Pepple&Waggoner, Ltd. Attorneys at Law

Pepple & Waggoner, Ltd. Attorneys At Law

DISCIPLINE OF STUDENTS WITH DISABILITIES UNDER THE IDEA
By R. Brent Minney, Esq.

Special Education Workshop
Muskingum Valley Educational Service Center
October 5, 2001

I. DISCIPLINE OF NONDISABLED CHILDREN

A. Goss v. Lopez, 419 U.S. 565 (1975)

1. Temporary suspensions require minimum due process guarantees:

a. Prior notice.

b. Presentation of grounds for intended suspension.

c. Opportunity to present explanation and/or defense.

B. O.R.C. '3313.661CStudent Conduct Policy

1. Specific infractions.

2. Applicability to students with disabilities.

C. O.R.C. '3313.66

1. Suspension.

2. Expulsion.

3. Permanent exclusion.

4. Emergency removal.

5. Other disciplinary procedures/measures.

II. DISCIPLINE OF STUDENTS WITH DISABILITIES

A. Historical Cases

S-1 v. Turlington, 635 F.2d 342 (5th Cir. 1981)

a. Expulsion of handicapped child constitutes change of placement invoking procedural safeguards of IDEA.

b. Handicapped student cannot be expelled if misconduct is manifestation of his/her handicap.

c. Handicapped student may be expelled if there is no relationship between misconduct and handicap, but there may not be complete cessation of educational services during expulsion period.

2. Kaelin v. Grubbs, 682 F.2d 595 (6th Cir. 1982)

a. The Court followed Turlington in holding that expulsion of a handicapped child is a change of placement which invokes procedural protections of IDEA and handicapped child may be expelled in appropriate circumstances. But, during period of expulsion, there may not be a complete cessation of educational services.

b. However, handicapped child may not be expelled if disruptive behavior was a manifestation of his/her handicap.

c. A handicapped child may be suspended temporarily without employing IDEA procedures so long as he/she receives procedural protections of Goss v. Lopez, supra.

3. Lamont X. v. Quisenberry, 606 F. Supp. 809 (S.D. Ohio 1984)

a. Long term suspension of handicapped children even when home instruction was provided constituted change of placement under IDEA.

b. Home instruction program was not a normal procedure used by school district for dealing with disruptive students.

4. Honig v. Doe, 484 U.S. 305, 108 S. Ct. 592, 98 L. Ed.2d 686 (1988)

a. Issues

i. Whether "stay-put" provision precludes school authorities from unilaterally excluding disabled children from the classroom for dangerous or disruptive conduct growing out of their disabilities.

ii. Whether a district court may order the state to provide educational services directly to a disabled child when the local agency fails to do so.

b. Decision

i. Case was moot as to Respondent Doe, who was 24 years old.

ii. The Court refused to add a "dangerousness" exception to the "stay-put" provision of the IDEA.

iii. "Stay-put" provision prohibits unilateral action by school officials.

iv. IDEA does not limit equitable powers of court to temporarily enjoin dangerous handicapped child from attending school.

v. School authorities may utilize normal procedures in dealing with dangerous children and may suspend for up to 10 school days.

vi. Divided Court affirmed decision of Court of Appeals that state may be ordered to provide services directly to disabled child when local agency fails to do so.

5. Light v. Parkway C-2 School District, 21 IDELR 933 (8th Cir. 1994)
Court set forth two-part test for removal of dangerous disabled student from his/her educational placement to be met by school district.

a. Whether maintaining child in current placement is substantially likely to result in injury to the child or others; and
b. Whether the school district took steps to minimize the risk that the student will cause injury.

B. Individuals with Disabilities Education Act (IDEA), 20 U.S.C. ' 1400 et seq.

1. Free Appropriate Public Education (FAPE)

a. Each state must have in effect a policy that ensures that FAPE is available to all children with disabilities residing in the state between the ages of 3 and 21, including children with disabilities who have been suspended or expelled (34 C.F.R. '300.121(a)).

b. However, a public agency need not provide services during periods of removal under '300.520(a)(1) to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if services are not provided to a child without disabilities who has been similarly removed (34 C.F.R. '300.121(d)(1)).

