Discipline and Placement
In a recent memorandum, the United States Department of Education’s Office of Special Education Programs ("OSEP") identified four basic themes relating to discipline:
All students, including those with disabilities, deserve safe well-disciplined schools and orderly learning environments.
Teachers and administrators should have the proper tools to assist them in preventing misconduct and discipline problems and if they arise, to address them.
The policies underlying discipline must balance the need for orderly and safe schools and the need to provide a free and appropriate public education to students with disabilities.
Providing appropriate individualized plans to students with disabilities decrease school discipline problems1.
Pursuant to section 615(k) of Public Law 105-17 (1997 IDEA Amendments) ("P.L. 105-17"), a State is eligible for assistance for a fiscal year if the State demonstrates to the satisfaction of the Secretary of Education that it has in effect policies and procedures to ensure that it meets certain conditions2. In sum, the State must demonstrate that it has in effect a plan to provide a free appropriate education to all children between the ages of 3 and 21 with disabilities who reside in the State, including children who have been suspended or expelled from school3, except where to do so would conflict with applicable state law or practice or the order of any court4.
Recently, the Office of Special Education and Rehabilitative Services, Department of Education, issued regulations for the Assistance to States for Education of Children with Disabilities program under Part B of the Individuals with Disabilities Education Act ("IDEA Part B"). The regulations take effect on May 11, 1999, but compliance will not be required until the date that the State receives FY 1999 funding under the program or October 1, 1999, whichever is earlier. This is an overview of the regulations and the provisions of P.L. 105-17 that relate to discipline.
Congress’ purpose in promulgating P.L. 105-17 was to ensure, inter alia, that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living5, ensuring that the rights of children with disabilities and parents of such children are protected6, and to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities7. Congress defines a free appropriate public education as special education and related services that: have been provided at public expense, under public supervision and direction and without charge; meet the standards of the State educational agency; include an appropriate preschool, elementary or secondary school education in the State involved; and are provided in conformity with the individualized education program requires under section 614(d)8.
Congress provided that a child with a disability means a child with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities and who, by reason thereof, need special education related services9. The Secretary added children with deaf-blindness or multiple disabilities to its definition of child with a disability10.
If through an appropriate evaluation, the parties determine that a child has one of the disabilities listed above but only needs a related service and not special education, for purposes of the regulations the child is not a child with a disability11; provided, however, that if under its standards the State considers the related service to be special education instead of related services, the child would be determined to be child with a disability12. Congress provided a list of services within the definition of "related services", including transportation, speech-language pathology, audiology services, psychological services, physical and occupational therapy, recreation, social work services and counseling services13. The Secretary added parent counseling and training14 and defined those services15. Special education can occur in the classroom, in the home and in other settings and includes instruction in physical education16. "Physical education" means development of physical and motor fitness17, fundamental motor skills and patterns18 and skills in aquatics, dance and individual and group games and sports (including intramural and lifetime sports)19.
For a child between the ages of 3 and 9, a child with a disability may, at the discretion of the State and local educational agency, include a child experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development and who, by reason thereof, needs special education and related services20. The Secretary defined "emotional disturbance" as exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversary affects a child’s educational performance:21 an inability to learn that cannot be explained by intellectual, sensory or health factors22, an inability to build or maintain satisfactory interpersonal relationships with peers and teachers23, inappropriate types of behaviors or feelings under normal circumstances24, a general pervasive mood of unhappiness or depression25 and a tendency to develop physical symptoms or fears associated with personal or school problems26.
Individualized Education Plans
A LEA is obligated to conduct a full and individual evaluation before the initial provision to a child with a disability of special education or related services27. The initial evaluation shall consist of procedures to determine whether a child has disabilities28 and to determine the educational needs of the child29. The agency shall obtain the consent of the parents30 before conducting the evaluation. Parental consent for evaluation shall not be construed as consent for receipt of special education and related services31. If the parents refuse consent for evaluation, the agency may continue to pursue the evaluation by invoking either mediation or a due process hearing32. A LEA must ensure that a reevaluation of each child with a disability is conducted when conditions warrant or if the child’s parent or teacher requests it, but at least once every three years33. In doing so, the LEA must provide written notice to the parents of the child whenever it proposes to initiate or change34 or refuses to initiate or change35 the identification, evaluation or educational placement of the child or the provision of free appropriate public education36. Prior to conducting the reevaluation, the LEA must obtain the parent’s consent, except that the LEA need not obtain this consent if it can demonstrate that it took reasonable measures to obtain the consent and the parents did not respond37. Similarly, prior to determining that the student no longer has a disability, the LEA must evaluate the student38.
