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LEGAL UPDATES FOR ADMINISTRATORS��Oregon City School DistrictAugust 8, 2025

Lisa Woloszynek

lwoloszynek@westonhurd.com

216.687.3382

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Nuts and Bolts of Conducting Investigations

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Investigations

  • The same techniques are applicable to all investigations regardless of:
    • Whether the individual bringing the complaint is a student or staff member;
    • Whether the individual being investigated is a student or staff member;
    • Whether the alleged misconduct is harassment, discrimination, bullying or some other form of misconduct.

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What Must be Investigated

  • General
    • Employee misconduct (of any variety)
    • Student misconduct (of any variety)
  • Specific legal obligations
    • Harassment allegations (based on sex, disability, race, national origin, etc.)
    • Discrimination allegations (based on sex, disability, race, national origin, etc.)
    • Bullying allegations
    • Alleged violations of ODEW Licensure Code

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Purpose of Investigation

  • Provide due process for alleged perpetrator
    • Basic fairness
    • Notice of charges
    • Explanation of evidence
    • Opportunity to respond
  • Provide avenue for relief for alleged victim
    • Avoid deliberate indifference and potential future liability
  • Required by state statues, regulations and Board policy

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Purpose of Investigation

  • If misconduct has occurred, provide a solid foundation for action against perpetrator
    • Employee discipline
    • Student discipline
  • If misconduct has not occurred, provide a solid basis for not taking action against the alleged perpetrator
    • Important for both the alleged perpetrator and the district should additional complaints arise

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Goals of the Investigation

  • Determine whether alleged undesirable conduct took place
  • Determine what occurred, and how
  • Identify the person(s) responsible for the undesirable conduct
  • Support the imposition of consequences (discipline), when appropriate, for undesirable conduct
  • Change that conduct and protect victims from future undesirable conduct (if applicable)
  • Create a clear “paper trail” that outlines all steps taken that can be used in the event of future issues

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Who Should Investigate?

  • What do your policies say?
  • What is your typical practice?
  • Is there a conflict of interest?
  • Can the investigator
    • Keep accurate records?
    • Conduct a thorough witness interview?
    • Maintain confidentiality?
    • Complete an accurate and thorough report?

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The Initial Complaint or Allegation of Misconduct

  • Could be oral or written
  • Could come from student, employee, parent, community member, the press, the police, or anonymously
  • Begin the investigation immediately
    • Do not wait until the next day to take statements or conduct interviews if it is feasible to start the investigation the day of the event

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Early Investigation Stages

  • Consider whether early indications give rise to reasonable suspicion that a crime has occurred, or child abuse or neglect, that warrant reporting to police or children services
    • May need to revisit the decision later depending on what is uncovered during investigation
    • Reporting to an agency does not alleviate the district’s obligation to conduct its own investigation
  • Remember--Legal obligation to maintain evidence– good or bad– when litigation may reasonably result.

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Early Investigation Stages

  • Review applicable policies related to allegations
    • Student Code of Conduct
    • Board policies (bullying, harassment, discrimination, etc.)
    • May be specific investigatory steps in certain cases (i.e., bullying , harassment or discrimination complaints)
  • Seek guidance prior to acting if you have questions regarding how to proceed
  • Open an investigation file to maintain all witness statements, notes, etc.
    • Remember that all documents could be subject to later disclosure

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Make Decision Regarding Danger or Potential Harm

  • Separate alleged victim from alleged violator?
  • Immediate removal from school setting?
    • Administrative leave?
    • Emergency removal?
    • SRO involvement?
  • Short-term measures while investigation is completed?

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Assess Available Information

  • What sources of information are available to you?
    • Adult witnesses
    • Student witnesses
    • Videos (school cameras and student videos)
    • Outside evidence (e.g., social media)
  • Make sure you obtain and consider information from all sources – even for “open and shut” cases.