c. School personnel may order, to the extent removal would be applied to children without disabilities, the removal of a child with a disability from the child's current placement for not more that 10 consecutive school days for any violation of school rules, and additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct, so long as those removals do not constitute a change of placement (34 C.F.R. '300.520(a)(1)(i)).

d. No manifestation hearing, functional behavior assessment or behavior intervention plan, because there is no obligation to provide FAPE.

e. However, after a child with a disability has been removed from his or her current placement for more than 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the IEP (34 C.F.R. '300.520(a)(1)(ii)).

f. Also, note that, as part of the IEP process, the IEP team shall, in the case of a child whose behavior impedes his or her learning or that of others, consider, if appropriate, strategies, including positive behavior interventions, strategies, and supports to address that behavior (34 C.F.R. '300.346(a)(2)(i)). Focus is on preventing inappropriate behaviors from occurring in the first place.

g. Day is defined as any day, including a partial day, that children are in attendance at school for instructional purposes (34 C.F.R. '300.9).

i. Days that are counted are days that the child is removed from "the current placement".

ii. Portions of a school day that a child has been suspended would be included in determining whether the child has been removed for more than 10 cumulative school days or subjected to a change of placement under '300.519 (Attachment 1CAnalysis of Comments and Changes).

iii. In-school suspension would not be considered a part of the days of suspension so long as the child is afforded the opportunity to continue to appropriately progress in the general curriculum, continue to receive the services specified on his or her IEP, and continue to participate with nondisabled children to the extent they would have in their current placement (Attachment 1CAnalysis of Comments and Changes).

iv. Whether a bus suspension would count as a day of suspension would depend on whether the bus transportation is part of the child's IEP. If the bus transportation is part of the child's IEP, a bus suspension will be treated as a suspension under '300.520, unless the public agency provides the bus service in some other way, because that transportation is necessary for the child to obtain access to the location where all other services will be delivered. If the bus transportation is not part of the child's IEP, a bus suspension would not be a suspension under '300.520. In those cases, a child or his or her parents would have the same obligation to get to and from school as a nondisabled child who had been suspended from the bus. However, a public agency should attend to whether the behavior on the bus is similar to behavior in a classroom that is addressed in an IEP and whether bus behavior should be addressed in the IEP or a behavioral intervention plan (Attachment 1CAnalysis of Comments and Changes).

2. Change of Placement (34 C.F.R. '300.519)

a. The removal is for more than 10 consecutive school days.

b. The child is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another.

c. School personnel may remove a child with a disability from his or her current placement for not more than 10 school days at a single time, but there is no specific limit on the number of days in a school year that a child may be removed. However, school authorities may not remove a child with disabilities from the child's current educational placement if that removal constitutes a change of placement (Attachment 1CAnalysis of Comments and Changes).

d. A change of placement occurs if the removal is for more than 10 consecutive days, or the child is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days. Multiple short-term removals of 10 consecutive days or less for separate incidents of misconduct are permitted, to the extent removals would be applied to children without disabilities, so long as those removals do not constitute a change of placement. Neither the IDEA nor the final regulations impose absolute limits on the number of days a child can be removed from his or her placement in a school year. Letter to Zirkel, 31 IDELR 138 (OSEP 1999)

e. School personnel are not permitted to use repeated disciplinary removals of 10 school days or less as a means of avoiding the normal change of placement protections afforded by the IDEA. Whether a pattern of removals constitutes a change of placement will be determined on a case-by-case basis by the public agency and subject to thorough due process and judicial proceedings (Attachment 1CAnalysis of Comments and Changes).

f. Either before or not later than 10 business days after either first removing the child for more than 10 school days in a school year or commencing a removal that constitutes a change of placement--

i. Convene IEP meeting to develop a functional behavior assessment (FBA) plan.

ii. Complete assessments required by the plan.

iii. Convene IEP meeting to develop and implement appropriate behavioral interventions to address the behavior (34 C.F.R. '300.520(b)).

iv. Conduct manifestation determination review not later than 10 school days after date on which decision to take action is made (34 C.F.R. '300.523(a)(2)).

v. Not later than date on which decision to take action is made, notify parents of decision and provide procedural safeguards notice (34 C.F.R. '300.520(b)).

vi. If a child with a behavior intervention plan (BIP) and who has been removed from his or her current placement for more than 10 school days in a school year is subjected to a removal that does not constitute a change of placement, the IEP team must review the BIP and its implementation to determine if modifications are necessary (34 C.F.R. '300.520(c)).

