By: Emma Freeburg, ACDL Legal Intern (Summer 2021)*

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Today’s blog post covers informal types of discipline and provides ideas about how to handle each type.

First—what is informal school discipline?

 Informal school discipline occurs when a school denies a student services or excludes a student from school programming without an “official” suspension/expulsion and without due process.

When students face “unofficial” types of school discipline, they do not receive the same protections they otherwise would be entitled to. Informal discipline can include:

• Being sent home early from school without a suspension/expulsion;
• Being put on a shortened school day schedule;
• Being put in a “homebound/tutoring” placement; or
• Forcing parents to choose between withdrawing their child from school or facing possible expulsion.

Here is what each type of informal discipline looks like and self-advocacy strategies you can consider to address them.

“Sent homes”

“Sent homes” occur when a school calls a parent or guardian to pick up a student early from school for various reasons, including behavioral issues or lack of participation. When the school calls you for an early pick up, they are essentially asking you to voluntarily take your child home when a situation is challenging or inconvenient, but does not warrant suspension. During normal school hours, your child is entitled to be in school, just like their classmates, unless they have been suspended or expelled. The school is required to provide your child with the supports and services needed to allow your child to access their education.

If you get a call from your child’s school asking you to pick up your child early, you may consider these possible self-advocacy steps:

• Ask: Is my child being suspended or expelled? Is my child too sick to be at school?
  • If the answer to one of these questions is yes, then you should arrange to pick up your child. Ask the school to provide you with paperwork, such as an incident report showing your child is being suspended or expelled or is too sick to be at school.
  • If the answer to both of these questions is no, then you are not obligated to pick up your child before the school day concludes.
    • Be aware: if your child’s school calls asking you to pick them up, but you learn that your child is not sick or suspended/expelled and therefore refuse to pick up your child early, the school may call (or threaten to call) the Arizona Department of Child Safety (DCS), the police, or a crisis hotline. If the school threatens or takes this type of action and you believe it to be retaliation against you, then you have the option of filing a complaint with the U.S. Department of Education’s Office for Civil Rights (OCR). Please see our earlier blog post on how to do so.

• Write down: the reason for the pick-up request and the amount of school missed as a result.
  • If you decide to pick your child up early even though your child is not sick and has not been suspended/expelled, take detailed notes of the time when you picked your child up and the reason you were given for needing to pick your child up early.
  • If your child has an IEP or 504 Plan, when the amount of school your child misses adds up to more than 10 school days in a single school year, request a Manifestation Determination Review (MDR). Explain that although your child has not been officially suspended for 10 or more days, you have been tracking how much school your child has missed due to early pick-ups. Let them know it now amounts to more than 10 school days, so you are invoking your child’s right to a MDR.
  • Request a Functional Behavioral Assessment (FBA)/Behavioral Intervention Plan (BIP), reevaluation, or an Independent Education Evaluation (IEE) to help determine what your child needs to successfully participate in full days of school.
  • Send a letter to the school district’s (or charter’s) Special Education Director expressing your concern that informal removals may be denying your child a Free Appropriate Public Education (FAPE).
    • Provide them a copy or a link to guidance from U.S. Department of Education’s Office of Special Education Programs (OSEP).
  • If necessary, pursue dispute resolution with the school. You can read more about dispute resolution options here.

“Shortened days”

As a response to behavioral problems at school, the IEP Team may suggest shortening the student’s school day. The Team may argue that a modified schedule is necessary because the student cannot “handle” a normal school day. For example, a student with autism has more challenging behaviors after lunch, so the school decides to shorten his school day to end at noon. This would be an inappropriate use of shortened days, because the school should be addressing the challenging behaviors with special education techniques, accommodations, and interventions, not sending the child home when he is more likely to experience the challenges.

Shortened days should be used to meet the unique disability-related needs of students on a case-by-case basis. For example, shortened school days may be appropriate for students with medical conditions that cause extreme fatigue, that require intensive treatment during the school day, or when a doctor recommends shortened school days for the student’s health and safety.

If your child’s IEP team proposes changing your child’s IEP to shorten their school day, consider these self-advocacy steps:

• Ask: Is a shortened day necessary to address my child’s unique disability-related needs?
  • If the school insists it is necessary, ask for appropriate data and documentation that supports the school’s decision.
  • If you disagree with the data that the district cites, request an IEE to get a second opinion on your child’s disability-related needs.
• If you disagree with the team’s decision:
  • State your disagreement at the IEP Meeting and ask for it to be recorded in the meeting notes.
  • Insist you be provided with a Prior Written Notice (PWN) explaining the school’s decision to shorten your child’s school day.
  • Send a letter to the school district’s (or charter’s) Director of Special Education expressing your concern that shortened school days may be denying your child a FAPE.
    • Refer to or provide a copy of this guidance from the OSEP.
  • If necessary, pursue dispute resolution with the school.

