What Is the Process in Michigan for Resolving Disputes Regarding Suspensions and Expulsions?
by Ron Greiner
Editor's Note: The OSE/EIS is providing information in this feature with a reminder that each due process hearing decision and each complaint investigation decision is based solely on factual circumstances, as presented in individual cases. Specific cases presented here should not be the basis of generalizations about dispute resolution.
When a student with a disability, or a student who is suspected of having a disability, engages in behavior at school that requires suspension or expulsion, school districts must consider a variety of factors before acting. This FOCUS on Results document will review complaints that have involved a variety of student behaviors. [Unless identified otherwise, “student” means a student with an identified disability under the Individuals with Disabilities Education Act (IDEA) and Michigan law.]
This document will also describe some of the disciplinary actions that districts have applied to these students. In reviewing these complaints, this document will focus on the rights of students and the responsibilities of districts under the IDEA and Michigan law. It will outline the legal and procedural principles that affect decisions about disciplinary actions for these students. It will describe the steps parents or other concerned adults can take to ensure that a district does not improperly suspend or expel a student for behavior incidents at school.
Q. What legal and procedural principles guide discipline decisions for these students and their families?
A. All discipline decisions regarding students with disabilities must reflect the following principles:
- Students have rights to special protections if the behavior that led to disciplinary action is related to their disability.
- A student’s individualized education program (IEP) can describe special interventions for addressing a student’s challenging behavior; it must address positive behavior supports (PBS) if a student’s behavior impedes the student’s learning [300.346(a)(2)(i)].
- A suspension of more than 10 school days in a school year represents a significant threshold; it is important to distinguish whether the days of suspension occur consecutively (in a row), or cumulatively (separate suspensions that add up to more than 10 days) [see Figure 1].
- Distinctions must be made with respect to the type and severity of the behavior.
- Schools must follow a variety of procedural steps when they impose disciplinary action, and the parent must be made aware of these steps.
- The student always retains the right to a free and appropriate public education (FAPE).
- Students with a disability retain all of the rights that general education students have regarding suspension and expulsion.
- School districts have special authority and responsibility when the behavior involves weapons or illegal substances or the student’s behavior is dangerous.
Q. Why might a parent or other concerned person file a complaint regarding disciplinary action for student behavior?
Figure 1 |
Most allegations about suspensions involve three threshold questions:
- Do the number of days of suspension involve 10 or more school days?
- If more than 10 school days, are the days consecutive (i.e., more than 10 school days in a row), or are they cumulative (i.e., at least 2 separate suspensions in a school year that added together total more than 10 school days)?
- If the number of school days is more than 10, but they are not consecutive, are there any patterns to the suspensions?
In addressing the questions, Individuals with Disabilities Education Act (IDEA) regulations clarify the following:
- A partial day suspension equates to a full day of suspension (300.9(c)(1)).
- Suspensions involving more than 10 school days constitute a change of placement (300.519(a)).
- A pattern of suspensions that equals more than 10 school days also constitutes a change of placement (300.519(b)).
- Districts must provide special protections to students with disabilities whenever there is a change of placement.
These protections can include the following district responsibilities:
- Providing services during the suspension (300.520(a)(1)(ii)).
- Conducting functional behavior assessments (FBA) (300.520(b)(1)(i)).
- Developing and revising behavior intervention plans (BIP) (300.520(b)(1)(ii)(2)(c)(1)(2)).
- Conducting manifestation determination reviews (MDR) of the relationship between the student’s behavior and the student’s disability (300.523(a)(b)(c)(d)).
Source: Revised Administrative Rules for Special Education. (2002). Michigan Department of Education. |
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A. Usually, a complaint involves an allegation that a district violated one or more of the principles listed previously. Here are some reasons someone might consider filing a complaint:
- The district suspended the student for more than 10 school days in a school year; or the district expelled the student.
- The district didn’t inform the parent about the suspension; or didn’t provide the student with any education during the suspension.
- The district suspended the student for behavior that is included in an IEP or for behavior related to a disability.
- The district suspended the student for more than 10 school days but didn’t complete a functional behavior assessment (FBA); the district did not develop a behavior intervention plan (BIP) or did not revise the BIP.