3. The Eleventh Day Requirements

a. Hold IEP meeting within 10 business days.

i. Create or review FBA.

ii. Create or review BIP.

iii. Determine whether BIP was properly implemented.

iv. Determine whether there was a change of placement and if so, conduct manifestation determination.

b. Continue to provide services to the extent necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP (34 C.F.R. '300.520 (a)(1)(ii)).

4. Short Term Suspensions Beyond 10 Consecutive School Days That Do Not Constitute A Change of Placement

a. School personnel may implement short-term disciplinary action even after a student has been removed for 10 school days in a school year. But, services must be provided to extent necessary to enable child to appropriately progress in the general curriculum and appropriately advance toward achieving goals set out in IEP.

b. Under '300.520(a)(1), school personnel may order the removal of a child with a disability from the child's current placement for not more than 10 consecutive school days for any violation of school rules, and additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct, as long as these removals do not constitute a change of placement under '300.519(b). However, these removals are permitted only to the extent they are consistent with discipline that is applied to children without disabilities. Also, school personnel should be aware of constitutional due process protections that apply to suspensions of all children. Goss v. Lopez, supra. '300.121(d) addresses the extent of the obligation to provide services after a child with a disability has been removed from his or her placement for more than 10 school days in the same school year (Appendix A to Part 300CNotice of Interpretation, Question 40).

c. School personnel, in consultation with child's special education teacher, determine the extent to which services are necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP if child is removed under authority of school personnel to remove for not more than 10 consecutive school days as long as that removal does not constitute a change of placement (34 C.F.R. '300.121(d)(3)(i)).

d. All members of IEP team must be notified that a short term removal has occurred, and they must be asked to review BIP and its implementation to determine if IEP meeting should be convened (34 C.F.R. '300.520(c)).

e. The child's IEP team determines the extent to which services are necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP if the child is removed because of behavior that has been determined not to be a manifestation of the child=s disability (34 C.F.R. '300.121(d)(3)(ii)).

5. Functional Behavior Assessment (FBA)

a. Not defined in the law or the regulations.

b. FBA is to be developed by the IEP Team.

c. Does not have to be complex.

d. May be a review of existing data that can be completed at the IEP meeting called to develop the assessment plan.

e. FBA is a systematic process for describing problem behavior, identifying the environmental factors, the setting and the events that predict problem behavior, and guiding the development of effective and efficient behavioral support plans. This information is used to identify and teach appropriate replacement behaviors and reduce the frequency and severity of problem behavior. The four main outcomes of functional behavior assessment are: (a) a definition of problem behaviors, (b) description of the conditions under which problem behavior is and is not likely to be observed, (c) identification of the function (the why) of the problem behavior, and (d) direct observation data to support these outcomes. www.pbis.org

f. The general purpose of functional assessment of behaviors is to provide the IEP team with additional information, analysis, and strategies for dealing with undesirable behavior, especially when it is interfering with the child's education. The process involves some variant of identifying core or "target" behaviors; observing the pupil (perhaps in different environments) and collecting data on the target behavior, antecedents, and consequences; formulating an hypothesis about the cause(s) of the behavior; developing an intervention(s) to test the hypothesis; and collecting data on the effectiveness of the intervention(s) and change the behavior. Joseph M. v. ISD No. 2310, 29 IDELR 330 (Minnesota 1998).

In this case, the school district's FBA was one and one-half pages, and was based on a 70-minute observation of the student during a party being held in the classroom, during which no instruction was taking place, and an interview with the teacher. The FBA was held not to be in compliance with the requirements of the IDEA.

g. Components of the FBA

i. Background and purpose: to assist the school in developing an effective plan to help the student better adjust to the school as a social and academic setting.

ii. Description of major target behavior(s): frequency, duration, intensity, immediate ecological antecedents, and possible behavioral antecedents.

iii. Specific consequences of the emission of the target behavior.

iv. Possible function(s) of the target behavior(s).

v. Alternative behaviors which serve the same function as the target behavior(s) or are incompatible with the emission of the target behavior.

vi. Specific conditions under which alternative behaviors should be taught.

vii. Recommended modifications in the physical environment(s).

viii. Recommended modifications in the social environment.

h. Use of experts.

