Navigating School Board Disciplinary Hearings: Strategies for Success

Kangaroo Court:

How to prevail under the quasi-judicial nightmare of

School Board disciplinary hearings, disparate, and

archaic discipline practices

Beverly Brown, Ph.D., Esq.

Three Rivers Legal Services, Inc.

Agreement

•

As children we all made mistakes (or else you are a

hypothetical legal construct like the reasonable person)

•

Some of them for which we did not get caught (whew)

•

Many times we did not perceive the consequences

•

Many times the risk may have outweighed what we

perceived the cost (impulsivity/invincibility)

•

Times have changed (zero tolerance, technology)

•

Privilege and poverty play a role in outcomes

Self disclosure

Advance Organizer

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Compulsory attendance

•

Disciplinary exclusion

–

Types

–

Challenges

–

The statistics

–

The science

•

Due Process

–

What is supposed to happen

Advance Organizer (cont.)

–

What frequently happens

•

Schools responsibilities in response to

behavior

–

Response to Intervention (RtI)MTSS/PBIS

–

504

–

Child Find (IEP)

–

Functional Behavior Assessments (FBA) and

Behavior Intervention Plan (BIP)

–

Manifestation Determination

Compulsory Attendance

§ 1003.21 School attendance.—(1)(a)1. All

children who have attained the age of 6 years or

who will have attained the age of 6 years by

February 1 of any school year or who are older

than 

6 years of age but who have not attained

the age of 16 years

, except as otherwise

provided, are required to attend school regularly

during the entire school term.

A student who attains the age of 16 years during the school year is not subject to

compulsory school attendance beyond the date upon which he or she attains that age

if the student 

files a formal declaration of intent to terminate school enrollment with

the district school board. Public school students who have attained the age of 16

years and who have not graduated are subject to compulsory school attendance until

the formal declaration of intent is filed with the district school board. The

declaration must acknowledge that terminating school enrollment is likely to reduce

the student’s earning potential and must be signed by the student and the student’s

parent

. The school district shall notify the student’s parent of receipt of the student’s

declaration of intent to terminate school enrollment. The student’s certified school

counselor or other school personnel shall conduct an exit interview with the student

to determine the reasons for the student’s decision to terminate school enrollment

and actions that could be taken to keep the student in school. The student’s certified

school counselor or other school personnel shall inform the student of opportunities

to continue his or her education in a different environment, including, but not limited

to, adult education and high school equivalency examination preparation. Additionally,

the student shall complete a survey in a format prescribed by the Department of

Education to provide data on student reasons for terminating enrollment and actions

taken by schools to keep students enrolled.

The Reality-Educating your child is

constitutionally protected

•

Public School (Principal told me not to come

back)

•

Charter

•

Private

•

FLVS or other online options

•

Public home school

•

Private home school (little known sort of scary

option) “umbrella or 600 schools”

Some exceptions

•

Disabled children begin at 3 and some stay

until 22

nd

 birthday

•

Some even before age 3 (those with severe

disabilities)

•

McKinney Vento Act-for Homeless Youth or

Youth in Transition, 42 U.S.C.§§ 11431-11435

Fla. Stat. § 1003.21

(e) Consistent with rules adopted by the State Board of Education,

children with disabilities who have attained the age of 3 years shall be

eligible for admission to public special education programs and for

related services. Children with disabilities younger than 3 years of age

who are deaf or hard of hearing, visually impaired, dual sensory

impaired, orthopedically impaired, or other health impaired or who

have experienced traumatic brain injury, have autism spectrum

disorder, have established conditions, or exhibit developmental delays

or intellectual disabilities may be eligible for special programs and may

receive services in accordance with rules of the State Board of

Education. 

Rules for the identification of established conditions for

children birth through 2 years of age and developmental delays for

children birth through 5 years of age must be adopted by the State

Board of Education

.

4) Before admitting a child to kindergarten, the principal shall require

evidence that the child has attained the age at which he or she should be

admitted in accordance with the provisions of subparagraph

(1)(a)2. The district school superintendent may require evidence of the age of

any child whom he or she believes to be within the limits of compulsory

attendance as provided for by law. If the first prescribed evidence is not

available, the next evidence obtainable in the order set forth below shall be

accepted:(a) A duly attested transcript of the child’s birth record filed

according to law with a public officer charged with the duty of recording births;

(b) A duly attested transcript of a certificate of baptism showing the date of

birth and place of baptism of the child, accompanied by an affidavit sworn to

by the parent;

(c) An insurance policy on the child’s life that has been in force for at least 2

years;

(d) A bona fide contemporary religious record of the child’s birth

accompanied by an affidavit sworn to by the parent;

(e) A passport or certificate of arrival in the United States showing the age of

the child;

(f) A transcript of record of age shown in the child’s school record of at least

4 years prior to application, stating date of birth; or

Fla. Stat. 1003.21

(g) If none of these evidences can be produced, an

affidavit of age sworn to by the parent, accompanied by a

certificate of age signed by a public health officer or by a

public school physician, or, if these are not available in

the county, by a licensed practicing physician designated

by the district school board, which states that the health

officer or physician has examined the child and believes

that the age as stated in the affidavit is substantially

correct. 

