Can Vermont schools pull a student from their classes and separate them from their peers in school during or after a BTA?
Yes.
However, Behavioral Threat Assessments are not supposed to bypass student protections in school discipline policies. They are not supposed to have more impact on students from historically marginalized backgrounds such as students with disabilities or students of color or New Americans.
In addition, if the student has a disability and has an IEP or 504 plan, a longer school removal could be a “change of placement.” There are rules about what must happen before a change of placement.
A 504 plan cannot be revised to change placement without re-evaluation. An IEP cannot be revised to change placement without a team meeting and agreement or LEA decision to change placement. Parents and guardians can appeal placement changes.
Can a student be kept out of school (suspended) for up to 10 days while a BTA is happening, or after it is done?
It depends.
If a school wants to keep a student out of school, the school must either:
- hold a suspension hearing before excluding the student from school, or
- if the student is an “immediate threat” to themselves or others, may suspend the student and hold a hearing as soon as possible thereafter.
If no immediate threat
The student must have an informal hearing before a school official before the suspension starts. A parent can choose whether to participate in the informal hearing. In practice, the informal hearing can amount to little more than a brief meeting with the school principal.
Even though the pre-suspension hearing is informal, certain standards must still be met. Students and parents have the right to:
- get notice of the behavior or “threat,”
- get an explanation of the evidence,
- have an opportunity to tell the student’s side of the story, and
- get a decision in writing from the school.
If immediate threat
A school district may take whatever action is appropriate under the circumstances, including immediate suspension, and then hold a hearing as soon as possible after.
Can a student be kept out of school (suspended) for MORE than 10 days or expelled by a Behavioral Threat Assessment Team?
Threat Assessment teams do not have the power to expel a student. Expulsion can only happen when regular expulsion rules are followed.
If a Threat Assessment team decides that a student is at high or extreme risk of harm, the BTA team could recommend suspension or expulsion.
If a school wants to keep a student out of school for more than 10 days during or after a BTA, a student and their parents or guardians have the right to a formal hearing before the local school board. The parents/guardians can choose whether to have the formal hearing. An expulsion always needs to be approved by the local school board.
At the formal School Board hearing, the parents/guardians must have the opportunity to present evidence including witnesses in the student’s favor. They must also have the chance to ask questions of the witnesses against the student.
To learn more about how get ready for the formal hearing, visit the School Suspension or Expulsion page on this website.
For long-term suspension or expulsion, if the student is an immediate threat, the student can be excluded from school and the formal school board hearing happens as soon as possible after.
Other rights before expulsion or long-term suspension include:
- getting written notice of the charges against the student; the date, time, and place of the formal hearing; the possible punishment the student may receive; and a statement of the student’s right to be represented by a lawyer at the hearing,
- getting a copy of all school records related to the student, and
- getting a decision in writing from the school.
Schools are not allowed to exclude a student from class or activities until these rights have been offered and actions completed.
What other rules apply to keeping students with disabilities out of school pending a BTA?
Student with 504 Plans
If a student is on a 504 plan or may qualify for a 504 plan because of a disability, the student is entitled to a re-evaluation and a manifestation determination review (MDR) before they school can remove them from the current educational placement for more than 10 consecutive or cumulative days.
If the conduct is a manifestation of disability, the 504 team can meet and change the 504 plan. This can include a change to placement or program. It can also include adding, changing, or enforcing, a behavior plan.
Weapons: If the student with a disability possesses or carries a weapon, the student can be placed in an Interim Alternative Educational Setting (IAES) determined by the 504 team. This is often tutoring in the home or at a public place.
If the conduct is not a manifestation of disability, the student can be disciplined as a student without a disability. This can include suspension or expulsion. Services under the 504 plan do not have to be provided.
Students with IEPs
The protections for students with IEPs are similar. These students also cannot be removed from school for more than 10 consecutive or cumulative days without a manifestation determination review. The school principal must consult with the student’s case manager. For removals more than 10 days, they also must consult with the Special Education Administrator.
If the conduct is a manifestation, the IEP team must either:
- conduct a functional behavioral assessment (FBA) and implement a behavior plan, or
- if there was already an FBA/BIP, review and modify it as necessary, and return the student to their prior placement.
There are only two reasons not to return the student to their prior placement:
- the parent and local education administrator (LEA) agree to a change of placement as part of a behavior plan; or
- if the student carried or possessed a weapon, or knowingly possessed or used illegal drugs or sold/solicited drugs, or inflicted “serious bodily injury” on another, the student can be sent to an IAES for up to 45 days.
If the conduct is not a manifestation of disability, after consulting with the Special Education Administrator, a school may discipline the student in the same manner as a student with disabilities. However, the student must continue to receive educational service to continue to participate in the general education curriculum and to progress toward meeting their IEP goals, which may be provided at an IAES. A functional behavioral assessment and behavior intervention services designed to prevent recurrence of the behavior may also be provided.
Appeal
A parent of a student who has either a 504 Plan or an IEP and who disagrees with disciplinary action can file for Due Process and/or file a complaint with the U.S. Department of Education Office of Civil Rights. For more information about Due Process, see our Resolving Special Education Disputes in Vermont: A Parent’s Guide.
For students on IEPs, a parent can appeal a manifestation determination. A school can appeal a return to the prior placement if it believes that the student “is substantially likely to injury the child or others.” The appeal will be expedited, but the student will be placed in an IAES during the appeal.
Students not yet eligible
If a student does not yet have an IEP, but their school or district had knowledge of a disability before the conduct occurred, they are also protected by these rules and have a right to an MDR before discipline exceeding 10 days.
Do any other rules apply to keeping students in other protected classes out of school pending a BTA?
The Office of Civil Rights at the U.S. Department of Education (OCR) is concerned about discriminatory discipline. In May 2023, OCR issued its most recent guidance on this, specifically about race discrimination in school discipline.
Although the guidance is about discipline, not BTAs specifically, it makes clear that OCR wants to know if schools are treating students of some races more harshly than others. This can be a form of discrimination called “pattern or practice.” OCR has also investigated districts that had policies that were explicitly discriminatory or had an extra impact on students of certain races.
If parents or guardians believe a school or district is using a BTA in a discriminatory way, they can make a complaint to:
- Office of Civil Rights at the U.S. Department of Education — complaint form
- Human Rights Commission in Vermont — complaint form
