State regulations (New Jersey Administrative Code Title 6A, Chapter 16 (NJAC 6A:16) Programs to Support Student Development) requires school districts to “develop, adopt, disseminate and implement a code of student conduct that establishes standards, policies and procedures for positive student development and student behavioral expectations” that apply to all students.
What about students whose disability includes behavioral challenges? Some children with autism spectrum disorder have behavior that can interfere with their learning. Parents may be concerned that their child may be unfairly subjected to disciplinary measures or perceived as a problematic child due to their behavior. They may worry that their child with autism will be suspended from school or even expelled.
Although codes of student conduct apply to all students, both the Individuals with Disabilities Education Act (IDEA) and the New Jersey Administrative Code, Title 6A Chapter 14 Special Education (NJAC 6A:14) require that additional disciplinary procedures be followed for students with disabilities.
Special education law requires child study teams to consider whether a child’s behavior interferes with their learning or that of other students, and when needed, include positive behavioral supports in the IEP to address the behavior. The intent of including behavioral considerations is for schools to proactively address behavior and prevent the need for disciplinary action.
NJAC 6A:14, subchapter 2.8 outlines the legal requirements for discipline, suspensions and expulsions of students with disabilities.
School Code of Conduct
Every New Jersey school district must have a written code of conduct or student handbook with rules that everyone must follow. This is to ensure a safe and orderly educational environment for all students. Codes of conduct describe behaviors that will result in disciplinary action and the consequences for breaking school rules.
However, special education laws included disciplinary protections for students with disabilities to ensure that students who have behavioral disorders would not be arbitrarily excluded from attending school.
“Research shows that implementing evidence based, multi-tiered behavioral frameworks can help improve overall school climate, school safety, and academic achievement for all children, including children with disabilities. In general, behavioral supports are most effectively organized within a multi-tiered behavioral framework that provides instruction and clear behavioral expectations for all children, targeted intervention for small groups not experiencing success, and individualized supports and services for those needing the most intensive support.”
School codes of conduct must include a description of the behavioral supports that will be put in place for students to help them follow the rules.
Suspension of Students with Disabilities
By law, districts can remove any student for disciplinary reasons for up to 10 consecutive or cumulative days in a school year. “Such suspensions are subject to the same district board of education procedures as nondisabled students. However, at the time of removal, the principal shall forward written notification and a description of the reasons for such action to the case manager and the student’s parent(s).” (NJAC 6A:14-2.8)
This does not apply to preschool students, who can neither be suspended nor expelled.
The law also gives schools discretion to “on a case by case basis, consider any unique circumstances when determining whether to impose a disciplinary sanction or order a change in placement for a student with a disability….”
NJAC 6A:16 requires that when a school suspends a student either short or long term, the school must provide academic instruction consistent with state learning standards within five days of the suspension. Instruction can take place either in or out of school. For students with disabilities, the same applies as long as out-of-school services can be provided in a manner consistent with the student’s IEP.
Suspensions of More Than 10 Days
New Jersey special education law defines removal of a student for disciplinary reasons a change in placement when the removal is for more than consecutive 10 days, or “the student is subjected to a series of short-term removals that constitute a pattern because they cumulate to more than 10 days in a school year and because of factors such as the length of each removal, the total amount of time the student is removed and the proximity of the removals to one another.” (NJAC 6A:14-2.8 (c) 2)
Both IDEA and NJAC prohibit suspension of a student with a disability for more than 10 school days without conducting a manifestation determination. A manifestation determination seeks to establish whether the student’s misconduct was caused by or related to the student’s disability or whether it was a direct result of the school’s failure to implement the student’s IEP.
The only exception to this suspension rule is in the case of a serious threat to safety, such as when a student has brought a weapon or drugs to school, has inflicted serious bodily harm to another person, or is a threat to themselves or others. In that case, even if the behavior was a manifestation of the student’s disability, they can be removed to an “interim alternative educational setting” for up to 45 days.
What Happens in Manifestation Determination?
If a school decides to remove student for more than 10 days, it must conduct the manifestation determination. Using relevant information in the student’s records, observations by teachers and input from parents, the school, parents and relevant members of the IEP teams should determine if the conduct was a result of the student’s disability or failure to implement the IEP.
If manifestation is found, the district must conduct a functional behavior assessment (FBA) – unless one has already been done and it resulted in a change in placement – and implement a behavior intervention plan (BIP). If a student already has a BIP, the plan must be reviewed and modified as necessary. In addition, the district must return the child to the placement they were removed from, unless the parent and district agree to a change as part of the modified BIP.
The only exception is as noted above, when the conduct is a serious offense (weapons, drugs, serious bodily injury). In such cases, the student can be removed to an “interim alternative educational setting” (IAES) for up to 45 days.
If manifestation is not found, the student is subject to the same discipline that applies to non-disabled students. However, a school cannot discontinue services or otherwise “expel” a student with a disability after ten days of removal from the school setting. The school must continue to provide services in an IAES.
While neither federal nor state law defines what a functional behavior assessment is and how it should be carried out, broadly speaking an FBA seeks to find the cause of a child’s behavior. For students with autism, best practices indicate that an FBA and resulting behavior intervention plan should be conducted using the principles of applied behavior analysis by a Board Certified Behavior Analyst (BCBA).
Rights of Parents in the Disciplinary Process
Parents have the right to challenge the school district in situations where the district fails to comply with laws related to student discipline procedures. They can also challenge the results of a manifestation determination, and the determination of placement in an IAES.
As with other circumstances related to the special education rights of a student with a disability, parents can request mediation, a due process hearing, or file a complaint with the New Jersey Office of Special Education Programs. Due process hearings for disciplinary matters are expedited, which means that the hearing must take place within 20 school days of the receipt of the request. Refer to the Parental Rights in Special Education handbook and model forms.
United States Department of Education Office of Special Education and Rehabilitative Services, Dear Colleague Letter on Supporting Behavior of Students with Disabilities, (August 2016).
Reprinted with permission from Autism New Jersey.
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