A hearing officer decision recently highlighted the importance of continuing appropriate educational services for a child who is removed for over 10 days.  The administrative law judge ruled that a school district that sending books and assignments home was not the same as continuing the educational services of a student with a cognitive impairment who was removed from school for bullying.

The offense leading to the discipline consisted of the student and her sibling chasing a classmate, holding her down, and pushing snow in her face. During a manifestation determination review, the school district found the conduct was unrelated to her disability. However, the district decided to "administratively transfer" the student instead of suspending her. The district told her family to keep her home until the transfer was approved.

The family filed a due process complaint. The hearing officer noted that when a student with a disability is removed from her placement for more than 10 days for misconduct unrelated to a disability, a district must continue educational services so as to enable the child to continue to participate in the general education curriculum and progress toward her IEP goals. The district did not do this.

"The complete cessation of any instruction during this time stands in stark contrast to the statement in the ... IEP indicating that Student was to receive a full 30 hour week of instruction, including 25 hours of special education instruction," the ALJ wrote. Nor could the district defend its actions by its weakly-supported assertion that the removal was justified under the school policy's "dangerousness" exception. The ALJ indicated that the duty to continue services for an excluded student exists even in the case of dangerous conduct. Also, there was no indication that the snow incident amounted to dangerous conduct as defined by the IDEA, which would have warranted a longer exclusion from school up to 45 days in length. 

Here, the school district violated the IDEA because the student was excluded for one month (pending an administrative transfer to another school) and received no instruction.  The ALJ determined that the school district denied her access to the curriculum and impeded her ability to progress.  Districts must continue to provide meaningful educational services based upon a student’s IEP.  The case is Detroit City School District, 111 LRP 1824 (2010).

If you are interested in learning more, or if you have any questions and would like to discuss these developments further, please contact any of Brock Clay’s special education attorneys.

Copyright © 2011 Brock, Clay, Calhoun & Rogers, LLC. All Rights Reserved.
This communication is for general informational purposes only and is not intended to constitute legal advice or a recommended course of action in any given situation. This communication is not intended to be, and should not be, relied upon by the recipient in making decisions of a legal nature with respect to the issues discussed herein. The recipient is encouraged to consult independent counsel before making any decisions or taking any action concerning the matters in this communication. This communication does not create an attorney-client relationship between Brock, Clay, Calhoun & Rogers, LLC and the recipient.