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Georgia Special Education Law Blog

Discipline Protections for Students with Disabilities

on Mon, 01/29/2018 - 17:00

In addition to typical-student discipline rights, students with disabilities are protected from being disciplined for expressions of their disability. With typical student discipline, extra discipline steps are not required unless the district seeks 11 or more consecutive days of discipline. For students eligible for IEPs, extra protections arise once the school district has imposed a total of 10 days of out-of-school suspension, regardless of whether the days were consecutive.*

Once the right to protection from discipline is triggered, the IEP team must convene for a special type of meeting generally called a manifestation meeting. As the name suggests, the team is required to determine if the student's school-rule violations arose out of the student's disability, aka were a manifestation of the disability.

There are two ways a student’s misconduct can be classified as a manifestation. The first way is if the student’s conduct was a "direct result of failure to implement the IEP." For example, a student’s IEP may require that two staff be present with the student at all times. If one of the staff leaves the room to attend to some other issue and the student acts out, that misconduct likely would be a result of the failure to have two staff in the room.

The second and more common way that misconduct is classified as a manifestation is when the student’s behavior "has a direct and substantial relationship to the student’s disability." Be careful that the school district does not try to answer this question by considering whether the student knew what they did was wrong or violated the rules.** A cognitively impaired student who throws a chair across the room probably knows that they were not supposed to do that – it’s pretty likely the student committed that act instead of some other because the student understood the rules and what they were doing. Yet that is clearly a manifestation.

If the student’s conduct is determined to be a manifestation of the disability, then the school district cannot implement the long-term suspension or expulsion. In addition, the school district must conduct a behavioral evaluation and write a behavior plan to address how similar behavior will be addressed and prevented in the future. There is a statutory preference to maintain the student in the same placement as where the misconduct occurred.***

For punishment before accumulating ten total days of out-of-school suspension, most metro Atlanta school districts take the position that punishment is solely at the discretion of the principle or designee. I do not always agree.

Time can be tight, because the manifestation meeting is an additional step in the discipline timeline - even without considering special education issues, state law sets a timeline that discipline violation and appropriate punishment must be concluded within 10 days of the beginning of the suspension.

For most students served by IEPs, it is essential to focus on the manifestation meeting. If the team at this meeting concludes that a student's conduct is not a manifestation, school discipline law does not require further consideration of the student's disability. As a practical matter, most tribunal hearing officers will not consider a student's disability as mitigation of punishment. If you need help with the manifestation process, contact me to schedule an initial consultation.

Fn * Students eligible for 504 plans have similar legal protections, but defined by case law, not statute.

Fn ** S1 v. Turlington, 635 F.2d 342, 346 (5th Cir. Unit B 1981)

Fn *** 20 U.S.C. § 1415(k)(1)(F)(iii)

The Georgia Department of Education is conducting a survey of students with disabilities served by IEPs.

 

School Discipline Rights

on Fri, 12/29/2017 - 17:00

It can be terrifying to receive written notice that the school wants to suspend your student for a semester or more. Making things even more stressful, school employees are pressuring you to schedule the tribunal hearing or sign a waiver as quickly as possible. In fairness, school employees act this way because the school district has only 10 days from the beginning of the suspension to hold the tribunal hearing unless the student's parents agree differently.1

The rights that protect students depend on the length of punishment that the school district wants to impose. If the punishment is for 10 school days or less, the school district is generally allowed to impose punishment based on an administrator's investigation, including an opportunity for accused students to defend themselves. If someone like the vice principal asks witnesses what happened and gives the student a chance to explain, due process is satisfied. Parents need not be involved in the process at all.

If the punishment to be imposed exceeds 10 consecutive school days,2 the Constitution requires and Georgia law provides that the school district must hold a hearing, typically called a tribunal, to determine whether the student commit the accused violations of school rules, and what punishment, if any, should be imposed. Typically, school districts appoint retired school administrators or an employee from the school district legal department as hearing officers at the tribunal.

Before the tribunal, the district must provide written notice of (a) the time & place of the hearing, (b) a description of the specific discipline code(s) your student is accused of violating, (c) student's right to hire a lawyer, and (d) student's right to present evidence.3 Some school districts provide extra rights, including notice of maximum penalty the district is seeking or a list of witnesses - check your district's student handbook for more information.

The notice likely will not mention your right to obtain a copy of the documents that will be used in the hearing.4 Write a request to the person who signed the notice, seeking a copy of the evidence. Pay close attention to what those documents say, and which documents are included.

At the hearing, a school representative will present evidence for the hearing officer(s) to consider. If the representative offers a document or recording you did not receive in the evidence packet, tell the hearing officer that you did not receive it and ask them not to consider it. You will have the right to ask questions of the school's witnesses or call your own to testify.5 The hearing officer(s) must make their decisions based only on the evidence at the hearing. You are legally entitled to a written decision within 10 calendar days of the end of the hearing.6

The school district will make a transcript or recording of the hearing.7 The district must make you a copy if you request, but they may be able to charge a reasonable fee. You will need the transcript to appeal because you must explain the specific errors that you think led to the result you are challenging. Appeals are decided by the local board of education, whose decision can be appealed to the Georgia Department of Education. The timelines for appeals are extremely short.

Studies show that each day a student is not in school dramatically increases the chances that the student will drop out without graduating from high school. Potential long-term suspension is a serious issue with a substantial impact on your student's future. If your student is facing a tribunal hearing, contact a lawyer as soon as possible.

Free Education Rights Seminar
Rescheduled: January 22, 2018 - 10 AM

Art It Out Therapy Center (255 Village Parkway, Suite 580, Marietta GA 30067)
has invited me to present an overview of student education rights January 22, 2018, at 10 am.
Check the flyer below for additional information. Feel free to pass along to any interested folks.