Children and youths who are experiencing

homelessness and children who are known to the

department, as defined in s. 

39.0016

, shall be given

temporary exemption from this section for 30 school

days.

Disciplinary Exclusions-Types

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Corporal Punishment

•

In-school

•

Restraints and Seclusions (time outs)

•

Out-of-School

•

Alternative school

•

Baker Acts

•

Arrests

•

Expulsion

•

Silent push out

(The “come pick up your child” or don’t bring him/her

back”-quite common and no due process)

Corporal Punishment

§ 1003.32 Authority of teacher; responsibility for

control of students; district school board and

principal duties.—Subject to law and to the rules of

the district school board, each teacher or other

member of the staff of any school shall have such

authority for the control and discipline of students

as may be assigned to him or her by the principal or

the principal’s designated representative and shall

keep good order in the classroom and in other

places in which he or she is assigned to be in charge

of students.

Differs across districts

•

(k) Use corporal punishment according to school board policy and at

least the following procedures, if a teacher feels that corporal punishment

is necessary: 1. The use of corporal punishment 

shall be approved in

principle by the principal before it is used, but approval is not necessary

for each specific instance in which it is used

. The principal shall prepare

guidelines for administering such punishment which identify 

the types of

punishable offenses, the conditions under which the punishment shall

be administered, and the specific personnel on the school staff

authorized to administer the punishment.

•

2. A teacher or principal may administer corporal punishment only in the

presence of another adult who is informed beforehand, and in the

student’s presence, of the reason for the punishment

.

•

3. A teacher or principal who has administered punishment shall, upon

request, 

provide the student’s parent with a written explanation of the

reason for the punishment and the name of the other adult who was

present.

Corporal Punishment in Florida Schools

https://www.splcenter.org/20120901/corporal-

punishment-florida-schools

The belief that corporal punishment is a difficult,

but necessary practice continues to persist in a

minority of Florida school districts. It persists,

even as administrators who support it say they

are aware of its potential to damage children

and that it may spark lawsuits. It persists even

though corporal punishment has been found to

increase 

youth hostility, antisocial behavior,

and the likelihood that a child will drop out of

school.

“The American Bar Association opposes the

use of corporal punishment in institutions

where children are cared for or educated” (p.

594).

“Institutional corporal punishment of

children should be considered a form of child

abuse that is contrary to current knowledge

of human behavior and sound educational

practices” (p. 594).

American Bar Association

“The American Academy of Child and

Adolescent Psychiatry opposes the use of

corporal punishment in schools.”

American Academy of Child and

Adolescent Psychiatry

“The NAESP believes that the practice of

corporal punishment in schools should be

abolished. Therefore, NAESP urges all educators,

in cooperation with parents and other

concerned citizens and associations, to promote

legislation that would prohibit all forms of

corporal punishment in schools and would

provide resources for the development of

positive alternatives for disruptive students.”

National Association of Elementary

School Principals Position Statement

“NAASP believes that the practice of corporal

punishment in schools should be abolished

and that principals should use alternative

forms of discipline” (p. 2).

National Association of Secondary

School Principals

“The American Academy of Family

Physicians is opposed to corporal

punishment in schools. The Academy

supports alternative methods of behavior

management and modification in the

school environment which enhances a

student’s optimal learning” (p. 1).

American Academy of Family

Physicians

“Prohibit corporal punishment in schools and

all other programs” (p. 3). “The institutional

use of corporal punishment should never be

condoned” (p. 4).

National Association for the Education

of Young Children

Why CP Persists

However, for many, “The practice of hitting

children as part of discipline is deeply

embedded in religious beliefs, cultural views,

government, law, and social policy” (p. 198). In

fact, 62% of adults and 61% of parents with

small children view spanking as

acceptable. These views regarding spanking in

the home have been applied to discipline within

schools.

Table 3: FL Districts that Allow CP: Student Population and % of CP per Student 2010-2011

Recommendations

1.

Discontinue the use of CP in FL schools immediately.

2. Continue to collect, analyze, and act on data related to the

disproportionate use of other punishments with subgroups of students

even after the discontinuation of CP.

3. Develop policies and interventions to address school discipline in a

proactive and positive manner for all groups of students.

4. Provide ongoing professional development (PD) to help educators,

school staff, and administrators implement evidence-based

alternatives to CP and other ineffectual punishments.

1006.07 District school board duties relating

to student discipline and school safety

•

(2) CODE OF STUDENT CONDUCT.—Adopt a 

code of student conduct 

for

elementary schools and a code of student conduct for middle and high

schools and distribute the appropriate code to all teachers, school

personnel, students, and parents, at the beginning of every school year.

