The first assumption I am going to make for this blog article is that the child has an IEP.  Having an IEP does make a big difference in terms of how the school can deal with disciplining the child.

There are three distinct discipline time-frames that should be considered.  The first time-frame is short term, and concerns suspensions for 10 school days or less; the second time-frame is medium term, and concerns discipline for up to 45 school days; the third time-frame is long-term, and concerns discipline that might extend beyond 45 school days.

Regarding a 10 day suspension, the federal Individuals with Disabilities Education Act (IDEA) applies.  Under the IDEA, “School personnel… may remove a child with a disability who violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives are applied to children without disabilities).” 20 U.S.C. § 1415(k)(1)(B).  In other words, a special education child can be disciplined just like a non-special education child for up to 10 school days.

Any removal beyond 10 school days is considered a change in placement.  For any such change in placement, the school district needs to conduct a Manifestation Determination to determine if the behavior in question is a manifestation of the child’s disability, or if the conduct in question may have been caused by the school district’s failure to implement the IEP.  If the conduct is found to be a manifestation of the disability, the district is required to conduct a Functional Behavioral Assessment and to develop a Behavior Plan, and also to return the child to the placement from which he was removed.  20 U.S.C. § 1415(k)(1)(E)-(F).  If the behavior was not a manifestation of a disability, the child can be removed from his then-current placement, though he shall “continue to receive educational services… so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.”

The above paragraph applies to any type of discipline issue if the school district is trying to remove the child for more than 10 days.  However, regardless of the outcome of the Manifestation Determination, the school district may remove a child to an interim alternative educational setting in various special circumstances.  One such special circumstance is when a child possesses a weapon – which includes a knife – on school grounds.  20 U.S.C. § 1415(k)(1)(G).  Under federal law, one big question concerns the size of the knife.  According to 18 U.S.C. § 930(g)(2), the definition of a weapon “does not include a pocket knife with a blade of less than 2½ inches in length.”  If the knife in question is less than 2½ inches in length, the district would not have the right to remove the child under this section of the law.

So far we have discussed only federal law.  In Massachusetts, state law also applies for longer term suspensions (potentially beyond 45 school days).  Under Mass. Gen. Laws ch. 71 § 37H(a), a school principal may expel any student “who is found on school premises or at school-sponsored or school-related events, including athletic games, in possession of a dangerous weapon, including, but not limited to, a gun or a knife.”  Any student so charged must be notified in writing of an opportunity for hearing, and be allowed to have legal representation, as well as the opportunity to present evidence and witnesses at a hearing with the principal. The principal does have discretion to suspend rather than expel a student. (Mass. Gen. Laws ch. 71 § 37H(c)).  There is also the right to appeal to the superintendent within 10 days of the expulsion.  (Mass. Gen. Laws ch. 71 § 37H(d)).

To make matters even more concerning, Massachusetts law also states:  “When a student is expelled under the provisions of this section, no school or school district within the commonwealth shall be required to admit such student or to provide educational services to said student. If said student does apply for admission to another school or school district, the superintendent of the school district to which the application is made may request and shall receive from the superintendent of the school expelling said student a written statement of the reasons for said expulsion.”  (Mass. Gen. Laws ch. 71 § 37H(e)).   In other words, if a principal, in his or her sole discretion, expels a student from school because of one of the above violations, the student may not be able to attend public school anywhere else in Massachusetts.  Even moving from one district to another might not help.  Luckily, federal law does serve as a safety net, such that school districts do need to provide IEP services for special education children, regardless of any discipline decisions that are applied.

Regarding the size of the knife, Massachusetts law does not have the same 2 ½ inch provision that federal law does.  This means that even if you might have a strong argument that the district should not be able to apply a 45 day removal under IDEA because it cannot prove that the child had a knife larger than 2 ½ inches, the school district would still be able to apply a 45 day or longer suspension or removal under Massachusetts law.

For more information about Chapter 37H, 37H 1/2, and upcoming changes to this area of the law in Massachusetts, please refer to my other blog articles:

• “Student Discipline Laws in Massachusetts – Big Changes Are Coming”
  
• “School Discipline Gets Even More Draconian with Mass Gen Laws Ch 71 Section 37H 1/2”
• “Student Discipline Laws – Improvements to 37H”

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.