Legal Briefs from Matt Cohen
The following are past questions and answers from Matt Cohen on this topic.
Can the school make a child study at home instead of being in the classroom?
I have a 15-year-old son diagnosed with auditory processing disorder and bipolar disease. I was recently "asked" to put him on home study and receive five hours a week of instruction. I have him under regular care of a psychiatrist and am deeply concerned that five hours a week isn't sufficient for a freshman in high school. The teaching staff is complaining that he is sleeping in school and is defiant (only at times) to his main resource teacher. They have basically kicked us out of school at this point. What can I do?
Jeanette
Dear Jeanette,
Your question concerns the school districts request that you place your child on five hours per week home study due to problems functioning at school which you believe result from your son's central auditory processing disorder and bipolar disorder. First, the decision to place a student on home study is a change of placement which must be determined by the IEP team, of which you are a member.
If you disagree with the recommendation of the IEP team, you have a right to request a special education due process hearing to challenge the proposal. If you request a hearing within the time period provided by your state for challenging a proposed change of placement before it becomes effective, your child must remain in the last agreed upon placement until the due process hearing is resolved.
In addition, although states typically have rules about the minimum level of services a child is entitled to if a child is placed in home study, the requirement is that they continue to receive a free appropriate public education. The services offered would constitute a minimum obligation, rather than the extent of services to which they are necessarily entitled. If you felt that home study was advisable, you could seek additional hours of service and/or related services from the school district beyond those that they are currently offering.
In addition, if you feel that your child should remain at school but is having difficulty by virtue of their disability, you can challenge the school district recommendation for home study and suggest that more intensive or different services be provided to your child at school in order to address the problems they are having which is leading the school to seek the home study option.
Generally, it would be important for you to have support from outside professionals and/or school staff for the provision of different and/or more intensive services within the school. If the school refuses to provide your desired services within school, this could also be the basis for a due process hearing.
Finally, your question suggests that the school is in effect "kicking out" your child. If the school district is refusing to allow your child to attend school, this would constitute a constructive suspension or expulsion even if the school has not officially initiated suspension or expulsion proceedings. Suspensions in excess of ten school days constitute a change of placement which requires the convening of a special manifestation meeting to determine if the behavior relating to the exclusion is related to the disability, as well as the initiation or review of existing functional behavioral analysis and behavioral intervention plans to address the behavior that is leading to the proposed exclusion.
Again, you would have the option of requesting a due process hearing if you feel that your child is being improperly excluded from school. Even if you're the decision to exclude them from school would ultimately be upheld, your child retains the right to receive continuing services to allow them to make progress on their goals and objectives, have access to the general curriculum, and to address the behaviors that are leading to the exclusion.
(August 2008)
Can the school refuse to let a child attend a party because they "can't handle him?"
I was told not to send my son to kindergarten on a day they were having a "fun" activity day because the teacher didn't think she could "watch/handle" him? Is this legal? Should I consult an attorney? He was shortly thereafter diagnosed with ADHD. He cried all day when i told him he couldn't go to school that day. I felt and still feel horrible for not just taking him anyway.
Melinda
Dear Melinda:
You report that you were told not to send your kindergartener to school on an activity day because the school felt they couldn’t handle him. Subsequently, your son was diagnosed with ADHD. Even if your son had not been diagnosed with ADHD, if he is old enough to be covered by your state’s compulsory attendance laws (kindergarten and/or school attendance prior to age 5 or 6 are not always required under state laws), he has a right to attend school even if he hadn’t been diagnosed with a disability.
The only basis for a school to exclude a child from attendance who is legally enrolled is to follow the procedures relating to suspension and expulsion. State laws may also allow schools to exclude students who do not have appropriate vaccines or certain medical documentation, which is not the issue here. Since your son had not done anything to justify suspension, he should not have been excluded.
Given that your son has subsequently been diagnosed with ADHD, you may wish to inform your school of the diagnosis if you feel that he needs additional services, supports or accommodations. You have a right to request that your child be evaluated to determine whether he qualifies for special education or for a Section 504 plan (which can provide for services or accommodations). If you make a request for evaluation in writing, the school may agree to the evaluation. If they agree, they must discuss with you what testing is needed and obtain your written consent for the evaluation. If they feel an evaluation is not appropriate, they must notify you in writing that they are refusing the request, the reason for the refusal, and inform you of your right to request an impartial hearing to challenge the refusal of the request.
(November 2007)
Is it okay to suspend a student over and over again for the same non-threatening, non-violent offense?
Can a school suspend a student for ten days for one specific offense and then a month later suspend him for another six days for a similar offense, and then two months later suspend him for nine days for a different offense, and so on throughout the academic year?
The school indicated that they could suspend the student for up to ten days for each successive incident of misbehavior without a manifestation hearing since the suspensions were not more than ten days each. They offered an in-home tutor.
These incidents involved insubordination and did not involve a threat of harm to self or others, (e.g., threat or physical aggression, hand gun, illegal substances, etc.)
Dr Castoro
St. Charles
Your question concerns the rules applying to whether a school can suspend a child multiple times in an amount which cumulatively exceeds the ten school day limit on suspensions occurring without the exclusion being treated as a change of placement, triggering the IDEA and 504 disciplining safeguards.
Under IDEA and Section 504, the rules have traditionally required schools to count the total number of days to suspensions. If the total days exceeded ten days in the aggregate and were either close in time or reflective of the pattern of similar behavior, the total number of days of suspension could not exceed ten school days.
Unfortunately, from my perspective, under the new IDEA 2004 rules, the school need only treat a suspension as triggering the ten day safeguards if the behaviors are part of a pattern and are close together in time. 34 CFR § 300.536 (a).
Moreover, it is up to the IEP team/administration to make the determination. 34 CFR § 300.536 (b)(l).
(October 2007)
What should a parent do when their teenage son has behavioral problems that might lead to fights with other students?
My son has been diagnosed with ADHD and has been retained twice. He is now in the 10th grade and still has multiple issues with his behavior. He has a teacher that agitates him and this has been brought to the attention of several school representatives. No one has bothered to address this until he is now being suspended for three days and is being sent to an alternative school for 45 days because an associate principal was hurt after trying to hold him back after he was hit in the back of the head by another boy at his school. Another assistant principal told another one of my son's that he heard friends of the boy who hit my oldest son that there were going to jump on both of my sons at the part later on that day. My younger son told my oldest son this news which made him even more upset.
Based on the manner in which the school handled the situation, should my son be sent to the alternative school, especially since the assistant principal was present in the ARD we had for my son when he first started attending that school? Knowing this information about my son, should he have not tried to do more to remove my son from that situation? It could have kept the associate principal from getting hurt.
If you disagree with the school's decision to send your son to an alternative school, you have a right to request an impartial due process hearing to challenge the transfer. However, your child will be in the alternative 45 day placement while the hearing is pending. You have a right to request an expedited hearing, which means the hearing is supposed to occur within 20 days of receipt of your request. However, as a general matter, the school district's failure to remove your son from the situation demonstrates poor judgment, but would have greater legal significance if your son's IEP referenced this behavioral problem or had a specific procedure for dealing with it. In the future, you should try to ensure that the IEP has a behavior plan which addresses these issues and prescribes how the staff should respond if your son is having difficulty, regardless of whether he started the problem or not.
This benefits your son in two ways. First, it provides a more proactive and positive plan to help him maintain appropriate behavior. Second, it sets out the school's responsibilities and gives you a strategic means to hold them accountable if they fail to follow the plan.
(April 2007)
For more information on this topic, please visit the Behavior & Social Skills section in LD InDepth.