- The district suspended the student but didn’t conduct a manifestation determination review (MDR) of the relationship between the behavior and the disability.
- The district assigned the student to in-school suspension.
- The district should have suspected that the student had a disability before imposing discipline.
- The district called the parent to come get the student when the student had a behavior problem.
- The district suspended the student from riding the bus and 1) the student missed school or 2) the parent had to transport the student to school.
Q. What will the investigator review during the investigation?
A. Generally, the investigator will examine factors in the following categories:
- Factors related to the total number of days of suspension.
- Is the total number of days of suspension in a school year more than 10?
- If more than 10 school days in a school year, are the days of suspension consecutive (in a row)? Are they cumulative (multiple suspensions, with each separate suspension being fewer than 10 school days)?
- If the days of suspension are cumulative, how close together are they? Are the situations and the student’s behaviors similar?
- Factors related to the student’s IEP.
- Did parents participate in the IEP team meeting process? Did they agree with the IEP and information on procedural safeguards?
- What was the timing and content of the IEP? Does the IEP document one or more of the following: a meeting in which the purpose relates to discipline or behavior; incidents of behavior that impedes learning; annual goals (AGs) and instructional objectives (IOs) that relate to behavior issues or describe intervention strategies; ancillary (supplementary) services related to behavior; or accommodations and adaptations related to behavior.
- Factors related to procedural steps.
- What was the timing and content of any FBA?
- What was the timing and content of any BIP, including whether it is attached to the IEP?
- What were the timing, content, and decision of any MDR?
- Factors related to the provision of programs and/or services.
- Did the school provide services during disciplinary action to assure that students received a free and appropriate public education (FAPE)? What was the process used to determine those services?
- If a denial of services occurred, what required compensatory education services were offered and/or received?
- In the case of in-school suspension, what was the nature of the student’s instructional activity and its oversight?
- Factors related to a suspected disability:
- Does the student’s record show that the school or district had a “basis of knowledge” to suspect a disability (see Figure 2)?
Q. What other aspects of the student’s IEP does the investigator review?
A. Depending on the student’s behavior and the discipline imposed, the investigator may also review the following:
- The use of positive behavior supports (PBS) to address behavior problems.
- The specific special education programs and related services the student needs.
- The provision of those programs and services. For example, if a student is suspended for more than 10 days, and the reviewer discovers that the school failed to provide school social worker (SSW) services as directed in the student’s IEP, the investigator may suspect a connection between the behavior incident and the failure to provide services.
- Any exclusion from general education or extracurricular activities. (If an IEP excludes a student from a code of conduct in order to participate in extra-curricular activities, then the district can’t apply the code of conduct to the student.)
Figure 2 |
Basis of Knowledge or Prior Knowledge
There are occasions when a student has not been diagnosed with a disability, but a parent or other adult alleges the student should have been evaluated for a disability. The Individuals with Disabilities Education Act (IDEA) regulations require the reviewer to determine whether or not the school or district had a “basis of knowledge” to suspect a disability.
In order to determine if the school district had “prior knowledge” of a disability related to the behavior incident, the reviewer will try to determine whether any of the following factors are true:
- The parent or other adult has expressed something in writing to someone in the school district that the student is in need of special education-related services.
A parent can’t be held responsible for giving the right information to the wrong school person.
The parent’s expression of concern must include enough information to indicate the parent believes the student needs special education. For example, the parent can’t just say the student “has a behavior problem.” The behavior of the student must indicate that s/he needs these services.
- The student behavior or performance shows a need for special education.
- The parent requested a special education evaluation prior to incident.
- A teacher or other school staff member has expressed concern using Student Find or another referral procedure.
If the reviewer answers “yes” to any of these questions, the district must immediately evaluate the student’s need for special education services. The student may ask for protections from disciplinary action until the eligibility issue is resolved.
