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Ask the Attorney with John Brower, J.D.

Question: My son is 6 years old and in the 1st grade and attends a public charter school. I am having a battle with his school. He was diagnosed with ADHD and ODD. He has been suspended 7 times this school year. Almost every day from November thru the end of December, he has spent at least 1 hour in in-school detention. I have been called several times to pick my son up from school. The school policy is if he misbehaves, he is suspended from school, or I have to pick him up from school. I have asked for 504 accommodations and I get the same answer if he misbehave then there are consequences and he will be sent home. Is there anything that I can do legally about this situation?

Answer:  First as “public” charter schools, in the eyes of the law, are treated the same as other public schools. Next, remember - If it is not in writing – It did not happen. Simply, you need to document what is happening. Write a letter to the school with a copy to the Special Education Director of the school district you live in, with a second copy to the Compliance Officer at your local ISD. In the letter, describe how the ADHD and ODD is causing behavior problems that result in your child losing educational opportunity. Next, document the number of times since the start of school this year your child has been suspended or you have been called to pick him up. Finally, tell them you are making a “self-referral” for an immediate evaluation for eligibility under IDEA for all suspected disabilities (if a child is found not eligible for IDEA, and decision on §504 eligibility should automatically follow). Follow-up the letter by going to the charter school or to the special ed office of your residence school district and locate and sign the form that they will have that formalizes the evaluation referral and gives the school “permission to evaluate”. Getting this form may be a problem, but keep pushing as it starts the 30 school day clock running. Do not agree to any extensions, and if an IEP Team meeting has not been held to formally decide eligibility within 30 schools days, file a complaint with the ISD.

In terms of suspensions and expulsions, IF a student has been found (or should have been found) eligible for special education services under IDEA or eligible for accommodations and/or program modifications under Section 504, it is my opinion that schools can suspend a student for up to 10-days per school year without any real consequences. By the 11th day, they need to call the IEP Team or 504 Team together to at least conduct a Functional Behavior Assessment and from that, create a Behavior Intervention Plan. They also need to formally consider changing the student’s program by adding more supports (1:1 aide, re-more social work time, etc.). The interesting legal question arises if there is a pattern of 1-2 days suspension that total 10 days or if the suspension is not for a whole day. Both the case law (IDEA) and the Office for Civil Rights (OCR) who enforces §504, focus on lost educational opportunities. Therefore, they have found that if the total of days is more than 10 AND it results from the same type of behaviors, then it is considered a pattern and treated like one 10-day suspension. In addition, being suspended from the PM classes on 10 different days or in a study room with no educational services also count as a 10-day cumulative suspension from that class as ‘educational opportunity” is being lost.

In advance I will warn you that it has been my experience that some public charter schools take the position that all the civil rights laws that apply to the regular public schools do not apply to them. Your ISD Compliance Officer and/or OCR should be able to quickly set them straight. OCR (details on how to reach OCR are on the web site.) While there are some technical exceptions, enforcing your rights to insure your disabled child is educated will not well until after your child is formally (e.g. in writing) found eligible under IDEA or 504.

John Brower, JD
Education Law Center, PLLC
Education Law Center, PLLC · 810-227-9850 · 

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