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Planning the Interview

  • Script or no script – that is the question
    • If you go without a script, at least, outline the major themes and general facts that need to be addressed
    • If you do use a script, do not allow commitment to a script to prevent you from asking appropriate follow up questions and responding to the conversation

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Questioning Interviewee

  • Ensure your questions are answered
    • Don’t allow evasions
    • Don’t be afraid to ask the question again (or ask it in a different way) if you did not get an answer
  • Also…
    • Follow non-verbal cues
    • Watch for body language
    • Monitor eye contact
  • Document any behaviors that impact credibility

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Handling Interviews

  • Interview the complaining party first
  • Interview witnesses
    • Interviews should be conducted separately whenever possible
  • Interview the accused party last
  • Goal of interview – to get the person being interviewed to share information with you

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Handling Interviews

  • Obtain written statements from witnesses
  • Interview promptly while events are still fresh
    • Try to conduct interviews within one day, if possible
  • Be discrete about where and how interviews will be conducted to avoid rumors, speculation, embarrassment
  • Interview with two individuals present, if possible
    • Especially important when dealing with bullying, harassment, etc.
  • Keep interviews confidential and ask witness to do the same

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Handling Interviews

  • Explain to the witness what you are investigating, and that you will be taking notes.
    • If possible, have a note-taker.
  • Start a discussion – not an interrogation
  • Allow interviewee to speak freely
    • Don’t interrupt
    • Don’t tell them information being shared is irrelevant
    • Allow them to volunteer information
    • Listen for contradictions or information to follow up on later

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Handling Interviews

  • Ask open-ended questions first, then narrower follow up questions
    • Describe what happened?
    • What was the context? Who was there? Where were they? What were they doing? Why were they there?
    • When did the incident occur?
    • What did you hear? What did you see?
    • What did you do at the time?

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Handling Interviews

  • Find out who else the interviewee has spoken to about the incident
  • Find out if anyone else has provided information to the interviewee (What was said? Who said it?)
  • Take good notes (include date and time of interview)
  • End with “anything else you want to tell me?”

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Analyze Your Evidence:

  • Is there support for the allegations?
  • Is there a pattern of past conduct to support allegation?
  • Follow up with witnesses if necessary
  • Make considered judgments about witness credibility
  • Depending on circumstances, review the evidence with your attorney

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Analyze Your Evidence:

  • View evidence from independent observer’s perspective
    • How would an arbitrator, judge, jury or agency investigator view it?
    • Use the “reasonable person” standard
    • Use direct evidence v. “hearsay” evidence
    • Make credibility determinations when stories do not match up
    • Tie together documents, videos, etc. to information gleaned from witnesses to show what it all means

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Investigation Findings

  • Findings are not opinions – need to be supported by evidence gathered
  • Document facts learned in investigation
  • Know your audience
    • Remember, many investigations are public record
  • Prepare for challenges
  • Support findings with physical evidence (if available)

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Making the Report

  • In situations involving bullying, harassment and discrimination a written report is required
  • Written report should include:
    • Description of allegations
    • Response of accused
    • Facts found, summary of witness statements
  • Investigator’s findings and conclusions
  • Steps that will be taken to rectify situation (if applicable)

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Concluding the Investigation

  • Meet with complainant and accused (separately) to notify of findings
    • Could also be via phone in the case of a parent
  • Provide a copy of the report to both the complainant and accused
  • FERPA allows complainant to know of consequences for accused in some circumstances
    • Measures intended to keep complainant safe

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Imposing Discipline

  • If discipline is warranted following investigation, follow all applicable procedures and timelines
  • For employees:
    • Be mindful of CBA obligations, timelines, right to representation and due process requirements
  • For students:
    • Be mindful of due process requirements

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Basic Disciplinary Process - Employees

  • Incident comes to our attention
  • Investigatory interview(s)
  • Administrator/HR recommendation
  • Pre-disciplinary hearing
  • Superintendent’s determination
  • Board action