For more information, see FOCUS on Results GATA 04-02 or Special Education Considerations in Student Discipline Procedures (March 2000.) |
Q. What happens if a behavior incident involves weapons, drugs, or other dangerous behavior?
A. In addition to the short-term removals described previously, school authorities can unilaterally remove a student with a disability to an interim alternative educational setting (IAES) for up to 45 days at a time if the student: 1) has brought a weapon to school or to a school function (or is found to have a weapon that he or she obtained while at school or a school function) or 2) knowingly possessed or used illegal drugs or sold or solicited the sale of controlled substances while at school or a school function. This is true whether or not the offenses are a manifestation of the student's disability.
If school officials believe that a student with a disability is substantially likely to injure self or others in the student's regular placement, they can ask an impartial hearing officer to order that the student be removed to an IAES for a period of up to 45 days. If school officials believe that it would be dangerous to return the student after the 45 days, they can ask an impartial hearing officer to order that the student remain in the interim alternative educational setting for an additional 45 days and can request subsequent extensions.
In all these cases, however, the IEP team must determine the extent to which services must be provided in the IAES. Placements in such settings must:
- Be selected so as to enable the student to continue to progress in the general curriculum and to continue to receive services and modifications described in the student's current IEP, that will enable the student to meet the goals set out in that IEP.
- Include services and modifications to address the student's behavior that are designed to prevent the behavior from recurring.
Q. What if the school suspends a student from riding the bus?
A. A school may not suspend a student for more than 10 days from riding the
bus if:
- Lack of transportation denies the student the opportunity to participate in a free and appropriate public education, and
- Transportation is mandated as part of the student’s IEP (special transportation).
If no special transportation is required by the IEP, then a student can be sus-pended from the bus, even for more than 10 days.
Q. What steps can parents or other concerned adults take when they suspect a violation has occurred?
A. Special education complaints must be put into writing and must include the facts on which the allegation is based. Each signed, written complaint must be given/sent to a district or intermediate school district (ISD) administrator. A call to the local ISD to ask for the name of the complaint investigator may speed up the process.
Case Histories Provide Examples of How Investigators Review and Resolve Disputes Regarding Suspension and Expulsion
The case histories presented here describe how the intermediate school district (ISD), the Regional Educational Service Agency (RESA), or Office of Special Education and Early Intervention Services (OSE/EIS) ruled on various allegations related to just a few factors regarding student discipline. The regulations cited come from the Revised Administrative Rules for Special Education (2002).
Case History #1
An allegation regarding the district’s right to suspend a student with disabilities, even for one school day.
On June 4, 2004, a middle school student asked her special education teacher to excuse her to use the restroom. When the teacher refused, the student left the classroom and used the restroom. The teacher contacted the principal, who intervened with the student but allowed the student to return to the classroom. When the student arrived home, she told her parent about the incident. The parent left a voice mail message with the teacher that she would visit the school the next day to address the teacher’s handling of the incident.
When the parent arrived at school, she requested the student be placed with a different special education teacher. The principal denied the request and informed the parent that the student would have to be in the office for the rest of the school year (3 days). The parent responded that she was withdrawing the student from the school for the final 3 school days because sitting in the office was not an acceptable option. She filed a complaint alleging that the principal’s restriction of the student to the office was an illegal suspension.
The ISD reviewed the student’s record and noted there were no suspensions during the 2003-2004 school year. The individualized education program (IEP) and behavior intervention plan (BIP) did not identify any specific requirements related to behavior or discipline. In an interview, the principal stated that the parent unilaterally withdrew the student. The ISD found no violation.
During the OSE/EIS investigation, the parent restated the same factual circumstances. Her perspective was that the district suspended the student and that the suspension was illegal. The principal’s perspective was that the parent withdrew the student and his action did not constitute a suspension. The OSE/EIS found that even if the district suspended the student, the principal was not prohibited from taking that action as long as it did not equate to a “change of placement” [Section 300.520(a)(1)]. A disciplinary “change of placement” can occur in two ways:
- A student is suspended for more than 10 consecutive school days [Section 300.519(a)], or
- A student is suspended in what amounts to a pattern of suspensions that total more than 10 school days [Section 300.519(b)].
Case History #2
An allegation related to district requirements to provide the parent with written information about the reason for suspension and to meet with the parent.
A parent alleged that the district did not meet with her to explain the situation in which her child’s behavior was addressed or provide her with a written reason for suspending her child for 3 school days. The ISD found no violation.