In conducting the evaluation, the LEA must utilize the appropriate assessment tools to gather the relevant functional and development information that may assist in determining whether the child has a disability and the content of the child’s individualized educational program39, including information from the parent40. Upon the completion of the tests and evaluations, the LEA’s team and the parent shall determine whether the child has a disability41. If he does, the LEA shall develop an individualized educational program. At the beginning of each school year, the LEA shall have an individualized educational program in effect for each child in its jurisdiction who has a disability42.
Once a LEA determines that a student is eligible for special education, the LEA shall convene one or more multi-disciplinary conferences to develop an individualized education program for the student. Congress defines an "individualized education program" ("IEP") as a written statement for each child with a disability that is developed, reviewed and revised in accordance with section 614 of P.L. 105-17. Section 614 sets forth procedures for evaluation of the child, parental notice and involvement and a schedule for reevaluations. The IEP team shall include, inter alia, the parents of the child43 and the LEA shall take steps to ensure that one or more of the parents are present at each IEP meeting or are afforded the opportunity to participate44. The IEP must be in writing45 and contain, inter alia, statements of the child’s present levels of educational performance46 and of measurable annual goals, including benchmarks or short-term objectives47, a statement of the special education and related services and supplementary aids and services to be provided to the child or on behalf of the child48, and explanation of the extent to which the child will not participate with nondisabled children in the regular class49 and a statement of how the child’s progress toward the annual goals will be measured.50. Each LEA must provide special education related services to the child with disabilities in accordance with the child’s IEP51 and must make a good faith effort to achieve the goals and objectives or benchmarks listed in the IEP52.
If a student with disabilities violates the rules of conduct of a local educational agency ("LEA"), other than bringing a weapon to school or to a school function or using or selling controlled substances, the LEA may order a change of placement to an appropriate interim alternative educational setting or to another setting, or may suspend the student for up to ten days53; provided, however, that the local school district must also apply all of the alternatives in question to students who do not have disabilities54. The local school district may only suspend the student for a total of ten days in any given school year but it may break up the ten days into more than one incidence of suspension55. The State must have on file with the Secretary of Education data to determine if significant discrepancies are occurring in the relative rate of long-term suspensions and expulsions between different LEAs and between students with and without disabilities.56 Parents have the right to examine all records relating to the child and to participate in meetings for the identification, evaluation and educational placement of the child.57
The LEA may order a change in placement of a child with a disability to an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 days58 if a student with disabilities carries a weapon to school or to a school function59 or knowingly possess or uses illegal drugs or sells of solicits the sale of a controlled substance while at either of those settings60. The child’s individualized educational team shall determine the alternative educational setting for the child61.
Within a reasonable time before changing the educational placement of a child with a disability, the LEA must provide the parents with a written notice62, that includes a description of the action proposed or refused by the LEA63, an explanation of why the LEA proposes or refuses to change the placement64 and a description of any other options that the LEA considered and the reasons why those options were rejected65. A change in placement occurs if the LEA removes the student with disabilities for more than 10 consecutive school days66 or the student is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year and because of factors such as the length of each removal, the total amount of time the child is removed and the proximity of the removals to one another67.
To the extent that it would be applied to students without disabilities, school personnel may order the removal of a student with disabilities from the current educational placement for not more than 10 consecutive school days for any violation of the school rules and additional removals of not more than 10 consecutive school days in than same school year for separate incidents of misconduct, provided that the removals do not constitute a change in placement under 34 C.F.R. 300.519(b)68. After a student with disabilities has been removed from his or her current placement for more than 10 school days in the same school year, then during any subsequent days of removal the public agency must provide services to the extent required under 34 C.F.R. 121(d) (in which the Secretary defined free appropriate public education)69. Both the ISBE and OSEP have published opinions wherein they assert that during a ten day suspension the local school district is not obligated to deliver educational services to the student70. Read literally, the statute is silent on this issue.
