Section 4310 Statutory
Authority
16 VSA §
§
1162 and
1166
Section 4311 Procedures
When a student is subject to disciplinary action, the school
district shall afford the student due process procedures as follows:
4311.1 In all cases of short-term suspension
from school, which is generally regarded as 10 days or less, the student and
his or her parent/guardian shall be given an opportunity for an informal
hearing before an appropriately designated school official. Except for cases
set forth in the last paragraph 4311.3, the hearing must precede the suspension
and the district shall provide:
(1) notice of
the charges;
(2) explanation of the
evidence against the student;
(3)
opportunity for the student to tell his or her side of the story;
(4) decision in writing to the
parent/guardian.
4311.2
In cases of a long term suspension which is generally more than 10 days unless
a school district establishes a shorter period, the student and his or her
parent/guardian shall be given an opportunity for a formal hearing before the
school board and the district shall provide:
(1) written notice of the following:
(a) nature of charges against the
student;
(b) date, time and place
of hearing;
(c) right to legal
representation;
(d) possible
penalties involved;
(2)
opportunity to present evidence;
(3) opportunity to cross-examine
witnesses;
(4) decision in writing
to parent/guardian.
4311.3
(1)
When a student, because of his or her conduct or condition, is an immediate
threat to himself or herself, others, property or educational environment, the
school district may take whatever action is appropriate under the
circumstances, including, but not limited to, immediate suspension pending a
hearing as soon as possible thereafter. In addition, in cases where a student
brings a weapon (as defined in the federal Gun-Free School Act) to school, the
school district must refer the student to a law enforcement agency and expel
the student for a period of not less than one calendar year unless such
expulsion is modified in accordance with the provisions of
16 V.S.A. §
1166(b)(2) in circumstances
such as but not limited to:
(a) the student
is unaware that he or she has brought a weapon to school,
(b) the student did not intend to use the
weapon to threaten or endanger others,
(c) the student is disabled and the
misconduct is related to the disability,
(d) the student does not present an ongoing
threat to others and a lengthy expulsion would not serve the best interest of
the student.
(2) In
situations where a student with a disability brings a weapon to school, the
provisions of regulation 4312(2) shall apply. In any such situation, an
opportunity for a hearing prior to an expulsion must be provided prior to the
expulsion, pursuant to
16 V.S.A. §
1166(b)(2).
Section 4312 Discipline
Procedures for Children Who are Not Eligible for Special Education Services,
but Who Are or May Be Qualified Individuals with Disabilities under Section 504
of The Rehabilitation Act of 1973 (29 U.S.C. Section 794; 34 C.F.R. Section 104
et seq.)
In addition to the general disciplinary procedures found
within Rule 4311, and in accordance with
34 C.F.R.
§104.36, the following procedures apply
to children who are qualified individuals with disabilities as defined by
Section 504 of the Rehabilitation Act of 1973 (hereinafter Section 504
).
(1) A Section 504 child shall not
be removed from his or her current educational placement for disciplinary
reasons for more than 10 consecutive school days in a school year unless the
following procedures have been completed:
(a)
Are-evaluation, as defined by
34 C.F.R.
§104.35; and
(b) A determination by the child's Section
504 team that the conduct is not a manifestation of his or her
disability.
(2) A
Section 504 child shall not be removed from his or her current educational
placement for disciplinary reasons for more than 10 cumulative days in a school
year when the removals constitute a change in placement as defined in Rule
2360.2(d)(1) unless the following procedures have been completed:
(a) Are-evaluation, as defined by
34 C.F.R.
§104.35; and
(b) A determination by the child's Section
504 team that the conduct is not a manifestation of his or her
disability.
(3) When it
is determined by a child's 504 team that the conduct is not a manifestation of
the child's qualifying disability, the child may be disciplined in the same
manner, and subject to the same disciplinary consequences, as a non-disabled
child, including suspension or expulsion without the provision of
services.
