Your Child’s Legal Rights if Suspended
If your child is suspended from school, it can be a frightening experience. If the suspension is for more than a few days or if a series of suspensions occurs, it is important to seek legal counsel as soon as possible to ensure that your school district is following the law and to be sure that the suspension does not derail your child’s academic career.
Research has shown that suspensions represent an ineffective means of modifying student behavior and that forcing a student to be absent from school for long periods of time actually increases dropout rates, especially for students with special needs. Yet, too often, school districts lack other means to discipline students and suspensions are very common — particularly of students with disabilities.
New York State Law
Under New York State law, which applies to all students, whether classified or not, a “short-term suspension” is defined as five days or less. The principal of the school can issue a short-term suspension. The parents have a right to an informal conference. The parent must receive 24-hour notice of the suspension, and the school district must set up a home instruction as soon as possible.
Under New York State law, a “long-term suspension” is defined as a suspension that lasts more than five days. Long-term suspensions can only be issued by the superintendent and only after the superintendent conducts a hearing to determine innocence or guilt. Witnesses may be called and cross-examined at the superintendent’s hearing. If a child is found guilty, the superintendent or a hearing officer appointed by the district will set a penalty, which may include a long-term suspension. Parents may appeal this suspension to the Board of Education or the New York Commissioner of Education.
Federal Special Education Law
Under the Individuals with Disabilities Education Act, a suspension in excess of 10 school days constitutes a change in placement. “Ten days” can either mean 10 consecutive days or a series of short-term suspensions that add up to 10 days if they are a part of a pattern of suspensions. If a school district is seeking to suspend a student with a disability for longer than 10 days, it must conduct a manifestation determination review (MDR) to determine if the student’s behavior is a manifestation of his or her disability. A superintendent’s hearing, discussed above, must occur first.
If the student is found guilty at the superintendent’s hearing, an MDR must be scheduled. The MDR team will review information such as the student’s IEP, teacher observations, information from the parent and, if appropriate, the student. The team will determine whether the conduct for which the district seeks to discipline the student was caused by, or had a direct and substantial relationship with, the student’s disability. Moreover, they will address whether the conduct was a direct result of the district’s failure to implement the student’s IEP.
If the conduct at issue is determined to be a manifestation of the student’s disability, the student must be returned to the placement from which he or she was removed unless the parent and the district agree upon a new placement. If the CSE team has not yet conducted a functional behavioral assessment (FBA), one must be conducted, and a behavioral intervention plan (BIP) must be developed. If the child already has a BIP, the CSE must review and modify the BIP in consideration of the conduct that led to the suspension and with the goal of preventing similar behavior in the future. If the behavior was a direct result of the district’s failure to implement the IEP, it is the district’s responsibility to immediately remedy those deficiencies.
If the school district does not follow the steps described above after suspending a student for more than 10 days, it is in violation of the law. Take steps to protect your child’s rights.