Home-Based Instruction

Another action that IEP Teams may suggest as a response to behavioral problems at school is changing a student’s placement to “home-based instruction.” Home-based instruction is the most restrictive environment on the continuum of alternative placements. With home-based instruction, students are completely removed from the school setting and learn in an isolated, segregated environment.

The Individuals with Disabilities Education Act (IDEA) states that students with disabilities should be educated alongside nondisabled students “to the maximum extent appropriate” and removal from the regular classroom should only happen when a student’s disability is so severe that the use supplementary aids and services in a regular classroom cannot be achieved satisfactorily. [1] Since this placement is so restrictive, it should only be considered when all other placements with additional supports, services, and/or accommodations are unable to provide the student with FAPE.

If the IEP team suggests changing your child’s placement to home-based instruction, consider these self-advocacy steps:

• Ask: Is home-based instruction necessary to address my child’s unique disability-related needs?
  • If the school insists it is necessary, ask for appropriate data and documentation that supports the school’s decision.
  • If you disagree with the data that the school cites, request an IEE to get a second opinion on your child’s disability-related needs.
• If you disagree with the team’s decision, you can:
  • State your disagreement at the IEP meeting and ask for it to be recorded in the meeting notes.
  • Explain why you believe home-based instruction is not the least restrictive environment for your child.
  • Suggest implementing other supports, services, and/or accommodations in your child’s current placement, or exploring other placement types that are less restrictive than home-based instruction.
  • If necessary, pursue dispute resolution with the school.

If the school moves forward with changing your child’s placement to home-based instruction, ensure they are providing the appropriate amount of instruction your child needs to receive a free appropriate public education (FAPE). For more information on this, see our blog post titled Amount of Instruction for Homebound Students.

Withdraw or Face Discipline

Schools may also respond to behavioral problems by telling the parents they have the option to voluntarily withdraw their child from school or be subject to formal discipline, such as long-term suspension or expulsion. Often, schools present withdrawal as a favorable option for parents, arguing it will prevent the discipline from going on the student’s record.

However, when weighing this decision, keep in mind that only the public school district of residence (the school district whose boundaries you live in) is required to educate your child. Charter schools can deny admission when they are at capacity. [2] Other school districts may limit admission of non-resident students through their open enrollment policies. [3] Once a parent voluntarily withdraws their child from a school, that school no longer has an obligation to provide the child with a FAPE. Remember, even if a child is long-term suspended or expelled, if they have an IEP, they continue to have the right to receive FAPE in an interim alternative educational setting from their school.

If the school presents you with this option, consider the following self-advocacy steps:

• Ask: what formal disciplinary action is my child facing? Has the school followed all due process procedures outlined in the school’s policy manual?
  • If your child has an IEP or a 504 Plan, they have the right to an MDR before the discipline proceeds.
  • Parents can challenge the outcome of an MDR through mediation or by requesting an expedited due process hearing.
  • Parents can also request expedited evaluations during a disciplinary period if they suspect their child may have a qualifying disability but have not yet been identified.
• Ask: if my child is ultimately expelled from this school district, what will happen next?
  • Students with IEPs who are expelled from school must continue to receive the special education and related services they require for FAPE. The school that expelled them remains responsible for providing those services in an interim alternative educational setting.
  • Most public school districts in Arizona have a policy allowing students to apply for readmission to the district after a set period of time following an expulsion. Find out what that process looks like for your child’s district.

Another type of informal discipline is the use of restraint and seclusion. The next blog post in this series will cover the use of restraint and seclusion techniques in schools and what you can do when these techniques interfere with the provision of a FAPE.

[1] 34 C.F.R. 300.114(a)(2)

[2] A.R.S. § 15-184(A)

[3] A.R.S. § 15-816.01

*Emma Freeburg is a law student at the Sandra Day O’Connor College of Law at Arizona State University. Emma completed a legal internship with ACDL during the summer of 2021. This blog post has been reviewed by ACDL Legal Director Rose Daly-Rooney and ACDL Education Team Managing Attorney Amanda Glass.

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