Each code shall be organized and written in language that is

understandable to students and parents and 

shall be discussed at the

beginning of every school year in student classes, school advisory council

meetings, and parent and teacher association or organization meetings

.

Each code shall be based on the rules governing student conduct and

discipline 

adopted by the district school board and shall be made

available in the student handbook or similar publication

. Each code shall

include, but is not limited to:(a) Consistent policies and specific grounds

for disciplinary action, including in-school suspension, out-of-school

suspension, expulsion, and any disciplinary action that may be imposed

for the possession or use of alcohol on school property or while attending

a school function or for the illegal use, sale, or possession of controlled

substances as defined in chapter 893

In-School Suspension: a Better Alternative or

Waste of Time?

May 4, 2012 | 9:00 AM

By Sarah Gonzalez

•

More than 455,000 Florida students were suspended last school year.

•

“Some of the student actually don’t mind going there because they can sit

there and do nothing.”

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- Jennifer Smith, Hialeah High School teacher

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The majority – more than 243,000 – were in-school-suspensions.

•

Students are held in a classroom away from other students. It could be for

on class period, an entire school day, or multiple school days.

•

Each school handles in-school suspensions differently.

•

In Miami-Dade County, certified teachers supervise suspended students

and act as tutors if students have questions.

•

In Orange County, schools hire separate staff at a lower salary than

beginning teachers.

•

In Duval County, schools sometimes re-purpose staff to watch over in-

school-suspension students.

States With the Most Secondary Suspension Rates

http://www.huffingtonpost.com/2015/02/23/state-suspension-

rates_n_6733134.html

(a) 

Suspension of public school student.

—In

accordance with the provisions of s. 

1006.09

(1)-(4):1.

A student may be suspended only as provided by rule

of the 

district school board

. A good faith effort must be

made to 

immediately inform the parent by telephone

of the student’s suspension and the reason. Each

suspension and 

the reason must be reported in writing

within 24 hours to the parent by United States mail

. A

good faith effort must be made to use parental

assistance before suspension unless the situation

requires immediate suspension.

2. 

A student with a disability may only be

recommended for suspension or expulsion in

accordance with State Board of Education rules.

b) The principal or the principal’s designee may suspend a student only in

accordance with the rules of the district school board. The principal or the principal’s

designee shall make a good faith effort to immediately inform a student’s parent by

telephone of a student’s suspension and the reasons for the suspension. Each

suspension and the reasons for the suspension shall be reported in writing within 24

hours to the student’s parent by United States mail. Each suspension and the

reasons for the suspension shall also be reported in writing within 24 hours to the

district school superintendent. A good faith effort shall be made by the principal or

the principal’s designee to employ parental assistance or other alternative measures

prior to suspension, except in the case of emergency or disruptive conditions which

require immediate suspension or in the case of a serious breach of conduct as

defined by rules of the district school board. Such rules shall require oral and written

notice to the student of the charges and an explanation of the evidence against him

or her prior to the suspension. 

Each student shall be given an opportunity to

present his or her side of the story. No student shall be suspended for unexcused

tardiness, lateness, absence, or truancy. 

The principal or the principal’s designee

may suspend any student transported to or from school at public expense from the

privilege of riding on a school bus for violation of district school board transportation

policies, which shall include a policy regarding behavior at school bus stops, and the

principal or the principal’s designee shall give notice in writing to the student’s

parent and to the district school superintendent within 24 hours. School personnel

shall not be held legally responsible for suspensions of students made in good faith.

Why is this a problem?

•

Missing instruction

•

No relationship to behavior

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Causes drop outs

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Increases involvement with DJJ

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Silent push outs (avoid the notice

requirements)

Restraint

•

1003.573 Use of restraint and seclusion on students with disabilities.—

(1) DOCUMENTATION AND REPORTING.—(a) A school shall prepare an

incident report within 24 hours after a student is released from restraint

or seclusion. If the student’s release occurs on a day before the school

closes for the weekend, a holiday, or another reason, the incident report

must be completed by the end of the school day on the day the school

reopens.

•

(b) The following must be included in the incident report:1. The name

of the student restrained or secluded.

•

2. The age, grade, ethnicity, and disability of the student restrained or

secluded.

•

3. The date and time of the event and the duration of the restraint or

seclusion.

•

4. The location at which the restraint or seclusion occurred.

•

5. A description of the type of restraint used in terms established by the

Department of Education.

f. Evidence of steps taken to notify the student’s parent or

guardian.

(c) A school shall notify the parent or guardian of a student each

time manual or physical restraint or seclusion is used. Such

notification must be in writing and provided before the end of the

school day on which the restraint or seclusion occurs. Reasonable

efforts must also be taken to notify the parent or guardian by

telephone or computer e-mail, or both, and these efforts must be

documented. The school shall obtain, and keep in its records, the

parent’s or guardian’s signed acknowledgment that he or she was

notified of his or her child’s restraint or seclusion.

(d) A school shall also provide the parent or guardian with the

completed incident report in writing by mail within 3 school days

after a student was manually or physically restrained or secluded.

