Law of Special Education and School Discipline

Law of Special Education and School Discipline aetrahan Fri, 03/03/2023 - 09:43

Sara Godchaux is a staff attorney with the Loyola Law Clinic in New Orleans where she helped launch the Education Project in 2018 to provide free legal representation for students and families on matters of school discipline and special education. In addition to representing clients, Sara works in conjunction with clinic professor Hector Linares to supervise law student practitioners working on education cases. Prior to joining the Loyola Law Clinic, Sara worked as a staff attorney at the Southern Poverty Law Center (“SPLC”) in New Orleans, primarily focusing on children’s education and mental health care issues. At SPLC, Sara also worked on behalf of Louisiana’s immigrant community and filed litigation to protect the voting rights of naturalized U.S. citizens. Sara is a native New Orleanian and a graduate of Vanderbilt University and Loyola University New Orleans College of Law, where she graduated top of her class and received the Spirit of Ignatius Award for her high academic achievements and demonstrated commitment to community service.

Hector Linares is the Edward J. Womac, Jr. Distinguished Clinic Professor and Director of Skills & Experiential Learning at Loyola University New Orleans College of Law, where he teaches the Youth Justice section of the law clinic. He received his B.A. from Tulane University and his J.D. from New York University School of Law. He began his career as the Southern Poverty Law Center Special Education Fellow at the Juvenile Justice Project of Louisiana. He also practiced special education law as a Supervising Attorney at Protection & Advocacy, Inc. (now Disability Rights California) in Los Angeles.  Professor Linares is a longtime member and current Co-Director of the Gault Center South and is a member of the National Advisory Board for the Gault Center, a national organization for youth defenders. He has also served on the boards of several non-profit organizations, including the Louisiana Public Defender Board and the Louisiana Mental Health Advocacy Service. He currently serves on the Louisiana State Law Institute’s Children’s Code Committee and the LSBA's Children's Law Committee.

Acknowledgements: The authors would like to thank the small but incredibly tight-knit community of talented special education attorneys in Louisiana who are always willing to share materials, brainstorm, and support one another in whatever way possible. In particular, the authors would like to thank Ashley Dalton, Sophia Mire-Hill, and Lauren Winkler of the Southern Poverty Law Center; Allison Zimmer and Elizabeth Jones of the Louisiana Center for Children’s Rights; Shannon Barnes, Ron Lospennato, and Debra Weinberg of Disability Rights Louisiana; and our friends in private practice, Melia Cerrato, Christopher Edmunds, and Kimona Hogan. Also, a heartfelt thanks to all of the student practitioners at the Loyola Law Clinic who have helped develop over the years the advocacy strategies and templates included in this chapter.

The material in this chapter is current through February 27, 2023.

1 Introduction

1 Introduction aetrahan Fri, 03/03/2023 - 10:14

Difficulties that students experience at school can contribute to problems far beyond the educational arena ranging from juvenile court involvement to negative impacts on parental employment because of time spent dealing with a child’s issues at school. Conversely, ensuring that the educational needs of students with disabilities are being met and helping students avoid harsh school discipline can lead to positive outcomes for students and their families.1  Consequently, educational advocacy is an important part of holistic representation for many clients who are in school or have school-age children. This chapter is a practical guide for attorneys in other fields of practice on how to advocate for students who have a disability, are suspected of having a disability, or are facing expulsion or other forms of school discipline. 

  • 1For example, ensuring that a student’s disability-related needs are properly documented and addressed through the public school system can be tremendously helpful in obtaining positive outcomes in delinquency proceedings, establishing eligibility for certain government benefits, and obtaining accommodations for college admissions testing or while enrolled in higher education.

2 Sources of Law

2 Sources of Law aetrahan Fri, 03/03/2023 - 10:16

2.1 Federal Laws & Regulations

2.1 Federal Laws & Regulations aetrahan Fri, 03/03/2023 - 10:16

Two federal laws and their accompanying regulations guarantee students with disabilities the right to a Free and Appropriate Public Education (“FAPE”). The first of these federal laws is called the Individuals with Disabilities Education Improvement Act (“IDEA”).1  The IDEA ensures that qualifying students with disabilities receive FAPE in the form of “special education and related services” in accordance with the numerous substantive requirements, procedural protections, and heightened disciplinary safeguards contained within its statutory and regulatory framework.2  The IDEA imposes obligations on the State Education Agency (“SEA”) and on each Local Education Agency (“LEA”) directly responsible for providing public education. In Louisiana, the Louisiana Department of Education (“LDE”) is the SEA responsible for providing oversight and assistance to LEAs to ensure compliance with special education laws and regulations. The LEA is legally responsible for ensuring FAPE is delivered to each special education student and can either be a school district or, for most but not all charter schools, the charter management organization.

Each student found eligible for special education under the IDEA has an Individualized Education Program (“IEP”) developed by an IEP team consisting of the student’s parent(s) or legal guardian(s), teachers, service providers, administrators, and others knowledgeable about the child’s needs. The IEP documents the special instruction and services that must be provided as part of the student’s right to FAPE. The IDEA also establishes dispute-resolution mechanisms parents and advocates can use to resolve disagreements over eligibility, discipline, placement, services, and accommodations.

The second federal law protecting students with disabilities is Section 504 of the Rehabilitation Act (“Section 504”).3  Section 504 prohibits educational programs that receive federal financial assistance from discriminating against students with disabilities and requires schools to provide FAPE to each qualified student with a disability regardless of the nature or severity of the disability. Under Section 504 regulations, FAPE includes regular or special education and related services designed to meet the individual educational needs of a child with a disability as adequately as the needs of nondisabled students are met.4  Services and accommodations provided to students with a disability under Section 504 are generally documented in what is officially called an Individual Accommodations Plan (“IAP”) in Louisiana but is more commonly referred to as a “504 plan.” Eligibility criteria under Section 504 are much broader than those under the IDEA, allowing many students with disabilities who are not eligible for an IEP to qualify for a 504 plan. While many of the same services and modifications are available under either framework, the regulations, procedural protections, and dispute-resolution mechanisms available under Section 504 are generally less robust than those available under the IDEA.5  Together, the IDEA and Section 504 ensure that every student with a disability receives FAPE.6

  • 120 U.S.C. § 1412, et seq.
  • 2Id.; 34 C.F.R. § 300.1, et seq.
  • 329 U.S.C. § 794; 45 C.F.R. § 84.1, et seq.
  • 445 C.F.R. § 300.84.33(b).
  • 5For a more detailed explanation of the differences between Section 504 and the IDEA, see La. Dep’t of Educ., Louisiana Believes: Section 504 Overview and the Individual Accommodations Plan (2016).
  • 6Title II of the Americans with Disabilities Act also offers protections to people with disabilities that are applicable to public school settings but are focused on preventing discrimination rather than the provision of FAPE.

2.2 State Laws & Regulations

2.2 State Laws & Regulations aetrahan Fri, 03/03/2023 - 10:20

Title 17 of the Louisiana Revised Statutes contains the Education of Students with Exceptionalities Act, which is the state counterpart to the IDEA.1  The bulk of the special education rights and procedures specific to Louisiana, however, are found in various policy bulletins promulgated by the Louisiana Board of Elementary and Secondary Education (“BESE”).2  Among the most important are:

  • Bulletin 1706 – Regulations for Implementation of the Children with Exceptionalities Act, which contains general special education regulations.3
  • Bulletin 1508 – Pupil Appraisal Handbook, which contains regulations specific to eligibility and evaluation for special education.4
  • Bulletin 1530 – Louisiana’s IEP Handbook for Students with Exceptionalities, which contains regulations regarding the development and implementation of IEPs and related services.5
  • 1La. R.S. 17:1941, et seq.
  • 2For the current set of all BESE Bulletins, see Policies/Bulletins, La. Bd. of Elementary & Secondary Educ.
  • 3This bulletin is available here.
  • 4This bulletin is available here.
  • 5This bulletin is available here.

2.3 Guidance & Local Policies

2.3 Guidance & Local Policies aetrahan Fri, 03/03/2023 - 10:21

At least once per year, LEAs must provide parents of students with disabilities with a copy of a booklet published by the LDE entitled Special Education Processes & Procedural Safeguards.1  As a summary of Louisiana’s special education regulations in language designed to be understood by parents and other lay people, this document can also be a useful resource for advocates. The LDE website also contains additional guidance that may be helpful to parents and advocates.2  Beyond available LDE resources, educational advocates should become familiar with the policies and procedures of the individual school and charter organization or school district that the student for whom they are advocating attends. While federal and state laws and regulations provide a floor for rights and protections, local policies sometimes provide greater protections and generally include more specific details on the LEA’s procedures to implement statutory and regulatory requirements. Local policies and procedures are usually contained in parent and student handbooks or codes of conduct available on the school, school district, or charter organization website. Local handbooks should also contain details on local grievance procedures for resolving disputes related to 504 plans.

2.4 Charter Schools

2.4 Charter Schools aetrahan Fri, 03/03/2023 - 10:23

2.4.1 Basic Principles

2.4.1 Basic Principles aetrahan Fri, 03/03/2023 - 10:23

A charter school is a public school that operates under an independent contract, or “charter,” with an authorizing agency such as the local school district or the state board of education. The charter provides the school with operational autonomy over its curriculum, staff, and budget. It also holds the school accountable to certain academic, financial, and operational standards set by an authorizer via a performance contract. If a charter school does not meet these standards, the authorizer can revoke the contract and close the school.

While some states allow for-profit charter schools, all Louisiana charters are publicly funded and run by non-profit groups called Charter Management Organizations (“CMOs”). Each CMO has its own independent, governing non-profit board. All charters in Louisiana must be authorized by either the Louisiana Board of Elementary and Secondary Education (“BESE”) or the local school district. Louisiana has several different types of charter schools depending on the authorizing entity and the structure of the relationship between the CMO and the charter authorizer. The entity directly responsible for providing special education services may differ depending on the type of charter school.   

2.4.2 The New Orleans Charter School System

2.4.2 The New Orleans Charter School System aetrahan Fri, 03/03/2023 - 10:23

While there are a growing number of charter schools throughout Louisiana, New Orleans is unique in that it is the only all-charter school district in the country. Before Hurricane Katrina hit New Orleans in 2005, the New Orleans public school system followed the traditional neighborhood-school model in which most students were assigned to neighborhood schools based on their residence. However, in the aftermath of Hurricane Katrina, both the Orleans Parish School Board and BESE began converting traditional, neighborhood-based schools into public charter schools. Practically speaking, this means that the Orleans Parish School Board (now referred to as “NOLA Public Schools”) does not actually operate any schools; it simply acts in a broad monitoring and supervisory role over the charter schools that it authorizes.

In the 2021-2022 school year, there were 83 schools operating within NOLA Public Schools.1  Within this all-charter system, 76 of these schools were authorized by NOLA Public Schools and the other 7 were authorized either by BESE or by the State Legislature. The vast majority of all these schools operate as their own independent, local educational agency (“LEA”).2  A charter school that operates as an LEA is directly accountable to the state and federal governments for carrying out district-level responsibilities, including those related to the provision of special education.

A charter school that is its own LEA must serve any student—regardless of the student’s disability or needs—who walks in the door. As such, small, independent charter schools with limited staff and resources must nevertheless provide the full range of substantive and procedural rights and services afforded to students with disabilities. In a traditional school system, the district can pool resources and capitalize on economies of scale; the typical result is more specialized services, placements, and resources available to meet the individualized needs of students of disabilities. In contrast, a stand-alone charter school likely lacks specialized teachers and programming for students with significant or unique needs, and these services are very expensive to contract out to provide to just a small number of children. As a result, charter schools often struggle to satisfy their legal responsibilities, and students with disabilities may be denied their substantive and procedural rights.3

  • 1For a breakdown of the New Orleans school system, see New Orleans Public Schools 2022-2023 Governance Chart, NOLA Public Schools.
  • 2Note that five of the NOLA-Public-Schools-authorized schools act under the NOLA Public Schools LEA. See id.
  • 3For more information on the issues related to special education in the New Orleans charter schools, see generally P.B. v. Pastorek, No. 2:10-cv-04049 (E.D. La. 2011).

2.4.3 Practical Tips

2.4.3 Practical Tips aetrahan Fri, 03/03/2023 - 10:26

Students are entitled to the same substantive rights and procedural protections under both the IDEA and Section 504 regardless of whether they attend a charter school or a traditional public school. All charter schools, like traditional public schools, must follow state and federal laws regarding special education.1  Charter schools must also follow state school discipline law. However, each charter school, like each traditional school district, is responsible for creating its own discipline policies and procedures that are compliant with state law. 

When representing a student in an education matter, it is important to determine as a threshold issue whether the student attends a charter school or traditional public school. This will have a direct impact on who the LEA—the legally responsible entity (i.e., the entity that would be named in any complaint)—is.2  If the student attends a traditional public school, the LEA is the school district. However, if the student attends a charter school, then the charter school (or rather the CMO that runs the charter) is most likely the LEA. 

Sometimes determining who the LEA is requires determining the type of charter school and its exact contractual relationship with its authorizer. In Type I and Type III charter schools, which are authorized by the local school district, the authorizing school district may remain the LEA for special education purposes. However, this can look differently depending on the exact terms of the charter contract. Some charters may opt to provide the special education services themselves, some may opt to let the district provide the services, and some may take a mixed approach with the charter providing some special education services and the district providing others. For example, the authorizing school district may be responsible for special education evaluations and related services such as speech therapy or occupational therapy, while the charter school is responsible for providing special education instruction through the employment of special education teachers.3  Legally this can get complicated, and may require interacting with both the charter school (and its legal counsel) and the authorizing school district (and its legal counsel) and may possibly have to file a complaint against both parties when resorting to formal dispute resolution

  • 1One notable area of difference, however, is that Louisiana laws and regulations exempt charter schools from certification requirements for teachers of special education students. See La. R.S. 17:3996; La. Bulletin 1706 §§ 156(C), 905 (defining Highly Qualified Special Education Teacher).
  • 2Local Education Agency is defined in La. R.S. 17:1942 and in section 905 of Louisiana Bulletin 1706.
  • 3It may be necessary to request the charter contract through a Public Records Request to determine the exact nature of the relationship.

3 Preliminary Considerations for Advocacy

3 Preliminary Considerations for Advocacy aetrahan Fri, 03/03/2023 - 10:27

3.1 Getting Started

3.1 Getting Started aetrahan Fri, 03/03/2023 - 10:28

Engaging in special education advocacy can be overwhelming to parents and new advocates because of the many acronyms and specialized terms that are used as well as the extensive regulatory framework that governs this area of practice.1  Nevertheless, good preparation and the use of fundamental negotiating skills is all that is needed for effective advocacy.

Later sections of this chapter address the substantive law of special education. The following sections focus on preliminary matters to which an attorney must attend in order to effectively advocate for students and parents.

  • 1A list of common acronyms used in special education is available in Section 10.

3.2 Identifying the “Client”

3.2 Identifying the “Client” aetrahan Fri, 03/03/2023 - 10:28

Determining whether the student or the parent should be the client is one of the first decisions an attorney must make when engaging in special education representation.1  The parent or legal guardian is typically the client in a special education case because the parent is the educational rights holder until the student reaches the age of majority.2  After turning 18, the student becomes the educational rights holder unless the student has been found incompetent under state law.3  It is important to note that disability status alone does not affect the transfer of rights and that special education attorneys in particular should be aware of the ethical requirement to “as far as reasonably possible, maintain a normal client-lawyer relationship with the client” when representing an individual with diminished capacity.4  Once educational rights transfer to the student, the parent may continue attending IEP meetings and being involved in educational decisions to the extent desired by the student. As the educational rights holder, however, the student becomes the person whose consent is needed for evaluations and sought for decisions related to the IEP. The student also becomes the complainant for any complaint, due process proceeding, or court action filed related to special education rights. In situations where the student is the educational rights holder but the parent is paying for the legal services, the attorney should keep in mind the ethical duty to ensure being compensated by a third-party does not cause “interference with the lawyer’s independence or professional judgment or with the client-lawyer relationship.”5

  • 1For purposes of both this chapter and special education generally, “parent” is broadly defined to include biological parents, adoptive parents, foster parents, legal guardians, surrogate parents, and other individuals legally responsible for the student’s welfare and education. See 34 C.F.R. § 300.30; La. Bulletin 1706 § 905 (definition of Parent). 
  • 2See 34 C.F.R. § 300.520; La. Bulletin 1706 § 520.
  • 3See 34 C.F.R. § 300.520; La. Bulletin 1706 § 520.
  • 4La. R. Prof’l Conduct 1.14(a).
  • 5La. R. Prof’l Conduct 4.2.

3.3 Retainer Agreements

3.3 Retainer Agreements aetrahan Fri, 03/03/2023 - 10:36

A client retainer agreement should make it clear whether the parent or the child is the client for purposes of the representation.1

Educational advocacy engaged in as collateral representation for a child client likely requires special language in the retainer agreement to address potential conflicts of interest that could arise from dual representation of the parent as the client in the educational matter. Court-appointed counsel in a delinquency proceeding is an expressed-interest representative of the youth, to whom the attorney owes all the ethical duties attendant to an attorney-client relationship. If the same attorney also represents the parent in a special education matter, then a conflict could arise if the goals of representation of the parent and the student come to be at odds. For example, a parent’s goal of having the child found eligible for special education or having the child placed in a certain type of self-contained classroom may conflict with the expressed interest of the child who wants to avoid being labeled as a student with a disability or to remain with friends in a regular education setting. Advocates facing this situation typically resolve the dilemma by including language in the client retainer agreement that identifies the potential for conflict and permits the attorney to withdraw if an irreconcilable conflict arises related to a goal of representation for the educational advocacy.2  In most instances, providing effective counsel and advice to the parent and student can resolve disagreements over the goals of representation without the need to withdraw.

Prior to engaging in educational advocacy, an attorney must consider the scope of representation that will be provided to the client. Educational advocacy can quickly expand to matters beyond the discrete issues first brought to an attorney’s attention, and many issues may persist over several school years without ever being fully resolved. With this in mind, an attorney should establish a scope of representation that provides sufficient flexibility to address issues as they arise while not committing the attorney to perpetual representation on any and all aspects of a student’s education. Accordingly, it may be advisable to draft the retainer agreement to limit the scope of representation to a particular length of time, to a specific issue or set of issues, or to a certain level of advocacy. For example, an attorney may choose to limit the initial retainer to advocacy at IEP meetings and other school-level informal advocacy during the current school year and require a separate retainer if the advocacy reaches an impasse and needs to progress to representation in one of the formal dispute resolution mechanisms available through the special education system.3

Attorneys engaging in special education advocacy involving formal dispute resolution through a due process hearing should also consider adding language specific to the award of attorneys’ fees to the retainer agreement. The IDEA grants courts the authority to award reasonable attorneys’ fees to a parent of a student with a disability if the parent is the prevailing party in a due process hearing.4  As a result, attorneys’ fees are also commonly included as one of the terms in settlement agreements negotiated to resolve a due process proceeding. Retainer agreement language establishing authority for the attorney to seek and collect attorneys’ fees directly from the opposing party can help avoid any misunderstandings or conflict with regard to these fees later on, particularly for attorneys who are otherwise providing pro bono representation.5

  • 1See Section 3.2 on this distinction.
  • 2Sample retainer agreement language is provided in Section 9.
  • 3Id.
  • 4 34 C.F.R. § 300.517; La. Bulletin 1706 § 517.
  • 5Sample retainer agreement language is provided in Section 9.

3.4 Client Interviewing

3.4 Client Interviewing aetrahan Fri, 03/03/2023 - 10:39

Some clients seeking assistance with educational advocacy for a child with an identified or suspected disability may have only a vague notion of the ways in which the school system is failing the child and of the variety of potential solutions available. Consequently, conducting a thorough and client-centered interview is essential to developing a theory of the case and understanding the client’s often nuanced and layered goals regarding the student.1  The initial client interview should cover a detailed chronology of the student’s educational history, including the schools the student has attended; a timeline of special education and 504 eligibility and evaluations; a narrative of the services and supports that have been introduced or eliminated through the years; and a recounting of any other significant milestones in the student’s education. The attorney should also conduct thorough questioning regarding the student’s current educational program to determine the student’s placement, services, and modifications and whether they are being implemented faithfully. The attorney should focus on progress or lack thereof in both academic and functional areas of need, the nature and amount of related services and supports that a student receives or that the parent believes the student requires, and the amount of time spent in regular education and special education settings along with the accommodations provided in each setting. The attorney should also inquire about the educational setup for students who have not been identified as having a disability because interventions and other services may have already been put into place.

The interview should also thoroughly cover any disciplinary or behavioral issues that the student is experiencing or has experienced in the past, including the frequency and nature of any disciplinary actions taken against the student and the use of any Behavior Intervention Plans, Behavior Support Plans, or other supports implemented to address behavioral issues. Special attention should be given to disciplinary incidents within the past year that have resulted in suspensions, expulsion recommendations, or other types of removals. The interview should also delve into the student’s medical history to determine if there are any medical or mental health diagnoses that could be relevant to special education eligibility or could be affecting educational performance. Ideally, interview notes should document not only any diagnoses that have been made, but also current and past prescriptions and treatments, any history of hospitalization, and the names and contact information of any outside medical or mental health providers. Finally, the attorney should engage in as much discussion as is necessary to understand the outcomes the client believes would resolve the student’s educational problems. In addition to obtaining information, the attorney should also engage in discussion so that the client gains a better understanding of the child’s educational rights and the tentative steps for educational advocacy moving forward. 

