Parents should be aware that Federal and Massachusetts law provides protections for children with special needs related to discipline, specifically related to suspension or other disciplinary actions that result in a student not having access to services.
Parents should also be aware that discipline is an area that is changing in Massachusetts. The Department of Secondary and Elementary Education has been undertaking a Rethinking Discipline Initiative and released new requirements for schools related to suspension on February 22, 2023. We'll try and break down these change to the best of our ability, but we do not claim to be experts. You should know that that it may take some time for the supplemental resources provided to reflect the changes.
Rethinking Discipline Initiative
Disciplinary actions are covered under several different laws, which are complex to break out and supplemented by guidance from the Massachusetts Department of Secondary and Elementary Education. From a very high level the changes under the Rethinking Discipline Initiative apply only to disciplinary actions not tied to serious offences, including possession of a dangerous weapon or a controlled substance, assault or being charged with a felony or felony delinquency (i.e. felony equivalent when under the age of 18).
For all other disciplinary actions the new requirements are essentially that suspension should not be the first choice for discipline. The rules require schools to first attempt alternate methods and document the results. Specifically cited are mediation, conflict resolution, restorative justice, and collaborative problem-solving strategies, but the methods are not limited to these.
There are two exceptions, one somewhat broad and the other fairly narrow. The first exception is when the school believes the alternatives would be counter-productive or are otherwise unsuitable, and the second is when the school believes the student's poses a threat of injury or serious harm. In both cases the school would need to have considered alternatives to suspension and would need to document the reasons why the exception applies.
Separate from these it should be noted that schools have broad emergency powers to remove a student on a temporary basis for up to two days in the case of danger or substantial disruption to the school, which are not impacted by these changes.
Taken together, the new rules make it clear that suspension should be the exception for non-serious offenses and place a higher burden on the school to justify when they choose this route.
Appeals and Rights to Make Academic Progress While Suspended
Parents should be aware that any student suspended for longer than 10 consecutive days or expelled has a right to appeal to the superintendent of the school district. You cannot appeal suspensions of less than 10 days.
Additionally, the law requires that a suspended student has the opportunity to make up any missed work, such as assignments, tests, and other school work. Students suspended for longer than 10 days must also be given access to alternative education outside the school. The school is required to have options available for parents and students to choose from, which might include tutoring, weekend or night school, or online classes.
Federal and Massachusetts law provides protections around physical restraint of a student. While these are somewhat complex in essence the rules
Make illegal the use physical restraint as a form of discipline
Allow physical restraint in an immediate situation where the student is at risk of harming themselves or others
Require that school staff use the minimum of restraint to resolve the situation
Make illegal some kinds of restraints including "mechanical" (e.g. tying a a child to a chair), "medical" (e.g. administering drugs the child doesn't have a prescription for), and in most cases forcing the child to lie on the ground
Require that the school notify parents when a situation requiring restraint occurred
Require that teachers and staff receive yearly training
Seclusion and Time Outs
Similar to restraint Federal and Massachusetts law provides protections around the use of time outs and prohibits "seclusion" (e.g. locking the student alone, for instance as shown in the movie The Breakfast Club).
In essence the rules
Make seclusion illegal. Seclusion as defined under the law would be any time the student is placed in an area where they cannot leave (e.g. the door is locked) and there is no school staff person immediately available (i.e. within sight of the student).
Makes time-outs illegal as a form of punishment or discipline
Allows time-outs to calm the child in situations where their behavior is disruptive
Protections Specific to Special Education
Manifestation Determination Reviews
Up until now everything covered in this section applies to all students, but in addition the law provides protections specific to special education, in particular related to suspension or otherwise excluding a student from education and services.
Essentially before a schools suspends, expels or otherwise excludes a student with special needs for more than ten consecutive days, the special education team (if your child is on an IEP, this will be the IEP team which includes you) is required to conduct what's termed a manifestation determination review (MDR). The only exception is for the following offenses: possession of a dangerous weapon, possession of a controlled substance (drugs), and causing serious bodily injury.
Outside of these it will up to the team to determine whether or not the behavior in question was a manifestation of the the disability. If the behavior is found to be a manifestation of the student's disability then the school cannot proceed with the disciplinary action and must instead address the behavior through special education services.
An MDR can also be triggered if the current exclusion is less than 10 days but is part of a pattern and the total adds up to 10 or more days cumulatively over the school year. For example several shorter suspensions 3 to 4 days each that occur over a period of a few months for the same essential behavior, would likely be considered a pattern.
Manifestation Determination Reviews are covered under special education laws and so follow the same process for dispute resolution. In practice this means that if parents do not agree they have the right to mediation or a hearing with the Bureau of Special Education Appeals (BSEA), providing another potential avenue of appeal in addition to the one available to all students. For more information see Understanding the Dispute Process.
Right to Services while Excluded from the School
All of the protections above apply equally to students on an IEP and on a Section 504 plan. Additionally students on an IEP have additional protections in that they are entitled to appropriate delivery of special education services to make meaningful progress toward their IEP goals and the education curriculum even when excluded from school for more than 10 days.
It should be noted that this doesn't mean the student's service plan needs to be followed exactly as written, but it does mean that the school needs to provide access to sufficient services related to the IEP for the student to make progress even when excluded from school. This might mean, for example, that a student receiving speech and language services would continue to do so even when suspended from the general education classroom. The same would be the case for a student that's expelled.
For More Information
Rethinking Discipline Initiative - Massachusetts Department of Elementary and Secondary Education
Guidance on Updated Expectations for School and District Leaders - Massachusetts Department of Elementary and Secondary Education
603 CMR 46.00 Prevention of Physical Restraint and Requirements If Used - Massachusetts Department of Elementary and Secondary Education
IDEA’s Regulations on Discipline - Center for Parent Information and Resources (CPIR)
Student Discipline Under Section 504 of the Rehabilitation Act of 1973 - US Department of Education
Questions and Answers On Discipline Procedures - US Department of Education
Discipline of Special Education Students Under IDEA 2004 - Massachusetts Department of Higher Education
School Restraint, Time-Out and Seclusion Laws in Massachusetts - Disability Law Center
School Discipline Laws in Massachusetts - Disability Law Center
Quick Reference on School Discipline - Children's Law Center of Massachusetts
Please note that we at Reading SEPAC cannot guarantee the accuracy or completeness of any information presented on any third-party website listed on this site, nor do we endorse any informational content appearing on third-party websites of any of the providers listed. We endeavor only to provide a listing of potentially helpful information available. Its up to you, as a consumer, to do your own diligence and research. Also note that any summarization of the laws, rules, regulations, processes or similar related to special education, or advice proffered is based exclusively on the experience of Reading SEPAC members as parents of children with special needs. Its in no way an official reflection of the position of the FCSA or the Reading School system and we make no claims of expertise in communication, law, education or any other areas. While we have endeavored to provide simple-to-read language for parents, we are not experts, do not claim to be, and make no warranties or claims of accuracy related to the informational content of this website.