Author: Wallace Winter, Supervising Attorney for the Legal Assistance Foundation of Metropolitan Chicago
Last updated: October 2012

(Part Two of the Parents’ Guide to Suspensions and Expulsions in Illinois Public Schools)

Suspensions of students with disabilities
Expulsions of students with disabilities
Requesting a due process hearing
Related Content

Suspensions of Students with Disabilities                

What is a suspension?

A suspension is the removal of a student from school for ten days or less. The day the suspension starts counts as one full day, even if the student is suspended in the afternoon or for half a day.

In general, a school may not suspend a special education student for more than a total of ten days in the same school year. So it is important to keep track of the number of days your child is suspended and the reasons why they are suspended. A school can never suspend a special education student for more than ten school days in a row.

Sometimes, the school may suspend a special education student for more than a total of ten days in the same school year. This can happen if the suspensions added up do not form a pattern that would be considered a “change of placement.” A “change of placement” occurs when a special education student is removed from school for a significant period of time. A pattern of suspensions may be a “change of placement” if:  

• The suspensions total more than ten school days in a school year
• The student’s behavior is substantially similar to the student’s behavior in previous incidents that resulted in suspension
• The length of each removal
• The total amount of time the child has been removed
• The time between suspensions

If the student’s suspensions are a change of placement, the school must hold a manifestation determination review (MDR), which is described below.   

For what reasons may a school suspend a student with a disability?

A student with a disability may be suspended for the same reasons as a non-disabled student. However, students with disabilities have legal protections as discussed throughout this guide.  Click below to view information regarding suspensions of non-disabled students:

Suspensions of Non-Disabled Students

A student may also be suspended from riding the school bus for misconduct on the bus. Under certain circumstances, a school bus suspension can be considered a suspension. If your child has been suspended from the school bus, click below to view more information on your child’s rights:

Children with Disabilities Eligible for Transportation

What must the school do when suspending a student with a disability?

The school must immediately give you notice in writing when your child is suspended. This written notice must include:

• The reasons your child is being suspended
• The number of days your child will be suspended
• Notice of your right to appeal the school’s decision to suspend your child

What should you do when your child with a disability is suspended?

1. If your child comes home and tells you that they have been suspended, call the school to make sure this is true. If you do not get a notice in writing right away, ask for a written report. The report should give the reasons for the suspension and the number of days your child will be suspended.
2. You may choose to appeal the suspension. The appeal may not take place before the suspension ends. At the suspension hearing, you can give reasons for disagreeing with the school’s decision to suspend your child.  You can also ask the school to remove the suspension from your child’s school record. Winning the appeal should prevent an expulsion hearing for the same suspected misconduct. Plus, removal of a suspension from the student’s record may reduce the chance that the student will be expelled in the future for suspected misconduct. It may also increase the chances of getting an alternative to expulsion (like the SMART program in Chicago) for future acts of misconduct.
3. You should ask for schoolwork for your child during the suspension. This makes it easier for your child to keep up in school. In Chicago, the disciplinary code says that principals must make sure that students receive schoolwork during the suspension and get the opportunity to take any missed tests or quizzes.
4. Keep track of each suspension. Note the dates, length of time, and reasons for each suspension. If your child is suspended for more than ten days in a row, you can challenge the suspension by asking for a due process hearing.  If your child is suspended for more than ten days in the same school year, go over your notes to see if the suspensions look like a pattern of suspensions. If you think there is a pattern of suspensions that total more than ten days in the same school year, you may request a due process hearing.
5. Your child should have a behavioral intervention plan (BIP) if your child’s behavior is keeping your child or others from learning.  You should look at your child’s BIP.  If you think your child’s BIP needs to be changed because your child is continuing to have problems at school, you should call the school and ask for a meeting.  If your child does not have a BIP and your child’s behavior is keeping your child or others from learning, you should call the school.  You should ask the school to c a functional behavioral assessment (FBA) and make a BIP to help with your child’s inappropriate behavior.

Expulsions of Students with Disabilities

What is an expulsion?

An expulsion is removal of a student from school for more than 10 days in a row.

For how long may a student with disabilities be expelled?

A student may be expelled for a definite period of time from 11 days up to 2 years.

For what reasons may a school expel a student with a disability?

 A student with a disability can only be expelled if the student’s behavior does not stem from their disability.

What must the school do before expelling your child with a disability?

Before expelling a student with a disability, a school must hold a meeting called a “manifestation determination review.”  At the meeting, the IEP team will discuss whether the student’s behavior stems from their disability.  If the IEP team finds that the student’s behavior stems from their disability, then the student cannot be expelled from school.  

Within ten school days after making the decision to change the student’s placement, the school must hold the “manifestation determination review.” You should attend this meeting, because if you can persuade the IEP team that your child’s misbehavior was a manifestation of their disability, the school district cannot expel your child.

