Discipline - Special Circumstances Removal

Discipline - Special Circumstances Removal

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Children with disabilities may be removed from their IEP driven educational placements without regard to whether their disability is related to their misbehavior in three special circumstances; where the infraction involves weapons, drugs, or serious bodily injury.

Key Points: 20 U.S.C. 1415(k)(1)(G) (IDEA 2004); 34 CFR 300.520(2).

Special circumstances are three specific situations where school personnel may remove a student with a disability to an interim alternative educational setting for not more than 45 days without regard to whether the behavior is determined to be a manifestation of the child's disability in only three specific situations. These three exceptions are:

Weapons: The child carries or possesses a weapon to or at school or on school premises or at a school function. A "weapon" is defined as a "device, instrument, material or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2.5 inches in length. 34 CFR 300.520(d)(3); 18 U.S.C. 930 (g)(2).

Drugs: The student 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. Drugs are defined as controlled substances or illegal drugs pursuant to 21 U.S. C. 812(c); 34 CFR 300.520(d)(1)

Serious Bodily Injury: The student has inflicted serious bodily injury upon another person while at school on school premises or at a school function. 20 U.S.C. 1415(k)(1)(G) defines serious bodily injury as bodily injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ or mental faculty. 20 U.S.C. 1365(h)(3); See, U.S. v. Johnson, 637 F. 2d 1224, overruled on other unrelated grounds (9th Cir. 1980).

What This Means:

IEP teams are required to identify and plan a program of positive behavioral support for a child whose disability interferes with his/her learning or the learning of others. 34 CFR 300.346(a)(2). Because of this, most children with disabilities should have a way for school personnel to respond to any behavioral concerns. In any instance, where behavior is a concern, it is a good idea to convene an IEP team at the earliest possible opportunity after the behavioral concern comes to the attention of any IEP team member. Federal law does permit school administrators, however, to remove a student with a disability to another location for not longer than 45 days in three limited exceptions: where the situation involves a weapon, drugs or serious bodily injury. 34 CFR 300.520(2)¹. It is important to note that each of the three exceptions is tied to a federal definition of the situation and in each case the definition is one tied to the federal criminal code. The IEP team, not school administrators, decide the interim placement to which the child is removed. ²

Case Examples About Special Circumstances Removal:

Weapons: Hearing officers have concluded that weapon within the meaning of this provision does not mean a paintball gun, a pencil, a paper clip, a knife less than 2.5 inches long. However, hearing officers have held that a cigarette lighter with a retractable blade and a large knife were weapons.³

Drugs: Hearing officers have concluded that this could include marijuana. Prior to the enactment of the regulation, one Court had concluded that the "risk" of drug selling was insufficient reason to remove a student from school.⁴

Serious Bodily Injury: No cases have yet interpreted this provision but it is expected that the federal regulation will be issued that will provide guidance.

NOTICE: If your child has a disability and is facing disciplinary action of any kind, it is best to consult immediately with an attorney or advocate to ensure rights are protected. If you are uncertain of your rights and are unable to contact counsel, state in writing to the school district that you are attempting to find out about your rights. In general, your child's rights are best protected by immediately requesting an IEP team meeting.

Contact us!

If you have questions about any of the information in this fact sheet or wish to learn more about your child's special education rights, contact the Disability Law Center of Alaska at 1-800-478-1234 (toll-free Voice/TTY), or visit our website at http://www.dlcak.org.

References

1. The regulation has not been revised yet to include serious bodily injury which was added by IDEA 2004 (as of November 2004, effective July 1, 2005).
2. ISD 279, 30 IDELR 645 (MN 1999) (error for school administrators to determine interim alternative placement- this is an IEP decision.)
3. Not weapons: (paintball gun) ISD 279, 30 IDELR 645 (MN 1999); (pencil) ISD 831, 32 IDELR 163 (MN 1999);(small knife) Alameda Unified, 32 IDELR 159 ( 2000); (paper clip) Anaheim Union, 32 IDELR 129 (CA 2000). Weapons: cigarette lighter w/blade Chester Upland, 35 IDELR 104 (PA 2001); (large knife) Sierra Sands, 32 IDELR 78 (CA 1999).
4. There have not been a significant number of drug related cases reported. Eugene School District, 104 LRP 42399 (OR SEA 2004) (removal for possession of marijuana). J.B. v. ISD No. 191, 21 IDELR 1157 (D. MN 1995)(removal for possession of marijuana and small knife reversed) (Note: This case was prior to 1997/1999 regulations).

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