The school shall obtain, and keep in its records, the parent’s or

guardian’s signed acknowledgment that he or she received a copy of

the incident report.

(c) The principal or the principal’s designee may recommend

to the district school superintendent the expulsion of any

student who has committed a serious breach of conduct,

including, but not limited to, willful disobedience, open

defiance of authority of a member of his or her staff, violence

against persons or property, or any other act which

substantially disrupts the orderly conduct of the school. A

recommendation of expulsion or assignment to a second

chance school may also be made for any student found to have

intentionally made false accusations that jeopardize the

professional reputation, employment, or professional

certification of a teacher or other member of the school staff,

according to the district school board code of student conduct.

Any recommendation of expulsion shall include a detailed

report by the principal or the principal’s designated

representative on the alternative measures taken prior to the

recommendation of expulsion.

6. The name of the person using or assisting in the restraint

or seclusion of the student.

7. The name of any nonstudent who was present to witness

the restraint or seclusion.

8. A description of the incident, including: a. The context in

which the restraint or seclusion occurred.

b. The student’s behavior leading up to and precipitating the

decision to use manual or physical restraint or seclusion,

including an indication as to why there was an imminent risk of

serious injury or death to the student or others.

c. The specific positive behavioral strategies used to prevent

and deescalate the behavior.

d. What occurred with the student immediately after the

termination of the restraint or seclusion.

e. Any injuries, visible marks, or possible medical

emergencies that may have occurred during the restraint or

seclusion, documented according to district policies.

2) MONITORING.—(a) Monitoring of the use of manual or physical

restraint or seclusion on students shall occur at the classroom, building,

district, and state levels.

(b)  Documentation prepared as required in subsection (1) shall be

provided to the school principal, the district director of Exceptional

Student Education, and the bureau chief of the Bureau of Exceptional

Education and Student Services electronically each month that the school

is in session.

(c) The department shall maintain aggregate data of incidents of

manual or physical restraint and seclusion and disaggregate the data for

analysis by county, school, student exceptionality, and other variables,

including the type and method of restraint or seclusion used. This

information shall be updated monthly.

(d) The department shall establish standards for documenting,

reporting, and monitoring the use of manual or physical restraint or

mechanical restraint, and occurrences of seclusion. These standards shall

be provided to school districts by October 1, 2011.

(3) SCHOOL DISTRICT POLICIES AND PROCEDURES.—(a) Each school district shall

develop policies and procedures that are consistent with this section and that govern the

following:1. Incident-reporting procedures.

2. Data collection and monitoring, including when, where, and why students are

restrained or secluded; the frequency of occurrences of such restraint or seclusion; and

the prone or mechanical restraint that is most used.

3. Monitoring and reporting of data collected.

4. Training programs relating to manual or physical restraint and seclusion.

5. The district’s plan for selecting personnel to be trained.

6. The district’s plan for reducing the use of restraint and seclusion particularly in

settings in which it occurs frequently or with students who are restrained repeatedly, and

for reducing the use of prone restraint and mechanical restraint. The plan must include a

goal for reducing the use of restraint and seclusion and must include activities, skills, and

resources needed to achieve that goal. Activities may include, but are not limited to:a.

Additional training in positive behavioral support and crisis management;

b. Parental involvement;

c. Data review;

d. Updates of students’ functional behavioral analysis and positive behavior intervention

plans;

e. Additional student evaluations;

f. Debriefing with staff;

g. Use of schoolwide positive behavior support; and

h. Changes to the school environment.

(b) Any revisions to the district’s policies and procedures,

which must be prepared as part of its special policies and

procedures, must be filed with the bureau chief of the

Bureau of Exceptional Education and Student Services no

later than January 31, 2012.

(4) PROHIBITED RESTRAINT.—School personnel may not

use a mechanical restraint or a manual or physical restraint

that restricts a student’s breathing.

(5) SECLUSION.—School personnel may not close, lock,

or physically block a student in a room that is unlit and

does not meet the rules of the State Fire Marshal for

seclusion time-out rooms.

Alternative Schools

1003.04. Student conduct and parental involvement. (2) The parent of

each public K-12 student must cooperate with the authority of the

student’s district school board, superintendent, principal, teachers, and

school bus drivers, according to ss.1003.31 and 1003.32, to remove the

student from the classroom and the school bus and, when appropriate

and available, to place the student in an alternative educational setting, if

the student is disobedient, disrespectful, violent, abusive, uncontrollable,

or disruptive.

1006.13. Policy of zero tolerance for crime and victimization (3) District

school boards may assign the student to a disciplinary program for the

purpose of continuing educational services during the period of

expulsion.

Zero Tolerance

3) Zero-tolerance policies must require students found to

have committed one of the following offenses to be

expelled, with or without continuing educational services,

from the student’s regular school for a period of not less

than 1 full year, and to be referred to the criminal justice

or juvenile justice system.(a) Bringing a firearm or

weapon, as defined in chapter 790, to school, to any

school function, or onto any school-sponsored

transportation or possessing a firearm at school.