Either before or within 10 days of first removing the student for more than 10 school days in a school year or commencing a removal that constitutes a change in placement, then unless it has already done so, the LEA shall convene an IEP meeting to conduct a functional behavioral assessment and implement a behavioral intervention plan71. If the child already has a behavioral intervention plan, the IEP team shall meet to review the plan and its implementation and, as necessary, modify either the plan or its implementation72. As soon as possible after developing the IEP and completing the foregoing assessments, the LEA shall convene an IEP meeting to develop appropriate behavioral interventions to address that behavior and shall implement those interventions.73 Even if a child with a disability who has a behavioral intervention plan and who has been removed from the child’s current educational placement for more than 10 school days in a school year is subjected to a removal that does not constitute a change of placement, the IEP team members shall nonetheless review the behavioral intervention plan and its implementation to determine if modifications are necessary.74
If a party appeals a decision by the LEA to discipline a child, a hearing officer may order a change in the placement of a student with a disability to an appropriate interim alternative educational setting for not more than 45 days if the hearing officer determines that the LEA has demonstrated by substantial evidence that maintaining the current placement of the student is substantially likely to result in injury to the child or others, considers the appropriateness of the child’s current placement, considers whether the public agency has made reasonable efforts to minimize the risk of harm in the child’s current placement, including the use of current supplementary aids and services, and determines that the interim alternative educational setting meets the requirements of paragraph75. Any interim alternative educational setting in which a child is placed under the preceding sections shall be selected to enable the child to continue to participate in the general curriculum and to continue to receive those services and modifications, including those which are set forth in the child’s IEP, that will enable the child to meet the goals which are also set forth in the IEP76, and include the services and modifications which are designed to address the behavior in question so that it does not recur77.
If a LEA contemplates taking disciplinary action as described above for a child with disabilities or if the LEA contemplates changing the placement of a child with disabilities for more than 10 days who has engaged in behavior that violated any code of conduct of the local educational agency that applies to all children, then not later than the date on which the decision to take that action is made, the parents shall be notified of that decision and of all procedural safeguards which Congress provides in the section78 and, if possible, immediately or not later than 10 school days after the date on which the decision to take that action is made, a review shall be conducted of the relationship between the child’s disability and the behavior in question79.
The IEP team and "other qualified personnel" are required to carry out the foregoing review80. In carrying out this review, the IEP team may only determine that the behavior in question was not a manifestation of the child’s disability if the team first considers all information which is relevant to the behavior81, including evaluation and diagnostic results, including such results or information which the child’s parents supply82, observations of the child83 and the child’s IEP84, and then determines that in relationship to the behavior in question, the child’s IEP and placement were appropriate and the special education services, supplementary aids and services and behavior intervention strategies were provided consistently with the child’s IEP and placement85, that the child’s disability did not impair his or her ability to understand the impact and consequences of the behavior in question86 or to control the behavior87.
If the IEP team and other qualified personnel determine that any of the foregoing standards were not met, the behavior must be considered a manifestation of the child’s disability.88. Similarly, if a public agency identifies deficiencies in the child’s IEP or placement or in their implementation, it must take immediate steps to remedy those deficiencies89. If the result of the foregoing review is that the behavior in question was not a manifestation of the child’s disability, then the LEA may apply the relevant disciplinary procedures which are in effect for children who do not have disabilities and do so in the same manner, except as provided in the section which applies to the implementation of IDEA for various age groups and for juveniles who are incarcerated90.
If the parents or the student appeal the interim alternative educational placement or the outcome of the manifestation determination, pending the outcome of the appeal or until the expiration of the time period, whichever occurs first, the student will serve the discipline period in the contested placement91. If the child is placed in an interim alternative educational placement and the LEA proposes to change the child’s placement for the period commencing after the expiration of the alternative placement, then during any proceeding to challenge that succeeding placement, the child will remain in the placement that he enjoyed prior to the commencement of the alternative placement92. However, if the school personnel "maintain" that it is "dangerous" to return the child to that former educational placement during the pendency of the due process hearing, then the LEA may request that the hearing be expedited93. In determining whether the child should be placed in the interim alternative educational setting or in another appropriate placement, the hearing officer shall again apply the standards set forth in Section 615(k)(2)94.
