- Hello, my name is Jessica Sanchez. I am a shareholder over at Udall Shumway in Mesa, Arizona. And thank you for watching this presentation today. I will be talking about Student Discipline Under the IDEA and Section 504. First things first, I need to give a disclaimer, please remember that this presentation is for information purposes only and it should not be used in place of legal advice, especially with items having to do with special education, you really need to seek the advice of your own legal counsel. And for all the attorneys out there, please encourage your clients to seek your advice because these types of situations can get very dicey and tricky very fast. All right, with that, we're gonna move on. I'm gonna give you an overview of what we are going to talk about today. So first, I wanna just talk about some basic due process principles for any student regardless of whether they have a disability or do not. Then we will talk about student discipline under the Individuals with Disabilities Education Act. And then finally, we will talk about student discipline under Section 504. So first, let's talk about basic due process principles for all students. So first of all, why do we give due process? And what is due process and how much due process do students need to get? So due process, we get these principles from the fifth and 14th amendments of the United States Constitution which guarantees everybody in this country a right to life, liberty, or in property, which cannot be taken away without due process of the law. And so depending on what state you're in, for example, in Arizona, there is also a constitutional right to a public education so that cannot get taken away from somebody. And by taking away, we mean suspending them from school or expelling them from school. It's a right that cannot be taken away unless you've gone through a certain process to make sure that it's fair to take that right away. So same principles, if you're thinking in terms of your liberty, you cannot be put in jail unless you have a trial, in most cases, a trial by jury, and you are convicted of a crime and then sentenced to jail. So there has to be some kind of process before a right gets taken away. Also, depending on what jurisdiction you're in, education is typically seen as a property right and so it impacts somebody's ability to eventually earn a livelihood. And so it's a very important aspect of any student's life and so we don't take it away unless we've gone through a process to determine that what we are doing is appropriate. So students are guaranteed, students need to have procedural due process. So this is a process, again, that must be followed before taking away a person's right to life, liberty, and property. So what kinds of things are included in procedural due process? And so, again, this is true for any student regardless of whether they have a disability or do not, but the main elements of procedural due process include notice. So the student has to understand what they are being accused of doing, what the allegations are that they have committed. And then they need to be given sufficient information about the allegations so that they can present their side of the story. They need to be given an opportunity to be heard, like I said, a chance to present their side of the story. And an opportunity for a fair hearing, which we're gonna discuss. So those are the basic elements of due process. Again, notice of the allegations, oral or written, an opportunity to be heard and a fair hearing. What that due process ends up looking like in real life depends on the severity of the punishment that's being considered. So now we're moving on to our next slide, student discipline. So there are gonna be different protocols for short-term removals. So typically when you're looking at a suspension or any kind of discipline, whether it's a detention or an in-school suspension or out-of-school suspension, which does take away a property for that day. A short-term suspension typically is something that's 10 days or less. And then the more severe the consequence is, for example, a long-term removal, so a suspension out-of-school that's more than 10 days or something that's permanent, such as expulsion. In some states, expulsion is considered to be a year, in other states, again, like in Arizona, expulsion is forever unless the student reapplies and gets admitted back into school. So, but again, the amount of due process that is required is going to be obviously a lot less formal when we're talking about short-term removals, and then a lot more formal when we're talking about long-term removals. So let's first talk about short-term removals. So for example, in school suspension where they might be pulled away from class, a detention or an out-of-school suspension that's 10 days or less. So typically it's been recognized in case law throughout the country that school officials can implement short-term suspensions for students with disabilities in the same manner as students without disabilities. So as long as we're in that 10 days or less framework, you can follow the same process for a student with a disability that you would for a student who does not have a disability. When the removal from school is for more than 10 days, excuse me, I'm sorry, When the removal from school is for 10 days or less, the IDEA at least or 504 does not require that you provide any services to students unless you do so for students without disabilities. Obviously, if you do it for other students, you need to do it for students with disabilities. Typically, when a general education student is, so a student without a disability, is suspended, usually you're not providing any kind of instruction or services, and so the same would be true for a student with a disability. Now, you can always grant more services to students with disabilities, that's fine, but you're not obligated to under the law. And so, like I said, if services are to be provided, school personnel and consultation with at least one of the student's teachers should determine the extent to which the services are needed during the period of removal and location in which services will be provided. So for example, sometimes when we know a student has a disability, we don't want them to get too far behind. So sometimes a short-term suspension will be served in school where a student will still have access to their teachers or maybe they're provided services online, and so there's different ways to provide those services, but it should be done with the student's particular needs