RS20558 -- The Individuals with Disabilities Education Act: Discipline Legislation in the 106th Congress January 12, 2001 IDEA provides federal funds to the states to assist them in providing an education for children with disabilities. As a condition for the receipt of these funds,IDEA contains requirements on the provision of services and detailed due process procedures. In 1997 Congressamended IDEA in the most comprehensive andcontroversial reauthorization since IDEA's original enactment in 1975. One of the most contentious issuesaddressed in the 1997 legislation related to thedisciplinary procedures applicable to children with disabilities. IDEA was originally enacted in 1975 because children with disabilities often failed to receive an education or received an inappropriate education. This lack ofeducation led to numerous judicial decisions, including PARC v. State of Pennsylvania (1) and Mills v. Board of Education of theDistrict of Columbia (2) whichfound constitutional infirmities with the lack of education for children with disabilities when the states wereproviding education for children without disabilities. As a result, the states were under considerable pressure to provide such services and they lobbied Congress to assistthem. (3) Congress responded with the grantprogram still contained in IDEA but also delineated specific requirements that the states must follow in order toreceive these federal funds. The statute providedthat if there was a dispute between the school and the parents of the child with a disability, the child must "stay put"in his or her current educational placementuntil the dispute is resolved. A revised stay put provision remains in IDEA. Issues relating to children with disabilities who exhibit violent or inappropriate behavior have been raised for years and in 1988 the question of whether there wasan implied exception to the stay put provision was presented to the Supreme Court in Honig v. Doe. (4) Although the Supreme Court did not find such animpliedexception, it did find that a ten day suspension was allowable and that schools could seek judicial relief when theparents of a truly dangerous child refuse topermit a change in placement. In 1994, Congress amended IDEA's stay put provision to give schools unilateralauthority to remove a child with a disability to aninterim alternative educational setting if the child was determined to have brought a firearm to school. In 1997 Congress made significant changes to IDEA in P.L. 105-17 and attempted to strike "a careful balance between the LEA's (local education agency) duty toensure that school environments are safe and conducive to learning for all children, including children withdisabilities, and the LEA's continuing obligation toensure that children with disabilities receive a free appropriate public education." (5) This current law does not immunize a child with a disability from disciplinaryprocedures but these procedures may not be identical to those for children without disabilities. In brief, if a childwith a disability commits an action that would besubject to discipline, school personnel have the following options: suspending the child for up to ten days with no educational services provided, conducting a manifestation determination review to determine whether there is a link between the child's disability and the misbehavior. Ifthe child's behavior is not a manifestation of a disability, long term disciplinary action such as expulsion may occur,except that educational services may notcease. If the child's behavior is a manifestation of the child's disability, the school may review the child's placementand, if appropriate, initiate a change inplacement. placing the child in an interim alternative education setting for up to forty five days (which can be renewed) for situations involving weaponsor drugs, and asking a hearing officer to order a child be placed in an interim alternative educational setting for up to forty-five days (which can berenewed) if it is demonstrated that the child is substantially likely to injure himself or others in his currentplacement. 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 newstatutory provisions are not sufficient. (6) Violence in schools surfaced on the congressional agenda in the 106th Congress with S. 254 , the Violent and Repeat Juvenile Accountability andRehabilitation Act of 1999 which passed the Senate on May 20, 1999, and H.R. 1501 , the Child Safety andProtection Act which passed the House onJune 17, 1999. Both of these bills contained amendments offered on the floor relating to discipline under IDEA. Essentially these amendments would havechanged section 615 of IDEA to eliminate IDEA's different disciplinary procedures for children with disabilitiesin certain situations. In the Senate theamendment applied to children with disabilities who carry or possess a gun or firearm while in the House theamendment would have covered a weapon. TheSenate passed Amendment 355, offered by Senators Frist and Ashcroft, by a vote of 74 to 25. (7) The House passed Amendment 35, offered byRepresentativeNorwood, by a vote of 300 to 128. (8) The legislationwas not enacted. These House and Senate amendments were the subject of emotional debate. The general theme sounded by proponents of the amendments was that recentincidents of gun violence in the schools necessitated the changes in IDEA to allow school officials more control overdiscipline. The opponents of theamendments argued that the discipline provisions in IDEA had been carefully crafted in the 1997 reauthorizationand that the result of the amendments would bemore criminal behavior by depriving children with disabilities who had possessed weapons of supervision andeducational services. (9) Two amendments relating to children with disabilities were offered and accepted during House Education and Workforce Committee markup of H.R. 4141 , 106th Cong. One amendment, offered by Representative Norwood, concerned the disciplineof a child with a disability who carries or possesses a weapon. The other amendment, offered by Representatives Talent, McIntosh and Tancredo, concerned the discipline of achild with a disability who knowingly possessesor uses illegal drugs at school or commits an aggravated assault or battery at school. The amendment offered by Rep. Norwood required that each state that receives funds under the Act shall require each local educational agency to have in effect apolicy which would allow school personnel to discipline a child with a disability who carries or possesses a weaponat school in the same manner in which schoolpersonnel may discipline a child without a disability. This would have included expulsion or suspension and a childwho is suspended or expelled would not havebeen entitled to continue educational services, including the provision of a free appropriate public education(FAPE), if the state does not require a child without adisability to receive educational services after being expelled or suspended. However, a local educational agencymay have chosen to provide educational ormental health services for such a child. If such services are provided, there was no requirement to provide the childwith any particular level of service and thelocation of the services is at the discretion of the local educational agency. School personnel were permitted tomodify the disciplinary action on a case by casebasis. A child with a disability who is disciplined under this amendment would have been able to assert a defense that the carrying or possession of the weapon wasunintentional or innocent. This provision could have helped to address the problem of a child with limited mentalcapacities who had someone place a gun in hisor her backpack; however, the exact implications of this provision are somewhat uncertain since it was not specifiedto whom or when this defense would beasserted. The term weapon was defined as having the meaning given to "dangerous weapon" at 18 U.S.C. �930(g)(2). That definition stated: "The term 'dangerousweapon' means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or isreadily capable of, causing death or seriousbodily injury, except that such term does not include a pocket knife with a blade of less than 2 � inches in length." The amendment offered by Representatives Talent, McIntosh and Tancredo required that each state that receives funds under the Act shall require each localeducational agency to have in effect a policy under which school personnel may discipline a child with a disabilityin the same manner as a child without adisability if the child with a disability (1) knowingly possesses or uses illegal drugs or sells or solicits the sale ofa controlled substance at a school, on schoolpremises, or to or at a school function or (2) commits an aggravated assault or battery, as defined under State or locallaw, at a school, on school premises, or to orat a school function. Like the amendment offered by Representative Norwood, this amendment would have includedexpulsion or suspension and a child who issuspended or expelled would not have been entitled to continue educational services, including FAPE, if the statedoes not require a child without a disability toreceive educational services after being expelled or suspended. However, a local educational agency may havechosen to provide educational or mental healthservices for such a child. If such services are provided, there was no requirement to provide the child with anyparticular level of service and the location of theservices was at the discretion of the local educational agency. School personnel were permitted to modify thedisciplinary action on a case by case basis. As with the Norwood amendment, a child with a disability who is disciplined under this amendment would have been able to assert a defense that the possessionor use of the illegal drugs, or the sale or solicitations of the controlled substance, was unintentional or innocent. This provision could have helped to address theproblem of someone placing drugs in the backpack of a child with limited mental capacities; however, the exactimplications of this provision were somewhatuncertain since it was not specified to whom or when this defense would be asserted. The amendment did notprovide for any similar defense for an allegation ofaggravated assault or battery.