(4) When it is determined
by a child's Section 504 team that the conduct is a manifestation of his or her
qualifying disability, a change in program or placement may be implemented by
the child's Section 504 team and the child's Section 504 team may respond to
the conduct by designing, amending and/or enforcing a plan of behavior
management.
(5) If, at the time of
the occurrence of conduct that gives rise to consideration of removal of a
child from his or her current educational placement for more than 10
consecutive school days in a school year, the child is believed to be a
qualified individual with a disability under Section 504, a Section 504
evaluation shall be completed prior to imposition of the removal.
(a) If the evaluation results in a
determination that the child is a qualified individual with a disability under
Section 504, the discipline procedures in this rule shall be
followed.
(b) If the evaluation
results in a determination that the child is not a qualified individual with a
disability under Section 504, the discipline procedures in Rule
4311 shall be
followed.
(6) If, at the
time of the occurrence of conduct that gives rise to consideration of removal
of a child who is believed to be a qualified individual with a disability under
Section 504 for more than 10 cumulative school days in a school year, and the
removals constitute a change in placement as defined in Rule 2360. 2(d)(1), a
Section 504 evaluation shall be completed prior to imposition of the removal.
(a) If the evaluation results in a
determination that the child is a qualified individual with a disability under
Section 504, the discipline procedures in this rule shall be
followed.
(b) If the evaluation
results in a determination that the child is not a qualified individual with a
disability under Section 504, the discipline procedures in Rule
4311 shall be
followed.
(7) If a child
who is a qualified individual under Section 504 possesses or carries a weapon,
as defined in Rule 4313. 9(a), to school or at a school function, he or she may
be placed in an interim alternative educational setting (IAES) in accordance
with the procedures set forth in Rule 4313.9 and Rule 1253. The child's 504
team shall determine the IAES, and the services provided in the IAES, in
accordance with the procedures set forth in Rule 4313.9. It is the intent of
this section to discipline a child who is a qualified individual under Section
504 in the same manner as children who are eligible for special education when
they possess weapons at school or at school functions.
(8) When a parent disagrees with disciplinary
action taken by a LEA, the parent may request an impartial due process hearing,
and the procedures in Rules 2365.1.6(c) through 2365.1.9 shall apply. In
addition to or in lieu of a due process hearing a parent may file a complaint
with the U.S. Department of Education Office for Civil Rights.
(9) A hearing officer may order a change in
the placement of a child who is a qualified individual under Section 504 to an
appropriate IAES for not more than 45 calendar days, if the hearing officer, in
an expedited due process hearing:
(a)
Determines that the LEA has demonstrated by substantial evidence, which for
purposes of this section shall mean a preponderance of the evidence, that
maintaining the current placement of the child is substantially likely to
result in injury to the child or others;
(b) Considers the appropriateness of the
child's current placement;
(c)
Considers whether the LEA has made reasonable efforts to minimize the risk of
harm in the child's current placement, including the use of supplementary aids
and services; and
(d) Determines
that the IAES that is proposed by school personnel will enable the child to
continue to progress in the general curriculum. The services provided to and
modifications made for the child in the IAES shall be designed to address and
prevent the child's offending behavior.
(10) This Rule (4312) shall not apply when a
responsible agency takes disciplinary action against a Section 504 child if:
(a) The misconduct for which the child is
being disciplined pertains to the use or possession of illegal drugs or alcohol
at school or at a school function; and
(b) The child is currently engaging in the
use of alcohol or illegal drugs.
In this instance, the Section 504 child shall be disciplined
in accordance with Rule 4311.
Section 4313 Discipline Procedures for
Children Eligible for Special Education Services
In addition to the general disciplinary procedures found
within Rule 4300, the following procedures apply to children eligible for
special education services:
4313.1
Authority of School Personnel.
(a)
Case-by-case determination. School personnel may consider any unique
circumstances on a case-by-case basis when determining whether a change in
placement, consistent with the requirements of this section, is appropriate for
a child with a disability who violates a code of child conduct.
(b) General.
