Individuals with Disabilities Education Act (IDEA): Discipline Provisions in P.L. 108-446
Released: 2006-10-03T00:00:00

Introduction

The Individuals with Disabilities Education Act (IDEA) is both a grants statute and a civil rights statute. It provides federal funding for the education of children with disabilities and requires, as a condition for the receipt of such funds, the provision of a free appropriate public education (FAPE). The statute also contains detailed due process provisions to ensure the provision of FAPE.

On December 3, 2004, President Bush signed the Individuals with Disabilities Education Improvement Act, P.L. 108-446 . This act is the first reauthorization of IDEA since 1997 and, although the new law preserves the basic structure of IDEA, it also makes significant changes in the law. Some of the most controversial changes were made regarding the discipline of children with disabilities.

Generally under IDEA a child with a disability is not immune from disciplinary procedures; however, these procedures are not identical to those for children without disabilities. If a child with a disability commits an action that would be subject to discipline, school personnel have immediate several options. A child with a disability who violates a code of student conduct may be removed from her current placement to another setting or suspension for up to 10 school days; the child may be placed in an interim alternative education setting for up to 45 school days for situations involving weapons, drugs, or if the student has inflicted serious bodily injury upon another person while at school; and a hearing officer may be asked to order a child be placed in an interim alternative educational setting for up to 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or others. If the local educational agency (LEA) seeks to change the placement of a child with a disability because of a violation of a code of student conduct either on an interim basis or on a long-term basis (except for a 10-day suspension), a manifestation determination review must be conducted to determine whether the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability or was the direct result of the LEA's failure to implement the individualized education program (IEP). If the child's behavior is not a manifestation of a disability, long-term disciplinary action such as expulsion may occur, except that educational services may not cease.

Several provisions were added by P.L. 108-446 that give schools increased flexibility for dealing with children with disabilities who misbehave. For example, the 2004 reauthorization adds to the provisions that allow a school to place a child with a disability in an interim alternative educational setting for not more than 45 school days by including a child who has inflicted serious bodily injury on another person.

The concept of a manifestation determination, a procedure to determine whether or not the behavior of a child with a disability was caused by the child's disability, is kept in P.L. 108-446 . However, the manner in which such a determination is made is changed by the new law. Changes are also made regarding the placement of a child with a disability when a parent or LEA disagrees with any decision regarding placement or the manifestation determination.

History of IDEA's Discipline Procedures

The manner in which children with disabilities can be disciplined may seem quite complex, but the logic involved is much more apparent when IDEA's history is examined. IDEA was originally enacted in 1975 as the Education for All Handicapped Children Act, P.L. 94-142 . The primary motive for its enactment was the fact that children with disabilities often failed to receive an education or received an inappropriate education. This lack of education gave rise to numerous judicial decisions, notably PARC v. State of Pennsylvania, and Mills v. Board of Education of the District of Columbia . These decisions found constitutional infirmities with the lack of education for children with disabilities when the states were providing education for children without disabilities. As a result, the states were under considerable pressure to provide such services, and they lobbied Congress to assist them.

In enacting P.L. 94-142 , Congress provided grants to the states to help pay for education for children with disabilities and also delineated specific requirements the states must follow in order to receive these federal funds. These requirements did not contain a discipline provision per se but rather contained a requirement that if there is a dispute between the school and the parents of a child with a disability, the child "stays put" in his or her current educational placement until the dispute is resolved using the due process procedures set forth in the statute. The concept of "stay put" was placed in the statute to help eliminate the then common discriminatory practice of expelling children with disabilities from school. A revised "stay put" provision remains as law in the current version of IDEA.

Issues relating to children with disabilities who exhibited violent or inappropriate behavior have been raised for a number of years. In 1988, the question of whether there was an implied exception to the stay put rule was presented to the Supreme Court in Honig v. Doe . Honig involved emotionally disturbed children one of whom had choked another student with sufficient force to leave abrasions on the child's neck and who had kicked out a window while he was being escorted to the principal's office. The other child in the Honig case had been involved in stealing, extorting money and making lewd comments. The school had sought expulsion, but the Supreme Court disagreed finding that "Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school." However, the Court observed that this holding did "not leave educators hamstrung....Where a student poses an immediate threat to the safety of others, officials may temporarily suspend him or her for up to 10 school days....And in those cases in which the parents of a truly dangerous child adamantly refuse to permit any change in placement, the 10-day respite gives school officials an opportunity to invoke the aid of the courts under section 1415(e)(2), which empowers courts to grant any appropriate relief." This statement about the school's right to seek judicial relief has come to be known as a Honig injunction.

