Seeking an Interim Alternative Education Placement for Dangerous or Disruptive Students with Disabilities: Four Burdens for the School District to Meet.

ABSTRACT School safety is a concern of administrators, teachers, parents and students. Federal legislation has been enacted to address school safety, including the discipline of students with disabilities. One option available to school districts is to place potentially dangerous or disruptive students in an interim alternative educational setting (IAES). School districts must meet a burden of proof by showing that such placements are necessary. Specific examples of the 1997 IDEA four-prong burden are presented in this article. These cases clarify four sources of evidence that were necessary for a school district to obtain an order to remove a dangerous or disruptive child to an IAES. Next, the analysis reviews cases addressing various types of disruptive and dangerous behaviors. Third, a review of cases involving placement in an IAES for drug and weapons offenses is presented. Guidelines for balancing the need for school safety with the need to provide appropriate programs for students with disabilities are also presented. The Individuals with Disabilities Education Act (IDEA), which was recently reauthorized in December of 2004, contains numerous provisions to ensure that students with disabilities are provided a free, appropriate education. Among those provisions are policies governing the discipline of students with disabilities. A student must be provided the services identified in the Individualized Education Program (IEP), and those services may not be changed without certain procedural safeguards. Specifically, any disciplinary action that might change the provision of IEP services, such as suspension or expulsion, can only be taken if the procedural safeguards have been applied. The IDEA specifies that prior to disciplinary action that would change a student's placement (e.g., suspensions culminating in more than 10 days or expulsion) the district must conduct a manifestation determination and functional behavioral assessment to determine if the misconduct is related to the child's disability. If there is no relationship, the school district may apply disciplinary sanction in the same manner as for nondisabled students. However, the school district is required to provide IEP services during long-term (e.g., more than 10 school days) suspensions or during the expulsion period [20 U.S.C. § 1415(k)(1)(D)]. The discipline provisions also permits a school district to remove a student from school and place the student in an Interim Alternative Education Setting (IAES) under three conditions. First, the 1997 IDEA gave school officials the authority to immediately remove a child from an educational setting to an IAES if the child a) carries a weapon to school or to a school function that is under the jurisdiction of the local school district, and b) knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at a school or a school function that is under the jurisdiction of the local school district. The 2004 IDEA added a third condition under which school personnel may remove a child to an IAES: if a child has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function [20 U.S.C. §1415(k)(1)(G)(iii)]. The IAES is available up to 45 school days, is selected by the IEP team, and must permit the child to continue to participate in the general curriculum and continue to receive the services identified on the IEP. The IAES must also permit the child to receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications that are designed to address the behavior violation so that it does not recur [20 U. S. C. § 1415(k)(1)(D)]. In this way, the school can place the child in a setting outside the school while completing the manifestation determination and functional behavioral assessment and while determining what the child's future placement might be. The IAES provisions were intended to balance the need for school safety with the need to provide students who have disabilities with the education program guaranteed them by law. …