In what circumstances do the discipline procedures apply?

In reauthorizing IDEA, the bipartisan conference committee sought to ensure that schools would be safe for students and teachers, and that discipline problems would be addressed with common sense. The new IDEA helps school personnel ensure school safety and hold students responsible for their actions, while protecting the rights of children with disabilities. The discipline procedures only apply where the discipline infraction results in a change in placement for longer than 10 school days, and was a direct result of the child’s disability. Unless a disciplinary infraction is the direct result of a child’s disability, the child will be disciplined in the same manner and for the same duration as a non-disabled student. 

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Does a school have to discipline a child with a disability in every instance? 

No. When a student has violated a code of conduct, school personnel may consider any unique circumstances on a case-by-case basis to determine whether a change of placement for discipline purposes is appropriate. 

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Do IDEA discipline procedures apply if the child with a disability will be disciplined for less than 10 school days? 

No. Where the discipline infraction would result in a change in placement for less than 10 school days, the discipline procedures do not apply. 

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If the discipline infraction of the child relates to drugs, weapons or serious bodily injury, will that child’s discipline be handled differently? 

Yes. If the disciplinary infraction involves the serious safety issues of drugs, weapons, or serious bodily injury, the child will automatically be removed from the classroom for up to 45 school days. The child will be placed in an interim alternative educational setting, but will continue to receive educational services to make progress on his or her IEP. Also during this time, a determination will be made as to whether the disciplinary infraction was the direct result of a child’s disability. 

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What process will determine whether the disciplinary infraction was the direct result of a child’s disability? 

In order to determine whether the disciplinary infraction was the direct result of a child’s disability, the LEA, the parent and the relevant members of the IEP Team must determine whether the conduct in question was a “manifestation of the child’s disability.” This process is called a manifestation determination. The manifestation determination will analyze the child’s behavior as demonstrated across settings and across time when determining whether the discipline infraction is a direct result of the child’s disability. Previously, the LEA had to prove that the child’s action resulting in the discipline infraction was not caused by the child’s disability. The new IDEA places the obligation on the parent to show that the child’s action resulting in the discipline infraction was the direct result of the child’s disability. 

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What does the term manifestation of a child’s disability mean? 

This term has been significantly changed in this reauthorization. Previously any tangential or attenuated relationship between the discipline infraction and the child’s disability was sufficient to determine that the infraction was a “manifestation” of the child’s disability. In the new IDEA, the bipartisan consensus acknowledged that “[i]t is the intention of the Conferees that the conduct in question was caused by, or has a direct and substantial relationship to, the child's disability, and is not an attenuated association, such as low self-esteem, to the child's disability.” Accordingly, it is now clear in the new IDEA that the disciplinary infraction must be caused by or be the direct result of a child’s disability, and not a mere correlation or attenuation. 

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Who are the relevant members of the IEP Team when conducting a manifestation determination? 

Depending on the type of discipline infraction, when the infraction occurred and who was present, some members of the IEP Team may not be relevant to the discussion of the discipline event. For example, although transportation is an important issue, if the discipline infraction occurred during the school day, the transportation member would not be relevant to the discussion of the discipline event. Conversely, if the discipline infraction occurred on the school bus, the transportation member may be the relevant member of the IEP Team. Nonetheless, in each instance the relevant members should be determined in collaboration by the parents and LEA. 

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What services and placement would then be available to the child if the actions are determined to be a manifestation of the child’s disability? 

In situations where the local educational agency, the parent and the relevant members of the IEP Team determine that the discipline infraction was the direct result of the child's disability, a child with a disability would not be subject to discipline in the same manner as a non-disabled child. However, such determination is not to say that the child should not be subject to any discipline. 

In these situations, the IEP Team shall determine whether a functional behavioral assessment has been conducted and a behavioral intervention plan has been implemented for such child.  If the IEP Team finds either that such assessment has not been conducted or a behavioral intervention plan has not been implemented for such child, then both should be completed.  Where a behavioral intervention plan has been developed, the IEP Team must review the behavioral intervention plan and modify it, as necessary, to address the behavior.  Additionally, unless the parent and the LEA agree to a change of placement, the child must be returned to the placement from which the child was removed.

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What services and placement are available to the child if the actions are determined not to be a manifestation of the child’s disability? 

Unless a disciplinary infraction is the direct result of a child’s disability, the child will be disciplined in the same manner and for the same duration as a non-disabled student. The child may be placed in an interim alternative educational setting. However, if the suspension is for longer than 10 school days, the child will continue to receive educational services to make progress on his or her IEP. 

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Can a parent appeal the decision regarding manifestation? 

Yes, if the parent of a child with a disability disagrees with the manifestation determination or placement, the parent may request a hearing. At such hearing (as for the manifestation determination), the obligation is on the parent to show that the child’s action resulting in the discipline infraction was the direct result of the child’s disability. 

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Where will the child receive services while the appeal is pending? 

Previously during appeals, a child with a disability remained in the original placement. This was called the “stay put” requirement. The new IDEA eliminates the “stay put” requirement. Now during the time that an appeal is pending, the child will remain in the interim alternative educational setting until the appeal is resolved or until the expiration of the suspension, whichever occurs first. However, the placement can be changed during this time if the parent and LEA agree. 

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Do any of these procedures apply to children who have not been identified as having a disability? 

A child who has not been determined to be eligible for special education services and who has a discipline infraction that violates a code of student conduct, may assert the discipline protections if the LEA had “knowledge” that the child was a child with a disability before the discipline infraction occurred. However, if the LEA does not have knowledge that a child is a child with a disability, the child may be disciplined in the same manner and to the same extent as non-disabled students. 

An LEA is deemed to have “knowledge” if, before the discipline infraction occurred, one of the following happened. 

The parent of the child expressed concern in writing to supervisory or administrative personnel of the LEA, or a teacher of the child, that the child is in need of special education services; 

The parent of the child has requested an evaluation of the child pursuant to IDEA; or 

The teacher of the child, or other LEA personnel, has expressed specific concerns directly to the director of special education or to other supervisory personnel. 

If the parent of the child has not allowed an evaluation of the child or has refused services, or the child has been evaluated and it was determined that the child was not a child with a disability then an LEA will not be deemed to have "knowledge" that the child is a child with a disability.

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