The Supreme Court's interpretation of IDEA in Honig did not quell all concerns about discipline and children with disabilities. In 1994, Congress amended IDEA's stay put provision to give schools the unilateral authority to remove a child with a disability to an interim alternative educational setting if the child was determined to have brought a firearm to school. This provision was expanded upon in the IDEA Amendments of 1997 to include weapons, not just firearms, and drugs and is further expanded in the 2004 reauthorization to include situations where a student has inflicted serious bodily injury upon another person while at school.

The Department of Education (ED) had received numerous questions from schools about discipline and in 1995 issued a memorandum discussing numerous discipline issues including the use of manifestation determinations. If a school sought to suspend or expel a child with a disability for more than 10 days, the school must first make a "manifestation determination," a determination concerning whether the student's misconduct was related to his or her disability. If the behavior was not related to the disability, the school could suspend or expel for more than 10 days but must continue to provide education services. If the behavior was related to the disability, the school must give notice of any recommended change in placement and, if the parent objected, the parent could invoke the stay put provision. The Department found that Honig injunctions, court orders to change the placement of a child with a disability, were proper when a school believed that maintaining the child in his or her current placement was "substantially likely to result in injury to the student or others." The concept of a manifestation determination was placed in statutory language in 1997 by P.L. 105-17 as was the regulatory interpretation that educational services cannot cease for children with disabilities even if they have been suspended or expelled. Both of these provisions are kept in P.L. 108-446 , but the manifestation determination and the stay put on appeals provisions are amended.

Discipline Provisions in the Individuals with Disabilities Education Improvement Act of 2004

Overview of Disciplinary Procedures

Generally, under P.L. 108-446 a child with a disability is not immune from disciplinary procedures; however, these procedures are not identical to those for children without disabilities. The House passed bill, H.R. 1350 , 108 th Cong., had required school personnel to treat all children in the same manner with regard to discipline except that for children with disabilities educational services would continue. The Senate bill, S. 1248 , 108 th Cong., contained an approach similar to that of previous law but attempted to "make it simpler, easier to administer, and more fair to all students." Under final enacted law, if a child with a disability commits an action that would be subject to discipline, school personnel have several options. These include

removing a child with a disability who violates a code of student conduct from her current placement to another setting or suspension for up to 10 school days. placing the child in an interim alternative education setting for up to 45 school days for situations involving weapons, drugs, or if the student has inflicted serious bodily injury upon another person while at school. asking a hearing officer to order a child be placed in an interim alternative educational setting for up to 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or others.

School officials may also seek a Honig injunction as discussed previously if they are unable to reach agreement with a student's parents and they feel that the new statutory provisions are not sufficient.

If the local educational agency seeks to change the placement of a child with a disability because of a violation of a code of student conduct, a manifestation determination review must be conducted. The manifestation determination review determines whether the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability or was the direct result of the local educational agency's failure to implement the individualized education program. If the child's behavior is not a manifestation of a disability, long-term disciplinary action such as expulsion may occur, except that educational services may not cease.

Case-by-Case Determination

The 2004 reauthorization adds a specific section giving school personnel the authority to consider unique circumstances on a case-by-case basis when determining whether to order a change in placement for a child with a disability who violates a code of student conduct. The IDEA regulations elaborate on this provision and require that the case-by-case determination be "consistent with the other requirements of this section." These unique circumstances, ED noted, were "best determined at the local level by school personnel who know the individual child and all the facts and circumstances regarding a child's behavior" and, therefore, ED did not include more detailed discussion in the regulations. However, in the comments to the regulations, ED did observe that certain factors, such as a child's disciplinary history, ability to understand consequences, expression of remorse, and supports provided to the child prior to the violation, could be unique circumstances. The regulations also state in part that the ability of school personnel to remove a child with a disability is to be applied "to the extent those alternatives are applied to children without disabilities" and as long as the removals do not constitute a change in placement.