If one or both of the child’s parents disagree with the determination that the behavior in question was not a manifestation of the child’s disability or with any decision impacting upon the child’s placement, the parent may request a due process hearing95. In Illinois, due process hearings are administrative hearings.
In reviewing the decision relating to the manifestation determination, the hearing officer shall determine whether the LEA demonstrated, up to the standards of Section 615(k)(4)(C) that the behavior was not a manifestation of the disability96. Similarly, in reviewing a decision by a LEA to place a
child in an interim alternative educational setting, the hearing officer shall apply the standards which are set forth in Section 615(k)(2)97.
Even if a child who faces disciplinary proceedings has not been determined to be eligible for special education or related services, he or she may assert any of the protections which Congress provided for children who have been determined to be eligible, if prior to the child engaging in the behavior in question the LEA had knowledge that the child had a disability98. The LEA shall be deemed to have knowledge if the parent "expressed concern in writing" to personnel of the LEA that the child needed special education or related services99, the child’s behavior or performance demonstrated the need for those services100, the parent had requested a case study evaluation101 or the child’s teacher or other personnel of the LEA had "expressed" to the director or other personnel of the LEA’s special education agency "concern" about the child’s behavior or performance102.
If the LEA neither has actual knowledge that a child who has not been determined to be eligible for special education or related services has one or more disabilities nor pursuant to the foregoing standards is charged with having that knowledge, then the child may be subjected to the same disciplinary measures as those which are applied to children who do not have disabilities and who engaged in comparable behavior103. However, if while the child is subject to disciplinary measures a party requests a case study evaluation, then that evaluation shall be conducted in an expedited manner104. If the child is determined to have one or more disabilities, then the LEA shall provide special education and related services, as appropriate105. However, pending the results of the evaluation, the child shall remain in the educational placement as determined by the LEA106.
In an action or proceeding under section 615 of P.L. 105-17, the court may award attorneys’ fees to the parents of a child with a disability who is the prevailing party107. Fees awarded under this section shall be based upon rates prevailing in the community in which the action or proceeding arose and the quality of services108. However, an award of attorneys’ fees and related costs may not be awarded if more than 10 days before the proceeding the school made an offer under Federal Rule of Civil Procedure 68 and the parents both did not accept the offer and did not obtain relief that was more favorable than the settlement109, unless the parents both prevailed and were substantially justified in rejecting the offer110. Whenever, inter alia, the court finds that the parent substantially protracted the final resolution of the proceeding111 or the attorney did not provide to the school district the requisite information in the request for a due process hearing112, the court shall, accordingly, reduce the amount of attorneys’ fees awarded. The provisions of the foregoing sentence do not apply if the court finds that the State or local educational agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of the governing section of P.L. 105-17.113.
Congress and the Department of Education have recognized that all students deserve safe, well-disciplined schools and orderly learning environments, that teachers and administrators should have the proper tools to utilize in preventing and responding to misconduct and discipline problems and that the policies underlying discipline must balance the need for orderly and safe schools and the need to provide a free and appropriate public education to students with disabilities. The provisions of P.L. 105-17, Sec. 61 and the applicable regulations address the identification of students with disabilities, the creation, implementation, review and modification of plans to address educational supports and discipline for students with disabilities to violate school codes of conduct. Any plan for a student who is eligible for special education will be a dynamic document and will be subject to modification if the student’s needs change.
Counsel who represent parents of students with disabilities will need to master the complex law on this area and be prepared to address their client’s supportive needs and utilize the applicable provisions of the statute or regulations to obtain the appropriate supports.
1. OSEP memorandum dated September 19, 1997, to Chief State School Officers re: Initial Disciplinary Guidance Related to Removal of Children with Disabilities form their Current Educational Placement for Tend School Days or Less at pp. 1-2. Special Report, ISBE, "Discipline of Students with Disabilities" at p. 3.
