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Students Facing Discipline Potentially Could be Protected by Special Education Laws

Under the Individuals with Disabilities Education Act (IDEA), if a student who has not been identified as requiring an Individualized Education Program (IEP) is facing removal from the regular educational setting - i.e., expulsion or an extended suspension - but a parent nevertheless believes the student may have a disability, the parent may request a special education evaluation.  This is a situation that occasionally will arise.

In such a case, if the school knew the student had a disability but was not yet officially providing special education services to that that student, then the student is provided the same protections as any other disabled student as discussed in sections A and B above.  Sometimes this will happen.  On the other hand, if the school did not know or it knew but the parents of the student specifically refused special education services, the student may be disciplined just as any other non-disabled student.  However, in such a case, a parent - even one who previously has refused services - may ask for a special education evaluation, and it must be expedited.  During the evaluation, however, the student may still be under suspension or expulsion.  If the evaluation finds that the student is eligible for special education services, then they must subsequently be provided.  Plus, from that point forward, the student will be protected with an IEP.  None of this, however, will overturn the suspension or expulsion. 

One thing that's very important to emphasize for parents who are considering taking their child off of an IEP is that it means that the student will no longer be protected by the rules in IDEA that cover discipline.  IDEA has due process procedures in place for students facing long suspensions or expulsions. That can make it difficult to expel a student on an IEP.  But when parents have removed that student from an IEP, those protections no longer apply and the student can be disciplined in the same manner as any general education student.  

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Kishinevsky & Raykin, Attorneys  and counselors at Law

2851 South Parker Road, Suite 150
Aurora, CO 80014-2722

Phone: 720-863-4256
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