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).

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).

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).

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.

• 1See Student Hearing Office Manual, NOLA Pub. Schs. (Mar. 26, 2019).

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.”).

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.”).

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.

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).

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).

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.

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.

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.

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).

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.

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.

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.

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.

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.