The Ten School Day Rule

School personnel may remove a child with a disability who violates a code of student conduct from his current placement to an appropriate interim alternative educational setting, another setting, or suspension for not more than 10 school days. These options are to be applied to the same extent that they would be applied to children without disabilities. The 10-day rule was added to IDEA in 1997 and codified what was existing practice. The Supreme Court in Honig v. Doe , supra, had allowed 10-day suspensions under prior law. The 2004 reauthorization reworded the provision and changed 10 days to 10 school days. It should be noted that the time limitations regarding disciplinary procedures generally refer to school days, not days. Thus, the new law adds additional time to the 10-day rule and to other provisions where the term "school day" is used.

The regulations state that where a child has been removed for more than 10 school days in the same school year, and the current removal is for not more than 10 consecutive school days and is not a change of placement, school personnel, in consultation with the child's teacher or teachers, determine the extent to which services are needed so as to enable the child to continue to participate in the general education curriculum. The regulations also provide that a child subject to this removal must continue to receive educational services "as provided in §300.101(a)," which is the regulatory provision guaranteeing FAPE. ED commented:

[W]hile children with disabilities removed for more than 10 school days in a school year for disciplinary reasons must continue to receive FAPE, we believe the Act modifies the concept of FAPE in these circumstances to encompass those services necessary to enable the child to continue to participate in the general curriculum, and to progress toward meeting the goals set out in the child's IEP. An LEA is not required to provide children suspended for more than 10 school days in a school year for disciplinary reasons, exactly the same services in exactly the same settings as they were receiving prior to the imposition of discipline. However, the special education and related services the child does receive must enable the child to continue to participate in the general curriculum, and to progress toward meeting the goals set out in the child's IEP.

Interim Alternative Educational Settings

Removal to an Interim Alternative Educational Setting

P.L. 108-446 provides that school personnel may remove a student to an interim alternative educational setting for not more than 45 school days in situations involving weapons or drugs, or where the student has inflicted serious bodily injury on another person. In addition, an LEA that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others may request a hearing. The hearing officer may order a change in placement to an interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others. The Senate report noted that this requirement was to "address situations such as when a school cannot make a unilateral change in the child's placement because his behavior was a manifestation of his disability: the school deems the child to be too dangerous to stay in a regular classroom, but has been unable to reach agreement with the parents as to an appropriate alternative placement for the child."

Numerous commentators on the proposed regulations suggested that the final regulations clarify that the public agency has the burden of proof in arguing that removing a child is necessary because maintaining the current placement is substantially likely to result in injury to self or others. The IDEA statute is silent on this issue, and ED declined to address it in the regulations. However, ED did observe that the burden of proof in IDEA proceedings was at issue in Schaffer v. Weast , a recent Supreme Court decision. The Court held there that the burden of persuasion in a hearing challenging the validity of an IEP is on the party seeking relief. Noting the Supreme Court's decision, ED stated that "[w]here the public agency has requested that a hearing officer remove a child to an interim alternative educational setting, the burden of persuasion is on the public agency."

The regulations specifically allow a school district to seek a subsequent hearing to continue the child in an interim alternative educational placement if the school district believes that returning the child to the original placement is substantially likely to result in injury to the child or others.

Services Provided a Child with a Disability Who Is Placed in an Interim Alternative Educational Setting

The Individuals with Disabilities Education Improvement Act of 2004 provides that when a child with a disability is removed from the child's current placement to an interim alternative educational setting pursuant to section 615(k)(1)(G) or a change in placement is ordered due to a behavioral violation as described in section 615(k)(1)(C), the child is to continue to receive educational services. These services must enable the child to continue to participate in the general educational curriculum and to progress toward meeting the child's IEP goals. The child with a disability must also receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications designed to prevent reoccurrence of the child's behavioral violation.

The regulations state that a public agency is only required to provide services during periods of removal to a child with a disability who has been removed from a current placement for 10 school days or less in that school year if the public agency provides similar services to a child without a disability who is similarly removed.