At the “manifestation determination review” the IEP team must talk about:

• The information that you present
• The information in the student’s file
• The teachers’ observations of your child

The IEP team must decide whether your child’s behavior is a manifestation of their disability.  Your child’s behavior is a manifestation of their disability if:

• The conduct was caused by, or had a direct and substantial relationship to, the child’s disability;
• Your child’s behavior was a direct result of the school’s failure to implement your child’s BIP.

If the IEP team decides that your child’s behavior stems from their disability, the school may not expel your child. The school must conduct a functional behavioral assessment and implement a behavior intervention plan (BIP). If the student already has a BIP, the IEP team should change the BIP as necessary.

You should present any information you have that shows that your child’s behavior was a manifestation of their disability.  If your child sees a therapist or doctor who thinks your child’s behavior was a manifestation of their disability, you should get letters from the therapist or doctor.  If possible, the therapist or doctor should attend the meeting.

If the school decides to expel your child after the “manifestation determination review,” the school must invite you to attend an expulsion hearing to discuss your child’s behavior.

If your child attends a public school, the school must send you notice of the expulsion hearing in writing and by certified or registered mail. The notice must state the time, place and reason for the hearing, and your right to be represented by an attorney.  If your child attends a charter school, you should look at the school’s disciplinary handbook regarding the school’s expulsion procedures.

At the hearing, the school must give reasons for the expulsion and the date when the expulsion will start.

View the Discipline and Manifestation Determination Review Timeline for a summary of this process.

What are your rights at the expulsion hearing?

At the expulsion hearing, you have the right to:

• Bring an attorney or advocate
• Call witnesses
• Present evidence
• Cross-examine the school’s witnesses

You should let the school know if you intend to bring a lawyer and/or call witnesses at the hearing. If the school tape records the hearing, you may request a copy of the tapes after the hearing. Although Chicago and some school districts use tape recorders or court reporters at expulsion hearings, they do not have to do so.  If you want to tape record an expulsion hearing, you should tell the people at the hearing.  There may be consequences under Illinois law for taping people without their okay.

What happens when your child with a disability is expelled?

Before your child is expelled, they will usually first be suspended for up to ten days.
Even if your child is expelled, the school is required to provide services to your child with a disability.   The school must see that your child continues to participate in the general education curriculum and progress towards meeting the goals set out in the child’s IEP.

The school may send your child to an interim alternative educational setting for up to 45 school days, if your child:

• Brings weapons to school
• Brings drugs to school
• Causes serious bodily injury

The school may send your child to one of these schools right away, even before holding a “manifestation determination review.”

What are your rights when the school wants to expel your child with a disability?

1. If the school decides at the ”manifestation determination review” that your child’s behavior does not stem from your child’s disability, you have the right to appeal the school’s decision. To appeal, you must ask for an expedited due process hearing.

Click on the title below to go to more information regarding due process hearings:

Requesting a due process hearing

If the hearing officer agrees that your child’s behavior stems from their disability, the school will not be able to expel your child. The hearing must be held within 20 school days of the date you request the hearing. The hearing officer must make a decision within ten school days after the hearing.

2. If the school places your child in an “interim alternative educational setting,” you also have the right to appeal the school’s decision by asking for an expedited due process hearing.

If you appeal, your child will stay at the other school until the hearing officer makes a decision. However, your child cannot stay at the other school for more than 45 school days even if it takes the hearing officer longer to make a decision, unless you and the State or local educational agency agree otherwise.

3. The school may want to keep your child in the interim alternative educational setting or send your child to another school after the 45 school days end. If you disagree, the school must send your child back to your child’s first school unless the school thinks it is too dangerous there for your child.

If the school thinks it is too dangerous to send your child back to the school, it must ask for an expedited due process hearing. The hearing would happen within 20 school days of the hearing request. The school would have to persuade an independent hearing officer that returning your child to their old school would be very likely to result in injury to your child or others. The hearing officer must make a decision within ten school days after the end of the hearing.

What should you do when the school wants to expel your child with a disability?

If your child comes home and tells you they are going to be expelled, call the school to make sure this is true. Remember, the school cannot expel your child without holding a “manifestation determination review” and an expulsion hearing.

When you receive written notice that the school is thinking about expelling your child and that it is holding a “manifestation determination review,” you should attend this meeting. You can prevent a school expulsion hearing by persuading the IEP team that your child’s behavior stems from their disability. You can argue that your child’s behavior was because of your child’s disability. Or you can argue that your child’s behavior was a because the school’s failure to implement your child’sIEP .

If the school decides that your child’s misconduct does not stem from their disability at the “manifestation determination review,” you can appeal the decision by requesting an expedited due process hearing.

If the school decides to expel your child after the “manifestation determination review,” the school must hold an expulsion hearing so you can tell your child’s “side of the story.” At the hearing, you can:

• Have a lawyer present
• Bring witnesses
• Cross-examine the school’s witnesses
• Give reasons why you believe your child should not be expelled.