If the attorney and client are ready to engage in representation, the initial interview is also the appropriate time to have the client sign the retainer agreement and the authorizations to release educational and medical records. If possible, parents should be asked in advance of the interview to bring all records and documents in their possession with them or to email them beforehand. If not, arrangements should be made to obtain all available documents as soon as possible after the interview because gathering records from the school can take considerable time.

Sometimes a parent brings the child with them to the interview. When this occurs, the attorney should consider asking to interview the student separately from the parent, particularly if the student is older, so that the parent’s presence does not influence the student’s recounting of the problems occurring at school or what the student expresses as desired outcomes for the advocacy. In such cases, both the parent and the student should clearly understand who is the client, the role of the attorney, and to whom the ethical duties of confidentiality and expressed-interest representation are owed. It often helps to explain to the parent that even though he or she is the client, being able to interview the student privately can result in a better understanding of the issues and a greater ability to obtain buy-in from the student on the proposed course of action, resulting in more effective advocacy.2

  • 1A sample client intake interview form is provided in Section 9.
  • 2For example, an attorney may be able to secure a particular placement or accommodation for a student at the parent’s request, but that will not necessarily lead to an improved educational outcome if the student is resistant to the change. In fact, changing the student’s educational program in a manner that the student does not want could lead to worse educational or behavioral outcomes even if the change is otherwise appropriate.

3.5 Communicating with Opposing Counsel

3.5 Communicating with Opposing Counsel aetrahan Fri, 03/03/2023 - 10:41

In educational advocacy, an attorney generally communicates with and sends requests directly to school officials on behalf of a client unless the LEA is represented by counsel with regard to the matter that is the subject of the communication. Some LEAs are quicker than others to bring in general or retained counsel on a particular matter. To avoid concerns regarding communicating with represented parties, the attorney representing a parent or student should consider including language in the initial outreach to school officials asking to be informed if the LEA is represented by counsel with whom the attorney should be communicating regarding the matter.1  The expectations and practices regarding when to begin communicating with an LEA’s counsel should become more clear once an attorney gains experience advocating in a particular school system or charter organization.

  • 1See La. R. Prof’l Conduct 4.2.

3.6 Requesting Records

3.6 Requesting Records aetrahan Fri, 03/03/2023 - 10:42

One of the first steps of educational advocacy is to obtain an authorization to release confidential information and to submit a request for all of a student’s educational records.1  The request should be as comprehensive as possible. The records available and the language used for the request may differ slightly, however, depending on whether the student is already in special education and whether or not the request is focused on records relating a specific disciplinary incident.2  The comprehensive records request should be sent via email in order to create a record of when and to whom it was sent. Schools and charter organizations may list a particular person or email address on their website as the contact for records requests. If this information is not available, advocates and parents should send requests to the principal or special education coordinator for the school in addition to the child’s teacher. In some cases, it may be appropriate to send the request to the special education coordinator or director for the LEA in addition to the appropriate school-level official.

If the student has a medical diagnosis, sees a mental health provider, or has a history of hospitalization, it is advisable to also obtain a HIPAA-compliant release to obtain medical records. The Louisiana Department of Health (“LDH”) provides an Authorization to Release or Obtain Health Information that is HIPAA-compliant and available in a fillable pdf format.3  Some providers have their own releases that they prefer be used for records requests.4  Many providers accept records requests via email or through an online records request portal.5  Otherwise, the request letter and accompanying release can be mailed or faxed to the provider.6

4 Rights under the IDEA

4 Rights under the IDEA aetrahan Fri, 03/03/2023 - 10:48

4.1 Special Education

4.1 Special Education aetrahan Fri, 03/03/2023 - 10:48

Special education is defined as “specially designed instruction, at no cost to the parent, to meet the unique needs of a child with a disability.”1  Federal and state laws and regulations offer a number of substantive and procedural rights to special education students and their parents to ensure that each qualifying student with a disability is identified and receives the supports and services needed to meet that student’s unique educational needs through the provision of FAPE. The specialized instruction, services, and modifications needed to meet the unique needs of each special education student, however, necessarily varies heavily according to the student’s individual capacities and circumstances. As a result, determining what FAPE and an appropriate IEP looks like for a student is often the subject of disagreement between parents and LEAs. For an attorney, extensive client interviewing, records review, and cross-disciplinary research is often needed to be able to counsel and advise a parent in setting appropriate goals for advocacy related to the child’s education. Regardless of the particular advocacy goals in a special education matter, however, understanding the many substantive and procedural rights and protections and how they apply to the individual circumstances of a particular student is key to effective advocacy.

  • 120 U.S.C. § 1401(3); 34 C.F.R. § 300.39; La. Bulletin 1706 § 905.

4.2 Eligibility & Evaluations

4.2 Eligibility & Evaluations aetrahan Fri, 03/03/2023 - 10:49

4.2.1 Basic Principles

4.2.1 Basic Principles aetrahan Fri, 03/03/2023 - 10:49

With very limited exceptions, the right to special education extends to all students between the ages of three and twenty-one, inclusive,1  who meet the criteria for one or more of the 13 exceptionalities listed in the IDEA and state regulations: Autism, Deaf-Blindness, Deafness, Emotional Disturbance (“ED”), Hard of Hearing, Intellectual Disability, Multiple Disabilities, Orthopedic Impairment, Other Health Impairment (“OHI”), Specific Learning Disabilities (“SLD”), Speech or Language Impairment, Traumatic Brain Injury, and Visual Impairment Including Blindness.2  Children under nine may also be eligible for special education services under the category of Developmental Delay.3  Each exceptionality has its own set of legal criteria distinct from any related medical diagnosis. Some of these exceptionalities require evaluation procedures particular to that suspected disability in addition to the general evaluation procedures applicable to all exceptionalities.

  • 120 U.S.C. § 1412(a)(1)(A); La. Bulletin 1706 § 230. States are not required to provide FAPE to students between the ages of 18 and 21 who are incarcerated in an adult correctional facility provided that the student was not identified as a student with a disability and did not have an IEP prior to being incarcerated. La. Bulletin 1706 § 102(A)(1). Furthermore, the right to FAPE ceases when a student graduates with a regular high school diploma. Id. § 102(A)(2). Students who turn 22 during their final school year of eligibility are entitled to continue receiving FAPE until the end of the school year if steps in the student’s transition plan have not been completed. La. Bulletin 1530 § 103(C)(2)(b).
  • 220 U.S.C. § 1401(3)(A); La. Bulletin 1508 § 701, et seq.; La. Bulletin 1706 § 905;
  • 320 U.S.C. § 1401(3)(B); La. Bulletin 1508 § 705; La. Bulletin 1706 § 111(B).

4.2.2 Child Find

4.2.2 Child Find aetrahan Fri, 03/03/2023 - 10:50

Under both the IDEA and Louisiana law, an LEA has an affirmative obligation, known as “Child Find,” to identify, locate, and evaluate any child suspected of having a disability residing within the LEA’s geographic boundaries.1  If the LEA is a charter organization to which traditional attendance zones do not apply, its Child Find obligations extend to any student enrolled in one of its charter schools. An LEA’s Child Find duty is triggered when it has reason to suspect a particular child has a disability and a reason to suspect that special education services may be needed to address that disability. When these suspicions arise, the educational agency must refer the student for evaluation “within a reasonable time after the school district is on notice of facts or behavior likely to indicate a disability.”2  The U.S. Fifth Circuit Court of Appeals has held that a four-month delay from notice of facts likely to indicate that a student has a disability before initiating an evaluation is unreasonable.3  The Child Find duty applies regardless of the severity of the disability and regardless of whether the student is advancing from grade to grade.4  Educators’ training, expertise, and direct student contact put them in a position to be able to identify red flags that a student may have a disability and refer the student for evaluation. The Child Find duty also extends to students with suspected disabilities residing in the LEA’s jurisdiction who are enrolled in private schools, preschools, or day care programs; who are not enrolled in any school; and who are highly mobile, including migrant students.5

  • 120 U.S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.111; La. Bulletin 1706 § 230(A).
  • 2Dallas Indep. Sch. Dist. v. Woody, 865 F.3d 303, 320 (5th Cir. 2017).
  • 3Krawietz ex rel. Parker v. Galveston Indep. Sch. Dist., 900 F.3d 673 (5th Cir. 2018).
  • 434 C.F.R. § 300.111; La. Bulletin 1508 § 103.
  • 534 C.F.R. § 300.111; La. Bulletin 1508 § 103.

4.2.3 Initial Evaluation

4.2.3 Initial Evaluation aetrahan Fri, 03/03/2023 - 10:53

If they suspect their child has a disability, parents and their advocates do not have to wait for school officials to act on their Child Find duties. Under the IDEA, “a parent of a child . . . may initiate a request for an initial evaluation to determine” whether the child is an eligible child with a disability.1  Within a reasonable time of the request, the LEA must either deny the request with a written explanation or obtain informed consent from the parent for the initial evaluation.2  LEAs use a team of educators and administrators known as the School Building Level Committee (“SBLC”) to make decisions regarding whether to refer a particular student for a special education initial evaluation.3  The SBLC can also choose to refer a child to other interventions in lieu of or as part of a referral for an initial special education evaluation.4  LEAs must conduct a “full and individual initial evaluation” in compliance with the IDEA before the “initial provision of special education,” but parental consent for an initial evaluation does not constitute consent for the provision of special education services.5

Once a parent consents to the initial evaluation, the LEA must “use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent.”6  Initial special education evaluations must be completed within 60 business days of the LEA having obtained parental consent.7  The timeline, however, is interrupted by summer and can be extended with the parent’s consent.8  Once assessments are completed, the evaluation team, also known as a dissemination team, meets to disseminate the final evaluation report and determine if the child is eligible for special education under one or more exceptionalities. If a parent refuses to provide consent for the initiation of special education services after an initial evaluation has found the student eligible, the LEA is relieved of its obligation to provide FAPE to the student.9

  • 120 U.S.C. § 1414(a)(1)(B); La. Bulletin 1508 § 302(B).
  • 2La. Bulletin 1508 § 509(B)­–(C).
  • 3La. Bulletin 1508 § 303. In some districts and charters, the SBLC is called the Student Assistance Team (“SAT”).
  • 4La. Bulletin 1508 § 303.
  • 534 C.F.R. § 300.301(a); 20 U.S.C. § 1414(a)(1)(A).
  • 620 U.S.C. § 1414(b)(2)(A); La. Bulletin 1706 § 305(B)(1).
  • 7La. Bulletin 1706 § 302(C); La. Bulletin 1508 § 511(A).
  • 8La. Bulletin 1508 § 511(A).
  • 920 U.S.C. § 1414(a)(1)(D)(ii)(III); La. Bulletin 1706 § 301(B)(3).

4.2.4 Reevaluation

4.2.4 Reevaluation aetrahan Fri, 03/03/2023 - 10:55

Once special education services begin, a reevaluation must occur at least once every three years.1  The triennial evaluation operates on the same timelines as the initial evaluation, and the deadline can be extended by agreement of the LEA and parent provided that the reevaluation is completed on or prior to the three-year anniversary date.2  The LEA must conduct the reevaluation earlier if the LEA determines an earlier reevaluation is warranted by the educational or related service needs of a student, if the student’s teacher or parent requests a reevaluation, or if a significant change in placement to a more restrictive environment is proposed that would result in a student being in a regular class for less than 40% of the day.3  A reevaluation must also occur before removing a student no longer suspected of having an exceptionality from special education by terminating eligibility.4

An evaluation coordinator must be assigned as part of a reevaluation, and the coordinator must review any evaluations or information provided by the parents or student.5  The coordinator must also review the student’s educational history, progress monitoring data, and data from student observations.6  The reevaluation must also satisfy any reevaluation requirements for the specific disabilities at issue and include the development or review of a Functional Behavioral Assessment (“FBA”) if behavior is a concern.7  Under Louisiana regulations, no other particular assessments are required as a part of a reevaluation unless a parent requests an assessment to determine the student’s educational needs or the LEA determines that additional data is needed.8  However, when a different exceptionality from the student’s current one is suspected, the reevaluation must follow the same initial criteria and procedures for the suspected exceptional as a required for an initial evaluation.9

  • 120 U.S.C. § 1414(a)(2)(B); La. Bulletin 1508 § 304(b)(2).
  • 2La. Bulletin 1508 § 1105(H).
  • 3Id. § 1101(A).
  • 4Id. § 1101(A)(4).
  • 5Id. § 1105(A).
  • 6Id.
  • 7Id.
  • 8La. Bulletin 1508 § 1105(D)–(F). However, the federal regulations do not distinguish between evaluation procedures for initial evaluations and reevaluations, suggesting that LEAs must use a variety of assessment tools for both types of evaluations. 34 C.F.R. § 300.304.
  • 9La. Bulletin 1508 § 1105(F)(1).

4.2.5 Independent Educational Evaluation

4.2.5 Independent Educational Evaluation aetrahan Fri, 03/03/2023 - 10:58

An Independent Educational Evaluation (“IEE”) is “an evaluation conducted by a qualified examiner who is not employed by the public agency who is responsible for the education of the student in question.”1  If a parent disagrees with an evaluation provided by the school district, the parent has a right to an IEE at public cost.2  The parent does not have to provide the LEA with the reason it disagrees with its evaluation and inquiring about the reason for the IEE request cannot be used as a method of unreasonably delaying the IEE.3  Once a parent requests an IEE, the LEA must without unnecessary delay either ensure that the IEE is provided at public expense or file a request for a due process hearing to show that the LEA’s evaluation is appropriate.4  Regardless of the LEA’s chosen course of action, it must provide the parent with information about where to obtain an IEE as well as the criteria for IEEs that the LEA has set.5  If the IEE is at public expense, the LEA may set criteria for the location of the IEE and the qualifications of the examiner so long as the LEA uses the same criteria for its own initial evaluations.6  The results of any IEE, whether or not provided at public cost, must be considered by the LEA if the parent shares the IEE and may be used as evidence at a due process hearing by either side.7  A parent is entitled to only one IEE at public expense per LEA evaluation.8

  • 1La. Bulletin 1706 § 503(A)(3)(a); 34 C.F.R. § 300.502(a)(3)(i).
  • 234 C.F.R. § 300.502(b)(1); La. Bulletin 1706 § 503(B)(1).
  • 334 C.F.R. § 300.502(b)(4); La. Bulletin 1706 § 503(B)(4).
  • 434 C.F.R. § 300.502(b)(2); La. Bulletin 1706 § 503(B)(2).
  • 5La. Bulletin 1706 § 503(A)(2).
  • 6Id. § 503(E).
  • 734 C.F.R. § 300.502(c); La. Bulletin 1706 § 503(C).
  • 834 C.F.R. § 300.502(b)(4); La. Bulletin 1706 § 503(B)(5).

4.3 Delivering Free & Appropriate Public Education

4.3 Delivering Free & Appropriate Public Education aetrahan Fri, 03/03/2023 - 11:00

4.3.1 The Individualized Education Program

4.3.1 The Individualized Education Program aetrahan Fri, 03/03/2023 - 11:00

The primary method of delivering a Free and Appropriate Public Education (FAPE) to special education students is through the development and implementation of an Individualized Education Program (IEP) that meets the student’s unique needs. Ultimately, “the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.”1  Accordingly, students with disabilities must receive special education and related services that “[a]re provided in conformity with” an IEP developed pursuant to the requirements established in special education regulations.2  On a more substantive level, “a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”3  The U.S. Fifth Circuit Court of Appeals has held that an IEP is reasonably calculated to provide meaningful educational benefit if a multi-factor analysis indicates: “(1) the program is individualized on the basis of the student's assessment and performance; (2) the program is administered in the least restrictive environment; (3) the services are provided in a coordinated and collaborative manner by the key ‘stakeholders’; and (4) positive academic and non-academic benefits are demonstrated.”4  An IEP that meets these four prongs should provide the academic and functional advancement that is central to FAPE.

Because not all children are capable of the same level of advancement, it can be a challenge to define appropriate progress in light of a child’s individual circumstances. In Endrew F. v. Douglas County School District, the Supreme Court recognized that while advancement from grade to grade is appropriately ambitious for most children in regular education, this may not always be the case for students in special education.5  Students in special education are nevertheless entitled to an appropriately ambitious educational program in light of their individual circumstances that grant them the opportunity “to meet challenging objectives” rather than simply to make de minimis progress.6  Thus, an IEP is appropriate only when the services and modifications allow for meaningful progress and educational benefit that is commensurate with a student’s capabilities.

In keeping with these requirements, an IEP has numerous components that must be developed, reviewed, and revised at least once a year at an IEP meeting in order to ensure the IEP is meeting a student’s unique needs.7  These key components are discussed in the following sections.

  • 1Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017).
  • 234 C.F.R. § 300.17; La. Bulletin 1706 § 905 (definition of Free Appropriate Public Education).
  • 3Endrew F., 137 S. Ct. at 999.
  • 4Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 253 (5th Cir. 1997).
  • 5Endrew F., 137 S. Ct. at 1000.
  • 6Id.
  • 7For a blank IEP template, see La. Dep’t of Educ., Individualized Education Program Form.

4.3.2 Academic & Functional Goals

4.3.2 Academic & Functional Goals aetrahan Fri, 03/03/2023 - 11:03

The IEP must include a statement of the student’s present levels of academic achievement and functional performance and a statement of the student’s measurable annual academic and functional goals.1  Functional goals are those that address needs in areas outside of traditional academic subjects. For example, a student in special education might have goals, also referred to as Instructional Plans, in areas such as Communication, Behavior, Social, Self-Help, Adaptive Physical Education, and Fine Motor Skills to address needs in those areas in addition to goals in traditional academic subjects. There must also be a description of how the team will measure progress towards meeting the student’s annual goals through periodic reports such as quarterly progress reports.2

  • 120 U.S.C. § 1414(d)(1)(A)(i)(II); La. Bulletin 1706 § 320(A)(1)–(2).
  • 220 U.S.C. § 1414(d)(1)(A)(i)(III); La. Bulletin 1706 § 320(A)(3).

4.3.3 Related Services

4.3.3 Related Services aetrahan Fri, 03/03/2023 - 11:04

The IEP must also include “a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable” and the “program modifications or supports for school personnel” that will allow appropriate advancement towards the student’s annual goals and progress in the general education curriculum.1  “Related Services” are “developmental, corrective, and other supportive services as are required to assist a student with a disability to benefit from special education.”2  The long, non-exhaustive list of related services enumerated in special education regulations include transportation, speech language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation (including therapeutic recreation), early identification and assessment of disabilities in students, counseling services, including rehabilitation counseling, orientation and mobility services, medical services for diagnostic or evaluation purposes, school health services and school nurse services, social work services in schools, and parent counseling and training.3  Generally, any related service for which there is a documented needed should be included as part of a student’s IEP.4  For some related services to be added to the IEP, however, there must be a finding in a special education evaluation that the student meets specific eligibility criteria for the service established in Louisiana Bulletin 1508.5  The related services for which a student must qualify through a special education evaluation are school health services, occupational therapy, orientation and mobility services, physical therapy, school psychological, school social work, and speech/language pathology services.6

  • 120 U.S.C. § 1414(d)(1)(A)(i)(IV); La. Bulletin 1706 § 320(A)(4).
  • 2La. Bulletin 1706 § 905 (defining Related Services); 20 U.S.C. § 1401(26)(A).
  • 3La. Bulletin 1706 § 905 (defining Related Services); 20 U.S.C. § 1401(26)(A).
  • 4La. Bulletin 1530 § 309(A).
  • 5Id.
  • 6La. Bulletin 1508 § 1501(B).

4.3.4 Accommodations & Other Supports

4.3.4 Accommodations & Other Supports aetrahan Fri, 03/03/2023 - 11:05

IEPs must include “a statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the student on state and district-wide assessments.”1  The IEP form used in Louisiana contains several pages of accommodations that the IEP team can select from for use in both classroom instruction and testing and in statewide assessments.2  The list of accommodations, which is not exhaustive, includes modifying the manner in which information is presented to the student; how the student’s response is collected; the timing and scheduling of instruction, tests, and assignments; and the instructional or testing setting for a student.3

Special education regulations also specify a number of supplementary aids and services that must be included in the IEP if determined to be necessary for the provision of FAPE. These supports can include a public or private residential placement, assistive technology devices and services for use at school and at home, nonacademic and extracurricular services needed to provide an equal opportunity for participation in those activities, and regular or special physical education services.4  IEPs can also include additional supports and services within attached Individual Health Plans, Parental Communication Plans, and Behavior Intervention or Support Plans. Thus, IEP teams have a wide array of modifications and supports available to ensure that special education students are receiving FAPE.