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Other Considerations

  • If the victim of bullying/harassment was a student on an IEP, the district must:
    • Convene the student’s IEP team to discuss the bullying and determine whether any changes to the student’s plan are necessary as a result of the bullying
    • Determine whether a safety plan or other measures are required
    • Document team decisions in prior written notice

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Investigator Dos

  • Be open and receptive to the complaint.
  • Take the complaint seriously even if it sounds far-fetched or frivolous.
  • Reserve judgment on whether you believe the complainant.
  • Follow Board procedures for gathering evidence and conducting interviews.
  • Respond promptly. Do not wait to undertake an investigation.
  • Take steps to prevent threats or acts of violence even if the investigation is pending.

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Investigator Don’ts

  • Make light of a complaint.
  • Show bias when conducting witness interviews.
  • Promise that all information will be kept confidential. It is appropriate to state that information will be kept as confidential as possible given the obligation to respond to the complaint.
  • Discuss the investigation with individuals who do not have a “need to know”.

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Tips for Investigation Interviews

  • Interviews should be conducted promptly, ideally the day a complaint is made or the next day.
  • Ask open-ended questions so the interview is more like a discussion. Ask more direct follow-up questions if necessary.
  • Get precise details – not vague statements
    • Mrs. Jones is mean to me because of my disability vs. Mrs. Jones told me she is tired of scribing for me and won’t do it anymore

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Tips for Investigation Interviews

  • Set the tone for the interview by indicating the purpose and providing expectations and consequences at the outset.
  • Ask questions in a calm, concise manner.
  • Be prepared to re-ask questions to get the information you need.
    • Don’t allow the individual to answer a different question than the one you asked.
  • Repeat responses if necessary for clarification or to ensure understanding.

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Tips for Investigation Interviews

  • If possible, have two independent people present during interviews. One person will serve as a check upon the other to ensure a fair and balanced report.

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Documentation is Critical

  • Goal for investigation documentation is to be:
    • Accurate
    • Clear
    • Complete
  • If an action is not documented, it never happened!
  • Good documentation is the best defense when challenged in appeal hearing, arbitration, litigation or via an agency complaint

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Elements of Good Documentation

  • Written and dated
  • Contemporaneous with action
    • Document while things are “fresh” in your mind
    • Do not worry about creating a perfect document
  • Objective
    • Does not include speculation
    • Does not focus on personalities
    • Does not include editorial content, inappropriate remarks

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Elements of Good Documentation

  • Avoid conclusory statements
    • Consider the following:
      • Teacher Smith seemed hostile toward constructive criticism

or

      • Teacher Smith raised her voice and yelled at Principal Jones during the conference when Principal Jones made suggestions regarding Teacher Smith’s handling of a situation with a student.

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Elements of Good Documentation

  • Be factual and specific
    • Consider the following:
      • “Mr. Jones made an inappropriate remark.’

vs.

      • “Mr. Jones told Ms. Chavez that an illegal alien like her has no business teaching English.”

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Elements of Good Documentation

  • Consistent
    • Use the proper forms
    • Treat similarly situated individuals and offenses in the same manner
    • Document legitimate business reason for difference

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Elements of Good Documentation

  • Four “C”s of Solid Documentation
    • Contemporaneous
    • Constructive
    • Candid
    • Correct
  • Effect of Proper Documentation
    • Deters litigation, grievances, agency complaints, arbitration, etc.

