Discipline of Students with Disabilities

Appalachian State University Academy at Middle Fork
Discipline of Students with Disabilities Policy

I. Introduction

The Appalachian State University Academy at Middle Fork (hereinafter "school") recognizes its responsibility to provide each student an equal opportunity to receive an education and to provide an atmosphere in the Academy at Middle Fork which is conducive to learning and which protects student freedoms guaranteed by the Constitution of the United States. The discipline, suspension and expulsion of students with handicaps and disabilities is governed by federal law - the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act and their implementing regulations - as well as state law and the most current version of the North Carolina Department of Public Instruction's "Policies Governing Services for Children Disabilities." It is the purpose of this policy to provide guidelines for the Academy at Middle Fork to use in disciplining students with handicaps, disabilities and special needs as those terms are defined in the federal and state laws and regulations referred to above.

II. Policy Scope

This policy shall apply to all students with disabilities at the Academy at Middle Fork.

III. Definitions

"Dean" means the Dean of Appalachian State University's Reich College of Education and the Dean's designee.
"Parent" includes a parent, legal guardian, legal custodian, or other caregiver adult who is acting in the place of a parent and entitled to enroll a student in school.
"Principal" includes the Academy at Middle Fork Principal and the Principal's designee.
"Students with disabilities" means students with handicaps, disabilities, and special needs as those terms are defined in the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq.), Section 504 of the Rehabilitation Act (29 U.S.C. § 701 et seq.), and their implementing regulations; and under North Carolina law and the most current version of the North Carolina Department of Public Instruction's "Policies Governing Services for Children Disabilities."

IV. Principles

The reasons for managing student behavior are to (1) create an orderly environment in which students can learn; (2) teach expected standards of behavior; (3) help students learn to accept the consequences of their behavior; and (4) provide students with the opportunity to develop self-control. The following principles apply in managing student behavior:

Student behavior management strategies will complement other efforts to create a safe, orderly and inviting environment.
Positive behavioral interventions will be employed as appropriate to improve student behavior.
Responsibility, integrity, civility and other standards of behavior will be integrated into the curriculum.
Disruptive behavior in the classroom will not be tolerated.
Consequences for unacceptable behavior will be designed to help a student learn to comply with rules, to be respectful, to accept responsibility for his or her behavior and to develop self-control.
Strategies and consequences will be age and developmentally appropriate.

V. Student Behavior Policy/Code of Student Conduct (Infractions)

Prohibited behaviors (Code of Student Conduct (Infractions)), sanctions, and other pertinent information are set forth in the Academy at Middle Fork's Student Behavior Policy/Code of Student Conduct. The same standards of conduct (Code of Student Conduct) apply to students with disabilities. This policy modifies and provides additional guidelines for appropriate sanctioning of students with disabilities.

VI. Disciplinary Sanctions of Students with Disabilities resulting in In-School Suspensions

As a general rule, a student with a disability may be assigned to in-school suspension as a sanction if that is the sanction that would be applied to non-disabled students and the student is afforded the opportunity to continue to appropriately progress in the general curriculum, continue to receive IEP services and continue to participate with non-disabled students to the extent they would in their current placement.

VII. Disciplinary Sanctions of Students with Disabilities resulting in a School Bus Suspension

For a student with a disability, whether a bus suspension would count as a day of suspension would depend on whether the bus transportation is a part of the student's IEP and whether the student's parents have the ability to transport the student to school. If the bus transportation is a part of the student's IEP, a bus suspension would be treated as an out-of-school suspension unless the student is provided transportation service in some other way. If bus service is not a part of the student's IEP, a bus suspension would not be a suspension unless the student's parents do not have the ability to transport the student to school.

