Education Law Notes  

“And thirdly, the code is more what you'd call "guidelines" than actual rules …” Captain Barbosa in Pirates of the Caribbean: The Curse of the Black Pearl

On September 5, 2017, the State Board of Education’s Legislative and Policy Development Committee presented a “final draft” of “Guidelines for Alternative Learning Environments.” The Guidelines, however, as my colleague Mark Sommaruga recently posted, go well beyond the mandates of the Legislature and attempt to regulate the entire expulsion process from start to finish, including what must be done prior to an administrator recommending expulsion to how a student must be transitioned back to his regular school.  Although they are only draft “guidelines” the burden these would place on boards of education (if adopted) are substantial.

So, what is contained in the proposed guidelines?

Prior To Recommending An Expulsion Hearing The Following Will Be Required:

1. Consideration for discipline other than expulsion should be explored using a checklist or decision guide based on a district policy and state statute concerning student discipline;
2. A review of the student’s records, including academic, attendance, health, behavior, and student success plan, to ensure that the disciplinary decision is fully informed by the student’s history;
3. If it is determined that there is a history of behavioral concerns, the record should be reviewed for a functional behavior assessment (FBA) and the consequent behavioral intervention plan (BIP) prior to a recommendation for expulsion. If found, the efficacy of the FBA and BIP should be addressed and if there is no evidence of a FBA/BIP, consider conducting an FBA and implementing a BIP prior to a recommendation for expulsion; FBAs and BIPs have previously been required solely for students requiring special education;
4. Assurance that special education “Child Find” requirements have been met, particularly in the case of those students who have presented a history of behavioral concerns;
5. If the student has been identified as in need of special education, the planning and placement team (PPT) must first convene to make a manifestation determination. For students with disabilities with a Section 504 plan, a manifestation review must be conducted by the Section 504 team prior to recommending expulsion. The draft guidelines state that for any other student with a disability, the school district should consult with its legal counsel prior to any expulsion decision;
6. If pre-special education tier 1, 2, and 3 “scientific research based interventions” were used, the documentation and efficacy of the interventions should be reviewed, and if tiered interventions were not used, the district should thoroughly consider the interventions that should be implemented before recommendation expulsion (except in cases where expulsion is mandatory);
7. The guidelines also note that in cases of mandatory expulsion, the administrator should carefully assess the strength of the evidence concerning the student’s conduct and intentions before reaching a conclusion that the student’s behavior requires an expulsion hearing under the law.

After A Decision To Expel Has Been Made Following A Hearing

1. Meet with the parent/guardian prior to placement to provide information concerning the potentially appropriate alternative educational opportunities for the student, ensuring that the families understand their rights, options and responsibilities;
2. Form a student support team including the student, the parent/guardian, appropriate representatives of the alternative educational environment, at least one of the student’s academic teachers; school administrator from the sending school, special educator or administrator (if applicable), PPT/Section 504 Team representative (if applicable) and/or support service personnel;
3. After the student support team has been formed, a placement meeting must be held and key members of the team, including the student and parent/guardian, should attend if available. The meeting must be held as soon as possible after the expulsion decision but not less than ten (10) days after the expulsion decision is made;
4. The meeting should be run by the school administrator who must solicit input (including written reports) prior to the meeting from any members of the student support team who cannot attend;
5. All alternative education opportunities must be explored at the meeting;
6. At the meeting the parent and student must be informed of the right to apply for early readmission and the criteria for early readmission and this information must be recorded on the student’s individualized learning plan.

Individualized Learning Plans (“ILP”)

The guidelines about ILPs, which seem to be modeled on the federal requirements for an individual education program (IEP) offered to special education students, require that the ILP be developed by the student support team for each expelled student and must:

1. Include summaries of the student’s current school performance, drawing upon any student success plan, IEP, Section 504 Plan, Individualized Health Plan, and/or academic and behavioral data;
2. Identify specific goals for both academic and behavioral achievement and describe the student’s personalized educational goals, progress measures, and transition planning back to the school from which the student was expelled;
3. Include benchmarks to measure progress towards the goals and ultimately, progress toward graduation;
4. Set out the timing and method for reviewing the student’s progress and for communicating that progress to the parent/guardian or student;
5. Document academic performance for progress monitoring and the transfer of the student’s records; and
6. Contain early readmission criteria for the school from which the student was expelled and any support services, including academic supports, needed to assist and facilitate the return to the regular education environment; and incorporating recommendation that are (i) commensurate with the conduct resulting in the expulsion; (ii) consistent with the student’s future educational plans; and (iii) aligned to the goals of the student’s IEP or Section 504 Plan, where applicable.

Review Of The Student Placement

At least once per marking period during the expulsion the student’s support team must review the appropriateness of the placement including:

1. A review of the student’s ILP to assess progress and make adjustments if necessary;
2. A review of opportunities for early readmission; and
3. A review of the student’s ILP and alignment to the goals of his/her IEP, where applicable.

Transition Planning

The draft guidelines note that in most cases the students “should be able to be readmitted to the school from which the students were expelled, as soon as possible.” In transition planning, the guidance requires that the following be considered:

1. Efforts to connect returning students with opportunities to participate in sports and other extracurricular activities;
2. The student’s need for academic and other supports;
3. Confirmation of the plan to transfer the student’s credits and records.

Early Readmission

The guidelines also would require that if a student has met the goals of the ILP prior to the end of the expulsion, an early return to the regular school environment should be facilitated.

Summary

The draft guidelines are far reaching and go significantly beyond what the Legislature seems to have anticipated. They would give students who have been expelled greater rights to education than regular education students and students who cannot attend school for an extended period of time due to a medical condition.