(b) Making a threat or false report, as defined by ss.

790.162 and 790.163, respectively, involving school or

school personnel’s property, school transportation, or a

school-sponsored activity.

Notwithstanding any other provision of law, each district school board shall

adopt rules providing that any student found to have committed any offense

in s. 784.081(1), (2), or (3) shall be expelled or placed in an alternative school

setting or other program, as appropriate. Upon being charged with the

offense, the student shall be removed from the classroom immediately and

placed in an alternative school setting pending disposition.

(6)(a) Notwithstanding any provision of law prohibiting the disclosure of the

identity of a minor, whenever any student who is attending a public school is

adjudicated guilty of or delinquent for, or is found to have committed,

regardless of whether adjudication is withheld, or pleads guilty or nolo

contendere to, a felony violation of:

1. Chapter 782, relating to homicide;

2. Chapter 784, relating to assault, battery, and culpable negligence;

3. Chapter 787, relating to kidnapping, false imprisonment, luring or enticing

a child, and custody offenses;

4. Chapter 794, relating to sexual battery;

5. Chapter 800, relating to lewdness and indecent exposure;

6. Chapter 827, relating to abuse of children;

7. Section 812.13, relating to robbery;

8. Section 812.131, relating to robbery by sudden snatching;

9. Section 812.133, relating to carjacking; or

10. Section 812.135, relating to home-invasion robbery,

Due Process During Expulsion

•

Expulsion hearings shall be governed by ss. 120.569 and 120.57(2) and are exempt

from s. 286.011. However, the student’s parent must be given notice of the

provisions of s. 286.011 and may elect to have the hearing held in compliance with

that section. The district school board may prohibit the use of corporal

punishment, if the district school board adopts or has adopted a written program

of alternative control or discipline.

•

(b) Require each student at the time of initial registration for school in the school

district to note previous school expulsions, arrests resulting in a charge, and

juvenile justice actions the student has had, and have the authority as the district

school board of a receiving school district to honor the final order of expulsion or

dismissal of a student by any in-state or out-of-state public district school board or

private school, or lab school, for an act which would have been grounds for

expulsion according to the receiving district school board’s code of student

conduct, in accordance with the following procedures:1. A final order of

expulsion shall be recorded in the records of the receiving school district.

•

2. The expelled student applying for admission to the receiving school district

shall be advised of the final order of expulsion.

The Reality

•

The Agency has to request an ALJ (this has never

happened in my cases.

•

I have been denied depositions and had to cite

authority

•

Notice is rarely timely

•

Procedures are squishy

•

Your client may not be able to testify

•

Your client’s written statement needs to be

objected to as hearsay to preserve for appeal.

More reality

•

Principal as prosecutor, Superintendent is

Judge

•

Attempts to expel students for use of

profanity

•

Red eyes

•

Manifestations of their autism

•

Frequently produce no evidence

•

And yet……….they vote and expel

Appeals

•

Frequently overturned at the District Court of

Appeals for inadequate evidence:

•

http://caselaw.findlaw.com/fl-district-court-

of-appeal/1519487.html

Baker Act

•

The Baker Act is a Florida law that enables families and loved ones

to provide emergency mental health services and temporary

detention for people who are impaired because of their mental

illness, and who are unable to determine their needs for treatment.

The Act was named after Maxine Baker, former Miami State

representative who sponsored the Act in 1972. People who require

the use of the Baker Act have often lost the power of self-control,

and they are likely to inflict harm to themselves or others. It is

important that the Baker Act only be used in situations where the

person has a mental illness and meets all the remaining criteria for

voluntary or involuntary admission.  It does not substitute for any

other law that may permit the provision of medical or substance

abuse care to persons who lack the capacity to request such care.

Now requires parental notification due to a case from Duval.

Know the criteria for an involuntary

examination under the Baker Act.

•

 For an involuntary examination, a person may be taken to a

psychiatric facility if they meet the following criteria: There is

reason to believe that the person has a mental illness; and

•

The mental illness has caused the person to refuse a voluntary

examination after the purpose of the examination was explained; or

•

The mental illness has caused the person be unable to determine

whether an examination is necessary; and

•

Without receiving proper care and treatment, the person may

suffer from neglect, represents a real and present threat to his/her

well-being; and it is not clear that this harm can be avoided with

the intervention of family and/or friends; or

•

Without treatment there is a substantial likelihood that the person

will hurt himself or others in the near future.(§394.463, Fla. Stat.)

[6]

Parent Rights

A child, who may be misbehaving in school, is

subject to questioning by school personnel and

then adjudication that the child is a risk to

themselves and/or others. Yet, by law, the

parent has the right to take their child home, if

they are told about the behavior and the

possibility of a Baker Act, prior to the actual

initiation of it. After the fact, the parent cannot

simply remove the child from the facility.

