PUBLIC SCHOOL DISCIPLINE & CHILDREN WITH DISABILITIES

This brochure explains the rules a school must follow whenever it takes disciplinary action that results in a change in the educational placement of a child in special education. A change in placement occurs when a child with a disability is expelled from school or is removed from school for more than 10 consecutive days. A series of removals that add up to more than 10 school days can also be considered a change in placement, depending on the circumstances. For general information about removal from class, suspension and expulsion, please read the brochure called School Discipline - Removal from Class, Suspension and Expulsion.

Which pupils are affected by the rules?
These rules apply to any pupil who has an IEP and to any pupil who is being evaluated by the school to decide whether the pupil should have an IEP. The rules also apply if a pupil has been referred for an evaluation, or a pupil’s parent or guardian has made a written request for an evaluation, or a parent or guardian has informed the school in writing that the pupil needs special education and services.

When do the rules apply?
These rules apply if a child with a disability is removed from class or suspended for more than 10 consecutive days or expelled for violating the student code of conduct. The school must follow these rules whenever a removal or suspension is for more than 10 consecutive days, and before the pupil may be expelled. Under Wisconsin law, a student will only be suspended for more than 10 consecutive days if the school is planning to expel the student. Depending on the circumstances, these rules may also apply if a pupil is removed or suspended from school for violating the student code of conduct for a total of more than 10 days in the same school year.

What do the rules require? What may the school do?
The school must continue to provide special education and services to a child with a disability even after there is making a change in placement for disciplinary reasons. The school does not have to provide the special education and services in the school or in the same place the pupil was before the removal, suspension or expulsion.

Whenever the school takes any action that results in a change in placement, the school must give the pupil’s parent or guardian written notice of the action and of their rights under the special education law.

Within 10 days of the school’s decision to make a change in placement, there must be a meeting of the school district, the parent or guardian, and any members of the child’s IEP team who the parent or school district want involved, to decide whether the child’s conduct was because of the disability or because the IEP was not followed. This is called a manifestation determination. If the conduct was because of the disability or because the IEP was not followed, then the conduct is a manifestation of the child’s disability. If the conduct was a manifestation of the child’s disability, the IEP team must either conduct an assessment of the child’s behavior and develop a behavior plan, or if there is already a behavior plan, review the behavior plan and make any changes needed to respond to the child’s behavior. The child must be returned to the placement from which he or she was removed, unless the parent or guardian agrees to a change in placement in connection with the behavior plan.

If the pupil’s behavior was not a manifestation of the disability, the child may be disciplined in the same way as any nondisabled student BUT the school must still provide the child with educational services so that he or she may progress toward the IEP goals.

Special rules for weapons, drugs or serious bodily harm.
The school may remove a pupil to an alternative educational setting for up to 45 school days if the pupil has a weapon at school, on school property or a school function; has, uses, sells or tries to buy illegal drugs at school, on school property or a school function; or causes serious bodily harm to another person at school, on school property or at a school function.

Appeals
A parent or guardian may appeal a school’s decision to change a child’s placement for disciplinary reasons, or a decision that the child’s conduct is not a manifestation of the disability by filing a complaint. A request for a hearing must include the following information: the child’s name and address, the name of the school, a description of the problem and the proposed resolution of the problem. DPI has created a model complaint form. It is on the DPI web site at: http://www.dpi.state.wi.us/forms/doc/f2117.doc

The complaint should be sent to:

Assistant State Superintendent
Division for Learning Support: Equity and Advocacy
P.O. Box 7841
Madison, WI 53707-7841

A copy of the complaint should also be sent to the school district. A hearing must be held within 20 days.

The above is intended to provide general information only and is not a substitute for thorough and specific advice on an individual case. Depending on the complexity of your legal problem you may need to consult an attorney for advice or representation.

This was prepared by the staff of Legal Action of Wisconsin, Inc. on behalf of low-income clients and was funded by the Legal Services Corporation, Washington, D.C. 20005 and by the Dane County Bar Association Pro Bono Trust Fund. Any opinions contained herein are those of the authors and should not be construed as those of the Legal Services Corporation or the Dane County Bar Association.

Legal Action of Wisconsin, Inc. does not discriminate on the basis of disability in the provision of services or in employment. If you need printed material interpreted or in a different form, or if you need assistance in using our services, please inform us. Deaf, hearing-impaired or speech-impaired callers may reach us through the Wisconsin Telecommunication Relay System (1-800-947-3529).

© 2007 Legal Action of Wisconsin, Inc.

Updated: Feb 2007