(1) Under this section, the school
principal/designee, in consultation with the special education case manager may
remove a child with a disability who violates a code of child conduct from
their current placement to an appropriate interim alternative educational
setting, another setting, or suspension, for not more than 10 consecutive
school days (to the extent those alternatives are applied to children without
disabilities), and for additional removals of not more than 10 consecutive
school days in that same school year for separate incidents of misconduct (as
long as those removals do not constitute a change of placement under Rule 4313.
7).
(2) After a child with a
disability has been removed from his or her current placement for 10 school
days in the same school year, during any subsequent days of removal the LEA
shall provide services to the extent required under paragraph (d) of this
section.
(c) Additional
authority. For disciplinary changes in placement that would exceed 10
consecutive school days, if the behavior that gave rise to the violation of the
school code is determined not to be a manifestation of the child's disability
pursuant to paragraph (e) of this section, school personnel in consultation
with the special education administrator may apply the relevant disciplinary
procedures to children with disabilities in the same manner and for the same
duration as the procedures would be applied to children without disabilities,
except as provided in paragraph (d) of this section.
(d) Services.
(1) Except as provided in paragraphs (d)(3)
and (d)(4) of this section, a child with a disability who is removed from the
child's current placement pursuant to paragraphs (b), (c), or (g) of this
section shall--
(i) 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; and
(ii) Receive, as appropriate, a functional
behavioral assessment, and behavioral intervention services and modifications,
which are designed to address the behavior violation so that it does not
recur.
(2) The services
required by paragraph (d)(1) of this section may be provided in an interim
alternative educational setting.
(3) A LEA need not provide services during
periods of removal under paragraph (b) of this section to a child with a
disability who has been removed from his or her current placement for 10 school
days or less in that school year, if services are not provided to a child
without disabilities who has been similarly removed.
(4) After a child with a disability has been
removed from his or her current placement for 10 school days in the same school
year, if the current removal is for not more than 10 consecutive school days
and is not a change of placement under Rule 4313. 7, school personnel, in
consultation with the child's special education case manager, determine the
extent to which services are needed under paragraph (d)(1) of this section, if
any, and the location in which services, if any, will be provided.
(5) If the removal is for more than 10
consecutive school days or is a change of placement under Rule 4313. 7, the
child's IEP Team determines appropriate services under paragraph (d)(1) of this
section and the location in which services will be provided.
(e) Manifestation determination
(1) Except for removals that will be for not
more than 10 consecutive school days and will not constitute a change of
placement under Rule 4313.7, within 10 school days of any decision to change
the placement of a child with a disability because of a violation of a code of
child conduct, the LEA, the parent, and relevant members of the child's IEP
Team (as determined by the parent and the LEA) shall review all relevant
information in the child's file, including the child's IEP, any teacher
observations, and any relevant information provided by the parents to
determine--
(i) If the conduct in question
was caused by, or had a direct and substantial relationship to, the child's
disability; or
(ii) If the conduct
in question was the direct result of the LEA's failure to implement the
IEP.
(2) The conduct
shall be determined to be a manifestation of the child's disability if the LEA,
the parent, and relevant members of the child's IEP Team determine that a
condition in either paragraph (e)(1)(i) or (1)(ii) of this section was
met.
(f) Determination
that behavior was a manifestation. If the LEA, the parent, and relevant members
of the IEP Team make the determination that the conduct was a manifestation of
the child's disability, the IEP Team shall--
(1) Either-
(i) Conduct a functional behavioral
assessment, unless the LEA had conducted a functional behavioral assessment
before the behavior that resulted in the change of placement occurred, and
implement a behavioral intervention plan for the child; or
(ii) If a behavioral intervention plan
already has been developed, review the behavioral intervention plan, and modify
it, as necessary, to address the behavior; and
(2) Except as provided in paragraph (g) of
this section, return the child to the placement from which the child was
removed, unless the parent and the LEA agree to a change of placement as part
of the modification of the behavioral intervention plan.
