What Is the Process in Michigan for Resolving Disputes Regarding Suspensions and Expulsions?

by Ron Greiner

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Case Histories of Michigan Special Education Disputes Regarding Suspensions and Expulsions

Introduction

The following information illustrates the legal and procedural principles outlined in the FOCUS on Results document GATA 04-01, “What Is the Process in Michigan for Resolving Disputes Regarding Suspensions and Expulsions?” The case histories presented here describe how the intermediate school district (ISD), the 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. The regulations cited come from the 2002 Administrative Rules for Special Education.

• Case #1: An allegation regarding the districts right to suspend a student with disabilities, even for 1 school day.
  
• Case #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.
  
• Case #3: Allegations 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.
  
• Case #4:  Allegations related to 1) establishing the days of suspension (including the status of days in 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.
  
• Case #5:  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.
  
• Case #6:  An allegation related to a suspected disability.
  
• Case #7:  An allegation related to accurately counting the days of suspension.
  
• Case #8:  An allegation addressing whether a suspension of any length requires the district to provide a free appropriate public education (FAPE) to the student.
  
• Case #9:  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).
  
• Case #10:  Allegations related to 1) in-school suspensions, 2) suspension from the bus, and 3) suspension from a special education class.

Case #1: An allegation regarding the districts right to suspend a student with disabilities, even for 1 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 restricting 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 2 ways:

• A student is suspended for more that 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)].

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Case #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, she restated her allegation. The OSE/EIS found that only 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.* 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.

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Case #3:  Allegations 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.

A student with complex health and behavior needs moved to a new district. The new district agreed to implement the previous district’s IEP, without knowing that the complete IEP also included an attached mediation agreement. (The attached mediation agreement required several related services including school social worker (SSW) services, training in a specific behavior management system, and training in some specialized health interventions.) Not being aware of the attached agreement in September, the district did not provide the SSW services and did not train the principal and the teacher in the required techniques.

The OSE/EIS investigator interviewed staff and learned the student’s third grade teacher sent him to the office in late September and again in early October for not responding to verbal prompts. The principal reported that the student behavior escalated each time and the student required restraint. The principal suspended the student for the second altercation, but he did not identify the length of the suspension other than to say that the parent would have to meet with him before the student could return to school. The district scheduled several meetings, but the parent cancelled them. The student missed 22 days of school before the district informed the parent that the student could return immediately to school and the district would implement the previous IEP, including the services described in the student’s mediation agreement.

The parent, however, informed the district that she would not return the student because of her concerns about the earlier physical interventions. The parent filed a complaint with multiple allegations related to the district’s actions leading up to and involving the suspension. The ISD noted that the district was not prohibited from setting a precondition on the student’s re-entry, but when that precondition resulted in the student missing more than 10 consecutive school days, the district had unilaterally imposed a change of placement [constituting violations to Sections 300.519 and 300.520(a)].

The ISD also investigated an allegation related to the parent’s request for a meeting to explain the details of the incidents that led to the suspension. The ISD noted (per the U.S. Supreme Court Case, Goss v Lopez) that providing the parent with some form of notice about a suspension was one of the minimum requirements that districts must follow when suspending general education students. The ISD found no violation.

The parent appealed the allegation about the district’s not meeting with her. The OSE/EIS interviewed the parent, and she stated that she received a copy of a suspension notice from the district. The suspension notice indicated a reason for the suspension. The OSE/EIS reviewed Rule 340.1701a(c), which defines the items that can be the subject of a special education complaint. The OSE/EIS found that no special education regulation requires a district to meet with a parent when it suspends a student. Additionally, the OSE/EIS did not have the authority to rule on what is essentially a standard for students without disabilities.

The parent also raised a new allegation related to the district’s failure to train staff in the specific behavior management system and in some specialized health interventions. The OSE/EIS interviewed the principal and found that the district did not initially train staff in either area, but did so during the interim between the suspension and the letter inviting the student back to school. The OSE/EIS found a violation because the district did not implement the complete IEP, which included the mediation agreement.

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Case #4:  Allegations related to 1) establishing the days of suspension (including the status of days in 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.

A parent filed a complaint alleging that the district suspended a student with disabilities on 15 school days. The OSE/EIS interviewed the parents, who identified 10 school days when the district sent her written information that verified the student’s suspension. She also stated that there were several days when the district called her and suggested she take the student home. She was able to provide documentation of 2 of those days, but she was certain there were several more.

The OSE/EIS reviewed the relevant IEP and established three findings of fact:

• The parent attended and agreed to the IEP.
• The IEP explicitly referred in several places to a behavior intervention plan (BIP) that was to be revised throughout the school year.
• Each reference indicated that the BIP could be modified without reconvening the IEP team (IEPT).

