FAQ - Frequently Asked Question
Disciplining Students with Disabilities
1) Q. Is disciplining a student with disabilities different from a non-disabled student?
A. Yes. Students with disabilities have more protections when facing discipline at school. The purpose of those protections is to make sure a student is not missing many days of the services they need. The protections, also, make sure students with disabilities are not being disciplined due to behaviors occur as a result their disability.
2) Q. If a student is separated from class for ten days or less due to misconduct but remains in school and is receiving instruction from a licensed teacher within a separate program, is it considered a suspension?
A. Yes. The definition of in-school suspension (ISS) is “removal of a student from regular classroom activities but not from the school premises, for no more than ten consecutive school days, or no more than ten school days cumulatively for multiple infractions during the school year”.
3) Q. What is the difference between in-school suspension (ISS) and short-term suspension (STS) in terms of the procedural requirements?
A. The notice and hearing requirements differ, depending on whether the suspension is in-school or out-of-school. For an in-school suspension of ten days or less, the principal is not required to give prior notice to the student's parent (although prior notice is strongly recommended) and is not required to invite the parent to participate in the hearing. An ISS for ten days or less, consecutively or cumulatively, is not considered a short-term suspension.
Short-term suspension (STS) means removal of a student from the school premises and regular classroom activities for ten days or less, cumulatively or consecutively. Parents should be notified and participate in the hearing.
4) Q. Does a student have a right to appeal an ISS or STS to the superintendent under Department regulations?
A. No. The regulations do not require schools to provide students or parents the right to appeal the principal's decision to impose either an ISS or STS to the superintendent.
5) Q. A student has been placed in ISS for a total of ten days since the beginning of the school year. If the student commits another offense and the principal wants to place the student in ISS for two more days, does the principal have to give the student and parent prior oral and written notice of the charges and the opportunity for a hearing?
A. Yes. Oral and written notice to the student and the parent is required before placing the student in ISS for more than ten days.
6) Q. A student has served ten days of STS. If the student commits an offense for which a two-day ISS is possible, does the principal have to follow the procedures for a long-term suspension?
A. Yes. Since the result could be that the student is suspended for more than ten cumulative days, the procedures required for long-term suspension (described above) apply.
7) Q. If a teacher sends a student to the assistant principal's office due to behavior issues and the student returns to class following a discussion with the assistant principal, does the loss of class time count as an ISS?
A. For purposes of ISS, the time does not count if it is less than half of the time the school is in session, provided the student is not removed from class in this manner on a recurring basis.
8) Q. Can a principal send a student home from school for misconduct without complying with 603 CMR 53.00 if the student would miss less than half of the school day?
A. No. An involuntarily removal from school is a suspension and must be counted as such. It is not permissible for a principal to remove a student from school involuntarily for misconduct at any point in the school day without complying with 603 CMR 53.00.
9) Q. In our school, it has been long-standing policy and practice for the assistant principal to conduct the initial disciplinary hearing with the student and to permit the student to appeal an adverse decision to the principal. Is this practice legal under §37H ¾?
A. The school is providing an additional level of review, which is not required by statute or regulations but is permissible. The school still must follow the applicable notice and hearing requirements and appeal procedures (see discussion in the following question and answer).
10) Q. A student has committed a §37H ¾ offense which may result in STS. What procedures must the principal follow with respect to providing notice and an opportunity for a hearing?
A. With two exceptions, before removal for a 37H ¾ offense may occur, the principal must make reasonable efforts to orally notify the student's parent and must provide to the parent and student written notice of: the charge, the basis of the charge, hearing rights, and the parent's opportunity to participate in the hearing. The notice for the student and parent must comply with §53.06(2).
11) Q. What obligation does the principal have with respect to scheduling a hearing on the day or time a parent requests?
A. In order to provide the parent an opportunity to participate in the hearing, the principal must be willing to consider a reasonable request for a short extension or a different time on the date the principal has proposed.
12) Q. How should the school conduct suspension hearings for students 18 or older?
A. Students 18 years of age or older are considered adults and entitled to participate in decision-making in all aspects of the discipline process, unless the student has been determined by a court to be legally incompetent. The students’ parents continue to have the right to receive notice and the opportunity to participate in the disciplinary hearing.
