This month's issue departs from our usual format and is entirely devoted to discipline matters. We will occasionally develop issues devoted to a single theme to enable us to provide more comprehensive presentation of a topic.

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Inside this issue:

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LEGISLATURE ENACTS THREE NEW DISCIPLINE STATUTES

The Michigan Legislature recently passed Public Acts 102, 103 and 104. Each of these acts amends the Revised School Code to permit or require suspension or expulsion of students under certain circumstances.

Act 104

Act 104 adds Section 1311a to the Revised School Code and addresses physical and verbal assaults on school staff and other adults, and bomb threats. Subsection (1) requires that a student enrolled in grade six or above who commits a physical assault at school against a person employed by the district or working as a volunteer or a contractor be permanently expelled if the physical assault is reported to the school board, the school district superintendent or the building principal by the victim or, if the victim is unable to report the assault, by another person on the victim's behalf. If the report is received by the superintendent or a building principal, it must be forwarded to the school board. The act broadly defines "physical assault" as "intentionally causing or attempting to cause physical harm to another through force or violence" and defines "at school" as "in a classroom, elsewhere on school premises, on a school bus or other school-related vehicle, or at a school-sponsored activity or event whether or not it is held on school premises." Section 1311a uses the same process as the weapons provisions in Section 1311. A student who has been permanently expelled for a physical assault may apply to be reinstated after 180 school days following the date of expulsion.

Act 104 also adds a subsection (2) to Section 1311a. This subsection provides that a student enrolled in grade six or above who commits a verbal assault, as defined by school board policy, at school against a district employee or volunteer or contractor and the verbal assault is reported in the same manner as a physical assault, or makes a bomb threat or similar threat directed at a school building, other school property or a school-related event, shall be expelled for up to 180 school days. The act does not define the term "verbal assault."

Act 104 authorizes the school board to designate the superintendent, a building principal or other school district official to handle expulsions on behalf of the board. The board may, but is not required to, authorize administrators to handle expulsion in any or all Act 104 situations. Expulsions for verbal assault or bomb threats are "for up to 180 school days." There is no specified minimum. Because the statute provides that the board "shall expel," it presumably must remove the student for at least one day but appears to have complete discretion between one and 180 days. The verbal assault provision cannot be implemented until the school board adopts a policy defining the term.

Subsection (8) of section 1311a expressly provides that the section "does not diminish the due process rights under federal law of a pupil who has been determined to be eligible for special education programs and services."

Act 102

Act 102 adds section 1310 to the Revised School Code and addresses physical assaults on other students. It defines the terms "physical assault" and "at school" the same as they are defined in Act 104. Section 1310 provides that a student in grade six or above who commits a physical assault at school against another student and the physical assault is reported to the school board, the superintendent or building principal, shall be expelled from the district for up to 180 school days. Again, there is no minimum time specified but presumably the student must be expelled for at least one day. Unlike Act 104, the school board is required to act on the expulsion and is not authorized to designate a school administrator to handle expulsions under this section. Unlike Act 104, Act 102 does not contain any express provision recognizing the due process rights of special education students.

Act 103

Act 103 adds section 1309 to the Revised School Code. Section 1309 permits a teacher who has good reason to believe that a student's conduct in a class, subject, or activity constitutes conduct for which the student may be suspended "according to the local policy required under subsection (2)," to suspend the student from the class, subject, or activity for up to one full school day. These are being referred to as "snap suspensions." The teacher must report the suspension and the reason to the principal and send the student to the principal for appropriate action. That action may allow the student to remain at school under appropriate supervision. The teacher must then ask the parent or guardian of the student to attend a parent-teacher conference regarding the suspension. Whenever practicable the school counselor, school psychologist or school social worker shall attend the conference and a school administrator must attend if the teacher or parent or guardian requests his or her attendance. During the suspension, the student cannot be returned to the class, subject, or activity from which he or she was suspended without the concurrence of the teacher.

Subsection (2) requires the school board to adopt a local policy "specifying the types of conduct for which a pupil may be suspended from a class, subject, or activity by a teacher under this section." This policy must be included in the district's code of student conduct. While the school board must adopt a policy, it has complete discretion in specifying the types of conduct for which a teacher may suspend. The policy need not permit snap suspensions for all the various types of conduct that may be violations of the code of conduct. It could, for example, limit that authority to more egregious situations. Act 103 does not contain any express provision regarding the due process rights of special education students.

Implementing the Acts

Each board of education needs to adopt policies defining "verbal assault" under Act 104 and the types of conduct for which teachers can "snap suspend" under Act 103. Neither of these provisions can be implemented until these policies are adopted. A board should also determine whether it wishes to delegate expulsion decisions for some or all physical or verbal assaults on staff or other adults and bomb threats to administrators. If it does wish to do so, it should adopt a policy specifying which decisions are delegated and to whom. Teachers need to be informed that, if they impose snap suspensions, each time they do so they must ask the parent to attend a parent-teacher conference regarding the suspension.

Even if some of the new statutory enactments do not contain specific language recognizing the federal due process rights of special education students, special education students should nonetheless be afforded those rights because the failure to do so would constitute a violation of IDEA. Remember, under the Supremacy Clause of the United States Constitution, if federal and state laws are inconsistent or in conflict, federal law prevails. Whether special education rights are triggered will depend on the impact of the proposed discipline, ie., whether it would result in a change of placement (suspension in excess of 10 consecutive school days or a pattern of exclusion) or an accumulation of suspension days in the "beyond 10 but not yet change in placement range," to which special education due process would attach, versus suspension, that added to any prior suspensions would leave the student in the "10 day or less range," which would not trigger special education procedural protections.

Some of the provisions of these acts are problematic and we understand that the legislative leadership and Governor have already agreed in concept to curative amendments which should be enacted in the fall session. Act 102 will be amended to permit the board to authorize administrators to handle expulsions. As "expulsion" is generally understood to mean a long-term or permanent exclusion, the provisions for assaults on students and for verbal assaults will be amended to require "suspension or expulsion" for up to 180 days. In addition, the verbal assaults provision in Act 104, which also includes bomb threats, will be further amended to permit expulsions of more than 180 days at the discretion of the board. This is intended to allow boards to permanently expel students making bomb threats. Finally, requirements in Act 104 that any student expelled under the act be referred to FIA or CMH will be amended to only require referrals for permanent expulsion for physical assaults.

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OSEP RELEASES SERIES OF LETTERS

DISCUSSING DISCIPLINE ISSUES

The federal Office of Special Education Programs (OSEP) recently released a series of letters addressing discipline inquiries that were issued between the effective date of IDEA-97 and promulgation of the final IDEA-97 regulations in March 1999. These letters clearly demonstrate the mindset of the federal department and, had they been released earlier, would have telegraphed two significant changes in the final regulations.

OSEP Denies Dual Discipline System

In responding to several inquiries asking why students with disabilities cannot be suspended for more than 10 days or why there are dual systems for discipline of disabled and nondisabled students, OSEP replied in letters to Anonymous, 30 IDELR 608, Spiropulus, 30 IDELR 709, Miller, 30 IDELR 817, and Anonymous, 30 IDELR 820, that IDEA-97 expands the authority of school officials to protect the safety of all students while ensuring that essential rights and protections are available to students with disabilities. In denying that there is a dual system, OSEP stated that its position has always been that disabled students may be disciplined in the same manner as nondisabled students "as long as disabled students are not penalized for behavior that is a manifestation of their disability and are provided educational services in an alternative setting."

The OSEP letters then discuss requirements for interim alternative settings and post-expulsion FAPE. Each of the letters concludes with the statement:

It has long been the Department's view that cutting off students with disabilities from educational services is not an effective punishment. Instead, it reduces their chances of being productive, law-abiding members of their communities. We believe that continued services are essential to ensure that disabled students who are subject to disciplinary exclusions from school do not fall behind and are able to gain the necessary skills to modify their behavior once they return to school.

OSEP does not explain why these concerns should be unique to students with disabilities or warrant a different treatment of such students.

Post Ten FAPE

The one point of real note in these letters is the statement in Letter to Miller that a FAPE must be provided to students on the eleventh day of removal from the current placement in a given school year. This requirement is not premised on a change of placement. The final regulations, of course, adopt this position.

Options for Dangerousness

In Letter to Surratt, 30 IDELR 614, OSEP uses similar language in responding to an inquiry regarding available options for dealing with students presenting potential threats to others. OSEP notes that such students may be removed for up to 10 school days and districts may seek orders from hearing officers placing these students in interim alternative settings for up to 45 calendar days. Its most important observation is that disciplinary procedures need not be invoked at all, if the district and parents can agree on a change in placement. This point is pertinent whenever discipline is being considered. If state law does not restrict district flexibility by mandating a disciplinary response and if parents are agreeable, and they often are, the district does not need to become involved in IAPs and manifestation determinations and the rest of the discipline process. Instead, an IEPT meeting can be convened and the student's placement changed to a more appropriate setting.

PBSs and BIPs: Are They Related?

In Letter to Anonymous, 30 IDELR 707, OSEP discussed the linkage between generic IEP requirements and discipline provisions. By way of preface to OSEP's comments, it should be noted that in the "generic" IEP, the team members set the stage for later planning by first addressing eligibility and present level of performance. At the present level of performance stage the IEP must describe the impact of the disability on the child's ability to be involved in and progress in the general curriculum. The IEP team is also required to consider whether any child presents certain special needs, which are reflected in the checklist of "special factors". If from the present level of performance analysis, the IEPT is presented with a child whose disability impacts behavior to the point it impedes his/her learning or that of others, the team is to "consider, if appropriate, strategies, including positive behavioral interventions, strategies and supports to address that behavior." This provision is proactive and applies regardless of whether disciplinary action is contemplated. The discipline language in IDEA is reactive to a particular, often crisis, discipline situation. In the Letter to Anonymous, OSEP makes the following observations regarding the more generic IEP requirements:

A key provision in IDEA '97 is using positive behavior interventions and supports to ensure that disabled students can participate fully in classes with their nondisabled peers and, through the IEP process, meaningful measures are undertaken to ensure that children with disabilities do not engage in behaviors that result in disciplinary actions which may prevent their participation in classes with nondisabled peers.

In the Comments and Analysis material accompanying the promulgation of the final regulations, OSEP describes a further relationship between positive behavior supports on the proactive side and the BIP review that is triggered in any cumulative suspension past 10 school days or manifestation determination situation. The positive behavior supports resulting from proactive planning may constitute the BIP that is reviewed in the discipline context.

Post Expulsion FAPE

In Letter to Anonymous, 30 IDELR 604, OSEP addressed provision of post-expulsion educational services. The letter stresses that, even when conduct is not a manifestation of a disability, FAPE for a student placed in an interim alternative setting or long-term suspension or expulsion must provide for continued participation in the general curriculum, although in another setting. The final regulations use the term "progress" rather than "participate", but the intended sense is the same.

Expedited Hearings

In the final response, Letter to Gamm, 30 IDELR 711, OSEP addressed the expedited hearing provision and concluded that, whenever parents request a hearing because of a disagreement with a determination that the child's behavior was not a manifestation of his or her disability or with a disciplinary change in placement, the hearing must be expedited. A commonly overlooked change in the final regulations also mandates expedited hearings. Parents need not specifically request an expedited hearing. Any hearing convened in these situations must be expedited. An expedited hearing is also triggered whenever a district requests an interim alternative placement due to dangerousness. (See related article on page 6.)

This Issue Focuses on Discipline

The FAQ's   

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Q: Can a student with a disability ever be suspended for more than 10 days during a school year?

