Our office receives a lot of questions about students who are placed in private schools. Are children enrolled in private schools entitled to special education supports and services? Generally speaking, students placed in private schools, including parochial schools, are not entitled to receive special education services under the IDEA from their District of residence. However, the IDEA does require school districts to spend a proportionate amount of funds for the provision of special education and related services to privately placed students with disabilities. Additionally, federal law requires school districts where the private school is located to develop a service plan for all students who are eligible to receive special education services.
There has been a lot of news coverage about new California legislation that would impact the way schools are allowed to discipline students. On April 22, 2019, the California State Senate voted to prohibit school districts from suspending students for willful defiance. Senate Bill 419 was approved by a vote of 30-8. Now, the bill will move on to the State Assembly for consideration.
What does this new legislation mean and why is it getting so much press? Currently, California Education Code §48900(k) allows school districts to discipline and suspend students for the following behavior:
(1) Disrupted school activities or otherwise willfully defied the valid authority of supervisors, teachers, administrators, school officials, or other school personnel engaged in the performance of their duties.
(2) Except as provided in Section 48910, a pupil enrolled in kindergarten or any of grades 1 to 3, inclusive, shall not be suspended for any of the acts enumerated in this subdivision, and this subdivision shall not constitute grounds for a pupil enrolled in kindergarten or any of grades 1 to 12, inclusive, to be recommended for expulsion.
Current law does not allow school districts to use this code section to suspend any student who is enrolled in grades K - 3. However, the new legislation would significantly change this law and extend the prohibition to grades 4-8. It would additionally prohibit school districts from suspending students in grades 9-12 until January 1, 2025.
The new law is gaining a lot of media attention. This is because some parents and school district staff believe that if the new legislation is formally passed, school administrators and teachers will no longer have the ability to discipline students in grades 4-12 appropriately. However, there is more to the story and these concerns are a bit more complicated.
There are MANY other instances specifically spelled out within the California Education Code, providing school districts with the ability to suspend and even expel students if specific acts are committed. These include conduct involving: causing, attempting to cause, or threatening to cause physical injury to another person, using force or violence upon another person, possession of weapons, possessing, using, selling, furnishing, or being under the influence of a controlled substance, committing or attempting to commit a robbery or extortion, damaging school property or private property, stealing school or private property, possessing or using tobacco or nicotine products, hazing, sexual harassment, sexual assault, bullying, cyber-bullying, terrorist threats, hate violence and intentionally engaging in harassment, threats, or intimidation, directed against school district personnel or pupils. Thus, school districts have the ability to discipline students for a variety of conduct. It is important to note that California law specifically states, "a superintendent of the school district or principal may use his or her discretion to provide alternatives to suspension or expulsion that are age appropriate and designed to address and correct the pupil's specific misbehavior" (Cal Ed. Code §48900(v)).
Since we are an education law firm, we see A LOT of discipline cases throughout the year. And, historically we've seen section (48900(k)) liberally used to discipline students and applied in vague circumstances. As you can imagine, defining the term willful defiance is quite subjective which has caused a significant amount of concern by parents. For example, we've seen students cited for this code section for wearing a hat, possessing a cell phone or other minor infractions. Additionally, many of our clients have disabilities and the current code section's vague language consisting of "disrupting school activities" and "willful defiance" has been inappropriately applied to these children who may appear to be defiant or willful, when in actuality their actions are a manifestation of their disability. Proponents of the new legislation also point to the disproportionate use of this code section upon minority students in greater numbers. Thus, the new law would help to curb this concern and would keep kids in school.
Of course, school administrators and teachers must have the authority to appropriately discipline children so that all children and school staff are protected. Finding a balance between the understandable concern on both sides of this new law is crucial. What are your thoughts about this new legislation?
Danielle Augustin is a founding partner of Augustin Egelsee LLP, a law firm representing children and families with special education needs. Danielle has been practicing law for 20 years, first as a deputy district attorney in Orange County, California, then as a special education student attorney for the past 15 years. For more information about special education law, go to: www.OcKidsLaw.com or call 714-282-1242.
Over the past several years, more and more students are enrolling in charter schools. This has brought up many complex legal issues that parents are forced to navigate through, especially when their child requires special education supports and services. In a nutshell, charter schools are considered to be their own Local Educational Agency (LEA). An LEA is a common way to refer to a school district. Since charter schools are considered to be their own LEA, they are responsible for providing their students with appropriate supports and services as required under federal and state law. In fact, charter schools cannot deny admission to students on the basis of disability. Charter schools are also required to seek and find children with known or suspected disabilities and to conduct comprehensive assessments upon them so that their unique needs are appropriately addressed, and they are properly identified as a student requiring an Individualized Education Program (IEP).
M. S. v. LOS ANGELES UNIFIED SCHOOL DISTRICT
WHEREAS: This class action was filed, pursuant to FRCP 23(b)(2) in 2010 seeking to establish that the Defendant DEPARTMENT OF EDUCATION, State of Hawai'i ("HIDOE") was violating federal law by failing to provide special education and related services to students who were eligible for special education and related services until the later of (a) the date they earned a regular diploma, or, (b) age 22.
71 IDELR 185
FRY ET VIR, AS NEXT FRIENDS OF MINOR E. F. v. NAPOLEON COMMUNITY SCHOOLS ET AL., United States Supreme Court
Under the 2006 IDEA Part B regulations, 34 CFR 300.8 (c)(4)(i), Emotional Disturbance is specifically defined as "a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance:
Under Title II of the Americans With Disabilities Act (ADA), a Service Animal is defined as, "any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability" (28 CFR 35.104.). However, within Title II, Emotional Support Animals are specifically excluded from the definition of Service Animal as follows: "The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition."