A suspension of a special education student for 10 days or more is considered a change of placement in special education. When a special education student is suspended for disciplinary reasons for more than 10 days, the law requires that the appropriate members of the IEP Team meet to determine whether the conduct was a manifestation of the student's disability. This meeting is aptly called a manifestation determination.
At the manifestation determination, the IEP Team is required answer two questions:
(1) Was the student's conduct caused by, or did it have a direct and substantial relationship to the student's disability; and
(2) Was the student's conduct a direct result of the district's failure to implement the student's IEP?
If the IEP Team answers either question in the affirmative, then the student's conduct is deemed a manifestation of his or her disability and the school district cannot remove the student from his or her current placement. If, however, the IEP Team answer “no” to both questions, the school district can use the relevant disciplinary procedures applicable to children without disabilities, in the same manner and for the same duration.
If a special education student is removed from his or her current placement (e.g., suspended), the school district must continue to:
(1) provide the student with educational services; and
(2) provide, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.
Interim Alternative Educational Setting
There are special circumstances in which school districts can remove a special education for not more than 45 days without regard to whether the behavior is determined to be a manifestation of the student's disability. This is called an interim alternative educational setting. The school district has discretion to place a special education student in an interim alternative placement, in cases where the child allegedly:
(1) carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a State or local educational agency;
(2) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency; or
(3) has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency.
If parents disagree with the results of a manifestation determination, they can request an impartial due process hearing. Following the due process hearing, an Administrative Law Judge (“ALJ”) will issue an order either affirming or reversing the school district's findings.