District Wins: Not Every Classroom Removal Counts as a Suspension

A parent filed an expedited due process hearing against Capistrano Unified School District and Journey Charter School, arguing that her 11-year-old son with ADHD, autistic-like behaviors, and a specific learning disability was suspended more than 10 days during the 2013-2014 school year without required manifestation determinations. The ALJ found that the parent incorrectly characterized counseling sessions, a threat assessment, and IEP-compliant redirections as suspensions. Because the student served no more than 10 total days of formal suspension, the district had no legal obligation to conduct additional manifestation determinations, and all of the parent's claims were denied.

What Happened

The student was an 11-year-old boy attending Journey Charter School, a school that operated under a charter granted by Capistrano Unified School District. He had been found eligible for special education under three categories: other health impairment (due to ADHD), autistic-like behaviors, and specific learning disability. He had significant behavioral challenges — poor impulse control, difficulty reading social situations, and recurring conflicts with peers and staff — and had an active behavior intervention plan. During the 2013-2014 school year, he was formally suspended on four separate occasions: two days for throwing a rock at an aide, six days connected to bringing a knife to school (including the day he was held out pending a manifestation determination), one day for hitting and throwing a peer, and one day for throwing hot water at a classmate. The district conducted a manifestation determination after the knife incident and found that the behavior was a manifestation of his disability, so he was not expelled.

The student's mother believed that several additional classroom removals — including a brief counseling session with an administrator, a 30-minute threat assessment by a sheriff's deputy, time spent in a conference room during statewide testing when her son refused to enter his RSP classroom, and a redirection to a preferred "hand-working" art class during a behavioral outburst — each counted as additional in-school suspensions. Under her count, the student had been suspended more than 10 days, which would have triggered the right to additional manifestation determinations and instructional services during suspension days. She filed an expedited due process complaint on that basis.

What the ALJ Found

The ALJ ruled entirely in favor of the district and charter school. Key findings included:

Brief counseling and deescalation are not suspensions. The September 6, 2013 removal by the assistant director (less than 30 minutes, resulting in a "reflection card" and return to class) and the September 11, 2013 threat assessment by a sheriff's deputy (approximately 30 minutes, triggered by the student's suicidal and homicidal statements) were not disciplinary removals. Neither was punitive in nature, and both were consistent with the student's IEP and behavior intervention plan.
A student's own refusal to attend class is not a school-imposed suspension. On May 14, 2014, the student refused to enter his RSP classroom for state testing. Because the general education classrooms were occupied with testing and no alternative space was immediately available, the student spent the day in a conference room with an aide. The ALJ found this was not a disciplinary removal — it resulted from the student's own conduct, not a unilateral decision by the school to remove him.
Removal for IEP-required testing is not a suspension. On May 15, 2014, the student was placed in a conference room to take the California Modified Assessment per his IEP. This was an IEP-compliant accommodation, not discipline.
Redirecting a student to a preferred activity per his BIP is not a suspension. On May 16, 2014, after a classroom outburst, staff moved the student to a preferred art class ("hand-working class") consistent with his behavior intervention plan's guidance to use preferred activities for deescalation. This was implementation of the IEP, not punishment.
The parent did not meet her burden of proof. As the filing party, the student bore the burden of proving the claims by a preponderance of evidence. The mother's testimony about alleged additional half-day in-school suspensions surrounding each formal suspension was not supported by evidence, while school staff testimony and attendance records showed no more than 10 formal suspension days.
Because suspension never exceeded 10 days, no additional manifestation determinations were required. The district had already conducted a proper manifestation determination after the knife incident — the only event that triggered the legal threshold. No further determinations were legally required.

What Was Ordered

All of the student's claims were denied.
No compensatory education was ordered.
No additional manifestation determinations were required.
Capistrano Unified School District and Journey Charter School were declared the prevailing parties on all issues.

