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Chicago Special Education Student Discipline Attorney

If a student with a disability violates a school’s code of conduct, the school can discipline them. This includes placing them in another setting. It could also include a suspension, up to 10 days in a row. 

The school does not have to provide special education services during that time. 

Change of placement 

The discipline is considered a “change of placement” if: 

  • The student is removed for more than 10 days in a row, or 
  • The removals form a “pattern.” 

A “pattern” happens when: 

  • The removals total more than 10 school days in a school year, 
  • The student’s behavior is similar to past incidents, 
  • The removals are long, 
  • The total amount of time the child has been removed is long, and/or 
  • The time between removals is short. 

If the student’s discipline is a change of placement, the school must hold a Manifestation Determination Review (MDR). 

Manifestation Determination Review

If the student’s discipline is a change of placement, the school must hold a Manifestation Determination Review (MDR). 

The Manifestation Determination Review (MDR) is a meeting to discuss whether a child’s behavior is by his or her disability. There is a limit to how much students with disabilities cannot be disciplined because of behavior that is a result of their disability. If a student’s behavior is not due to their disability, the school can use the same discipline as it does for students without disabilities. 

The school must hold an MDR within 10 school days if the child has been suspended for more than 10 school days or has a pattern of behavior that results in suspensions of 10 or more school days per year. 

If behavior is a manifestation of the student’s disability, the school must conduct a Functional Behavior Analysis (FBA) and develop a Behavior Intervention Program (BIP). 

Functional Behavior Assessment 

A Functional Behavioral Assessment (FBA) is a study of a child to find out why he or she is having behavioral problems. An FBA should include: 

  • Several observations of the child at different points of the school day 
  • An interview with the child 
  • Interviews with the child’s teachers 
  • A review of the child’s discipline reports 

Usually, it will be done when a child has gotten into trouble repeatedly at school. An FBA must be done if: 

  • The manifestation determination team decides that your child’s behavior is caused by his or her disability, or 
  • Your child is removed from school for more than 10 school days in a row, or 
  • Your child has been removed from school for more than 10 school days throughout the school year 

Behavior Intervention Program 

All special education students have an Individualized Education Program (IEP), which could include goals to prevent discipline problems. If a student’s behavior is disruptive to his or her learning, or the learning of other students, the IEP team can include a Behavioral Intervention Plan (BIP) in the IEP to prevent problems in the future. The purpose of a BIP is not for punishment, but to decide how to help the student. A BIP can help to understand: 

  • The meaning, or function, of behavior 
  • What may be causing the behavior to happen 
  • Ways to change the environment to support the student’s needs, and 
  • How to teach the student appropriate behavior 

Manifestation Determination Review

A school cannot change the student’s placement without holding a Manifestation Determination Review (MDR). This meeting must be held within ten days after the school’s decision. 

The team who has created the student’s Individualized Education Program (IEP) should attend the meeting. They must decide whether the student’s misconduct had something to do with his or her disability. 

The student cannot be expelled if the IEP team finds 

  • The student’s misconduct was caused by, or had a direct and substantial relationship to, his or her disability; or 
  • The student’s misconduct was a direct result of the school’s failure to implement the IEP. 

If you are a parent, you should attend this meeting. You should present any information that shows your child’s disability caused the behavior. You may use a therapist or doctor’s testimony. 

At the MDR, the IEP team will review: 

  • The information that you present, 
  • The information in the student’s file, and 
  • The teachers’ observations of your child. 

Once the IEP team finds that your child’s disability caused the behavior, the school cannot expel your child. Also, the IEP team has to either: 

  • Conduct an assessment of your child’s behavior and implement a Behavior Intervention Plan (BIP); or 
  • If your child already has a BIP, change the BIP as necessary. 

 If the IEP team finds your child’s disability did not cause the behavior, you can appeal the decision. To appeal, you must ask for an expedited due process hearing. View the Discipline and Manifestation Determination Review Timeline for a summary of this process. 

If you do not appeal the MDR decision, or if you appeal and lose, the school must invite you to attend an expulsion hearing to discuss your child’s behavior. An expulsion hearing is the same for students with and without disabilities. 

If your child attends a public school, the school must send you a notice of the expulsion hearing in writing by certified or registered mail. The notice must state the time, place, reason for the hearing, and your right to be represented by a lawyer. 

If your child attends a charter school, you should look at the school’s disciplinary handbook about the school’s expulsion procedures. 

At the hearing, the school must give reasons for the expulsion and the date when the expulsion will start. 

If a student’s bad behavior IS NOT due to their disability, the student can be disciplined the same as students without disabilities. This includes expulsion. If the parent disagrees with a decision made by the team, they may request a due process hearing. 

The student can still get services to progress their Individualized Education Program (IEP) goals. This is true even if they are expelled. They can also participate in general education curriculum. 

Behavior Warrants an FBA

If a student’s behavior IS due to their disability, they cannot be expelled. They also cannot be suspended for more than 10 days in a row. Unless the parent and the school agree, the student is returned to the normal placement. 

The school must hold a meeting to conduct a Functional Behavioral Assessment (FBA). The team must then develop and implement a Behavioral Intervention Plan (BIP) for the student. If the student already has a BIP, the team must meet to review the plan and the way it is being implemented. If necessary, the team must change the plan to address the behavior. 