6. Behavior Intervention Plan (BIP)

a. As soon as practicable after developing the FBA and completing the assessments required by that plan, an IEP meeting shall be convened to develop appropriate behavioral interventions to address that behavior and shall implement those interventions (34 C.F.R. '300.520(b)(2)).

b. Required when the student has been removed from school more than 10 days during the school year and/or "in the case of a child whose behavior impedes his or her learning or that of others" (34 C.F.R. '300.346(a)(2)(i)).

c. Focus of BIP is on positive, proactive strategies designed to prevent inappropriate behaviors from occurring.

d. Components of a BIP

i. Establishment of target behavior(s).

ii. Consequences (but do not limit disciplinary options by loading up BIP with consequences).
iii. Positive strategies, supports, and interventions.

iv. BIP does not have to authorize disciplinary actions that school district already possesses.

e. In Modesto City School District, 30 IDELR 170 (California 1998), Hearing Officer found that school district's BIP violated a state law that specified what a plan should include.

i. Description of target behavior was incomplete because it failed to indicate who the student was hitting or what he was hitting them with;

ii. The frequency of the behavior is not identified;

iii. The description of antecedents was too general;

iv. By targeting only one behavior, the BIP neglected the other areas of concern.

f. The BIP must be properly and consistently implemented and reviewed and modified as appropriate.

7. Manifestation Determination (34 C.F.R. '300.523)

a. A manifestation determination must be conducted in three circumstances:

i. Proposal to place student in interim alternative educational setting for possession of weapon or drugs at school.

ii. Any removal that constitutes a change of placement for a child with a disability for a violation of any rule or code of conduct that applies to all children.

iii. Request for expedited due process hearing for an interim placement of a disabled child due to dangerousness.

b. Manifestation determination must be conducted immediately, if possible, but in no case later than 10 school days after the date on which decision to take the action is made.

c. Manifestation determination is conducted by IEP team and "other qualified personnel in a meeting."

d. Conduct of manifestation review
The IEP team and other qualified personnel may determine that the behavior of the child was not a manifestation of the child's disability only if the IEP team and other qualified personnel:

i. First consider, in terms of the behavior subject to disciplinary action, all relevant information, including--

(a) Evaluation and diagnostic results;

(b) Relevant information supplied by the parents;

(c) Observations of the child; and

(d) The child's IEP and placement.

ii. Then determine that--

(a) In relationship to the behavior subject to disciplinary action, the child's IEP and placement were appropriate and the special education services, supplementary aids and services, and the behavior intervention strategies were provided consistent with the IEP and placement;

(b) The child's disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; and

(c) The child's disability did not impair the ability of the child to control the behavior subject to disciplinary action.

iii. If the IEP team determines that any of the standards were not met, the behavior must be considered a manifestation of the child's disability.

(a) Seek agreement of parent to change placement.

(b) Modify IEP placement, and/or BIP to address
behavior.

(c) Interim Alternative Educational Setting for 45 days if drugs/weapon involved.

(d) Expedited due process hearing for 45 day interim order if child is dangerous.

(e) Seek court ordered injunction removing child from school. Honig v. Doe, supra.

iv. If IEP team determines that there are deficiencies in the IEP, placement, or implementation, immediate action must be taken to remedy deficiencies.

v. If a determination is made that behavior is not a manifestation of the disability, the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner they would be applied to children without disabilities (34 C.F.R. '300.524(a)). However, IEP team must determine extent to which services are necessary to enable child to progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP (34 C.F.R. '300.121(d)(3)(ii)).

8. Drugs and Weapons Exception to Stay Put

a. School personnel may order a change in placement of a child with a disability to an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline, but for not more that 45 calendar days if--

i. The child carries a weapon to school or to a school function under the jurisdiction of state or a local educational agency; or

ii. The child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function under the jurisdiction of a state or local educational agency (34 C.F.R. '300.520(a)(2)).

b. The appropriate interim alternative educational setting is determined by the IEP team (34 C.F.R. '300.522(a)).

c. The appropriate interim alternative educational setting must--

i. Be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP that will enable the child to meet the goals set out in the IEP; and

ii. Include services and modifications to address the behavior described in ''300.520(a)(2) or 300.521, that are designed to prevent the behavior from recurring (34 C.F.R. '300.522(b)).

d. IEP team must also conduct a FBA, develop a BIP and conduct a manifestation determination.

e. Definitions

i. "Weapon" means a weapon device, instrument, material or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2.5 inches in length (34 C.F.R. '300.520(d)(3)).

ii. "Controlled substance" means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act. An illegal drug is a controlled substance except for a substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally used or possessed under any other authority (34 C.F.R. '300.520(d)(1) and (2)).