in mind, like I said, if you were gonna provide services during a short-term removal. And again, no extra procedures are required that you would do for a general education student so long as the removal is not for more than 10 consecutive school days, or the removal is not for more than 10 school days in the same school year for separate incidents of misconduct. So if you've suspended a student four times here, or four days here, four days here, three days here, then you're gonna start having to look at doing some extra procedures. And then before I move on to just, for example, what happens if we have a change of placement. Just again, a reminder, the types of due process that we do for a student with a disability for a short-term removal would be the same as a general education student. The various procedures might vary from state to state or district to district or school to school, but typically it involves some kind of meeting with an administrator where the administrator either verbally or in writing, explains to the student what they are accused of doing. The student gets a chance to explain their side of the story before any final decisions are made, and then the administrator gets to make a decision. For example, a student is accused of, what's an example? A student is accused of bringing a bottle of beer to school. In some jurisdictions that might give you a long-term suspension, but let's just say that a first time offense is five days. A principal or assistant principal would ask that student, did you bring a bottle of beer to school? The student would either say yes or no, or I didn't know it was my backpack. But the student gets a chance to tell their side of the story and then the principal could say, okay, I've heard your side of the story. I'm gonna impose a five day out-of-school suspension. So that's really how the process works. There's not usually a requirement to put anything in writing unless your school district's policy specifically requires you to do so. Usually that exchange of telling their side of the story all happens verbally. And then when the principal issues a decision, some kind of form goes home to the parent to let them know about the discipline. So again, that process is the same whether a student has a disability or doesn't. And so there's not really any extra procedures that need to happen. And so, again, no extra procedures are required for students with disabilities so long as the removal is not for more than 10 consecutive days. So for example, in my example of five days, you would be fine, you can follow the same process for a student with a disability as you can for a general education student. And then as long as the removal does not exceed 10 school days in a year, so once you're at that 10 day mark, you really have to start looking at some additional procedures which we're gonna cover. And also, as long as those removals do not constitute a change of placement. So let's discuss what happens when there is a change, a disciplinary change of placement. So if Johnny is suspended for five days, five school days for stealing money, and then a month later, Johnny gets into a fight and the principal wants to suspend him for six days, can the principal suspend him? And so what we are looking at here is something that the IDEA and then Section 504 would call a disciplinary change in placement. So that occurs, again, if a removal is for more than 10 consecutive days, so for example, if we're doing a long-term suspension right off the bat, or the student has been subjected to a series of removals that constitute a pattern because the series of removals total more than 10 days in a school year because the student's behavior is substantially similar to the student's behavior in previous incidents that resulted in the series of removals, and because of additional factors such as the length of each removal, the total amount of time the student has been removed, and the proximity of removals to one another. So in the example that we gave earlier where Johnny suspended for five school days for stealing money and then gets into a fight, and the principal wants to suspend him for six days. So at that point, we're at 11 days. So we've exceeded our 10 days that we're allowed to have. That doesn't mean the principal can't eventually suspend for that 11th day, but now we're talking about what's called a disciplinary change in placement. This student is being taken away from their services from their program in excess of 10 days. So now some additional procedures are gonna have to be followed before the principal implements that, that six day on the second infraction, so once that day is going into day 11. And we're gonna talk about those additional procedures in one second. So here's another question too, and people ask, well, can I just get around this by doing in-school suspension days? So does in-school suspension count towards the 10 days of removal? So whether or not it's gonna count, you can't just call it in-school suspension and think you're off the hook, there are some factors that you have to consider. So whether or not an in-school suspension counts towards your 10 days depends upon the circumstances. Is the student afforded the opportunity to continue to appropriately progress in the general ed curriculum? So are they still gonna get a chance to advance in their core academics and in their classes? Are they still gonna be earning credits towards graduation if they're in high school? Does the school continue to provide the services specified in the student's IEP? Does the student continue to participate with non-disabled students to the same extent as he does in his current placement? And if all three of these conditions are not met, then a disciplinary change in placement has occurred. And that in-school suspension day will count just as much against that 10 days as an out-of-school suspension would. So for example, you could have a student an in-school suspension, but you can't just stick them into classroom with an adult monitoring them. If you were giving them some tutoring and some help on their core classes, if they were still getting, for example, their resource time and their related services, so their occupational therapy, their physical therapy, their speech therapy, their counseling minutes, as long as they're still being given those services, those opportunities, and as long as they can still participate with non-disabled students, then an in-school suspension day will not count. Again, if all of those factors are not met, for example, just putting