The Board of Education recognizes that it may be necessary to suspend, remove or otherwise discipline students with disabilities to address disruptive or problem behavior. The Board also recognizes that students with disabilities are entitled to certain procedural protections whenever a suspension involves a change of placement.
This Code of Conduct affords students with disabilities subject to disciplinary action no greater or lesser rights than those expressly afforded by applicable federal and state law and regulations.
- Authorized Suspensions or Removals of Students with Disabilities.
- For purposes of this section of the Code of Conduct, the following definitions apply.
- A “suspension” means a suspension pursuant to Education Law §3214.
- A “removal” means a removal for disciplinary reasons from the student’s current educational placement other than a suspension and change in placement to an interim alternative educational setting (IAES).
- An “IAES” means a temporary educational placement for a period of up to 45 days, other than the student’s current placement at the time the behavior precipitating the IAES placement occurred, that enables the student to continue to progress in the general curriculum, although in another setting, to continue to receive those services and modifications, including those described on the student’s current individualized education program (IEP), that will enable the student to meet the goals set out in such IEP, and include services and modifications to address the behavior that precipitated the IAES placement that are designed to prevent the behavior from recurring.
- “Weapon” means the same as “dangerous weapon” under 18 U.S.C. § 930(g)(w) that includes “a weapon, device, instrument, material or substance, animate or inanimate, that is used for, or is readily capable of causing death or serious bodily injury, except…[for] a pocket knife with a blade of less than 2 ½ inches in length.”
- “Controlled substance” means a drug or other substance identified in certain provisions of the federal Controlled Substances Act specified in both federal and state law and regulations applicable to this policy.
- “Illegal drugs” means a controlled substance except for those legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under the Controlled Substances Act or any other federal law.
- Suspensions of students with disabilities up to 10 days in the course of a school year.Subject to section 3 below, school personnel may order the suspension or removal of students with a disability from their current educational placement as follows:The Building Principal may suspend a student with a disability for a period not to exceed five consecutive school days to the same extent as applicable to non-disabled students. Upon any suspension and/or request for a Superintendent’s hearing regarding a student with disabilities, the Principal shall immediately notify the CSE chairperson and forward immediately a copy of the notice sent to the parents as required by Education Law §3214.
- Suspensions of students with disabilities over 10 days in the course of a school year: No student with disabilities shall be suspended for more than 10 school days over the course of a school year without provisions for the continuation of free appropriate public education (“FAPE”), i.e. tutoring.
- Prior to any suspension by the Building Principal over ten school days in the course of a school year, the Principal shall, in consultation with the Special Education Teacher and the Special Education Director or his/her designee, determine whether the imposition of further suspension constitutes a change in placement. To determine whether any cumulative suspension for more than ten days constitutes a pattern of suspension that constitutes a change of placement, the principal in consultation with the Special Education Director or his/her designee, shall consider, at a minimum:
- the length of each suspension or removal,
- the total amount of time the student is removed,
- the proximity of the suspensions or removals to one another, and
- Except in cases involving weapons or drugs as defined herein, if the Principal determines that a proposed additional suspension over ten school days constitutes a change in placement, the Principal shall not impose any further suspension until the CSE has convened to determine whether the student’s behavior is related to the student’s disability. (Manifestation Hearing)
- If the Principal, after consultation with the Director of Special Education, determines that the proposed suspension does not constitute a change in placement, the Principal shall, in consultation with the Special Education teacher and Special Education Director or his/her designee, ensure the provision of a FAPE for the duration of any suspension imposed over the course of the school year.
- Prior to any suspension by the Building Principal over ten school days in the course of a school year, the Principal shall, in consultation with the Special Education Teacher and the Special Education Director or his/her designee, determine whether the imposition of further suspension constitutes a change in placement. To determine whether any cumulative suspension for more than ten days constitutes a pattern of suspension that constitutes a change of placement, the principal in consultation with the Special Education Director or his/her designee, shall consider, at a minimum:
- Suspensions or removals that constitute a change of placement
The Superintendent may order additional removals of more than 10 consecutive school days in the same school year for separate incidents of misconduct, in accordance with the following procedures.- In cases involving weapons or drugs as defined herein, the Superintendent may order the placement of a student with a disability in an IAES to be determined by the CSE, for the same amount of time that a student without a disability would be subject to discipline, but not more than 45 calendar days, upon a finding that the student possessed a weapon in school or at a school function or knowingly possessed an illegal drug or controlled substance as defined above, or was otherwise involved in its sale or solicitation.
- If the Superintendent concludes upon a finding of guilt that maintaining the student in his or her current educational placement is dangerous, the Superintendent shall refer the matter to the committee on special education to determine whether any additional steps can be reasonably taken to minimize the potential for harm and to conduct a manifestation determination. If the committee is unable to identify any additional supports or services to eliminate the danger, and the committee is unable to reach a mutually agreeable alternative plan to continue the provision of FAPE in another location, the Director of the Special Education, shall, after consultation with the Superintendent, initiate an expedited hearing as defined in Commissioner’s regulations or petition a court to seek permission to invoke a unilateral removal of the student to address the risk of harm that the student’s continued attendance in his or her present educational placement would present to the student or to others. In the event the 45 day IAES placement is expiring and the student is still considered dangerous, and the parent and District have not reached a mutually agreeable alternative placement, the Director of Special Education, upon consultation with the Superintendent, may initiate another expedited impartial hearing or seek an order from the court to obtain an order to extend the student’s IAES placement to the extent deemed necessary to provide a safe school environment.
