Using out-of-school suspensions with students with disabilities protected by the Individuals with Disabilities Education Act (IDEA) has long been a problem. Despite the issues that have arisen with the overuse and inappropriate use of discipline in general and OSS specifically, it had only been addressed by courts, including the U.S. Supreme Court, until 1997.  Even though the IDEA, originally named the Education of All Handicapped Children Act (EAHCA) when it became law in 1975, did not directly address discipline, courts frequently were called on to settle disputes that arose when students with disabilities were disciplined in certain ways.

As a result of these many court cases, a large body of case law regarding discipline emerged. Essentially this body of case law held that because students with disabilities had the right to receive a free appropriate public education (FAPE) and they had due process rights under the law when school officials used discipline in ways that threatened these FAPE and due process rights, those disciplinary procedures were likely illegal. For example, the earliest cases, which were brought shortly after the passage of the EAHCA, held that students with disabilities could not be expelled or suspended long-term because such actions constituted an illegal change of placement. Additionally, other courts held that students with disabilities could not be expelled or suspended long-term for misconduct that was caused by their disability and that even in cases in which students were suspended properly, their education services could not cease.

In 1988, the U.S. Supreme Court ruled in Honig v. Doe, that Congress, in passing the EAHCA, had intended to strip schools of their unilateral authority to exclude students with disabilities from school for disciplinary reasons. The High Court also noted that the law did not prohibit all forms of discipline. Time out, restriction of privileges, and other types of discipline that did not cause a change in placement could be used by school officials. Furthermore, school officials could suspend a student with disabilities for up to 10 school days and during this time the student’s parents and school-based IEP team members could examine the situation and develop remedies, which may include an alternative placement. Although the Supreme Court decision clarified many issues regarding the discipline of students with disabilities, disputes and more court cases continued.

Spurred by this litigation, Congress added discipline provisions to the IDEA in 1997. Most of these provisions codified the existing case law and clarified other areas. With respect to the question of using out-of-school suspensions, this is what is certain:

• Expulsions are changes in placement and should not be used.
• Suspensions over 10 consecutive days are a change in placement.
• Suspensions of over 10 cumulative may be a change in placement and a student’s IEP team is the forum in which to make this determination.
• When suspension may be a change in placement a manifestation determination, whether the misconduct is a manifestation of a student’s disability, must be made.
• Suspensions over 10 cumulative days require that students continue to receive a FAPE.

There is another type of suspension that is sometimes used by school officials, sometimes in an effort to circumvent these rules, the so-called informal suspension.

Last year the National Disability Rights Network (NDRN) issued a report titled “Out from the Shadows: Informal removal of children with disabilities from public schools” in which they noted that students with disabilities are suspended from school using, what the NDRN referred to as, “informal removals.”

These informal removals may include putting students with disabilities on homebound placements, shortening their school days, strongly suggesting that parents pick their children up from school, removing students from their classes in the middle of the day, or requiring parents attend school with their child before the student can return to school. According to NDRN, informal removals are one of the most common issues reported to Protection and Advocacy organizations across the United States.

The problem with informal removals is that they are “off the books” and do not count against the restrictions on out-of-school suspensions included in the IDEA because there is no way to track or monitor them. Additionally, such removals may circumvent students’ IEP team, which is the forum in which these decisions should be made. Because of this, informal suspensions may result in unilateral changes of placement, or removing a student for behavior that may be a manifestation of their disability, which are illegal under the IDEA.

            According to an article in the New York Times, “How educators secretly remove students with disabilities from school,” these informal removals may violate federal law and they certainly are harming some of the country’s most vulnerable children.  In addition to possible violations of the IDEA and the resulting harm to students, administrators who use informal suspensions with students with disabilities may be violated students’ civil rights protections under Section 504 and Title II of the Americans with Disabilities Act. Additionally, the Associated Press and the Hechinger Report (a nonprofit report on innovation and inequality in education) conducted interviews with 20 families in 10 states, parents said they were called repeatedly, sometimes less than an hour into the school day, to pick up their children. Some said they left work so frequently they lost their jobs. The U.S. Department has seen an increase in these reports and is considering strengthening the Section 504 regulations against informal suspensions. Additionally, calling informal suspensions that removed students from a full or partial day of school possibly discriminatory under Section 504 and Title II of the Americans with Disabilities Act, the Office for Civil Rights issued a guidance statement regarding the nondiscriminatory use of discipline under Section 504 (U.S. Department of Education, July 2022). The department’s July guidance made it clear that students with disabilities who are informally removed have the same rights as those who are officially suspended. Moreover, two U.S. senators, Senators Durbin and Duckworth of Illinois, called on the U.S. Department of Education to strengthen the regulations against the use of this practice.

            The bottom line is that using informal suspensions is likely illegal and their use should be avoided. Furthermore, if administrators are caught attempting to circumvent the laws using these “off the books” suspensions, they may get themselves and their school districts in serious trouble.