Do special-education suspension and expulsion protections apply to private schools in Maryland?

Plain-English summary

A delegate asked the Attorney General in 1990 whether the State Board of Education's rules on suspending and expelling students with disabilities (the opinion uses the era's term, "handicapped children") applied to private schools or only to those getting public money, whether it mattered that a public program was available, and whether the Supreme Court's decision in Honig v. Doe controlled the issue in Maryland.

The answer turned on how the child got to the private school. If a local school system placed the child in a State-approved private school (a "public placement"), the federal Education of the Handicapped Act and the State regulation implementing it, COMAR 13A.08.01.07F, applied. Under Honig v. Doe, a suspension of more than ten days counts as a significant change in placement, so the full set of procedural safeguards kicks in, including keeping the child in the current placement while a dispute is resolved. If the parents chose and placed the child in a State-approved private school on their own (an "independent placement"), the federal act did not apply directly, but as a condition of State approval the school still had to adopt and follow its own procedures giving the parents notice, a hearing, and appeal rights before a lengthy suspension or expulsion, so the child's individualized education program (IEP) would not be undermined. And if a private school had no State approval at all, such as a church school that is exempt from the approval requirement and chooses not to seek it, no State regulation governed how it disciplined students with disabilities.

On the other two questions: whether a corresponding public program exists matters to the details of which procedures apply, and Honig v. Doe, though important, does not by itself resolve the Maryland questions, because Maryland's own State-approval requirements also come into play.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Much has changed since 1990. The federal Education of the Handicapped Act was renamed and heavily amended as the Individuals with Disabilities Education Act (IDEA), and its discipline provisions were rewritten by Congress in later years. Maryland's Education Article and the COMAR regulations cited here have been amended and renumbered, and, as the opinion's own footnote notes, the General Assembly enacted Chapter 702 in 1990 directly regulating this area. The terminology has changed too; "handicapped" has been replaced by "disability" in the governing statutes. Read the specific procedures, the ten-day threshold, and the citations here as the law as it stood in 1990, and check current federal and State law before relying on any of it.

Common questions

Could a private school suspend or expel a student with a disability however it wanted?
It depended on the school. Under this 1990 opinion, a State-approved private school could not; it had to follow protective procedures. A private school with no State approval, such as an exempt church school, was not subject to any State regulation on this and could set its own approach.

Did it matter who placed the child in the private school?
Yes, that was the key distinction. If a local school system placed the child there, the school had to follow the same federal and State procedures a public school would, including the safeguards triggered by Honig v. Doe. If the parents placed the child independently, the school had to follow its own procedures, providing notice, a hearing, and appeal rights, but was not bound to the exact public-school procedures.

What did Honig v. Doe decide?
The Supreme Court held that suspending a student with a disability for more than ten days is a "significant change in placement" under the federal act, so the full procedural safeguards apply and, as a rule, the child stays in the current placement until any dispute ends. The opinion treated it as important but not the whole answer for Maryland.

What is an IEP, and why does it matter for discipline?
An IEP, or individualized education program, is a written plan describing a student's special education needs and the services to meet them. A lengthy suspension or expulsion removes the child from classroom instruction and can undercut the IEP, which is why the opinion read the IEP requirement to carry with it protection against arbitrary removal.

Background and statutory framework

Maryland law required the State and each county to make free educational programs available to each child with a disability. A child identified as needing special education could be referred by the local board to a public placement; if no public placement was available, the child was to be placed in an approved nonpublic program, with the State and county paying the cost when the program (and the placement, cost, and payment) had State Department of Education approval. Parents did not have to accept the recommended placement. They could choose a different State-approved private school, though if a free appropriate public education was available and they placed the child privately on their own, the county was not obligated to pay. Parents could also choose a church-operated school exempt from the State approval requirement, but the State neither referred students to nor funded unapproved schools.

Suspension and expulsion of public school students is governed by ED §7-304 and COMAR 13A.08.01.07, and the regulation includes special procedures for students with disabilities under COMAR 13A.08.01.07F: a suspension over ten days or any expulsion goes to a local committee, parents may appeal under ED §8-415, and the student stays in the educational program during the appeal. Neither the statute nor that regulation applies directly to private schools, even ones receiving public funds, so the opinion worked through two situations. For public placements, the federal Education of the Handicapped Act conditions federal funds on the State ensuring that a child placed by a public agency in a private school keeps all the rights of a child served by a public agency (34 C.F.R. §300.401 and §300.2(c)), including the procedural safeguards of 20 U.S.C. §1415 and the Honig v. Doe rule that a suspension over ten days is a significant change in placement. Because Maryland accepts EHA funds and ED §8-403(c) bars lower standards for children in programs run by an agency other than a county board, those protections reach public placements in private schools.

