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Monday, June 15, 2015

Special Education Law 101 - Part IX: #Discipline

From Jim Gerl's Special Education Law Blog

By Jim Gerl, Esq.
June 9, 2015

This is the most recent post in the continuing series meant to be an introduction to special education law. In today's post, we will be discussing discipline of students with disabilities.

People often ask why disciplinary actions are regulated by the special education law. The reason is that before passage of the law's predecessor, it was common for school officials to exclude children with disabilities by expelling them and giving them long suspensions. This series of abuses was reflected in the legislative history of the law.

Discipline is one area that seems to cause folks to develop stomach problems (sorta like the rule against perpetuities in law school), but it isn't really as hard as we seem to make it. Let me know if this explanation helps.

Discipline Issues

The IDEA imposes special rules that govern the discipline of students with a disability. The basic rule is that a special education student may not have her placement changed (i.e., suspensions of more than 10 days or expulsion) for conduct that is a manifestation of her disability. IDEA, § 615(k)(1)(F).

If the behavior is not a manifestation of the student’s disability, the student may be disciplined in the same manner and for the same duration as children without disabilities. IDEA, § 615(k)(1)(C).

One exception is that, regardless of manifestation, the schools may remove a student to an interim alternative educational setting, sometimes referred to as “IAES,” for up to 45 school days if (1) the student possesses a weapon at school; or (2) the student possesses or uses or sells illegal drugs at school; or (3) the student has inflicted “serious bodily injury” upon another person while at school. IDEA, § 615(k)(1)(G).

The schools may also ask a hearing officer to change the placement of a student with a disability to an IAES if remaining in the current placement is substantially likely to result in injury to the student or others. IDEA, § 615(k)(3)(A) and (B).

Another cardinal rule in the discipline area is that regardless of whether the conduct of a student was a manifestation of the student’s disability, where a student with a disability is removed from his current placement, the schools must continue to provide educational services to ensure FAPE for the student and to enable the student to continue to participate in the general curriculum although in another setting. IDEA, § 615(k)(1)(D).

(See generally regarding discipline issues, 34 C.F.R. §§ 300.530 – 300.537).

The Supreme Court dealt with discipline issues and endorsed the stay put provision in the case of Honig v. Doe 484 U.S. 305, 108 S.Ct. 594, 559 IDELR 231 (1988). In that decision, the Supreme Court, noting the Congressional intent in preventing the exclusion of disabled students and reiterating the importance of the procedural safeguards under the IDEA, refused to read a dangerousness exception into the stay put provision. The high Court outlines the history of abuses of the discipline of kids with disabilities in that decision.

In District of Columbia v. Doe ex rel Doe 611 F.3d 888, 54 IDELR 275 (DC Cir 7/6/10), the D.C. Circuit ruled that HO (Hearing Officer) did not exceed his authority where he reduced a disciplinary suspension. HO reduced a 45 day suspension to an 11 day suspension noting the trivial nature of the infraction and finding that the more lengthy suspension denied FAPE to the student.

Dear Colleague Letter 114 LRP 1091 (US DOE & DOJ 1/8/14): The United States Departments of Education and Justice issued policy guidance for school districts and states to reduce unlawful discrimination in student discipline policies. This seems to be a conscious decision by the Administration to attack the school-to-prison pipeline problem. Although the thrust of the guidance is obviously to reduce racial discrimination in school discipline, the Dear Colleague letter notes specifically that the contents of the guidance also fully apply to discipline that discriminates against children with disabilities and other protected groups.

(See footnote 4 on pages 2-3 of the Dear Colleague Letter). You can read the DOE blog article here. You can review the video by Secretary Duncan and the complete guidance package here. The Dear Colleague Letter is available here.

In an interesting development, two district courts last year granted Honig v Doe injunctions restraining a dangerous student from attending school: Wayne-Westland Community Schools v VS & YS 64 IDELR 139 (ED Mich 10/9/14); Seashore Charter Sch v EB by GB 64 IDELR 44 (SD Tex 9/3/14).

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