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The following information does not constitute legal advice. If you have questions about a specific situation, please contact your UniServ Director.
Subject to specific IEP requirements, a special education student can be removed from school or class for disciplinary purposes for up to 10 school days per school year without the parents’ permission. Once the 10 day limit has been reached, the special education student and his/her parents are entitled to specific procedural protections before additional removals can be made.
Who can remove a special education student?
Under Wisconsin law, licensed teachers may remove a
special education student from class. See Wis. Stat. § 120.13 (2001-02).
Can a student’s IEP be written
to provide for disciplinary procedures that may differ from those
provided
under either federal or state law?
Yes. An IEP may contain different consequences for various
behaviors, including removal from the classroom, along with procedures
and strategies
to help the student control the behavior, ensure the safety of the student
and others, and to prevent disruption of others’ learning.
Under what circumstances can a special
education student be removed?
Under the IDEA, a special education student may be removed when the
student’s behavior interferes with the teacher’s ability
to teach and the ability of others to learn; or when violent behavior
occurs; or when the student presents or threatens danger to self or others.
Under Wisconsin Statute § 120.13, and within the parameters of IDEA, discussed below, both regular and special education students may be suspended for five days for endangering or threatening to endanger the property, health or safety of others.
For how long may a special education student
be removed?
A student with a disability who is receiving special education services
may be removed for a total of ten (10) days per school year without parental
consent. Ten days is cumulative, and can include partial days. If there
is a question as to whether the behavior was caused by the student’s
disability, the IEP team must conduct a “manifestation determination.” If
the behavior was a manifestation of, i.e., was caused by, the student’s
disability and the student is receiving special education under IDEA,
the 10-day limit applies to removals without parental consent.
If, on the other hand, the IEP team concludes that the behavior was not a manifestation of the student’s disability, then the student is subject to the same disciplinary rules regarding suspension and expulsion as are regular education students.
What if the student will need to be removed
for more than 10 days?
In cases requiring more than 10 days’ removal, the appropriateness
of the student’s placement is questionable. Where the violent or
disruptive behavior continues, it is likely that the placement is not
adequate to help the student replace or extinguish the behavior, as is
required under IDEA.
Thus, if it appears that the ten days will be exhausted, the IEP team should reconvene and perform a Functional Behavior Assessment (FBA), if one has not already been done. A Behavior Improvement Plan (BIP) developed as a result of the Functional Behavior Assessment should be implemented prior to reaching the end of the ten day period.
What if the student’s behavior continues after
the Behavior Improvement Plan has been implemented?
The IEP team should make a determination as to whether the placement
is appropriate, and if not, make a more appropriate placement.
Under IDEA, the IEP team can change placement and the District can implement that placement even if the parent objects. Parents who object may request a due process hearing to determine whether the new placement provides the student with a “free, appropriate public education” in the “least restrictive environment” appropriate for that student, as required.
Under what circumstances should public school employees expect to
be injured by special education students?
None. The safety of staff
or other students should never be compromised because of disagreement
between the district and parent over a change
in placement. Too often, staff are led to believe that being hit, bitten,
kicked, pushed, choked, scratched, etc., are all “part of the job.” Nothing
could be further from the truth.
In fact, staff who are subject to constant injury, as well as fear of injury, are subject to post traumatic stress disorder, depression, and suppression of the immune system. In addition, they become victims of the “battered person” syndrome, where it becomes “normal” to suffer frequent injury. They are also more likely to remain in the unhealthy, unsafe environment because they believe it is their fault they are being injured, since the student “can’t help it.”
Districts must find ways to help the student stop the violent behavior, not simply tell staff that they should expect to be injured by students. Assaulting a teacher is a crime in Wisconsin, and must be deemed a serious matter. In order to protect staff and other students, districts should develop a specific protocol for dealing with violent students, students who hit, bite, kick, scratch, spit, choke, or threaten to injure others. State law even prohibits both damaging property as well as threats to damage property.
Staff need to protect themselves and other students, as well as the injuring student, from injury, even if that means that some elements of the IEP will not be carried out. Protecting other students and self sometimes requires that staff move the class away from the violent behavior.
Where a school district and staff work cooperatively to find a solution, including an alternate placement, to help the student stop the violent behavior, everyone benefits, especially the student whose transition to independence as an adult will be far more successful.
Can a special education student be expelled if the student has made
threats to harm others, or has actually injured others, including staff?
Special
education students can’t be “expelled” based
on the common usage of that term to mean a decision made by a school
board following a hearing before the board to prohibit a student from
receiving any district services for a specified period of time.
In order to remove a dangerous special education student without parental consent where the ten day limit removal has been exhausted, school districts can contact the Department of Public Instruction to arrange an expedited administrative hearing before a state hearing officer.
Therefore, even where their parents do not consent to removal, special education students can be removed to an “interim alternate educational setting” by a hearing officer for up to 45 days.
Thus, like regular education students, special education students can be removed. But unlike regular education students, special education students have the right to enhanced procedures as well as the right to continue to receive IEP services from the district beginning on the 11th day of removal.
What does the District need to prove to obtain a
hearing officer’s
permission for placement in an interim alternate educational setting?
At the hearing, the district must present evidence showing that the
student is substantially likely to injure himself or others and that
the district provided sufficient supplementary services for the initial
placement to succeed.
If the district’s evidence is sufficient, the hearing officer will remove the dangerous student for up to 45 days. During the removal period, IEP teams must devise a placement that addresses the student’s dangerous behavior.
Are services to be provided to special education students during
periods of removal?
Yes, beginning on the 11th day if removal. No continuing services
are required during the first 10 days of removal during each school year.
However, to promote positive parent partnerships, districts may continue
to provide services throughout all removals.
What about in-school suspension?
In-school suspension of special education students could count toward
the ten day removal limit. In-school suspension might not be part of
the ten day removal if there is evidence that the student made progress
toward IEP goals while on suspension. However, the determination is always
made on a case-by-case basis.
What if a special education student has illegal drugs or weapons?
If
a special education student possesses illegal drugs or weapons
in school, the district can unilaterally (without the parents’ consent)
remove the student for up to 45 days. Services must continue during
this period. The IEP team also must determine what placement is
appropriate prior to the end of the 45 day period.
In summary, special education students can be removed from the classroom for up to ten days per school year without parental consent. If the removal will extend beyond that, and the parents refuse consent, the district can seek permission of a hearing officer to place the student in an alternate interim educational setting for up to 45 days. During that time, the district must identify and provide an appropriate placement for the student where he/she can learn to extinguish or replace the behavior giving rise to the removal.
Posted September 23, 2003