The OSE/EIS interviewed staff. The director stated that the district suspended the student for 10 school days because of behavior problems. He also stated there were several additional days when the parent came to school to take the student home early because the student was having a “bad day.” However, the district did not consider these as days of suspension. The special education teacher stated that she used a weekly log form to communicate with parents. She provided copies of the student’s weekly reports, which documented two significant findings:

• The majority of the suspensions related to physical aggression toward adults.
• There were 5 days when the district contacted the parent about behavior problems and the parent took the student home.

The OSE/EIS found that unless a BIP (which was attached to an IEP) documented that suspension was an agreed-to strategy, contact with a parent that resulted in the student’s removal from the education setting was, in effect, a suspension. The district suspended the student for 15 days. The days of suspension were cumulative, not consecutive, but there was a pattern related to physical aggression. The OSE/EIS found that because the suspensions amounted to a change of placement, the district’s failure to provide the required protections violated several standards:

• Rule 300.520(b)(1)(ii)(c), revising the BIP and convening an IEPT meeting to review and revise the IEP.
• Rule 300.523, conducting a review of the relationship between the disability and the behavior subject to discipline.
• Rule 300.121(d), no cessation of services.

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Case #5:  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 18-year old student filed a complaint because she was excluded from a general education dance class. On appeal, she stated she has a bi-polar disorder that affected her behavior in a general education class. She also reported the district suspended her from that class for the rest of the year (approximately 12 weeks of school). She clarified that the district did not: 1) inform her of her rights at the time the district imposed discipline, 2) develop a FBA plan, 3) conduct a manifestation determination review (MDR) of the relationship between the disability and her behavior, 4) maintain her in her previous placement, and 5) convene an IEPT meeting to change the general education class to a special education class.

The OSE/EIS reviewed the IEP. It indicated the student attended the IEPT meeting and agreed with it, that she was eligible for special education under rules related to the category “otherwise health impaired” (OHI), she was to receive one period of LD program and five periods of general education per day. The IEP did not refer to a BIP and did not exclude her from any general education or extracurricular activities (except in the special education class).

The principal stated that the student had several behavior incidents in the dance class. The teacher sent the student to the office because she was very concerned that the student was presenting a danger to peers. This pattern escalated until 3/20/04, when the teacher was concerned that the student was explosively volatile and suggested she go to the office. The principal met later that day with the teacher. The teacher indicated she was concerned about peers’ safety and did not want the student back in class. The principal told the student she could not continue in the general education class and offered two options, each with full credit: going home during the period or going to a special education class. The principal also indicated that the student selected the special education class option. The principal did not provide the student with any written information about rights and she did not pursue further administrative actions.

The director of special education stated that initially he was not aware that the principal had excluded the student from the dance class. He also indicated that the student did not have a BIP, the district did not convene an IEPT meeting to develop a plan for a functional behavior assessment (FBA), and the district did not conduct a MDR.

With respect to whether or not the student was dangerous, the OSE/EIS noted that the district had two options:

• Initiate an expedited (speeded up) due process hearing; request the hearing officer (HO) review the district's interventions and the appropriateness of the student's current placement and order an interim alternative educational setting (IAES) if the district produces substantial evidence that the student is dangerous (Section 300.521) or
• Petition a court of competent jurisdiction to order the student not to attend the district's program.

In that the district did not pursue either of these options, the OSE/EIS found that participating in a scheduled general education class consists of more than simply receiving credit; they found that removing a student with disabilities for more than 10 school days constituted a change of placement [300.519(a)]. The OSE/EIS also found that the district should have informed the student about procedural safeguards on the day the district changed the schedule, 3/20/04 [300.523(a)(1)]. When the removal went past the tenth school day, the district was obligated to complete several functions. First, the district should have convened an IEPT meeting to develop a plan for conducting a FBA [300.520(b)(1)(i)]. After completing the FBA, the district should have convened an IEPT meeting to develop a BIP [300.520(b)(2)]. Last, the district should have convened an IEPT meeting to conduct a MDR of the relationship between the behavior and the disability [300.523(a)(2)(b)(c)(d)(e)].

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Case #6:  An allegation related to a suspected disability.

The parent filed a complaint that a public school academy (PSA) suspended a student with a suspected disability on multiple occasions. She claimed the student had a Section 504 plan prior to enrolling in the PSA and she had previously raised concerns about a suspected disability with the PSA, with no response. The PSA suspended the student for 3 school days in October of 2003. After an incident on 12/12/03, the PSA suspended the student and then decided to expel him. This second suspension lasted 20 school days.

The ISD reviewed the teacher’s copy of the student’s attendance record to identify: a 3-school day suspension in October 2003, a 3-school day suspension that began in mid-December, and a suspension just before the holiday break that included 2 school days before the break and 14 school days after the break. The ISD also reviewed the student’s education record and found the student was not eligible for special education under the Individuals with Disabilities Education Act (IDEA).

