While administrators collectively breathe a sigh of relief that student discipline is not a daily activity in the summer, the dog days of summer are a great time for school administrators to refresh their knowledge about student discipline. We want you to be ready for when those little jerks your amazing students return to school this fall. One area in particular that most administrators need to review is federal law regarding special education students. Administrators frequently call KSB asking for clarification regarding the 10-day rule and which removals cause days to be counted toward that number. As a reminder the 10-day rule provides that special education students who are suspended for more than 10 school days are entitled to additional procedures from the school. The rule is found at 34 C.F.R. §300.530(b)(1) which provides:
School personnel under this section may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 consecutive school days (to the extent those alternatives are applied to children without disabilities), and for additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under § 300.536).
We have compiled a list of the top questions we receive regarding the 10-days, discipline and resources we recommend school administrators review this summer.
Does ISS count towards the 10 days?
The safest answer is to count ISS days and call your lawyer to talk it over when you get to 7 or 8 total days of ISS. This is because the determination of whether to count ISS days is very fact-specific legal analysis. The IDEA commentary provides that ISS days would not count towards the 10-days as long as the child is given the opportunity to: (1) continue to appropriately progress in their curriculum, (2) continue to receive their IEP services, and (3) continue to participate with nondisabled children to the extent they would have in their usual placement. The third part of that list is what trips up many districts. Most schools will struggle to prove that the ISS room does not limit the child’s participation with nondisabled peers. Districts should further be on alert that OSEP provided guidance in its July 19, 2022 Q&A document stating: “[T]he repeated use of in-school suspension may indicate that a child’s IEP, or the implementation of the IEP, does not appropriately address their behavioral needs.”
Do partial day disciplinary removals count towards the 10-days?
Again, the answer isn’t entirely clear, so we advise schools to count each partial day as 1 day of removal and to call your attorney when you get close to the 10 day limit. The Feds have said “portions of a school day that a child has been suspended may be considered a removal in determining whether there is a pattern of removals.” 71 Fed. Reg. 46,715 (2006). Additionally, OSEP’s Q&A document provides: “In general, the use of informal removals to address a child’s behavior, if implemented repeatedly throughout the school year, could constitute a disciplinary removal from the current placement. Therefore, the discipline procedures in 34 C.F.R. §§ 300.530 through 300.536 would generally apply.” Partial day disciplinary removals and informal removals likely will count towards the 10-days.
Do I count days, occurrences, or hours when counting towards the 10-days?
Again, as an initial matter, we advise you to count each partial removal as a day, and to seek legal clarification when you get close to 10. The IDEA’s implementing regulations define school day as any day, including a partial day, that children attend school for instructional purposes. 34 C.F.R. § 300.11(c). However, the regulation continues by saying that: “School day has the same meaning for all children in school, including children with and without disabilities.”
What does this mean practically? Our position is that in counting school days we should use the same standard units as we would for counting attendance of any student. For example, if your attendance for general education students is accounted for by fractions of a school day (such as by class periods) we contend that the same should apply in counting days of removal for special education students.
Do bus disciplinary removals count towards the 10-days?
It depends. (Seeing the pattern here?) OSEP has stated:
“Whether a bus suspension would count as a day of suspension would depend on whether the bus transportation is part of the child’s IEP. If the bus transportation is part of the child’s IEP, a bus suspension would be treated as a suspension under Sec. 300.530 unless the public agency provides the bus service in some other way, because that transportation is necessary for the child to obtain access to the location where services will be delivered. If the bus transportation is not a part of the child’s IEP, a bus suspension is not a suspension under Sec. 300.530.”
If a student’s IEP requires transportation as a related service and the student is suspended from the bus, the bus suspension would count as a suspension from school unless the district provides an alternative means of transportation. If the district provides transportation to all students as a general education service, there is an argument that a student with a disability would be entitled to manifestation before he or she is removed from the general population of bus transportation for more than 10 days. This is a good reminder that your transportation staff need to be trained on special education issues generally, and informed of the needs of specific students on their routes before school starts next year.
Resources to Review
If you are looking for some light reading this summer, OSEP issued a Q&A document last summer addressing issues related to informal removals. The document is available here. We also blogged about the guidance here and here.
Please do not hesitate to call Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara or send us an email at ksb@ksbschoollaw.com if you have any questions regarding special education or student discipline.