  • 1La. Bulletin 1706 § 320(A)(6); 20 U.S.C. § 1414(d)(1)(A)(i)(IV).
  • 2See La. Dep’t of Educ., Individualized Education Program Form 5–11.
  • 3See id.
  • 434 C.F.R. § 300.104­–.108; La. Bulletin 1706 § 104–­108.

4.3.5 Transition Services

4.3.5 Transition Services aetrahan Fri, 03/03/2023 - 11:07

Starting with the first IEP to be in effect once a student in special education turns sixteen, the IEP must contain a transition plan consisting of appropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills as well as the transition services, including courses of study, needed to assist the student in reaching those goals.1  Transition services are a coordinated set of activities designed to be within a results oriented process, that is focused on improving the academic and functional achievement of the student with a disability to facilitate the student’s movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.2

Transition services can include instruction, related services, and community experiences and should be based upon the student’s individual needs and account for the student’s strengths, preferences, and interests. Many districts and schools offer extensive vocational programs through which special education students may receive training and even industry certifications in popular career paths such as welding, cosmetology, mechanical, hospitality, technology, and entrepreneurship. The transition plans of students whose post-graduation aspirations include higher education might focus more on preparing the youth to meet admission requirements and assisting them with navigating the college application process. Other students may need transition plans that target the development of skills needed to live independently like using public transportation, managing finances, acquiring daily living skills, or accessing community services.  

  • 120 U.S.C. § 1414(d)(1)(A)(i)(VIII); La. Bulletin 1706 § 320(B).
  • 2La. Bulletin 1706 § 905 (defining Transition Services); 34 C.F.R. § 300.43(a)(1).

4.3.6 Extended School Year Services

4.3.6 Extended School Year Services aetrahan Fri, 03/03/2023 - 11:08

Students in special education may also be entitled to special education instruction and related services known as Extended School Year (“ESY”) services during the summer break.1  ESY services, however, are not meant to function as a summer school for any special education student who would benefit from additional instruction or services in the months between school years. Rather, ESY services are only available to a student in special education if the IEP team determines they are required for FAPE based on any of three specific criteria: Regression-Recoupment, Critical Point of Instruction, and Special Circumstances.2

Regression-Recoupment applies to students with significant cognitive disabilities when performance data demonstrates a pattern of problems with recouping performance on any objective or skill across any two breaks within the current IEP.3

Students can qualify for ESY under Critical Point of Instruction (“CPI”) in two ways. A student qualifies under CPI-1 if the student would be at risk of losing general education class time or of increasing special education service time because of a lack of academic or social skill development without ESY services.4  A student qualifies under CPI-2 if the student would be at risk of losing significant progress made toward acquisition, fluency, maintenance, and/or generalization of skills relevant in the pursuit of critical life areas like self-help, community access, or social and behavioral skills.5

Finally, a student can qualify for ESY services based on Special Circumstances for a number of different reasons, including the need to support older students so they can maintain a summer job, the need to maintain performance skills and prevent regression for students transitioning from Early Steps to preschool, the need to complete action steps that are part of a transition plan that have not been completed by the LEA by the end of the student’s final year in school, and the need to catch up on projected progress for students with excessive absences for health-related conditions.6  Special Circumstances also include a broad category of Extenuating Circumstances in which a student can qualify for ESY when unusual situations or circumstances create a need for ESY services, but the student does not meet other eligibility criteria.7  Extenuating Circumstances exist if there is a determination that a break in instruction will negatively impact or cause the student skill loss that will restrict the student’s ability to function as independently as possible.8

In conclusion, in order to provide FAPE to a special education student, an LEA must develop and faithfully implement an IEP that includes appropriately ambitious goals and the related services, modifications, and other supports needed to achieve those goals.

  • 134 C.F.R. § 300.106; La. Bulletin 1706 § 106.
  • 2La. Bulletin 1530 § 705(C).
  • 3Id. § 705(C)(1).
  • 4Id. § 705(C)(2)(b)(i).
  • 5Id. § 705(C)(2)(b)(ii).
  • 6Id. § 705(C)(3).
  • 7Id. § 705(C)(3)(e).
  • 8Id. § 705(C)(3)(e)(ii).

4.4 Education in the Least Restrictive Environment

4.4 Education in the Least Restrictive Environment aetrahan Fri, 03/03/2023 - 11:11

4.4.1 Basic Principles

4.4.1 Basic Principles aetrahan Fri, 03/03/2023 - 11:11

One of the IDEA’s main purposes is to prevent the segregation and exclusion of students with disabilities from public education, a practice that was all too common prior to the law’s enactment. To achieve this purpose, the IDEA mandates:

To the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.1

This substantive protection is known as the right to be educated in the Least Restrictive Environment (“LRE”). Notwithstanding the robust nature of this protection, courts have held that schools 

need not provide every conceivable supplementary aid or service to assist the child. Furthermore, the Act does not require regular education instructors to devote all or most of their time to one [disabled] child or to modify the regular education program beyond recognition

as part of the right to education in the LRE.2  At the same time, a student in special education should not be “removed form education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum.”3  To determine if a student in special education is being educated in the LRE, one must look to the placement listed on a child’s IEP and determine if the student could be educated in a less restrictive setting with the appropriate supplementary aids and services.

  • 120 U.S.C. § 1412(a)(5)(A); see also 34 C.F.R. § 300.114 (a)(2)(i); La. Bulletin 1706 § 114(A).
  • 2Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048 (5th Cir. 1989) (citations omitted).
  • 3La. Bulletin 1706 § 116(A)(5); 34 C.F.R. § 300.116(e).

4.4.2. Continuum of Alternative Placements

4.4.2. Continuum of Alternative Placements aetrahan Fri, 03/03/2023 - 11:14

LEAs administer their special education programs using a number of different delivery methods in various settings, but all LEAs must offer a continuum of alternative placements categorized according to the amount of time the special education student spends with nondisabled peers.1  The continuum of placements must include, in order of least restrictive to most restrictive, regular classes, special classes, special schools, residential facilities, and hospital/homebound instruction.2  Students who are educated in a regular class with their non-disabled peers for 80% or more of the day are said to be placed in a regular education setting.3  This type of setting is also commonly referred to as “inclusion” or “mainstreaming”.” Within a regular education setting, students can receive special education and services within the regular classroom, a model known as “push-in” services, or in a separate resource classroom, in a model known as “pull-out” services.4  More restrictive settings include a resource setting (40-79% of the day inside a regular class) and a self-contained setting (less than 40% of the day inside a regular class).5  The placement must be reviewed at least once a year at the annual IEP meeting, and a student cannot be placed in a more restrictive self-contained setting without first conducting an evaluation.

  • 134 C.F.R. § 300.115; La. Bulletin 1706 § 115(A).
  • 2La. Bulletin 1706 § 115(B)(1); La. Bulletin 1530 § 117; 34 C.F.R. § 300.115(b)(1).
  • 3La. Bulletin 1530 § 117(A)(1).
  • 4Id. § 117(A)(1)(a).
  • 5Id. § 117(A)(2)–(3).

4.4.3 Site Determination

4.4.3 Site Determination aetrahan Fri, 03/03/2023 - 11:15

The site determination (i.e., the particular school or type of classroom listed on a student’s IEP) is separate from but related to the student’s IEP placement. School districts will often concentrate a program or type of classroom for students with lower-incidence disabilities or needs at one or more school sites to serve students from across the district or regions of the district. To illustrate, one district may choose to create classrooms designed to serve the needs of children with severe or profound cognitive impairments at a few schools spread throughout the district. While allocating resources in this manner is allowable, a student should generally be assigned to a school as close as possible to the student’s home and should be educated in the school the student would attend if non-disabled unless the IEP requires some other arrangement.1  Site determination procedures require that students in special education “be placed in programs on the basis of their unique special education needs, not as a result of their particular disabling condition.”2  Furthermore, the LEA cannot base the placement or site determination either on its particular “special education delivery system or on the availability of related services.”3  For example, a school district should not place all students with Emotional Disturbance in the district’s alternative school for expelled students because that is the site where the district has chosen to place all of its social work and counseling services. Instead, the district should work to ensure those commonly needed services are available at schools throughout the district so students can go to the school in their zone of attendance.

  • 1La. Bulletin 1706 § 116(A)(2)–(3); 34 C.F.R. § 300.116(c).
  • 2La. Bulletin 1530 § 129(B)(1).
  • 3Id. § 129(B)(2).

4.5 Procedural Protections

4.5 Procedural Protections aetrahan Fri, 03/03/2023 - 11:16

4.5.1 Basic Principles

4.5.1 Basic Principles aetrahan Fri, 03/03/2023 - 11:16

The procedural safeguards contained in special education laws and regulations are essential to ensuring the substantive rights related to FAPE and education in the LRE are being provided to students with disabilities. At the heart of these procedural protections are requirements related to accessing educational records, parental participation, conducting IEP team meetings, and providing prior written notice of decisions related to the IEP and FAPE. It should also be noted that many of the procedural protections within the special education framework relate to heightened disciplinary safeguards for students with disabilities; this category of procedural safeguards is addressed elsewhere.1

  • 1On these heightened protections in the disciplinary context, see Section 8.5.

4.5.2 Access to Educational Records

4.5.2 Access to Educational Records aetrahan Fri, 03/03/2023 - 11:18

Parents of students with disabilities have the right to access their children’s educational records. Schools must “permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under these regulations.”1  In terms of timing, the LEA must comply with a request without unnecessary delay by providing requested records before any meeting regarding an IEP, due process hearing, resolution meeting, or Manifestation Determination meeting.2  “[I]n no case can the LEA take more than forty-five days to provide the records after the request has been made.”3

Additionally, a state statute known as the Louisiana Parents’ Bill of Rights for Public Schools grants all parents of public school children under 18 the right “[t]o inspect their child’s school records, and to receive a copy of their child’s records with ten business days of submitting a written request.”4  Under this law, electronic records must be provided at no charge, and any charges for hard copies must be reasonable and set forth in the official rules and regulations of the school’s governing authority.5  The law applies to academic records, medical or health records, records of mental health counseling, records of vocational counseling, discipline records, attendance records, records related to screening for exceptionalities, IEPs, IAPs, and any other student-specific file, document, or other materials maintained by the school.6

The most well-known law related to the right to access educational records is the federal Family Educational Rights and Privacy Act (“FERPA”). Under FERPA regulations, “education records” are records that are directly related to a student and that are maintained by an educational agency or institution or a party acting for or on behalf of the agency or institution. These records may be maintained in any form (e.g., hard copy or electronic) and include but are not limited to grades, transcripts, class lists, student course schedules, health records (at the K-12 level), student financial information (at the postsecondary level), and student discipline files.7  If a record contains identifying information for another student, the educational agency may release the records after redacting the other student’s personally identifiable information.8

  • 1La. Bulletin 1706 § 613(A); 34 C.F.R. § 300.613(a).
  • 2La. Bulletin 1706 § 613(A).
  • 334 C.F.R. § 300.613(a); La. Bulletin 1706 § 613(A).
  • 4La. R.S. 17:406.9(B)(2).
  • 5Id.
  • 6Id.
  • 734 C.F.R. § 99.2.
  • 834 C.F.R. § 99.31(b)(1).

4.5.3 Parental Participation

4.5.3 Parental Participation aetrahan Fri, 03/03/2023 - 11:20

Parents of students with disabilities have the right to participate in decisions related to their children’s education. First, parents must in general be afforded an opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of the student and the provision of FAPE to the student.1  Furthermore, parents are an integral member of the IEP team.2  As such, special education regulations require LEAs to “take steps to ensure that one or both of the parents of the student with a disability are present at each IEP team meeting or are afforded the opportunity to participate.”3  The LEA must provide parents with written notice of the meeting early enough to ensure they will have the opportunity to participate and must schedule the meeting at a mutually agreed upon time and place.4  A school may only proceed with an IEP team meeting without the presence of a parent if neither parent can attend and the LEA attempts to use alternative methods to ensure parent participation, such as telephone and video conferencing.5  If the LEA cannot convince the parent to attend after making reasonable efforts to schedule the meeting at a mutually agreed time and place and complying with notice requirements, it can proceed with the meeting but must keep detailed records of phone calls, correspondence, and visits made to the parents along with any responses received in an attempt to secure their participation. LEAs must also take whatever action is necessary, such as providing an interpreter to a parent with deafness or whose native language is not English, to ensure the parent understands what happens at an IEP meeting.6

Parents are also explicitly granted the right to participate in specific aspects of the evaluation and eligibility determination process, including SBLC meetings when decisions are made regarding their child, evaluation team meetings to consider the results of the data and determine eligibility, the initial IEP meeting, IEP meetings to discuss new concerns and to determine if a reevaluation is needed, and meetings for reevaluations to discuss the review of existing evaluation data to determine whether the student continues to have an exceptionality and continues to need special education and related services.7

  • 134 C.F.R. § 300.501(b); La. Bulletin 1706 § 502(B)(1).
  • 220 U.S.C. § 1414(d)(1)(B)(i); 34 C.F.R. § 300.321(a)(1); La. Bulletin 1706 § 321(a)(1).
  • 334 C.F.R. § 300.322(a); La. Bulletin 1706 § 322(A).
  • 434 C.F.R. § 300.322(a)(1)–(2); La. Bulletin 1706 § 322(A)(1)–(2).
  • 534 C.F.R. § 300.322(c); La. Bulletin 1706 § 322(C).
  • 634 C.F.R. § 300.322(e); La. Bulletin 1706 § 322(E).
  • 7La. Bulletin 1508 § 109(A).

4.5.4 IEP Meetings

4.5.4 IEP Meetings aetrahan Fri, 03/03/2023 - 11:22

An LEA has a maximum of 30 days to hold an IEP meeting and complete the initial IEP after a student has been found eligible for special education through the initial evaluation process.1  The special education and related services listed in the initial IEP must made available to the student as soon as possible but no later than 10 school days after the IEP is developed.2  Afterwards, an IEP team meeting must be held at least annually to review and revise the document, though meetings can occur more frequently if needed.3  At any point after an annual IEP meeting, an IEP can be amended by convening another IEP meeting.4  An IEP can also be amended without convening a new IEP meeting if the parent and LEA agree not to meet and instead choose to develop a written document to amend or modify the IEP.5

Some students are eligible for special education services through an Interim IEP even before the completion of the initial evaluation and a determination of eligibility. An Interim IEP must be developed for students with severe or low-incidence impairments documented by a qualified professional while the initial evaluation is being conducted.6  Interim IEPs may also be developed while the initial evaluation is being conducted for students who have been receiving special education services out of state, who have been out of school altogether, or who formerly received special education services and left public school without obtaining a state diploma.7

  • 1La. Bulletin 1530 § 105(A); La. Bulletin 1706 § 323(C)(1).
  • 2La. Bulletin 1530 § 105(A)(2)(b); La. Bulletin 1706 § 323(C)(2).
  • 3La. Bulletin 1530 § 111(B); La. Bulletin 1706 § 324(B).
  • 4La. Bulletin 1706 § 324(A)(6).
  • 5La. Bulletin 1530 § 113(A); La. Bulletin 1706 § 324(A)(4)(a).
  • 6La. Bulletin 1530 § 111(C). Low incidence impairments include hearing impairment, visual impairment, deaf-blindness, traumatic brain injury, moderate or severe intellectual disability, multiple disabilities, some cases of severe autism, orthopedic impairments, and significant health issues. See La. Bulletin 1508 § 307(B).
  • 7La. Bulletin 1530 § 111(C)(1)–(2).

4.5.5 Composition of the IEP Team

4.5.5 Composition of the IEP Team aetrahan Fri, 03/03/2023 - 11:25

In addition to one or both parents, the IEP team must be comprised of not less than one regular education teacher if the student is or may be participating in regular education, not less than one of the student’s special education teachers or providers, an officially designated representative (“ODR”) of the LEA, an individual who can interpret the instructional implications of evaluation results, any other individuals who have knowledge or special expertise regarding the student at the discretion of the parent or LEA, and the student with a disability, when appropriate.1  When it comes to invited members of the IEP team, the party who invited the individual to be a member of the IEP team is the party who determines whether that person has knowledge or special expertise regarding the student.2  Required members of the IEP team can be excused in whole or in part from attending the IEP team meeting if the parent and LEA agree in writing that attendance is not necessary because the member’s area of the curriculum or related services are not being modified or discussed at the meeting.3  The member can also be excused if the parent agrees in writing and the member submits, in writing to both the parent and the IEP team, input into the development of the IEP prior to the meeting.4

  • 134 C.F.R. § 300.321(a); La. Bulletin 1706 § 321(A).
  • 234 C.F.R. § 300.321(c); La. Bulletin 1706 § 321(7)(b).
  • 334 C.F.R. § 300.321(e)(1); La. Bulletin 1706 § 321(E)(1).
  • 434 C.F.R. § 300.321(e)(2); La. Bulletin 1706 § 321(E)(2).

4.5.6 Prior Written Notice

4.5.6 Prior Written Notice aetrahan Fri, 03/03/2023 - 11:26

A key procedural protection is that an LEA must provide Prior Written Notice to parents a reasonable time before the LEA initiates, changes, or refuses to initiate or change a student’s educational placement or the provision of FAPE to the student.1  In order for the notice to be sufficient, it must include:

  1. A description of the action proposed or refused by the agency.
  2. An explanation of why the agency proposes or refuses to take the action.
  3. A description of each evaluation procedure, assessment, record or report the agency used as a basis for the proposed or refused action.
  4. A reminder that parents have legal rights to procedural safeguards.
  5. Sources for parents to get a written copy of their legal rights.
  6. A description of other options that the IEP team considered and the reasons why those options were rejected.
  7. A description of any other factors that are relevant to the LEA’s proposal or refusal.2

The notice must be written in language understandable to the general public and in the native language or other mode of communication of the parent.3

  • 120 U.S.C. § 1415(b)(3); 34 C.F.R. § 300.503(a); La. Bulletin 1706 § 504(A).
  • 234 C.F.R. § 300.503(b); La. Bulletin 1706 § 504(B).
  • 334 C.F.R. § 300.503(c); La. Bulletin 1706 § 504(C). 

5 Informal Advocacy under the IDEA

5 Informal Advocacy under the IDEA aetrahan Fri, 03/03/2023 - 11:27

5.1 Evaluations & Eligibility Advocacy

5.1 Evaluations & Eligibility Advocacy aetrahan Fri, 03/03/2023 - 11:27

5.1.1 Requesting an Initial Evaluation

5.1.1 Requesting an Initial Evaluation aetrahan Fri, 03/03/2023 - 11:28

It is not uncommon to encounter parents who for years have been requesting a special education evaluation for their child to no avail or who have been raising concerns with teachers and school officials that should have triggered the Child Find duty but did not result in referral for an evaluation. In many instances, this issue can be resolved simply by writing a formal letter requesting an initial special education evaluation and sending it to appropriate school and LEA officials.1  The request can be sent to a school-level special education coordinator or principal, but it is also advisable to copy or address the letter to the appropriate official responsible for special education evaluations at the LEA level.2  Because an LEA is only required to respond within a reasonable time of its decision to initiate or refuse to initiate the evaluation process,3  the attorney should be prepared to follow up as needed until the LEA provides a response.

The initial evaluation request letter should include all information supporting the existence of any suspected disabilities, including a narrative of the academic, functional, and behavioral difficulties the student is having or has had and relevant medical or mental health information. Relevant medical or mental health records, reports, and evaluations should also be attached if the parent is willing to share them. If no outside evaluations have been conducted for the student, the attorney should consider asking the parent to obtain a private evaluation in any area that might be helpful to the eligibility determination. For example, the existence of a psychological evaluation diagnosing a student with ADHD, depression, or another mental health condition could facilitate the finding of eligibility under OHI or ED. Similarly, the recommendations in a private speech or occupational therapy evaluation can be helpful both for purposes of eligibility determination during the evaluation process and later on during the IEP development phase. While the LEA is not required to agree with these outside evaluations or accept their recommendations, the evaluation team must consider the information in private evaluations provided by the parent.4  Furthermore, these kinds of private evaluations are often available at no or minimal out-of-pocket expense to the parent through Medicaid or private insurance. The attorney should consider asking the parent to obtain these types of private evaluations as early in the representation as possible because scheduling the necessary appointments, completing the evaluations, and receiving the reports can take some time.

The suspected or potential exceptionalities that should be identified in the request letter can be determined by reviewing the definition of each exceptionality listed in Louisiana Bulletin 1508 and comparing the legal criteria for each category to the information obtained from the parent interview and the available student records. The attorney should err on the side of listing more rather than fewer potential exceptionalities to ensure a comprehensive evaluation. It may also be advisable to specify the areas of assessment or types of assessment tools that should be part of the evaluation. While almost every LEA conducts psychometric testing to assess for cognitive capacity and academic performance, other tools used to assess in more specialized areas such as autism, attention deficit and hyperactivity, or adaptive behavior may not be included in an initial evaluation unless specifically requested.

