If your child has a 504 plan and is facing expulsion, you should know that your child has rights. In a nutshell, the school district cannot expel students for behavior that is caused by or substantially related to their disability. This is true for children with special education needs, who have individualized education plans (IEP’s) but it is also true for children with disabilities who have 504 plans (not IEP’s).
By way of background, “504 plans” are based on Section 504 of the Rehabilitation Act, a federal law that prohibits disability based discrimination by entities that receive federal funds (including public schools). Although Section 504 doesn’t explicitly talk about manifestation determination reviews, federal courts and the United States Office of Civil Rights have been clear that children with disabilities and 504 plans are entitled to a manifestation determination review prior to expulsion proceedings. And, in general, the procedures mirror those under the Individuals with Disabilities Education Act (IDEA), the law that gives us special education as we know it.
This means that before the school holds an expulsion hearing for your child who has a 504 plan, it must hold a meeting with people knowledgeable about your child and the meaning of evaluative information. This usually includes the people who meet with you to develop the 504 plan, but be sure someone in the meeting is knowledgeable about your child’s disability. The team must determine whether the conduct for which your child is being disciplined is caused by or substantially related to the child’s disability. If it is, the school cannot proceed with expulsion.
How the team makes this decision is important. The decision of the 504 team must be based on recent evaluations, not the doctor’s note you submitted 5 years prior when the 504 plan was first developed. Moreover, Section 504 prohibits a change in placement without first conducting a re-evaluation (including a manifestation determination review) that is compliant with Section 504. 34 CFR §104.3.
Here are 10 things you should know:
- Children with 504 plans can’t be expelled for conduct that is caused by or substantially related to their disability;
- The decision about whether the conduct is substantially related to the disability must be made based on recent evaluative data;
- The team that makes the decision must include people knowledgeable about your child, the meaning of the evaluation data, and the placement options;
- You, the parent, are part of the team;
- Parents can invite people to the meeting, like the child’s psychiatrist, clinician, or medical provider;
- If a child is repeatedly suspended for short periods of time, resulting in cumulative exclusions of more than 10 days, this may constitute a change in placement and, if so, triggers the requirement for a manifestation determination review prior to proceeding with additional suspensions;
- In-school suspensions may count towards the ten days . . . . but sometimes they don’t;
- The team can’t pre-determine whether your child’s conduct is a manifestation of his or her disability;
- Schools can’t discipline students with disabilities more harshly than they discipline other students; and
- If your child does get expelled, he or she is generally entitled to an alternative educational opportunity.
Remember also that if your child has behavioral issues related to his or her disability, the district should be addressing your child’s needs by conducting a functional behavioral assessment and developing of a behavior intervention plan. If your child doesn’t have a behavior intervention plan, that is cause for concern and inquiry. Similarly, if your child is struggling with maintaining appropriate behaviors in school, that is a reason for referral to determine eligibility for special education.
There is a lot more to know about expulsion. See this flowchart created by the Connecticut State Department of Education about discipline of children with special education needs and these Guidelines on In-School and Out-of-School Suspension by the Connecticut State Department of Education.
If your child is facing expulsion and you have any concerns about your child’s education, it is wise to contact a lawyer as soon as you hear about a possible expulsion. Contact me for a free 30 minute phone consultation.