someone in a detention room and not giving them anything, then that in-school suspension day would count just as much as an out-of-school suspension day would count. And again, once we hit that 11th day, we are talking about a disciplinary change in placement. So let's talk about what constitutes a disciplinary change in placement. So again, school personnel determine on a case by case basis whether or not a pattern of removals constitute a change of placement. This determination can always be challenged in a due process hearing so it's important to really review the circumstances of removals. So there are some circumstances where, example, a three day suspension here for tobacco, a three day suspension here for fighting, a four day suspension here for disruption might not be a pattern, but just a good tip to keep in mind, Don't do these legal analyses on your own and the safest bet is just to know if the kid has been away from their program for 10 days or more, we have a disciplinary change of placement and we need to implement some additional procedures. So for the special ed attorneys out there, I know there are some circumstances where you could say, maybe this doesn't constitute a pattern, but I really think the safest thing for any school or district or LEA is really that once you're at, once you're above those 10 days, it's a disciplinary change in placement and just follow the additional procedures. All right, so what procedures must be followed if there is a disciplinary change in placement? So we have to give notice to the parent that this is gonna, that a disciplinary change in placement is being recommended or might take place. So for example, a recommendation for long-term suspension, a recommendation for a short-term suspension that's gonna exceed that 10th day, a recommendation for expulsion. All of those things would be things that we would need to notice the parent. This is what's being recommended. And then we'd have to follow a procedure called a manifestation determination review. And then depending on the results of the manifestation determination review, which I'm just gonna shorten to MDR, we would either move forward with the disciplinary hearing and consequences, or we would decide to send the student back to their classroom. And there's some other things that we'll talk about as well, but we'll get to those procedures in a second. So just a quick note again, on long-term removal, so school personnel may apply the same long-term disciplinary procedures to children with disabilities as would be applied to children without disabilities so long as that behavior that gave rise to the violation of the school rules is determined not to be a manifestation of the student's disability. And I'm sorry, this is true for long-term suspensions or expulsions. Because a long-term removal, for example, a long-term suspension or expulsion, would be a change of placement, again, we have to follow the change of placement procedures along with our regular long-term suspension or expulsion procedures. So in addition to what you would normally do for the general ed students in terms of long-term suspension or expulsion, and that would be something more formal, written notice of the allegations, and then providing an opportunity to have a hearing before a hearing officer or the governing board or some kind of, some kind of hearing officer, whatever your particular school does for hearing officers. An opportunity for the students to tell their side of the story before any final decisions are made about discipline. So we would still follow those same general ed processes, but you also have to do additional processes, again, the notice, and then providing the manifestation determination process. So let's first talk about that notice requirement. So on the date in which the school makes the decision to make a removal, that constitutes a change in placement, so, for example, a long-term suspension or an expulsion. And we call it a change in placement again, because it's drastically gonna change the programs and services that they're currently getting. So before we can do a disciplinary change in placement, because we're recommending a long-term suspension or expulsion, the school must notify the parents of the decision and provide the parents with notice of this decision that you intend to move forward with a long-term suspension or expulsion or short-term suspension that's gonna exceed that 10th day. You also have to give parents a document that's called their procedural safeguards notice. So you hand these out a lot at IEP meetings, you have to hand it out in this circumstance as well, but it's a document that's required to give, you're required to give to parents that lets them know all of their rights. So parents get not just notice of the recommendation for a disciplinary change in placement, but they also get their procedural safeguards notice, which again, is that document that contains all of their rights. And then you need to conduct what's called a manifestation determination review. So an MDR must be held if the school is contemplating a disciplinary removal, again, of more than 10 consecutive school days, or if the removal will constitute a change in placement. The MDR must occur within 10 school days of any decision to make a change in placement for disciplinary reasons. So within 10 days of when the principal, or the superintendent, or your director, whoever makes that decision, whenever they decide I'm going to recommend a disciplinary change in placement, the MDR must take place within 10 days of that decision. All right, so who must participate in this MDR? So in the manifestation determination, the following individuals are responsible for participating, a school representative, the parent, and relevant members of the IEP team. We say relevant members of the IEP team, I think it's safest just to include all of the required members so that would be, again, an LEA representative, a general education teacher, and a special education teacher, and then anyone else who you think is gonna have knowledge about the student's disability who can help you evaluate whether or not the student's conduct was related to their disability. And we'll talk more about that analysis in one second. The MDR team must review all relevant information in the student's file, including the student's IEP, any teacher observations, and any relevant information provided by the parents. So what do we decide? So the team looks at all of this information, they look at what the student is accused of doing, they look at all