VIII. Short-Term Suspensions

First Ten Days
As a general rule, students with a disability may be suspended for up ten (10) school days in a school year to the same extent and for the same misconduct that non-disabled students would be suspended under the relevant provisions of the Academy at Middle Fork's Student Behavior Policy/Code of Student Conduct. These short-term suspensions are not considered a "change of placement" and no special education procedures or services are required. Regular due process procedures for short-term suspensions apply as described in the Student Behavior Policy/Code of Student Conduct.
Cumulative Short-Term Suspensions Totaling more than 10 Days
1. Duty to Assess Behavior and Implement a BIP. If the Principal is considering a short-term suspension of a student with a disability and the total number of days suspended in the school year will exceed 10 school days, the Principal shall notify the chairperson of the IST/IEP Team.
  1. If the IST/IEP Team has not conducted a functional behavioral assessment and implemented a behavioral intervention plan (BIP) for the child before the behavior resulting in the proposed suspension, Section 504 and IDEA regulations require the IST/IEP Team to meet within 10 business days to develop a plan to conduct a functional behavioral assessment and develop a BIP to address the student's behavior. If a BIP exists, the IST/IEP Team members shall review the BIP (not necessarily in a meeting) and its implementation to determine if modifications are necessary. If one or more of the team members believe that modifications are needed, the Team shall meet to consider the request to modify the BIP and its implementation. If not, the Team does not have to meet and should implement the BIP as written.
  2. A functional behavioral assessment is a method for identifying and evaluating factors that reliably predict a problem behavior. The assessment may include interviews with teachers and other staff who have worked with the child, descriptive observations of the child's behavior, and the completion of behavioral checklists. The assessment involves identifying, if possible: when problem behaviors occur, the causes of problem behaviors, and the type of interventions which have a positive effect on managing or minimizing the problem behaviors. It also involves a functional analysis of the student's disability to determine how it effects the student's behavior. A functional analysis may involve systematically changing the factors that may effect a student's behavior in the classroom, including but not limited to:
    1. The interventions, both positive and negative, currently used to manage behavior;
    2. The schedule for the delivery of instruction; or
    3. The method used for the delivery of instruction.
  3. A Behavior Intervention Plan (BIP) is a separate document attached to a Section 504 Plan or an IEP. It includes those interventions, both positive and negative, which will be used to manage the student's behavior in the classroom and benchmarks to determine when the IST/IEP Team needs to meet and assess the effectiveness of the Plan.
2. Duty to Determine Whether Cumulative Suspensions is a Change of IEP. If the Principal is considering a short-term suspension of a student with a disability and the total number of days suspended in the school year will exceed 10 school days, the Principal shall determine whether the cumulative effect of the suspensions would be considered a change of the student's IEP based on the factors listed below. During these short-term suspensions following the first ten days of suspension, educational services must be provided, if necessary, for the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals in the IEP.
  1. Factors for Determining Whether Cumulative Suspensions are a Change of IEP. The following factors shall be used in determining whether or not cumulative short-term suspensions totaling more than 10 days in a school year have the effect of changing a student's IEP and trigger the procedural safeguards of the Section 504 and the IDEA as well as the State Procedures Governing Programs and Services for Children with Special Needs.
    1. The length of the suspensions - The longer each suspension, the more they should be viewed collectively as a change of placement. If the average length of the suspensions would be more than 5 school days, it should be considered a change of the IEP.
    2. The total number of days a student is suspended - There is no specific number of cumulative days that defines a change in placement. However, more than 20 days in a school year should be considered a change of the IEP.
    3. The proximity of the suspensions to each other – If, during a particular time period, a student would spend a significant amount of time out of school due to a series of short-term suspensions, the suspensions should be viewed collectively as a change of placement. If a student is suspended for more than 25% of the days in a school month, it could be considered a change of the IEP.
    4. The similarity of the misconduct - If the student repeatedly engages in the same type of misconduct, the misconduct may be a manifestation of the student's disability and the repeated suspensions may be viewed collectively as a change in the student's IEP.
  2. Cumulative Effect not a "Change of IEP". If the Principal determines, based on the criteria listed above, that the cumulative effect of the additional short-term suspension is not a change of the student's IEP, the Principal shall notify the student's parent(s) of that determination at the time the decision is made and give the parent(s) a copy of the "Parent's Rights Handbook" which explains their procedural right to appeal that determination. The Principal may implement the suspension unless the parent(s) exercise their right to appeal the determination. The Principal, in consultation with the student's special education teacher and any other appropriate persons, shall determine what educational services are to be provided during the short-term suspension. At a minimum, the student shall be assigned and required to make-up the class work missed during the suspension.
  3. Cumulative Effect is a "Change of IEP". If the Principal determines that the cumulative effect of the additional suspension is a change of the student's IEP, within 3 business days the IST/IEP Team shall meet to determine whether the conduct is a manifestation of the student's disability.
3. Manifestation Determination Criteria and Procedures
  1. The IST/IEP Team shall determine, in relationship to the behavior subject to suspension, whether the student's misconduct is a manifestation of his/her disability. In making the Manifestation Determination, the IST/IEP Team must consider all information relevant to the conduct subject to discipline, including but not limited to, evaluations, diagnostic results, and other relevant information from the parent, observations of the student, and the student's Section 504 Plan or IEP and placement. The misconduct is not a manifestation of the student's disability if the IST/IEP Team finds that in relationship to the misconduct subject to discipline:
    1. The Section 504 Plan or IEP and placement were appropriate;
    2. Special educational services, supplementary aids and services, and behavior intervention strategies were being provided consistent with the Section 504 Plan or IEP and the student's placement;
    3. The disability did not impair the ability of the student to understand the impact and consequences of the misconduct; and
    4. The disability did not impair the ability of the student to control the misconduct.
  2. Behavior is Not a "Manifestation". If the IST/IEP Team determines that the student's behavior is not a manifestation of the student's disability, it shall provide the student, the student's parent and the Principal with a copy of the Manifestation Worksheet and provide the parent(s) with a copy of the Parent's Rights Handbook which explains their procedural right to appeal that determination. In addition, federal regulations require that the IST/IEP Team develop a BIP. The Principal may implement the suspension unless the parents exercise their right to appeal the IST/IEP Team's determination. The Principal, in consultation with the child's special education teacher and any other appropriate persons, shall determine what educational services are to be provided during the short-term suspension. The student shall be assigned and required to make-up the class work missed during the suspension.
  3. Behavior is a "Manifestation". If the IST/IEP Team determines that student's behavior is a manifestation of the student's disability and the student has a BIP in effect or the IST/IEP Team develops a BIP, the IST/IEP Team shall review the BIP, modify it and implement the BIP, as necessary, to address the behavior.