For independent placements, the opinion looked to the conditions of State approval. A private school seeking State approval to offer special education must satisfy COMAR 13A.09.09.15 through .22, including adopting and implementing an IEP for each child with a disability, with contents essentially the same as in a public school. Although those regulations do not spell out suspension and expulsion procedures, the opinion reasoned that a lengthy removal from classroom instruction could gut the IEP, so a State-approved private school had to formulate its own procedures assuring the parents notice, a due process hearing, and appeal rights before an expulsion or a suspension that significantly changes placement. The EHA itself did not apply to an independent placement, and the public-placement procedures could not be copied over because they assume a role for local officials who never placed the child. Finally, a school with no State approval was subject to none of this and could set its own discipline rules. The opinion noted that the 1990 General Assembly had just enacted Chapter 702, directly regulating suspension and expulsion of children with disabilities consistent with Honig v. Doe, but said that did not change its analysis.

Citations and references

Statutes and regulations:

• §8-402(a) of the Education Article and ED §8-401(a), on the right to free educational programs and the definition of the covered children; ED §8-409(a), on nonpublic placement when no public program is available; and ED §8-403(c), barring lower standards for non-county-board programs
• ED §7-304 and ED §8-415, the public school suspension/expulsion and appeal provisions, and ED §2-206(e)(4), exempting bona fide church-organization schools from the approval requirement
• Chapter 702 (House Bill 1498) of the Laws of Maryland 1990, directly regulating discipline of children with disabilities
• The federal Education of the Handicapped Act, 20 U.S.C. §1401 et seq. (notably §1412(2), §1415, and §1401(a)(19)), and 34 C.F.R. §300.401, §300.403, and §300.2(c)
• COMAR 13A.08.01.07F (discipline of students with disabilities), 13A.09.09.15 through .22 (State approval of private special-education schools), and the IEP provisions at COMAR 13A.09.09.19D and 13A.09.09.16B

Cases:

• Honig v. Doe, 108 S.Ct. 592 (1988), holding that a suspension of more than ten days is a significant change in placement under the federal act

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 181-188 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Education — Handicapped Children — Expulsion and Suspension Procedures for Handicapped Children in Private Schools

July 18, 1990

The Honorable Samuel I. Rosenberg
Maryland House of Delegates

You have requested our opinion on the applicability of rules of the State Board of Education governing the expulsion and suspension of handicapped children. Specifically, your questions are as follows:

1. "Do the rules governing expulsion and suspension procedures apply to all private schools or only to those that receive public funds?"

2. "Is the availability of a corresponding public program of consequence?"

3. "Does Honig v. Doe, 108 S.Ct. 592 (1988), control this issue in Maryland and, if so, to what extent?"

For the reasons stated below, we conclude as follows:

1.    All State-approved private schools that offer special education and related services must follow procedures that protect a handicapped student against unwarranted disruption of the educational plan developed for that student. In the case of a student in a State-approved private school who is placed by a local board of education, the procedures are those specified in the federal Education for the Handicapped Act and the State regulation that implements it, COMAR 13A.08.01.07F. In the case of a student in a State-approved private school who is not placed by a local board of education, the procedures are those developed by the school itself, following the basic principles underlying the federal and State procedures but not bound to the details of them. If a private school does not have State approval, it is not subject to any regulatory requirements concerning the expulsion or suspension of handicapped students.

2.    The existence of a corresponding public program is relevant, as indicated in response to your first question, to the details of the procedures. That is, if a local board of education has offered an appropriate placement in a public program but the student's parents opt for a State-approved private school instead, the school need not follow the specific procedures in COMAR 13A.08.01.07F. Instead, as a condition of State approval, the school must articulate and adhere to its own procedures governing when and how that handicapped student can be expelled or suspended.

3.   Although Honig v. Doe is an important federal precedent in this area and influences our analysis, it alone does not resolve the questions that you have posed, for we must also take account of State approval requirements.

I

Background

State law specifically requires that "[t]he State and each county ... make free educational programs available to each handicapped child ...." §8-402(a) of the Education Article ("ED" Article).1 When a school-age child is identified as requiring special education services in order to learn, he or she may be referred by the local board of education to an appropriate public school placement. See ED §8-401(a). If no placement is available in a public program, the child "shall be placed in an appropriate nonpublic educational program that offers [special educational] services." ED §8-409(a). The State and county pay the cost of such a private placement if the State Department of Education has approved the program. ED §8-409(c)(1)(i).2

The parents of a handicapped child need not, however, accept the preferred placement.3 If parents decide that they wish to send their child to a private school, they are not limited in their choice. They may select a private school that has State approval but is different from the school recommended by the local board. If parents unilaterally select a private school placement when a free appropriate public education is available to a handicapped child, the county is not obligated to pay for the placement. See 34 C.F.R. §300.403.

