School district officials respond to challenging and disruptive behavior in a variety of ways and determining the appropriate response to students’ problem behavior is a difficult and complex issue. This becomes especially true when a student has a disability. Different rules and regulations apply to disciplining students with disabilities under the IDEA and Section 504 of the Rehabilitation Act of 1973.

For the most part, for violating a school’s code of conduct, students with disabilities can be disciplined in a manner similar to the typical disciplinary sanctions used with students without disabilities. However, case law beginning a few years after the passage of the Education of All Handicapped Children Act, now the individuals with disabilities education act (IDEA), held that certain types of discipline may result in inequities because the student’s disability often affects behavior control, which can lead to a student violating a school’s code of conduct. If a student is suspended or expelled because of the infraction, they may have been disciplined in such a manner because of their disability.

A major problem with the use of long-term suspensions or expulsions is that they may result in a unilateral change of placement, which is a violation of the IDEA and Section 504. The IDEA, Section 504, and previous case law distinguish between short-term disciplinary removals from school and long-term disciplinary removals. According to the U.S. Supreme Court, the line of demarcation is 10 school days (Honig v. Doe, 484 U.S. 305, 1988). Thus, both the IDEA and Section 504 prohibit expulsions, long-term disciplinary removals for more than 10 consecutive days, and often suspensions for more than 10 cumulative school days. This does not mean that school removals may never occur, but rather that there are procedural safeguards that must be followed when they are used. The 2006 regulations to the IDEA included the following statement; “School personnel under this section may remove a child with a disability who violates a code of student conduct from his or her current placement to a more appropriate interim alternative education setting, another setting, or suspension, for not more than 10 consecutive school days (to the extent those alternatives are applied to children without disabilities), and for additional removals of not more than 10 consecutive school days in that same school year for separate incidences of misconduct (as long as those removals do not constitute a change in placement) (IDEA Regulations, 34 C.F.R. § 300.530[b][1]).” Additionally, in enforcing Section 504, the Office for Civil Rights (OCR) considers a series of short-term nonconsecutive removals to also constitute a significant change in a student’s education if combined the removals total more than 10 school days during the school year and create a pattern of removals, which would be a violation of the law (Section 504 Regulations, 34 C.F.R. § 104.35[a]).

Clearly, unilateral expulsions or suspensions of more than 10 consecutive days should not be used. Administrators must also be careful in using suspensions of over 10 cumulative days. An important consideration in deciding to use out-of-school suspensions is if the suspensions constitute a pattern of removals. If the suspensions do constitute a pattern, the suspensions are changes in placement and should not be used.

So, when do cumulative suspensions constitute a pattern and become an illegal change in placement? Out-of-school suspensions are a change in placement when (a) the suspensions have been for more than 10 cumulative days in a school year; (b) the student’s behaviors for which he or she was suspended was substantially similar to the student’s behavior in similar incidences that resulted in suspensions; and (c) because the of additional factors such as the length of each removal, the total amount of time the student has been removed, and the proximity of the removals to each other (IDEA Regulations, 34 C.F.R. § 300.535 et seq.). The determination of a pattern has to be conducted by school personnel. Although the regulations do not specifically state who should be involved in making these decisions, presumably, it could be a student’s IEP team.

To prevent a student with a disability from being unfairly excluded from school, committees consisting of the LEA representative, the parents, and relevant members of the IEP team, must examine assessment data to determine if the behaviors leading to the proposed disciplinary action are related to a student’s disability. This is referred to as the manifestation determination (IDEA Regulations, 34 C.F.R. § 300.530[e]). When conducting a manifestation determination, the committee must use recent and relevant data to determine (a) if the conduct in question was caused by or had a direct and substantial relationship to the student’s disability and (b) if the conduct in question was the direct result of the school’s failure to implement the student’s IEP. If the team determines there is a relationship between the student’s disability and misconduct by answering yes to either question, long-term disciplinary removals longer than 10 school days are not available nor are short-term removals, which viewed in their entirety constitute a pattern of removals. Additionally, if there is a manifestation, the school personnel must then conduct a functional behavioral assessment (FBA) and develop or revise a behavioral intervention plan (BIP) for the student (IDEA Regulations, 34 C.F.R. § 300.530[e & f]).

