45-day Temporary Placements:
When is a Transfer to an Alternative School Improper?
Children with behavioral and emotional needs often face additional challenges in public schools, including increased disciplinary referrals, detentions, and in and out-of-school suspensions. Under certain limited circumstances, your child, even with an IEP, can be temporarily removed from public school and placed in an interim alternative educational setting (“IAES”) for not more than 45 school days. Under certain circumstances a student can be removed from his or her public school if, while in the school building, on school premises, or at a school function, he or she: 1) carries a weapon to, or is in possession of a weapon; 2) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance; or 3) inflicts serious bodily injury upon another person. However, at times these removals are not necessary or appropriate.
What can parents do when they believe that a 45-day temporary transfer to an IAES is improper? There are several approaches families can take. The parents should immediately meet with the school district to discuss the following, before the removal occurs.
First: Does the child’s action fall into one of the three categories? If the answer is no, then the removal is improper.
The parent should gain as much information about the circumstances surrounding the child’s behavior and the reason for the removal. Parents should bear in mind that the school district can only remove your child to an IAES under the three limited circumstances identified above. If none of these circumstances exist, the transfer is inappropriate. The IDEA specifically defines each of these categories:
a) A weapon is defined as a “dangerous weapon” and must be an item readily capable of causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2½ inches in length. For example, a pencil is not a dangerous weapon.
b) An illegal drug is defined as a controlled substance, unless it is legally possessed by the student or is used under the care and supervision of a health care professional.
c) A “serious bodily injury” means bodily injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
If your child’s actions do not fall under one of the above circumstances, the parent should immediately file a due process complaint seeking that the child be returned to the public school setting.
If your child’s actions indeed fall within one or more of the above circumstances, then child will be transferred to the temporary placement for up to 45 school days – unless the parents and school district agree otherwise.
Second: Parents should make every effort to explore with the IEP team whether other placements exist that both the parents and the school district can agree upon, or perhaps the child can temporarily attend school through a cyber platform, if one is available at your school district.
If this attempt fails and the student is transferred to an IAES that the parent believes is not appropriate, the parent should file a due process complaint immediately seeking that the child be transferred to an appropriate IAES.
Due Process Complaint: The due process complaint should explain why the child’s actions did not amount to the three limited circumstances for removals and why the IAES is not appropriate. It should also include a request that the school district fund independent educational evaluations. These complaints are processed on an expedited basis, where a hearing will be held within 20 school days of the filing of the due process complaint, and the hearing officer will issue a decision within 10 school days of the hearing – totaling 30 school days from the date the due process complaint was filed.
Hearing Officer Decision: The child’s placement will be determined by the hearing officer’s decision. If the child’s actions did not meet one of the three limited circumstances identified above, the school district will be ordered to immediately return the child to their public school. If the child’s behavior met one of the considerations but the IAES is found to be inappropriate, the school district will be ordered to transfer the child to an appropriate IAES for the remainder of the 45 school days.
Fundamentally, it is preferable for parents and school districts to work together as much as possible to appropriately tend to the educational needs of children with disabilities. However, in circumstances where these efforts fail, parents have a legal recourse to protect their child’s rights.