9. Dangerousness Exception to Stay Put

a. A hearing officer may order a change in the placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 calendar days if the hearing officer, in an expedited due process hearing--

i. Determines that the public agency has demonstrated by substantial evidence that maintaining the current placement of the child is substantially likely to result in injury to the child or to others;

ii. Considers the appropriateness of the child's current placement;

iii. Considers whether the public agency has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services; and

iv. Determines whether the interim alternative educational setting that is proposed by school personnel who have consulted with the child's special education teacher, will enable the child to continue to progress in the general curriculum, continue to receive services and modifications provided in IEP that will enable child to meet goals in IEP, and include services and modifications designed to prevent the behavior from recurring.

v. "Substantial evidence" means beyond a preponderance of the evidence (34 C.F.R. '300.521).

b. A school district also has option of seeking a court order instead of a order from a hearing officer, and there is no requirement that the district must exhaust its administrative remedies prior to seeking relief in court. Gadsden City Board of Education v. B.P., 28 IDELR 166 (N.D. Ala. 1998).

10. Protections For Children Not Yet Eligible For Special Education

a. A child who has not been previously determined to be eligible for special education and related services and who has engaged in misconduct may assert the protections of the IDEA if the school district had knowledge that the child was a child with a disability before the behavior that precipitated the disciplinary action (34 C.F.R. '300.527(a)).

b. Basis of knowledge. A school district must be deemed to have knowledge that a child is a child with a disability if--

i. The parent of the child has expressed concern in writing (or orally if the parent does not know how to write or has a disability that prevents a written statement) to personnel of the school that the child is in need of special education and related services;

ii. The behavior or performance of the child demonstrates the need for these services;

iii. The parent has requested an evaluation; or

iv. The teacher of the child, or other school personnel, has expressed concern about the behavior or performance of the child to the director of special education or other personnel in accordance with the school district's established child find or special education referral system (34 C.F.R. '300.527(b)).

c. However, a school district would not be deemed to have knowledge if, as a result of receiving the information, the school district either--

i. Conducted an evaluation and determined that the child was not a child with a disability; or

ii. Determined that an evaluation was not necessary; andiii. Provided notification to the parents of its determination consistent with '300.503 (34 C.F.R. '300.527(c)).

d. If the school district does not have knowledge that a child is a child with a disability prior to taking disciplinary measures against the child, the child may be subjected to the same disciplinary measures as measures applied to children without disabilities who engaged in comparable behaviors (34 C.F.R. '300.527(d)).

e. If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures, the evaluation must be conducted in an expedited manner (34 C.F.R. '300.527(d)(2)(i)).

f. Until the evaluation is completed, the child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services (34 C.F.R. '300.527(d)(2)(ii)).

g. If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the school district and information provided by the parents, the school district shall provide special education and related services (34 C.F.R. '300.527(d)(2)(iii)).

h. To allow a student to utilize IDEA safeguards and benefits before an actual diagnosis of disability would not only be premature, but it would also take resources away from students who have been diagnosed as disabled. At the time of the expulsion, Doe had not been diagnosed as disabled, and it would have been premature for school officials to grant him any benefits under the IDEA without a diagnosis or determination of disability. Doe v. Board of Education of the Elyria City Schools, 28 IDELR 286 (6th Cir. 1998)

11. Referral To Law Enforcement

a. Nothing in the IDEA prohibits a school district from reporting a crime committed by a child with a disability to appropriate authorities or to prevent state law enforcement and judicial authorities from exercising their responsibilities with regard to the application of federal and state law to crimes committed by a child with a disability (34 C.F.R. '300.529(a)).

b. A school district reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime (34 C.F.R. '300.529(b)(1)).
c. An agency reporting a crime may transmit copies of the child's special education and disciplinary records only to the extent permitted by the Family Educational Rights and Privacy Act (34 C.F.R. '300.529(b)(2)).

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