IDEA, Positive Behavioral Supports, and School Safety

In recent years, incidents of student violence have been at the center of debates over education standards and school safety.1 Congress has responded by enacting laws addressing school safety and student behavior.2 Among those students about whom Congress has been concerned are those with disabilities, particularly those who benefit from the Individuals with Disabilities Education Act (IDEA). 3 When it reauthorized IDEA in 1997,(4) Congress specifically addressed those students' behaviors, the procedures by which their behaviors may be addressed and by which the students may be disciplined, the utilization of a relatively new behavioral intervention technique, "positive behavioral interventions, supports, and strategies"5 ("PBS"), and the nature of the sanctions that schools may impose on them. In Part I, this article analyzes IDEA's 1997 framework, the six principles governing the rights of students and duties of schools, and the relationship of PBS to IDEA. In Part II, it sets out IDEAs provisions related to student behavior and school discipline. In Part III, it defines, explains, and justifies PBS. In Part IV, it sets out guidelines that state and local educational agencies may follow if they want to implement the state of art related to PBS. Finally, in Part V, it argues, contrary to the position of those who believe that IDEA has not struck the right "balance" between the rights of students with disabilities to a free appropriate public education and the equally legitimate rights of students (including those with and without disabilities) and school faculty and staff to have safe schools in which to learn and teach,6 that, if schools will use PBS and follow the guidelines set out in Part IV, it is not necessary and indeed it is counterproductive to federal policy to strike such a "balance. " Whenever we set out a guideline for schools or professionals, we italicize the text. 1. IDEA's Framework: The Six Principles of IDEA and their Relation to PBS In this section we (a) describe the six major principles underlying IDEA,7 (b) define and explain PBS, (c) define functional behavioral assessment (FBA), a key element of PBS, and (d) examine the relation between IDEA's six principles and PBS and FBA. A. The Six Princilples of IDEA Ever since Congress enacted the Individuals with Disabilities Education Act (IDEA),8 the Act has set forth six principles that govern the education of students with disabilities.9 These six principles form a conceptual framework within which the students' rights and schools' duties are set out. These six principles are the following: 1. Zero Reject The first of the six principles is "zero reject. " "Zero reject" is a rule of providing a free appropriate public education to all students with disabilities and of prohibiting cessation of any such student's right to education. That is, it is a rule against exclusion. Among other things, it provides that, although a student may be disciplined, the student may not be subjected to any cessation of educational services.10 For example, even if a student is properly expelled from a school, the school district must continue to educate the student, although in another setting. 2. Nondiscriminatory Evaluation The second principle is "nondiscriminatory evaluation," a rule of fair evaluation of the student in order to determine whether the student has a disability and, if so, what special education and related services are required for the student.11 To carry out a fair evaluation, the school must assess the student, inter-disciplinarily, across a variety of domains (cognitive, behavioral, developmental, and physical) and in those specific areas in which the student may have (or is already known to have) a disability.12 Among other things, this principle also provides that the student's parents are members of the team that evaluates the student13 and that they have the right to secure (sometimes at the cost of the school) and to have the school consider any evaluations conducted by qualified individuals who are not employees or contractors of the school. …