1 Disciplining Students with Disabilities Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

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Disciplining Students with Disabilities

Yell / The Law and Special Education, Second EditionCopyright © 2006 by Pearson Education, Inc. All rights reserved

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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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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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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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Procedural Requirements:Knowing what the law requires and fulfilling those requirements


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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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Substantive Requirements:Developing an educational

program that confers meaningfuleducational benefit


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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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Major Areas of Emphasis

1) IDEA emphasizes the use of positive behavioral interventions and supports for students with disabilities who exhibit problem behavior

2) School officials may discipline students with disabilities in the same manner as they discipline nondisabled students with a few exceptions (i.e., suspension & expulsion)

3) Discipline should be addressed through the IEP process


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Disciplining Students

• In Loco Parentis–English common law

–Discipline

• Requirements–School-wide discipline policies

–Due process requirements

–Nondiscriminatory discipline Yell / The Law and Special Education, Second EditionCopyright © 2006 by Pearson Education, Inc. All rights reserved

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School-wide Discipline

• School-wide rulesClear

Communicated

• School-wide consequencesReasonable

School relatedClassroom rules

• IDEA & school-wide disciplineYell / The Law and Special Education, Second EditionCopyright © 2006 by Pearson Education, Inc. All rights reserved

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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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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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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

storyYell / The Law and Special Education, Second EditionCopyright © 2006 by Pearson Education, Inc. All rights reserved

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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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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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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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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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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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What Behaviors?

• Based on litigation we can infer:Disruptive behavior that interferes with

teaching & learningNoncomplianceAbuse of propertyPhysical & verbal abuseAggression


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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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Addressing Problem Behavior

1) When a student engages in problem behavior, determine if the behavior impedes his/her learning or the learning of others

2) If yes, conduct an assessment of the behavior

3) Develop a plan based on the assessment, that reduces problem behavior & increases socially acceptable behaviors


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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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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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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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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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Behavior Intervention PlanBased on an FBAPlan must include:Behavioral Supports & Positive behavioral

interventionsThe 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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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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Disciplinary Procedures


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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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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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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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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

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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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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 BIPYell / The Law and Special Education, Second EditionCopyright © 2006 by Pearson Education, Inc. All rights reserved

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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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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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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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Conducting the DeterminationGather relevant assessment data & review the

incidentReview 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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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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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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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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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


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Permitted Procedures

*Disciplinary procedures used routinely with all students and in

the district’s discipline planRemoval of Points & Privileges

TimeoutDetention


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Emergency Procedures

*Procedures undertaken to protect students or staff

Immediate Suspension (<10 days)Removing the student to an interim

alternative setting (<10 days)Physical RestraintCalling the Police


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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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Controlled Procedures

*Legally sound if not abused or applied in a discriminatory mannerSeclusion/Isolation Timeout

In-School SuspensionOut-of-School Suspension (<10 days)

Interim Setting (<10 days)


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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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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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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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Prohibited Procedures

*Procedures that unilaterally change placement, deny the child a FAPE, or

discriminate based on a disabilityUnilateral Change of Placement

Serial or Long-Term SuspensionsExpulsions


Documents

1 Disciplining Students with Disabilities Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved