Discipline
When a student violates the district's Code of Student Conduct most parents are unaware of the child's rights regarding discipline.
Schools are aware of the parent's lack of knowledge in this area and often take advantage of the situation. When a student that is identified as an individual with a disability under Section 504 or Special Education (IDEA) violates the Code of Student Conduct that is punishable by an assignment to a District Alternative Education Program (DAEP), or the student has been assigned ten school days of suspension, the district is required to convene a Manifestation Determination Review (MDR). The MDR is a special type of Admission, Review and Dismissal (ARD) meeting that is tasked to answer two questions:
- If the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability.
- If the conduct in question was the direct result of the LEA's failure to implement the IEP. (34 CFR 300.50 (e) (i, ii))
If the answer to either questions 1 or 2 is yes, then the district cannot place the student in the DAEP.
There are exceptions, however.
(g) Special circumstances. School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child's disability,
if the child --
(1) Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of an SEA or an LEA;
(2) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA; or
(3) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA. (34 CFR 300.50 (g) 1,2,3).
Our firm has found in several cases that a district has claimed that the student has caused serious bodily injury when this has not occurred.
SO, WHAT HAPPENS IF THE MDR COMMITTEE DETERMINES THAT THE BEHAVIOR IN QUESTION IS NOT DIRECTLY AND SUBSTANTIALLY LINKED TO THE DISABILITY OR THE LEA DID NOT FAIL TO IMPLEMENT THE IEP?
Under the IDEA the parent has the right to appeal the decision of the MDR committee by filing for an Expedited Due Process Hearing.
ARE THERE ANY OTHER APPEALS FOR A DAEP PLACEMENT IN TEXAS?
Yes. Under Chapter 37.001 of the Texas Education Code, a student that is assigned to a DAEP is entitled to an appeal of the decision by school administrators which must at least consider the following factors in decision making:
(A) self-defense;
(B) intent or lack of intent at the time the student engaged in the conduct;
(C) a student's disciplinary history; or
(D) a disability that substantially impairs the student's capacity to appreciate the wrongfulness of the student's conduct;
Our firm has successfully utilized both appeals processes and have in most cases either greatly reduced the duration and severity of the punishment or have gotten it eliminated altogether!!
Unfortunately, the disciplinary process is confusing and difficult for most parents to navigate on their own. Our professionals at National ARD/IEP Advocates are well acquainted and experienced in this process and can assist you in asserting your child's rights. If your child is accused of violating the Code of Student Conduct and is being assigned to a DAEP, please contact our office to assist you in the process.
YOU ARE NOT ALONE!!!