Discipline of Students with Disabilities under IDEA 2004 October 2007 Dr. Mary Anne Linden

1. Discipline of Students with Disabilitiesunder IDEA 2004October 2007Dr. Mary Anne Linden

2. Key Discipline Provisions • ≤10-day & 45-day removals • Manifestation determination • “Special circumstances” • “Serious bodily injury” • “Stay put” for behavior that IS NOT a disability manifestation • Establishes timeline for expedited hearings • When districts are presumed to have knowledge of children not yet identified

3. Special Circumstances615(k)(1)(G) A school is permitted to remove a child with a disability to an alternative setting for up to 45 school days for • Weapons and drug offenses; or • Serious bodily injury upon another person.

4. Manifestation Determination615(k)(1)(E); 34 CFR 300.530(e) Within 10 school days of the decision to change placement due to discipline, the parent and relevant IEP team members review all relevant information: • Student’s IEP • Teacher observations • Relevant information from the parents to determine if conduct was a manifestation of student’s disability.

5. Manifestation Determination615(k)(1)(E); 34 CFR 300.530(e) Conduct is a manifestation of disability if : • Caused by, or was in direct and substantial relationship to, the child’s disability; or • A direct result of the District’s failure to implement the IEP. If so, District must take immediate steps to remedy the situation.

6. What was Congress thinking? Conference report language: • Teams should “analyze child’s behavior as demonstrated across settings and across time when determining whether the conduct in question is a direct result of the disability.” • Must be a “direct result” and not an “attenuated association”, such as low self-esteem.”

7. Old but still good—Doe v. Maher “…. An example of such attenuated conduct would be a case where a child's physical handicap results in his loss of self-esteem , and the child consciously misbehaves in order to gain the attention, or win the approval, of his peers. Although such a scenario may be common among handicapped children, it is no less common among children suffering from low self-esteem for other, equally tragic reasons.” Doe v. Maher (9th Cir. 1986)

8. If not a manifestation • Regular disciplinary procedures may be applied (same extent and duration as for nondisabled students) • Must continue to provide a FAPE to the student, though in an alternative setting: • Continued participation in the general education curriculum • Services necessary to progress toward IEP goals • If appropriate, FBA & BIP

9. If behavior is a manifestation • IEP team must conduct FBA (if not already done) and implement BIP (or review and revise current BIP) • Student returns to placement before removal, unless…

10. If behavior is a manifestation… • unless: • 45-day “special circumstances” • parent and District agree to a change of placement • removal by administrative law judge (ALJ) for behavior substantially likely to result in injury

11. “Serious bodily injury” “Serious bodily injury” is an injury that involves: • Substantial risk of death; • Extreme physical pain; • Protracted and obvious disfigurement; or • Protracted loss or impairment of function of a bodily member, organ or mental faculty.

12. Students Not Yet Eligible615(k)(5)(B) • A District “has knowledge” that a child has a disability if, before the behavior that precipitated the disciplinary action • Parent • expressed concern in writing to an administrator or teacher that student was in need of special education and related services, or • requested special education evaluation of the child; or • Teacher or other District personnel expressed specific concerns about a pattern of behavior to special education director or other district administrator.

13. Students Not Yet Eligible (continued)34 CFR 300.534 Exceptions to “knowledge”: • Parent did not allow evaluation • Parent refused special education services • Student was evaluated and did not meet criteria for special education services

14. Expedited Hearing When • Parent can request to challenge decision related to manifestation determination or change in placement related to disciplinary action • District can request to obtain ALJ order for removal to IAES for behavior that is substantially likely to result in injury

15. Expedited Hearing34 CFR 300.532 Timeline: • Resolution session within 7 days of request unless agreement to waive or to use mediation • Hearing proceeds unless resolved within 15 days of request • Hearing within 20 school days of the request • Order within 10 school days after the hearing

16. Placement During Appeals615(k)(4) No manifestation Child remains in the interim alternative educational setting until: • The decision of the administrative law judge; or • The end of the suspension or expulsion (if not a manifestation). whichever comes first! Unless parent & district agree to different placement

17. Placement During Appeals615(k)(4) Manifestation Child remains in placement prior to disciplinary action unless: • parent and District agree otherwise, or • 45-day “special circumstance”.

18. Resources for Districts • ODE sample form: Manifestation Determination • Manifestation determination charts • OSEP “one pager” on Discipline • Positive Behavior Supports Initiative