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Student Discipline

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Suspension Overview

  • Ten days or less
  • Can be in-school or out-of-school
  • Cannot carry over to next school year
  • Out of school suspensions requires notice of intent to suspend and opportunity for informal hearing.
  • Student must be allowed to complete missed assignments for all suspensions (HB 318)
  • Student must serve in-school suspension in “supervised learning environment” (HB 318)
  • OSS for non-serious offenses for PK-grade 3 are not permitted (HB 318)

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Expulsion Overview

  • 80 days or less
  • Some violations eligible for up to 1 year expulsion:
    • Bringing firearm to school or a school event
    • Bringing knife capable of causing serious bodily injury
  • Requires notice of intent to expel and opportunity to appear before Superintendent/designee to tell his or her side of story
  • Impermissible to expel students in PK-grade 3 for non-serious offenses (HB 318)

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Suspension/Expulsion (PK-3)

  • Students in grades PK-3 can only be issued an out of school suspension or expulsion if they engage in the following conduct:
    • Having a firearm on school property or at a school event
    • Having a knife capable of causing serious bodily harm on school property or at a school event
    • Committing an act that is a criminal offense if committed by an adult that results in serious physical harm to persons or serious physical harm to property
    • Making a bomb threat to any school building or any premises where a school activity is occurring at the time of the threat

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Students’ Rights: Substantive Due Process

Students are entitled to substantive and procedural due process in discipline situations

Substantive:

  • Education becomes a fundamental property right when state statutes offer education to everyone and attendance is mandatory.
  • 14th Amendment bars arbitrary deprivation of fundamental rights.

Procedural:

  • Students are entitled to fair procedures before the school deprives them of the fundamental right of education created by the state.
  • The higher the degree of discipline imposed (i.e. exclusion from chess team v. expulsion) the greater the level of procedural protection.

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Legal Standard for Discipline

  • Discipline cannot be illegal, unconstitutional, arbitrary, capricious or unreasonable.
  • Discipline must be supported by a preponderance of substantial, reliable, and probative evidence. More likely than not standard.
  • This evidence must be based on the record.

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Student Due Process Rights

  • Prior to discipline that results in a removal from school, students must be afforded both substantive and procedural due process.
    • Students are entitled to fair procedures before the school deprives them of the fundamental right of education created by the state.
    • The higher the degree of discipline imposed (i.e. exclusion from chess team v. expulsion) the greater the level of procedural protection.
  • Even a minor misstep in providing a student with due process can result in discipline being overturned.
    • Administrators should take care to make sure students receive all of the due process rights to which they are entitled.
    • This can include: informal hearing, written decision, notice of right to appeal, formal appeal, etc.

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More Student Due Process Rights

  • Students can only be disciplined for conduct that is prohibited by Board policy (student code of conduct).
    • This puts the student on notice that certain conduct is prohibited.
    • Students cannot be disciplined if they were not on notice that the conduct was prohibited.
  • Students should acknowledge receipt of student code of conduct in some manner
  • Make sure student code of conduct matches Board policy (e.g., includes the same offenses, definitions, etc.).

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More Student Due Process Rights

  • When listing a student’s offenses, administrators should carefully consider what is listed and how the student’s conduct fits the definition. There is a tendency to:
    • List every possible section of the code of conduct that could have been violated, regardless of whether the conduct in question truly fits the definition; or
    • List only one section of the code of conduct when another might have been applicable.
  • Both of these options lead to problematic outcomes.

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Procedural Steps for �Suspensions and Expulsions

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Part One: Pre-discipline Notice

Part Two: Pre-discipline Chance to Challenge

Part Three: Discipline Decision

Part Four: Post Discipline Notice

Part Five : Post Discipline Chance to Challenge

Part Six: Going to Court

*Details somewhat different for suspensions & expulsions

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Fight Happens at School

  • Fight happens in cafeteria
  • Multiple students involved
  • Students involved sent to office
  • Administrator conducts investigation by reviewing video footage, taking witness statements from students involved, other student witnesses and staff witnesses and talking to these individuals
  • Administrator believes that Bobby instigated the fight

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Bobby Gets Suspended

  1. Part One Pre-Discipline Notice: Administrator provides Bobby with notice of intent to suspend. No decision has been made yet, but Bobby is made aware of the potential discipline.
  2. Part Two Pre-Discipline Chance to Challenge: Bobby gets in informal hearing before the building administrator to provide his side of the story and reasons he should not be suspended.
  3. Part Three Decision: Administrator decides to suspend Bobby based on a preponderance of substantial, reliable, and probative evidence.
  4. Part Four Post-Discipline Notice: Administrator issues formal suspension paperwork to Bobby. Administrator also sends letter to Bobby and his parents detailing the discipline and appeal rights.
  5. Part Five Post-Discipline Chance to Challenge: Student appeals suspension to the Board of designee.
  6. Part Six : Student/Parents can appeal to court of common pleas.