If the answer to both of the manifestation questions is no, the team has determined that there is no manifestation, and continued suspension can be used as long as the suspensions do not constitute a pattern of removals.

The IDEA also requires that after a student with a disability is subjected to suspensions or removed from their current placement for over 10 school days in the same school year, during any subsequent days of removal, the school must provide services (IDEA Regulations, 34 C.F.R. § 300.530[b][2]). Moreover, the educational services provided must enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child’s IEP. Under the IDEA, educational services must be provided on day 11 and beyond, irrespective of the relationship between disability and misconduct.

The only exception to these rules regarding discipline of students with disabilities occurs when (a) a student brings a weapon to school or a school function, (b) knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function, or (c) has inflicted serious bodily injury upon another person while at school or a school function (IDEA Regulations, 34 C.F.R. § 300.530[g]). In this case, a school administrator may remove the student to an interim alternative educational setting for not more than 45 school days irrespective of the relationship between disability and misconduct.

WHEW, this sounds confusing!! It really isn’t, however, as long as you keep the following dos and don’ts in mind when disciplining students with disabilities.  There is no particular order to the dos and don’ts, they are all important!

Don’t

• Don’t forget that ALL students have due process rights should when being suspended. This means that students should be notified of the charges that led to the suspension (either orally or in writing) and that they are given an opportunity to tell their side of the story. The U.S. Supreme Court told us this in Goss v. Lopez in 1975.
• Don’t suspend a student with disabilities from school for more than 10 consecutive school days in a school year because that is a unilateral change of placement. Of course, an expulsion is per se change of placement.
• Don’t discipline students differently than you do students without disabilities (e.g., discipline more harshly, use disciplinary procedures that are not used with students who do not have disabilities). This could be discrimination and a violation of Section 504.
• Don’t suspend a student out of school for more than 10 cumulative days in a school year without providing educational services, conducting a manifestation determination and FBA, and developing or revising a BIP.
• Don’t play games with suspension by removing a student from school but not calling it a suspension (e., having a student’s parents pick him or her up from school and calling it a “mental health day” rather than a suspension). These sorts of informal suspensions are a possible violation of the law and should not be used!

Do

• Do keep track of the days in which students are suspended from school. This seems easy enough and it is a good way to make sure you don’t inadvertently violate the IDEA or Section 504.
• Do use in-school suspension instead of out-of-school suspensions whenever possible. Schools are much less likely to violate the law when they use in-school discipline.
• Do convene a manifestation determination team (can be a student’s IEP team) if a student is suspended in excess of 10 cumulative school days to determine if a patten exists.
• Do act proactively when students exhibit problem behavior that violates a school’s code of conduct and address the student’s behavior in a student’s IEP or Section 504 plan.

The last do is so very important because a major purpose in developing and implementing IEPs for students with disabilities whose “behavior impedes the child’s learning or that of others (is to) consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior” (34 C.F.R. § 300.324[a][2][i]). Thus, if a student’s IEP team determines that the behavior impedes the student’s learning or the learning of others, the IEP team may address that behavior by developing measurable annual goals, special education services and related services, supplementary aids and services, and a statement of program modifications or supports for school personnel. If a student is a 504-only student, the 504 team may include behavioral accommodations, modifications, or programming in the Section 504 plan. In both cases, the goal of behavioral programming is to teach socially appropriate behaviors and reduce the inappropriate behaviors that led to the violation of the school’s code of conduct.

The Office of Special Education Programs (OSEP) in the U.S. Department of Education recently issued a question and answer document on disciplining students with disabilities. Similarly, the Office for Civil for Civil Rights in the U.S. Department of Education issued a document on avoiding when disciplining students with disabilities. Both documents are available at this link