1. Disciplining Students with Disabilities
Yell / The Law and Special Education, Second Edition
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2. IDEA and Discipline
All children deserve safe, well-disciplined schools & orderly learning environments
Educators need the tools to prevent misconduct & discipline problems
The law seeks a balanced approach between need for safe schools & provision of a FAPE
IEPS with behavior intervention strategies can decrease discipline problems
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3. Congressional Intent
To help schools respond appropriately when students with disabilities exhibit serious misconduct
To help IEP teams to appropriately address problem behaviors through the IEP process
Assessment
Goals
Special education services and general education modifications
Progress monitoring
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4. Three Major Points in IDEA
IDEA ‘97 emphasizes positive behavioral interventions & supports
School officials may discipline students with disabilities in the same manner as they disciplined nondisabled students, with a few exemptions
Discipline should be addressed through the IEP process
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5. Procedural Requirements:
Knowing what the law requires
and fulfilling those requirements
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6. Examples of Procedural Violations
Suspending a student without providing notice
Suspending a student with disabilities in excess of 10 consecutive school days
Suspending a student indefinitely or serially
Changing a student’s placement without using the procedural mechanisms of the IDEA
Failing to conduct a manifestation determination after suspending a student for 10 consecutive days or changing placement
Failing to conduct a FBA or develop a BIP
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7. Substantive Requirements:
Developing an educational
program that confers meaningful
educational benefit
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8. Examples of Substantive Violations
Failing to address behavior in the IEP
Conducting an FBA that does not address the function of behavior
Developing a behavior intervention plan that is entirely reactive (i.e., crises management plan)
Failing to provide FAPE during suspension, expulsion, or in an IAES
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9. Major Areas of Emphasis
IDEA emphasizes the use of positive behavioral interventions and supports for students with disabilities who exhibit problem behavior
School officials may discipline students with disabilities in the same manner as they discipline nondisabled students with a few exceptions (i.e., suspension & expulsion)
Discipline should be addressed through the IEP process
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10. Disciplining Students
In Loco Parentis
English common law
Discipline
Requirements
School-wide discipline policies
Due process requirements
Nondiscriminatory discipline
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11. School-wide Discipline
School-wide rules
Clear
Communicated
School-wide consequences
Reasonable
School related
Classroom rules
IDEA & school-wide discipline
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12. IDEA & School-wide Discipline
Students with disabilities are subject to school-wide discipline procedures
Exceptions
When procedures deprive students of their special education services
Trigger the procedural safeguards of the IDEA
Interferes with a student’s IEP, BIP, or Section 504 plan
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13. IEPs and School Discipline
If the IEP determines that:
The student will be subject to the school-wide discipline policy, and
The policy does not violate IDEA ‘97
The team may use the IEP to affirm that a student will be subject to school-wide discipline practices
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14. Due Process Requirements
Suspension is subjected to the standards of due process
Goss v Lopez, 1975
Due process protections
Oral or written notice of the charges
Explanation of the charges and supporting evidence
Opportunity to present his or her side of the story
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15. Nondiscriminatory Discipline
All students with disabilities are covered by Section 504
Section 504 prohibits discrimination
The unequal treatment of persons with disabilities based solely on the basis of their disability
Schools must not violate Section 504 when disciplining students with disabilities
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16. Violations of Section 504
Using discipline procedures with students with disabilities that are not used with nondisabled students
Using discipline procedures with students with disabilities that are more harsh than those used with nondisabled students
Suspending (long-term), expelling, or changing placement of a student with disabilities for misconduct that is related to the his or her disability
Using disciplinary procedures that are prohibited in a student’s IEP or 504 plan
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17. Ensuring Compliance
When appropriate, use the same discipline procedures for all students
Include discipline policy in IEP or 504 plan
Conduct manifestation determinations to assess relationship
All school officials & teachers must understand the contents of IEPs and 504 plans
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18. Problem Behavior & the IEP
If a student’s behavior negatively affects his or her learning or the learning of others, the IEP team shall consider strategies including positive behavioral interventions, strategies, and supports to address that behavior (IDEA 20 U.S.C. § 1414(d)(3)(B)(I)
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19. What Does This Mean? Impedes is defined by the IEP team
Congress created a preference for
Proactive programming
Positive interventions
Problem-solving
IEP teams must develop proactive programs that teach appropriate behavior, not simply reduce inappropriate behavior
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20. What Behaviors? Based on litigation we can infer:
Disruptive behavior that interferes with teaching & learning
Noncompliance
Abuse of property
Physical & verbal abuse
Aggression