Moreover, parents may select a church-operated private school that is exempt from the requirement that it obtain State approval. COMAR 13A.09.09.01C.4 Of course, the State does not provide referrals or funds to private schools that have not been approved. See ED §§8-403(c), 8-403(d)(6), and 8-409(a)(1).

II

Suspension or Expulsion Procedures

A. Introduction

The suspension or expulsion of students in public schools is governed by ED §7-304 and implementing regulations at COMAR 13A.08.01.07. The regulations contain special procedures and standards with respect to the suspension or expulsion of handicapped students from public schools. COMAR 13A.08.01.07F.

In brief, any suspension of more than 10 days or any expulsion is to be referred to a committee of the local school system. COMAR 13A.08.01.07F(2)(a). The parents have a right to appeal in accordance with the procedure of ED §8-415, and the student "shall be permitted to return to his or her educational program" during the appeal. COMAR 13A.08.01.07F(2)(a).

Neither the statute nor the regulation applies directly to any private school, even those that receive public funds. However, these provisions cannot be read in isolation. As we explain in Part IIB below, federal law mandates certain protections for a handicapped student who is placed in a private school by a local school system (which we will refer to as a "public placement"). In Part IIC below, we explain our view that a State regulation imposes a similar, but not identical, requirement on State-approved private schools for a handicapped student who is placed there by the student's parents independently (which we will refer to as an "independent placement").

B. Public Placements

The federal Education of the Handicapped Act, 20 U.S.C. §1401 et seq. ("EHA"), is a federal statute that conditions distribution of federal funds for the education of handicapped children on compliance by the states with its requirements. An important element in the EHA's statutory scheme is that every recipient state must take steps to ensure that when a local educational authority provides services directly to handicapped students, it complies with the EHA in all respects. See 20 U.S.C. §1412(2).

Federal regulations state explicitly that this obligation is not altered when a child is placed by the local public school system in a nonpublic school:

          Each State educational agency shall insure that a handicapped child who is placed in or referred to a private school or facility by a public agency:

          (3)(b) Has all of the rights of a handicapped child who is served by a public agency.

34 C.F.R. §300.401. A similar obligation is placed upon the local agency:

          Each public agency in the State is responsible for ensuring that the rights and protections under this part are given to children referred to or placed in private schools and facilities by that public agency.

34 C.F.R. §300.2(c).

The "rights" under the EHA include certain "procedural safeguards with respect to the provision of free appropriate public education ...." 20 U.S.C. §1415(a). One safeguard is "written prior notice to the parents or guardians of the child" of any proposal to "change ... the ... educational placement of the child or the provision of a free appropriate public education to the child." 20 U.S.C. §1415(b)(1)(c)(i). The parents are also entitled to "an impartial due process hearing" by local public education officials, review at the state level, and judicial review. 20 U.S.C. §1415(b)(2), (c), and (e)(2). During these proceedings, unless the parties agree otherwise, "the child shall remain in the then current educational placement of such child ...." 20 U.S.C. §1415(e)(3).

 In Honig v. Doe, 108 S.Ct. 592 (1988), the Supreme Court held that a suspension of a handicapped child for more than ten days is a "significant change in placement" under the EHA, and that therefore a school system could not suspend a child for that length of time or longer unless all EHA procedures were followed. As a practical matter, this means that if a suspension of more than 10 days is disputed by the parent of a handicapped student, the student must stay in his or her current placement until the dispute ends.5 This provision is a means of protecting the integrity of the child's individualized education program ("IEP"), which the Supreme Court characterized as "the center-piece of the [EHA's] educational delivery system for disabled children...." 108 S.Ct. at 598.

Maryland accepts federal funding under the EHA and therefore is obligated to ensure that the protections of that act are extended to handicapped children placed in private schools by local boards. State law reflects this obligation. Under ED §8-403(c), "[t]he standards for the education of handicapped children who are enrolled in programs that are operated by an agency other than a county board may not be lower than the standards for the education of children who are enrolled in programs that are operated by a county board."6

Hence, although the regulation governing the suspension or expulsion of a handicapped child, COMAR 13A.08.01.07F, speaks only of public schools, its procedures apply as well to public placements in private schools. The EHA, as interpreted by the Supreme Court, and state law require no less.7

C. Independent Placements

A private school that "offers special education and related services to students with special educational needs ..." and that seeks a State certificate of approval must satisfy the requirements set out in COMAR 13A.09.09.15 through .22.

