Student Wins Compensatory Ed After District Ignored Behavior Plan and Abandoned Her During Expulsion

What Happened

Student was a high school senior eligible for special education under the category of specific learning disability. She attended Upper Lake Union High School during the 2005–2006 school year and graduated with a regular diploma — though her basic reading skills were at approximately a fourth-grade level and she struggled significantly with written language and memory. Student was represented at the hearing by advocates from the Robinson Rancheria Band of Pomo Indians, a tribal organization that had been actively involved in her education.

Student's legal trouble with the district began in October 2005, when she was suspended for smoking marijuana on school grounds. The district created a positive behavior support plan at that time, requiring at least three 20-minute counseling sessions with the school psychologist focused on breathing, visualization, meditation, and other calming techniques. Then in January 2006, Student was expelled again for the same offense. The district expelled her without conducting a new manifestation determination — the legally required review to assess whether a student's behavior is connected to their disability — and sent her home with a packet of schoolwork that she never received. For two months, Student had no educational services and no contact with the district. Her advocates worked tirelessly to find her an alternative placement, but the district made no effort to reach her until a meeting in late March 2006.

What the ALJ Found

The ALJ ruled in Student's favor on two critical issues and in the district's favor on three others, making this a split decision.

Where the District Failed:

The district violated Student's right to a FAPE by completely failing to implement the counseling component of her October 2005 positive behavior support plan. The school psychologist met with Student briefly once, then attempted two more sessions that Student declined to attend — and then simply gave up. The law required the district to provide the counseling or modify the plan; instead, it did nothing. Student never received the breathing techniques, visualization, or meditation instruction her plan called for.

The district also violated FAPE by failing to provide Student any meaningful educational services during her two-month expulsion from January to March 2006. When a student is expelled for a drug offense, federal law requires the district to continue providing educational services that allow the student to keep up with the general curriculum and work toward her IEP goals. Mailing a packet of schoolwork that Student never received — and then making no further contact for two months — did not satisfy this obligation.

Where the District Prevailed:

The ALJ found insufficient evidence that the district failed to provide timely assessments, failed to send proper IEP meeting notices, or was required to give Student written instructions on how to formally assign her special education rights to her advocates after she turned 18. Although the district did fail to conduct a new manifestation determination before the January 2006 expulsion — which the ALJ acknowledged was technically required — Student did not prove that this procedural error caused her to lose educational opportunity or prevented her from participating in the IEP process. Under the law, not every procedural violation rises to the level of a FAPE denial.

What Was Ordered

1. Student is entitled to 24 hours of individual instruction by a credentialed teacher in written language and reading. The instruction may be provided by district staff or arranged through an independent vendor.
2. Student is entitled to 3 hours of individual counseling by a licensed mental health professional who is not a district employee. The counseling must include methods Student can use to achieve a calmer, more relaxed state of mind — the very techniques her behavior plan originally required.
3. All other requests for relief were denied.

Why This Matters for Parents

1. A behavior plan that exists only on paper is worthless. The district created a behavior support plan and then abandoned it when Student declined two sessions. The law requires districts to actually implement the plan — or formally revise it. If your child has a behavior plan, document whether sessions are happening and whether the strategies are being used.

2. Expulsion does not end a district's educational obligations. When a student with a disability is expelled for drug, weapon, or violent conduct offenses, the district must continue providing educational services. Mailing unreceived worksheets does not count. If your child is expelled, immediately ask in writing what educational services the district is providing and how they will keep your child on track with their IEP goals.

3. A new discipline incident requires a new manifestation determination — even if the behavior is the same. The district in this case assumed that because smoking marijuana was already determined not to be a manifestation of Student's disability in October, it didn't need to do it again in January. The ALJ disagreed: each removal requires its own individualized review because circumstances can change.

4. Graduating doesn't erase a district's past violations. Even though Student had already graduated when the hearing concluded, she was still entitled to compensatory education to remedy the district's past failures. If your child has graduated but was denied services while in school, you may still have legal recourse.