When Discipline and Special Education Collide: Discipline Under the IDEA
Education Practice Alert
It is not uncommon for people to take somewhat extreme positions on disciplining special education students, suggesting either that one can never discipline a special education student or, at the other end of the spectrum, that discipline is or should always be the same for special education students as it is for any other student. However, both the Individuals with Disabilities Education Act (IDEA) and Pennsylvania law take a more nuanced approach, and knowing the lay of the land can help to avoid the pitfalls of this sometimes thorny issue.
For many disciplinary infractions, special education and other students are treated the same. Under the IDEA, a school district may discipline a special education student the same as it would any other student if the discipline involves a change in placement or suspension of less than 10 days, with additional limits discussed below under Pennsylvania law. Thus, for many minor disciplinary infractions, special education issues are limited or nonexistent.
However, if the proposed discipline would lead to a suspension or change to an alternative placement for more than 10 school days or a cumulative 15 school days for the school year, there are special education matters that need to be considered. Under Pennsylvania law, school districts must consider the cumulative number of days of discipline. For example, if a student protected under IDEA commits a disciplinary infraction and the discipline proposed is a six-day suspension, under the IDEA the student could be disciplined without any issues, as it is a less than 10-day suspension. However, if the student has had prior disciplinary action against him or her in the same school year (for example, two prior five-day suspensions), there are special education considerations under Pennsylvania regulations once there are 15 cumulative days of discipline action for the school year. Thus, in determining if special education issues exist, it is critical to look at both the proposed discipline and any prior discipline from the same school year.
Once it is determined there are special education issues, the school district must hold a manifestation determination within 10 school days of the decision to change the student’s placement or the suspension. The 10-day period is critical because it allows time for the school district to suspend, in most cases, the student for a period of time while it investigates the matter.
During the course of the manifestation determination, members of the student’s IEP team must determine if (1) the conduct at issue “was caused by, or had a direct and substantial relationship to” the student’s disability, or (2) the conduct was “the direct result of the [district’s] failure to implement the IEP.” 20 U.S.C. § 1415(E)(i). In many cases, this will be a fact-driven determination and will depend upon the nature of the student’s disability. For example, for students with specific learning disabilities in certain academic areas such as math or reading, it is generally less likely the behavior was a manifestation of the disability; it is a much closer call for students with ADHD or emotionally disturbed students if impulsive behavior is involved. If the behavior is not a manifestation, discipline may proceed as it would against any other student. If it is a manifestation, the student needs to be returned to school and an FBA conducted or reviewed and the IEP revised as a result.
Finally, there are always cases, and the drafters of the IDEA acknowledge this, in which discipline is necessary and appropriate regardless of whether it is a manifestation of the student’s disability. The IDEA provides for three exceptions that allow for up to a 45-school-day expulsion, irrespective of whether the behavior is a manifestation of the disability, in the cases of (1) possession of a weapon, (2) knowingly possessing or using illegal drugs and (3) inflicting serious bodily injury. However, it is important to note the IDEA defines these offenses somewhat narrowly and a student may have the ability to appeal the decision that the offense qualifies under one of these exceptions. Courts have generally taken a very limited view of the serious bodily injury exception by limiting it to only the most serious cases. Likewise, a student who claims that drugs found on him or her were put there by someone else without his or her knowledge, if true, likely did not knowingly possess the drugs. Thus, a careful review of the facts, and perhaps consultation with your solicitor, is needed in this cases.
One final important note is that the protections from discipline under the IDEA apply not only to students identified, or students with IEPs, but also to students suspected of having a disability prior to the disciplinary infraction. This additional protection comes into play if the parent has expressed a concern that the child is in need of special education, the student is being evaluated for special education or a school employee has expressed concern to the director of special education about a pattern of the student’s behavior.
While the discipline of a special education student can be a thorny issue, knowing the lay of the land and the limits on what can and cannot be done is one way to avoid liability when these two areas collide.
For more information about this alert, please contact Timothy E. Gilsbach at 610.397.6511 or firstname.lastname@example.org or any member of Fox Rothschild’s Education Practice Group.