of the information that's coming from the teachers, from the IEP, from any evaluations, and from the parents, and the team must decide in reviewing all of that information, if the conduct in question was caused by or had a direct and substantial relationship to the student's disability, or if the conduct in question was the direct result of the school's failure to implement the IEP. And so again, it's a very fact specific, it needs to be an individualized decision about what the student is accused of doing and then the circumstances surrounding it. So for example, I'm just gonna use a very, well, an obvious example. If a student has an emotional disability and they are also very reactive to situations and they don't know how to control themselves, if they get in a fight because it's very possible, but that conduct was related to their disability. Now, if you have a student, I had an example from one of my discipline hearings where a parent was saying that a student breaking into the school and vandalizing the school was related to his disability because he has ADHD and he's impulsive. But the surveillance video showed him unzipping his backpack and getting ready to break into the school and he had a crowbar, he had supplies for breaking into the school. So the manifestation determination, the school members of the team were looking at that information and saying, no, this doesn't look like it was a spur of the moment decision, this looks like it was planned. We do not believe it was related to the disability. So the team has to, again, weigh all different kinds of factors. Was the student's disability the reason for the misconduct? Because if you look at it in terms of just fairness and equity, it would not be fair to discipline a student for something that's not within their control. So that is why we go through this analysis because we wanna make sure that we are not discriminating against students with disabilities and penalizing them at all, or even more harshly than others when, again, the circumstances are beyond their control. So you, again, the team looks at all of the different factors and decides is the conduct in question caused by or did it have a direct and substantial relationship to the student's disability? And then here's the other important second question which you have to answer each time. If the conduct in question was the direct result of the school's failure to implement the IEP. So you also have to look at, was it the school's fault? Did we fail to implement the IEP and that's why the student got in trouble? I'm gonna give another example. A student who had an emotional disability who very much had some problems controlling anger and impulses. And so every morning he had to check in with the counselor to talk about how are we gonna set your day up for success? What if somebody says something to you that offends you? How are you gonna react? What's the most appropriate way to act? What are some other ways that we can handle besides getting aggressive with the student? So this was a check-in procedure that the student had in their IEP that they were supposed to have every single day. In this particular example of the student that I'm thinking about, that counselor who they were meeting with every morning went on some kind of leave and the school forgot to put somebody in place of that counselor to do the check-ins with the student. So the student went two or three weeks without those check-ins, and then got into a fight when somebody said something that offended the student. So in that circumstance, it very much looked like because of the school's failure to provide that counseling check-in, the student ultimately wasn't able to control their anger for that day. So that was an example, at least in my past, where we were able to deter where we, the team, I think appropriately determined, yeah, this one's on us and so we've decided that it is a manifestation of the disability, and so we're not gonna discipline the student. And so again, the decisions have to be individualized and the team must look at each of those questions. So what happens if the conduct is a manifestation of the student's disability? So if the conduct was a manifestation of the student's disability, then the disciplinary change in placement cannot be imposed, and then the team has some choices. So we've determined that the student's disability was substantially related to the misconduct. So again, it wouldn't be fair to move forward with any kind of long-term suspension or expulsion. So the team has some choices. The team must either needs to conduct a functional behavioral assessment unless the school has conducted an FBA before and implement a behavioral improvement plan for the student. Or if the team has already done this in the past, they need to review the plan, modify it as necessary, and address their behavior. So for those of you that don't know, a functional behavioral assessment is like an evaluation tool that looks at what are the particular problem behaviors? What is happening right before those behaviors? What are the antecedents of those behaviors? What does the student get out of those behaviors? And then the behavior plan is put in place in order to give that student replacement behaviors. So if we know that a student is doing something for attention, whether it's good attention or bad attention, we put a plan in place so that the student, maybe the plan includes something like planned ignoring or particular points of the day where the student can have that attention. But a plan is put in place basically to help the student find those appropriate replacement behaviors that will help keep them on track. So if an FBA was already done and a behavior plan put in place, then the team needs to review it and see if any changes need to be made in light of this latest disciplinary incident. Or if they haven't done one, they need to do one now. And then the student must get returned to their placement from which they were removed unless the parent and the school agreed to change the placement. So the student gets to go back to whatever their current placement was before the disciplinary incident happened. That only changes in this meeting if the parent and the school agree to a change in placement. So maybe at this meeting, if it was misconduct that was particularly severe, a school and a parent might decide maybe the student needs a more restrictive placement and so we're gonna put them in, we are either gonna give them more services or we're gonna put them in a specialized program, or maybe they're