IX. Long-Term Alternative School Assignments, Suspensions and Expulsions

Notice of Misconduct and Due Process Rights

In the event a student is alleged to have committed a Level IV, V or VI Offense under the Academy at Middle Fork's Policy on Student Behavior/Code of Student Conduct, the Principal may impose a long-term alternative school assignment, a long-term suspension, a 365-day suspension or an expulsion in accordance with that policy. The Principal shall notify the student and the student's parents of this sanction and of their rights to a hearing as provided under the Academy at Middle Fork's Student Discipline Procedures, as well as provide the parents with a copy of the Parents Rights Handbook.
1. Weapons and Drug Offenses. If the student is accused of possessing a weapon which could inflict a serious bodily injury (other than a pocket knife which has a blade of 2.5 inches or less), of knowingly possessing or using illegal drugs, or of selling or soliciting the sale of a controlled substance, the Principal should also recommend that the student be placed in an interim alternative setting determined by the IEP Team for up to 45 calendar days pending any appeals under the provisions of the IDEA and its implementing regulations..
2. Violent Behavior. If the student is accused of violent behavior and the Principal believes the student is dangerous to him/herself or others, the Principal may recommend to the Dean that the Academy at Middle Fork request:
  1. A court order placing the student in an interim alternative setting;
  2. An expedited hearing before an Administrative Law Judge for an order placing the student in an interim alternative setting as determined by the IST/IEP Team for up to 45 calendar days pending any appeals; or
  3. Other appropriate actions consistent with state and federal law and the Academy at Middle Fork's commitment to providing a safe educational environment for all students and staff.
Functional Behavioral Assessment and Behavior Intervention Plan

If the IST/IEP Team has not conducted a functional behavioral assessment and implemented a BIP for the child before the behavior resulting in the proposed disciplinary action, Section 504 and IDEA regulations require the IST/IEP Team to meet within 10 business days to conduct a functional behavioral assessment and develop a BIP to address the student's behavior.
Manifestation Determination

Also within three (3) business days, the IST/IEP Team must meet to conduct a manifestation determination as outlined above. However, the 45-day interim alternative placement may be implemented for a drug or weapon offense even if the IST/IEP Team determines the misconduct was a manifestation of the disability.
Standard Due Process Procedures