2. P.L. 105-17, Sec. 612(a).
3. P.L. 105-17, Sec. 612(a)(1)(A).
4. P.L. 105-17, Sec. 612(a)(1)(B)(I) and (ii).
5. P.L. 105-17, Sec. 601(d)(A)
6. P.L. 105-17, Sec. 601(d)(B)
7. P.L. 105-17, Sec. 601(d)(C)
8. P.L. 105-17, Sec. 602(8)
9. P.L. 105-17, Sec. 602(3)(A)(i) and (ii)
10. 34 CFR Part 300.7(a)(1)
11. 34 CFR Part 300.7(2)(i)
12. 34 CFR Part 300.7(2)(ii)
13. P.L. 105-17, Sec. 602(22)
14. 34 CFR Part 300.24(a)
15. 34 CFR Part 300.24(b)
16. P.L. 105-17, Sec. 602(25)
17. 34 CFR Part 300.26(b)(2)(i)(A)
18. 34 CFR Part 300.26(b)(2)(i)(B)
19. 34 CFR Part 300.26(b)(2)(i)(C)
20. P.L. 105-17, Sec. 602(3)(B)(i) and (ii)
21. 34 CFR Part 300.7(c)(4)
22. 34 CFR Part 300.7(c)(4)(A)
23. 34 CFR Part 300.7(c)(4)(B)
24. 34 CFR Part 300.7(c)(4)(C)
25. 34 CFR Part 300.7(c)(4)(D)
26. 34 CFR Part 300.7(c)(4)(E)
27. P.L. 105-17, Sec. 614(a)(1)(A)
28. P.L. 105-17, Sec. 614(a)(1)(B)(i)
29. P.L. 105-17, Sec. 614(a)(1)(B)(ii)
30. P.L. 105-17, Sec. 614(a)(1)(C)(i)
31. P.L. 105-17, Sec. 614(a)(1)(C)(i)
32. P.L. 105-17, Sec. 614(a)(1)(C)(ii)
33. P.L. 105-17, Sec. 614(a)(2)(A)
34. P.L. 105-17, Sec. 615(b)(3)(A)
35. P.L. 105-17, Sec. 615(b)(3)(B)
36. P.L. 105-17, Sec. 615(b)(3)(B)
37. P.L. 105-17, Sec. 614(c)(3)
38. P.L. 105-17, Sec. 614(c)(5)
39. P.L. 105-17, Sec. 614(b)(2)(A)
40. P.L. 105-17, Sec. 614(b)(2)(A)
41. P.L. 105-17, Sec. 614(b)(4)(A)
42. P.L. 105-17, Sec. 614(d)(2)(A)
43. 34 CFR Part 300.344(a)(1)
44. 34 CFR Part 300.345(a)
45. P.L. 105-17, Sec. 614(d)(1)(A)
46. P.L. 105-17, Sec. 614(d)(1)(A)(i)
47. P.L. 105-17, Sec. 614(d)(1)(A)(ii)
48. P.L. 105-17, Sec. 614(d)(1)(A)(iii)
49. P.L. 105-17, Sec. 614(d)(1)(A)(iv)
50. P.L. 105-17, Sec. 614(d)(1)(A)(viii)
51. 34 CFR Part 300.350(a)(1)
52. 34 CFR Part 300.350(a)(2)
53. P.L. 105-17, Sec. 615(k)
54. Special Report, at p. 6
55. Special Report, at p. 6
56. 34 CFR Part 300.146(a)
57. P.L. 105-17, Sec. 615(b)
58. P.L. 105-17, Sec. 615(k)(1)(ii)
59. P.L. 105-17, Sec. 615(k)(1)(ii)(I)
60. P.L. 105-17, Sec. 615(k)(1)(ii)(II)
61. P.L. 105-17, Sec. 615(k)(3)(A)
62. 34 CFR Part 300.503(a)(1)
63. 34 CFR Part 300.503(b)(1)
64. 34 CFR Part 300.503(b)(2)
65. 34 CFR Part 300.503(b)(3)
66. 34 CFR Part 300.519(a)
67. 34 CFR Part 300.519(b)
68. 34 CFR Part 300.520(a)(1)(i)
69. 34 CFR Part 300.520(a)(1)(ii)