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21. The Behavioral IEP A behavioral IEP is no different than any other IEP
It includes a behavioral component
There is no power in the IEP process to require that parents do anything
The IDEA is about what school districts, not parents, must do
The IEP should identify a discipline hierarchy & behavior management procedures that may be used
The behavioral IEP must be proactive and focused on skill building
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22. Addressing Problem Behavior
When a student engages in problem behavior, determine if the behavior impedes his/her learning or the learning of others
If yes, conduct an assessment of the behavior
Develop a plan based on the assessment, that reduces problem behavior & increases socially acceptable behaviors
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23. Addressing Problem Behavior
Assessment (FBA)
Present Levels of Academic Achievement & Functional Performance
Develop the IEP
Goals
Special education based on peer-reviewed research
Supplementary services & Program modifications
Progress-monitoring
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24. Functional Behavioral Assessment
A set of assessment procedures used to identify the purpose (or function) of problem behavior
Because problem behavior is typically purposeful, we cannot change it successfully in the long run without trying to discover what the purpose (or function) of the behavior is
The goal of FBA is to gather information about factors that reliably predict and maintain problem behavior
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25. FBAs & Suspension
if the local educational agency did not conduct a functional behavioral assessment and implement a behavior intervention plan ...before the behavior that resulted in the suspension...the agency shall convene (the IEP team) to develop an assessment plan to address that behavior; or if the child already has a behavioral intervention plan, the IEP team shall review the plan and modify it, as necessary (IDEA Amendments, 1415 § (k)(1)(B)(i-ii)).
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26. When is an FBA Required?
When it has been determined in a manifestation determination that a student’s behavior is related to his or her misconduct
When a student is removed for more than 10 days for misconduct that was determined not to be a manifestation of the student’s disability
When an FBA was not conducted before the misconduct that resulted in a change in placement
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27. Behavior Intervention Plan
Based on an FBA
Plan must include:
Behavioral Supports & Positive behavioral interventions
The BIP is not just a discipline plan, although a discipline plan may be included (i.e., crises management)
If not in IEP, the plan must be written within 10 days of disciplinary action (suspension)
The primary purpose of the BIP is to teach appropriate replacement behaviors
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28. A BIP Must Answer the Following:
What is the function of the behavior?
What is the inappropriate behavior to be reduced?
What will happen when the inappropriate behavior is exhibited?
What is the appropriate replacement behavior to be taught?
What will happen when the correct behavior is exhibited?
How will I know when the plan is working (Progress-monitoring)
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29. Disciplinary Procedures
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30. Discipline
Unless a disciplinary infraction is the direct result of a child’s disabilities (i.e., caused by or has a direct and substantial relationship to, or is a direct relationship of a school’s failure to implement an IEP), the child will be disciplined in the same manner as a nondisabled child.
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31. Short-term Disciplinary Removals
Unilateral suspensions or changes of placement for not more than 10 consecutive school days are allowed
More than 10 cumulative days in a school year may be a change of placement
Change of placement must be addressed by the IEP team (length of suspensions, proximity to each other)
After 10 cumulative days of suspension, educational services must be provided
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32. Educational Services Must be determined by the IEP team
If under 10 cumulative days, services can be determined by an administrator & teacher
Must allow the student to:
Receive special education & related services
Advance appropriately to IEP goals
Be involved in the general curriculum
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33. Multiple Short-term Suspensions
A series of short-term suspensions for different incidents may be permissible as long as they do not constitute a change in placement
IEP team must decide when suspensions are a placement change
Length of removals
Total amount of time that the student is removed
Proximity of removals to one another

34. Long-term Disciplinary Removals
Student suspensions in excess 10 consecutive days are considered changes of placement
Changes in placement, if not done according to IDEA’s requirements, are illegal
Educational services & manifestation determination are required
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35. Using Short-term Suspensions
Define behaviors that will lead to OSS
Include OSS in student’s IEP
Use OSS carefully & only in emergencies
Keep thorough records of the amount of days of suspension
The frequency & amount of short-term suspensions, if excessive, may be indicative of a defective IEP
Conduct a FBA and develop a BIP
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36. Long Term Removals
Unilateral removal to an interim alternative educational setting (IAES) for 45 school days if a student
Carries or possesses a weapon to school, on school premises, or at school function
Knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance
Has inflicted serious bodily injury on another person while at school, on school premises, or at school function
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37. Dangerousness Removal
A impartial hearing officer (IHO) may order a change of placement to an appropriate interim alternative education setting for 45 school days if the IHO determines that maintaining the student’s current placement is substantially likely to result in injury to the student or others.
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38. Manifestation Determination
A meeting to evaluate the relationship between a student’s disability and his or her misconduct
A manifestation determination is required when a discipline sanction could result in a change of placement
The review must be conducted by the district, the parents, and relevant members of the IEP team determines the relationship between disability and misconduct
No relationship-Long term suspension and expulsion are available
Relationship-Long term suspension and expulsion are not available
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39. Conducting the Determination
Gather relevant assessment data & review the incident
Review IEP and ask “Was the problem behavior direct result of the school’s failure to implement the IEP?”
Review the misconduct and misbehavior and ask “was the behavior that led to the disciplinary sanction “caused by or did it have a direct and substantial relationship” to the student’s disability?
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40. Interim Alternative Educational Setting (IAES)
IAES placement if required when suspension is in excess of 10 cumulative days or in the case of a 45 school day removal
The IAES is determined by the IEP team
Requirements:
The student must participate in the general education curriculum, although in another setting
The student must continue to receive services & work on IEP goals
Includes services & modifications designed to ameliorate problem behaviors
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41. LEA Actions During Removal
Rewrite the IEP (goals & objectives)
Write or revise the BIP
Change placement
Long term suspension or expulsion
(requires manifestation determination)
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42. Stay-Put Provision
During the pendency of due process proceedings, unless the parents and LEA agree otherwise, the student shall remain in the then current placement (20 USC 1415(j))
The stay-put provision is abrogated in situations where a student is moved to an IAES for weapons, drug offenses, or if the student seriously injures another student or by the order of a hearing officer
The parent is entitled to an expedited hearing
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43. Protections for Students Not Yet Eligible
An LEA is deemed to have knowledge that a student is a student with a disability if, before the behavior that precipitated the disciplinary action a:
Parent expressed concern in writing to an administrator or teacher
Parent had requested evaluation of the child
Teacher or other school or LEA personnel expressed concerns about a pattern of behavior to administrator
Revision to prior (k)(8) to clarify that an LEA will be deemed to have a basis of knowledge that the child might be eligible if (1) the parent has expressed concern in writing to supervisory or administrative personnel of the agency or to a teacher of the child that the child needs special education; (2) the parent has requested an evaluation to determine eligibility; or (3) the teacher or other personnel had expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of the agency or other supervisory personnel.
Text: 615(k) PLACEMENT IN ALTERNATIVE EDUCATIONAL SETTING-(5) PROTECTIONS FOR CHILDREN NOT YET ELIGIBLE FOR SPECIAL EDUCATION AND RELATED SERVICES-(B) (B) BASIS OF KNOWLEDGE- A local educational agency shall be deemed to have knowledge that a child is a child with a disability if, before the behavior that precipitated the disciplinary action occurred--(i) the parent of the child has expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services; (ii) the parent of the child has requested an evaluation of the child pursuant to section 614(a)(1)(B); or (iii) the teacher of the child, or other personnel of the local educational agency, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of such agency or to other supervisory personnel of the agency.
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44. Removal of Points & Privileges
Permitted Procedures
*Disciplinary procedures used routinely with all students and in the district’s discipline plan
Removal of Points & Privileges
Timeout
Detention
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45. Emergency Procedures
*Procedures undertaken to protect students or staff
Immediate Suspension (<10 days)
Removing the student to an interim alternative setting (<10 days)
Physical Restraint
Calling the Police
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46. Involving Law Enforcement
School official’s can report students to law enforcement
Procedural protections that apply to crimes are governed by criminal law not the IDEA
Law enforcement officials can obtain a student’s records
Must conform to FERPA (Family Educational Rights and Privacy Act) requirements
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47. Controlled Procedures
*Legally sound if not abused or applied in a discriminatory manner
Seclusion/Isolation Timeout
In-School Suspension
Out-of-School Suspension (<10 days)
Interim Setting (<10 days)
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48. Time Out State behaviors that will lead to time out Define time out
Type
Length
Room (lighting, ventilation, monitoring)
Include time out in the IEP
Staff training
Document the use of time out
Collect data to determine effectiveness
Do not abuse or use excessively
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49. In-School Suspension State behaviors that will lead to ISS Define ISS
Where
Who will supervise
Include ISS in the IEP
Staff training
Document the use of ISS
Collect data to determine effectiveness
Do not abuse or use excessively
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50. Out-of-School Suspensions
State behaviors that will lead to OSS
Define OSS
Include OSS in the IEP
Staff training
Document the use of OSS
Collect data to determine effectiveness
Do not abuse or use excessively
Keep track of OSS
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51. Prohibited Procedures
*Procedures that unilaterally change placement, deny the child a FAPE, or discriminate based on a disability
Unilateral Change of Placement
Serial or Long-Term Suspensions
Expulsions
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