Arrests and SRO

•

Below are other highlights of the study, covering fiscal years (FY)

2004-05 to 2011-12:

•

Misdemeanors accounted for 67 percent of all school‐related

arrests.

•

First-time delinquents accounted for 51 percent of school-related

arrests during FY 2011-12, down seven percent from 58 percent last

year.

•

Drug and weapon offenses accounted for 27 percent of all

school‐related arrests.

•

Misdemeanor assault and battery and disorderly conduct violations

accounted for 39 percent of all school‐related arrests (including

misdemeanor drug charges increases this to 56 percent).

•

School-related arrests that were ultimately dismissed, not filed or

diverted totaled 65 percent during FY 2011-12.

Schools Affirmative Duties

•

Response to Intervention-RtI/Multi Tiered

System of Supports-MTSS/Positive Behavioral

Interventions and Supports-PBIS

•

Section 504 of the Rehabilitation Act 1973

•

Individuals with Disabilities Education Act

(2004)

RtI-MTSS-PBIS

•

The history 2002 Senate subcommittee

•

Why?

•

The plan

•

The reality

•

A multi-tiered system of general education

interventions for academics and behavior

504 plans

Section 504 is a federal law designed to protect the

rights of individuals with disabilities in programs

and activities that receive Federal financial

assistance from the U.S. Department of Education

(ED). Section 504 provides: "No otherwise qualified

individual with a disability in the United States . . .

shall, solely by reason of her or his disability, be

excluded from the participation in, be denied the

benefits of, or be subjected to discrimination under

any program or activity receiving Federal financial

assistance . . . ."29 U.S.C. § 794 (Section 504)

Free and Appropriate Public Education

The Section 504 regulations require a school district

to provide a "free appropriate public education"

(FAPE) to each qualified student with a disability

who is in the school district's jurisdiction, regardless

of the nature or severity of the disability. Under

Section 504, FAPE consists of the provision of

regular or special education and related aids and

services designed to meet the student's individual

educational needs as adequately as the needs of

nondisabled students are met.

How does the Rehabilitation Act of 1973 define

a “person with disabilities”?

The Rehabilitation Act of 1973 defines a person with

disabilities as any person who has a physical or mental

impairment that substantially limits one or more major

life activities, has a record of such impairment, or is

regarded as having an impairment. Major life activities as

defined in the Rehabilitation Act of 1973 include caring

for one’s self, performing manual tasks, walking, seeing,

hearing, speaking, breathing, 

learning

, and working.

Learning does not have to be the major life activity

affected in order for an individual to be eligible for

protections and services under Section 504.

How are students identified as having

a disability?

A parent, teacher, or other member of the school staff may raise a

concern about a student’s unique need for special help. Parents,

teachers, and other staff members will meet to discuss all relevant

information about the student. The parents’ participation in this

meeting is critical and helps to establish an accurate picture of the

student’s needs. At the meeting, the team will consider whether the

student has a disability that substantially limits a major life activity. If

the team needs more information, they will request the parent’s

consent to evaluate the student. If the team determines that the

student does have a disability, they will then identify what types of

support, or accommodations, are appropriate to meet the student’s

needs. The accommodations will be described in a document referred

to as the Section 504 accommodation plan.

•

http://www.fldoe.org/core/fileparse.php/7690/urlt/0070055-

504bro.pdf.

What is included in a Section 504

accommodation plan?

A Section 504 plan describes the accommodations that the school will

provide to support the student’s education. The team that determined

the student’s eligibility for Section 504 and identified the needed

accommodations will write the accommodation plan. While Section

504 does not require a written plan, it does require documentation of

evaluations and accommodations. It is very useful to have a written

plan to provide clarity and direction to the individuals delivering

services or making accommodations. While there is no time limit

specified for an accommodation plan, a yearly review is

recommended. Section 504 accommodation plans may be updated at

any time to reflect changes and recommendations by the team.

http://www.fldoe.org/core/fileparse.php/7690/urlt/0070055-

504bro.pdf.

What procedural safeguards are

provided by Section 504?

Procedural safeguards are rules that tell what procedures

schools (and parents) must use in making decisions about

services for students with disabilities. School principals

should have the procedural safeguards information

available for parents upon request. Under Section 504,

parents have the right • to receive notice regarding the

identification, evaluation, and placement of their child •

to receive prior notice when the school is changing or

discontinuing services for their child • to review their

child’s records • to participate in an impartial hearing and

review process with or without representation by

counsel.

504 accommodations

•

preferential seating

•

extended time on tests and assignments

•

reduced homework or classwork

•

verbal, visual, or technology aids

•

modified textbooks or audio-video materials

•

behavior management support

•

adjusted class schedules or grading

•

verbal testing

•

excused lateness, absence, or missed classwork

•

pre-approved nurse's office visits and accompaniment to

visits

•

occupational or physical therapy

Individuals with Disabilities Education

Act (IDEA) 20 U.S.C. §1400 et seq.

