Section XIX

Students with disabilities are expected to follow the Code of Conduct and are subject to the disciplinary responses outlined in this Code. However, there are laws that require specific safeguards for students with disabilities who are being considered for a suspension or removal that would constitute a disciplinary change of placement. These laws are also applied to students presumed to have a disability for discipline purposes. A period of suspension or removal of a student with a disability may not exceed the amount of time a non-disabled student would be suspended for the same behavior.

For purposes of this section of the Code of Conduct, the following definitions apply:

“Student with a disability” means a student who has been identified by the district’s Committee on Special Education (CSE) as requiring a program of special education.
“Student presumed to have a disability for discipline purposes” shall mean a student who the district is deemed to have knowledge was a student with a disability before the behavior that precipitated disciplinary action. The district shall be deemed to have knowledge that a student is a student with a disability if, before the behavior that precipitated the disciplinary action occurred the parent/guardian of the student has expressed concern in writing to an administrator or a teacher of the student that the student is in need of special education and related services; the parent/guardian of the student has requested an evaluation of the student; or district staff have expressed specific concerns about a pattern of behavior demonstrated by the student, directly to the Director of Special Education. The district shall not be deemed to have knowledge that a student is a student with a disability if the parent/guardian has not allowed an evaluation of the student or has refused services or the student has been evaluated and it was determined that the student was not a student with a disability.
“Suspension” means a suspension pursuant to Education Law §3214.
“Removal” means a removal for disciplinary reasons from the student’s current educational placement.
“Disciplinary change in placement” means a removal for more than 10 consecutive days or a series of removals that in the aggregate total more than 10 school days.
“Interim Alternative Educational Setting” (IAES) means a temporary educational placement for a period of up to 45 days, other than the student’s current placement at the time the behavior precipitating the IAES placement occurred, that enables the student to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications as outlined on the student’s IEP.

Disciplinary Change In Placement Determination

A disciplinary change in placement means a suspension or removal from a student’s current educational placement that is either:

For more than 10 consecutive school days; or
For a period of 10 consecutive school days or less if the student is subjected to a series of suspensions or removals that constitute a pattern because they accumulate to more than 10 school days in a school year and because of such factors as the length of each suspension or removal, the total amount of time the student is removed and the proximity of the suspensions or removals to one another.

If the suspension or removal would not constitute a disciplinary change in placement, the disciplinary responses in the Code of Conduct would apply.

If the suspension or removal would constitute a disciplinary change in placement, a manifestation determination must be conducted to determine if the student’s behavior was a manifestation of their disability.

The district shall provide parents/guardians with notice of the determination of disciplinary change in placement.

Manifestation Determination

A review of the relationship between the student's disability and the behavior subject to disciplinary action to determine if the conduct is a manifestation of the disability must be made by a manifestation team immediately, if possible, but in no case later than 10 school days after either the Superintendent changes the placement to an IAES, an impartial hearing officer places the student in an IAES, or the Board of Education, Superintendent or building principal seeks to impose a suspension that constitutes a disciplinary change in placement.

The manifestation team shall include a representative of the District knowledgeable about the student and the interpretation of information about child behavior, the parent/guardian, and relevant members of the CSE.

The district shall provide parents/guardians written notification before any manifestation team meeting to ensure that the parent/guardian has an opportunity to attend.

The manifestation team must review all relevant information in the student’s file including:

The student’s IEP.
Any teacher observations.
Any relevant information provided by the parent/legal guardian.

Upon review of the above information, the manifestation team must determine:

If the conduct in question was caused by or had a direct and substantial relationship to the student’s disability.
If the conduct in question was the direct result of the school’s failure to implement the IEP.

Finding of Manifestation

If the manifestation team determines that the conduct was caused by or had a direct and substantial relationship to the student’s disability or the conduct in question was the direct result of the district’s failure to implement the IEP:

The CSE must conduct a functional behavioral assessment and implement a behavioral intervention plan for the student, or review and modify such plan if one is already in place; and
The student must be returned to the placement from which the student was removed, unless the parent/legal guardian and the district agree to a change of placement as part of the modification of the behavioral intervention plan, except for removals for drugs, weapons or serious bodily injury, wherein students may be removed to an IAES, regardless of the manifestation determination.
If the conduct was the direct result of the school’s failure to implement the IEP, the school must take immediate steps to remedy the failure.

No Finding of Manifestation

If it is determined that the student's behavior is not a manifestation of the student’s disability, the relevant disciplinary procedures applicable to students without disabilities may be applied to the student in the same manner and for the same duration for which they would be applied to students without disabilities, subject to the right of the parent/guardian to request a hearing objecting to the manifestation determination and the District's obligation to provide a free, appropriate public education to such student.

Provision of Services During Suspension

The CSE shall determine the services to be provided to students with a disability necessary for them to continue to participate in the general education curriculum and progress toward meeting the goals set out in their IEP.

Interim Alternative Educational Setting (IAES)

Students with disabilities who have been suspended or removed from their current placement for more than 10 school days may, as determined by the CSE, be placed in an IAES which is a temporary educational setting other than the student's current placement at the time the behavior precipitating the IAES placement occurred. The district may seek an order from a hearing officer for a change in placement of a student with a disability to an appropriate IAES for up to 45 school days if the District establishes, in accordance with law, that such student is substantially likely to injure oneself or others.

A student with a disability may be placed in an IAES for up to 45 school days without regard to a manifestation determination if the student carries or possesses a weapon to or at school, on school premises, or to or at a school function, if the student 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, or if the student has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function.

Expedited Due Process Hearing

An expedited due process hearing shall be conducted in the manner specified by the Commissioner of the State Education Department’s regulations incorporated into this Code of Conduct, if:

The district requests such a hearing to obtain an order of an impartial hearing officer placing a student with a disability in an IAES where school personnel maintain that it is dangerous for the student to be in their current educational placement, or during the pendency of due process hearings where school personnel maintain that it is dangerous for the student to be in their current educational placement during such proceedings.
The parent/guardian requests such a hearing from a determination that the student’s behavior was not a manifestation of the student’s disability, or relating to any decision regarding placement, including but not limited to any decision to place the student in an IAES.
- During the pendency of an expedited due process hearing or appeal regarding the placement of a student in an IAES for behavior involving weapons, illegal drugs, or controlled substances, or on grounds of dangerousness, or regarding a determination that the behavior is not a manifestation of the student’s disability for a student who has been placed in an IAES, the student shall remain in the IAES pending the decision of the impartial hearing officer or until expiration of the IAES placement, whichever occurs first, unless the parents/guardians and the district agree otherwise.
- If school personnel propose to change the student’s placement after expiration of an IAES placement, during the pendency of any proceeding to challenge the proposed change in placement, the student shall remain in the placement prior to removal to the IAES, except where the student is again placed in an IAES.
An expedited due process hearing shall be commenced within 20 school days of receipt of the request for a hearing. Although the impartial hearing officer may grant specific extensions of such time period, they must provide a written decision to the district and the parents/guardians within 10 school days after the last hearing date.

Informal conference is a meeting between the principal, student, parent/guardian, and other staff, as needed, requested by the parent/guardian after the student has been suspended or removed from the classroom for disciplinary reasons to discuss the incident.

Superintendent’s hearing is a fair hearing to determine findings of fact and penalty where the district seeks the suspension of a student for more than 5 consecutive days.