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The Law and Special Education

Fifth Edition

Chapter 13

Disciplining Students with Disabilities

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Learning Objectives (1 of 2)

13.1 Describe the procedural due process rights of students.

13.2 Describe the substantive due process rights of students.

13.3 Describe how the I D E A affects the discipline of students with disabilities.

13.4 Describe how problem behavior should be addressed in a student’s I E P.

13.5 Describe legal requirements regarding the use of functional behavioral assessments and behavior intervention plans.

Learning Objectives (2 of 2)

13.6 Describe legal requirements when suspending students with disabilities

13.7 Describe manifestation determination.

13.8 Describe permitted, controlled, and prohibited discipline procedures

Introduction

(The Department of Education) “encourages school environments that are safe, supportive, and conducive to teaching and learning, where educators actively prevent the need for short-term disciplinary removals by actively supporting and responding to behavior…the authority to implement disciplinary removals does not negate their obligation to consider the implications of the child’s behavioral needs, and the effects of the use of suspension (and other short-term removals) when ensuring the provision of F A P E.”

-United States Department of Education, Office of Special Education Programs, 2016, page 2.

Discipline in the Schools

School officials, acting in concert with appropriate laws and regulations, have a duty to maintain an orderly and effective learning environment through reasonable and prudent control of students.

All students, with and without disabilities, have rights in disciplinary matters based on the due process clause of the 5th and 14th Amendments to the U.S. Constitution

Procedural due process: The right to fair procedures

School districts can meet these requirements by taking actions such as (a) developing reasonable and appropriate schoolwide discipline policies and procedures, (b) extending due process protections to students when using certain disciplinary procedures, and (c) ensuring that discipline sanctions are applied in a nondiscriminatory manner.

Substantive due process: The right to reasonableness

The regulation of student behavior be reasonable. To be reasonable, rules must have a rationale and a school-related purpose, and the school must employ reasonable means to achieve compliance with the rule.

The I D E A and Discipline

Administrators and teachers face a different set of rules and limitations in using disciplinary procedures with students with disabilities who are protected by the I D E A

This dual standard only exists, however, when disciplinary procedures may result in a change of placement. The determination of what constitutes a change of placement under the I D E A is critical.

The Goals of the I D E A’s Disciplinary Provisions

All students, including students with disabilities, deserve safe, well-disciplined schools and orderly learning environments.

Teachers and school administrators should have the tools they need to assist them in preventing misconduct and discipline problems and to address those problems, if they arise.

There must be a balanced approach to the issue of discipline of students with disabilities that reflects the need for orderly and safe schools and the need to protect the right of students with disabilities to a F A P E.

Students have the right to an appropriately developed I E P with well-designed behavior intervention strategies

Addressing Problem Behavior in the I E P

The I D E A requires that if a student with disabilities exhibits problem behaviors that impede his or her learning or the learning of others, then the student’s I E P team shall consider the use of positive behavioral interventions and supports, and other strategies to address that behavior.

If a student has a history of problem behavior, or if such behaviors can be readily anticipated, then the student’s I E P must address that behavior.

The purpose of addressing problem behavior in the I E P is to teach appropriate behaviors while preventing the problem behaviors that may lead to disciplinary sanctions.

Failing to Address Behavior May Deny F A P E

When a student’s I E P team fails to address the behavior of the student when he or she is experiencing behavioral challenges that impedes his or her learning or the learning of others, that could constitute a denial of a F A P E.

These circumstances included failing to (a) consider the inclusion of positive behavioral interventions and supports in response to the student’s behavior, (b) schedule an I E P Team meeting to review the I E P to address behavioral concerns after a reasonable parental request, (c) discuss the parent’s concerns about the student’s behavior and its effects on the student’s learning during an I E P meeting, or (d) implement the behavior supports in a student’s I E P or where school personnel have implemented behavioral supports that are not included in the I E P that are not appropriate for the student.

Functional Behavioral Assessment (F B A)

An F B A is a process that searches for an explanation of the purpose behind a problem behavior.

The I D E A requires that the I E P team must meet and conduct or revise an F B A and B I P within 10 business days from when a student is (a) first removed for more than 10 school days in a school year, (b) removed in a manner that constitutes a change in placement, (c) placed in an I A E S for a weapons or a drug offense and (d) when a manifestation determination team has determined that a student’s misconduct was related to his or her disability.

School officials should also consult their state’s laws and rules in regards to F B S and B I P requirements. This is because states may add to, but not subtract from, the F B A/B I P requirements of the I D E A.

Behavior Intervention Plan

The I D E A does not provide details about the composition of the plan beyond indicating that the plan has to be individualized to meet the needs of different students in different educational environments.

Behavior plans need to be individualized, proactive, and multidimensional. This means that I E P teams should implement multiple strategies aimed at preventing problem behavior before it becomes severe enough to warrant sanctions such as suspension or expulsion

If state officials determine that an investigation is needed, the state then has 60 days to conduct an on-site investigation of the complaint.