If you believe your child was expelled for behavior because of their disability, you should go to the manifestation determination review. You can prevent a school expulsion hearing at the review by arguing that their actions were because of their disability. Or you can say that your child’s behavior was because of the school’s failure to implement your child’s IEP. 

If the school decides that your child’s misconduct does not stem from their disability. Then, you can appeal the decision by requesting an expedited due process hearing. 

Challenging The Expulsion Of A Child With Disabilities

  1. Finding out that your child has been expelled

If your child comes home and tells you they are going to be expelled, call the school to make sure this is true. Remember, the school cannot expel your child without holding a Manifestation Determination Review (MDR) and an expulsion hearing. 

  1. Receiving the written letter of expulsion

You must receive notice of the expulsion in writing from the school. It should explain their reason for expeling your child. It must be mailed to you, not sent home with your child. 

When you receive written notice that the school is thinking about expelling your child and that it is holding a Manifestation Determination Review (MDR), you should attend this meeting. The MDR must happen within 10 days. You can prevent a school expulsion hearingby persuading the Individualized Education Program (IEP) team that your child’s behavior stems from their disability. You can argue that your child’s behavior was because of your child’s disability. Or you can argue that your child’s behavior was because of the school’s failure to implement your child’s IEP. 

If the school decides that your child’s misconduct does not stem from their disability at the MDR, you can appeal the decision by requesting a due process hearing. The school must notify the Illinois State Board of Education (ISBE) within one business day. The hearing must be held within 20 business days. 

  1. Expulsion hearing

If the school decides to expel your child after the manifestation determination review, the school must hold an expulsion hearing so you can tell your child’s side of the story. At the hearing, you can: 

  • Have a lawyer present 
  • Bring witnesses 
  • Cross-examine the school’s witnesses 
  • Give reasons why you believe your child should not be expelled. 
  • Even if your child committed the misconduct, at the hearing you can give reasons why you believe your child should not be expelled. Before expelling a student, a school district must at least consider a number of factors. At the hearing, you can: 

Have your child tell their side of the story; 

  • Argue that your child’s misconduct was not bad enough to deserve expulsion; 
  • Argue that your child should not be expelled because your child has had no history of misconduct at school; 
  • Argue that your child’s misconduct did not disrupt the education of other students; 
  • Argue that expulsion is too severe; 
  • Argue that expulsion is not in the best interests of your child. 
  1. The school decides to expel your child

If the school decides to expel your child at the expulsion hearing, you can appeal the decision by requesting a due process hearing or by going to state court. Please consult a lawyer about how to file an appeal in state court. 

If the school places your child in an interim alternative educational setting, you also have the right to appeal the school’s decision by asking for an expedited due process hearing. 

If you appeal, your child will stay at the other school until the hearing officer makes a decision. However, your child cannot stay at the other school for more than 45 school days even if it takes the hearing officer longer to make a decision, unless you and the State or local educational agency agree otherwise. 

The school may want to keep your child in the interim alternative educational setting or send your child to another school after the 45 school days end. If you disagree, the school must send your child back to your child’s first school unless the school thinks it is too dangerous there for your child. 

If the school thinks it is too dangerous to send your child back to the school, it must ask for an expedited due process hearing. The hearing would happen within 20 school days of the hearing request. The school would have to persuade an independent hearing officer that returning your child to their old school would be very likely to result in injury to your child or others. The hearing officer must make a decision within 10 school days after the end of the hearing. 

If your child attends a public school in Chicago, at the expulsion hearing, you can ask that they go to the SMART program instead of being expelled.

Special Education Due Process Hearing 

You may request a due process hearing for your child with a disability: 

  • When the school decides that your child’s behavior does not stem from their disability at the manifestation determination review; 
  • When the school places your child in an interim alternative educational setting, or alternative school, for up to 45 school days. 

Your rights before the due process hearing: 

  • You have the right to see your child’s school records; 
  • The school district must tell you about of free or low-cost legal and other services if you ask for this information; 
  • You have a right to ask that your case be heard by a different hearing officer than the one appointed. To request a different hearing officer, you must make your request in writing to the Illinois State Board of Education within 5 days after you received notice of the appointment of the hearing officer; 
  • You have a right to get copies of evidence the school will present at the hearing at least 5 days before the hearing. You must give the school copies of any evidence you plan to bring to the hearing at least 5 days before the hearing; 
  • You have the right to request an interpreter for the hearing. 

Your rights at the due process hearing: 

  • You have the right to bring a lawyer or advocate to the hearing; 
  • You have the right to bring witnesses and evidence; 
  • You have the right to cross-examine the school’s witnesses; 
  • You have the right to bring your child to the hearing; 
  • You have the right to object to the school including evidence if the school did not tell you about the evidence at least 5 days before the hearing; 
  • You have the right to request an interpreter for the hearing. 

Your rights after the due process hearing: 

  • You have a right to a copy of the record from the hearing; 
  • You have the right to appeal the hearing officer’s decision to state or federal court. You must appeal within 90 days from the date of the hearing officer’s decision according to federal law, and 120 days from the date of the hearing officer’s decision, according to current state law. 

 

Law Office of William Carlos Weeden

The information on this website has been provided for general informational purposes only and does not constitute legal advice nor create an attorney-client relationship or warrant that a certain result will be attained in a specific case. The Supreme Court of Illinois does not recognize certifications of specialties in the practice of law and the certificate, award or recognition is not a requirement to practice law in Illinois. We encourage you to contact us or another legal professional for advice regarding your individual situation.

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