•

Child Find

•

Developmental Disabilities

•

ADHD/Other Health Impaired (OHI)

•

Procedural Safeguards

•

Individualized Education Plans (IEPs)

504 Plans vs. IEPs

A 504 plan is different from an individualized

education program (IEP). The main difference is

that a 504 plan modifies a student's regular

education program in a regular classroom setting. A

504 plan is monitored by classroom teachers. A

student with an IEP, as part of the Individuals with

Disabilities Education Act (IDEA 2004), may receive

different educational services in a special or regular

educational setting, depending on the student's

need. IEP programs are delivered and monitored by

additional school support staff.

Fla. Stat. § 1003.01

(3)(a) “Exceptional student” means any student who has been

determined eligible for a special program in accordance with rules of

the State Board of Education. The term includes students who are

gifted and students with disabilities who have an intellectual disability;

autism spectrum disorder; a speech impairment; a language

impairment; an orthopedic impairment; an other health impairment;

traumatic brain injury; a visual impairment; an emotional or behavioral

disability; or a specific learning disability, including, but not limited to,

dyslexia, dyscalculia, or developmental aphasia; students who are deaf

or hard of hearing or dual sensory impaired; students who are

hospitalized or homebound; children with developmental delays ages

birth through 5 years, or children, ages birth through 2 years, with

established conditions that are identified in State Board of Education

rules pursuant to s. 1003.21(1)(e).

The Child Find Mandate

•

Schools are required to locate, identify and evaluate 

all

children

 with disabilities from 

birth through age 21

. (22

nd

 birthday)

The Child Find mandate applies to all children who reside within a

State, including children who attend private schools and public

schools, highly mobile children, migrant children, homeless

children, and children who are wards of the state. (20 U.S.C.

1412(a)(3))

•

This includes all children who are suspected of having a disability,

including children who receive passing grades and are "

advancing

from grade to grade

." (34 CFR 300.111(c)) The law 

does not

 require

children to be "labeled" or classified by their disability. (20 U.S.C.

1412(a)(3)(B); 34 CFR 300.111(d))

•

- See more at:

http://www.wrightslaw.com/info/child.find.mandate.htm#sthash.w

u46ATmI.dpuf

What is the legal authority for functional

behavioral assessments and behavioral

intervention plans?

The IDEA Amendments (20 U.S.C. Chapter 33)

reference functional behavioral assessment in

Section 1414, “Evaluations,” and in Section 1415,

“Procedural Safeguards.” Specifically, Section

1414(b)(2)(A) states that the local education agency

(LEA) shall “use a variety of assessment tools and

strategies to gather relevant functional and

developmental information, including information

provided by the parent, that may assist in

determining whether the child is a child with a

disability.”

Further, Section 1414(b)(2)(C) requires the use

of “technically sound instruments that may

assess the relative contribution of cognitive

and 

behavioral 

factors, in addition to physical

or developmental factors” and (3)(D)

“assessment tools and strategies that provide

relevant information that directly assists

persons in determining the educational needs

of the child.”

Section 1414(d)(3)(B)(i-v) addresses the

role of the IEP team in considering special

factors. Part (i) states that the practitioner

should “in the case of a child whose

behavior

 impedes his or her learning or

that of others, consider, when

appropriate, strategies, including 

positive

behavioral interventions, strategies, and

supports

 to address that behavior.”

What is a FBA

A functional behavioral assessment is a process for developing

a useful understanding of how behavior relates to the

environment. By knowing the function (or purpose) that the

behavior serves for the student, one is able to develop an

intervention that also serves that purpose, but does so

through positive student behaviors. Intervention strategies

may include effective prevention, remediation, or

development of alternative behaviors (replacement

behaviors). Therefore, similar behaviors should not routinely

be treated with identical interventions, as the functions of the

behaviors may be very different. For example, one student

may fight to stop teasing by a peer; another student may fight

to gain approval from a peer group.

When must a functional behavioral

assessment be conducted?

Based on Section 1415(k)(1)(B) of IDEA and on 34 C.F.R.

300.519, if a disciplinary action is being considered for a

student with a disability that would result in a change of

placement (defined as “(a) the removal is for more than 10

consecutive schools days; or (b) the child is subjected to a

series of removals that constitute a pattern because they

cumulate to more than 10 school days in a school year...”), one

of the following must have been completed by the IEP team

either before or not later than 10 days after taking the

disciplinary action: 

■

 development of a plan for conducting an

FBA and development of interim interventions 

■

 review of the

student’s behavioral intervention plan that has already been

developed and modification of the plan as necessary to

address the student’s behavior

If parents refuse to grant consent for the FBA in

disciplinary response situations, what recourse

do school districts have?

School districts may request a due process hearing

to determine whether or not the FBA should be

conducted without parental consent. This step

should be included in the plan for conducting the

FBA when a student is being removed for more

than 10 cumulative days in a school year or a

pattern of removals accumulate to more than 10

days and the FBA has not already been completed.

If parents refuse to consent to an FBA, the district

may also invoke due process procedures.