gonna go into a private day program. But the parent has to agree otherwise you cannot just change a student's placement because of a disciplinary incident. If it's looking like the student does need some more services and might need a more restrictive placement, you need to hold a separate IEP meeting to discuss whether or not that change in placement is appropriate. But at this particular manifestation determination meeting, if you've determined that the student's conduct was a manifestation of their disability, you don't change their placement, you send them back to their current placement unless there is a mutual agreement to make a change. All right, so what if the conduct was not a manifestation of the student's disability? So if the conduct was not a manifestation of the student's disability, then the school can go ahead and move forward with a disciplinary change in placement and impose a long-term suspension or expulsion. And then you would be following the typical suspension or expulsion procedures that you would follow for any other student in your school. So again, usually that's written notice of the charges, a hearing before the governing board or before a hearing officer, and giving the student a chance to defend themselves before a final decision is made. So if you've determined that the misconduct was not a manifestation of the student's disability and you move forward with a long-term suspension or an expulsion or a removal, again, that's an excess of the 10 school days, then at this particular point, you can remove them from school and suspend them, but for a student who is on an IEP, you have to continue to provide services to that student to enable the student to continue to participate in the general ed curriculum and to make progress toward meeting the goals set out in their IEP. They also have to receive as appropriate an FBA in a behavioral intervention plan services and modifications that are designed to address the behavior so that the behaviors do not occur. And then the students' IEP team determines what appropriate services in what location those services will be provided in. Maybe it's an alternative school that has some special ed services. Maybe it's an in school suspension option where the student still has some access to the services that they need to make progress. Perhaps it's in a private day school. So the team determines what's appropriate based on the individual of the needs of the student. Maybe it's homeschool, maybe it's virtual instruction, but all of that's gonna, again, depend on the needs of students. And while it's not gonna be their typical FAPE program that they would be getting, but for that disciplinary incident, it still has to be something robust enough to help them make progress on their goals. So be thoughtful about the services that you are providing because we still have to give the student enough so that they're not at a complete disadvantage and loss when they come back to school from their period of removal. Now, if a parent disagrees with any decision regarding a disciplinary placement or the manifestation determination, he or she can request a due process hearing to appeal the decision. The school can also request a hearing if it believes that maintaining the current placement of the student is likely to result in injury to the students or to others. And then, sorry, there's a note here about Arizona, you would follow your own state's procedures for filing a due process complaint. If a parent is filing a due process related to a disciplinary incident and a manifestation determination decision by the team, the hearing process is expedited. So all the timelines that would be in a typical due process hearing gets shortened. So the hearing must occur within 20 school days from the date the complaint is filed and must result in a determination within 10 school days after the hearing. So it's important to get the school attorney involved as soon as possible because these timelines are very quick. This also results in quicker timelines for things like a resolution session or mediation. In a typical due process, a resolution meeting has to be held within 15 days unless you wave it or decide to do mediation. In a situation involving an expedited due process due to a disciplinary incident, that resolution meeting must occur within seven calendar days of the date the school received notice of the due process, again, unless the parent agrees to waive it or agrees to go to mediation. Oops, sorry, I lost my place. So at the due process hearing, unless the matter gets resolved, again, it goes to a hearing. And then it's up to the hearing officer to decide whether or not the student should be returned to their placement from which they were removed, or the hearing officer can order a change in placement of the student to an appropriate interim alternative educational setting. During an appeal, when there is an appeal that has been requested by either the parent or the school, the student must remain in an interim alternative educational setting, whichever occurs first, pending the decision of the hearing officer or until the expiration of the time period of the disciplinary removal. The school and the parent may agree to other arrangements in places while the disputes are being resolved. So that, that's the kind of long process again in MDR And then the parents can ultimately file a due process if they disagree with their decision. But there's another caveat to talk about. So there are some circumstances under the IDEA where the law has said that the conduct was severe enough that a student can be removed to an interim alternative educational setting for not more than 45 school days without regard as to whether the behavior is determined to be a manifestation of the student's disability. So this is one of those, so for certain infractions, so this is when a student carries or possesses a weapon, knowingly uses, possesses, sells, or solicits the sale of a controlled substance, or has inflicted serious bodily injury upon another person. If one of those circumstances exist, those are something severe enough that the law has, that the law carves out an exception and says, if the student commits one of these three severe things, you can move them to a 45 day interim alternative educational setting regardless of what the manifestation determination is. So let's just talk about those individually. So weapons, and a weapon has the same meaning as the term dangerous weapon under 18 USC 932g. So really it's a weapon or device, instrument material or substance