School Suspension and Special Education Discipline in New Mexico

When a student with a disability is suspended, the school is not dealing with a typical disciplinary situation. Federal IDEA law and New Mexico administrative code impose a specific procedural framework that determines how long a student can be removed, whether they can be expelled, and what services must continue in their absence.

Most parents don't know these rules until the school is already mid-process — or until the suspension has already exceeded what's legally permitted. Here's what the law actually says.

The 10-Day Rule: The Foundation of Special Education Discipline

Under NMAC 6.31.2.13 and federal IDEA regulations, a school cannot suspend or remove a student with a disability from their current educational placement for more than 10 cumulative school days in a single academic year without triggering additional procedural safeguards.

Once removals exceed 10 cumulative days, any subsequent removal constitutes a disciplinary change of placement. This is a significant legal threshold.

When a disciplinary change of placement occurs:

• The school must provide the parents with immediate notice of the decision on the exact day it's made
• The parents must receive a copy of their procedural safeguards on that same day
• A Manifestation Determination Review (MDR) must be scheduled

A school principal cannot unilaterally decide the educational program for a student during a long-term suspension or expulsion. That decision belongs to the IEP team.

What Is a Manifestation Determination Review?

An MDR is a meeting that must occur no later than 10 school days after the decision to remove the student beyond the threshold. The MDR team includes the parents and relevant members of the IEP team.

The MDR team must answer two specific legal questions:

1. Was the conduct that resulted in the discipline caused by, or did it have a direct and substantial relationship to, the student's disability?
2. Was the conduct the direct result of the school district's failure to implement the student's IEP?

If the answer to either question is yes, the behavior is classified as a manifestation of the disability. The consequences are immediate:

• The student cannot be subjected to standard exclusionary discipline
• The student must be returned to their previous placement (unless the parents agree to a different placement)
• The IEP team must either conduct a Functional Behavioral Assessment (FBA) and create a Behavioral Intervention Plan (BIP), or review and modify an existing BIP to address the behavior

If the MDR determines the behavior was not a manifestation of the disability, standard disciplinary procedures apply — but with a critical exception: FAPE must continue even during the expulsion period.

Even a student who is expelled must continue to receive Free Appropriate Public Education. The IEP team must meet to design services that allow the student to keep participating in the general curriculum and progressing toward IEP goals — even from an alternative setting.

Special Circumstances: When Schools Can Remove for Up to 45 Days

Three categories of conduct allow a school to remove a student with a disability to an Interim Alternative Educational Setting (IAES) for up to 45 school days, regardless of whether the behavior was a manifestation of the disability:

1. Weapons: The student carried or possessed a weapon at school, on school premises, or at a school function
2. Illegal drugs: The student knowingly possessed or used illegal drugs, or sold or solicited the sale of a controlled substance at school
3. Serious bodily injury: The student inflicted serious bodily injury on another person at school or a school function

In these three circumstances, the 45-day IAES removal can proceed before the MDR is completed. However, the MDR must still happen within 10 school days, and FAPE must still continue in the IAES.

What FAPE During Suspension Actually Means

"FAPE continues" isn't just a statement of principle. It requires the IEP team to meet and determine:

• What services the student will receive during the removal period
• Where those services will be delivered (the IAES or another setting)
• How the student will continue to access the general education curriculum
• How the student will continue making progress toward their IEP goals

A school cannot simply say "the student is suspended, come back in 10 days." Services must continue. If the school is not providing services during a suspension that has triggered the disciplinary change of placement threshold, they are violating the student's right to FAPE and you have grounds for a state complaint.

When the IEP Itself Is the Problem

The second MDR question — whether the conduct was a direct result of the district's failure to implement the IEP — is one that parents often overlook. If your child's IEP includes behavioral supports, a Behavioral Intervention Plan, or specific accommodations to address behaviors related to their disability, and the school hasn't been implementing those components, the resulting behavioral incident is legally linked to the school's failure.

Document whether the school has been following the IEP. If your child has a BIP and teachers aren't using it, or if de-escalation protocols exist in the IEP but staff aren't trained on them, that's a IEP implementation failure — and it matters at the MDR.

If You Disagree with the MDR Outcome

The MDR is not a one-sided process, but schools sometimes conduct them in ways that minimize parental input or rush to a "not a manifestation" conclusion. If you believe the MDR outcome was incorrect — that the conduct was related to the disability and the team got it wrong — you have the right to appeal.

Options include:

• Requesting an expedited due process hearing (which must be scheduled within 20 school days)
• Filing a state complaint with the NMPED Office of Special Education
• Requesting facilitated mediation

During the pendency of an appeal, your child's placement is generally maintained as the IAES the school placed them in, unless a hearing officer orders otherwise.

Patterns of Short Suspensions: A Known Tactic

Some schools use multiple short suspensions — each just under 10 days — to avoid triggering the disciplinary change of placement threshold. Under federal guidance, a pattern of short suspensions can still constitute a change of placement if the suspensions total more than 10 school days in a year, are substantially similar to each other, and share other factors like duration and proximity.

If your child is receiving a series of short suspensions and each is for similar behavioral incidents, document them carefully. A pattern that circumvents the 10-day rule while producing the same practical effect — extended removal from school — can be challenged.

Proactive Steps Before Discipline Becomes a Crisis

If your child has recurring behavioral challenges, there are preventive steps that reduce the risk of punitive discipline:

Request a Functional Behavioral Assessment (FBA). An FBA identifies the function of the behavior — what the child is communicating or avoiding — so the intervention addresses the cause rather than just the symptom. You can request an FBA as part of an initial evaluation or as an IEP amendment at any time.

Ensure the BIP is in the IEP and actually implemented. A BIP is only useful if staff know it exists and are trained to use it. Ask at each annual IEP review how staff are trained on the BIP.

Get behavioral goals in writing. Vague language about "appropriate behavior" doesn't create an enforceable standard. Specific behavioral goals with data collection requirements give you a paper trail.

Clarify communication protocols. The IEP should specify how the school will notify you when behavioral incidents occur, before they escalate to the level of disciplinary action.

The New Mexico IEP & 504 Blueprint covers the discipline and manifestation determination framework in detail, including scripts for MDR meetings, language to request in a BIP, and the state complaint pathway when schools violate the FAPE-during-suspension requirement. Behavioral issues are one of the most common reasons parents in New Mexico find themselves in confrontation with their districts — knowing the rules before the meeting is the most important preparation.

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