‘Off the Books’ School Removal Violates Students’ Rights
Informal school removal is an insidious, pervasive, and often illegal response to student misbehavior. Here, an attorney and parent advocate explains how to fight it using an IEP, functional behavioral assessment, and the law.
Does this scenario seem familiar? Your fifth grader, feeling anxious or threatened, lashes out by yelling or pushing another student. One month later, a school principal calls and tells you to pick up your child because they were disruptive in the cafeteria. When you arrive, the principal says your student needs to start going home for lunch. A few weeks later, you get another call. This time, your student was fighting on the bus. The school says your student will no longer be provided bus service. Similar calls follow, and eventually, you learn that your child will only be allowed in class if a parent is present at all times.
Sadly, this is an increasingly common situation, often referred to as “informal removal” or “off-the-books suspension,” which some schools use to “manage” students they deem to be disruptive. However, what ends up being disrupted is the student’s rights — their ability to learn and make academic progress, as well as to benefit from the social interactions of the school day.
What can you do when your student faces this situation? How can schools balance the rights and needs of students they deem to be disruptive with the safety and needs of other students, staff, and the school community?
Students’ Rights to a Free, Appropriate Education
Let’s start with some basic principles. First, no student can be excluded from school, or from part of the school day, without at least minimal “due process” notice of the school’s intent to exclude them and a chance to present their side of what happened. This right applies to all students, regardless of whether they have a 504 Plan or an Individualized Education Program (IEP).
Students with IEPs, under the Individuals with Disabilities Education Act (IDEA), are entitled to a free, appropriate public education. If a student with an IEP is acting out, having behavioral issues, or otherwise not functioning appropriately in school, the IEP team is required to look at the student’s IEP and examine how that student’s behavior may be related to their disability. This can be done through a functional behavior assessment (FBA), which should result in a Behavioral Intervention Plan. The presumption is that if there are consistent behavioral issues, the student’s IEP is not appropriate or adequate to address their disabilities.
In addition, if a student with an IEP faces a suspension of 10 days or more, an FBA is required as part of a manifestation determination — a determination as to whether the student’s conduct is connected to their disability. If this is the case, the school needs to strengthen the services it provides to that student. This can mean adding supports to their day, placement in a smaller or more appropriate class, or otherwise helping the student moderate their behavior while adhering to the requirement of the IDEA that their education take place in the least restrictive environment.
Like those with IEPs, students with 504 Plans have been determined to have a disability and are entitled to the same kind of school day as their non-disabled classmates. If their day is shortened because they are sent home early or put on “home instruction” because of their behavior, they are not receiving the same educational opportunities as their non-disabled peers. They, too, are entitled to an appropriate education in the least restrictive environment.
Keep in mind that schools are required to keep records of suspensions; informal or “off-the-books” suspensions often fail to comply with this record-keeping requirement.
Parents’ Role as Advocates
As a parent advocate, you need to be a detective, getting as much information as possible from your child and others (a cooperative teacher, a classmate, or a sibling) about what happened at school. Did your child push Sammy? Or did they push Sammy back? Has there been bullying going on that the school knew or should have known about? Or did this incident arise out of the blue? Have there been other issues you have not heard about?
Next, you need to be an advocate. When you get a call from the school, advise them that you will not agree to any kind of removal without an opportunity to hear the basis of the school’s action and to respond to these claims. You want to hear what happened and have a chance to present your child’s position. It can be as informal as a meeting with the principal, but you and your child have the right to this basic due process.
If your child did something that merits action by the school, you should consider having them evaluated without delay. Do behavioral issues need to be addressed? Is a 504 Plan or an IEP needed, or are modifications to an existing plan warranted to provide the student with the behavioral support they need? Is the school proposing to suspend your student for 10 days or more or exclude them from a regular program to the extent that your child’s school placement would change? Either situation would trigger their right to a manifestation determination (reviewing whether their behavior was related to their disability).
Your child has a right to get the supports and services that they require. The school’s failure to provide these does not give administrators the right to exclude your student from the regular school day.
It’s important to note that very different rules apply when students bring guns or other deadly weapons to school. Every state is required by federal law to suspend such students for at least a year, providing them with alternative education. This is where a student’s right to be educated with appropriate supports comes up against the safety of the school community, and the law is clear that safety is paramount.
The National Disability Rights Network prepared a report on informal school removal in 2022 that looks at the policies, practices, and remedies for these situations. It can be found online at additu.de/isr-report and makes for informative reading.
ADHD Students’ Rights: Next Steps
- Free Checklist: Fight for Your Child’s Rights at School
- Read: When Behavior Interferes with Learning
- Q: “Can the School Expel My Child for ADHD Behaviors?”
Susan Yellin, Esq., is the Director of Advocacy and Transition Services at The Yellin Center for Mind, Brain, and Education, an innovative learning support and diagnostic practice in New York City.
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