In particular, a State-approved private school, whether or not it receives public funds, must adopt and implement an IEP for each handicapped child. COMAR 13A.09.09.19D(3). The contents of the IEP are essentially the same as if the student were in a public school. Compare COMAR 13A.05.01.06D with COMAR 13A.09.09.19D.

An IEP is "a written comprehensive statement which describes the special educational needs of the student and the special education and related services required to meet those needs." COMAR 13A.09.09.16B(1). The term is a borrowing from the EHA. See 20 U.S.C. §1401(a)(19). "Special education," also used in the EHA, "means instruction which is specially designed to meet the unique needs of a student with special educational needs and includes ... [c]lassroom instruction ...." COMAR 13A.09.09.16B(4).

Hence, although the regulations do not expressly address lengthy suspensions or expulsions, these disciplinary measures — which by definition remove a student from "classroom instruction" — could significantly affect the student's IEP. See Honig v. Doe, 108 S.Ct. at 598. If private schools could arbitrarily suspend or expel handicapped students, thereby changing their placement, the obligation to implement the IEP would be vitiated. In our view, the IEP requirement seeks to ensure that the handicapped child who attends a State-approved private school does not lose any educational opportunity by virtue of the fact that he or she is being educated in a private, instead of a public, setting.

However, the EHA itself does not apply to such an independent placement. Moreover, the procedures applicable to public placements cannot be applied directly, because they presuppose a role for local public school authorities that these officials simply do not play when they have not placed a child. See COMAR 13A.08.01.07F.

Until the State Board adopts regulations specifically addressing the suspension and expulsion of independently placed students in State-approved private schools, we can only advise as follows: A private school should itself formulate procedures that assure appropriate involvement of the independently placed student and the student's parents in decisions about an expulsion or any suspension that constitutes a significant change in placement. The procedures should provide notice to the parents, a due process hearing, and appeal rights to a senior officer within the school or in some other entity. If a school adopts procedures of this kind, it will have complied with its regulatory obligation to afford protection to the educational objectives of the IEP. See COMAR 13A.09.09.19D(3).8

D. Other Placements

If a private school is not State-approved — that is, if it is operated by a church and has chosen not to seek State approval — it is not subject to the IEP requirement or any other State regulation. Therefore, the procedures that such a school may adopt about the suspension or expulsion of handicapped students are left entirely to the school's discretion.

III

Conclusion

In summary, it is our opinion that a State-approved private school must apply the same procedures to the suspension or expulsion of a handicapped child who was placed by a local school system as would be applied if the child were in a public school. If a handicapped child is placed independently of the local school system, a State-approved private school must apply its own procedures, sufficient to afford to the child's parents notice, a fair hearing, and an opportunity to appeal any suspension of more than 10 days or any expulsion.

                                          J. Joseph Curran, Jr.
                                          Attorney General

                                          James P. Abbott
                                          Assistant Attorney General

                                          Jack Schwartz
                                          Chief Counsel
                                            Opinions & Advice

1
The term "handicapped child" is defined in ED §8-401(a).

2
The Department must also approve the placement, the cost, and the amount of payment. ED §8-409(c)(1)(ii), (iii), and (iv).

3
We use the term "parents" in this opinion for brevity's sake, but a child's guardian has the same rights.

4
Generally, any "noncollegiate educational institution" must obtain a certificate of approval from the State Board of Education. ED §2-206(e)(1). However, "an institution operated by a bona fide church organization" need not be approved. ED §2-206(e)(4).

5
The local school authorities may seek an injunction that orders an extended suspension or an expulsion.

6
Indeed, as we explain in Part IIC below, State-approved private schools are subject to regulatory requirements intended to safeguard the educational opportunity of all handicapped students, however they were placed. See COMAR 13A.09.09.15 through .22.

7
In the 1990 Session, the General Assembly enacted Chapter 702 (House Bill 1498), effective July 1, 1990, which directly regulates the suspension and expulsion of handicapped children by applying standards consistent with Honig v. Doe. Its enactment does not alter our analysis.
A proposed amendment to the regulation governing suspension and expulsion of handicapped children, COMAR 13A.08.01.07F, was withdrawn, pending reformulation in light of the passage of Chapter 702.

8
Alternatively, a private school may develop an IEP that, as part of the child's educational program, articulates procedures to be followed, including suspensions, in the event of misbehavior in the school environment. If this is done according to proper procedures, with full involvement of the parents, a subsequent suspension consistent with this portion of the IEP would not be a change in educational placement. It therefore would not trigger the procedures that would otherwise have to be followed.