When a regular education student violates the school handbook, the school can discipline that student according to the policies and procedures set forth in the handbook. When the discipline involves a special education student, however, the IDEA requires the school to follow certain additional procedures when disciplining that student. Those procedures are discussed in a previous blog entry called The Schoolyard Lawyer: School Discipline and Special Education Students.

What happens when the student in trouble is not yet eligible for special education services but should be? The law may provide additional protections for such a student if the school district had knowledge before the incident occurred that the student may have a disability.  A school district is deemed to have knowledge in the following situations:

• The parent or guardian has communicated in writing to a teacher or administrator that the student may be in need of special education services; or 
• The parent or guardian has previously requested that the school evaluate the student; or  
• A teacher or other school personnel has previously expressed concerns about the student’s behavior to the special education director or another supervisory staff member.

The school district would not have knowledge and the student would therefore not be eligible for additional protections if the parent previously refused an evaluation or refused the school’s offer for services or if the student had an evaluation and was found ineligible.  

If the district does not have knowledge, the student can be disciplined like a regular education student according to the school handbook policies and procedures. If the district does have knowledge, then the school must afford the student the additional protections under the IDEA, as if he or she was a special education student.

School discipline is complicated, especially when it involves a special education student or a student who is not yet eligible for special education. If you need assistance with your child’s discipline matter, please call Kerstein, Coren & Lichtenstein and one of our Education Attorneys will be able to assist you.