How Are Students with Disabilities Protected from Discriminatory Discipline?

Recently, new guidance on behavior-related school discipline was issued by the Department of Education’s Office for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services. In the statement, U.S. Secretary of Education Miguel Cardona said, “Too often, students with disabilities face harsh and exclusionary disciplinary action at school. The guidance we’re releasing today will help ensure that students with disabilities are treated fairly and have access to supports and services to meet their needs — including their disability-based behavior.” Part of the guidance includes recommendations for individualized supports and counseling.

We asked special education advocate and owner of KnowIEPs Dr. Sarah Pelangka (Ph D, BCBA-D) what we need to know going into the new school year.

First of all, Dr. Pelangka explains that there haven’t actually been any updates to the law. The new guidance and resources are meant to help school staff respond appropriately to student behaviors and avoid discriminating against students with disabilities when it comes to handling their behaviors.

A Behavior Intervention Plan (BIP) can (and should) be written into both 504s and IEPs to include specific behaviors for which the student will not be disciplined. If the school has done everything in the student’s BIP and provided accommodations, but a behavior problem persists that doesn’t align with the school’s code of conduct, the school may discuss a change in placement during a Manifestation Determination (MD) meeting.

The central question of an MD meeting is: Is the student’s behavior a direct manifestation of their disability?

• If yes, the school cannot discipline the student the same way they would discipline a general education student. This triggers a Functional Behavior Assessment (FBA), during which a properly trained professional formally collects data to support the IEP team. Pending the results of the FBA, a Behavior Intervention Plan may be added to the student’s IEP. If an FBA has already been completed and is still valid, and a BIP is already in place, the team should revisit the BIP and revise as needed.

• If the behavior is not deemed a manifestation of the student’s disability, the school can proceed to discipline the student like they would any other student. However, the school can still consider an FBA if it would benefit the student.

A Manifestation Determination meeting must be held within 10 days of the school considering a change of placement and/or once a student has missed a total of 10 days of school as a result of disciplinary removal, such as a suspension or repeatedly removing the student from their LRE placement (e.g., sending the student home early or to the principal’s office).

If the student’s behavior is determined to not be a manifestation of their disability and they are removed from class or suspended for more than 10 days, the IEP team may decide to place the student in an interim alternative education setting (IAES). An IAES is a temporary change in placement that lasts no longer than 45 days. A student may also be placed in an IAES anytime they engage in a behavior that is considered a “special circumstance”: bringing a weapon to school, possessing or selling illegal drugs at school, or inflicting serious bodily injury to others.

Once a student is placed in an IAES, an FBA should be completed to help develop an intervention plan for the behavior that landed the student in the interim setting. While a student is in attendance at an IAES, the student should still have access to all IEP services and supports.

For short-term suspensions (all suspensions occurring up to the 10th day), the school is only required to provide the same services it would to a gen ed student, meaning it is not mandated to offer any IEP services while the student is serving their suspension. However, if it is in the student’s best interest (i.e. to help prevent regression of skills), the IEP team can decide otherwise. Once the student hits their 11th day of suspension, all IEP services must be provided.

Parents should also know that schools are required to collect data on long-term suspensions and expulsion, including data about the students’ race and any disabilities, in order to support the identification of any discriminatory disciplinary practices. Data shows that students with disabilities are suspended at twice the rate of those without disabilities.

The Individuals With Disabilities Education Act (IDEA) requires school teams to use positive behavior interventions when supporting students who receive special education services with their behavior and social and emotional development. Dr. Pelangka recommends that parents hold the school accountable by discussing behavioral interventions during their IEP meetings.

Remember that parents can help school staff members understand their child’s behavior by including insights about behavior outside of the school setting, as Dr. Pelangka explains in this clip:

Change of placement

If a student’s behavior interferes with their learning, this can be addressed in their IEP goals, supplementary aids and services, and/or accommodations. If these parts of the IEP are not meeting the student’s needs, the IEP team should meet to discuss 1) performing an additional evaluation or gathering data if needed, and 2) possibly implementing a behavioral intervention plan. Dr. Pelangka says that for students who require immediate support (e.g., they pose a danger to self or others), IEP teams can use the existing data to create a BIP in the short term while simultaneously conducting an FBA, so as to not delay any necessary intervention.

Dr. Pelangka emphasizes that there are many actions for the school to pursue before changing a student’s placement in response to behavior (called a “disciplinary change of placement”). In this clip, she explains the rights that students with disabilities have under IDEA when it comes to discipline for behavior:

If the school recommends a change of placement as a result of behavior, they must send prior written notice and hold a meeting with the parents, and parents must consent to the proposed change prior to any change taking place.

Denial of FAPE

If the IEP team fails to meet a student’s behavioral needs, this may be considered a denial of the child’s right to a free, appropriate public education (FAPE). The following are also considered violations:

• Preemptively recommending a change in placement without first exhausting lower-level support options
• Failing to provide adequate supports, such as services and accommodations
• Repeatedly removing a student from their classroom or LRE
• Sending the student home earlier than other students (unless it has been written into their IEP)

All these protections apply to students in public schools, charter schools, virtual schools, correctional facilities, and even private schools that have been agreed upon as the offer of FAPE. (IDEA does not apply to students attending private schools per parent request.) Preschool-aged students also have all of these rights under IDEA, and Head Start prohibits removal of a child on the basis of behavior.

If a student is in the process of being evaluated for special education services, or the parent has requested an evaluation (based on medical diagnosis or parent/teacher concerns) that has yet to be completed, then the student still has the right to all disciplinary protections under IDEA. (This does not apply when a parent does not consent to their child being evaluated for special education services or when a parent exits their child from such services).

It’s important to note that certain exceptions will subject a student with disabilities to the same discipline as any other student: if their behavior involves bringing a weapon to school or a school event, bringing or attempting to sell controlled substances, or inflicting serious bodily injury. If a student engages in any one of these behaviors, an MD meeting still has to take place. However, the student is able to remain in the IAES and receive their IEP services simultaneously.

What does all of the above information mean for you and your child? Here are some actions you can take right now if you haven’t already:

• Review your child’s IEP (or 504) to make sure it includes a behavior intervention plan as well as supports and services to minimize disruptive behavior in their current placement. If these aren’t in place or they aren’t sufficient, request an IEP meeting.
• Save data in your binder about your child’s behavior at home and in the community. This could include reports from in-home behavioral specialists or your own notes about what triggers certain behaviors. This data will be useful when working with your IEP team and if you’re asked to attend an FBA.
• Learn about positive behavior interventions and supports (PBIS) in place at your child’s school by talking to teachers and other school leadership. Our article about PBIS has sample questions you can ask.

Just by reading this article, you’ve taken a step toward helping your child have a positive school year. Being aware of your child’s rights (and your rights as a parent) can help you make sure your child receives the full protections of the law.

To watch the full video of Dr. Pelangka breaking down the above guidance, see this resource.