Very good AP article here: Kids with disabilities face off-the-books school suspensions | AP News

The issue raised in this article is pervasive and serious. I see it in half of the cases I discuss with parents. The IDEA prohibits school districts from disciplining kids for behaviors that are caused by the child’s disability. After all, if a child’s disability (e.g. ADHD) causes you to fidget in their seat, then they should not be sent to the office for fidgiting in their seat. Instead, the district should have an education plan designed to teach the child how to avoid fidgiting or how to remain productive and non-disruptive while fidgiting.

But unfortunately, instead of building an education plan to help a child gain the best possible education while accommodating their disability, many districts punish the child for behaviors caused by the disability. That’s illegal. The IDEA requires that before repeatedly punishing a child with an IEP for a particular behavior, the district has to hold a “manifestation determination” to determine if the behavior is a manifestation of the child’s disability. If the behavior is caused by the child’s disability, then the district cannot continue to punish the child for that behavior.

As described in the article, districts try to get around this requirement by simply failing to document instances of punishment. In particular, the law requires a manifestation determination if a child is suspended for 10 school days. So the district sends the child home but does not call it a “suspension.” Or they keep the child in a hallway for most of the day (as happened to a client of mine) but don’t keep a record of it.

But even if the school doesn’t call it a suspension, any time a child is kept out of class because of a behavior, that counts as a suspension. If it happens for 10 days total, then the child is entitled to a manifestation determination. We have brought actions against districts a number of times on this issue.

If your child has an IEP, or if they are disabled even if they don’t have an IEP, and if the school is punishing your child for their behavior, you should:

1. Keep track of every punishment your child is given for their behavior. Write it down, with the date, the reason for the punishment, and the names of all teachers and staff involved.
2. If your child is repeatedly punished for a behavior, ask for a manifestation determination.
3. If the school doesn’t give you a manifestation determination, then call an IEP meeting and ask for a “behavior intervention plan” to address your child’s behaviors as an educational issue rather than a behavior issue.
4. If the school keeps your child out of class for 10 days cumulatively in one school year and has not had a manifestation determination, or if they refuse your request for a behavior intervention plan, then they are likely denying your child’s rights under the IDEA and you have a good reason to request a due process hearing to ask a judge to intervene on your child’s behalf.