By John Worthington, Esq.
Coordinator of Special Education Law
Foundation for Educational Administration
One of the most impactful and difficult issues facing school districts is assessing and addressing actions and behaviors of students with disabilities that may constitute a danger to self or others. The laws governing discipline of students with disabilities, as well as those addressing areas such as use of seclusion and restraint, as well as guidance from the state and federal governments, create a confusing web of overlapping requirements that school districts must navigate daily. Adhering to the myriad legal requirements and protecting the safety and rights of all students requires that school districts familiarize themselves with the applicable laws and procedures and adhere to them throughout the process of addressing each situation the district faces.
In the context of dangerousness, there are very specific legal requirements which must be followed for students with disabilities. Conversely, there are no formal requirements for addressing general education students who are considered a danger to themselves or others. While general state guidance, including New Jersey’s School-Based Mental Health Resource Guide issued in February 2022, and updated in June 2022, discusses threat assessment and psychiatric clearance, nothing in law or regulation sets forth legally mandated requirements for conducting such assessments or obtaining psychiatric clearances for general education students. Instead, school districts in New Jersey proceed as determined appropriate by the administration and legal counsel and address issues of dangerousness and psychiatric clearance based on local protocols. To date, this practice with respect to general education students has not been prohibited by the New Jersey Department of Education and is allowed to continue.
Of course, general principles of due process do apply for all students, including the right to know what you are accused of and a chance to give your side of the story prior to a disciplinary decision being made. In addition, even for general education students, if those students are excluded from school for more than 10 school days, the district must offer a hearing before the board of education to the parent of the child. In addition, parents always have the right to challenge disciplinary decisions, and may appeal beyond the school board to the Commissioner of Education. Finally, if a parent believes any disciplinary action is the result of discrimination based on a protected class under state or federal law, that parent may pursue a claim in state or federal court.
While there is a lack of clarity in terms of legal requirements in the general education context for addressing students who are a danger to self or others, the IDEA and Section 504 have specific legal requirements to which school districts must adhere for students with disabilities. These requirements, as well as state-specific requirements in areas such as seclusion and restraint of students with disabilities, and applicable state and federal guidance, set forth the parameters that school districts must follow when addressing dangerousness and students with disabilities. This includes students with disabilities under Section 504, as made clear by USDE guidance issued in July of 2022.
Generally, students with disabilities, both under the individuals with disabilities education act (IDEA), and Section 504 of the Rehabilitation Act of 1973, are entitled to certain protections in the discipline context. Those protections do not include immunity from discipline. They do, however, include specific rules for imposing discipline and where and how to educate students who are disciplined. Generally, students with disabilities may be removed (suspended) for up to ten days before the protections in federals law mandate that specific procedures be followed, including change in placement meetings and manifestation determinations. These procedures are in addition to all protections afforded general education students, which include all students with disabilities.
By law, school districts are permitted to remove students with disabilities for up to 45 calendar days (in New Jersey, school days in other states), if the possess drugs or weapons, or if they inflict a serious bodily injury on another person. This authority is exercised by school district administrators and is not subject to prior approval by the NJDOE or courts, although such determinations can be challenged by parents in an expedited special education due process hearing and thought a state complaint. If, however, a school district seeks to remove a student because they believe the student is a danger to self or others, applicable laws require that it proceed as follows.
Initially, a district can impose a short-term suspension on the student if determined necessary to protect the student or others. The notice of suspension must document the basis for the removal, as well as the duration. The district should also consider if other actions are appropriate, such as a referral to law enforcement in accordance with its memorandum of agreement with local law enforcement, referrals for services from State entities that can assist children in crisis, and DCP&P referrals if appropriate in the circumstances. After ensuring the immediate safety of the student or others, the district must then work with its attorney and file for an expedited due process hearing request and request for temporary emergent relief with the NJDOE’s Office of Special Education. The case will then be referred to the Office of Administrative Law for and emergent relief hearing, in which the district must convince the administrative law judge that the student must be remove for up to 45 calendar days because of dangerousness. Districts are cautioned however that, if appropriate proofs are not provided to the court, the order will not be granted and the student will remain in school after the initial suspension. If evidence of dangerousness sufficient to meet the applicable probable cause standard (more likely than not) is presented by the school district, the ALJ can order a removal for up to 45 days. The court can also order other appropriate relief such as proceedings, such as a psychiatric evaluation and clearance, if determined appropriate. Working closely with your board attorney and documenting all district actions and the basis for each is essential for obtaining an order removing a student considered a danger to self or others.
One important exception to this requirement is if the parent consents to the removal, placement in an interim alternative educational setting, and psychiatric clearance. Such consent must be documented, including written notice clearly setting forth exactly what the parent is agreeing to allow the district to do, in detail, as well as the parent’s rights to protect the district if a dispute ensues through litigation or the complaint investigation process. Thus, establishing a good working relationship with parents of students exhibiting behavioral issues can benefit districts if the need for a psychiatric clearance or removal of a student with disabilities arises.
Other issues to consider when addressing students who are considered a danger include information sharing, the use of seclusion or restraint on a student with a disability, creation and implementation of behavior plans for students with disabilities, and pending legislation that, if enacted, will guide how psychiatric clearances may be obtained by school districts. First, school districts should be cognizant of, and ensure, student privacy throughout the process of seeking psychiatric clearance and removal of a student. While such information must be kept confidential, those with an educational interest in seeing such information may do so. Thus, if a staff member is a part of the threat assessment process and discipline process for a student or will implement or oversee part of a behavior plan, remedial actions or order of a judge, the staff member may access information necessary to do so. Thus, while privacy requirements do not allow for sharing information compiled during this process with any or all staff members, the applicable State and federal laws do permit necessary record sharing to allow all staff to perform their required duties.
Likewise, districts must be aware that, when addressing behaviors, there are specific requirements for restraining or secluding a student with disabilities in New Jersey. These requirements include that restraint and seclusion may only be utilized in an emergency, that only trained staff may restrain or seclude a student with a disability, and that notice be provided to the parent whenever a student is secluded or restrained. Adherence to these requirements is essential to avoid legal liability for school districts when addressing severe behaviors of students with disabilities.
As for the creation and revision of behavior plans, districts must remember that state and federal laws contain specific requirements for when they must be developed, including conducting of functional behavioral assessments. Districts must be familiar and comply with all these requirements. While an FBA/BIP does not automatically come to mind in the context of a removal for dangerousness, and students who are ordered removed by an ALJ remain out for the duration of the term of the removal, manifestation determinations and, as appropriate, FBAs and BIPs still must be conducted. The difference being that, even if behavior is a manifestation of a student’s disability, the student will remain out for possessing drugs or weapons, and if they inflict serious bodily injury or are determined a danger by an ALJ. Regardless, the determinations must be made in order to provide important data for addressing the behaviors going forward.
Finally, note that there is currently pending legislation that, if enacted, will govern removals of all students, including students with disabilities, for psychiatric clearance. This legislation would provide specific requirements and result in all districts having the same policies with respect to these clearances. Districts should monitor this legislation and, if enacted, implement and follow the mandated policies. Note that the legislation, as currently drafted, specifically requires that all procedures in IDEA and Section 504 discussed above, be followed by districts.