animate or inanimate that is used for or is readily capable of causing death or serious bodily injury, except the term does not include a pocket knife with a blade of less than two and a half inches. So typically when we're using this exception, we're using it because the student has brought a gun to school or because they have brought a knife to school, and that blade is longer than two and a half inches. So you do have to get out your ruler and decide whether or not this exception applies. But technically, some other types of weapons could go in there. Usually the kinds of weapons we're worried about are things like guns and knives. Controlled substances, again, these are those substances that I identified under the Controlled Substances Act. Really what we mean here are illegal drugs. So a controlled substance, but that does not include a controlled substance that is legally possessed or used under the supervision of a licensed healthcare professional. So a student being in possession of their own prescription medication does not count, and it does not include controlled substances that are legally possessed or used under any authority under the act or under any other provision of federal law. Really, we're here, we're worried about illegal drugs. In schools, even though marijuana might be legal in some states, that substance is still not allowed in schools and so I think marijuana would count. And then of course, any other kind of illegal or controlled substance. All right, serious bodily injury. They really, this is really a narrow exception when we're talking about serious bodily injury. Serious bodily injury, and this is just for the purposes of the 45 day. So this is, again, this is to use the exception that we don't care whether or not it was a manifestation of your disability. So, again, these are narrow exceptions. Serious bodily injury under this provision means injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member organ or mental faculty. So they don't mean a black eye, they don't just mean a student goes and assaults another student or a teacher. They're not talking broken blackened eyes, they're not even talking about broken bones, it really has to be something like the student blinded somebody or the student rips somebody's arm off. I mean, it has to be like the person was almost, was on their deathbed for this exception to apply. All right, so we have talked about the procedures under the IDEA, let's move on to student discipline under Section 504. And generally, discipline under Section 504 is treated in a very similar manner as the IDEA, however, there are some distinct differences. So let's talk about some of those differences. It's not exactly the same, but you do follow, you do follow a similar process. So if a student on a Section 504 plan, so this is obviously a student with a disability, commits an infraction that results in a recommendation for a long-term removal, so a long-term suspension or expulsion or something that exceeds 10 school days, you still have to do a manifestation determination. And you need to look at the, 504 regulations don't use the term manifestation determination like the IDEA does, but the regulations basically require that you do an evaluation, determine whether or not the student's disability is related to the conduct. So in essence, by following the MDR procedures, you're following the principles that are laid out for you under Section 504. So we follow those same procedures. We do a manifestation, obviously if the conduct is related to their disability, they go back to their current educational program. If the conduct was not related to their disability, so then you can proceed with discipline. And then there are some other differences which we're gonna talk about here. So drug and alcohol offenses. If a student, if a Section 504 student has committed a violation of the code of conduct related to the use, possession, use or possession of illegal drugs or alcohol, and is currently engaged in the illegal use of drugs of alcohol, then the school may discipline the student in the same manner as his or her non-disabled peers. So current illegal use of drugs is defined as the illegal use of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is current or continuing use is real and ongoing problem. If a Section 504 student has violated the code of conduct relative to possession of illegal drugs or alcohol, but is not currently engaged in the use of drugs or alcohol, then the student is entitled to the protections of Section 504, meaning that you have to go through with the MDR process in order to determine whether or not the misconduct was related to their disability or the school's failure to implement the 504 plan. So unlike the IDEA, Section 504 does not include any specific state put provisions during any due process procedures. However, the Office of Civil Rights has stated that Section 504 has an implicit stay put component as part of its procedural safeguards. And then finally, let's see, let's talk about the provision of services. So Section 504 also does not require that districts or schools provide FAPE to Section 504 eligible students who are long-term suspended or expelled unless those services would be provided to non-disabled students. So again, going back to the example with the IDEA. Under the IDEA, a student is accused of misconduct that would result in a long-term removal. We would do a manifestation determination. And if the team determined that the conduct was not related to a disability or, and/or was not related to the school's failure to implement the IEP, then that IEP student can go ahead and get long-term suspended or expelled like anybody else. But the caveat in that case was that we still had to provide services to that student that were meaningful, that were individualized, so that the student could continue to make progress on their IEP goals, and in the general ed curriculum. Under Section 504, there is not that same requirement. So if a student on a Section 504 plan is, excuse me, is accused of conduct that would result in a long-term suspension or expulsion or some kind of long-term removal, then again, you have to do a manifestation determination review. They are entitled to those same protections. You look at was the conduct related to their disability and/or was the conduct related to the school's failure to implement the 504 plan? If the answer to that question is yes, then the student gets to go back to their placement. If the answer to that question is no, the student's misconduct was not related to their