2021 Milestones National Autism Conference
Milestones Autism Resources
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Warrensville Heights, OH 44128
Phone: (216) 464-7600
This resource was prepared by Attorney Judith C. Saltzman, of councel to the Cleveland and Sheffield Village law firm of Hickman & Lowder Co., L.P.A., and is intended to provide broad general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.
Students with disabilities are entitled to special protections against discipline not afforded to the general student population. Current regulations on discipline (34CFR 300.530) under the Individuals with Disabilities Education Act (“IDEA”) stem from the U.S. Supreme Court’s decision in Honig v. Doe (1988) which prohibited certain disciplinary actions that result in a change of placement for a student with a disability.
Even if behavior is a manifestation of disability, the school has a right to remove a special education student who has brought weapons or drugs to school, or who has inflicted “serious bodily injury” on another person at school. “Serious bodily injury” involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily part or mental faculty. An ordinary school fight between students will not typically cause “serious bodily injury.”
It is critical for parents to bring their child’s doctor or therapist to the manifestation meeting, or at least a letter from one or both of these professionals. The letter should address the manifestation standards exactly as they are set forth above, and explain why they are met. It is not adequate to assert that the child’s IEP was insufficient because this is not a reason for finding manifestation of disability.
A child who has not yet been determined eligible for special education may claim disciplinary protections if the parent expressed written concern to supervisory or administrative personnel that the child needed special education, or the parent requested an evaluation, or the child’s teacher expressed concerns about the child’s behaviors directly to supervisory personnel.
Typically the school will initiate suspension and even expulsion proceedings before the manifestation meeting. Logically, the manifestation hearing should happen first; however parents must exercise caution to meet all appeal deadlines on the suspension and/or expulsion actions, and request continuances of these proceedings only after the right of appeal has been established by a timely filing. If manifestation is found the suspension or expulsion appeals will become moot.
It is wise to consult an attorney regarding suspensions and expulsions, as the consequences for your child will be severe if manifestation is not found.
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