More than 10 days is change of placement, and that has to be done by the IEP team.
Remember, there's no federal constitutional right to an education. That's in state constitutions; but still, it can't be taken without due process. Non-disabled students get "minimal" due process (notice, the right to be heard, and the right to be expelled only for reasons that you were notified about).
So, can't do a unilateral change of placement. But you need to maybe get some cooling-off time, for safety reasons. So they don't want to completely handcuff school districts. Still, why not 7 or 15 or 20 days? Why 10? Because a longer time would deprive them of their right to FAPE. So it's arbitrary, but that's where the line got drawn.
So, can a school district expel a child with disabilities if the reason for their expulsion is rooted in their disabilities? No, of course. We need to make a "manifestation determination" because punishing for manifestation of disabilities is discrimination.
The school district, of course, can also seek injunctive relief ("Honig injunctions") if the safety issue is severe. It's the same standard irreparable harm/probability of success balancing that you see with most injunctions.
If a child in special ed is in a position where 10 days of removal from the classroom is an issue (note: is this 10 days in a row? 10 days in a school year? not known for sure right now), there's a manifestation determination review (MD or MDR). This is basically the IEP team plus maybe witnesses to the bad event, etc. It's sort of a specialized IEP review. The team has to address w key questions:
If it's a manifestation, there really can't be any discipline, although it might be a good idea to review the IEP and see if any changes are needed. But change of placement against the parents' wishes is off the table while legal processes are pending: that's the "stay put" provision-- no unilateral change in placement.
If it's not a manifestation (say, for example, a deaf kid selling cocaine), things are different. Of course, everything we do is to some extent a manifestation of who we are. But we're not really talking in such holistic terms here. You can expel such a person, but because of the right to FAPE, that student is still entitled to FAPE services. In this circumstance, school districts have a tendency to offer sort of minimal FAPE services. And also services to prevent the misbehavior from happening again. And post-expulsion services are designed by the IEP team.
This is all a huge pain for school districts, so they try and deal with things via suspension. In MPS, 20% of all children are suspended in a given year, but 50% of children with disabilities. And even a single suspension is strongly correlated with not graduated and with going to prison.
As a footnote, WI has the highest rate of African-American incarceration in the country, and it might have everything to do with failure to educate in Milwaukee.
The IEP team still needs to determine where the other place is, and FAPE still needs to be provide, but LRE is no longer an issue.
This has been a helpful thing for minor drug offenses: it gives some flexibility in no-tolerance environments. No threat of permanent expulsion and no need for a manifestation determination.
Introduced in 1997, revised in 2004.
Lots of complaining about unequal discipline between children with and without disabilities from both tough-on-crime people and school districts.
Oberti: can $student obtain FAPE in a regular classroom if appropriate services are available? if not, what's the least removal from inclusion that we can accomplish? The third factor ("negative impact on other students") isn't a clear-cut standard, but it represents a sort of general understanding that there's some point at which the burden on others is too great.
If schoold districts follow the disciplinary rules, by the way, judges will generally defer to a rational plan from them.
Montrose: Does LRE mean "neighborhood school?" Not necessarily, because the concept of placement isn't just "place:" it's related to the set of services that the child must receive. Placement elsewhere is at least somewhat detrimental (away from friends/siblings, subject to more onerous transportation). If staying in the neighborhood school would cost the district a lot more (e.g., if the district would have to hire a new cognitive disabilities teacher), you're more likely to get shipped around; if not, you have a better shot at making a case for staying local.
Basically, if it doesn't require a doctor, it's "related services," not "medical services." This was shocking at the time, even though it pretty much just affirmed a case from 1.5 decades before, with a 7-2 margin. So schools have to pay for "related services" (which include nurses, etc.).
But the school district has the burden to provide FAPE, and also all the expertise. Nevertheless.
This case upset a lot of people, but maybe it's not so rotten. O'Connor says that the parents have rights to get that information (the IEP, the right to an independent evaluation, etc.), so it's not so lopsided as it might seem.
Parents can't get expert fees, even when they prevail. And experts are expensive. Advocates try to get congress to change this (it's all about strict statutory construction). All other civil rights laws, by the way, use the same language ("attorney fees and costs"), and in no other arenas are expert fees barred.
So what does this do to the ability of attorneys even to represent parents in these matters, if the parents aren't wealthy. It's a chilling effect, at least for private practice attorneys.
Was there a need for chilling? There used to be about 60-65 due process hearings in a year (in WI). Now we're down to about 20. And that's not court cases, and it's tiny compared to the number of people in special ed. Why the perception, then? Because school districts are afraid they'll be sued. So the threat of suit can maybe affect school district behavior in a positive way without even having to do anything.
So parents can represent themselves where their own rights are concerned. But the ultimate FAPE/LRE rights are the child, so if the parents can't pursue that, maybe Winkleman is a really narrow and non-momentous opinion. Sort of a phyrric victory, in other words.
Burlington and Florence County stood for the proposition that parents could get reimbursed for private education if the district was failing to provide FAPE. In other words, if the IEP is not reasonably calculated to provide FAPE, or if there just isn't FAPE, the only equitable remedy is to reimburse for the cost of the private education.
Here, the court is just saying that the right to FAPE doesn't presume that the student has to endure ineffective FAPE before being placed in private school at public expense.
Although, in practice, that's often how it is: in order to persuade a due process hearing officer, you need solid evidence, and maybe therefore you do have to watch some floundering before your case is a clear-cut winner.