13) Q. Can a principal immediately remove a student who has committed a 37H ¾ offense if the principal believes it would be dangerous or disruptive for the student to continue in school or class?
A. Nothing prevents a principal from removing a student from school temporarily when a student is charged with a disciplinary offense and the continued presence of the student poses a danger to persons or property or materially and substantially disrupts the order of the school, and, in the principal's judgment, there is no alternative available to alleviate the danger or disruption.
14) Q. Does the time between the emergency removal and hearing on the misconduct count as days of suspension?
A. Yes. The days a student is removed from school on an emergency basis count as suspension days.
15) Q. If a nurse or school administrator calls a mental health crisis unit or ambulance on behalf of a student who experiences an emotional/mental health crisis (and the school does not consider the behavior to be misconduct), does the "removal" count as a suspension?
A. If the removal is to secure medical or clinical treatment and is not a disciplinary response, the student's absence from school is not considered a suspension or a removal for disciplinary purposes requiring due process.
16) Q. Are schools required non-core academic subjects among the education services provided under the education service plan for students expelled or on long-term suspension?
A. A student who has been expelled or suspended for more than ten consecutive days must be provided an opportunity to receive education services identified in a school-wide education service plan. The education services must allow the student "the opportunity… to make academic progress toward meeting state and local requirements." If non-core academic subjects are included in local requirements, they must be included in the education service plan so the student has the opportunity to make academic progress.
17) Q. What does a district do if the student refuses to accept the education services offered under the education service plan during the suspension or expulsion?
A. The school should meet with the student and parent to encourage the student to continue their education by accepting the services. Ultimately, if the student fails or refuses to engage, the school should document its efforts.
18) Q. If a student is placed in ISS, does the school have to provide a tutor?
A. Students who are suspended short-term, whether in or out-of-school, must be provided an opportunity to make academic progress during their suspension. As a rule, a school will fulfill its responsibility if school personnel provide make-up assignments, tests, papers, homework and other schoolwork to a student who is suspended short-term. If the ISS is more than ten consecutive days, the school would be required to provide education service options, such as tutoring and instructional materials. The interest of the student and school are served by keeping the student engaged in learning.
19) Q. Must the school provide transportation services to a suspended or expelled student if the student would not otherwise be able to access the opportunity to make academic progress?
A. For those students who receive services under the school-wide education service plan, the school must provide transportation services if the student received transportation services before the suspension or expulsion, and the student would be unable to access the selected education service(s) without transportation.
20) Q. Must a school provide a student with disabilities the opportunity to make academic progress while the student is suspended or expelled?
A. Yes. A student with disabilities has all the rights that a typical student has under state law and regulations, in addition to the procedural and other rights afforded to students with disabilities under the federal Individuals with Disabilities Education Act (IDEA).
21) Q. Vocational technical education schools and programs provide academic and vocational education. Are these schools required to provide services so students can make progress in their vocational training as well as academic courses?
A. No. G.L. c. 76, §21 requires only that schools provide an opportunity to make academic progress during suspension or expulsion. It does not address providing services so a student can continue progress in a vocational program.
22) Q. In some districts, a student who accumulates a certain number of unexcused absences a semester receives reduced course credit. Out-of-school suspensions are considered unexcused absences. A suspended student can make up work/tests but may still lose partial credit in the course. Does this policy violate the student's "opportunity to earn credits, as applicable" and "make academic progress during the period of his or her removal" under 603 CMR 53.13?
A. The policy would violate 603 CMR 53.13 if it would prohibit a suspended student who did the required work and earned a passing grade from getting full credit.
23) Q. My district expelled a student in May 2014. Do we have an obligation to provide education services?
A. No. G.L. c. 76, §21, which requires public schools to provide students who are expelled or suspended an opportunity to make academic progress during the suspension or expulsion.
24) Q. If the student is suspended again in the same school year for a §37H ¾ violation, do the ten days’ count toward the 90-day limit on suspensions in a school year under §37H ¾ or for purposes of determining whether a long-term suspension hearing must be held under §37H ¾?
A. No. The number of days a student is suspended under §37H or §37H ½ does not count toward the 90-day limit on suspensions in a school year. Section 37H ¾ (a) addresses only offenses not addressed in §37H or §37H ½. The 90-day time limit under sub-section (f) applies only to days of school lost due to a 37H ¾ offense.