I. Discipline of Students with Disabilities
At times it may be necessary to suspend, remove or otherwise discipline students with disabilities to address disruptive or problem behavior. Students with disabilities are afforded certain procedural protections whenever school authorities intend to impose discipline upon them. Procedures followed for suspending, removing, or otherwise disciplining students with disabilities must be consistent with the procedural safeguards required by applicable laws and Part 200 of the Regulations of the Commissioner of Education.
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.
1. Authorized Suspensions or Removals of Students with Disabilities
A. 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 students’ current educational placement other than a suspension and other than a change in placement to an interim alternative educational setting (IAES) ordered by an impartial hearing officer because the student poses a risk of harm to himself or herself or others.
An “IAES” means a temporary educational placement, 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 which precipitated the IAES placement that are designed to prevent the behavior from recurring.
B. School personnel may order the suspension or removal of a student with a disability from his or her current educational placement as follows:
i. The Board, the superintendent of schools or a building principal may order the placement of a student with a disability into an IAES, another setting or suspension for a period not to exceed five consecutive days and not to exceed the amount of time a non-disabled student would be subject to suspension for the same behavior.
ii. The superintendent may order the placement of a student with a disability into an IAES, another setting or suspension for up to 10 consecutive school days, inclusive of any period in which the student has been suspended or removed under subparagraph (a) above for the same behavior, if the superintendent determines that the student has engaged in behavior that warrants a suspension and the suspension or removal does not exceed the amount of time non-disabled students would be subject to suspension for the same behavior.
iii. The superintendent may order additional suspensions of not more than 10 consecutive school days in the same school year for separate incidents of misconduct, as long as those removals do not constitute a change of placement.
iv. The superintendent may order the placement of a student with a disability in an IAES to be determined by the committee on special education (CSE), for the same amount of time that a student without a disability would be subject to discipline, but not more than 45 school days, if the student carries or possesses a weapon to school or to a school function, the student knowingly possesses or uses illegal drugs, sells or solicits the sale of a controlled substance while at school or a school function, or has inflicted serious bodily injury while at school or at a school activity.
For purposes of this subsection (B)(iv) of the Code of Conduct, the following definitions apply:
1. “Weapon” means the same as “dangerous weapon” under 18 U.S.C. §930(g)(2) which 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 1/2 inches in length.”
2. “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.
3. “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.
4. “Serious bodily injury” as defined in 18 USCA §1365(h) means a bodily injury that involves:
1. a substantial risk of death; or
2. extreme physical pain; or
3. protracted or obvious disfigurement; or
4. protracted loss or impairment of the function of a bodily member, organ or mental faculty. An impartial hearing officer may order the placement of a student with a disability in an IAES setting for up to 45 school days at a time, if maintaining the student in his or her current educational placement poses a risk of harm to the student or others.
5. Subject to specified conditions required by both federal and state law and regulations, an impartial hearing officer may order the placement of a student with a disability in an IAES setting for up to 45 days at a time, if maintaining the student in his or her current educational placement is substantially likely to result in injury to the student or others.
2. Change of Placement Rule
A. A disciplinary change in placement means a suspension or removal from a student’s current educational placement that is either:
i. for more than 10 consecutive school days; or
ii. for a period of 10 consecutive school days or less, if the student is subjected to a series of suspensions or removals that constitute a pattern because they cumulate to more than 10 school days in a school year and because of such factors as the length of each suspension or removal, the total amount of time the student is removed, and the proximity of the suspensions or removals to one another.
When a decision is made by a board of education, building principal or superintendent to impose a suspension that constitutes a disciplinary change in placement, the CSE must conduct a Manifestation Determination Review. The review examines the relationship between the student’s disability and the behavior subject to disciplinary action, to determine if the conduct in question is substantially and directly related to the educational disability.
B. School personnel may not suspend or remove a student with disabilities if imposition of the suspension or removal would result in a disciplinary change in placement based on a pattern of suspension or removal
However, the District may impose a suspension or removal, which would otherwise result in a disciplinary change in placement, based on a pattern of suspensions or removals if the Committee on Special Education (CSE) has determined that the behavior was not a manifestation of the student’s disability.
3. Special Rules Regarding the Suspension or Removal of Students with Disabilities
The District’s CSE shall conduct functional behavioral assessments to determine why a student engages in a particular behavior, and develop or review behavioral intervention plans whenever the District is first suspending or removing a student with a disability for more than 10 school days in a school year or imposing a suspension or removal that constitutes a disciplinary change in placement, including a change in placement to an interim alternative educational setting for misconduct involving weapons, illegal drugs or controlled substances.
If subsequently, a student with a disability who has a behavioral intervention plan and who has been suspended or removed from his or her current educational placement for more than 10 school days in a school year is subjected to a suspension or removal that does not constitute a disciplinary change in placement, the members of the CSE shall review the behavioral intervention plan and its implementation to determine if modifications are necessary.
If one or more members of the CSE believe that modifications are needed, the school District shall convene a meeting of the CSE to modify such plan and its implementation, to the extent the committee determines necessary.
The parents of a student who is facing disciplinary action, but who has not yet been determined to be eligible for services under IDEA and Article 89 at the time of misconduct, shall have the right to invoke applicable procedural safeguards set forth in federal and state law and regulations if, in accordance with federal and state statutory and regulatory criteria, the school district is deemed to have had knowledge that their child was a student with a disability before the behavior precipitating disciplinary action occurred. If the district is deemed to have had such knowledge, the student will be considered a student presumed to have a disability for discipline purposes.