discipline

Students and educators alike have the right to safe and orderly school environments. Therefore, school teachers and administrators must
have supports in place in order to swiftly and appropriately contend with school safety issues. At the same time, however, schools have the
responsibility to appropriately deal with a child whose negative behavior directly caused by his/her disability.

Schools are oftentimes faced with the difficult task of balancing a child's unique needs with his/her safety and the safety of others. In such
cases, the stakes are high, and the stakeholders are - justifiably - emotional.

On the Same Team, sponsored by Lowry-Fritz Special Education Consulting Service, provides free, objective legal information to parents
and educators. Maureen Lowry-Fritz does not represent parties in disciplinary matters, nor does she represent parties in mediation or due
process hearing. Given the complex, fact-specific and highly emotional nature of disciplinary matters, On the Same Team does not intend
to provide advice for parties involved in discipline-related matters. If you have questions about this particular special education concept,
please refer to the appropriate sections of the law, 20 U.S.C. Sec. 1415(k) and 34 CFR Secs. 300.530-300.536. This website is not meant
to serve as a substitute for individualized legal counsel.

For complete text to the relevant sections of IDEA, click here. For complete text to the relevant sections of the Code of Federal
Regulations, click here.   For a "flowchart" approach to disciplinary matters, provided by the Massachusetts Department of Education, click
here.

What follows is a general description of how IDEA affects the discipline of children with disabilities. Consult with your state Board of
Education or an attorney if you have any specific questions.

Suspensions

According to IDEA, under most circumstances, during a child's disciplinary proceedings, the child must remain in, "the then-current
educational placement of the child...." 20 U.S.C. Sec. 1415 (j) This "stay put" clause holds that throughout due process hearing and related
appeals, the student will "stay put" in his/her current educational placement. "Current educational placement" does not necessarily refer to a
'room' or 'place.' Rather, some courts have determined that "current educational placement" may actually refer to the characteristics of the
child's educational program.

IDEA states that school officials "may consider any unique circumstances on a case-by-case basis when determining whether to order a
change in placement for a child with a disability who violates a code of student conduct." 20 U.S.C. Sec. 1415 (k)(1)(A) This clause means
that in disciplinary matter, an administrator or school board may use their discretion when determining whether or not to change a child's
placement.

School officials "may remove a child with a disability who violates a code of student conduct from their current placement to an appropriate
interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives are
applied to children without disabilities). 20 U.S.C. Sec. 1415 (k)(1)(B) Oftentimes, this is referred to as a "suspension." IDEA safeguards
students from inordinately lengthy suspensions by limiting their length to ten school days or less. "Suspensions," of ten consecutive school
days or less, do not require parental consent. The federal regulations imply that districts need not provide the student with educational
services during the suspension of ten days or less. However, IDEA does not explicitly allow for an such break in educational services.
Compare, 34 CFR 300.530 with 20 U.S.C. Sec. 1415(k)

Removals from the then-current educational environment for eleven or more consecutive school days constitute a "change in placement." 20
U.S.C. Sec. 1415(j), (k)(1)(B) Generally speaking, schools cannot unilaterally change a child's placement without first obtaining consent
from the parents.

The question becomes, what about suspensions that are less than ten consecutive days, but happen repeatedly? At what point do short (less
than 10 days) - but frequent - suspensions constitute a "change in placement?" The federal regulations contend with that particular question.
The regulations state that the frequent suspensions constitute a "change in placement" when "the child has been subjected to a series of
removals that constitute a [pattern of removals]." 34 C.F.R. Sec. 300.536

"Pattern of removals" is a phrase that has been around in the law for awhile. It is not clearly defined, but rather, its existence is determined by
consideration of several factors. In order to decide whether or not a "pattern of removals" exists, the decision-maker (school district, hearing
officer, judge) considering a number of questions. First, is the child's negative behavior "substantially similar" to his/her previous behavioral
$incidents? Second, for what total amount of days has the student been removed from his/her current placement? Third, what is the length of
each separate removal? Fourth, how much time is there between each removal/suspension? 34 C.F.R. Sec. 300.536

Decisions regarding "pattern of removals" are subject to review via administrative hearings and judicial hearings. If a parent files for a due
process hearing, the "stay put" clause (discussed above) kicks in, and the student must stay in his/her then-current placement for the rest of
the proceedings. 20 U.S.C. Sec. 1415(j)

Expulsions

The prevailing view regarding expulsion is that a student with a disability may not be expelled from school if his/her disruptive behavior was a
manifestation of his/her disability. 20 U.S.C. Sec. 1415(k), Honig v. Doe, 108 S.Ct. 592 (1988)   In other words, a child with a disability
cannot be expelled for negative behavior, if the behavior was 'caused' by the disability.   The relevant question then becomes, "Was the child's
behavior a manifestation of his/her disability?"