Manifestation Determination

As was noted previously, the concept of a manifestation determination originated in policy interpretations of IDEA by the Department of Education. The theory is that when behavior, even inappropriate behavior, is caused by a disability, the response of a school must be different than when the behavior is not related to the disability. This requirement was codified by P.L. 105-17 in 1997 and amended by the 2004 reauthorization.

The Individuals with Disabilities Education Improvement Act of 2004 requires that within 10 school days of a decision to change the placement of a child with a disability because of a violation of a code of student conduct, the LEA, parent, and relevant members of the IEP team shall review all the relevant information in the child's file to determine: (1) if the conduct was caused by, or had a direct and substantial relationship to, the child's disability; or (2) if the conduct was the direct result of the local educational agency's failure to implement the IEP. An exception to this requirement is made for situations involving the authority of school personnel to remove a child for not more than 10 school days. The relevant members of the IEP team are to be determined by the parent and the LEA. The material to be reviewed shall include the child's IEP, any teacher observations, and any relevant information provided by the parents. If either of these two determinations are made by the parent, LEA, and relevant members of the IEP team, the conduct shall be determined to be a manifestation of the child's disability.

Once the behavior has been determined to be a manifestation of the child's disability, the IEP team must conduct a functional behavioral assessment and implement a behavioral intervention plan for the child, unless the LEA had conducted this assessment prior to the behavior in question. Where a behavior intervention plan has been developed, the IEP team shall review the plan and modify it, as necessary, to address the behavior. The IEP team must also return the child to the placement from which he or she was removed unless the parent and the LEA agree to a change in placement as part of the modification of the behavior intervention plan or school personnel remove a child to an interim alternative educations setting for not more than forty five school days as discussed below.

The conference report for P.L. 108-446 specifically addresses the manifestation determination. "The Conferees intend to assure that the manifestation determination is done carefully and thoroughly with consideration of any rare or extraordinary circumstances presented.... The Conferees intend that if a change in placement is proposed, the manifestation determination will analyze the child's behavior as demonstrated across settings and across time when determining whether the conduct in question is a direct result of the disability. The Conferees intend that in situations where the local educational agency, the parent and the relevant members of the IEP team determine that the conduct was the direct result of the child's disability, a child with a disability should not be subject to discipline in the same manner as a non-disabled child. The Conferees intend that in order to determine that the conduct in question was a manifestation of the child's disability, the local educational agency, the parent and the relevant members of the IEP team must determine the conduct in question be [sic] the direct result of the child's disability. It is intention [sic] of the Conferees that the conduct in question was caused by, or has a direct and substantial relationship to, the child's disability, and is not an attenuated association, such as low self-esteem, to the child's disability."

P.L. 108-446 provides that if the child's behavior is not related to his or her disability, the relevant disciplinary procedures that are applicable to children without disabilities may be applied to the child in the same manner and for the same duration in which they would be applied to children without disabilities except that a free appropriate public education must be made available to the child. The free appropriate public education may be provided in an interim alternative educational setting.

Child's Placement During Appeals

The 2004 reauthorization allows a parent who disagrees with any decision regarding placement or the manifestation determination, or a LEA that believes that maintaining the current placement of the child is substantially likely to injure the child or others, to request a hearing. The new law specifically delineates the authority of a hearing officer. First, a hearing officer is to hear and make a determination regarding any hearings requested pursuant to §615(k)(3)(A). In making this determination, the hearing officer may order a change of placement, which may include

returning a child with a disability to the placement from which he or she was removed, and ordering a change in placement to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or others.

The Individuals with Disabilities Education Improvement Act of 2004 changed the "stay put" provision in the appeals section. It should be noted that one of the core requirements of the original 1975 law, and one which remains in the current statute, is the requirement that a child with a disability remains in his or her current educational placement during the pendency of §615 proceedings. The rationale for this provision was to ensure that children with disabilities were not excluded from receiving an education while a parent disputed issues relating to the provision of a free appropriate public education. However, an exception to this general provision was made for children with disabilities who are placed in interim alternative educational settings in the 1997 reauthorization and this exception is amended by the 2004 reauthorization.

