Discipline- Rights of Special Education Students

This video describes the rights of students under the federal Individuals with Disabilities Education Act. These are federal laws, so the information is true for every state.  In West Virginia, a Planning and Placement Team (PPT) meeting is also called an Individualized Education Program (IEP) Meeting.  If the school refuses to schedule an IEP meeting after receiving a parent's request for a meeting, the school district must provide the parent with a written notice of why they are refusing to hold a meeting. 

Common Questions

What is the Individuals with Disabilities Education Act (IDEA)?

It is the federal law that governs how special education and related services are provided to children with disabilities. Children with disabilities from birth to age 18-21 are entitled to a Free Appropriate Public Education (FAPE).

What is a Free Appropriate Public Education (FAPE)?

The law requires public schools to provide a FAPE to students with disabilities. A FAPE is appropriate special education and related services that are provided to a student without charge to the parent.

Can the school suspend my child if he/she has an Individualized Education Program (IEP)?

School personnel may remove any student, including a student with a disability, for up to 10 consecutive school days if the student violates the school’s code of conduct. During those initial 10 days, services need not be provided unless services are provided to students without disabilities.

What happens once my child has been removed from class from more than 10 days in the same school year?

A manifestation determination meeting is required for removing a student with a disability beyond 10 school days. At this meeting, the team must answer two questions:

1) if the conduct was caused by, or did it have a direct and substantial relationship to the student’s disabilities; and

2) was the conduct a direct result of the district’s failure to implement the IEP? If the answer to either one of those questions is yes then the behavior is determined to be a manifestation of the student’s disability.

What happens if the team determines that my child’s behavior is a manifestation of his/her disability?

The school district must conduct a Functional Behavior Assessment (FBA) on the student and develop a Behavior Intervention Plan for the student. If there is already a behavior plan, the IEP team must review the existing plan and revise as needed. The school district must also return the student to the placement from which he/she was removed, unless the parent and district agree to an alternate placement.

What happens if the team determines that my child’s behavior is NOT a manifestation of his/her disability?

The team will then determine appropriate disciplinary action. The student can be treated and disciplined like students without disabilities. An IEP meeting must be held to develop an IEP that enables the student to continue to participate in the general curriculum, although in another setting. The district should also provide the student with an FBA and a behavior plan designed to address the behavior violation so that it does not recur.

What if my child is caught with a gun or drugs at school?

When behavior involves weapons, drugs, or serious bodily injury (regardless of whether the behavior is a manifestation of the student’s disability) the district may remove a student from his/her educational placement and place the student at an alternative educational setting selected by the IEP team for up to 45 school days.

What are my options if I disagree with the discipline procedures taken by the school or I disagree with my child’s special education plan?

The parent/adult student may file a written State Complaint, request mediation, or request a Due Process Hearing.

What is a State Complaint?

A State Complaint is filed with the WV Department of Education (WVDE) for violations of WV Policy 2419. The complaint must be filed within 1 year of the violation, or of learning of the violation. The complaint must be in writing and include details of the violation(s). The WVDE shall investigate and resolve the written complaint within sixty (60) calendar days from the date the complaint is received unless exceptional circumstances exist justify an extension.e an

What is mediation?

Mediation is available through the WVDE to resolve disputes relating to the identification, evaluation, or educational placement of an exceptional student. Mediation is voluntary and is conducted by a qualified and impartial mediator. If an agreement is reached it will be put in writing and signed by both parties. This agreement is enforceable by the courts.

What is a Due Process Hearing?

A parent/adult student may submit a written request for a Due Process Hearing on violations of WV Policy 2419. The request must be submitted within 2 years of when the party knew or should have known of the violation. A Due Process Hearing is an administrative hearing before a hearing officer contracted by the state and the hearing officer determines the outcome of the case. The hearing officer’s decision may be appealed to circuit court.