Special Education
Law and Discipline
David Nash, Esq.
NJPSA Legal Counsel
and Teresa Moore, Esq.
Rutgers Law School
www.featraining.org
We are pleased to bring you this
FEA-developed program as an
NJPSA member benefit.
Key Questions in Discipline Case
for Students with Disabilities
Is there a significant change in placement?
 Did the incident involve a weapon, drugs,
or serious bodily injury?
 Was the behavior a manifestation of
disability?
 Is the student a danger to himself or
others?

Change in Placement
Significant if:
 For more than 10 consecutive days; or
 Series of removals constitute a pattern.
 If significant change, triggers procedural
safeguards.
Was There a Pattern?
Pattern exists if total number of days
removed is greater than 10 days; and
 Other factors indicate a pattern:

◦ Length of each removal.
◦ Total amount of time removed.
◦ Proximity of removals to each other.
Were Weapons or Drugs Involved?
Child who brings weapon to school,
knowingly possesses illegal drugs, or
causes serious bodily injury may be placed
in AES for same amount of time as
nondisabled peer (45 days).
 AES must meet goals of IEP.
 CST must conduct FBA, formulate/review
BIP, conduct manifestation determination
as required.

Manifestation Determination

Case Manager immediately notifies
parents of:
◦ Impending discipline.
◦ Procedural safeguards.
◦ Plan to do manifestation review.
Timelines for Manifestation Review

IEP meeting within 10 business days of:
◦ When child first removed more than 10 school days
in one school year; and
◦ Whenever child is subjected to change in placement.
Must begin to review/modify BIP beginning on
11th day of removal or whenever change in
placement occurs.
 Review BIP if a team member believes it
necessary if there are subsequent removals.

If Behavior is Not a Manifestation
May discipline same as other students.
 Must continue to provide FAPE as for all
students.
 IEP team gives parents written statement
with conclusions and right to mediation
or due process hearing.
 Parent may challenge manifestation
determination or penalty imposed.

Additional Steps

Must provide written notice of AES, suspension
beyond 10 days, or expulsion, within 15 days of
making decision and 15 days before
implementing change unless:
◦ IEP team finds immediate action needed.
◦ Notice still must state when disciplinary action will be
implemented and explain why there was need for less
than 15 days notice.

Persons making discipline decision must have
special ed. and discipline records before making
decision on discipline to be imposed.
If Behavior is a Manifestation, or
if Behavior is Result of Poor IEP,
Then
IEP must be revised.
Discipline may not be imposed.
Is the Student Dangerous?
District may request an expedited hearing if it
believes then-current placement dangerous
 Judge may place student in interim alternative
setting up to 45 days if:

◦ District has substantial evidence of likely injury to
student or others without change.
◦ New placement is appropriate.
◦ District attempted to minimize harm to student,
including use of supplementary aides and services.
◦ Interim setting allows student to receive FAPE and
meet IEP goals.
◦ Includes services/modifications to address behavior.
Placement During Appeals

If parent requests due process hearing, student
must be returned to last agreed upon
placement unless:
◦ District and parent agree otherwise;
◦ District seeks emergent hearing; or
◦ Discipline results from weapons/drugs/serious bodily
injury.

If weapons/drugs offense, serious bodily injury
or student found dangerous, student stays in
interim AES pending hearing up to 45 days.
Placement During Appeals (cont’d)
At end of 45 days in interim AES, student
must return to last agreed upon
placement unless hearing officer
determines student is too dangerous.
 District cannot move student to new AES
during 45 days unless hearing officer
determines interim AES is too dangerous.

Continuing Right to Education
Students suspended for more than 10
days in a school year have right to FAPE.
 Must provide educational services during
“within 5 school days” of when a student
is removed.

Rights of Non-Classified Students
Student may assert IDEA protections if
district knew or should have known that
child had a disability.
 District should have known if:

◦
◦
◦
◦
Parent provided written notice to district;
Child’s behavior should have alerted district;
Parent requested an evaluation; or
Student’s teacher or other personnel
expressed concern to school officials.
Discussion Scenario

Christine is a 10th grade special education
student who has major behavioral issues.
During the current school year, Christine
has already been suspended on three
separate occasions, totaling 10 days of
suspension between September and
December.
Discussion Scenario (cont’d)

In early January, the school principal
receives a call from a parent that her
child, Carla, is being harassed and
intimidated by Christine. Carla and
Christine are in the same physical
education class. Christine allegedly
punched Carla and her friend Dina, in the
locker room after gym class. The incident
was not reported at the time by either
student.
Discussion Scenario (cont’d)

The mother claims that since this assault,
Carla has become so stressed that she
doesn’t want to go to school, and when
she finally did go today, she had a doctor’s
note in order to avoid phys ed. According
to the mother, Christine enjoys
terrorizing other students and knows that
she can get away with it, since she knows
she can’t be suspended anymore this year.
Discussion Scenario (cont’d)

The principal turns the matter over to
the anti-bullying specialist, Ms. Johnson.
Christine admits to punching Carla and
Dina. Ms. Johnson also learns during the
investigation from several sources that
Christine violently shoved another
student, Renee, who had been teasing her
for several weeks for being “stupid.”
Discussion Scenario (cont’d)

Christine claims that she is the real
bullying victim and that she only lashed
out at Carla and Dina because they
kept calling her names, like “Time Bomb”
and “Crazy Christine.” She produces
printouts of online postings from a social
networking site, in which Carla and Dina
describe Christine in derogatory terms,
related to her special education
classification.
Discussion Scenario (cont’d)

ISSUES RAISED
◦
◦
◦
◦
Can a special education student be a bully?
Is Christine a Bully?
Is Christine a victim of bullying?
Was Christine’s behavior a manifestation of her
disability?
◦ What disciplinary action, if any, may the district take
against Christine? Against Carla and Dina?
◦ What steps, other than discipline, should be taken to
address Christine’s behavior?
QUESTIONS
For more information about training
opportunities, contact Jay Doolan:
jdoolan@njpsa.org
609-860-1200
Foundation for Educational
Administration
12 Centre Drive
Monroe Township, NJ 08831