Students with disabilities have a right to a hearing in the same manner as non-disabled students under the provisions of the Academy at Middle Fork's Student Discipline Procedures to determine, by the preponderance of the evidence, whether the student violated the Student Code of Conduct and, if so, whether the recommended disciplinary action is consistent with this policy and appropriate to the student's misconduct. If the student or the student's parents allege that the student's misconduct is a manifestation of his/her handicap/disability, the hearing officer must review and consider the IST/IEP Team's manifestation determination. Therefore, it is strongly recommended that the IST/IEP Team meet and make the manifestation determination prior to this hearing.
1. If the hearing panel finds that the student did not violate the student Code of Conduct, the student shall be readmitted to school immediately.
2. If the hearing panel finds that the student violated the Code of Student Conduct, the hearing panel applies this policy impose an appropriate disciplinary action. The hearing panel also must consider the IST/IEP Team's manifestation determination before determining the disciplinary action.
3. If the student does not request a hearing, the hearing panel shall review the Principal's recommendation, apply this policy, consider the manifestation determination of the IST/IEP Team, and make a decision regarding the Principal's recommendation.
Impact of Manifestation Determination
1. If Misconduct Not a Manifestation. If the IEP Team determines that the student's behavior is not a manifestation of his/her handicap or disability, the IEP Team must:
  1. Complete a Manifestation Determination Worksheet and submit it with all relevant data and information to the Principal, Dean, and hearing panel, if a hearing is requested by the parent under the Academy at Middle Fork's Student Discipline Procedures; and
  2. Provide the student's parents with a copy of the IEP Team's determination and a copy of the Parents Rights Handbook to notify them of their procedural rights to request mediation and/or a hearing before an administrative law judge to appeal the manifestation determination.
  3. The student may be given an alternative school assignment for the remainder of the school year (or for up to 365 days), suspended for the remainder of the school year (or for up to 365 days) or expelled in accordance with this policy.
  4. If the student is identified as a student with a disability under the IDEA, the Academy at Middle Fork must continue to provide a free appropriate public education (FAPE) including special education and related services but in an alternative setting as determined by the IEP Team. Notwithstanding the sanction, the student must continue to be provided services that enable the student to progress in the general curriculum and appropriately advance toward achieving the goals in the IEP. The IEP Team will determine what services are necessary to meet this standard.
  5. If the student is identified as a student with a handicap under Section 504, the Academy at Middle Fork is not required to continue to provide a FAPE for the student during an out-of-school suspension or expulsion.
2. If Misconduct is a Manifestation. If the IEP Team determines that the student's behavior is a manifestation of the student's handicap or disability:
  1. The student may not be disciplined for his/her conduct.
  2. The student should be returned to his/her current placement immediately unless an interim alternative placement was approved by the hearing panel for the possession of a dangerous weapon, the possession or use of illegal drugs, the sale or solicitation of a controlled substance or ordered by a judge or Administrative Law Judge.
  3. The IEP Team should immediately consider appropriate ways to manage the student's behavior including but not limited to:
    1. Ensuring that the IEP/Section 504 Plan is implemented appropriately,
    2. Changing the IEP/Section 504 Plan,
    3. Developing, modifying and/or implementing a BIP, or
    4. Changing the student's placement.
  4. If the student is in an interim alternative setting as provided in paragraph b. above, the student may remain in that setting pending the decision of the IEP Team regarding a change in the student's placement and any appeals, subject to the 45-day limitation, unless the student's parent agrees to an extension of the interim alternative placement. If the parent(s) do not appeal the decision of the IEP Team, the student should be returned to the current or agreed upon placement as soon as possible.
Interim Alternative Educational Setting

The IEP Team must determine the interim alternative educational setting. The setting must be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the student's current IEP, that will enable the student to meet the goals set out in the IEP. The setting also must include services and modifications to address the misconduct which brought about the interim alternative educational setting placement that are designed to prevent the behavior from recurring.
Protection for students not yet eligible for special education

Under the IDEA and its implementing regulations, a student who has not been identified as a child with a disability must be provided the procedural rights and safeguards of the IDEA if the Academy at Middle Fork had knowledge of the child's disability prior to incident that precipitated the disciplinary action. Knowledge of the disability is presumed if:
1. The parent(s) notified the Principal in writing (unless the parent is illiterate) that the child is in need of special education;
2. The parent has requested an evaluation;
3. The child's behavior or performance demonstrates the need for special education; or
4. The child's teacher or other Academy at Middle Fork personnel have expressed concern about the child's behavior or performance to the Principal in accordance with the procedures for the referral of a student.
  
  If the Academy at Middle Fork had no knowledge of the student's disability at the time it initiated a disciplinary action and the parent requests an evaluation after the incident, the student shall be subject to discipline as a non-disabled student. However, the Academy at Middle Fork must provide the evaluation as requested by the parent and if it is determined that the child has a disability and is in need of special education, the IEP Team shall then determine whether or not the student's misconduct was a manifestation of the student's disability. Once that determination is made, the same rules apply as if the manifestation determination was made at the time of the incident.

X. Other References

Individuals with Disabilities Education Act (IDEA)
Section 504 of the Rehabilitation Act and their implementing regulations
North Carolina Department of Public Instruction "Policies Governing Services for Children with Disabilities"

XI. Authority

N.C.G.S. 116, Article 29A (sections 116-239.5 et seq.)
UNC Policy Manual, The Code, Section 502

XII. Original Effective Date

August 27, 2018

Academy at Middle Fork