this decision by requesting a hearing with the Bureau of Special Education Appeals. If a student is removed, they must still be provided with education that meets their individualized needs under their IEP.
As Gilsbach puts it: “It’s complicated, but we shouldn’t punish kids for their disability.” If you have a question about your student’s IEP, education needs or disciplinary rights, seek legal advice from an experienced special education attorney. For more information on this area, see our education law overview.
Find top lawyers with confidence
The Super Lawyers patented selection process is peer influenced and research driven, selecting the top 5% of attorneys to the Super Lawyers lists each year. We know lawyers and make it easy to connect with them.Find a lawyer near you