Protections, Appeals, and Students Not Yet Eligible

Protections, Appeals, and Students Not Yet Eligible

Discipline protections do not begin when services begin — they follow the student through the entire process, and in some circumstances they apply even before a student is found eligible for special education. This page covers the protections that continue during removals, the appeal rights, and the rules for students not yet determined eligible.

Legal Citations

• IDEA — protections for students not yet eligible (Section 615(k)(5)); appeal rights (Section 615(k)(4)–(7))

• 34 CFR Part 300 — protections for not-yet-eligible students (300.534); appeal procedures (300.532)

• Alabama Administrative Code, Chapter 290-8-9

Practical Guidance

A student not yet determined eligible for special education is protected by IDEA discipline procedures if the LEA had knowledge that the student was a student with a disability before the behavior occurred. The LEA is deemed to have knowledge if: the parent expressed concern in writing to supervisory or administrative personnel or a teacher that the student needs special education; the parent requested an evaluation; or the student's teacher or other LEA personnel expressed specific concerns about a pattern of behavior directly to the special education director or supervisory personnel.

If the LEA did not have knowledge, the student may be disciplined under general education rules — but if an evaluation is requested during the removal, it must be conducted in an expedited manner, and if the student is then found eligible, IDEA procedures apply immediately, including the provision of services during the removal.

During the pendency of any due process hearing about a disciplinary removal, the student remains in the IAES until the hearing is decided or the removal period expires, whichever comes first, unless the parent and LEA agree otherwise.

Parents (and the LEA) may appeal a disciplinary decision through an expedited due process hearing before an impartial hearing officer. The parent may request mediation, and the LEA must inform the parent of the free or low-cost legal services available locally. If the hearing officer agrees with the parent that the removal was not lawful, the student returns to the prior placement. An expedited hearing must occur within twenty school days of the request and must be resolved within ten school days after it begins.

The protections on the eleventh day — curriculum access, IEP goal progress, and the FBA/BIP requirements — continue throughout any appeal.

Common Errors Identified Through Monitoring

• A student with a pending parent-requested evaluation disciplined under general education rules despite LEA knowledge of a suspected disability

• The expedited evaluation timeline not followed for a student referred during a removal

• Parents not informed of mediation and free or low-cost legal services at the first due process or complaint filing

• Services during removal discontinued during the pendency of a hearing

Alabama State Department of Education — Special Education Services (SES)

Materials are provided for technical assistance purposes and do not constitute legal advice.