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Tool 66: Weapons, Drugs, Injury: The 45-Day Placements and What They Don’t Erase

THE RULE

For three specific offenses, the school can move your child to a different educational setting for up to 45 school days (34 C.F.R. § 300.530(g)). It can do this even if the behavior was caused by your child’s disability. The three offenses are: carrying or possessing a weapon; knowingly possessing or using illegal drugs, or selling or soliciting the sale of a controlled substance; and inflicting serious bodily injury on another person. Each applies only at school, on school premises, or at a school function (34 C.F.R. § 300.530(g)).

Each of those words has a legal definition, and the definitions are narrow (34 C.F.R. § 300.530(i)). “Weapon” means a “dangerous weapon” as defined in federal criminal law, which excludes a pocket knife with a blade less than 2½ inches long (18 U.S.C. § 930(g)(2)). “Illegal drug” means a controlled substance, but not medication your child possesses or uses legally under the supervision of a licensed health-care professional. “Serious bodily injury” means injury involving a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a body part, organ, or mental faculty (18 U.S.C. § 1365(h)(3)). A shove, a scratch, or a bruise usually does not meet that standard.

The new setting is called an interim alternative educational setting, or IAES. Your child’s IEP team - which includes you - decides what that setting is (34 C.F.R. § 300.531). The school decides the removal; it does not get to pick the setting alone.

WHY IT MATTERS

This is the one place in the Individuals with Disabilities Education Act (IDEA) where the school, on its own authority, can remove your child for more than 10 school days without winning the manifestation question first. Districts know it. Some stretch these three categories to cover things the definitions do not reach - a butter knife becomes a “weapon,” a hallway scuffle becomes “serious bodily injury.”

Here is what the 45-day removal does not erase. Your child must keep receiving educational services - enough to keep participating in the general education curriculum and progressing on IEP goals, in the new setting (34 C.F.R. § 300.530(d)). The school must still hold a manifestation determination review within 10 school days of its decision (34 C.F.R. § 300.530(e); Tools 64 and 65). The school must tell you of the decision on the day it is made and hand you the procedural safeguards notice (34 C.F.R. § 300.530(h)). And you can appeal through an expedited hearing (34 C.F.R. § 300.532; Tool 67). The removal is a detour, not a termination.