(g) Special circumstances. School personnel
may remove a child to an interim alternative educational setting for not more
than 45 school days without regard to whether the behavior is determined to be
a manifestation of the child's disability, if the child--
(1) Carries a weapon to or possesses a weapon
at school, on school premises, or to or at a school function under the
jurisdiction of an SEA or an LEA;
(2) Knowingly possesses or uses illegal
drugs, or sells or solicits the sale of a controlled substance, while at
school, on school premises, or at a school function under the jurisdiction of
an SEA or an LEA; or
(3) Has
inflicted serious bodily injury upon another person while at school, on school
premises, or at a school function under the jurisdiction of an SEA or an
LEA.
(h) Notification.
Not later than the date on which the decision to take disciplinary action is
made, the LEA shall notify the parents of that decision, and provide the
parents a copy of their Parents' Rights in Special Education.
(i) Definitions. For purposes of this
section, the following definitions apply:
(1)
Controlled substance means a drug or other substance identified under schedules
I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (
21 U.S.C.
812(c), as
amended).
(2) Illegal drug means a
controlled substance; but does not include a controlled substance that is
legally possessed or used under the supervision of a licensed health-care
professional or that is legally possessed or used under any other authority
under that Act or under any other provision of Federal law.
(3) Serious bodily injury has the meaning
given the term "serious bodily injury" under Section 1365(h)(3) (A- D) of Title
18, United States Code, as amended.
(4) Weapon has the meaning given the term
"dangerous weapon" under of Section 930(g)(2) of Title 18, United States Code,
as amended.
4313.2 Determination of Setting.
The interim alternative educational setting referred to in
Rule 4313.1(c) and (g) is determined by the IEP Team.
4313.3 Appeal.
(a) General. The parent of a child with a
disability who disagrees with any decision regarding placement under Rules
4313.1 and 4313. 2, or the manifestation determination under Rule 4313.1 (e),
or an LEA that believes that maintaining the current placement of the child is
substantially likely to result in injury to the child or others, may request a
hearing.
(b) Authority of hearing
officer.
(1) A hearing officer in an
impartial due process hearing hears, and makes a determination regarding, an
appeal requested under paragraph (a) of this section.
(2) In making the determination under
paragraph (b)(1) of this section, the hearing officer may--
(i) Return the child with a disability to the
placement from which the child was removed if the hearing officer determines
that the removal was a violation of Rule 4313.1 or that the child's behavior
was a manifestation of the child's disability; or
(ii) Order a change of placement of the child
with a disability to an appropriate interim alternative educational setting for
not more than 45 school days if the hearing officer determines that maintaining
the current placement of the child is substantially likely to result in injury
to the child or to others.
(3) The procedures under paragraphs (a) and
(b)(1) and (2) of this section may be repeated, if the LEA believes the child
would be dangerous if returned to the original placement.
(c) Expedited hearing.
(1) Whenever a hearing is requested under
paragraph (a) of this section, the procedures of Rule 2365.1.6.17 shall be
followed and the parents and LEA involved in the dispute shall have an
opportunity for an impartial due process hearing consistent with the
requirements of the rules relating to Resolution Sessions and Impartial Due
Process Hearings, except as provided in paragraph (c)(2) through (5) of this
section.
(2) The LEA shall arrange
for an expedited hearing, which shall occur within 20school days of the date
the hearing is requested and shall result in a determination within 10 school
days after the hearing.
(3) Except
as provided in a written waiver of the resolution session or in an agreement to
mediate
(i) A resolution session meeting
shall occur within seven days of the date the hearing is requested,
and
(ii) The hearing may proceed
unless the matter has been resolved to the satisfaction of both parties within
15 days of receipt of the hearing request.
(4) The decisions on expedited due process
hearings are appealable consistent with those rules associated with due process
hearing appeals.
4313.4 Placement During Appeals.
When an appeal under Rule 4313.3 has been requested by either
the parent or the LEA, the child shall remain in the interim alternative
educational setting pending the decision of the hearing officer or until the
expiration of the time period provided for in Rule 4313.1(c) or (g), whichever
occurs first, unless the parent and the SEA or LEA agree otherwise.
