If you are the parent of a child with a disability, you may know the feeling of dread that comes when your child’s school calls during the school day, asking you to pick up your child because they cannot deal with today’s behaviors. Parents often feel they must rush to school in the middle of the day to pick up their child for issues that the school should typically have been able to address internally.
Parents of students with behavioral issues also commonly worry about the possibility that their child may be suspended.
The following Q&A addresses parents’ responses and rights and responsibilities in these situations.
Q: Do I have to pick up my child when the school calls?
A: The short answer is, “It all depends.” Students have a right to their education—whether or not they have a disability—and can only be excluded from school if they have been officially suspended. That said, there might be times when a parent would welcome the call and be willing to work with teachers and school officials to ameliorate a precarious situation before it escalates. It gets down to how often and why. If you are repeatedly called to pick up your child before the school day is over for behavioral issues that do not warrant suspension and your child has not been physically injured or harmed, you are not required to go to school to get him/her.
Q: My child isn’t being suspended. What should I do?
A: If behavioral issues related to your child’s disability are the problem, IDEA requires that they be addressed through the IEP. The school district may be required perform a “manifestation determination,” which assesses whether the behaviors in question are attributable to the child’s disability. If the manifestation determination concludes that the behavior is a function of your child’s disability, he or she may not be suspended. If you and the district disagree about the manifestation determination, you have the right to request mediation or a due process hearing to resolve the disagreement.
If it is agreed that the behavior is a result of the disability, the IEP team will need to conduct a functional behavioral assessment (FBA), unless one has already been conducted. A functional behavioral assessment (FBA) looks beyond the obvious interpretation of behavior as “bad” or non-compliant” and determines what function the behavior(s) may be serving for a child. Parental consent for the FBA is required. If you disagree with the results of the FBA, you have a right to request an independent evaluation. Similarly, the IEP team must write a behavior intervention plan (BIP), unless one already exists. If a BIP already exists, then the IEP team will need to review the plan and modify it as necessary to address the behavior.
Q: My child is in preschool and is having serious behavioral issues. Can she be suspended?
A: No. In New Jersey, if your child is in preschool, the school cannot suspend or expel her.
Q: My child with disabilities is being suspended. What now?
A: Schools may suspend a student with disabilities for up to 10 days in the same way they can suspend a non-disabled student. During this time, the school does not have to provide services.
The principal must tell you in writing the reason for this decision to suspend your child, and your child’s special education case manager must be notified of the decision.
If your child is suspended for more than 10 consecutive days—or more than 10 cumulative days in a school year in a way that constitutes a pattern—it is considered a change in your child’s placement. When this happens, the IEP team must hold a meeting to determine whether the behavior is a manifestation of the child’s disability. If the manifestation determination concludes that the behavior is a function of the student’s disability, he or she may not be suspended. The IEP team should also consider whether your child’s alleged conduct or behavior was a direct result of the school’s failure to implement your child’s IEP.
Q: Can my child’s school make a change in placement without making a manifestation determination?
A: Schools may make a change in placement, even when the behavior was a manifestation of your child’s disability, under certain circumstances. This may happen when your child has a weapon at school, on school premises, or at a school function; knowingly has, uses, sells, or attempts to get illegal drugs at school, on school premises, or at a school function; or inflicts serious bodily injury on another person while at school, on school premises, or at a school function. In these cases, the school can remove your child to an interim alternative educational placement for no more than 45 calendar days. An interim alternative educational placement is the placement where your child will receive educational services during the period of discipline. Examples of interim alternative educational placements include other schools, other classroom placements, and home instruction.
Q: What if I disagree with the district’s decision to suspend my child?
As a parent, you may challenge a school’s decision to suspend your child or make a change in placement by filing for an expedited due process hearing with the New Jersey Department of Education’s Office of Special Education Programs in Trenton. Your request must include your child’s name and address, date of birth, the name of the school that your child attends, a description of the issue and facts, and how you propose to resolve the problem. During the appeal, if your child has already been removed, he or she will remain in the interim alternative educational placement until a judge makes a decision, the period of discipline has ended, or you and the school agree on a different placement or resolution.
Adapted from Special Education and School Discipline: What You Need to Know, Legal Service of New Jersey; http://archive.lsnjlaw.org/english/schoolandlearning/children/speceducationdisc/ and other sources.
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