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Bobby Gets Expelled

  1. Part One Pre-Discipline Notice: Administrator provides Bobby and his parent notice of recommendation for expulsion.
  2. Part Two Pre-Discipline Chance to Challenge: Expulsion hearing before Superintendent or designee scheduled.
  3. Part Three Decision: Superintendent or designee decides to expel based on a preponderance of substantial, reliable, and probative evidence.
  4. Part Four Post-Discipline Notice: Superintendent or designee sends decision within 1 day of hearing.
  5. Part Five Post-Discipline Chance to Challenge: Student appeals expulsion to Board or designee. Hearing held. Decision affirmed.
  6. Part Six : Student/Parent can appeal to court of common pleas.

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Emergency Removals

  • Student may be removed from school and extra curricular activities without notice if s/he poses a continued danger to persons or property or ongoing threat of disrupting the academic process in class or on premises.
  • Typically a prelude to suspension or expulsion but not always.
  • Hearing must be next school day.
  • Written notice and reason for the removal given as soon as practicable prior to the hearing.  
  • K-3 student must be returned next day and cannot be suspended or expelled unless serious offense or for safety/health of child or others.

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Student Discipline: Common Errors

  • Failing to conduct a complete investigation
    • Interviews with witnesses
    • Obtaining witness statements
    • Reviewing video evidence (if available)
  • Failing to properly reference sections of the Code of Conduct violated by the student. Make sure:
    • Cited sections are applicable to the conduct
    • All sections violated are listed on the discipline paperwork
  • Failing to provide student with an informal hearing
    • This needs to occur prior to the decision to suspend

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Student Discipline: Common Errors

  • Failing to make sure that all paperwork is in alignment
    • Sections of the Code of Conduct cited on the notice of intent to suspend must match up with the sections of the Code of Conduct referenced in the letter notifying parents that the student has been suspended.
    • Double (and triple) check the documents prepared by your administrative assistants.
  • Failing to send paperwork in a timely manner
    • Suspension paperwork needs to be sent the same day the suspension is issued or the next day at the latest.

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Top Compliance Issues

  • Properly evaluating for applicability of Title IX
    • Any allegations that are sexual in nature should be reported to the Title IX Coordinator for evaluation
    • Always run through initial steps to evaluate and determine applicability
    • Document steps followed to justify decision-making and defend against allegations of deliberate indifference
  • Properly evaluating and following Board Policy procedures, such as for allegations of bullying or harassment

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Alternatives to Discipline

In some situations, standard removal-type discipline is not a good option:

  • First Amendment problems
  • Manifestation Determination doesn’t allow it
  • HB 410 – Cannot suspend or expel for truancy
  • Challenges regarding disparities in discipline for students with disabilities
  • Challenges in racial disparities in discipline. OCR Dear Colleague Letter regarding racial disparity.
    • https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.html

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Disciplinary Alternatives

  • More school, not less
  • Evaluations/FBA/BIP
  • Additional special education services
  • Mediation, if appropriate
  • Counseling/lunch bunch/individual therapy with parent’s consent
  • Increased monitoring/supervision as preventive

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Student Discipline: Considerations for Students with Disabilities

