Schools consistently prioritize creating a safe educational environment for students and staff. Prevention and planning are a cornerstone of that process and appropriate discipline of students is a necessary component for maintaining safety. When a student is eligible for special education through an Individualized Education Program (IEP), though, there are some additional considerations schools should be mindful of when thinking through a response to student behavior. While every situation presents different factors, this checklist helps frame a district’s response to students who engage in threatening or dangerous behavior.
✓ Determine whether a Manifestation Determination (MDR) is required. If a student violates the district’s code of student conduct and will be subjected to a “change of placement” (suspension or expulsion, including a pattern that adds up to 10 days) the Individuals with Disabilities Education Act (IDEA) and Oregon law requires districts to conduct an MDR within 10 days of the decision. The purpose of the MDR is to answer two questions
- Was the conduct in question caused by or did it have a direct and substantial relationship to the student’s disability? or
- Was the conduct a direct result of the district’s failure to implement the student’s IEP?
If the answer to either question is yes, the IEP team must conduct a functional behavioral assessment (FBA) and implement a behavioral support plan (BSP). If the student has a current FBA and BSP, the IEP team likely should review and modify them considering the conduct.
- Importantly, the district must also return the student to the placement from which they were removed, unless the parents and district agree to a change in placement.
If the answer to either question is no, the school may discipline the student consistent with its discipline policies related to all students within the district. That said, even if it is not a manifestation of the student’s disability, the district is still obligated to provide a Free and Appropriate Public Education (FAPE) for the student if suspended more than 10 days or expelled.
✓ Assess whether immediate removal is allowed. When behavior is extreme, in limited circumstances, a school may remove a student to an Interim Alternative Educational Setting (IAES) for up to 45 days. These situations are confined to three special circumstances: (1) possession of a dangerous weapon, (2) possession or sale of illegal drugs, or (3) infliction of serious bodily injury on another person at school. It is not sufficient that the infliction of bodily injury is threatened; it must be severe (e.g., a substantial risk of death, extreme physical pain, protracted disfigurement). Minor injuries are not serious. Engage your counsel to evaluate whether the student’s conduct constitutes one of the three circumstances because it is a fact-specific analysis.
✓ Utilize procedural avenues when necessary to remove students to an IAES. A district may also request an expedited due process hearing to obtain an order from an administrative law judge (ALJ) to remove a student to an IAES for up to 45 school days because of injurious behavior. “Injurious behavior” means behavior that “is substantially likely to result in injury to the child or to others.” Though not binding on a judge, a recommendation from the IEP team of a proposed IAES is often instructive. While the IAES placement is limited to 45 school days, a district may ask an ALJ to extend the placement. Under the most concerning circumstances, rather than seeking an order from an ALJ, a district may seek special relief called a “Honig injunction” from a civil court judge. These injunctions are limited to situations where a district believes a student is too dangerous to remain at the current placement or if the student should be restricted from attending school. A Honig injunction is an extraordinary remedy and allows a district to bypass the requirements of “stay put” (a situation when a district must maintain a student’s educational placement during the pendency of a due process complaint). A district needs solid documentation, though, to establish a student’s likelihood of injurious behavior to obtain the injunction.
✓ Ensure a student can access education when attending an IAES. If a school or ALJ decides that an IAES is appropriate, the school must ensure that the IAES includes services for the student so that they may continue to participate in the general curriculum—although in another setting—and progress toward achieving IEP goals. Moreover, even if a Honig injunction is granted, a district still has an obligation to ensure that the student receives a FAPE.
✓ Provide notice where necessary or advisable. A district must give notice to a student’s parents on the date that a decision is made to remove a student to an IAES. Similarly, the school must provide parents with procedural safeguards, including prior written notice. In extreme circumstances, a district may obtain a Honig injunction without notice to a student’s parents.
✓ Understand that parents can challenge the district’s decisions. To the extent it can be fostered, collaboration between the school and the parents is helpful to avoid potential complaints from parents that challenge any of the steps a school may choose to take in response to dangerous student behaviors. When conduct rises to a level that a student must be removed from a school, it is helpful if the parents and school district can agree on an IAES.
Often, these disciplinary and placement decisions must be made rapidly when all stakeholders—students, parents, teachers, and administrators—are focused on finding an immediate solution during challenging circumstances. Many of these procedures should be set forth in district policies or student codes of conduct so decision-makers have some initial guidelines of the steps to take. If it would be helpful to talk through alternatives or consider suggestions for different paths, please reach out to our education team. We are ready to lend support.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