The LEA should not deny the request for an initial special education evaluation without first holding and inviting the parent to attend an SBLC or SAT meeting to discuss whether the child needs an evaluation due to a suspected disability.5  If the request is denied without a parent having attended such a meeting, the attorney should immediately request the convening of an SBLC meeting so that the parent can exercise the right to participate in meetings where decisions are made regarding the evaluation and identification of the parent’s child. Attendance at an SBLC meeting is an opportunity to make the case in person for an evaluation and to provide any additional information supporting the existence of a suspected disability. The SBLC is also another opportunity to shape the assessment plan and ensure that the LEA will assess the student in all areas of educational need for all suspected exceptionalities using a variety of appropriate assessment tools. If advocacy at the SBLC meeting is not successful, the only alternatives are to accept the decision or to resort to some type of formal dispute resolution.6

Sometimes, however, the LEA will not deny the request for evaluation outright, but instead will seek to delay the initiation of an evaluation indefinitely by referring the student for formal, tiered interventions known as Response to Intervention (“RTI”). The LEA may characterize the use of formal interventions as a necessary step prior to the referral of a student for a special education evaluation. If this is the case, the attorney should point out that the federal Office of Special Education Programs (“OSEP”) has unequivocally stated that “RTI strategies cannot be used to delay or deny the provision of a full and individual evaluation.”7  Furthermore, the IDEA clearly contemplates the use of RTI and other types of interventions as a part of the special education evaluation process rather than as a precondition for evaluation.8  If the interventions begin shortly after obtaining parental consent for the evaluation, there should not be any problem completing them within the normal timeline for evaluations. Possessing an in-depth understanding of evaluation procedures and eligibility criteria can be crucial to overcoming these types of delay tactics and denials so that the student obtains a timely and comprehensive initial evaluation.

  • 1A template letter for requesting an initial special education evaluation is provided in Section 9.
  • 2 The title of the appropriate official varies, but the position is often labeled as the head or coordinator of Pupil Appraisal, Child Find, Exceptional Student Services, Special Populations, or Special Education.
  • 334 C.F.R. § 300.503(a); La. Bulletin 1706 § 504(A).
  • 4See 34 C.F.R. § 300.503(C)(1); La. Bulletin 1706 § 503(c)(1); La. Bulletin 1508 § 507(A)(1) (requiring the LEA to use a variety of assessment tools and strategies for evaluations, “including information provided by the parent that may assist in determining whether the student has an exceptionality”).
  • 5La. Bulletin 1508 § 109(A)(1); 34 C.F.R. § 300.503(c)(1).
  • 6See Section 6 on formal dispute resolution under the IDEA.
  • 7See OSEP Memo 11-07, A Response to Intervention (RTI) Process Cannot Be Used to Delay-Deny an Evaluation for Eligibility under the Individuals with Disabilities Education Act (IDEA) (Jan. 21, 2011).
  • 820 U.S.C. § 1414(b)(6)(B) (“In determining whether a child has a specific learning disability, a local educational agency may use a process that determines if the child responds to scientific, research-based intervention as a part of the evaluation procedures.”).

5.1.2 Advocacy During the Initial Evaluation Process

5.1.2 Advocacy During the Initial Evaluation Process aetrahan Fri, 03/03/2023 - 11:31

Once the LEA has agreed to conduct a special education evaluation, the attorney should remain vigilant to ensure that the process moves forward in a timely manner and follows all required procedures. As the timeline for evaluations begins when the LEA obtains parental consent, the attorney should take the steps necessary to ensure that the parental consent form is provided, signed, and submitted promptly.1

Along with or as part of the parental consent form, a parent should also receive a list of all of the areas of assessment that will be included in the evaluation. It is important to review this list to ensure that the student will be assessed in all areas of concern and to request that appropriate areas of assessment be added if any have been left out. If there is any concern, it may be advisable to ask the LEA for an assessment plan that includes a list of the particular assessment tools that will be used in each area of evaluation. Some assessment tools are designed or normed for students in a particular age range or developmental level and others may be more or less appropriate for students who are culturally or linguistically diverse.2  In order to understand whether the assessments being used are appropriate and whether additional areas of assessment should be included in the evaluation, it is important for the attorney to research both the legal criteria for eligibility in each potential category of exceptionality and the instruments commonly used to assess for areas of need related to those exceptionalities.3  Although resolving concerns over the areas of assessment and assessment tools to be used may delay the start of the evaluation, it may be worth taking the time to address those issues on the front end to avoid the need to extend evaluation timelines for additional assessments towards the end of the evaluation process. Ensuring a comprehensive evaluation is important not only because failure to assess thoroughly could negatively affect the eligibility determination, but also because the information and recommendations contained in the evaluation will be used to drive the development of an appropriate IEP by providing an accurate picture of the student’s needs, strengths, and learning style.

After the evaluation timeline has begun, an attorney should remain in contact with the client to ensure the evaluation remains on track to be completed within 60 business days.4  Several weeks prior to the deadline for the completion of the evaluation, the attorney should reach out to schedule the dissemination/eligibility determination meeting and to request that a draft of the initial evaluation report be provided as far in advance of the meeting as possible so that the attorney can help the parent prepare to participate fully in the meeting. Upon receiving the draft evaluation report, the attorney should review it carefully to understand the recommendations, findings, and underlying data it contains.5  Although the final eligibility determination is not made until the conclusion of the dissemination meeting, the LEA’s position can often be divined from the draft report. If it appears the student will not be found eligible from the draft report, the attorney should be fully prepared to argue that the evaluation data, previous school records, outside evaluations and medical records, and information provided by parents and teachers support a finding that the student qualifies for special education under a particular exceptionality.

It is also possible for the evaluation team to find a student eligible for special education, but under an exceptionality with which the parent disagrees. For example, the LEA may wish to find a student eligible under the exceptionality of Emotional Disturbance (“ED”) while the parent might feel that the exceptionality of Other Health Impairment (“OHI”) is more appropriate. Although the exceptionality should not affect the IEP services and supports since those should be based on individual need, a parent might wish to avoid a label such as ED that carries a stigma. In such instances, it is once again important for the attorney to develop a mastery of both the legal criteria for each exceptionality, some of which are similar to one another, and the data, records, and history of the child.

If despite this advocacy the evaluation team still concludes that the student is not eligible for special education or is eligible under an exceptionality with which the parent disagrees, the attorney should consider requesting an IEE at public cost and resorting to formal dispute resolution to challenge the eligibility determination. 

5.1.3 Reevaluation Advocacy

5.1.3 Reevaluation Advocacy aetrahan Fri, 03/03/2023 - 11:40

In some cases, advocates may encounter special education students whose triennial reevaluations have been waived multiple times. In others, the “reevaluation” may consist of a one-page “check box” form that merely confirms that the student remains eligible for special education services after a review of records. Under both circumstances, obtaining a comprehensive reevaluation as soon as possible can provide valuable information for shaping appropriate IEP goals, services, and modifications. As with an initial evaluation request, a request for a reevaluation should be sent as a letter to the appropriate school official(s) via email along with any supporting documentation.1  The request for a reevaluation can also be combined with a request to add a particular IEP service, such as an assistive technology device or additional speech therapy minutes. As with the initial evaluation process, advocacy may be needed to ensure that the reevaluation is completed in a thorough and timely manner. If the LEA resists conducting a thorough reevaluation, the attorney should consider requesting an IEE at public cost and engaging in formal dispute resolution if needed to obtain the benefits of a proper reevaluation.

  • 1A template letter for requesting a special education reevaluation is provided in Section 9.

5.1.4 Obtaining an Independent Educational Evaluation

5.1.4 Obtaining an Independent Educational Evaluation aetrahan Fri, 03/03/2023 - 11:41

Requesting and obtaining an Independent Educational Evaluation (“IEE”) at public cost can be one of the most valuable tools for special education advocacy because of both the information and leverage it can provide. To request an IEE at public cost, an attorney should send a letter by email to the principal or head of special education for the school of attendance if the LEA is not already being represented by counsel in the matter.1  When a parent requests an IEE at public cost, an LEA must either provide it or request a due process hearing to prove the LEA’s initial evaluation was appropriate, both of which can be costly and undesirable alternatives for the LEA.2  As a result, IEEs can provide valuable leverage in negotiations when the LEA wants to avoid the costs of the IEE or the expenditure of time and resources involved in due process proceedings.

If the LEA refuses the request for an IEE at public cost, the attorney should prepare to refute the LEA’s contention that its own evaluation is appropriate at a due process hearing. Alternatively, the LEA might agree to the IEE at public cost but then set up roadblocks that effectively prevent the parent from obtaining the IEE. For example, the LEA may attempt to cap the cost of an IEE at a level well below the market price or require that the evaluators be selected from a list of providers of questionable independence. The only restrictions an LEA may only impose concern the location of the evaluation and the qualifications of the examiner; these restrictions must be the same as those used by the LEA for initial evaluations.3

LEAs sometimes attempt to provide the IEE at public cost by offering to reimburse parents for the price of the IEE, which can cost thousands of dollars. Clients who are not wealthy may be unable to pay up front and then wait for reimbursement. While the regulations do not specify this level of logistics, once an LEA agrees to the request for an IEE it must “ensure that an independent educational evaluation is provided at public expense.”4  Attorneys who encounters an LEA using these kinds of tactics should use their advocacy skills to negotiate a solution and force the LEA to meet its obligations under the law.

  • 1A template letter for requesting an IEE is provided in Section 9.
  • 2See 34 C.F.R. 300.502(b)(2); La. Bulletin 1706 § 503(B)(2).
  • 3La. Bulletin 1706 § 503(E).
  • 4Id. § 503(B)(2)(b); 34 C.F.R. § 300.502(b)(2)(ii).

5.2 IEP Advocacy

5.2 IEP Advocacy aetrahan Fri, 03/03/2023 - 11:42

5.2.1 Basic Principles

5.2.1 Basic Principles aetrahan Fri, 03/03/2023 - 11:42

Any dispute related to the provision of FAPE can in theory be resolved through effective advocacy during the IEP development process, which largely takes place during IEP team meetings. Because the IEP governs all aspects of a student’s education,1  the IEP team has broad authority to modify a student’s educational program in order to provide FAPE. With some clients, an annual IEP meeting or an IEP amendment meeting to discuss some specific aspect of the IEP may already be scheduled when the attorney becomes engaged in the representation. For others, the attorney may need to request an IEP meeting proactively to discuss adding, removing, or changing a specific aspect of the IEP or to overhaul the plan entirely. In all of these scenarios, intensive preparation and the use of well-honed negotiation skills are key to engaging in creative and successful IEP advocacy.

  • 1See 34 C.F.R. § 300.320; La. Bulletin 1706 § 320.

5.2.2 Preparing for the IEP Meeting

5.2.2 Preparing for the IEP Meeting aetrahan Fri, 03/03/2023 - 11:43

The first step is an in-depth review of all available educational, medical, and mental health records for the student. Looking back at IEPs for the past several years and evaluations going all the way back to the initial evaluation can provide valuable insight into the areas in which the student is struggling to make progress and the kind of additional support the student might need to succeed at school. It can also reveal patterns as to what has and hasn’t worked well for the student in the past. The attorney should catalogue the records in a manner that makes internal sense and create charts or other visual and organizational aids that will allow the attorney to access documents, remember key facts, and easily find information that will support the parent’s position or refute the LEA’s contentions during a fast-paced IEP meeting.  

After reviewing the records, the attorney should meet again with the client to discuss specific aspects of the IEP that could be modified to better meet the student’s needs. Armed with a deeper understanding of the student’s educational history and records, the attorney will be in a better position than during the initial interview to engage in client-centered counseling about strategies and solutions that could produce outcomes consistent with the client’s goals. Many parents already have an idea of specific changes they would like to see to their child’s educational program. Frequently, the main goal of representation will be to change the student’s educational placement to a particular classroom or to add or increase a related service like speech therapy or occupational therapy. Other times it might be to add a particular support or accommodation such as the services of a one-on-one paraprofessional or the use of assistive technology like an Augmentative and Alternative Communication (“AAC”) device. For all of these types of changes, an attorney must be able to point to supporting data and other information to help persuade the rest of the IEP team that the particular support or service being requested is needed to provide FAPE.

In most cases, however, the IEP can be improved beyond the more easily identified discrete changes that tend to be the initial focus of the representation. After all, the student is a complex person with many needs and strengths, and the attorney should help the parent to consider how each of the components of an IEP can be creatively shaped to meet the student’s individual needs. For example, a parent may not have known it was possible to request a parental communication plan as an accommodation.1   Another common area of deficiency in many IEPs is the lack of appropriate, measurable goals and learning objectives in each area of need. Some students may keep the same goals and objectives over several years, indicating a lack of progress. Other students may have goals that change annually to reflect the grade-level standards for the student’s new grade, but the data monitoring relating to the goals or short-term objectives show that the student is not making progress. For other students the goals might be so vague and poorly written that data monitoring is impossible and the student’s progress cannot be tracked. A number of online resources exist that can help an attorney learn how to assist in the development of “S.M.A.R.T.” goals that are specific, measurable, attainable, results-oriented, and time-bound.2

5.2.3 Requesting an IEP Meeting

5.2.3 Requesting an IEP Meeting aetrahan Fri, 03/03/2023 - 11:45

When one is ready to request an IEP meeting, one can do so by sending a letter via email to the principal or special education coordinator at the school the student attends.1  The letter can broadly request a meeting to review, revise, and discuss the IEP, or it can request changes to particular components of the IEP. A benefit of including specific requests regarding modifications to the IEP is that doing so triggers the parent’s right to receive prior written notice of any refusals or counter-proposals.

Another consideration is whether to invite other individuals to participate as members of the IEP team. Having a lay advocate, social worker, counselor, or other outside provider with specialized training or who has worked with the student and family for a long time can provide valuable insight and serve as an important ally during the IEP meeting. The attorney should also consider requesting that specific employees of the LEA be present if their presence would be helpful. For example, having a school psychologist or autism specialist from the district’s central office present if the IEP meeting will involve the development or review of a Behavior Intervention Plan (“BIP”) can lead to better results than relying on a teacher or school-level administrator to lead the drafting of the BIP. If someone whose presence would be helpful is unable to attend in person or for the entire meeting, the attorney should attempt to arrange for remote attendance via phone or videoconference or attendance for only part of the meeting. Of course, the attorney should also request an interpreter for the parent if needed.

Whether the student should be present for all or part of the IEP meeting is another factor to consider. The parent has the right to make the decision regarding the student’s presence if the student is under the age of majority, but it is generally advisable to have an older student present for at least part of the meeting to provide input and become invested in the educational program being designed. For example, it would be difficult to create a transition services plan without the student present since the plan must be based on the student’s preferences and interests.2  If the parent or student are concerned about the student’s ability to sit through the meeting because of the sensitive nature of the topics being discussed, boredom, or some other reason, the attorney should consider working out a signal so that the student can quietly be excused.

Prior to the IEP meeting, the attorney should work with the parent to draft a parental concern statement that thoroughly and accurately reflects and prioritizes the parent’s concerns with the student’s educational program and describes the desired changes to the IEP. The parental concern statement is the only part of the IEP that is meant to express the will of the parent alone rather than that of the IEP team as a whole. The statement can be read out loud or provided in hard or electronic copy so that it can be added verbatim to the IEP. Because it appears on the first page of the IEP form and so is usually discussed early, a thoughtful parental concern statement can set the tone of the meeting, although nothing expressed in the statement is binding on the LEA.

  • 1A template letter requesting an IEP meeting is provided in Section 9.
  • 234 C.F.R. § 300.43(a)(2); La. Bulletin 1706 § 905 (defining Transition Services).

5.2.4 Advocacy at the IEP Meeting

5.2.4 Advocacy at the IEP Meeting aetrahan Fri, 03/03/2023 - 11:47

At the IEP meeting, the attorney should endeavor to work collaboratively with the school-based members of the IEP team and keep the focus on the student’s needs.1  In many cases, emotions may run high due to a long history of acrimonious interactions between the parent and the school that preceded the attorney’s involvement. While an attorney must firmly defend the client’s interests, modeling professionalism and directing the focus of the conversation towards finding forward-looking solutions to the issues rather than assigning blame for past failures can be critical to obtaining the desired outcome. Additionally, the attorney and parent should avoid talking about the student’s “best interests” or what is “best” for the student because the legal basis for evaluating special education is whether a student’s program provides an appropriate education.

Although every member of the IEP team, including and especially the parent, has a voice and is able to provide input at IEP meetings, the IEP team is not a democracy. Ideally, the IEP team will arrive at decisions related to the IEP through consensus, but in Louisiana it is the LEA’s Officially Designated Representative (“ODR”) who ultimately determines what goes into an IEP. While a parent’s consent in the form of a signature on the consent page on the initial IEP is needed in order for special education services to begin, no such consent is needed for subsequent annual IEPs.2  As a result, a parent’s refusal to sign an IEP has no legal effect for the annual IEP, which becomes the official IEP when submitted through the state’s Special Education Reporting (“SER”) System.3

Despite the concentration of power being decidedly one-sided when it comes to IEP teams, the mere presence of an attorney can be helpful to the chances of reaching agreement and attaining desired outcomes for the parent at an IEP meeting. School officials understand that the involvement of an attorney increases the chances of having to deal with costly and time-consuming formal dispute resolution if no agreement is reached. Even more importantly, the involvement of an attorney often leads to the involvement of school officials with greater training and expertise and results in a more formal IEP meeting where more care is taken to consider parent input. A parent who is used to IEP meetings being brief encounters with a special education teacher and possibly one other school administrator at which the parent’s concerns are quickly dismissed may marvel that the first IEP meeting with an attorney may last for several hours, have in attendance nearly a dozen school-level and central-office level officials, and involve everyone at the table taking time to listen to and understand the parent’s concerns. Providing a platform for a parent’s voice to be heard is sometimes all that is needed for effective IEP advocacy.

6 Formal Dispute Resolution under IDEA

6 Formal Dispute Resolution under IDEA aetrahan Fri, 03/03/2023 - 11:49

6.1 Basic Principles

6.1 Basic Principles aetrahan Fri, 03/03/2023 - 11:50

When advocacy related to special education eligibility or services reaches an impasse, a number of formal dispute resolution mechanisms are available through the special education system at no cost to parents. These mechanisms are all in theory designed to be accessible to parents without the need for legal representation. In practice, however, the formal dispute resolution mechanisms vary in complexity and can be very intimidating to parents. Consequently, representation by counsel can dramatically increase the likelihood of success.

6.2 IEP Facilitation

6.2 IEP Facilitation aetrahan Fri, 03/03/2023 - 11:50

Although it is not required by the IDEA, IEP Facilitation is available to parents and LEAs in Louisiana when both agree that it would be valuable to have a neutral person, the IEP Facilitator, present at an IEP meeting to assist both sides in discussing and reaching agreement on issues regarding an IEP.1  The IEP Facilitator’s role is to assist in creating an atmosphere for fair communication and the successful drafting of the IEP.2  IEP Facilitation is a voluntary process so either party can request it, but both sides must agree to participate for the facilitator to be assigned.3  An attorney can request IEP Facilitation on behalf of a parent by mailing, faxing, or emailing the LDE with the completed request form available on its website.4

6.3 Mediation

6.3 Mediation aetrahan Fri, 03/03/2023 - 11:51

Either the LEA or the parent can ask the LDE to appoint a mediator to help resolve any special education dispute between the parties.1  Like IEP Facilitation, mediation is voluntary so both parties must agree to participate in the process.2  The mediator will be selected on a rotational basis from a list maintained by the LDE and must be knowledgeable about special education laws and regulations. The mediation may extend over multiple sessions.3  If the mediation process is successful, the result is a written, signed mediation agreement enforceable in court.4  The discussions that occur within the mediation process are confidential and cannot be used as evidence in subsequent due process hearings or civil proceedings.5  Mediation may be requested independently prior to engaging in other forms of formal dispute resolution or within the early resolution periods that are required as part of the formal written complaint or due process hearing procedures.6

  • 1La. Bulletin 1706 § 506.
  • 2Id. § 506(B)(1)(a).
  • 3Id. § 506(B)(5).
  • 4Id. § 506(B)(7).
  • 5Id. § 506(B)(8).
  • 6See id. § 510(A)(3)(b).

6.4 Formal Written Complaints

6.4 Formal Written Complaints aetrahan Fri, 03/03/2023 - 11:53

6.4.1 Filing the Complaint

6.4.1 Filing the Complaint aetrahan Fri, 03/03/2023 - 11:56

A formal written complaint is a dispute resolution mechanism that when filed against an LEA triggers a formal investigation by the LDE that culminates in written findings addressing each allegation in the complaint and any necessary corrective action the LEA must take if violations of special education laws or regulations are found.1  Formal written complaints can be filed by any organization or individual and do not have to allege violations with respect to a specific student, making it an ideal mechanism for challenging illegal policies and addressing systemic issues within an LEA.2

The LDE provides a Formal Complaint Request form on its website that includes sections for providing all of the required information along with instructions for submitting the complaint to the Legal Division.3  While the form is much too short to contain the factual allegations and proposed remedies necessary for a complete complaint, the form should be used as a cover page to which the substantive allegations of the complaint are attached.4  A copy of the complaint must be forwarded to an official of the LEA serving the student when it is filed with the LDE.5

In terms of content, a formal written complaint must include the following information: (1) a statement that a public agency has violated a requirement of the IDEA or state regulations; the facts on which the statement is based; (3) the signature and contact information of the complainant; (4) if alleging violations with respect to a specific student, the name and address of the student and the name of the school the student is attending; (5) a description of the nature of the child’s problem, including facts relating to the problem; and (6) a proposed resolution to the problem to the extent known and available to the party at the time of filing.6

The LDE will only investigate allegations of violations that occurred within a year prior to the submission of the complaint, so no facts related to earlier events should be included unless needed to provide essential context or background information.7  Formal written complaints should generally be as detailed as possible and include all supporting documentation and evidence of violations as attached exhibits.