disability, then you would follow the same procedures for long-term suspension or expulsion as you would for any other student. And then for students who are on Section 504 plans, if they're ultimately, if ultimately it's deemed appropriate that a long-term suspension or expulsion is appropriate, and a hearing officer or the governing board decides to implement a long-term suspension or expulsion, that student will serve that disciplinary consequence but there is no requirement to give them any kind of services because they have a 504 plan. So in that circumstance, they're treated just like general education students, they're not entitled to any services during that period of removal. Certainly you could provide services if you want to, so there's nothing in the law that bars you from providing services to a student on a 504 plan, but it's not required under the law. Now, if you do have programs, and this applies to both students who are on IEPs or 504 plans, if you have programs that allow for alternative to suspension options, if you have those options available to general ed students, you need to make those same options available to students with disabilities, so whether they have an IEP or a 504 plan. So make sure that you're not treating the students with disabilities worse than your general ed students. So any of those opportunities to be in an alternative setting to do some kind of alternative to suspension or alternative to expulsion program, or letting people, letting your students reapply for admission early, you need to make sure you're giving those same opportunities to students with disabilities. Okay, now we're gonna discuss some additional tips and reminders. These are just some items that come up often when we are talking about addressing discipline for students with disabilities. And so I'm just gonna talk about a few miscellaneous items. So first, we're gonna talk about what happens when we have students who are not yet identified for services. So they don't have an IEP yet. What do we do for students? Well, students who do not yet have an IEP may still be entitled to the protections under the IDEA. So those protections being, for example, the obligation for the school to conduct a manifestation determination review prior to implementing any discipline, making sure to give the parents their procedural safeguards notice, and also, of course, allowing the parent an opportunity to file a due process complaint if they disagree with the disciplinary decision. So students who are not yet identified under the IDEA will be entitled to those protections if the district is deemed to have knowledge that the student is a student with a disability. And then the IDEA lists out several factors for when a district is deemed to have knowledge that a student is a student with a disability. So those three circumstances, again, where the district is deemed to have knowledge of a disability, which would then entitle the student to protections under the IDEA are as follows, when the parent has expressed concern in writing to district supervisory or administrative personnel or to one of the child's teachers that the child is in need of special education and related services. Another circumstance would be if the parent has requested an evaluation of the child. So if there is a formal request for an evaluation, again, that makes it so that the district is deemed to have knowledge of a suspected disability, we would have to go through the MDR process and then all of the other rights would apply to that student. In that first example, when a parent expresses concern, there's no magic words that the parent has to use, but you need to use your judgment. And then I, of course, would err on the side of providing the protections to the student. So it could be, for example, I believe my child is struggling with their behavior because they might have ADHD, or I think my child might need additional help because of how they're struggling with their behaviors or because of how they're struggling to learn. So any kind of communication where a parent is expressing that a child is in need of some kind of special education or related services, hey, my child might need, I mean, they might come out and say, I believe my child needs special education, but they also might use words like, my child needs additional assistance, or, my child needs specialized support, my child needs some extra tutoring, or, is there any help or extra services that can be provided to my child? So look at it with the lens of, you probably wanna err on the side of counting those kinds of communications as a parent expressing concern about a disability. The third circumstance where the district would be deemed to have knowledge would be if the child's teacher or other district personnel have expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education, or to other district supervisory personnel. So some kind of outreach from a teacher that says, hey, I think this student might need some additional help. Or, can we refer this child to the student study team process or to some kind of intervention process where the student might need extra services? Those would all be circumstances that could make it so that the district is deemed to have knowledge that the student may have a disability. So if a district then knew, or should have known, that the student has a disability under any of those three circumstances described previously, the student may assert any of the protections available to students who are on IEPs. So again, they would be entitled to a manifestation determination review prior to any discipline, and then all the other protections would still still apply. Now, if the district has no basis for knowledge of the student's disability, it can proceed with the proposed discipline. So in that circumstance, if there was no previous communications about a disability, the parent hadn't expressed concerns, teachers haven't expressed concerns, but now the student gets in trouble and all of a sudden the parent is saying, hey, wait a second, I think my child might need an IEP, in that circumstance, you're not deemed to have knowledge because you had no knowledge at the time of the behavioral incident that led to the recommendation for discipline so you can go ahead and proceed with the disciplinary consequence without having to do an MDR. You can proceed as you would for any other general education student. However, now that a parent has expressed concern, you now have a child find obligation to look into those concerns. So in those circumstances, when