The answer to that question is discussed at what is called a "manifestation determination review" (MDR) meeting. An MDR must be held
within ten school days of a determination to expel or to change a student's placement.

At the MDR, parents and other relevant members of the IEP Team meet to decide whether the behavior at issue was caused by the child's
disability. The Team must review and discuss all significant information including, but not limited to, neuropsychological evaluation results,
private medical reports, the most recent evaluation or re-evaluation conducted by the school, the student's IEP, the student's current
placement, information provided by the parents, interviews with the child, and observations of the child. 20 U.S.C. Sec. 1415(k)(1)(E)

After reviewing all of the relevant information, the Team must consider and answer two questions:

1. Was the particular behavior at issue (the violation) caused by, or substantially related to, the student's disability; and
2. Did the particular behavior at issue (the violation) occur because the school district failed to properly implement the IEP? 20 U.S.C. Sec.
1415(k)(1)(E)

If the answer to either question is "yes", then the behavior at issue (the violation) is a manifestation of the child's disability. There are three
results from such a decision. First, the school district may not change the student's placement, or expel the student. Second, the school
district must conduct a functional behavioral assessment (FBA) and develop/implement a behavior intervention plan (BIP). (Note: if the
student already has a BIP, then the school must review and modify it accordingly.) 20 U.S.C. Sec. 1415(k)(1)(F) Third, unless the student's
violation meets the criteria of "special circumstances" outlined in IDEA (see below), the student must be permitted to return back to the
original educational placement (unless parents and school agree to a change in placement). 20 U.S.C. Sec. 1415(k)(1)(G)

If, on the other hand, the MDR results in a determination that the disruptive behavior was not manifestly determined by the student's disability,
and that the IEP was appropriately implemented, then the student may be expelled or have his/her placement changed. At this point, the
student is subject to any and all of the district's disciplinary measures. The district, however, must continue to provide the student with
educational services that will enable him/her to continue making progress within the general education curriculum and towards his/her IEP
goals. These services would be administered in an alternative educational setting.

Should a parent disagree with the MDR decision, the parent can initiate a due process hearing that will review the decision. Filing for a due
process hearing will initiate the "stay put: clause of IDEA, and the student would be eligible to remain in the original placement throughout the
administrative proceedings.

Special Circumstances

As mentioned above, there are several circumstances, the existence of which, permits a school district to unilaterally place a student with
disabilities into an interim alternative educational setting. If these specific circumstances exist, it does not matter if the student's behavioral
infraction was a manifestation of his/her disability.

IDEA states that the school district personnel may remove a student with disabilities to an interim alternative educational setting in cases
where the student does the following:

1. "carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a State or local
       educational agency;
2. knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance while at school, on school premises, or at
       school function under the jurisdiction of a State or local educational agency; or
3. has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of
       a State or local educational agency." 20 U.S.C. Sec. 1415(k)(1)(G)

A "weapon" defined as, "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 less than 2 1/2 inches in length." 20
U.S.C. Sec. 812(c)

If a student with a disability commits a behavioral violation that meets the above-listed circumstances, the district may move the student to an
interim alternative educational setting for not more than forty-five (45) school days. Again, under these circumstances,
it is irrelevant as to whether the student's behavior was 'caused' by his/her disability.

The next logical question becomes, what is an interim alternative placement? This decision is made by the IEP Team, which includes the
student's parents. The selected placement must meet the following three criteria:

1. allow the student to continue progressing in the general education curriculum;
2. allow the student to continue receiving all of his/her related services; and
3. provide the student with behavioral supports to prevent the behavior from occurring again   20 U.S.C. Sec. 1415(k)(1)(2)