A: YES. The Analysis of the final regulations indicates that "neither the statute nor the proposed or final regulations impose absolute limits on the number of days that a child can be removed from his or her current placement in a school year." The final regulations modified the proposed regulations to make clear that multiple short-term suspensions (i.e., no more than 10 consecutive days each) for separate acts of misconduct are permitted to the extent that they do not constitute a change in placement. A change in placement is defined in 34 CFR ' 300.519 as either (1) a removal for more than 10 consecutive days, or (2) a series of removal which constitute a "pattern" and culminate in more than 10 cumulative days in a school year. In determining whether a "pattern" exists, the Department of Education identified such factors as the length of each suspension, the total amount of time that the student is excluded from school, the proximity of the suspensions to each other, etc., as being factors to consider. This determination must be made on a case-by-case basis by the school district. Consideration of each case must look at all the aspects of each removal, and may be more appropriately done by a person not responsible for imposition of the removal. As with most issues relating to students with disabilities, such determination of "pattern" will be subject to review through due process proceedings.

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CONGRESS CONSIDERS CHANGE

IN IDEA DISCIPLINE PROVISIONS

    Lawmakers have been busy after the Columbine tragedy. The Michigan legislature enacted a package of school safety laws (see "Legislature Enacts Three New Discipline Statutes"). Meanwhile, in Washington the House of Representatives and the Senate have each passed versions of a juvenile justice bill. Each bill contains an amendment to the discipline provisions of IDEA that would change the way districts are permitted to respond to weapons-related offenses by students with disabilities.

Both the House and Senate versions of the IDEA amendment would allow districts to suspend or expel students with disabilities for bringing a weapon to or possessing a weapon at school or school-related functions to the same extent that non-disabled students can be suspended or expelled. Under both versions, students with disabilities could be suspended or expelled for weapon-related offenses even if the conduct is a manifestation of the student's disability (thus negating the need to conduct a manifestation determination) and the district would not be required to provide post-expulsion educational services.

Under the Senate version, this exception would apply only to use of guns and firearms. Under the House version, the exception would apply to use of all "dangerous weapons" which is the same term as is used in the current 45-day weapons interim alternative setting provision.

When the two houses pass different versions of the same bill and cannot agree, a conference committee composed of members of both houses is appointed to work out the differences. Such committees almost always reach a compromise which Congress then enacts. A conference committee has been appointed on the juvenile justice bill.

As both versions of the bill contain an IDEA amendment, it is a virtual certainty that an amendment will be enacted. The only real question is how broad will the definition of "weapon" be. However, the amendment probably will apply only to conduct occurring after its effective date. In the interim, districts must continue to comply with the requirements of the current law, including the conducting of manifestation determination IEPTs and the provision of post-expulsion FAPE.

The act broadly defines "physical assault" as "intentionally causing or attempting to cause physical harm to another through force or violence"

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IMPLEMENTING EXPEDITED HEARINGS

Under the IDEA-97 regulations, parents must be provided an expedited hearing when they request a hearing to challenge a manifestation determination or disciplinary change in placement. They need not specifically request an expedited hearing. A district is also entitled to an expedited hearing when it requests an interim alternative placement because a child is dangerous.

The Michigan Department of Education has proposed an expedited hearing procedure (as well as a revised complaint procedure and an Adjusted Michigan Monitoring Model.) The Department held three public hearings on these documents on September 22, 1999 and also invited written comments. Only a handful of persons testified at the hearings and relatively few written comments were filed.

One of the most controversial aspects of the proposed expedited hearing procedure is that it is a procedure that modifies existing Michigan special education administrative rules. At least two of the written comments filed with the Department note that the Department is without legal authority to adopt the proposed expedited hearing procedure and must instead promulgate an administrative rule. There is virtually no chance that rule can be processed before next summer, at the earliest.

Another controversial aspect of the proposed expedited hearing procedure is that it would eliminate any opportunity for mutual selection of a hearing officer and would appoint from the list of state review officers rather than from the list of hearing officers.

In the interim, districts should use the current administrative rules governing due process hearings but, in order to comply with the federal expedited hearing regulation (34 CFR 300.528), should not agree to, and the hearing officer should not permit, any extensions of time. As a best practice, if the district and parent cannot agree on a hearing officer within 7 days of the request, the Department should be asked to appoint. Expedited hearings can be completed in 45 days under current rules. The parties and the hearing officer need to make sure that they are.

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