a parent requests an evaluation, the evaluation must be conducted in an expedited manner and impending the results of the evaluation, the child must remain in the educational placement determined by the school authorities. That can be a disciplinary setting. So if you go ahead and suspended, long-term suspend or expel a student and a parent request an evaluation, they can stay in that disciplinary setting. There's no stay put, there's no returning them to their placement, but you can also do something else. if you also agree that the student might have a disability, you could do an in-school suspension, you can do an alternative to suspension. But just so that you're aware, the educational placement that happens while the evaluation is pending, it can be the disciplinary setting. So again, if the district is deemed not to have, oh, sorry, the district is also deemed to not have knowledge of a disability if the district has conducted an evaluation and determined that a child was not eligible for services and notified the parents of that decision. So if you've already conducted a comprehensive evaluation and decided that a child is not eligible for special education and related services, then you're not deemed to have knowledge. If the parent has refused to permit the district to conduct an evaluation when you've offered to do one, then you're also deemed to have knowledge. And also if the parent has refused services, so if you offered special education and an initial placement in special education and the parent refuses. So if you had made offers in the past to either look into a disability or to offer special ed and the parent refuse, they can't then come back and assert the privileges and protections under the IDEA. Again, going back to that circumstance though, but then if the parent is now willing to look into those concerns as well, you could still proceed with the discipline, but then conduct another evaluation in an expedited manner. Okay, moving on to another topic, just a reminder about bullying infractions. So the Office of Civil Rights and the Office of Special Education Programs have both issued guidance regarding the obligation to provide additional services and supports to students who are bullied and harassed due to a disability. So anytime a student with a disability is victimized because of their disability, it's important for the IEP team or the 504 team to convene a team meeting to look into the situation and decide what kinds of additional supports might be necessary for that student. For example, does there need to be some additional counseling? Does the student need some additional services to address their social emotional needs? So that guidance has been issued and is very clear. But oftentimes, what some districts forget is that the same obligation also exists if a student with a disability is the aggressor. And so I'm bringing this up in our discipline presentation 'cause oftentimes districts forget about this part. If a student with an IEP or with a 504 plan, a student with a disability is the one to have alleged in misconduct pertaining to bullying or harassment of other students, it's also important to look at that student's IEP and decide are additional supports necessary so that bullying behavior does not continue to reoccur. So we also have to be on the lookout again for those inappropriate behaviors, for example, bullying, that are gonna get the student in trouble, get them suspended, and ultimately keep them away from their educational program. It's incumbent upon the districts to look into that to see what kinds of things do we need to do with the student. Do we need to do some more social emotional training? Do we need to have the student meet with a counselor so that they understand the ramifications of their actions? Do we need to engage in social stories? If the student has a particular disability where they just don't understand how their conduct is construed as bullying, do we need to work on the communication skills for that student? Do we need to work on perspective taking? So it's important, again, that the IEP team take a look at those situations and provide additional supports for students who are the, students with disabilities who are the aggressors. So we do have to make sure that we are doing our part to put in place those procedures and supports so that that conduct does not continue to occur and continue to impact the student's educational program in a negative way. And then finally, one last tip. So when it comes to criminal activity, many states have laws in place that require school employees to report criminal conduct to the police. So that could include students who assault other students and physically injure them. I know in Arizona we have child abuse reporting requirements that also include an obligation to report student on student abuse anytime a child is intentionally physical injured. And so I know that the same obligation exists in other states, also, if a student brings a gun to school or engages in the use, sale, or possession of illegal drugs. Oftentimes schools, you have an obligation to report to law enforcement any kind of criminal activity, certain kinds of vandalism. So that obligation doesn't change just because the offender happens to be a student with a disability. You still have to follow due process and the processes laid out under the IDEA and Section 504 in terms of handling your in-school disciplinary process. Those procedures don't change, you have to follow those. But there's nothing in the IDEA or in the Section 504 that prohibits school employees from contacting law enforcement for any criminal conduct, even if that criminal conduct is committed by a student with a disability. So the IDEA, and I have the quote on the slide here, nothing in Part B shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to 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. So again, you still have to follow your internal school procedures when going through with school discipline, but nothing changes in terms of reporting students' criminal activity to law enforcement. So don't feel like your hands are not tied when it comes to those really severe consequences. And with that, I really want to thank you for your time and for your attention to this very important topic. Hopefully things have been clarified for you and hopefully you learn something new and just why it's important to follow all these procedural items when dealing with discipline as it pertains to students with disabilities. Thank you so much and have a wonderful day.