- Rules regarding the suspension or removal of students with disabilities involving a change of placement
- Upon referral of a student to the CSE of a student with a disability facing a disciplinary change of place, the District’s Committee on Special Education shall immediately contact the parent by phone, to the extent possible and upon written notice shall schedule an expedited meeting of the CSE to review the following:
- To conduct a manifestation determination in accordance with 8 NYCRR 201.
- Except as provided in paragraph 4(a)(1), unless the parent and District agree otherwise, if the committee determines that the student’s behavior is related to the student’s disability, the student shall be returned immediately to his/her current educational placement and no further suspension shall be imposed except upon the order of a hearing officer or the court.
- It the committee determines that the student’s behavior leading to the student’ suspension is not related to his/disability, the committee shall arrange for an interim provision of FAPE during the period of any further suspension imposed by the Principal or the Superintendent and the student shall be referred back to the Superintendent, where applicable, for disposition. Prior to ordering further suspension, the Superintendent shall review the student’s special education and disciplinary file.
- In addition to a 45 day removal of a student with a disability to an IAES pursuant to (4) (a) as set forth above, the Superintendent may invoke an additional suspension upon a student with a disability who possesses or carries to school or to a school function a weapon or who knowingly possesses, sells or solicits an illegal drug or controlled substance as defined herein, from his current educational placement to the same extent as a non-disabled student for the same offense where the committee on special education determines that the student’s behavior is not related to the disability.
- To conduct a manifestation determination in accordance with 8 NYCRR 201.
- Notwithstanding any provision to the contrary, where the committee finds deficiencies in the IEP, the CSE shall recommend a change in program, and where the committee determines that the placement of the student is not appropriate, the District shall work with the parent to conduct further evaluation to the extent deemed necessary and to recommend and implement a change of placement, as soon as possible.
- To arrange or review, as applicable, a functional behavioral assessment and a behavioral intervention plan.
- If a student with a disability has a behavior intervention plan and has been suspended or removed from his or her current educational placement for more than 10 school days in a school year is subject to another suspension or removal that does not constitute a disciplinary change in placement, the members of the CSE shall be required to review the behavioral intervention plan and its implementation to determine if modifications are necessary if requested by of its members.
- Upon referral of a student to the CSE of a student with a disability facing a disciplinary change of place, the District’s Committee on Special Education shall immediately contact the parent by phone, to the extent possible and upon written notice shall schedule an expedited meeting of the CSE to review the following:
- Placement of students during expedited hearings challenging a removal or disciplinary change of placement of a student with a disability: Except as provided in paragraph 4(a) or upon the placement of a student in an IAES pursuant to an order of a hearing officer or a court, such student shall return to the students’ current educational placement pending the proceeding, unless the parent and District agree otherwise.
- Students presumed to be disabled
- Upon the request of a parent, or school personnel, the Principal in consultation with the Director of Special Education shall determine whether such student is a child presumed to have a disability as defined under 8 NYCRR 201.5. If the principal in consultation with the Director of Special Education concludes that such student is presumed to be disabled, such student shall be afforded the same protections as a student with a disability and receive an expedited evaluation, upon receipt of parental consent, to determine whether the student is a child with a disability.
- If the principal determines that a student subject to a suspension is not a student presumed to have a disability as defined herein the student shall be subject to the same disciplinary measures as a non-disabled student who engaged in comparable behaviors.
- (1)If a person authorized to refer a student to the committee on special education for an individual evaluation initiates a referral after the behavior that led to the suspension occurred, the child shall receive an expedited evaluation as defined in Commissioner’s Regulations, with the consent of the parent, except where the Committee determines, based on a prior evaluation, that the student is not disabled, or where it is determined, upon consultation with the committee members, that an evaluation is not necessary and notice of the determination is provided to the parents. Until the expedited evaluation is completed and the CSE has convened, such student shall be subject to the same disciplinary measures as a non-disabled student who engaged in comparable behaviors.
- Notice of proposed disciplinary change of placement or removal: The District shall provide parent of a student with a disability with written notice of a disciplinary removal no later than the date on that a decision is made to change the student’s placement to an IAES or to invoke a disciplinary change of placement.
- For purposes of this section of the Code of Conduct, the following definitions apply.
- Nothing in this policy governing the extra procedural safeguards applicable to students with disability, shall excuse compliance with the procedural safeguards governing the suspension of any student.
- Referral to law enforcement and judicial authorities: In accordance with the provisions of IDEA and its implementing regulations:
- In accordance with policy, the District shall report alleged crimes committed by a child with a disability to appropriate authorities, and such action will not constitute a change of the student’s placement.
- The Superintendent shall ensure that copies of the special education and disciplinary records of a student with disabilities are transmitted for consideration to the appropriate authorities to whom a crime is reported in a manner consistent with state and federal law.