No issue is more frightening for the parents of children with disabilities than disciplinary problems at school. A child's disability may interfere with the child's ability to behave.
The memorandum is provided for you below. If your child has been removed from school or is without educational services as the result of disciplinary action, this memo may help you to understand basic rights. You should be aware, however, that each situation is unique and you may wish to consult an advocate or counsel if you are unclear on your child's rights. Indiana Appellate Court Rules No Right to Counsel in Expulsion Proceeding; Indiana Students Facing Expulsion Still Have Rights under IDEA.
The Indiana Court of Appeals has ruled that a student has no right to have counsel present during an expulsion proceeding. In Lake Central School Corp., v. Anthony Scartozzi, the Court reversed the decision of a trial court which found that the student had been denied due process when his attorney was barred from participating in an expulsion meeting. The student was then subsequently examined by the expulsion examiner and expelled for two months for reasons not stated in the opinion. The parents appealed to the school board which did permit the attorney to participate. They then followed up with the lawsuit to district court in Indiana which found in their favor. The school board appealed. The Court of Appeals found that the student did not have the right to have an attorney present during the expulsion meeting process.
Students with disabilities in Indiana who encounter expulsion attempts should be aware that they have the right to two procedures under the IDEA. First, a meeting must be held to determine if the misconduct is a manifestation of the disability and if so, what services need to be provided the child. This is called a manifestation meeting. Second, the school district may permit the student to remain in the present program or propose an "alternative interim placement" for the student during the time the student would normally be suspended or expelled but not to exceed 45 days. The alternative interim placement must be decided by the IEP team and must be the least restrictive environment under the circumstances. Students have the right under IDEA to challenge both the manifestation determination and the alternative interim placement in an expedited special education due process hearing before a special education hearing officer.
Finally, under the IDEA, students have the specific statutory right to counsel in the expedited hearing process to challenge either the manifestation determination or the alternative interim placement or discipline imposed. 34 CFR 300.528, 34 CFR 300.509. Students in Indiana facing expulsion are advised to consult an attorney especially in light of this new decision from the Court of Appeals to determine if exercising their rights under the IDEA may provide them relief not available through the traditional expulsion process. When the long-awaited federal regulations for IDEA are finally issued, we will notify you of their impact on disciplinary procedures.