Expert: James Michael Roan - 10/10/2007

Question
Hi, my son is 8 is affected by mild autism (has been since the age of 3) and in second grade at a public school. We just moved over the summer to a very respected town and we thought this would be a great choice for schools for him. He has been in the school for about 5 weeks and we have an IEP on Thursday. We have been getting frequent phone calls about his tantrums and that we need to come pick him up from school. I am a Registered Nurse and I work full time days and my husband also works full time during the day. The school has put both of us in jeopardy of loosing our jobs with all the phone calls. The last two schools he went to had the same tantrums, but we got a total of 3 phone calls in 3 years. Now at this IEP for some reason a principal and EI teacher from a school district 15 minutes away are invited (am unsure as to why they are going to be there, but we are thinking for transfer). The principal of the current school is accusing Braydon of doing things I havent ever seen him do. For example, he called me just today to tell me Braydon had a tantrum and he was flailing his arms but he purposefully hit the teacher in the chest. Braydon does flail his arms and kicks and screams during a fit but no matter how upset I have seen him, I havent ever seen him hit anyone on purpose. He tells me it was an accident and that he said he was sorry to her. I feel like this school is pushing us out, they havent even given him a chance to feel comfortable yet. Plus he has two sisters in the same school, one has recess and lunch with him and helps him tremendously with opening his things and setting him up to eat. They accompany him on the bus also. What are my rights? What can I do to keep him here near our home and his sisters? Any advice will be very appreciated! Thank you!

Answer
Hi Amanda;

Although is variability from state to state, your son has a right to stay in his "homeschool". Moving him constitutes a "change in placement" and requires your permission via a revision to his current IEP. Tantrums are part of his disability and, therefore, he cannot be removed from school more that 10 school days or the school is guilty of " a pattern of exclusion." It's illegal to exclude children with a disability from any aspect of school. Ten days includes all time away from class such as in the office or detention room that add up to ten days. After 10 days, further removal requires a "manifest determination" to determine if his behavior is related to his disability, which it is. If it is found to be related to his disability everything stops there and the school has to serve him as before and deal with his behavior. That's their job. If the school determines that his behavior IS NOT related to his disability, which they will try and do, then they can recommend a different placement ONLY WITH YOUR PERMISSION. I suggest that if they try and suggest your son's behavior is NOT because of his disability, that you argue it. You do that by demanding an Independent Evaluation at the school district's expense. It's your right.

Like I've said, your state may differ a little from mine (Washington State), but only a little. Remember, if all else fails threaten them with legal action because they are not providing FAPE (free and appropriate public education). The burden of proof is on the school district. They will buckle. Don't concern yourself with being perceived as "nice." Your son has rights guaranteed under IDEA (Individuals with Disabilities Education Act). Please see to it that this school honors those rights.

I hope this helps.

Kind regards,
James