A student who has not been determined as eligible for special education and related services by an IEP team and who has engaged in behavior that violates a code of student conduct may assert any of the disciplinary protections of IDEA if the school system “had knowledge” that the student was a student with a disability before the behavior that precipitated the disciplinary action occurred.
A school system will be deemed to have “had knowledge” that a student was a student with a disability before the behavior that precipitated the disciplinary action occurred if, before that event:
the parents/guardians expressed concern in writing to supervisory or administrative personnel;
a teacher of the student felt that the student is in need of special education;
the parents/guardians requested an evaluation of the child; or
the child’s teacher or other school system personnel expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education services or to other supervisory personnel of the school system.
A school system will not be deemed to have “had knowledge” that the student was a student with a disability if before the event:
the parents/guardians had not permitted the student to be evaluated;
the parents/guardians refused services for the student after an evaluation;
the parents/guardians had revoked consent for special education services; or
the student was evaluated and it was determined by the IEP team that they were not a student with a disability.
If the school system had no knowledge that the student was a student with a disability prior to the disciplinary infraction, then the student may be treated as a general education student who engaged in comparable behavior.
If a parent/guardian of a general education student makes a request for an evaluation during the time period in which the student is subject to disciplinary measures, an expedited evaluation must be conducted. Pending the results of the evaluation, the student remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services, if those measures are comparable with disciplinary measures applied to students without disabilities who engage in comparable behavior. If the student is ultimately determined by an IEP team to be a student with a disability, the student must be provided with special education and related services upon the development of an IEP. In addition, the student is entitled to all of the applicable discipline procedures for students with disabilities discussed above for future violations of the code of conduct.
Legal Authority:
34 C.F.R. 300.534