The parent requested a state investigation. The parent confirmed the days of suspension as identified in the ISD investigation report, except he noted there was one continuous suspension that began in mid-December and lasted through mid-January. He clarified that the mid-December suspension was initially for 3 school days. When the parent attempted to return the student to school on the fourth day, the principal told him the PSA intended to ask the school board to expel the student during its next meeting in mid-January. The principal refused to let the student come back to school, and the suspension continued through mid-January. The parent also added that he submitted a written special education referral in early-January 2004 and the PSA should have immediately returned the student to school. The parent added that the PSA board subsequently decided not to expel the student; the PSA re-enrolled the student in mid-January.

The OSE/EIS interviewed the principal, who confirmed the October 2003 suspension for 3 school days. With respect to the 3-school-day suspension in mid-December, the principal stated that after she suspended the student for 3 school days, she contacted the PSA operations director to review the situation. They decided that in light of previous incidents and the current incident, the academy should proceed with expulsion. With respect to any pre-referral procedures, the principal indicated that the PSA does use a child study process, but that process was not initiated for this student. The OSE/EIS reviewed the student’s education record and found no evidence of child study forms or special education referrals (other than the mid-January 2004 referral).

The OSE/EIS used Section 300.527 as the governing regulation, along with pages 12628-9 of Attachment 1: Analysis of Comments and Changes (to the IDEA ‘97). These provide guidance on protections for students not currently eligible for special education and who are facing disciplinary actions that amount to a change of placement if they were eligible for special education. Section 300.527 describes four types of situations in which a district would have a “basis of knowledge” that would require the district to treat the currently-not-eligible student as if the student were a student with a disability.

Essentially, the four tests, or conditions, are as follows:

• The parent must have expressed a specific concern in writing to someone in the district.
• The parent or someone in the district must have mentioned a suspected disability to the director of special education.
• The student’s behavior or performance had to have suggested a disability.
• The parent must have previously requested an evaluation for special education and the district did not evaluate the student or did not provide the parent with written notice that the student was not eligible.

With respect to the first two conditions, the commentary clarifies that the person expressing the concern must have referred to a specific disability. With respect to the third condition, the commentary clarifies that the person observing the student must have raised the concern in a manner that is specific to a special education disability. As an example of how narrowly these conditions are to be interpreted, the commentary clarifies that if a student is eligible with a disability under Section 504, that eligibility does not in and of itself equate to a suspected disability under the IDEA.

The OSE/EIS found that the parent was correct in that the ISD did not accurately calculate the number of days of suspension. However, the OSE/EIS also found that the ISD correctly used Section 300.527 as the proper governing regulation. Satisfying any one of the four conditions would have been sufficient to require the PSA to afford the student protections before imposing the discipline. With respect to the student and the findings that were verifiable, the student did not meet the minimal threshold of any of the tests.

The parent had also claimed that the PSA should have immediately stopped the suspension and allowed the student back in school when he initiated the IDEA special education referral in early January. The OSE/EIS disagreed, finding that Section 300.527 states that if a student does meet one of the four tests, and someone initiates a referral for a suspected disability, the district can continue the discipline until the evaluation and IEP are complete.

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Case #7:  An allegation related to accurately counting the days of suspension.

A parent filed a complaint alleging that a public school academy (PSA) suspended a student with disabilities for more than 10 school days. Using the PSA attendance log, the ISD identified 10 school days of suspension, beginning in early February 2004 and ending in early April 2004. The ISD found no violation.

On appeal the parent stated that the PSA did not count days of suspensions accurately and suspended the student for more than 10 school days. Specifically, the parent stated the PSA frequently called her and asked her to take the student home early, but did not count these as days of suspension. The parent added that because the PSA did not document suspensions accurately, the staff did not implement some of the requirements related to suspensions for over 10 school days. Specifically the PSA did not review the behavior intervention plan (BIP) after the tenth day of suspension and did not consider whether to provide services.

The OSE/EIS reviewed the PSA attendance log and confirmed the 10 school days of suspension and the days when the student was supposedly present. The OSE/EIS also noted that attendance on 2 different dates was coded as “in school suspension” and “unexcused absence,” respectively.

The OSE/EIS reviewed a memorandum from the assistant principal on PSA letterhead, dated early May 2004. It identified 2 school days of suspension that were not recorded on the attendance log. The OSE/EIS also reviewed a second memorandum from the assistant principal, which was not on PSA letterhead, dated mid May 2004. It indicated the student was suspended for 1 school day. This day was coded “in school suspension” on the attendance log. The OSE/EIS also reviewed a third memorandum from the assistant principal, which was not on PSA letterhead, dated early June 2004. It identified another 1 school day suspension. This day was coded “unexcused absence” on the attendance log. The OSE/EIS interviewed the current principal, who stated that copies of the two memoranda that were not on PSA letterhead were in the student’s file.