Even if your child committed the misconduct, at the hearing you can give reasons why you believe your child should not be expelled. Before expelling a student, a school district must at least consider a number of factors.  At the hearing, you can:

• Have your child tell their side of the story;
• Argue that your child’s misconduct was not bad enough to deserve expulsion;
• Argue that your child should not be expelled because your child has had no history of misconduct at school;
• Argue  that your child’s misconduct did not disrupt the education of other students;
• Argue that expulsion is too severe;
• Argue that expulsion is not in the best interests of your child.

In Chicago, there is an alternative for expulsion, called the SMART program. SMART stands for “Saturday Morning Alternative Reach-Out and Teach.” Students in the SMART program:

• Attend 8 Saturday morning classes
• Learn how to resolve problems
• Receive help for alcohol or drug problems
• Must do 20 hours of community service for a non-profit organization

If your child attends a public school in Chicago, at the expulsion hearing, you can ask that they go to the SMART program instead of being expelled. If your child is admitted to the SMART program, it is important to make sure they attend all classes. If your child misses any classes, they will be expelled from school, usually for one semester.

If the school decides to expel your child at the expulsion hearing, you can appeal the decision by filing an internal appeal and/or going to state court. Please consult a lawyer about how to file an appeal in state court.

Requesting a Due Process Hearing in Disciplinary Proceedings for a Child with a Disability

When may you request a due process hearing for your child with a disability?

·         When the school decides that your child’s behavior does not stem from their disability at the “manifestation determination review.”

When the school places your child in an interim alternative educational setting, or alternative school, for up to 45 school days.

What is the difference between a “due process hearing” and an “expedited due process hearing?”

An expedited due process hearing must take place within 20 days of the request.  The hearing officer must issue a decision within ten school days after the end of the due process hearing.

A due process hearing must result in a decision within 45 days after the Illinois State Board of Education receives your request for a hearing.

How do you request a due process hearing or an expedited due process hearing?

The first step:

• Serve a due process complaint notice to the local educational agency (school district);
• Send a copy to the Illinois State Board of Education;
• The non-complaining party must respond within ten days, addressing the issues in the complaint;
• If the non-complaining party believes the complaint is not sufficient, it must notify the hearing officer within 15 days of receipt of the complaint;  
• The hearing officer has five days to rule on the sufficiency of the complaint;
• If a hearing officer rules that a due process complaint is insufficient, the hearing officer may provide the complaining party with an opportunity to amend the due process complaint;  
• The party requesting the due process hearing cannot bring up things that were not in the complaint unless the other party agrees to an amendment of the due process complaint. Or the hearing officer can allow the complaining party to amend the due process complaint.

The second step is the resolution meeting:

• The school district must convene a resolution meeting with the parents and relevant IEP Team members “who have specific knowledge of the facts identified in the complaint” within 15 days of receiving notice of the complaint;
• The meeting must include a member of the agency who has decision-making authority;
• The agency has 30 days to resolve the complaint and if a resolution is reached, the parties must execute a legally binding agreement;
• The parties then have three business days during which time either party may void the agreement;  
• The parties also have the option of using mediation.  

The final step is a due process hearing:

• The hearing may happen 30 days after the notice of complaint is filed. This step occurs only if the dispute was not resolved at an earlier stage;
• You should request a due process hearing within 2 years of the date the parent knew or should have known about the alleged action that forms the basis of the complaint.

What are your rights before the due process hearing?

• You have the right to see your child’s school records;
• The school district must tell you about of free or low-cost legal and other services if you ask for this information;
• You have a right to ask that your case be heard by a different hearing officer than the one appointed. To request a different hearing officer, you must make your request in writing to the Illinois State Board of Education within 5 days after you received noticed of the appointment of the hearing officer;
• You have a right to get copies of evidence the school will present at the hearing at least 5 days before the hearing. You must give the school copies of any evidence you plan to bring to the hearing at least 5 days before the hearing;
• You have the right to request an interpreter for the hearing.

What are your rights at the due process hearing?

• You have the right to bring a lawyer or advocate to the hearing;
• You have the right to bring witnesses and evidence;
• You have the right to cross-examine the school’s witnesses;
• You have the right to bring your child to the hearing;
• You have the right to object to the school including evidence if the school did not tell you about the evidence at least 5 days before the hearing;
• You have the right to request an interpreter for the hearing.

What are your rights after the due process hearing?

• You have a right to a copy of the record from the hearing;
• You have the right to appeal the hearing officer’s decision to state or federal court. You must appeal within 90 days from the date of the hearing officer’s decision according to federal law, and 120 days from the date of the hearing officer’s decision, according to current state law.

Can a parent be held responsible for the school system’s attorney’s fees?

A parent’s attorney may be responsible for paying the school district’s attorney’s fees if they file a frivolous or unreasonable lawsuit. Parents may have to pay the fees if the lawsuit was presented for an improper purpose, such as to harass or cause unnecessary delay or needlessly increase the cost of litigation.

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