Why This Matters for Parents

The 10-day suspension threshold only counts formal, disciplinary removals. Not every time your child leaves the classroom counts as a suspension. Courts and ALJs distinguish between disciplinary removals (which count toward the 10-day limit) and other removals — such as counseling breaks, threat assessments, IEP-directed testing accommodations, or BIP-guided deescalation. Know the difference before filing a claim based on a suspension count.
Document everything in writing in real time. The mother's testimony about alleged half-day in-school suspensions was not corroborated by records. If you believe your child is being informally suspended or kept out of class, write to the school immediately (email creates a timestamp), request written confirmation of any removal, and keep your own log with dates and times.
A behavior intervention plan that authorizes "breaks" and "preferred activities" can be used by the school to justify classroom removals. If your child's BIP includes deescalation strategies like movement breaks or preferred activity redirection, the school may use those strategies — and those removals may not count toward the 10-day limit. Review your child's BIP carefully and make sure it is specific enough that you understand exactly what it authorizes.
The parent who files has the burden of proof. In California OAH due process hearings, the party that files the complaint must prove their claims by a preponderance of the evidence. If you file, come prepared with documentation — suspension notices, attendance records, written communications from the school, and any other records that support your count of days. Testimony alone, without corroborating records, may not be enough.
A manifestation determination that finds conduct IS a manifestation still doesn't lock in the student's placement forever. In this case, the IEP team found the knife-bringing was a manifestation of the student's disability — but the team also used that meeting to propose a more restrictive placement. Even when a manifestation finding protects your child from expulsion, the district can still propose a placement change through the IEP process. If you disagree with that placement, you must respond formally (by rejecting the IEP offer in writing) and understand your stay-put rights.

What Happened

What the ALJ Found

The ALJ ruled entirely in favor of the district and charter school. Key findings included:

Brief counseling and deescalation are not suspensions. The September 6, 2013 removal by the assistant director (less than 30 minutes, resulting in a "reflection card" and return to class) and the September 11, 2013 threat assessment by a sheriff's deputy (approximately 30 minutes, triggered by the student's suicidal and homicidal statements) were not disciplinary removals. Neither was punitive in nature, and both were consistent with the student's IEP and behavior intervention plan.
A student's own refusal to attend class is not a school-imposed suspension. On May 14, 2014, the student refused to enter his RSP classroom for state testing. Because the general education classrooms were occupied with testing and no alternative space was immediately available, the student spent the day in a conference room with an aide. The ALJ found this was not a disciplinary removal — it resulted from the student's own conduct, not a unilateral decision by the school to remove him.
Removal for IEP-required testing is not a suspension. On May 15, 2014, the student was placed in a conference room to take the California Modified Assessment per his IEP. This was an IEP-compliant accommodation, not discipline.
Redirecting a student to a preferred activity per his BIP is not a suspension. On May 16, 2014, after a classroom outburst, staff moved the student to a preferred art class ("hand-working class") consistent with his behavior intervention plan's guidance to use preferred activities for deescalation. This was implementation of the IEP, not punishment.
The parent did not meet her burden of proof. As the filing party, the student bore the burden of proving the claims by a preponderance of evidence. The mother's testimony about alleged additional half-day in-school suspensions surrounding each formal suspension was not supported by evidence, while school staff testimony and attendance records showed no more than 10 formal suspension days.
Because suspension never exceeded 10 days, no additional manifestation determinations were required. The district had already conducted a proper manifestation determination after the knife incident — the only event that triggered the legal threshold. No further determinations were legally required.

What Was Ordered

All of the student's claims were denied.
No compensatory education was ordered.
No additional manifestation determinations were required.
Capistrano Unified School District and Journey Charter School were declared the prevailing parties on all issues.

Why This Matters for Parents

The 10-day suspension threshold only counts formal, disciplinary removals. Not every time your child leaves the classroom counts as a suspension. Courts and ALJs distinguish between disciplinary removals (which count toward the 10-day limit) and other removals — such as counseling breaks, threat assessments, IEP-directed testing accommodations, or BIP-guided deescalation. Know the difference before filing a claim based on a suspension count.
Document everything in writing in real time. The mother's testimony about alleged half-day in-school suspensions was not corroborated by records. If you believe your child is being informally suspended or kept out of class, write to the school immediately (email creates a timestamp), request written confirmation of any removal, and keep your own log with dates and times.
A behavior intervention plan that authorizes "breaks" and "preferred activities" can be used by the school to justify classroom removals. If your child's BIP includes deescalation strategies like movement breaks or preferred activity redirection, the school may use those strategies — and those removals may not count toward the 10-day limit. Review your child's BIP carefully and make sure it is specific enough that you understand exactly what it authorizes.
The parent who files has the burden of proof. In California OAH due process hearings, the party that files the complaint must prove their claims by a preponderance of the evidence. If you file, come prepared with documentation — suspension notices, attendance records, written communications from the school, and any other records that support your count of days. Testimony alone, without corroborating records, may not be enough.
A manifestation determination that finds conduct IS a manifestation still doesn't lock in the student's placement forever. In this case, the IEP team found the knife-bringing was a manifestation of the student's disability — but the team also used that meeting to propose a more restrictive placement. Even when a manifestation finding protects your child from expulsion, the district can still propose a placement change through the IEP process. If you disagree with that placement, you must respond formally (by rejecting the IEP offer in writing) and understand your stay-put rights.