The OSE/EIS also reviewed Question and Answer #38 from Appendix A to the IDEA final regulations, which states that an IEP can identify suspension as an appropriate strategy in addressing a student’s behavior.

The OSE/EIS found that the PSA attendance log did not accurately record suspensions, and the PSA suspended the student for minimally 13.5 school days. The PSA reached the tenth school-day-of-suspension threshold on April 4, 2004, the last school day in a 5-school-day suspension. The PSA informed the parent about that suspension on March 27, 2004, and the PSA should have convened the manifestation determination review (MDR) within 10 school days [Section 300.523(a)(2)]. Also, the PSA should have considered reviewing and possibly revising the student’s BIP after the subsequent suspensions [Section 300.520(c)(1)(2)]. Last, the PSA should have considered whether the student needed related services during the subsequent suspensions [Sections 300.121(d)(2)(i)(A)(3)(i)(ii) and 300.520(a)(1)(ii)].

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Case #8:  An allegation addressing whether a suspension of any length requires the district to provide a free appropriate public education (FAPE) to the student.

A parent filed a complaint alleging the district suspended a student with disabilities for several days and the district should have provided special education programs and related services during each of those days. The ISD reviewed the student’s discipline record and noted that the student was suspended a total of 8 school days during the 2003-2004 school year. The ISD found that the district was not obligated to provide services until the 11th day of suspension [Sections 300.520(a)(1)(ii) and 300.121(d)(1)].

The parent appealed to the state, based on the same facts. After reviewing the facts and the applicable regulations, the OSE/EIS investigator concurred with the ISD.

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Case #9:  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 on 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.

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Case #10:  Allegations related to 1) in-school suspensions, 2) suspension from the bus, and 3) suspension from a special education class.

A parent alleged that the district did not convene a manifestation determination review (MDR) for a student with disabilities in a timely fashion. The ISD investigation found that each of the student’s suspensions was for less than 10 school days and the series of suspensions did not constitute a pattern.

The parent disagreed and requested a state investigation. She clarified her appeal to mean that the district suspended the student as follows:

• 13 1/2 days of out-of-school suspensions (5 consecutive school days in early November; 5 consecutive school days at the end of February; and 31/2 consecutive days at the end of May).
• 6 in-school suspensions (2 consecutive days in mid-November, 1 day in mid-December, 1 day in mid-January, 1 day in early-February, and 1 day at the end of April).
• The last 4 in-school suspensions were from the IEP-required resource room (RR).
• The district suspended the student from the bus for 10 consecutive school days, 5 of them simultaneous with the 5-day out-of-school suspension at the end of February, plus the next 5 school days.

The OSE/EIS reviewed the parent’s documentation of the suspensions, provided to her by the district. These documents verified the accuracy of her data. These documents also identified the reasons for the out-of-school suspensions: 1) disruptive and disrespectful behavior for the first 5-school-day suspension; 2) fighting on the general education bus for the second 5 school-day suspension, with an additional 5 school days of suspension from the bus; and 3) refusing to open his textbook for the 3 1/2-school day suspension.

The OSE/EIS interviewed district personnel. The director verified there were no discernible patterns to the behaviors that led to discipline. The RR program teacher stated that she provided the student with his assignments during the in-school suspensions.

The OSE/EIS found that multiple suspensions of less than 10 school days may cumulate to more than 10 total school days, but may not constitute a change of placement if there is no pattern to the suspensions (commentary to Section 300.520). Suspensions from a bus do not count as days of suspension if the student is transported on a general education bus (commentary to Section 300.520). In-school suspensions do not count as days of suspension if the district provides the student with the opportunity to progress in the general education curriculum and work on annual goals (AGs) and instructional objectives (IOs). Suspensions for part of a school day count as full days of suspension [Section 300.9(c)]. Given these regulations and the factual circumstances, the OSE/EIS found neither a single suspension of more than 10 school days nor a pattern to the suspensions, and the district was not required to conduct a MDR.

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Sources

• Revised Administrative Rules for Special Education (2002), Michigan Department of Education, State Board of Education, Office of Special Education and Early Intervention Services.
• Attachment 1 (to the IDEA ‘97): Analysis of Comments and Changes (1999).*
• Appendix A (to the IDEA ’97): Notice of Interpretation on IEPs (1999).*

* Note: On October 22, 1997, a Notice of Proposed Rulemaking (NPRM) was published in the Federal Register to amend the regulations under Part B of the Individuals with Disabilities Education Act (IDEA). The purposes of the NPRM were to implement changes made by the IDEA Amendments of 1997, and make other changes that facilitate the implementation of Part B. The changes made since the NPRM are based mainly on public comments received.

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