My apologies for all the legal stuff that follows.  Understanding how suspension and expulsion can legally be imposed on autistic children requires understanding the complicated provisions concerning student discipline laid out in the Individuals with Disabilities Education Act (IDEA), as amended in 1997 and 2004.

In the United States, under the current, amended form of IDEA, not only are children with autism and other disabilities entitled to FAPE (a free, appropriate, public education, in the least restrictive environment possible), but school actions that might deny them FAPE by removing them from the classroom are subject to legal limitations.[1]  The school must be very careful about removing a child temporarily (suspension) or permanently (expulsion), if the child’s behavior is a “manifestation” of her or his disability—that is, the behavior is caused either by the disability itself, or by the school’s failure to carry out the child’s IEP plan.  For example, if a child gets into trouble for not doing what the teacher says, and if it turns out that the child has an auditory processing disorder which makes it difficult or impossible to hear what the teacher is saying, and if the accommodations for auditory processing disorder written into her or his IEP have not been fully implemented, then the school cannot suspend or expel the child.

The school also cannot use removals from the classroom in ways that turns them into an unofficial “change of placement” to a more restrictive environment.[2]  If the school does want a change of placement, it is supposed to follow a formal review process, showing that the school has done all that it can to offer the student accommodations and teach him or her “better” behaviors, without success.  But because these actions present a major obstacle to their child receiving FAPE, parents who know their child’s rights can and do appeal school decisions through the state education system and possibly in court.

Schools use both in-school suspensions, in which a child is removed from the classroom but remains in the building, and out-of-school suspensions, in which a child is normally sent home, to punish unwanted behaviors.  According to federal regulations, a disabled child cannot be suspended in either setting for more than ten consecutive school days in response to a particular incident.  If the school wants to suspend a child for a longer period of time, it must provide appropriate educational and additional IEP services, at the school or at home, so that the child can continue to receive an education.  The school must also hold a “manifestation determination review” to decide whether the child’s unwanted behavior or behaviors is a “manifestation” of their disability. If they conclude that it is, additional efforts must be made to modify the child’s behavior.  The school is required to review his or her Individualized Education Program (IEP) to ensure that it is being fully implemented, possibly conduct a first or a new Functional Behavior Analysis (FBA) to determine why the child is “misbehaving” in the first place, and then find ways to teach the student “better” behaviors, while keeping her or him in the classroom.[3] 

Even for students whose behavior is determined to be a “manifestation” of their disability, there are exceptions to the “ten day” rule.  Under certain circumstances—involving guns, drugs, or serious violence against another person—a student may be removed from the school for up to 45 days, as long as educational services continue to be provided in an “interim alternative educational setting.”[4]  The law does not specify what this term refers to—it simply says that the child should continue to receive educational services while in this setting.  Under some circumstances and in some places, children may be sent to special programs run by the school district, but located away from the school itself.  Under other circumstances, children may be sent to juvenile detention centers, residential treatment centers, or even psychiatric hospitals.  There are educational opportunities at these places, but they are—to say the least—extremely limited.

Even without guns or drugs or violence being involved, schools can legally suspend autistic students more than once a year, so long as educational services continue to be provided.  But if a school repeatedly suspends a child, as punishment for the same or similar behaviors, then it is moving into dangerous legal territory.  Repeated suspensions (even if each one is no more than ten days in length), create a “pattern” of administrative behavior that begins to look like an unstated change of placement (a denial of FAPE).  Federal regulations warn schools not to suspend a student with disabilities for the same or similar behaviors for more than 10 days over the course of a single school year, because this begins to look like a change of placement. [5]  If there are more than ten days of suspension during the year, the school district determines whether the suspensions constitute a change of placement, on a case-by-case basis– but parents have the right to appeal to the courts on the grounds that their child is not receiving FAPE.

If a school decides it wants to expel an autistic child, the IEP team must hold a manifestation determination review within 10 days after the decision is made.  If the child’s behavior is found to be a manifestation of autism, then the child cannot be expelled.  If the behavior is not found to be a manifestation of disability, parents have the right to call for a due process hearing, in which the IEP team’s decision will be reviewed by a hearing officer.  Depending on the state, there may be a one- or a two-tiered system—in the former, the case is heard by a state hearing officer, in the latter, the case is heard first by an officer from the school district, and then (if the parents decide to appeal) by a hearing officer from the state.  If the parents are still not satisfied, they can bring a civil law case against the school district.

This is the law as laid out in the amended text of IDEA and in federal regulations.  Disabled students’ rights to a free, appropriate, public education must be protected.  Unfortunately, though, far too many school districts do actually find ways of removing “troublesome” students without considering whether the “troublesome” behaviors are manifestations of the students’ disabilities, and without following the procedures required by law.  I will discuss some of these practices in my next post.

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[1]  IDEA, part B, subpart E, sections 300.530-300.536: https://sites.ed.gov/idea/regs/b/e.

[2]  IDEA, part B, subpart E, section 300.536

[3] IDEA, part B, subpart E, section 300.530.

[4] IDEA, part B, subpart E, section 300.530.

[5] Code of Federal Regulations, 2005.  Title 34:  Education.  Section 300.536, “Change of Placement Because of Disciplinary Removals.”  This regulation was added to the Code in 2005, to clarify the 2004 amendment of IDEA.