  • 1See 34 C.F.R. § 300.152; La. Bulletin 1706 § 153.
  • 2See La. Bulletin 1706 § 152.
  • 3See La. Dep’t of Educ., Request for Special Education Formal Complaint Investigation.
  • 4A formal complaint may be structured and styled similarly to a due process hearing request complaint if desired. For an example of the latter, see Section 9.
  • 5La. Bulletin 1706 § 152(D).
  • 6Id. § 152(B).
  • 7Id. § 152(C).

6.4.2 The Complaint Process

6.4.2 The Complaint Process aetrahan Fri, 03/03/2023 - 11:58

Once a formal written complaint is filed, a 15-day early resolution period goes into effect during which the LDE will not commence its investigation.1  During this period, the LEA must follow its early resolution process.2  The early resolution process typically involves a meeting with the LEA’s Early Resolution Process representative to attempt to negotiate a resolution to the complaint.3  The parties may agree to extend the early resolution period in writing if additional time is needed.4

If the parties are unable to resolve the complaint or there is only a partial resolution, the LDE must complete its investigation of any unresolved allegations and issue a decision within 45 days of the expiration of the early resolution period.5  Extensions of this timeline are only possible if exceptional circumstances exist with regard to a particular complaint or if both parties agree to an extension for further attempts to resolve the complaint through negotiation.6

At the start of the investigation, the LDE will ask the LEA to provide any specific information needed within a reasonable time and give the LEA an opportunity to respond to the allegations or to offer a proposal to resolve the complaint.7  The complaining party will also be given an opportunity to provide additional information either orally or in writing.8  The LDE then reviews all relevant information and determines whether an independent on-site investigation is needed.9

At the conclusion of the investigation, the LDE must issue a written decision containing findings of fact and law for each remaining allegation of the complaint.10  If there is a finding that the LEA has failed to provide appropriate services, the available remedies include appropriate corrective action, such as compensatory services or monetary reimbursement, that address the student’s needs, and, if appropriate, remedies that address the future provision of services for all students with disabilities.11

If either party believes that the LDE has made an error in its findings, that party may submit a request for reconsideration within 10 days of receiving the investigation report.12  The reconsideration request cannot include any documents or other information not already submitted with the complaint or during the investigation process.13  Properly filed requests for reconsideration will be reviewed by a panel of individuals appointed by the director of the LDE’s legal division.14  The panel must issue a written decision within 30 days of receiving the reconsideration request, but the provision of FAPE and any required corrective action cannot be delayed or denied while the request for reconsideration is pending.15

If a formal written complaint contains any allegations that are also the subject of a pending due process hearing, the LDE will set aside any part of the complaint that is a subject of the due process hearing but will still resolve any other issues in the formal written complaint according to the normal procedures.16  If an issue raised in a formal written complaint has already been decided in a due process hearing, the due process hearing decision is binding and may not be reconsidered.17

  • 1La. Bulletin 1706 § 153(A).
  • 2Id. § 153(C)(1).
  • 3See id.
  • 4Id. § 151(C)(3). Such an extension would likely be necessary if the parties opt to attempt to resolve the complaint through mediation.
  • 5Id. § 153(A)(1)(b).
  • 6Id. § 153(F).
  • 7Id. § 153(A)(2).
  • 8Id. § 153(B).
  • 9Id. § 153(C).
  • 10Id. § 153(E).
  • 11Id. § 153(H).
  • 12Id. § 153(I).
  • 13Id. § 153(I)(4).
  • 14Id. § 153(I)(7).
  • 15Id. § 153(I)(7)–(9).
  • 16Id. § 153(G)(1).
  • 17Id. § 153(G)(2).

6.5 Due Process Hearings

6.5 Due Process Hearings aetrahan Fri, 03/03/2023 - 14:11

6.5.1 Filing Due Process Hearing Requests

6.5.1 Filing Due Process Hearing Requests aetrahan Fri, 03/03/2023 - 14:12

A due process hearing is the most complex and, in many ways, the most powerful formal dispute resolution mechanism available to parents. In Louisiana, a request for a due process hearing culminates in a trial before an Administrative Law Judge (“ALJ”), who adjudicates whether an LEA has violated a student’s right to FAPE and can order appropriate remedies for any violations found.

Due process hearings are narrower in scope than formal written complaints because they must relate to a specific student. Due process hearing requests may be filed to address any matter related to the identification, evaluation, educational placement, or provision of FAPE to a student with a disability.1  The ALJ’s authority, however, is generally limited to a substantive determination that a student was denied FAPE. The ALJ can only rule on procedural grounds when the procedural inadequacies impeded the student’s right to FAPE, impeded the parent’s opportunity to participate in the decision-making process regarding FAPE, or caused a deprivation of educational benefit.2

As with formal written complaints, due process proceedings have a 1-year prescriptive period. This means allegations must relate to violations that occurred not more than 1 year before the parent knew or should have known about an alleged action that forms the basis of the hearing request.3  The prescriptive period does not apply, however, if the parent was prevented from filing a request for a due process hearing due to specific misrepresentations by the LEA that it had resolved the problem or to the withholding of required information from the parent.4

To request a due process hearing, a parent must submit a written request to the LDE that includes: (1) the student’s name; (2) the student’s address; (3) the name of the school the student is attending; (4) in the case of a homeless student or youth, the available contact information for the student and the name of the school the student is attending; (5) a description of the nature of the problem of the student relating to the proposed or refused initiation or change, including facts relating to the problem; and (6) a proposed resolution of the problem to the extent known and available to the requestor at the time.5

The LDE’s Due Process Hearing Request form includes sections for providing all of the required information along with instructions for mailing, faxing, or emailing the request to the LDE’s Legal Division.6  As with the form for formal written complaints, the LDE form should be used as a cover page to which the substance of the request is attached. A copy of the request must also be forwarded to the special education director or superintendent of the LEA that is the subject of the due process hearing request.7

In theory, a due process hearing request does not have to be as extensive as a formal written complaint because there will be an opportunity to adduce testimony and additional evidence at the hearing. Nevertheless, an attorney representing a parent in a due process proceeding should draft a thorough request that presents the complete factual scenario and legal analysis of the alleged violations.8

6.5.2 Initial Pre-Hearing Procedures

6.5.2 Initial Pre-Hearing Procedures aetrahan Fri, 03/03/2023 - 14:16

Once the LDE receives the due process hearing request, the agency issues an acknowledgement of receipt, forwards a copy of the request to the other party, and transmits the request within 2 business days of receipt transmit the request to the Division of Administrative Law (“DAL”).1  The DAL will then send a letter to both parties notifying them that the request has been received and identifying of the docket number; the assigned ALJ; the deadlines for the mandatory resolution meeting and for the due process hearing decision; and the date, time, and call-information for a pre-hearing telephone conference with the ALJ. The first pre-hearing telephone conference is typically scheduled 2 to 3 weeks after the request is filed, so that it occurs after the deadline for the mandatory resolution meeting but prior to the expiration of the resolution period. Motions in due process proceedings can be filed by email with the DAL at Common motions such as a Motion to Enroll and subpoena requests can also be filed by electronic form available on the DAL website.2  Although special education laws and regulations do not reference the right to hold depositions and engage in other forms of discovery, the Louisiana Administrative Procedures Act that govern DAL administrative hearings does provide for these devices.3   

The LEA must file a written response to the due process hearing request within 10 days of receiving the request unless it has already provided full prior written notice to the parent regarding the subject matter of the request.4  The response must explain why the agency proposed or refused to take the action that is the subject of the due process hearing request; describe other options the IEP teams considered and the reasons why those options were rejected; describe each evaluation procedure, assessment, record, report, or any other factor the LEA used as a basis for its decision; and respond to each of the specific issues raised in the request.5

The LEA also has 15 days from receipt of the request to challenge its sufficiency based on failure to satisfy the content requirements set forth in the regulations.6  The ALJ must rule on such a challenge within 5 days; if the challenge is sustained, the hearing request may be dismissed.7  If no sufficiency challenge is filed within the 15 days, the request is deemed sufficient.8

A parent may amend the petition if the LEA consents in writing or if the ALJ grants permission, although the ALJ may only do so if the request is made at least 5 days before the due process hearing.9  If the request is amended under either scenario, the timelines for the resolution period begin anew.10

  • 1La. Bulletin 1706 § 508(A)(3)–(4).
  • 2For electronic DAL form motions, see La. Div. of Admin. L., Forms.
  • 3See La. R.S. 49:956. 
  • 4La. Bulletin 1706 § 508(F).
  • 5Id. § 508(F)–(G).
  • 6Id. § 508(D)(1).
  • 7Id. § 508(D)(2).
  • 8Id. § 508(D)(1).
  • 9Id. § 508(E)(1).
  • 10Id. § 508(E)(2).

6.5.3 The Resolution Period and Meeting

6.5.3 The Resolution Period and Meeting aetrahan Fri, 03/03/2023 - 14:20

An LEA must convene a resolution meeting with the parent within 15 days of receiving the due process hearing request.1  The resolution meeting does not have to occur if the parent and LEA agree in writing to waive it or both parties agree to use mediation instead.2  Otherwise, the meeting must be held between the parent and a representative of the LEA who has decision-making authority as well as any member of the IEP team with specific knowledge of the facts related to the due process hearing request.3  An LEA cannot bring an attorney to the resolution meeting unless the parent is also represented by counsel.4  The resolution period may be extended or the due process hearing request may be dismissed at the conclusion of the resolution period if the parent refuses to participate in the resolution meeting after reasonable, documented efforts by the LEA.5

Parties who are able to resolve the dispute must execute a legally-binding, written settlement agreement signed by the parent and a representative of the LEA with authority to bind the agency.6  The written settlement agreement may be voided within 3 business days; if not, it can be enforced in court or through a formal written complaint filed with the LDE.7

If the parent and school district are unable to come to a resolution within 30 calendar days of receipt of the request, the due process hearing timeline begins. In most instances, a final hearing decision must be reached and mailed not later than 45 days after the expiration of the resolution period.8  This means the hearing itself must be held sufficiently in advance of the deadline to give the ALJ time to reach and prepare the decision. The ALJ may extend the 45-day deadline at the request of either party.9

  • 134 C.F.R. § 300.510; La. Bulletin 1706 § 510(A)(1).
  • 2La. Bulletin 1706 § 510(A)(3).
  • 3Id. § 510(A)(1).
  • 4Id. § 510(A)(1)(b).
  • 5Id. § 510(B)(3)–(4).
  • 6Id. § 510(D)(1).
  • 7Id. § 510(D)(2)–(E).
  • 8Id. § 515(A).
  • 9Id. § 515(B). A template motion to extend the timeline for a due process hearing decision is provided in Section 9.

6.5.4 Expedited Due Process Hearings

6.5.4 Expedited Due Process Hearings aetrahan Fri, 03/03/2023 - 14:23

A parent is entitled to expedited due process hearing timelines when the request is filed as an appeal to a manifestation determination or is otherwise filed to challenge a disciplinary change of placement such as an expulsion, long-term suspension, or pattern of short-term suspension for a student with a disability.1  In such cases, the resolution meeting must be held within 7 calendar days of the LEA having received notice of the request, and the due process hearing must take place within 20 school days of the request being filed.2  The ALJ must make a determination with regard to the request within 10 school days after the hearing has concluded.3

  • 1See La. Bulletin 1706 § 532(A). For more detailed discussion of the heightened disciplinary protections for students with disabilities, see Section 8.5.
  • 2La. Bulletin 1706 § 532(C).
  • 3Id. § 532(C)(2).

6.5.5 The Right to Stay Put

6.5.5 The Right to Stay Put aetrahan Fri, 03/03/2023 - 14:24

A significant advantage to requesting a due process hearing is that it is the only dispute resolution mechanism that triggers the IDEA’s “Stay Put” provision. Stay Put refers to the procedural requirement that a student involved in a due process proceeding “remain in his or her current educational placement.”1  For example, if an LEA is proposing to place a child in a more restrictive setting such as a self-contained classroom or special school, the parent can file for a due process hearing to ensure that the student remains in the student’s current classroom setting during the pendency of proceedings. While the Stay Put protections should be self-executing, it may be necessary in some instances to file a motion with the ALJ to ensure the student is not moved.2  Because of the advantages of Stay Put in maintaining the status quo, a strategic request for a due process hearing filed prior to a change in a student’s placement should be considered whenever possible.

  • 134 C.F.R. 300.518(A); La. Bulletin 1706 § 518(A).
  • 2A template motion for a “Stay Put” order is provided in Section 9.

6.5.6 Hearing Procedures

6.5.6 Hearing Procedures aetrahan Fri, 03/03/2023 - 14:25

Once the resolution period ends, either party may request that the matter be set for hearing. Due process hearings are generally scheduled over the course of several days depending on the complexity of the matter and the quantity of issues, evidence, and witnesses involved. The hearing dates will be selected during a pre-hearing telephone conference, after which the ALJ will typically issue a scheduling order that establishes deadlines for filing a pre-hearing statement (as well as the content required in that statement) and the exchange of witness lists and hearing exhibits.1  All evidence and exhibits to be used at the hearing must be disclosed no later than 5 business days before the hearing.2

At the due process hearing, both parties have the right to be accompanied by legal counsel or individuals with special knowledge or training with respect to the education of students with disabilities.3  Each party has the right to present evidence and confront, cross-examine, and compel the attendance of witnesses.4  Unless otherwise specified in special education regulations, the hearing will be conducted according to the Division of Administrative Law Rules.5  As with other administrative hearings, hearsay is admissible.6  The burden of proof at a due process hearing is on the party seeking relief, which is usually the parent.7  After the hearing, parents may obtain a written or electronic verbatim record of the hearing and the findings of fact and decisions at no cost.8  A copy of the hearing decision will be mailed to each party by the original or extended timeline.9

If the due process hearing decision contains findings that the LEA violated a student’s right to FAPE, the ALJ may order the LEA to provide appropriate relief, including the provision of compensatory education and services. Compensatory education is an equitable remedy designed to rectify “an educational deficit created by an educational agency’s failure over a given period of time to provide a FAPE to a student.”10  An LEA must provide compensatory education in the amount and form necessary to place special education students deprived of FAPE “in the position they would have been in but for the violation of the Act.”11  Other typical remedies available through a due process hearing include reimbursement for out-of-pocket expenses by the parents for services that should have been provided by the LEA, changes to the IEP in a manner required for FAPE, and orders to implement the IEP or cease illegal practices being experienced by the student.

A parent who prevails at a due process hearing may apply to a court for reasonable attorneys’ fees as part of the costs of due process litigation.12  Attorneys’ fees could also be awarded to the LEA against the attorney when a parent requests a hearing for an improper purpose; when the request is frivolous, unreasonable, or without foundation; or when the attorney continues to litigate after the litigation clearly becomes so.13  Attorneys’ fees associated with the due process litigation will be awarded based on rates prevailing in the community for the kind and quality of services provided.14  Attorneys’ fees may not be awarded for any services performed subsequent to a written offer of settlement to the parent made at least 10 days before the hearing if the relief ultimately obtained by the parent is not more favorable than the offer of settlement.15

  • 1La. Bulletin 1706 § 511(I).
  • 2Id. § 512(A)(3), (B)(1).
  • 3Id. § 512(A)(1).
  • 4Id. § 512(A)(2).
  • 5See Division of Administrative Law Rules, LAC 1:III.101, et seq.
  • 6See La. Household Goods Carriers v. La. PSC, 99-3184 (La. 06/30/00), 762 So. 2d 1081.
  • 7La. Bulletin 1706 § 511(J).
  • 8Id. § 512(A)(4)–(5).
  • 9Id. § 515(A).
  • 10Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 523 (D.C. Cir. 2005).
  • 11Spring Branch Indep. Sch. Dist. v. O.W., 961 F.3d 781, 800 (5th Cir. 2020) (citing Reid, 401 F.3d at 518).
  • 12La. Bulletin 1706 § 517(A).
  • 13Id. § 517(A)(1)(b)–(c).
  • 14Id. § 517(C).
  • 15Id. § 517(C)(2).

6.5.7 Appeals

6.5.7 Appeals aetrahan Fri, 03/03/2023 - 14:30

If a parent disagrees with the due process hearing decision or findings, the parent may appeal by bringing a civil action in any state or federal district court of competent jurisdiction within 90 days of the ALJ’s decision.1  The court may hear additional evidence and will base its decision based on a preponderance of the evidence, granting the relief it determines to be appropriate.2

  • 1La. Bulletin 1706 § 516(A)–(B).
  • 2Id. § 516(C).

7 Section 504

7 Section 504 aetrahan Fri, 03/03/2023 - 14:31

7.1 Introduction

7.1 Introduction aetrahan Fri, 03/03/2023 - 14:31

Section 504 of the Rehabilitation Act of 1973 (“Section 504”)1  is a federal civil rights statute that prohibits discrimination against students with disabilities:

No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .2

Because every public school and school district receives some form of federal funding, Section 504 applies to all school districts and all public schools, including public charter schools.  

In addition to its broad protection against discrimination in schools, Section 504 also requires school districts to provide a free appropriate public education (FAPE) to each qualified student with a disability. Under Section 504, FAPE includes regular or special education and related aids and services designed to meet the individual educational needs of a child with a disability as adequately as the needs of nondisabled students.3  Children who are found eligible under Section 504 are entitled to many of the same substantive rights and protections as students who qualify under IDEA, such as the right to FAPE in the least restrictive environment and the right to heightened disciplinary protections. Students eligible under Section 504 are provided with a 504 Plan that outlines the modifications, accommodations, and specialized services that will support them in school.

Section 504 also provides a broad spectrum of protections against discrimination in non-academic settings, including before and after-school programs, field trips, extra-curricular activities, and athletics.4  School districts must provide reasonable accommodations to allow children with disabilities to participate in these activities.5  Likewise, under Section 504, school districts are required to ensure that students and others with disabilities, including parents, are not denied access to the school’s programs or activities because of inaccessible facilities, such as school buildings, walkways, bathrooms, athletic facilities, and parking spaces.6  Finally, Section 504 also provides important protections to students with disabilities to be free from bullying and harassment based on disability.7  More information on these important protections can be found in the Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools, issued by the Office for Civil Rights, the federal enforcement agency for Section 504.8

  • 129 U.S.C. § 794; 34 C.F.R. pt. 104. For more information on the requirements of Section 504 in schools, see U.S. Dep’t of Educ., Off. for Civ. Rts., Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools (2016).
  • 2See 29 U.S.C. § 794.   
  • 334 C.F.R. § 104.33(b)(1).
  • 434 C.F.R. § 104.37. For more information, see U.S. Dep’t of Educ., Off. for Civ. Rts., Students with Disabilities in Extracurricular Athletics (Jan. 25, 2013).
  • 534 C.F.R. § 104.37.
  • 634 C.F.R. §§ 104.22–.23; 28 C.F.R. §§ 35.150–.151.
  • 734 C.F.R. § 104.4; see also U.S. Dep’t of Educ., Off. for Civ. Rts., Responding to Bullying of Students with Disabilities, (Oct. 21, 2014).
  • 8This guide is available here. OCR also enforces Title II of the ADA, but does not enforce the IDEA. The Office of Special Education and Rehabilitative Services (OSERS) within the U.S. Department of Education is responsible for administering the IDEA. However, OCR does enforce the Section 504 and Title II rights of IDEA-eligible students with disabilities.

7.2 504 Eligibility

7.2 504 Eligibility aetrahan Fri, 03/03/2023 - 14:35

7.2.1 Students with Disabilities

7.2.1 Students with Disabilities aetrahan Fri, 03/03/2023 - 14:35

The definition of a “student with a disability” under Section 504 is different from the IDEA definition, although there is overlap between them. To be eligible under Section 504, a child must have or be regarded as having a physical or mental impairment that substantially limits one or more major life activity.1  A physical and mental impairment is defined broadly as:

(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito‑urinary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.2

This is not intended to be an exhaustive list of specific diseases and conditions that may constitute a physical or mental impairment. While a medical diagnosis or diagnoses is helpful to show that a student has a physical or mental impairment, Section 504 does not require a medical diagnosis for a student to qualify for services. As a result, a school district cannot require that a student have a medical assessment in order to qualify under Section 504.3

A physical or mental impairment by itself is not enough; the impairment must also substantially limit one or more of a student’s major life activities, which can include walking, seeing, hearing, speaking, breathing, eating, learning, reading, concentrating, thinking, communicating, working, caring for oneself, and performing manual tasks.4  Again, this list is not exhaustive. While learning is a major life activity, schools must consider how a student’s impairment affects any major life activity, not merely the ability to learn.5  This can be an important as schools commonly cite a student’s passing grades or scores on standardized tests as indications that the student is learning and therefore does not qualify for a 504 Plan. To that end, OCR has made it clear that a child may have a disability and be eligible for Section 504 services even if the child is succeeding academically.6

  • 129 U.S.C. § 705(9)(B), (20)(B). A student can also be eligible under Section 504 if the student has a record of a physical or mental impairment. 29 U.S.C. § 705(20)(B).
  • 2See 34 C.F.R. § 104.3(j)(2)(i).
  • 3If the district determines that medical assessment is necessary in order to determine whether a child is eligible under Section 504, the school district is responsible for paying for the assessment.
  • 4See 34 C.F.R. § 104.3(j)(2)(ii). Major life activities also include all major bodily functions, such as the functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. 42 U.S.C. § 12102(2)(B).
  • 5See Off. for Civ. Rts., U.S. Dep’t of Educ., Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools 5 (2016).
  • 6Id.