On appeal, the parent restated her allegation. The OSE/EIS found that one special education regulation [Section 300.523(a)(1)] requires a district to provide a parent with written information about a suspension, along with a copy of procedural safeguards (see Resources). This requirement occurs in three very specific situations:
- When a district changes a student’s placement to an interim alternative educational setting (IAES) in situations involving weapons or illegal substances [Section 300.520(a)(2)(i)(11)].
- When a hearing officer (HO) decides that a district has substantiated that a student is dangerous to self and/or others, and orders the student into an IAES.
- When a district suspends a student for what amounts to a change of placement (Section 300.519).
The district must provide this written information to the parent on the day the district decides to pursue one of the three courses of action described above. The OSE/EIS also found that the regulations required the district to offer to meet with the parent only to conduct a manifestation determination review (MDR) [Section 300.523(b)(c)(d)]. A MDR is only required for a suspension that equates to a change of placement.
Case History # 3
An allegation addressing the type and amount of information that a district has to provide a parent for a suspension that is less than 10 school days (not a change of placement).
A complainant alleged that the district inappropriately suspended a student with disabilities for 4 school days when the student threatened a peer by using his hand to make a cutting motion across his throat. The ISD found that the district did not violate applicable regulations because the suspension was for less than 10 school days.
On appeal, the complainant clarified the allegation to mean that the suspension was illegal, because, in suspending the student, the district did not identify whether the student intended to do bodily harm. The OSE/EIS interviewed the principal. The principal stated that during a physical education class, a peer asked the student to stop fidgeting. The student responded by making a cutting motion on his own throat while looking at the peer. The principal also indicated the district has a zero-tolerance policy with respect to threats of violence, and he suspended the student for 4 school days. The OSE/EIS found no violation because suspensions of up to 10 school days were the right of the district.
These stories highlight just a few case histories describing how the intermediate school district (ISD) or regional educational service agency (RESA), or the Office of Special Education and Early Intervention Services (OSE/EIS) ruled on various allegations related to student discipline.
If you need print copies of these case histories, call the Center for Educational Networking at (800) 593-9146 and ask for additional materials related to this issue of FOCUS on Results (GATA 04-01).
- An allegation related to 1) whether the district was obligated to meet with the parent and 2) the impact that not implementing the IEP had on the student’s behavior and the district’s disciplinary action.
- An allegation related to 1) establishing the days of suspension (including the status of days on which the district contacted the parent when the student was having a behavior problem), 2) whether a pattern occurred, 3) the impact of a behavior intervention plan (BIP), and 4) whether the district completed the required procedures when a suspension meant a change of status.
- An allegation related to district responsibilities when a suspension constitutes a change of status and informing the parent of procedural safeguards at the time of suspension.
- An allegation related to a suspected disability.
- An allegation related to accurately counting the days of suspension.
- An allegation addressing whether a suspension of any length requires the district to provide a free appropriate public education (FAPE) to the student.
- An allegation related to 1) in-school suspensions, 2) suspension from the bus, and 3) suspension from a special education class.
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Ron Greiner is a coordinator for Policy and Compliance Program of the Michigan Department of Education, Office of Special Education and Early Intervention Services (OSE/EIS). For more information, contact him at OSE/EIS, P.O. Box 30008, Lansing, MI 48909; (517) 335-0461; Fax (517) 373-7504; e-mail: GreinerR@michigan.gov.
Rule 340.1701a(c) - Rule 340.1701a (c)
“Complaint” means a written and signed allegation that includes the facts on which the allegation is based, by an individual or an organiztion, that there is a violation of any of the following:
(i) Any current provision of these rules.
(ii) 1976 PA 451, MCL 380.1 et seq., as it pertains to special education programs and services.
(iii) The individuals with disabilities education act of 1997, 20 U.S.C., chapter 33, §1400 et seq., and the regulations implementing the act, 34 C.F.R. part 300.
(iv) An intermediate school district plan.
(v) An individualized education program team report, hearing officer decision, or court decision regarding special education programs or services.
(vi) The state application for federal funds under the individuals with disabilities education act.
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