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Can a student with an IEP or 504 be expelled from school?

An Exceptional Student Education (ESE) supported Student with an Individual Education Plan (IEP) or 504 plan may face many challenges. That is why an IEP or 504 plan is in place for them, to help them overcome these challenges. But what happens when a school tries to expel an ESE supported student? Can a student with an IEP or 504 be expelled from school?

What happens if a student with an IEP or 504 gets a referral for suspension in school?

A student who is identified as needing additional supports in school are given an IEP or 504 plan. These documents must outline the typically exhibited behaviors and interventions needed. It is the schools responsibility to hold meetings with parents to discuss the appropriate interventions for each individual student.

If a student with an IEP or 504 is known to exhibit behaviors that could lead to suspension, the school must recognize these behaviors and give adequate support to the student. That means, if a symptom of a student’s diagnosis is hitting, the school must not suspend a student for hitting. It must be recognized that this behavior is a manifestation of their diagnosis.

What happens if a school tries to suspend an ESE student for a behavior that is recognized as a symptom of their diagnosis?

If a student exhibits a behavior that is already outlined in the IEP or 504 plan, then the school should follow the outlined interventions and not suspend the student. However, if a student exhibits a new behavior, not outlined in the plan, the school could move for suspension or expulsion.

If a school moves to suspend or expel an ESE student, what can I do?

A school cannot just expel or suspend an ESE student for more than 10-days without a manifestation determination meeting. The 10-days can be proposed all at once or the 10-days can be cumulative. Let’s say that the student was previously suspended for 5-days and now the school wants to suspend him for 6-days. In this case, a manifestation determination meeting is required.

This meeting is very important. At the manifestation determination meeting, the parents and school staff will present evidence and make arguments regarding the behavior. The goal of a manifestation determination meeting is to say yes - the behavior is a symptom of the ESE student’s diagnosis, or no – the behavior is not a symptom of the ESE student’s diagnosis.

If the manifestation determination hearing finds that the new behavior is a symptom of the ESE student’s diagnosis, what happens next?

Then the student should not face any additional discipline. If it is found that the school did not fully implement the student’s IEP, then it is automatically considered a manifestation and there can be no discipline.

What if manifestation determination hearing finds that the new behavior is not a symptom of the ESE student’s diagnosis, what happens next?

If the meeting finds that the ESE student’s behavior is not a symptom of their diagnosis, then the student can be suspended or expelled. This could mean a suspension of more than 10 days or expulsion to an alternative school.

How can I make sure that my child does not face discipline for a symptom of their diagnosis?

I recommend hiring an education lawyer with experience in supporting students at manifestation determination meetings. In my experience, a position paper, detailing why the new behavior does not warrant discipline is extremely helpful. This in combination with being present at the manifestation determination meeting leads to better outcomes. This often places pressure on the school to follow the appropriate guidelines and support the ESE student as needed. Often times a parent ends up blindsided by the school when a determination is made against their child. Having an education lawyer support them at these disciplinary meetings can lead to a better outcome.

Click here to read out practice area regarding special education.

Richard Asselta is an award-winning education lawyer with offices in both Florida and New Jersey. He is experienced in representing parents and ESE students at manifestation determination hearings as well as all other special education proceedings. Call The Education Lawyers today and we will fight to get your student the supports they deserve. (855) 338-5299

Categories: Blog, Education Law

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