Under the 2004 reauthorization, when an appeal has been requested by either a parent or the LEA under §615(k)(3) (which concerns appeals regarding a manifestation determination or a placement in an interim alternative educational setting), the child is to remain in the interim alternative educational setting pending the decision of the hearing officer or until the time period for the disciplinary infraction ends. Under previous law, the child was to remain in the interim alternative educational setting for 45 days unless the school and the parents agreed or a hearing officer rendered a decision. The current law requires that the State educational agency (SEA) or LEA must arrange for an expedited hearing that must occur within 20 school days from when the hearing is requested. The hearing determination must be made within 10 school days after the hearing.

The Senate report discussed this provision noting that the committee did not intend that a hearing officer's reversal of a manifestation determination would allow a child with a disability who had been placed in an interim alternative educational setting for a violation regarding weapons, drugs, or serious bodily injury to be removed early from this placement. "However, if a parent contests facts surrounding the claim the child actually carried a weapon, brought drugs to school, or committed a serious bodily injury, then the child may be returned to his or her original placement if a hearing officer overturns the school district's decision. Similarly, if a parent successfully contests the provision of a free appropriate public education (FAPE) in the interim alternative educational setting chosen by the IEP team, the child's placement could be changed before the 45 day period expires."

Children Who Are Not Yet Eligible for Special Education and Related Services

One of the situations Congress grappled with during the 1997 reauthorization concerned children who were the subject of a disciplinary action and who alleged after the action occurred that they were disabled and thus entitled to the protections of IDEA. This situation had been presented in several judicial decisions which raised the issue of possible abuse of IDEA protections.

The 2004 reauthorization keeps much of the previous law regarding the protections afforded children who have not yet been identified as eligible for special education. The Senate report stated that the committee maintained "its intent that children who have not yet been identified for IDEA should be afforded certain protections under the law." However, several changes were made regarding when a LEA is deemed to have knowledge that a child is a child with a disability. Generally, a LEA is deemed to have knowledge that a child is a child with a disability if, before the behavior that precipitated the disciplinary action:

the parent of the child expressed concern, in writing, to supervisory or administrative personnel of the LEA or the child's teacher that the child is in need of special education and related services, the parent has requested an evaluation, or the teacher of the child or other LEA personnel has expressed specific concerns about a pattern of behavior directly to the director of special education or other supervisory personnel.

Under previous law, a LEA was deemed to have knowledge that a child is a child with a disability if the behavior or performance of the child demonstrated the need for such services. This section was deleted by P.L. 108-446 . The Senate report stated that this provision was deleted because a teacher could make an isolated comment to another teacher expressing concern about behavior and that could trigger the protections.

The 2004 reauthorization also contains a new exception stating that a LEA shall not be deemed to have knowledge that a child is a child with a disability if the parent of the child has not allowed an evaluation of the child, or has refused services, or the child has been evaluated and it was determined that the child was not a child with a disability.

Certain conditions apply if the LEA has no basis of knowledge that a student is a child with disability. Essentially if the LEA is not found to have such knowledge, the child may be subject to the same disciplinary measures that are applicable to children without disabilities except that if a request for an evaluation is made during the time period in which the child is subjected to disciplinary measures, the evaluation shall be conducted in an expedited manner. If the child is found to be a child with a disability, special education and related services shall be provided.

Law Enforcement and Judicial Entities

Prior to the 1997 reauthorization, judicial decisions gave rise to the issue of when children with disabilities could be referred to law enforcement officials. The 2004 reauthorization keeps the previous requirements concerning referral to law enforcement authorities. Nothing in Part B is to be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities. An agency reporting a crime committed by a child with a disability shall ensure that copies of certain records are transmitted.

Transfer of Disciplinary Information

The Individuals with Disabilities Education Improvement Act of 2004 keeps the provisions of previous law regarding the transfer of disciplinary information. These provisions were added in the 1997 reauthorization to address the potential for an increased possibility of violence when a local school system is not adequately informed about the child's past. The law specifically allows a state, at its discretion, to require a local educational agency to include a statement of any current or previous disciplinary actions that have been taken against a child with a disability, in the records of the child. The statement may include a description of the behavior the child engaged in, a description of the disciplinary action taken, and other information that is relevant to the safety of the child and other individuals. This information can be transmitted to the same extent that such information would be transmitted with the records of children who do not have disabilities.