Fn 1 O.C.G.A. 20-2-754(b)(2)
Fn 2 If a student is being suspended for a significant number of days without ever exceeding 11 consecutive school days, Georgia law is not literally being violated, but it is extremely likely that there is some significant legal issue that would justify consulting an attorney.

Fn 3 O.C.G.A. 20-2-754(b)(1)
Fn 4 O.C.G.A. 20-2-754(e)
Fn 5 O.C.G.A. 20-2-754(b)(3)
Fn 6 O.C.G.A. 20-2-754(c)
Fn 7 O.C.G.A. 20-2-754(b)(5)

 

Parental Concerns Section

on Tue, 12/19/2017 - 17:00

The steps of an IEP meeting can be very complicated and confusing. The school officials have a form that they are trying to complete and you may not know what things belong on what sections of the IEP form.

One thing school staff are required to ask about are concerns of the student's parents. These concerns can range from implementation of the IEP to communication between parents and school to goals or service levels or needs or basically anything. But just because you mention something does not mean the school district has agreed with you or agreed to implement your preferred solution.

When you mention an issue, your comments are likely to be included in the parent concerns section of the IEP document. But just because the problem or desired services are mentioned in the IEP document does not mean the school district has committed to address or implement anything. The general rule is that the school district is not committing to anything if it is not written in an IEP section like present levels, goals & objectives, student & teacher supports or services, or placement.

This problem is made worse if you are not given a copy of the IEP at the end of the meeting, because that makes it harder to check that the supports and services you want are included in the right section. It might not matter immediately, but if there is ever a dispute, the school district will implement what is in the written IEP unless you can convince them something different was decided at the meeting - in ordinary circumstances, that is difficult to prove.

As soon as you get a copy, you need to review it to make sure it says what the team decided at the meeting. If not, you need to stay on top of it until the school district agrees to amend the IEP with your consent or hold another IEP meeting to correct the mistakes.

***

Free Education Rights Seminar
Rescheduled: January 22, 2018 - 10 AM

Art It Out Therapy Center (255 Village Parkway, Suite 580, Marietta GA 30067)
has invited me to present an overview of student education rights January 22, 2018, at 10 am.
Check the flyer below for additional information - pdf link below picture. Feel free to pass along to any interested folks.

Failure to Make Progress

on Fri, 11/24/2017 - 17:00

Occasionally, I see a client whose progress towards particular goals is not sufficient to meet those goals before the year term of the IEP. Frustrated parents want to know if this failure is enough to go to litigation, and are always disappointed when I explain it probably is not. Here’s why: 

When evaluating the legality of an IEP, courts look at a snapshot at the moment the IEP is created. The judge essentially asks “What decision did the IEP team make incorrectly?” An IEP need only be “reasonably calculated” to provide educational benefit, and maximizing potential is never required. To be blunt, a student’s lack of success is not a decision of the IEP team, and thus cannot be a wrong decision.  

That said, lack of progress cannot be ignored by the school district. Just like repeating IEP goals, failing to adjust to lack of progress strongly suggests that the school district is going through the motions rather than actively trying to meet a student's needs. This is one of many reasons to try to change progress reports from "Not Addressed/Progressing/Mastery" to numerical measures of how close a student is to meeting the goal. 

Particularly aggravating is when a mid-year IEP meeting leads to downward revision of the goals just because the student is not on pace to meet them. I'm always leery of reducing goals because district officials never seem to have any explanation of what went wrong. Without that explanation, the school district is simply taking advantage of an opportunity to make its life easier instead of trying to create an appropriately challenging educational program for the student. 

If I can prove it, not trying to meet a goal that the IEP team determined was needed for a student to have an appropriately challenging education is a legal violation. If a school district is not working to serve your student, contact me to schedule an initial consultation.

Repeating IEP Goals

on Fri, 10/13/2017 - 19:46

From time to time, I see an IEP with goals repeated from a previous IEP. This always makes me very suspicious. Presumably, goals are repeated because they were not achieved in the previous school year. I've explained that the school district is not required to achieve the maximum amount of progress, but that doesn't mean the school district can sit on its hands. Repeating goals is the practical equivalent of repeating a class because the student did not learn the material the first time. This is a significant event, and should be treated that way.  

Simply by putting a goal in the IEP, the team is saying that meeting the goal is part of providing an appropriate education. Why was that prior team wrong about what level is appropriate? Until that question is answered, it is hard for a family to comfortably rely on the school district’s educational expertise. School officials should be able to explain why there was insufficient progress to meet the goal initially proposed by the IEP team.  

If at first you don't succeed, try again. But don't just do what you did the last time, because that wasn't enough. When a particular IEP goal has not been achieved, then the school district needs to increase the intensity of interventions in order to succeed in the new school year. Without that, it really is not clear that the school district is genuinely trying to achieve the goal.  

That makes me mad, because a school district that isn't trying is not doing right by the student and is violating the law. If your student has goals repeated from prior year IEPs, contact me to schedule an initial consultation.  

***  

I and several other lawyers will be answering your education law questions at the Gwinnett STOPP event part of the National Week of Action on School Pushout.  

WHEN: October 21, 2017 @ 9:30 am – 3:00 pm WHERE: Salem Missionary Baptist Church Youth House: 4700 Church St NW, Lilburn, GA 30048

Register  

***  

For a variety of reasons, the lawsuit the US Department of Justice filed regarding problems with GNETS has stalled. In response, a lawsuit on behalf of students has been filed to try to improve the quality of students currently placed in GNETS placements.

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