The behaviour that got your child suspended is the behaviour the IEP was supposed to address. The school knows it; that is why the plan exists. Federal law makes the school say so out loud before it can treat the suspension as ordinary discipline.
The short answer: a school may remove a child with a disability for misconduct "for not more than 10 consecutive school days," on the same terms it removes other children.¹ Beyond that — a longer removal, or a pattern of shorter ones that adds up to a change of placement — the school must, "within 10 school days of any decision to change the placement," hold a manifestation determination in which the district, the parent and relevant members of the IEP team review the file and decide two questions: whether the conduct "was caused by, or had a direct and substantial relationship to, the child's disability," or was "the direct result of the LEA's failure to implement the IEP."¹ If either answer is yes, the conduct was a manifestation of the disability: the team must conduct or review a functional behavioural assessment and a behavioural intervention plan, and "return the child to the placement from which the child was removed," unless you and the district agree to a change.¹ California applies these federal procedures by statute to every "individual with exceptional needs."² And whatever the finding, from the eleventh day of removal the school must keep providing services that let the child continue in the curriculum and progress toward IEP goals.¹
The first ten days
Any suspension starts under the ordinary rules. A principal or designee may suspend "for no more than five consecutive schooldays" per incident, must hold an informal conference at which the pupil is told "the reason for the disciplinary action" and given "the opportunity to present the pupil's version and evidence in the pupil's defense," and a school employee "shall make a reasonable effort to contact the pupil's parent or guardian ... in person, by email, or by telephone" at the time of the suspension, with written notice to follow.³ The conference can be skipped only in an emergency — "a clear and present danger to the life, safety, or health of pupils or school personnel" — and even then must happen within two school days.³
None of that is different for a child with an IEP. What is different is what happens when the days add up.
The trigger
A removal "for more than 10 consecutive school days," or a series of removals that form a pattern — more than ten school days in a school year, for substantially similar behaviour, close enough together to add up.⁵ The federal rule counts patterns, not only single suspensions. When a removal crosses that line, the clock runs: the manifestation determination must be made "within 10 school days" of the decision to change the placement.¹ The school must notify you of the decision to remove on the day it is made, and give you the procedural-safeguards notice.¹
The two questions
The team — which includes you — reviews "all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents," and answers:¹
- Was the conduct "caused by, or had a direct and substantial relationship to, the child's disability"?
- Was the conduct "the direct result of the LEA's failure to implement the IEP"?
A yes to either is a manifestation. Question two is the one parents under-use. If the IEP called for a check-in adult, a break card, a behaviour plan, or counselling minutes that were not delivered, and the behaviour followed, the second question answers itself, and the school's own failure — not the child's diagnosis — is the finding.
If it was a manifestation
The IEP team must "conduct a functional behavioral assessment" — unless one was done before the behaviour — "and implement a behavioral intervention plan," or review and modify the plan that exists.¹ And it must "return the child to the placement from which the child was removed," unless you and the district agree that a change of placement is part of the modified plan.¹ The suspension ends there, and the record of it should reflect the finding.
If it was not
The school may discipline the child as it would any other, for the same length of time — but it must still provide services from the eleventh day so that the child can "continue to participate in the general education curriculum" and "progress toward meeting the goals set out in the child's IEP," and, as appropriate, a functional behavioural assessment and behavioural intervention services designed to stop the behaviour recurring.¹ You may challenge the manifestation finding through an expedited due process hearing, which "must occur within 20 school days of the date the complaint requesting the hearing is filed," with a decision "within 10 school days after the hearing."⁴
The three special cases
Regardless of the manifestation finding, school personnel may move a child to an interim alternative setting for up to 45 school days where the child, at school or a school function, carries or possesses a weapon, possesses or uses or sells illegal drugs, or "has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function."¹ Those three, and only those three.
California's additions
Education Code §48915.5 makes the federal procedures the rule for any "individual with exceptional needs" in a California school, requires continued provision of a free appropriate public education during a suspension or expulsion, and requires the district to invite others to the manifestation meeting in particular cases: for a child in foster care, the educational rights holder, attorney and county social worker; for a homeless child, the district's homeless liaison, where the proposed change of placement follows an act on which expulsion is discretionary; and for an Indian child as the Welfare and Institutions Code defines one, the tribal social worker and county social worker.² A child who is excluded from the school bus but whose IEP provides transportation must be given alternative transportation at no cost.²
What to bring to the meeting
The IEP, marked where services were not delivered. The behaviour plan, if any. Your child's outside clinician's letter linking the behaviour to the condition, if you can get one in the time. Dates. The question to put on the record, in these words: "Was every service in the IEP being provided in the weeks before this incident?" When anxiety or depression is wrecking school: 504 plan, IEP, or both → · How do I get my child's school records and evaluations? → · Request a school assessment →
Q&A
Q: My child has a 504 plan, not an IEP. A: The federal IDEA regulation quoted here governs children with IEPs. Section 504 has its own protection against a significant change in placement without re-evaluation; ask the district's 504 coordinator for its manifestation procedure in writing, and see the 504 page.
Q: It was three separate three-day suspensions. Does the rule apply? A: It can. A series of removals totalling more than ten school days in a year, for substantially similar behaviour, is a change of placement if the pattern factors are met, and the manifestation determination follows.⁵
Q: The school did the meeting without me. A: The determination is made by "the LEA, the parent, and relevant members of the child's IEP Team."¹ A meeting held without inviting you is a procedural violation and a ground for an expedited hearing.⁴
Q: Can they expel my child? A: Only through these procedures, and only where the conduct was not a manifestation; even then services continue.¹ ²
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Sources
34 C.F.R. §300.530 — removal "for not more than 10 consecutive school days"; the manifestation determination "within 10 school days of any decision to change the placement," made by "the LEA, the parent, and relevant members of the child's IEP Team" reviewing "all relevant information in the student's file"; the two questions; the functional behavioural assessment and behavioural intervention plan and the return to placement; services from the eleventh day; the 45-school-day special circumstances; same-day parent notification — law.cornell.edu.
Cal. Education Code §48915.5 — discipline of an individual with exceptional needs "in accordance with Section 1415(k) of Title 20 of the United States Code" and its regulations; continued free appropriate public education; invitations to the manifestation meeting for foster children, homeless children (in discretionary-expulsion cases) and Indian children as defined; alternative transportation — california.public.law.
Cal. Education Code §48911 — suspension "for no more than five consecutive schooldays"; the informal conference and the pupil's right to present their version; the emergency exception and the two-school-day limit; the reasonable effort to contact the parent "in person, by email, or by telephone" and written notice — california.public.law.
34 C.F.R. §300.532 — a parent "who disagrees with any decision regarding placement" or the manifestation determination "may appeal the decision by requesting a hearing"; the expedited hearing "must occur within 20 school days" of filing with a determination "within 10 school days after the hearing" — law.cornell.edu.
34 C.F.R. §300.536 — a change of placement occurs where "the removal is for more than 10 consecutive school days," or where a series of removals constitutes a pattern: more than ten school days in a school year, substantially similar behaviour, and factors such as length, total time and proximity — law.cornell.edu.
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