7.2.2 Section 504 v. IDEA

7.2.2 Section 504 v. IDEA aetrahan Fri, 03/03/2023 - 14:38

Both Section 504 and IDEA are laws with the purpose of protecting the rights of students with disabilities in public education systems and schools. However, because Section 504 defines disability much more broadly than IDEA,1  Section 504 protects many students who are not eligible for special education services under the IDEA. In fact, some students who are referred for IDEA evaluations but do not meet the eligibility criteria may still qualify for services under Section 504. Importantly, all students who receive special education services under IDEA are also automatically covered under Section 504. However, not all students who qualify under Section 504 are eligible under the IDEA.

When a student is protected by both the IDEA and Section 504, the student will almost always have an IEP and not a 504 Plan as an IEP can include the accommodations and modifications that a 504 Plan would, plus specialized instruction and other important services and protections.

7.3 Protections Under Section 504

7.3 Protections Under Section 504 aetrahan Fri, 03/03/2023 - 14:40

7.3.1 Evaluation for Eligibility

7.3.1 Evaluation for Eligibility aetrahan Fri, 03/03/2023 - 14:40

Similar to the IDEA’s Child Find duty, Section 504 also requires school districts to evaluate students suspected of having a disability and being in need of accommodations.1  Additionally, parents can request an evaluation if they suspect their child may have a disability. This request does not have to be in writing, but best practice is to make the request in writing to document it in case a dispute arises later.2  The law does not require that the request be submitted to a specific person, but it can be helpful to copy the request to multiple school officials, including officials responsible for 504 evaluations at both the school and district level, such as the district and/or school 504 Coordinator, the chair of the School Building Level Committee (SBLC) at the school, and/or the school principal.

Before initiating a 504 evaluation, the school district must get the parent’s consent.3  Unlike the IDEA, Section 504 does not lay out specific evaluation procedures, timelines, or assessments,4  but school districts do have to establish evaluation standards and procedures. Under the Section 504 regulations, a school district must evaluate the child in all suspected areas of need and all tests and other evaluation materials used must be administered by trained personnel, be validated for the specific purpose for which they are used, and draw upon information from a variety of sources.5  The information sources relevant to a 504 evaluation include aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior.6  This also includes information from non-school sources, such as medical or mental health diagnoses. The evaluation procedures school districts adopt must ensure that information obtained from all such sources is documented and carefully considered and that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options.7  School districts may but do not have to use the same evaluation procedures for 504 Plan eligibility that they use to determine eligibility for special education.8

After a student is found eligible, Section 504 requires that school districts conduct periodic reevaluations of students with disabilities, but does not specify how often.9  In Louisiana, school districts follow the same three-year reevaluation timeline set out in the IDEA. Additionally, Section 504 requires a reevaluation before any significant change in placement, including exclusionary discipline of more than 10 school days.10  OCR also considers the transfer of a student from one type of program to another, such as moving a student from a general education class to a self-contained special education class or terminating or significantly reducing a related service, to be a significant change in placement.11

  • 134 C.F.R. § 104.35(a).
  • 2Requesting an evaluation via email is an easy way of preserving a record of the evaluation request.
  • 3U.S. Dep’t of Educ., Off. for Civ. Rts., Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools 19 (2016).
  • 4If a student who undergoes an evaluation under the IDEA is found ineligible under the IDEA, the IDEA evaluation may be used to qualify the student under Section 504 if eligibility criteria are met.
  • 534 C.F.R. § 104.35(b).
  • 6Id. § 104.35(c).
  • 7Id.
  • 8In practice, 504 evaluations often merely consist of a one-page document listing the student’s medical diagnoses, grades, and/or standardized test scores. If a parent is seeking thorough academic, cognitive, and/or behavioral testing, it may be helpful to request a special education evaluation under IDEA as discussed in Section 4.2.3. Even if the student does not qualify under IDEA, the testing done in the evaluation may qualify them under Section 504.
  • 934 C.F.R. § 104.35(d).
  • 10Id. § 104.35(a). For a further discussion of disciplinary protections under Section 504, see Section 8.5.
  • 11U.S. Dep’t of Educ., Off. for Civ. Rts., Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools 22–23 (2016).

7.3.2 The 504 Plan

7.3.2 The 504 Plan aetrahan Fri, 03/03/2023 - 14:46

Once a student is determined to be eligible under Section 504, the school district must provide a “free appropriate public education” (FAPE) to that student regardless of the nature or severity of the student’s disability. Under Section 504, FAPE consists of the provision of regular or special education and related aids and services designed to meet the student’s individual educational needs as adequately as the needs of nondisabled students are met.1

A group of people knowledgeable about the student, commonly referred to as the “504 Team,” meet to determine what accommodations and services the student needs in order to meet the student’s individual educational needs. While Section 504 does not explicitly require that a parent be part of the team making these decisions, it is considered best practice to invite parents and encourage them to participate in 504 Team meetings.

While Section 504 does not explicitly require a written plan to document the provision of FAPE to an individual student (unlike the IDEA requirement of an IEP), Louisiana schools are required to create a written plan referred to as an Individual Accommodation Plan (“IAP”) or, more commonly, a “504 Plan.”2  The 504 Plan should outline all the modifications, accommodations, and specialized services that will be provided to help a student learn and participate in school activities. Examples of common accommodations and services include extended time, preferential seating, extra breaks throughout the day, separate setting for tests, access to audiobooks, large-print texts, calculators, tutors, note-takers, one-on-one aides, assistive technology, counseling services, speech therapy, and occupational therapy. This list is not exhaustive, and all accommodations and services must be individualized to the student’s specific needs. While in theory a 504 Plan could include any accommodation or service needed to provide FAPE, the 504 Plan form used in Louisiana is really just check-boxes of standard accommodations such as some of the ones listed above. Additionally, unlike an IEP, the form does not contain sections to put detailed information about the child nor does it contain goals or mechanisms for measuring student progress.

Finally, as under the IDEA, students with disabilities under Section 504 must be educated with their non-disabled peers to the maximum extent appropriate.3  Section 504 regulations explicitly state that a student with a disability must be placed in the general education setting unless the school district can demonstrate that educating the student with a disability “in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily.”4  Placement is determined by the 504 Team.

  • 134 C.F.R. § 104.33(b)(1).
  • 2A blank Individualized Accommodation Plan (or 504 Plan) template is available on the LDE’s website. La. Dep’t of Educ., Section 504 Individual Accommodation Plan (June 14, 2019).
  • 334 C.F.R. § 104.34(a).
  • 4Id.

7.4 Dispute Resolution

7.4 Dispute Resolution aetrahan Mon, 03/06/2023 - 14:29

7.4.1 At the School District Level

7.4.1 At the School District Level aetrahan Mon, 03/06/2023 - 14:30

Under Section 504, school districts are required to establish and implement a system of procedural safeguards to allow parents to appeal decisions and make complaints regarding the identification, evaluation, or educational placement of students with disabilities. Procedural safeguards include notice, an opportunity for records review by parents, an impartial due process hearing with an opportunity for participation by the student’s parents and representation by counsel, and a review procedure.1

Section 504 does not provide any further detail about what the impartial due process hearing must look like. The creation of grievance procedures, including an impartial hearing process, are left to the LEAs. Therefore, each LEA’s policies may differ significantly, and it is of the utmost importance to research and become familiar with the specific 504 grievance/hearing policies in the student’s district. While the law requires an “impartial due process hearing,” in Louisiana this is not the same as an IDEA due process hearing before an Administrative Law Judge. Instead, it is typically a hearing in front of a district-level 504 administrator within the student’s school district.

The policies and procedures regarding 504 grievances/hearings should be outlined in the school district’s policies and handbook and made available online or upon request. Note that it is important to adhere to all of the procedural requirements and timelines stated in the district’s specific grievance procedure.

  • 134 C.F.R. § 104.36.

7.4.2 Beyond the School District Level

7.4.2 Beyond the School District Level aetrahan Mon, 03/06/2023 - 14:31

Alternatively, or in addition to, pursuing dispute resolution at the school district level, parents may also file a complaint regarding a school district’s violations of Section 504 requirements with the Office for Civil Rights.1  Complaints must generally be submitted within 180 days of the last act of discrimination.2

Anyone can file a complaint with OCR using OCR’s electronic complaint form.3  A complaint can also be filed by mail, fax, or over the phone. When OCR receives a complaint, it will investigate the situation to determine whether federal law has been violated. If it finds a violation, OCR will initially attempt to bring the school district into voluntary compliance through negotiation of a corrective action agreement. If OCR is unable to achieve voluntary compliance, OCR may initiate enforcement action either by (1) starting administrative proceedings to terminate Department of Education financial assistance to the recipient; or (2) referring the case to the Department of Justice for judicial proceedings.

In addition, a person may at any time file a private lawsuit against a school district for violations of Section 504. Unlike the IDEA, Section 504 regulations do not contain a requirement that a person exhaust administrative remedies before filing a private lawsuit.4

  • 1This process is separate and distinct from the district-level grievance process. A complainant is not required by law to use the institutional grievance process before filing a complaint with OCR.
  • 2Complainants can request a waiver of this time period for an event occurring more than 180 days ago, but must show good cause why they did not file the complaint within the 180-day period.
  • 3For this form, see OCR Complaint Forms – Electronic and PDF Versions, U.S. Dep’t of Educ.
  • 4This area of the law is very complicated. Federal courts have held that sometimes Section 504 claims must be exhausted if they overlap with IDEA claims. The law is not well-settled and varies by jurisdiction, so it is important to research into the state of the law in your jurisdiction and consult with attorneys with expertise in this area before filing a Section 504 lawsuit.

8 School Discipline

8 School Discipline aetrahan Mon, 03/06/2023 - 14:32

8.1 Introduction

8.1 Introduction aetrahan Mon, 03/06/2023 - 14:32

The term “school discipline” refers to a wide range of actions schools can take in response to student behavior that violates the rules set out in a student code of conduct and other disciplinary policies. While the most common school discipline consequences include detention, suspension, and expulsion, there are other disciplinary actions schools can take such as parent conferences, referral to counseling, peer mediation, restorative justice practices, referral to the school building level committee for consideration of a special education evaluation, and loss of privileges. While Louisiana law authorizes many types of school discipline, the focus of this chapter will be exclusionary discipline, specifically out-of-school suspensions and expulsions, because this is where the law provides heightened protections to students. As a result, this is where legal advocacy for students can and does have the greatest impact.

Additionally, it is important to recognize that exclusionary school discipline disproportionately impacts students of color and students with disabilities. During the 2017-2018 school year, nationally, African-American students were suspended and expelled at rates that were more than twice their share of total student enrollment.1  Although accounting for only 15.1% of total student enrollment, African-American students accounted for 38.8% of expulsions with educational services and 33.3% of expulsions without educational services. Likewise, African American students accounted for 31.4% of students receiving one or more in-school suspensions and 38.2% of students receiving one or more out-of-school suspensions. Students with disabilities are also overrepresented in exclusionary discipline. During the 2017-2018 school year, students with disabilities under the IDEA represented 13.2% of the total student enrollment nationally, but received 23.3% of all expulsions with educational services and accounted for 20.5% of students receiving one or more in-school suspensions and 24.5% of students receiving one or more out-of-school suspensions. These disparities grow even starker when the data is merged. For example, nationally, African-American students with disabilities under the IDEA accounted for only 2.3% of total student enrollment, but received 6.2% of one or more in-school suspensions and 8.8% of one or more out-of-school suspensions.

These disparities matter because it is well documented that students who are subjected to exclusionary discipline such as suspensions and expulsions are more likely to suffer a wide-range of negative educational and long-term outcomes including missed instructional time, decreased academic achievement, dropping out of school, and involvement in the juvenile or criminal justice systems—also known as the school-to-prison pipeline.2  Importantly, representation by an attorney or advocate in school discipline proceedings can lead to more favorable outcomes for the individual student, serve to interrupt the school-to-prison pipeline, and impact the larger systemic inequities students of color and students with disabilities face in school.

8.2 Constitutional Requirements

8.2 Constitutional Requirements aetrahan Mon, 03/06/2023 - 14:34

In Goss v. Lopez, the U.S. Supreme Court recognized that students facing out-of-school discipline are entitled to due process protections.1  The Court began by noting that students have both a property and a liberty interest in their education.2  The former arises from state constitutional provisions requiring free public education, while the latter is based on the fact that disciplinary infractions on a student’s record may inflict reputational damage and impact further education and employment opportunities.3  The Court then concluded that the right to a free public education cannot be taken away through exclusionary discipline without providing the student with basic due process protections.4  Evaluating the particular issue at play in Goss, the Court held that for a suspension of less than 10 days, due process requires that the student be given “oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.”5

Goss did not decide how much process was required for expulsions or suspensions longer than 10 days. Instead, the Court observed that “[l]onger suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures.”6  In light of this, courts have typically held that students are entitled to a sliding scale of due process protections based on the severity and length of the exclusionary discipline they face. For example, while due process does not require a hearing in front an impartial decision-maker for a short-term suspension, due process does require such a hearing when a student is recommended for expulsion.

Note that the constitutional due process protections outlined in Goss represent the minimum protections that must be afforded to students facing exclusionary discipline; state law and school district policies can provide greater protections.

  • 1Goss v. Lopez, 419 U.S. 565 (1975).
  • 2Id. at 573–77.
  • 3Id.
  • 4Id. at 578, 581.
  • 5Id. at 581.
  • 6Id. at 584.

8.3 Louisiana’s Discipline Regime

8.3 Louisiana’s Discipline Regime aetrahan Mon, 03/06/2023 - 14:36

8.3.1 Basic Principles

8.3.1 Basic Principles aetrahan Mon, 03/06/2023 - 14:37

La. R.S. 17:416 governs school discipline in Louisiana. It sets out the reasons for which public schools may discipline students, the types of disciplinary consequences schools may assign and the procedural requirements that schools must follow. Each school district then creates its own disciplinary code and policies, which must be consistent with La. R.S. 17:416. While the statute outlines numerous offenses that can result in suspensions and expulsions, school districts have the leeway to enact policies that proscribe additional behaviors.

Importantly, schools can only discipline students for behavior that occurs in school, on the street or road while going to or returning from school, on a school bus, or at a school-sponsored activity or function.1  Schools cannot discipline students for off-campus behavior that is unrelated to school.

  • 1See La. R.S. 17:416(A)(1)(a).

8.3.2 Suspensions

8.3.2 Suspensions aetrahan Mon, 03/06/2023 - 14:38

Under La. R.S. 17:416, a student may be suspended from school or the school bus for any of the following offenses: willful disobedience; intentional disrespect or false charges made against a school employee; using profane language; tobacco, alcohol, or drug use, unless of a prescribed drug with evidence of a prescription; disturbing the school or habitually violating any rule; defacing school property; writing profanity or obscenity; carrying firearms, knives, or any other weapons, unless for school use; throwing missiles; fighting; violating safety and traffic rules; leaving school grounds, class, or detention without permission; habitual tardiness or absences; bullying; or any other serious offense.1  Note that La. R.S. 17:416 explicitly prohibits the discipline of a student for reasonable self-defense.2

For all out-of-school suspensions, the student must be advised of the “particular misconduct of which he is accused as well as the basis for such accusation.”3  The student must also be “given an opportunity at that time to explain his version of the facts to the school principal or his designee.”4  Additionally, the school must contact the parent/legal guardian of the student by telephone, electronic communication, or mail and give notice of the suspension, the reasons for the suspension, and the date and time for a conference with the principal (or designee) as a requirement for readmitting the student.5  The parent is required to attend the conference for the student to be readmitted to school, and failure to attend the conference can result in truancy charges against the parent.6  The parent has the right to appeal the suspension to the district superintendent (or designee) who will conduct a hearing on the merits and whose decision is final.7

Importantly, any “student who is suspended for ten days or fewer shall be assigned school work missed while he is suspended and shall receive the same credit originally available for such work if it is completed satisfactorily and timely as determined by the principal or his designee, upon the recommendation of the student's teacher.”8

  • 1See La. R.S. 17:416(A)(3)(a).
  • 2See La. R.S. 17:416(H) (“[N]o student shall be disciplined in any manner . . . for the use of force upon another person when it can be reasonably concluded that the use of such force more probably than not was committed solely for the purpose of preventing a forcible offense against the student or a forcible offense provided that the force used must be reasonable and apparently necessary to prevent such offense.”).
  • 3La. R.S. 17:416(A)(3)(b)(i).
  • 4Id. There is an exception where a student can be immediately removed from the school premises with the benefits of these due process protections where the student’s presence at the school poses a continued danger to any person or property or an ongoing threat of disruption to the academic process. However, the necessary procedure must be provided as soon as practicable following the student’s removal. Id.
  • 5Id.
  • 6Id.
  • 7La. R.S. 17:416(A)(3)(c).
  • 8La. R.S. 17:416(A)(3)(e).

8.3.3 Expulsions

8.3.3 Expulsions aetrahan Mon, 03/06/2023 - 14:42

Under La. R.S. 17:416, a student may be recommended for expulsion for any of the same offenses for which a suspension is authorized.1  However, the statute provides that “expulsions shall be reserved for the major tier of behavioral infractions involving weapons or drugs, or when the safety of students and staff has been put in jeopardy.”2  In fact, expulsion must be recommended for any student who possesses a firearm, a knife with a blade longer than 2 inches, or another dangerous weapon, or who possesses, distributes, sells, gives, or loans any controlled dangerous substance.3  Additionally, a student may be expelled upon the vote of two-thirds of the elected members of the school board upon conviction of a felony or incarceration in a juvenile institution for an act which would have constituted a felony had it been committed by an adult.4

When a student is recommended for expulsion, the student will be suspended from school until the expulsion hearing.5  During this time, the student must be provided with access to classwork and the opportunity to earn academic credit.6  Upon removal from school, the student is entitled to all the same due process protections provided for out-of-school suspensions, including notice of the charges and the opportunity to explain.7  Likewise, the school must contact the parent/legal guardian of the student to give notice of the expulsion and the reasons for it.8  For expulsions, this notice must be made by certified letter.9

The expulsion hearing must be held by the superintendent (or designee) within 15 school days “to determine the facts of the case and make a finding of whether or not the student is guilty of conduct warranting a recommendation of expulsion.”10  The school must provide written notice of the hearing to the student and the parent/legal guardian advising them of their rights.11  The student has the right to be represented by any person at the hearing.12  If the student is found to have committed conduct warranting expulsion, the superintendent (or designee) will then determine whether to expel the student or take other corrective or disciplinary action.13

Any student who is expelled or suspended for longer than 10 days must be provided with academic instruction at an alternative setting.14  Work must be assigned by a certified teacher and aligned with the curriculum used at the school from which the student was suspended or expelled.15  If it is completed satisfactorily and timely, the student must receive credit.

The parent or legal guardian of the student who has been recommended for expulsion has 5 days to appeal the decision; if the parent does not appeal, the superintendent’s decision is final.16  To appeal, the parent must submit a request to the school board to review the findings of the superintendent (or designee).17  The school board may affirm, modify, or reverse the expulsion decision.18  If the parent does not appeal the decision within that time, the superintendent’s decision is final. Each school district must include information in its code of conduct about its appeal process.19

A parent also has the right to appeal any unfavorable expulsion decision by the school board to the district court for the parish in which the student’s school is located.20  This appeal must be filed within 10 school days of the school board’s decision.21

  • 1La. R.S. 17:416(B)(1)(a).
  • 2La. R.S. 17:416(M).
  • 3La. R.S. 17:416(B)(1)(b)(i).
  • 4La. R.S. 17:416(D).
  • 5La. R.S. 17:416(C)(1).
  • 6Id.
  • 7La. R.S. 17:416(A)(3)(b)(i).
  • 8Id.
  • 9Id.
  • 10La. R.S. 17:416(C)(1).
  • 11Id.
  • 12Id.
  • 13Id.
  • 14Id.
  • 15La. R.S. 17:416(A)(3)(e). If the student is enrolled in a special curriculum (e.g., a language immersion program, an arts intensive program, etc.), another potential argument against expulsion might be the unavailability of that curriculum in the alternative setting.
  • 16La. R.S. 17:416(C)(4).
  • 17Id.
  • 18Id.
  • 19Id.
  • 20La. R.S. 17:416(C)(5)(a).
  • 21Id. Note that attorneys’ fees may be available in state court if the court rules for the student and finds that “any school official acted in a grossly negligent manner; with deliberate disregard for the consequences of his actions to the student; with willful or malicious indifference; with intent to deprive the student, his parent, guardian, or tutor of due process; or initiated a charge that is knowingly false.” La. R.S. 17:416(C)(5)(b).

