Virginia School Discipline for Special Education Students: Suspension and Expulsion

When a student with an IEP is suspended or facing expulsion, different rules apply. Virginia's special education regulations under 8 VAC 20-81 — combined with federal IDEA protections — create a framework that limits how schools can remove students with disabilities from their educational placements. Most parents don't know these rules exist until their child is already sitting at home and the school is moving toward a long-term suspension.

The 10-Day Cumulative Threshold

The foundational rule under IDEA, which Virginia implements through its regulations, is the 10-school-day cumulative threshold. A school may suspend a student with an IEP for up to 10 school days in a school year without triggering special education protections, as long as there is no pattern of exclusions.

Once suspensions accumulate past 10 school days in a school year — whether from one incident or multiple — the school must begin providing educational services. For suspensions beyond 10 cumulative school days, the school cannot simply remove the child from the educational environment without ensuring FAPE continues. Services must be provided to the extent necessary to allow the student to continue to participate in the general education curriculum and progress toward their IEP goals.

What counts as a "day": Courts and Virginia administrative hearings have generally counted school days, not calendar days. In-school suspensions that deprive the student of the opportunity to participate in the curriculum generally count toward the threshold. Suspensions during which the student receives no educational services count.

Pattern of exclusions: Even before the 10-day cumulative threshold is crossed, Virginia schools must consider whether a series of short suspensions constitutes a pattern — that is, whether the exclusions are for substantially similar behavior, the total length of the exclusions, and the proximity of the exclusions to each other. If a pattern exists, it may constitute a change of placement triggering stronger protections regardless of whether 10 days has been reached.

What Happens After 10 Days: Change of Placement Rules

A suspension exceeding 10 consecutive school days, or a series of shorter suspensions that constitutes a change of placement, triggers a mandatory process before the school can remove the student from their educational placement.

Step 1: Manifestation Determination Review (MDR)

Within 10 school days of the disciplinary decision, the school must conduct a manifestation determination review with the parent and relevant IEP team members. The MDR answers two questions:

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

If the answer to either question is yes — the behavior was a manifestation of the disability — the school cannot impose a long-term suspension or expulsion as discipline. The student must either return to the placement from which they were removed, or the IEP team may agree to an alternative placement if the current placement is no longer appropriate.

See Virginia manifestation determination for a detailed breakdown of that process and how to challenge an MDR outcome.

Step 2: Functional Behavioral Assessment and BIP

If the behavior was a manifestation of the disability and a Functional Behavioral Assessment hasn't already been conducted, the school must conduct one and implement a Behavioral Intervention Plan (or review an existing BIP if one is in place). See Virginia functional behavioral assessment for what this process requires.

Special Circumstances: When Schools Can Remove Students Longer

IDEA provides a narrow set of "special circumstances" under which a school may remove a student with an IEP to an Interim Alternative Educational Setting (IAES) for up to 45 school days — even if the behavior was a manifestation of the disability:

• Weapons: The student carries or possesses a weapon to or at school or a school function
• Drugs: The student knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance at school or a school function
• Serious bodily injury: The student has inflicted serious bodily injury upon another person while at school, at a school function, or on school premises

The 45-day IAES must still be a placement that provides FAPE — the student must continue to receive services and participate in the general education curriculum.

Expulsion: What Virginia Schools Can and Cannot Do

Under 8 VAC 20-81-173, a student with a disability who violates a code of student conduct may be expelled, but the expulsion cannot be used to cut off FAPE. This means:

• A student with an IEP who is expelled must still receive FAPE during the expulsion period, unless the parents and the school agree otherwise
• Virginia school boards have the authority to expel students with disabilities under the same standards as non-disabled students, but only when the conduct was NOT a manifestation of the disability
• If the conduct WAS a manifestation of the disability, expulsion cannot be used as the disciplinary measure

In practice, this means a student with an IEP who has been expelled must still receive services. The services may be delivered in an alternative location, but the school division cannot simply terminate the student's education.

What Parents Should Do When Discipline Issues Arise

Document everything. Keep a log of every suspension — the date, the duration, the stated reason, and whether services were provided during the suspension. When you're approaching the 10-day cumulative threshold, you need to know exactly where you stand.

Request the MDR in writing. If your child faces a suspension beyond 10 days or a recommended expulsion, put your request for an MDR in writing immediately. Don't wait for the school to schedule it — proactively stating your request creates a paper trail.

Review the IEP before the MDR. Before the manifestation determination meeting, review your child's IEP, behavior support plan, and recent progress notes. The "failure to implement the IEP" prong of the MDR is often the easier argument to make — if there's a service that wasn't being provided consistently or a BIP that wasn't being followed, that goes directly to whether the school's failure contributed to the behavior.

Know your placement rights. A school cannot change your child's placement as part of the disciplinary process without following the required procedures. If the school is trying to move your child to a more restrictive setting in the wake of a disciplinary incident, that is a placement change that requires the full IEP team process, prior written notice, and your consent (or a due process hearing if you disagree).

Request an FBA if none exists. If your child is experiencing repeated disciplinary incidents and there's no FBA or BIP in place, that's a gap. Request one in writing. The existence of documented behavioral support typically strengthens your child's protections during the MDR process.

The Virginia IEP & 504 Blueprint includes templates for requesting MDRs, documenting suspension patterns, and responding in writing when the school moves toward a placement change without following required procedures.

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