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Students with Disabilities

  • Students with IEPs covered by IDEIA (Individuals with Disabilities Education Improvement Act)
  • Students with 504 plans covered by Section 504 of Rehabilitation Act
  • Students may also be covered for discipline purposes if parent expressed special education concerns in writing or asked for am evaluation or teacher expressed concern to Special Education Director

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Ten Day Rule

  • Change in placement requires additional procedures because child’s special education placement is a critical piece of the IEP.
  • Ten Day Rule: Schools can usually discipline for a cumulative total of 10 school days a year without being considered a change in placement.
    • Emergency removals count
    • In school suspensions count if service is not provided in LRE
    • Bus suspensions count if transportation is required by IEP

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IDEA: Change in Placement Procedures

Additional procedures needed for disciplinary change in placement:

    • Appropriate educational

services during removal

    • Parental notice of the change in placement
    • A copy of their procedural safeguard rights
    • A manifestation determination review

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Manifestation Determination

  • Within 10 school days of the discipline decision (change of placement), the IEP team (including the parent) must meet to review the IEP and other pertinent information to determine if the student’s conduct was a manifestation of his or her disability.
  • The 10 school days are counted from the date of the issuance of the discipline that takes the student beyond 10 days of removal.

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Manifestation Determination

  • Conduct is determined to be a manifestation of the student’s disability if:
    • The conduct in question was caused by, or had a direct and substantial relationship to, the student’s disability; or
    • The conduct in question was the direct result of the school district’s failure to implement the IEP.
  • If the answer to either question is “yes” the student cannot be removed based on the conduct.
  • If the answer is “no”, the student can be removed, but must receive services in an interim alternative educational setting determined by the IEP team.

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Manifestation Determination: Next Steps

If the conduct is determined to be a manifestation:

  • The student cannot be removed for more than 10 days and must be returned to school immediately, unless;
    • The parent agrees to a change in placement;
    • The event involved drugs, weapons, or serious bodily injury; or
    • A hearing officer issues an order changing the student’s placement.
  • The district must conduct a functional behavioral assessment and create or revise a Behavior Intervention Plan. FBA & BIP.

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Manifestation Determination: Next Steps

If the conduct is not a manifestation of the disability:

District may suspend or expel in the same manner it would a regular education student, but:

    • Interim Alternative Educational Setting (IAES). District must provide regular and special education services IAES throughout the removal. IAES determined by team. E.g., home instruction, day treatment, computer based programs, etc.
    • Notice and Procedural Safeguards. Parent consent is not required to move the student to an IAES but parent must receive written notice and procedural safeguards.

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Special Circumstances: Exception for Drugs, Weapons, Serious Bodily Injury

District can remove a student to an IAES for not more than 45 school days, even if the behavior was a manifestation of the student’s disability if student:

  • Carries a weapon to or possesses a weapon at school, on school grounds, or at a school function.
  • Knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school, on school grounds, or at a school function.
  • Inflicts serious bodily injury upon another person while at school, on school grounds, or at a school function.

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IDEA Definition of Weapon

  • Weapon has the meaning given the term “dangerous weapon” under paragraph (2) of the first subsection (g) of section 930 of title 18, United States Code. See 34 C.F.R. 300.530(g) and 20 U.S.C. 1415(k)(1) and (7).
    • Dangerous weapon: a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is 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. See 18 U.S.C. 930(g).

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IDEA Definition of Illegal Drug and Controlled Substance

  • Controlled substance means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)). See 34 C.F.R. 300.530(g) and 20 U.S.C. 1415(k)(1) and (7).
    • Controlled substances are typically prescription medications.
  • Illegal drug means a controlled substance; but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law. See 34 C.F.R. 300.530(g) and 20 U.S.C. 1415(k)(1) and (7).