Whether or not a team develops a formal B I P or not, the I E P of a student with behavioral problems, regardless of that student’s special education category, must include goals, services, and plans for addressing that student’s behavioral needs.

Short-Term Disciplinary Procedures (1 of 2)

Most types of in-school disciplinary procedures that are used as part of a schoolwide discipline plan may be used with students in special education. When the student misconduct is serious enough to warrant suspension or expulsion, however, the strictures of the I D E A must be followed.

The I D E A authorizes school officials (i.e., building-level administrators) to unilaterally suspend students with disabilities, or place students in an alternative educational program on a short-term basis, to the same extent that such suspensions or removals are used with students without disabilities. The I D E A does not establish a specific limitation on the number of days in a school year that students with disabilities can be suspended from school.

Short-Term Disciplinary Procedures (2 of 2)

School officials must keep three critical points in mind when using short-term suspensions.

10 consecutive days is the upper limit on out-of-school suspensions. If a suspension exceeds this limit, it becomes a change of placement.

When the total number of days that a student has been suspended equals 10 or more cumulative days in a school year, educational services must be provided.

Third, when multiple suspensions total more than 10 cumulative school days, even though each individual disciplinary removal has been less than 10 consecutive days, this may constitute a change of placement.

Long-Term Disciplinary Procedures

Long-term suspension and expulsion qualify as a change of placement.

Because expelling a student with disabilities would result in a placement change, the procedural safeguards of the I D E A would automatically be triggered.

Honig versus Doe, 1988

45 Day Removals

School officials may unilaterally exclude a student with disabilities from school for up to 45 school days without regard to whether the misbehavior was a manifestation of the student’s disability if the student

brings, possesses, or acquires a weapon at school, on school premises, or at a school function (e.g., school dances, class trips, extracurricular activities);

knowingly possesses, uses, or sells illegal drugs, or sells a controlled substance at school, on school premises, or at a school function; or

has inflicted serious bodily injury to another person while at school, on school premises, or at a school function.

The Manifestation Determination (1 of 2)

The I D E A requires that within 10 school days of any decision to change the placement of a student with a disability because of a violation of a code of student conduct, the school, the parents, and relevant members of the I E P team (as determined by the parent and school administrator) shall review all relevant information in the student’s file, including the student’s I E P, any teacher observations, and any relevant information provided by the parents.

The purpose of this process, called a manifestation determination, is to determine if a student’s misbehavior was caused by or was substantially related to the student’s disability.

The Manifestation Determination (2 of 2)

If a decision is made that the disability was not related to the misbehavior and the I E P was implemented, the student can be disciplined as any other nondisabled student would be disciplined. Educational services must still be provided.

If the team determines that a relationship between behavior and disability exists or that a student’s I E P was not implemented, the student may not be expelled, although school officials will still be able to initiate change-of-placement procedures.

Legal Status of Disciplinary Procedures (1 of 3)

Permitted procedures: These procedures include those practices that are part of a school district’s disciplinary plan and are commonly used with all students. These procedures are unobtrusive and do not result in a change of placement or the denial of the right to a F A P E.

Examples of such procedures include verbal reprimands, warnings, contingent observation, exclusionary time-out, response cost, detention, and the temporary delay or withdrawal of goods, services, or activities (e.g., recess, lunch).

As long as these procedures do not interfere significantly with the student’s I E P goals and are not applied in a discriminatory manner, they are permitted.

Legal Status of Disciplinary Procedures (2 of 3)

Controlled procedures: Disciplinary procedures that are permissible as long as they are used appropriately. The difficulty with these practices is that if they are used in an inappropriate manner, used excessively, or used in a discriminatory manner, these procedures can result in interference with I E P goals or objectives or in a unilateral change in placement.

Controlled procedures include disciplinary techniques such as exclusionary time-out, in-school suspension, and out-of-school suspension.

Basic due process rights, such as notice and hearing, must be given to students prior to the use of suspension. It is important in using such procedures that schools not abuse or overuse them, as these could be interpreted as unilateral changes of placement or discriminatory

Legal Status of Disciplinary Procedures (3 of 3)

Prohibited procedures: Disciplinary procedures that result in a unilateral change in placement or are discriminatory are prohibited.

expulsions (i.e., the exclusion from school for an indefinite period of time) and long-term suspensions are illegal if made without following the I D E A’s procedural safeguards.

In many states, corporal punishment is illegal and, therefore, a prohibited procedure.

In some states and school districts, restrain and exclusion are illegal and, thus prohibited.

Lessons from Litigation & Legislation

Principle 1: Formulate and disseminate discipline policies and procedures

Principle 2: Recognize the dual disciplinary standard

Principle 3: Address problem behavior in the I E P

Principle 4: Document disciplinary actions taken and interventions implemented, and evaluate their effectiveness

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