Are my child’s rights different if he/she is accused of a drug or weapon offense as opposed to some other violation of school rules? YES! The protections afforded to children receiving special education and related services are limited when the school plans to discipline a child for drug or weapon offenses. The school does not have to go through the manifestation determination review it would normally undergo before changing the child’s placement for some other violation of school rules.
Can the school change my child’s placement if the school accuses her of a drug or weapon offense? YES! The school administration may remove a child with a disability from her educational placement for not more than 45 days - no manifestation determination required.
What types of drug or weapon offenses are we talking about?
1. Carrying a weapon to school or to a school function, or
***It does not include, for example, a child’s threat "I have a knife in my pack and I’m going to hurt you," if the child has no knife in his pack. While this is most likely a violation of some other school rule, it is not a drug or weapon offense under IDEA.
"Controlled substance" means those substances identified in schedules I, II, III, IV or V in section 202 of the Controlled Substances Act, such as marijuana and heroine. "Illegal drug" means a controlled substance, but does not include a substance legally possessed or used under the supervision of a licensed health care professional.
"Dangerous weapon" means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 ½ inches in length.
Exactly how long can the school remove my child from his placement? The school may remove the child from his educational placement for up to 45 days, but the removal must be for the same amount of time that a child without a disability would be removed for the same conduct.
Can the school just send my child home with no educational services? NO! The school must place the child in an interim alternative educational setting and address the behaviors responsible for the alternative placement.
What is an interim alternative educational setting? The interim alternative educational setting ("IAES") is a placement that allows the child to continue to progress in the general curriculum and to continue to receive those services and modifications that will enable the child to meet the goals set out in her IEP. The IEP team determines the interim alternative educational setting. If the IEP team and parent do not agree on the IAES, then the parent may ask for a hearing. The child stays in the IAES until the hearing officer makes a decision. The school cannot place the child in an IAES for reasons other than a drug or weapon offense. However, a hearing officer can place a child in an IAES, after a hearing, if the hearing officer determines that maintaining the child in her current placement is substantially likely to result in injury to the child or others.