Disciplinary Protections for Children with Disabilities

By Attorney Judith C. Saltzman 

Students with disabilities are entitled to special protections against discipline not afforded to the general student population. Current regulations on discipline (34 CFR 300.530) under the Individuals with Disabilities Education Act (“IDEA”) stem from the U.S. Supreme Court’s decision in Honig v. Doe (1988) that prohibited certain disciplinary actions that result in a change of placement for a student with a disability.

Basic Principles: The change of placement rule determines whether the special disciplinary protections apply.

  • A removal from school (i.e. suspension or expulsion) for less than 10 consecutive days is not a change in placement unless the removal is part of a series of removals that constitute a pattern and that total ten or more days. This means that for less than ten days, the school district can impose the same discipline upon special education students as is used with regular education students.
  • Removing a special education student from school (i.e. suspension or expulsion) for ten or more days (consecutive or pattern days) constitutes a change of placement, which cannot be imposed if the conduct was a “manifestation” of the child’s disability.
  • Within ten days of the decision to change, through discipline, the placement of a child with a disability, the school district must convene a “manifestation hearing” and determine whether the conduct leading to the discipline was:
    • Caused by, or had a direct and substantial relationship to the child’s disability; or

    • The direct result of the school district’s failure to implement the IEP.

  • If either of these factors is found to exist, the behavior is a manifestation of disability. The school may not continue to discipline the child, and absent agreement or other special circumstances set forth below, the child will be returned to his former educational setting. The school must either revise (i.e. improve) the child’s behavior intervention plan or, if there is not a behavioral intervention plan, conduct an analysis of the child’s behavior so that an effective behavior intervention plan can be developed.
  • If neither factor exists, the behavior is not a manifestation of disability, and the school may proceed to impose the same discipline on the child as would be imposed on nondisabled children. Even though discipline has been imposed, the special education student still has the right to receive educational services in an alternative setting that enables him to make progress on his IEP and enables him to continue to participate in the general education curriculum.

Emergency Removals for Weapons, Drugs or Serious Bodily Injury: Even if behavior is a manifestation of disability, the school has a right to remove a special education student who has brought weapons or drugs to school, or who has inflicted “serious bodily injury” on another person at school. “Serious bodily injury” involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily part or mental faculty. An ordinary school fight between students will not typically cause “serious bodily injury.”

Role of Professionals in Manifestation Meetings: It is critical for parents to bring their child’s doctor or therapist to the manifestation meeting, or at least a letter from one or both of these professionals. The letter should address the manifestation standards exactly as they are set forth in section II(c) above, and explain why they are met. It is not adequate to assert that the child’s IEP was insufficient because this is not a reason for finding manifestation of disability.

Children Not Yet Determined Eligible for Special Education: A child who has not yet been determined eligible for special education may claim disciplinary protections if the parent expressed written concern to supervisory or administrative personnel that the child needed special education, or the parent requested an evaluation, or the child’s teacher expressed concerns about the child’s behaviors directly to supervisory personnel.

Interactions with Suspension and Expulsion Actions: Typically the school will initiate suspension and even expulsion proceedings before the manifestation meeting. Logically, the manifestation hearing should happen first; however parents must exercise caution to meet all appeal deadlines on the suspension and/or expulsion actions, and request continuances of these proceedings only after the right of appeal has been established by a timely filing. If manifestation is found, the suspension or expulsion appeals will become moot.

Attorneys: It is wise to consult an attorney regarding suspensions and expulsions, as the consequences for your child will be severe if manifestation is not found.

 

Posted in Articles, Articles: Children with Special Needs.