4313.5 Protections for Children not
yet Eligible for Special Education and Related Services.
(a) General. A child who has not been
determined to be eligible for special education and related services under this
part and who has engaged in behavior that violated a code of child conduct, may
assert any of the protections provided for in this part if the LEA had
knowledge (as determined in accordance with paragraph (b) of this section) that
the child was a child with a disability before the behavior that precipitated
the disciplinary action occurred.
(b) Basis of knowledge. An LEA shall be
deemed to have knowledge that a child is a child with a disability if before
the behavior that precipitated the disciplinary action occurred--
(1) The parent of the child expressed concern
in writing to supervisory or administrative personnel of the appropriate
educational agency, or a teacher of the child, that the child is in need of
special education and related services;
(2) The parent of the child requested an
evaluation of the child pursuant to the rules relating to Procedures for
Evaluation and Determination of Eligibility; or
(3) The teacher of the child, or other
personnel of the LEA, expressed specific concerns about a pattern of behavior
demonstrated by the child directly to the director of special education of the
agency or to other supervisory personnel of the agency in accordance with the
agency's established child find or special education referral system.
(c) Exception. A LEA would not be
deemed to have knowledge under paragraph (b) of this section and the child
would not receive special education protections available only to children with
a disability or suspected of having a disability, if:
(1) The parent of the child:
(i) Has not allowed an evaluation of the
child pursuant to special education evaluation procedures ; or
(ii) Has refused services under this part;
or
(2) The child has
been evaluated and determined not to be a child eligible for special
education.
(d)
Conditions that apply if no basis of knowledge.
(1) If an LEA does not have knowledge that a
child is a child with a disability (in accordance with paragraphs (b) and (c)
of this section) prior to taking disciplinary measures against the child, the
child may be subjected to the disciplinary measures applied to children without
disabilities who engaged in comparable behaviors consistent with paragraph
(d)(2) of this section.
(2)
(i) If a request is made for an evaluation of
a child during the time period in which the child is subjected to disciplinary
measures under Rule 4313.1, the evaluation shall be conducted in an expedited
manner.
(ii) Until the evaluation
is completed, the child remains in the educational placement determined by
school authorities, which can include suspension or expulsion without
educational services.
(iii) If the
child is determined to be a child with a disability, taking into consideration
information from the evaluation conducted by the agency and information
provided by the parents, the agency shall provide special education and related
services in accordance with this part, including the requirements of Rules
4313.1 through 4313.7 and Section 1412(a)(1)(A) of the Individuals with
Disabilities Education Improvement Act, as amended.
4313.6 Referral to and
Action by Law Enforcement and Judicial Authorities.
(a) Rule of construction. Nothing in this
part prohibits an agency from reporting a crime committed by a child with a
disability to appropriate authorities or prevents State law enforcement and
judicial authorities from exercising their responsibilities with regard to the
application of Federal and State law to crimes committed by a child with a
disability.
(b) Transmittal of
records.
(1) An agency reporting a crime
committed by a child with a disability shall ensure that copies of the special
education and disciplinary records of the child are transmitted for
consideration by the appropriate authorities to whom the agency reports the
crime.
(2) An agency reporting a
crime under this section may transmit copies of the child's special education
and disciplinary records only to the extent that the transmission is permitted
by the Family Educational Rights and Privacy Act.
4313.7 Change of Placement because
of Disciplinary Removals.
For purposes of removals of a child with a disability from
the child's current educational placement under Rules 4313.1 through 4314. 4, a
change of placement occurs if:
(a) The
removal is for more than 10 consecutive school days; or
(b) The child has been subjected to a series
of removals that constitute a pattern--
(1)
Because the series of removals total more than 10 school days in a school
year;
(2) Because the child's
behavior is substantially similar to the child's behavior in the incidents that
resulted in the series of removals, taken cumulatively, is determined, under
Rule 4313. 1(f), to have been a manifestation of the child's disability;
and
(3) Because of such additional
factors as the length of each removal, the total amount of time the child has
been removed, and the proximity of the removals to one another.