8.3.4 District Policies & Codes of Conduct

8.3.4 District Policies & Codes of Conduct aetrahan Mon, 03/06/2023 - 14:49

Every school district and charter school has its own discipline policies, typically outlined in a “Student Handbook” or “Student Code of Conduct.” These documents specify the offenses for which students can be disciplined and the type(s) of discipline that can be imposed for each type of offense. Many districts use a tiered system of discipline in which escalating severity of offenses corresponds to an escalating severity of suggested interventions or types of discipline. The district policies also lay out the specific procedures and timelines that schools must follow when disciplining students. These are often more detailed and sometimes more stringent and thus favorable to the student than the minimum provided under La. R.S. 17:416. The district codes of conduct should be available online on the district or charter school website.

Orleans Parish has a unique disciplinary system. Each New Orleans charter school is responsible for creating its own policies with regard to suspensions and other disciplinary alternatives. However, the expulsion process for all schools is centralized through NOLA Public Schools. NOLA Public Schools outlines the offenses for which a student can be expelled and the exact process that the charter school must use in order to recommend a student for expulsion.1  If the charter school meets its procedural obligations, then a NOLA Public Schools Hearing Officer will decide the matter in accordance with the district policies.

8.4 Advocating at Expulsion Hearings

8.4 Advocating at Expulsion Hearings aetrahan Mon, 03/06/2023 - 14:50

8.4.1 Basic Principles

8.4.1 Basic Principles aetrahan Mon, 03/06/2023 - 14:51

The following sections provide general guidance for attorneys representing students in an expulsion hearing.1  Expulsion cases happen within a very quick timeframe. Parents might not reach out for assistance until just a few days before the hearing is set so it is important to be able to assess the case status quickly to know the immediate next steps that need to be taken.

  • 1As set forth above, a parent has the right to bring a lay advocate or lawyer to act as an advocate for a student at an expulsion hearing. See La. R.S. 17:416(C) (“At such hearing the student may be represented by any person of his choice.”).

8.4.2 Defending Against an Expulsion Recommendation

8.4.2 Defending Against an Expulsion Recommendation aetrahan Mon, 03/06/2023 - 14:51

Typically, there are three general types of arguments to be made at an expulsion hearing:

Substantive Arguments: The school cannot prove that the student committed the offense for which he/she is accused.

Procedural Arguments: The school did not follow state law and all of its own policies and procedures in expelling the student.

Discretion-Based Arguments: The school’s proposed punishment does not fit the alleged infraction and a lesser or alternative disciplinary action would be more appropriate for this student.

In some cases, an attorney may have one or more arguments in each one of these areas; in others, an attorney may only have arguments in one area. However, it is important for an attorney to consider all three areas of defense for any expulsion case, as well as to review the information received from the student and parent as well as the student’s records with an eye toward making each type of argument.

The goal of a substantive argument is to show that the school cannot prove that the student committed the alleged misconduct. In an expulsion hearing, the school district bears the burden of proving by a preponderance of the evidence that the student committed the offense. Typically, this is a low bar for school districts to meet. In many expulsion hearings, the district representative simply reads the expulsion packet at the hearing and the information is taken at face value and as true. However, there are still many substantive defenses that can and should be made where it is possible. It is particularly important to review the expulsion/disciplinary paperwork to identify the exact offense for which the student is being recommended for expulsion and review state law and district policies that may define that particular offense.

Some common substantive defense arguments that can be made here include: the alleged infraction did not happen; the student was not involved in the alleged infraction; the student was involved in an incident, but did not commit the offense of which he/she has been accused (for example, the student is accused of terrorizing or threatening but does not have the requisite intent that is an element of the offense); the student was involved in an incident but the incident is not one for which the school can discipline students (for example, the incident occurred off campus or was protected speech under the First Amendment); or the student was involved, but there was justification for the student’s actions such as self-defense or lack of knowledge. 

The goal of a procedural argument is to establish that the school district failed to follow all of its procedural requirements or meet all of its timelines. by comparing at the student’s records and information received from the parent and student with the law and district policies. Common procedural errors include missed deadlines, failed to provide the proper type of notice or hearing as required by due process, or failed to follow special education procedures. If procedural violations occurred, the argument would be that the expulsion is invalid and so the student should be immediately returned to school.

Some common procedural arguments include: the expulsion was not held within 15 school days as required by La. R.S. 17:416(C)(1) (or less if that district’s policies lay out an even shorter timeline); parent did not receive proper written notice of the recommendation for expulsion and the reasons for it by certified letter as required by La. R.S. 17:416(A)(3)(b)(i); parent did not receive timely notice of the hearing; and/or a Manifestation Determination Review was not properly or timely held for a student with a disability.1

Finally, discretion-based arguments present mitigating facts to show that the school district’s proposed punishment (i.e., the expulsion) is not the most appropriate discipline for this student under these particular circumstances. Instead, the school should impose a lesser or alternative punishment, such as a suspension, participation in a restorative justice program, participation in mandated counseling at school, transfer to a different school (if this is something the parent and student desire), and/or evaluation for special education to name a few. As set forth above, expulsion is only mandatory under Louisiana law for a handful of offenses—e.g., for the possession at school of a firearm, knife, or other dangerous weapon2  or for the possession or distribution of any controlled dangerous substance. Thus, for any other offense, it is within the hearing officer’s discretion whether to expel the student. The ask is for the officer to exercise discretion to order a lesser or alternative punishment for the student.

Information helpful when making a discretion-based argument may include: the student’s positive character and dedication to schooling and to the community; the student does not have extensive disciplinary history; the student makes good grades; the student is active in school activities and the student body; the student is active in the community or extracurricular activities; the student did not intend to cause harm or disruption or there were other mitigating circumstances and reasons for why the student did what he/she did; and the student is willing to participate in programs or services to address or remedy the behavior such as counseling or restorative justice. Presenting this type of information can be done effectively through witness testimony and/or letters of support from teachers, coaches, mentors, outside service providers such as doctors or counselors, or other members of the community. Even where the student is not going to testify at the hearing, the parent or other people who know the student can talk about the student’s future goals, why the student wants to return to school, and the steps the student and family are taking to ensure behavior does not recur.

  • 1For a full explanation of the heightened disciplinary protections for students with disabilities, see Section 8.5.
  • 2Note that even for these offenses, La. R.S. 17:416 provides some leeway for discretion on a case-by-case basis. See La. R.S. 416(C)(2)(a)(1), (b)(1), (c)(1) (“However, the superintendent may modify the length of such minimum expulsion requirement on a case-by-case basis, provided such modification is in writing.”).

8.4.3 Preparing for the Hearing

8.4.3 Preparing for the Hearing aetrahan Mon, 03/06/2023 - 14:54

There are a number of important steps that need to be taken in order to prepare for an expulsion hearing. The first step is to gather all the records, including those pertaining to the alleged incident as well as the student’s cumulative education file. The parent should have been given an expulsion packet from the school, as well as notice of the recommendation for expulsion, and may have been given other papers as well. Although it is important to get everything that was given to the parent, it is also important to request the expulsion packet (and all other records related to the incident1 ) directly from the school district, as the school may not have provided the parent all the proper paperwork. It is likewise important to request the student’s other educational records including all previous discipline records, the student’s academic records, grades, progress reports, attendance records, and any special education/Section 504 records.2  Finally, it is important to establish as soon as possible if student has an IEP or 504 Plan because then there are important additional protections to which the student is entitled.3

Before the hearing, an attorney should research and become familiar with state law—La. R.S. § 17:416 in its entirety—as well as the specific school district’s handbook/code of conduct and its discipline policies and procedures. It is important to compare the law and policies to the facts in the case at hand and identify any procedural violations, as well as to look at what the code of conduct says about the alleged behavioral infraction of which the student is accused, how it is defined, and what types of disciplinary consequences the school can impose for the particular infraction.

In addition, hearing preparation must include interviews of both the parent and the child, including specific details such as: When and where did it happen? Who was involved? Were there any witnesses? Did any meetings take place with school officials afterwards? When did these meetings take place? Who participated in the meetings? Did the student write a statement about the incident? Were there any arrests as a result of the incident? When and how did you get notice of the expulsion? During the interview, an attorney should ask questions about the student’s general academic, disciplinary, and extracurricular history. In an ideal world, an attorney would have several opportunities to interview both the parent and student to develop a good rapport and relationship and get the necessary information, but because expulsion hearings are so time-sensitive, it is important to get as much information as possible in the first interview.

It is very important to interview the child separately from the parent when discussing the incident. No matter how good of a relationship the parent and student have or how forthcoming it seems like the student is being, it is best practices to ask the parent to leave the room at this point. A child may relate a very different story once the parent leaves the room. If the parent refuses to leave the room, the attorney should explain that speaking with the student alone is a crucial part of representation. When interviewing the child, it is important to remember that interviewing youth is different than interviewing adults. When interviewing a child, an attorney should explain the lawyer’s role, ask open-ended questions, and avoid interrupting the client or speaking too much about the attorney’s own perspective. In addition to the incident, the interview should also explore the child’s strengths and interests through questions about the child’s favorite school subject, participation in sports or other extracurriculars, hobbies, future plans, and anything of which the child is proud.

Another important part of the first meeting is to inquire about the clients’ goals, i.e., what outcome the clients want from the expulsion process. For example, the clients may want the student to stay at the student’s current school, but they may also be interested in transferring to a different school or placement. Note that although the student may be the client for the expulsion hearing, the parent/legal guardian is the educational rights holder and ultimately retains the authority to decide where the student goes to school. Thus, it is helpful to engage in a collaborative decision-making process with the student and the parent about the goals of the representation and any alternative resolution/placements. Then, in any advocacy with the school district, the attorney may be able to explore possible resolutions other than moving forward with the expulsion hearing or with an ultimate decision of expulsion.

Investigation of the incident is another necessary step. A student facing an expulsion has the right to present documentary evidence at the hearing and to bring witnesses to testify on the student’s behalf. An attorney should work with the parent and student to identify any possible witnesses for the hearing. This would include both witnesses to the incident/factual allegations, as well as witnesses who can testify to the student’s overall good character and commitment to obtaining an education. It may be helpful to have the student’s family make the initial contact with potential witnesses, particularly if the witnesses are other students or school staff, to see if they are willing to support the client at the hearing. A witness who is not available or who is unwilling to testify in person can submit a letter to the Hearing Officer in support of the client. It may also be helpful to read out loud particularly powerful or helpful letters or excerpts during the hearing.

Finally, the attorney will need to prepare all documentary evidence, client and witness testimony, and opening and closing statements. Documentary evidence may include relevant records from the expulsion packet and/or student’s education file and any letters of support or witness statements. An attorney should always bring copies for all parties present at the hearing; some districts require parents to provide this information in advance, so it is important to pay attention to district policies. Additionally, an attorney should prepare the clients and any witnesses to testify at the hearing and practice both direct and cross-examination questions. Any witness may be subject to cross-examination type questions from both the school district and the Hearing Officer.  

  • 1A template for requesting records related to a specific disciplinary incident is provided in Section 9. There is often video footage of incidents that occur at school. The U.S. Department of Education has issued specific guidance that video footage can be student records under FERPA. See FAQs on Photos and Videos under FERPA, U.S. Dep’t of Educ.
  • 2A template for requesting a student’s cumulative educational file is provided in Section 9.
  • 3For information on these heightened protections, see Section 8.5.

8.4.4 Advocacy at and after the Expulsion Hearing

8.4.4 Advocacy at and after the Expulsion Hearing aetrahan Mon, 03/06/2023 - 14:57

Because expulsion proceedings are only very generally laid out in state law, school districts have a lot of discretion in the design and implementation of their expulsion hearing procedures. As such, each school district’s expulsion hearings look a little different. Most school districts have a Hearing Officer who presides over the expulsion hearing and makes the ultimate ruling. The Hearing Officer usually explains the structure and rules of the proceedings at the beginning of the hearing. Because each school district’s expulsion hearing process is different, it is advisable to consult with any attorneys or advocates who have participated in expulsion hearings in that particular district.

Generally speaking, at the beginning of the hearing, both sides should have the opportunity to make an opening statement. However, depending on the district, an opening statement may need to be requested. The opening statement should set forth the theory of the case and provide the Hearing Officer with a roadmap of the points and evidence that will be introduced.

The school may or may not want to make an opening statement. Additionally, it may be best to present any procedural deficiencies (for example, if the hearing has not been held within the requisite 15 days or the parent failed to receive proper notice) as a preliminary matter before either side presents its case and to ask for the expulsion recommendation to be revoked and the student to be returned to school. While it is important to make these arguments, they are unlikely to stop the hearing, and so it is necessary to be prepared to continue.

The school presents its case first. A representative—typically a principal, vice principal, or dean—presents the school’s evidence in favor of expulsion. Oftentimes this merely consists of the school representative reading directly from the expulsion packet, but it could also include the presentation of witnesses to testify in support of the school’s expulsion recommendation. The Hearing Officer may ask questions of the school representative and any witnesses. Cross-examination may be helpful, but the Hearing Officer may not allow it.1  No statutory right to cross-examination in school discipline proceedings in Louisiana, and some courts have held that Louisiana students’ due process rights were not violated when they were not able to confront or cross-examine school witnesses.2  If the Hearing Office does not allow cross-examination, the attorney should object for the record. Some school districts attempt to prevent the attorney from speaking altogether, limiting the attorney’s involvement to consulting with the parent and providing advice in sidebar conversations while the parent answers questions and presents evidence. Limiting the attorney’s role in this manner is a violation of procedural protections contained in state law that guarantee the student a right to “be represented by any person of his choice.”3  In that situation, the attorney should vehemently object and note that the plain meaning of the term “represented” means students are allowed to have anyone they choose speak on their behalf rather than simply be present or advise them privately during the hearing.

After the school presents its case, the attorney can put on the student’s case through the presentation of documentary evidence and possible witness testimony. One important thing to decide before the hearing is whether or not the student will testify at the expulsion hearing. This can be a tough decision with benefits and downsides to either choice. A student who can testify to his or her side of the story in a compelling and credible way can be very persuasive to a Hearing Officer. Hearing Officers often care a great deal about hearing directly from and being able to question the student. Thus, even though in an ideal world it should not, having the student decline to testify could negatively influence the Hearing Officer’s view of the matter. However, these potential benefits must be weighed against the real risks and downsides of having the student testify. Particularly where a student has been arrested for the same incident involved in the disciplinary proceeding, it is most likely not in the student’s best interest to testify as any statements made at the discipline hearing can be used against him/her in the criminal case. Note that it is always good idea to consult with the student’s criminal/juvenile defense attorney, especially before the student testifies at an expulsion hearing.

Upon request, the Hearing Officer may allow each side to present a closing argument. If allowed, a closing argument should ask that the expulsion decision be reversed for all the reasons presented during the hearing (the substantive, procedural and mitigating factors arguments) or in the alternative that the Hearing Officer give the student a different disciplinary consequence (and provide supporting reasons for doing so). The Hearing Officer may make a decision at the conclusion of the hearing, but more likely, the district will send a written decision by mail after the hearing. The written decision does not typically make findings of fact or give reasons for the decision, but simply states whether the Hearing Officer has decided to uphold the recommendation for expulsion or not and should lay out the terms of the expulsion or alternative disciplinary consequence.

If the parent is considering appealing the Hearing Officer’s decision, the attorney should make a written request for the recording or the transcript of the hearing. Because of the very short timelines for appealing a Hearing Officer’s decision, it is advisable to plan in advance with the family whether the representation will continue at any review or appeal stages. If the representation will continue, it may be helpful to begin to prepare the written request for the School Board’s review of the Hearing Officer’s decision and even possibly the state court complaint as soon as possible after the expulsion hearing is over.  

  • 1In some districts the Hearing Officer will instruct the parent and their attorney that if they want to ask questions of the school’s witnesses, they can tell the Hearing Officer what information they want to know, and the Hearing Officer can decide to directly ask the witness if he or she feels it is warranted.
  • 2See, e.g., Whiteside v. Kay, 446 F. Supp. 716 (W.D. La. 1978); Bonner v. Lincoln Par. Sch. Bd., 28993-CA (La. App. 2 Cir. 12/11/96), 685 So. 2d 432.
  • 3La. R.S. 17:416(E)(1) (emphasis added).

8.5 Special Education Discipline Protections

8.5 Special Education Discipline Protections aetrahan Tue, 03/07/2023 - 09:30

8.5.1 Basic Principles

8.5.1 Basic Principles aetrahan Tue, 03/07/2023 - 09:30

Students with disabilities receive extra disciplinary protections that limit a school district’s ability to remove them when their behaviors are related to their disability. The guiding principle behind this legal concept is that children with disabilities should not be punished for behaviors caused by their disabilities. A student with a disability who is removed from school for violations of the school code of conduct for more than 10 days is entitled to a Manifestation Determination Review (or “MDR”). The purpose of an MDR is to determine whether the student’s behavior was related to the student’s disability or whether it was a result of the school’s failure to implement the student’s IEP. If it is determined that the behavior was related to the disability or caused by the failure to implement the IEP, then the discipline is overturned, and in most cases the student must be immediately returned to the student’s placement.

Although the source of the law regarding these protections is the IDEA and state special education regulations, the Office for Civil Rights, the courts, and state regulations all declare that the IDEA disciplinary protections apply equally to students with 504 Plans.1  These procedural protections also apply to students who have not yet been determined to be eligible for special education, but of whom the LEA had knowledge that the child was a child with a disability before the behavior occurred.2  An LEA is deemed to have knowledge that the child is a child with a disability if, before the behavior occurred, (1) the parent requested an evaluation of the child; (2) the parent expressed concern in writing to the student’s teacher or school administration about the student’s need for special education and related services; or (3) the student’s teacher or other school or district staff told school or district supervisory personnel of specific concerns about the student’s pattern of behavior.3

  • 1Section 504 regulations require a reevaluation before any significant change in placement, such as a disciplinary removal. The Office for Civil Rights and courts have interpreted this provision as meaning that a Manifestation Determination Review must be held. See Off. for Civ. Rts., U.S. Dep’t of Educ., Supporting Students with Disabilities and Avoiding the Discriminatory Use of Student Discipline under Section 504 of the Rehabilitation Act of 1973 at 18-21 (July 2022).
  • 2La. Bulletin 1706 § 534(A).
  • 3Id. § 534(B). Where a parent has either refused to provide consent for a special education evaluation or has refused special education services or where the district has evaluated the student and found them ineligible for services, then the student is not protected by the heightened special education disciplinary protections. Id. § 530(C).

8.5.2 Change of Placement

8.5.2 Change of Placement aetrahan Tue, 03/07/2023 - 09:32

A “change of placement,” which is a term of art under the IDEA, triggers an LEA’s responsibility to provide a student with a disability with heightened procedural protections. In general, a change of placement occurs in any disciplinary removal for more than 10 consecutive days such as a long-term suspension or an expulsion.1

A change of placement also occurs when a series of short-term disciplinary removals cumulatively add up to more than 10 school days in a school year and the removals constitute a pattern.2  The IDEA lists several factors to consider when determining whether a series of removals constitutes a pattern: (1) the similarity of the student’s behavior in each incident; (2) the length of each removal; (3) the total amount of time the child is removed; and (4) the proximity of the removals to one another.3  The LEA determines on a case-by-case basis whether a pattern of removals constitutes a change of placement, subject to review in accordance with due process requirements. However, the more similar the behavior and length of removals, as well as the closer in proximity the incidents are, the more likely the removals will be determined to be a pattern.4

Disciplinary removal is any instance in which a student with a disability is removed from the student’s educational placement for disciplinary purposes. As such, it can include in-school suspensions, partial-day removals, and undocumented suspensions (i.e., when a school calls a parent to come pick up a child but does not document it as a removal). In-school suspensions are considered removals unless the student is given the opportunity to continue to appropriately participate in the general curriculum, receive all IEP services and instructional minutes, and participate with nondisabled children to the extent required under the student’s current IEP. Additionally, when transportation is an IEP service (and so has been determined to be necessary for the student to access educational services), a student’s removal from the bus is considered to be a suspension unless transportation is provided in some other way. Because cumulative removals of 10 days may trigger heightened disciplinary protections, it is important to keep track of all these shorter-term removals.

  • 134 C.F.R. § 300.536.
  • 2Id.
  • 3Id.
  • 4Id.

