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Suspensions for Students with Disabilities

What You Need to Know about Student Suspensions

By Harriet P. Schleifer

You get the dreaded call from the assistant principal that your child has been suspended from school.  What are your rights as a parent and what do you do?

The first thing to know is that school districts are required to develop a written code of conduct (“code”) that governs the conduct of students, teachers, school personnel, and visitors. Summaries of the code must be provided to all persons in parental relation to students prior to the start of each school year and to students at a general assembly at the beginning of each school year. In addition, the code must be made available for your review. Make sure you have a copy of the summary in your possession so that you understand the rights and responsibilities of both your child and the district.

Different student infractions of the code may result in different disciplinary measures. The most serious are the out-of- school suspensions. Suspensions may be short-term (up to five days) or long-term (more than five days and as long as a year).  Since out-of-school suspensions may result in a serious loss of instruction, parents should know their rights, as well as the authority of the school to discipline its students.

Short-Term Suspensions

Let’s start with the short-term, out-of-school suspension.  A principal has the right to suspend a student for a violation of the code for a maximum period of up to five days.  The law affords a person in parental relation the right to an informal conference with the principal (not a delegate) prior to a proposed suspension.  This is to allow the parent the right to ask questions of the complaining witness and the student to tell his side of the story.  The purpose of this informal conference is to get the facts surrounding the allegation and to dismiss, reduce, or mete out the maximum suspension allowed by the principal (five days.)  If the student is a danger or so disruptive of the educational process that the informal conference must be delayed, then it must be held as soon as practicable.

Parents typically learn about short-term suspensions through a phone call from the assistant principal.  Under the law, that alone is not sufficient notice. Schools are required to provide written notice of the proposed suspension in a manner reasonably calculated to be received by the person in parental relation within 24 hours of the proposed suspension.  The written notice must also inform the parent of the right to an informal conference with the principal.  If this information is not contained in the notice, the notice is deficient and parents may want to have the record annulled and expunged from their child’s school files.  The allegation contained in the notice should be specific enough to inform the parent of the nature of the violation.

Long-Term Suspensions

What about your rights when the principal wants to keep your child out of school for more than five days?  The principal must request a superintendent’s hearing for that. In fact, the hearing must be held on at least the fifth day, or your child has the right to return to school until the superintendent’s hearing (“hearing”) takes place (unless you request an adjournment of the hearing). In other words, your child has the right to a superintendent’s hearing.

I would not advise parents to allow the hearing to proceed without them or without an attorney present.  Parents may not understand the stakes. The hearing is like a mini-trial without all of the judicial rules of evidence.  For example, witnesses may be sworn in but hearsay is allowed. The superintendent may serve as the fact finder or may appoint a hearing officer to hear the facts and propose a finding and penalty. The hearing is usually taped, but there may be a stenographic recording instead.  The school district bears the burden of proof.

There are two phases to a hearing.  The first is the fact-finding phase. The school must present competent and substantial evidence to uphold a finding of guilt.  If the school cannot meet its burden, the student may return to school immediately.  If the student is found guilty of the allegation, the hearing moves into the second phase– the penalty phase.  At this point, the fact-finder may take into account the student’s prior academic, disciplinary, and attendance records to determine the extent of the penalty.  The student’s attorney should be protecting the student’s substantive and procedural rights during the hearing.  The attorney should be creating a record in case the superintendent’s decision is appealed first to the district’s board of education and, if necessary, to the commissioner of education in Albany.

Disabilities and the Disciplinary Process

The attorney will need to know if the police or the courts are involved as a result of the same violation alleged by the school.  In that case, although the student has the right to speak on his own behalf at the hearing, the attorney may decide to advise against this.  In addition, parents should authorize the attorney to gather records from the school district, therapists, and hospitals. The reason?  Students who are classified to receive special education services or who are “presumed to have a disability for discipline purposes” are entitled to receive a manifestation determination.  The function of a manifestation determination is to identify whether the alleged violation was caused by, or was directly or substantially related to, the student’s disability or if the alleged violation was the direct result of the district’s failure to implement the IEP.  The student’s attorney can play a crucial role in arguing that an unidentified student should be considered “presumed to have a disability for discipline purposes.”

If manifestation is found, the student must be immediately returned to school (there are circumstances where this does not  apply, however, and which are the subject for another discussion) and the Committee on Special Education must review the student’s educational program and services.  If no manifestation is found, the student may be disciplined as would any other student for the same violation.

Please note that while students are suspended from school, they are not allowed on school grounds (exceptions may apply and you need to check them) or to attend school functions,even if those functions are held in another district.  If your general education child is of compulsory school age, he is entitled to instruction in an interim alternative educational setting.  If your child is designated to receive special education services, instruction is mandated even beyond compulsory school age.

A frequent by-product of the disciplinary procedure is the discovery of an undiagnosed learning or emotional issue that has an adverse impact on the student’s educational performance.  That, too, is the subject of another discussion.

If you have any questions with regard to your child’s rights when it comes to school discipline issues, please do not hesitate to contact us.