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IDEA Definition of Serious Bodily Injury

  • Serious bodily injury has the meaning given the term “serious bodily injury” under paragraph (3) of subsection (h) of section 1365 of title 18, United States Code. See 34 C.F.R. 300.530(g) and 20 U.S.C. 1415(k)(1) and (7).
    • 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.
        • See 18 U.S.C. 1365(h)(3)

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Back to the MDR Questions

  • Remember the questions when completing an MDR:
    • The conduct in question was caused by, or had a direct and substantial relationship to, the students disability; or
    • The conduct in question was the direct result of the school district’s failure to implement the IEP.
  • While MDR decisions must be made on a case-by-case basis, keep in mind that:
    • Not every bad decision that a student with ADHD makes is related to the disability because the student is “impulsive”.
    • Self-medication is unlikely to serve as justification for the use or possession of illegal drugs.
    • Kiddie scissors are probably not a weapon.
    • A complaint to the union does not make an injury “serious.”

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Other Reminders

  • MDR Timing
    • MDR must be completed no more than 10 school days from the decision that triggered the change in placement (i.e., the decision that triggered removal in excess of 10 days).
  • FBA
    • When conduct was a manifestation of the student’s disability, an FBA must be completed.
    • Additionally, a BIP should be developed or updated.

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Children Not Yet Identified

  • All of this (10 days, MDR, etc.) may apply also to children not yet identified as special education students, if the school had knowledge that the child may have a disability before the behavior took place.

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Children Not Yet�Identified

  • School has knowledge if:
    • Parent expressed concern about special education or related services in writing to administrator or teacher.
    • Parent requested an evaluation.
  • Teacher or other personnel expressed specific concern about child’s pattern of behavior to Special Ed. Director or another supervisor.

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Children Not Yet Identified

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  • If school did not know:
    • Discipline as usual
    • If requested, evaluation must be expedited
    • Until evaluation is completed, school determines educational placement- suspension or expulsion included.

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Manifestation Determination Review Pitfalls

  • No need to conduct MDR early.
    • Early meeting will not change the requirement to meet once 10 days is reached or subsequently.
    • However, if the student is engaging in numerous disciplinary infractions, the team should reconvene to discuss the issues and determine if additional support is needed.

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Manifestation Determination�Review Pitfalls

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  • Do not simply look at the student’s “label” when making an MDR decision.
    • The “label” does not drive the MDR decision.
  • Consider all available information.
    • ETRs, IEPs, support personnel input/observations
    • Parent input/observations
    • New data
    • Medical or mental health diagnoses

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Manifestation Determination Review Pitfalls

  • Decisions must be based on facts and evidence discussed at the meeting.
  • Teams must have a defensible basis for the decision.
    • The data will preferably come from the IEP, ETR and data collected in the classroom.
  • Parents can challenge MDR decision in a due process hearing.

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Interim Alternative Educational Setting

  • An IAES is used when: (1) conduct was not a manifestation of the student’s disability or (2) Drugs, Weapons, & Serious Bodily Injury were not involved (45 days only)
  • Only the student’s IEP team can determine the student’s IAES.
    • This decision cannot be made by an administrator issuing discipline.
    • The decision must be documented in the student’s IEP.
  • Parent consent for IAES is not required. If Parent files Due Process, student stays in IAES.
  • The trigger for allowing the IEP team to change the placement to the IAES is the imposition of a disciplinary removal.

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Lisa Woloszynek

Weston Hurd attorney Lisa Woloszynek focuses her practice on special education law, school law, and labor and employment law. She provides general counsel to school districts in relation to personnel and student matters, including discipline, Sunshine Laws, board policies, residency and custody, public and education records, confidentiality, constitutional rights, and discrimination concerns.  Lisa counsels boards of education on laws related to the education of students with disabilities and regularly provides preventative services to school district personnel: leading in-service sessions, reviewing special education records for legal compliance, attending IEP and ETR team meetings, representing boards of education in direct requests for mediation, and issuing guidance relating to systemic and programmatic matters. Lisa also handles all aspects of litigation related to student and employee issues.

Lisa Woloszynek

216.687.3382

lwoloszynek@westonhurd.com