8.5.3 Manifestation Determination Review

8.5.3 Manifestation Determination Review aetrahan Tue, 03/07/2023 - 09:34

When a student with a disability violates the school code of conduct, the school can impose exclusionary disciplinary consequences on the student just as it can on any other student for up to 10 days in a school year.1  However, for any disciplinary action (or pattern of actions) that constitutes a change in placement, the relevant members of student’s IEP team (as determined by the LEA and the parent2 ) must be convened within 10 days of the decision to change the student’s placement.3  This is called a Manifestation Determination Review (“MDR”), the purpose of which is to determine whether the behavior for which the student was disciplined was caused by or related to the student’s disability. The MDR participants must consider all relevant information in the student’s file, including the student’s IEP, teacher observations, and any relevant information provided by the parent.4

At the MDR, the team must answer two questions: (1) whether the conduct that led to the disciplinary action caused by or substantially related to the child’s disability; and (2) whether the conduct that led to the disciplinary action was the direct result of the school’s failure to implement the student’s IEP.5  If the answer to either of these questions is yes, then the behavior is deemed to be a “manifestation” of the disability and the student cannot be removed except for a few special circumstances.6

In order to answer the first question, the team must look at what the behavior was, the nature of the student’s disability, the student’s past behaviors, and any other relevant information. The team should be sure to look back at the student’s most recent evaluation and any other relevant documents to see how the symptoms of the disability were described. This review process should take the whole student into account, not just the student’s listed disability/classification. For example, a student may have a classification of Specific Learning Disability (“SLD”), which in and of itself is not often associated with behavioral manifestations. However, the student may act out due to frustration or an inability to understand or complete the work because of the student’s SLD. In this instance, the behavior should be considered a manifestation of the student’s disability because the behavior is substantially related to the learning disability. 

The second question is whether the conduct was the direct result of the school’s failure to implement the student’s IEP, including any Behavioral Intervention Plan. For example, if the student’s IEP requires that the student have a one-on-one aide to help with behavior, but the aide was not present on the day of the misbehavior, it is likely that the conduct was the direct result of the school’s failure to implement the IEP. If other services designed to respond to the student’s behavior were not in place, such as school social work services or counseling, then it could be said that the conduct was the direct result of the failure to implement the IEP.

As a practical matter, most school districts hold the MDR prior to any expulsion hearing given the short timelines for the MDR and the futility of going through the expulsion hearing process for a behavior that later would be determined to be a manifestation of the student’s disability.  However, several school districts in Louisiana actually hold the expulsion hearing first and then hold the MDR. In these instances, it is important to pay particular attention to timelines as the MDR must be held within 10 school days of the district’s decision to remove the student indefinitely pending an expulsion hearing and the district’s failure to do so should result in the student’s immediate return to the original placement.

  • 1La. Bulletin 1706 § 530(B).
  • 2The team will include the Officially Designated Representative for the LEA who has the ultimate authority in determining the outcome of the MDR.
  • 3La. Bulletin 1706 § 530(E). Guidance from the U.S. Department of Education’s Office of Civil Rights specifies the manifestation determination must be made “before implementing a disciplinary removal that will result in a significant change in placement.” Off. for Civ. Rts., U.S. Dep’t of Educ., Fact Sheet: Supporting Students with Disabilities and Avoiding the Discriminatory Use of Student Discipline Under Section 504 of the Rehabilitation Act of 1973 at 3 (July 19, 2022). This means a student already at 10 days of removal for the school year who is facing a new suspension that is part of the same pattern should have an MDR before the student begins serving any additional days of removal.
  • 4La. Bulletin 1706 § 530(E).
  • 5Id.
  • 6Id. § 530(F). On these exceptions, see Section 8.5.6.

8.5.4 After the MDR

8.5.4 After the MDR aetrahan Tue, 03/07/2023 - 09:38

If the IEP team determines that the behavior was a manifestation of the student’s disability, either because the behavior was related to the student’s disability or because the behavior was the direct result of the school’s failure to implement to student’s IEP, then the student cannot be suspended or expelled barring special circumstances.1  Instead, the student must be immediately returned to the placement from which he/she was removed.2  However, parents and the school can agree to a change of placement even if the behavior was a manifestation.3

Additionally, the IEP team must conduct a Functional Behavioral Assessment (“FBA”) and create a Behavioral Intervention Plan (“BIP”) to address the behavior at issue.4  If the student already has a BIP, the school must review and modify it to address how the school can better assist the student with the conduct at issue.5  If the behavior was a direct result of the school’s failure to implement the IEP, then the school must take steps to ensure that the identified deficiencies are remedied immediately.6

If the IEP team determines that the behavior was not a manifestation of the student’s disability, then the student may be subject to the same disciplinary consequences as any other student.7  Practically speaking, this means that the disciplinary decision (i.e., the suspension or expulsion) stands. Note that the student is still entitled to the procedural due process that protects all students (e.g., notice, opportunity to be heard, expulsion hearing).8  However, even though the student may be removed to an alternative setting, the school is still required to provide the student with FAPE.9  The school must also conduct a FBA and provide behavioral intervention services and modifications that are designed to address the behavior violation so that it does not recur.10

  • 1On these special circumstances, see Section 8.5.6.
  • 2La. Bulletin 1706 § 530(F).
  • 3Id. It is important to note here that while sometimes a change in placement may be the outcome that the parent is seeking as the best option for the child, this option is not always posed fairly to parents, and they may feel coerced by the school into agreeing to a change in placement.
  • 4Id. For a more complete discussion of FBAs and BIPs, see Section 8.5.5.
  • 5La. Bulletin 1706 § 530(F).
  • 6Id. § 530(E).
  • 7Id. § 530(C).
  • 8For more information about these protections, see Section 8.2.
  • 9La. Bulletin 1706 § 530(D).
  • 10Id.

8.5.5 Behavioral Intervention Tools

8.5.5 Behavioral Intervention Tools aetrahan Tue, 03/07/2023 - 09:42

Functional Behavioral Assessments (FBAs) and Behavior Intervention Plans (BIPs) are two of the most important tools to help address students’ behavior in school. When these assessments and interventions are conducted by knowledgeable professionals and implemented faithfully by the school, they can help significantly reduce a student’s behavior issues and the associated consequences. While FBAs and BIPs are explicitly required after an MDR, they can and should be used any time that a student is having repeated behavior or disciplinary problems and when behavior is interfering with a child’s learning. Parents and attorneys can request an FBA just like any other evaluation, either as part of a student’s full re-evaluation or as a separate assessment outside the ordinary evaluation process.

An FBA is a scientific, data-driven process used by schools to understand the cause of a student’s behavior and the appropriate ways to address the problematic behavior. The basic premise behind an FBA is that all behaviors have a function for the student. The FBA assessment looks at the events that precede and may predict the student’s problematic behavior and the events and actions that follow and maintain the behavior to understand why the student is engaging in that particular behavior. As an example, where a student constantly disrupts his English class, by observing when the behavior occurs and what directly precedes it, one may find that the student is doing it to avoid work that is too hard for him. When the student is removed from the classroom and does not have to complete the work, the student has successfully escaped it, thereby reinforcing the behavior. However, once the school team is able to understand (or at least hypothesize) why the student is engaging in a certain behavior, the team can put in appropriate supports, services, and interventions to address and correct the behavior; these are typically documented in a BIP. 

An FBA should be conducted by a trained school staff person such as a school psychologist or a behavior analyst, not by the student’s classroom teacher or paraprofessional (although these individuals can and should provide input into the process and help collect the data). The FBA must include systematic behavioral observations of the student as well as input from the student’s teachers, parents, and other professionals who work with the student.

A BIP is designed to support the child to stop engaging in the problematic behaviors targeted by the FBA and to teach the student appropriate replacement behaviors. As the name implies, the primary purpose of a BIP is to identify interventions, not punishments, to help the student. Interventions can be designed to alter the student’s environment, minimize the situations or actions that trigger the behavior, and/or give the student an alternative strategy to use when facing the triggering situation. The plan might identify incentives or rewards individualized for the student for the use of appropriate behavior or provide an opportunity for the student to avoid situations that cause anxiety or distress. Interventions should also include changing the responses of the adults who work with the student. The idea is to help provide information and strategies for the adults working with the student to help the student achieve the goals motivating the problem behavior (as identified in the FBA) so that the student will be less likely to engage in those behaviors.

The student’s BIP should be put into writing and then implemented on a consistent basis. Data should be kept to track whether the BIP is working for the student. After a period of time, the team should get together to review the plan. If there are parts of the plan that are not working, the plan should be revised; any parts that are working should be continued.

Importantly, information from the FBA and BIP should be infused into the student’s IEP. Information from the FBA can be included in the IEP sections related to behavior and evaluations, for example. Likewise, a behavior goal should be created in the IEP to match the BIP and the target behavior(s) towards which the student is working.

Even if the circumstances do not warrant an FBA or BIP, if a child’s behavior is impeding the child’s learning or that of others, the IDEA requires that the IEP team consider—and, when necessary to provide FAPE, include in the IEP—the use of positive behavioral interventions and supports (along with  other strategies) to address that behavior.1  This requirement applies to all students with IEPs, regardless of the child’s specific disability or classification. If a student is receiving repeated disciplinary infractions and removals, this may indicate that the child’s IEP needs to include appropriate behavioral supports. A parent or attorney may want to call an IEP team meeting to discuss what aspects of the child’s IEP related to behavior need to be addressed or revised to ensure FAPE. This may include adding related services such as counseling or school social work services. Adding a one-on-one paraprofessional to assist the student with behavior management is another behavior support that could be considered.

  • 1La. Bulletin 1706 § 530(D).

8.5.6 Exceptions

8.5.6 Exceptions aetrahan Tue, 03/07/2023 - 09:44

Schools can remove a student to an interim alternative educational setting (“IAES”) for up to 45 school days even where a behavior is a manifestation of the student’s disability in three specific circumstances only:1

  1. The student carries or possesses a weapon at school, on school premises, or to a school function. A weapon is defined as a “weapon, device, instrument, material or substance, animate or inanimate, that is used for is readily capable of, causing death or serious bodily injury.”2  This definition explicitly excludes a pocketknife with a blade of less than 2½ inches in length.3
  2. The student knowingly possesses or uses illegal drugs, or sells or solicits the sale of controlled substances, while at school, on school premises, or to or at a school function.4  This does not include a controlled substance that is legally possessed or used under the supervision of a licensed health care professional.5
  3. The student has inflicted “serious bodily injury” upon another person while at school, on school premises, or at a school function. “Serious bodily injury” is defined as 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.6  This is a high burden, and minor injuries such as bruises or scratches do not meet this definition.

In any of these cases, the student may be placed in an IAES to be determined by the IEP team for up to 45 school days even where the behavior was a manifestation of the student’s disability. However, as with a student whose behavior was determined after the MDR not to be a manifestation of the student’s disability, a student placed in an IAES must continue to receive FAPE and an FBA must be conducted (and a BIP developed).7

  • 1La. Bulletin 1706 § 530(G).
  • 2See 18 U.S.C. 930(g)(2). Under the IDEA and Louisiana special education regulations, the meaning of weapon here is given the same definition as “dangerous weapon” under 18 U.S.C. § 930(g)(2). See La. Bulletin 1706 § 530(I).
  • 318 U.S.C. § 930(g)(2).
  • 4Under the IDEA and Louisiana special education regulations, a controlled substance is defined as a drug or other substance identified under schedules I­–V of 21 U.S.C. § 812(c)(202)(c). See La. Bulletin 1706 § 530(I).
  • 5See id.
  • 6The meaning of serious bodily injury here is given the same definition as serious bodily injury under 18 U.S.C. § 1365(h)(3). See La. Bulletin 1706 § 530(I).
  • 7Id.

8.5.7 Appeals

8.5.7 Appeals aetrahan Tue, 03/07/2023 - 09:47

A parent who disagrees with the results of the MDR or with the school’s decision regarding a student’s placement (e.g., removal of the student to an IAES) can file a request for an expedited due process hearing.1  All of the same procedural safeguards that apply to due process hearings apply to the expedited due process hearing, the timelines are just shortened.2  The expedited hearing must occur within 20 school days of the date the due process complaint is filed and the hearing officer must issue a determination within 10 school days after the hearing.3  Additionally, the early resolution meeting must be held within 7 days unless waived by the parties.4  While the due process proceedings are pending, the child must remain in the interim alternative education setting until the hearing officer’s decision is made.5

  • 1La. Bulletin 1706 § 532(A). Note that the LEA can also request an expedited due process hearing if it believes that maintaining the student in the current placement is substantially likely to result in injury to the student or others. Id. In this case, the Hearing Officer can order a change of placement of the student to an appropriate IAES for not more than 45 days if the Hearing Officer determines that maintaining the current placement of the student is substantially likely to result in injury to the student or others. Id. § 532(B).
  • 2Id. § 532(C); see Section 8.2 on these procedural safeguards.
  • 3La. Bulletin 1706 § 532(C).
  • 4Id.
  • 5Id. § 533.

8.6 MDR Advocacy

8.6 MDR Advocacy aetrahan Tue, 03/07/2023 - 09:49

8.6.1 Significance of MDR Advocacy

8.6.1 Significance of MDR Advocacy aetrahan Tue, 03/07/2023 - 09:50

Legal representation for students with disabilities facing school disciplinary proceedings can be essential to protecting the student’s procedural and substantive rights. Additionally, having a legal advocate at an MDR can often make the difference between a child being disciplined and removed from the current education setting and the child being able to remain in that setting with additional behavioral services and supports. Below are some practical tips for preparing for and advocating at the MDR.

8.6.2 Preparation for the MDR

8.6.2 Preparation for the MDR aetrahan Tue, 03/07/2023 - 09:50

The first step when working with a student with a disability facing school discipline is to determine whether the MDR has been scheduled. An MDR must be held within 10 school days of the date of the decision to remove the student. If the school has not yet scheduled the MDR, there may be a strategic advantage to waiting to contact the school until (1) it provides notice to the parent of the scheduled MDR; or (2) over 10 school days have passed since the disciplinary decision. If the school does not hold the MDR within 10 school days, the student must be returned to the original placement.

The next step is to gather all the student’s records. It is important to get all the records related to the behavior incident at issue, including the discipline referral forms or suspension/expulsion packet, all notices regarding the incident, witness statements, and video footage (if available), as well as the student’s special education records such as all current and previous IEPs/504 Plans, all current or previous FBAs and BIPs, all evaluations, IEP progress reports, logs of IEP and related services, all previous discipline reports, and any results of previous MDRs. The attorney should gather any documents that the client has and also make an expedited request for the student’s records. The request should note that an MDR is scheduled and that the documents must be provided in advance of the MDR to allow the parent adequate time to prepare and fully participate in the MDR. Additionally, if the student has medical or mental health diagnoses and sees an outside provider such as a psychologist, counselor, or social worker, it may be important to request records from the outside provider to get relevant information related to the student’s disability and diagnosis.

Once received, the attorney must thoroughly review all of the student’s records with an eye towards identifying the student’s disabilities and diagnoses as set forth in the IEP, evaluations, and any medical records, and noting any mention of behaviors in the evaluation, IEPs, BIPs, and FBAs, including whether the behaviors are identified as related to the student’s classification. The attorney must meet with both the parent and student and conduct a thorough interview with both about the incident, the timeline of the notice given to the parent and scheduling of the MDR, the student’s special education services, and any disciplinary history. The attorney should plan to review the current IEP and BIP in detail with the parent and student to ascertain whether the school was properly implementing the student’s IEP. The attorney will need to discuss with the parent and student whether the student will attend the meeting. The attorney should discuss with the client any Fifth Amendment considerations and advise the parent and student whether the student should or should not speak during the meeting, particularly if the student is facing juvenile or criminal charges related to the incident.

The attorney should research the student’s disability and any particular diagnoses. The DSM-51  is a great resource that describes the symptoms/manifestations of different mental health disorders along with their diagnostic criteria. Additionally, compiling information from medical journals or other reputable sources that describe behaviors related to a student’s particular disability or diagnosis can also be helpful. The attorney should make copies of any helpful resources to provide to the team in advance of or at the MDR. 

If a student sees outside/community behavioral health providers such as a social worker, counselor or psychiatrist/psychologist, the attorney should consider asking the provider to attend the meeting either in person or via phone/video conference to speak to the student’s disability and the behavioral manifestations of that disability. If the outside provider agrees, it will be important to thoroughly prepare the provider to opine on the relationship between the behavior in question and the student’s disability. If the provider cannot attend the meeting, the attorney should consider asking for a letter detailing what the student’s disabilities and or diagnoses are and how they manifest.

Finally, counsel should reach out to the school’s attorney to inform the school that the student and parent will be represented at the MDR hearing. If there are members of the IEP whose attendance is particular importance to the student’s case, counsel should also request their presence.

  • 1The Diagnostic and Statistical Manual of Mental Disorders (“DSM”) is the handbook used by health care professionals in the United States as the authoritative guide to the diagnosis of mental disorders. It contains descriptions, symptoms, and other criteria for diagnosing mental disorders. For more information about the DSM-5, see Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR), Am. Psychiatric Ass’n.

8.6.3 Advocacy at the MDR

8.6.3 Advocacy at the MDR aetrahan Tue, 03/07/2023 - 09:52

The first step at an MDR is to make sure all relevant members of the team are present. For instance, if there is no one there from the school team with professional knowledge, training, or expertise in behavior, then an attorney should object to moving forward with the MDR. While the school may not be persuaded by this argument, it may be important in any subsequent appeal of the MDR decision.

Procedural arguments should generally be made at the very beginning of the MDR before getting into the more substantive issues. For example, if the MDR was not held within 10 school days of the decision to remove the student from his current placement, that would be a threshold issue to start the meeting with as it could end the MDR right there if the school agrees it was in violation.

Next, the meeting will move to the substantive questions of whether the behavior was related to the student’s disability and whether the behavior was a direct result of the school’s failure to implement the IEP. Regarding the manifestation question, as a preliminary matter, the team needs to agree on what the student’s disability is. Sometimes this is straightforward as when, for example, the student has been diagnosed with Autism and has an exceptionality of Autism on the IEP; however, sometimes it is more complicated as a student may have an exceptionality of Specific Learning Disability on the IEP, but have a medical diagnosis of Autism or ADHD that may or may not be mentioned in the evaluation or IEP. In the latter case, it is likely going to be much easier to connect behavior to a diagnosis of Autism or ADHD than to a learning disability and therefore, a skillful attorney will want to advocate that the team consider whether the behavior was related to the student’s disability of Autism or ADHD (in addition to the learning disability) even if they are not listed as his exceptionality category on the student’s IEP.

Once the team has agreed upon the student’s disability or disabilities, the next task is to present a thorough argument that the student’s behavior was indeed related to the student’s disability backed with supporting testimony (either oral or written) from any outside provider, as well as information about the student’s disability taken from the school’s own evaluations, IEPs, BIPs, and FBAs for the student, the student’s medical records, scientific research on the student’s disability (such as the DSM-V), or results from previous MDRs where similar behavior was found to be related to the disability. 

To establish a failure to implement the IEP, the attorney should present evidence from the student’s IEP and BIP of the services the student was supposed to be getting and then evidence that the student was not getting those services. Service logs obtained from the school can be particularly helpful here. For example, logs may reveal that the student had not been receiving social work or counseling services prior to the incident. An attorney may also present information from the student or parent or question the school team on whether the student was in fact getting all the services and supports listed in the IEP. 

The MDR determination is supposed to be a collective decision; it should not be decided on a majority vote; however, ultimately the LEA’s Officially Designated Representative (“ODR”) will make the decision even if the parent or other school team members object. Importantly, it is much more difficult for the ODR to rule against the student if other members of the school team agree that the behavior was a manifestation. Therefore, in advocating at the MDR, it can be useful to find the ally in the room and work out from there to try and persuade other team members. Often this may be the school psychologist, who is usually regarded as the expert in the room on student behavior and whose opinion may carry a lot of weight with the rest of the team. Getting that person to agree that the behavior was in fact a manifestation can be crucial to getting other team members on board.

9 Templates

9 Templates aetrahan Tue, 09/05/2023 - 13:11

10 Acronyms

10 Acronyms aetrahan Tue, 09/05/2023 - 13:25

Education law includes a wide variety of acronyms that can make practice in the area confusing for a novice. The most important acronyms used in this chart are:

AAC – Augmentative and Alternative Communication

ALJ – Administrative Law Judge

BESE – Board of Elementary and Secondary Education

BIP – Behavior Intervention Team

CMO – Charter Management Organization

CPI – Critical Point of Instruction

DAL – Division of Administrative Law

ED – Emotional Disturbance

ESY – Extended School Year

FAPE – Free Appropriate Public Education

FBA – Functional Behavioral Assessment

FERPA – Family Educational Rights and Privacy Act

IAES – Interim Alternative Educational Setting

IAP – Individualized Accommodations Plan

IEE – Independent Educational Evaluation

IEP – Individualized Education Program

LDE – Louisiana Department of Education

LDH – Louisiana Department of Health

LEA – Local Education Agency

LRE – Least Restrictive Environment

MDR – Manifestation Determination Review

OCR – Office for Civil Rights

ODR – Officially Designated Representative

OHI – Other Health Impairment

OSEP – Office of Special Education Programs

RTI – Response to Intervention

SAT – Student Assistance Team

SBLC – School Building Level Committee

SEA – State Education Agency

SER – Special Education Reporting

SLD – Specific Learning Disability