Are districts required to obtain parental consent for the FBA of a

nondisabled student who may be at risk of disciplinary actions

that may have a potential negative impact on his/her learning

progress?

There are no parental consent requirements for

behavioral assessments of nondisabled students or

students who are not suspected of having a

disability. However, the FBA should include

information from parents/ caregivers, and a written

consent form may be developed by districts to

document parental involvement in the assessment

and behavioral intervention process. Should any

issues arise that might lead to an indication that the

student may be a student with a disability, the

protections of IDEA and Section 504, including

parent consent/notice requirements, are invoked.

What is the relationship between functional

behavioral assessment and manifestation

determinations?

“Functional behavioral assessments provide specific

information to the team concerning the design and

implementation of effective strategies.

Manifestation determinations serve to determine if

(a) the student’s disability impaired the student’s

understanding of the consequences of his or her

behavior, and (b) the student’s disability impaired

his or her ability to control the behavior” (Tilly, et

al., 1998, p. 16).

http://www.fldoe.org/core/fileparse.php/7590/urlt

/0107234-tap99-3.pdf

DISCIPLINARY REMOVALS INVOLVING

10 SCHOOL DAYS OR LESS

In IDEA’s final regulations, 34 C.F.R. §

300.121(d)(1) sets forth the so-called 11th-Day

Rule: A public agency need not provide services

during periods of removal under § 300.520(a)(1)

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.

For purposes of removals of a child with a disability

from the child’s current educational placement under §

300.519, a change of placement occurs if -

(a) The removal is for more than 10 consecutive

school days; or (b) The child is subjected to a

series of removals that constitute a pattern

because they cumulate to more than 10 school

days in a school year, and because of factors

such as the length of each removal, the total

amount of time the child is removed, and the

proximity of the removals to one another. (34

C.F.R. § 300.519.)

If a student with a disability has been removed for 10 cumulative

days and engages in an act of misconduct that necessitates

another suspension/removal, what must a school district do on

the 11th day of removal?

Beginning on the 11th cumulative day in a school year, the

school must provide those services that school personnel (for

example, the building principal or other appropriate school

personnel) in consultation with the student’s special

education teacher determine to be necessary to enable the

student to appropriately progress in the general curriculum

and appropriately advance toward achieving the goals set out

in the IEP. An IEP meeting is not required to determine the

amount or location of the services to be provided during

short-term removals that do not constitute a change in

placement. However, a functional behavioral assessment

(FBA) must be conducted in order to develop a behavioral

intervention plan (BIP). If a BIP exists then it must be reviewed

and revised to address current misconduct.

What information must an IEP team

consider about a student when making a

manifestation determination?

Regulation 34 C.F.R. § 300.523(c)(1) specifies the

type of information and data that must be

considered in making the manifestation

determination and directs IEP teams to consider,

“all relevant information, including” the

following: (i) Evaluation and diagnostic results,

including the results or other relevant

information supplied by the parents of the child;

(ii) Observations of the child; and (iii) The child’s

IEP and placement

What conditions must exist in order for a

specific misbehavior not to be considered a

manifestation of the student’s disability?

•

Under the final regulations, a student’s misconduct is not related to

his disability, for purposes of the IDEA, if all of the following are

found to be the case: 

■

 In 

relationship

 to the behavior subject to

disciplinary action, the student’s IEP and placement were

appropriate. 

■

 The special education services, supplementary aids

and services, and behavior intervention strategies were provided

consistent with the student’s IEP and placement. 

■

 The student’s

disability did not impair the ability of the student to understand the

impact and consequences of the behavior subject to disciplinary

action. 

■

The student’s disability did not impair the ability of the

student to control the behavior subject to disciplinary action. For

example, even if a student’s disability does not interfere with his

ability to control his misbehavior but the IEP or supplementary

aids or services were not properly implemented, then his

misbehavior still must be considered to be disability-related

.

Who has the burden of proof if a parent challenges a

district’s determination that the student’s misconduct

was not related to his disability?

•

The school district has that burden. Section

1415(k)(6)(B)(i) states, “In reviewing a decision

with respect to the manifestation

determination, the hearing officer shall

determine whether the public agency has

demonstrated that the child’s behavior was

not a manifestation of the child’s disability

consistent with the requirements of the

statute.” 34 C.F.R. § 300.525(b)(1) supports

this.

Which must a district do first according to IDEA

’97, the manifestation determination review or

the expulsion hearing?

The manifestation determination review must

be conducted first because the result of the

manifestation determination decision will

impact the resulting placement and delivery of

services to the student.

TAP Guide

•

http://www.fldoe.org/core/fileparse.php/757

1/urlt/ManifestationDetermination.pdf

Parting words

•

If there is a disability find it

•

File expedited due process hearing request

•

Fight hard during the manifestation

•

If it is a manifestation, child returns to

placement with increased supports

•

Get used to the losing at the School Board

level

Classroom Management?

bev.brown@trls.org

904-423-8967

Thank you