Discipline Procedures
Discipline Law and Guidelines: Students with Disabilities
The Individuals with Disabilities Education Act (IDEA) passed in 1990, replacing the Education for All Handicapped Children Act (EAHCA) guaranteeing the right of all handicapped children to a public school education, which Congress passed in 1975.
Significant amendments passed as part of the act's "reauthorization" in 1997. The "reauthorization" included considerable changes relating to the discipline of special education students. This brief Q&A addresses discipline matters under the IDEA.
1. Are students with disabilities subject to different standards when it comes to discipline?
Yes and no. While students with and without disabilities are actually subject to the same codes of conduct, students with disabilities are entitled to certain procedural safeguards. This is a recognition in the law that a student with a disability's misbehavior may be directly related to his or her disability, and the disability may limit the student's ability to control behavior or appreciate the consequences of conduct. For example, a student with a serious emotional disturbance may engage in inappropriate conduct directly resulting from the student's disability.
2. What are the procedural requirements for a school system suspending a student with a disability from school?
This depends upon the length of the suspension. Students with disabilities are entitled to certain procedural safeguards when a "change in placement" is being pursued for the child. School suspensions and expulsions may constitute a "change in placement" under certain circumstances. If the proposed suspension is for longer than 10 consecutive school days, the school system, through the IEP (individualized education program) team, must make a "manifestation determination." The meeting for manifestation determination must take place within 10 school days. A pattern of multiple, short term suspensions of less than 10 days each may also constitute a "change in placement" depending upon the circumstances and requiring a manifestation determination meeting. This "manifestation determination" is a process to determine if: (a) the student's IEP is appropriate and being implemented; (b) the student's disability did not impair his or her ability to appreciate the consequences of the behavior; and (c) the student's disability did not impair the ability of the student to control the behavior. If these conditions are true, then the student may be disciplined in the same manner as general education students. That is, they must be given fundamental due process rights guaranteed by the Fourteenth Amendment and set forth in Tennessee statutory law, including the right to a hearing.
3. Can parents challenge this manifestation decision?
Yes. Parents may request an expedited hearing if they disagree with the decision that the misbehavior was not a manifestation of the child's disability. The child's current placement must be maintained pending a hearing. This right of parents to prohibit a proposed change in placement pending a hearing is called the "stay-put" provision.
4. What if a student with a disability is being suspended for less than 10 school days cumulatively?
Removal of the student for 10 school days or less in a school year is not a "change in placement." Therefore, no manifestation determination is required.
5. Are there other requirements when suspending a student with a disability for more than 10 school days?
Yes. The IDEA requires the IEP team to complete a "functional behavioral assessment" and develop a "behavioral intervention plan" to address the student's behavior. If a plan has previously been developed, it must be reviewed by the IEP team and modified, if necessary.
6. Are there exceptions to the right of parents to exercise the "stay-put" provision when a school system seeks suspension of a student with a disability for more than 10 days?
Yes. Notwithstanding the parents' desire to invoke the "stay-put" provision, the IDEA allows school officials to unilaterally make a change in placement to an "interim alternative educational setting" for not more than 45 calendar days if the child possesses a dangerous weapon at school or at a school function or the child knowingly possesses, uses, sells, or solicits the sale of a controlled substance at school or at a school function.
7. What services must be provided to students with disabilities when they are suspended from school?
Schools may remove or “suspend” students with disabilities from school for up to 10 cumulative days in a school year. During the 10 “FAPE (Free Appropriate Public Education) Free” days there is no duty to provide alternative services. If outside of the 10 FAPE free days, IEP services would be provided to the student.
8. Can school employees report crimes or delinquent acts to law enforcement when these acts are committed at school by students with disabilities?
Yes. The IDEA specifically states that nothing in the law prohibits an agency from reporting crimes committed by a child with a disability to appropriate authorities or prevents state law enforcement or judicial authorities from exercising their responsibilities. Tennessee law mandates that every teacher observing or having knowledge of an assault and battery or vandalism endangering life, health, or safety committed by a student on school grounds report such action immediately to the principal. The same statute places a duty on principals to report the same conduct to law enforcement when it involves a weapon or results in a serious personal injury. Another Tennessee statute requires principals to report to the appropriate law enforcement officer when the principal has reasonable suspicion that a student has committed a weapons or drugs violation on school grounds. This statute states that school personnel have the duty to report reasonable suspicion of a weapons violation to the principal or the principal's designee. If neither is available, school personnel may report directly to law enforcement. Reporting crimes is different than actually filing a petition in juvenile court. School employees should generally refrain from filing petitions themselves until all IDEA procedures have been followed.
9. Can students, who have not been identified as students with a disability, invoke the disciplinary procedures under the IDEA?
Only under limited circumstances. In general, a student who has not been found eligible for special education services may not claim the protections of the IDEA unless the school system had knowledge that the child had a disability or was suspected of having a disability. The school system will be charged with the knowledge that a student has a disability if the parent has expressed concern in writing, the behavior of the student shows the need for services, the parent has requested an eligibility determination, or school system personnel have expressed concern about the student's performance or behavior to other school personnel.
10. Do state "zero tolerance" laws calling for one calendar year suspensions from school apply to students with disabilities?
Yes. However, it is important to remember that all the federal laws and regulations mentioned above apply to students with a disability who commit a "zero tolerance" infraction. For example, a school system wanting to suspend a student with a disability who has a firearm on school grounds would have to follow all the procedural rules under federal law and continue to provide services after suspension.