Key Changes in Discipline
As we reported last month (March 1999, CELR, p. 54), the U.S. Department of Education issued its final regulations for the Individuals With Disabilities Education Act (IDEA) Amendments of 1997.
There are some key changes in the regulations regarding discipline of students with disabilities. The new rules will allow public schools to discipline special education students as they would their nondisabled classmates. The final regulations reflect concerns expressed by school administrators and teachers regarding school safety without unduly burdensome requirements.
Change in Placement Allowed
The "stay-put" provision of the IDEA was changed by the 1997 amendments. School personnel may now order a change in the placement of a special education child to an interim placement or suspension, for not more than 10 school days, to the extent such measures would be applied to a regular education child. (20 U.S.C. § 1415 (k)(1)(A(i).) A special education child may be placed in an interim alternative educational setting for up to 45 days if the student brings a weapon to school or knowingly possesses or sells illegal drugs at school. (20 U.S.C. § 1415 (k)(1)(A)(ii).)
Suspension for Short Periods of Time
The statute and the regulations do not impose an absolute number of days that a child with an IEP can be suspended and removed from his or her current placement in a school year. School personnel have the ability to unilaterally remove a child for short periods of time as long as the removal does not constitute a change of placement. A child can be removed for up to 10 consecutive school days. This is not a change in placement and does not require parental consent or an IEP meeting. (34 CFR §300.520 (a)(1).)
The regulations include a new provision that reflects the Department of Education's definition of what is a change in placement. A disciplinary change of placement occurs when the child is removed for more than 10 consecutive school days or when the child is subjected to a series of removals that constitute a pattern because they are for more than 10 school days in a school year, and because of factors such as the length of the removal, the total amount of time the child is removed, and how close in time the suspensions are to one another. (34 CFR §300.519.)
Multiple Removals Permitted
Multiple short-term removals for 10 consecutive days or less for separate incidents of misconduct are permitted, to the extent removals would be applied to children without disabilities. The only consideration as to whether this would be a change in placement is whether the short-term removals showed a pattern as discussed above. The determination as to whether this is a change in placement must be made on a case-by-case basis. However, multiple short-term removals for 10 consecutive days or less for separate incidents of misconduct are permitted. (34 CFR §300.520(a)(1).)
Commonly Asked Questions
Below are some commonly asked questions and answers about discipline of special education students under the IDEA:
Q: Are there specific actions that a school district is required to take during a suspension of ten school days or less?
A: There are no specific actions under Federal law that school districts are required to take during this time period. If the removal is pursuant to school personnel's authority to remove for not more than 10 consecutive days or for behavior that is not a manifestation of the child's disability the regulations take a flexible approach to the provision of educational services while the child is suspended. The right to educational services (FAPE) begins on the eleventh school day in a school year that the child is removed. (34 CFR § 300.121(d).)
Q: Can a child with a disability who is experiencing significant disciplinary problems be removed to another placement?
A: Yes. School officials can unilaterally remove any child with a disability from his or her regular school placement for up to 10 school days at a time, even over the parents' objections, whenever discipline is appropriate and is administered consistent with the treatment of nondisabled children. (34 CFR § 300.520 (a)(1).) After a child is removed from his or her current placement for more than 10 cumulative school days in a school year, educational services must be provided for children suspended or expelled from school. Those services might range from sending classwork home to furnishing tutors, psychological counseling and health care assistance. (34 CFR § 300.121(d).)
If the child's parents do not agree to a change of placement, school authorities can unilaterally remove a child with a disability from the child's regular placement for up to 45 days at a time, if the child has brought a weapon to school or knowingly possessed or sold illegal drugs. (34 CFR § 300.520 (a)(2).)
In addition, if school officials believe that a child with a disability is substantially likely to injure self or others in the child's regular placement, they can ask a special education hearing officer to order that the child be removed to an interim alternative placement for up to 45 days. (34 CFR § 300.521.) If at the end of an interim alternative placement of up to 45 days, school officials believe that it would be dangerous to return the child to the regular placement because of danger of injury to self or others, they can ask the hearing office to order that the child remain in interim alternative setting for an additional 45 days. (34 CFR § 300.526 (c).)
Finally, school officials can report crimes committed by children with disabilities to appropriate law enforcement authorities to the same extent as they do for crimes committed by nondisabled students. (34 CFR § 300.529.)
B What must a school district do when removing a special education child for the eleventh cumulative day in a school year?
A: Beginning on the eleventh cumulative day in a school year while the removal continues, the school district must provide educational services to the child in his or her alternative placement. Not later than 10 business days after removing the special education child, the school district must convene an IEP team meeting to develop a behavioral assessment plan or if a child already has one review the plan.
Q: Must there be a manifestation determination before a student with disabilities can be removed from his or her current educational placement for a period of 10 school days or less during a given school year?
A: No. A manifestation determination to consider whether the behavior was a manifestation of the child's disability is not required unless the removal includes the eleventh cumulative school day and is a change of placement. (34 CFR § 300.523(a).) If the removal is for 10 school days or less, and no further disciplinary action is contemplated, the manifestation review need not be conducted.
Q: Is it true that a child with a disability can never be suspended for more than 10 school days at a time or expelled for behavior that is not a manifestation of his or her disability?
A: No. If the IEP team concludes that the child's behavior was not a manifestation of the child's disability, the child can be disciplined in the same manner as nondisabled children, except that appropriate educational services must be provided. (34 CFR § 300.524(a).)
Q: Does the statutory language about weapons include ones that the child acquires at school?
A: The Department of Education states that this language also covers instances in which the child is found to have a weapon that was obtained while at school as well as when the child "carries a weapon to school or to a school function."
Comment: Under California law, a special education pupil may be expelled if the child posses a "firearm, knife, explosive, or other dangerous object on school grounds, or if the pupil committed or attempted to commit a sexual assault or committed sexual battery" at school. (Educ. Code § 48915.6.) The federal definition of a weapon now includes knives with blades longer than 2-1/2 inches. (18 U.S.C. § 930 (2)(g).) This definition, although not as inclusive as California's total ban on a pupil's possession of a knife on school grounds, is a step in the right direction for school administrators who must cope with disciplinary problems among special education students.
Final Regulations 34 CFR Part 300 (March 12, 1999)
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