The process for disciplining students with disabilities must take into account how their behavior relates to their disability.

Schools must have rules and procedures in place for disciplining all students, but as regards students with special needs, there are special considerations. For one thing, U.S. Department of Education (2018) data indicate that students with disabilities are twice as likely to be disciplined as their nondisabled peers. Schools committed to equity must be aware of this disproportionate impact as they develop and revise disciplinary policies.

But in addition to taking care that their policies are implemented fairly and equitably, schools must also take note of the additional procedures and protections that apply to students who are eligible for service under the Individuals with Disabilities Education Act (IDEA) or for accommodations under Section 504 of the Rehabilitation Act. States differ to some extent in their implementation of these statutes — and states and local districts may, of course, provide more expansive protections than those required under federal statutes — but certain general parameters are the same across the country.

Protections under Section 504 and IDEA

Section 504 protects individuals from discrimination, exclusion, or denial of benefits from federally funded activities on the basis of a disability, which is broadly defined as an impairment that substantially limits one or more major life activities. Individuals who have an impairment, a record of impairment, or are perceived as having an impairment may receive accommodations to ensure equitable access to public services (29 U.S.C. 794). Many students (particularly those with medical issues) are eligible for accommodations under Section 504 but not eligible for services under IDEA.

IDEA is more expansive in terms of required services, yet more narrow in how it defines disability and determines student eligibility. It ensures a free and appropriate public education to students whose disabilities affect their education and who need services to make meaningful educational progress. For those students who qualify under both statutes, special education services under IDEA satisfy the Section 504 requirements.

When it comes to discipline, the rights and protections are parallel under IDEA and Section 504, but Section 504 applies these protections to a broader group of students. So, for example, a student could have a health problem that doesn’t make them eligible for special education under IDEA but does entitle them to accommodations under Section 504. These protections make sense when you think about the antidiscrimination focus of Section 504.

Is student behavior a manifestation of a disability?

Although Section 504 does not have specific statutory requirements for student discipline, courts across the nation have interpreted this statute as prohibiting the disciplining of students for behavior that is clearly linked to the student’s disability, since that would, in effect, amount to punishing them for having the disability.

Unlike Section 504, IDEA does include disciplinary protection for those students who are eligible for services under that statute. The specific terminology protects students from being disciplined for behavior that is a “manifestation” of the student’s disability. Before meting out discipline and within 10 days of any disciplinary hearing, the student’s individualized education program (IEP) team must undertake a “manifestation determination” hearing in which the team focuses on two questions:

Was the conduct in question caused by or did it have a direct and substantial relationship to the student’s disability?
Was the conduct in question the direct result of the district’s failure to implement the student’s IEP?

If the answer to either question is yes, the behavior is deemed a manifestation of the student’s disability, and regular disciplinary sanctions may not be implemented (20 U.S.C. 1415 (k)(1)(E)). However, although regular disciplinary sanctions may not be applied, the school must still address the behavior. For students protected by IDEA, the school district must complete a functional behavior assessment (an inquiry into the circumstances tending to trigger the student’s unacceptable behavior) and develop a positive behavior support plan (a behavioral intervention plan). Section 504 does not have those specific requirements, but it is best practice for schools to treat students who are only eligible for Section 504 protections similarly.

Courts across the nation have interpreted this statute as prohibiting the disciplining of students for behavior that is clearly linked to the student’s disability, since that would, in effect, amount to punishing them for having the disability.

These disciplinary protections are also available to students not yet receiving IDEA services or Section 504 accommodations when the school has knowledge that the student has a disability. As stated in IDEA, a school district has knowledge “if the parent . . . has expressed concern in writing that the child is in need of special education and related services, the parent . . . has requested a special education evaluation for the child, or a teacher or other school personnel has expressed specific concerns about a child’s pattern of behavior” (20 U.S.C. 1415(5)).

For example, this provision came into play in G.R. v. Colonial School District (E.D. Pa 2019), in which the district was considering expulsion for a regular education student who had brought a knife to school. The parents had neither requested services nor an evaluation for special education. They had, however, expressed concern about G.R.’s academic progress three years before the incident. In this case, the district court found that this was not sufficient to require a manifestation hearing before an expulsion hearing.

Long-term suspensions and IDEA

The landmark case in this area is Honig v. Doe, a 1998 U.S. Supreme Court case. The school district argued that it had a right to unilaterally remove a child from the school as a part of the disciplinary process, but the Court disagreed: “We think it clear . . . 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.” Recognizing that schools may need to remove students who present a danger to themselves or others, the Court held that schools could remove students, but only up to 10 days. When a long-term suspension is under consideration, IDEA students generally remain in their placement until a decision on a new placement is agreed upon; this is referred to as a “stay put” requirement.

Since this ruling, IDEA has been reauthorized twice, and the changes to the statute in this area reflect increasing concerns over school violence and a culture of zero tolerance. Under the current authorization, there are avenues for schools to temporarily remove a student who may be considered dangerous. However, removals of more than 10 days can occur if and only if the behavior that gave rise to the removal involved weapons, illegal drugs, or serious bodily injury; the student poses a serious danger to others; or the behavior is not a manifestation of the student’s disability (U.S. C. 1415 (k)(1)(G)). Under these circumstances, the student may be unilaterally placed in an interim alternative educational setting for up to 45 days before returning to the prior educational placement or to a new placement agreed to by both parents and the school district.

If the behavior is not a manifestation of the disability, the school may proceed with regular disciplinary procedures. However, for students protected by IDEA, the school may not implement a long-term suspension (more than 10 days) through the regular education process. If a student protected by IDEA receives a long-term suspension, that student must continue to receive appropriate educational services, although in an alternative setting. Because IDEA students have the right to an ongoing free and appropriate education, this placement can only be changed through the IDEA placement procedures. Therefore, the “regular education” discipline route is not applicable. (Students who are only protected by Section 504 do not have this protection.)

The regular discipline process was deemed inappropriate in Doe v. Todd County School District (8th Cir. 2010), in which the court ruled against a parent who said failure to provide a disciplinary hearing through the school board was a violation of the student’s procedural due process. The student had been moved to a new, more restrictive placement after a discipline issue was addressed in his behavior plan and a modified IEP, which the parent had previously agreed to. The parent pursued a school board disciplinary hearing and alleged a due process violation in not receiving that hearing. The court found that, because the student was protected by IDEA, the school board lacked the authority to change the placement through a disciplinary hearing; thus, the student was not entitled to one and was not harmed by not having such a hearing.

Complex processes, common-sense principle

The disciplinary protections for students may seem overly complex and burdensome on school districts. However, if you think of them from an equity or antidiscrimination lens, they make common sense. If the underlying cause for a behavior is the student’s disability, it is absurd to punish the student for it.

Instead, it is important that schools provide supports to assist students in modifying the behavior or provide accommodations for the behavior. The goal should be to allow the student to remain in the school, rather than removing them because of their disability. Standard disciplinary sanctions not only are likely to be counterproductive but also a violation of IDEA because they are not part of the IEP, and a violation of Section 504 because they are discriminatory.

References

U.S. Department of Education. (2018). 2015-16 Civil Rights Data Collection: School climate and safety. Washington, DC: Author.