70. Special Report.
71. P.L. 105-17, Sec. 615(k)(1)(B)(i) and 34 CFR Part 300.520(b)(1)(i)
72. P.L. 105-17, Sec. 615(k)(1)(B)(ii) and 34 CFR Part 300.520(b)(1)(ii)
73. 34 CFR Part 300.520(b)(2)
74. 34 CFR Part 300.520(c)(1)
75. P.L. 105-17, Sec. 615(k)(2)(A)-(D).
76. P.L. 105-17, Sec. 615(k)(3)(B)(i)
77. P.L. 105-17, Sec. 615(k)(3)(B)(ii)
78. P.L. 105-17, Sec. 615(k)(4)(A)(i)
79. P.L. 105-17, Sec. 615(k)(4)(A)(ii)
80. P.L. 105-17, Sec. 615(k)(4)(B)
81. P.L. 105-17, Sec. 615(k)(4)(C)(i)
82. P.L. 105-17, Sec. 615(k)(4)(C)(i)(I)
83. P.L. 105-17, Sec. 615(k)(4)(C)(i)(II)
84. P.L. 105-17, Sec. 615(k)(4)(C)(i)(III)
85. P.L. 105-17, Sec. 615(k)(4)(C)(ii)(I)
86. P.L. 105-17, Sec. 615(k)(4)(C)(ii)(II)
87. P.L. 105-17, Sec. 615(k)(4)(C)(ii)(III)
88. 34 CFR Part 300.523(d)
89. 34 CFR Part 300.523(f)
90. P.L. 105-17, Sec. 615(k)(5)
91. P.L. 105-17, Sec. 615(k)(7)(A)
92. P.L. 105-17, Sec. 615(k)(7)(B)
93. P.L. 105-17, Sec. 615(k)(7)(C)(i)
94. P.L. 105-17, Sec. 615(k)(7)(ii)
95. P.L. 105-17, Sec. 615(k)(6)(A)(i)
96. P.L. 105-17, Sec. 615(k)(6)(B)(i)
97. P.L. 105-17, Sec. 615(k)(6)(B)(ii)
98. P.L. 105-17, Sec. 615(k)(8)(A).
99. P.L. 105-17, Sec. 615(k)(8)(B)(i). However, Congress provided an exception to this manner of notice for parents who are illiterate or have a disability that prevents compliance with the requirements of this clause. Since this is a protection for parents and is only one of three different methods for providing notice to a LEA that a child has disabilities, it is not clear what Congress intended to accomplish by this exception, unless it was to except parents who met one of those qualifications from having to do anything to place a LEA on notice that his or her child was eligible for special education or related services.
100. P.L. 105-17, Sec. 615(k)(8)(B)(ii)
101. P.L. 105-17, Sec. 615(k)(8)(B)(iii)
102. P.L. 105-17, Sec. 615(k)(8)(B)(iv)
103. P.L. 105-17, Sec. 615(k)(8)(C)(i)
104. P.L. 105-17, Sec. 615(k)(8)(C)(ii)
105. P.L. 105-17, Sec. 615(k)(8)(C)(ii)
106. P.L. 105-17, Sec. 615(k)(8)(C)(ii)
107. P.L. 105-17, Sec. 615(i)(3)(B)
108. P.L. 105-17, Sec. 615(i)(3)(C)
109. P.L. 105-17, Sec. 615(i)(3)(D)(i)
110. P.L. 105-17, Sec. 615(i)(3)(E)
111. P.L. 105-17, Sec. 615(i)(3)(F)(i)
112. P.L. 105-17, Sec. 615(i)(3)(F)(iv)
113. P.L. 105-17, Sec. 61615(i)(3)(G)
Bruce de’Medici is the principal of the Law Office of Bruce de’Medici PC. His practice includes representing parents and students in special education and school discipline matters. He graduated from the University of Michigan with a Bachelor’s Degree, With Distinction, in Philosophy in 1977 and from Wayne State University with a J.D. in 1980.